Opinion
AC 39025
05-08-2018
Robert R. MURPHY v. Jamie D. MURPHY
Keith Yagaloff, South Windsor, for the appellant (plaintiff).
Keith Yagaloff, South Windsor, for the appellant (plaintiff).
Lavine, Prescott and Bear, Js.
BEAR, J.The plaintiff, Robert R. Murphy, appeals from the judgment of the trial court denying his postjudgment motion, as amended, to modify the judgment rendered in the parties' dissolution action. In that motion he sought, pursuant to paragraph 12 (d) of the parties' separation agreement, which was incorporated into the judgment, to terminate his alimony obligation to the defendant, Jamie R. Murphy, because of her alleged cohabitation with her boyfriend. On appeal, the plaintiff claims that the court applied an improper legal standard as a prerequisite for the termination of alimony under General Statutes § 46b–86 (b). We agree and, accordingly, reverse the judgment of the court and remand the case for further proceedings.
The following facts and procedural history are relevant to this appeal. The marriage of the parties was dissolved on March 12, 2012. The court accepted and incorporated the terms of the parties' separation agreement into the judgment. Paragraph 12 (d) of the separation agreement provided that the plaintiff pay periodic alimony to the defendant in the amount of $400 per month until July, 2016, nonmodifiable as to amount and duration, subject, however, to the condition that alimony would terminate on the earlier of the (a) death of the plaintiff, (b) death of the defendant, (c) remarriage of the defendant, or (d) cohabitation by the defendant as defined by § 46b–86 (b).
Although pursuant to the judgment alimony was to end in July, 2016, as is evident from the plaintiff's claims on appeal, this appeal is not moot.
On August 27, 2013, the parties agreed that the plaintiff's alimony obligation should be reduced to $320 per month. The court, Olear, J. , later approved that reduction.
Following the dissolution, the defendant rented a condominium on Sunfield Drive in South Windsor. She paid approximately $1640 per month for rent and utilities. In December, 2014, the defendant and her children left the condominium and moved into her boyfriend's residence in Bloomfield (Bloomfield residence). The defendant paid her boyfriend $800 per month toward his rent and other housing expenses. She continued to pay her personal expenses and the expenses she incurred for the parties' minor children.
The defendant testified, however, that when she was living with her boyfriend in the Bloomfield residence, she did not "do major grocery shopping and ... if [she] stopped at Stop and Shop, [she] grab[bed] $15 worth of food, [made] dinner that night and that's it." She also explained that when she was living with her boyfriend, she was not "stocking the house with groceries." She continued, however, by stating that "[n]ow that I am back in my own home again, I am stocking my house with groceries," and that she spent about $125 per week on groceries after moving back to South Windsor. There was no evidence presented regarding the amount, if any, of the boyfriend's financial contribution to the defendant's food expenses while she and the children lived with him in the Bloomfield residence.
After learning that the defendant had moved into the Bloomfield residence, the plaintiff filed several motions, including the postjudgment motion, as amended, to modify the judgment by terminating his alimony obligation pursuant to paragraph 12 (d) of the separation agreement. In that motion, the plaintiff alleged that the defendant had relocated to Bloomfield where she was living with her boyfriend and that the new living arrangements resulted in a change in circumstances so as to alter the financial needs of the defendant, i.e., a change in circumstances that was sufficient to satisfy the financial requirement of § 46b–86 (b) for termination of alimony.
The only remedy the plaintiff sought was termination of his alimony obligation.
On April 21, 2015, the motion appeared on the court's docket, and the parties entered into a written stipulation that the court accepted. The stipulation provided, in relevant part, that "[i]f [the defendant did] not return to South Windsor on or before August 15, 2015, then the issue of cohabitation and [the plaintiff's] claim to modify/terminate alimony [would] be addressed in mid-September, 2015. Further, if [the defendant] cohabitate[d] in South Windsor the issue of cohabitation [would] also be addressed in mid-September, 2015."
At the hearing, the plaintiff's counsel further explained that "[i]f [the defendant] resumes living in South Windsor and leaves the residence where we're claiming that she's residing with her [boyfriend], then the issue of cohabitation ... [is] not a major issue and will likely be done with. If [the defendant] returns with her [boyfriend] to South Windsor, or if she does not return to South Windsor and stays in Bloomfield with her [boyfriend], we're going to come back in mid-September and deal with cohabitation."
On August 14, 2015, as a result of the parties' stipulation, the defendant executed a lease for another residence in South Windsor (South Windsor residence). Although the defendant's boyfriend cosigned the lease, it provided that only the defendant and the parties' two children would occupy that residence. The defendant moved into that residence on October 1, 2015.
At the plaintiff's request, the court subsequently scheduled a hearing on the plaintiff's amended postjudgment motion seeking termination of his alimony obligation. The hearing took place over two days in January and February, 2016, during which the court, Bozzuto , J. , heard testimony and admitted into evidence various exhibits.
