Daniel Buckley v. Claudina Buckley (2013)

MEMORANDUM OF DECISION

The defendant filed a Motion to Modify Alimony (Motion No. 118.00) following the dissolution of her marriage to the plaintiff.   Based upon the evidence presented at the contested hearing on this matter on August 30, 2013, the court makes the following findings.

On January 5, 2010, the plaintiff and the defendant were divorced after a twenty-four-year marriage.   The parties entered into a marital settlement agreement which was incorporated into the divorce judgment.   The settlement agreement provides in paragraph 2.1 as follows:

The Husband shall pay periodic alimony to the Wife [sic] the amount of $25,680 annually In [sic] weekly payments of $493.85, commencing January 5, 2010 by way of a contingent wage withholding order.   Said sum of periodic alimony shall represent approximately forty percent (40%) of the Husband's income as of the date of judgment.   Said periodic alimony shall terminate upon the death of either party or the remarriage of the wife, and may terminate upon the cohabitation of the wife pursuant to the statute applicable thereto.   Alimony may otherwise be modifiable as to amount and term depending upon the financial circumstances of the parties or either of them.   As of the date of judgment, each party shall be allowed a $20,000 additional earnings threshold so that the Wife may earn up to $20,000 per annum from employment or otherwise without the said earnings giving the husband a right to a downward modification of the alimony order in place at that time, and the Husband may earn up to $20,000 additional income from employment or otherwise without said additional earnings giving the Wife a right to an upwards modification of the alimony order in place at that time.

The plaintiff's alimony obligation was calculated based upon his gross annual income.   As of the date of dissolution, the plaintiff's gross annual income was $70,668.00.   In 2012, his gross annual income was $93,255.66, an increase of $22,587.66 from the date of dissolution.   As of June 23, 2013, the plaintiff's gross income was $43,863.18.   If annualized, the plaintiff could be expected to gross approximately $91,000 for 2013.

The defendant was unemployed on the date of dissolution and has been unable to find employment since.   Her only source of income is the $493.85 a week alimony payment she receives from the plaintiff.   The defendant suffers from diabetes and arthritis and has no vision in her left eye.   She does not have health care insurance.   She cannot afford insulin.   The defendant was awarded exclusive use of the marital home in the dissolution proceedings.   The divorce decree provided that the marital home was to be sold with any proceeds of the sale being split by the parties 60/40 in favor of the defendant.   The allocation of potential proceeds was subsequently modified to 50/50 by stipulation and court order (No. 116.00).   The marital home was never sold and the property was lost through foreclosure in June 2012.

“When a modification of alimony is requested on the basis of a separation agreement, the court must look to the agreement.   Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.”  (Internal quotation marks omitted.)  Cushman v. Cushman, 93 Conn.App. 186, 191, 888 A.2d 156 (2006).

The safe harbor provision in paragraph 2.1 of the parties' settlement agreement allows either party to earn up to $20,000 a year without such earnings giving the other party the right to seek a modification of the current alimony order.   Once one party's income exceeds the safe harbor amount, however, the other party may move for a modification based upon a substantial change of circumstances.   Thus, the safe harbor provision in the parties' settlement agreement only applies to the initial determination as to whether a party has the right to seek modification of the alimony award.   If the initial threshold is met and the movant thereafter meets his or her burden of proving a substantial change in circumstances, the court, in determining the appropriate amount of alimony to be awarded, may consider, among other statutory factors, all income of the parties, not just that portion of a party's income which exceeds the $20,000 safe harbor limit.

The plaintiff's income for 2012 exceeds the $20,000 safe harbor amount thereby affording the defendant the right to seek modification of the current alimony award.   The defendant has sustained her burden of proving a substantial change in circumstances that makes the continuation of the court's current alimony order unfair and improper.   Since the date of dissolution when the current alimony order was entered, the defendant has been unable to find employment, her health has failed, she has been unable to afford needed medication, and she has lost not only the use but the joint ownership of the marital home through foreclosure proceedings, thereby precluding any ability to realize any proceeds from the sale of the property.   During the same period of time, the plaintiff's income has increased from $70,668.00 to $93,255.66, a gain of $22,587.66 or thirty-two percent (32%).

In rendering orders in this case, the court has carefully considered all the relevant statutory criteria, including the factors enumerated in General Statutes § 46b–82 and 46b–86 as they relate to the award of alimony.   The court hereby ORDERS as follows:

1. The defendant's Motion to Modify Alimony is GRANTED.

2. The plaintiff shall pay alimony to the defendant in the amount of $643.85 per week.

3. These orders are effective as of June 10, 2013, the date of service upon the plaintiff of the defendant's Motion to Modify Alimony.

4. An arrearage of alimony has accrued since June 10, 2013, in the amount of $3,150.00 ($150 a week for 21 weeks).   Such arrearage shall be paid by the plaintiff to the defendant as follows:

a. $750 on or before December 1, 2013;

b. $800 on or before January 1, 2014;

c. $800 on or before February 1, 2014;  and

d. $800 on or before March 1, 2014.

(MORGAN, J.)

JUDGE

Morgan, Lisa K., J.