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MARY LOU DAN v. MICHAEL T. DAN

(SC 19054)

Rogers, C. J., and Palmer, Zarella, McDonald, Robinson and Vertefeuille, Js.

Argued April 22—officially released December 16, 2014

Charles D. Ray, with whom was Lee F. Lizotte, for
the appellant (defendant).

George J. Markley, for the appellee (plaintiff).

Louise Truax filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers

as amicus curiae.
Opinion

ZARELLA, J. The primary issue that we must resolve

in this certified appeal is whether the trial court may

modify a judgment,rendered in accordance with a stipulated alimony award, solely on the basis of an increase

in the income of the supporting spouse. Approximately

ten years after the plaintiff, Mary Lou Dan, and the

defendant, Michael T. Dan, were divorced, the plaintiff

filed a motion for modification of the stipulated alimony

award pursuant to General Statutes § 46b-86,1 claiming

that the circumstances of the case had changed substantially because the defendant’s income had increased

significantly and the plaintiff’s medical costs had ‘‘skyrocketed.’’ At the outset of the evidentiary hearing on

the motion, the parties stipulated that there was a substantial change in circumstances because the defendant’s income had substantially increased. Thereafter,

the trial court granted the plaintiff’s motion for modification and substantially increased the amount of alimony that the defendant was required to pay to the

plaintiff. The defendant appealed to the Appellate

Court, claiming that the trial court had abused its discretion as a matter of law by increasing the alimony award

when the sole change in circumstances was an increase

in his income. Dan v. Dan, 137 Conn. App. 728, 729,

731 n.4, 49 A.3d 298 (2012). The Appellate Court upheld

the trial court’s decision to grant the motion. See id.,

733. This court then granted the defendant’s petition

for certification to appeal to this court on the following

issue: ‘‘Did the Appellate Court properly [uphold] the

trial court’s granting of the plaintiff’s motion for modification based [on] a change in circumstances?’’2 Dan v.

Dan, 307 Conn. 924, 55 A.3d 565 (2012). We conclude

that, in the absence of certain exceptional circumstances, which we explain hereinafter, an increase in

income, standing alone, does not justify the modification of an alimony award. We further conclude that,

because the trial court did not expressly address the

issue of whether such exceptional circumstances exist

in the present case, the Appellate Court improperly

upheld the trial court’s decision to grant the plaintiff’s

motion, and the case must be remanded to the trial

court for a new hearing at which the proper standard

may be applied.

The record reveals the following procedural history

and facts that are undisputed or that were found by the

trial court. The parties were divorced in 2000 after more

than twenty-nine years of marriage. They had three

children, all of whom had attained the age of majority

before the divorce. In accordance with a stipulation

between the parties, the trial court, Sheedy, J., awarded

the plaintiff $15,000 per month in alimony, as well as

a sum equal to 25 percent 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.3

In 2010, the plaintiff filed a motion for modification

of the alimony award pursuant to § 46b-86, claiming

that the defendant’s income had ‘‘greatly increased’’

and that her medical expenses had ‘‘skyrocketed.’’ After

an evidentiary hearing on the motion before the court,

Winslow, J.,

4

the court found that the plaintiff had not

proven her claim that there was a substantial change

in her circumstances because of an increase in her outof-pocket medical expenses. The defendant conceded

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 for

purposes of § 46b-86. Accordingly, the sole issue before

the court was whether the statutory factors set forth

in General Statutes (Rev. to 2011) § 46b-82 (a)5

justified

a modification of the alimony award.

The trial court ultimately found that the defendant’s

base salary in 2000 was $696,000. In 2010, his annual

salary was $3.24 million, plus $3 million in stock option

cash-ins. The court also found that the defendant

worked ‘‘excessively long hours and that is obviously

something that relates to some of his compensation.’’

Apart from the alimony that the plaintiff received from

the defendant, the plaintiff had annual income of

between $8000 and $12,000. The court further found

that, as of 2011: the plaintiff was sixty-one years old;

the defendant was sixty years old; the plaintiff had

several health problems, including diabetes that was

poorly controlled, which circumstance 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.

