James D'Amato v. Martha D'Amato (2012)

MEMORANDUM OF DECISION ON POST–JUDGMENT MOTIONS FOR MODIFICATION

This matter came before the court on a post-judgment motion for modification filed by the plaintiff and a motion for attorneys fees filed by the defendant.   Plaintiff seeks to modify his alimony obligation, his obligation to maintain life insurance to secure his alimony obligation and to terminate orders pertaining to health and vehicle insurance for the benefit of the parties' daughter.   The plaintiff seeks retroactivity to the date of service of his motions.   As the basis of his motion the plaintiff alleges that there has been a substantial change in the financial circumstances of one or both of the parties and that the parties' daughter has reached the age of twenty-three (23).

A hearing was held on the motion over the course of two days on October 17 and 19, 2012.   Pursuant to Practice Book § 25–59A, the court ordered the financial affidavits of the parties to be unsealed.   The only witnesses called were the parties who were each represented by counsel.   The court observed the demeanor of, and evaluated the testimony and credibility of, each witness.   The court finds each of the witnesses to be credible.

The court has reviewed and considered the testimony, the exhibits, the sworn financial affidavits, the proposed orders, the parties' closing arguments and their post-hearing briefs.   Additionally, the court has carefully considered the statutory criteria set forth, inter alia, in General Statutes §§ 46b–81, 46b–82, 46b–84 and 46b–86 as well as the applicable case law in reaching the decisions set forth in the orders that issue in this decision.

The court finds the following facts by a fair preponderance of the evidence:

1. The parties were married on July 10, 1982 and divorced on February 18, 2010.

2. Pursuant to the terms of the judgment, the plaintiff was to pay the defendant alimony at the rate of $104,000 per year payable in weekly installments of $1,000 and quarterly installments of $13,000 for thirteen years unless sooner terminated by the death of either party or the defendant's remarriage or cohabitation.

3. Said alimony was non-modifiable as to the term.

4. Pursuant to the terms of the judgment, the alimony order was based upon the plaintiff earning $445,000 and the defendant earning $70,000.

5. At the time of the judgment the plaintiff was employed as an anesthesiologist and owned 1/7 of his medical practice known as Norwich Anesthesia Associates.

6. At the time of the judgment the defendant was employed at Lawrence & Memorial Hospital as a clinical audiologist and also had her own practice where she worked two days per week.

7. It was the intention of the parties at the time of the dissolution of their marriage that they would have a 50/50 division of their financial assets.

8. The parties each received approximately $1,450,000 in assets pursuant to the terms of the judgment.

9 There have been no post judgment modifications.

10. The plaintiff's motion for modification was duly served upon the defendant on June 9, 2012.

11. The plaintiff sold his medical practice in June 2012.

12. The sale of the practice was not an attempt to reduce his income and alimony obligation.

13. Pursuant to the terms of the judgment, in the event the plaintiff sold his medical practice within three years from the date of the dissolution, the defendant was to receive 25% of the net proceeds from the sale after plaintiff received a credit for the first $100,000.

14. The defendant received $107,500 from the sale of the plaintiff's medical practice.

15. The plaintiff grossed $729,714 from the sale of his medical practice and shows a net of $380,000 on his current financial affidavit.

16. The sum of $66,000 is being held in escrow from the sale of the plaintiff's medical practice.   In the event any of said monies are returned to the plaintiff, the defendant will receive 25% of said monies.

17. The plaintiff is currently employed as an anesthesiologist by North American Partners in Anesthesia (“NAPA”).

18. Pursuant to his employment agreement with NAPA, the plaintiff may earn deferred compensation benefits and bonuses.

19. According to the testimony of the plaintiff and his financial affidavit filed in connection with this hearing, he currently earns $439,000 exclusive of any bonus he may potentially receive.

20. The plaintiff does not anticipate receiving a bonus in 2012.

21. The plaintiff's current base salary is $365,000.   He earns an additional $12,000 for performance of his administrative duties.   He has also earned approximately $55,000 in deferred compensation benefits.   He will earn additional deferred compensation benefits for 2012, but does not expect that they will amount to much more than an additional $2,000.

22. The plaintiff earned $5,000 for consulting services in 2012 through the hearing date.

23. At the time of the hearing the defendant remained employed with Lawrence & Memorial Hospital as a clinical audiologist.   She currently works 32 hours per week at the hourly rate of $43 per hour.

24. Additionally, her employer contributes $5,300 towards defendant's health insurance premium and matches a percentage of her 401k contributions.   At the time of the dissolution the defendant was not receiving health insurance contributions from her employer nor was there an employer matching 401k plan.

25. The defendant testified that additional hours are not available to her at Lawrence & Memorial Hospital.

26. The defendant has also maintained her private practice as an audiologist where she currently works one day per week earning approximately $750 gross per month.

27. The defendant works between 40–45 hours per week between her position at Lawrence & Memorial Hospital and her private practice.

28. According to her current financial affidavit, the defendant's assets have remained essentially the same.

29. The plaintiff's financial affidavit currently reflects assets totaling $1,318,600 thus reflecting a decrease of approximately $131,400 from the $1,450,00 the parties received pursuant to the judgment.   Since the date of the judgment the plaintiff sold his medical practice and New York property and purchased new motor vehicles.

30. A comparison of the plaintiff's expenses, exclusive of the current alimony order as it did not appear on his February 2010 financial affidavit, reflects that they have decreased from $4,397 per week to $3,577, which is attributable in large part to the decrease in his mortgage and legal expenses.

