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DIVORCE LAW: Alimony’s Termination Date at Age 60 Found Modifiable

DIVORCE LAW: Alimony’s Termination Date At Age 60 Found Modifiable

CASE:  Pite v. Pite

COUR:  Connecticut Appellate Court

DOC. NO.:  AC 33421- COURT OPINION BY:  Bear, J.

DATE:  May 29, 2012

The language of a modified judgment providing that alimony shall terminate upon the plaintiff’s 60th birthday was modifiable, upon a showing of a substantial change in circumstances, because there was no provision stating that alimony was nonmodifiable.  The defendant, William Pite, appealed from the judgments of the trial court granting the motion to modify the duration of periodic alimony filed by the plaintiff, Faith Pite and denying the defendant’s motion to modify and terminate child support due to the defendant’s payment of their daughter’s private school tuition.  The Appellate court affirmed the judgment.  The language of the modified judgment provided, relevantly, that alimony shall terminate upon the plaintiff’s 60th birthday.  There was no provision stating that alimony was nonmodifiable.  Under the 1979 Connecticut Supreme court decision in Scoville v. Scoville, found controlling, the alimony award was modifiable upon a showing of a substantial change in circumstances.  The Appellate Court, as an intermediate appellate court, was not at liberty to overrule, re-evaluate or re-examine controlling precedent of the Supreme Court, as the defendant sought.  The defendant also contended that the plaintiff’s voluntary settlement of the defendant’s appeal from the judgment of dissolution acted to waive her claim to alimony after her 60th birthday. In the dissolution judgment, the court explained that “[a]limony shall terminate on the plaintiff’s sixtieth birthday because the plaintiff will then be able to support herself through the interest awarded to her by this judgment in the defendant’s profit sharing plan.”  Although the plaintiff later agreed to a lesser amount of the defendant’s profit sharing plan, the portion of the judgment concerning alimony remained unchanged.  The court clearly anticipated that the plaintiff would be able to support herself through her interest in the profit sharing plan.  As she approached her 60th birthday with a significant drop in the value of the sum she received from the profit sharing plan, as found by the court, she filed a motion for modification.  The court did not abuse its discretion to continue alimony as it appeared to effectuate the intent of the dissolution judgment.  The court did not abuse its discretion by not terminating the defendant’s child support obligation.  The defendant voluntarily assumed the responsibility of paying for his daughter to attend private school.