Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spencer v. Spencer

Court of Appeals of Connecticut

October 31, 2017

BRENNA M. SPENCER
v.
ROBERT B. SPENCER

          Argued March 13, 2017

          Norman A. Roberts II, with whom, on the brief, was Tara C. Dugo, for the appellant (plaintiff).

          James H. Lee, for the appellee (defendant).

          DiPentima, C. J., and Mullins and Harper, Js.

         Syllabus

         The plaintiff, whose marriage to the defendant previously had been dissolved, appealed from the judgment of the trial court, which denied the plaintiff's motions for contempt and granted the defendant's motion for modification and termination of alimony. The dissolution judgment provided that the defendant would pay the plaintiff periodic alimony until, inter alia, her cohabitation. After a change in the way the defendant was compensated allegedly caused a decrease in his income, he fell behind on his alimony payments, and the parties entered into a stipulated agreement. Thereafter, the plaintiff filed two motions for contempt in response to the defendant's failure to make alimony payments pursuant to the dissolution judgment and the stipulation. The defendant based his modification request on an allegedly substantial change in circumstances due to a decrease in his income and his termination request on the plaintiff's cohabitation with her boyfriend. In granting the defendant's request to terminate alimony, the court determined, inter alia, that the plaintiff began living with her boyfriend, who had been contributing to the household expenses, and that had altered the plaintiff's financial needs. In granting the defendant's request to modify alimony payable in the month immediately prior to the month in which the termination of alimony became effective, the court found a substantial change in the defendant's financial circumstances as a result of substantially reduced income. The plaintiff appealed to this court, claiming, inter alia, that the trial court improperly denied her motions for contempt and granted the defendant's motion to modify and terminate alimony. Held:

         1. The trial court did not abuse its discretion in granting the defendant's motion as to the termination of alimony: the court properly interpreted the term ‘‘cohabitation'' in the dissolution judgment as consistent with the requirements of the statute (§ 46b-86 [b]) providing that a court may terminate alimony upon a showing that the party receiving alimony is living with another person under circumstances that alters the financial needs of that party, and, contrary to the plaintiff's claim, the defendant was not required to present evidence that the plaintiff was engaged in a romantic or sexual relationship with the person with whom she was living; moreover, the trial court's finding that the plaintiff cohabitated within the meaning of § 46b-86 (b) was not clearly erroneous, as the plaintiff testified that she had been living with her boyfriend and that, as a result, her monthly rent payment was reduced; furthermore, the plaintiff could not prevail on her claim that the defendant had unclean hands on the basis of his allegedly wilful nonpayment of alimony, as the trial court properly determined that the defendant's nonpayment of alimony was excusable because his substantial decrease in income prevented him from making full and timely alimony payments.

         2. The trial court did not abuse its discretion in modifying alimony: the court's finding that the defendant experienced a substantial change in his financial circumstances due to a reduction in his income was not clearly erroneous, as the evidence demonstrated that his income was substantially lower during the time for which he sought modification than at the time of the dissolution judgment, and, notwithstanding the plaintiff's claim to the contrary, the trial court properly determined that the defendant met his burden of proving that the compensation change to which he agreed with his business partner, which reduced his income, was not the result of neglect or culpable conduct; furthermore, even if this court assumed that the trial court improperly excluded relevant testimony as to whether the defendant's reduction in his income was due to his neglect or culpable conduct because he did not seek advice from an attorney or an accountant, as the plaintiff claimed, the plaintiff failed to demonstrate that this ruling was harmful and required reversal, as such testimony would have been cumulative of other evidence; moreover, the amount by which the trial court modified the defendant's alimony obligation was proportionate to the decrease in his income and was based on that court's determination that the defendant was having trouble meeting his financial obligations during the period for which he sought a modification.

         3. The trial court did not abuse its discretion in denying the plaintiff's motions for contempt; the court's determination that the defendant's nonpayment of alimony was not wilful was based on findings that were not clearly erroneous.

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Winslow, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Turner, J., issued certain orders in accordance with the parties' stipulation; subsequently, the court, Sommer, J., granted the defendant's motion for modification and denied the plaintiff's motions for contempt and for counsel fees, and the plaintiff appealed to this court. Affirmed.

