Opinion
No. FA-04-4000175
July 27, 2009
MEMORANDUM OF DECISION
These matters before the court are the defendant's motion to modify alimony (#155) dated January 7, 2009 and to modify alimony and child support orders (#159) dated February 2, 2009. The plaintiff's motion for contempt (#156) dated January 21, 2009 and the defendant's motion for contempt (#157) dated February 2, 2009 were also heard. The motions were argued on April 21, 2009 and April 22, 2009.
The marriage of the parties was dissolved after a trial on February 15, 2006, at which time the plaintiff was ordered to pay alimony to the defendant at the rate of $200 per week. According to the court order, the alimony is to terminate upon the earliest to occur: the death of either party; the wife's remarriage or cohabitation pursuant to statute or the term of six years.
There was also an order requiring the defendant to pay child support for the minor children at the rate of $256 per week. After one of the children graduated from high school, with the parties' agreement, the court modified the child support order to $194 a week.
The defendant asserts that there has been a change in the financial circumstances in that the plaintiff is now living with another person in accordance with C.G.S. § 46b-86(b), her alimony should be terminated or reduced (#155). Also, the plaintiff asserts that due a reduction in his income, there has been a substantial change of circumstances justifying a termination of his alimony order and a reduction of his child support order pursuant to C.G.S. § 46b-86(a). (#159.)
In the case of Gervais v. Gervais, the Appellate Court has recently discussed the requirements of motions to modify under both Connecticut General Statutes § 46b-86(a) and (b).
91 Conn.App. 840, 850-52, 882 A.2d 731 (2005).
In Connecticut, modification of alimony, after the date of dissolution, is governed by § 46b-86. Crowley v. Crowley, 46 Conn.App. 87, 91, 699 A.2d 1029 (1997). In the case of a substantial change in circumstances, subsection (a) "authorizes a court to modify the terms of a dissolution agreement . . ." Zitnay v. Zitnay, 90 Conn.App. 71, 78, 875 A.2d 583 (2005).
In Crowley, we explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86(a). "When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification . . . The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties." (Citations omitted; emphasis added.) Crowley v. Crowley, supra, 46 Conn.App. 92. We further concluded that the "court's power to modify" is created by statute, and it must make its determination on the basis of the statutory standards . . . The trial court is limited to reviewing the current [financial] situation of the parties in light of the statutory criteria set forth in § 46b-82." Id., 98.
The use of the § 46b-82 criteria with respect to actions concerning § 46b-86(a) has long been endorsed by our Supreme Court. For example, in Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994), the court stated: "In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They chiefly have to do with the needs and financial resources of the parties . . . More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties . . . as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties . . .
"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." (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228 Conn. 736-37; see also Gay v. Gay, 266 Conn. 641, 645, 835 A.2d 1 (2003); Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981); Schorsch v. Schorsch, 53 Conn.App. 378, 382, 731 A.2d 330 (1999); Shearn v. Shearn, 50 Conn.App. 225, 228-29, 717 A.2d 793 (1998); Burns v. Burns, 41 Conn.App. 716, 726-27, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996); Sweeny v. Sweeny, 9 Conn.App. 498, 502-03, 519 A.2d 1237 (1987). Internal footnotes omitted).
The Appellate Court in the Gervais case, further discussed the "cohabitation statute."
We now discuss briefly § 46b-86(b), which is commonly known as the cohabitation statute. It provides: "In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party."
Our Supreme Court has stated that § 46b-86(b) "was an express grant of authority to modify or tenninate alimony upon [a] showing that the receiving party is living with another person and that such living arrangements result in a change of circumstances that alter the financial needs of such party. 20 S. Proc., Pt. 7, 1977 Sess., p. 2793, remarks of Senator Salvatore DePiano." (Internal quotation marks omitted.) DeMaria v. DeMaria, 247 Conn. 715, 722, 724 A.2d 1088 (1999). Furthermore, § 46b-86(b) "does not use the word cohabitation. The legislature instead chose the broader language of living with another person rather than cohabitation . . . Because, however, living with another person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § [46b-82], the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, that additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86(b), the non-marital union must be one with attendant financial consequences before the trial court may alter an award of alimony." (Citation omitted; internal quotation marks omitted.) DeMaria v. DeMaria, supra, 720; see also DiStefano v. DiStefano, 67 Conn.App. 628, 633, 787 A.2d 675 (2002); Duhl v. Duhl, 7 Conn.App. 92, 94, 507 A.2d 523, cert. denied, 200 Conn. 803, 509 A.2d 517 (1986). Essentially, subsection (b) of § 46b-86, following a finding that a party is living with another individual, allows the court to modify, reduce, suspend or terminate the payment of alimony if there is a corresponding change in financial circumstances. Put another way, in cases involving the cohabitation statute, subsection (b) lowers the threshold predicate for the modification of alimony to situations where the court finds cohabitation and a change in circumstances so as to alter the needs of the party. The higher burden required by § 46b-86(a) of a "substantial change" in circumstances is lowered when there is cohabitation. As our Supreme Court has explained, § 46b-86(b) "requires only a change of circumstances, not a substantial change as required by § 46b-86(a)." (Internal quotation marks omitted.) D'Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996); Kaplan v. Kaplan, 185 Conn. 42, 45-46, 440 A.2d 252 (1981).
