Dan v. Dan ( 2014 )

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MARY LOU DAN v. MICHAEL T. DAN
(SC 19054)
Rogers, C. J., and Palmer, Zarella, McDonald, Robinson and Vertefeuille, Js.
Argued April 22—officially released December 16, 2014
Charles D. Ray, with whom was Lee F. Lizotte, for
the appellant (defendant).
George J. Markley, for the appellee (plaintiff).
Louise Truax filed a brief for the Connecticut Chap-
ter of the American Academy of Matrimonial Lawyers
as amicus curiae.
Opinion
ZARELLA, J. The primary issue that we must resolve
in this certified appeal is whether the trial court may
modify a judgment, rendered in accordance with a stipu-
lated alimony award, solely on the basis of an increase
in the income of the supporting spouse. Approximately
ten years after the plaintiff, Mary Lou Dan, and the
defendant, Michael T. Dan, were divorced, the plaintiff
filed a motion for modification of the stipulated alimony
award pursuant to General Statutes § 46b-86,1 claiming
that the circumstances of the case had changed substan-
tially because the defendant’s income had increased
significantly and the plaintiff’s medical costs had ‘‘sky-
rocketed.’’ At the outset of the evidentiary hearing on
the motion, the parties stipulated that there was a sub-
stantial change in circumstances because the defen-
dant’s income had substantially increased. Thereafter,
the trial court granted the plaintiff’s motion for modifi-
cation and substantially increased the amount of ali-
mony that the defendant was required to pay to the
plaintiff. The defendant appealed to the Appellate
Court, claiming that the trial court had abused its discre-
tion as a matter of law by increasing the alimony award
when the sole change in circumstances was an increase
in his income. Dan v. Dan, 137 Conn. App. 728, 729,
731 n.4, 49 A.3d 298 (2012). The Appellate Court upheld
the trial court’s decision to grant the motion. See id.,
733. This court then granted the defendant’s petition
for certification to appeal to this court on the following
issue: ‘‘Did the Appellate Court properly [uphold] the
trial court’s granting of the plaintiff’s motion for modifi-
cation based [on] a change in circumstances?’’2 Dan v.
Dan, 307 Conn. 924, 55 A.3d 565 (2012). We conclude
that, in the absence of certain exceptional circum-
stances, which we explain hereinafter, an increase in
income, standing alone, does not justify the modifica-
tion of an alimony award. We further conclude that,
because the trial court did not expressly address the
issue of whether such exceptional circumstances exist
in the present case, the Appellate Court improperly
upheld the trial court’s decision to grant the plaintiff’s
motion, and the case must be remanded to the trial
court for a new hearing at which the proper standard
may be applied.
The record reveals the following procedural history
and facts that are undisputed or that were found by the
trial court. The parties were divorced in 2000 after more
than twenty-nine years of marriage. They had three
children, all of whom had attained the age of majority
before the divorce. In accordance with a stipulation
between the parties, the trial court, Sheedy, J., awarded
the plaintiff $15,000 per month in alimony, as well as
a sum equal to 25 percent of any bonus income that
the defendant received. The parties also agreed that
the defendant’s alimony obligation would cease when
he reached the age of sixty-five or his retirement, which-
ever occurred first.3
In 2010, the plaintiff filed a motion for modification
of the alimony award pursuant to § 46b-86, claiming
that the defendant’s income had ‘‘greatly increased’’
and that her medical expenses had ‘‘skyrocketed.’’ After
an evidentiary hearing on the motion before the court,
Winslow, J.,4 the court found that the plaintiff had not
proven her claim that there was a substantial change
in her circumstances because of an increase in her out-
of-pocket medical expenses. The defendant conceded
during the hearing, however, that he had a substantial
increase in his income since the divorce and that this
constituted a substantial change in circumstances for
purposes of § 46b-86. Accordingly, the sole issue before
the court was whether the statutory factors set forth
in General Statutes (Rev. to 2011) § 46b-82 (a)5 justified
a modification of the alimony award.
The trial court ultimately found that the defendant’s
base salary in 2000 was $696,000. In 2010, his annual
salary was $3.24 million, plus $3 million in stock option
cash-ins. The court also found that the defendant
worked ‘‘excessively long hours and that is obviously
something that relates to some of his compensation.’’
Apart from the alimony that the plaintiff received from
the defendant, the plaintiff had annual income of
between $8000 and $12,000. The court further found
that, as of 2011: the plaintiff was sixty-one years old;
the defendant was sixty years old; the plaintiff had
several health problems, including diabetes that was
poorly controlled, which circumstance had existed at
the time of the divorce; the plaintiff had no college
degree; and, although she had once worked as a recep-
tionist and executive assistant, she had not been
employed since 1977.
