Opinion
No. FST FA 09-4015636 S
September 21, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ALIMONY AND CHILD SUPPORT PENDENTE LITE DATED AUGUST 18, 2010 (#137.00, 137.01, 137.02)
The issue to be determined by this motion is: Does the Superior Court have the authority to enter orders for alimony and child support pendente lite when the parties presently live in the same residence? Surprisingly, no Connecticut trial or appellate court has ruled on this issue. Both parties extensively briefed this question. The defendant, husband's, May 24, 2011 brief on this subject states: "It does not appear that any judicial decision in Connecticut has directly addressed the question of whether the parties living under the same roof gives rise to a preclusion against such a temporary award." (#176.00.) The plaintiff, wife's, brief dated June 7, 2011 states: "In addition to the arguments previously stated the Plaintiff notes that there does not appear to be any case which actually holds that alimony pendente lite can only be awarded in this State to a party who has physically separated from the residence of the other party." (#183.00.) The court conducted an extensive five-day evidentiary hearing on this pendente lite motion.
The court finds the following facts and legal conclusions.
The parties were married on May 23, 1985 in Salt Lake City, Utah. The plaintiff, wife, commenced this dissolution of marriage returnable February 3, 2009 on the grounds that the marriage of the parties had broken down irretrievably. No pendente lite orders of alimony or child support have been entered. The wife filed this instant motion for alimony and child support pendente lite on August 18, 2010, nineteen months after the date of the complaint. The parties have six children issue of this marriage. As of the date of this Memorandum of Decision they were respectively ages 25, 22, 20, 18, 14 and 11. The custody and visitation matters were referred to the Family Relations Division for a report on May 4, 2009. The court appointed a guardian ad litem and an attorney for the minor children. On the fourth day of this pendente lite alimony and child support hearing, the parties submitted a 10-page Parental Responsibility Plan dated March 23, 2011 signed by the attorneys for both parties, the GAL and the attorney for the minor children. (#172.00.) A pendente lite order was entered by this court on March 23, 2011 consistent with the Parental Responsibility Plan and the children's representatives were excused from attending further court proceedings. The hearing on alimony and child support pendente lite continued.
The wife is age 50 and in good health. She is employed as a Program Administrator at the Old Greenwich Riverside Community Center, Inc. She started this job in August 2008. Her gross income is $3,287 per month and her net income after deductions of federal income taxes, state income taxes and social security is $2,612.00 per month. She received a degree in Family Studies and Psychology in 1982 from Brigham Young University. Her first child was born on July 6, 1986. The parties agreed that she would stay home taking care of the children. Her current financial affidavit is dated March 21, 2011. (#171.00.)
The defendant husband is age 52 and in good health. He is a graduate of Brigham Young University. He obtained a law degree from Columbia University in 1990. He is admitted to practice in New York and is currently employed by Edwards, Angell, Palmer and Dodge, LLP. He was hired on June 21, 2007 as a partner at $500,000 annually plus bonuses. Ex. 7. Thereafter his status with Edwards, Angell, Palmer and Dodge, LLP changed. He is now employed by them as Of Counsel. He is no longer a partner and has no employment contract. He is a salaried employee at the law firm and receives no bonus. His gross income per month is $15,000. He deducts the following sums monthly: health insurance $246, health savings $270, life insurance $74, long term disability $187, dental insurance $88, federal withholding $3,024, social security $896, medicare $210, and New York State income tax $944. His net monthly income is $9,061 after deducting the above items. His current financial affidavit is dated September 30, 2010 (#150.00) and was filed in court on October 13, 2010.
