Opinion
No. FA 01-0728633 S
March 2, 2007
MEMORANDUM OF DECISION
This matter comes before the court on defendant's post judgment motion to modify alimony filed on June 12, 2006, as well as his motion for attorneys fees. The plaintiff wife has filed a motion for contempt along with attorneys fees.
Procedural History
By complaint dated October 19, 2001, plaintiff commenced an action for dissolution of marriage and other relief. After trial, a judgment of dissolution was entered by the court, Prestley J., on February 28, 2003. Among other things, the court ordered that Mr. Zoll pay his former wife alimony in the amount of $175 per week until child support payments end, and thereafter, he was to pay $300 per week for an additional nine years. The length of said alimony was non-modifiable. On June 12, 2006, the defendant filed this motion to modify his alimony obligation which was now $300 per week. The defendant claims that there has been a substantial change of circumstances. He is requesting that the court modify his alimony payments retroactive to the date of filing by terminating the obligation. The defendant is also asking for attorneys fees. The plaintiff has filed a motion for contempt as well as attorneys fees.
On August 6, 2006 the court, Prestley J., temporarily suspended alimony payments without prejudice. At a subsequent hearing on September 13, 2006, the court, Solomon J., vacated the previous order and reinstated alimony payments. The parties bitterly contested all motions over a period of six months including the taking of out-of-state depositions, which were ultimately granted by the court, Epstein, J. The court conducted a hearing at which it heard the testimony of the plaintiff, Mrs. Zoll, and by stipulation admitted the depositions of the defendant, Mr. Zoll, and that of his treating physician, Daniel DeAngelo. The parties submitted exhibits for the court to review. The matter was continued to give the court the opportunity to read the depositions and review the exhibits. Subsequently the parties' attorneys gave their closing arguments and submitted proposed orders.
The court has carefully considered all of the evidence that was presented to it as well as the respective statutory criteria for post-judgment modification of alimony and a determination of contempt.
Facts And Discussion
"The trial court has the authority to modify its alimony order pursuant to Connecticut General Statutes § 46b-86 which provides in relevant part that `any financial order for periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by the court upon a showing of a substantial change of circumstances of either party . . .'" Gay v. Gay, 264 Conn. 641 (2003).
The procedure for a post-judgment modification provides, "When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification." Borkowski v. Borkowski, 228 Conn. 729 (1984). Those criteria include the length of the marriage, the causes for dissolution, age, health, station, occupation, amount and sources of income, vocational skills, . . . employability, estate, and the needs of the parties. In making its determination of the applicability of these criteria, the trial court has broad discretion. Hardisty v. Hardisty, 183 Conn. 253, 285 (1981). The party seeking a modification bears the burden of showing the existence of a substantial change of circumstances. Groton v. Groton, 80 Conn.App. 52 (2003).
At the time of the dissolution decree, the court made a finding that the defendant, Mr. Zoll had an annual gross earning capacity of $65,000. The defendant had started a business in 1998 called The Mortgage Center. In 1999 he earned $187,578, $75,119 in 2000, $88,678 in 2001 and for the first nine months of 2002 had a gross income of $112,893. Beginning in October 2002, the defendant also worked as a limousine driver to supplement his income. The court also found that the plaintiff cared for the two children in the home while the defendant earned the family income. The court further found that the parties separated in August 2000 after the defendant removed control of the family checkbook from his wife in late 1999, began to gamble at the casinos and stopped paying the mortgage on the family home. After a threat by the bank to foreclose, the home was sold in August 2000. The defendant moved out and the parties separated. After the separation the plaintiff began working as an administrative assistant, earning approximately $21,000 per year.
In May 2006, the defendant was diagnosed with acute myclogenous leukemia (AML). He was seen by Dr. DeAngelo at the Dana-Farber Cancer Institute (Institute) on June 7, 2006. The diagnosis was confirmed and the defendant was admitted to the Institute on June 8, 2006 to undergo the initial induction chemotherapy. He was discharged from the Institute after the first round of treatment on July 12, 2006. The defendant received three additional cycles of consolidation chemotherapy between August 2, 2006 and October 30, 2006 at Brigham and Women's Hospital. In his testimony Dr. DeAngelo stated that the defendant was forbidden from employment during this period of time due to the high risk of infection. After his third cycle he was readmitted to the hospital on November 6, 2006, due to complications. He was discharged on November 22, 2006. Between June 8, 2006 and November 22, 2006, the defendant spent approximately seventy-four days in the hospital due to chemotherapy and/or complications. Upon his discharge, the oncology report indicates that the defendant was in complete remission.
