Leonard R. Revoir v. Patricia M. Revoir (2012)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO MODIFY ALIMONY (155)

This matter comes before the court by virtue of the defendant's postjudgment motion to modify alimony (155).   The court conducted a hearing on the motion on May 25, 2012.   Each party was represented by counsel at the hearing.   Pursuant to Practice Book § 25–59A the court ordered the financial affidavits of the parties be unsealed.

After considering the credible evidence and the applicable statutory and case law, including without limitation, case law cited herein, the court makes the following findings by a fair preponderance of the evidence and enters the following rulings, decisions and orders.

I

FACTUAL FINDINGS

The parties' marriage was dissolved pursuant to the judgment of the court entered on June 4, 2007.   Based on their financial affidavits the plaintiff was then earning $2,819 a week (which was an aggregate of the plaintiff's base salary and bonuses) and the defendant was earning $200 a week.   The judgment incorporated by reference an agreement of the parties pursuant to which the plaintiff agreed to pay alimony to the defendant in the amount of $700 a week for eleven years and one-half of his net bonuses for a period commencing on January 1, 2007 and terminating seven years thereafter.   The agreement further provides that each party is entitled to earn $25,000 a year in excess of their current base salary, not including bonuses and stock options, before the other party may seek a modification of alimony.

On April 15, 2008, the plaintiff lost his employment, but he received his full salary and benefits through July 31, 2008.   After a hearing on a motion to modify alimony filed by the plaintiff, the court, Epstein, J., found a substantial change in circumstance and granted the motion.   His alimony obligation was reduced to $50 a week.   He was ordered to give immediate notice to the defendant, through counsel, upon obtaining employment.

He obtained a position with IBM on or about December 9, 2010.

He verbally informed the defendant of his new position, but did not inform her through counsel.

The defendant did not advise the plaintiff of the fact that she had obtained a full-time salaried position which paid her more than $25,000 above her income as of the time of the divorce.   She currently earns approximately $1,030 a week.

The defendant's base salary is $140,000 per annum which is less than his base salary at the time of the divorce, but in 2010 and 2011 he earned more than his base salary through commissions:  in 2010 he earned approximately $165,000 and in 2011 he earned approximately $241,000.   To date, he has not earned any commission for the second quarter of 2012.   Year to date in 2012, he has received his base salary and approximately $26,000 in commissions through the end of the first fiscal quarter.   He is presently not working due to recent back surgery and is receiving only his base salary at this time.

After the plaintiff obtained his position at IBM, the parties agreed between them to modify alimony to $1,100 a month.   Neither party filed a motion to modify with the court, until the defendant did so on June 29, 2011.   The plaintiff was served with the motion on July 13, 2011.

The plaintiff, on or about the time the defendant filed her motion to modify, reverted to paying the court ordered $50 a week in alimony.

II

APPLICABLE LAW, ANALYSIS AND ADDITIONAL FINDINGS

“The burden is on the party seeking modification to show the existence of a substantial change in circumstances.”  Jaser v. Jaser, 37 Conn.App. 194, 204 (1995);  Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992);  see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (dismissing plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances).

Court orders must be complied with until they are modified by a court or successfully challenged.  Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).

Commissions are includable as income for purposes of determining alimony.   See, Cushman v. Cushman, 93 Conn.App. 186, 195, 888 A.2d 156 (2006);  Arena v. Arena, 92 Conn.App. 463, 466, 885 A.2d 765 (2005);  and Medvey v. Medvey, 83 Conn.App. 567, 575, 850 A.2d 1092 (2004).

Based on the credible evidence, the court finds a substantial change in circumstances due to the increase in the plaintiff's compensation from the date of the prior order to the present, due to his finding employment.

The court modifies the alimony to $400 a week or $1,720 a month.

In addition to said periodic alimony payments, the husband shall pay to the wife as additional periodic alimony, twenty percent (20%) of all commissions paid to him.   Said payment shall be based upon the gross commission paid without any reduction for FICA, Medicare, federal or state withholding taxes or any other deductions.   Within ten days of receipt of his commission, plaintiff shall make payment to the defendant and shall furnish her with copies of all relevant documents detailing said computations.

Commissions are defined as cash payments made by the defendant's employer and shall not include stock options, warrants, notes, loans or any other form of additional compensation.

The plaintiff has asked that the alimony award be retroactive to the date of service of the motion on July 13, 2011 and the court grants such request.

There have been ten months from July 13, 2011 to May 13, 2012 and approximately 2.5 weeks from May 13, 2012 to May 31, 2012.

Alimony at $1,720 a month ($400 a week) for ten months equals $17,200, plus the product of 2.5 times $400 (or $1,000)—for a total alimony obligation from the plaintiff to the defendant for July 31, 2011 to May 31, 2012 of $18,200.

Alimony at $50 a week (which is what the plaintiff has been paying) equals $215 a month.   Ten months at $215 is $2,150, plus the product of 2.5 times $50 (or $125)—for a total of $2,275 in alimony paid (or to be paid for the last week in May 2012) by the plaintiff.   The plaintiff for retroactive alimony owes the difference between $18,200 and $2,275 or $15,925.   Except for the commissions earned in 2012, the court is not ordering that the plaintiff pay any additional amount of alimony for the commissions paid prior to December 31, 2011.

The court orders the plaintiff to pay the defendant as additional alimony 20% of the gross amount of the commissions received in 2012—which equals $5,200 in additional alimony.   The total arrearage in alimony is found to be the sum of $15,925 plus $5,200 or $21,125.

The plaintiff has also requested an award of interest.   The court denies that request as an award of interest on retroactive modification of alimony is improper.   See Crowley v. Crowley, 46 Conn.App. 87 (1997).

The plaintiff has also requested an award of attorneys fees.   The court in considering the equities of the matter denies the request.

The motion to modify alimony (211) is GRANTED.

III

ORDERS

1. The plaintiff's obligation to pay alimony is modified as of July 13, 2011 to $400 a week.

2. The defendant is ordered to pay the arrearage of $21,125 by paying a lump sum amount of $5,200 on or before June 30, 2012 and by paying an additional amount of $150 a week, until the arrearage is paid in full.

SO ORDERED.

BY THE COURT,

Olear, J.

Olear, Leslie I., J.