Mark Iovine v. Lisa Iovine (2013)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTIONS FOR CONTEMPT AND TO MODIFY DISSOLUTION JUDGMENT

HISTORY OF THE CASE

These parties married on August 4, 1990.   They have three children who are now ages 21, 16 and 10.   Plaintiff sued for divorce in July 2010.   The court, Abery–Wetstone, J., accepted the parties' Stipulation (# 127) and incorporated it into the Dissolution Judgment on September 16, 2011.   This thirty-nine-page document detailed many provisions for the benefit of the parties' children, the division of marital assets, a reconciliation of marital debt and a host of other contingencies.

Plaintiff filed two motions on February 20, 2013.   The first, a Motion for Contempt (# 131) citing the terms of the dissolution judgment, seeks a share of post-judgment monies received by defendant.   The second motion (# 132) asks the court to modify the dissolution judgment to reflect what he alleges to be his substantially increased parental responsibilities and her significantly increased compensation.

The court heard both these motions on April 9, 2013.

FACTUAL FINDINGS

All facts are found by a preponderance of the evidence after careful review of the testimony and exhibits presented.   The court assessed and weighed the credibility of all witnesses who appeared before it.

At the time of the dissolution and for several years before, plaintiff cared full-time for the parties' children and their Canton, CT home.   He is currently 46 years old.   He has a Bachelor's Degree from Rutgers University in economics.   Plaintiff worked in finance for 8 or 9 years until about 1994, but he does not remember his earnings from that period of his life.   In 1999 he and defendant decided that he would be a full-time homemaker, and he has continued in that role ever since.   He also has culinary training, but that field would likely require him to work nights and weekends, taking him away from his family obligations.   He might work when the children are in school, but he credibly testified that no significant benefit would accrue because of the daycare expenses he would necessarily incur.   He had gross income of $130,000.00 in 2012.   Defendant was the sole source of that income.   The value of plaintiff's assets rose from $80,500.00 to $437,000.00 from the time of the dissolution to date.   The defendant's assets declined from $940,000.00 to $530,000.00 during that same period.¹

Defendant appeared to be around the same age as her ex-husband.   She worked for CIGNA in Bloomfield, CT as an information technology executive.   CIGNA laid defendant off on November 9, 2012.   Defendant immediately initiated a job search.   Very soon she secured an equivalent position with Mass Mutual in Salem, MA. Her pay in the new job was virtually identical to what it was at CIGNA.

Defendant began to receive severance payments ² from CIGNA in February 2013.   These payments are in addition to her Mass Mutual pay and will go on until the end of May 2013.   They will amount to $60,000.00, gross.   The parties did not foresee defendant's layoff at the time of the dissolution, although Paragraph 17.4 addresses her “change of employment.” ³  Plaintiff cites Paragraphs 17 and 17.4 of the dissolution judgment as requiring defendant to pay him a portion of her severance pay.

Paragraph 17 deals only with defendant's stock options and plaintiff's share of those, vested or unvested.⁴  Defendant receives no stock options as part of her severance pay.   After reviewing Paragraphs 17 and 17.4 in the context of the entire judgment, the court finds that there are no orders, terms or obligations in it that specifically address severance pay.

Motion for Contempt—Law and Discussion

To be found in contempt, one must be aware of a valid court order.   Eldridge v. Eldridge, 244 Conn. 523, 529 (1998);  Blaydes v. Blaydes, 187 Conn. 464, 467 (1982).  “The movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   The movant must also establish “whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt.”  In re Leah S., 284 Conn. 685, 693 (2007).

Plaintiff cannot meet these burdens because there is no clear and unambiguous order in the dissolution judgment about severance pay.   He cannot prove the existence of such an order any more than defendant can “be aware” of an order which does not exist.   Cobbling together language in the Stipulation about stock options (Paragraph 17) and replacing lost benefits (Paragraph 17.4) does not amount to a clear and unambiguous order of the court specifically obligating defendant to share her severance pay on pain of contempt.

