DocketNumber: No. FA 90-0384716S
Citation Numbers: 1999 Conn. Super. Ct. 13462
Judges: DEVINE, J.
Filed Date: 10/8/1999
Status: Non-Precedential
Modified Date: 4/17/2021
By way of background the marriage between the parties were dissolved on March 18, 1994. The judgement incorporated an agreement of the parties which required defendant to pay to the plaintiff the sum of $250.00 per week for a period of seven years or until the plaintiff remarried or death of either party. The parties were awarded joint legal custody of their one minor child, Douglas G. Braley, born June 21, 1981. The primary residence of the child was awarded to the plaintiff and the defendant was ordered to pay $175.00 per week for child support. The plaintiff was awarded the marital residence and the defendant was awarded his various businesses represented as Westfield Food Mart, State Street Shell and Kennedy Road Shell (Defendant's Financial Affidavit dated March 18, 1994).
The defendant filed a motion to reopen and modify custody, visitation and child support dated January 15, 1998. On March 29, 1998, the court reopened the judgment and transferred primary residence of the minor child to the father and ordered no support order concerning the minor child by agreement of the parties. The parties both submitted financial affidavits with the plaintiff showing a net weekly wage from her employment at $65.00 per week with the defendant showing net weekly income of $1517.85 per week. In addition, the defendant disclosed real property in Virginia with equity of $125,000.00.
The court heard testimony from the defendant including the offer of an exhibit indicating that the plaintiff was residing in Florida with her fiancee (Defendant's Exhibit 1). The court hereby finds that it has jurisdiction to consider the defendant's motion to modify or terminate his alimony payment to his ex-wife under
The defendant at the hearing testified that the plaintiff had sold the her home in Connecticut and had moved to Florida and presently resides with her fiancee who is parenthetically a good fried of the defendant. The home where they reside in Fort Myers, CT Page 13464 Florida, is owned by the fiancee. The defendant further testified that his ex-wife had previously told him she is engaged to be married and that she would not marry until she receives the last alimony check from the defendant. The defendant further testified that the plaintiffs friend makes $125,000 per year per in income as a Shell Oil salesman. He based this statement on heresay oral statements from another sales manager for Shell Oil who he conversed with recently.
The defendant also testified that he has paid $8,500.00 for lawyers fees, fines and restitution for their son who turned 18 years old on June 21, 1999 and that he further received no support or financial assistance from the plaintiff. The case record clearly reflects that the parties agreed to no support order when the court transferred physical residence of the child to the defendant by court order on March 25, 1998. The defendant has not filed any motion to reopen the judgment seeking child support since that date.
As to the financial status of the parties at the time of the hearing, the defendant testified that the plaintiff sold her home in Connecticut and netted in excess of $100,000 from the sale. He further testified that his income has decreased from his farm business in Virginia from $700.00 to $70.00 per week, and that his farm debts to John Deere credit have increased. He also testified that his ex-wife was not working and that she had left her job in Connecticut to live with her fiancee in Florida.
The defendant did not offer any evidence as to the health of the plaintiff and the financial living arrangement between the plaintiff and her fiancee in Fort Myers, Florida. The defendant further offered no testimony as to the employability and/or earning capacity of the plaintiff while residing in the State of Florida. The defendant offered no evidence as to the weekly expenses of the plaintiff in maintaining her auto, health and dental expenses, food, clothing, charitable contributions, etc., in addition to housing expenses. The defendants financial affidavit and testimony failed to disclose the value of his three gas stations leases which were valued (in total) at $75,000 at the time of the dissolution of the marriage.
The defendant at the hearing and in his memorandum of law dated June 9, 1999, argues that he is entitled to a modification of alimony under
At the time of the present hearing, the defendant was earning a total gross income of $1170.00 from his gas station businesses and his farm operation and a total net of $879.00 or $822.95 per week depending upon which financial affidavit filed by the defendant at the hearing correctly reflects the defendants actual net income. The defendant's affidavit filed at the hearing also includes equity of $105,000 in his Virginia farm which was not owned by him at the time of the divorce according to his previous affidavit filed on the date of the divorce hearing. The plaintiff, according to the defendant, was not employed at the time of the hearing, but no evidence was submitted in the record concerning her health employability, earning capacity, etc.
The defendant further contends that if he has failed to meet his burden of proving a substantial change in circumstances required under Connecticut General Statutes Sec.
The defendant argues that the plaintiff has substantial funds available to her to pay for expenses not payed for by her fiancee because she has sold her house with a net in excess of $100,000. He further argues she does not have to pay her month's mortgage payment which was paid off when she sold her house. The Appellate Court recently held that it was error for the trial court to conclude (as income) payments from a purchase money mortgage taken back from real property sold by the payer of alimony when CT Page 13466 such property was awarded to the payor at the time of the dissolution judgment. Schorsch v. Schorsch,
As stated above, it is the defendant's burden to prove the statutory elements required in Sec.
The court, therefore, denies the defendant's motion to reopen and modify alimony dated April 12, 1999.
Devine, J.