Addressing the statutory factors set forth in § 46b-
82, the trial court stated that it had not ‘‘given much
weight at all to the needs of the parties’’ because ‘‘the
income level of the defendant makes [it] unnecessary
[to inquire] into the actual needs of the parties. There
is more than enough income to meet and exceed the
needs of each party.’’6 The court also stated that it did
not ‘‘weigh heavily’’ the estate of either party and gave
‘‘virtually no or little weight’’ to the cause of the dissolu-
tion. Rather, the factors that the court had considered
important ‘‘were the length of the marriage, the health
of the parties, the station and occupation of the parties,
the amount and sources of income, [and] the vocational
skills of the parties.’’ On the basis of these factors,
the court increased the alimony award from $15,000 to
$40,000 per month, plus 25 percent of any bonus income
that the defendant received, and ordered that the ali-
mony, instead of terminating when the defendant
reached the age of sixty-five, would continue until the
plaintiff’s death, remarriage or cohabitation. The court
also stated, however, that the defendant’s retirement
might constitute a substantial change in circumstances
justifying a modification of the alimony award.
After the trial court issued its oral decision, the defen-
dant filed a motion for articulation in which he
requested that the court clarify whether it had consid-
ered the ‘‘§ 46b-82 factors ‘anew,’ or [whether] it consid-
er[ed] only any difference in the factors that occurred
from the date of dissolution until the date of modifica-
tion . . . .’’7 In addition, the defendant requested that
the court ‘‘articulate the factual and legal basis for [its]
decision to extend the term of [the defendant’s] alimony
obligation beyond that set forth in the parties’ [stipula-
tion], and beyond that requested by the plaintiff . . . .’’
The court granted the motion for articulation. With
respect to the defendant’s first request, the court stated
that it ‘‘could not and did not attempt to ascertain the
status of each additional criterion at the time of the
dissolution judgment. The court looked at all the criteria
currently.’’ With respect to the defendant’s second
request, the court stated that it had continued the defen-
dant’s alimony obligation beyond his sixty-fifth birthday
because ‘‘[the] cessation of alimony on a date certain
would be inequitable in light of the dramatic change in
the parties’ circumstances now apparent ten years after
the [parties’] divorce.’’
The defendant appealed to the Appellate Court from
the trial court’s decision to grant the plaintiff’s motion
for modification. The Appellate Court concluded that
the trial court ‘‘reasonably determined that, considering
the length of the parties’ marriage, the health of the
parties, the amount and sources of income and the
vocational skills of the parties, the defendant’s alimony
should be increased.’’ Dan v. Dan, supra, 137 Conn.
App. 732. This certified appeal followed.8
On appeal, the defendant contends that, contrary to
the Appellate Court’s conclusion, (1) the trial court
improperly granted the plaintiff’s motion for modifica-
tion solely on the basis of the defendant’s increased
income, (2) even if the trial court properly granted the
motion for modification, the substantial increase in ali-
mony was an abuse of discretion, and (3) the trial court
improperly considered the statutory criteria in § 46b-
82 anew rather than limiting its consideration to the
criteria that had changed since the date of dissolution.
We agree with the defendant that, when the only sub-
stantial change in circumstances after an award of ali-
mony has been made is an increase in the income of
the paying spouse, a modification of the alimony award
ordinarily is not justified if the original award was and
continues to be sufficient to fulfill the original purpose
for which it was made. We further conclude that,
because the trial court made no finding as to whether
the original alimony award continues to be sufficient
to meet its original purpose, the case must be remanded
for a new hearing at which the court may apply the
proper standard in making such a finding. Accordingly,
we need not address the issues of whether the trial court
abused its discretion when it substantially increased the
award or properly considered factors that have not
changed since the date of dissolution in determining
the amount of the modification.
We begin our analysis with a review of the legal
principles governing the modification of alimony
awards. ‘‘It is . . . well established that when a party,
pursuant to § 46b-86, seeks a postjudgment modifica-
tion of a dissolution decree . . . he or she must demon-
strate that a substantial change in circumstances has
arisen subsequent to the entry of the [decree].’’ Borkow-
ski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060
(1994). ‘‘Once a trial court determines that there has
been a substantial change in the financial circumstances
of one of the parties, the same criteria that determine
an initial award of alimony . . . are relevant to the
question of modification.’’ (Internal quotation marks
omitted.) Id., 737.
