Christine Szyknowicz v. Vincent P. Szyknowicz (2013)

RULING RE DEFENDANT'S MOTION TO MODIFY—# 154 DEFENDANT'S MOTION FOR CONTEMPT—# 156

I. Motion To Modify

The defendant has filed a motion seeking a reduction of the periodic alimony order issued by the court as part of its dissolution judgment.   In a memorandum of decision dated April 18, 2011, that, inter alia, dissolved the twenty-eight-year marriage of the parties, the court (Danaher, J.), after a full trial of all the issues surrounding said dissolution, ordered the defendant to pay the disabled plaintiff the sum of $3,000 per month as periodic alimony.¹  The court stated:  “The defendant's obligation to pay alimony terminates upon the death of either party or the remarriage of the plaintiff.   The award of alimony is modifiable in accordance with the provisions of General Statutes [Section] 46b–86(a) and 46b–86(b).”  The defendant claims pursuant to subsection (a) of the statute that there has been a substantial change in the financial circumstances of the parties that should entitle him to a reduction in said alimony order.

“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it.   Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order.”  Kelly v. Kelly, 54 Conn.App. 50, 55–56 (1999).  “When presented with a motion for modification [under subparagraph (a) ], a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties ․ Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b–82 criteria, make an order for modification ․ [The] court's power to modify is created by statute, and it must make its determination on the basis of the statutory standards ․ The trial court is limited to reviewing the current [financial] situation of the parties in light of the statutory criteria set forth in § 46b–82.”  (Citations omitted, internal quotations omitted.)  Gervais v. Gervais, 91 Conn.App. P40, 850–51, cert. denied 276 Conn. 919 (2005).

It should be noted that the court found it difficult to compare the financial affidavits filed by the parties at the time of the dissolution to the current financial affidavits in order to attempt a so-called “apples to apples” review of all financial affidavits.   See Blum v. Blum, 109 Conn.App. 316, 326 (2008).   In his current affidavit the defendant includes all household and personal expenses which not only encompass his own weekly expenses but those of his current spouse.   He does so without reflecting the income contribution made by that spouse who testified at the hearing that she is gainfully employed.   Although he exhibits a significant increase in his outstanding debt, since the dissolution he purchased a home on which he is paying a mortgage.   His 50% share of the dissolution-ordered deferred compensation is omitted from his current affidavit.   The plaintiff's current financial affidavit is likewise difficult to discern.   She discloses a significant increase in her liabilities yet the affidavit shows a significant decrease in her monthly mortgage payment, her real estate tax obligation, and all of her utilities, including electricity, cable TV and oil.   The plaintiff, however, continues in the same lifestyle that prevailed at the time of the dissolution!   She also omits from her current affidavit any accounting for her 50% share of the deferred compensation, which, at the time of the dissolution, amounted to a total of $326,529.

The court, however, finds the testimony of the defendant credible relative to his claim that due to a forced change in employment (he was laid off from his previous employment and obtained a new job within a week), overtime is no longer available to him through his current position.   Although, as an experienced elevator repair person, he is still employed in that capacity, his current assignment does not provide for overtime because it involves the modernization of elevators.

The testimony establishes that the plaintiff's living circumstances and income are relatively unchanged since the dissolution while the defendant has suffered a $300 decrease in his gross income and a $222 per week decrease in his net income which, according to him, has increased his liabilities because he used the overtime earnings to reduce his debt.   The court finds that the defendant's financial circumstances have suffered a substantial change due to his loss of the income earned from the overtime that was regularly available to him through his prior employment.   The court, in its consideration of all of those factors provided in General Statutes Sec. 46b–82(a), will grant the defendant's motion.²  The court will therefore modify his current periodic alimony order of $3,000 a month downward by $650 to $2,350 a month, effective July 9, 2013, the date of the hearing.   All other orders in the alimony portion of the dissolution judgment are unchanged by this ruling and shall remain in full force and effect.

II. Motion For Contempt

The defendant has filed a motion asking the court to hold the plaintiff in contempt for her failure to comply with a dissolution order issued by Judge Danaher that obligated the plaintiff to turn over certain items of tangible personal property to the defendant.   The defendant asks this court to enforce that order by finding the plaintiff in contempt thereof and ordering the plaintiff to turn over said items to him forthwith.   In the alternative, the defendant asks this court to order the plaintiff to pay him a sum equal to his estimate of the monetary value of the items.   The defendant claims the items sought by him have a monetary value of $6,925, however, he requests an additional $2,178.87 as reimbursement for attorneys fees, truck rental fees, lost wages and marshall fees.   The total sum requested is $9,103.87.   See Defendant's Exhibit B.

In his memorandum of decision that dissolved the marriage of the parties, Judge Danaher addressed the defendant's Motion For Permission To Remove Personal Property (# 114), dated June 7, 2010.   The defendant had presented a list (Defendant's Exhibit T) consisting of twenty-six items of personal property that the defendant desired.   The court ordered those items that were in the “possession and control of the plaintiff” to be delivered to the defendant, with the exception of a big-screen television and stepladder.   However, the implementation of that order was to be via appropriate arrangements made by the respective attorneys who, apparently, were to pick a date and time and coordinate with the parties the transfer of the requested items.   Apparently, appropriate arrangements were not made, thus resulting in the defendant filing a postjudgment Motion For Contempt (# 142), dated June 15, 2011, at which time the list of items yet to be delivered was somehow reduced to sixteen.   The file reflects that no action was taken on that motion.   Those sixteen items are the subject of another Motion For Contempt (# 156) that is before this court, wherein the defendant asks the court to order the plaintiff to deliver them to the defendant or, as noted, to pay the value thereof along with expenses incurred in attempting to obtain the items sought.

The court heard testimony from the parties as to each of the sixteen items that are listed in a document appended to the defendant's motion.   Six of the items are in the possession of the parties' adult children who reside in Colorado and with whom, according to the plaintiff, the defendant has a limited relationship or none at all.   The plaintiff testified that if the defendant desires the return of any such items he simply needs to ask the particular child who is in possession thereof and she is confident that it will be turned over to him.   According to the plaintiff, three of the items on the list were broken or destroyed long before the dissolution judgment was entered.   The plaintiff claims that three of the items were returned to the defendant (coins, table and scrapbook).   The plaintiff did confirm that she is in possession of item # 13, a VHS/DVD player recorder.   The plaintiff is ordered to, at her expense, mail or otherwise cause the delivery of the recorder to the defendant on or before September 1, 2013.   The court will not enter a finding of contempt as the defendant has failed to prove that the plaintiff willfully violated a specific court order which was, in essence, directed to the parties' attorneys.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. On February 5, 2013, the appellate court affirmed the trial court's decision.  Szynkowicz v. Szynkowicz, 140 Conn.App. 525 (2013)..  FN1. On February 5, 2013, the appellate court affirmed the trial court's decision.  Szynkowicz v. Szynkowicz, 140 Conn.App. 525 (2013).

FN2. The statute provides, in pertinent part:  “․ 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, ․ shall consider ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties ․” Emphasis added..  FN2. The statute provides, in pertinent part:  “․ 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, ․ shall consider ․ the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties ․” Emphasis added.

Trombley, Wilson J., J.