Karen B. Shaulson v. David A. Shaulson (2011)

MEMORANDUM OF DECISION

This action comes before the court on the defendant's Motion to Modify (# 301) filed February 27, 2009.   While a number of plaintiff's motions for contempt, for award of attorneys fees and for orders were also set down for hearing it was clear from the remarks of counsel and from further review of the record that the various motions of plaintiffs should be deferred until resolution of the defendant's motion to modify.   The motion to modify came before the court in a somewhat unusual context.

Procedural Background

The parties herein were divorced by the court (Gordon, J.) on May 12, 2008.   The decision of the court, as described the defendant husband, was overwhelmingly in favor of the plaintiff wife.   That decision resulted in a series of postjudgment proceedings including a clarified and corrected memorandum of decision, dated May 22, 2008, several post judgment motions and an appeal.   Of immediate interest to this court is the history of proceedings with regard to the award of unallocated alimony and child support.

At the time of the May 12, 2008 decree, the defendant husband was ordered to pay to plaintiff the sum of $40,000 per month in unallocated alimony and child support.   On September 30, 2008 the defendant moved the court (# 's 272/276) for modification of this award on the basis that he had insufficient income to pay $40,000 per month to plaintiff.   The motion stated, for the reason, “the financial markets have ground to a halt ․ substantially decreasing [defendant's] income.”   Shortly thereafter plaintiff filed a motion for contempt (# 279) claiming that, other than modest payments, the defendant had willfully failed to make the required alimony and support payments.   On November 24, 2008 the court (Gordon, J.) heard, inter alia, the defendant's motion to modify and plaintiff's motion for contempt, based on financial affidavits dated in late November 2008 (# 's 280 & 281).   At the conclusion of the hearing, the court found the defendant in contempt and ordered his incarceration, but allowed the defendant two weeks first to purge the contempt.

On December 8, 2008 the court (Gordon, J.) ruled on a number of motions primarily addressing the issues of contempt and satisfaction of various court ordered obligations of the defendant.   The court also however, granted the defendant's motion to modify alimony and child support and ordered that, beginning with the December 8 payment, it be reduced from $40,000 to $30,000 (# 287).

The instant motion of the defendant was filed February 27, 2009.   It seeks a further modification of the court-ordered alimony and support.   The basis for this motion is the professed continuing inability of the defendant to pay even the reduced alimony and support of $30,000 due to a continued deterioration in his income and business.   The defendant's motion to modify was heard on October 9 and October 16, 2009 before the Honorable Marylouise Schofield.   After the record was closed and the motion submitted, the court was ultimately unable to render a decision and the matter was mistried on July 29, 2010.

On September 24, 2010 the motion to modify was reclaimed and presented to the court.   At the hearing, there was significant disagreement between the parties as to how the court should proceed with regard to the pending motion.   It was the defendant's contention that he was entitled to consideration of his motion to modify based upon the facts and circumstances before the court in October 2009 and any consideration of the motion based upon information or evidence thereafter would be a violation of the defendant's rights.   Ultimately, the parties agreed that defendant's motion to modify should be submitted to the court based on the record of proceedings and transcripts from October 2009.   The defendant did stipulate that in the event the matter was considered based upon the facts and evidence before the court in October 2009, any claim of procedural error would be waived.   Plaintiff agreed to this.

Accordingly, the parties were directed to submit copies of the relevant transcripts and this court undertook a review of the transcripts of proceedings from October 2009 and a review of all the evidence, testimony and financial affidavits before the court at that time.

Findings and Decision

The threshold issue in any motion seeking modification of court-ordered support obligations is whether the moving party has established “a showing of substantial change in the circumstances of either party.”  Conn. Gen.Stat. § 46b-86(a).

