Opinion
HHDFA020729285S
06-15-2017
Lucille Nappo v. William S. Nappo
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT (#253.00) as amended by AMENDED MOTION FOR CONTEMPT (#285.00), PLAINTIFF'S MOTION FOR CONTEMPT (#267.00), DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTIONS FOR CONTEMPT (#270.00), PLAINTIFF'S MOTION FOR MODIFICATION (#254.00) as amended by AMENDED MOTION FOR MODIFICATION (#286.00), DEFENDANT'S MOTION FOR ATTORNEYS FEES (268.00), PLAINTIFF'S' MOTION FOR ATTORNEYS FEES (272.00)
Michael A. Albis, J.
BACKGROUND
The above motions were the subject of a hearing which commenced on February 8, 2016. The first day of the hearing was followed by an extended delay before the hearing resumed and was concluded more than a year later on March 9 and 10, 2017. The delay was due in part to an issue which arose during the afternoon of the first day of the hearing, concerning the proper identification and interpretation of the currently effective alimony order. What would normally be a straightforward question was complicated by the long and contentious history of this matter, the numerous alimony orders and modifications in the case, and changes in the legal representation of the parties over the years. In addition to the legal issue, delay in the resumption of the hearing was caused by scheduling difficulties attributable in part to the fact that both parties reside out of state for all or a portion of the year.
The issue of the applicable alimony order was resolved by the attorneys' review of the file and the parties' agreement that the letter written by defendant's counsel dated February 25, 2016, and entered as Plaintiff's Exhibit 11 accurately clarifies the operative alimony order and the amounts and due dates of payments thereunder. That clarification narrowed the issues involved in the plaintiff's contempt motions and provided the proper point of reference with regard to her motion for modification of alimony.
The clarification of the applicable order is described more specifically in the court's later discussion of the plaintiff's motion for modification.
The parties first presented evidence with regard to the plaintiff's contempt motions, most of such evidence being presented on the first day of the hearing. The balance of the evidence on the contempt motions, and all of the evidence on the plaintiff's motion for modification, were presented on the second and third hearing dates. However, the court indicated at the beginning of the hearing, with the agreement of the parties, that regardless of the order of presentation the proceeding was to be considered as one hearing, and that any evidence presented as to a particular motion would be considered by the court, to the extent relevant, to all other motions.
The court's findings, discussion, and orders as to each motion follow.
PLAINTIFF'S MOTION FOR CONTEMPT (#253.00) as amended by AMENDED MOTION FOR CONTEMPT (#285.00) FINDINGS AND DISCUSSION
The above motion alleges several grounds on which the plaintiff seeks a finding of contempt on the part of the defendant. The plaintiff indicated at the beginning of the hearing that she was not pursuing some of the alleged grounds. Furthermore, as the result of the clarification of the applicable alimony order, the plaintiff stated after the first day of the hearing that she was no longer pursuing certain claims as to the timeliness and amounts of alimony payments, while reserving her claim that some alimony payments had been made late and that certain bank wire charges improperly reduced the payments she received.
Between the first and second days of the hearing, the plaintiff filed an amended motion adding the further claim that the defendant was in contempt of a court order that he provide her with a copy of his passport. The parties agreed that this additional claim would be considered as part of the hearing.
In its discussion and orders the court will address only those claims which were pursued by the plaintiff, the other allegations of contempt being deemed withdrawn.
Alimony Payments
As to the plaintiff's claim that the defendant failed to make all alimony payments in a timely manner under the terms of the applicable order, the court finds that some payments were made late but that the defendant generally made the payments within a relatively short time after they were due. As to this ground, the court finds that the plaintiff has not proven by clear and convincing evidence that the defendant willfully violated the court order, and it does not find the defendant in contempt. No remedial orders are entered with respect to this claim.
With respect to the plaintiff's claim that her alimony payments were improperly reduced by bank wire charges, the court finds that the defendant made 25 monthly payments during the period between November 2013 and February 2016 by wire transfer. Each of those payments by the defendant via wire transfer was reduced by a wire transfer fee charged by the defendant's sending bank and by a further fee imposed by the plaintiff's receiving bank. As a result of these charges, the amount actually credited to the plaintiff's bank account for each of the months in question was less than the monthly alimony payment of $609.15 due under the applicable order.