Before a court can consider whether to modify alimony under the authority of § 46b-86, a threshold question must be resolved. With respect to a motion brought pursuant to subsection (a), the court must find a substantial change in circumstances with respect to one or both of the parties. Borkowski v. Borkowski, supra, 228 Conn. 737. Following such a finding, the court then answers the question of modification, taking into account the general alimony factors found in § 46b-82. See id., 736; see also Shearn v. Shearn, supra, 50 Conn.App. 228; see also 1 A. Lindey L. Parley, Separation Agreements and Antenuptial Contracts (2d Ed. 1999), § 22.66[4]. We note that the text of § 46b-86(a) does not contain an express reference to § 46b-82 or any of its factors. Nevertheless, the appellate courts of this state consistently have interpreted § 46b-86(a) in such a manner. See, e.g., Gay v. Gay, supra, 266 Conn. 645; Borkowski v. Borkowski, supra, 736-37; Schorsch v. Schorsch, supra, 53 Conn.App. 382-83; Burns v. Burns, supra, 41 Conn.App. 726-27. The legislature is presumed to be mindful of the judicial construction of relevant legislation. Campion v. Board of Aldermen, 85 Conn.App. 820, 846 n. 18, 859 A.2d 586 (2004), cert. granted on other grounds, 272 Conn. 920, 867 A.2d 837 (2005).
With respect to subsection (b), we conclude that once the court finds (1) cohabitation and (2) a change in the financial needs of the party receiving alimony and cohabitating, the court should engage in the same analysis as with subsection (a); that is, consideration of the § 46b-82 factors. Relevant to this case, the difference between subsections (a) and (b) is the threshold question. Subsection (b) requires the finding of cohabitation, and a lower standard with respect to a change in circumstances. Once those findings are made, however, a uniform application of the § 46b-82 factors is warranted and should be applied to a request for a post-dissolution modification of alimony whether brought under either subsection. The use of the § 46b-82 criteria serves to ensure that the court has an updated picture of the parties' financial situation.
"It is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation . . .It also is well established that we are required to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result." (Citation omitted; internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005). Thus, we interpret subsection (b) as well as subsection (a) to require the court to consider the general alimony factors of § 46b-82 after the respective threshold inquiry has been satisfied.(Internal footnotes omitted).
Id. at 852-53.
C.G.S. § 46b-86(b)
The defendant asserts that the plaintiff is cohabiting with Barry Rosner and that changes the plaintiff's financial needs. Both the plaintiff and Mr. Rosner testified that he often spends the night at the plaintiff's residence. Mr. Rosner resides the balance of his time in his own condominium. Mr. Rosner has performed a limited amount of chores, including mowing the lawn. He has given the parties' children a computer and the plaintiff a hot water heater. However, there is little evidence of any consistent change in the financial circumstances of the plaintiff due to cohabitation. Therefore, there has not been a change in the plaintiff's financial circumstances due to cohabitation as required pursuant to C.G.S. § 46b-86(b) for there to be a modification of alimony. C.G.S. § 46b-86(a)
Under C.G.S. § 46b-86(a), there must be a substantial change of circumstances for the court to consider modifying alimony or child support. The defendant asserts that there has been a change in the financial circumstances of both parties.
The defendant, Vincent J. Cretella, is a driver for DHL. The plaintiff, Donna Cretella, is a secretary at Quinnipiac University.
According to the parties' financial affidavits, the defendant's weekly net income has decreased from $986 (including $380 overtime) to $596 (not deducting child support and alimony). At the same time, the plaintiff's weekly net income has increased from $387 to $453 (not counting her child support and alimony payments).
There has been a substantial change of circumstances as required under Connecticut law. After applying the relevant criteria, the Court orders that the alimony shall be reduced to $100 a week. However, the term of the alimony shall be increased an additional three years and nine months and shall terminate no later than April 30, 2016. In accordance with the guidelines, the child support order shall be reduced to $161 per week.
During the hearing the plaintiff convincingly argued that the defendant had not paid her $3,000 for tuition expenses which by agreement and court order he owed her.
Also, during the hearing, the defendant convincingly argued that the plaintiff owed him $1,178 for an over payment of child support. Therefore, the plaintiff's and defendant's motions for contempt are granted. The amounts owed may be set-off. Each party must immediately abide by the relevant prior court orders.
These orders are prospective and any prior court orders not specifically changed shall remain in effect.