Opinion
No. FA97-0406246
March 3, 2004
MEMORANDUM OF DECISION
FACTS: The marriage of the parties was dissolved in December 11, 1998. Pursuant to the judgment, the Defendant was to pay alimony in the amount of $250.00 per week. The court found that the Defendant earned $719.00 gross and $534.00 net income per week from his principal employment with the State of Connecticut Department of Transportation (Transcript 12/11/1998, p. 3 ln. 26-27). The court also found the Defendant had additional income from part-time employment of $72.00 gross per week (Tr. 12/11/1998, p. 4, In. 1-2). The court also ordered that the Husband pay the Wife alimony in the amount of $175.00 alimony per week for a period of two years, and, thereafter, alimony in the amount of $250.00 per week terminating on the death of either party, the remarriage of the plaintiff, or the plaintiff's cohabitation with anyone other than her children as defined by statute (Tr. 12/11/1998, p. 8, In. 2-10). The Plaintiff earned $423.00 gross income and $321.00 net income at the time of the divorce (Tr. 10/24/03, p. 13, In. 18-19, p. 72, In. 19-22). The Plaintiff currently earns $474.63 net and $335.66 gross income.
On April 25, 2003, the Defendant filed a Motion to Modify alimony. The court heard the Motion for Modification on October 24, 2003. Counsel filed briefs on November 7, 2003.
Mr. Piscitelli testified that he took a service retirement from his full-time employment at the age of 54 effective May 1st, 2003. The Defendant was required to have 25 years of service to qualify for a service retirement and as of May 1st, 2003 he had 32.5 years of service. The Defendant does not have any health problems or any other reason to take an early retirement, other than he was tired of working at his job. In 2002, the year prior to retirement the Defendant earned $48,711.00 from his employment with the DOT (Tr. 10/24/03, p. 46, In. 27) and $2,496.00 from Thimble Island Wine and Liquor. The Defendant's total earnings in the year prior to his retirement were $51,207.00
He is currently employed 25-30 hours per week "under the table" at Thimble Island Wine Liquor and is paid $10.00 per hour in cash. The Defendant did not introduce any evidence of his earnings at Thimble Island Wine Liquor other than his own testimony. Mr. Piscitelli claimed to earn net income of $220.00 per week in addition to his net pension of $254.00 per week for a total net income of $474.00 per week. In Defendant's Motion to Modify #130 he cited his retirement as the substantial change of circumstances warranting a modification of alimony.
When the Defendant retired, his state pension went into pay status. Pursuant to the orders of the court at the time of the dissolution, the pensions of the parties were equally divided (Tr. 12/11/1998, p. 9, In. 4-11). When the Defendant retired the Plaintiff began to receive her share of his state pension in the net amount of $197.46 per week. The Plaintiff contends that the Defendant's arrearage as of October 24, 2003 was $2,388.54 calculated as follows: $113.73 weekly arrearage on alimony order of $250.00 x 21 weeks = $2,388.54. The Defendant contends that his Motion for Modification should be retroactive and he owes no arrearage.
ISSUE: The Defendant argues that his alimony should be reduced by the amount his former wife is receiving from her portion of his pension. He claims that the alimony of $250.00 minus the net pension should be the modified alimony award (Tr. 10/24/03, p. 23, In. 15-16).
ANALYSIS: The trial court has the authority to modify an alimony order pursuant to General Statutes § 46b-86, which provides in relevant part that "[u]nless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party . . ." As the Connecticut Supreme Court has stated, "[o]nce 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 . . . are relevant to the question of modification." (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737 (1994). Under § 46b-82, those criteria include "the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . ." General Statutes § 46b-81(a) provides in relevant part that "[a]t the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other . . ."
However, the trial court has no authority to modify the assignment of property made at dissolution; see General Statutes § 46b-86(a). In the case before the court, the division of retirement assets clearly falls within the realm of a property division. The simple fact that the defendant voluntarily placed his pension in pay status at the age of 54 does not change the property division. This court recognizes that retirement payments are being made to the defendant in an amount slightly greater than the sum received by the plaintiff. This is due to the fact that the retirement benefits that accrued postjudgment are sole property of the defendant. Essentially, the parties are both benefiting from retirement payments. The receipt of retirement benefits alone is not proof of a substantial change of circumstances warranting a modification of alimony.
