Annette Jungnelius v. Jarl Jungnelius (2010)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO OPEN AND MODIFY (155)

The plaintiff, who was a resident of Mystic, Connecticut, initiated this action for dissolution of marriage with a complaint that was returned to the court on March 17, 2009.   At that time, the defendant also resided in the marital home in Connecticut.   At the time of dissolution, the plaintiff resided in the marital residence in Connecticut with their minor child and the defendant was working in Switzerland but maintained a residence in his native Sweden.

A limited contested trial was held before the undersigned on April 22 and 23, 2010.   Both parties appeared at trial and were represented by counsel.   The court issued its memorandum of decision on May 21, 2010 and entered financial orders that the defendant husband pay alimony, child support, maintain medical insurance for the wife and that he maintain his existing life insurance.   The alimony order is $3,600 per week or $187,200 per year for five years before it decreases to $3,000 per week for seven years.   The child support order, pursuant to the child support guidelines calls for $473 per week or $24,596 per year.

The parties appeared before the court relative to the defendant's postjudgment motion for modification (number 155) requesting that the court reduce the alimony award.   The request that the court modify the child support award is deemed abandoned inasmuch as the defendant states in his memorandum of law at page 5, “the child support figures of $473 per week is appropriate.”   Additionally, the defendant is deemed to have abandoned his claim that the sale of the marital residence justifies a modification as there was no evidence elicited or arguments made on that subject.

The only ground for the motion to open and modify apparently is the claim that “the plaintiff has received specific written notice of the tax consequences of his income in Switzerland.”

At the postjudgment hearing, the defendant testified that he is unable to meet his court ordered obligations;  that his COBRA cost for his ex-wife's health insurance is $1560 a month or $18,720 per year, and that his life insurance is $260 per month or $3,120 per year.   He testified that he is meeting his financial obligations by drawing down from his savings.

The defendant was asked on direct examination to opine as to the deductibility of alimony under Swiss law and to describe the Swiss income tax rates to which he is subjected.

The plaintiff objected to the first question as calling for expert opinion and the court sustained the objection.   Regarding the second question, the defendant testified that he was unsure as to the amount of the Swiss income tax rates to which he is subjected.   The defendant further testified that his court-ordered alimony, medical insurance for the wife, life insurance premiums and child support amount to $233,636 per year out of his gross earned income which has fluctuated between $482,000 in 2008 and $439,000 in 2009.   It should be noted that these figures do not take into account any income realized from the many bank accounts, stock accounts and investments.

At the underlying divorce trial, the court found that the husband earned $439,000 in 2009 and $482,000 in 2008.   In his own child support guidelines worksheet dated May 24, 2010, he showed a gross weekly income of $9,664 or $502,528 per year.   The parties had assets in excess of $1,700,000.   The wife was a nurse by training but had not worked in many years and was the primary caregiver of their minor child.   At the time of trial, the defendant offered no evidence as to the taxability of income or the deductibility of alimony, life insurance premiums for health insurance premiums under Swiss, Swedish or American law.   There was no evidence elicited as to which nation would tax the defendant's income.   Moreover, the plaintiff did not furnish the court with what would be the expense of the COBRA health insurance premium.  (Defendant's Memorandum of Law, page 6.) Finally, while the defendant complains that “the court awarded her $354,000 of the marital assets off of the top, before the remainder was divided equally” (Memorandum of Law, page 4), this was precisely the suggestion taken from the defendant's amended proposed orders (number 13) as called for in their premarital agreement.

The question presented is whether the defendant is entitled to a modification of the alimony order entered on May 21, 2010.   It was not argued that there has been any change in circumstances since the date of dissolution but rather, that the impact of Swiss tax law, none of which was offered to the trial court at the time of the dissolution trial, renders these orders unfair or oppressive.   The defendant has presented no admissible evidence regarding the impact of the taxability of his income or of the deductibility of the defendant's alimony payments then or now.

The primary obstacle to the defendant's requested relief is that he offered no evidence to the trial court on the issue of Swiss, Swedish or American tax law even though such information was readily available.   It is noteworthy that the defendant flew in from Stockholm, Sweden, a Swedish attorney who testified as to jurisdictional issues as they pertain to Swedish dissolution matters.   Four days after the close of the evidence, the defendant filed a motion to reopen evidence asking the court to allow him to introduce evidence regarding the tax consequences of an alimony or child support order in Sweden, Switzerland or the United States.   The court denied said motion.   No appeal was taken from that ruling.   Now comes the defendant with a motion to modify the judgment but the defendant neither pleads nor offers evidence that there has been a substantial change in circumstances.   The court was at the time of trial and still remains without any evidence before it as to what the tax impact of these orders will be or even which nation's tax laws will apply.

Sec. 46b-86 of the Connecticut General Statutes states:  “․ any final order for the periodic payment of permanent alimony ․ may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party ․”

“The party seeking modification bears the burden of showing the existence of a substantial change in circumstances.”  Mundell v. Mundell, 110 Conn.App. 466, 473 (2008), and a substantial change is limited to conditions arising subsequent to the dissolution.  Gay v. Gay, 70 Conn.App. 72, 77 (2002).

There has been absolutely no evidence as to what the Swedish tax laws were at the time of the dissolution or thereafter.   The defendant's bald assertion in his Memorandum of Law (page 5) that “he reports his income tax rate is closer to 45% to 50% now that he lives in Europe ․” is unsupported by the evidence and contradicted by his own testimony at the modification hearing wherein he testified that he was unsure as to the amount of the Swiss income tax rates to which he is subjected.

For the foregoing reasons, the motion to modify is denied.

Shluger, J.

Shluger, Kenneth L., J.