Opinion
FSTFA124023160S
10-30-2018
Blaine Levenson v. Allen Levenson
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Moore, Margarita Hartley, J.
MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION OF ALIMONY (#241) AND MOTION FOR CONTEMPT (#242) POSTJUDGMENT
MOORE, J.
This matter came before the court pursuant to a motion for modification of alimony (#241) and a motion for contempt (#242) filed by the plaintiff. The motions were heard on September 26, 2018. The defendant was represented by competent counsel and the plaintiff chose to represent herself.
The marriage of the parties was dissolved by memorandum of decision dated August 8, 2014 (Richards, J.). Pursuant to the judgment, the defendant was ordered to pay the plaintiff 40% of his gross annual income from employment as alimony on or before the first day of each month through the end of November 2014. Thereafter, commencing on December 1, 2014, the defendant was ordered to pay the plaintiff 35% of his gross income from employment as alimony on or before the first day of each month until the sooner of 10 years from the date of judgment of dissolution, his death, her death, remarriage or cohabitation as defined in General Statutes 46b-86b.
On June 20, 2016, the defendant filed a postjudgment motion for modification of alimony. The defendant asserted in his motion that his income has dropped substantially from the date of judgment to the date of filing the motion. He also alleged the plaintiff’s income had substantially increased from the date of judgment (#198.01). A hearing was held before Judge Tindill. On August 3, 2017, the court found a substantial change in circumstances since the date of judgment. The defendant’s income had decreased substantially. Moreover, the court found the plaintiff asked her employer to reduce her hours so as not to jeopardize her $75,000 safe harbor. The court ordered the modification retroactive to the date of service of the motion for modification. She also ordered the defendant’s alimony payment reduced to 25% of his gross income and the alimony overage resulting from the order of retroactivity credited to the defendant in equal payments ( i.e. in the form of a reduction in his alimony payments) over the following 12 months.
On March 1, 2018, the plaintiff filed a motion for modification alleging a substantial change in circumstance in that the defendant’s income has increased substantially. On March 6, 2018, the plaintiff filed a motion for contempt claiming the defendant willfully violated the orders entered by Judge Tindill wherein he over withheld the alimony overage repayments.
Motion for Modification (241)
The plaintiff bases her request for an upward modification of alimony solely on the increase in income for the defendant. In Dan v. Dan, the court held: "when the sole change in circumstances is an increase in the income of the supporting spouse, and when the initial award was and continues to be sufficient to fulfill the intended purpose of that award, we can conceive of no reason why the supported spouse, whose marriage to the supporting spouse has ended and who no longer contributes anything to the supporting spouse’s income earning efforts, should be entitled to share in an improved standard of living that is solely the result of the supporting spouse’s efforts." 315 Conn. 1, 11-15, 105 A.3d 118, 125-28 (2014). The court was clear in its holding that when an initial award of alimony is sufficient to meet the needs of the supported spouse, an increase in the income of the supporting spouse, standing alone, is not a sufficient justification to modify an alimony award. Dan v. Dan, 315 Conn. 1, 15-16, 105 A.3d 118, 128 (2014). The matter before the court is distinguishable from the Dan case in that the initial alimony award was previously modified downward by the court due to the substantial decrease in the defendant’s income and an increase in the plaintiff’s income. At the time of the hearing before this court, the defendant’s income had substantially increased from the time of the modification in 2017. Additionally, however, the plaintiff’s income has also increased from the date of modification. See Cohen v. Cohen, 327 Conn. 485, 492-93, 176 A.3d 92, 97 (2018).
"Accordingly, if a trial court considering a subsequent motion for modification determines that the circumstances justifying a previous modification have ceased to exist, then the underlying purpose of the original alimony award still controls. The trial court properly considers the underlying purpose of the original alimony award upon determining that the changed circumstances justifying the modification order no longer existed." Cohen v. Cohen, 327 Conn. 485, 498-99, 176 A.3d 92, 100 (2018). In the instant case, one of the circumstances justifying the previous modification has ceased to exist. Namely, the defendant’s income has increased since the time of the modification. In 2017, the defendant’s gross income was $3,727.76 (exhibit A). At the time of this hearing, the defendant’s gross income had increased to $4,617.68 (exhibit B).
