2010 Ct. Sup. 9738
No. FA 07-4006520SConnecticut Superior Court Judicial District of Tolland at Rockville
April 22, 2010
MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION TO MODIFY ALIMONY, POSTJUDGMENT (#108) MOTION TO MODIFY JUDGMENT (#125)
STEPHEN F. FRAZZINI, JUDGE OF THE SUPERIOR COURT.
The plaintiff has moved to modify the orders contained in the Settlement and Property Distribution Agreement incorporated into the judgment of dissolution entered on August 16, 2007. Article 2.1 of that agreement provides that he pay weekly alimony of $300 to the defendant until the first of various events not relevant here, while Article 9.1 requires him to pay for college tuition, room, board and books for the parties’ daughter, Erica. His motion to modify #108 seeks a reduction in alimony on the grounds that he has lost his employment, while the motion to modify #125 asks that the defendant also be required to contribute to the costs of Erica’s college education because “he is currently unemployed through no fault of his own” and claims he will not be able to obtain employment with the same level of income that he had at the time of the judgment. The parties appeared with counsel for hearing on these motions on September 22, 2009, and January 20, 2010. Decision on these motions has been delayed because of a missing exhibit, which has now been resubmitted by the parties. For the reasons stated below, both motions are granted.
I MOTION FOR MODIFICATION #108
The defendant’s motion to modify alimony is governed by General Statutes § 46-86(a), which provides that “[a] final order for the periodic payment of permanent alimony . . . may be modified by the trial court upon a showing of a substantial change in the circumstances of either party.” Under our law, “[t]he party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citation omitted; internal quotation marks omitted.)Fish v. Igoe, 83 Conn.App. 398, 406, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004). “Following such a finding [for CT Page 9739 alimony orders], the court then answers the question of modification, taking into account the general alimony factors found in C.G.S. § 46b-82.”[1] Gervais v. Gervais, 91 Conn.App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties . . . More specifically, these criteria, outlined in General Statutes 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. (Citations omitted; quotations omitted.)
Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).
At the time of the judgment the plaintiff was employed as a salesman for Span Packaging and earning $1,346 per week gross and $888 per week net. In November 2008, he was laid off from that work due to no fault of his own. Initially he looked for similar work but was unable to find any and, becoming more and more depressed, he sought counseling at the Norwich Vet Center and an outpatient clinic administered by the Veteran’s Administration, where he has been in steady mental health treatment ever since. Treatment records from the Vet Center and the VA were introduced into evidence and show that the plaintiff suffers from major depression and post-traumatic stress disorder related in part to his military service during the Vietnam war. The plaintiff testified that he has always had difficulty holding jobs because he has what he described as a “short fuse” that makes it difficult for him to deal with the public, and Dr. Lin, one of his therapists, concluded that his “significant PTSD symptoms and depressive symptoms . . . have led to significant impairment in functioning including . . . being fired from work.”
The defendant did not dispute that the plaintiff involuntarily lost his most recent job or that he had held and lost numerous jobs during their 21-year marriage, but she vociferously disputes his claim that he is no longer capable of obtaining employment with the level of income he had at the time of the divorce. The plaintiff’s treatment records, however, show that his inability to find new work exacerbated his depression, which in turn significantly impaired his ability to look for work. Although a CT Page 9740 short stint of employment last year for the US Census Bureau led to a brief period of the plaintiff feeling much better about himself, for the most part the treatment records show a man who is seriously depressed and attempts to cope with that depression by heavy consumption of alcohol to dull his feelings. His clinicians have continued to encourage him to seek employment and to curb his use of alcohol, and the plaintiff has started taking medication to help him deal with his feelings. But his age and the downturn in the economy have both worked against his finding new employment, as he always had been able to do in the past. When he started receiving Social Security Disability Benefits and VA Benefits related to his PTSD and depression last year, however, he lost most of his motivation to keep looking for work. The most recent treatment records, from November 2009, showed ongoing depression and PTSD and continued heavy use of alcohol to control his anxiety and numb himself emotionally, but no efforts on his part to find work.
This does not appear to be a case where alcoholism affects a person’s willingness or ability to find or keep work. According to the medical records, even when working he drank. Instead, the plaintiff’s present heavy use of alcohol seems more likely to be an effort on his part to cope with the depression, anxiety and stress from which he suffers, which his lack of work makes worse and which having a job lessens. On the entire record, however, the court cannot find that the defendant has no ability to work or earn a living. He himself admitted, when he first sought treatment, that his PTSD is not any worse now than it has been for the last 10 to 20 years, during which he often worked. Rather, the court concludes that the combination of receiving replacement income from Social Security and the VA, the depression caused by his loss of work, and the ongoing PTSD, depression and anxiety from which he has suffered most of his life led him to give up on looking for work. While he had always been able to find jobs in the past, it is credible that his age and the economy made it difficult for him to find a job.
