Opinion
No. FA85-0233879S
February 18, 2010
MEMORANDUM OF DECISION
The parties to this action were married on August 24, 1952 and divorced on May 31, 1985. Pursuant to a Separation Agreement dated May 8, 1985 and approved by the court page 5 paragraph 8 provided as follows:
8. Alimony: a) The Husband shall pay the Wife, as and for her support and maintenance, by check or postal money order, at her present place of residence, or at such other addresses as she may thereafter, in writing, designate to the Husband the sum of $325 per week, commencing on the first Friday succeeding the date hereof and continuing on the same day of each succeeding week. The obligation for all alimony shall terminate at the earliest happening of one of the following events:
i) The death of either of the parties hereto; or
ii) The remarriage of the wife, regardless of whether such a remarriage shall thereafter be terminated by divorce, annulment, or otherwise.
b) If there is a substantial change in circumstances, the obligation of all alimony may be increased, modified, suspended, reduced or terminated by any court of competent jurisdiction, in accordance with the laws and doctrines pertaining to alimony orders and judgments, upon application of either party. A substantial change in circumstances shall include a ten percent (10%) shift in the Consumer Price Index (Consumer Price Index for Urban Wage Earners and Clerical Workers, All Items: Series A, 1967 = 100, or an equivalent or substitute if this index is not then-current) using 1985 as the base year.
c) On May 3, 1995, when the Wife celebrate through 65th birthday, the parties shall renegotiate in good faith the amount and terms of alimony, and unless the alimony has been sooner terminated. The parties shall consider in their negotiations the income of each party, the earning ability of each, their health, the desirability of retirement, and their needs. Neither Husband or Wife shall be required to forego retirement at the age of 65 in order to maintain their customary, earlier standard of living, but the parties will accept retirement as a normal event to be considered by them or by any court concerned with the modification of alimony.
d) In any preceding change alimony, the parties shall inform the court for its consideration of the tax implications of any proposed change, and in particular the tax recapture effect of a $10,000 variation during the first six years, or other similar tax will then in effect.
9. Life Insurance: Husband represents he recently insured his life under a policy of insurance issued by the John Aldan Life Insurance Company, for a $100,000 death benefit, naming wife as primary beneficiary. Husband promises to maintain the policy, to pay the premiums without default, to retain Wife as primary beneficiary, and to keep the policy free of loans.
a) If there is a substantial change in circumstances, the obligation to maintain the policy as security for alimony may be suspended, reduced or terminated by any court of competent jurisdiction, in accordance with the laws and doctrines pertaining to alimony orders and judgments, upon application of either party.
b) On May 3, 1995, when Wife celebrates her 65th birthday, the parties shall renegotiate in good faith whether the policy shall be released in full or in part as security for alimony, redeemed, shared as to cost or benefit, or other disposition. The parties shall consider in their negotiations the income of each party, the earning ability of each, their health, the desirability of retirement, their needs, and the other factors described above as applicable to alimony.
The defendant filed a Motion to Reopen and Modify judgment dated June 23, 1995. In a Memorandum of Decision dated September 1, 1995 the Honorable Sidney Axelrod, found a substantial change of circumstances since the date of dissolution and reduced alimony from $325 per week to $275 per week retroactive to June 14, 1995. The court found the plaintiff's cohabitation had not increased or decreased her weekly expenses and denied the defendant's motion to modify or terminate alimony based on cohabitation. The court rendered no opinion as to what order would be appropriate in the event the defendant in fact did retire.
The defendant filed the instant motion to Reopen and Modify on June 22, 2009 and the matter was heard by the court on October 10, 2009. Counsel for both parties submitted briefs. The court makes the following findings of facts:
1. The defendant is a dentist who retired after 54 years of practice in the summer of 2009 at age 81;
2. The defendant testified that he pays an annual premium of $10,000 to maintain the $100,000 dollars of life insurance required by the original judgment;
3. The defendant testified he suffers from hypothyroid, high blood pressure, high cholesterol, and back problems due to arthritis;
4. The defendant sold his business condominium where his dental practice was located on July 15, 2009 for $93,000.
5. He sold his dental charts for $55,000 in late 2008 or early 2009. The proceeds from the sale were reduced by a $10,000 business brokers fee, payment of a $47,000 business loan, and $600 in attorneys fees. The defendant's net loss from the sale of his dental charts was-$2,600.
6. The defendant also received $25,000 from an insurance claim (as a result of the business embezzlement by his secretary). In total, the defendant received $172,000 from the sale of the business condominium, insurance payment and chart sale. He paid off a $45,000 business loan, a $15,000 CPA Bill, $4,000 due Pitney Bowes, $5,000 for temporary staffing, $4,000 for equipment removal and $12,000 to pay off the loan on his automobile for a total of $85,000. At the time of the hearing $13,200 remained from the proceeds of the sale of the business condominium.
7. The defendant's current wife, age 62 continues to work full time. The defendant and his wife share household expenses, however the defendant's income is insufficient to cover is 50% of expenses.
8. The plaintiff age 79, testified that she continues to work part time at the Jewish Community Center as an administrative assistant. She testified that her live-in companion of 21 years does not contribute to the household expenses but performs household chores that enable her to continue to live independently.
