Charlotte Malpeso v. Pasquale Malpeso (2014)

MEMORANDUM OF DECISION IN RE PLAINTIFF'S MOTION TO CLARIFY AND/OR ARTICULATE THE TRIAL COURT'S DECISION DATED JULY 16, 2013 AND THE DEFENDANT'S MOTION TO REARGUE DATED AUGUST 2, 2013

Two motions are before this court to clarify, articulate or reconsider findings in the court's Memorandum of Decision the court found that the parties' three children reaching the age of majority constituted a substantial change in circumstances warranting an examination of the unallocated alimony and child support award of $20,000 per month.   A calculation pursuant to the child support guidelines indicated that the plaintiff was credited with an income of $15,000 per month in alimony (unpaid through the self help of the defendant for over 22 months) and the defendant's net monthly income of $58,269.   The combined net monthly income of both parents totaled $17,039.30 per week.   Applying the guidelines with a presumptive declining factor, the presumptive amount was/is $2,061 per week or $8,862.00 per month.¹  Accordingly, the court ordered a modification of alimony and unallocated support in the amount of $12,000 per month.   Upon reconsideration, the court orders the unallocated alimony to be reduced by the sum of $2,061 per week retroactive to the service of the motion for modification.   Pasquale reached the age of majority on April 1, 2006 with the twin daughters attaining the age of majority on June 9, 2011.   By law, the child support should be reduced by the children's proportionate percentage or $687.00 originally, per child.   In its Memorandum of Decision, the court incorrectly declined to award retroactivity to the date of majority.   The court now corrects that error.

The court notes that the plaintiff has argued that her income is indeed –0– as the plaintiff has not paid alimony or support.   The plaintiff contends that in computing the guidelines the court should attribute no income to the plaintiff.   No citations were provided for this proposition.   The order of the court was clear and unequivocal $20,000 per month in alimony and support.   A motion for contempt was filed by the plaintiff.

The defendant next argues that the college expenses of the parties' three children constitute a substantial change in circumstances warranting a modification of alimony.   The court originally concluded in its July 2012 Memorandum of Decision that the plaintiff was bound by his separation agreement and could not claim that the extraordinary college and living expenses of his children could be the basis for a modification.   However, upon review of the separation agreement and its provisions for modification, the court concludes that the college expenses can be a basis for modification.

After a careful review of the expenses claimed for college, the court acknowledges that the sum of $32,000 per month for college tuition, children's living expenses, summer school, tutoring and interest on college loans do constitute a substantial change in circumstances justifying a reexamination of the parties' financial circumstances pursuant to Connecticut General Statutes 46b–82 and Borkowski v. Borkowski, 228 Conn. 729, 739 (1994).

Applying the statutory factors, Mrs. Malpeso is in her late fifties.   Prior to the marriage, she was college educated and employed as a flight attendant.   She is currently not employed and was not employed during the marriage.   To the best of the court's knowledge, she possesses no special skills or talents.   She has not pursued any advance degrees.   At the time of the dissolution, it was contemplated that she would seek employment.   Sep. Agreement § 3.2(c).  However that never occurred.   At this point, she is living off the assets acquired at the time of dissolution.   She recently sold her home in Westport, CT but the court has no evidence as to the sales price, equity and reinvestment.   Based on the foregoing, the court finds that Mrs. Malpeso has extremely limited opportunity for employment or the acquisition of further assets.

Conversely, Dr. Malpeso is fifty-eight years old.   He is a dental surgeon specializing in reconstructive and jaw surgery.   He possesses highly technical and specialized skills.   From all accounts, he is a truly good man who contributes highly to society.   However an examination of his financial affidavit dated 10/23/12 reveals the following.

From the date of the dissolution in 2004 to 2012:

1.  The value of the marital residence increased from $2,100 to $4,500.00 with a mortgage of $3,750,000, equity of $750,000.

2. 563 Park Ave., 2004 $1,100,000 to $2,100,000 no mortgage (financial affidavit).

3. 2 Fifth Ave., $2,200,000, no mortgage (financial affidavit).

4. Unit 4C $890,000 (mother/no mortgage financial affidavit).

5. Unit 2 Fifth Ave. Unit 7 $790,000 with no mortgage (financial affidavit).

The total value of Dr. Malpeso's real estate in 2012 was approximately $8,800,000.00 with equity totaling $5,050,000.00.   In 2004 the total value of Dr. Malpeso's real estate was $788,292,960.   Contrary to his assertion that his real estate is heavily liened, the court finds that he has equity which could be liened to pay his alimony obligation.   In addition the value of Dr. Malpeso's business entities increased from $30,233, in 2004 to $409,436.00 in 2012.   Also his net monthly income increased from approximately $40,000 in 2004 to $63,000 in 2012.

6. Business entities—2004 $30,233.4;  2012 $409,436.00 (financial affidavit).

7. Net income—2004, $39,983.34, 2012 $63,279.00 (financial affidavit).

In its memorandum of decision of July 2013 the court addressed the speculative nature of the pending lawsuit, the house restoration in Westport, CT. The court found that many expenses claimed by Dr. Malpeso were voluntarily assumed and should not take priority over the court ordered payment of alimony.   The court also considered Dr. Malpeso's claims of refund payments deducted by the insurance carrier and found that his testimony contradicted that of his accountant Mr. Strauss.   In sum the court finds Dr. Malpeso to continue to be able to earn a substantial income and acquire assets.

After a statutory analysis and applying Borkowski v. Borkowski, 228 Conn. 729, 739 (1994), the court concludes that alimony payments should not terminate.   The payments will however be adjusted by a reduction in child support.

Contempt

The court still finds Dr. Malpeso's decision not to pay alimony to be willful.   He chose not to deciding to avail himself of self-help.   The court finds his claim of inability to pay to be without merit.   Accordingly the court orders that the arrearage which must be recalculated to reflect the current arrearage accruing since December 2012 as modified with retroactivity.   The $40,000 in attorney fees, as well as the costs of $1,016.18 are to be paid with 2 weeks of the receipt of this articulation.

So ordered.

The Court

Schofield, J.

FOOTNOTES

FN1. See attached guideline with declining percentages.**[Editor's Note:  The referenced Guideline, footnote # 1 has not been reproduced.].  FN1. See attached guideline with declining percentages.**[Editor's Note:  The referenced Guideline, footnote # 1 has not been reproduced.]

Schofield, Marylouise, J.