Duffy v. Duffy, No. Fa92 0125514 (Oct. 27, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION CT Page 12242 This is the defendant's postjudgment motion to modify alimony.

On March 16, 1995, the parties' marriage was dissolved. Their separation agreement was incorporated by reference into the judgment. Pursuant to the judgment, the defendant paid periodic alimony at the rate of $5,000 per month.

At the time of dissolution, the defendant's financial affidavit indicated as annual income $80,000 from profit on his options trading account. This figure was represented as his average earned income over the past three years (1992-1994). He also reported $2,000 per month income from rental of his AMEX Stock Exchange seat.

At the present time, the defendant is out of the options trading business and reports income of $72,000 per year. The sources are withdrawals from his pension and contributions from his current spouse.

The defendant's reasons for no longer engaging in options trading included he was losing money; the nature of operating in the industry was changing and he had become a "dinosaur on Wall Street," and lack of capital to operate profitably. The plaintiff vigorously disputed the reasons offered by the defendant for his closing down his business venture.

The defendant maintains that his agreement at dissolution to pay $60,000 per year as periodic alimony was not based on an income of $80,000 per year but on his optimistic expectation of earning higher profits as he did in prior years. This position is bolstered by the provision in the separation agreement that the defendant could earn up to $180,000 per year before the plaintiff could seek a modification. Also, the defendant's optimism was borne out because in the calendar year 1995 he reported income of $350,000 and reported $250,000 in 1996.

The defendant has persuaded the court that his reasons for terminating his business operation were valid and not intended as an early retirement as believed by the plaintiff. The defendant has sustained his burden of proof that there has been a substantial change in his financial circumstances. The defendant's motion is granted, CT Page 12243

Retroactive to August 16, 1998, the date stipulated to by the parties, the defendant's obligation to pay periodic alimony shall be $3,500 per month, under the same conditions and term as ordered at the time of dissolution.

So Ordered.

NOVACK, J.