Anda Weyher v. III (2013)

MEMORANDUM OF DECISION

The matter comes before the court by way of two separate motions filed by the parties.   The first is the plaintiff's motion for modification of alimony, pendente lite, numbered 147.00, alleging that there has been a substantial change in circumstances since the date of the parties' November 29, 2010 stipulation concerning, inter alia, pendente lite alimony payments to the plaintiff.   The second is the defendant's motion for modification of alimony, pendente lite, numbered 170.00, alleging that there has been a substantial change in circumstances because his income has decreased after he resigned from his job.

A brief recitation of the factual and procedural history of this case is necessary in order to provide context to the court's ruling on the two motions before it.   The parties were married on July 7, 1984 in Newport, Rhode Island.   Two children were the issue of the parties' marriage:  Harry F. Weyher, IV, born on October 2, 1988 and Jesse D. Weyher, born on August 30, 1991.   On December 16, 2009, the plaintiff filed a complaint seeking a dissolution of her marriage to the defendant with a return date of January 5, 2010.   On December 16, 2009, the defendant filed an answer to the complaint.   On October 19, 2010, the plaintiff filed a motion for temporary alimony, pendente lite, numbered 108.00.   In resolution thereof, on November 29, 2010, the parties entered a stipulation that provided, in pertinent part:

“Husband shall pay, as non-taxable maintenance to Wife:  all currently payable house expenses (mortgage, taxes, utilities, etc.);   reasonable and necessary medical and dental expenses not covered by insurance after all claims have been submitted;  plus $7,000 cash per month.”

On an even date therewith, said stipulation was made an order of the court (Malone, J.) (hereinafter referred to as the “last order”).   In connection with the parties' respective motions for modification, a hearing was held on November 27, 2012 and on January 23, 2013 at which the court heard oral testimony and documentary exhibits were admitted into evidence.   The court will address each motion separately below.

Plaintiff's Motion for Modification (# 147.00)

In her motion, the plaintiff alleges that since the date of the last order, the defendant's income substantially increased, her expenses increased and she was without sufficient funds to meet her expenses.   Except proving that there was a onetime upward spike in the defendant's income in 2011, the court finds that her testimony and the evidence she proffered to support her allegations are not credible.   The court specifically finds that the evidence in the record reflects the following credible and relevant facts in relation to the plaintiff's expenses and needs.   In addition to paying for all the expenses related to the upkeep of the marital home where the plaintiff resides, the last order required the defendant to pay $7,000.00 per month in pendente lite alimony to be apportioned as follows:  $5,500.00 monthly directly to the plaintiff and a $1,500.00 credit to retire the plaintiff's American Express debt.   In May of 2012, the plaintiff began to receive the full $7,000.00 pendente lite alimony payment per month from the defendant.   The plaintiff uses her personal credit cards to charge business expenses for Littlejohn's, a children's clothing boutique she owns and operates, and pays for said business expenses either from the Littlejohn's bank account or the alimony she receives.   A significant contributory factor for the $4,000.00 increase in her personal credit card debt is attributed to her use of said cards for Littlejohn's business expenses.   Since the last order, the plaintiff had either availed herself to or received two sources of funds that she put into the operation of Littlejohn's.   First, the plaintiff withdrew $24,323.36 from her Charles Schwab IRA sometime after the last order.   And second, she received a settlement from a lawsuit involving her father's estate in the net amount of approximately $97,000.00 in 2012.   While the defendant admitted that he received a onetime bonus of $1,000,000.00 from his last employer in 2011, he also testified that he resigned from his job in 2012.   Nonetheless, the defendant has not missed any pendente lite alimony payments.   Thus, it is clear that the plaintiff's claims have absolutely no merit and her motion and evidence to support it could not obscure the obvious.

There is a simple rationale that justifies the award of pendente lite alimony.  “The fundamental purpose of alimony pendente lite is to provide the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband's ability to meet them.”  Smith v. Smith, 151 Conn. 292, 297 (1964).   In this case, the pendente lite alimony award $7,000.00 per month actually exceeds the plaintiff's needs to sustain herself during the pendency of this divorce action.   Contrary to her allegations, the court finds that the evidence in the record shows that the plaintiff's personal expenses have not significantly increased and that she has had sufficient funds to either meet or exceed her personal expenses.   Based on the foregoing reasons, and in light of the relevant and credible evidence before the court, the court hereby denies the plaintiff's motion for modification numbered 147.00.

Defendant's Motion for Modification (# 170.00)

In his motion for a downward modification of the court's alimony order, pendente lite, the defendant alleges that his income has decreased substantially.   The evidence in the record reveals the following credible and relevant facts.   Sometime in 2006, the defendant began working as a Chief Financial Officer for Traxys.   At the time the parties entered into the stipulation in 2010, the defendant earned an income of $600,000.00.   In 2011, the defendant earned a base salary of $400,000.00 and received a $1,000,000.00 bonus for work performed in 2010.   During the spring of 2012, the defendant voluntarily resigned from his job.   He testified that he resigned because his former employer was engaging in certain irregularities.   The court finds his testimony to be credible and uncontroverted.   The court further finds that the defendant left his employment voluntarily for reasons that were justified and not to avoid his pendente lite alimony obligations, which he has continued to pay since the last order.

The court makes the following findings of fact:

1. The court finds there was a valid pendente lite alimony order entered by the court on November 29, 2010 requiring the defendant to pay pendente lite alimony to the plaintiff in the amount of $7,000.00 per month.

2. The order did not preclude modification.

3. Since the date of the last court order, the court does find a substantial change in circumstances since the last order of the court in that the defendant is no longer employed.

4. The court, after considering the factors set forth in General Statutes § 46b–82, modifies the pendente lite alimony as follows:  The defendant shall pay pendente lite alimony to the plaintiff in the amount of $4,500.00 per month commencing on the first day of July 2013.

Based upon the foregoing, the court hereby grants the defendant's motion for modification numbered 170.00.

BY THE COURT,

SYBIL V. RICHARDS, JUDGE

Richards, Sybil V., J.