Following the hearing, the court denied the plaintiff's motion. The court found that, although it was clear that the defendant was living with her boyfriend for a period of time at the Bloomfield residence, it was not clear whether her boyfriend "contributed to her support at all, much less to such an extent that the living arrangements caused such a change of circumstances as to alter the financial needs of the defendant." (Internal quotation marks omitted.)
With respect to the period of time after the defendant moved from the Bloomfield residence to the South Windsor residence, the court found that "the record [was] devoid of reliable or probative evidence that the boyfriend contribute[d] financial support to the defendant." The court therefore concluded that the evidence did not support a finding of cohabitation either at the Bloomfield residence or the South Windsor residence, and declined to terminate the plaintiff's alimony obligation to the defendant. This appeal followed.
The plaintiff did not raise any claims on appeal challenging the court's determination that the defendant and her boyfriend were not cohabiting at the South Windsor residence.
The defendant did not file a brief in this court. We therefore decide the appeal on the basis of the plaintiff's brief and the record.
On appeal, the plaintiff claims that the court improperly concluded that he had to establish a change in the defendant's financial needs pursuant to § 46b–86 (b) on the basis of her boyfriend's financial contributions to her support during the period of alleged cohabitation at the Bloomfield residence, rather than due to the defendant's altered financial needs as a result of a reduction in her expenses during that period of time. We agree. Section 46b–86 (b) provides, in relevant part, that "the Superior Court may, in its discretion and upon notice and hearing ... 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 ... termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party...."
General Statutes § 46b–86 (b) additionally provides that "[i]n the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith."
"[U]nder § 46b–86 (b), a finding of cohabitation requires that (1) the alimony recipient was living with another person and (2) the living arrangement caused a change of circumstances so as to alter the financial needs of the alimony recipient." (Internal quotation marks omitted.) Spencer v. Spencer , 177 Conn. App. 504, 515, 173 A.3d 1 (2017), cert. granted, 328 Conn. 903, 177 A.3d 565 (2018). "Pursuant to § 46b–86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony." (Internal quotation marks omitted.) Id. The change in the need of the alimony recipient "need not be substantial ... [but] the difference must be measureable in some way .... [T]he court must have the ability to compare the plaintiff's financial needs at different points in time to determine whether those needs either have increased or decreased over time. Because the court, in setting the alimony award pursuant to [ § 46b–86 (b) ], quantified the [receiving party's] financial needs in terms of dollar amounts at the time of dissolution, we conclude that the proper way for the court to determine whether the [receiving party's] needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollar amounts during the period of cohabitation." (Citations omitted.) Blum v. Blum , 109 Conn. App. 316, 324–25, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).
In the hearing on the motion, the defendant did not dispute that the first requirement under § 46b–86 (b) had been satisfied, i.e., that she was living with her boyfriend in the Bloomfield residence. Therefore, the remaining question is whether the court properly interpreted § 46b–86 (b) to require proof by a preponderance of the evidence that the defendant's boyfriend made financial contributions to her during the period of time she lived in that residence. "It is well established that statutory interpretation involves a question of law over which we exercise plenary review." Friezo v. Friezo , 281 Conn. 166, 180, 914 A.2d 533 (2007).
This court's recent decision in Spencer v. Spencer , supra, 177 Conn. App. at 504, 173 A.3d 1, provides precedent for and supports our analysis in this case. In Spencer , the judgment provided that the defendant's alimony obligation would terminate if, inter alia, the plaintiff began cohabiting. Id., at 507, 173 A.3d 1. The plaintiff began residing with her boyfriend during the period in which she was entitled to alimony payments. Id., at 511, 173 A.3d 1. As a result of her living arrangements, the plaintiff's monthly housing expense decreased from $950 per month to $375 per month. Id. This court held that a reduction of the former spouse's living expenses was a proper basis on which to find that alimony should be terminated, assuming that both requirements of § 46b–86 (b) were satisfied. Id., at 515, 173 A.3d 1. This court concluded that "[o]n the basis of the record before us, we have no difficulty concluding that [the trial court's finding of cohabitation pursuant to § 46b–86 (b) ] is not clearly erroneous because there is ample evidence to support it, and we are without the definite and firm conviction that a mistake has been committed. Specifically, the plaintiff's own testimony established that she began living with her boyfriend and that, as a result of that living arrangement, her monthly rent obligations were reduced from $950 to $375. Thus, there was clear evidence of the two requirements imposed by the definition of cohabitation in § 46b–86 (b). Accordingly, we conclude that the trial court's termination of alimony was not an abuse of discretion." (Emphasis added.) Id., at 521, 173 A.3d 1.
Spencer was decided after we heard oral argument in this case. We sua sponte permitted the parties "to file simultaneous supplemental briefs ... analyzing [Spencer ] and its application, if any, to the present case." Only the plaintiff filed a supplemental brief.
In Spencer the dissolution judgment did not specify that the issue of cohabitation would be decided in accordance with § 46b–86 (b), but the trial court and this court still applied § 46b–86 (b) in determining whether the plaintiff had begun cohabiting with her boyfriend. See Spencer v. Spencer , supra, 177 Conn. App. at 507, 173 A.3d 1. Additionally, although Spencer and earlier decisions use the word cohabitation, that word does not appear in § 46b–86 (b) : "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–8 [2], 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. ... Pursuant to § 46b–86 (b), the nonmarital 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 , 247 Conn. 715, 720, 724 A.2d 1088 (1999).