Addressing the statutory factors set forth in § 46b82, the trial court stated that it had not ‘‘given much

weight at all to the needs of the parties’’ because ‘‘the

income level of the defendant makes [it] unnecessary

[to inquire] into the actual needs of the parties. There

is more than enough income to meet and exceed the

needs of each party.’’6 The court also stated that it did

not ‘‘weigh heavily’’ the estate of either party and gave

‘‘virtually no or little weight’’ to the cause of the dissolution. Rather, the factors that the court had considered

important ‘‘were the length of the marriage, the health

of the parties, the station and occupation of the parties,

the amount and sources of income, [and] the vocational

skills of the parties.’’ On the basis of these factors,

the court increased the alimony award from $15,000 to

$40,000 per month, plus 25 percent of any bonus income

that the defendant received, and ordered that the alimony, instead of terminating when the defendant

reached the age of sixty-five, would continue until the

plaintiff’s death, remarriage or cohabitation. The court
also stated, however, that the defendant’s retirement

might constitute a substantial change in circumstances

justifying a modification of the alimony award.

Afterthe trial court issued its oral decision, the defendant filed a motion for articulation in which he

requested that the court clarify whether it had considered the ‘‘§ 46b-82 factors ‘anew,’ or[whether] it consider[ed] only any difference in the factors that occurred

from the date of dissolution until the date of modification . . . .’’7

In addition, the defendant requested that

the court ‘‘articulate the factual and legal basis for [its]

decision to extend the term of [the defendant’s] alimony

obligation beyond that set forth in the parties’ [stipulation], and beyond that requested by the plaintiff . . . .’’

The court granted the motion for articulation. With

respect to the defendant’s first request, the court stated

that it ‘‘could not and did not attempt to ascertain the

status of each additional criterion at the time of the

dissolution judgment. The courtlooked at allthe criteria

currently.’’ With respect to the defendant’s second

request, the court stated that it had continued the defendant’s alimony obligation beyond his sixty-fifth birthday

because ‘‘[the] cessation of alimony on a date certain

would be inequitable in light of the dramatic change in

the parties’ circumstances now apparent ten years after

the [parties’] divorce.’’

The defendant appealed to the Appellate Court from

the trial court’s decision to grant the plaintiff’s motion

for modification. The Appellate Court concluded that

the trial court ‘‘reasonably determined that, considering

the length of the parties’ marriage, the health of the

parties, the amount and sources of income and the

vocational skills of the parties, the defendant’s alimony

should be increased.’’ Dan v. Dan, supra, 137 Conn.

App. 732. This certified appeal followed.8

On appeal, the defendant contends that, contrary to

the Appellate Court’s conclusion, (1) the trial court

improperly granted the plaintiff’s motion for modification solely on the basis of the defendant’s increased

income, (2) even if the trial court properly granted the

motion for modification, the substantial increase in alimony was an abuse of discretion, and (3) the trial court

improperly considered the statutory criteria in § 46b82 anew rather than limiting its consideration to the

criteria that had changed since the date of dissolution.

We agree with the defendant that, when the only substantial change in circumstances after an award of alimony has been made is an increase in the income of

the paying spouse, a modification of the alimony award

ordinarily is not justified if the original award was and

continues to be sufficient to fulfill the original purpose

for which it was made. We further conclude that,

because the trial court made no finding as to whether

the original alimony award continues to be sufficient

to meet its original purpose, the case must be remanded
for a new hearing at which the court may apply the

proper standard in making such a finding. Accordingly,

we need not address the issues of whetherthe trial court

abused its discretion when it substantially increased the

award or properly considered factors that have not

changed since the date of dissolution in determining

the amount of the modification.

We begin our analysis with a review of the legal

principles governing the modification of alimony

awards. ‘‘It is . . . well established that when a party,

pursuant to § 46b-86, seeks a postjudgment modification of a dissolution decree . . . he or she must demonstrate that a substantial change in circumstances has

arisen subsequent to the entry of the [decree].’’ Borkowski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060

(1994). ‘‘Once a trial court determines that there has

been a substantial change in the financial circumstances

of one of the parties, the same criteria that determine

an initial award of alimony . . . are relevant to the

question of modification.’’ (Internal quotation marks

omitted.) Id., 737.

‘‘Because the establishment of changed circumstances is a condition precedent to a party’s relief, it

is pertinent for the trial court to inquire as to what, if

any, new circumstance warrants a modification of the

existing order. In making such an inquiry, the trial

court’s discretion is essential. The power of the trial

court to modify the existing order does not, however,

include the power to retry issues already decided . . .

or to allow the parties to use a motion to modify as an

appeal. . . . Rather, the trial court’s discretion

includes only the power to adapt the order to some

distinct and definite change in the circumstances or

conditions of the parties.’’ (Citations omitted.) Id., 738.

