BOZZUTO, JUDGE.
The plaintiff brought an application for order of hearing and notice dated September 30, 2002. Attached thereto the plaintiff filed his postjudgment motion for modification. In his motion, the plaintiff prays for "this court to modify the current orders of alimony and child support reflecting his current income."
On January 13, 2003 and January 27, 2003, the court heard plaintiff's motion for modification simultaneously with the defendant's two motions for contempt, which are not subject to this articulation. The court issued its ruling in regard to plaintiff's motion for modification on January 31, 2003. Thereafter, on March 20, 2003, the plaintiff filed this request for articulation. The plaintiff's request is granted, and the court provides its articulation below.
Connecticut General Statutes § 46b-86 (a) governed this modification proceeding. Unless a decree precludes modification, any final order of periodic alimony and/or support may be modified. The subject orders are clearly modifiable.
In order to invoke the court's authority, the statute requires the moving party to demonstrate "a substantial change in circumstances." The standard of proof is by clear and convincing evidence. Wingerd v. Wingerd, 3 Conn. App. 261, 262 (1985).
The case at hand presented this court with an unusual problem. Before this court could determine whether a substantial change in circumstances had occurred, the court first had to determine the income of the plaintiff as considered by the court in setting its orders on the date of dissolution, September 6, 2000. In making this determination, this court reviewed the judgment of dissolution, the transcript of the dissolution hearing, the parties' separation and property settlement agreement, the parties' financial affidavits submitted on the date of dissolution and the CT Page 4465 parties' testimony at the subject hearing on January 13 and January 17, 2003.
The plaintiff has been employed by Peek Search, Inc. for at least ten years as an executive recruiter. The plaintiff works on a commission basis only.
The plaintiff argued at the modification hearing that the income figure the court relied upon at the time of dissolution was based upon the plaintiff's "anticipated" income of $150,000 per year. Conversely, the defendant argued that the income which was relied upon by the trial court at the time of dissolution was as reflected on the plaintiff's financial affidavit, or otherwise, $78,000 per year.
As to the actual judgment, it is completely silent as to the alimony award being based upon plaintiff's "anticipated income." Conversely, the judgment does specifically note that the award of child support is based upon a "deviation of the child support guidelines."
As to the provisions of the parties' separation and property settlement agreement, dated September 6, 2000, specifically Article 10.1, this court noted that the alimony was for an eight year period and non-modifiable as to term. Additionally, the last line of Article 10.1 reads as follows: "At this time, alimony is based on the husband's anticipated income of $150,000 per year."
This court further noted that this same language regarding "anticipated income" is absent from Article 11, which addresses child support.
A review of the transcript of the dissolution hearing indicates that plaintiff's counsel inquired of plaintiff in regard to his "expectation" to earn $150,000 per year. The plaintiff agreed to the proposed alimony based upon his "anticipation" of earning $150,000 per year (at page 10 of the transcript).
At page 11 of the transcript, the plaintiff testified as to the child support proposal. The plaintiff agreed to an upward deviation of the child support, based upon the "tax planning and division of assets" deviation criteria. There was no mention that the upward deviation of the child support was based upon the plaintiff's "anticipated income" of $150,000 per year.
Further, on page 11 of the transcript, the plaintiff specifically testified that it was his expectation to pay the proposed child support and alimony from savings and earnings "at this time." Plaintiff's CT Page 4466 testimony further indicates that plaintiff was "hopeful" that his income would go up to $150,000 per year.
On page 26 of the transcript from the dissolution hearing, the court made its findings. Although the court found the written separation and property settlement agreement to be fair and equitable, the court was silent as to whether it based its approval of the alimony order on the financial affidavits submitted by the parties or upon the plaintiff's "anticipation" that he would earn $150,000 per year.
The rule in Connecticut is quite clear that any monetary award must be based upon the parties' current financial circumstances and not mere speculation. Schmidt v. Schmidt, 180 Conn. 184 (1980). The courts have repeatedly stated that it is the net income available to the payor that must be considered. Bronson v. Bronson, 1 Conn. App. 337 (1984).
No testimony or evidence was offered to the court to support the $150,000 per year figure. The court made no finding as to the plaintiff's "anticipated income." The trial court made no finding that the award of alimony was based upon plaintiff's "anticipated income." There is no indication on the record before this court that the court at the time of dissolution accepted the speculated figure.