‘‘Because the establishment of changed circum-
stances is a condition precedent to a party’s relief, it
is pertinent for the trial court to inquire as to what, if
any, new circumstance warrants a modification of the
existing order. In making such an inquiry, the trial
court’s discretion is essential. The power of the trial
court to modify the existing order does not, however,
include the power to retry issues already decided . . .
or to allow the parties to use a motion to modify as an
appeal. . . . Rather, the trial court’s discretion
includes only the power to adapt the order to some
distinct and definite change in the circumstances or
conditions of the parties.’’ (Citations omitted.) Id., 738.
Although it is well established that an increase in
the income of the paying spouse, standing alone, ‘‘is
sufficient to justify reconsideration of a prior alimony
order’’ pursuant to § 46b-86; (emphasis added) McCann
v. McCann, 191 Conn. 447, 451, 464 A.2d 825 (1983);
this court has not yet had occasion to determine
whether this change in circumstance, standing alone,
is ordinarily a sufficient reason to grant a motion to
modify an alimony award in accordance with the crite-
ria set forth in § 46b-82. In McCann, the plaintiff, who
was appealing from the trial court’s upward modifica-
tion of his alimony obligation; id., 449; contended that
‘‘an increase in the income of the payor spouse is not
a sufficient reason to increase an alimony award. . . .
[In the absence of] a showing of need, [the supported]
spouse should not be provided with a lifetime profit-
sharing plan.’’ Id., 451–52. This court concluded that,
‘‘[w]hatever merits this contention might have in a case
to which it was factually apposite, it [was] unpersuasive
[in that case] in light of the defendant’s unmet medical
needs, which were established at the time of the original
decree and have increased since that time.’’9 Id., 452.
For the following reasons, we now conclude that an
increase in the supporting spouse’s income, standing
alone, ordinarily will not justify the granting of a motion
to modify an alimony award. Historically, alimony was
‘‘based [on] the continuing duty of a divorced husband
to support an abandoned wife and should be sufficient
to provide her with the kind of living [that] she might
have enjoyed but for the breach of the marriage contract
by the [husband].’’ Wood v. Wood, 165 Conn. 777, 784,
345 A.2d 5 (1974); see also Demont v. Demont, 67 So.
3d 1096, 1102 (Fla. App. 2011) (‘‘[p]ermanent periodic
alimony is used to provide the needs and necessities
of life to a former spouse as they have been established
during the marriage’’ [emphasis added; internal quota-
tion marks omitted]). One reason for the abandoned
spouse’s entitlement to sufficient alimony to ensure the
continued enjoyment of the standard of living that he
or she enjoyed during the marriage is that the spouse’s
‘‘efforts increased the other’s earning capacity at the
expense of [his or] her own.’’ (Internal quotation marks
omitted.) Cox v. Cox, 335 N.J. Super. 465, 483, 762 A.2d
1040 (App. Div. 2000); see also id. (‘‘[a]limony is an
award formulated to compensate for [a] transfer [of
earning power from nonworking spouse to working
spouse] by sufficiently . . . meeting reasonable needs
for support not otherwise met by property division and
personal income’’ [internal quotation marks omitted]).
More ‘‘[r]ecently . . . courts have begun to limit the
duration of alimony awards in order to encourage the
receiving spouse to become self-sufficient. Underlying
the concept of time limited alimony is the sound policy
that such awards may provide an incentive for the
spouse receiving support to use diligence in procuring
training or skills necessary to attain self-sufficiency.’’
(Internal quotation marks omitted.) Roach v. Roach, 20
Conn. App. 500, 506, 568 A.2d 1037 (1990).