In the present case, paragraph 12 (d) of the separation agreement provided that alimony would terminate if the plaintiff cohabited as defined in § 46b–86 (b). The defendant, after the judgment was rendered, began residing with her boyfriend during the period in which she was entitled to alimony payments. As a result of the defendant's living situation, her housing expenses allegedly decreased from approximately $1640 per month to $800 per month, a monthly savings of approximately $840.In its memorandum of decision, the court iterated that although it was clear that the defendant and her boyfriend were living together in the Bloomfield residence, "[w]hat [was] not clear [was] whether the defendant's boyfriend contributed to her support at all, much less to such an extent that the living arrangements caused a change of circumstances as to alter the financial needs of the defendant." (Internal quotation marks omitted.) The court concluded, "[t]he evidence does not support a finding of cohabitation pursuant to § 46b–86 (b)."
Because it was undisputed that the defendant and her boyfriend were living together in the Bloomfield residence, the court's statement must refer to the plaintiff's failure to prove that the defendant's boyfriend contributed to her support in such a manner as to alter her financial needs.
The court's focus on the contributions of the boyfriend derives from appellate decisions such as Blum v. Blum , supra, 109 Conn. App. at 316, 951 A.2d 587. In Blum , the parties' dissolution judgment provided for termination of the defendant's alimony obligation if the plaintiff cohabited with an unrelated person. Id., at 318, 951 A.2d 587. The plaintiff purchased a home and her boyfriend moved into her home with his children. Id., at 321, 951 A.2d 587. The trial court found that the plaintiff's boyfriend "purchases groceries for the residence once a week, occasionally cuts the lawn and helps with minor household chores." Id. The boyfriend, however, "pays nothing toward the mortgage, taxes, insurance, utilities, the plaintiff's clothing, fuel and maintenance for the plaintiff's car, the plaintiff's haircuts or expenses for the [plaintiff's] three children." Id. The trial court denied the defendant's motion to modify his alimony obligation. Id., at 320, 951 A.2d 587. In affirming the judgment, this court stated: "The party moving for a change in the court's alimony order ... must adduce some evidence from which the court reasonably could infer the value of the cohabitant's contributions." Id., at 325, 951 A.2d 587. The court in Blum , however, did not have before it the specific facts of the present case, or of Spencer .This court's decision in Blum is correct (and unexceptionable based on its facts) in the circumstance of when a boyfriend (or other person), postjudgment, moves in with an alimony recipient, and then provides some financial support, whether directly or indirectly, to that alimony recipient. In fact, most of this court's decisions applying § 46b–86 (b) do so in the context of the boyfriend (or other person) providing financial support to the alimony recipient, whether the boyfriend moves in with the alimony recipient, or the alimony recipient moves in with the boyfriend, as those are the usual fact patterns. Section 46b–86 (b), however, provides that "the Superior Court may, in its discretion and upon notice and hearing ... 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 ... termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party ." (Emphasis added.) In the present case, the plaintiff claims that the defendant's financial needs have been altered as a result of her choice to move into the Bloomfield residence with her boyfriend, which caused an approximate savings to her of $840 monthly, separate from and independent of any specific financial contribution by her boyfriend. In light of the language of § 46b–86 (b) and the facts of this case, the plaintiff was and is entitled, even in the absence of any proof that the boyfriend was contributing to the financial support of the defendant, to the opportunity to prove to the court that the defendant's living arrangements with her boyfriend caused a change of circumstances so as to alter her financial needs to the point where the provisions of paragraph 12 (d) of the separation agreement concerning termination of alimony became applicable and should be enforced.
It would be most unusual for a panel of this court to intend, either explicitly or implicitly, to reverse an earlier ruling of this court because, "[a]s we often have stated, this court's policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc." (Internal quotation marks omitted.) First Connecticut Capital, LLC v. Homes of Westport, LLC , 112 Conn. App. 750, 759, 966 A.2d 239 (2009) ; see also Consiglio v. Transamerica Ins. Group , 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999) ("[T]his court's policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc. Before a case is assigned for oral argument, the chief judge may order, on the motion of a party or suo moto, that a case be heard en banc. Practice Book § 70–7 (a).")
As previously stated, Blum and many similar precedents have considered and been decided on the basis of the contributions of the cohabitant. Looking at the cohabitant's financial contributions is but one permissible approach permitted by § 46b–86 (b) to determine if the receiving party's financial needs have been altered. This case presents another permissible approach.
