139 Conn. App. 75
Conn. App. Ct.2012Background
- After a 2009 dissolution, the court valued assets and assigned earning capacities of $50,000 for the wife and $100,000 for the husband, and found alimony modifiable as to amount.
- The dissolution order provided $500 weekly for three years, then $250 weekly for seven years, based on those earning capacities and anticipated changes in business success.
- Judge Caruso warned that if earning capacities differed substantially, a modification could be sought; the order contemplated a ten-year frame with potential modification.
- Defendant moved to modify alimony multiple times beginning in 2009; Judge Barall ultimately held hearings and granted a modification.
- Barall reduced alimony to $75 weekly and ordered $75 weekly toward arrearage, citing current tax returns showing actual incomes far below capacities.
- McRae (plaintiff) appealed, arguing the court relied on present earnings rather than earning capacity, lacked substantial change evidence, failed to maintain parity, and retroactively modified arrearage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for modification | McRae contends Barall used present earnings, not earning capacity from dissolution. | McRae asserts substantial change in circumstances under 46b-86 and applied appropriate criteria. | Court properly considered substantial change in earning capacities and affirmed modification. |
| Substantial change in circumstances | No substantial change shown by current affidavits compared to 2009 capacity. | Change in earning capacities established by affidavits and 2010 tax returns supported modification. | Substantial change proven; modification affirmed. |
| Parity of income | Dissolution’s parity should be maintained in modified award. | Parity is not mandatory; §46b-82 factors govern a modified award after a change in circumstances. | No requirement to preserve parity; factors §46b-82 applied in modification. |
| Retroactive modification tied to arrearage | Reducing current alimony to fund arrearage effectively forgives arrearage retroactively. | Alimony and arrearage payments were separate; arrearage plan not retroactive modification. | No improper retroactive modification; separate orders for alimony and arrearage. |
Key Cases Cited
- Bruno v. Bruno, 132 Conn. App. 339 (2011) (trial court discretion in modification guided by needs and resources)
- Borkowski v. Borkowski, 228 Conn. 729 (1994) (standard for modification and consideration of §46b-82 factors)
- Dan v. Dan, 137 Conn. App. 728 (2012) (application of §46b-82 factors after substantial change)
- Schwarz v. Schwarz, 124 Conn. App. 472 (2010) (guidance on applying §46b-82 after change in circumstances)
- Favrow v. Vargas, 231 Conn. 1 (1994) (retention of authority to modify under §46b-86)
- Trella v. Trella, 24 Conn. App. 219 (1991) (retroactive modification prohibition under alimony statutes)
- Mihalyak v. Mihalyak, 30 Conn. App. 516 (1993) (retroactive modification and accrual considerations)
- Clark v. Clark, 127 Conn. App. 148 (2011) (arrearage treatment and retroactive modification considerations)
- Evans v. Taylor, 67 Conn. App. 108 (2001) (pendente lite arrearage and retroactive effects discussed)