A set of changed circumstances “is a condition precedent to a party's relief.”  Borkowski v. Borkowski, 228 Conn. 729, 738 (1994).  Section 46b-86, Conn. Gen.Stat., moreover, requires that the change in circumstance be “substantial,” a requirement which means “the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold [a] party to it.”  Borkowski, 228 Conn. at 738.   This burden rests upon the party seeking modification.  Lowe v. Lowe, 47 Conn.App. 354, 359 (1997).

Especially pertinent here is the requirement that the change in circumstance asserted must have occurred since the time of the last court determination of the amount of alimony or support ordered.   See Borkowski, 228 Conn. at 735-36.  “Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted.”   Borkowski, 282 Conn. at 736 (quoting from H. Clark, Law of Domestic Relations (1968) § 14.9 at 456).  (Emphasis added.)   See also, Spencer v. Spencer, 71 Conn.App. 475, 481 (2002).

The threshold issue then is whether based on the record in this case the defendant has carried his burden of showing such a substantial change since the entry of the last modification on December 8, 2008.

The court in this case has thoroughly searched through the record to determine what evidentiary basis could exist to support a finding of a substantial change in circumstances.   The most obvious to begin that process is in a comparison of the grounds asserted in the respective 2008 and 2009 motions for modification.   A review of the February 27, 2009 motion (doc. # 301) describes the basis for both the 2008 and 2009 motions to modify as largely the same:  a drop in the condition of the overall financial markets and the resulting reduction in the defendant's income.   Basically, the claim of the defendant was that, in the few months between the December 2008 modification and the February 2009 motion, this deterioration had continued and a further reduction from the already modified alimony and support payments was called for.

The court also considered a comparison of the financial affidavits submitted in the 2008 and 2009 hearings.   While the defendant's October 2009 financial affidavit did show a significant drop in his monthly gross income, the court did not find any support or detail presented in the record to support this change.   The defendant's testimony was largely conclusory and devoid of any detail or support for the claimed change.   In fact, the only attempt to provide detailed information as to the earned income of the defendant was presented in defendant's Exhibit A, an Addendum to Financial Affidavit, that presented specific information as to the sources of income of the defendant, albeit apparently for 2008.   While the court found this evidence was specific and helpful, it does not appear that such evidence actually supports any substantial change in the defendant's circumstances.¹

Plaintiffs Exhibit 7, a Further Articulation dated July 2, 2009, sets out the basis for the court's 2008 modification.   There the court (Gordon, J.) had found the defendant's earning capacity to be $675,000.   This number was based upon the court's recognition of a substantial decrease (approximately 25%) in the ability of the defendant to market financial products, exactly the basis claimed by the defendant in 2009.

A comparison of the $675,000 earning capacity of the defendant in December 2008 with the $705,354 earned income shown in the October 1, 2009 Addendum to Financial Affidavit simply does not support a claim of substantial change in circumstances.   Again, the court notes that while the Addendum showed income “earned” in 2008, this was the only evidence in the record found reliable by the court from which to ascertain defendant's 2009 income.

It should be noted at this point that the function of this court is not to second-guess the wisdom or exercise of discretion in prior determinations of the defendant's support obligations.   This court is not prepared to substitute its opinion of what might be an appropriate number for alimony and child support for many reasons.   The most fundamental of which is that absent a demonstration of a substantial change in circumstance, this court is without any legal authority to do so.

In conclusion, after consideration of the entire record, and independently assessing the credibility, accuracy and veracity of the evidence, including the defendant's testimony, the court is of the conviction that there is simply insufficient evidence upon which it can find any substantial change in circumstance from the prior modification.   Accordingly, the court is required to and does deny the motion of defendant to modify the current level of unallocated alimony and child support set at $30,000 per month.

Done this 28th day of January 2011.

BY THE COURT

WENZEL, J.

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. While the Addendum also offered “estimates” of expenses and taxes, to reach a claimed net income, the court did not find these items credible or to significantly change the net income..  FN1. While the Addendum also offered “estimates” of expenses and taxes, to reach a claimed net income, the court did not find these items credible or to significantly change the net income.

Wenzel, William, J.