In the present case, the court interpreted § 46b–86 (b) too narrowly by focusing on the lack of proof of the boyfriend's financial contributions, to the exclusion of the defendant's savings as a result of her move. Although the boyfriend's contributions may have been factually relevant in Blum , proof of them is not a prerequisite in all cases involving the application of § 46b–86 (b), and that is not the only basis pursuant to § 46b–86 (b) to determine if a party's living arrangements cause such a change of circumstances as to alter that party's financial needs. As Spencer demonstrates, evidence of a $575 reduction in the receiving party's monthly rent obligation is "clear evidence" of a change in circumstances as to alter the financial needs of that party. See Spencer v. Spencer , supra, 177 Conn. App. at 521, 173 A.3d 1.
The court's interpretation of § 46b–86 (b), requiring evidence of the boyfriend's contributions to the defendant in this case, is contrary to the clear and unambiguous language of § 46b–86 (b) that "the living arrangements cause such a change of circumstances as to alter the financial needs of [the defendant]." In other words, the focus of the statutory language as applied to this case is on whether there was a change in the defendant's financial needs because of her move to the Bloomfield residence, and not on whether there was no change to the defendant's financial needs because her boyfriend did not make a specific financial contribution to her support.
Both our Supreme Court and this court have applied the clear and unambiguous language of § 46b–86 (b) focusing on a change in the receiving party's financial needs, regardless of the source thereof. In DeMaria v. DeMaria , supra, 247 Conn. at 720, 724 A.2d 1088, our Supreme Court stated that "[b]ecause ... ‘living with another’ person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b–8 [2], 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, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b–86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony." (Emphasis added.) Similarly, in Lehan v. Lehan , 118 Conn. App. 685, 696–97, 985 A.2d 378 (2010), this court focused on whether there was a change in the alimony recipient's financial needs: "The second requirement is that the plaintiff establish that the defendant's financial needs have been altered as a result of the cohabitation.... For purposes of § 46b–86 (b), the plaintiff must demonstrate that the defendant's financial needs, as quantified by the court in setting the alimony award pursuant to ... § 46b–82, have been altered by her living arrangements." (Citation omitted; internal quotation marks omitted.); see also Cushman v. Cushman , 93 Conn. App. 186, 199, 888 A.2d 156 (2006) ("the party seeking to alter the terms of the alimony payments must ... establish that the recipient's financial needs have been altered as a result of the cohabitation" [internal quotation marks omitted] ); Gervais v. Gervais , 91 Conn. App. 840, 853, 882 A.2d 731 ("subsection (b) of § 46b–86, following a finding that a party is living with another individual, allows the court to ... terminate the payment of alimony if there is a corresponding change in financial circumstances " [emphasis added] ), cert. denied, 276 Conn. 919, 888 A.2d 88 (2005) ; Duhl v. Duhl , 7 Conn. App. 92, 94, 507 A.2d 523 (court concluded that there is no requirement of "financial interdependence such as is found in a common law marriage" before court can order termination of alimony under § 46b–86 (b), and "[n]o such requirement is found in the statute nor [is] ... such a requirement ... necessary to fulfill [the statute's] purpose"), cert. denied, 200 Conn. 803, 509 A.2d 517 (1986).
In summary, in analyzing the plaintiff's claim that the defendant's living arrangements in the Bloomfield residence with her boyfriend caused such a change of circumstances as to alter her financial needs, the court focused solely on whether the defendant's boyfriend contributed to the support of her and her children. The plaintiff's claim, however, was that by moving in with her boyfriend, the defendant saved at least $840 per month in expenses, which resulted in a change in circumstances that altered, i.e., reduced, her financial needs. Prior to the defendant's move to the Bloomfield residence, she allegedly paid $1640 per month for housing expenses, but after the move, she was paying $800 per month, an alleged savings to her of approximately $840 monthly, or approximately $10,080 annually.
The operative language in § 46b–86 (b), "because the living arrangements cause such a change of circumstances as to alter the financial needs of that party," allows the court to consider the defendant's savings as a result of her change in residences in the calculation of whether there has been an alteration in her financial needs. The court has the discretion to conclude, if warranted by the evidence, that the alleged $840 in monthly savings satisfied the requirements of § 46b–86 (b), resulting in a termination of the defendant's alimony pursuant to paragraph 12 (d) of the separation agreement. See Spencer v. Spencer , supra, 177 Conn. App. at 521, 173 A.3d 1 (reduction in rent from $950 to $375 sufficient to satisfy statute). The court in the present case did not consider the defendant's monthly savings in living expenses, however, because her boyfriend did not financially contribute the $840 monthly to her.
Pursuant to this court's recent decision in Spencer, the defendant's alleged reduction in living expenses of approximately $840 per month is sufficient for a court to conclude, in its discretion and if warranted by the evidence, that a change in the defendant's financial circumstances occurred because of her voluntary move into the Bloomfield residence with her boyfriend and payment of less rent each month. See id., at 521, 173 A.3d 1. Therefore, the plaintiff is entitled to a hearing on the issue of whether the defendant's alleged $840 monthly living expense reduction as a result of her move to the Bloomfield residence altered her financial needs within the meaning of § 46b–86 (b) so as to cause the termination of alimony pursuant to paragraph 12 (d) of the separation agreement that the court incorporated into the judgment.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.
In this opinion LAVINE, J., concurred.