The payment of the alimony by wire transfer was not a requirement of the judgment, but rather was agreed to by the parties informally. Nevertheless, the order required the defendant to pay $609.15 to the plaintiff. Even though the parties may have agreed to the wire transfer method, it was incumbent upon the defendant to pay his bank's wire transfer fee rather than have it deducted from the amount due to the plaintiff. The court finds that during the relevant period a total of $391.50 in wire transfer fees charged by the defendant's bank should have been paid by the defendant and not passed on to the plaintiff. However, the court concludes that the defendant is not responsible for the fees charged by the plaintiff's chosen banking institution to receive the funds which she agreed to have paid to her in that manner.
As to this ground, the court finds that the plaintiff has not proven by clear and convincing evidence that the defendant willfully violated the court order. However, the court finds that there was a violation of the order insofar as the defendant did not pay the full amount of alimony due from him, and the court enters the remedial orders below to make the plaintiff whole and prevent the defendant's transfer charges from being passed on to her in the future.
Bond in the Amount of $375,000
The dissolution judgment dated May 6, 2004, awarded to the plaintiff one-half of the proceeds of a certain bond which the defendant (through one of his business entities) had posted in connection with a former business. The bond funds had not yet been recovered by the defendant or paid to the plaintiff on November 16, 2009, when the court ordered the defendant to provide the plaintiff with a written report every six months thereafter on the status of the bond and his efforts to comply with the order to share the proceeds of it with her. The plaintiff alleges that the defendant is in contempt of the judgment in that he has failed to pay the plaintiff half of the bond proceeds, and that he is in contempt of the November 16, 2009, order that requires him to keep the plaintiff apprised of his efforts to obtain the bond funds.
The case heading of both the memorandum of decision and Judgment file include a date of May 5, 2004, but the memorandum of decision was signed by the court on May 6, 2004, which is noted in the court file as the date of judgment.
As to the first of those claims, the court finds that the defendant has not yet obtained the bond funds from the bonding company due to certain legal impediments that have arisen. The cash collateral for the bond in question is held by International Fidelity Insurance Company (" IFIC"). IFIC was not required to release the funds which were posted to secure the issuance of the bond until the expiration of the statute of limitations on the liabilities which the bond was intended to protect against, a period which apparently expired on or about April 16, 2016. Since the passage of that date, the release of the funds has been further delayed due to a technical error in the statement, in a related bankruptcy proceeding, of the legal name of the entity controlled by the defendant which posted the collateral funds with the bonding company and to which the refund of the funds is payable. As to this claim of contempt, the court finds that the plaintiff has not proven by clear and convincing evidence that the defendant has willfully violated the order to pay half of the proceeds of the bond to her. However, the order has not been complied with, and the court enters remedial orders intended to secure such compliance.
As to the second claim, the court finds that the plaintiff has proven the following elements of contempt by clear and convincing evidence. The defendant had notice of the court's order of November 16, 2009, requiring him to provide the plaintiff with a written report every six months on the status of the bond and his efforts to comply with the order to share the proceeds of it with her. The order is clear and unambiguous. The defendant failed to comply with that order in that he did not provide the required information to the plaintiff in the manner and at the times ordered. His noncompliance was willful. The court therefore finds the defendant in contempt of the order dated November 16, 2009. The award to the plaintiff of attorneys fees and travel expenses as hereinafter set forth is attributable, in part, to this finding of contempt.
Order to Provide Tax Returns and Similar Documents.
Pursuant to the judgment of dissolution dated May 6, 2004, the defendant was ordered to provide to the plaintiff copies of his annual income tax returns, 1099 forms, and K-1 forms for himself and certain entities in which he holds an interest, by April 15th of each calendar year. The plaintiff alleges that the defendant has violated this order. As to this claim, the court finds that the plaintiff has proven the following elements of contempt by clear and convincing evidence. The defendant had notice of the court's order requiring him to provide the documents described therein. The order is clear and unambiguous. The defendant failed to comply with that order in that he did not provide copies of all of the documents required by the dates ordered for the 2013 and 2014 tax years His noncompliance was willful. The court therefore finds the defendant in contempt of said order. The award to the plaintiff of attorneys fees and travel expenses as hereinafter set forth is attributable, in part, to this finding of contempt.
American Express Credit Card
As to the plaintiff's claim that the defendant failed to disclose on his financial affidavits an American Express credit card held by him, the court makes no finding of contempt and enters no remedial orders.