For these reasons, plaintiff's Motion for Contempt (# 131) is denied.

Motion for Modification—Law and Discussion

In order for this court to find that a modification of financial orders is warranted, a two-pronged inquiry is required.   First, this court must determine whether there has been a substantial change in the circumstances of either party since the latter of the date of the dissolution judgment or last modification.  Hardisty v. Hardisty, 183 Conn. 253 at 259 (1981);  Schorsh v. Schorsh, 53 Conn.App. 378, 382–83, 731 A.2d 330 (1999).   The party seeking the modification bears the burden of showing the existence of a substantial change in circumstances.  Mundell v. Mundell, 955 A.2d 99, 110 Conn.App. 466 (2008).

General Statutes § 46b–86 provides that financial orders are modifiable in the event of a substantial change in circumstances unless precluded by language in the divorce decree.   In this case, the dissolution judgment only precludes modification of the ten-year term.   Thus, the financial orders are modifiable in the event this court finds that there has been a substantial change in circumstances of either party.

The plaintiff sought to establish two changes in the parties' circumstances since the date of the dissolution:  that his parenting duties had increased and that defendant was receiving twice as much pay.   The court did not hear evidence sufficient to find that plaintiff's parenting duties had substantially increased.   Much of what he claimed was controverted or contradicted by defendant's testimony.   However, the court finds that the unanticipated income of defendant's severance pay—$60,000.00—is a substantial change in the financial circumstances of the parties requiring a reexamination of defendant's child support and alimony obligations.

Child Support

Once a trial court finds a substantial change in circumstances, it can properly consider modifying child support.   The court finds from the evidence presented that the minor children in this case have no other means but their parents and are thus “in need of maintenance.”  General Statutes § 46b–84.   To determine the respective abilities of the parents to provide such maintenance, the court applies the statutory factors set forth in General Statutes § 46b–84(d).  Pursuant to this section, the Court “shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

This analysis is little different now when compared to the time of the judgment, September 16, 2011.   The parties are obviously a bit older, but the remaining factors of § 46b–84(d) are the same except for the amount of defendant's income and the assets she transferred to plaintiff as part of the dissolution.

The court finds from the credible testimony that defendant began work at Mass Mutual on February 19, 2013.   The parties did not dispute that defendant's total severance was $60,000.00 gross and would be received over a 15–week period ending from February through May 2013.   This severance adds $4,000.00 per week to her regular salary ($60,000.00 divided by 15 weeks = $4,000.00).   Her total gross income over the 15–week period is then $8,134.00 ($4,134.00 from defendant's current Financial Affidavit plus $4,000.00 = $8,134.00).

Examining defendant's pattern of withholding on her available Financial Affidavits and employing the court's standard calculating software, the court concludes that defendant's allowable deductions amount to approximately 37% of her gross.   See Regs., Conn. State Agencies § 46b–215a–1(i)(A–J).  Defendant's net weekly pay is then $5,124.42 ($8,134.00 times .37 = $3,009.58. $8,134.00 minus $3,009.58 = $5,124.42).

The parties' Stipulation sets plaintiff's net weekly income at zero until later this year, so the combined net weekly income of the Iovine family consists only of defendant's earnings.   This amount exceeds $4,000.00.   To determine the presumptive amount of child support, the court must apply the holding of Maturo v. Maturo, 296 Conn. 80 (2010).

There are two minor children in this family.   Applying the Guidelines Schedule of Basic Child Support Obligations pursuant to Maturo, the minimum presumptive amount is $636.00 per week ($4,000.00 times 15.89% = $636.00).   Tuckman v. Tuckman, 308 Conn. 194, 206 (2013) cites Maturo, supra, 91–92.   The amount of net income over $4,000.00 is $1,124.42 ($5,124.42 minus $4,000.00 = $1,124.42).   The amount of additional child support over the minimum presumptive amount is $178.67 ($1,124.42 times 15.89% = $178.67).   The maximum presumptive amount of child support is therefore $814.67 ($636.00 plus $178.67 = $814.67).

