Opinion
No. FA 04-0490123S
November 5, 2008
MEMORANDUM OF DECISION RE
Defendant's Motion for Modification of Alimony (#173), Plaintiff's Motion to Increase Alimony (#206), Plaintiff's Motion to Modify Alimony (#211), Plaintiff's Motion for Order (#214), Defendant's Motion for Advice (#221), and Defendant's Motion for Sanctions (#222).
The parties have filed the above postjudgment motions addressed to the alimony order, the division of the defendant's pension, and conduct at a deposition while these matters were pending. The plaintiff seeks an increase in the alimony of $350 per week ordered in the judgment of dissolution on March 21, 2005 so that she can save funds to purchase a home, while the defendant seeks a decrease because he claims that plaintiff's income has increased while his has decreased since the last alimony order. Motions #214 and #221 address the order awarding the plaintiff "fifty per cent of the value of the husband's pension with the Connecticut Municipal Employees Retirement System, valued and payable to her as of the date that he first becomes eligible to begin collecting his share of the pension." The Defendant's Motion for Sanctions pertains to conduct of plaintiff's counsel relating to a deposition of the defendant during these proceedings. The parties appeared with counsel for hearing on the motions on two days in June and August of this year. For the reasons stated below, the motions for modification of alimony are denied; plaintiff's motion for order is denied; defendant's motion for advice is granted as set forth herein; and defendant's motion for sanctions is denied.
I MOTIONS FOR MODIFICATION OF ALIMONY
The motions to modify the amount of alimony are governed by General Statutes § 46-86(a), which provides that a "final order for [alimony or] child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party." Under our law, "[t]he party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." (Citation omitted; internal quotation marks omitted.) Fish v. Igoe, 83 Conn.App. 398, 406, 849 A.2d 910, cert denied, 271 Conn. 921, 859 A.2d 577 (2004). "Following such a finding, the court then answers the question of modification, taking into account the general alimony factors found in C.G.S. § 46b-82." Gervais v. Gervais, 91 Conn.App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). "[A]lthough the trial court may consider the same criteria used to determine the initial award `without limitation,' in doing so, its inquiry is necessarily confined to a comparison between the current conditions and the last court order." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 730, 638 A.2d 1060 (1994). Ultimately, the court here must decide whether "circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it." Id., 737-38.
Section 46b-82(a) of the General Statutes provides in pertinent part as follows: "(a) In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider 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, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
The judgment ordered the defendant to pay alimony of $350 and child support of $189 per week and to pay for the plaintiff's medical and dental benefits through COBRA, which then had a weekly cost of $136.49, "as additional alimony" for the next three years. Since then, the child support and COBRA obligations have ended. The plaintiff now asks for an increase in the weekly alimony order from $350 to $600, while the defendant seeks a reduction to $75 per week.
At the time of the dissolution the plaintiff was working part-time earning $381 per week gross and $359 net. Her affidavit showed expenses for herself and the parties' child of $1,338 per week. She now has a full-time job and is earning $663 gross and $520 net per week. The affidavit she filed at the time of this proceeding showed expenses of $955 per week (a reduction of $383, perhaps because the parties' child no longer lives with her). Since the judgment she has not incurred any debt to meet her expenses, has not taken any money from her savings or investments to meet her expenses, and has been "making ends meet," plaintiff's testimony, June 23, 2008; from this testimony, the court finds that her actual expenses are probably less than the $955 per week that she listed on her financial affidavit, but the court has no basis for determining how much so. She acknowledged in this proceeding that she did not need an increase in alimony for her current living expenses, but wants the increase in order to be able to save money to buy a home, while her financial affidavit shows more than $150,000 in assets at the time of this proceeding.
At the time of the dissolution in 2005, as now, the defendant was a police officer for the town of East Haven. Both then and now (except for the few months while he is on leave because of a work-related injury on July 17, 2008), that job provides him the opportunity to earn substantial income from overtime employment. At the time of the judgment of dissolution, he had averaged 20 hours a week of overtime for the first few months of 2005, with average weekly income of $1,842 gross and $1,394 net after taxes and mandatory deductions; his weekly average net income for the year to date at the time of trial of the dissolution exceeded his expenses of $946 by $448 per week. This was less than his earned income in 2004, when he had averaged $2,639 gross per week.
