Opinion
No. FA-05-4011533
June 24, 2008
MEMORANDUM OF DECISION
These matters before the court are the plaintiff's motions (#151 and #155) to modify alimony and child support orders dated October 31, 2006. The motions were argued on February 21, 2008, February 26, 2008 and March 4, 2008. The parties filed post-trial memoranda.
The marriage of the parties was dissolved pursuant to a separation agreement on October 31, 2006, at which time the plaintiff was ordered to pay alimony to the defendant at the rate of $5,833.33 per month ($70,000 annually). The agreement provided that the alimony is to terminate upon the earliest to occur: the death of either party; the wife's remarriage or the term of eight years. Also, the provisions of Conn. Gen Stat. Sec. 46b-86b (aka the "cohabitation statute") were incorporated into the agreement. Moreover, the term is non-modifiable. The defendant may earn up to $100,000 annually without that factor alone being considered a change of circumstances so as to justify a modification of alimony.
The agreement also provides for lump sum alimony of $120,000 to be paid in six equal annual installments. These payments are non-modifiable as to term and amount.
The agreement includes an order requiring the plaintiff to pay child support for the minor children at the rate of $3,033.33 per month.
The plaintiff asserts that there has been a "change in the financial circumstances in that she is now living with another person in accordance with C.G.S. § 46b-86(b), her alimony should be terminated."(#151). Also, the plaintiff asserts that there has been a substantial change of circumstances justifying a downward modification of his alimony order and his child support order pursuant to C.G.S. § 46b-86(a). (#155).
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 "courts 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 terminate 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 F. 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) CT Page 10402
The plaintiff asserts that the defendant is cohabiting with Kevin Skehan which changes her financial needs. Both the defendant and Mr. Skehan testified that Mr. Skehan spends the night at the defendant's residence about 60% of the time. Mr. Skehan resides the balance of his time in his own condominium. Mr. Skehan has performed a limited amount of chores, including some painting to the basement. However, there is little evidence of any change in the financial circumstances of the defendant due to cohabitation. In fact, when they occasionally travel they tend to share the expenses. Therefore, there has not been a change in the defendant'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 plaintiff asserts that there has been a change in the financial circumstances of both parties.
The plaintiff, Dr. Mark Thimineau, is a physician specializing in chronic pain management since 1994. His main office is in Griffin Hospital, but he has additional offices in New Haven and Meriden. Also, he has a 65% interest in the North Haven Pain Medicine Center. The defendant, Dr. Rhonda Gold, works as an emergency room physician.
According to the defendant's financial affidavits, her annual gross and net incomes have increased from $48,880 and $39,624 to $99,840 and $71,136, respectively. However, the separation agreement provided for a "safe harbor" of the amount of $100,000 of income which the defendant could earn "without that factor alone being considered a change in circumstance which would enable the husband to seek or receive a modification of alimony." Sec. 9.2.
The plaintiff argues that the defendant could earn more money by working longer hours. The Court is not impressed with this argument because the children are still young. Moreover, the defendant had the "safe harbor" provision in the judgment.
The plaintiff further argues that the lower Medicare reimbursement amounts for pain medicine has adversely affected his income. There is little doubt that the so-called "J Code" amounts have been reduced. Plaintiff states that fees in 2007 decreased by $651,492. Also, the relatively new investment in the North Haven Surgical Center has not yet been making up the difference in the reduction of Medicare reimbursements.
According to the plaintiff's financial affidavits, in less than sixteen months, his annual gross and net incomes have decreased from $570,192 and $322,380 to $153,600 and $103,661, respectively. However, there was a stipulation at the time of the judgment that for the purposes of determining the amounts of alimony and child support the plaintiff's annual gross income amount would be calculated using the figure of $468,000.
The defendant asserts that the plaintiff's income for the year 2007 did not amount to a substantial change of circumstances as required by C.G.S. § 46b-86(a). The defendant argues that in "calendar year 2007, (footnotes omitted) the plaintiff's income, perquisites and pension contributions were as follows:
A. Comprehensive Pain Headache Treatment Centers, LLC net income $380,786 (inclusive of $306,000 draw for the plaintiff);
B. $24,000 Profit sharing contribution;
C. $13,500 2007 draw, as medical director of North Haven Pain Management Center;
D. $20,000 Form 1099 income from consulting with ANS;
E. $5,000 miscellaneous income from consulting;
F. $5,000 4% admitted credit card personal usage."
(Defendant's Trial Memorandum dated March 14, 2008 at page 7.)
The defendant convincingly argues that the above amounts total an amount substantially the same as the amount stipulated to be used in determining the alimony and child support orders. Moreover, just prior to 2007, for tax purposes, the plaintiff deposited $100,000 from his business in the account of an employee who is his "significant other."
Although the plaintiff's income from his Comprehensive Pain Headache Treatment Centers, LLC has been trending downward, depending on the amount of future income from the North Haven Surgical Center, there may be a substantial change of circumstances in the future. However, at this time there is not a substantial change of circumstances as required under Connecticut law.
Therefore, the motions to modify alimony and child support are denied.