Fisher v. Fisher
| Decision Date | 04 August 1992 |
| Docket Number | No. 10082,10082 |
| Citation | 611 A.2d 440,28 Conn.App. 483 |
| Court | Connecticut Court of Appeals |
| Parties | Bernard FISHER v. Jean B. FISHER. |
C. Ian McLachlan, Hartford, with whom, were Laura W. Ray, Wilmington, Del., and, on the brief, William H. Narwold, Hartford, for appellant-appellee (defendant).
L. Paul Sullivan, Hartford, for appellee-appellant (plaintiff).
Before DUPONT, C.J., and FOTI and LAVERY, JJ.
The defendant appeals from the judgment of the trial court granting the plaintiff's motion for modification of an award of periodic alimony awarded to the defendant after the judgment of dissolution of marriage, and as modified on three previous occasions.
We recently reviewed the granting of the defendant's motion for modification of alimony; Fisher v. Fisher, 25 Conn.App. 82, 592 A.2d 968, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991); and remanded it for a determination of whether the change in circumstances was contemplated by the parties at the time of the decree. Prior to that matter's being argued before this court, the plaintiff's motion that is the basis of this appeal had already been heard and decided by the trial court.
The defendant claims that the trial court improperly (1) found a substantial change of circumstances, (2) determined that the orders should reflect the needs that existed in 1986, the year of the initial modification of the dissolution, and (3) failed to follow the statutory procedures for considering the plaintiff's motion to modify. The plaintiff has filed a cross appeal claiming that the trial court improperly (1) failed to consider an inheritance by the defendant in ruling on the plaintiff's motion and (2) concluded that its order reducing the defendant's alimony should not be retroactive. We remand for further proceedings.
The facts necessary for a resolution of this matter may be summarized as follows. On October 4, 1984, the marriage between the parties was dissolved. On May 30, 1986, upon a motion for modification by the plaintiff, a state trial referee, Hon. John M. Alexander, modified the defendant's alimony and awarded her $2400 per month. On May 16, 1990, the trial court, Steinberg, J., granted the defendant's second motion for modification and increased the alimony award to $4800 per month. The plaintiff appealed and we remanded with direction. 1
On August 29, 1990, the plaintiff filed the present motion for modification. On March 13, 1991, the trial court, Barall, J., granted the motion, and reinstated the trial referee's 1986 modification orders.
The defendant first claims that the court's finding of a substantial change in circumstances was unsupported by the facts because the plaintiff's financial circumstances had not deteriorated subsequent to the granting of the prior modification by the court on May 16, 1990. Such an uncontemplated substantial change must have occurred after the date of the last modification order. Hirst v. Hirst, 2 Conn.App. 348, 349-50, 478 A.2d 618 (1984); see also Connolly v. Connolly, 191 Conn. 468 473, 464 A.2d 837 (1983); Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982).
The plaintiff's motion for modification claimed a substantial change of circumstances in two aspects: an inheritance by the defendant in the amount of $149,541.45, and a reduction in the plaintiff's assets. In May, 1990, Judge Steinberg had concluded that the plaintiff had saleable assets totaling $1,447,800, which could be used to meet the existing annual deficit of $62,509.20 resulting from the plaintiff's failure to project a future resumption of a $72,000 per year income. These assets were three mortgages amounting to $847,000, and Waterbury Operating Corporate stock valued at $600,000.
In 1991, Judge Barall recognized that the findings made by the prior court and by the state trial referee were matters of record that could not be altered. The court accepted those facts and conclusions, but found that the Waterbury Operating Corporation, operating under a lease and in the process of being evicted, had become valueless since the last hearing. It found that the stock had a value of zero and that the $72,000 annual income, as projected in the prior modification hearings, had never materialized. The court further found that one of the assets existing in 1990, a mortgage note valued at $150,000, was no longer an asset in 1991. The court also made certain determinations as to the other two assets that are not necessary to this appeal.
" ' ' Salaman v. Salaman, 25 Conn.App. 563, 564, 595 A.2d 909 (1991).
After review of the briefs and the record, we conclude that the trial court did not abuse its discretion and that a reasonable basis exists in the facts that a substantial change of circumstances could reasonably have been found to have occurred subsequent to the 1990 modification.
The trial court, having found that there had been a substantial change of circumstances, then made new orders. The trial court was not required to determine whether such change in circumstances was contemplated by the parties at the time of the decree of dissolution. 2
The defendant next claims that the trial court improperly failed to follow the statutory criteria in ruling on the plaintiff's motion to modify. We agree.
The trial court, having found a substantial change in circumstances, put the parties back to "square one," being the status of the parties as of state trial referee Judge Alexander's decision. The trial court did not examine the present circumstances of the parties but rather adopted those that existed in 1986.
Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). The court's power to modify is created by statute and it must make its determinations on the basis of the statutory standards. The trial court was limited to reviewing the current situation of the parties in light of the statutory criteria set forth in General Statutes § 46b-82. 3 "These have chiefly to do with the needs and financial resources of the parties." Sanchione v. Sanchione, supra, 173 Conn. at 402, 378 A.2d 522. "Our modification statute, General Statutes § 46b-86, reflects the legislative judgment that continuing alimony payments should be based on current conditions." Rubin v. Rubin, 204 Conn. 224, 236, 527 A.2d 1184 (1987). The court must determine, inter alia, the defendant's current needs and the plaintiff's current ability to pay in light of those needs. We remand for that purpose. 4
The plaintiff claims that the trial court improperly failed to grant him some relief by virtue of the defendant's inheritance, which, he contends, "like winning the lottery, is probably the classic favorable change of circumstance."
The record reveals that the court considered the inheritance, stating, "I'm not quite sure whether the inheritance in and of itself would have been sufficient for a change of circumstances, although it has a certain amount of net inheritance of Mrs. Fisher of approximately $125,000 to $150,000, depending on how--whether you're attributing the amount that she's already received and has partially expended." 5
In cases involving a modification of alimony, "great weight is due to the action of the trial court and every reasonable presumption will be made in favor of its correctness." Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). A trial court has broad discretion in deciding a domestic relations matter; Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); and our review is limited to whether the court's conclusions were correct in law and reasonably reached on the basis of the evidence presented. Cattaneo v. Cattaneo, 19 Conn.App. 161, 166, 561 A.2d 967 (1989). We will not substitute our judgment for that of the trial court unless there has been an abuse of discretion or the findings lack a reasonable basis in fact. Paddock v. Paddock, 22 Conn.App. 367, 372, ...
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