Opinion
No. FA 96 0711472 S
January 26, 2005
MEMORANDUM OF DECISION
The marriage of the parties was dissolved on May 19, 1999. Between January 27, 2004 and April 30, 2004, they filed multiple motions, some concerning custody and some concerning financial issues including alimony, child support, and claims of contempt. The court issued a decision concerning the custody issues on October 20, 2004 and asked the parties to submit briefs on the financial issues. The briefs were submitted on November 15, 2004, and the defendant filed a reply brief on December 6, 2004.
The decisions should be read together. The factual findings made in the October 20, 2004 will not be repeated here, but some of those findings have relevance to this decision.
The principal motions remaining to be decided are:
The court has granted Mrs. Peltzer's motion for restoration of her former name.
233 Motion for Modification of Alimony 1/27/04
(Defendant alleging cohabitation)
236 Objection to Motion for Modification of Alimony 2/27/04
237 Motion for Modification of Child Support 2/27/04
(Plaintiff alleging substantial change of circumstances, including child's full-time residence with plaintiff)
238 Motion for Modification of Alimony 2/27/04
(Plaintiff alleging substantial change of circumstances)
242 Motion for Contempt Re: Non-Payment of Pendente Lite Alimony and Child Support Payment
Although the title and introduction to the motion incorrectly reference pendente-lite alimony and child support, the body of the motion correctly asserts non payment of post-judgment orders. The court will not give form precedence over substance.
On May 20, 1999, the court (Hon. Thomas Bishop) dissolved the marriage of the parties and entered orders resolving all the parties' differences, including custody, support, alimony, property division, and counsel fees. In determining its orders for alimony and support, the court took into consideration a number of factors. With respect to Dr. Peltzer's income, the court found that his 1996 taxable profits from his dental practice were $662,457 based on receipts of $1,133,979, and that his 1996 taxable profits were $419,075 based on gross receipts of $859,923. The court noted Dr. Peltzer's testimony that he had reduced the hectic pace of his practice in 1998, with the result that his taxable earnings had been reduced to $312,000 per year. The court did not specify whether it relied on an average of these earnings, which would have equaled $464,510.66 per year, or any one of them, and the court was not required to do so. The court also found that Mrs. Peltzer could earn between $20,000 and $30,000 per year working part-time as a dental hygienist, indicating that part-time work was appropriate at that time because of Lindsey's age. The court ordered Dr. Peltzer to pay alimony of $1,000 per week through the last week of January 2008, terminating earlier on the death of either party or the remarriage of Mrs. Peltzer. The court stated: "While the court has considered all the criteria set forth in 46b-82 concerning alimony, in setting the duration of alimony the court is particularly mindful of Lindsey's age [born July 16, 1989], the length of the marriage, the age of the parties, the employment and earning capacity of the parties. In framing this order, the court has also taken into consideration the property distribution orders made herein." In addition, the court ordered Dr. Peltzer to pay $300 per week as child support. All alimony and support payments were to be made by direct deposit into an account in the plaintiff's name. The court divided approximately $6,000,000 in property almost equally and awarded no counsel fees. See, Memorandum of Decision, May 20, 1999 (Bishop, J.).
At the time of trial on the instant motions, Dr. Peltzer showed a gross taxable income of $509,314 annually, including $16,978 from dividends and the balance from his dental practice. This results in a net weekly income of $5,012, which amounts to $260,624 net per year. The court finds that his reported income credibly reflects what he earns. Apart from tax considerations for alimony, approximately a quarter of his net income goes to supporting his child and her mother. He also showed that he owned $950,000 in real estate, mortgage-free, $2.7 million in equities, and $657,726 in deferred compensation.
At the same time, Mrs. Peltzer reported earnings of $101.94 per week, a sum substantially below the earning capacity that Judge Bishop attributed to her in 1999 and even more substantially below the earning capacity of $72,000 per year that Dr. Peltzer seeks to have the court attribute to her. Although she claims to be unable to work because of an injury to her upper extremity, in fact a more important reason for her not working is her continuing involvement in the day to day life of her now fifteen and a half year old daughter. The court finds that Mrs. Peltzer has a capacity to earn $37,400 per year gross by working part-time, essentially about eight hours per day three days per week or five hours per day five days per week, a schedule that would permit her to continue her involvement in her daughter's activities. She owns liquid assets of a little more than $2,000,000. She owns the house she moved away from on Chiltern Street, which has a value of $525,000 and is mortgage-free, and the house she moved to on Jordan Lane, which has a value of $724,900 but is encumbered by debt of $301,020. The house on Chiltern Lane was on the market at the time of trial. It had yielded rental income until it was listed for sale.
One of the reasons asserted in support of a change in child support is to reflect the fact that Lindsey now resides solely with the plaintiff, a situation different from the equally shared custody arrangement ordered by Judge Bishop. This argument is unavailing for two reasons. First, Mrs. Peltzer was the primary force in creating the de facto change in custody, and should not receive a financial windfall for having done so in violation of the court order. Secondly, Judge Bishop did not indicate that he was basing his child support on the shared custody deviation criteria. In the absence of such a finding, the change in custody would not constitute a change in circumstances.
