Peixoto v. Peixoto, 185 Conn. App. 272, 196 A.3d 1229 (2018) (Dan v. Dan limitations).
Officially released October 2, 2018.
In short: Dan v. Dan is not limited to matters where alimony was entered by agreement, however, the appellate court is open to new exceptions to Dan v. Dan based on exceptional circumstances.
The parties were divorced in 2014. Husband did not appear or participate and did not file a financial affidavit at time of divorce and Wife proceeded at an unopposed hearing. The trial court concluded at time of dissolution that Husband had gross annual income of $125,000. The court entered orders, including alimony payable to Wife.
Wife filed a motion to modify alimony, post-judgment. The trial court determined that Husband’s gross annual income at time of dissolution had actually been $150,000 and his present gross annual income was $200,000.
The trial court found, by preponderance of the evidence, that Husband’s income had increased substantially, and a modification of alimony was appropriate. The trial court further found exceptional circumstances existed based on Husband’s non-appearance and lack of financial affidavit at time of dissolution, depriving the court of customary evidence.
Husband appealed, arguing that Dan v. Dan, 315 Conn. 1, 105 A.3d 118 (2014) prohibited modification based solely on an increase in the payor’s income, and, thus, the trial court applied the wrong standard of law.
“In Dan, our Supreme Court held that it was permissible for a court to order an upward modification of alimony on the basis of an increase in the payor’s income if either: (1) the initial alimony award was insufficient to fulfill the underlying purpose of alimony; or (2) the court finds that other exceptional circumstances exist.”
The Appellate Court held that Dan v. Dan was not restricted to matters where the alimony entered by agreement. It noted that in this matter, the underlying purpose of the original award was unclear. However, it held that the lack of information available at time of trial constituted an exceptional circumstance, properly cited by the trial court in granting the upward modification of alimony.