There is little, if any, legal or logical support, however,
for the proposition that a legitimate purpose of alimony
is to allow the supported spouse’s standard of living to
match the supporting spouse’s standard of living after
the divorce, when the supported spouse is no longer
contributing to the supporting spouse’s income earning
efforts. Rather, the weight of authority is to the con-
trary.10 We are persuaded by the reasoning of these
cases, namely, that, when the amount of the original
alimony award was and continues to be sufficient to
fulfill the purpose of the award, whether that purpose
was to maintain permanently the standard of living of
the supported spouse at the level that he or she enjoyed
during the marriage or to provide temporary support
in order to allow the supported spouse to become self-
sufficient, an increase in the income of the supporting
spouse, standing alone, is not a sufficient justification
to modify an alimony award.11 In short, when the sole
change in circumstances is an increase in the income
of the supporting spouse, and when the initial award
was and continues to be sufficient to fulfill the intended
purpose of that award, we can conceive of no reason
why the supported spouse, whose marriage to the sup-
porting spouse has ended and who no longer contri-
butes anything to the supporting spouse’s income
earning efforts, should be entitled to share in an
improved standard of living that is solely the result of
the supporting spouse’s efforts.12
When the initial award was not sufficient to fulfill
the underlying purpose of the award, however, an
increase in the supporting spouse’s salary, in and of
itself, may justify an increase in the award. For example,
if the initial alimony award was not sufficient to main-
tain the standard of living that the supported spouse
had enjoyed during the marriage because the award
was based on a reduction in the supporting spouse’s
income due to unemployment or underemployment as
a result of an economic downturn, and, after the
divorce, the supporting spouse’s income returns to its
previous level, a modification might well be justified.13
Cf. McCann v. McCann, supra, 191 Conn. 449–50 (when
supported spouse’s needs were not met by original ali-
mony award and had increased since that time, increase
in supporting spouse’s income justified modification
of award).
In reaching this conclusion, we are mindful that § 46b-
86 (a) broadly provides that an alimony award may be
‘‘modified by the court upon a showing of a substantial
change in the circumstances of either party’’ and that a
‘‘trial court’s discretion is essential’’ when it determines
whether a modification is justified. Borkowski v. Bor-
kowski, supra, 228 Conn. 738. The trial court’s discre-
tion to modify an award, however, is not unlimited.
Rather, the court’s discretion must be cabined by the
public policies underlying the statutes governing disso-
lution of marriage and by the general purposes of ali-
mony awards. Because, as a general rule, no public
policy or purpose of an alimony award would be
advanced by the modification of an alimony award
when the only change in circumstance is an increase
in the supporting spouse’s income, we must conclude
that, as a general rule, the trial court has no discretion
to modify an alimony award if this is the only change
in circumstances. We emphasize, however, that this is
only a general rule, and trial courts retain discretion
to modify alimony awards under these circumstances
upon finding that exceptional circumstances exist.
Finally, we conclude that, in making the determina-
tion as to whether an alimony award should be modified
when the only change in circumstances has been an
increase in the supporting spouse’s income, the trial
court may consider factors such as the length of the
marriage, the cause of the divorce, and the age, station,
vocational skills and employability of the parties—fac-
tors that were presumptively considered by the court
in determining the purpose and amount of the initial
alimony award and that have not changed since that
time—only to the extent that the factors shed light on
the intent of the initial award.14 They should not be
considered as reasons for changing the purpose of the
initial award. See Borkowski v. Borkowski, supra, 228
Conn. 738 (‘‘[t]he power of the trial court to modify the
existing order does not . . . include the power to retry
issues already decided’’); id. (motion for modification
cannot be used as appeal, and ‘‘the trial court’s discre-
tion incudes only the power to adapt the [existing ali-
mony] order to some distinct and definite change in
the circumstances or conditions of the parties’’ [empha-
sis added]).
In the present case, it is reasonable to conclude, in
the absence of any suggestion to the contrary, that the
purpose of the original alimony award, which was based
on the stipulation of the parties, both of whom were
represented by counsel, was to allow the plaintiff to
maintain the standard of living that she had enjoyed
during the marriage. We presume that the parties agreed
that the amount of the award was sufficient to fulfill
that purpose at the time of the divorce. See Montoya
v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006)
(‘‘we assume a deliberately prepared and executed
agreement reflects the intention of the parties’’ [internal
quotation marks omitted]); see also In re Marriage of
Weber, 337 Or. 55, 69, 91 P.3d 706 (2004) (‘‘[t]he parties’
own resolution of the spousal support issue is entitled
to great weight’’). Indeed, the plaintiff makes no claim
to the contrary. The trial court found that the plaintiff
had not proved that her medical expenses had increased
since the date of the original alimony award, and, other
than the increase in the defendant’s income, those
expenses were the only changed circumstance that the
plaintiff had alleged in her motion for modification. In
addition, the court expressly stated that it did not ‘‘agree
that [the plaintiff has] trouble meeting her expenses on
her current budget.’’ The trial court made no express
finding, however, as to whether the original award con-
tinues to be sufficient to allow the plaintiff to maintain
the standard of living that she enjoyed during her mar-
riage to the defendant, a question that is distinct from
the question of whether her current expenses are being
met. Accordingly, we conclude that the Appellate Court
improperly upheld the trial court’s decision to grant the
plaintiff’s motion for modification and that the case
must be remanded to the trial court so that the court
may apply the proper standard in accordance with the
guidance that we have provided in this opinion.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand the
case to the trial court for further proceedings consistent
with this opinion.