Copy of Passport
On December 9, 2015, the court ordered the defendant to provide the plaintiff with various documents by January 5, 2016, including a copy of his passport. On or about January 9, 2016, the defendant submitted various documents required by the order, but as to the order for a copy of his passport he responded in writing, " Do not have." Notwithstanding his claim that he did not have a copy of his passport, the defendant provided such a copy to the plaintiff on March 8, 2017, the day before the resumption of the present hearing.
As to this claim, the court finds that the plaintiff has proven the following elements of contempt by clear and convincing evidence. The defendant had notice of the court's order of December 9, 2015, requiring him to provide a copy of his passport within the time specified. The order is clear and unambiguous. The defendant failed to comply with that order within the time specified or within a reasonable time thereafter. His noncompliance was willful. The court therefore finds the defendant in contempt of the order dated December 9, 2015. The award to the plaintiff of attorneys fees and travel expenses as hereinafter set forth is attributable, in part, to this finding of contempt.
ORDERS
1. The defendant shall pay to the plaintiff within thirty (30) days the sum of $391.50, in reimbursement of the defendant's wire transfer charges which reduced the amount of alimony the plaintiff received.
2. From the date of these orders forward, unless and until the parties agree otherwise in advance in writing, all alimony payments shall be made by direct deposit from a bank account chosen and controlled by the defendant to a bank account chosen and controlled by the plaintiff. Each party shall be responsible for the payment of any transaction fees imposed by such party's own bank in connection with the alimony payments. Each party shall promptly provide the other, in writing, with any bank account information necessary to effectuate this order.
3. The defendant shall hereafter provide the plaintiff's attorney (or, upon her written request, the plaintiff herself in lieu of her attorney) with a monthly written statement of his efforts to collect the cash collateral held by International Fidelity Insurance Company (" IFIC") or its affiliate or representative for the bond which the defendant is obligated to share with the plaintiff under the terms of the judgment. Such written statement shall be provided by the defendant (or, at his direction, by his attorney) on or before the last day of each month beginning with the first such report due July 31, 2017. The first such report shall include a narrative statement describing such efforts, and shall include copies of any and all written communications sent or received by the defendant (excluding any communication which is subject to attorney-client privilege) relating to his efforts to secure the bond proceeds, during the period between the conclusion of the hearing on March 10, 2017, and the date of the report. Each subsequent report shall include the same narrative description and enclosures for the period since the previous report. The defendant shall continue to make such monthly reports until he has paid the plaintiff one-half of the bond proceeds as required by the judgment of dissolution. If for any reason the defendant has not paid the plaintiff in full for her half of the bond proceeds as ordered by the judgment on or before October 31, 2017, then the unpaid portion due to the plaintiff shall accrue interest at the rate of five (5%) per cent per annum commencing on November 1, 2017, and continuing until the unpaid portion plus accrued interest has been paid in full, with any partial payments after November 1, 2017, to be applied first to interest and then to principal.
4. In addition to the reports required under Order #3, the defendant shall within thirty days of this decision provide the plaintiff's attorney with signed authorizations sufficient to allow the plaintiff and her attorney to communicate with and obtain information from to time to time from IFIC, its affiliates and representatives regarding the status of the bond referred to in Order #3 and the remaining actions required to obtain the release of the cash collateral which secures it.
5. With respect to the findings of contempt set forth above, the defendant shall pay to the plaintiff within thirty days the sum of $2,000 in attorney's fees plus $1,000 toward the plaintiff's travel expenses to attend the hearing.
PLAINTIFF'S MOTION FOR CONTEMPT (#267.00) FINDINGS AND DISCUSSION
This motion alleges the defendant to be in contempt of the court's order dated January 15, 2016, that he provide a true and accurate copy of his credit report to the plaintiff by 5:00 p.m. on January 23, 2016. The court heard evidence on this motion on February 8, 2016, including testimony from the defendant about the difficulties he encountered in obtaining the required credit report. On February 8, 2016, the court issued remedial orders to effectuate the intent of the order dated January 15, 2016, so that the plaintiff would receive a copy of the defendant's credit report. The required credit report was provided to the plaintiff on or about February 25, 2016.
The defendant did not comply with the terms of the January 15, 2016, order. However, it has not been proven by clear and convincing evidence that the violation was willful, and the court does not find him to be in contempt of that order. No further remedial orders on this issue are deemed necessary at this time.
DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTIONS FOR CONTEMPT (#270.00) FINDINGS AND DISCUSSION
The defendant's objection pertains to the plaintiff's two motions for contempt which are discussed and decided above. The findings and discussion set forth above as to each of those two motions is incorporated herein by reference.
ORDER
1. The defendant's Objection to Plaintiff's Motions for Contempt is overruled.
2. The defendant's requests for attorneys fees to defend said motions and for other payment and relief are hereby denied.
PLAINTIFF'S MOTION FOR MODIFICATION (#254.00) as amended by AMENDED MOTION FOR MODIFICATION (#286.00) FINDINGS AND DISCUSSION
The plaintiff seeks an increase in the order of alimony payable to her. Consideration of the motion first requires clarification of the current applicable order and of the appropriate reference date for determining whether there has been a substantial change in circumstances to warrant a modification.
As previously noted, the history of the case is such that the applicable order is not apparent without careful review. Fortunately, the parties have conducted such a review and have reached consensus on the issue. At the beginning of the second day of the hearing the parties stipulated to the accuracy of the summary of the proceedings and identification of the currently operable alimony order which are set forth in the correspondence by defendant's attorney dated February 25, 2016, which was admitted into evidence by stipulation as Plaintiff's Exhibit 11.
As explained in more detail in that correspondence, the first alimony order was set forth in the judgment entered by the court (Gruendel, J.) on May 6, 2004, after the contested trial of the action for dissolution of the marriage of the parties. The alimony order provides in pertinent part as follows:
IT IS SO ORDERED, that the defendant shall pay the wife as alimony half of his monthly benefit from his Mobil pension immediately and so much of his social security benefit as will equalize the parties' income, taking into account the $149.00 per week that the plaintiff/wife receives in social security.
Thereafter, the alimony order was modified by agreement of the parties on January 18, 2006. At that time the defendant became required to pay alimony to the plaintiff at the rate of $170 per week, payable in biweekly payments of $340.
The alimony order was modified again on February 20, 2007. On that date the court (Epstein, J.) found after a hearing that circumstances had changed substantially since January 18, 2006. On February 20, 2007, the court modified alimony by eliminating the order for the $170 weekly payment and effectively reinstating the original alimony order of May 6, 2004.
As the language of the judgment quoted above indicates, the establishment of the alimony payment due from the defendant requires recalculation from time to time as changes occur in the parties' respective monthly Social Security incomes. Although a later order was entered on January 13, 2012, it did not change the operable alimony order but rather required the parties to attend a status conference to discuss the further payments due under the May 6, 2004 order. The status conference was held on February 9, 2012, and the parties reached an agreement about the proper computation of the alimony due under the May 6, 2004, order as reinstated on February 20, 2007. Under that agreement, the defendant began to pay monthly alimony in the amount of $609.15.
Despite apparent changes in their respective social security incomes since then, it does not appear that the parties have reached any new agreements regarding the calculation of the appropriate amount under the May 5, 2004, order's formula.
In summary, the alimony amount currently in effect is determined by the method spelled out in the original judgment dated May 6, 2004. However, for purposes of determining whether a substantial change in circumstances has occurred, the operative date is February 20, 2007, being the date of the order which modified alimony to reinstate the method set forth in the judgment.
Substantial Change in Circumstances
For purposes of this decision, the financial affidavit filed by each party at the time of the entry of the February 20, 2007 orders (and bearing that date) is sometimes referred to as the party's " 2007 Affidavit." The financial affidavit filed by each party at the time of the resumption of the present hearing on March 9, 2017 (also bearing that date) is sometimes referred to as the party's " 2017 Affidavit."
The plaintiff argues that the evidence shows that at the time of the 2007 order the defendant had assets that he failed to disclose on his 2007 Affidavit. More specifically, the plaintiff claims that she is now aware that the defendant is, in effect, the equitable owner of entities titled in the names of his daughter and/or his current spouse, and that she was not aware of those entities in 2007. The plaintiff asks the court to conclude that her acquisition of this knowledge constitutes a substantial change in circumstances since the 2007 order was entered.
As characterized by the defendant, the plaintiff requests the court to find that the defendant equitably owned the entities in question in 2007 and that he still does. Even if the court were to so find, the defendant's position is that the plaintiff's argument concedes that the defendant's financial condition is the same now as it was in 2007, precluding the necessary finding of a substantial change in circumstances.