31. The plaintiff's debts have increased from $0 to $1,340.

32. The defendant's expenses have also decreased from $2,006 per week to $1,545.

33. The defendant's debts have decreased from $31,000 to $4,800.

34. The decree further provides that the plaintiff and the defendant would be responsible for the minor child's health and vehicle insurance until she reached the age of 23 with the plaintiff paying two-thirds and the defendant one-third.

35. The child reached age 23 on April 17, 2012.

36. The plaintiff is 54 years old and in generally good health.

37. The defendant is 53 years old and in generally good health.

38. The plaintiff is remarried and resides with his wife.

39. The plaintiff's wife does not have substantial earnings.

DISCUSSION

Connecticut General Statute § 46b–86 governs modification of alimony orders.   It grants the trial court the authority to modify existing awards based upon a showing of a substantial change in the financial circumstances of either party.   When presented with such a situation the court must first determine whether there has in fact been a substantial change in circumstances of one or both of the parties.   If it so finds, it must then determine the appropriate support order.  Schade v. Schade, 110 Conn.App. 57, 63, 954 A.2d 846, 850 (2008).   The party seeking the modification bears the burden of “clearly and definitely [showing] individual facts and circumstances which have substantially changed” since the entry of the last order.  Gaffey v. Gaffey, 91 Conn.App. 801, 806, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005).

To determine whether there exists a substantial change in the circumstances of the parties, the court must compare the relative financial circumstances of the parties at the time of the dissolution and at present.   Reviewing the totality of circumstances, the court does not find a substantial change in the financial circumstances of the parties warranting a modification of the alimony order.   It is true that the plaintiff's income has decreased slightly, but said decrease amounts to less than 2% of the income used to calculate his alimony obligation at the time of the judgment.   Even coupled with the modest increase in the defendant's income it cannot be said to constitute a substantial change in the parties' financial circumstances.   Their respective financial affidavits and testimony indicates that they essentially remain in substantially the same position as they were at the time judgment entered.

Although a cursory review of the financial affidavits appears to reflect a decrease in the plaintiff's assets, a more careful look coupled with review of the testimony reflects that there was no substantial change.   The plaintiff's affidavit filed at the time of dissolution continued to reflect assets such as the marital home, the timeshare, and the full value of his retirement assets which were to be distributed to the defendant in order to equalize the distribution of their assets.   In fact, according to the Article VI of the Marital Dissolution Agreement, which was incorporated into the judgment, the marital home was sold prior to the parties proceeding to judgment and the proceeds had already been distributed.   The defendant also received approximately $340,000 of retirement assets which were distributed to her in accordance with a Qualified Domestic Relations Order which entered post-judgment.   The testimony established that it was the parties' intention to equalize their assets at the time of the dissolution and that each received approximately $1,450,000.   The defendant retained the same assets.   The plaintiff's assets changed in that his medical practice, and the New York property were sold and converted to cash and he purchased a new home and motor vehicles.   Essentially, however, he remained in a financially comparable position with like assets.   Moreover, as argued by the defendant, the parties each currently maintain approximately $1.2 million in liquid assets, not substantially unlike their financial situations at the time judgment entered.

With regard to expenses, again at first glance it appears the plaintiff's expenses have increased slightly.   However, upon closer scrutiny one sees they have actually decreased.   The plaintiff's original affidavit did not include his current alimony obligation;  whereas, his current affidavit does.   Comparing the two with that fact in mind, the plaintiff's expenses have actually decreased.   Moreover, any specific line item increases are due in part for expenses incurred on behalf of the plaintiff's current wife.   Nevertheless, overall the plaintiff's expenses have decreased by $820 per week.   The defendant's expenses have likewise decreased by $461 per week.   A decrease representing a little more than half the decrease in the plaintiff's expenses.   This decrease in the parties' expenses viewed alone or in connection with the totality of their current financial situations is not sufficient to trigger a modification of the existing alimony order.

Based upon all of the evidence before it, the court does not find a substantial change in the financial circumstances of the parties warranting a modification.

ATTORNEYS FEES

The defendant seeks an award of attorneys fees.  General Statute § 46b–62 provides the court with authority to award counsel fees in accordance with the respective financial abilities of the parties and the criteria set forth in General Statute § 46b–82.   However, if a party has engaged in egregious litigation misconduct requiring the other party to expend substantial sums on attorneys fees then the court, in its discretion, may enter an award of counsel fees to compensate the aggrieved party regardless of whether he or she has the ability to pay and whether the lack of an award of counsel fees would undermine the other financial orders.  LaBossiere v. Jones, 117 Conn.App. 211, 213 (2009), citing Ramin v. Ramin, 281 Conn. 324 (2007).   As set forth above, the court does not find that the plaintiff engaged in litigation misconduct by seeking to modifying his alimony obligation.   Thus, no award of counsel fees can be made on this basis.

The plaintiff's motion for attorneys fees is hereby denied.

ORDERS

The defendant's motion for attorneys fees is denied.   The plaintiff's motion to modify is granted in part and denied in part as follows:

1. The plaintiff's motion to modify alimony is denied.

2. The plaintiff's motion to modify his life insurance obligation is denied.

3. The parties' obligation to provide for medical and motor vehicle insurance for their adult daughter is hereby terminated.

4. Each party shall be responsible for their own attorneys fees.

Connors, J.

Connors, Susan A., J.