Erin R. Keaveny v. Patrick H. Keaveny (2009)

MEMORANDUM OF DECISION RE DEFENDANT'S PENDENTE LITE MOTION TO MODIFY

By Motion dated August 19, 2009, the defendant requests a modification of alimony and child support orders entered August 7, 2009 by the court (Jones, J).  The court heard testimony on the defendant's motion on September 8, 2009, and entered orders by means of a memorandum of decision filed September 18, 2009.   The defendant reclaimed said motion based on the nature of the court's orders of September 18, 2009, and an evidentiary hearing on the defendant's renewed motion was held on November 16, 2009.   The defendant again claims that a substantial change of circumstances has occurred that supports a modification of the August 7, 2009 order requiring the defendant pay the sum of $525 per week in unallocated child support and alimony.

This court made a finding on September 18, 2009 that the defendant had demonstrated a “substantial change in circumstances” based on his loss of employment.   See Borkowski v. Borkowski, 228 Conn. 729, 737-38 (1994).   The financial affidavit submitted by the defendant on November 16, 2009 indicates that he currently receives unemployment compensation benefits in the amount of $703 per week gross.   The defendant's gross income is subject to federal and state tax liabilities that total $124 per week.   As a result his net weekly income is now $579.   The defendant filed a financial affidavit on June 9, 2009 in which he indicated a gross income of $2,601 per week and net income of $1,773 per week from employment.

The court credits the defendant's testimony regarding his efforts to find employment pursuant to the September 18, 2009 order.

The financial affidavit submitted by the plaintiff on November 16, 2009 demonstrates an increase in her net weekly income from $181 per week to $328 per week.   Her current gross income is $390 per week.   The court finds that, based on the evidence presented at each hearing of this matter, that the defendant did not wilfully diminish his earnings.   The defendant has had three employment interviews, and has not yet received an offer for employment.  “Loss of employment does not warrant alimony modification unless the moving party also proves that the party's earning capacity has changed substantially.”   Berry v. Berry, 88 Conn.App. 674, 685 (2005).   While the court may fashion financial orders based on earning capacity where a party has been unemployed, there must be a reasonable basis in the record to support a conclusion as to capacity.  Boyne v. Boyne, 112 Conn.App. 279 (2009).

Based on the evidence presented, the relevant statutory criteria and case law, the court concludes that there is an insufficient basis in the record for the court to fashion an award based solely on earning capacity.   His employment at Berkshire Health Systems was relatively short.   Prior to that, he was unemployed for approximately eight months.   The nature of his past employment and current economic conditions have impacted his present earning capacity.   His only source of income at the moment is unemployment compensation benefits.   The plaintiff's circumstances are changed in that her income has increased.   The purpose of pendente lite alimony is to provide for support during the pendency of the action in accordance with the recipient's needs and the payor's ability to meet them.  Papa v. Papa, 55 Conn.App. 47, 53 (1999).   The child support guidelines require the court to determine each party's actual current gross and net income, and using those figures, determine the presumptive current support amount.   See Regs. Conn. State Agencies § 46b-2a(c) and (d).  After consideration of the relevant statutory criteria, the evidence, case law, and financial affidavits of the parties, the court enters the following orders:

1. A substantial change in circumstances exists.   The pendente lite award of $525 in unallocated child support and alimony ordered on August 7, 2009 is modified as follows:

a) The defendant is ordered to pay $62 per week in child support;  and $141 per week in alimony, as well as one-half of day care expenses.   The foregoing spousal support and child support order is retroactive to September 8, 2009.

b) The court's order of September 18, 2009 regarding contact with prospective employers remains in effect.

2. In the event that the defendant obtains employment, he shall no later than the following day after receipt of employment notify plaintiff's attorney as to his yearly salary and nature of employment.

VITALE, J.

Vitale, Elpedio N., J.