In this opinion the other justices concurred.
1
General Statutes § 46b-86 provides in relevant part: ‘‘(a) Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support, an order for alimony
or support pendente lite or an order requiring either party to maintain life
insurance for the other party or a minor child of the parties may, at any
time thereafter, be continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circumstances of either
party . . . .’’
2
This court also granted certification to appeal on the following issue in
the event that this court answered the first certified question in the affirma-
tive: ‘‘If [the answer to the first certified question is ‘yes’], did the Appellate
Court properly reject the defendant’s claim that the trial court [had] abused
its discretion by considering anew all the statutory criteria set forth in
General Statutes [Rev. to 2011] § 46b-82, rather than limiting its decision to
those factors that had changed since the date of dissolution?’’ Dan v. Dan,
307 Conn. 924, 55 A.3d 565 (2012). In light of our determination that the
Appellate Court improperly upheld the trial court’s decision to grant the
plaintiff’s motion for modification and our remand of the case for a new
hearing, we need not address the second certified question.
3
The defendant’s alimony obligation also could cease upon the plaintiff’s
death, marriage or cohabitation.
4
Because the propriety of Judge Winslow’s ruling on the plaintiff’s motion
for modification is the sole issue in this appeal, hereinafter, all references
to the trial court are to the court, Winslow, J.
5
General Statutes (Rev. to 2011) § 46b-82 (a) provides in relevant part:
‘‘In determining whether alimony shall be awarded, and the duration and
amount of the award, the court shall hear the witnesses, if any, of each
party, except as provided in subsection (a) of section 46b-51, shall consider
the length of the marriage, the causes for the annulment, dissolution of the
marriage or legal separation, the age, health, station, occupation, amount
and sources of income, vocational skills, education, employability, estate
and needs of each of the parties and the award, if any, which the court may
make pursuant to section 46b-81, and, in the case of a parent to whom the
custody of minor children has been awarded, the desirability of such parent’s
securing employment.’’
Hereinafter, all references to § 46b-82 are to the 2011 revision.
6
The trial court further stated that, although it was not giving great weight
to the needs of the parties, it did not ‘‘agree that [the plaintiff has] trouble
meeting her expenses on her current budget. I do not accept that. She makes
choices, and, in particular, she gives away [upward] of $8500 a month by
way of gifts to her children. This is a legitimate expense in her eyes, and
I’m not faulting her for it, but I’m not indicating either that she’s unable to
put bread on her table.’’
7
After the trial court issued its decision from the bench, the court clerk
issued a written order summarizing the ruling. The order, which was not
reviewed or approved by the trial court, stated that the court had considered
the estate of the parties when it modified the alimony award. In his motion
for articulation, the defendant asked the court to clarify this statement, and
the court stated that it was a scrivener’s error.
8
After oral argument before this court, this court invited the Connecticut
Chapter of the American Academy of Matrimonial Lawyers (Academy) to
file an amicus curiae brief addressing two questions: First, ‘‘[d]id the Appel-
late Court properly [uphold] the trial court’s granting of the plaintiff’s motion
for modification based [on] a change in circumstances?’’ Second, ‘‘[i]f so,
did the Appellate Court properly reject the defendant’s claim that the trial
court [had] abused its discretion [in] considering anew all the statutory
criteria set forth in . . . § 46b-82 rather than limiting its decision to those
factors that had changed since the date of dissolution?’’ The Academy
accepted this invitation and filed an amicus brief, in which it asserted that
both questions should be answered in the affirmative. Thereafter, the parties
requested permission to file supplemental briefs in response to the amicus
brief, which this court granted.
9
In Crowley v. Crowley, 46 Conn. App. 87, 699 A.2d 1029 (1997), the
Appellate Court rejected the defendant’s argument ‘‘that Connecticut should
adopt the policy, used by some other jurisdictions, that an increase in the
income of the payor spouse alone is a legally insufficient reason to support
a modification in an alimony award,’’ stating that this court had rejected
the same argument in McCann. Id., 93 n.8. This, however, was a misreading
of McCann. As we explained, in McCann, this court determined only that
a large increase in the paying spouse’s income, standing alone, was a substan-
tial change in circumstances for purposes of reopening the award pursuant
to § 46b-86. See McCann v. McCann, supra, 191 Conn. 451. This court
declined to address the defendant’s claim in that case that an increase in
income, standing alone, was not a sufficient reason to grant a motion to
modify an alimony award. Id., 452. The Appellate Court’s interpretation of
McCann in Crowley was dictum, however, as the Appellate Court determined
that the trial court’s modification of the alimony award in Crowley also was
based on the plaintiff’s increased needs. See Crowley v. Crowley, supra, 94.
