Opinion
No. FA 99 042 84 37 S
March 30, 2006
MEMORANDUM OF DECISION RE MOTION TO MODIFY (MOTION No. 164 FILED FEBRUARY 23, 2006)
The plaintiff, appearing pro se, is seeking to modify a postjudgment court order entered on September 19, 2002. In her motion the plaintiff alleged she is unemployed.
Connecticut General Statutes § 46b-86 provides: "Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified . . . upon a showing of a substantial change in the circumstances of either party . . ." This provision is limited to alimony and support. A court has no continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980).
In post-judgment dissolution matters, Connecticut General Statutes § 46b-86 provides: "When 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 conforms the order to the distinct and definite changes in the circumstances of the parties . . . The inquiry, then, is limited to a comparison between the current conditions and the last court order." Crowley v. Crowley, 46 Conn.App. 87, 92 (1997).
"The court's power to modify is created by statute, and it must make its determination on the basis of the statutory standards . . . The trial court is limited to reviewing the current situation of the parties in light of the statutory criteria set forth in § 46b-82." Crowley v. Crowley, 46 Conn.App. at 92. "The party seeking modification bears the burden of showing the existence of a substantial change in circumstances." (Internal quotation marks omitted.) Gorton v. Gorton, 80 Conn.App. 52, 54, 832 A.2d 675 (2003). Moreover, the party seeking the modification "must clearly and definitely establish [a] substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper." Gleason v. Gleason 16 Conn.App. 134, 136, 546 A.2d 966 (1988). The inquiry, then, is limited to a comparison between the current conditions and the last court order." Crowley v. Crowley, 46 Conn.App. 87, 92 (1997); Gervais v. Gervais, 91 Conn.App. 840, 854 (2005).
In her motion, the plaintiff has alleged:
When we returned to court on Oct. 2002 Attorney Dolan had alimony modified on the assumption that I would be starting a job. I was only capable of holding that job from 10/7/02 thru Dec 9th of 2002. Documentation at the time of trial confirms my employment standing since my traumatic brain injury.
A trial court has the authority to modify its alimony order "unless and to the extent that the decree precludes modification . . ." Borkowski v. Borkowski, 228 Conn. 729, 737 (1994). The relevant order in the present case, contained as part of a long series of orders, is as follows:
3. Motion to Modify Alimony #142
The court finds that there is a substantial change of circumstances since the judgment and grants Defendant's motion for modification of alimony, Plaintiff's alimony is modified to the amount of $175.00 per week effective immediately payable by way of an immediate wage withholding order.
This order does not contain any limitation. Thus, it is potentially modifiable. The next question is whether there has been a substantial change of circumstances.
Although the plaintiff offered speculation concerning the intent of both the original trial judge and the jurist at the time of the 2002 postjudgment motion, neither litigant requested articulation of the court order. This court cannot add any presumptions, conclusions, or findings, to the succinct court order.
Comparing the financial affidavits submitted at the time of the 2002 hearing with those presented at the instant hearing, the court notes that in both presentations, the plaintiff relies solely on alimony for her reported income. This cannot constitute a change in circumstances, nor can the fact that the assets for both litigants have increased since the date of the last hearing.
The plaintiff testified that she could not comply with the defendant's request for financial documentation because her accountant refused to release that information. She further testified that she did not believe that she should comply with her ex-husband's subpoena requests.
Having filed this motion, the plaintiff's finances are critical. Although the plaintiff testified that she was unable to work, the few documents she did provide belie that fact. Her alleged inability to secure more documentation cannot lead to a presumption that the missing information would somehow support her claim that she was unable to secure employment.
The plaintiff did present her evidence that she is currently unemployed, but she was unemployed at the time of the last hearing according to her own financial affidavit. She relies upon a note from her neurosurgeon stating that this individual should not work. That note was generated prior to the 2002 postjudgment hearing. She also relies on the fact that she suffered a traumatic brain injury. That fact was known before the original trial.
Illness alone does not warrant an alimony modification. See McGuinness v. McGuinness, 185 Conn. 7, 11, 440 A.2d 804 (1981). Loss of employment does not warrant alimony modification unless the moving party also proves that her earning capacity has changed substantially. See Logan v. Logan, 13 Conn.App. 298, 299-300, 535 A.2d 1332 (1988).
The plaintiff has not established a change of circumstances. Her motion is denied.