Last year, the state Supreme Court's family law decision was the most different from its predecessors: Dan v. Dan, 315 Conn. 1 (2014), a post-judgment alimony modification case.
The parties were married for 29 years. When the wife filed a motion to modify due to a significant change in circumstances, the parties had already been divorced for more than nine years. At the time of the parties' divorce, the husband earned a base salary of $696,000. He stipulated that based on that salary he would pay alimony of $15,000 per month. He also agreed to pay 25 percent of “certain performance-based bonuses.”
At the time of the amendment hearing, the husband's base salary had increased more than five-fold to $3.24 million. He also had made $3 million from stock option redemptions in the year after the amendment was filed in January. The appeal decisions did not discuss whether the income from the options was exceptional or whether the wife had a share in the option funds, which included performance-related bonuses. The wife received $8,000 to $12,000 annually in dividend and interest income. Although she based her motion to modify in part on her poor health, she failed to demonstrate to the trial court that her medical costs had increased since the dissolution judgment.
The parties noted that circumstances had changed significantly due to the significant increase in the former husband's income. The trial court considered Connecticut General Statutes §46b-82 factors in setting a modified alimony amount of $40,000 per month. The court emphasized the significant increase in the former husband's salary and maintained the division of his performance-based bonus agreed upon by the parties in the original dissolution judgment.
The court also changed the agreed, temporary maintenance period. Instead of ending at age 65 or soon after the husband's retirement, the court changed the alimony period so that it was of an indefinite duration and continued until the former wife's remarriage, death, or cohabitation. The trial court found that the husband's retirement “could represent a significant change of circumstances,” but his presumably negotiated termination was nixed.
The trial court found that certain §46b-82 factors were “of great importance” and “did not give much weight at all” to the parties’ needs because there was “more than enough income to meet each individual’s needs and to surpass”. Party.” The court explained that it considered important legal factors in this case to be “the duration of the marriage, the state of health of the parties, the status and occupation of the parties, and the amount and sources of income.” [and] the professional competences of the parties.” When asked by the husband for clarification, the trial court explained that it had not compared the difference in factors that arose between the dissolution judgment and the modification decision.
The appeals court affirmed the trial court's decision, finding that the trial court had not abused its discretion and citing the law based on Borkowski v. Borkowski (1994), holding that the trial court, having found a material change in circumstances, properly considered it. The same §46b-82 criteria apply that a court must use to determine an initial alimony award. The trial court was not required to consider only those factors under § 46b-82 that had changed since the judgment of dissolution.
The Supreme Court reversed the decision. The court ruled that an increase in the former husband's income alone was not a sufficient basis for changing the alimony award. The court explained the historical account of the current maintenance amendment law and did not deviate from it. However, the court did not end there. His decision appears to reflect a changing attitude towards alimony payments and is based on an examination of the purpose of alimony payments.
The Supreme Court granted the husband's motion for certification on the issue of whether “the appellate court was proper.” [upheld] based on the acceptance by the court of first instance of the plaintiff's amendment request [on] a change of circumstances.” The Supreme Court found that the appeal court's decision was erroneous, reversed the judgment and remanded it to the trial court for a rehearing.
The justices requested that the trial court apply the new standard set forth in the Dan case, that “absent certain exceptional circumstances…an increase in income does not, by itself, justify modification of an alimony award.” The Supreme Court ruled that the trial court should erred by not explicitly addressing whether such exceptional circumstances existed; The trial court had to determine whether the original alimony payment remained sufficient to fulfill its original purpose. The Supreme Court emphasized Borkowski's statement that when considering a post-judgment modification, “the court's discretion includes only the power to adapt the order to a clear and unequivocal change in the circumstances or position of the parties.”
The Supreme Court took into account the purpose of alimony and concluded that an increase in the income of the alimony payer “does not, in itself, normally justify the acceptance of an application for modification of an alimony award.” The court concluded that a legitimate purpose of alimony is to ensure the standard of living enjoyed during the marriage, citing with approval the case of Cox v. Cox in 2000 in New Jersey: “Alimony is a reward formulated as compensation.” [a] transfer [of earning power from nonworking spouse to working spouse] by adequately… meeting reasonable support needs not otherwise met through division of assets and personal income.” Footnote 10 of the Connecticut court's decision cites cases from 14 states that found the post-ruling improvement in living standards of the debtor did not justify an upward adjustment of the maintenance if the existing maintenance entitlement met the needs of the payee's spouse.
The Supreme Court recalled the case of Roach v. Roach before the Court of Appeals in 1990, pointing to temporary alimony payments as an example of another useful purpose of alimony payments: to encourage the alimony recipient to become self-sufficient. The court pointed out that an alimony recipient does not contribute to the alimony payer's ability to earn income after the divorce and concluded that there was no reason for the alimony recipient to achieve the standard of living that the alimony payer's spouse achieved after the divorce. In issuing modification orders, the trial court's discretion “must be limited by the public policies underlying the statutes governing dissolution of marriage and by the general purposes of alimony.” The court ruled that an increase in alimony based only on an increase in the payer's income cannot serve either such public policy or such a public purpose.
Finally, the court again relied on Borkowski's language cited above to limit the statutory factors that may be considered when making a request to modify alimony when “the only change in circumstances is an increase in the income of the supporting spouse.” In such a case, the trial court is permitted to consider factors that are immutable and “presumably considered by the court.” [dissolution judgment] Court in determining the purpose and amount of the original alimony award” only to determine the original intent of the award. The factors listed include the length of the marriage, the reason for the divorce and the age, status, professional skills and employability of the parties.
In certain cases it is clear why maintenance is being paid. An example may be that the parties cannot divide non-qualified retirement plans and obtain a domestic relations order. In most cases, however, an alimony claim is part of the resolution of the bundle of rights and responsibilities considered in the dissolution of a marriage. This is especially true if the parties settle their matter with an uncontested agreement, as is so often the case and encouraged by regularly cited Connecticut public policy.
Following the Dan case, the Court of Appeal applied the same decision to child support modifications in McKeon v. Lennon (2015). The Supreme Court granted certification. The Family Law Section of the Connecticut Bar Association has filed an amicus curiae brief requesting that the Dan burden of proof not be applied to child support cases. •
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