Juliano v. Juliano, No. FST FA 93 0134251 S (Conn. Super. 8/23/2006)
| Decision Date | 23 August 2006 |
| Docket Number | No. FST FA 93 0134251 S,FST FA 93 0134251 S |
| Court | Connecticut Superior Court |
| Parties | Maria Juliano v. Joseph Juliano Opinion No.: 94844 |
This is a postjudgment proceeding on multiple motions filed by both parties. Judgment entered after trial on July 19, 1995, wherein the court, Harrigan, J., ordered the defendant to pay $1,200 per week unallocated alimony and child support. A motion to modify the judgment was filed in 1998 and after a contested hearing, Judge Harrigan on May 21, 1999 issued a modified order of $1,200 per week allocated only as alimony. Both parties have now filed four motions. The parties stipulated that all evidence produced at this hearing would be applicable to all four motions. Those motions are: (1) Defendant's Motion for Modification of Alimony dated December 14, 2005 (#165.00); (2) Plaintiff's Motion for Modification of Alimony dated February 6, 2006 (#167.00); (3) Plaintiff's Motion for Contempt dated February 6, 2006 (#168.00); and (4) Plaintiff's Motion for Counsel Fees dated February 14, 2006 (#171.00). In addition the plaintiff requested an order that the defendant provide security for future alimony payments.
After hearing the evidence, considering the exhibits, testimony of the parties, the claims of law and claims of fact, the Court makes the following findings of fact and legal conclusions:
The parties were married on May 18, 1974. There are two children issue of the marriage now ages 26 and 30. He was employed by Pepsi Co., Inc. as of the date of the 1995 dissolution as well as the 1999 decision on the Motion for Modification. He worked for PepsiCo., Inc. for 33 years and resigned on December 31, 2005 as Vice President Industry Relations for Pepsico Food Services. He held that position for one year. Immediately prior he was the Vice President of Entertainment Sales of the Pepsi Cola Company, a position he had held for the previous fourteen years. The defendant is now unemployed.
At age 52 the defendant testified that he felt his continued employment was doubtful. He stated he was in the process of losing his perks, vesting rights, his pay grade, medical benefits, his bonus and even his retirement benefits. At age 52 he signed an employment contract securing his job until age 55. The defendant is in good health.
The plaintiff is now unemployed. Her sole source of income is the weekly alimony order of $1,200. She was last employed at a Westport, Connecticut jewelry store earning $265 a week net at the time. She is 53 years old and in good health. In the last year the plaintiff has made no efforts to obtain employment.
There are three issues necessary for the trial court to consider in a Motion for Modification brought pursuit to General Statutes §46b-86: (1) Does the decree or separation agreement preclude modification? (2) Has there been a "substantial change in circumstances of either party?" and (3) What is the appropriate financial order considering the factors of General Statutes §46b-82? Borkowski v. Borkowski, 228 Conn. 729, 737 (1994).
As to the first issue the Court has examined both the 1995 decree as well as the 1999 modification decision and neither court order prevents the $1,200 per month alimony from being modified either as to term or amount. No court order prevents upward or downward modification of the $1,200 per week periodic alimony award, nor does any order contain a precondition that must be met before a modification can be considered.
The parties stipulated that the last financial order was Judge Harrigan's May 21, 1999 Memorandum of Decision on the defendant's Motion for Modification, wherein he ordered the $1,200 per week to continue as alimony in lieu of the former order of $ 1,200 unallocated alimony and child support. Therefore, the base financial circumstances of the parties are as existed in that 1999 proceeding. The parties provided the Court with the financial affidavits on file for that 1999 proceeding. The defendant was gainfully employed in 1999. The defendant is no longer employed. His loss of employment is a substantial change in circumstance. The second issue in both motions for modification has been satisfied.
There is no provision in General Statutes §46b-86 or in any case law interpreting that statute, that requires that the direction of the modification, if any, must be in the same direction of the change in circumstances. Therefore, it is possible under the statutory scheme, that a change in circumstance can be found that the payor has a lesser income, but after applying the factors of General Statutes §46b-82 an increase in the periodic order can be ordered. That outcome is permitted by statute and case law and no contrary authority has been brought to this Court's attention.