Although it is well established that an increase in

the income of the paying spouse, standing alone, ‘‘is

sufficient to justify reconsideration of a prior alimony

order’’ pursuant to § 46b-86; (emphasis added) McCann

v. McCann, 191 Conn. 447, 451, 464 A.2d 825 (1983);

this court has not yet had occasion to determine

whether this change in circumstance, standing alone,

is ordinarily a sufficient reason to grant a motion to

modify an alimony award in accordance with the criteria set forth in § 46b-82. In McCann, the plaintiff, who

was appealing from the trial court’s upward modification of his alimony obligation; id., 449; contended that

‘‘an increase in the income of the payor spouse is not

a sufficient reason to increase an alimony award. . . .

[In the absence of] a showing of need, [the supported]

spouse should not be provided with a lifetime profitsharing plan.’’ Id., 451–52. This court concluded that,

‘‘[w]hatever merits this contention might have in a case

to which it was factually apposite, it [was] unpersuasive

[in that case] in light of the defendant’s unmet medical

needs, which were established at the time of the original
decree and have increased since that time.’’9

Id., 452.

For the following reasons, we now conclude that an

increase in the supporting spouse’s income, standing

alone, ordinarily will not justify the granting of a motion

to modify an alimony award. Historically, alimony was

‘‘based [on] the continuing duty of a divorced husband

to support an abandoned wife and should be sufficient

to provide her with the kind of living [that] she might

have enjoyed but forthe breach of the marriage contract

by the [husband].’’ Wood v. Wood, 165 Conn. 777, 784,

345 A.2d 5 (1974); see also Demont v. Demont, 67 So.

3d 1096, 1102 (Fla. App. 2011) (‘‘[p]ermanent periodic

alimony is used to provide the needs and necessities

of life to a former spouse as they have been established

during the marriage’’ [emphasis added; internal quotation marks omitted]). One reason for the abandoned

spouse’s entitlement to sufficient alimony to ensure the

continued enjoyment of the standard of living that he

or she enjoyed during the marriage is that the spouse’s

‘‘efforts increased the other’s earning capacity at the

expense of [his or] her own.’’ (Internal quotation marks

omitted.) Cox v. Cox, 335 N.J. Super. 465, 483, 762 A.2d

1040 (App. Div. 2000); see also id. (‘‘[a]limony is an

award formulated to compensate for [a] transfer [of

earning power from nonworking spouse to working

spouse] by sufficiently . . . meeting reasonable needs

for support not otherwise met by property division and

personal income’’ [internal quotation marks omitted]).

More ‘‘[r]ecently . . . courts have begun to limit the

duration of alimony awards in order to encourage the

receiving spouse to become self-sufficient. Underlying

the concept of time limited alimony is the sound policy

that such awards may provide an incentive for the

spouse receiving support to use diligence in procuring

training or skills necessary to attain self-sufficiency.’’

(Internal quotation marks omitted.) Roach v. Roach, 20

Conn. App. 500, 506, 568 A.2d 1037 (1990).

There is little, if any, legal orlogical support, however,

for the proposition that a legitimate purpose of alimony

is to allow the supported spouse’s standard of living to

match the supporting spouse’s standard of living after

the divorce, when the supported spouse is no longer

contributing to the supporting spouse’s income earning

efforts. Rather, the weight of authority is to the contrary.10 We are persuaded by the reasoning of these

cases, namely, that, when the amount of the original

alimony award was and continues to be sufficient to

fulfill the purpose of the award, whether that purpose

was to maintain permanently the standard of living of

the supported spouse at the level that he or she enjoyed

during the marriage or to provide temporary support

in order to allow the supported spouse to become selfsufficient, an increase in the income of the supporting

spouse, standing alone, is not a sufficient justification

to modify an alimony award.11 In short, when the sole
change in circumstances is an increase in the income

of the supporting spouse, and when the initial award

was and continues to be sufficient to fulfill the intended

purpose of that award, we can conceive of no reason

why the supported spouse, whose marriage to the supporting spouse has ended and who no longer contributes anything to the supporting spouse’s income

earning efforts, should be entitled to share in an

improved standard of living that is solely the result of

the supporting spouse’s efforts.12

When the initial award was not sufficient to fulfill

the underlying purpose of the award, however, an

increase in the supporting spouse’s salary, in and of

itself, may justify an increase in the award. For example,

if the initial alimony award was not sufficient to maintain the standard of living that the supported spouse

had enjoyed during the marriage because the award

was based on a reduction in the supporting spouse’s

income due to unemployment or underemployment as

a result of an economic downturn, and, after the

divorce, the supporting spouse’s income returns to its

previous level, a modification might well be justified.13

Cf. McCann v. McCann, supra, 191 Conn. 449–50 (when

supported spouse’s needs were not met by original alimony award and had increased since that time, increase

in supporting spouse’s income justified modification

of award).