PRESCOTT, J., dissenting.
For at least two reasons, I disagree with the majority's conclusion that the judgment of the trial court in this case must be reversed due to the court's application of the wrong legal standard in deciding whether to terminate the alimony obligation of the plaintiff, Robert R. Murphy. First, the majority's decision conflicts with, and implicitly overturns, prior decisions of this court. Second, the legal standard that the majority opinion announces is contrary to the legislative intent expressed in General Statutes § 46b–86 (b). In my view, the majority opinion fashions a new and significantly lower standard of proof in cases in which a party seeks to modify or terminate an alimony obligation because the recipient of the alimony is now living with another person.
This simply is not a case in which the trial court applied the wrong legal standard but, instead, is a case, like many others, in which the moving party did not meet his burden of persuasion with respect to the critical facts he needed to demonstrate in order to be entitled to relief. Accordingly, I respectfully dissent.
The following facts and procedural history are relevant to this appeal. The parties were divorced on March 12, 2012. The parties have one minor child that is an issue of the marriage, and the defendant, Jamie D. Murphy, also has a child who was born prior to the marriage and who subsequently was adopted by the plaintiff.
The court rendered a judgment of marital dissolution in accordance with the parties' separation agreement. Paragraph 12 of the separation agreement provides that the plaintiff would pay periodic alimony to the defendant in the amount of $400 per month until July, 2016, nonmodifiable as to amount and duration. It further provides that the obligation to pay alimony terminates on the earlier of the (a) death of the plaintiff, (b) death of the defendant, (c) remarriage of the defendant, or (d) cohabitation by the defendant as defined by § 46b–86 (b). On August 27, 2013, the parties agreed that the plaintiff's alimony obligation should be reduced to $320 per month. This modification later was approved by the court, Olear, J.
After the divorce, the defendant began renting a condominium on Sunfield Drive in South Windsor. In December, 2014, the defendant moved into her boyfriend's residence in Bloomfield. The defendant paid her boyfriend approximately $800 per month for rent and other housing expenses. She continued to pay all of her personal expenses and the expenses she incurred for the parties' children.
Upon learning that the defendant had moved into her boyfriend's residence in Bloomfield, the plaintiff filed a number of motions, including the amended postjudgment motion seeking termination of his obligation to pay alimony. In that motion, the plaintiff alleged that the defendant had moved to Bloomfield where she was living with her boyfriend and that the new living arrangement caused such a change in circumstances as to alter her financial needs. The plaintiff therefore asked the court to terminate his alimony obligation pursuant to paragraph 12 (d) of the parties' separation agreement.
On April 21, 2015, the parties entered into a stipulation that was accepted by the court. The stipulation provided, in relevant part, that "[i]f [the defendant] [did] not return to South Windsor on or before August 15, 2015, then the issue of cohabitation and [the plaintiff's] claim to modify/terminate alimony [would] be addressed in mid-September, 2015. Further, if [the defendant] cohabitate[d] in South Windsor the issue of cohabitation [would] also be addressed in mid-September, 2015."
The plaintiff's counsel further represented to the court that "[i]f [the defendant] resumes living in South Windsor and leaves the residence where we're claiming that she's residing with her significant other, then the issue of cohabitation ... [is] not a major issue and will likely be done with. If [the defendant] returns with her significant other to South Windsor, or if she does not return to South Windsor and stays in Bloomfield with her significant other, we're going to come back in mid-September and deal with cohabitation."
On August 14, 2015, as a result of the parties' stipulation, the defendant executed a lease to rent a residence in South Windsor. Although the defendant's boyfriend cosigned the lease, it provided that only the defendant and the parties' two children would occupy the rental residence. The defendant moved into that residence on October 1, 2015.
At the plaintiff's request, the court subsequently scheduled a hearing on the plaintiff's amended post-judgment motion seeking termination of his alimony obligation. The hearing took place over two days in January and February, 2016, during which the court, Bozzuto, J. , Chief Administrative Judge for Family Matters, heard testimony and admitted into evidence various exhibits.
Following the hearing, the court, in a written memorandum of decision, denied the plaintiff's motion. In its decision, the court recognized that the cost of the defendant's rent and utilities decreased when she was living with her boyfriend but reasoned that such a decrease "does not in and of itself lead to the conclusion that the boyfriend [was] contributing to the defendant's expenses."
Indeed, the court found that "[t]here was no reliable or persuasive evidence that the defendant's boyfriend paid any of her other personal or housing expenses." The court concluded that there was insufficient evidence to draw the inference that, in light of the new living arrangements, the boyfriend contributes financial support to the defendant so as to alter her financial needs. The plaintiff did not offer any credible evidence regarding whether the defendant's boyfriend gave her money for clothing, food, household items, or anything else while she lived at the boyfriend's residence. Nor did the plaintiff offer any credible evidence "as to the monthly cost of the [Bloomfield] home or an indication of what percentage of the overall cost of the housing the defendant's $800 contribution covered." The court reasoned that, standing alone, the fact that the cost of the defendant's rent and utilities decreased while she lived in Bloomfield with her boyfriend did not suffice to show that her boyfriend contributed to her expenses such that the living arrangements altered her financial needs. In sum, the court concluded that the plaintiff failed to meet his burden to persuade it that living with her boyfriend in Bloomfield caused such a change of circumstances as to alter the financial needs of the defendant. "There is insufficient evidence before the court to draw such a conclusion." This appeal followed. On appeal, the plaintiff primarily argues that the court applied the wrong legal standard in deciding his motion and should have found, on the basis of the evidence presented, that the defendant's financial needs were altered when she was living with her boyfriend simply because she paid less for rent and utilities in Bloomfield than what she had paid at the Sunfield Drive residence in South Windsor.
