John Applegate v. Elizabeth Applegate (2010)

MEMORANDUM OF DECISION

The issues presented to this court are set forth in plaintiff's Post-Judgment Motion for Modification (# 116, dated September 13, 2010).   Plaintiff claims a substantial change in circumstances warranting a reduction in the amount of alimony he is court ordered to pay.

The parties were married on April 9, 1994 and divorced on December 9, 2008.   The parties, both of whom were represented by counsel, reached an agreement at the time of their marriage dissolution.   This agreement provided, in relevant part, that plaintiff would pay periodic alimony to defendant in the amount of $2,330 per month for a period of 60 months, commencing January 1, 2009.   At that time plaintiff was employed as a full-time sales representative by Salem Mobility.   His full-time employment with that company continued until his retirement.   He has college degrees both in chemistry and in business.

Plaintiff cites his retirement from that employment as the substantial change in circumstances warranting a reduction in his court ordered periodic alimony.   Plaintiff voluntarily retired from his employment on October 1, 2010.   Although plaintiff would like this court to believe that his decision to retire was based upon health reasons, there is no objective evidence to support that contention.   His letter of retirement makes no reference to health factors.   He did not cite the stresses of his job as a factor in his decision to retire and he never asked his employer for other opportunities in the company that might have altered his job requirements.   In responding to his retirement letter, his personnel manager wrote “you have been a great asset to our company, and we hate to see you leave.”

Plaintiff does have diabetes, but that condition existed at the time of the divorce.   There is no evidence, other than plaintiff's testimony, that his condition has worsened or that he is unable to work as a result of his diabetes.   In fact, the medical evidence presented does not show any correlation at all between his diabetes and his claimed inability to work.   Plaintiff's testimony in this regard was simply not credible and was not supported by the evidence.

Plaintiff also claims that he should not have to work any longer, as he is now reached the age of 75 and should be able to retire at this age.   He testified before this court that he anticipated retiring at some point in time after his divorce proceeding.   Nonetheless, at that time he voluntarily agreed to pay alimony to defendant for a period of five years.   His belief that he can now avoid those obligations by simply retiring from his job is not based upon law or reason.   Plaintiff's reliance on Kemsley v. Kemsley, 1997 Conn.Super. LEXIS 3364 (December 16, 1997) is misplaced as there was (among other things) a specific finding in that case that the obligor did not voluntarily retire, but rather the business could no longer support his employment.

This court has specifically considered the relevant statutory provisions and case law affecting the issues in this case as well as the testimony and evidence presented by the parties.   The plaintiff has failed to satisfy the court that he has met his burden of proof.   He has simply not provided the court with any credible evidence of a substantial change in circumstances which has not been created by his own actions.

Plaintiff's motion for modification is hereby denied and dismissed.

RESHA, JTR

Resha, Robert T., J.T.R.