The defendant argues, with some merit, that the plaintiff seeks to prevail on a motion for modification based on evidence and arguments that are better suited to a motion to open judgment on grounds of fraud, a course of action which plaintiff previously initiated but did not pursue to conclusion. In response, the plaintiff urges the court to exercise its equitable powers to correct an order that was based on the defendant's alleged misrepresentations, regardless of the " title" of the pending motion.
In modifying an order of alimony, the court may act equitably but it is not free to ignore the statutory requirement of " a showing of a substantial change in the circumstances of either party." General Statutes § 46b-86(a). As a threshold matter the court must consider the evidence to determine whether the required showing of a substantial change in circumstances has been made.
Upon such consideration, the court finds by a preponderance of the evidence that the defendant's circumstances have substantially changed since the entry of the February 20, 2007, order, in two ways. First, since the 2007 alimony order the defendant has remarried to a new spouse who now provides the bulk of his financial support.
The actual date of the defendant's marriage to his current wife, Karen Nappo, was the subject of internal inconsistency in his testimony. Although he consistently stated that October was the month in which the marriage occurred, in the course of a single morning of testimony he gave three different possible years. He first testified that it had occurred in 2006 or 2007, and he later testified that it had happened in 2008. His current wife, on the other hand, testified in a deposition that the marriage had occurred in 2007. It is not necessary for purposes of the present motion for the court to determine the precise date of the defendant's remarriage, but based upon the totality of the evidence the court finds that the marriage occurred after February 20, 2007. More importantly, regardless of the date of their marriage the court finds that it was after the entry of the 2007 order that the defendant's new wife began providing him with the regular financial support described in more detail below. The defendant's 2007 Affidavit shows no financial support from Karen Nappo, whether in the form of gifts, loans, or expenses paid by her.
Plaintiff's Exhibit 25, page 71.
The second element of the defendant's substantial change in circumstances is the significant increase in his net worth between 2007 and the time of the hearing. His 2007 Affidavit lists assets valued at only $2,840 in the aggregate, and liabilities totaling $5,371,775. In contrast, the total value of his assets as reported on his 2017 Affidavit is $402,955 while his liabilities have decreased to $2,393,818. Therefore, based on his financial affidavits, the defendant's assets have increased in value by over $400,000 and his liabilities have decreased by almost $3 million since February 20, 2007. A change in the value of a party's assets may provide the basis for a determination that a substantial change has occurred, even though the increase in value may not be considered income to the party. Ceddia v. Ceddia, 164 Conn.App. 266, 137 A.3d 830 (2016); Gay v. Gay, 266 Conn. 641, 835 A.2d 1 (2003).
For these reasons the court finds and concludes that there has been a substantial change in the circumstances of the defendant since February 20, 2007.
Modification of Alimony
To decide the motion for modification of alimony the court must make findings as to the parties' respective current net incomes, taking into consideration their current financial affidavits and the other evidence presented at the hearing. In considering the evidence, the court finds the defendant to be significantly lacking in credibility. He is able to recall facts and events in detail when they are helpful to his case, but he often claims memory lapses in areas of questioning likely to be detrimental to him. His answers to other questions are prone to shift depending on the context.
An example of the latter is provided by the varied answers he gave to the question of the date of his marriage to Karen Nappo, as referenced above. The changing answers came in the course of questioning about the date of the defendant's trip to Greece. The defendant was asked about the authenticity of a copy of the passport he had provided the plaintiff which covered the period from October 2006 to October 2016, showing no foreign travel during that time. The defendant's testimony evolved over the course of the morning until he had placed the date of the trip as before October 2006 and the date of his marriage as two full years later, in October 2008. This stands in contrast to the testimony he conceded having given in a 2013 deposition, when he stated that he had gone to Greece with his wife in 2007 " incidental" to their wedding.
It may not be unusual for a witness to recall gradually the details of a long-ago trip while being questioned about it. But it is not credible that a man with as sharp a memory as the defendant for some details could only narrow down the date of a major life event like his wedding to a two-year window, before finally deciding on a time frame that contradicted his prior deposition testimony while supporting his claim at trial that he had done no foreign travel during the period covered by a copy of a passport whose authenticity was at issue.