With respect to the period of time after the defendant moved from Bloomfield back to South Windsor, the court also found that "the record [was] devoid of reliable or probative evidence that the boyfriend contributes financial support to the defendant ...." The court therefore concluded that the evidence did not support a finding of cohabitation and declined to terminate the plaintiff's alimony obligation to the defendant. The plaintiff does not challenge on appeal this determination.
The defendant did not file a brief in this court.
At the outset, I note the points on which the majority opinion and I appear to agree. Paragraph 12 of the separation agreement provided that the plaintiff would pay periodic alimony to the defendant in the amount of $400 per month until July, 2016, nonmodifiable as to amount and duration, and that the alimony would terminate on the earlier of the (a) death of the plaintiff, (b) death of the defendant, (c) remarriage of the defendant, or (d) cohabitation by the defendant as defined by § 46b–86 (b). Pursuant to the parties' agreement, permanent termination of the plaintiff's obligation to pay alimony is the sole remedy following a finding of cohabitation and the definition of cohabitation set forth in § 46b–86 (b) sets the standard for assessing whether cohabitation has occurred. See Nation–Bailey v. Bailey , 316 Conn. 182, 193, 112 A.3d 144 (2015) (parties' agreement reflects intent not to import remedial aspect of § 46b–86 [b] ).
In other words, the plaintiff does not seek to terminate alimony on the basis of § 46b–86 (b). Instead, the plaintiff seeks to terminate alimony on the basis of the parties' agreement, in which they simply rely on the statute as a means of defining "cohabitation." See General Statutes § 46b–86 (b) ("[i]n the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith"); see also Nation–Bailey v. Bailey , supra, 316 Conn. at 198, 112 A.3d 144.
Section 46b–86 (b) defines cohabitation as "living with another person under circumstances which the court finds should result in the ... termination of alimony because the living arrangements cause such a change in circumstances as to alter the financial needs of that party." Thus, in accordance with § 46b–86 (b), "a finding of cohabitation requires that (1) the alimony recipient was living with another person and (2) the living arrangement caused a change of circumstances so as to alter the financial needs of the alimony recipient." (Emphasis added.) Fazio v. Fazio , 162 Conn. App. 236, 240 n. 1, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016). As this court stated in DiStefano v. DiStefano , 67 Conn. App. 628, 633, 787 A.2d 675 (2002), "[b]ecause ... living with another person without financial benefit did not establish sufficient reason to refashion an award of alimony ... the legislature imposed the additional requirement that the party making the alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of alimony recipient." (Citation omitted; emphasis added; internal quotation marks omitted.)
The majority opinion and I also agree that, pursuant to § 46b–86 (b), the alteration of the financial needs of the alimony recipient caused by the new living arrangements "need not be substantial ... [but] the difference must be measurable in some way.... [T]he court must have the ability to compare the plaintiff's financial needs at different points in time to determine whether those needs either have increased or have decreased over time." (Citations omitted.) Blum v. Blum , 109 Conn. App. 316, 324–25, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).
It is at this point in the analysis, however, that the majority and I diverge. The majority appears to conclude that, so long as the alimony obligor demonstrates that the alimony recipient's expenses such as rent were reduced in a measurable way after moving in with another person, then the alimony obligor has established cohabitation as defined by § 46b–86 (b). The majority reasons that because the rental obligations of the defendant in this case may have been reduced by $840 per month when she moved into the new residence in Bloomfield and began living with her boyfriend, the plaintiff was not required to demonstrate that the person with whom the defendant was living (the cohabitator) made any financial contributions to paying the rent or to the new household in general. I respectfully disagree with this conclusion.
Footnote 3 of the majority opinion implies that the defendant's boyfriend also contributed to expenses related to the defendant's minor children while she was living at the Bloomfield residence by referring to testimony of the defendant that she did not do "major grocery shopping" during that time. The trial court, however, made no such finding in its memorandum of decision and, in fact, found that "[t]here was no reliable or persuasive evidence that the defendant's boyfriend paid any of her other personal or housing expenses."
