Opinion
FA064019316
04-14-2016
Barry Rosner v. Elisa Rosner
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO RECONSIDER AND REARGUE
Kenneth L. Shluger, J.
The parties appeared before the undersigned on October 16, 2015 and then on December 14, 2015, relative to the plaintiff's Motion for Modification (117), defendant's Motion for Contempt (125) and defendant's Motion for Modification (126). Both parties were represented by counsel and submitted memoranda and proposed findings of facts which the court considered in its memorandum of decision dated December 17, 2015.
The plaintiff filed a Motion to Reconsider and Reargue (147), which was heard on April 12, 2016. Although the motion had five claims, plaintiff's counsel abandoned claim number two and four and pressed only claims one, three and five, which will be addressed in this decision.
Claims number one and three address the Court's finding that the plaintiff was in contempt for his failure to pay " additional alimony" pursuant to paragraph 5 of the separation agreement. Essentially, the wife was to receive 50% of the gross amount of any gross rental income which the husband receives for his . . . property in excess of $12,600 per year."
In its Memorandum of Decision, the court found that between 2008 and 2013, the husband owed to the wife the sum of $32,583. The plaintiff argues that the court should not have considered 2008 and 2009 since the motion for contempt addresses only 2010, 2011, 2012 and 2013. Plaintiff also argues that in any event, the court committed a mathematical error for 2008 in assessing $5,333 for that year, rather than $4,000.
The underlying Motion for Contempt (125) states at paragraph 2 that the defendant was to receive additional alimony " from April 2008 until May 1, 2013." Paragraph 3 of said motion then claims that " the plaintiff violated the court order by failing to pay . . . for the time periods May 2010 to May 2013." Based on a reading of paragraph 2 in conjunction with paragraph 3, the plaintiff was on notice that at issue was the unpaid additional alimony as it related to gross rental income from the plaintiff's property for the entire period of 2008 through and including 2013. Moreover, the plaintiff was well aware that he had paid his ex-wife no share of the rental income for any of those years. At the hearing of October 16, 2015, the defendant offered to the court a document captioned " Defendant's Computations of Alimony Contempt" (142), which summarized the claim for the years 2008-2013. The document even contained a calculation of interest for the years 2008-2013 in the event that the court awarded interest. Moreover, the court and both attorneys engaged in a colloquy on the record regarding the calculation of the unpaid additional alimony. While plaintiff's counsel was careful to avoid conceding that anything was due, she conceded that if the court found that the sums were due, the actual computation totaled $32,583 consisting of the period of 2008-2013. At no time did the plaintiff object to the introduction of references to 2008 and 2009. Thus, it was clear to the plaintiff early on the first day of hearings that the claimed unpaid additional alimony included the entire period from 2008 through 2013. Both attorneys asked questions regarding the issue of the additional alimony for 2008 and 2009 at the Oct. 16, 2015 hearing. The plaintiff's own attorney asked him to state the amounts of rental income he received for those very years. It was the amount of rental income which formed the basis for the additional alimony amount.
In his motion to reargue, the plaintiff claims that he was denied due process and an opportunity to address the claim for additional alimony for 2008 and 2009 however, this is simply not the case. Moreover, the parties returned to court on a subsequent date in December to conclude the hearing and any such arguments or claims could have been addressed at that time.
The plaintiff next argues that if the court is to include 2008 and 2009, it committed a mathematical error and that it should have found the arrearage for 2008 to be $4,000 rather than the $5,333 it in fact utilized. This ignores the fact that the parties stipulated in open court that if there is an arrearage at all then the figure shall be $32,583 ($5,300 from 2008). Since the parties stipulated on the record that $32,583 was the figure to be used if the court concluded that the additional alimony was due, it would be an error for the court to ignore the stipulation and compute its own figures. See, Chowdhury v. Masiat, 161 Conn.App. 314, 128 A.3d 545 (2015), wherein the trial court was reversed for finding that the defendant's gambling debt was something other than the figure which the parties stipulated to in open court.
The plaintiff's claim that paragraph three is simply a reiteration of paragraph one, claiming that the court's finding the additional alimony due and owing as $32,583 was inconsistent and unsupported by the evidence. There was ample evidence to support the court's finding that figure.
The final claim is that the court should have issued an order to modify the alimony obligation retroactive to the date of the service of the motion, which was approximately 42 weeks before the date of the decision. A review of the record reveals that the motion to modify was served on the defendant on February 11, 2015. The record reveals that the defendant's attorney filed an appearance on February 17, 2015 and the plaintiff's attorney filed an appearance on February 27, 2015. The matter was originally scheduled for March 26, 2015 but the plaintiff's attorney herself requested a continuance until May 7, 2015 which was granted. Plaintiff's deposition was scheduled for May 8, 2015 so the parties agreed that the matter would be continued until June 4, 2015. The plaintiff's attorney then requested a continuance from the June 4, 2015 hearing date until July 1, 2015 but apparently, no hearing dates were available until September 25, 2015. The defendant's attorney was ill on that date and the matter was continued until October 16, 2015 when the hearing finally commenced and then to December 14, 2015 when it concluded. The undersigned issued a Memorandum of Decision of Dec. 17, 2015. While the Court is troubled that it should take 10 months for a case to be scheduled, it does not appear that the delay was the fault of any one party or created for a tactical advantage. Going forward, bench and bar should work together to insure a more expeditious resolution of cases.
In considering whether to make the modification order retroactive to the date of the motion being served, it is clear that the court has that authority and it is within the court's discretion to exercise that authority. In Shedrick v. Shedrick, 32 Conn.App. 147, 627 A.2d 1387 (1993), the court noted that our appellate courts consistently have held that, absent legislative authority, a retroactive modification of alimony is impermissible. " In 1990, however, the legislature did in fact expressly authorize retroactive modification of alimony under certain circumstances." Id. at 149. See also Lucas v. Lucas, 88 Conn.App. 246, 255-56, 869 A.2d 239 (2005). Section 46b-86(a) provides in relevant part: " No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50 (emphasis provided)." See, Hane v. Hane, 158 Conn.App. 167, 173, 118 A.3d 685, 689 (2015).
In determining whether or not to make the order retroactive to the date of the motion having been served, this court has considered a number of factors, including the fact that the plaintiff was in contempt of the order to pay additional alimony for nearly 8 years, that he possesses assets valued at $905,000 more than the defendant wife, that as a business owner, he is able to pay numerous expenses through his business e.g., car payments, gasoline, car repairs, car insurance, and health insurance. On the other hand, the defendant is a school employee earning a W-2 wage.
For the foregoing reasons, the motion is denied and request for retroactive application of the motion to modify is denied.