          OPINION

          MULLINS, J.

         The plaintiff, Brenna M. Spencer, appeals from the judgment of the trial court denying her motions for contempt and granting the motion for modification and termination of alimony filed by the defendant, Robert B. Spencer. On appeal, the plaintiff claims that the trial court erred in (1) terminating alimony on the basis of her cohabitation, (2) modifying alimony on the basis of a substantial change in the defendant's financial circumstances, and (3) denying her motion for contempt.[1] We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The court rendered a judgment of marital dissolution in accordance with the parties' agreement on April 7, 2011 (dissolution judgment). Article 3.1 of the dissolution judgment provides: ‘‘Commencing and effective May 1, 2011 through and including the payment due on April 1, 2017, the [defendant], during his lifetime, shall pay alimony to the [plaintiff], until her death, remarriage, civil union, cohabitation or April 1, 2017, whichever shall first occur, the sum of Five Thousand Dollars ($5, 000.00) per month, which shall be paid one-half each on the first and fifteenth of each month.''

         Within a few months after the dissolution judgment, the defendant fell behind on his semimonthly alimony payments, prompting both parties to file motions concerning the defendant's alimony obligation. On her part, the plaintiff filed: (1) an August 11, 2011 pro se motion for contempt alleging that the defendant owed one semimonthly alimony payment of $2500, and (2) an October 26, 2011 motion for contempt alleging that the defendant had failed to make an unspecified number of alimony payments. The plaintiff's August 11, 2011 motion never was heard, and her October 26, 2011 motion was not heard until January 24, 2013. It appears that the court's inability to hear the former, as well as its delay in ruling on the latter, was caused by the parties' preoccupation with various discovery disputes. At around the same time that the plaintiff filed her two motions for contempt, the defendant filed a motion to modify alimony. The defendant subsequently withdrew that motion at some point before January 24, 2013.

         When the plaintiff's October 26, 2011 motion for contempt was heard by the court on January 24, 2013, the parties entered into a stipulated agreement (January, 2013 stipulation) specifying that the defendant had an alimony arrearage of $22, 000. Pursuant to the January, 2013 stipulation, the defendant agreed, inter alia, to (1) make an immediate payment of $2250 to the plaintiff, (2) pay the plaintiff $750 per month toward the arrear age, and (3) continue to make monthly alimony payments of $5000 pursuant to the dissolution judgment. The court accepted the stipulated agreement and rendered judgment accordingly.

         Soon after the January, 2013 stipulation, the defendant again fell behind on alimony payments and the stipulated arrearage. On May 14, 2013, the plaintiff filed a motion for contempt, alleging the defendant had failed to make several alimony payments and that his alimony arrearage totaled $27, 250. Although the motion was continued by agreement, the record does not disclose whether the court ever heard the plaintiff's May 14, 2013 motion. On April 29, 2014, the plaintiff filed another motion for contempt, alleging that the defendant had failed to make several more alimony payments and that his alimony arrearage totaled $70, 000. It is unclear from the record if the April 29, 2014 motion was continued, or if it ever was heard by the court. On September 12, 2014, the plaintiff filed another motion for contempt, alleging that the defendant had failed to make several more alimony payments and that his alimony arrearage totaled $91, 700. It is unclear from the record if this motion was continued, or if it ever was heard by the court. On November 13, 2014, the plaintiff filed motions for contempt alleging that the defendant's alimony arrearage exceeded $94, 000. The plaintiff's November 13, 2014 motions eventually were heard on January 21, 2015.

         Like the plaintiff, the defendant, subsequent to the January, 2013 stipulation, filed additional motions concerning his alimony obligation. On July 30, 2013, the defendant filed a motion to modify alimony on the ground that ‘‘a substantial change in the circumstances in [his] business and how [he] is compensated . . . [caused] a decrease in [his] income.'' In a later filing called, ‘‘Defendant's Proposed Orders and Claims for Relief, '' the defendant clarified that he was requesting that alimony be reduced ‘‘to $0 per week'' for the period between August 22, 2013 and September 30, 2013. The defendant subsequently amended[2] his July 30, 2013 motion to modify so that it also sought termination of alimony effective October 1, 2013. Specifically, he sought termination on the ground that the plaintiff began cohabitating with her boyfriend on October 1, 2013.

