Tag: modification

How Does My Motion Get Heard by a Judge?

This Week’s Blog by Christopher J. DeMattie

  • The short calendar is a date when motions are scheduled to be heard.
  • Non-emergency motions get filed with the clerk and then scheduled on the short calendar.
  • Once a motion is scheduled on the short calendar, you have to mark it ready in order to proceed.

What Types of Motions Get Scheduled on the Short Calendar?

Any non-emergency motion gets scheduled for at least the first time on the short calendar.  Emergency, or ex-parte motions, are temporarily decided on the papers without a hearing, and then get scheduled for a hearing within fourteen days of the temporary orders being entered.  Examples of non-emergency motions are as follows: alimony, child support, discovery, modification, contempt, compel, custody, and parenting time.  At the Stamford Courthouse, the short calendar occurs on Mondays and at the Bridgeport Courthouse, the short calendar occurs on Thursdays.  The exception is if a court holiday falls on the short calendar date. Other courts throughout the state have different short calendar dates.

What is a Ready Marking?

After a motion is filed with the clerk, or e-filed in cases filed after October 2015, the motion gets published to the short calendar.  Currently, at the Stamford Courthouse it typically takes approximately four weeks from a time a motion is filed until the short calendar date is assigned.  The typical time at the Bridgeport Courthouse is approximately two weeks.  Just because a motion is published on the short calendar, it is not automatically heard on the short calendar date.  To proceed on the short calendar date, the motion must be marked ready.  To mark a motion ready, you must call the clerk or do so electronically.  Once a motion is marked ready, the other party must be notified.  The marking period is typically the week before the short calendar date.  If the motion is not marked ready, then it cannot be heard at the short calendar.  To have a motion heard that is not marked ready, it must be reclaimed and it is then published to a subsequent short calendar and then marked ready.  Typically, a motion cannot be reclaimed more than three months after it was filed.

What Happens at the Short Calendar?

On the short calendar date the motions are assigned to a specific judge and all parties must report to that Judge’s courtroom.  There, the Judge will typically proceed with a calendar call in which every case is briefly addressed to determine what business, if any, will be addressed that day.  For example the attorneys could report any one of the following to the Judge: the motions will be continued by agreement, the motions will be marked off, an agreement was reached, the parties should proceed to family relations for mediation, or short legal argument is required.  Prior to having an evidentiary hearing, the parties and counsel must first try to resolve factual issue(s) at family relations.  If family relations is unsuccessful, then the motion is eligible for a hearing.  If a motion will take less than hour and if the court has time, it will be heard that day.  If the motion will take longer than an hour, the matter will typically not be heard that date and will be scheduled for a date certain in the future, which unfortunately is often many months in the future.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law, and divorce. We are typically present at each short calendar and our vast experience with the short calendar procedures enables us to efficiently navigate our clients through the process in order to get their motion(s) heard as quickly as possible under the circumstances.

 

Dan v. Dan: Modification of Alimony in Connecticut Divorce Cases

This Week’s Blog by Eric J. Broder

The following is a discussion and summary of a seminal case when dealing with the modification of alimony in the state of Connecticut. Dan v Dan, 315 Conn. 1 (2014) has created quite a stir in the Connecticut divorce bar. It is an important case for practitioners and clients dealing with post-judgment alimony issues to understand. Below is an analysis of the case.

In 2000, a judgment of divorce was entered. The parties had been married more than twenty-nine years. They had three children, all of whom had attained the age of majority before the divorce. At that time of divorce, the Defendant’s base salary was $696,000.  The Agreement provided for the Plaintiff to receive $15,000 per month in alimony, as well as a sum equal to 25% of any bonus income that the Defendant received. The parties also agreed that the Defendant’s alimony obligation would cease when he reached the age of sixty-five or his retirement, whichever occurred first. The Defendant was 50 years old at the time of the divorce and the Plaintiff was 51 years old.

Ten years later, in 2010, the Plaintiff filed a modification of alimony, claiming that her medical expenses had “skyrocketed” and the Defendant’s income had increased substantially.   The Court found that the Plaintiff had failed to prove a substantial change in her circumstances because of an increase in her out-of-pocket medical expenses. The Defendant stipulated during the hearing, however, that he had a substantial increase in his income since the divorce and that this constituted a substantial change in circumstances.

In 2010, the Defendant worked excessively long hours to earn an annual salary of $3.24 million and an additional $3 million from cashing out stock options. At the time of the post-judgment proceeding, the Plaintiff was 61 years old, the Defendant 60 years old. Though the Plaintiff had several health problems, including diabetes that was poorly controlled, this was a circumstance which had existed at the time of the divorce. (The Plaintiff had no college degree and although she had once worked as a receptionist and executive assistant, she had not been employed since 1977.)

After addressing the statutory factors set forth in § 46b–82, the trial court granted the Plaintiff’s motion and increased the Plaintiff’s alimony award from $15,000 to $40,000 per month, plus 25% of any bonus in come that the Defendant received. The court modified the term of alimony to lifetime. In making its decision, the trial court focused on the length of the marriage, the health of the parties, the station and occupation of the parties, the amount and sources of income of each party, and the vocational skills of each party.

 The Supreme Court held that in the absence of certain exceptional circumstances, a substantial change in income standing alone was not sufficient to grant a motion to modify alimony.   The Court set forth a new inquiry to consider when the only substantial change is an increase in payor’s income: (1) Was the original award sufficient to fulfill the original purpose? (2) Does the award continue to fulfill the original purpose? The decision does not discuss in detail what exceptional circumstances might be.