10
See Sheeley v. Sheeley, 10 Ariz. App. 318, 321, 458 P.2d 522 (1969) (‘‘An
increase in the earning capacity of the husband after the divorce, standing
alone . . . is not sufficient [reason to modify an alimony award]. A former
wife has no continuing right to share in future accumulations of wealth by
her divorced husband.’’); Bedell v. Bedell, 583 So. 2d 1005, 1007 (Fla. 1991)
(‘‘[T]he court is not required to grant an increase in alimony simply upon
proof of a substantial increase in the financial ability of the paying spouse
if equity does not dictate that such a change should be ordered. In fact,
[the court] would expect that a raise in alimony would be ordered when
no increased need was shown only in extraordinary cases [in which] the
equitable considerations were particularly compelling.’’); Arnold v. Arnold,
332 Ill. App. 586, 598, 76 N.E.2d 335 (1947) (‘‘[t]he station in life to which
[the] defendant had accustomed [the] plaintiff at the time of the entry of
the decree and prior thereto is the station in life in which he is bound to
maintain [for] her now,’’ and plaintiff was not entitled to share in defendant’s
improved standard of living after divorce); Council v. Council, 775 So. 2d
628, 630 (La. App. 2000) (increase in supporting spouse’s income standing
alone does not justify increase in alimony); Bridgwood v. Bridgwood, 538
A.2d 286, 287 (Me. 1988) (‘‘The record discloses a sufficient improvement
in [the supporting spouse’s] earnings to warrant the . . . reopening [of] the
alimony award. That change of circumstance alone is insufficient to justify
an increase in alimony.’’); Cole v. Cole, 44 Md. App. 435, 445, 409 A.2d
734 (1979) (‘‘It is manifest that [the] statutory obligation for support and
maintenance should not be so interpreted as to continue the rights of the
former wife just as though no divorce had been granted. The statute does
not contemplate a continuing right in her to share in future accumulations
of wealth by her divorced husband, to which she contributes nothing.’’
[Internal quotation marks omitted.]); Cooper v. Cooper, 62 Mass. App. 130,
140, 815 N.E.2d 262 (‘‘The total support awarded . . . is far in excess of
what the record evidence suggests would be needed to maintain the lifestyle
enjoyed by the parties while married. In the absence of specific findings,
grounded in evidence, that the amount was consistent with that lifestyle,
the award cannot stand.’’), review denied, 443 Mass. 1102, 820 N.E.2d 258
(2004); Burr v. Burr, 313 Mich. 330, 333, 21 N.W.2d 150 (1946) (‘‘The showing
of a somewhat substantial increase in the husband’s income is not sufficient
ground . . . for modifying the provision for permanent alimony in the origi-
nal decree. Especially is this true since no showing is made . . . of a change
in the needs of [the wife] or the circumstances with which she is sur-
rounded.’’); Katter v. Katter, 457 N.W.2d 750, 754 (Minn. App. 1990) (increase
in supporting spouse’s income, standing alone, is not sufficient ground for
modification of alimony award); Calderwood v. Calderwood, 114 N.H. 651,
653, 327 A.2d 704 (1974) (in determining amount of alimony, court considers
‘‘the social standing or station in life enjoyed by [the supported spouse] at
the time of the divorce’’ and, because supported spouse ‘‘is not entitled to
share in any new prosperity enjoyed by her former [spouse], any improve-
ment in his financial condition since the divorce is irrelevant’’); Crews v.
Crews, 164 N.J. 11, 29, 751 A.2d 524 (2000) (‘‘When modification is sought,
the level of need of the dependent spouse must be reviewed in relation to
the standard of living enjoyed by the couple while married. If that need is met
by the current alimony award and there are no other changed circumstances,
support should not be increased merely because the supporting spouse has
improved financial resources.’’); McMains v. McMains, 15 N.Y.2d 283, 288,
206 N.E.2d 185, 258 N.Y.S.2d 93 (1965) (‘‘[a] wife is not entitled to . . . [an]
escalation [in alimony] as the husband prospers but she must have minimum
support’’); Ward v. Ward, 79 A.D. 2d 683, 683–84, 433 N.Y.S.2d 861
(1980) (‘‘a substantial increase in the husband’s salary does not present a
substantial change in circumstances to justify an upward modification of
alimony’’); Jan S. v. Leonard S., 26 Misc. 3d 243, 253, 884 N.Y.S.2d 848
(2009) (‘‘[t]he fact that the supporting spouse’s income and means may have
increased does not in itself justify an increase in alimony’’); In re Marriage
of Weber, 337 Or. 55, 68, 91 P.3d 706 (2004) (‘‘a [postdissolution] increase in
a payor spouse’s income does not of itself ordinarily constitute a substantial
change in economic circumstances requiring a court to reconsider a previous
spousal support award’’ [internal quotation marks omitted]); Ferguson v.
