Officially Released October 31, 2017
A dissolution decree was entered by agreement in April 2011. Husband was ordered to pay $5,000 per month in alimony until the death of either party, the cohabitation of Wife, or April 2017, whichever occurred first. Within a few months after the decree, Husband had fallen behind on his alimony payments and Wife filed a motion for contempt in August 2011. Wife filed another such motion in October 2011, alleging an arrearage of $22,000. The parties stipulated to such in January 2013, payable at a rate of $750 per month toward the arrearage and continuing the underlying monthly alimony of $5,000 unmodified.
In May 2013 and April 2014, Wife filed further motions for contempt. The Appellate Court stated that it was unclear concerning whether Wife prosecuted either the May 2013 or April 2014 motions. In September 2014 Wife filed her third motion for contempt since May 2013, alleging an arrearage of $91,700. Again, it was unclear whether she ever had prosecuted this motion, as there had been no hearing on it (or on the motions from 2013). Finally, in November 2014, Wife again filed and alleged an arrearage of $94,000. Meanwhile, Husband filed his own motion to modify in July 2013, alleging a decline in his income. Husband filed an additional motion in October 2013, alleging that Wife was cohabitating with her boyfriend.
Wife’s November 2014 motion for contempt and Husband’s amended motion for modification of October 2013 were consolidated and heard in January 2015. The Trial Court granted Husband’s motion terminating his alimony, effective October 2013 on the basis of Wife’s cohabitation, granted Husband’s motion modifying alimony but only for the month preceding termination and only from $5,000 to $4,000, and denied Wife’s motion for contempt. The Trial Court did find an arrearage of $31,500, payable at a rate of $1,500 per month.
At the hearing, Wife admitted moving into her boyfriend’s apartment as of October 1, 2013, testifying that she and boyfriend shared equally the cost of rent and utilities. Wife’s lawyer conceded that the so-called “cohabitation statute,” 46b-86, should apply, but argued that the dissolution decree provided that cohabitation had to involve “a romantic or sexual component,” and that Husband presented no evidence of such.
The Appellate Court gave a thorough discussion of § 46b-86, stating that the word “cohabitation” was not used in that statute and that there was a broader phrase used, “living with another person.” The Court noted further that, in 1978, the General Assembly added financial consequences to 46b-86, some five years after the original enactment of that statute, to the effect that the living arrangement must alter the needs of the alimony recipient. The Appellate Court grounded its ruling on the Supreme Court case of DeMaria v. DeMaria, 247 Conn. 719 (1999), holding that the statutory definition of cohabitation would apply even when the dissolution decree failed to incorporate that definition. The Appellate Court held further that Husband was not obligated to prove a romantic or sexual relationship, because there are only two elements to § 46b-86 (living together and financial impact of such).
Despite applying the definitional aspect of § 46b-86, the Appellate Court held it was proper to look to the specific remedy for cohabitation outlined in the decree, which was termination in this case. The language of the decree specifically stated that alimony would terminate automatically and via self-execution upon cohabitation. Thus, the Appellate Court upheld the Trial Court’s decision that alimony be terminated, based on Wife’s admission of cohabitation and the contribution of boyfriend to her household expenses meeting the statutory definition of cohabitation coupled with the language of the Judgment providing for alimony termination which was automatic and self-executing upon cohabitation.
Counsel for Wife also creatively alleged that Husband had “unclean hands,” because his nonpayment of alimony forced Wife to cohabitate. The Trial Court found that, by the time Wife began cohabitation, Husband had paid $115,000 of his $144,000 obligation, having had to take a loan on his 401(k) and using checking overdrafts to make payments. The Appellate Court stated that proof of unclean hands required willful misconduct, the same as in a contempt proceeding. Essentially, where Wife failed to show willfulness for contempt, she could not show unclean hands. The Appellate Court reiterated the classic point that, in domestic relations cases, “allowance must be given to every reasonable presumption in favor of the correctness of the trial court’s action.”
The Court reiterated the two-step process for modification, a substantial change in circumstances and then applying the financial provisions of the alimony statute, § 46b-82. The current circumstances must be compared with the circumstances at the time of the last court order. However, the Court cited DeMartino v. DeMartino, 79 Conn. App. 488 (2003), for the proposition that if “a post judgment order merely reaffirms the dissolution judgment’s original alimony order … the court must compare the current conditions to the conditions existing at the time of the dissolution Judgment.” Thus, given that the post-judgment stipulation here reaffirmed the original order, it was proper for the Trial Court to compare the current circumstances with those that existed at the original dissolution.
The Trial Court found that Husband had an income of $10,000 per month at the time of the dissolution, in 2011, and that his income had declined to $7,000 per month, as of the cohabitation in 2013. In getting further guidance on what constitutes a substantial change, the Court alluded to Arena v. Arena, 92 Conn.App. 463 (2005), where a substantial change in circumstances was found when the obligor’s annual income had decreased from $200,000 to $145,000. The Appellate Court rejected Wife’s abuse of discretion claim regarding the modification of alimony.
Wife claimed that the Trial Court erred by excluding relevant testimony as to neglect or culpable conduct. Specifically, in upholding an objection to a question as to whether Husband had done a Google search regarding the right of his business partner to force a change in their partnership. The Appellate Court found that the Trial Court did not err in that any evidence derived from such a question would have been duplicative and there was no demonstration that the exclusion was harmful.
Finally, Wife claimed that the Trial Court abused its discretion by not holding Husband in contempt for non-payment of alimony. The Appellate Court found that the Trial Court was well within its discretion given the substantial evidence of Husband’s inability to pay, failure to meet other obligations and efforts to make payments by cashing out retirement assets.
The Trial Court’s decision was affirmed in all aspects.