173 Conn. App. 595
Conn. App. Ct.2017Background
- Mary L. Bauer and Jeffrey W. Bauer divorced in 2011; the judgment incorporated a settlement requiring Jeffrey to pay $10,417/month alimony (based on his $436,000 annual gross income).
- The agreement made alimony modifiable upon a substantial change in circumstances and distributed marital assets to the parties.
- Jeffrey was terminated from long-term employment in December 2013, received severance through September 2014, and then stopped alimony payments after severance ended.
- After termination, Jeffrey performed consulting work through an LLC (paid on a per diem/1099 basis), had reduced net weekly income (~$1,913), withdrew retirement funds, and sought but had not secured permanent employment.
- Plaintiff moved for contempt for wilful nonpayment; defendant moved to modify alimony based on substantially changed financial circumstances. The trial court denied contempt and reduced monthly alimony to $2,500. Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant's failure to pay alimony was wilful contempt | Bauer argued nonpayment from September 2014 onward was wilful and met clear-and-convincing standard for indirect contempt | Jeffrey argued termination was involuntary, he paid until severance ended, and he lacked ability to pay thereafter | Court affirmed: factual findings showed involuntary job loss, reduced income, credible efforts to obtain work; inability to pay was a valid defense, so no wilful contempt |
| Whether defendant's conduct foreclosed finding a substantial change in circumstances (culpable conduct) | Bauer contended defendant's post-termination spending/extravagance created the hardship and was culpable, so modification should be denied (relying on Sanchione/Olson/Mekrut) | Jeffrey argued job loss was involuntary, he prudently sought work, used awarded assets and severance, and income dropped dramatically — a genuine substantial change | Court affirmed: job loss was involuntary and unanticipated, expenditures were from his awarded share, court found no culpable conduct, substantial change established |
| Whether the trial court erred by excluding evidence relevant to § 46b-82 factors (station, expenses) | Bauer claimed the court improperly excluded evidence about defendant's station, nonessential expenses, and Massachusetts property improvements and that a new hearing was required | Jeffrey noted the court admitted many of plaintiff's exhibits (credit card, bank statements, construction sheet) and afforded broad cross-examination; excluded items were not shown to be outcome-determinative | Court affirmed: plaintiff failed to identify excluded evidence or show harm; trial court has broad discretion on admissibility and need not list each § 46b-82 factor expressly |
Key Cases Cited
- Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384 (Conn. 2009) (obligor bears burden to prove inability to pay; inability without fault is a defense to contempt)
- Olson v. Mohammadu, 310 Conn. 665 (Conn. 2013) (voluntary actions causing change require inquiry into motivations to determine culpable conduct)
- Sanchione v. Sanchione, 173 Conn. 397 (Conn. 1977) (inability to pay must be excusable and not due to extravagance or neglect)
- Schade v. Schade, 110 Conn. App. 57 (Conn. App. 2008) (trial court must first find a substantial change in circumstances before applying § 46b-82 factors for modification)
- Rosato v. Rosato, 77 Conn. App. 9 (Conn. App. 2003) (property dispositions at dissolution are not subject to later modification)
- Brody v. Brody, 315 Conn. 300 (Conn. 2015) (indirect civil contempt requires clear-and-convincing proof)