Opinion
No. FA05 401 28 73 S
February 7, 2011
MEMORANDUM OF DECISION
This memo addresses the issue raised in defendant's motion to modify, suspend or terminate alimony, post-judgment (119) and plaintiff's motion for contempt, post-judgment, dated November 21, 2010 (129).
Defendant in his motion to modify (119) seeks to modify the court's judgment based on plaintiff's cohabitation. He claims that the order should be given retroactive application. The statutory basis for these demands is Connecticut General Statutes § 46b-86(b). There is nothing in this statute for retroactive modification of child support. Sanchione v. Sanchione, 173 Conn. 397, 405-06 (1977).
More significantly the separation agreement precludes retroactive modification (see paragraph B of the Separation Agreement, pages 6-7). Of equal significance Paragraph B on page 6 of the separation agreement does not include "cohabitation" as a basis for automatic modification of alimony. In Mihalyak v. Mihalyak, 30 Conn.App. 516-18 (1993) and Kritchko v. Keid, 108 Conn.App. 644, 646 (2008) the separation agreements specifically listed cohabitation as a ground for modification and thus allowing for a modification to be applied retroactively.
In the separation agreement relied upon by the defendant there is nothing identifying cohabitation as a basis for modification or termination of alimony.
In addition, the issues in the present case preclude the court from considering the financial consequences of the defendant's pendente lite purchase of the property at 20 Beacon Street in Bridgeport. Thus, the court cannot consider any evidence of defendant's expenses associated with the ownership of said property. This provision would reduce defendant's weekly expenses to $4,548.00. A second expense on defendant's affidavit that must be disregarded is the amount set forth based on court orders for payment of unallocated payment of alimony and child support in the sum of $1,800.00 per week. This would have the effect of bootstrapping his expenses for orders that had already entered and been considered by the court. Thus, deducting same further reduces defendant's total expenses. This court has also further considered defendant's claim that his educational expense is a new expense is clearly refuted.
The court has also considered the "safe harbor" clause in the parties' agreement. Based on the income shown on her affidavit her gross yearly income is $41,584.00 per year, clearly less than the "safe harbor" amount of $48,000.00.
The court has also considered whether plaintiff's living arrangements after the needs of that party. Connecticut General Statutes § 46b-86(b). The defendant has failed to quantify the value of any additional services provided the plaintiff.
The defendant's motion to modify, suspend, or terminate alimony is denied.
With respect to plaintiff's motion for contempt, post-judgment dated November 21, 2010 (129) there is the claim for an arrearage of $166,735.30 effective November 21, 2010 allowing for a credit of $500.00 in November of 2010.
The defendant's non-compliance is wilful and the court assigns the matter for February 17, 2011 for the imposition of penalty.