Scott C. Sartorius v. Elizabeth D. Sartorius (2010)

MEMORANDUM OF DECISION ON MOTION TO MODIFY ALIMONY

The defendant in the above captioned case has filed a Motion to Modify an alimony order rendered at the time of the parties' dissolution on March 15, 2002.   In that motion, the defendant alleges that there has been a substantial change in the plaintiff's financial circumstances warranting a modification of alimony.

FINDINGS OF FACT

Brief History

The parties were granted a dissolution of their marriage on March 15, 2002, ending a twenty-one-year marriage, the last two to three years of which the parties lived separately.   As per the decree, the parties agreed to a shared parenting schedule of the three minor children which was equal, except for every Sunday night when the children would return to their mother's home.   Child support was awarded to the defendant in the amount of $40,000 annually for the three children, reduced as each child attained the age of 18 years.   Miscellaneous costs were divided with the plaintiff to pay 60% and the defendant to pay 40%.   Camp expenses were to be divided equally.   The plaintiff was responsible for all of the children's educational expenses.

That judgment further provided that the plaintiff would pay $75,000.00 per year in alimony to the defendant which would be reduced to $65,000.00 upon the sale of the Quogue property in Long Island, which ultimately occurred.   The judgment also provided that the alimony would terminate upon the death of either party or remarriage of the defendant or the defendant attaining the age of 59 1/2, whichever event first occurred.   The alimony was non modifiable as to duration.

The alimony order was based, in part, on representations made by the plaintiff in his financial affidavit that he earned approximately $400,000.00 per year gross income as a financial investor with George Weiss Company.   In reality, as of December 31, 2002, the plaintiff had earned a gross income in excess of 1 million dollars for the 2002 year.   During that same period of time, the defendant earned approximately $32,000.00 per year gross income as a part- time employee with HARC.

With respect to the asset division, the agreed upon judgment provided that the parties' assets would be divided equally.   This division equated to the total sum of approximately 2.1 million dollars in assets allocated to each party.   This amount also included the additional $800,000.00 allocated to each party by virtue of the sale of the Quogue, Long Island property.

There was no provision in the dissolution judgment for a periodic exchange of financial information between the parties.   Within just a few years of the date of dissolution, the plaintiff relocated to the state of New York and the defendant became the de facto primary residential parent to the children who remained at home.   In the ensuing years, despite the change in the parenting plan and the plaintiff's increase in income, no request for modification of the child support or alimony orders was made by the defendant.

Caselaw

In order for this court to find that a modification of alimony is warranted, a two-pronged inquiry is required.   First, this court must determine whether there has been a substantial change in the circumstances of either party since the latter of the date of the dissolution judgment or last modification.   Hardisty v. Hardisty, 183 Conn. 253 at 259 (1981).   The party seeking the modification bears the burden of showing the existence of a substantial change in circumstances.  Mundell v. Mundell, 955 A.2d 99, 110 Conn.App. 466 (2008).   The Court may look not only at changes in income by either party to the divorce, but also at changes in assets, in order to assess whether there has been a substantial change in circumstances.  Gay v. Gay, 266 Conn.App. 641 (2003);  see also Gosselin v. Gosselin, WL 490115 Conn.Super., 2/8/06, and Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991).

Connecticut General Statute 46b-86 provides that financial orders are modifiable in the event of a substantial change in circumstances unless precluded by language in the divorce decree.   In the instant case, the dissolution judgment does not contain any precluding language.   Thus, the orders are modifiable in the event this court finds that there has been a substantial change in circumstances of either party.   When determining whether there is a substantial change in circumstances, the court is limited in its consideration to conditions arising subsequent to the entry of the dissolution decree.  Schorsh v. Schorsh, 53 Conn.App. 378, 382-83, 731 A.2d 330 (1999).

Once a trial court finds a substantial change in circumstances, it can properly consider the motion for modification of alimony.   The court then applies the statutory factors set forth in Conn. Gen.Stat. 46b-82.   Pursuant to this section, the Court “shall consider the length of the marriage, cause for the dissolution or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of the parties and the award, if any which the Court may make pursuant to Section 46b-81, and in the case of a parent to whom the custody of minor has been awarded, the desirability of such parents securing employment.”

