Shirley Corey v. Ralph Corey (2011)

AMENDED MEMORANDUM OF DECISION RE CORRECTION TO YEAR ABOVE ONLY

MEMORANDUM OF DECISION RE MOTION # 136

After 33 years of marriage the parties were divorced in an uncontested proceeding on November 15, 1994.   A separation agreement signed by parties was approved by the court and incorporated into the decree.   The agreement provided, among other things, for the Husband to pay to the Wife alimony in the amount of $254.00 per week until the death of either party, the Wife's remarriage, or her cohabitation as defined by Connecticut statute.   It did not expressly prohibit modification.

On January 2, 2003, the court issued a memorandum of decision on a Motion for Modification (# 128) filed by the Husband seeking to have alimony reduced or terminated.   In the decision, the facts of the case were discussed at some length by the court before the relief requested in the motion was denied.

In the instant motion which was heard on December 20, 2010, the Husband again requested that the alimony be modified claiming that he has now turned 70 years of age, has no earning capacity, and that the plaintiff's income has increased.   By law, the court must look to the financial situation of the parties at the last hearing for modification compared to the present day situation, as well as what, if any, change in circumstances have occurred since that date.  Borkowski v. Borkowski, 228 Conn. 729 (1994).

The Connecticut General Statutes § 46b–86(a) provides that “Unless and to the extent that the decree precludes modification ․ any final order for the periodic payment of alimony ․ may at any time thereafter ․ be altered or modified by said court upon a showing of a substantial change in circumstances of either party.”

This statute has been construed many times with our appellate courts always exhibiting a preference for modification.   And well they should because it is axiomatic that people's lives change-what might be appropriate one year might not be the next.

In the instant case, when the parties were divorced 17 years ago, they had different lives than they have today.   Likewise, they have different lives today than they had eight years ago when the defendant last sought a modification.   The biggest difference today is the deterioration of the defendant's health which clearly precludes him from obtaining employment at the age of 70 years.   He has undergone knee and shoulder surgery and has continuous pain in those parts of his body.   He also suffers from arthritis and is obviously hard of hearing.

One can fault him for not being as frugal as he might have been.   As a result of poor choices, his asset situation has deteriorated substantially.   However, the economy, no fault of his, also contributed to the decline in his assets.   He is fortunate to have remarried and has a working wife to help him meet his obligations.   The court is mindful of her regular contributions to their joint living expenses.

To her credit, the plaintiff was frugal and did make good choices.   She was also fortunate in receiving an inheritance from which she is able to supplement her income.   One can also sympathize with her for the fact that she entered into a contract, after a 33–year marriage, to receive life time alimony.   That contract, which waived her right to receive any of the Husband's pension ($239.00 per week according to his financial affidavit), was found to be fair and equitable and was incorporated into the dissolution of marriage decree.

Nevertheless, some modification is warranted based upon the Husband's unemployability due to his age and the deterioration of his health.   Alimony is reduced to the sum of $175.00 per week effective immediately.

CUTSUMPAS, J.T.R.

Cutsumpas, Lloyd, J.T.R.