The defendant continued after trial to have substantial overtime income until he was injured in July of this year. His 2005 federal income tax return introduced into evidence during this proceeding shows that his overtime increased after trial and by the end of 2005 he had earned gross income that year averaging $2,234 per week. In 2006, he earned an average of $2,345 gross per week, and in 2007 an average of $2,561 gross per week. At the time of hearing in this matter, he earned, in the 28 weeks immediately preceding the pay period during which he was injured, an average of $2,453.57 per week gross and $1,778 per week net, an amount that exceeds his weekly expenses of $1,349 (not including the alimony award at issue here) by $429, which is $19 less than the gap between his weekly net income and expenses at the time of trial.
After the injury, he went on sick time and his only income was his base pay of $29.3507 per hour for a normal work week of 40 hours. He expected to return to work in mid-October, and the court has no evidence he did not do so. His temporary reduction of income might have been a sufficient basis for a temporary modification of his alimony obligation; but, since the defendant did not cause his motion for modification of alimony to be served on the plaintiff in the manner set forth in General Statutes § 52-50, any modification ordered on that motion cannot become effective until the day ordered. Since this decision is issued after his expected return to work, there is no basis to find that his income remains at that lower level because of the injury. See General Statutes § 46b-86(a), which provides in relevant part that "[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50" and General Statutes § 52-50, which provides as follows: "(a) All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" shall be sufficient to direct the process to a state marshal, constable or other proper officer. (b) Process shall not be directed to an indifferent person unless more defendants than one are named in the process and are described to reside in different counties in the state, or unless, in case of a writ of attachment, the plaintiff or one of the plaintiffs, or his or their agent or attorney, makes oath before the authority signing the writ that the affiant truly believes the plaintiff is in danger of losing his debt or demand unless an indifferent person is deputed for the immediate service of the writ or other process. The authority signing the writ shall certify on the writ that he administered the oath and insert in the writ the name of the person to whom it is directed, but he need not insert the reason for such direction. Any process directed to an indifferent person by reason of such an affidavit shall be abatable on proof that the party making the affidavit did not have reasonable grounds, at the time of making it, for believing the statements in the affidavit to be true. (c) Service of motions for modification, motions for contempt and wage withholdings in any matter involving a beneficiary of care or assistance from the state and in other IV-D child support cases may be made by any investigator employed by the Commissioner of Administrative Services or the Commissioner of Social Services. (d) Service of motions for modification, motions for contempt and wage withholdings in any matter involving child support, including, but not limited to, petitions for support authorized under sections 17b-745 and 46b-215, and those matters involving a beneficiary of care or assistance from the state, may be made by a support enforcement officer or support services investigator of the Superior Court. (e) Borough bailiffs may, within their respective boroughs, execute all legal process which state marshals or constables may execute.
On these facts neither party has sustained its burden of showing a substantial change of circumstances. Although the plaintiff's earned income has increased, she has fewer expenses now than at the time of the last order, probably because her son no longer lives with her. Her net income from earnings and alimony, without considering her income produced by her assets, is approximately one hundred dollars a week short of the expenses she listed on the financial affidavit she filed here, as is his net income after paying alimony (without considering his net rental income) — although the plaintiff's expenses are probably even less than listed there; see page 3, supra). The defendant no longer is required to pay $325 per week for child support and COBRA medical. His net income, without considering his net rental income, exceeds his weekly expenses by $80.
In addition to their earnings, each party receives steady income as a result of the equitable division of property in the judgment of dissolution. The plaintiff has $173 per week gross income from dividends and interest on her share of the proceeds from the sale of the marital home, with net income thereon of $149 per week. The defendant has net rental income of $181 per week from a home that he purchased in part using his share of proceeds from sale of the marital home. The income each party receives from the assets awarded in the dissolution is a steady stream of revenue. In Gay v. Gay, 266 Conn. 641, 648, 835 A.2d 1 (2003), the court held that "capital gains are not income for purposes of modification of order for continuing financial support if those gains do not constitute a steady stream of revenue"; Id. 647; but expressly declined to "decide . . . whether capital gains would constitute income under § 46b-82 if those capital gains represented a steady stream of revenue." Id., fn.3. No appellate court decision since then has resolved that issue, but even if this court were to consider the steady stream of revenue derived from assets, neither would have shown a substantial change of circumstance.
