Mary Hirschbeck v. Mark Hirschbeck (2013)

MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION OF CHILD SUPPORT AND ALIMONY

The defendant filed a postjudgment Motion for Modification of Child Support and Alimony dated November 26, 2012.   The parties' marriage was dissolved on June 28, 2010.   The pertinent provisions of the judgment are set forth in Articles V and VI of the agreement incorporated into the judgment.   At the time of the judgment, the plaintiff's net income was $781.34 a week and the defendant's was $3,861.08 on their financial affidavits.   The parties submitted a child support guideline worksheet in which the plaintiff's net weekly income was $454.00 and the defendant's was $2,652.07.   The guidelines submitted at the time of the present hearing reflect child support for the one minor child of $332.00 per week.

The court notes that in the judgment between the parties, it set forth that when there was one minor child, then at that time the support order would be $327.00 per week.   There is no significant change of circumstances in the calculations to so modify the existing order of the court.   Therefore, there is no modification of child support.

The alimony order sought to be modified has two prongs.   The first prong is:  Did the judgment in Article VI Section 6.1 provide for modifiability or not?   Section 6.2 sets forth that the alimony is non-modifiable except for certain events.   The agreement then continued on to Section 6.4 as there is no Section 6.3.   Thus, the alimony Article is not consistent as to the non-modifiability of alimony from one term of time set forth in Subsection 6.1 to the next period of time set forth in Section 6.2.   At the canvassing of the parties at the time of the dissolution of marriage there was no mention of the word or term “non-modifiable.”   Therefore, the court finds that Section 6 as it relates to the amount of alimony to be paid is modifiable.   The language referring to non-modifiability must be clear and unambiguous.  Burke v. Burke, 94 Conn.App. 416, 422 (2006).

The court moves to the second prong:  Has there been a substantial change of circumstances to warrant a modification of alimony?   The defendant's motion makes reference to his income which he avers “has significantly decreased.”   The defendant's financial affidavit sets forth that he is self-employed and that he is the owner of Hirschbeck's Sports Bar & Grill and that the ownership vehicle is an LLC (which employees some 30–40 people).   He testified that he paid some $265,000 for all the equipment and inventory and that he paid cash.   The business was opened on March 5, 2012.   He claims no income has been derived from that business.   These is no mention of an LLC ownership in that business on his financial affidavit as he claims no money is earned from it.   The LLC owned by the defendant, however, has $265,000 of assets of the restaurant and it also owns an automobile that the parties' minor child uses.   The defendant purchased that car for $35,000 and pays the loan of $20,000 for it.   This was all accomplished in June or July of 2012.   The defendant therefore has an LLC with some $280,000 of net assets in its name.

The defendant, since the judgment, also purchased a home in Oxford, some five or six months ago or in October or November 2012 and has equity of $13,000 in that property and a loan balance for that purchase of $247,000.   The property is rented to an employee of the LLC and “almost” covers the mortgage.

The court finds that the defendant is not credible.   The court finds that he has within the past year taken an additional financial responsibility some $267,000 in debt.   He loaned a friend $50,000 two years after the dissolution of marriage and still claims $40,000 is outstanding to him, which loan is not set forth on his affidavit or the lawsuit to collect it.   It is clear to the court that the defendant voluntarily took on significant debt since the dissolution of marriage and has further expended money in the amount of some $333,000 in investments that, at least pursuant to his testimony, yield no income.   There is no substantial change in circumstances.   The defendant's Motion to Modify Alimony is denied.

By The Court

Malone, J.

Malone, Robert J., J.