Opinion
No. FA 85 022 77 26 S
February 5, 2004
MEMORANDUM OF DECISION
The matter before the court is the plaintiff's motion to modify alimony dated August 20, 2003. The motion was argued on October 23, 2003 and both parties filed briefs with the court.
On January 2, 1987, the twenty-nine-year marriage of the plaintiff, Robert Zeisler, who is presently 73 years old, and the defendant, Lois Zeisler, who is presently 70 years old, was dissolved by the court, Harrington, J. In conjunction with the dissolution, the parties entered into an agreement that was approved by the court and incorporated by reference in the judgment as an addendum thereto. The addendum contained the following provision as to alimony: "The Plaintiff will pay to the Defendant life-time periodic alimony of $42,000.00 per year for a period of three (3) years after which said alimony shall be reduced to $40,000.00 per year, terminable on the death of either party, remarriage of the Defendant or cohabitation as defined by Connecticut statutes . . . Said amount shall not be modifiable as to amount and/or term except that the Plaintiff shall have the right to file a motion for modification in the event that disability or retirement, total or partial on the basis that said event or events represents a change of circumstances not contemplated by the parties . . ." (Addendum to Divorce Decree.)
The plaintiff's motion was based on the ground that his retirement from his employment represents a substantial change in circumstances. The plaintiff later filed a memorandum and modified financial affidavit. The plaintiff argues that although his assets have gained value since the date of the dissolution, his actual income has decreased substantially. He contends that he would be required to invade his retirement assets in order to continue the current alimony payments. The defendant filed a memorandum in opposition to the motion, in which she counters that the continued operation of the existing alimony order is not unfair or improper because, as the plaintiff's financial affidavit evidences, he has other substantial assets.
"The trial court has the authority to modify its alimony order pursuant to General Statutes § 46b-86, which provides in relevant part that `[u]nless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party . . ." Gay v. Gay, 266 Conn. 641, 645, 835 A.2d 1 (2003). The statute farther provides: "By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court." The plaintiff, as "[t]he party seeking modification bears the burden of showing the existence of a substantial change in modification bears the burden of showing the existence of a substantial change in circumstances." (Internal quotation marks omitted.) Gorton v. Gorton, 80 Conn. App. 52, 54, 832 A.2d 675 (2003). Moreover, the plaintiff "must clearly and definitely establish [a] substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper." Gleason v. Gleason, 16 Conn. App. 134, 136, 546 A.2d 966 (1988).
"To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order." Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994). As to the plaintiff's annual income, according to the financial affidavit he filed in 1986, shortly before the dissolution, at that time his total net income was $123,654, including $82,200 from his law practice and $41,454 from dividends and other assets. According to his financial affidavit, the plaintiff's present net income is $66,108. Included in this sum is $47,460 in interest and dividends and $18,648 in social security payments. Thus, the plaintiff's retirement has resulted in a substantial change in his income because he no longer generates an income from his law practice.
The inquiry does not however, stop there. The court must determine whether this change in the plaintiff's income had a substantial impact on his financial circumstances. "To determine properly whether there [is] a substantial change in circumstances, the court [is] required to compare the parties' financial circumstances as they existed [when the alimony award was entered] to the parties' financial circumstances as they existed [on the date of the motion for modification]." Demartino v. Demartino, 79 Conn. App. 488, 496, 830 A.2d 394 (2003). As noted by the Supreme Court, "[t]he fact that capital gains on property distributed at dissolution may not be considered income under § 46b-82 does not mean, however, that changes in the value of such property, whether realized or not, may never be taken into consideration by a court in considering a modification of alimony." Gay v. Gay, supra, 266 Conn. 648.
"`A conclusion that there has been a substantial change in financial circumstances justifying a modification of alimony based only on income is erroneous; rather, the present overall circumstances of the parties must be compared with the circumstances existing at the time of the original award to determine if there has been substantial change.' 24A Am.Jur.2d, Divorce and Separation § 826 (1998)." Gay v. Gay, 70 Conn. App. 772, 781, 800 A.2d 1231 (2002), aff'd in part on other grounds, 266 Conn. 641, 835 A.2d 1 (2003).
According to his affidavit, at the time of the divorce, the plaintiff owned real estate, in addition to the marital residence, two motor vehicles, stock, bonds and securities, pension and retirement accounts, two bank accounts, furniture and fixtures, and two life insurance policies. The total value of these assets was $946,845. He listed his monthly expenses as approximately $6,096. In his present financial affidavit, the plaintiff states that he owns two parcels of real estate, four motor vehicles, stock, pension and retirement accounts, two bank accounts, and miscellaneous assets. The total value of these assets is $4,362,989. The plaintiff lists his monthly expenses as $15,894. The value of the plaintiff's assets suggests that the plaintiff's retirement has not had a substantial impact on his financial circumstances.
Even if the court were to determine that the plaintiff's retirement did constitute a substantial change in his financial circumstances, the court must still consider whether "the continuation of the prior order would be unfair or improper." Gleason v. Gleason, supra, 16 Conn. App. 136. "As we have stated, [o]nce a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . . . are relevant to the question of modification . . . Under § 46b-82, those criteria include the length of the marriage, the causes for the dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . ." (Citation omitted; internal quotation marks omitted.) Gay v. Gay, supra, 266 Conn. 645. "[A]lthough the trial court may consider the same criteria used to determine the initial award without limitation . . . in doing so, its inquiry is necessarily confined to a comparison between the current conditions and the last court order." (Citation omitted; internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228 Conn. App. 738.
At the time of the dissolution, the plaintiff and the defendant were 57 and 54 years old, respectively. As noted above, both parties are now in their seventies. The plaintiff states that he is in good health. On the other hand, the defendant has had cancer, and is in frail health. According to the defendant's financial affidavit at the time of the dissolution, her net annual income, excluding monies paid by the plaintiff, was $3,800. In addition, her assets, including the marital home totaled $233,158. She listed her annual expenses as $76,226.28. According to her present financial affidavit the defendant's annual net income, without alimony, is $26,904, and the total value of her assets, including her home, is $1,039,560. She indicates that her annual expenses are $44,364. A comparison of the past and present circumstances of both parties demonstrates that the plaintiff has not met his burden of showing that the continuation of the order of alimony would be unfair or improper. Accordingly, the plaintiff's motion for modification is denied.
Judge Brian T. Fischer