The parties' principal asset is the family residence at 20 Winthrop Drive, Riverside in Greenwich, Connecticut. The parties disagree as to its fair market value. The husband's financial affidavit indicates that the fair market value is $2,200,000. The wife claims that the fair market value of the real property is $1,300,000. The parties do agree concerning the amount and status of the two mortgages. The first mortgage is in the amount of $1,370,000 and a home equity line second mortgage is in the amount of $200,000. The parties also agree that no payments have been made on either of these two mortgages since early 2009, commencing with the downgrade of the husband's status from partner to Of Counsel. The two mortgages have been in arrears for over two and one-half years. The parties also agree that the real estate and insurance escrows due on the first mortgage have not been paid. The parties owned various rental properties in Georgia but they have been lost to foreclosure. There may be deficiencies on the Georgia mortgages. The parties' liabilities far exceed their assets. The husband discloses assets of $102,000 excluding the family home. This $102,000 includes his personal property and one retirement fund. The husband's liabilities total $495,826.21 including state and federal income taxes, credit cards, personal loans and professional fees. The wife discloses assets of $121,000 excluding the family home. This $121,000 includes her personal property. The wife's liabilities total $235,739 including federal income taxes, one charge card and professional fees. In addition $197,532 of additional debts incurred by the wife were discharged in her bankruptcy proceeding.
The husband filed a Chapter 11 proceeding in the United States Bankruptcy Court, for the District of Connecticut on February 13, 2009. (#158.00.) This bankruptcy matter is still pending. He has yet to file a Chapter 11 reorganization plan. He is required to file a Monthly Report of Operation of Business a/k/a Monthly Operating Report with the Bankruptcy Court. The Monthly Operating Reports from February 2009 through November 2010 were offered in evidence at the pendente lite hearing. Ex. 13. On September 21, 2010 the holder of the first mortgage on 20 Winthrop Drive obtained an order of the bankruptcy court granting relief from stay of bankruptcy. The holder of the second mortgage has also obtained a relief from stay. There was no evidence that any foreclosure action has been commenced.
On July 17, 2009 the wife filed a voluntary petition for bankruptcy protection under Chapter 7 in the United States Bankruptcy Court District of Connecticut at Bridgeport. (#159.00.) On October 22, 2010 she received a discharge in bankruptcy.
The wife filed Plaintiff's Pendente Lite Motion For Permission To Relocate With Minor Children From Present Residence and For Temporary Custody Of The Minor Children, Pendente Lite dated April 14, 2009. (#109.00.) After a contested hearing on that matter, the court filed a two-page Memorandum of Decision dated December 2, 2009. (#133.00.) The trial judge noted: "The evidence was clear that both parents interact with their children, mother on a daily basis since she is employed in town and father on a frequent basis considering his employment centers on New York City. The children are good students, active in sports and other age appropriate activities. The court concludes that the parties have shared physical custody of the children since the commencement of this action. The court finds no compelling reason to order sole custody under the circumstances. ORDERED: Both motions are denied. Sua Sponte the court orders an evaluation of the custody issues by the Family Services Office." This court notes that neither party has filed a motion for exclusive use of the family home under Gen. Stat. § 46b-83(a) and no such order has entered in this file.
On March 23, 2011 the court granted an Amended Motion to Intervene (#166.00) filed by Ronald I. Chorches, Trustee in Bankruptcy of the Estate of Audry H. Peterson. Counsel appeared for the Trustee in Bankruptcy and filed the motion to intervene and briefs and appeared in court to argue for intervention. The Trustee in Bankruptcy has not participated any further and has offered no position concerning the issue before the court: Does the Superior Court have the authority to enter orders for alimony and child support pendente lite while the parties are living together? The Trustee has not appeared at any later subsequent hearing nor submitted a position on the wife's pendente lite claims. The court notes that the Trustee in Bankruptcy for the husband's proceeding filed an appearance on July 25, 2011 but has not intervened as a party. This appearance was filed after the last hearing date on this pendente lite motion.
The wife is requesting an unallocated alimony and child support order of $6,500 per month. The husband argued that no order of pendente lite alimony or child support should be entered stating that there is no immediate need for pendente lite support since the parties have been living together, the husband has been paying all the family expenses except those related to the mortgage, real estate taxes and past due income taxes, and the wife has more than adequate funds from her $39,000 annual gross income for her own uses and expenses.
The court now turns to the principal question: Does the Superior Court have the authority to enter pendente lite alimony and child support orders when the parties are residing together?