II MOTIONS REGARDING THE PENSION A Survivor's Benefit
Both parties have filed motions that require the court to consider the order dividing the husband's pension. The court heard evidence on this issue on the two dates of this hearing, but also on November 16 and 30, 2006 and April 22, 2008; and both parties agreed that the court could consider the evidence on those days, which is necessary to, under aspects of the pension.
The judgment of dissolution awarded the wife.
fifty per cent of the value of the husband's pension with the Connecticut Municipal Employees Retirement System, valued and payable to her as of the date that he first becomes eligible to begin collecting his share of the pension.
During various postjudgment motions regarding the specific language necessary to effectuate this order, the evidence has established that before retiring the defendant must elect one of four benefit payment options for his pension. The one paying the highest monthly benefit stops all payments to the plaintiff at his death. In order for the plaintiff to continue receiving a portion of the pension after the defendant's death, the defendant must elect a benefit payment option that provides a reduced monthly benefit during his lifetime. Thus, pension payments to the plaintiff will end at the defendant's death, if he dies before she does, unless he elects a "benefit payment option" paying a reduced monthly benefit during his lifetime. The plaintiff's Motion for Order #214 expressly requests that the court enter an order directing him to "elect Option B — 50% Survivor with the Alternate Payee named the contingent annuitant. The cost for the survivor benefit will be shared by the parties by including the reduction before calculating the benefit assigned to the Alternate Payee." (See the proposed "Domestic Relations Order — Municipal Employees Retirement System" attached to plaintiff's motion.)
During trial of the dissolution, the parties entered evidence that the plaintiff had a defined benefit pension with the Connecticut Municipal Employees Retirement System. No one produced evidence that any portion of that pension awarded to the plaintiff would terminate upon defendant's demise unless he elected an option that would reduce the amount of monthly pension payments that he (and the plaintiff) would receive if he did not make such an election. This court is unaware of any authority as to whether a dissolution court has the power to order a party, postjudgment, to elect a pension option that would reduce its monthly payment; but, without now determining whether a court does have such authority, had such evidence been offered, there were alternatives the court could have considered to provide the plaintiff with funds to support herself if she survived the defendant without ordering defendant to elect such an option. The court could have ordered that the wife be named an irrevocable beneficiary of defendant's life insurance policy of $250,000; or the court might have entered different alimony orders or awarded plaintiff a greater percentage from the sale of the marital home. There were thus other methods, in addition to dividing the pension, to provide funds for the plaintiff's old age should the defendant die before she.
Such evidence was not offered, however. Although a court certainly has powers to enter orders effectuating the property division, it does not have authority to modify the property division. An order now that the defendant be ordered, when he retires, to elect a benefit option paying him less than the maximum monthly payment that he would be eligible to receive is not what the court intended or contemplated when it entered the judgment of dissolution. The court ordered as it intended — that the plaintiff would receive one-half of the defendant's share of the pension. The order proposed by plaintiff now exceeds the scope and intent of the court's division of that pension. Plaintiff's motion to enter an order that defendant be required to elect the survivor benefit option is therefore DENIED.