In reaching this conclusion, we are mindful that § 46b86 (a) broadly provides that an alimony award may be

‘‘modified by the court upon a showing of a substantial

change in the circumstances of either party’’ and that a

‘‘trial court’s discretion is essential’’ when it determines

whether a modification is justified. Borkowski v. Borkowski, supra, 228 Conn. 738. The trial court’s discretion to modify an award, however, is not unlimited.

Rather, the court’s discretion must be cabined by the

public policies underlying the statutes governing dissolution of marriage and by the general purposes of alimony awards. Because, as a general rule, no public

policy or purpose of an alimony award would be

advanced by the modification of an alimony award

when the only change in circumstance is an increase

in the supporting spouse’s income, we must conclude

that, as a general rule, the trial court has no discretion

to modify an alimony award if this is the only change

in circumstances. We emphasize, however, that this is

only a general rule, and trial courts retain discretion

to modify alimony awards under these circumstances

upon finding that exceptional circumstances exist.

Finally, we conclude that, in making the determination as to whether an alimony award should be modified

when the only change in circumstances has been an

increase in the supporting spouse’s income, the trial

court may consider factors such as the length of the

marriage, the cause of the divorce, and the age, station,
vocational skills and employability of the parties—factors that were presumptively considered by the court

in determining the purpose and amount of the initial

alimony award and that have not changed since that

time—only to the extent that the factors shed light on

the intent of the initial award.14 They should not be

considered as reasons for changing the purpose of the

initial award. See Borkowski v. Borkowski, supra, 228

Conn. 738 (‘‘[t]he power of the trial court to modify the

existing order does not . . . include the power to retry

issues already decided’’); id. (motion for modification

cannot be used as appeal, and ‘‘the trial court’s discretion incudes only the power to adapt the [existing alimony] order to some distinct and definite change in

the circumstances or conditions of the parties’’ [emphasis added]).

In the present case, it is reasonable to conclude, in

the absence of any suggestion to the contrary, that the

purpose of the original alimony award, which was based

on the stipulation of the parties, both of whom were

represented by counsel, was to allow the plaintiff to

maintain the standard of living that she had enjoyed

during the marriage. We presume that the parties agreed

that the amount of the award was sufficient to fulfill

that purpose at the time of the divorce. See Montoya

v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006)

(‘‘we assume a deliberately prepared and executed

agreementreflects the intention of the parties’’ [internal

quotation marks omitted]); see also In re Marriage of

Weber, 337 Or. 55, 69, 91 P.3d 706 (2004) (‘‘[t]he parties’

own resolution of the spousal support issue is entitled

to great weight’’). Indeed, the plaintiff makes no claim

to the contrary. The trial court found that the plaintiff

had not proved that her medical expenses had increased

since the date of the original alimony award, and, other

than the increase in the defendant’s income, those

expenses were the only changed circumstance that the

plaintiff had alleged in her motion for modification. In

addition, the court expressly stated that it did not ‘‘agree

that [the plaintiff has] trouble meeting her expenses on

her current budget.’’ The trial court made no express

finding, however, as to whether the original award continues to be sufficient to allow the plaintiff to maintain

the standard of living that she enjoyed during her marriage to the defendant, a question that is distinct from

the question of whether her current expenses are being

met. Accordingly, we conclude that the Appellate Court

improperly upheld the trial court’s decision to grant the

plaintiff’s motion for modification and that the case

must be remanded to the trial court so that the court

may apply the proper standard in accordance with the

guidance that we have provided in this opinion.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment ofthe trial court and to remand the

case to the trial court forfurther proceedings consistent
with this opinion.

In this opinion the other justices concurred.

1 General Statutes § 46b-86 provides in relevant part: ‘‘(a) Unless and to

the extent that the decree precludes modification, any final order for the

periodic payment of permanent alimony or support, an order for alimony

or support pendente lite or an order requiring either party to maintain life

insurance for the other party or a minor child of the parties may, at any

time thereafter, be continued, set aside, altered or modified by the court

upon a showing of a substantial change in the circumstances of either

party . . . .’’

