Susan Winters v. Bruce Winters (2011)

ARTICULATION IN ACCORDANCE WITH ORDER FROM APPELLATE COURT DATED SEPTEMBER 14, 2011

The plaintiff appellant filed a Motion for Articulation dated March 4, 2011, seeking five articulations of the court's order dated February 18, 2011.   This court denied the motion on March 14, 2011.   The plaintiff filed a Motion for Review with the Appellate Court on July 21, 2011.   On September 14, 2011, the Appellate Court granted the Motion for Review and, in part, granted the relief requested.   This court was ordered to articulate the factual and legal basis for its finding that there was no substantial change in circumstances in this case, including (1) what income it attributed to the husband since the date of the parties' dissolution and (2) how the court categorized the funds received by the husband from his new wife.

At the hearing on the plaintiff's postjudgment motion to modify child support and alimony, the plaintiff argued that the discrepancy between the defendant's expenses and his income demonstrated an earning capacity in excess of his reported income.   The plaintiff asked the court to impute income to the defendant.  “Lifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.”  (Internal quotation marks omitted.)  Carasso v. Carasso, 80 Conn.App. 299, 304, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004).   The defendant testified that he had done some consulting work post-divorce but had no other source of income.   The defendant testified that he was actively seeking employment but, to date, had been unsuccessful.   The plaintiff provided no credible evidence to the contrary.   See Hart v. Hart, 19 Conn.App. 91, 95, 561 A.2d 151, cert. denied, 212 Conn. 813, 565 A.2d 535 (1989) (“[i]t is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field”).

The defendant testified that he paid his expenses, approximately $3,000 per month, from his assets, and provided the court with an attachment to his financial affidavit listing $20,000 of cashed-in investments.  “The mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income.”   Denley v. Denley, 38 Conn.App. 349, 353, 661 A.2d 628 (1995).   The plaintiff argued that the defendant's assets increased and that was evidence of unreported income.  “Only in cases of fraud can a modification be based on an increase in the value of assets.”  Simms v. Simms, 25 Conn.App. 231, 234, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).   The plaintiff provided no evidence of fraud.

The plaintiff also argued that the funds received by the defendant from his new wife were gifts and should be included as income.   The defendant testified that he borrowed just under $49,000 from his new wife for payment of living expenses.   The defendant listed the debt on the attachment to his financial affidavit provided to the court.   The defendant provided credible evidence of bona fide loans.   The plaintiff provided no specific, credible evidence on which the court could conclude that the funds provided to the defendant were gifts, not loans.   See Zahringer v. Zahringer, 124 Conn.App. 672, 6 A.3d 141 (2010) (funds received by the plaintiff from her father were properly characterized as loans, not a series of gifts, where there was credible evidence that the plaintiff was required to repay the funds).

The court was presented with credible evidence from the defendant and determined that conventional methods for determining the defendant's income were adequate.   The plaintiff did not present specific, credible evidence showing that the defendant had increased income, but merely speculated that the defendant had unreported income.

Marano, J.

Marano, Richard M., J.