Lindell Perry v. Leonard Ciriello (2013)

MEMORANDUM OF DECISION

On February 22, 2013 and March 21, 2013, a hearing was held at which the court heard testimony and exhibits were admitted in relation to three postjudgment motions filed by the parties:  plaintiff's motion for contempt—postjudgment, numbered 128.01, defendant's motion to modify alimony, postjudgment, numbered 129.01 and defendant's motion for order re credit for alimony advance/overpayment, postjudgment, numbered 131.00.   Based upon the credible and relevant evidence before it, and in consideration of General Statutes § 46b–86 regarding the modification of alimony and case law applicable thereto, and the court's observation of the demeanor of the parties, the court makes the following findings of facts:

The marriage of the parties was dissolved on February 7, 2007 (Tierney, J.) and their written separation agreement dated February 7, 2007 was incorporated by reference into the court's judgment of dissolution entered on an even date therewith.   The plaintiff, Lindell Perry, is a 57–year–old woman.   She is being treated for high blood pressure and high cholesterol but considers herself to be otherwise reasonably healthy.   She received a B.A. in Art History from Lake Forest College.   The last time the plaintiff was employed full time was when she was working for the Boston Police Department as a contracts manager in charge of handling its bid contracts until 1994.   At that time, she was earning a salary of approximately $45,000.00 a year.   The last time the plaintiff worked was in 1995 when she performed secretarial duties on a part-time basis for Byron Jannis in New York.¹ The plaintiff is currently unemployed.   Both the plaintiff and the parties' 13–year–old daughter, Perry Ciriello, reside in St. Petersburg, Florida.   The plaintiff drops off and picks up Perry from Perry's private school every day because said school does not provide bus service.   The plaintiff drives Perry to Perry's cheerleading practices and sporting events where Perry does cheerleading.   The defendant is a 50–year–old attorney.   Since February of 2011, he has been working at Approved, LLC as its general counsel.   Approved, LLC is a New York City start-up company owned by Suzie Orman, Cathy Travis and Kimberly Bishop, the defendant's girlfriend who lives with the defendant in their New York City apartment.   When he was initially hired by Approved, LLC, his salary was $250,000.00 a year.   In January 2012, the company reduced the defendant's salary to $125,000.00 a year.   According to Bishop, the reason the company reduced his salary by one-half is that the company's product, a prepaid debit card, had not performed well.

Turning to the parties' motions, the court will address each motion individually and, if applicable, make further factual findings from the credible and relevant evidence presented to the court, along with the court's rulings thereon as follows:

Plaintiff's Motion for Contempt—Postjudgment # 128.01

The plaintiff's motion for contempt is hereby denied in its entirety as the plaintiff failed to sustain her burden of proof.

“Civil contempt involves the wilful violation of an applicable court order ․ To establish her contempt claim, the aggrieved party must prove by a fair preponderance of the evidence both that the alleged contemnor violated the order and that such a violation was wilful.”  (Citation omitted.)  Campbell v. Campbell, 120 Conn.App., 760, 767, 993 A.2d 984 (2010).

The plaintiff failed to establish, by a preponderance of the evidence, that the defendant was aware of the court's order, wilfully refused to obey it and had no defense.   At differing times from the date of their divorce, both parties supposedly operated under some misunderstanding about or misinterpretation of certain provision of the parties' separation agreement that they skewed in their favor.   The court will only cite a few of these occasions as an illustration.   For example, the plaintiff insists that the defendant is responsible for summer camp expenses ² and this is disputed by the defendant who refers Article V, section 5.3 of the separation agreement, under the heading “Child Support,” which provides, in pertinent part:  “The Husband shall pay one hundred (100%) percent of the child's reasonable extracurricular activities ․”

Next the plaintiff relies on her overly broad reading of section 6.1 of Article VI, under the heading “Education,” on which she bases her claim that the defendant wilfully failed to pay for Perry's school supplies and gowns for school events.   Said section provides, in pertinent part:  “The Husband shall pay all secondary private school expenses ․ (tuition, fees, books and uniforms) ․”

Not to be outdone, the defendant engaged in a selective reading of his own in connection with particular provisions of the separation agreement too.   The defendant testified that he did not give the plaintiff one-half of his $1,445.00 monthly car allowance that he received from his previous employer because he was under the impression that said allowance fell outside the ambit of the definition of “annual income” in the parties' separation agreement.   Under section 4.3, Article IV, under the heading “Alimony,” the relevant language defines, the term “annual income' as “․ gross income ․ and income ․ he has the right to receive ․ from any and all sources derived ․ ‘annual income’ shall include all income from wages, salaries and bonuses ․ and compensation for or by reason of employment ․”

The defendant also testified that he was unsure about whether stock and restricted stock units were covered by said definition too and then claimed to have made the plaintiff whole after obtaining legal advice, which confirmed that both assets were to be treated as part of his “annual income.”   With each assertion of wilful noncompliance that has been raised by the plaintiff, the defendant countered with a plausible excuse.