Pendente lite alimony and child support is determined by statute. Gen. Stat. §§ 46b-83, 46b-84. LaBella v. LaBella, 134 Conn. 312, 316 (1948). The factors the court must consider for pendente lite child support are: "the respective abilities of the parents to provide such maintenance and the amount thereof, . . . the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child." Gen. Stat. § 46b-84(d). The factors the court must consider for pendente lite alimony are: "the length of the marriage, . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . 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." Gen. Stat. § 46b-82(a). Since this is a pendente lite request, "the causes for the annulment, dissolution of the marriage or legal separation" and "the award, if any, which the court may make pursuant to section 46b-81" are statutory considerations for permanent alimony, not pendente lite alimony. In considering an award of unallocated alimony and child support, the court must consider the above factors in both statutes. Gen. Stat. § 46b-82(a) and Gen. Stat. § 46b-84(d).
The temporary alimony and temporary child support statutes Gen. Stat. §§ 46b-83 and 46b-84(d) are silent in regards to the issue at hand. The factors listed in §§ 46b-82(a) and 46b-84(d) contain no mention of the parties living separate and apart prior to the entry of a court order for alimony and child support pendente lite. In 2005 subsection (b) was added to 46b-83. P.A. 05-258. It references one of the parent's leaving the family home voluntarily. Section (b) did not engraft onto either of the two statutes in question any language on the court's authority to enter a pendente lite alimony and child support when the parents were living together. Section 46b-83(b) was passed by the legislature as a family violence amendment taking into consideration Gen. Stat. §§ 46b-15 et seq. and 46b-38a et seq. No family violence orders of protection or restraining orders have entered as to either of the parties. The silence of the statutes is strong evidence that the court has the authority to enter pendente lite alimony and child support orders when the two parties are currently residing together.
Judicial gloss indicates the parties living apart is a requirement prior to the court entering an order of pendente lite alimony. Although the statutes are silent concerning a requirement of living apart, a number of court decisions seem to contain a requirement of living apart. "The purpose of an order that a husband make payments for the support of his wife pendente lite is to afford her a means of livelihood while she is living apart from him pending the determination of the question of whether she has the right to separate maintenance." Hiss v. Hiss, 135 Conn. 333, 336 (1949). Another phrase found in court decisions references abandonment. "The liability to pay alimony is based upon the duty of the husband to continue to support a wife whom he has, in legal effect, abandoned." Heard v. Heard, 116 Conn. 632, 636 (1933). "Alimony is based upon the continuing duty of a husband to support a wife whom he has in legal effect abandoned." Labella v. Labella, supra, 134 Conn. 319 (Maltbie, C.J. dissenting); Christiano v. Christiano, 131 Conn. 589, 596 (1945). The statutory law in effect for these cases permitted a court only to award alimony to a wife. Gen. Stat. § 2807; Benedict v. Benedict, 58 Conn. 326, 327 (1890); LaBella v. LaBella, supra, 134 Conn. 317-18.
The court finds that the cases referred to "abandoned" and "living apart" are reflection of a more general condition, the violation of the marital covenant by the husband. "Abandoned" and "living apart" were phrases used to describe the violation by the husband of the marriage covenant and were not conditions to the award of alimony. "In other words, that which was determined by the judgment in the divorce case was an allowance out of the estate of the husband made for the support to which the wife was entitled, and of which she had been deprived through the husband's default in the performance of the marriage contract." Scott v. Scott, 83 Conn. 634, 639 (1910). "Alimony is described as an allowance out of the estate of the husband made for the support to which the wife was entitled, and of which she had been deprived through the husband's default in the performance of the marriage contract." Wright v. Wright, 93 Conn. 296, 299 (1919).
