Opinion
FA094030026S
07-14-2017
Patricia A. Lorenti v. Joseph J. Lorenti
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO TERMINATE ALIMONY (#116.79); AMENDED MOTION FOR TERMINATION (#122.00)
Mary E. Sommer, J.
INTRODUCTION
The court conducted a postjudgment hearing on Defendant's Motion for Termination of Alimony dated December 13, 2016 (#116.79) and Amended Motion for Termination (122.00) on March 10 and March 22, 2017. Both the defendant and the plaintiff were represented by counsel and provided testimony. Between the hearing dates, the defendant filed an Amended Motion for Termination or in the Alternative Modification of Alimony and Life Insurance dated March 20, 2017 (#122.00), to which the Plaintiff filed an Objection on March 22, 2017. The Court heard oral argument on March 22, 2017, thereafter reserving decision. The plaintiff and the defendant filed Proposed Findings of Fact and Conclusions of Law, Postjudgment on April 19, 2017. Based on the evidence presented at the hearing the court makes the following findings of fact.
FACTUAL FINDINGS
1. The 25-year marriage of the parties was dissolved on May 11, 2010. Judgment entered in accordance with the May 11, 2010 Separation Agreement.
2. Pursuant to the judgment, the defendant was ordered to pay the plaintiff alimony in the amount of $300.00 per week until the death of either party, the remarriage of the Plaintiff, or the cohabitation of the Plaintiff pursuant to statute. There was no provision in the Separation Agreement explicitly providing for termination of alimony or a second look at alimony at the time of retirement or upon either party reached a certain age. Pursuant to the judgment, the parties agreed that neither the plaintiff's receipt of income nor the defendant's receipt of income from the City of Stamford Policeman's Pension Trust Fund could be considered a substantial change of circumstances for the purposes of modification, and further that the amounts the Defendant receives from the pension shall not be included as income for the purposes of calculating alimony. The specific language of Paragraph 2.2 of the parties' Separation Agreement provides:
The Husband shall pay to the Wife the amount of $300.00 per week as periodic alimony until the first of the following events shall occur: (1) The death of either party; (2) The remarriage of the Wife; or (3) The cohabitation of the Wife pursuant to C.G.S. Section 46b-86(b). Said periodic alimony payments shall not begin until immediately after the date of closing from the sale of the marital residence to a third party. Each periodic alimony payment shall be paid in advance on the Friday preceding each week.
Paragraph 2.5(B) of the parties' Separation Agreement provides:
At any future modification hearing, the Court shall not include any and all amount(s) that the Husband has received and/or may receive in the future from his interest in the City of Stamford Policeman's Pension Trust Fund as income of the Husband for the purposes of calculating the Husband's periodic alimony obligation to the Wife thereafter. The parties shall request of the Court which enters a decree of dissolution of marriage that the decree expressly preclude modification of periodic alimony based upon the circumstances set forth in this Paragraph 2.5, whether pursuant to Connecticut General Statutes Section 46b-86(a), or otherwise. Except for the circumstances expressly set forth herein in this Paragraph 2.5, the Husband's obligation to pay periodic alimony to the Wife shall be modifiable as to amount and as to duration for all other reasons, whether pursuant to Section 46b-86(a) or Section 46b-86(b) of the Connecticut General Statutes, or otherwise.
4. The plaintiff, who is 62 years of age and single, is currently employed, working two part-time retail jobs. She earns approximately $287 gross per week from employment and has recently elected to receive social security, from which she receives $196 per week.
5 The defendant is 60 years of age. At the time of the dissolution he was employed as a police officer with the City of Stamford with 34 years of service as a patrol officer. On December 22, 2016, he voluntarily retired at the maximum pension level which he could attain providing notice thereof to his employer in a letter dated October 19, 2016.
6. In 2016, defendant's W-2 from the City of Stamford reflected earnings of $95,000.
7. When the Defendant testified was asked that the reason he retired he testified: " It was time for me to retire" and that he was " one of the senior guys in the department."
8. Although the defendant claims to have numerous injuries and medical issues, when asked specifically whether his health condition had anything to do with his decision to retire, he responded equivocally, " In some part, yes." According to further testimony by the defendant, the medical issues about which the defendant testified had been ongoing since prior to the dissolution and in several instances prior to the marriage.