1st prong:  Substantial change in circumstances

In March 2002, the Plaintiff filed a financial affidavit indicating that his annualized gross income was $400,000.   The defendant was working part-time for HARC making about $32,000 gross annual income.   By the end of that same year, the plaintiff had increased his annual gross income to $1,032,699.   By 2008, as a partner with George Weiss, his W-2 gross income was $5,194,168, although that year he had losses in his capital account due to market decreases.   In 2009, his W-2 gross income was $4,240,578 and he had significant gains in his capital account (increasing his overall income that year to over $9,000,000).   Based on his withholding and his projections for 2010, his total gross income will likely be $6,000,000 to $8,000,000.¹  Since 2002, the Plaintiff's W-2 gross income has increased more than 10 times over what it was at the time of dissolution.

The plaintiff's net monthly income at the time of the dissolution was $21,000.00.   At the time of the modification hearing, the plaintiff's net monthly income had increased to $311,000.00.   These amounts do not include capital gains, interest or dividends he received.   Further, the plaintiff received $2,100,000 in assets at the time of the divorce, as did the defendant wife.   His assets are now approximately $14,000,000.00, excluding any ownership interest he has in his three homes.

At the time of the dissolution, the defendant was employed part-time earning approximately $32,000 gross income per year.   She returned to school, earned Bachelor's and Master's degrees and is now employed full time earning a gross annual income of approximately $82,000.00.   While the Defendant has maintained her asset position at approximately $2,500,000, she has been able to do so due to an unexpected gain of over $400,000 from the sale of her horse farm and the gain of approximately $800,000 which both she and the plaintiff realized for their interest in the sale of the Quogue, Long Island beach house.

When this court considers and compares only the changes in the plaintiff's and defendant's net weekly incomes between the date of the dissolution and the date of the filing of the Motion for Modification, there is no question that the defendant has established that there has been a substantial change in the parties' circumstances.

Second Prong:  Application of the Statutory Factors

Once a determination has been made by this court that a substantial change in circumstances has occurred, the statutory factors set forth in Conn. Gen.Stat. 46b-82 are applied to determine what modification, if any, should occur.

This court has considered the relevant criteria set forth in the statute in determining whether a modification is warranted.   The plaintiff and defendant are ages 54 and 55 respectively and in good health.   They are each very bright and hard working.   At the same time, this court can only conclude that the plaintiff's income has significantly increased since the date of dissolution, that his present income far exceeds his needs and that he has ample opportunity to acquire additional assets in the future.

Conversely, the defendant works full-time in the private sector, sold her Granby horse farm when it became too expensive to operate, and has downsized her lifestyle to a home on 2 acres in Bloomfield, CT. That downsizing, which was necessary because she was no longer able to maintain horses or the vast acreage and property she previously owned, decreased some of her expenses.   To her credit and at her own expense, since the dissolution, she has enhanced her skills by pursuing her college degree from St. Joseph's College and an on-line Masters Degree.   Notwithstanding a shared parenting plan that evolved into a primary residence plan, the defendant educated herself and returned to full-time employment.

The defendant's financial needs as set forth on her financial affidavit are reasonable given her station in life but nevertheless exceed her income.   While there is no question that the plaintiff has been exceedingly generous with his three biological children and his new family, while increasing his income tenfold and accruing significant additional assets, the defendant has had little ability to do the same.   The orders set forth below will enable the defendant to resume the station in life and standard of living which she and the plaintiff enjoyed while married.   The Court further notes, that based on his reported income since the entry of the original decree, the plaintiff has not only maintained the standard of living which he enjoyed but, moreover, has significantly enhanced it.

ORDERS

Having found a substantial change in the parties' circumstances and having applied the statutory factors as required, and taking into account the tax consequences of a modification, this court makes the following orders:

1.  The plaintiff's alimony obligation to the defendant is modified to $225,000.00 per year.   This order is retroactive to the date of service on the Motion, January 23, 2010.

2. The plaintiff shall pay $42,605.00 in attorneys fees and $516.15 in costs to the defendant.

3. All arrearage amounts and attorneys fees are due and payable within 30 days.

4. All other orders in the judgment shall remain in full force and effect.

SO ORDERED.

BY THE COURT,

Prestley, J.

FOOTNOTES

FN1. Although gross income figures are referenced in this decision, this court has based its orders on net income figures only..  FN1. Although gross income figures are referenced in this decision, this court has based its orders on net income figures only.

Prestley, Linda Pearce, J.