The court has found three decisions which analyze the history of women's alimony rights in Connecticut. Mathewson v. Mathewson, 79 Conn. 23 (1906), is a suit by a wife against her husband to recover an amount of a promissory note in which the husband filed a plea in abatement on the grounds of coverture. Stern v. Stern, 165 Conn. 190, 196 (1973), was a dissolution of marriage action involving alimony pendente lite in which the legislative history of the alimony statutes was reviewed. Yale University School of Medicine v. Collier, 206 Conn. 31 (1988), was an action by Yale New Haven Hospital against the patient's spouse to collect for medical services rendered to her deceased husband, which analyzed a spousal support action under Gen. Stat. § 46b-37.
These three cases can be summed up as follows: The relationship of a husband and wife was created by the law of nature preexisting the statutes and that relationship has been modified over time by the legislature. "The essential character of the relation of husband and wife as determined by the law of nature and the correlative rights and duties pertaining to it, may be developed, perverted, or confused, but cannot be destroyed, by the positive law which defines their legal status." Mathewson v. Mathewson, supra, 79 Conn. 25.
The first legislature enactment affecting the rights between husband and wife in the Connecticut Colony was enacted in 1637, which declared that "the wife's legal identity by force of the marriage became merged in that of her husband, and her legal capacity to own or acquire property, real as well as personal, was lost; by force of the marriage her personal freedom was subjected to the will or control of the husband." Id. 27. Connecticut adopted statutory changes in 1672, 1723, 1809, 1849, 1856, 1857 and 1866. In 1877 the Connecticut General Assembly passed Public Acts 1877 then codified as General Statutes § 45, 46, 391 and 392. These statutes are commonly known as the Married Woman's Act. By virtue of the Married Woman's Act, a woman married after the passage of the statute on April 20, 1877 could maintain an action at law for the recovery of money loaned, retain her individual legal identity with a capacity to acquire and to own property, had the right to make contracts and to sue and to be sued. A Supreme Court decision in 1906 called that statute "a single radical act of the legislation." By the 1877 Married Woman's Act a husband "became legally charged (so far as they might be enforced through the law) with those duties of affection and support inherent to the relation of man and wife." Id. 31. The current enactment of the 1877 Married Woman's Act is found in Gen. Stat. § 46b-36 entitled "Wife and husband property rights not affected by marriage." Yale University School of Medicine v. Collier, supra, 206 Conn. 34.
The evolutionary changes in married women's rights that enabled them to acquire and dispose of property also generated changes in the obligations of each spouse to the marriage. In the evolutionary process the primary obligation of the husband to provide support for his wife and children under the common law evolved into a joint duty of each spouse to support the family. Section 46b-37(b) provides the basic statutory predicate for this change. Article fifth of the Connecticut constitution, amending 20 of article first of the Connecticut constitution, however, provides the constitutional underpinnings for contemporary departure from the primary duty of one spouse to the joint duty of each spouse to support his or her family. It must also be recognized that even when the husband had the primary duty to support his wife, his duty was not absolute and unyielding. We have said: "If [the wife] is living apart from [the husband] without justification, this obligation is suspended." Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199 (1965); Litvaitis v. Litvaitis, 162 Conn. 540, 547, 295 A.2d 519 (1972); accord Boushay v. Boushay, 129 Conn. 347, 27 A.2d 800 (1942) (where wife, without justification, refused to live and cohabitate with her husband or otherwise perform the duties of the marriage, the court held that such conduct suspended any obligation on the husband's part to support the wife); see Alexander v. Alexander, 107 Conn. 101, 108, 139 A. 685 (1927). In a related area, in an action by the state against a defendant seeking to compel him to support his wife, abandonment without cause was held to be a defense even though the statute did not provide for it. State v. Jordan, 142 Conn. 375, 114 A.2d 694 (1955). Conversely, a husband is obligated to support his wife if she is living apart from him with just cause. Trenchard v. Trenchard, 141 Conn. 627, 109 A.2d 250 (1954); Churchward v. Churchward, 132 Conn. 72, 42 A.2d 659 (1945).
Yale University School of Medicine v. Collier, supra, 206 Conn. 36-37.
