Summary
In Salzarulo, the payor sought a modification of his support obligation after voluntarily retiring from the U.S. Postal Service at age 55 with over thirty years of service.
Summary of this case from Lorenti v. LorentiOpinion
No. FA 00-0725814S
March 19, 2004
MEMORANDUM OF DECISION ON MOTION FOR MODIFICATION OF ALIMONY AND CHILD SUPPORT, POSTJUDGMENT
Brief History of the Case
By motion dated October 20, 2003, the defendant seeks to modify an alimony and child support order entered as part of a dissolution judgment dated November 2, 2001. The defendant is requesting that the Court reduce these obligations based on a substantial change in the financial circumstances of the parties, specifically the defendant's retirement from the U.S. Postal Service after 30 years of service and the plaintiff's increased earning capacity.
After a dissolution trial of two days, the Court, Pickard, J., made, inter alia, the following findings:
The calculation of child support is based upon the actual weekly gross of $144 for the plaintiff and $1,220 for the defendant (base salary of $742 plus 12 hours of overtime at $27 per hour plus $215 in VA disability benefits). This produces presumptive child support of $285 per week from the defendant to the plaintiff . . . the plaintiff has the capacity to earn $300 per week by simply increasing her work hours to about 25 hours per week.
The Court then entered the following orders:
The defendant shall pay to the wife child support in the amount of $245 per week . . . the defendant shall pay to the plaintiff periodic alimony in the amount of $300 per week until the death of either party, the remarriage of the plaintiff or 15 years from the date of this judgment. Alimony shall be non-modifiable as to term only.
Within a period of ten weeks, on January 23, 2002, the defendant filed, among other motions, a motion to modify child support and alimony which was based on his claim that due to carpal tunnel syndrome, and pursuant to his physician's orders, he has been unable to work overtime, thus constituting a substantial change in circumstances. After a hearing, the Court, Brennan, J., entered the following ruling:
At such time as the defendant shall undergo the carpal tunnel surgery as outlined by Dr. Thompson the defendant's alimony obligation shall be reduced to $75 per week and his child support obligation shall be reduced to $221 per week. This modification shall continue for a total period of twelve weeks after which time the original and present order of this court on the subject shall again be in effect.
At some point, the plaintiff had the surgery and after the requisite twelve weeks passed, the original order of support was reinstated.
Findings of Fact
The Court heard testimony from the parties and reviewed all exhibits entered. After consideration of this evidence, the Court finds the following facts:
At the time of the dissolution, the defendant was employed by the U.S. Postal Service. He worked a full-time job on the night shift with significant overtime. He also received veteran's benefits and had been earlier diagnosed with post-traumatic stress disorder. The plaintiff was employed at a pizza restaurant as a waitress. She worked part-time, eleven to twenty hours per week. The defendant was 53 years of age and the plaintiff was 47 years of age. The parties' children were ages 11 and 9.
At the time of the filing of the motion to modify, the plaintiff and the defendant had been divorced just two years. In September 2003, the defendant elected to retire after 32 years as a postal service employee. According to his testimony, the defendant did not think that the Court's ruling at the time of dissolution was fair, was upset and, as a result, lost time at work because he went "out of wack." He testified that his posttraumatic stress disorder has gotten worse over the last three to four years but that he left an "easy job" when he retired in September 2003. He could not produce any witness who would testify that he was unable or unfit to work. At the same time, he testified that he felt he had "no choice" but to retire early. He sees a therapist and meets with a Viet Nam veterans group weekly. He indicated that he pays his 25-year-old daughter's automobile insurance. He now has a monthly net pension of $1,211.00 per month and VA disability benefits of $907.00 per month for a weekly net earning of $489.00 per week.
Since his retirement in September, the defendant has traveled on more than one occasion to the Phillipines and to the Dominican Republic.
The plaintiff testified that she has been living with the same gentleman that she resided with at the time of the dissolution trial. She also testified that he just recently moved out in the last week but the Court is quite skeptical of the veracity of this testimony, given the timing of the purported event and given the state marshal's testimony that this gentleman was observed leaving the plaintiff's home when service was attempted.