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First, it directly conflicts with established precedent. In Blum v. Blum , supra, 109 Conn. App. at 319, 951 A.2d 587, the defendant sought to terminate or modify his alimony obligation because the plaintiff, his former wife, had begun living with Damian Donovan, the father of the plaintiff's fourth child, at a new residence that she had purchased out of the proceeds from the sale of the marital residence. In his motion to modify, the defendant alleged that the plaintiff's new living arrangements "resulted in a change to her financial circumstances sufficient to justify a reduction or termination of the defendant's alimony obligations." Id. The trial court denied the motion, concluding that the defendant "failed to meet his burden because he adduced no evidence as to the values of the contributions that Donovan made to the plaintiff's household or the burdens that Donovan placed on the plaintiff's financial resources." (Emphasis added.) Id., at 323, 951 A.2d 587.This court subsequently affirmed the judgment of the trial court. In so doing, this court emphasized that "the defendant adduced no evidence as to the goods, services and resources provided ... by Donovan." Id., at 321, 951 A.2d 587. This court plainly stated: "Parties are not required to account for every penny that leaves the cohabitant's purse or elicit expert testimony as to the value conferred on the alimony recipient by every activity of the cohabitant. The party moving for a change in the court's alimony order, however, must adduce some evidence from which the court could infer the value of the cohabitant's contributions .... In this case, there was no evidence from which the court could have inferred the value of Donovan's contributions to, or demands on, the plaintiff's financial resources. Accordingly, we conclude that the court properly construed § 46b–86 (b) in denying the defendant's May 30, 2006 motion." (Emphasis added.) Id., at 325–26, 951 A.2d 587. The trial court in the present case directly relied on this language from Blum in denying the motion to terminate alimony.
The majority, however, implicitly overrules Blum because it frees a party seeking to terminate or modify alimony from the obligation of demonstrating that the cohabitator contributed to the alteration in the financial needs of the alimony recipient. Thus, the decision by the majority contravenes the long-standing policy of this court "that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] may be accomplished only if the appeal is heard en banc." (Internal quotation marks omitted.) State v. White , 127 Conn. App. 846, 858 n. 11, 17 A.3d 72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011). Indeed, neither the majority opinion nor the plaintiff cite a single appellate case in which this court or our Supreme Court affirmed a trial court's termination or modification of alimony in the absence of evidence that the cohabitator made any contributions to the household of the alimony recipient that thereby resulted in the alteration of his or her financial needs.
Other appellate decisions, in analyzing the question of cohabitation, have relied on findings that the cohabitator made financial contributions after moving in with the alimony recipient. For example, in Lehan v. Lehan , 118 Conn. App. 685, 697–98, 985 A.2d 378 (2010), this court reversed the trial court's judgment modifying alimony despite evidence that the recipient's overall expenses had been reduced during the period of cohabitation. In doing so, we emphasized the requirement that "[t]he party moving for a change in the court's alimony order ... must adduce some evidence from which the court reasonably could infer the value of the cohabitant's contributions. " (Emphasis in original; internal quotation marks omitted.) Id., at 697, 985 A.2d 378 ; see also Knapp v. Knapp , 270 Conn. 815, 821–22, 856 A.2d 358 (2004) (noting that trial court found that even though alimony recipient and cohabitator already had been living together, cohabitation did not begin until cohabitator began to contribute financial support); Lupien v. Lupien , 192 Conn. 443, 444–45, 472 A.2d 18 (1984) (extensive discussion of facts showing cohabitator's financial contributions to alimony recipient's household); Nation–Bailey v. Bailey , 144 Conn. App. 319, 322, 74 A.3d 433 (2013) ("the plaintiff and her then fiancé ... had cohabitated from December, 2007, through late March 2008, with [her fiancé ] sharing some of the plaintiff's living expenses during that period, thus altering her financial needs "), aff'd, 316 Conn. 182, 112 A.3d 144 (2015) ; Gervais v. Gervais , 91 Conn. App. 840, 842, 882 A.2d 731 (court found that alimony recipient and cohabitator shared expenses and engaged in accountings to ensure that they were each paying their share of expenses), cert. denied, 276 Conn. 919, 888 A.2d 88 (2005) ; Duhl v. Duhl , 7 Conn. App. 92, 94–95, 507 A.2d 523 (finding of cohabitation supported by evidence that alimony recipient received rent from cohabitator), cert. denied, 200 Conn. 803, 509 A.2d 517 (1986).
Furthermore, I disagree with the majority that this court's recent decision in Spencer v. Spencer , 177 Conn. App. 504, 173 A.3d 1 (2017), cert. granted, 328 Conn. 903, 177 A.3d 565 (2018), supports its conclusion that a reduction in living expenses of the alimony recipient alone is sufficient to establish that the living arrangements have resulted in a change in circumstances that alters the financial needs of the alimony recipient. Indeed, if anything, Spencer reaffirms the importance of adducing evidence that the cohabitator is making financial contributions to the new household or the alimony recipient.
