Posts tagged with "motion to modify"

Court Awards Primary Residence to Father in Consolidated DCF Case

In a recent decision involving both a juvenile case and a proceeding in the family division of the Superior Court, a father was awarded primary residence of his daughter following a substantial change in circumstances. The Department of Children and Families initially became involved in the matter when it filed a neglect petition alleging that the child was being denied proper care and attention, or alternatively, was being permitted to live under conditions injurious to her well-being. Shortly thereafter, a finding of neglect entered. Prior to the commencement of the DCF proceedings, however, the father filed a motion to modify custody and visitation in the Superior Court. The matters were consolidated and a dispositional hearing was held in the juvenile court.

In its decision, the court first noted the standards governing the father’s motion to modify and the disposition of the neglect proceeding, respectively. First, it explained that after an adjudication of neglect, a court may: 1) commit the child to the Commissioner of DCF; 2) vest guardianship in a third party; or 3) permit the parent to retain custody with or without protective supervision. In determining the disposition portion of the neglect proceedings, the court must decide which of the custody alternatives is in the child’s best interest. With respect to the father’s motion to modify, the court noted that a party seeking modification of an existing court order must demonstrate a substantial change in circumstances to warrant the change requested.

From a factual standpoint, the court found that the mother and father were never married. Although the father had an extensive criminal background, and had been incarcerated for domestic violence directed at the child’s mother, he was later released on probation. His new residence was approved by the Office of Adult Probation, and was also approved as an appropriate placement for the child. At the time of the hearing, the father was employed, had no pending criminal charges and was compliant with his conditions of probation. Immediately prior to the filing of the neglect petition, the mother was arrested on numerous narcotics charges, which were still pending at the time of the hearing. After her arrest, both she and the father allowed the child to reside with the maternal grandmother during the mother’s access time. At the time of the hearing, the mother was living in a sober house.

After reviewing the evidence, and presumably based on the father’s release from prison (and the mother’s subsequent arrest), the court found that a substantial change in circumstances existed warranting a modification to the then existing custody and visitation orders. Simultaneously addressing its obligation to select a custody arrangement for the child pursuant to the neglect proceedings, the court further found that it was in the child’s best interest to live with the father on a primary basis, subject to a six month period of protective supervision.

Should you have any questions regarding DCF matters, or family matters in general, please feel free to contact Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Court Permits Mother to Modify Alimony and Child Support Despite Clear Language Precluding Her from Doing So

In a recent post judgment divorce action, the Court allowed the ex-wife to modify alimony and child support, despite language in the parties’ separation agreement precluding them from doing so. The parties, who were divorced in 2008, were the parents of one minor child. According to the terms of their separation agreement, the husband was obligated to pay to the wife unallocated alimony and child support in the amount of $225 per week for a period of five years. The parties agreed that at the end of the five year term, they would calculate child support in accordance with the Connecticut Child Support Guidelines. The agreement contained language specifically designating the term and amount of the unallocated order as non-modifiable.

Just six months after the parties’ divorce, the child changed residences and began living with the father. At that point, the parties entered into a stipulation pursuant to which the father’s child support obligation to the wife ceased, and he paid her $120 per week in alimony. The parties further stipulated that the terms and conditions of the original unallocated order were to remain in full force and effect. In or about early 2012, the child changed residences a second time back to the mother’s home. Accordingly, the mother sought an increase in the prior unallocated alimony and support order alleging a substantial change in circumstances; however, the father objected.

Granting the mother’s motion to modify, the Court explained that a minor child’s right to parental support has an independent character, separate and apart from the terms of a support obligation set out in a judgment of dissolution. Although parents may enter into a contract allocating child support payments between them, they may not by contract override the state’s authority and duty to ensure the welfare of children. Parties are expressly authorized by statute to make unallocated periodic alimony and child support nonmodifiable, but the Court must retain the authority to modify such orders where the needs of the children warrant such modification. Ultimately adopting the parties’ previous stipulation with respect to alimony, the Court ordered the father to pay to the mother child support in the amount of $190 per week, for a total, unallocated award of $310 per week.

Should you have any questions regarding matrimonial matters, please do not hesitate to contact Michael D. DeMeola, Esq. He can be reached by telephone in the firm’s Westport office at (203) 221-3100, or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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In Post-Judgment Matrimonial Action, Court Denies Motion to Modify Life Insurance Policy

In a recent post-judgment dissolution of marriage action pending in the Judicial District of Stamford, the Court denied an ex-husband’s motion to modify his life insurance policy, even though it modified, and drastically reduced, his alimony obligation. By way of background, the parties’ marriage was dissolved on November 5, 1999 after they entered into a separation agreement. Pursuant to that agreement, the Husband was obligated to maintain a life insurance policy with a face amount of $250,000 naming his ex-wife as an irrevocable beneficiary thereof. At that point, the ex-husband’s net monthly income was $9,829.51.

