Ruth Cohen v. Franklin Cohen (2012)

CORRECTED MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION (# 164.01), POSTJUDGMENT (Original Decision Dated September 8, 2011)

On September 8, 2011, the court granted the defendant husband's (“husband”) Motion for Modification (# 164.01) by way of a Memorandum of Decision (# 179.00) as on file.   Subsequent thereto, the plaintiff wife (“wife”) filed separate motions to reargue and to reopen.   After review, the court allowed reargument, and following a hearing on December 2, 2011, granted the Motion to Reopen and Vacate (# 183.00) and scheduled the matter for further hearing in order to introduce new evidence.  (TR. 3/7/12 @ 12.)   That hearing took place on March 7, 2012, at which time the court also heard argument of counsel.

To restate the salient facts:  The marriage of the parties was dissolved by decree of this court on January 4, 2002.   At the time of the decree, the parties entered into a Separation Agreement (# 118.10) dated December 31, 2001, which provided, inter alia, that the husband pay to the wife unallocated alimony and child support as a percentage of his income.   At the time of the decree, the parties had one minor child, Andrew Cohen, born August 14, 1986.   The parties were awarded joint legal custody, with the child's principal residence with the husband.¹  Andrew has since reached his majority.

The wife is employed by the Stamford Board of Education.   At the time of the decree dissolving the marriage she was unemployed, and her financial affidavit reflected no net income.   According to her current financial affidavit March 2, 2012, as on file, her net income from employment is $392.09 per week, together with net investment income of $581.00 per week, for a total of $973.09 per week.   She described her present state of health as “fairly healthy,” although she told the court that she has “issues,” including Crohn's Disease, Osteoporosis, and glucose intolerance.   None of these conditions prevents her from working on a regular basis.

For his part, the husband has been employed as a mortgage broker in the area of commercial real estate.   At the time of the decree dissolving the marriage, the husband's net income from employment was $2,425.48, per week, together with an additional amount of net partnership income of $536.50 per week.   According to his current financial affidavit, the husband's net income from employment is $1,095.65 per week, together with $57.00 per week in interest and a loss on a rental property of $24.00 per week.   The husband is 62 years of age and described his health as “generally good.”   Although he went on to describe a variety of ailments, including mitral aortic re-gurge and hyperthyroidism, he told the court that they did not prevent him from working.   The husband has since remarried.

In brief, the wife claims that the husband's net income was understated at the time of the original hearing on the motion to modify, and that, at that time, he actually had substantial monies presently due him from his ongoing efforts.   For his part, the husband, through counsel, pointed to the cyclical nature of his business and the length of time from the start of his efforts to receipt of his fees.   He argued that the court should take the long-term approach to calculating his net income, and not simply a twelve-month snapshot.   The court believes that under all the circumstances, including the testimony of the husband as to the length of time each transaction takes from initiation to completion, a two-calendar-year period would be appropriate.

RESTATED AND CORRECTED FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes § 46b–82 and 46b–86, hereby restates and corrects its findings as follows:

1. That an award of periodic alimony may be modified upon the demonstration of a substantial change of circumstances, unless the order itself clearly precludes modification.  General Statutes § 46b–86(a);  Borkowski v. Borkowski, 228 Conn. 729, 737 (1994);  Spencer v. Spencer, 71 Conn.App. 475, 481 (2002);  Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999).

2. That the decision to grant retroactivity is within the sound discretion of the court, and where retroactivity is sought pursuant to General Statutes § 46–86(a), motions for modification of alimony must be served in accordance with General Statutes § 52–50;  that the purpose of that provision is to accord due process to the other party.  Shedrick v. Shedrick, 32 Conn.App. 147, 151–52 (1993);  that the motion for modification was served on the wife on July 6, 2010;  and that it is equitable and appropriate that the court grant retroactivity to August 1, 2010.

3. That both parties have asked the court to enter an award of periodic alimony based upon a percentage of the husband's income;  that the court has considered this option and has declined to craft its order on that basis;  and “that the power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage ․ These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute.”  Porter v. Porter, 61 Conn.App. 791, 797 (2001).

4. That periodic alimony orders must be based upon the net income of the parties.  Morris v. Morris, 262 Conn. 299, 306 (2003);  Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001);  that based on the financial affidavits of the parties, the net income of the wife is $973.09 per week;  and that the net income of the husband is $1,310.34 per week; ²  and that, however, under all the facts and circumstances of this case, it is equitable and appropriate to consider the earning capacity of the husband in making its orders regarding periodic alimony.  Hart v. Hart, 19 Conn.App. 91, 94–95 (1989).

5. That it is appropriate to calculate the husband's net income based upon his earnings for the period January 1, 2010 through December 31, 2011;  and that, therefore, the earning capacity of the husband is $158,420.00 per annum;  that based upon the earning capacity of the husband, his net income is $2,163.00 per week.

6. That there has been a substantial change in circumstances since the date of the last order, in that:  (a) the wife is now employed and has additional income from investments;  (b) the husband is no longer paid in part by way of a monthly draw;  and (c) the minor child has now reached his majority.

ORDER

The foregoing Motion for Modification (# 164.01) having been heard, IT IS HEREBY GRANTED, AND IT IS HEREBY ORDERED THAT:

1. Commencing with an effective date of August 1, 2010, and on the first day of each and every month thereafter the husband shall pay to the wife the sum of $2,750.00 as and for periodic alimony, until the death of either party or the remarriage of the wife, or the entry into a civil union by the wife, whichever shall sooner occur.

2. The husband shall be entitled to a credit for any sums paid for the period August 1, 2010 to date, and in the event of a resulting overage or underpayment, as the case may be, and the parties are unable to agree upon a method of satisfying same, the court hereby reserves jurisdiction to enter an appropriate order.

THE COURT

SHAY, J.

FOOTNOTES

FN1. At the time of the initial decree, the court referred to the order as “unallocated” when, in fact, no child support was ordered based upon a deviation from the Child Support Guidelines..  FN1. At the time of the initial decree, the court referred to the order as “unallocated” when, in fact, no child support was ordered based upon a deviation from the Child Support Guidelines.

FN2. Husband's calculation does not take into account the loss on the Langshire rental property, as the expenses for same are shown on a separate schedule..  FN2. Husband's calculation does not take into account the loss on the Langshire rental property, as the expenses for same are shown on a separate schedule.

Shay, Michael E., J.