Pendente lite alimony was first authorized by statute in 1895. P.A. 1895, Chapter 127. Stern v. Stern, supra, 165 Conn. 196. (Husband can be ordered to pay temporary alimony to wife.)
A sea change occurred in Connecticut in 1973 with the adoption of no-fault divorce and the whole scale amendments to the marital statutes. P.A. 73-373. After the Married Women's Act of 1877 Connecticut authorized an award of alimony pendente lite from the husband to the wife. Section 7335 of the General Statutes. Up until 1973 the statutory scheme for alimony only authorized courts to order husbands to pay alimony. "Section 46-21 provides that the Superior Court may inter alia order alimony pendente lite to be paid to the wife in any complaint or cross-bill for divorce pending in said court." Stern v. Stern, supra, 165 Conn. 194. Public Act 73-373 permitted either spouse to make a claim of alimony pendente lite and permanent alimony against one another. "An amended version of § 46-21, § 22 of Public Act 73-373 was adopted by the legislature during the 1873 legislative session and it provides that support pendente lite may be awarded to either of the parties. This clear policy decision is strong evidence that the legislature is conscious and favorably disposed to current theories regarding interfamily relationships . . ." Stern v. Stern, supra, 165 Conn. 199, fn.4. Despite the fact that in 1973 either spouse could be awarded alimony, some court decisions thereafter continued to use the "abandoned" and "living apart" language from pre-1973 cases. Fitzgerald v. Fitzgerald, 169 Conn. 147, 151 (1975); Wolk v. Wolk, 191 Conn. 328, 331 (1983). After a number of years, the phrases "abandoned" and "living apart" were no longer found in reported decisions and the following language generally appeared. "The purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution of action." Elliott v. Elliott, 14 Conn.App. 541, 545 (1988); Weinstein v. Weinstein, 18 Conn.App. 622, 640 (1989); Milbauer v. Milbauer, 54 Conn.App. 304, 311 (1999); Friezo v. Friezo, 84 Conn.App. 727, 732 (2004), cert. denied, 271 Conn. 932 (2004).
The pendente lite rule after the Married Woman's Act of 1877 and before Public Act 73-373 was as follows: "The court's authority to award alimony pendente lite is expressly provided for in § 7335 of the General Statutes. Payments pursuant to such an award constitute a fund for the current support of the wife . . . Its purpose is to provide for her and her dependent children while she is living apart from her husband pending a determination of the issues in the case. It is within the sound discretion of the trial court whether such an allowance should be made and, if so, in what amount . . . The standard of living properly to be provided by alimony is that which the husband can afford." England v. England, 138 Conn. 410, 413-15 (1951). The current pendente lite alimony rule is: "The fundamental purpose of alimony pendente lite is to provide for the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband's ability to meet them." Papa v. Papa, 55 Conn.App. 47, 53 (1999). The function of an order for alimony and support pendente lite is to provide support for a spouse who the court determines requires financial assistance, and for any dependent children, until the court makes a final determination of the issues." Trella v. Trella, 24 Conn.App. 219, 222, cert. denied, 219 Conn. 902 (1991).
The court finds that Gen. Stat. §§ 46b-83 and 46b-84 are silent as to the requirement of the parties living separate and apart. Nowhere in these statutes does there exist any requirement that the parties live separate and apart as a condition of a pendente lite alimony order. The court finds that the older decisions citing "abandoned" and "living apart" have been rejected by the current decisions that consistently do not mention either phrase. The court finds that there is no current statutory authority or case law authority for the parties living apart as a condition for pendente lite alimony or child support. The court finds that the Superior Court has the authority to enter pendente lite alimony and child support orders when the two parties continue to reside together. Boyce v. Boyce, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number FA01-0387600S (January 3, 2002, Bassick, JTR) [ 31 Conn. L. Rptr. 177].