The matter of the defendant's credibility is especially critical to the issue of the nature of the financial support which his current wife provides him. The defendant lists on his 2017 Affidavit a loan owed to Karen Nappo in the amount of approximately $137,000. The defendant has been involved in many legal matters over the years, including this dissolution action, and has incurred significant legal fees. According to his 2017 Affidavit and testimony, the reported loan represents the aggregate of sums of money which his wife has lent to him from time to time over the years, which he used to pay legal fees.
In addition to those sums, the defendant's testimony and bank records show that he makes frequent deposits into his own bank account of funds given to him by his wife. The defendant claims that these advances also represent loans. Based on the defendant's testimony, the court finds that the amounts of these deposits as demonstrated over the period of the recent bank account records in evidence are typical of the continuing financial support provided the defendant by his wife.
Plaintiff's Exhibit 24.
The court must determine whether the advances of funds which the defendant claims are loans from his wife should instead be considered income to him.
Whether money should be characterized as income or a loan is a question of fact for the trial court. See Zahringer v. Zahringer, 262 Conn. 360, 369-71, 815 A.2d 75 (2003); Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). This is often a matter that turns on the credibility of the parties and whether any documentation of the loans was provided. Compare Zahringer v. Zahringer, supra, 124 Conn.App. at 678-79, 6 A.3d 141 (court, after determining that parties, including father's accountant, were credible and that documentation had been created, held that payments were loans), with Desai v. Desai, 119 Conn.App. 224, 236-37, 987 A.2d 362 (2010) (court, after determining that parties were not credible and that documentation was lacking, held that payments were not loans).Keller v. Keller, 167 Conn.App. 138, 152, 142 A.3d 1197 (2016).
The court does not find credible the testimony of the defendant that the sums regularly given to him by his current wife are or have been loans. No promissory note or other documentary evidence was presented to support the claim that the advances were loans. There was no evidence of the terms of repayment. There was no evidence that any repayment has ever been made or tendered during the entire course of the defendant's current marriage. The court finds that all of the funds advanced to the defendant by his current wife have been gifts and not loans, and that such gifts continue on a regular basis. As such, they are properly included in his income for the purpose of determining alimony.
In addition to the gifts she makes to the defendant, the evidence further shows that the defendant's wife pays for the bulk of the couple's expenses. The only regular housing expenses that the defendant pays from his own income are the monthly common expenses and some utility costs for each of the two condominium units in which the couple resides, one in Connecticut and one in South Carolina. His wife pays the mortgage, taxes and other expenses for both. The defendant and his wife live a lifestyle, including country club memberships, dining out, and maintaining and traveling between two residences, beyond that which the defendant could afford on the income he reports on his financial affidavit. In fact, the defendant's 2017 Affidavit does not even show enough income to cover the relatively modest expenditures he reports on it.
The court concludes based on all the evidence that the defendant has income in addition to that reported on his financial affidavit, in two forms. First, there are the advances of cash which his wife regularly gives directly to him. Some of those advances are included in the purported loan of approximately $137,000 which the defendant reports on his financial affidavit, but which the court finds to be a series of recurring gifts. Others are not reported on his financial affidavit at all, such as the recurring deposits of funds from his wife into his personal bank account, which the court also finds to be gifts and not loans. Second, there are the regular living expenses and luxury expenditures from which the defendant benefits but which are paid by his wife directly to third parties such as mortgage holders, home insurers, and their country club.
The court further finds that at least some of the funds which the defendant's wife has given to him and spent for his benefit come from the income she receives through her position in the entity that owns and rents office space within the real property at 1100 New Britain Avenue, West Hartford, Connecticut, which property is referred to in the motion for modification. The advances of funds from and expenditures by the defendant's wife are properly taken into account in determining his income.
The court finds that the defendant's net income includes the following:
1. The net weekly income of $586 which he reports on his financial affidavit.
2. The annual amount of $13,700, representing the average yearly amount which the defendant has received from his wife for ongoing legal fees and which he reported as loans on his 2017 Affidavit but which are found to be gifts. There being no income tax paid on those gifts, they represent additional net weekly income of $263.
3. The average weekly amount of the gifts of cash provided to the defendant by his wife for deposit into his bank account which, based on the evidence, the court finds to be $90. There being no income tax paid on those gifts, they translate to additional net weekly income of $90.