B Valuation and Commencement of the Pension Payments to Plaintiff
The Plaintiff's Motion for Order and Defendant's Motion for Advice also ask the court to determine whether to order, as proposed by Plaintiff's Motion, that "distribution of benefits to the Alternate Payee shall commence only at such time as the Member retires and begins to receive monthly benefit payments from the Plan." The pension division order in the judgment of dissolution provides that pension payments to the plaintiff would begin "as of the date that [the defendant] first becomes eligible to begin collecting his share of the pension." The defendant has previously submitted to the pension administrator a proposed order that payment begin when defendant "first becomes eligible to begin collecting his share of the pension." The pension administrator rejected the proposed order because, in the administrator's opinion, the phrase "first becomes eligible to begin" is ambiguous because he is, according to the administrator, already eligible to retire now and begin receiving a reduced pension benefit. Under the pension plan, however, he must also actually retire in order to begin collecting his pension benefits, which will continue to increase in value for a number of years.This court has previously addressed this issue in memoranda of decision on Defendant's Motion for Order #170 and his Motion for Order #210. In Motion #170, defendant sought to have the court approve an order that would have divided the pension as of the date of the judgment of dissolution because defendant claimed he was eligible to retire on the date of the dissolution and begin collecting a reduced pension benefit. The court rejected defendant's proposed order and denied the motion because "the defendant would eligible to begin collecting retirement benefits now only if he also retired":
Thus, the defendant maintains, that date satisfies the language of the decree that his pension be valued and paid to the plaintiff when he first became "eligible to begin collecting his share of the pension." In so arguing, however, he overlooks the fact that he is not eligible to begin collecting his share of the pension while he remains "actively employed by a participating municipality and contributing to the [pension plan]." (Court Exhibit 2, hearing of November 16, 2006, letter dated August 4, 2005, from State Employment Retirement System to plaintiff's attorney.) From all the documents submitted to the court on this motion, it appears that the defendant would be eligible to begin collecting retirement benefits now only if he also retired. Thus, despite the language contained in certain letters sent to the defendant and his attorney by the pension administrator, the court concludes that the conditions necessary for valuation of defendant's pension and transfer to the plaintiff of her portion have not yet been met.
Memorandum of Decision on Defendant's for Order (#170). On Motion #210, defendant sought approval of an order that would base plaintiff's half share of the pension on its value as of the date of dissolution because he was then eligible to retire. The court again rejected that argument:
Defense counsel argued at short calendar that defendant was "eligible," as that term is construed in the retirement plan documents, for his pension as of the time of the judgment; but the defendant must also actually retire in order to become, in language of the memorandum of decision dissolving the parties' marriage, "eligible to begin collecting his share of the pension." The defendant has not yet retired, his final pension amount may yet still increase, based on his years of service and other factors, and the amount payable to the plaintiff may also still increase. The proposed order sets instead a fixed amount for monthly payment to plaintiff, which she would not begin receiving until defendant himself also begins receiving monthly benefit payments from the Connecticut Municipal Employees Retirement System.
Memorandum of Decision on Defendant's Motion for Order (#210).
The same issue again is presented here, albeit in a slightly modified form. The defendant may be eligible to retire now; but his actually retiring is a condition precedent to his becoming eligible to begin collecting his share of the pension. The court has ruled repeatedly that calculation of plaintiff's share of the pension cannot be made until defendant retires and begins collecting the pension, because the value of his pension keeps increasing each year. Although defendant is eligible to retire now, and if he did retire he could begin collecting his pension at a reduced level, until he actually retires, he will not receive any pension payments, whether at a reduced level or not.
In view of the pension administrator's declaration in the letter attached to defendant's Motion #221, the court concludes that the pension order should include terminology to the effect that valuation of the plaintiff's portion of the pension shall be based on one-half of the amount that defendant receives when he retires and begins collecting his share of the pension.
III DEFENDANT'S MOTION FOR SANCTIONS #222
The remaining motion is defendant's motion for sanctions against plaintiff's counsel for conduct exceeding the scope of the discovery allowed by then-presiding family judge Bethany Alvord. After plaintiff's counsel originally noticed a deposition of the defendant on the motions for modification, defendant filed a motion to quash #178 seeking to limit the items he must produce at the deposition. Judge Alvord heard argument on that motion on April 19, 2007, and thereafter entered certain oral and written orders [ 43 Conn. L. Rptr. 311]. The deposition of the defendant began on April 3, 2008, but did not conclude until after the court addressed a motion for sanctions filed by plaintiff with regard to conduct of the defendant and his attorney at the deposition. As noted by this court in addressing that motion for sanctions, the written orders of Judge Alvord did not fully set forth the scope or breadth of her oral orders:
Her written order states that "the documents requested . . . are to be from May 05," the date of the judgment of dissolution. It notes that request numbers 5 and 7 of the request for production (asking for the most recent statement of any deferred compensation accounts and a summary of his health insurance policy) had been withdrawn, that numbers 8 and 10 (seeking "written appraisal concerning any asset" and "copies of any written employment contracts") had been denied, and that number 11 (seeking a copy of "all trust instruments) was "moot." The written order further stated that "[t]he deposition shall be taken then if counsel request further documentation they can return to court." A review of the transcript of the hearing before her, however, shows much more explicit direction to the parties. She told plaintiff's attorney that "[y]ou need to limit it to everything after the judgment." (Tr. 1, p. 7, lines 9-10.) When defendant's attorney objected to production of documents relating to "retirement, profit sharing, deferred compensation," (p. 10, lines 23-24 Judge Alvord stated that "I don't see how the retirement plans have anything to do with it," (p. 11, lines 8-9), in response to which plaintiff's counsel withdrew that request. She denied a request for written property appraisals because "[i]t's income driven." (p. 11, line 27.) When defendant's attorney told her that photocopies of his credit card use had been requested, she reiterated her prior order that plaintiff could only demand production of items pertinent to income after the date of dissolution:
Okay. Here's what we're doing. It's income driven. You are welcome to come back after your deposition and argue that something other than income needs to be demonstrated to the Court.