9. Defendant did not refer to any of his alleged medical conditions in his letter dated October 19, 2016 notifying his employer of his decision to retire or mention any medical concerns or correlation between retirement and medical issues.
10. Over the years the defendant received disability leave or time off on several occasions. After every such medical leave medical professionals released him back to work. The last injury for which he received workers' compensation benefits was on October 25, 2013, three years prior to retirement. There was no credible evidence that the defendant has any physical disability which would reasonably impact his ability to continue to work.
11. Prior to retiring, the defendant did not inquire as to whether there were any other positions in the department that he might apply for because according to his testimony he was looking to retire and that after thirty-four years of police work, " It was time for me to retire from the police service."
12. Since retiring, he has not sought any form of employment and has testified that he does not intend to seek employment, despite presently working toward earning a Masters in Business Administration. The defendant has not presented any expert testimony to support his assertion that he is unemployable/or any limitation to his employability.
13. The defendant has been taking online graduate courses which his former employer pays for as a benefit which he receives under the police union contract with the City of Stamford and anticipates receiving his M.B.A. this year.
14. The evidence supports the court's conclusion that the defendant is physically capable of working and that he has thirty-four years of public safety experience which along with his M.B.A. establish a clear basis for continued earning capacity.
15. In 2010 defendant relocated to New Jersey where he resides with his current wife in a property owned by her. His financial affidavit, confirmed by his testimony, indicates that she contributes significantly to his support.
16. Defendant's credit card statements reflect significant charges for restaurants, entertainment, and improvements and renovations to the home in which he resides. Those credit card statements demonstrate a comfortable lifestyle, which has remained constant over the last several years. Although the expenses about which he testified were largely in 2016 prior to the date of his retirement, he testified that his lifestyle has not materially changed since the date of his retirement.
17. Although the defendant claims that he couldn't have afforded to retire at age 60 without the financial support of his current wife, a review of his financial affidavit which indicates $40,000.00 assets and income from his pension clearly indicates that he has ample financial resources in retirement.
II. APPLICABLE LAW AND ANALYSIS
Motion for Termination of Alimony (#116.79); Amended Motion for Termination of Alimony and Life Insurance (#122.00)
The party seeking modification of an award of alimony bears the burden of proving a substantial change of circumstances has occurred. Bunche v. Bunche, 180 Conn. 285, 290, 429 A.2d 874 (1980). The modification sought by the defendant in this case is a complete termination of his alimony obligation and his obligation to provide life insurance to the plaintiff.
The following statutory language and analysis of the court in Olson v. Mohammadu, 310 Conn. 665, 81 A.3d 215 (2013) is applicable to the court's consideration of the claims in this case regarding the defendant's motion for modification.
" [General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is [child support], the applicable provision of the statute is § 46b-86(a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party . . . Under the statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred." Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007). " To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order." Borkowski v. Borkowski, supra, 228 Conn. at 737-38, 638 A.2d 1060.
" Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support are relevant to the question of modification." Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). " More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties." Borkowski v. Borkowski, supra at 736. " The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal . . . Rather, the trial court's discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Citations omitted.) Id., at 738, 638 A.2d 1060.
Thus " [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification . . . The court has the authority to issue a modification only if it confirms the order to the distinct and definite changes in the circumstances of the parties." (Emphasis omitted; internal quotation marks omitted.) Gervais v. Gervais, 91 Conn.App. 840, 850-51, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
In Borkowski v. Borkowski, supra, the Supreme Court clarified the two-step method by which a trial court should proceed with a motion brought pursuant to § 46b-86. " After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court's ability to entertain a motion for modification, however, it also naturally comes into play in the trial court's structuring of the modification orders." (Citation omitted.) Id., at 737, 638 A.2d 1060. The court must also consider the facts which gave rise to the change in circumstances. That is because in order to meet the threshold of a substantial change in circumstances, the alleged inability to pay " must be excusable and not brought about by the defendant's own fault." Sanchione v. Sanchione, supra, 173 Conn. at 407, 378 A.2d 522.
The Separation Agreement specifically excluded Stamford Policeman's Pension Trust Fund as income of the Husband for the purposes of calculating the Husband's periodic alimony obligation to the Wife thereafter. As stated therein, " The parties shall request of the Court which enters a decree of dissolution of marriage that the decree expressly preclude modification of periodic alimony based upon the circumstances set forth in this Paragraph 2.5, whether pursuant to Connecticut General Statutes 46b-86(a), or otherwise. Except for the circumstances expressly set forth herein in this Paragraph 2.5, the Husband's obligation to pay periodic alimony to the Wife shall be modifiable as to amount as to duration for all other reasons, whether pursuant to Section 46b-86(a) or Section 46b-86(b) of the Connecticut General Statutes, or otherwise."