At the time of the post-judgment hearing, the ex-husband was sixty-six years of age, retired and in declining health. His net monthly income was $1,357.17. The Court found that the reduction in his income and decline in his financial condition since the date of dissolution constituted a substantial change in circumstances, and reduced his alimony obligation from $6,270.00 per month to $2,500.00 per month. The ex-husband requested that the Court reduce his life insurance obligation accordingly.

In its decision, the Court noted that although a life insurance policy is ordinarily considered property subject to distribution, and thus is ordinarily non-modifiable, where it is awarded as security for alimony, it is modifiable upon a substantial change in circumstances. Nevertheless, the Court denied the ex-husband’s motion, finding that even the policy of $250,000.00 did not provide adequate security given the ex-wife’s life expectancy as compared to the new alimony Order of $2,500.00 per month. The Court also found that the ex-husband may no longer be insurable, and, therefore, if the alimony was increased or the modification reversed upon Appellate review, the ex-husband would be in a potentially impossible position of having to acquire a new life insurance policy.

Should you have any questions regarding matrimonial matters, please do not hesitate to contact Michael D. DeMeola, Esq. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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“Nonmodifiable,” Unallocated Support Award Deemed Modifiable Upon a Change of Primary Residence

In a decision rendered earlier this year, the Connecticut Supreme Court held that child support orders may be modified upon a change in primary residence, even where a separation agreement contains language expressly precluding such modification. In this particular case, the parties are the parents of two minor children. Following their divorce, the children lived with the mother on a primary basis. With respect to financial support, the parties’ separation agreement provided that the husband would pay unallocated periodic alimony and child support to the mother for a designated period of time. The agreement further provided that the unallocated support would be nonmodifiable as to both amount and term. Notably, the agreement did not permit modification upon a change in primary residence of the children.

At some point after the dissolution, the parties agreed to transfer primary physical custody of the children to the father. Shortly thereafter, the father filed a motion to modify the unallocated alimony and child support award based on the change in primary residence. The mother opposed the motion, however, claiming that the parties’ separation agreement expressly precluded modification.

At the trial court level, the father testified that since the children moved into his home on a primary basis, he had been covering additional expenses including cellular telephone bills, extra-curricular activities, entertainment and transportation for the children. Although neither party presented evidence to suggest that the children’s needs were not being met, and despite the aforementioned language precluding modification, the court held that the unallocated order was modifiable. When the Connecticut Appellate Court disagreed, the father appealed to the Connecticut Supreme Court.

The Connecticut Supreme Court concluded that where primary physical custody is transferred from a child support recipient to a child support payor, a provision precluding modification of an unallocated financial award does not in fact prevent modification of the child support component. In reaching its decision, the Court relied primarily on C.G.S. § 46b-224, which essentially provides that whenever the Superior Court orders a change in custody of children who are the subject of preexisting support orders, such change in custody shall operate to suspend the support order if custody is transferred to the child support obligor, or modify the designated payee of the support order to be the person awarded guardianship or custody. In other words, as the Court explained, “if the obligor becomes the new primary custodial parent, the obligor is no longer required to pay child support to the former custodian.” Tomlinson v. Tomlinson, 305 Conn. 529 (2012). The Court further articulated, “…the originally designated payee who no longer has custody of the child does not continue to receive support payments following the change in custody, and the payments are retained by or redirected to the party who does have custody.” Id. The Court further held that C.G.S. § 46b-224 operates automatically regardless of the terms of a separation agreement.

Should you have any questions regarding child support modifications, or divorce related matters in general, please feel free to contact Attorney Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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Court Rules that Father’s Child Support Obligation Did Not Automatically End Upon Child’s Eighteenth Birthday

A recent decision rendered in the Superior Court for the Judicial District of Hartford illustrates the consequences of failing to file a motion to modify child support in a timely manner. In this particular case, the parties obtained a divorce in 1994. At that time, they agreed that the husband would pay child support for their minor child. Several years later, the parties stipulated to an increase in the husband’s obligation. However, none of the agreements contained language specifying when the husband’s child support obligation would end.

Although the child turned eighteen in 2011, the husband continued to pay support for close to another year. When he finally sought a modification, he requested reimbursement for overpayments dating back to the child’s eighteenth birthday, claiming that the court’s order was self-executing, or, in other words, terminated automatically.