Defendant's Motion to Modify Alimony, Postjudgment # 129.01

The defendant alleges in his motion that there has been a substantial change in circumstances because the plaintiff has relocated to a state where the cost of living is lower.   Yet he failed to produce any admissible evidence to substantiate this allegation.   The defendant also alleges that the plaintiff now has substantial child care for the minor child.   Aside from the plaintiff's own statement to such effect,³ the only reasonable inference the court can make in connection with such allegation is that the plaintiff's childcare responsibilities have changed.   However, the measure of the degree and extent of that shift in said responsibilities cannot be ascertained merely from the record in general or her testimony in particular.   But in examining the parties' separation agreement, specifically Article II which is headed “Custody and Visitation,” the court notes that the parties contemplated that Perry would reside primarily with the plaintiff, that the plaintiff was going to relocate with Perry to another state and that the plaintiff would be responsible for Perry's day-to-day childcare and upbringing.   Thus, the court is not persuaded by the defendant's allegation in this regard and finds it to be without merit as there has been no change in the parties' child rearing arrangements for Perry since the last order.   The defendant further alleges that the plaintiff has failed to pursue employment despite her education and work experience and asks, in his claim for relief, that the court determine the plaintiff's earning capacity.

“[General Statutes § ]46b–86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment.   When ․ the disputed issue is alimony, the applicable provision of the statute is § 46b–86(a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in circumstances of either party ․ Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred.”  (Citation omitted;  internal quotation marks omitted.)  Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007).

The court is also guided by our Supreme Court's recent decision in the case of Tanzman v. Meurer, 309 Conn. 105 (July 9, 2013) (No. 18812), on the use of earning capacity, as opposed to actual income, in fashioning alimony orders.   In Tanzman, the supreme court restated its long standing holding that the trial court has the discretion to impute an earning capacity as warranted.

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards [pursuant to General Statutes §§ 46b–82(a) and 46b–86] on the earning capacity of the parties rather than on actual earned income.  Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981).   Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  (Internal quotation marks omitted.)   Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).  “When determining earning capacity, it ․ is especially appropriate for the court to consider whether [a person] has wilfully restricted his [or her] earning capacity to avoid support obligations.”  Bleuer v. Bleuer, 59 Conn.App. 167, 170, 755 A.2d 946 (2000).

Additionally, the court recognizes that earning capacity can be attributed to a payee as well as a payor.  “The same rule can be applied to a ․ payee who is seeking alimony from the spouse.”  Wilkes v. Wilkes, Superior Court, Docket No. 950147168 (January 31, 1997), aff'd, 55 Conn.App. 313, 738 A.2d 758 (1999).

In the present action, the defendant presented no evidence regarding the plaintiff's opportunity for employment in Florida.   Apparently, the defendant simply chose to rely exclusively on the plaintiff's testimony for his proof.   This reliance was misplaced because the plaintiff testified that, while she could probably bag groceries, a lot of stores have closed in St. Petersburg, that she had talked to people about employment and that she has neither applied for nor searched for jobs online because her “skills are not very good on the internet.”   With respect to her vocational skills, the defendant obviously seemed to rely again on the testimony from the plaintiff for his proof.   Yet the last time the plaintiff was gainfully employed with a stated salary was in 1995 when she earned $45,000.00.   This salary figure is so stale that the court considers it to be a completely unreliable and unreasonable criterion for consideration in the context of earning capacity.   Furthermore, the defendant neither introduced nor provided, as the case may be, testimony or a report from a vocational expert.   What is fairly evident from the record is that the defendant inadequately presented his evidence as to earning capacity thereby not providing the court with sufficient information from which to impute an earning capacity to the plaintiff based on his offer of proof.   Consequently, the court declines to exercise its discretion based upon the scant proof proffered.   Although it appears that the defendant's gross income has decreased since the date of the last order, when considering this along with all of the criteria set forth in General Statutes § 46b–86, the court is not persuaded a reduction in the percentage ⁴ of his gross income that is attributable to his support obligation is warranted in accordance with his stated request for such a reduction in his proposed orders.

Defendant's Motion for Order re Credit for Alimony Advance/Overpayment, Postjudgment # 131.00

The court finds that the defendant failed to sustain his burden of proof.   The record also reflects that the evidence purporting to demonstrate that the plaintiff owed the defendant the sum alleged in his motion was so convoluted that it could not be reconciled with the amount so claimed.   Therefore, the defendant's motion for order re credit for alimony advance/overpayment, postjudgment, numbered 131.00 is hereby denied in its entirety.

BY THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. No salary was indicated.   There was also no testimony about the length of such employment..  FN1. No salary was indicated.   There was also no testimony about the length of such employment.

FN2. Perry attended summer camp in 2009, 2010 and 2011..  FN2. Perry attended summer camp in 2009, 2010 and 2011.

FN3. In defendant's exhibit A, which is an undated letter from the plaintiff to the defendant attached to a copy of postmarked envelope dated January 22, 2012, the plaintiff says, inter alia, “I have raised you daughter for 5 years on my own ․”.  FN3. In defendant's exhibit A, which is an undated letter from the plaintiff to the defendant attached to a copy of postmarked envelope dated January 22, 2012, the plaintiff says, inter alia, “I have raised you daughter for 5 years on my own ․”

FN4. The current order provides for the defendant to pay the plaintiff 50% of the first $500,000.00 of his gross income.   In his proposed orders, the defendant requested that the percentage be decreased to 35%..  FN4. The current order provides for the defendant to pay the plaintiff 50% of the first $500,000.00 of his gross income.   In his proposed orders, the defendant requested that the percentage be decreased to 35%.

Richards, Sybil V., J.