In late 2001, Mrs. Peltzer began a relationship with Rob Fortgang, an attorney. By the fall of 2002, Mr. Fortgang had begun spending some weekends and week nights at her home, and by September 2003 she had purchased another home better able to accommodate his increasing presence in her residence. At the time of trial, and for many months prior to that time, Mr. Fortgang was residing with Mrs. Peltzer and Lindsey. Apart from the amount of time Mr. Fortgang spends at Mrs. Peltzer's home, there are other indicia that he is residing with her. She, he, and Lindsey attend church together every Sunday as a family. He attends Lindsey's school conferences and participates in them with Mrs. Peltzer's acquiescence in a parent-like way. They go on vacations together as a family, although Mrs. Peltzer pays her own way and Lindsey's. He hangs his valuable paintings at Mrs. Peltzer's house. He garages his car at her house.
There is no evidence that Mr. Fortgang has done other things that would provide a proof of his residence at Mrs. Peltzer's home. There is no evidence, for example, that he has changed his driver's license, car registration, or voter registration, no evidence that he exclusively receives his mail there, or that he has written a single check for any significant household expense. However, there is no statutory authority or controlling case law requiring that these things must be proved to establish that parties are residing together. Moreover, while there is no evidence that he has done those things, there is also no evidence that he has not done them. Mr. Fortgang was not produced at trial by either party, despite the fact that, as an attorney practicing in Connecticut and a resident of this state, he was available to testify. The court will not grant any inference either in favor of or against either party on account of the failure to call Mr. Fortgang as a witness, and cannot conclude which side he would have been more likely to have benefitted had he been called. The relationship between Mr. Fortgang and Mrs. Peltzer was scripted to avoid a termination or modification of Mrs. Peltzer's alimony payments from Dr. Peltzer under 46b-86(b), as Dr. Peltzer now seeks. Thus, Mr. Fortgang does not visibly contribute funds to the household, does not keep all of his clothing there, and maintains a separate house in Granby. Regarding the separate house, however, he essentially ceased living in it in the summer of 2003, when he increased the time he spent at the plaintiff's house.
The "cohabitation" statute 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 payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon hearing and notice, 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 in circumstances as to alter the financial needs of that party.
Connecticut General Statutes, Section 46b-86(b). Thus, there is a two-prong test to be met before the court can modify, suspend or terminate alimony pursuant to 46b-86. First, the person seeking to modify or terminate alimony must show that the recipient is residing with another person. Secondly, the person seeking to modify or terminate alimony must show that "the nonmarital union must be one with attendant financial consequences before the court may alter an award of alimony." DiMaria v. DiMaria, 247 Conn. 715, 720 (1999), also, see, DiStefano v. DiStefano, 67 Conn.App. 628, 632-3 (2002) (holding that trial court was within its discretion to deny a motion to open and modify judgment in determining that the plaintiff failed to show that the defendant's cohabitation altered her financial need).
There is no statutory requirement that the shared residence must be akin to a marital relationship, but our Supreme Court has adopted that as part of its definition of cohabitation. See DiMaria v. DiMaria, 247 Conn. 715, 720 (1999). The court noted, however, that it defined "cohabitation" in that case because that was the operative word used in the parties' judgment, and not because it was an element required by the statute, which simply references "living with another person." Id., 720.
In this case, Mrs. Peltzer is living with another adult person. Accordingly, the court must consider whether the nonmarital union is one with attendant financial consequences. It is immaterial for the purposes of the statute whether Mr. Fortgang receives a monetary benefit, so the defendant's argument that Dr. Peltzer is in effect supporting him is unavailing. The sole question is whether the living arrangement has created financial consequences to the recipient of alimony.
Here, it has. Because of the living arrangement between her and Mr. Fortgang, Mrs. Peltzer purchased another expensive house in the neighborhood where she had lived with Lindsey. As a result, she expended capital and increased her debt. Her testimony that the house was purchased for other reasons is not credible. The purchase of the house constitutes a change in her financial circumstances resulting from her residence with another person.
Accordingly, alimony is ordered to be terminated pursuant to Section 46b-86(b). Because of this determination, it is not necessary to reach Mrs. Peltzer's request for an increase in alimony, and that motion is denied.
Mrs. Peltzer has also sought an increase in child support. Based on the court's findings of Dr. Peltzer's net income and the court's estimate of Mrs. Peltzer's net earnings if she worked as set forth above, the court finds that the amount of child support due from Dr. Peltzer to Mrs. Peltzer is $650 per week.
The termination of alimony is ordered to be retroactive to March 3, 2004. The order increasing child support is ordered to be retroactive to February 28, 2004. The parties are ordered to reconcile the amounts due and to make appropriate adjustments based on these findings and orders. The court will retain jurisdiction to supervise the completion and accurace of the adjustments. The court's orders concerning alimony and child support expressed herein only address the modifications. Except as otherwise set forth herein, the orders for alimony and child support entered by Judge Bishop remain in full force and effect.
Mrs. Peltzer also seeks to have Dr. Peltzer found in contempt for failing to pay child support or alimony. He is not found to be in contempt for failing to pay child support. He is found to be in contempt for failing to make alimony payments after March 3, 2004. He had the ability to make the payments, and the duty to continue to make them until, if ever, he was relieved of that obligation by the court. That relief did not occur until today. The court notes that Dr. Peltzer was appropriately irate at Mr. Fortgang's comments to him about Lindsey, but Mr. Fortgang's rudeness is not attributable to Mrs. Peltzer. Neither the court nor the law permits self-help. Neither the court nor the law permits willful violations of court orders, whatever the justification.
Except as previously ordered, neither party will pay the other attorneys fees.
Orders will enter accordingly.
BY THE COURT,
GRUENDEL, J.