Busto v. Busto, No. Fa94-0316313 S (Nov. 6, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

ORDERS The judgment dated August 23, 1995, in relevant part, requires the plaintiff husband to pay the defendant wife alimony of $3000 a month until September 1, 2005. On May 1, 1996, the husband, at age fifty-five, took early retirement from IBM. There is no provision in the judgment to modify or terminate the alimony on his early retirement. In 1997, the husband earned approximately $355,000 in wages as a consultant. As of January 1, 1998, the husband unilaterally stopped paying the $3000 per month alimony without court approval.

The facts in this case are distinguishable from those found in Misinonile v. Misinonile, 35 Conn. App. 228, 232, cited by the husband's attorney.

It is well established that in marital cases, financial awards maybe based on earning capacity rather than actual earnings. Lucy v. Lucy, 183 Conn. 230, 234 (1981). Such consideration is especially appropriate when an obligor has taken voluntary early retirement. Paddock v. Paddock,22 Conn. App. 367, 371 (1990).

The court finds the husband to be in good health, from his own testimony, and that his earning capacity remains the same as when the original judgment was entered. The motion to modify or terminate the alimony is denied. CT Page 12834

The court finds an arrearage of eleven months or $33,000 minus $6557 paid in 1998 for a net arrearage of $26,443. The court orders this arrearage to be paid in full by January 1, 2000.

Petroni, J.