What the defendant is asking the court to do is consider the retirement payments made to the plaintiff a substitute for an alimony award. General Statutes § 46b-86 confers authority on trial courts to retain jurisdiction over orders of periodic alimony, but not over lump sum alimony or property distributions pursuant to General Statutes § 46b-81. Smith v. Smith, 249 Conn. 265, 273-74, 752 A.2d 1023 (1999).
The only change for the court to consider is the reduction of the defendant's income as a result of his retirement. The general rule is that under certain circumstances, voluntary retirement may constitute a change of circumstances sufficient to support a motion to modify alimony. See Misinonile v. Misinonile, 35 Conn. App. 228 (1994); Epstein v. Epstein, 43 Conn. Sup. 400 (1994). The Misinonile court found that "our review of the record discloses no basis for a finding that the defendant retired for the purpose of avoiding or reducing his obligation. Rather, the defendant, who had been eligible for retirement six years earlier, chose, after working for thirty-three years with health problems, to retire at age sixty-eight. Under such circumstances, it is not unreasonable for the defendant, as he stated, to be "tired" and to seek the less strenuous and demanding lifestyle offered by retirement." Misinonile v. Misinonile, 35 Conn. App. 228, at 232 (1994). Unlike the Misinonile case, the defendant is 54 years old and in good health. There was no evidence of a golden handshake or other incentive for the defendant to take early retirement. He gave no reason for his retirement other than being tired of working for the DOT. Additionally, the defendant is currently employed 25-30 hours a week at a greatly reduced hourly wage and is paid in cash.
Ms. Piscitelli sold the former marital home between May 2003 and October 2003 and realized proceeds of $46,000.00. The sale of the marital home was part of the property settlement at the time of the divorce. The plaintiff used the proceeds from the sale to purchase a car, pay bills and establish a $12,000.00 certificate of deposit.
In Gay v. Gay, 266 Conn. 641, 835 A.2d 1 (2003), the trial court initially determined that as a result of the defendant's retirement and the plaintiff's increase in income from the sale of capital assets, the parties' income was in parity, thus justifying the suspension of alimony payments. The Supreme Court held that capital gains cannot be considered as income for purposes of modification of an order for continuing financial support if those gains do not constitute a steady stream of revenue. "[T]he purpose of both periodic and lump sum alimony is to provide continuing support." Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). At least where, as is generally the case, capital gains do not represent a steady stream of revenue,[3] the fact that a party has enjoyed such gains in a particular year does not provide a court with an adequate basis for assessing that party's long-term financial needs or resources. For this reason, we conclude that capital gains are not income for purposes of modification of an order for continuing financial support if those gains do not constitute a steady stream of revenue. This is true without regard to whether the assets from which those gains are derived were acquired before or after the dissolution.
It is clear that the sale of the former marital home did not generate a "steady stream of revenue" as contemplated by the Gay court. The defendant's retirement was voluntary as is evidenced by his continued employment. Based on the case law cited above, the court lacks jurisdiction to modify the original property division by classifying pension payments as alimony payments.
The court finds that the plaintiff's financial situation has not changed since the date of the dissolution. She is employed at the same job and earning only $14.66 more net income since the judgment. The defendant's earnings have diminished because he chose to retire at the age of 54, with no health problems. After his retirement the defendant demonstrated he was able to work by accepting employment at a greatly reduced wage. The court finds that change in the defendant's financial situation is of his own volition.
ORDERS
The defendants Postjudgment Motion to Modify Alimony #130, dated April 25, 2003 is denied.
2. The plaintiff's Motion for Contempt, #133 dated July 22, 2003 is granted. Plaintiff's Request for Allowance to Prosecute is denied.
3. The plaintiff's Objection to Defendant's Motion to Modify and for Attorneys Fees is granted as to the Objection to Modify and denied as to the request for attorneys fees.
4. The defendant's alimony payments are in arrears 18.5 weeks x $113.74 weeks = $2,104.19. The arrearage shall be paid as follows:
a. The sum of $500.00 shall be paid within 14 days of the entry of this order.
b. The balance of $1,604.19 shall be paid at the rate of $62.18 per week. The defendant's total alimony payment shall be $250.00 + $62.18 = $312.18 until the arrearage is fully paid.
Holly Abery-Wetstone, Judge