Simms v. Simms

• Decision Date: 14 August 2007
• Docket Number: No. 17712.,17712.
• Citation: 283 Conn. 494,927 A.2d 894
• Court: Connecticut Supreme Court
• Parties: Donna SIMMS v. Robert SIMMS.

927 A.2d 894

283 Conn. 494

Donna SIMMS v. Robert SIMMS.

No. 17712.

Supreme Court of Connecticut.

Argued March 15, 2007.

Decided August 14, 2007.

Kenneth J. Bartschi, with whom were Brendon P. Levesque and, on the brief, Karen L. Dowd, Hartford, for the appellant (plaintiff).

Samuel V. Schoonmaker IV, with whom, on the brief, were Samuel V. Schoonmaker III, Peter M. Bryniczka, Greenwich, and Aidan R. Burgers, for the appellee (defendant).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

The dispositive issue in this appeal¹ is whether the trial court abused its discretion in reducing the alimony that the defendant, Robert Simms, is obligated to pay to the plaintiff, Donna Simms, from $78,000 to $1 per year after finding a substantial change in circumstances pursuant to General Statutes § 46b-86.² We conclude that the trial court abused its discretion and, accordingly, we reverse the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff and the defendant were married in 1961 and the marriage was dissolved by order of the court in 1979. The judgment of dissolution required the defendant to make periodic alimony and child support payments to the plaintiff. In 1989, the plaintiff filed a motion for modification to increase the alimony award and the defendant filed a motion to decrease or terminate his alimony obligation. The trial court denied both motions. The plaintiff appealed to the Appellate Court, which affirmed the trial court's judgment. See Simms v. Simms, 25 Conn.App. 231, 235, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).

In August, 1998, the plaintiff again filed a motion for modification of the alimony award and the defendant responded by filing a motion to terminate his alimony obligation. The plaintiff's motion was dismissed, however, she was permitted to amend her motion for modification. She subsequently filed another motion for modification, which eventually was argued before the court in late 2002. On February 25, 2003, the trial court, Hon. Dennis F. Harrigan, judge trial referee, issued a memorandum of decision in which he found that the defendant's income had increased from $4450 per month in 1979 to $14,880.14 per month in 2002. The court concluded that "this dramatic increase in salary is an unanticipated substantial change in the defendant's financial circumstances." Accordingly, the court granted the plaintiff's motion and modified the defendant's alimony obligation upward to $1500 per week, or $78,000 per year, retroactive to August 18, 1998. This order resulted in an arrearage,³ which the court ordered the defendant to pay at the rate of $500 per week until it was paid off. The defendant appealed from the judgment to the Appellate Court and that court affirmed the judgment. See Simms v. Simms, 89 Conn.App. 158, 164, 872 A.2d 920 (2005).

The defendant again filed a motion to modify his alimony obligation downward, which motion was dated June 4, 2003. He argued that "[t]here has been a substantial change in [his] financial circumstances in that his income from employment and all other sources has declined substantially." On December 12, 2003, Judge Harrigan denied the motion.

On November 29, 2004, the defendant yet again filed a motion to modify his alimony obligation contending that there had been a substantial change in his financial circumstances because he had retired. Thereafter, in April, 2005, he filed an amended motion to modify in which he contended that the deterioration of his health as the result of depression and heart disease also constituted a substantial change of circumstances justifying the modification or termination of his alimony obligation. The trial court, Tierney, J., held a hearing on the motion on May 16, 2005, and June 30, 2005. At the hearing, the defendant testified that he was sixty-seven years old, that he suffered from depression, manifested by intense headaches, lack of energy and the inability to get out of bed, that he recently had suffered two heart attacks and that he needed knee replacement surgery on both knees. He further testified that, since Judge Harrigan's February, 2003 ruling granting the plaintiff's motion for modification, he had retired from his position as chief executive officer of Simms Capital Management and had no current income from employment. His sole current income was $1640 per month in social security benefits.⁴ The defendant presented evidence that he had sold his entire interest in Simms Capital Management, including stocks for $468,571, plus $400,000 to be paid in installments. The defendant's current expenses were $18,422.67 per month, including $8666.67 in alimony and arrearage payments to the plaintiff. He paid these expenses primarily by borrowing against his residence. The evidence presented at the hearings also established that the value of the defendant's assets less the value of his liabilities was $4,092,720 at the time of Judge Harrigan's February, 2003 ruling and currently was $2,806,338.

