2009 Ct. Sup. 3668
No. 02-0731922Connecticut Superior Court Judicial District of Hartford at Hartford
February 19, 2009
MEMORANDUM OF DECISION
DYER, J.
This matter involves three postjudgment pleadings filed by the parties. The plaintiff, Alan J. Abrahamson, filed a motion for modification of alimony on October 29, 2008 (motion no. 127). The defendant, who is now known as Bernice Matty, filed a motion for contempt dated January 15, 2009 (motion no. 128). The plaintiff also filed an objection to the defendant’s motion for contempt on January 20, 2009 (motion no. 129). A contested hearing was held on February 5, 2009. Both parties were present and were represented by their counsel. The court has carefully considered all of the evidence presented at hearing and the arguments of the parties’ attorneys. The court has also considered the various cases that were cited by counsel in their post-hearing submissions. The court finds that the facts recounted below were proven by a preponderance of the evidence at the contested hearing.
FACTUAL FINDINGS
The parties’ twenty-eight year marriage was dissolved by a judgment that entered in the Superior Court for the Hartford Judicial District on December 23, 2003. Under the terms of the judgment, the plaintiff was ordered to pay the defendant periodic alimony in the amount of $6,600 per month. The alimony payments were to be made on the first day of each month.
The plaintiff’s December 23, 2003 financial affidavit indicated that he received total net weekly income of $2,685 at that time. The plaintiff was then employed as an executive with C S Distributors, LLC in South Windsor, Connecticut.
The financial affidavit that the defendant filed on the date of dissolution stated that she was a homemaker and was not working outside the home. Her total net weekly income then was the weekly alimony sum of $1,038 that was paid to her pendente lite by the plaintiff.
CT Page 3669 At the time the marriage was dissolved, the plaintiff owned a one-third interest in C S Distributors with two partners. C S Distributors was engaged in the manufacture and wholesale distribution of building materials, specifically, vinyl windows. The plaintiff was also receiving additional net income of $519 per week from two family trusts at the time of the dissolution.
The uncontroverted evidence during this hearing established that the plaintiff paid the defendant the alimony specified in the judgment from December 23, 2003 through October 2008. The plaintiff testified credibly that for several years following the dissolution, C S Distributors did very well. However, he also testified that during 2007 and 2008, the downturn in the home construction industry caused C S Distributors to experience large financial losses. The business was required to borrow heavily and to sell its vinyl window manufacturing division. On October 24, 2008, Sovereign Bank called its notes and forced C S Distributors to liquidate. The business laid off all of its employees and ceased operations on that date.
The plaintiff began receiving gross unemployment compensation benefits of $519 per week in November 2008. After deducting $102 for estimated taxes, his net weekly income from unemployment compensation is $411. The plaintiff’s February 3, 2009 financial affidavit indicates that in 2003 he was also receiving the additional net weekly sum of $961 from the two family trusts. This additional income was generated by dividends, interest and rents received by the family trusts. According to the plaintiff’s financial affidavit, after he began receiving unemployment compensation in November 2008, his net weekly income was $1,378. The plaintiff predicts that there will be a minimum decrease of 35% in the family trust assets during 2009, and, therefore, that his weekly net income will be $1,139 during 2009. This sum includes his unemployment compensation benefits and reduced net weekly income from the two family trusts. The court declines to use the plaintiff’s projected figure and will base its orders on the income that he has received in the recent historical past. The court finds that the plaintiff’s present net weekly income from all sources is $1,378.
The plaintiff’s February 3, 2009 financial affidavit lists total weekly expenses of $5,196, total liabilities of $714,450, and total assets of $596,000. The latter sum excludes the present value of the two family trusts. The plaintiff’s weekly expenses of $5,196 includes the alimony figure of $1,523 (based on the monthly order of $6,600) that the plaintiff is supposed to pay to the defendant. Credible testimony during the hearing indicated that the plaintiff received total income of $143,000, plus an additional $8,000 in paid personal expenses, from C CT Page 3670 S Distributors during 2008, prior to the closure of the business.
The defendant’s financial affidavit indicates that her only income is the court ordered alimony of $1,523 per week that is paid to her by the plaintiff. After deductions totaling $291 for income taxes and health insurance, her total net weekly income is $1,232. The defendant’s current financial affidavit states that she has total weekly expenses of $1,379, total liabilities of $5,158 and total assets of $1,056,755.
The evidence at hearing proved that the plaintiff paid the defendant the court-ordered alimony through October 2008. In early November 2008, the plaintiff paid the defendant the sum of $1,650 as a partial alimony payment. The plaintiff has not paid any alimony to the defendant since that payment in November 2008.
