Opinion
No. FA00-0158251S
January 20, 2006
MEMORANDUM RE MOTION #328
This is a Motion for Modification of Alimony and Child Support Postjudgment filed by the defendant husband on July 14, 2005. At the start of the hearing on January 11, 2006, he withdrew his claim for modification of child support leaving only the issue of modification of alimony before the court.
The parties in this bitter, protracted, overly contentious litigation, were divorced by Judge Abery-Wetstone on August 1, 2003 in the Regional Family Trial Docket at Middletown. There were three appeals involving this file, in one the Supreme Court issued a lengthy decision and the remaining two appeals were dismissed by the Appellate Court. To give further insight into the extent of the litigation, consider that two hundred and forty-one pleadings were filed, numerous hearings were conducted, many different orders issued by several different judges, Family Services became involved, a guardian ad litem was appointed, and six figure counsel fees incurred, all to no avail in bringing peace to the litigants and their children.
The instant motion for modification was scheduled for hearing on a number of occasions but did not go forward for one reason or another. It was rescheduled, along with eight other contested motions, for November 22, 2005 at which time three of the motions were disposed of in the day-long hearing and five others continued to January 11, 2006 for final disposition. One of the continued motions was filed by the now pro se plaintiff. All parties were present on November 22nd but only the defendant, his counsel, and the guardian appeared at the January 11th hearing. The plaintiff sent correspondence to the court and opposing counsel that she would not be appearing and had in fact moved to the State of Tennessee. She also telephoned the guardian ad litem advising him that she would not be appearing. Further, she left a voicemail message on the Case Flow Coordinator's answering machine the day before the scheduled hearing advising him that she would not be appearing. She was not excused from attending nor was a continuance requested or granted.
Nevertheless, the defendant insisted on going forward with the scheduled motions which the court permitted on the basis that a party should not be permitted to frustrate the process by simply not appearing. The one motion filed by the plaintiff, number 312, and three others filed by the defendant, numbers 325, 331, and 337, were acted upon by the court from the bench and are not involved in this memorandum. The remaining motion, # 328, is the sole subject of this memorandum.
At the outset, Judge Abery-Wetstone's order regarding alimony should be stated as the defendant's motion is directed to it. The order in the Memorandum of Decision reads as follows:
The husband shall pay to the wife alimony of $300.00 per week for a period of seven (7) years from the date of dissolution, non-modifiable as to term, unless the husband or wife dies, remarries, or cohabitates as defined by statute.
At the time the order was entered, the court appeared to have found the defendant to have a gross income of $79,344.20 per year ($1,525.85 per week as per his financial affidavit filed on May 29, 2003 pleading #209). His current gross income is $118,820.00 per year ($2,285.00 per week as per his financial affidavit filed on January 10, 2006.) Net income was shown on both the earlier and current affidavits and was considered by this court. The defendant filed a second financial affidavit on May 29, 2003 as pleading #210, which shows a higher gross income ($103,044.24 per year or $1,981.62 per week). Two affidavits were filed by the defendant because he was about to experience a 24% reduction in income owing to a new union contract. He urges the court to use that second affidavit, which indicates a much higher income, as a base for the claimed modification now before the court. However, reference in the court Memorandum of Decision, child support paragraph 13, clearly indicates that the court used the lower income figure for the calculation of child support. Counsel for the defendant was unable to point out any other court finding on the defendant's income. His suggestion that the trial court used one affidavit to calculate the child support order and another affidavit to enter the alimony order is rejected.
At the time the original alimony order was entered, it does not appear that the plaintiff had filed a financial affidavit — a search of the voluminous file to find one was fruitless as the defendant's counsel concedes. Nevertheless, the court did find the plaintiff to have an earning capacity of $35,000.00 per year ($673.08 per week). Despite the absence of a filed financial affidavit, the defendant urges the court to use a copy of the financial affidavit given to him at the time of the dissolution of marriage, which he introduced in evidence during the hearing, as a basis for the plaintiff's income. Said affidavit indicated a weekly income of $389.00 ($20,228.00 per year). Even if such an affidavit was in the file, the trial court clearly based its orders on the income capacity of the plaintiff which is what this court is compelled to use.
At the hearing on November 22, 2005, the plaintiff did file a financial affidavit indicating a gross annual income of $52,832.00 ($1,016.00 per week). She did not appear in court to submit herself to cross-examination on that affidavit nor did she file a more current affidavit. Defendant's counsel subpoenaed the plaintiff's employer, the Ansonia Superintendent of Schools, who testified that the plaintiff's contract for the year ending June 30, 2005 was $65,295.00. Further, the superintendent testified that her new contract negotiated through a collective bargaining agreement would be $67,254.00 per year ($1,293.35 per week). No net income figures were provided. All things considered, the court finds the plaintiff's earning capacity to be $67,254.00 per year.
"In a marital dissolution proceeding, the court may base financial awards on earning capacity rather than actual earned income of the parties . . . While there is no fixed standard for the determination of an individual's earning capacity . . . it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health." (Internal quotation marks omitted.) Carasso v. Carasso, 80 Conn.App. 299, 305, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). "[T]he court may consider earning capacity from employment when, the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings." Weinstein v. Weinstein, 87 Conn.App. 699, 706, Page 817 867 A.2d 111, cert. granted on other grounds, 273 Conn. 934, 875 A.2d 545 (2005); Dees v. Dees, 92 Conn.App. 812, page 816 (2006).
Lastly, the defendant, who testified that he commenced a cohabitation in May of 2004 and subsequently remarried on October 21, 2005, advances the unique argument that the original order called for a termination upon remarriage or cohabitation of "either" party. It is doubtful that the trial judge intended such a result. But even if she did, this court does not find a modification based upon the defendant's cohabitation or remarriage is warranted, but does find a modification warranted based upon a substantial change in financial circumstances of the parties.
In summary, it would appear that the plaintiff's annual income increased by 92% ($32,254.00) and the defendant's by 48% ($39,475.80) since the dissolution of marriage date. While not extraordinary, it is a substantial difference warranting a modification of the original order. After consideration of the statutory criteria, alimony is modified to $250.00 per week effective immediately. Counsel fees of $1,000.00 plus costs of $234.80 are awarded to the defendant.