The court has studied the parties' Stipulation carefully.   Read as a whole, it is a detailed, nuanced and thorough document intended to provide for the entire family's overall best interests.   Plaintiff's role as homemaker is confirmed and secured by defendant's provision of substantial alimony.   There is an intricate plan of time-limited, unallocated alimony and support to take advantage of the parties' widely disparate earnings.   Defendant shifted over $350,000.00 worth of assets to plaintiff as part of the dissolution.

In some cases, child support is considered in conjunction with a determination of total family support, property settlement and tax implications.   When such consideration will not result in a lesser economic benefit to the child[ren], it may be appropriate to deviate from presumptive support amounts for the following reasons only:

(A) division of assets and liabilities

(B) provision of alimony

(C) tax planning considerations

Coordination of Total Family Support, Regs., Conn. State Agencies § 46b–215a–2(b)(5).

It would be inequitable and inappropriate for the court to strictly apply the Guidelines and upset these parties' precise and predictable plan for the coordination of their total family support.   The court intends to deviate from the presumptive child support findings on the basis of the division of assets, the provision of alimony and the tax planning considerations present in this case.   The court will set an unallocated amount of child support and alimony taking into account the changed financial circumstances of the family along the lines of their original plan.   This will not result in a lesser economic benefit to the Iovine children.   Rather, the court's retention of the overall intention of the parties' Stipulation preserves and enhances the economic benefits to the children.   In order to accomplish this, the court must consider an award of alimony from defendant to plaintiff in conjunction with an appropriate amount of child support.

Alimony

The court previously found a substantial change in the parties' financial circumstances and that the amount of the alimony was modifiable.  General Statutes § 46b–86.

In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

General Statutes § 46b–82.

The court previously found that the parties' Stipulation did not make specific reference to severance pay.   However, this document very clearly explained what to do if defendant received a bonus:

16.2 Bonus As additional unallocated alimony/support, the Wife shall pay to the Husband 30% of any gross cash bonus she receives.

A “bonus” is “something given or paid over and above what is due”;  a sum of money granted or given to an employee, a returned soldier, etc., in addition to regular pay, usually in appreciation for work done, length of service, accumulated favors, etc. http://dictionary.reference.com/browse/bonus?s=t. So, a bonus is a windfall out of the direct control of the recipient.   It is given or not given in the discretion of the giver.   A bonus cannot be anticipated as anything more than an expectancy until it is actually received.

These characteristics are similar to those of the severance pay received by defendant.   It was not anticipated that defendant would be laid off by CIGNA, so defendant's receipt of severance pay was an unexpected windfall just like a bonus.

The parties' Stipulation also contained Paragraph 17.4 Change of Employment.   See, fn 2. If defendant secured new employment that lessened her benefits, the intent of this provision was to maintain plaintiff's benefits in “the same proportional share” when compared to her old benefits.   Of course, this language does not directly implicate defendant's severance pay.   However, it is an illustrative example of the way the parties intended to deal with one another after their divorce and offers some guidance and direction to the court.

The court also notes that the overall structuring of the parties' Stipulation reflects the importance they placed on plaintiff's role as homemaker and his continuing availability to their children.   The Stipulation anticipates growing amounts and sources of income for plaintiff as time passes and the children mature by periodically raising his earning capacity.   See, Stipulation pp. 21–22.   The first of these reckonings has yet to occur.   Plaintiff is still nearly totally dependent on defendant for income.   Without her provision of alimony he does not yet have a real opportunity to accumulate savings, retirement benefits or other assets.   Both parents' needs and station remain about the same since the time of the dissolution.   Their ages, health, occupations and employability have changed little, if at all.