At present, however, the plaintiff has no income other than the Social Security Disability and Veteran’s Benefits that he is now receiving. His weekly gross and net income of $686 per week is substantially less than he was earning at the time of the dissolution. Under the circumstances, the court finds that the plaintiff has sustained his burden of establishing a substantial change of circumstances based on his loss of employment, reduced income, inability to new employment thus far, and the effect of his unemployment on his mental state.
The alimony award at the time of dissolution came close to equalizing the parties’ net incomes (without taking into consideration the tax consequences of alimony). The defendant’s weekly income has increased CT Page 9741 since then from $320 gross and $265 net to $620 gross and $500 net. After considering the facts of this case in light of the statutory factors for alimony, the court grants the plaintiff’s motion for modification of alimony #108 and orders him to pay the defendant alimony in the amount of $103 per week. In view of his ability to work, despite his loss of enthusiasm for seeking work, however, the court also orders that he resume the effort to find suitable employment, and that he produce written verification of his job search efforts to the defendant on a monthly basis.
This motion was filed 18 months ago. Under General Statutes § 46b-86(a),[2] a final order for support may be modified retroactively if a marshal served the motion seeking modification. There is no evidence here as to whether a marshal served motion #108, but while it was pending, the parties agreed and the court, Abery-Wetstone, J., ordered on December 15, 2008, that the plaintiff’s alimony obligation would “be suspended without prejudice,” with any change to that order being retroactive to that date. On March 16, 2009, they agreed, and the court again ordered, that any alimony would be retroactive to the date of new employment he obtained. The defendant’s proposed orders seek retroactivity of any modification to March 2009, when the defendant began receiving Veteran’s Benefits. In April, he became eligible for Social Security Disability Benefits, and although those benefits did not actually begin for several months he received a retroactive check back to April 1. Between March 25 and May 17, 2009, moreover, he had temporary work with the Census Bureau earning $16.50 per hour for 271.75 hours, or an average of $592.21 gross per week, which would be net weekly income of $482 during that period. Under these circumstances, the defendant’s proposal is fair, with a one-month adjustment to reflect that he did not begin receiving his current level of income for another month, and the modification of alimony is retroactive to April 1, 2009, when he was legally entitled to both the VA and SSDI benefits.
II MOTION FOR MODIFICATION #125
The plaintiff’s second motion addresses his obligation under Article 9.1 of the separation agreement incorporated into the judgment of dissolution to pay for Erica’s college tuition, room, board and books pursuant to General Statutes § 46b-56c. That paragraph also provides that “the wife is not required to contribute toward Erica’s college expenses. General Statutes § 46b-56c(h) provides that “On motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order.” Here, for the CT Page 9742 reasons previously stated, the court finds that the plaintiff has shown a substantial change of circumstances.
As with an alimony modification, however, before granting any change in an educational support order, the court must consider numerous factors, which the statute describes as
all relevant circumstances, including: (1) The parents’ income, assets and other obligations, including obligations to other dependents; (2) the child’s need for support to attend an institution of higher education or private occupational school considering the child’s assets and the child’s ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available; (5) the child’s preparation for, aptitude for and commitment to higher education; and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.
With the alimony order here, the parties’ net incomes are relatively similar, and the evidence shows that plaintiff has approximately $32,000 in the bank and an IRA worth $10,000, while defendant has approximately $31,000 in the bank. Neither has other assets of appreciable value, other than vehicles worth less than the debt on them. The evidence showed that Erica’s tuition, books and health insurance cost approximately $5,000 per semester, and plaintiff testified that he contributes between $200 and $400 per month for her living expenses, while the defendant provides her with a vehicle, pays for its expenses in the amount of approximately $40 per month, and pays $47 per week for a replacement vehicle for herself. The court has no evidence, however, about the other relevant factors, such as the availability of financial aid, and any income Erica earns also affects her need for support to attend college. The parties had an opportunity to submit such evidence but chose not to.
On this evidence therefore, the court concludes that the defendant has met his burden of showing that the order for him to pay for all the cost of Erica’s tuition, room, board and books should be modified. The court orders that the order be modified, and that the parties shall divide those expenses 55% plaintiff and 45% defendant. As there was no evidence offered that the pending motion was served on defendant by a marshal otherwise in compliance with General Statutes § 52-50, as is required by CT Page 9743 § 46b-86(a) for retroactivity, this order is effective this date.
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