Opinion
FSTFA030197693S.
12-12-2012
Scott WYLIE v. Sharon WYLIE.
UNPUBLISHED OPINION
SYBIL V. RICHARDS, Judge.
The plaintiff Scott Wylie and the defendant Sharon Wylie were married on October 29, 1983 in Old Greenwich, Connecticut. The marriage of the parties was dissolved on an uncontested basis on March 1, 2005 (Black, J.). At that time, the parties entered into a written separation agreement (" separation agreement") on an even date therewith that was incorporated into the judgment of dissolution. Under the relevant provision of the separation agreement, specifically section 3.1 of article III, the plaintiff agreed to pay the defendant " as alimony the sum of $2, 750.00 per month." On July 3, 2008, the plaintiff filed a motion for modification a downward modification of his alimony obligation. Subsequently, the parties entered into a stipulated agreement, approved and ordered by the court (Shay, J.) on November 3, 2008, modifying the plaintiff's monthly alimony payments from $2, 750.00 to $1, 750.00. The plaintiff now comes before the court requesting a post-judgment modification of the $1, 750.00 monthly alimony payment that he is ordered to pay to the defendant.
General Statutes § 46b-86 governs the modification of an alimony order after the date of the dissolution judgment. The relevant provision of said statute, more particularly subsection (a), provides " [any final order for the periodic payment of permanent alimony may, at any time thereafter, be modified by the court upon a showing of a substantial change in the circumstances of either party]." Therefore, the plaintiff, as movant in this request for a modification, has the burden of demonstrating that " a substantial change in circumstances of either party" in accordance with General Statutes § 46b-86(a). Borkowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). " As to the substantial change of circumstances provision of § 46b-86(a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in circumstance of one or both of the parties ... Second, if the court finds a substantial change in circumstances, it may properly consider the motion and ... make an order for modification ... The inquiry then, is limited to a comparison between the current conditions and the last order ... The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn.App. 482, 493-934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).
Thus, the issue before the court is whether the plaintiff has met his burden of showing a substantial change in circumstances in accordance with the applicable law. During the hearing on the plaintiff's motion, the court heard the following testimony from the plaintiff. The plaintiff is 69 years old and currently lives in Greenwich, Connecticut with his new wife. For 30 years, the plaintiff has been a self-employed arborist and is the sole member of his tree service company called Pickwick Plant Care, LLC. The plaintiff's new wife is an employee of his tree company and is the sole owner of their current residence. The plaintiff contributes $366.46 a month toward the household expenses where he resides with his new wife. The plaintiff pays social security taxes but has elected not to collect social security. The plaintiff claims that he was not trying to avoid paying alimony by delaying his social security benefits. For the past three or four years, the plaintiff's tree business has been slow due to his deteriorating health and the economy downturn, but he has experienced no difficulty with collecting his accounts receivables. The plaintiff also testified that he began to voluntarily slow down his tree business when he reached the age of 50. In addition, the plaintiff no longer prunes or cuts down trees but instead subcontracts out this aspect of his business because he is unable to physically perform this type of work. The plaintiff had a knee replacement three years ago, a pacemaker was implanted last year and he has glaucoma. The plaintiff further testified that he worked part-time briefly in 2011 teaching tree-related topics in a continuing education program. With respect to the plaintiff's income, the plaintiff's financial affidavit dated September 13, 2012 (plaintiff's exhibit one, full exhibit) reflects a total net weekly income of $1, 081.00. The plaintiff's financial affidavit dated October 30, 2008 (plaintiff's exhibit two, full exhibit) reflects a total net weekly income of $1, 029.66.
While the plaintiff testified that he anticipates that his tree company's business may not be as profitable as it has been in previous years due to his declining health and the economy, it is unclear from a review of the evidence as to what precipitated his filing of a motion to modify the 2008 alimony order postjudgment. There appears to be no discernible explanation to substantiate his claim that there has been a substantial change in his circumstances necessitating a downward modification. Indeed, his own testimony and the evidence are underwhelming in that regard.
In comparing the plaintiff's 2008 and 2012 financial affidavits, it is obvious that the plaintiff actually realized a gain of $51.34 in his net weekly income in 2012 over the net weekly income reflected in his 2008 financial affidavit. As for his health, the plaintiff has some health issues and testified that he cannot perform heavy work. However, none of his health issues have been so debilitating as to prevent him from running his tree company or taking on additional work in a continuing education program in 2011. In fact, because of his medical conditions, the plaintiff took measures to minimize work limitations he has by subcontracting out tree work that he can no longer physically perform. And the plaintiff was still operating his tree business as of the date of the hearing. Thus, his medical conditions have not impacted his ability to continue to run his tree company and earn income from it. Further, the plaintiff testified that he has been voluntarily scaling back his business since he was 50 years old. So, the plaintiff both contemplated and actively engaged in the constriction of his business operations for nearly 20 years and the record is bereft of anything that would support his presumption, which is purely speculative at best, that his business operations will be worse off next year. And he testified that he has no problem collecting his accounts receivables.
After carefully considering all the statutory criteria set forth in General Statutes § 46b-86, together with the applicable case law, as well as the evidence and testimony and claims of facts presented here, the court hereby denies the plaintiff's motion for downward modification of alimony as the plaintiff failed to sustain his burden of proving that there has been a substantial change in his circumstances warranting a downward modification.