Dr. DeAngelo testified that he has recommended that the defendant obtain a stem cell transplant, now that he is in remission. If the defendant chooses to proceed with the stem cell transplant he would be unable to work in public for at least twelve months. This is due to the weakness of the immune system to tolerate an infection.
Dr. DeAngelo further testified that if the stem cell transplant falls through or if the defendant decided not to pursue it, then the defendant could return to work within a month without limitations. Dr. DeAngelo recommended that the stem cell transplant take place as soon as possible while the disease is at its bare minimum.
Prior to the diagnosis of AML, the defendant was recently employed full-time by Lendia, a mortgage company. He had a base salary of $60,000 and could receive up to a high of $90,000 per year with bonuses and commissions. After the diagnosis his position was eliminated. The defendant then entered into an agreement with Lendia as an independent loan officer. In this position he would continue to receive company benefits and commissions from any new contracts he initiated. No evidence was presented as to any income earned under this agreement. On June 9, 2006 he received his final base salary check, a first quarter bonus of $2,500, $10,000 in other earned income, a partial payment of his second quarter bonus, as well as $200 per week in deferred compensation. The defendant testified that he will continue to receive the deferred compensation until September or October 2007. He stopped alimony payments on June 18, 2006 after the filing of his motion. Effective November 2006 the defendant began to receive Social Security Disability payments of $1,969 per month. In his financial affidavit submitted to the court for this hearing, the defendant shows a net income from all sources of $601.65 and expenses of $516.28 per week. The defendant, who will be 60 this year, testified that he intends to return to Lendia if he can earn a good living, otherwise he would seek employment elsewhere.
From the date of the divorce to the present, Mrs. Zoll has been employed by the Connecticut Junior Soccer Association. Presently she earns a net weekly income of $395. On her financial affidavit she shows $649 in expenses per week. She is 58 years old.
Testimony was also presented that the defendant has a girlfriend, who earns approximately $100,000 per year. The defendant testified that she has her own condominium where she resides and that he lives in his own apartment. Although his girlfriend has assisted him with financial gifts of approximately $10,000 since the diagnosis of AML, it is the finding of the court that at this time she is not a regular source of support. Therefore the court did not factor their relationship into its orders.
Based on the evidence presented the defendant has met his burden of showing that there has been a significant drop of income due to his health, which constitutes a substantial change of circumstances. A party's illness and a loss of employment has been held to be a substantial change of circumstances. Berry v. Berry, 88 Conn.App. 674 (2005). See also Jones v. Jones, 2004 Ct.Sup. 15705 (2004).
Having made the termination that a modification is warranted, the court must now review the statutory criteria to fashion a fair order. A review of the defendant's financial affidavit indicates that he presently receives $601.65 net per week from Social Security Disability and deferred compensation from his previous employer. He indicates that his expenses total $516.28 per week. He will receive the deferred compensation until September 2007. Mrs. Zoll continues to work in the same full-time position that she has held since her separation. She earns $395 net per week and has no other income. The defendant is in complete remission from acute myclogenous leukemia. He must now choose to either return to work or have a stem cell transplant as recommended by his doctors. Should he choose not to have the stem cell transplant there are no medical reasons why he cannot return to work. However, if he decides to have the transplant procedure performed he will not be allowed to work in public for twelve months. After that, he can resume gainful employment. The court realizes that the defendant must make a difficult decision as to whether or not have the stem cell transplant. He should have some time to consider all of his options and the consequences of such a procedure. However, his financial situation and that of his ex-wife does not warrant a termination of his obligation. The plaintiff's opportunities for better employment are limited. She has held the same position since the parties separated. Given her age and station in life advancement is unlikely. Taking into consideration the parties' present situation, and consideration of the appropriate statutory criteria, the court makes a finding that a temporary reduction in alimony is warranted.
