No Contempt for Inability to Pay Alimony When Significant Change in Financial Circumstances

In a post-judgment divorce action, the Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport did not find a husband in willful contempt when he could not make alimony payments, and granted his request for modification due to a significant change in circumstances.

The plaintiff, wife, and defendant, husband, were married in December 2001 in Shelton, and in March 2008, the wife filed a dissolution of the marriage. The parties jointly filed a separation agreement, which was incorporated by the court in its judgment in August 2008. In this agreement, the husband waived his right to alimony from the wife, but it required him to pay alimony to the wife in the amount of $5,450 monthly, plus a percentage of any gross bonus pay, through August 2013. Modification was allowed only in the event that the husband’s gross annual income, which at the time was $275,000, dropped below $130,000.

In December 2008, the husband was terminated without cause from his employer and he received a severance package, paid out in six monthly installments. This package, along with income from the husband’s temporary employment in 2009, exceeded $130,000. For the first half of 2009, the husband continued making his regular alimony payments, paid half that amount in July 2009, and thereafter stopped making any payments. At this point, the husband filed a motion to modify alimony, which the wife opposed. She filed motions for contempt, stating that because the husband’s gross annual income for 2009 exceeded the threshold amount in the separation agreement, he was required to make full alimony for every month in 2009. The husband countered that the severance payments were bonus income and should not be considered part of his gross annual income. Though the husband remained unemployed in the first two months of 2010, he secured employment in March 2010, with an average monthly income of $2,800.

If a party who must pay alimony finds himself unable to do so due to a change in financial circumstances, he must file a motion seeking modification. The moving party must show a substantial change in circumstances that would make it unjust or inequitable to hold either party to the original court order. Various factors, such as the amount and sources of income, are considered when a court entertains a motion to modify alimony. Connecticut courts generally consider severance payments as income as a “future income stream.”

In this case, the court determined that the husband was ineligible for a modification to the alimony payments for 2009. The severance package was characterized as a future income stream, and along with temporary employment, the threshold requirement set out in the separation agreement was exceeded. However, the court found that the husband established a substantial change in circumstances warranting modification of alimony starting in January 2010. It determined that based on average monthly wages, his annual income would amount to $33,600, far below the requisite $130,000 per the separation agreement. As such, the court modified his alimony payments to $700 per month.

Contempt is disobedience of the rules and orders of a court. A movant must prove, by the preponderance of the evidence, the existence of a clear and unambiguous court order and noncompliance with that order. Mere noncompliance won’t support a judgment of contempt: the court must consider the circumstances of the violation and whether the violation was willful. A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may establish that the payor’s nonpayment was willful. Nonetheless, even if a court does not find a payor in contempt, it may still make whole the the party who suffered as a result of the noncompliance.

In this case, the court determined that the husband was not in contempt of the court order, noting he made a good faith effort to comply. Even after his termination from his employer in 2009, he continued making alimony payments, and when he was unable to do so, he filed his motion for modification. Therefore, the court denied the wife’s motions for contempt, but acknowledged that the husband still owed the wife alimony payments for half of July 2009, the remainder of that year, and early 2010. The court ordered the arrearage balance of $34,875 to be paid in the amount of $1,000 per month for thirty four months and $875 on the thirty-fifth month, on top of the monthly alimony payment of $700 pursuant to the modification.

Whether advancing or defending a post-judgment motion regarding modification of alimony awards, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.