Ferguson, Tennessee Court of Appeals, Docket No. 87-305-II (Tenn. App.
October 21, 1988) (‘‘The obligee spouse’s needs are not controlled by the
present standard of living of the obligor spouse. The obligor spouse is not
under a duty to raise the standard of living of the obligee spouse from that
which was ordered at the time of the divorce to a standard which he can
afford at this time. . . . A former spouse does not have a continuing right
to share in future accumulation of wealth by his/her divorced spouse.’’
[Citation omitted.]); id. (‘‘The award of alimony is for the suitable support
and maintenance of the complainant. It is not a profit-sharing plan.’’); Harris
v. Harris, Vermont Supreme Court, Docket No. 2000-303 (Vt. June 6, 2001)
(‘‘The record evidence did not establish that [the] wife’s reasonable needs
were not currently being met in relation to the standard of living established
during the marriage. The only significant change adduced by [the] wife, and
cited by the court, related to [the] husband’s circumstances; his income
upon retirement was indisputably higher than the amount predicted in the
divorce decree. Standing alone, however, we fail to see how this change was
germane to the legal question of whether [the] wife’s current maintenance
payments were sufficient to meet her reasonable needs.’’ [Emphasis in origi-
nal.]). But see Lott v. Lott, 17 Md. App. 440, 447, 302 A.2d 666 (1973) (‘‘a
substantial increase in the husband’s income alone can, under appropriate
circumstances, be legally sufficient to justify an increase in the amount of
alimony even though the wife’s needs continue as they existed at the time
of the initial award’’); Martindell v. Martindell, 21 N.J. 341, 355, 122 A.2d
352 (1956) (when supporting spouse’s ‘‘resources have substantially
increased, then his former wife may fairly seek an increase upon an affirma-
tive showing that a higher award of alimony would be fit, reasonable and
just . . . in view of all of the circumstances then prevailing’’ [citation omit-
ted; internal quotation marks omitted]); Balmer v. Balmer, 12 Misc. 2d 226,
228, 179 N.Y.S.2d 234 (‘‘Alimony must be fixed . . . after considering the
financial situation of each party. This means the wife’s receipts must go
down when his do; it would seem that they should increase proportionately
when he is well able to pay more.’’), modified on other grounds, 7 A.D.
2d 741, 180 N.Y.S.2d 1017 (1958), aff’d, 7 N.Y.2d 833, 164 N.E.2d 725, 196
N.Y.S.2d 707 (1959); Commonwealth ex rel. Levy v. Levy, 240 Pa. Super.
168, 174, 361 A.2d 781 (1976) (increase in supporting spouse’s income was
sufficient justification to increase combined alimony and child support
award).
11
In support of her claim to the contrary, the plaintiff notes that, in
Zahringer v. Zahringer, 69 Conn. App. 251, 793 A.2d 1214 (2002), rev’d on
other grounds, 262 Conn. 360, 815 A.2d 75 (2003), the Appellate Court
rejected a claim that the trial court improperly had ‘‘ordered an increase
of alimony that raised the [supported spouse] well above her standard
of living at the time of the dissolution.’’ Id., 260; see also Panganiban v.
Panganiban, 54 Conn. App. 634, 642, 736 A.2d 190 (supporting spouse
challenged alimony award that was ‘‘far above anything to which the [sup-
ported spouse] had been accustomed, based on her station in life and stan-
dard of living’’), cert. denied, 251 Conn. 920, 742 A.2d 359 (1999). In
Panganiban, the defendant, Alan Panganiban (supporting spouse), won $16
million in a lottery after he and the plaintiff, Roxanna Panganiban (supported
spouse), were separated but before they were divorced. See Panganiban
v. Panganiban, supra, 636–37. Before his good fortune, the supporting
spouse had been unemployed and receiving public assistance. Id., 636. The
trial court awarded the supported spouse time limited alimony in the amount
of $6000 per month. Id., 642. On appeal, the Appellate Court rejected the
supporting spouse’s claim that the alimony award was excessive in light of
the supported spouse’s station in life and standard of living; id., 642–43;
stating that ‘‘[i]t is hornbook law that what a spouse can afford to pay for
support and alimony is a material consideration in the court’s determination
as to what is a proper order.’’ (Internal quotation marks omitted.) Id. We
conclude that Panganiban is distinguishable from the present case because
(1) the supporting spouse in Panganiban won the lottery during the mar-
riage, (2) the case involved an initial alimony award, not a modification,
and (3) the case involved considerations of the public purse, as the support-
ing spouse also had been receiving public assistance during the marriage.