The plaintiff also testified that she was offered a job at a bank in November 2002 at $10.00 per hour but worked just three days. She continues to be employed at a pizza restaurant and earns $7.15 per hour earning approximately $140.00 plus tips per week. She works twenty to twenty-one hours per week. She does not have health insurance because she claims to be unable to afford it and continues to feel that her children are too young at the ages of 11 and 13 for her to work full-time. She testified at the time of the dissolution hearing that she and Spiros have a joint checking account, have had an intimate relationship and that they pool their money to pay expenses. She also testified that she envisioned going back to work within a period of two to three years.
Spiros, her significant other, testified that he can only work part-time due to a back injury and that he is $25,000.00 in arrears in child support for his own children.
In order to modify or terminate an alimony award, Conn. Gen. Stat. § 46b-86(a) requires "a showing of a substantial change in the circumstances of either party." Under this statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. Borkowski v. Borkowski, 228 Conn. 729 (1994).
In general, the same sorts of criteria are relevant in determining whether a decree may be modified as are relevant in making the initial award of alimony. They have primarily to do with the needs and financial resources of the parties. Sanchione v. Sanchione, 173 Conn. 397, 401-02 (1977). Specifically, Conn. Gen. Stat. § 46b-82 requires the Court to consider, among other things, the age, health, station, occupation, amount and sources of income, vocational skills, employability, and the needs of each party. It is clear from the testimony and exhibits that the defendant's income has significantly declined.
However, a defendant's inability to pay "does not automatically entitle a party to a decrease of an alimony order." Sanchione v. Sanchione, 173 Conn. 397 (1977). Such inability to pay must be excusable and not brought about by the defendant's own fault before a motion for modification may be granted. Wanatowitz v. Wanatowitz, 12 Conn. App. 616 (1987); Gleason v. Gleason, 16 Conn. App. 134 (1988).
While it is clear to the Court that the defendant's income has declined, this reduction was the direct result of the defendant's decision to retire from the U.S. Postal Service at the age of 55. In the instant case, although the defendant has begun to receive the benefit of his pension as a result of having taken early retirement, the plaintiff has waited to take her pension benefits, presumably to maximize those benefits.
Voluntary retirement under some circumstances may constitute a substantial change in circumstances. Misinonile v. Misinonile, 35 Conn. App. 228; 645 A.2d 1024, cert. denied, 231 Conn. 929, 649 A.2d 253 (1994). The defendant's net earnings at the time he elected to take early retirement were at least $1,000.00 per week. Although he would like the Court to believe that his health has deteriorated since the date of dissolution, the Court is not persuaded that it differs significantly from his health status at the time of dissolution. Neither a decline in the defendant's health nor his advanced age are persuasive to the Court in justifying the defendant's early retirement. The alimony and child support orders had only been in force for two years when the defendant voluntarily reduced his income at age 55, apparently giving little thought to his financial obligations to the plaintiff and to his children. The children should not have to pay the price for his voluntary choice to retire early from what was admittedly an "easy job."
At the same time, it is understandable that the defendant might choose to reduce his overtime hours at some point. Reducing his work schedule to 40 hours per week would result in net weekly earnings of $760.00. This, in and of itself, would constitute a substantial change in circumstances warranting some modification.
Similarly, the Court finds that any evaluation of the plaintiff's earning capacity should now be based on a full-time employment schedule. Not only did the plaintiff indicate her intention, at the time of the dissolution, to work full-time within two to three years but she has worked full-time for a period of at least three days at a bank for $10.00 per hour and she is sharing living expenses with a cohabitant who also works only part-time. Additionally, the children have reached a sufficient age to warrant the defendant's return to work at a 35 hour per week schedule. This increase in her earning capacity, to a minimum net salary of $390.00 per week, coupled with the defendant's full-time employment without overtime, would constitute a substantial change in circumstances.
Therefore, based upon the evidence presented, the defendant's motion to modify is granted.
Orders
Alimony is modified to $75.00 per week. Pursuant to child support guidelines, child support is modified to $211.00 per week. These orders are effective April 15, 2004, which will give the plaintiff additional time within which to find full-time employment.
Any unreimbursed medical or dental expenses shall be split 50%-50% by each party.
The defendant may reduce his life insurance coverage to reflect his decreased alimony and child support obligations.
BY THE COURT
Prestley, J.