John Gamm v. Ingrid Gamm (2009)

MEMORANDUM OF DECISION

The matter before the court is the plaintiff's motion to modify alimony dated November 11, 2008.   The motion was argued on various dates from March 2, 2009 to June 29, 2009 and both parties filed post-hearing memoranda.

On June 14, 1996, the twenty-five year marriage of the plaintiff, JOHN GAMM, who is presently 64 years old, and the defendant, INGRID GAMM, who is presently 62 years old, was dissolved by the court after a trial.   Alander, J. In 1999, the Plaintiff unsuccessfully sought to have the alimony modified.   Axelrod, J.

The plaintiff's motion was based on the ground that he is currently unemployed and there has been a change in the plaintiff's earning capacity which represents a substantial change in circumstances.

The defendant counters that the plaintiff has not proven that his earning capacity has changed.

At the time of the dissolution, after trial, the Court determined that the plaintiff's earning capacity was $100,000 per year.   The plaintiff now claims that he no longer has the same earning capacity and has moved to modify alimony.

Alimony is modifiable where there has been a substantial change in the circumstances of either party.  Connecticut General Statutes, Sec. 46b-86(a).   Once the court has found such a change, the court must then consider the question of modification in light of the statutory criteria set forth in the statutes in Section 46b-82.¹

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 pendent 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 ․” 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.”  (Internal quotation marks omitted.)  Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994).   Under § 46b-82, those criteria include “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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 § 46b-81 ․” General Statutes § 46b-81(a) provides in relevant part that “[a]t the time of entering a decree annulling or dissolving a marriage ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other ․” ²

The Court has considered the credible evidence and finds the Plaintiff's expert witness particularly credible.   The Court further finds that considering the plaintiff's age and the current economic conditions, the plaintiff's earning capacity has decreased by 50%.   The Defendant is in a somewhat comparable financial condition as before.

The court finds that there has been a substantial change of circumstances since the date of the last order.

ORDERS

1. The prior judgment shall be modified and the amount of alimony is decreased from $2,500 per month to $1,250 per month.

2. The Plaintiff shall continue to diligently seek full-time employment and shall furnish proof of such efforts to the Defendant or her attorney on a monthly basis.   Within three business days of the plaintiff obtaining full-time employment, the plaintiff shall notify the Defendant or her attorney as to his employment.

3. The modification shall be retroactive to the date the motion was served on the Defendant.

4. The judgment is not otherwise modified.

By the court,

Judge Richard E. Burke

FOOTNOTES

FN1. See Borkowski v. Borkowski, 228 Conn. 729 (1994)..  FN1. See Borkowski v. Borkowski, 228 Conn. 729 (1994).

FN2. Gay v. Gay, 266 Conn. 641, 645 (2003)..  FN2. Gay v. Gay, 266 Conn. 641, 645 (2003).

Burke, Richard E., J.