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Attorney Ellen B. Lubell's article on a Connecticut Supreme Court Decision Appears in Connecticut Law Tribune

In January 2015, we wrote about the Connecticut Supreme Court decision (December 16, 2014), that appears to amend the post-judgment modification alimony statute (CGS 46b-86(b). Our article appeared in the Connecticut Law Tribune and discussed limitations on the trial courts ability to modify upward a trial award in alimony, based solely on a substantial increase in the payor's income.

Alimony Decision May Have Unintended Consequences

Spouses seeking higher payments face additional legal burden

Ellen B. Lubell and Kelly A. Scott, The Connecticut Law Tribune

January 20 , 2015

Dan v. Dan, decided on Dec. 16, by a unanimous Connecticut Supreme Court, has

generated an unusual degree of controversy and resulted in numerous heated discussions among family lawyers. The hot-button issue is whether the court , by judicial fiat , has modified Connecticut General Statutes §46b-86(a) by imposing an additional burden on the party moving to modify an alimony award made at the time of trial.

The opinion , authored by Justice Peter Zarella, requires the movant (more often than not, the former wife) to prove (in addition to a substantial change in income) that the origina l alimony award (more often than not, part of a negotiated settlement) is inadequate to fulfill its

purpose , as of the date of divorce. (The issue framed by the Supreme Court was whether a trial court may modify a judgment premised on a stipulated alimony award solely on the basis of an increase in the income of the "supporting spouse"?)

The facts in Dan are straightforward and all too common: 29-year marriage with four children; divorce in 2000 , based on a written agreement; husband ordered to pay $15,000 per month as alimony, as well as 25 percent of his bonus income, until the wife's death, remarriage or cohabitation , or the husband's death, retirement or turning age 65. Ten years after the divorce , Ms. Dan moved to modify the alimony award, alleging that her former husband's income had increased substantially, and her medical expenses had skyrocketed .

Although the trial court did not find that the medical expenses had "skyrocketed ," it did find that the husband's income increase from $696,000 to $3.24 million constituted a "substantia l change ." And so the trial court increased alimony payments to $40,000 per month, while extending the term until the wife's death, remarriage or cohabitation. The trial court's decision was upheld by the Appellate Court in 2012 . The Supreme Court granted cert and, after argument, reversed the Appellate Court decision. It used Dan to articulate its preference for time-limited alimony, because "such an award serves as an incentive for the recipient to use diligence in procuring training or skills to make her economically self-sufficient" (Roach v. Roach , 20 Conn. App. 500 (1990)) . To further support its preference for time-limited and modest alimony, the Supreme Court held that: "When the only substantial change in

circumstances after an award of alimony has been made is an increase in the income of the payor 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." (Emphasis added .)

It then concluded that since the purpose of the original award was to allow the wife to maintain the standard of living that she enjoyed during the marriage, and since the original award was based on a stipulation of the parties, it was presumptively sufficient to fulfill its purpose at the time of dissolution. The case was remanded with direction to the trial court to rule as to whether the purpose of the alimony, as of the date of divorce , continued to be met by the original order.

If an alimony award is reached by way of settlement and memorialized in a written separation agreement (as it is in an overwhelming percentage of cases) , trial courts must

"presume" the award is sufficient to fulfill its purpose, in the absence of any suggestion to the contrary. In the post-Dan world, a movant will have to prove a negative, i.e., that the original award did not satisfy its original purpose.

Imposing this additional burden is contrary to the long-supported public policy in favor of settling cases. There are countless reasons why parties choose to settle rather than proceed to trial. If, however, the recipient spouse is going to be held to a higher standard of proof in a postjudgment motion to modify, spouses will be less likely to settle , creating a drain on judicial resources, generating further economic costs for families and prolonging the detrimental effects on their children.

What constitutes a "suggestion to the contrary"? Will parties now be allowed to (or forced to) introduce evidence as to settlement negotiations in order to prove that he or she did not agree to an alimony amount because it was sufficient to satisfy its purpose, but for another legitimate reason? Will testimony be admiss ible as to the parties' considerations that resulted in an unambiguous contract? If the trial court , postjudgment, may only consider certain

statuto ry alimony factors (see C.G.S. §46b-82) , to the extent those factors "shed light on the

intent of the original order," hasn't Dan amended, by judicial fiat , the modification statute

(C.G.S. §46b-86)?

Dan is remarkab le in its declaration that there is "little, if any, legal or logical suppo rt for the proposition that a legitimate purpose of alimony is to allow the recipient spouse's standard of living after divorce to be comparab le with the payor's post-divorce standard of living, when the recipient is no longer contributing to the payor's income earning efforts."

The facts in Dan suggest the contrary. Consider : Did the contribution Ms. Dan made during 29 years of marriage, being a homemaker and raising four children , have no impact on Mr. Dan's post-divorce earning success? Based on the parties' ages , 75 percent of Mr. Dan's "earning years" took place during the marriage. Were his 10 postdivorce years' earnings completely disconnected from his previous 29 professional years? Does O'Neill v. O'Neill, 13 Conn. App. 300 (1988), and its progeny (whereby one party's nonmonetary contributions, as

a primary parent, homemaker , corporate wife, etc., are recognized and valued) surv ive Dan, a decision that dismisses summarily the idea that a spouse's nonmonetary contribution s during a marriage contribute to the supporting spouse's postdivorce income and success .

So how do family lawyers adjust to Dan? In footnote 12, the Supreme Court leaves open the possibility that parties can include language, in their separation agreement, contrary to the Dan interpretation or amendment of C.G.S. §46b-86. A clause in the agreement can provide that the parties agree that an increase in the supporting spouse's income, in and of itself, shall constitute a basis for an alimony increase, without proof by the supported spouse as to her needs at the time of divorce. Of course, parties can also neutralize the Dan impact by agreeing that the alimony award shall be a percentage of the supporting spouse's income rather than a fixed amount.

Since the court didn't limit its decision in Dan to only those motions to modify judgments entered post-Dan, we can assume trial courts will apply the Dan holdings to divorces entered decades ago. Is it equitable to reinterpret C.G.S. §46b-86 and simultaneously impose an additional factor (whether the purpose of the award, at the time of divorce , continues to be met), when the drafters of pre-Dan separation agreements had no reason to foresee a

judicial revision of a fundamental family law statute? In future motions to modify alimony, is it

equitable to limit the trial court's discretion when it considers certain C.G.S. §46b-82 factors to simply whether the original award continues to be sufficient to allow the movant to

maintain the standard of living she enjoyed predivorce, and ignore whether her current needs are being met by the original award?

How does a supporting spouse prove that the initial alimony award was insufficient to meet its purpose? Is it an "exceptional circumstance," and outside the general rule, when the parties' standard of living decreased the last few years of the marriage (for whatever reason) and , as a result, the supported spouse sensibly decreased expenses rather than incur huge debt? In such a case, how does a movant prove that the initial award was insufficient to fulfill the higher standard of living to which the recipient was accustomed during most of the marriage?

The post-Dan landscape will remain an unknown for quite some time . Absent further Appellate Court or Supreme Court "guidance" as to postjudgment alimony modifications , tria l courts , lawyers and litigants will have to guess as to how the Dan decision will be implemented. One thing is clear: going forward, lawyers should be negotiating alimony awards and drafting separation agreements with particular attention to Dan and its likely impact on postjudgment litigation.

The 2014 Practical Guide to Divorce in Connecticut, includes, Ellen B. Lubell's Chapter on Discovery - what you need to know, what you need to obtain and why it is critical. Published MCLE New England.

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