(p. 15, lines 3-6.) When plaintiff's counsel started to argue "[w]ith respect to the credit card statements," Judge Alvord repeated that "it's income driven. I don't care what he's spending." ( Id., lines 18-19, 25-26.) At the conclusion of the deposition, she stated as follows:
So, take the deposition. Come back here if you find that you want this extraneous stuff. Otherwise, it's a fishing expedition, and I'm not going to allow it.
(p. 17, lines 16-19.)
Memorandum of Decision on Defendant's Motion to Reargue (#189).
When the defendant's deposition resumed, plaintiff's counsel again sought materials by way of subpoena duces tecum and asked questions beyond the scope of Judge Alvord's April 19 written order, such as regarding his deeds to his real property, mortgages thereon, his stock brokerage account, and contributions to his retirement and deferred compensation. Defendant's counsel notified plaintiff's counsel by letter that the subpoena exceeded the scope of Judge Alvord's order, but did not file a new motion to quash and instead produced the documents. That letter, contained in the court file as an attachment to the plaintiff's Objection to the Motion for Sanctions (coded as #223), asked plaintiff's counsel to "take this correspondence as notice that I intend on addressing that at some point because your request exceeds what was earlier decided by Judge Alvord . . ." At the deposition of defendant, plaintiff's counsel then asked questions on various topics beyond the scope of Judge Alvord's order, without defendant objecting or seeking to suspend the deposition in order to present to the Superior Court a claim that questions were being asked beyond the scope of Judge Alvord's order.
The court is concerned that plaintiff's counsel again demanded production of items by subpoena duces tecum in disregard of Judge Alvord's order, particularly when this court found in the memorandum of decision on the defendant's motion to reargue (#189) that "Plaintiff's counsel demanded production of documents not permitted under Judge Alvord's orders and asked questions beyond the limits of the deposition established by Judge Alvord." The conduct of plaintiff's counsel here repeated the same action that this court had previously found to violate Judge Alvord's orders.
Yet the proper remedy for defendant was, as before, to move to quash the subpoena duces tecum, or to suspend the deposition and come immediately to court pursuant to Practice Book Sections 13-30(b) and (c) when questions were asked beyond the scope of Judge Alvord's order. The court does not believe it is now appropriate to enter sanctions against plaintiff's counsel for conduct that defendant's counsel could have remedied in these other manners. As the court noted in its memorandum of decision regarding plaintiff's claim for sanctions against defendant's attorney for his conduct at the first portion of the deposition of the defendant, the conduct of neither counsel had been "beyond reproach." The earlier breaches of propriety by both counsel do not excuse the conduct of plaintiff's counsel here, but they do provide a context. The conduct of plaintiff's counsel in issuing a subpoena for documents regarding which Judge Alvord had granted a motion to quash would warrant a finding that he breached his duty to follow court orders. In the context of this case, however, the court declines either to make a formal finding against plaintiff's counsel or a formal order of sanctions. The motion for sanctions is therefore DENIED.
Practice Book Section 13-30(b) provides in relevant part as follows:
A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under subsection (c) of this section . . .
Practice Book § 13-30(c) provides that
At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination forthwith to cease taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Section 13-5. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.
SO ORDERED.