2003 Ct. Sup. 14426
No. FA 98 0076120Connecticut Superior Court, Judicial District of Litchfield at Litchfield
December 24, 2003
MEMORANDUM OF DECISION
PICKARD, JUDGE.
This is a motion to modify alimony (#161) filed by the defendant, Michael Vicas. The marriage of the parties was dissolved by this court (Pickett, J.) on July 8, 1999 following a trial. The defendant was ordered to pay alimony to the plaintiff in the amount of $100 per week until the marital home was sold, at which time the alimony would be reviewed. On December 18, 2000 the court (Matasavage, J.) reviewed and modified the alimony order to $275 per week following the sale of the marital home. The present motion seeks a reduction of this amount to $150 per week.
At the time of the December 18, 2000 reduction the plaintiff had no income other than alimony from the defendant. She lived with her mother without rent but anticipated getting her own apartment. This never happened. Therefore, after deducting the projected expenses for an apartment her actual weekly expenses were $481. On December 18, 2000 the defendant’s financial affidavit reflects that he had net weekly income of $824 and weekly expenses and liabilities of $867.
The plaintiff’s current net weekly income is confined to the $266 net alimony received from the defendant. Her weekly expenses are $389, the vast majority of these being health insurance premiums and unreimbursed medical care and medication. The defendant has net weekly income of $625 as against total weekly expenses and liabilities of $787.
The defendant alleges a substantial change of circumstances as a result of him suffering a loss of his two previous jobs since December 2000. Despite a diligent search for comparable employment, the defendant has been forced to accept employment at a lower salary. He has reduced his expenses to an extremely frugal level. His testimony about his efforts to obtain better CT Page 14427 employment and to reduce his expenses is credible.
The plaintiff has become impoverished by her inability to work and by the rising cost of health care and medication. The court’s memorandum of decision of July 8, 1999 details the plaintiff’s unfortunate medical history. It has not gotten better since then. She is permanently disabled from working but is unable to obtain social security benefits because she does not have enough quarters of employment to qualify. Her medical insurance premium is $709.78 per month ($165 per week) and will increase by $60 per month as of January 1, 2004 resulting in a weekly expenditure of $179 per week on health insurance alone. She has unreimbursed medical, dental, and optical expenses of $78 per week. Therefore, as of January 1, 2004 her health care needs alone will consume all but approximately $18 of her current weekly alimony. Her testimony about these matters was all credible.
This case presents the court with a perplexing situation. The defendant’s decrease in earnings is certainly a substantial change in circumstances which has arisen since the last modification of alimony on December 18, 2000. His net weekly income is $199 less than it was on that date. This decrease is through no fault of the defendant. The decrease in the plaintiff’s actual weekly expenditures since December 18, 2000 is also a substantial change of circumstances. Comparing her affidavits, the plaintiff had actual weekly expenses of $481 on December 18, 2000 as opposed to $389 now.
But, a change of circumstances does not automatically dictate a modification of alimony. Once a substantial change of circumstances is shown it is necessary for the court to apply the criteria set forth in Section 46b-82 to determine if an adjustment should be made in the current order. See, e.g Zahringer v. Zarhinger, 69 Conn. App. 251 (2002). Having examined and considered these criteria (with the exception of the cause of the dissolution; see, Rutkin, Hogan, and Oldham Connecticut Family Law and Practice, 2nd Ed., Section 35.24), the court finds that the current order should not be modified.
It is only through the love and charity of her sister and mother that the plaintiff has a roof over her head and food to eat. Her decrease in expenses is only because of gifts she is receiving. Her needs remain extreme. Her health care needs are all reasonable and necessary for her continued existence. Any reduction in her alimony will mean that some of her healthcare CT Page 14428 needs will be unmet. While the current level of support from the plaintiff’s sister and mother may be considered, id. 258, there was no evidence introduced at the hearing that the plaintiff’s sister and mother have the ability or willingness to pay an increased level of support for a portion of the plaintiff’s health care expenses on a regular basis.
In addition to the needs of the plaintiff, the other statutory criteria also weigh in favor of continuing alimony at the current level. The defendant’s health, station, occupation, amount and sources of income, employability, and estate are all far superior to that of the plaintiff. The plaintiff simply does not have the ability to increase her income or decrease her expenses. Although it would be nearly impossible for the defendant to decrease his expenses, he does have the ability to increase his earnings. He has an earning capacity in excess of his current level of earnings. It is essential for him to redouble his efforts to maximize his earnings so that he can continue to pay the current alimony order which is indispensable to the plaintiff’s life and health. For these reasons, the motion to modify is denied.
BY THE COURT, PICKARD, JUDGE. CT Page 14429