The modification court, however, did not just consider the decrease in the defendant’s income. The court also considered the increase in the plaintiff’s income. The court found "the plaintiff asked her employer ... to ‘reduce her hours.’ This reduction in hours was obtained so as not to jeopardize the plaintiff’s $75,000 safe harbor." At the time of the previous modification hearing, the plaintiff’s affidavit showed a gross income from employment of $1,384.62. The plaintiff’s current affidavit shows a gross income of $1,440.55. The plaintiff testified that she has received a small increase in pay since the modification and she can only work 35 hours per week due to appointments she needs to keep on Fridays.
It is clear only one of the justifications for the modification of alimony in 2017 has ceased to exist. The plaintiff’s income is greater than it was at the time of modification. The court, however, in the 2017 modification orders, specifically found that the plaintiff reduced her hours so as to not jeopardize her safe harbor which was also a justification for the modification. Based on the foregoing, the plaintiff’s motion for modification is denied.
Motion for Contempt (242)
When the court granted the defendant’s motion for modification, Judge Tindill ordered the modification retroactive to July 10, 2016. The figure, which was not determined by the court, was ordered to be paid back to the defendant as credit on his alimony payments (i.e. a reduction in alimony) over the following 12 months. Fortunately, the parties were able to agree on a figure to be credited to the defendant. The parties differ, however, on how it was to be paid which is the subject of the motion for contempt. Unfortunately, in the 12 months following the court’s 2017 memorandum of decision, the defendant was unemployed for several months. When the defendant worked for a month consulting such as an October 2017, instead of paying the plaintiff 25% of his gross income minus one month overage repayment, he took several months of overage repayments which represented the months he missed while unemployed. The plaintiff argues that the defendant should not have taken more than 1/12 per month of the overpayment amount. She contends that in the months the defendant was unemployed, her overage repayment should have been waived since she received no alimony. She claims the defendant owes her 25% of the defendant’s income for two months in which he was employed minus one overage payment as opposed to the several months of overage repayments he took during his few months of employment. The plaintiff claims the defendant owes her $9,214.85 in unpaid alimony.
The court ordered the alimony overpayment to the plaintiff to be paid back to the defendant as credit on his alimony payments (i.e., a reduction in alimony) over the following 12 months. Due to the defendant’s unemployment during that 12-month period, he testified in the two months that he worked, he felt entitled to take more than 1/12 of the arrearage credit in order to receive the full credit within the 12-month period. "An order of the court must be obeyed until it has been modified or successfully challenged." See Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985), Jaconski v. AMF, Inc., 208 Conn. 230, 234-35, 543 A.2d 728 (1988), Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757, 761-62 (1998).
A contempt finding requires three separate elements: a clear court order, a violation of that order, and an unexcused willfulness on the part of the alleged contemnor. Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). Moreover, the Supreme Court imposed a clear and convincing evidence standard as the burden of proof required of someone moving for contempt. Brody v. Brody, 315 Conn. 300 (2015). "In order to constitute contempt, a party’s conduct must be willful." Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). "The contempt remedy is particularly harsh ... and may bel founded solely upon some clear and express direction of the court ... One cannot be placed in contempt for failure to read the court’s mind." Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). "It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order." Marcelo v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985).
In the instant matter, neither party sought a clarification of the court’s order in the event of unemployment during the 12-month period designated by the court for repayment. The defendant’s interpretation of the orders provides an adequate factual basis to explain his withholding of the arrearage credit.
The plaintiff has failed to demonstrate a clear court order, a violation of the order, and an unexcused willfulness on the part of the defendant by clear and convincing evidence; therefore, the plaintiff’s motion for contempt is denied.