The defendant voluntarily elected to retire at the maximum pension level at age 60 in December 2016. The plaintiff presently receives $440.00 per week under the defendant's pension. The plaintiff acknowledges that the provisions of Article 2.5B of the Separation Agreement preclude inclusion of defendant's pension for the purpose of calculating alimony. The basis of her objection to defendant's motion to modify is her claim that the defendant, having voluntarily retired at 60, is not entitled to termination of his alimony obligation because he still has the capacity to be gainfully employed in addition to collecting his pension. Unlike the defendant, plaintiff has very limited assets, must live with her adult son and has struggled to make ends meet following the dissolution of her twenty-five-year marriage to the defendant.
The credible evidence at trial established that the defendant voluntarily elected to retire from his job notwithstanding his court-ordered alimony obligation. The defendant failed to provide credible evidence to the court that he could not continue his employment as a police officer and maintain his income or that with 34 years of public safety service and soon anticipated M.B.A. that he is clearly employable. The court has carefully considered the defendant's health issue claims and concludes that the defendant has failed to demonstrate that his health at the time of his retirement or the dates of the hearing differs substantially from his health status at the time of dissolution. Further, the defendant himself testified that he failed to make good faith efforts to seek other employment or to explore a different position in the police department prior to retiring. He clearly stated that he has not sought new employment since retiring and does not intend to do so. Instead, he intends to rely upon the financial support of his current wife and his pension. Under the facts and circumstances of the case, she argues that it would be inequitable for the plaintiff who continues to require the support to suffer financially as a result of the defendant's voluntary action taken only six years after dissolution of a twenty-five-year marriage.
The basis of plaintiffs' objection to the defendant's motion to terminate alimony is not his actual income, but his earning capacity. " It is well established that in marital dissolution cases, financial awards may be based on earning capacity rather than on actual earnings. Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981). Such consideration is especially appropriate when the obligor has voluntarily left employment." Marshall v. Marshall, No. FA-81-25044-S, 1995 WL 217236 (J.D. of Tolland, at Rockville, Apr. 6, 1995). Plaintiff argues that denial of the defendant's motion to terminate alimony and continuation of support obligation based on defendant's earning capacity is appropriate in this case, as the defendant's reduction in earnings is the result only of his voluntary retirement at age 60.
As noted above, the defendant retired at age sixty, having paid alimony for approximately six years following a 25-year marriage. The court has reviewed the authority cited by both parties and concludes that the distinguishing factors of this case are clear and material and do not equitably lead to a complete termination of the alimony obligation. More similar to the factual findings and analysis of Salzarulo v. Salzarulo, No. FA-00-0725814-S, 2004 WL 728907 (J.D. of Hartford, Mar. 19, 2004), Clay v. Clay, No. FA-980717513-S, 2002 WL 31463167 (J.D. of Hartford, Oct. 3, 2002) [33 Conn.L.Rptr. 312, ], Piscitelli v. Piscitelli, No. FA-97-0406246-S, 2004 WL 573937 (J.D. of New Haven at New Haven, Mar. 3, 2004) [36 Conn.L.Rptr. 593, ].
In Salzarulo, the payor sought a modification of his support obligation after voluntarily retiring from the U.S. Postal Service at age 55 with over thirty years of service. While it was clear to the court that the defendant's income has declined the court concludes that the reduction was the " direct result of the defendant's decision to retire from the U.S. Postal Service at the age of 55 . . . Although he would like the Court to believe that his health has deteriorated since the date of dissolution, the Court is not persuaded that it differs significantly from his health status at the time of dissolution." Neither health issues nor age were persuasive to the court in justifying the defendant's early retirement. In that case, the court further noted, Salzarulo the alimony and child support orders had only been in force for two years when the defendant voluntarily reduced his income at age 55, apparently giving little thought to his financial obligations to the plaintiff and to his children. The children should not have to pay the price for his voluntary choice to retire early."