In determining whether an alimony award should be modified when there has only been an increase in the payor spouse’s income, the trial court can only consider: the length of the marriage, the cause of the divorce, and the age, station, vocational skills and employability of the parties. However, these factors shall only be considered in the context of determining the initial intent of the alimony award.  They should not be considered as reasons for altering the purpose of the initial award.  The trial court does not have the discretion to retry issues that have already been decided.

The Supreme Court remanded for a new hearing because the trial court did not address the issue of whether exceptional circumstances existed in this case to justify a modification upward of alimony. The Supreme Court surmised that the original purpose of alimony in this case was to allow the Plaintiff to maintain the standard of living she had during the marriage. The trial court made no finding as to whether the original award continued to be sufficient to meet the original purpose of allowing the Plaintiff to maintain the standard of living she had during the marriage, which is a different question than whether her expenses are met.

What State Has Jurisdiction over Custody of My Children? Part II

The previous post in this series discussed the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and this post will continue with the Parental Kidnapping Prevention Act (“PKPA”).

PART II – PKPA

The PKPA, codified at 28 U.S.C. §1738A, which was signed into law by President Jimmy Carter on December 28, 1980, establishes federal standards for the determination of child custody jurisdiction.  It requires a State to give full faith and credit to any custody or visitation determination made by another State, if the determination was made consistently with the provisions of the PKPA.  Further, a State may not modify a determination made by a State of another State, unless the issuing State no long has jurisdiction or if it declined to exercise jurisdiction.   A determination is consistent with the provisions of the PKPA only if:

  1. The Court has jurisdiction under its local laws (Connecticut’s local law is its version of the UCCJEA); AND
  2. One of the following conditions are met:

a.) Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

b.) (i) it appears that no other State would have jurisdiction under subparagraph (a), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c.) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

d.) (i) it appears that no other State would have jurisdiction under subparagraph (a), (b), (c), or (e), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

e.) The court has continuing jurisdiction pursuant to subsection (d) of this section.

 

Subsection (d) is a catchall provision which confers jurisdiction to a State that made a determination consistently with the provisions of the PKPA if it has jurisdiction under its local laws and it remains the residence of the child or a parent.

At first glance, it may appear that the provisions of the UCCJEA and PKPA are identical, however there are significant differences.  First, the PKPA involves a two part analysis, whereas there is only one analysis under the UCCJEA.  Thus, a determination could be valid under the UCCJEA (or local laws of a State), but it could be invalid under the PKPA if the provisions of the PKPA are stricter than the local laws of the issuing State.

Second, the PKPA interjects the concept of “best interest of the child” when referring to significant connection and substantial evidence, whereas the UCCJEA does not directly consider “best interest of the child.” The “best interest of the child” standard provides the court with broad discretion to exercise jurisdiction if it determines that there is no “home state.”  Thus, it may be necessary during a PKPA hearing to elicit testimony and offer exhibits related to the “best interests of the child”.  Contrary to popular belief, the PKPA statutory analysis does not always end with “home state” status.

The attorneys at Broder & Orland LLC are experienced with the PKPA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.

Modifying an Existing Custody Order during and/or after a Divorce Proceeding

Once the court enters an order of custody, a parent always has the legal right to return to court to seek to modify the original parenting plan.  Contested custody proceedings, including modification proceedings, can present some of the most challenging and contentious situations for parents and for their children whether the proceeding occurs during the divorce or after a final judgment.

If a parent wants to modify an existing custody order the moving parent bears the burden of establishing that there has been a substantial change in circumstances since the original order. In determining whether there has been a substantial change in circumstances, the court must consider the rights and responsibilities of each of the parents, as well as a number of other statutory criteria, including whether the modification serves the children’s best interests.  No single statutory criterion is controlling nor is the court limited to the criteria specified by law.  Factors considered by the court include, but are not limited to the following:

(1) The developmental needs of the children;

(2) Each parent’s ability to meet and understand the needs of the children;

(3) The past and current interaction(s) and relationship(s) of the children with each parent, the children’s siblings and/or other significant contacts to the children;

(4) The children’s adjustment to his or her home, school and community    environments;

(5) The length of time that the children have lived in a stable and satisfactory environment and the             desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the children’s family home during a divorce proceeding in order to alleviate stress in the household;

(6) The stability of the children’s existing or proposed residences;

(7) The willingness and ability of each parent to facilitate and encourage a continuing parent-child relationship between the children and the other parent; and

(8) Any coercive behavior of the parents in an effort to involve the children in parental disputes.

There are many reasons why a parent may seek to modify an existing custody order.  Sometimes the parenting plan schedule may no longer work for one or both of the parents as a result of a change in work and/or the children’s school schedules.  Other times the children’s developmental and/or psychological needs may have changed or the children may not have adjusted well to an existing home, school and/or community environment.  There is no single wrong or right reason to modify a parenting plan.

At Broder & Orland LLC we understand that parenting time arrangements can be complex and sometimes must be modified to meet each family’s changing needs. We are adept at advising our clients on the strategies involved in establishing a parenting plan and understand the multitude of factors considered by a Court during a modification custody proceeding. We also recognize the emotional stresses and challenges that contested custody matters can pose on parents and on their children and we are empathetic to our clients’ needs.

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.