The court now turns to the consideration of the wife's claims for $6,500 in an unallocated alimony and child support pendente lite order. "Pendente lite orders, by their definition, are orders that continue to be enforced during the pendency of a suit, action or litigation." Febbroriello v. Febbroriello, 21 Conn.App. 200, 206 (1990). "It is the function of a pendente lite order to establish what the paying spouse can afford as alimony and support pendente lite." Trella v. Trella, supra, 24 Conn. 223. In making an order pendente lite the court shall consider all factors enumerated in the statutes except fault and the award of property of the dissolution. The statute provides trial courts with wide latitude and equitable powers when the determining financial orders pursuant to dissolution actions because they require extremely fact sensitive resolutions. Watson v. Watson, 221 Conn. 698, 712-13 (1992). "The power to act equitability is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage." Doe v. Doe, 244 Conn. 403, 423 (1998).
After considering all the statutory factors set forth in Gen. Stat. §§ 46b-82, 46b-83 and 46b-84 for alimony and support of minor children, Sections 46b-215a-1 et seq., regs., Conn. State Agencies as to Child Support, applicable caselaw, as well as the evidence, testimony, claims of law and claims of fact presented here, the court hereby enters the following orders.
(1) The court enters no order of alimony pendente lite.
(2) The court enters no order of child support pendente lite.
(3) The court enters no order of unallocated alimony and child support pendente lite.
(4) The court denies the Plaintiff's Motion for Alimony and Child Support Pendente Lite dated August 18, 2010 (#137.00, #137.01, #137.02).
The court finds that it has the authority to enter orders as requested by the wife. It declines to exercise its discretion in entering such orders for the following reasons:
(1) The court should not order either party to violate a contract, i.e., continue not to pay the first and second mortgages. The parties themselves can make that choice.
(2) Trustee in Bankruptcy for the wife's bankruptcy has intervened in this contested dissolution of marriage action. Any pendente lite order could possibly conflict with the wife's bankruptcy orders.
(3) The defendant's bankruptcy Chapter 11 proceeding has continued for over two years. The defendant has yet to file a reorganization plan but has filed Monthly Operating Reports. The Trustee in Bankruptcy for the husband's bankruptcy has filed an appearance in this dissolution of marriage action on July 25, 2011. A pendente lite order could possibly conflict with the defendant's bankruptcy proceedings and orders.
(4) Pendente lite awards are required to be based upon net income. The court has substantial information before it that the parties are not in fact paying their income taxes on a current basis. Any pendente lite order would be based on the incorrect net income of the parties and the court has inadequate information as to the payment or nonpayment of income taxes from current income.
(5) The deductibility of pendente lite alimony while the parties were living together was successfully challenged by the IRS. Lyddan v. United States, 721 F.2d 873 (2d Cir. 1983). (The parties "were not separated and living apart, but instead were living in the same residence. Consequently, Lyddan was precluded from deducting alimony payments under Sec. 215 as well as from using head of household tax rates." "We hold that before an alimony deduction can be allowed under I.R.C. Sec. 215 the husband and wife must have lived in separate residences during the relevant period.") LaBow v. Commissioner of Internal Revenue, 763 F.2d 125 (2d. Cir. 1985); Coltman v. Commissioner of Internal Revenue, 980 F.2d 1134 (7th Cir. 1992). Any pendente lite order could embroil the parties in further IRS proceedings over the deductibility of the pendente lite orders.
(6) The Internal Revenue Code § 71b(1)(C) entitled Alimony and Separate Maintenance Payments as well as Treasury Regulations § 1.71-1T, Q-9 A-9 entitled Alimony and Separate Maintenance Payments (temporary) may also affect the deductibility of pendente lite alimony. A pendente lite order could embroil the parties in further IRS proceedings over the deductibility of the pendente lite order.
(7) The evidence has established that the husband is current with the payment of family bills and expenses except for the mortgages, real estate taxes, homeowners insurance, and income taxes. There was insufficient evidence of unmet needs for the wife and the minor children.
(8) The wife has the use of her $39,000 per year gross income for her own personal expenses, which furnishes her with the ability to assist the children with their needs.
Plaintiff's Motion for Alimony and Child Support Pendente Lite dated August 18, 2010 (#137.00, #137.01, #137.02) is hereby denied.