On the basis of this evidence, the trial court concluded that the defendant had met his burden of proving a substantial change of circumstances within the meaning of § 46b-86. The court then considered the criteria set forth in General Statutes § 46b-82⁵ for modifying the amount of the defendant's alimony obligation. The court found that the plaintiff was sixty-eight years old, was receiving medication for thyroid and breast cancer and had suffered a stroke. She was employed as a counselor and therapist at Greenwich Hospital and earned $1625 per month. In addition she received $797 per month in social security benefits and investment income of approximately $250 per month. She owned an individual retirement account valued at $6000, stocks and bank accounts valued at $78,215 and a residence valued at $695,000.

The court concluded that modification of Judge Harrigan's February, 2003 order was warranted and reduced the defendant's alimony obligation from $1500 per week to $1 per year. In support of this conclusion, the court noted that the defendant was sixty-seven years old, that he had paid alimony for twenty-six years, that his health had deteriorated substantially since 2002, that he had sold his entire interest in the primary source of his income, that he was unemployed and his sole current income was $1640 in social security benefits, and that he was required to "invade assets" to pay his living expenses. The court also stated that it could not "consider in this modification motion the parties' current assets except as they related to the production of income or their capability of income production."

The plaintiff then filed this appeal. Thereafter, the defendant filed a motion for articulation in which he asked the trial court to clarify whether it had considered the value of the parties' current assets in reaching its determination. The court granted the motion and issued an articulation in which it stated that it had not considered the value of the parties' assets for the purpose of determining whether there had been a substantial change in circumstances pursuant to § 46b-86 because it had made that determination on other grounds. The court also stated, however, that it had "analyz[ed] each of the assets of the parties" in determining the amount of the modification pursuant to § 46b-82. The court indicated that, because it had no authority to modify the division of the parties' assets after the initial dissolution judgment or to order that alimony be paid out of assets, it had limited its consideration of the parties' assets to whether they were capable of producing income.⁶ The court noted that there was no evidence that any of the defendant's assets were income producing.

The plaintiff then filed a motion for review in the Appellate Court in which it asked that court to vacate the trial court's memorandum of decision on the motion for articulation and to reverse the trial court's order granting the motion. The plaintiff argued that the trial court improperly had used the articulation to change its rationale for granting the defendant's motion for modification of alimony. The Appellate Court granted the motion for review, but denied the relief requested therein. The plaintiff then filed an amended appeal to which she appended an amended preliminary statement of issues indicating that she intended to challenge the trial court's articulation. Thereafter, she filed a motion for permission to file a corrected amended appeal to clarify that she was appealing from the trial court's articulation. The Appellate Court denied the motion and, sua sponte, struck the portion of the amended preliminary statement of issues indicating that the plaintiff intended to challenge the articulation. The plaintiff then filed a motion for reconsideration en banc, which the Appellate Court denied.

The plaintiff claims on appeal that the trial court improperly: (1) changed the rationale for modifying the defendant's alimony obligation in its articulation; (2) failed to consider the value of the parties' assets in determining the amount of the modification; (3) concluded that there was a substantial change of circumstances; and (4) concluded that the installment payments received from the sale of the defendant's business were not income but a return of capital. The plaintiff further claims that, if we conclude that the trial court properly found a substantial change of circumstances, the trial court's modification of the defendant's alimony obligation from $78,000 to $1 per year was an abuse of discretion. We conclude that the trial court properly concluded that there had been a substantial change of circumstances since Judge Harrigan's order in February, 2003, warranting modification of the defendant's alimony obligation. We further conclude that the plaintiff's abuse of discretion claim subsumes her second and fourth claims and that the...