Having found that there is no prohibition against modification contained in the prior court orders and that there has been a substantial change in circumstance, the Court proceeds to the third issue, an examination of the financial circumstances of the parties utilizing the factors of General Statutes §46b-82. Certain of those factors are not relevant for the Court's consideration in a modification proceeding. The trial court in 1995 considered the causes of the breakdown of the marriage and therefore, fault is not a relevant factor in a later modification. The court has no power in a motion to change the distribution of assets. The Court lacks subject matter jurisdiction to reallocate assets of the parties after the decree. Bartlett v. Bartlett, 220 Conn. 372, 382 (1991). General Statutes §46b-81(a) "At the time of entering a decree . . . dissolving a marriage . . ." Santoro v. Santoro, App. 212, 217 (2002); Taylor v. Taylor, 57 Conn.App. 528, 533 (2000). The Court will now consider each of the four motions along with the security request.
THE DEFENDANT'S MOTION FOR MODIFICATION DATED DECEMBER 14, 2005 (#165.00)
As stated and found by this Court, defendant is no longer employed. The defendant approximately three years ago planned to retire from PepsiCo., Inc., at age 55. This Court finds that the defendant's retirement was voluntary and the defendant's current unemployment is voluntary. The fact that he is not employed does not entitle him to a decrease in the alimony order. Sanchione v. Sanchione, 173 Conn. 397, 407 (1977); Gleason v. Gleason, 16 Conn.App. 134, 137 (1988).
This Court finds that the defendant left his position at PepsiCo., Inc. for inadequate reasons. The defendant had a written agreement with PepsiCo., Inc. that entitled him to retire at age 55 and this agreement gave him the opportunity as of January 2004 to work on a part-time basis. Exhibit #4. Despite that agreement the defendant continued to work on a full-time basis earning a large bonus for each of those years. He voluntarily left PepsiCo., Inc. and is no longer entitled to his salary, stock options or a bonus. The fact that he felt that maybe in the future his salary would decrease, his bonus would end and he would be awarded no further stock options, does not alter this Court's finding, that he voluntarily left gainful employment. By leaving PepsiCo., Inc. the defendant voluntarily confirmed his worst fears: he no longer has a salary, bonus or stock options.
Tort cases and family use the same rules for proof of earning capacity. "There is no precise mathematical formula to calculate damages for loss of earning capacity." Jerz v. Humphrey, 160 Conn. 219, 221 (1971). (Citation omitted.) Id., 222. "The assessment of such damages does not depend on the plaintiff's receipt of any wages at all because it is the capacity to earn that governs the amount of damages to which a plaintiff is entitled." Lashin v. Corcoran, 146 Conn. 512, 514 (1959); Nunez v. Palmer, supra, 96 Conn.App. 709. The issue is whether the evidence allows a finding of the reasonable estimate of the dollar amount of the earning capacity. Mulligan v. Rioux, 38 Conn.App. 546, 553 (1995).
Nunez v. Palmer, supra, 96 Conn.App. 710.
The defendant learned substantial employment skills in the 33 years he worked at Pepsico., Inc. He received a BS and an MBA in marketing from St. John's University. He is well known in the entertainment marketing and publicity industry throughout the country. He is currently an officer and director of Nevada Gold and Casino, Inc., a publicly traded corporation. He owns 22,900 shares outright and has 70,000 shares of optioned stock in that corporation. He still has multiple business contacts. The skills he acquired during his 33 years at PepsiCo., Inc. would be transferrable. Nevada Gold and Casino, Inc. has asked him to assume responsibility for some of its business ventures and the defendant has declined. The Court finds that he is capable of earning a substantial salary. The defendant has provided no reason why he has not obtained a job similar in duties, responsibilities and pay to what he had at PepsiCo., Inc., Tracey v. Tracey, 97 Conn.App. 122, 130 (2006); Richard v. Richard, 23 Conn.App. 58, 63 (1990); Prial v. Prial, 67 Conn.App. 7, 12-13 (2001). "Loss of employment does not warrant alimony...
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