2 This court also granted certification to appeal on the following issue in

the event that this court answered the first certified question in the affirmative: ‘‘If [the answer to the first certified question is ‘yes’], did the Appellate

Court properly reject the defendant’s claim that the trial court [had] abused

its discretion by considering anew all the statutory criteria set forth in

General Statutes [Rev. to 2011] § 46b-82, rather than limiting its decision to

those factors that had changed since the date of dissolution?’’ Dan v. Dan,

307 Conn. 924, 55 A.3d 565 (2012). In light of our determination that the

Appellate Court improperly upheld the trial court’s decision to grant the

plaintiff’s motion for modification and our remand of the case for a new

hearing, we need not address the second certified question.

3 The defendant’s alimony obligation also could cease upon the plaintiff’s

death, marriage or cohabitation.

4 Because the propriety of Judge Winslow’s ruling on the plaintiff’s motion

for modification is the sole issue in this appeal, hereinafter, all references

to the trial court are to the court, Winslow, J.

5 General Statutes (Rev. to 2011) § 46b-82 (a) provides in relevant part:

‘‘In determining whether alimony shall be awarded, and the duration and

amount of the award, the court shall hear the witnesses, if any, of each

party, except as provided in subsection (a) of section 46b-51, shall consider

the length of the marriage, the causes for the annulment, dissolution of the

marriage or legal separation, the age, health, station, occupation, amount

and sources of income, vocational skills, education, employability, estate

and needs of each of the parties and the award, if any, which the court may

make pursuant to section 46b-81, and, in the case of a parent to whom the

custody of minor children has been awarded, the desirability of such parent’s

securing employment.’’

Hereinafter, all references to § 46b-82 are to the 2011 revision.

6 The trial court further stated that, although it was not giving great weight

to the needs of the parties, it did not ‘‘agree that [the plaintiff has] trouble

meeting her expenses on her current budget. I do not accept that. She makes

choices, and, in particular, she gives away [upward] of $8500 a month by

way of gifts to her children. This is a legitimate expense in her eyes, and

I’m not faulting her for it, but I’m not indicating either that she’s unable to

put bread on her table.’’

7 After the trial court issued its decision from the bench, the court clerk

issued a written order summarizing the ruling. The order, which was not

reviewed or approved by the trial court, stated that the court had considered

the estate of the parties when it modified the alimony award. In his motion

for articulation, the defendant asked the court to clarify this statement, and

the court stated that it was a scrivener’s error.

8 After oral argument before this court, this court invited the Connecticut

Chapter of the American Academy of Matrimonial Lawyers (Academy) to

file an amicus curiae brief addressing two questions: First, ‘‘[d]id the Appellate Court properly [uphold] the trial court’s granting of the plaintiff’s motion

for modification based [on] a change in circumstances?’’ Second, ‘‘[i]f so,

did the Appellate Court properly reject the defendant’s claim that the trial

court [had] abused its discretion [in] considering anew all the statutory

criteria set forth in . . . § 46b-82 rather than limiting its decision to those

factors that had changed since the date of dissolution?’’ The Academy

accepted this invitation and filed an amicus brief, in which it asserted that

both questions should be answered in the affirmative. Thereafter, the parties

requested permission to file supplemental briefs in response to the amicus

brief, which this court granted.

9

In Crowley v. Crowley, 46 Conn. App. 87, 699 A.2d 1029 (1997), the

Appellate Court rejected the defendant’s argument ‘‘that Connecticut should

adopt the policy, used by some other jurisdictions, that an increase in the

income of the payor spouse alone is a legally insufficient reason to support

a modification in an alimony award,’’ stating that this court had rejected
the same argument in McCann. Id., 93 n.8. This, however, was a misreading

of McCann. As we explained, in McCann, this court determined only that

a large increase in the paying spouse’s income, standing alone, was a substantial change in circumstances for purposes of reopening the award pursuant

to § 46b-86. See McCann v. McCann, supra, 191 Conn. 451. This court

declined to address the defendant’s claim in that case that an increase in

income, standing alone, was not a sufficient reason to grant a motion to

modify an alimony award. Id., 452. The Appellate Court’s interpretation of

McCann inCrowley was dictum, however, as the AppellateCourt determined

that the trial court’s modification of the alimony award in Crowley also was

based on the plaintiff’s increased needs. See Crowley v. Crowley, supra, 94.