In denying the husband’s request for reimbursement, the Court noted that under C.G.S.A. 46b-84, a parent is obligated to provide support until a child reaches the age of eighteen, or if the child is still in high school and in need of maintenance, until the child graduates or reaches the age of nineteen, whichever occurs first. Thus, pursuant to the parties’ agreement which was silent as to termination, the husband’s support obligation could have continued well beyond the child’s eighteenth birthday. Because the parties’ agreement contained no language calling for an automatic termination, the court found that the provision was not self-executing. Moreover, a child support award may not be modified retroactively prior to the date of service of the motion. Thus, although the court terminated the husband’s child support obligation, it only ordered the wife to reimburse him for the amount he paid after she received his motion.

Should you have questions regarding child support, or divorce matters in general, please feel free to contact Attorney Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by email at mdemeola@mayalaw.com.

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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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Court Denies Husband’s Motion to Modify Alimony Despite His Loss of Employment

In a recent post judgment divorce action, the Court denied a husband’s motion to modify alimony despite his loss of employment. The parties were divorced in 2008, and pursuant to the final judgment of dissolution, the husband was ordered to pay his wife alimony in the amount of $6,000.00 per month. The husband worked in the financial industry throughout the course of the marriage and at the time of the divorce was earning roughly $300,000.00 per year.

In 2011, the husband’s position was eliminated. Although he was laid off, the employer provided the husband with a severance package which included, among other things, $319,820.00 in salary. The husband’s total income for 2011 was over $800,000.00, which included employment income and other settlement monies associated with his severance. The husband’s severance agreement contained a one year non-competition clause.

Following a hearing, the court found that the husband had made efforts to find new employment, and start his own consulting firm. The court further found that the husband maintained contacts and kept up with industry and market trends, and noted that the one year non-competition clause likely impacted his ability to secure a new job.

Nevertheless, the wife effectively demonstrated that despite the husband’s loss of employment, his lifestyle remained unchanged. In fact, with the exception of one noted modification, the husband’s discretionary expenses remained exactly the same. Furthermore, the husband vacationed in both Europe and Florida, and maintained ties to various social associations within his community. Noting that lifestyle and personal expenses may serve as the basis for imputing income, the court found that the husband clearly was not concerned about his economic future, and, thus, denied his motion for modification.

Should you have any questions regarding post judgment financial modifications, or divorce actions in general, please feel free to contact Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Court Modifies Alimony Award to $40,000 Per Month

In certain cases a court is permitted to modify orders regarding alimony and child support after a divorce has been finalized. Although there are a variety of circumstances under which a modification may be warranted, cases often involve situations where one party’s income has significantly increased or decreased. In Dan v. Dan, 137 Conn. App. 728 (2012), the parties were divorced in 2000 after a twenty-nine year marriage. As part of their separation agreement, the husband agreed to pay the wife $15,000 per month in alimony, plus 25% of any amounts that he earned through performance based bonuses. The husband was obligated to make the payments until the wife’s death, remarriage or cohabitation, or until the husband retired or reached the age of sixty-five, whichever occurred first.

Approximately ten years later, the wife filed a motion to modify the husband’s alimony obligation, claiming that his income had increased significantly since the divorce, and that her own medical expenses had “skyrocketed.” The trial court found that at the time of the dissolution, the husband was earning $696,000 per year whereas at the time of the hearing, he was earning a base salary of $3,240,000. The court also found that the husband had recently exercised stock options in the amount of $3,000,000. The wife, on the other hand, was earning $8,000 to $12,000 per year from dividend income. She had a high school diploma, but no college degree, and had not been employed since 1977. The court also noted that she was taking medication for high blood pressure, high cholesterol and diabetes. Focusing its analysis on the length of the parties’ marriage, the amount and sources of the parties’ respective income, the parties’ health and the parties’ vocational skills, the court modified the husband’s alimony obligation to $40,000 per month plus 25% of any performance based bonuses.

The husband appealed, claiming that, among other things, the court erred in not limiting its consideration to circumstances that changed after the parties’ divorce. The Appellate Court disagreed, however, explaining that although the moving party must first demonstrate a substantial change in circumstances warranting a modification, once he or she has done so, the court must then consider all of the statutory criteria set forth in C.G.S. § 46b-82. In other words, in formulating the new alimony award, the court will consider the same criteria it considered in formulating an initial award even if some of the criteria do not pertain to the alleged change.

Should you have any questions regarding the modification of alimony or other financial support awards, please feel free to contact Attorney Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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