Elihu Rosen v. Michele Rosen (2010)

MEMORANDUM OF DECISION de PLAINTIFF'S MOTION FOR MODIFICATION POSTJUDGMENT (121)

The plaintiff has moved to decrease the unallocated order of alimony and child support currently $6,517 monthly due to his claim that his income has substantially decreased.

Judgment was rendered January 13, 2005.   A written separation agreement (111.10) was approved by the court and ordered incorporated in the judgment.   The unallocated order was modified by stipulation dated, approved and so ordered on August 7, 2006 fixing the current order.   His financial affidavit filed on said day listed gross monthly income of $14,055 and net monthly of $11,358 from his chiropractic practice and additional monthly from other sources of $1,235 a total net monthly income of $12,593.   His current affidavit (130) lists gross weekly income of $2,707, deduction for self-employment tax $348 and weekly net $2,359.

Conversion of the 2006 monthly gross to weekly is $2,908.   He has sustained a 19% reduction in his net weekly income.   He has proven that his income has sustained a substantial change in his financial circumstances.   The court, having examined the evidence, finds that a smaller order is appropriate.   He is now obligated to contribute to the support of one minor child, the older having attained 18 as well as having graduated from high school last year.   Combining the plaintiff's net income of $2,359 and the defendant's net income of $783, a total of $3,142 rounded to $3,140 calls for $418 weekly child support with the plaintiff's responsible for 75% or $314 or $1,357 monthly.

The plaintiff's motion for modification was served on the defendant by a marshal on April 8, 2010 thereby preserving his request for retroactivity if the current order is modified.  Shedrick v. Shedrick, 32 Conn.App. 147.

The plaintiff asserts that the defendant is cohabiting with a man in her home.   Section 3.8 of the parties' agreement makes the provisions of Conn. Gen.Stat. § 46b-86(b) applicable.   The statute requires proof that

․ the living arrangements cause such a change of circumstances as to alter the financial needs of that party.

The plaintiff did not allege cohabitation in his motion.   Evidence was taken without objection.   The plaintiff did not prove cohabitation as defined in Remillard v. Remillard, 297 Conn. 345 (2010), nor was there any evidence of alteration of financial needs of the defendant.

The unallocated order is modified as of May 1, 2010.   The plaintiff shall pay unallocated alimony and child support of $4,000 monthly to the defendant, first payment due on May 1, 2010.   Any overpayment that has occurred shall be adjusted by deducting $500 from each payment commencing on August 1, 2010 until full recovery has occurred.

So ordered.

BY THE, COURT

HARRIGAN, J.T.R.

Harrigan, Dennis F., J.T.R.