10 See Sheeley v. Sheeley, 10 Ariz. App. 318, 321, 458 P.2d 522 (1969) (‘‘An

increase in the earning capacity of the husband after the divorce, standing

alone . . . is not sufficient [reason to modify an alimony award]. A former

wife has no continuing right to share in future accumulations of wealth by

her divorced husband.’’); Bedell v. Bedell, 583 So. 2d 1005, 1007 (Fla. 1991)

(‘‘[T]he court is not required to grant an increase in alimony simply upon

proof of a substantial increase in the financial ability of the paying spouse

if equity does not dictate that such a change should be ordered. In fact,

[the court] would expect that a raise in alimony would be ordered when

no increased need was shown only in extraordinary cases [in which] the

equitable considerations were particularly compelling.’’); Arnold v. Arnold,

332 Ill. App. 586, 598, 76 N.E.2d 335 (1947) (‘‘[t]he station in life to which

[the] defendant had accustomed [the] plaintiff at the time of the entry of

the decree and prior thereto is the station in life in which he is bound to

maintain [for] her now,’’ and plaintiff was not entitled to share in defendant’s

improved standard of living after divorce); Council v. Council, 775 So. 2d

628, 630 (La. App. 2000) (increase in supporting spouse’s income standing

alone does not justify increase in alimony); Bridgwood v. Bridgwood, 538

A.2d 286, 287 (Me. 1988) (‘‘The record discloses a sufficient improvement

in [the supporting spouse’s] earnings to warrant the . . . reopening [of] the

alimony award. That change of circumstance alone is insufficient to justify

an increase in alimony.’’); Cole v. Cole, 44 Md. App. 435, 445, 409 A.2d

734 (1979) (‘‘It is manifest that [the] statutory obligation for support and

maintenance should not be so interpreted as to continue the rights of the

former wife just as though no divorce had been granted. The statute does

not contemplate a continuing right in her to share in future accumulations

of wealth by her divorced husband, to which she contributes nothing.’’

[Internal quotation marks omitted.]); Cooper v. Cooper, 62 Mass. App. 130,

140, 815 N.E.2d 262 (‘‘The total support awarded . . . is far in excess of

what the record evidence suggests would be needed to maintain the lifestyle

enjoyed by the parties while married. In the absence of specific findings,

grounded in evidence, that the amount was consistent with that lifestyle,

the award cannot stand.’’), review denied, 443 Mass. 1102, 820 N.E.2d 258

(2004); Burr v. Burr, 313 Mich. 330, 333, 21 N.W.2d 150 (1946) (‘‘The showing

of a somewhat substantial increase in the husband’s income is not sufficient

ground . . . for modifying the provision for permanent alimony in the original decree. Especially is this true since no showing is made . . . of a change

in the needs of [the wife] or the circumstances with which she is surrounded.’’); Katter v. Katter, 457 N.W.2d 750, 754 (Minn. App. 1990)(increase

in supporting spouse’s income, standing alone, is not sufficient ground for

modification of alimony award); Calderwood v. Calderwood, 114 N.H. 651,

653, 327 A.2d 704 (1974) (in determining amount of alimony, court considers

‘‘the social standing or station in life enjoyed by [the supported spouse] at

the time of the divorce’’ and, because supported spouse ‘‘is not entitled to

share in any new prosperity enjoyed by her former [spouse], any improvement in his financial condition since the divorce is irrelevant’’); Crews v.

Crews, 164 N.J. 11, 29, 751 A.2d 524 (2000) (‘‘When modification is sought,

the level of need of the dependent spouse must be reviewed in relation to

the standard of living enjoyed by the couple while married. If that need is met

by the current alimony award and there are no other changed circumstances,

support should not be increased merely because the supporting spouse has

improved financial resources.’’); McMains v. McMains, 15 N.Y.2d 283, 288,

206 N.E.2d 185, 258 N.Y.S.2d 93 (1965) (‘‘[a] wife is not entitled to . . . [an]

escalation [in alimony] as the husband prospers but she must have minimum

support’’); Ward v. Ward, 79 App. Div. 2d 683, 683–84, 433 N.Y.S.2d 861

(1980) (‘‘a substantial increase in the husband’s salary does not present a

substantial change in circumstances to justify an upward modification of

alimony’’); Jan S. v. Leonard S., 26 Misc. 3d 243, 253, 884 N.Y.S.2d 848

(2009) (‘‘[t]he fact that the supporting spouse’s income and means may have
increased does not in itself justify an increase in alimony’’); In re Marriage

of Weber, 337 Or. 55, 68, 91 P.3d 706 (2004) (‘‘a [postdissolution] increase in

a payor spouse’s income does not of itself ordinarily constitute a substantial

change in economic circumstances requiring a court to reconsider a previous

spousal support award’’ [internal quotation marks omitted]); Ferguson v.

