Demartino v. Demartino

• Decision Date: 16 September 2003
• Docket Number: (AC 23413).
• Citation: 79 Conn. App. 488,830 A.2d 394
• Court: Connecticut Court of Appeals
• Parties: JOHN J. DEMARTINO v. VICTORIA ANN DEMARTINO.

79 Conn. App. 488

830 A.2d 394

JOHN J. DEMARTINO v. VICTORIA ANN DEMARTINO.

(AC 23413).

Appellate Court of Connecticut.

Argued May 12, 2003.

Officially released September 16, 2003.

Schaller, Dranginis and Flynn, Js. Gerald A. Roisman, with whom, on the brief, was Robert D. Zaslow, for the appellant (defendant).

Timothy J. Fitzgerald, with whom, on the brief, was Daniel D. Dwyer, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant, Victoria Ann Demartino, appeals from the postjudgment order of the trial court granting the motion filed by the plaintiff, John J. Demartino, to open the judgment and to modify or to terminate his periodic alimony payments to her. On appeal, the defendant claims that the court improperly (1) found a substantial change in circumstances warranting a modification and prospective termination of alimony because there was insufficient evidence concerning the future economic conditions of the parties¹ and (2) modified the alimony order inconsistent with the factors in General Statutes § 46b-82.² We reverse in part and affirm in part the judgment of the trial court.

The following facts are relevant to the disposition of the defendant's appeal. The plaintiff and the defendant were married on October 27, 1962. In 1980, the plaintiff filed a dissolution action. The marriage was dissolved on November 24, 1982. At the time of the dissolution, the parties entered into an agreement and stipulation (agreement).³ The court incorporated the agreement into the judgment of dissolution.

On July 6, 1990, the defendant filed a motion and citation for contempt and for attorney's fees, claiming that the plaintiff unilaterally had reduced his periodic alimony payments in violation of the parties' agreement and the court's order.⁴ On July 18, 1990, the plaintiff filed a motion for modification or termination of periodic alimony, claiming a substantial change in circumstances. The court denied the plaintiff's motion, reaffirming the alimony order, because it did not find a substantial change in circumstances to warrant a modification. The court granted the defendant's motion.⁵

On March 6, 2002, the plaintiff filed a motion to open and to modify the judgment. The plaintiff sought modification or termination of periodic alimony based on his claim of a substantial change in circumstances because of the recent termination of his employment. In response, on July 17, 2002, the defendant filed a motion for contempt due to the plaintiff's failure to pay alimony.⁶ The court conducted a hearing on those two motions on July 18, 2002.

The court filed its memorandum of decision on July 26, 2002, in which, after finding a substantial change in the circumstances of the parties, it ordered the plaintiff to continue to pay periodic alimony in the amount of $300 per week until December 1, 2005, when the alimony order would terminate. The court also found that the plaintiff was in arrears in his alimony payments and ordered him to pay $8500 in arrearages and $1500 for attorney's fees. The defendant filed a motion for extension of time to appeal, a motion to reargue and a motion for articulation. The court granted the motion for an extension of time to appeal and denied the motion to reargue. The court also filed an articulation in support of the July 26, 2002 memorandum of decision. The defendant now appeals.

I

The defendant first claims that the court improperly found a substantial change in circumstances warranting a modification and prospective termination of alimony on the basis of insufficient evidence concerning the future economic conditions of the parties. We agree.

We must first set forth the applicable standard of review. "The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001); see also Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). Therefore, "to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Internal quotation marks omitted.) Clark v. Clark, 66 Conn. App. 657, 668, 785 A.2d 1162, cert. denied, 259 Conn. 901, 789 A.2d 990 (2001).

General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. Borkowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). Pursuant to § 46b-86, the disputed order may be modified by the court on a showing of a substantial change in the circumstances of the parties. "In general, the same factors used by the court to establish an initial award of alimony are relevant in deciding whether the decree may be modified." Spencer v. Spencer, 71 Conn. App. 475, 480, 802 A.2d 215 (2002).

To determine whether the court abused its discretion, we must consider how it arrived at its finding of a substantial change in circumstances. "The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award." (Internal quotation marks omitted.) Prial v. Prial, supra, 67 Conn. App. 11. Here, both parties and the court appear to have considered the order requiring the repayment of the arrearage and denying the motion to modify, rendered during the hearing on those motions in 1991, to have been the most recent, prior proceeding in which an alimony order was entered.

In its memorandum of decision, the court relied on the following facts that were found during the July 18, 2002 hearing on the parties' motions. With respect to the plaintiff, in 1991, he was employed earning an annual salary of $82,680. In 1991, during the hearing on the first motion, the plaintiff had a gross weekly income of $1444 with other weekly income of $54. In August, 2001, the plaintiff's financial circumstances had changed as a result of the termination of his employment. As a result of his termination, the plaintiff received a severance package that continued his salary until December 10, 2001, and provided a lump sum payment of $175,000, payable beginning in January, 2002. As part of the severance package, his former employer paid off the balance of the plaintiff's car lease in the amount of $31,687. The plaintiff also was vested in two pension plans, both of which could begin paying $4000 monthly immediately, if the plaintiff so elected, and he chose to accept a lower monthly payment prior to the age of sixty-five. The plaintiff was eligible to receive monthly social security benefits of $1500. The plaintiff's 401 (k) plan was valued at $450,000, and he had liquid assets of $30,000. The plaintiff testified at the July 18, 2002 hearing that he had access to approximately $90,000 annually from those sources of income.

With respect to the change in the defendant's financial circumstances following the hearing held in February, 1991, the court found the following facts. The defendant became employed at the department of social services. Her gross weekly salary was $786. She will be entitled to receive a state pension with payments commencing on December 1, 2005, and was old enough to begin withdrawing funds from her individual retirement account and 401 (k) plan, which were valued at approximately $82,000. The defendant's liquid assets were valued at $179,000.

On the basis of those financial considerations, taking into account the factors in § 46b-82, the court concluded that "[t]here has been a substantial change of circumstances since 1991 when this case was last reviewed. The financial circumstances of both parties have improved significantly ... [and] both parties have a comfortable standard of living." (Emphasis added.) Accordingly, the court ordered the plaintiff to continue paying periodic alimony in the amount of $300 per week, terminating on December 1, 2005, when the defendant would become sixty-five years old and begin receiving pension payments in the amount of $320 per month. The court did not, however, make a finding of a substantial change precipitating an order for immediate modification, either downward or upward, of alimony. The court also did not order an immediate termination of periodic alimony. In essence, the court applied its present finding of a substantial change in circumstances to support a future termination of periodic alimony.

We disagree with the court's conclusions. First, the court improperly compared the parties' present financial circumstances to their financial circumstances as they existed in 1991. "The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award." (Internal quotation marks omitted.) Prial v. Prial, supra, 67 Conn. App. 11. "It is... well established that when a party, pursuant to § 46b-86, seeks a...