327 Conn. 485
Conn.2018Background
- Marriage dissolved in 2002; separation agreement (incorporated into decree) required alimony as a percentage of the husband's income with an annual cap and termination on death, remarriage, or cohabitation.
- Due to market downturn, defendant's income fell (~2010); judge Shay (2012) modified alimony to a flat $2,750/month based on two‑year earning capacity ($158,420/year) and the parties’ then incomes.
- Plaintiff later moved (2013) to modify the 2012 order after defendant earned substantially more in 2012 (~$293,000+); plaintiff sought reinstatement of a percentage‑based award tied to defendant’s fluctuating employment income.
- Judge Colin (2015) found defendant’s income had risen markedly and that the 2012 order no longer fulfilled the original award’s purpose (to permit plaintiff to share in fluctuating post‑divorce earnings); he ordered 25% of the first $500,000 of defendant’s gross employment income (with a $125,000/year cap), retroactive to Jan 1, 2014.
- Defendant appealed, arguing (1) improper comparison point for changed circumstances, (2) plaintiff’s motion was legally insufficient, (3) improper use of extrinsic evidence and judicial notice, and (4) the order unlawfully created a lifetime profit‑sharing alimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court used correct comparison period to determine a "substantial change in circumstances" | The change is measured from the last alimony order (2012) to present; incomes rose enough to justify modification | The court improperly compared current circumstances to the 2002 divorce decree rather than the 2012 order | Any error in wording was harmless; court’s modification was based on changes since 2012 (not 2002), and the increase in defendant’s income warranted modification |
| Whether plaintiff’s motion was legally sufficient to invoke § 46b‑86 | Motion alleged substantial increase in defendant’s income, triggering reconsideration | Motion failed under Dan v. Dan because increase alone cannot justify modification unless original award was insufficient or exceptional circumstances exist | Motion was legally sufficient; alleging a substantial change is enough to permit reconsideration; full justification need not be pleaded in the motion |
| Whether court improperly relied on extrinsic evidence or judicial notice to determine the original award’s purpose | Court may examine purpose of original award; separation agreement ambiguous on whether award intended to share fluctuating income | Use of extrinsic evidence and judicial notice of court file was improper absent ambiguity and with restriction to post‑2012 evidence | Agreement was ambiguous as to purpose; court properly considered extrinsic evidence and judicially noticed court files to determine original purpose |
| Whether modification amounted to an improper "lifetime profit‑sharing" order beyond legitimate alimony purposes | Reinstating percentage‑based sharing simply implements the original award’s purpose (sharing fluctuating income) with a cap | Dan precludes alimony intended to match supporting spouse’s post‑divorce standard of living; profit‑sharing is impermissible | Court rejected defendant’s collateral attack; parties may validly agree to limited profit‑sharing alimony; Dan does not bar such arrangements when they reflect original purpose and include caps |
Key Cases Cited
- Borkowski v. Borkowski, 228 Conn. 729 (establishes that modification inquiry compares current conditions to the last alimony order)
- Dan v. Dan, 315 Conn. 1 (addresses when an increase in supporting spouse’s income can justify modification and the role of the original award’s purpose)
- Parisi v. Parisi, 315 Conn. 370 (principle that extrinsic evidence is used only if contract is ambiguous)
- Moore v. Moore, 173 Conn. 120 (distinguishes judicial notice of judicially relevant facts; legislative vs adjudicative facts)