Ferguson, Tennessee Court of Appeals, Docket No. 87-305-II (Tenn. App.

October 21, 1988) (‘‘The obligee spouse’s needs are not controlled by the

present standard of living of the obligor spouse. The obligor spouse is not

under a duty to raise the standard of living of the obligee spouse from that

which was ordered at the time of the divorce to a standard which he can

afford at this time. . . . A former spouse does not have a continuing right

to share in future accumulation of wealth by his/her divorced spouse.’’

[Citation omitted.]); id. (‘‘The award of alimony is for the suitable support

and maintenance of the complainant. It is not a profit-sharing plan.’’); Harris

v. Harris, Vermont Supreme Court, Docket No. 2000-303 (Vt. June 6, 2001)

(‘‘The record evidence did not establish that [the] wife’s reasonable needs

were not currently being met in relation to the standard of living established

during the marriage. The only significant change adduced by [the] wife, and

cited by the court, related to [the] husband’s circumstances; his income

upon retirement was indisputably higher than the amount predicted in the

divorce decree. Standing alone, however, we fail to see how this change was

germane to the legal question of whether [the] wife’s current maintenance

payments were sufficient to meet her reasonable needs.’’ [Emphasis in original.]). But see Lott v. Lott, 17 Md. App. 440, 447, 302 A.2d 666 (1973) (‘‘a

substantial increase in the husband’s income alone can, under appropriate

circumstances, be legally sufficient to justify an increase in the amount of

alimony even though the wife’s needs continue as they existed at the time

of the initial award’’); Martindell v. Martindell, 21 N.J. 341, 355, 122 A.2d

352 (1956) (when supporting spouse’s ‘‘resources have substantially

increased, then his former wife may fairly seek an increase upon an affirmative showing that a higher award of alimony would be fit, reasonable and

just . . . in view of all of the circumstances then prevailing’’ [citation omitted; internal quotation marks omitted]); Balmer v. Balmer, 12 Misc. 2d 226,

228, 179 N.Y.S.2d 234 (‘‘Alimony must be fixed . . . after considering the

financial situation of each party. This means the wife’s receipts must go

down when his do; it would seem that they should increase proportionately

when he is well able to pay more.’’), modified on other grounds, 7 App. Div.

2d 741, 180 N.Y.S.2d 1017 (1958), aff’d, 7 N.Y.2d 833, 164 N.E.2d 725, 196

N.Y.S.2d 707 (1959); Commonwealth ex rel. Levy v. Levy, 240 Pa. Super.

168, 174, 361 A.2d 781 (1976) (increase in supporting spouse’s income was

sufficient justification to increase combined alimony and child support

award).

11 In support of her claim to the contrary, the plaintiff notes that, in

Zahringer v. Zahringer, 69 Conn. App. 251, 793 A.2d 1214 (2002), rev’d on

other grounds, 262 Conn. 360, 815 A.2d 75 (2003), the Appellate Court

rejected a claim that the trial court improperly had ‘‘ordered an increase

of alimony that raised the [supported spouse] well above her standard

of living at the time of the dissolution.’’ Id., 260; see also Panganiban v.

Panganiban, 54 Conn. App. 634, 642, 736 A.2d 190 (supporting spouse

challenged alimony award that was ‘‘far above anything to which the [supported spouse] had been accustomed, based on her station in life and standard of living’’), cert. denied, 251 Conn. 920, 742 A.2d 359 (1999). In

Panganiban, the defendant, Alan Panganiban (supporting spouse), won $16

million in a lottery after he and the plaintiff, Roxanna Panganiban (supported

spouse), were separated but before they were divorced. See Panganiban

v. Panganiban, supra, 636–37. Before his good fortune, the supporting

spouse had been unemployed and receiving public assistance. Id., 636. The

trial court awarded the supported spouse time limited alimony in the amount

of $6000 per month. Id., 642. On appeal, the Appellate Court rejected the

supporting spouse’s claim that the alimony award was excessive in light of

the supported spouse’s station in life and standard of living; id., 642–43;

stating that ‘‘[i]t is hornbook law that what a spouse can afford to pay for

support and alimony is a material consideration in the court’s determination

as to what is a proper order.’’ (Internal quotation marks omitted.) Id. We

conclude that Panganiban is distinguishable from the present case because

(1) the supporting spouse in Panganiban won the lottery during the marriage, (2) the case involved an initial alimony award, not a modification,

and (3) the case involved considerations of the public purse, as the supporting spouse also had been receiving public assistance during the marriage.

