Opinion
FA074012787
10-30-2017
Maureen Walsh v. Dean Moberg
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO MODIFY ALIMONY, POST-JUDGMENT (#197)
Erika M. Tindill, J.
The Plaintiff's postjudgment motion for modification of alimony (#197) first came before the Court on the November 7, 2016. An evidentiary hearing was commenced on March 29, 2017 and continued on June 5 and June 9, 2017. Both parties appeared pro se. Nineteen exhibits were introduced and both parties and a witness for the Defendant testified. The Court took judicial notice of the parties' December 23, 2008 separation agreement (#129.10), the Court's (Shay, J.) June 6, 2012 decision (transcript; #195) granting the Defendant's motion to modify (#182), the Court's (Jacobs, J.) August 8, 2016 ruling (#203.01) on the Defendant's motion for protective order (#203), and various financial affidavits of the parties (#190, #191, #246, and #248). The Court has carefully reviewed the instant motions, the written closing argument of each party (#261 and #263, respectively), and each piece of evidence. In addition, the Court has considered relevant statutory authority, case law, and the argument of counsel to make its orders and findings.
In the instant motion, the Plaintiff asks the Court to both continue the Defendant's alimony obligation beyond June 2016 and increase the amount. In the event that the Court continues alimony, the Plaintiff also requests that the Court require the Defendant to maintain life insurance for as long as he has an alimony obligation to her. The Plaintiff claims a substantial change in circumstances in that her earnings are insufficient to meet her needs and that the Defendant's income has increased.
The Defendant argues that the Plaintiff has failed to prove a substantial change in circumstances and, assuming the Court disagrees, modification of alimony should be denied. He cites Dan v. Dan, 315 Conn. 1, 105 A.3d 118 (2014), as authority for his position. The Court is required to first determine if the Defendant's alimony obligation is modifiable pursuant to the parties' court-approved separation agreement. See C.G.S. § 46b-86(b). Assuming modification is permitted by the terms of the agreement, the Court must then determine whether there has been a substantial change in circumstances for either party since the most recent court order. Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994). See also Grosso v. Grosso, 59 Conn.App. 628, 758 A.2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000). In the event the Court finds a substantial change in circumstances, it must then consider the factors enumerated in C.G.S. § 46b-82. The Court's examination of those factors is not reconsideration of the circumstances that existed prior to the dissolution, but is limited to consideration of the parties' situation in the time period since the last court order.
FINDINGS
1. The instant motion was filed five months, three weeks, and five days prior to the termination of the Defendant's court-ordered alimony obligation. The parties' son graduated from high school on June 10, 2016.
2. The parties' December 23, 2008 separation agreement (#129.10), specifically Article III, paragraph 3.1, governs. Modification of the Defendant's unallocated support obligation is not prohibited.
3. The Court (Shay, J.) granted the Defendant's motion to modify (#182). Beginning June 23, 2012, the Defendant was ordered to pay the Plaintiff $2,500 per month in unallocated alimony and child support. The remaining provisions of paragraph 3.1 of the court order (#129.10) remained unchanged by the Court's modification. The Defendant, therefore, was required to pay unallocated support until the parties' son completed high school or reached age 19, whichever occurred first, and the Defendant was prohibited from seeking a reduction in support as long as the Plaintiff was earning $30,000 or less.
4. There has been a substantial change in circumstances since the June 2012 modification. The Defendant's income has increased from $124,693 to $141,170. See #195, Defendant's Exhibit A, and Plaintiff's Exhibit 8. The Plaintiff's income has also increased. At the time of the Court's (Shay, J.) decision modifying the unallocated support award from $3,000/month to $2,500/month, the Court made a finding that she was not gainfully employed and earning income. See #195, pg. 4, lines 22-24. Her most recent financial affidavit shows $62,450 gross annual income. Plaintiff's testimony--May 30, 2017. In addition, the Plaintiff reached the age of eligibility for Social Security benefits. Plaintiff's testimony--May 30, 2017; see also Plaintiff's Exhibit 1.
5. The Court has considered the relevant factors pursuant to C.G.S. § 46b-82 from June 6, 2012 through the conclusion of evidence. The Plaintiff is 63 years old; the Defendant is 56. The Defendant continues to be self-employed as the principal of two entities--Sound Trust Wealth Advisors, LLC and Sound Trust Wealth, Inc. See Plaintiff's Exhibits 13 and 14. The Plaintiff continues to be employed as a Client Services Associate at Ameriprise Financial services and maintains her Series 7, 63, 24, and 53 licenses in order to continue employment as a certified financial planner. The parties' son is a 20-year-old, full-time student at the University of Pennsylvania. See Defendant's Exhibit E. Both parties are in fairly good health, each having had various medical issues for which their insurance did not completely cover. The Defendant has more sources of income and a higher earning capacity given his employment history, retirement savings, and cohabitation with his fiancé, with whom he has purchased a home that has considerable equity. The Plaintiff is underemployed given her vocational skills, education, and work history.
6. The Defendant's testimony regarding his income, business expenses, and purchase of his current home with his fiancé e was not credible.
7. The witness, Lauren Quinn Volpe's, testimony regarding loan agreements with the Defendant and purchase of the 33 Pequot Trail, Westport, Connecticut property was not credible.
8. The Plaintiff's testimony regarding her financial support of the parties' son in 2016 was not credible.
9. The purpose of the unallocated support--and, therefore, the alimony--award contracted for by the parties was to give the Plaintiff, a certified financial planner who (at the time of the divorce) was the custodian of the minor child, an opportunity to maintain a standard of living reasonably close to that which she and the child had grown accustomed until such time as she was able to earn income commensurate with that she had earned working full-time outside of the home. This remained the purpose of the award at the time of the Court's (Shay, J.) modification on June 6, 2012. The Plaintiff has failed to prove that the intended purpose of the alimony award was not met.
10. If the Plaintiff's earnings were insufficient to meet her needs from June 23, 2012 to June 10, 2016, it was primarily due to poor financial choices and decisions made by the Plaintiff. An extension of the Defendant's support obligation, under the circumstances, will not provide incentive for the Plaintiff to become financially self-sufficient.
11. No exceptional circumstances exist that would warrant a modification of the Defendant's alimony obligation.
Accordingly, the Plaintiff's post-judgment motion for modification of alimony (#197) is denied.