4. The expenditures of the defendant which he reports on his 2017 Affidavit that exceed the net income reported thereon. The defendant's weekly expenses and liability payments exceed his net weekly income by approximately $344. The court finds based on the evidence that the deficit is covered by the defendant's wife, either by the funds she gives him as found above or by her direct payments to third parties. Even if the defendant is given credit for applying all of the funds his wife gives him to the reported expenditures, there remain excess weekly expenditures of $254 for which the only payment source in evidence is the defendant's wife. The court finds these payments to be additional gifts that are includible in the defendant's income and upon which he pays no taxes. Therefore, his net weekly income is found to include the additional sum of $254.
Accordingly, the court finds the current net weekly income of the defendant to be a total of $1,193, consisting of the four elements described in the immediately preceding four numbered paragraphs.
In addition, and notwithstanding the deficit between his income and expenditures which the defendant reports on his 2017 Affidavit, the court finds that the needs of the defendant are less than they were at the time of the February 20, 2007 order, by reason of the necessities and amenities which are provided to him by his current wife above and beyond the funds she gives to him and uses to pay his expenses. Foremost among these is her provision of housing to him in two different locations for no cost other than the common fees and utilities he pays.
The court finds the current net weekly income of the plaintiff, including the alimony paid by the defendant under the current order, to be $703, or $567 excluding said alimony. That figure consists of the plaintiff's net weekly income as reported on her 2017 Affidavit plus the additional amount of $186.05 per week which she had reported on an earlier financial affidavit dated January 15, 2016 as recurring financial support from her son. The evidence on the first day of the hearing, and as set forth in the 2016 financial affidavit, was that the plaintiff's son Jeffrey was regularly giving her $800 per month to help pay expenses. Despite the testimony of the plaintiff that her son had not given her those funds in the month or two before the hearing's resumption after a lengthy delay, she also testified that he was still trying to help her. Given the totality of the evidence the court concludes that it is appropriate to include the regular $800 monthly gifts in the plaintiff's income despite the recent brief hiatus. Gifts given to a payee of a support order are includible in the recipient's income, just as they would be included in the payor's income if given to the payor. Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003).
Defendant's Exhibit 1.
Accordingly, the court finds the plaintiff's current net weekly income, excluding alimony paid by the defendant, to be $567. The court further finds that the plaintiff's needs and expenses reasonably require a greater amount of income than that, and that the alimony ordered herein is necessary to meet her needs.
The court has considered the above findings of the parties' income and needs and all of the other factors referenced in General Statutes § 46b-82, as applicable, in entering the modified order of alimony herein.
ORDER
As set forth herein, the movant has clearly and definitely established under Gen. Stat. § 46b-86 (a) the occurrence of a substantial change of circumstances since the most recent court order such that it would be unjust or inequitable to hold either party to that order. Accordingly, the motion is granted. The court, having considered all relevant factors, including the criteria enumerated in General Statutes § 46b-82, modifies alimony as follows:
1. The defendant shall pay alimony to the plaintiff in the monthly amount of $1,300, payable on or before the fifteenth day of each month in the manner specified in the hereinabove orders relating to Motion #253.
2. The said modification of alimony shall be effective as of July 1, 2015, being the first month following the date of service of the motion. As a result of said retroactivity the defendant is found to owe an arrearage of $16,580 (24 months @ $690.85), which includes the month of June 2017, but is above and beyond the sums ordered to be paid by him in the orders relating to Motion #253. Said arrearage shall be payable in 16 consecutive monthly installments of $1,000 each followed immediately by a final monthly installment of $580, such installments to be due on or before the fifteenth day of each month commencing July 15, 2017. Said arrearage payments shall be made in the manner specified in the hereinabove orders relating to Motion #253.
Although the plaintiff amended her motion for modification while it was pending, the court determines that under the circumstances of this case it may make its order retroactive as far back as the date of service of the original motion for modification, which sought similar relief on substantially the same grounds. See Lucas v. Lucas, 88 Conn.App. 246, 869 A.2d 239 (2005).
DEFENDANT'S MOTION FOR ATTORNEYS FEES (268.00)
The court finds no adequate basis for the award of attorneys fees sought by the defendant. Accordingly, the defendant's motion for an award of attorneys fees is denied.
PLAINTIFF'S MOTION FOR ATTORNEYS FEES (272.00)
The court finds no adequate basis for the award of attorneys fees sought by the plaintiff, other than the fees previously awarded herein with respect to the Motion for Contempt (#253.00). Accordingly, the plaintiff's motion for an award of any additional attorneys fees is denied.
SO ORDERED.