Kathleen Emery v. Clifford Emery (2011)

MEMORANDUM OF DECISION

I

BACKGROUND

The marriage of the parties was dissolved by the court, Brennan J., on October 12, 2004.   Pursuant to their dissolution agreement, the defendant is required to pay alimony in the amount of $1,300 per month for a period of eight (8) years.   The amount of alimony is modifiable;  however, its duration is not modifiable, unless the plaintiff remarries.   On June 2, 2011, the parties appeared for a hearing on three motions.   The first was the defendant's motion to modify alimony, No. 127, filed with the court on February 14, 2011.   The second was the plaintiff's motion for contempt, No. 128, filed on March 16, 2011.   The third was the plaintiff's motion to dismiss, No. 132, which was denied by the court for reasons set forth in the record of the proceedings.

The defendant asserts in his motion to modify that the circumstances of the parties have changed substantially since the time of the dissolution, both financially and in that the plaintiff is now cohabiting with Dr. Thomas O'Connor in Florida, under circumstances giving rise to a modification pursuant to General Statutes § 46b–86(b).  The court agrees.

At the time of the dissolution, the parties earned comparable income, with the plaintiff earning gross weekly income of $1,121, netting her $660 per week.¹  The defendant earned gross weekly income of $1,200, with net income of $800 per week.   The cash value of the plaintiff's assets upon the dissolution was $277,909 and those of the defendant totaled $182,326.

According to the plaintiff's current financial affidavit, she receives slightly higher net weekly income now of $733, resulting from several sources of unearned gross weekly income, including unemployment compensation in the amount of $519, alimony of $302, as well as interest and dividends of $49 per week.   Although the plaintiff expects her unemployment benefit to end in August, she is currently eligible to receive social security payments of at least $1,424 per month, based upon her age last year of 63.   She nonetheless plans to wait two years until she reaches the age of 66 to receive a full social security benefit, which is generally consistent with the end of her alimony after eight (8) years.

The plaintiff testified that she voluntarily left her employment as a psychiatric nurse in Connecticut in June 2009, for which she had earned income of over $70,000 annually.   She made this decision after the terms of her employment were changed and she perceived the future with her employer as precarious.   Although she was able to earn a substantially equivalent income, her benefits were changed and, for all these reasons, she decided to discontinue her employment and look for work in Florida, as she was anticipating a move there with Dr. O'Connor.   Since her move to Florida, however, the plaintiff has been unable to find employment in her chosen field, despite her best efforts.   The court nonetheless finds her to be employable.

While living in Florida, the plaintiff's housing expenses have been paid for by Dr. O'Connor, who also regularly deposits $2,000 per month in their joint account for other living expenses, generally paid from this joint account by the plaintiff.   This support of $461 per week is in excess of her weekly alimony payments of $302.   At the time of the dissolution, the plaintiff had housing and utility expenses of approximately $350, which she no longer pays, compliments of Dr. O'Connor.

At the age of 67, the defendant has moved to South Carolina with his new wife and lives in her home where he pays several utility expenses.   He therefore no longer makes rent or mortgage payments of $349, as reflected on his financial affidavit at the time of his dissolution.   However, he earns somewhat lower net weekly income now of $658, compared with the time of the dissolution, derived from a social security payment of $494 and gross earned income of $269.   This earned income is from the defendant's wholly owned advertising business, which he credibly testified was generating far less gross revenue than at the time of the dissolution.   For example, several years after the dissolution in 2007, the defendant's business generated gross revenue of approximately $180,000, compared with $66,000 in 2010.   After expenses are paid for photography, printing and other business expenses, the defendant is unable to generate significant net revenue.   Although he has recently sought employment positions with several advertising firms, they have decided to hire employees who are half his age.   With his assets now totaling approximately $48,000, and with debts of approximately $68,000 including a $17,000 debt to his current wife, he has a negative net worth of approximately $20,000.

The plaintiff generally asserts that she is frugal, which accounts for her lack of debt and increased assets.   The defendant generally asserts that business conditions have deteriorated during the recent recession, along with his assets and net worth, leaving him all but bankrupt.   Supporting both these opposing assertions is the fact that the parties own the same automobiles today as they did at the time of the dissolution in 2004.   However, the court finds that, considering all of the evidence presented, the plaintiff's income and expenses have changed due to the support she receives from Dr. O'Connor, as well as her voluntary acts of moving to Florida, leaving viable employment and delaying access to her social security benefits.   The court further finds that the defendant's income is lower now than at the time of the dissolution and his assets are depleted.   Furthermore, his weekly payments, including those on debts, substantially exceed his income and this was not the case at the time of the dissolution, according to his financial affidavits.

II

DISCUSSION

The defendant seeks the modification of his alimony based upon two different statutory provisions.   The first is General Statutes § 46b–86(a) requiring a substantial change in circumstances.   The second is General Statutes § 46b–86(b) involving cohabitation under the lower threshold of a change in financial circumstances which need not be substantial.

A. Modification Based Upon a Substantial Change in Circumstances

In deciding whether to modify alimony pursuant to § 46b–86(a), the court must find a substantial change in circumstances with respect to one or both of the parties.  Borkowski v. Borkowski, supra, 228 Conn. 729, 737, 638 A.2d 1060.   Upon such a finding, the court is further required to take into account the general factors used to determine an initial order of alimony found in § 46b–82;  however, the court's “inquiry is necessarily confined to a comparison between the current conditions and the last court order.”  Id., at 738.