Additionally, if the court in this modification proceeding were to accept the argument advanced by plaintiff and the general concept that a court may base an award upon unsupported, "anticipated" income, abuse and error would ensue. In effect, this proposition would give permission to payors to make promises of modifiable support based upon inflated, unsupported income figures, in exchange for payees' reduced, non-modifiable property awards. After the passage of time, the speculative figure being unattainable, the support payor moves to modify the support order, and the payee, who possibly received less property in exchange for the increased support, would be without remedy. Further, such a practice would leave any subsequent court reviewing the matter in the position to determine whether the proposed "anticipated" income was something based in reality and truly attainable or otherwise mere wishful thinking.
Finally, the record is clear that the child support award was based upon the deviation criteria of "tax planning and division of assets," not "anticipated income." It would appear highly improbable that the court at the time of dissolution would base one support order upon one set of income figures and another support order on a separate set of income figures. CT Page 4467
This court dismissed plaintiff's argument that the alimony award at the time of dissolution was based upon the plaintiff's hope of earning $150,000, in that the claim is not supported by the record, and this court finds it highly unlikely that the judge hearing this dissolution would have done so without clearly stating it on the record.
Despite this though, this court did find that the plaintiff's gross annual income at the time of dissolution was $78,000, as compared to his current gross annual income of $52,000. The court found this income decrease to be a substantial change in circumstance, warranting a modification of the current support orders.
In fashioning the modified order, this court considered the child support guidelines and all of the statutory criteria set forth in Connecticut General Statutes § 46b-82. Also, Shearn v. Shearn, 50 Conn. App. 225 (1998). In its review, this court was mindful that the only ground alleged by the plaintiff as a basis for relief was his alleged decrease in income.
As to the child support, the court found the defendant's current gross weekly income from all sources (employment and trust income) to be $1,065.86. The court found the plaintiff's net weekly income, for guideline purposes, to be $839.87 per week. The court found the defendant's net weekly income to be $35 per week. The basic child support obligation is $284. Applying the appropriate decimal shares and adjusting for health insurance payments made by the plaintiff, the court finds the amount of child support pursuant to the guidelines to be $270 per week or, otherwise $1,170 per month. The court modifies and reduces the plaintiff's child support obligation from $2,000 per month to $1,170 per month. The court notes that this figure differs slightly from the order of January 31, 2003. In the order of January 31, 2003, the court did not make the appropriate health insurance adjustments and credits to the plaintiff. The figure noted above is the accurate and ordered child support award; effective January 31, 2003, retroactive to December 1, 2002.
As to the alimony award, this court found the following relevant facts: (1) The plaintiff's and defendant's gross and net earnings as mentioned above; (2) The plaintiff received $215,000 tax free in November 2001. The plaintiff's response as to the disbursements of these funds was somewhat inconsistent on direct and cross-examination. Of this sum, very little remains and very little was paid toward any of the plaintiff's support obligations; (3) The plaintiff has remarried and has the benefit of his wife's income as far as meeting living expenses; McGuiness v. McGuiness, 185 Conn. 7 (1981); (4) The plaintiff's commission deficit of CT Page 4468 $107,970.69 at about the time of the dissolution and the plaintiff's commission deficit of $34,596.20 on the date the motion for modification was filed; (5) Both the plaintiff and the defendant have significant unmet monthly expenses; (6) The plaintiff and defendant agreed that the defendant would be an "at home" mom, at least until the youngest child was in school full time; (7) The original alimony award is non-modifiable as to the eight year term; (8) Plaintiff's continued discretionary spending on season's tickets to various sporting events and several recent vacations; i.e., Christmas 2002, Florida; February 2002, Puerto Rico; March 2002, Las Vegas; Summer 2002, Lake Tahoe; (9) The defendant's inheritance; (10) The plaintiff's earnings and employment history as compared to the defendant's earnings and employment history; (11) The plaintiff's action in instructing his father not to visit with his children at the defendant's home, which resulted in the plaintiff's father's discontinuation of providing the defendant with $1,500 per month, which would have reduced the plaintiff's support obligation pursuant to the divorce decree; (12) The plaintiff's assets and liabilities; (13) The defendant's assets and liabilities; (14) The demeanor and credibility of the witnesses; (15) The plaintiff's refusal to search for other employment; (16) The plaintiff's and defendant's educational background.
Based upon all of these facts and considerations, the court granted the plaintiff's relief and reduced his monthly alimony obligation from $3,000 per month to $2,000 per month.
Bozzuto, J. CT Page 4469