Under Connecticut Divorce Law, Can you modify an Alimony Order that has already been modified?

This exact issue was a subject of a well-known case entitled Borkowski v. Borkowski, 228 Conn. 729 (1994). Recently, I spoke at the Connecticut State Bar Association’s Annual Conference and Borkowski was amongst the cases I presented.  The following explanation summarizes the court’s decision and addressed the following:

Issue presented: When a party files a motion to modify alimony following a prior modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?

Short Answer: No. The trial court’s inquiry should be limited to whether there has been a substantial change in circumstances from the date of entry of the most recent court order to the present. In this case, the trial court had improperly considered facts going back to the time of entry of the original divorce decree.

Statement of the Facts: The parties were married in 1968 and divorced in 1983 after a 15-year marriage. The Defendant-Husband was ordered to pay $3,000 per month in unallocated alimony and child support.  On February 25, 1988, the Defendant sought a modification of the unallocated alimony and child support order on the grounds that one of the minor children had reached majority and another had moved into the Defendant’s home.  Pursuant to the Defendant’s motion, the unallocated support order was reduced by $500 per month requiring the Defendant to only pay $2,500 monthly. On March 30, 1990, the Defendant filed a second motion for modification to reduce the unallocated order on the basis that a second child had reached the age of majority.  While the Defendant’s motion was pending, the Plaintiff filed a motion for an increase in the unallocated order on the grounds of increased medical expenses. Both parties’ motions were granted, the unallocated order remained $2,500 a month ($250 decrease as to Defendant’s Motion, and a $250 increase as to Plaintiff’s Motion, effectively cancelling each other out).

The Defendant then filed a third modification motion on April 12, 1991, seeking a modification by reducing and/or terminating the unallocated support payable to the Plaintiff and/or entering a separate order of child support for the remaining minor child not in his custody.   The trial court found that there had been a substantial change in circumstances based on a decrease in the Defendant’s income and an increase in the Plaintiff’s income.  Additionally, the Plaintiff had a medical condition, which had been complicated by a 15% permanent disability of her cervical spine.  On the basis of these findings, the trial court granted the Defendant’s motion to modify the unallocated order, but denied his motion to terminate alimony.  Specifically, the trial court separated the unallocated order into distinct alimony and child support orders and reduced the Defendant’s total amount of monthly payments to the Plaintiff.

The Defendant appealed on the basis that, in making its orders, the trial court had improperly considered evidence of events and conditions that had occurred prior to the most recent modification of the unallocated order. The Defendant argued that the trial court should only have considered any changes which occurred subsequent to the most recent modification. The Defendant also argued that the following should not have been permitted by the trial court: (1) the Plaintiff’s testimony about the cause of her spinal injury in 1981, and about the deterioration of her medical condition at that time; (2) the Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree); (3) the Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 in 1983; and (4) the Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

Holding: To avoid the re-litigation of matters already settled, courts in modification proceedings are limited in their inquiry to a comparison between the current conditions and the last court order.

With respect to each of the specific evidentiary issues presented, the court held the following:

(1) The trial court properly permitted the Plaintiff’s testimony about the cause of her spinal injury in 1981 and about the deterioration of her medical condition at that time. Although both the Plaintiff’s injury and her surgery predated the most recent modification, she only developed her 15% permanent disability subsequent to the modification (testimony to the early cause of injury was necessary to establish a foundation as to how she developed the 15% permanent disability);

(2) The Defendant’s testimony on cross-examination concerning the increase of his business’ gross receipts subsequent to 1983 (the year of original decree);

(3) The Plaintiff’s testimony about the diminution in value of an investment account worth $37,000 thousand in 1983; and

(4) The Plaintiff’s testimony concerning the termination of her interest in the Defendant’s accumulated retirement plan subsequent to 1983.

– With respect to issues 2, 3 and 4, the Supreme Court found that the trial court improperly admitted evidence about the Defendant’s business receipts, the Plaintiff’s diminishing interest in an investment account and evidence of the Plaintiff’s terminated interest in the Defendant’s retirement plan. All of these events dated back to the original divorce decree.  Evidence concerning each of these specific financial changes had been raised and considered at earlier modification hearings.

The Supreme Court held that the trial court’s improper and prejudicial evidentiary rulings required its decision to be set aside. The judgment of the Appellate Court was reversed and the case was remanded with direction to reverse the judgment of the trial court and to remand the case for a new hearing on the Defendant’s motion for modification.