Therefore, the court hereby reduces the defendant's alimony obligation to $100 per week, retroactive to June 14, 2006. The defendant has a window of opportunity until July 1, 2007, to decide whether or not he will pursue the stem cell transplant. Should he choose to proceed with the transplant this order will remain in effect until such time as he is cleared to return to work by his treating physician. If by July 1, 2007, the defendant has decided not to have the procedure, then the alimony obligation will revert to $300 per week based on his earning capacity. Should the defendant earn any income over his present earnings at $601.65 per week, he is to pay the plaintiff an additional twenty percent (20%) of net income after taxes but no more than his previous obligation of $300 per week.
This order is retroactive to the date of filing. Therefore the defendant is ordered to pay the plaintiff $3,600 (36 weeks at $100 per week from June 11, 2006 to the present). Said payment to be made within thirty days of this decision. Although the defendant is not working, the court notes that the defendant testified that after his change in employment status he received income of approximately $50,000 from different sources, including base salary, bonuses, weekly payments from Lendia and social security disability. These funds are sufficient to pay this obligation. The defendant shall provide the plaintiff with copies of his tax return — W2 forms, 1099 forms and all tax schedules for 2006 and each subsequent year during the period of his alimony obligation. Furthermore, the defendant is to provide the plaintiff with notice of any bonuses, consulting fees, or commissions from Lendia or new employer within two weeks of receipt.
The court now turns to the plaintiff's contempt motion. For an individual to be found in contempt the court must find that there was a valid order, that it was violated and that the violation was willful. Mere failure to comply with a court order is not sufficient. Bryant v. Bryant, 228 Conn. 630 (1994). In other words, the court must find that the party's actions were a willful and deliberate disobedience of a court order. The party seeking a finding of contempt has the burden of proof. Statewide Grievance Committee v. Zadora, 62 Conn.App. 828 (2001). After noncompliance with a court order has been established, the burden of showing a defense rests upon the alleged contemptor. In the present case the dissolution judgment ordered the defendant to pay the plaintiff $300 per week in alimony after the last child turned eighteen. He began paying that amount on November 21, 2004. He unilaterally stopped payments on June 16, 2006. On August 2, 2006, after the submission of the motion to modify, the court, Prestley, J., suspended alimony payments, without prejudice. Those payments were reinstated after a court hearing, Solomon J., on September 13, 2006. From that date forward the defendant was under notice that his alimony payments had been reinstated and that he was under an obligation to pay those sums. The defendant failed to make any payment whatsoever. The defendant ignored the order. Until an order is modified or vacated, it remains an enforceable order. Litigants do not have the option to determine which orders they will follow and those they may choose to disobey. Such a scenario would render the authority of the court meaningless. Those individuals that blatantly disregard court orders do so at their own peril. The court finds that an order existed, that it was violated and the violation was willful. The defendant is found in contempt.
The plaintiff is seeking $6,813.50 in legal fees on the contempt motion. Section 46b-87 of the General Statutes allows the court to order attorney fees against a party found in contempt. The plaintiff's attorney submitted an affidavit itemizing her counsel fees. The court may therefore determine the reasonableness of her fee request. Smith v. Snyder, 267 Conn. 456 (2004). The court has reviewed carefully section 46b-87 and the affidavit.
The plaintiff's affidavit fees include all expenses associated with defending the defendant's motion to modify. The contempt fees are but a small portion of said expenses. The court finds that the request is unreasonable. The defendant is ordered to pay the plaintiff's attorney $750 toward her legal fees. That sum is to be paid within 30 days.
Finally, the defendant is claiming legal fees. The claim for fees is made pursuant to General Statutes Section 46b-62. The court has authority to award attorneys fees in prosecuting Motions for Modification. Benson v. Benson, 5 Conn.App. 95 (1985). The defendant has filed an affidavit of fees with the appropriate time records.
The court has considered the requirements of General Statutes Sections 46-62 and 46b-82 in analyzing the request.
The court concludes that no reason exists to order the plaintiff to pay the defendant's legal fees for pursuing this request for modification. A review of the financial affidavits of each party and their present financial circumstances leads the court to conclude that the defendant has the ability to pay his own legal fees. The plaintiff was not involved in any behavior that contributed to this prolonged litigation. The defendant's motion for legal fees is denied.
All prior orders, including life insurance coverage remain in effect.