In Spencer , contrary to the suggestion of the majority, the defendant, the alimony obligor, demonstrated that the cohabitator was contributing financially to the new living arrangements with the plaintiff, the alimony recipient. Prior to moving in with her boyfriend in a rented single-family home, the plaintiff lived alone on the second floor of a two-family house where she paid $950 per month in rent. Id. at 511, 173 A.3d 1. As this court specifically noted, "[r]egarding her living arrangement with her boyfriend, the plaintiff testified that they share equally the cost of rent and utilities. Pursuant to that cost sharing arrangement , the plaintiff pays only $375 per month in rent." (Emphasis added.) Id. Indeed, the trial court in Spencer specifically predicated its conclusion that the defendant had established cohabitation on the basis of "two findings: (1) [t]he plaintiff has admitted that she began cohabitating with her boyfriend on or about October 1, 2013, and (2) as result of that cohabitation and the contribution [s] of [her boyfriend ] to the plaintiff's household expenses , the plaintiff's financial needs have been altered." (Emphasis added; internal quotation marks omitted.) Id., at 512, 173 A.3d 1.Thus, Spencer is entirely consistent with Blum and other appellate cases in which cohabitation was established after the alimony obligor had met his or her burden to demonstrate that the cohabitator's financial contributions to the alimony recipient have altered the financial needs of the alimony recipient. In light of the previously quoted language from Spencer , I simply cannot read the decision, as the majority seems to do, as standing for the proposition that a reduction in rent is sufficient evidence, by itself, to establish that the alimony recipient's financial needs have altered because the alimony recipient is living with her boyfriend.
My second point of contention with the majority opinion is that the conclusion it reaches is contrary to the definition of cohabitation set forth in § 46b–86 (b) because it effectively eliminates the requirement contained in the plain language of the statute that a party seeking to avoid his or her alimony obligation must establish a causal nexus between the living arrangement and the change of circumstances that alters the alimony recipient's needs. The statute plainly states that alimony may be terminated when the party seeking termination establishes that the living arrangements, that is, living with another person, "cause such a change of circumstances as to alter the financial needs of that party." (Emphasis added.) General Statutes § 46b–86 (b).
A simple hypothetical will help to explain why I think that the majority's decision eliminates the causal nexus required by the statute. Consider a scenario in which an alimony recipient is living in a residence for which the rent is $2000 per month. In order to reduce her expenses, however, she chooses to move into a new, smaller residence where the rent is only $1200 per month. Several months later, another person moves into the new residence of the alimony recipient, but the cohabitator does not pay any of the rent or otherwise make any financial contributions to the alimony recipient.
Under these circumstances, the decision to cohabitate is not the cause of the alteration of the alimony recipient's financial needs. Instead, the financial needs of the alimony recipient have been altered because of his or her choice to live in a less expensive dwelling and not because he or she has chosen to cohabitate. In the present case, like in the hypothetical, the court made no findings that the defendant's boyfriend contributed in any way to the household's costs for rent, utilities or other personal expenses.
As I understand the majority decision, the combination of the fact that the alimony recipient's expenses have been reduced with the fact that he or she is now living with a third party is sufficient to establish cohabitation pursuant to § 46b–86 (b) even though there is no evidence that the cohabitator has anything to do with the reduction of those expenses. Such a rule eliminates the causal nexus required by the plain language of the statute.
I do not mean to argue that the financial needs of the alimony recipient in my hypothetical are unaltered or unchanged, or that the alimony obligor is necessarily without a remedy. Because it is not the cohabitation itself, however, that has caused that change, the remedy for the alimony obligor in my hypothetical must be sought pursuant to § 46b–86 (a), which permits the trial court, unless otherwise precluded by the divorce decree itself, to terminate or modify alimony upon a showing of a "substantial change in the circumstances of either party ...." The lower standard of proof fashioned by the majority in this case has the effect of confounding the first two subsections of § 46b–86. See Berry v. Berry , 88 Conn. App. 674, 682–83, 870 A.2d 1161 (2005)(whether alimony should be modified pursuant to § 46b–86 [a] requires different legal analysis than modification pursuant to § 46b–86 [b] ).
I also should note that the majority concludes that this case should be remanded to the trial court for a new hearing on the motion to terminate alimony. A new hearing, however, seemingly would be unnecessary under the majority's lower standard of proof because, on the basis of the factual findings by the trial court that the defendant's living expenses have been reduced during a period in which she was living with her boyfriend, no other facts would be necessary to entitle the plaintiff to a termination of alimony.
I do not mean to suggest that the trial court in this case was prohibited from inferring that the defendant was receiving financial support from her boyfriend based on the fact the defendant was paying less rent in Bloomfield after moving in with him than she had been paying in South Windsor. The trial court, however, chose not to draw this inference based on the lack of reliable evidence of financial support by the cohabitator or of what the total amount of rent was for the Bloomfield residence. Thus, in my view, this is simply an unremarkable case in which an experienced trial judge heard the evidence, applied the standard set out in Blum and other appellate decisions, and ultimately concluded that the plaintiff had not met his burden of persuasion to prove the nexus between the alteration in the defendant's financial needs and the fact that she was living with her boyfriend. Instead, the majority's decision to reverse the judgment and implicitly overrule our precedent undoubtedly will surprise members of the bench and bar who have relied on those cases. If the majority believes those cases were incorrectly decided, then we should adhere to the rules regarding when they may be overruled.
I respectfully dissent.