Opinion
No. FA03 007 08 31
July 7, 2006
MEMORANDUM OF DECISION MOTION TO MODIFY ALIMONY NO. 121.5, MOTION TO MODIFY ALIMONY NO. 122
The marriage of the defendant, Douglas Martone, and the plaintiff, Suzanne Martone, was dissolved on January 20, 2004. Paragraph 6 of the parties' Separation Agreement provided that:
The husband shall pay $215 weekly alimony until his obligation to pay child support ceases at which time the alimony shall increase to $300 weekly until January 1, 2005 at which time said alimony shall decrease to $275 weekly. Said alimony is nonmodifiable as to term and shall continue until the sooner of wife's remarriage, January 20, 2018 or upon either party's death. Said alimony is modifiable as to amount pursuant to the terms of C.G.S. 46b-86.
The defendant seeks to modify his obligation to pay alimony because "the plaintiff is cohabiting" (No. 121.5) and that "the defendant no longer gets time and a half for overtime and earns less; plaintiff earns more than at the divorce." (No. 122). The first motion was served upon the plaintiff on March 15, 2006, and the second motion was served on the plaintiff on April 26, 2006. A hearing on both motions was held on May 31, 2006.
In Gervais v. Gervais, 91 Conn.App. 840, 854-55 (2005), the Appellate Court set the framework that the trial court must use in considering motions for modification such as those filed in this case.
"Before a court can consider whether to modify alimony under the authority of C.G.S. § 46b-86, a threshold question must be resolved. With respect to a motion brought pursuant to subsection (a), the court must find a substantial change in circumstances with respect to one or both of the parties. Borkowski v. Borkowski, supra, 228 Conn. 737. 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. See id., 736; see also Shearn v. Shearn, supra, 50 Conn.App. 228; see also 1 A. Lindey L. Parley, Separation Agreements and Antenuptial Contracts (2d Ed. 1999), § 22.66 . . . With respect to subsection (b), we conclude that once the court finds (1) cohabitation and (2) a change in the financial needs of the party receiving alimony and cohabitating, the court should engage in the same analysis as with subsection (a); that is, consideration of the C.G.S. § 46b-82 factors. Relevant to this case, the difference between subsections (a) and (b) is the threshold question. Subsection (b) requires the finding of cohabitation, and a lower standard with respect to a change in circumstances. Once those findings are made, however, a uniform application of the C.G.S. § 46b-82 factors is warranted and should be applied to a request for a post-dissolution, Page 855 modification of alimony whether brought under either subsection. The use of the C.G.S. § 46b-82 criteria serves to ensure that the court has an updated picture of the parties' financial situation."
In support of his motions to modify, the defendant has established that he has been employed by General Cable as a production supervisor since 2003. He is considered by General Cable to be an exempt employee. Subsequent to the date of dissolution, in June of 2005, General Cable modified its employment policies such that exempt employees were no longer eligible for overtime pay at the rate of time and one-half but would be paid a straight hourly wage. The defendant testified the amount of overtime or extra time that he was offered by his employer had been substantially decreased. In 2003, the year preceding the decree, the defendant received almost $16,000 in overtime pay, or approximately $307 per week. For the calendar year 2006 (through May 12, 2006), the defendant was paid $3,043 in overtime wages, or an average of $160 per week. A comparison of the financial affidavits filed by the defendant in January of 2004 and May 2006 shows a decrease in the net weekly wage of approximately $190.
The defendant further established that the plaintiff has increased her income since the date of the dissolution. At the time of the dissolution, the plaintiff had a net weekly income of $622. The plaintiff's current financial affidavit discloses a net weekly income of $758.
Further, the plaintiff admitted that she has been cohabiting with James Coombs since September of 2005. The plaintiff's financial affidavit acknowledges a weekly contribution of $193 from Mr. Coombs. The plaintiff and Mr. Coombs do not have any joint bank accounts nor have they co-signed any debts. A comparison of the plaintiff's weekly expenses shows an increase of $150 per week since the date of dissolution and a substantial increase in her weekly liability expenses. The plaintiff acknowledges paying some expenses for her adult children.
The plaintiff testified that she is treated for hypertension and has some problems with her back. These conditions, however, have not interfered with her continued employment. Since the date of the dissolution, the defendant has commenced residing with Carol Hildebrand.
The court finds that the defendant has met his threshold burden for bringing the issue of modification of alimony before the court. Specifically, the court finds that the change in the defendant's employment conditions regarding the overtime pay and the availability of overtime pay constitutes a substantial change in circumstances. Further the plaintiff's net earnings have also increased almost twenty-five percent since the date of the dissolution decree. Both of these factors, jointly or solely, lead the court to find a substantial change of circumstances. Further, the court finds that the defendant has established that the plaintiff is cohabiting with another individual and that this living arrangement has had an impact on the plaintiff's finances.
The court has reviewed the terms of the original dissolution judgment, the underlying Separation Agreement, financial affidavits and the testimony of the several witnesses called to testify regarding the motions for modification. The court has evaluated this information in light of the principles enunciated in Gervais, supra, and finds the following orders are fair and equitable under the current circumstances.
The defendant's motions to modify alimony are granted. The court orders a reduction in alimony from $275 weekly to $75 weekly, effective March 16, 2006. If the defendant is entitled to a credit for overpayment, he shall be entitled to recoup the overpayment at the rate of $75 per week until he is credited in full.