Cohen v. Cohen

176 A.3d 92, 327 Conn. 485
CourtSupreme Court of Connecticut
DecidedJanuary 16, 2018
DocketSC 19640
StatusPublished
Cited by2 cases

This text of 176 A.3d 92 (Cohen v. Cohen) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Cohen, 176 A.3d 92, 327 Conn. 485 (Colo. 2018).

Opinion

VERTEFEUILLE, J.

**488The marriage of the plaintiff, Ruth Cohen, and the defendant, Franklin Cohen, was dissolved in 2002. At that time, the trial court, Hon. Dennis Harrigan , judge trial referee, incorporated their separation agreement, which contained a provision requiring the defendant to pay alimony to the plaintiff, into the divorce decree. In 2010, the defendant filed a motion to modify the alimony provision of the divorce decree on the ground that his income had declined significantly. The trial court, Shay, J., granted that motion by way of a corrected memorandum of decision in 2012. In 2013, the plaintiff filed a motion to modify the 2012 modification order on the ground that the defendant's income had substantially increased. The trial court, Colin, J. , granted that motion. The defendant **489then filed this appeal1 claiming, among other things, that Judge Colin improperly (1) based his conclusion that there had been a significant change in the parties' financial circumstances warranting a modification of the 2012 modification order on a comparison of their current circumstances to their circumstances at the time of the divorce decree, instead of their circumstances at the time of the previous 2012 modification order, (2) considered the plaintiff's motion for modification when it was "legally insufficient" on its face, (3) considered certain evidence in support of his conclusion that the 2012 modification order should be modified, and (4) rendered an illegal "lifetime profit sharing order." We reject these claims and affirm the judgment of the trial court.

The record reveals the following procedural history and facts that were found by Judge Colin or are undisputed. The marriage of the parties was dissolved on January 4, 2002, after twenty-seven years of marriage. At the time of the dissolution judgment, the plaintiff was unemployed and had no income. The defendant was employed in the commercial mortgage business and had a net weekly income of $2961.98. The parties entered into a separation agreement, which the trial court, Hon. Dennis Harrigan , judge trial referee, approved and incorporated into the divorce decree. The separation agreement provided in relevant part that, "[c]ommencing January 1, 2002, the [defendant] shall pay during his lifetime to the [plaintiff], as alimony, 33 1/3 [percent] of the first $180,000 of the [defendant's] gross income from his employment and 33 1/3 [percent] of [one half] ... of the income actually received from his limited partnership interest in [various entities] and 25 [percent] of the next $200,000 in earnings and 38 **490[percent] of the next $370,000 in earnings ...." The agreement further provided that "[t]he [plaintiff] shall not be entitled to share in [the] earnings of the *96[defendant] in excess of $750,000 in any calendar year and in no event shall receive more than $250,000 as her share of commission payments in any calendar year." The alimony payments were to continue until the plaintiff's death, remarriage or cohabitation.

As the result of poor market conditions during the years 2008, 2009 and 2010, the defendant's income was significantly reduced. In 2010, he filed a motion to modify the alimony provision of the divorce decree by reducing the percentage of his income that he was required to pay the plaintiff. After an evidentiary hearing, the trial court, Shay, J., found that there had been a substantial change in circumstances since the time of the divorce decree because the defendant's current net income had decreased to $1373.95 per week, and the plaintiff's net income had increased to $945.15 per week. Judge Shay granted the defendant's motion for modification and ordered that the defendant pay the plaintiff $250 per week until her death or remarriage.

In September, 2011, the plaintiff filed a motion to open and vacate that modification order on the basis of new evidence showing that the defendant's income was actually $8805.63 per week, not $1137.95 as Judge Shay had found. The plaintiff contended that, in light of the cyclical nature of the defendant's business, alimony expressed as a percentage of the defendant's income was more appropriate than a set dollar amount. The defendant agreed that an award based on a percentage of his income was appropriate. After an evidentiary hearing, Judge Shay issued a corrected memorandum of decision, finding that the plaintiff's current net income from employment was $392.09 per week and her investment income was $581 per week, for a total of $973.09 per week, and the defendant's current net income was **491$1310.34 per week. Judge Shay further found, however, that the defendant's net income should be calculated on the basis of his income over a two year period and that, using that method, his earning capacity was $158,420 per year, or a net income of $2163 per week. On that basis, Judge Shay ordered the defendant to pay the plaintiff $2750 per month until her death or remarriage (2012 modification order).

In November, 2013, the plaintiff filed a motion to modify the 2012 modification order on the ground that the defendant's earnings in 2012 were more than $293,000, substantially in excess of his earning capacity of $158,420 as found by Judge Shay. In her motion, the plaintiff pointed out that the original alimony provision of the divorce decree had required the defendant to pay the plaintiff a percentage of his income. The defendant objected to the motion on the ground that it would be improper for the court to consider the divorce decree because, when considering a motion for modification of alimony orders pursuant to General Statutes § 46b-86, the trial court's "inquiry is necessarily confined to a comparison between the current conditions and the last court order." Borkowski v. Borkowski , 228 Conn. 729, 738, 638 A.2d 1060 (1994). The defendant further contended that a modification based solely on an increase in his income would be improper under this court's holding in Dan v. Dan , 315 Conn. 1, 14, 105 A.3d 118 (2014), that "an increase in the income of the supporting spouse, standing alone, is not a sufficient justification to modify an alimony award."

After an evidentiary hearing, the trial court, Colin J. , found that the plaintiff had a current net income from employment of $438.2 In addition, she received $284 per *97week in social security benefits and $180 per month **492from a pension, for a total weekly income of $763.54. The defendant had a current net weekly income of $6765.

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Bluebook (online)
176 A.3d 92, 327 Conn. 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-cohen-conn-2018.