Michele L. McGurk v. Chester C. McGurk (2010)

MEMORANDUM OF DECISION

The plaintiff initiated this dissolution by filing a summons and complaint with the court with a return date of May 23, 2003.   On September 26, 2003, the parties went to judgment on an uncontested basis.   Their Agreement and Stipulation of even date was incorporated by reference into the judgment.   On November 25, 2009 the plaintiff filed a Post-Judgment Motion for Modification of Alimony (# 129).   On January 26, 2010 both parties appeared with counsel for a hearing on the plaintiff's motion.

The issue presented to the court is one of first impression.   The court is being asked to determine an alimony order to take effect in the future based upon current financial information that the plaintiff sought from the defendant by the issuance of a subpoena duces tecum.   The defendant filed a Motion for a Protective Order (# 130) on January 26, 2010, the date of the hearing.

The agreement of the parties contains the following relevant provisions.   Paragraph 3 titled “Property Settlement” required the defendant to pay the plaintiff the sum of $3,000 per month beginning with the month of October 2003 and continuing through and including the month of September 2010.   The payments were in consideration of the plaintiff relinquishing all of her rights in a family business.   The payments were non-taxable to the plaintiff.   At the time of the hearing counsel agreed that the defendant had paid the amounts in a timely manner.   Paragraph 5 titled “Alimony” required the defendant to pay periodic alimony to the plaintiff of $1 per year.   There were provisions for termination but the relevant one was termination on December 31, 2017.   However, said paragraph also contained a provision for modification with a “second look” de novo at the time (emphasis added) the property settlement was no longer being paid, whether by reason of default by the defendant, or successful completion of the term of the installments.   The final installment is due and payable in September of 2010.

The plaintiff is in ill health and her condition continues to deteriorate.   She likely will be facing extensive medical bills in the near future.   Not knowing what alimony she will be getting after the September 2010 installment is stressful and adds to her medical condition.   Following the hearing counsel were ordered to file briefs, which they have done.   The plaintiff urges the court to exercise its equitable powers and determine the amount of alimony she can expect to receive when the property installments are completed.   The defendant claims that the de novo review cannot take place until the final property installment is made.   Even if current financial information as of the date of the hearing had been made available to the court, such information may not be the same as at the end of September 2010.   The plaintiff is further concerned that if the process for a de novo review doesn't commence until the end of September 2010, she may have to wait a period of time to learn what amount, if any, the court would order and this would increase the stress she is under.

The court has considered all of the information in the file, the arguments of counsel and their briefs.   The court finds it is without jurisdiction to rule on the plaintiff's motion for modification.   However, the court can order the following:

1. On September 1, 2010, the defendant shall furnish the plaintiff copies of the documents listed in plaintiff's subpoena.

2. On September 1, 2010, the parties shall exchange current financial affidavits duly notarized.

3. A hearing has been scheduled for 10:00 a.m. on September 15, 2010, to hear the motion for modification.

4. Any modification of alimony shall be effective as of October 1, 2010.

SO ORDERED.

BY THE COURT,

CARUSO, JTR

Caruso, John R., J.T.R.