Courts have long recognized the contributions of a stay-at-home-spouse to a household.  Simmons v. Simmons, 244 Conn. 158, 178–86 (1998).   This court has a duty to shape its orders to protect those who are economically at risk.   Sweet v. Sweet, 190 Conn. 657, 664 (1983).   While plaintiff's particular “economic risk” does not mean he will become destitute without defendant's support, the court finds appropriate and consistent with the intention clearly expressed in their Stipulation that he continue to share in the income he “helped” her to earn during the time of the marriage.

The court is mindful that it must base its award of child support and alimony on the net income of the parties.  Hartney v. Hartney, 83 Conn.App. 553, 559 (2004);  Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001);  Febbroriello v. Febbroriello, 21 Conn.App. 200, 203 (1990).   The court has extensively considered each party's net income;  that is, the amount of income available after taxes and other mandatory deductions are taken.

However, in some circumstances an award expressed in gross terms is appropriate when, as here, there are widely disparate incomes and issues of inclusion and deductibility of income.  Maturo v. Maturo, 296 Conn. 80, 140–42 (2010).   Courts may award a percentage of income as alimony.  Guarascio v. Guarascio, 105 Conn.App. 418, 421–25 (2008).

ORDERS

Based on the foregoing, the court orders defendant to pay plaintiff thirty percent (30%) of the $60,000.00 severance package she received as an additional amount of unallocated child support and alimony.   This payment shall be tax deductible to her and includible as income by him.   This sum, $18,000.00, shall be paid within sixty (60) days of the date of this decision.

The court does not change, alter or modify any other aspect of this Judgment.   The court intends the 30% payment to be in addition to the unallocated support order of the original Judgment.   If plaintiff has kept current with this obligation, once she has made the additional payment, the parties shall follow and obey the original Judgment.

SO ORDERED.

BY THE COURT,

Carbonneau, J.

FOOTNOTES

FN1. The court ordered the parties' Financial Affidavits unsealed and compared those documents from the date of the dissolution to those the parties currently filed..  FN1. The court ordered the parties' Financial Affidavits unsealed and compared those documents from the date of the dissolution to those the parties currently filed.

FN2. Severance pay is the compensation that an employer provides to an employee who has been laid off, whose job has been eliminated, who through mutual agreement has decided to leave the company, or who has parted ways with the company for other reasons. http:// www.investopedia.com/terms/s/severancepay.asp.  FN2. Severance pay is the compensation that an employer provides to an employee who has been laid off, whose job has been eliminated, who through mutual agreement has decided to leave the company, or who has parted ways with the company for other reasons. http:// www.investopedia.com/terms/s/severancepay.asp

FN3. 17.4 Change of Employment.   If the wife forfeits any of his benefits because she secures new employment, and the new employer replaces said benefits, the Husband shall receive the same proportionate share of the benefits provided through the new employment as she would have received if the Wife had remained at the old employment.   In no event shall the Husband receive benefits from the new employer that exceed in value the benefits he would have received if the Wife had not voluntarily terminated her old employment.   Stipulation Court File # 137, pp 27–28..  FN3. 17.4 Change of Employment.   If the wife forfeits any of his benefits because she secures new employment, and the new employer replaces said benefits, the Husband shall receive the same proportionate share of the benefits provided through the new employment as she would have received if the Wife had remained at the old employment.   In no event shall the Husband receive benefits from the new employer that exceed in value the benefits he would have received if the Wife had not voluntarily terminated her old employment.   Stipulation Court File # 137, pp 27–28.

FN4. A stock option is one giving the holder, usually an officer or employee, the right to buy stock of the issuing corporation at a specific price within a stated period. http:// dictionary.reference.com/browse/stock+option..  FN4. A stock option is one giving the holder, usually an officer or employee, the right to buy stock of the issuing corporation at a specific price within a stated period. http:// dictionary.reference.com/browse/stock+option.

Carbonneau, John L., J.