Opinion
No. KNO FA 02-0124915
June 10, 2010
MEMORANDUM OF DECISION ON MOTION TO REOPEN AND MODIFY (#114) and MOTION FOR MODIFICATION OF JUDGMENT POST-JUDGMENT (#115)
On February 26, 2010, the defendant filed a Motion to Reopen and Modify Judgment (#114) seeking to reduce payments of $75 per week to the plaintiff alleging a substantial change in circumstances, including, inter alia, that the plaintiff was "cohabiting and/or is remarried." On March 8, 2010, the plaintiff also filed a motion for modification of judgment (#115) asserting that there was a material change in circumstance in that her income had declined substantially since the date of judgment and the defendant's income had increased substantially since that date. Plaintiff also alleged that she had additional household expenses which she was unable to pay. The parties appeared for a hearing on April 16, 2010 at which time both sides elected not to present evidence, but asked the court to determine the issue on the papers agreeing that the court could accept the factual representations as true. Upon review, the court ordered further briefing by the parties addressing the question whether the $75 weekly payment was "alimony," whether it was modifiable and setting forth the applicable legal standards. Briefs were received on or before May 3, 2010.
FACTS
The parties were married on November 23, 1998. There were no minor children issue of the marriage. Approximately three and one-half years later, on April 5, 2002, the plaintiff wife, through counsel, filed a separation action seeking legal separation, a fair and equitable property settlement and "such other and further relief as law and equity may provide." On October 22, 2002, plaintiff filed a motion to amend her complaint to seek dissolution as opposed to legal separation. On October 24, 2002 a separation agreement was filed and on the same date a dissolution judgment entered. The defendant signed the separation agreement, but was not present in court or represented by counsel at the time the dissolution entered. The separation agreement was attached to the judgment and incorporated by reference.
There was a disagreement between the parties as to this fact. Plaintiff claimed that the defendant was present and the defendant claimed that he was not. The plaintiff's brief represents that the defendant was present when the uncontested dissolution matter was heard before Judge Purtill. (Plaintiff's Brief at p. 2.) Indeed, plaintiff's brief states: "It must be concluded that Judge Purtill closely canvassed the defendant as to the entirety of the agreement." Id. The court has reviewed a transcript of the proceedings before Judge Purtill which clearly reflects that the defendant was not present in court on that date. Further, plaintiff contends that the defendant was represented by counsel in a simultaneously pending criminal matter which was resolved at the same time as the dissolution who also advised the defendant on the dissolution. However, no attorney filed an appearance for the defendant in the family case and the court does not extend the criminal representation to the family matter.
Pursuant to the separation agreement, the defendant agreed to quitclaim his interest in property located at 536 Raymond Hill Road, Uncasville, CT to the plaintiff and also agreed to be "responsible for all debts associated with the property including both mortgages on said property." The separation agreement further provided that "the defendant shall also contribute $75 per week to the Plaintiff's household expenses in addition to the mortgages." The agreement expressly provided that "there shall be no alimony to either party." (¶ 3 of Separation Agreement.)
The plaintiff now receives weekly payments in the nature of a contribution from one Lee Terry in the amount of $120.
DISCUSSION
At issue in this case is whether the $75 weekly payment from the defendant to the plaintiff is modifiable. The defendant argues that even though the agreement provides that there shall be no alimony to either party, the payments are actually in the nature of alimony and should be treated accordingly permitting modification upon a showing of a substantial change in circumstances. The plaintiff argues that the parties clearly intended that there be no alimony as expressly stated in the agreement and that the payments are not alimony. Plaintiff argues that if the payments are not alimony, they are not modifiable. Plaintiff implies that the payments are more in the nature of a property division as the defendant was to be responsible for all debts associated with the property, including both mortgages. In the alternative, and consistent with plaintiff's motion for modification (#115), the plaintiff argues that there has been no showing of a substantial change in circumstances which would warrant a reduction in the payment, but rather, a change in circumstances warranting an increase in the payments.