9. The plaintiff testified she is not in good health and she suffers from degenerative discs and spinal stenosis making it difficult to walk and sit, is a borderline diabetic, hard of hearing, suffers from bouts of diverticulitis, osteoporosis, has a torn rotator cuff in her right shoulder, a persistent cough currently undiagnosed and has undergone two angioplasties in the last 15 to 20 years. She receives steroid injections three times per year for spinal stenosis and takes medication for pain, high cholesterol, blood pressure and a hand tremor.
In 1995 the court found that the plaintiff had gross weekly income of $385, net weekly income of $283 and total weekly expenses of $548.59. Mrs. Tannenbaum had total liabilities of $2,000 and total cash assets of $114,411. Included in her assets were IRAs totaling $42,885, a tax-deferred annuity of $18,000 and a pension valued at approximately $5,000. The plaintiff owned a condominium located at 17 East Gate Lane, Hamden, Connecticut with a mortgage of $28,000 with $15,000 of the mortgage being the responsibility of her daughter.
In 1995, the court found the defendant's gross weekly income was $1,563 and his net weekly income was $1,099. The defendant's gross weekly expenses were $1,743. Dr. Tannenbaum's home had a fair market value in 1995 of $220,000 and a mortgage of $247,000 (negative equity of $27,000), his liabilities totaled $18,848 and the total cash value of all his assets was $99,700 net.
As of September 21, 2009 the plaintiff had gross income of $144.00 and net weekly wages of $107.00. She receives gross Social Security income of $252.00 a week and net Social Security income of $230.00. Her gross annuity pays her $41.00 per week and her net weekly annuity payment is $37.00 a week. Mrs. Tannenbaum's total net weekly income is $374.00 and her total weekly expenses are $701.00 (a shortfall of $327.00), she reported no liabilities on her financial affidavit, reported that her condominium had equity of $122,000, she had $2,800.00 in a People's Checking Account, a TIAA-CREF account valued at $6,544, a River Source retirement vehicle with $9,467 and other deferred compensation assets valued at $18,222. The total cash value of all the plaintiff's assets as a September 2009 was $162,977.
The defendant's Financial Affidavit filed on September 21, 2009 shows gross Social Security income of $558.00 per week and net Social Security income of $525.00 per week. His weekly expenses totaled $1,312.50 (for a weekly shortfall of $787.50 ± liability payment of $103.00 = $890.50). He reported liabilities of $31,991 with a weekly payment of $103. The defendant owns a 2005 Honda CRV with the value of $11,500.00, two Citizens Bank joint accounts with a value of $13,200. The defendant's assets totaled $122,200. The defendant's 2008 tax return was introduced into evidence as Exhibit 1 and showed that his 2008 gross income was $17,160.
Analysis
The Connecticut Supreme Court addressed the issue of post-judgment Motion to Modify Alimony in Simms v. Simms, 283 Conn. 494, 927 A.2d 894 (2007). The operative facts in Simms are similar to the case before the Court. In Simms the defendant filed several post-judgment motions to modify alimony alleging a substantial change in his financial circumstances due to his retirement at age 67. In Simms the trial court reduced alimony from $78,000 to $1.00 per year and the Supreme Court found error in the trial court's failure to consider the value of all assets and the condition of the plaintiff's health and financial circumstances.
In the case before the Court neither the plaintiff or defendant are in good health. The Court observed the ability of both litigants and their respective physical and mental capacities during the trial. The Court considered all assets of the parties and their respective discrepancies between their income and expenses.
The plaintiff argues that the defendant's current wife should be required to support him and pay in excess of 50% of their combined living expenses. The defendant argues that plaintiff's long-term live-in companion should be contributing towards their shared household expenses. In essence, the plaintiff claims that her live-in companion of 20+ years should not have the same obligation as the defendant's second wife.
The Court finds the defendant's retirement was appropriate in light of his age and health.
The defendant cites McGuiness v. McGuiness, 185 Conn. 7 (1981) and Unkelbach v. McNary, 244 Conn. 350 (1988) for the proposition that the defendant's second wife's income should be considered by the court as regular and consistent gifts to the defendant. An examination of defendant's Financial Affidavit shows net income of $525.00 and expenses (computed as 1/2 of shared living expenses of $1,312.50, including $250 per week alimony) clearly showing a contribution of $788 per week by the second wife. The Court has considered this fact in making orders in this matter.
The Court finds that the defendant's retirement at age 81 is a substantial change of circumstances warranting a modification of alimony.
1. The defendant's alimony is modified to $76 per week retroactive to August 20, 2009. Alimony shall remain at $76 until such time as the plaintiff discontinues working. When the plaintiff no longer works alimony shall increase to $130 per week. Plaintiff shall notify the defendant in writing when she stops working. Alimony shall increase to $130.00 per week the week following notice.
2. The defendant's obligation to maintain a life insurance policy in the amount of $100,000 pursuant to paragraph 9 of the Separation Agreement is terminated. The Court finds the defendant at age 81 cannot afford the premiums on the policy given his advanced age. The defendant has paid alimony for approximately 24 years, is now retired, and after the payment of alimony as ordered by the Court above is left with $449-$395 per week for his own support. The annual premiums for the $100,000 life insurance policy are currently $10,011.04 per year and equal approximately 50% of his social security income.