Opinion
No. FA 06 4004622
March 7, 2008
MEMORANDUM OF DECISION RE POSTJUDGMENT MOTION TO MODIFY ALIMONY
Before the court is the postjudgment Motion to Modify Alimony payments of defendant Stephen J. Nardine. The dispositive issue is whether a particular clause in the parties' dissolution agreement stating "[a]ll obligations and agreements within this Dissolution Agreement will remain in effect regardless of whether either party remarries, cohabits or is employed and will be terminable upon the death of either party" precludes modification of alimony payments.
Unless otherwise noted, the following facts are undisputed. On January 24, 2006, plaintiff Deborah Nardine and defendant Stephen J. Nardine filed the Dissolution Agreement with this court. At the time of dissolution, Deborah Nardine and Stephen J. Nardine each signed a document known as "Attachment A," which set out the terms of alimony. On April 24, 2006, the court, Spallone, J., dissolved the marriage between the parties and incorporated the Dissolution Agreement into its Judgment. Under the terms of the Dissolution Agreement, defendant Stephen J. Nardine was obligated to pay plaintiff Deborah Nardine $3,587.50 as alimony at the beginning of each month. This payment was scheduled to commence at the closing of the sale of the Nardines' home.
The defendant contends that both parties agreed to modify alimony payments during a telephone conversation on May 20, 2007. On June 1, 2007, the defendant sent the plaintiff a letter offering to pay "$1,000 a month in alimony . . . until such time that the amount of the alimony to be paid is reconsidered." The defendant contends that the plaintiff promised to supply a reciprocal letter crystallizing the revised modification agreement. The plaintiff contends that no such agreement occurred. On June 15, 2007, the plaintiff wrote a letter to the defendant stating that "[t]hough I agreed to accept partial payment now (for June 07) and the rest within the next few weeks, I am in no way agreeing to lower the amount of alimony owed." On July 27, 2007, the defendant responded to the plaintiff's letter, noting confusion and disappointment over what the defendant contends is a rejection of any revised modification agreement.
On July 3, 2007, the plaintiff filed a Motion for Contempt against the defendant for partial payment of alimony. On October 22, 2007, this court, Jones, J., held a hearing to address the plaintiff's Motion for Contempt and the defendant's Motion for Modification. This court, Jones, J., denied, without prejudice, plaintiff's Motion for Contempt since the plaintiff resides in California and claimed to have been unable to appear for the hearing despite multiple continuances granted to afford her the opportunity to make travel or other arrangements. The plaintiff may renew her Motion for Contempt conditional upon her appearance or alternate means of providing testimony for the court.
Motion to Modify Alimony
The Dissolution Agreement is the culmination of several attachments, which address various terms of the dissolution. In particular, "Attachment A" and "Attachment E" directly address the issue of modifiability and make explicit reference to "this agreement."
"Attachment A" sets out the applicable terms and conditions of alimony payments. The relevant text of "Attachment A" is excerpted below.
Alimony will be paid by defendant Stephen J. Nardine to plaintiff Deborah L. Nardine in the amount of $3,587.50 a month to begin at closing upon the sale of plaintiff's and defendant's home located at 17 Nehantic Trail, Old Saybrook, CT. 06475 (hereinafter, "real property"). Thereafter, the due date for the plaintiff to receive alimony from the defendant will be the same date of the month as the closing date.
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All obligations and agreements included within this Dissolution Agreement will remain in effect regardless of whether either party remarries, cohabits or is employed and will be terminable upon the death of either party.
"Attachment E" sets out the applicable terms and conditions of life insurance payments. The relevant text of "Attachment E" is excerpted below.
Plaintiff and defendant agree to elect social security payments when defendant reaches age 66. Their respective payments will be distributed between themselves on a 50%/50% basis, to be distributed as additional alimony.
Defendant will make a payment to plaintiff of $4,676.00 toward plaintiff's medical insurance from his 50% distribution of the net proceeds from the sale of the real property. This payment will be disbursed at the time of closing.
This agreement is non-modifiable as to its terms and amounts until both parties reach age 66, and social security payments begin, at which time, modification will be considered.
The Dissolution Agreement reached by both parties comports with dissolution agreements in general since special consideration is given to alimony payments and life insurance payments. Courts separately address alimony and life insurance obligations in a dissolution agreement. Life insurance is not per se part of an alimony agreement unless language in the dissolution expressly indicates that life insurance payments will be held as security for alimony payments. See Gorski v. Gorski, 2007 WL 1532656 (2007).
If the purported intention of the life insurance requirement is to provide security for the payment of an alimony obligation, care should be taken in the drafting of any agreement or order to insure that such purpose is clear. See 8 CTPRAC Section 33.20. In Crowley v. Crowley, 46 Conn.App. 87, 98 (1997), the appellate court found and ruled that there is no statutory authority authorizing modification for life insurance. The life insurance obligation for the benefit of the alimony recipient was found to be part of the nonmodifiable property distribution, not part of the alimony obligation, thus precluding an extension of the term of the insurance obligation beyond the full term of a modified alimony payment term. Id. As a result, "Attachment E" must be individually addressed with deference to its precise language.
"Attachment E" describes life and medical insurance. The wording of "Attachment E" suggests that the parties are agreeing to the terms in "Attachment E." For example, the wording states in part "[d]efendant Stephen J. Nardine presently has life insurance in the amount of $250,000, through his employer, Progressive Insurance Company, with Accordia Life Insurance . . . Defendant agrees to pay the premiums of this policy, or some other policy of life insurance, providing a minimum coverage of $250,000 until his death." The Court takes the liberty of restating below the terms for life insurance specified in "Attachment E."