In Clay v. Clay, supra, the court denied the motion to modify where the former husband had remarried and voluntarily retired at age 57, three years after the dissolution of his marriage from his former wife of 33 years. The court noted: " While it is clear to the court that the defendant's income has declined, this reduction was the direct result of the defendant's voluntary acceptance of an early retirement package. The defendant was quite frank in his testimony that he gave no consideration to his financial obligation to the plaintiff in making that decision . . . He has elected to move out of state and to 'do nothing.'" The payor testified that " he was tired" of his employment, " having done so for 36 years" and " he plan[ned] to do nothing professionally." He also testified to an irregular heartbeat diagnosis as a factor in his decision to retire early. However, the Court concluded that he had an earning capacity consistent with his earnings at the time of his voluntary retirement, that advanced age and poor health did not factor into his decision and that his voluntary reduction of salary did not constitute the substantial change in circumstances necessary to warrant a modification. Similarly, in Piscitelli, the payor voluntarily elected to retire from his employment with the Connecticut Department of Transportation at the age of 54, after having 32.5 years of service stating that he was " tired of working at his job."
In Parrett v. Parrett, supra, the court concluded that the 69-year-old defendant's " bona fide retirement, " Gay v. Gay, 266 Conn. 641, 643, 835 A.2d 1 (2003), and serious health issues including chronic obstructive pulmonary disease which was apparently developed postdissolution, constituted a substantial change in circumstances sufficient to justify modification of alimony award paid by a defendant for thirty years following an eleven-year marriage. Notable also, was the fact that the defendant in Parrett did not have a pension, that he owned a home with his second wife, and the expense of providing for his own health insurance at age 69 with deteriorating health adding to what the court referenced as a legitimate struggle to maintain financial security and stability in the later stages of life.
As in Salzarulo, Clay, Piscitelli and Parrett, supra, it appears that the defendant here wants his former wife to pay the price of his decision to retire at age sixty. Although the defendant testified about health issues and would like this court to believe that his health played a role in his decision to retire, his own testimony revealed that his current health does not differ significantly from his health at the time of the dissolution. There was absolutely no credible evidence that defendant's health was the reason he retired. Rather, he retired because he thought " it was time." It was evident that he has created a comfortable retirement lifestyle for himself with his new wife in New Jersey without considering the financial obligation to which he willingly agreed at the time of dissolution of his marriage. He did not present any witness to testify that he was unable or unfit to work. Comfortably situated in the home owned by his second wife, the defendant has determined that he could retire and receive his pension, knowing that the agreement precluded consideration of his pension income for the purpose of modification of alimony.
The obligors in the cases cited by the defendant paid alimony for far longer periods of time following shorter marriages than the defendant in this case. Misinonile v. Misinonile, cited by defendant, is distinguished from this case on its facts. In that case, thirteen years postdissolution, the court considered motions for modification of alimony where both parties claimed inability to make ends meet financially. The defendant retired at age 68, having paid alimony for thirteen years and was required to spend money from an inheritance over the short fall between his income and expenses.
Each case in which a party seeks modifications pursuant to Conn. Gen. Stat. 46b-86 must be decided on its own merits. In this case, when the parties agreed that the defendant's pension income would not be included in the modification, they did not state what would happen in the event that the defendant voluntarily retired before reaching normal retirement age under the terms of his employment as a police officer for the city of Stamford. The defendant is in a situation whereby he was able to retire at age 60 without any change in his lifestyle while also earning a post-retirement graduate business degree. His choice leaves his former wife without a specific alimony payment but does not extinguish her legal right to receive alimony.
The fact that the plaintiff receives more weekly from the defendant's pension does not justify termination of alimony where, as in this case, the parties did not make such a provision, and the defendant is not only still capable of earning non-pension income but has also obtained a graduate business degree thereby arguably enhancing his earning capacity. For the reasons stated herein, the court concludes that the defendant has failed to satisfy the requirements for termination of alimony. Based on a careful review of the evidence and the applicable law, the court concludes that the defendant has failed to satisfy the burden of proof that there has been a substantial change in circumstances to warrant termination of alimony in this case. Motion #116.79 is denied.
Modification of Alimony and Life Insurance (#122.00)
This motion is denied consistent with the reasons stated above concerning the denial of the Motion for Termination of Alimony. The defendant should continue to have an obligation to pay alimony to the Plaintiff in the amount of $300 per week consistent with the original terms of the divorce decree.