The Court finds that the $75 weekly payment is in the nature of alimony and is therefore, modifiable. Although the separation agreement states that there shall be no alimony to either party, their actions in agreeing to a weekly support payment of $75 for "household expenses" is essentially an agreement amounting to alimony. Berg v. Berg, 24 Conn.App. 509, cert. denied, 219 Conn. 908 (1991), is instructive. In Berg, the plaintiff argued that payments for household expenses were part of a property assignment and therefore, non-modifiable. The court held that "in determining whether the division of marital property is considered lump sum alimony . . . or a property assignment, . . . the difference between the two can be seen in their purposes. The purpose of property assignment is to divide equitably the ownership of the parties' property; . . . while periodic and lump sum alimony is based primarily on a continuing duty to support." Id. at 513. (Citations omitted). In Berg, the court found that "[t]he payment of household expenses relates to support rather than an equitable division of the property." Id. at 514. And as set forth in Smith v. Smith, 249 Conn. 265, 275 (1999): "the purpose of a property division . . . is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution . . . By comparison, the purpose of both lump sum and periodic alimony is to provide continuing support." (Citations omitted.) In this context, the $75 payments here were clearly in the nature of support as a "contribution to household expenses" as opposed to a property settlement. The parties' stated agreement that "there shall be no alimony to either party" cannot change the nature of the payments and make them something other than what they actually were — support payments. Moreover, when questioned by Judge Purtill as to the $75 payment at the time of the dissolution, counsel for the plaintiff stated that the $75 payment was "just open-ended at this time, Your Honor. Because of the disability of Mrs. Mahoney that was . . . the agreement." (TR 10/24/02 at page 6) (emphasis added). The court therefore finds that the payments are in fact in the nature of alimony and therefore, modifiable upon a showing of a substantial change in circumstances pursuant to C.G.S. § 46b-86(a). See Walsh v. Walsh, 190 Conn. 126 (1983) (alimony ordered for the first time post-judgment upon a motion for modification).
Defendant, who was unrepresented at the time of the dissolution as set forth above, also claims that because there was no limit or duration set regarding the $75 weekly payments, they were punitive, obtained by fraud and not enforceable. The defendant is not seeking to invalidate the entire agreement, but rather, seeks only a modification of the $75 payment. The court need not address this issue as it finds that the payments are in fact in the nature of alimony and therefore, modifiable upon a showing of a substantial change in circumstances. Periodic alimony as well as rehabilitative alimony may be modified "upon a showing of substantial change in the circumstances of either party." C.G.S. 46b-86(a). The order may be continued, set aside, altered or modified. Grosso v. Grosso, 59 Conn.App. 628, cert. denied, 254 Conn. 938 (2000) (payments may be suspended).
Once the court finds a substantial change in circumstances, it must consider the statutory criteria in General Statutes § 46b-82 in determining whether a modification is warranted. Id. Here, the court finds that the defendant has established a substantial change in circumstances such as would warrant modification. The payment of $120 per week to the plaintiff by a third party, Lee Terry, is a substantial change in circumstances warranting modification. Although plaintiff claims that she is still unable to meet her household expenses, the issue is not whether the plaintiff would continue to benefit from the $75 payments, but rather whether the substantial change in circumstances warrants modification. Plaintiff did not have the $120 contributions to her household expenses at the time of dissolution and she concedes that she now does. Plaintiff further argues that the defendant has experienced an increase in income, while she has experienced a decrease. The parties acknowledge that the file does not contain the financial affidavits submitted at the time of the dissolution. The plaintiff therefore, has failed to sustain her burden of proving that there is a substantial change in circumstances warranting an increase in payments. The defendant has been making the weekly $75 payments toward household expenses for approximately seven and a half years following a four-year marriage. The court finds that the change in circumstances alleged by the defendant, that is, the weekly contribution to the plaintiff by Lee Terry, warrants a modification and the court hereby orders that the $75 weekly payment made by the defendant to the plaintiff shall terminate effective immediately. Thus, for all the reasons set forth above, the defendant's Motion to Reopen and Modify (#114) is hereby granted and the plaintiff's Motion for Modification of Judgment Post-Judgment (#115) is hereby denied.
It is so ordered this 10th day of June 2010.