Plaintiff and defendant agree to elect social security payments when defendant reaches age 66. Their respective payments will be distributed between themselves on a 50%/50% basis, to be distributed as additional alimony.
Defendant will make a payment to plaintiff of $4,676.00 toward plaintiff's medical insurance from his 50% distribution of the net proceeds from the sale of the real property. This payment will be disbursed at the time of closing.
This agreement is non-modifiable as to its terms and amounts until both parties reach age 66, and social security payments begin, at which time modification will be considered.
"Attachment E" provides for life insurance payments which are non-modifiable as to its terms and amounts until both parties reach the age where social security benefits begin, at which time modification can be considered. The language in "Attachment E" is clear and unambiguous and can only be construed as prohibiting modification of the life insurance payments as to its terms and amounts. Furthermore, nowhere in "Attachment E" is there any language unequivocally stating that life insurance payments would be considered as security for alimony payments. Absent sufficient language indicating life insurance will be held for security of alimony payments, Crowley requires the life insurance obligation to be held separately and distinctly from alimony payment obligations.
Dissolution agreement provisions that address life insurance payments, such as "Attachment E," are practical since Medicare provides insurance payments to people upon reaching sixty-six years of age. At this age, Deborah Nardine and Stephen J. Nardine would receive Medicare insurance, effectively relieving much of the burden for providing insurance payments. "Attachment E" ensures that the plaintiff will receive life insurance payments throughout her life and has no bearing on the defendant's additional alimony payment obligations.
"Attachment A" describes alimony and puts forth the applicable terms and conditions for the alimony payments to be made from the defendant to the plaintiff. Of note, "Attachment A" does not include any cross-references to "Attachment E" or any terms and conditions of life or medical insurance. "Attachment A" is strictly limited to alimony payments. The Court takes the liberty of restating below the terms for alimony as specified in "Attachment A."
Alimony will be paid by defendant Stephen J. Nardine to plaintiff Deborah L. Nardine in the amount of $3,587.50 a month to begin at closing upon the sale of plaintiff's and defendant's home located at 17 Nehantic Trail, Old Saybrook, CT. 06475 (hereinafter, "real property"). Thereafter, the due date for the plaintiff to receive alimony from the defendant will be the same date of the month as the closing date.
All obligations and agreements included within this Dissolution Agreement will remain in effect regardless of whether either party remarries, cohabits or is employed and will be terminable upon the death of either party.
Consequently, the disparate language and treatment of the clauses in "Attachment A" and "Attachment E" support the conclusion that "Attachment A" must be construed separately from "Attachment E." Thus, the preclusion from modification under "Attachment E" has absolutely no bearing on the modifiability of "Attachment A."
In Connecticut, the law regarding the modifiability of alimony awards has been clearly established. Connecticut General Statutes Section 46-86(a) provides that "[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by said court . . ." Accordingly, the state of Connecticut generally assumes all decrees for alimony to be modifiable by default and allows the courts to continue, set aside, alter or modify alimony orders, unless there is explicit language in the decree preventing such modification. Cummock v. Cummock, 180 Conn. 218, 222-23 (1980). In sum, there is a long-standing presumption of alteration or modification of alimony decrees unless modification is explicitly precluded in the language of the decree.
In order to determine whether the Dissolution Agreement between the parties is modifiable, this court must first determine whether the Dissolution Agreement of the parties "clearly and unambiguously" forecloses modification of the support order. Lilley v. Lilley, 6 Conn.App. 253, 255 (1986). "If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable." Bronson v. Bronson, 1 Conn.App. 337, 339 (1984). While parties are not required to use specific words, any formulation must express the intent to make the alimony award non-modifiable. Lilley, 6 Conn.App. at 256. Connecticut caselaw reflects that language indicative of a clear and unambiguous statement of nonmodifiability often, but is not required, to include use of the word "nonmodifiable." Monette v. Monette, 102 Conn.App. 1, 14 (2007).
Both parties were given notice of the legal proceedings and were afforded an opportunity to present individual interpretations of the Dissolution Agreement. Only defendant Stephen J. Nardine testified in this matter before the court. The defendant's interpretation of "Attachment A" is that alimony is guaranteed but the amount is subject to change based upon the financial situation of either party, and that modifications could occur as time went on. The plaintiff has not availed herself and, despite multiple continuances, has failed to appear before the court or provide a videotaped deposition of her interpretation of the Dissolution Agreement. Consequently, the court is left without any alternative but to defer to the defendant's intent and apply his interpretation that modification is not precluded by the Dissolution Agreement — an interpretation that comports with this Court's interpretation of Attachment "A."
The question of modification is not limited to an interpretation of the terms of the Dissolution Agreement alone, since modification can only be granted under certain circumstances, and a showing of substantial change of those circumstances. Fahy v. Fahy, 227 Conn. 505 (1993). A substantial change in the circumstances of a party requires a showing of substantial decrease in income, an involuntary substantial increase in cost of living of the payer independent from general economic conditions ( Cariseo v. Cariseo, 190 Conn. 141 (1983)), or a substantial increase in the payee's income ( Moore v. Moore, 187 Conn. 589 (1982)).
The court finds that there has been a substantial change in the parties' circumstances. The defendant has submitted financial statements indicating a decrease in income. The plaintiff has obtained employment and has a substantial increase in income. The court further finds that the defendant's income has a modest decrease and that he has incurred considerable credit card debt in an effort to remain current with his alimony payments.
Conclusion
Accordingly, for the foregoing reasons, the postjudgment Motion to Modify Alimony is granted. The new alimony order is $1,000 per month, retroactive to September 1, 2007.