The defendant is now 59 years old and is unemployed. She testified credibly that although she worked as a teacher for several years immediately following the marriage, she has been out of the job market continuously for the past twenty-three years. After the plaintiff stopped paying her alimony, the defendant has borrowed money from her father in order to meet her weekly expenses.
The plaintiff is now 62 years old and testified during the hearing that he is in good health. He is currently receiving unemployment compensation benefits, but indicated during the hearing that he is trying to find other employment. The evidence at hearing established that the plaintiff has solid business experience. The plaintiff testified credibly during the hearing that he has developed a fair amount of expertise in the area of advising financially distressed businesses. The plaintiff’s job search has been delayed somewhat thus far, because he has concentrated his efforts on the wind-up of business matters related to C S Distributors. He testified credibly that if he and his partners were successful in collecting accounts receivable that were owed to C S Distributors, Sovereign Bank would forgive a $500,000 loan for which the three partners were personally liable.
The court finds that the closure of C S Distributors in October 2008, and the decrease in the plaintiff’s income which resulted from the business’ collapse, have caused a substantial change in the financial circumstances of the plaintiff that has occurred since the date of dissolution. The court finds that the plaintiff’s financial reversals were totally involuntary, and were caused by the current economic recession, and more specially, by the downturn in the home building industry.
CT Page 3671 ORDERS
The court has carefully considered all of the evidence presented during this hearing. The court has carefully considered all of the provisions of Connecticut General Statutes 46b-86 and 46b-82 and has applied them to the facts and equities of this case. Having done that analysis, the court issues the following orders:
1. The plaintiff’s motion to modify periodic alimony is hereb granted. Commencing on March 1, 2009, and continuing monthly thereafter on the first day of each succeeding month, the plaintiff shall pay to the defendant as periodic alimony, the sum of $3,600 per month.
2. The defendant’s motion that the plaintiff be found in contempt of court for willfully failing to pay periodic alimony to the defendant is hereby denied. The defendant has not proven by clear and convincing evidence that the plaintiff willfully and contemptuously refused to pay her the alimony during the period of time alleged. The plaintiff filed a timely motion to modify, and the delay in holding the hearing was caused by the backlog of contested hearings that are pending at this courthouse. Furthermore, the coercive power of the court does not appear to be necessary in this case. The court does note, however, that the plaintiff failed to pay the full alimony sum owed to the defendant during the month of November 2008, and has paid no alimony whatsoever to the defendant during the months of December, January and February. During that time, the defendant was forced to borrow money to meet her expenses. During the period of time just referenced, the plaintiff incurred total weekly personal expenses of $3,675, which have included $288 per week for clothing and $500 per week for his country club fees (See Plaintiff’s February 3, 2009 financial affidavit). If the plaintiff had foregone just those weekly expenditures for clothing and golf expenses, he could have paid the defendant alimony of $3,388 per month ($500 + $288 = $788 x 4.3 = $3,388.40) during the months when he paid her nothing at all.
3. The plaintiff’s request that the alimony modification order be retroactive to the date of service of his motion is hereby denied. The court has carefully considered the provisions of Connecticut General Statute § 46b-86(a). That statute provides in pertinent part that the court may, under certain delineated circumstances, order the retroactivity of an alimony modification order. The court, in its discretion, declines to do so in this case. Failure by the plaintiff to send any alimony whatsoever to the defendant for the months of December, January and February, while simultaneously incurring the weekly personal expenses referred to above, prompts the court to deny that request for CT Page 3672 equitable relief.
4. The court finds that the following alimony arrearages are owed by the plaintiff to the defendant:
November 2008 $4,950 ($6,600 — $1,650 = $4,950)
December 2008 $6,600
January 2009 $6,600
February 2009 $6,600
Total $24,750
The court orders that the plaintiff shall satisfy that arrearage by paying to the defendant, within sixty days of the date hereof, the total sum of $24,750. The court finds that the plaintiff has the present financial ability to pay that alimony arrearage sum to the defendant within the time period specified.
5. Having carefully considered the provisions of Connecticut General Statute § 46b-62, the court orders that no counsel fees shall be awarded to either party.
6. The court orders that the plaintiff shall immediately notify the defendant, in writing, when he obtains employment, or enters into any self-employment, or business activity that generates income to him. The plaintiff shall provide the defendant with documentation that substantiates the amount of any annual income that he expects to receive from such employment, self-employment, or business activity.
7. The parties shall exchange on an annual basis, on or before the first day of June of each calendar year, their federal and state income tax returns, with all supporting documentation, including but not limited to W-2 forms, 1099 forms, 1099 interest forms, 1099 dividend forms and K-1 forms. Except as expressly modified herein, all other terms and provisions of the December 23, 2003 judgment of dissolution shall remain in full force and effect.
SO ORDERED.
CT Page 3673