Madelaine Hane v. Owen Hane (2013)

MEMORANDUM OF DECISION

The plaintiff wife filed a Motion to Modify dated June 16, 2011 claiming a substantial change in circumstances, in particular that the husband's income had increased substantially from the date of the last order of the court (Harrigan, J.) in August 2009.   Based on the evidence presented at the hearing, and the testimony of the parties, the court finds a substantial change in circumstances pursuant to Conn. Gen.Stat. § 46b–86 sufficient to warrant a modification.

Factually, the parties were divorced on February 14, 2008 in 2008 (Novack, J.).   They had two children who are still minors.   Pursuant to their separation agreement § 3.1 the husband was to pay to the wife “base support” in the amount of Fourteen thousand ($14,000.00) per month based on income from his primary employment at Cushman & Wakefield, a commercial real estate firm with its principal office in New York City. “Additional Support” § 31.b provided percentage increases;  forty-two percent (42%) of the husband's gross income between $340,000 to $440,000, and twenty-five (25%) of his gross income between $440,000.00 to $600,000.00.   At the time of the agreement and order, the husband reported gross income of $373,706.00.

Subsequently in 2009, the defendant moved for a modification of that agreement.   The court (Harrigan, J.) after a hearing granted the modification reducing the base support from $14,000 per month to $35,100 per year.   The court found the husband's income in August 2009 to be the nonrecourse advance of $35,000 per year with no commissions.   Memorandum of Decision, p. 23.  (Ex. 2.) The 2009 decision is the base line upon which the court must measure its decision on finding a substantial change in circumstances.   This court is well aware that it is not within its province to retry Judge Harrigan's decision.   The 2009 decision is the lynchpin for the present decision.  Borkowski v. Borkowski, 228 Conn. 729 (1994).   The court must now apply the factors enumerated in Conn. Gen.Stat. § 46–82 to determine the proper alimony order.

The defendant is an independent contractor, working for Cushman Wakefield in the field of commercial real estate.   He is paid 100% on commissions.   The court is well aware that the defendant's income reflected a change in employment status from the date of judgment to the time of this modification hearing.   Whether this was well calculated or the result of the economy is undecided.   At the time of this hearing he was advanced two loans against commissions;  one nonrecourse loan in the base amount of thirty-five thousand ($35,000) dollars, and a recourse advance against commissions earned of an additional sixty-five thousand ($65,000) dollars.   Mr. Hane testified that he has always met the amount advanced and has not had to repay Cushman and Wakefield.   In fact, Mr. Hane has consistently, and quite successfully, exceeded that advance.   Whether loans or advances, the court finds that Mr. Hane's earning capacity exceeds $100,000.00 per year.¹  The court discredits or finds unbelievable the defendant's claim of the plaintiff's earning capacity.  (See financial affidavits of the plaintiff.)

The evidence established that the defendant's gross income for the year 2011 was $474,765.00.  (Ex. 10 and 13.)   In the year 2012, the defendant's gross income was $531,958.00 (Ex. 14) with a net income of $6,277.00 per week or $336,404 in 2012.   This income represents a substantial change in the defendant's income from the 2009 modification.

The court finds that the defendant has consistently earned an excess of his draw/advance of $100,000 per year.   Accordingly, the court orders the following alimony and support.

1. Child support of $921.00 per week pursuant to the Child Support Guidelines to be paid each payroll period effective July 1, 2013.

2. Alimony shall be based on the following:  25% of the husband's net income up to $150,000.00, $480.00 per week to be paid each payroll period.

3. Additional alimony in the amount of 25% of the husband's net income between $150,001.00 to $250,000.00, to be paid within two weeks of receipt.

4. Additional alimony in the amount of 15% of the husband's net income between $250,001.00 to $350,000.00 to be paid within two weeks of receipt.

5. Additional alimony in the amount of 10% of the husband's net income over $350,001.00 to be paid within two weeks of receipt.

Retroactivity

In review, the court has considered the plaintiff's claim for retroactivity to the date of the filing of her motion for modification dated in June 2011.   The court notes that the plaintiff's motion was not personally served on the defendant.   While this is not defective per se, the court has reviewed the brief of the defendant's counsel and is persuaded that an order of retroactive alimony and support would be unduly harsh, if not punitive.   Based on the conduct of the parties, the court denies an order of retroactivity.

Attorneys Fees

The disparity in the income of the parties justifies an award of attorney fees to the plaintiff.

Accordingly, the court awards the plaintiff Fifteen Thousand ($15,000.00) dollars in attorneys fees.

SO ORDERED.

MARYLOUISE SCHOFIELD, J.

FOOTNOTES

FN1. The court had the defendant's tax returns for the years for 2009, 2010 and 2011.   It also had the defendant's 1099 for 2010 and 2011.   For 2013, it had a year to date paystub..  FN1. The court had the defendant's tax returns for the years for 2009, 2010 and 2011.   It also had the defendant's 1099 for 2010 and 2011.   For 2013, it had a year to date paystub.

Schofield, Marylouise, J.