In Zahringer, the Appellate Court relied on Panganiban to reject the
challenge of the defendant, George J. Zahringer (supporting spouse), to the
trial court’s upward modification of the alimony award to a level that raised
the plaintiff, Celia Zahringer (supported spouse), above her standard of
living during the marriage on the basis of the supporting spouse’s increased
income after the divorce. Zahringer v. Zahringer, supra, 69 Conn. App.
260–61. The Appellate noted, however, that the trial court had found that
‘‘the parties’ children had grown, and that their needs and educational
requirements changed.’’ Id., 261. In addition, the supported spouse’s monthly
expenses had increased. See id.; see also id. (‘‘the [trial] court was persuaded
by the [supported spouse] that she required the increase to provide for
herself and the children’’). Thus, it is arguable that the Appellate Court
determined in Zahringer that the increased alimony award did not improve
the supported spouse’s standard of living but merely maintained it. To the
extent that Zahringer suggests that the supported spouse was entitled to
share in any improvements in the supporting spouse’s standard of living
after the divorce, it is hereby overruled.
The plaintiff also claims that Hardisty v. Hardisty, 183 Conn. 253, 439
A.2d 307 (1981), and Schwarz v. Schwarz, 124 Conn. App. 472, 5 A.3d 548,
cert. denied, 299 Conn. 909, 10 A.3d 525 (2010), support the proposition that
an increase in the supporting spouse’s income, standing alone, is sufficient
justification to increase an alimony award. We disagree. In both of those
cases, the trial court expressly had found that a modification was justified
in part because of the supported spouse’s increased needs. Hardisty v.
Hardisty, supra, 261; Schwarz v. Schwarz, supra, 485–86.
12
The plaintiff contends that, even if the original alimony award could
not be modified pursuant to statute on the sole ground that the defendant’s
income had substantially increased, the parties’ stipulation expressly pro-
vides that ‘‘alimony payments provided pursuant to . . . [a]rticle IV [of the
stipulation] shall be modifiable upon the showing of a substantial change
in the circumstances of the parties . . . .’’ Although the trial court referred
to this provision of the stipulation in passing during the hearing on the
motion for modification, the court did not base its ruling on the provision.
Rather, the court expressly based its ruling on the statutory criteria set
forth in § 46b-82. Because the trial court did not consider whether the
stipulation would provide for an alimony modification that would not other-
wise be warranted by statute, the plaintiff’s claim is unreviewable.
13
We do not suggest that this is the exclusive circumstance under which
a substantial increase in the supporting spouse’s income, standing alone,
would justify the granting of a motion to modify an alimony award. Because
it is impossible to anticipate all of the factual circumstances that might
justify a modification based solely on an increase in the supporting spouse’s
income, the determination must be made on a case-by-case basis.
14
The plaintiff contends that, ‘‘[i]f the [trial] court [is] limited in its consid-
eration to only those § 46b-82 factors that [have] changed . . . then a spouse
who had been married to a payor for only six months and who had been
the sole cause of the marital breakdown would, upon a substantial increase
in the payor’s income, be entitled to exactly the same [upward] modification
of alimony as the spouse who had been married to the payor for fifty years
and whose marriage had broken down because of the payor’s adultery and
physical abuse.’’ Presumably, however, a spouse in this situation would not
receive an initial alimony award that was intended to maintain the standard
of living that he or she had enjoyed during the marriage. Rather, on the
basis of the short length of the marriage and his or her fault for the divorce,
the spouse would likely receive, at most, a time limited rehabilitative alimony
award. Thus, if the spouse filed a motion for modification, the trial court
would be required to determine only whether the initial award still fulfilled
its rehabilitative purpose under the changed circumstances. The court would
not be required to reconsider whether a rehabilitative award was justified
by the length of the marriage or the cause of the divorce. Moreover, even
if the spouse received an initial award that was intended to maintain his or
her standard of living, a motion for modification would not be a proper
vehicle for revisiting that determination.