In this case, both parties have substantially changed financial circumstances.   The defendant's net income is approximately 25% lower than at the time of the dissolution and he is de facto bankrupt.   The plaintiff's income is approximately 10% higher, absent consideration of the regular gifts of living expenses, graciously provided by Dr. O'Connor and the availability of social security benefits.   Taken together, her potential income from all sources, if maximized today, has significantly increased since the time of the dissolution, not including free housing provided to her by Dr. O'Connor.   In significant contrast to the defendant, the plaintiff has no debts and owns assets valued at approximately $350,000.

However, the plaintiff's current financial circumstances are more precarious now than at the time of the dissolution.   Her unemployment compensation, for example, is scheduled to end soon and this motion to modify alimony, if granted, would leave her with only $49 per week in dividend and interest income, based upon the income she claims on her current financial affidavit.   Moreover, although her relationship with Dr. O'Connor is apparently intact, it is not formalized in matrimony with a corresponding legal duty of support.   However, absent alimony and unemployment compensation, and based instead upon regular gifts from Dr. O'Connor and her right to social security benefits, if exercised, the plaintiff would currently have income of approximately $790 per week.²  Absent tax consequences, if any, this represents more income than she now claims on her financial affidavit and more than the net income she earned at the time of the dissolution without considering the housing she receives, gratis, from Dr. O'Connor.

Although alimony is modifiable due to these substantial changes in circumstances, the modification of alimony in this case is ordered pursuant to the cohabitation provisions of General Statutes § 46b–86(b), infra.

B. Modification Based Upon Cohabitation

Pursuant to General Statutes § 46b–86(b), alimony may be modified or terminated upon a showing that the party receiving the periodic alimony is living with another person causing a change of financial circumstances.   “Essentially, subsection (b) of § 46b–86, following a finding that a party is living with another individual, allows the court to modify, reduce, suspend or terminate the payment of alimony if there is a corresponding change in financial circumstances.   Put another way, in cases involving the cohabitation statute, subsection (b) lowers the threshold predicate for the modification of alimony to situations where the court finds cohabitation and a change in circumstances so as to alter the needs of the party.   The higher burden required by § 46b–86(a) of a ‘substantial change’ in circumstances is lowered when there is cohabitation.”  Gervais v. Gervais, 91 Conn.App. 840, 852–53, 882 A.2d 731 (2005), cert. denied, 276 Conn. 919, 888 A.2d 88 (2005);  see D'Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996);  also see Kaplan v. Kaplan, 185 Conn. 42, 45–46, 440 A.2d 252 (1981).

“[O]nce the court finds (1) cohabitation and (2) a change in the financial needs of the party receiving alimony and cohabitating, the court should engage in the same analysis as with [46b–86(a) ];  that is, consideration of the § 46b–82 factors ․ Once those findings are made, however, a uniform application of the § 46b–82 factors is warranted and should be applied to a request for post-dissolution modification of alimony whether brought under either subsection.   The use of the § 46b–82 criteria serves to ensure that the court has an updated picture of the parties' financial situation.”  Gervais v. Gervais, supra, 91 Conn.App. 854.

“More specifically, these criteria, outlined in General Statutes § 46b–82, require the court to consider the needs and financial resources of each of the parties ․ as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.”  (Emphasis in original;  citations omitted;  internal quotation marks omitted.)  Crowley v. Crowley, 46 Conn.App. 87, 91–92, 699 A.2d 1029 (1997);  See General Statutes § 46b–82.³

The essential purpose of alimony stems from a duty to support a former spouse, with the amount and duration determined by the court after taking into consideration the applicable law and facts of the case.   In the present case, the court has previously found that the plaintiff is cohabiting with a gentleman who provides her with significant financial support, in excess of the alimony she receives from the defendant.   She is healthy and capable of employment, which she left voluntarily and moved to Florida.   Her current unearned income exceeds the income she earned at the time of the dissolution.   Based upon an analysis of the variables involved in the plaintiff's financial circumstances, as well as the defendant's higher expenses, lower income and depleted assets now, compared with the time of the dissolution, the court orders a modification of alimony to $1.00 per year until alimony either terminates pursuant to the judgment or is otherwise modified by the court.

C. Retroactivity

Having modified the defendant's alimony payment, the court must now consider the question of retroactive application.  General Statutes § 46b–86 provides, in relevant part:  “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50.”   Pursuant to the provisions of General Statutes § 46b–86, therefore, the court may retroactively apply the motion to modify to the date of service.   An order of retroactivity is, however, a matter within the court's discretion.  Cannon v. Cannon, 109 Conn.App. 844, 850, 953 A.2d 694 (2008).   In exercising this discretion, the court's order in this case is made retroactive to the date of the service of this motion, which was performed on February 25, 2011.

D. Motion for Contempt

There being no willfulness proven to the court or otherwise asserted at the hearing, the motion for contempt is denied.

SO ORDERED.

BY THE COURT,

Mark H. Taylor.   J.

FOOTNOTES

FN1. This net number results from both mandatory and non-mandatory deductions, such as for disability insurance and a thrift plan..  FN1. This net number results from both mandatory and non-mandatory deductions, such as for disability insurance and a thrift plan.

FN2. The plaintiff receives the benefit of approximately $2,000 per month from Dr. O'Connor, equaling $461 per week.   In addition, she has had the right to receive social security payments of $1,424, equaling $328 per week.   Together, these weekly amounts total $789..  FN2. The plaintiff receives the benefit of approximately $2,000 per month from Dr. O'Connor, equaling $461 per week.   In addition, she has had the right to receive social security payments of $1,424, equaling $328 per week.   Together, these weekly amounts total $789.

FN3. General Statutes § 46b–82(a) provides:  “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.   The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each 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 children has been awarded, the desirability of such parents securing employment.”.  FN3. General Statutes § 46b–82(a) provides:  “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b–81.   The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party.   The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.   In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each 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 children has been awarded, the desirability of such parents securing employment.”

Taylor, Mark H., J.