In Zahringer, the Appellate Court relied on Panganiban to reject the
challenge of the defendant, George J. Zahringer (supporting spouse), to the

trial court’s upward modification of the alimony award to a level that raised

the plaintiff, Celia Zahringer (supported spouse), above her standard of

living during the marriage on the basis of the supporting spouse’s increased

income after the divorce. Zahringer v. Zahringer, supra, 69 Conn. App.

260–61. The Appellate noted, however, that the trial court had found that

‘‘the parties’ children had grown, and that their needs and educational

requirements changed.’’ Id., 261. In addition, the supported spouse’s monthly

expenses had increased. See id.; see also id. (‘‘the [trial] court was persuaded

by the [supported spouse] that she required the increase to provide for

herself and the children’’). Thus, it is arguable that the Appellate Court

determined in Zahringer that the increased alimony award did not improve

the supported spouse’s standard of living but merely maintained it. To the

extent that Zahringer suggests that the supported spouse was entitled to

share in any improvements in the supporting spouse’s standard of living

after the divorce, it is hereby overruled.

The plaintiff also claims that Hardisty v. Hardisty, 183 Conn. 253, 439

A.2d 307 (1981), and Schwarz v. Schwarz, 124 Conn. App. 472, 5 A.3d 548,

cert. denied, 299 Conn. 909, 10 A.3d 525 (2010), support the proposition that

an increase in the supporting spouse’s income, standing alone, is sufficient

justification to increase an alimony award. We disagree. In both of those

cases, the trial court expressly had found that a modification was justified

in part because of the supported spouse’s increased needs. Hardisty v.

Hardisty, supra, 261; Schwarz v. Schwarz, supra, 485–86.

12 The plaintiff contends that, even if the original alimony award could

not be modified pursuant to statute on the sole ground that the defendant’s

income had substantially increased, the parties’ stipulation expressly provides that ‘‘alimony payments provided pursuant to . . . [a]rticle IV [of the

stipulation] shall be modifiable upon the showing of a substantial change

in the circumstances of the parties . . . .’’ Although the trial court referred

to this provision of the stipulation in passing during the hearing on the

motion for modification, the court did not base its ruling on the provision.

Rather, the court expressly based its ruling on the statutory criteria set

forth in § 46b-82. Because the trial court did not consider whether the

stipulation would provide for an alimony modification that would not otherwise be warranted by statute, the plaintiff’s claim is unreviewable.

13 We do not suggest that this is the exclusive circumstance under which

a substantial increase in the supporting spouse’s income, standing alone,

would justify the granting of a motion to modify an alimony award. Because

it is impossible to anticipate all of the factual circumstances that might

justify a modification based solely on an increase in the supporting spouse’s

income, the determination must be made on a case-by-case basis.

14 The plaintiff contends that, ‘‘[i]f the [trial] court [is] limited in its consideration to only those § 46b-82 factors that [have] changed . . . then a spouse

who had been married to a payor for only six months and who had been

the sole cause of the marital breakdown would, upon a substantial increase

in the payor’s income, be entitled to exactly the same [upward] modification

of alimony as the spouse who had been married to the payor for fifty years

and whose marriage had broken down because of the payor’s adultery and

physical abuse.’’ Presumably, however, a spouse in this situation would not

receive an initial alimony award that was intended to maintain the standard

of living that he or she had enjoyed during the marriage. Rather, on the

basis of the short length of the marriage and his or her fault for the divorce,

the spouse would likely receive, at most, a time limited rehabilitative alimony

award. Thus, if the spouse filed a motion for modification, the trial court

would be required to determine only whether the initial award still fulfilled

its rehabilitative purpose underthe changed circumstances. The court would

not be required to reconsider whether a rehabilitative award was justified

by the length of the marriage or the cause of the divorce. Moreover, even

if the spouse received an initial award that was intended to maintain his or

her standard of living, a motion for modification would not be a proper

vehicle for revisiting that determination.