         On January 21, 2015, the court held a consolidated hearing on the plaintiff's November 13, 2014 motions for contempt and the defendant's July 30, 2013 amended motion for modification and termination of alimony. Following that proceeding, the court granted the defendant's amended motion for modification and termination of alimony and denied the plaintiff's motions for contempt. With respect to its granting of the defendant's motion, the court terminated and modified the defendant's alimony obligation as follows. First, it terminated alimony effective October 1, 2013, concluding that the plaintiff began cohabitating with her boyfriend on that date. Second, having terminated alimony, the court then determined that it could modify alimony only for the period between August 22, 2013 and September 30, 2013, the period for which the defendant expressly sought a modification. Third, it modified alimony only for the month of September, 2013, reducing that month's obligation from $5000 to $4000. Fourth, it found that the defendant's total arrearage was $31, 550 and ordered the defendant to pay that arrearage in monthly installments of $1500. This appeal followed. Additional facts will be set forth as necessary.

         I

         TERMINATION OF ALIMONY

         The plaintiff's first claim is that the trial court improperly terminated alimony on the ground that she began cohabitating with her boyfriend on October 1, 2013. This claim consists of two challenges to the court's termination of alimony, and we address each separately.

         A

         In her first challenge to the court's termination of alimony, the plaintiff argues that, under the parties' dissolution judgment, the plaintiff's cohabitation would terminate alimony only if it had ‘‘a romantic or sexual component . . . .'' Because the defendant did not present any evidence that her cohabitation had ‘‘a romantic or sexual component, '' the plaintiff contends, the court erred in terminating alimony on the ground of cohabitation. We disagree.

         The following additional facts and procedural history are relevant to our resolution of the plaintiff's first challenge to the court's termination of alimony. As explained previously, the dissolution judgment obligated the defendant to pay the plaintiff alimony ‘‘until her death, remarriage, civil union, cohabitation or April 1, 2017, whichever shall first occur . . . .'' (Emphasis added.) At the hearing, the defendant called the plaintiff, who testified that she lived alone on the second floor of a two-family house from October 1, 2012 to September 30, 2013. The plaintiff paid $950 per month to rent the second floor of that house. On October 1, 2013, the plaintiff began residing with her ‘‘boyfriend'' in a rented single-family house. Regarding 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.

         The court heard argument from the parties regarding whether it should terminate alimony on the basis of cohabitation. A fair reading of the transcript reveals that, in the course of argument, the plaintiff's counsel suggested that the court should apply General Statutes § 46b-86 (b).[3] Specifically, the plaintiff's counsel stated: ‘‘[M]y recollection of the [dissolution judgment] is that it referenced [§ 46b-86 (b)], and whenever cohabitation references the statute, our case law [provides] that the court has the authorities of the statute. . . . [Even if the dissolution judgment] doesn't specifically reference the statute . . . I don't think it changes my argument because I think that absent the definition [of cohabitation in the dissolution judgment] . . . the case law says that the court is to use the definition as contained in the statute . . . .'' (Emphasis added.) The plaintiff's counsel also argued that a finding of cohabitation under § 46b-86 (b) does not require the court to terminate alimony. Rather, ‘‘the statute says that the court has the authority not just to terminate [alimony] but to exercise its discretion to modify, suspend, or terminate as the court deems appropriate.''

         Following oral argument on the motions, in its corrected memorandum of decision, the court terminated alimony on the ground of cohabitation. Specifically, the court based its termination on two findings: (1) ‘‘[t]he plaintiff has admitted that she began cohabitating with her boyfriend on or about October 1, 2013, '' and (2) ‘‘as a result of that cohabitation and the contribution[s] of [her boyfried] to the plaintiff's household expenses, the plaintiff's financial needs have been altered.''

         Additionally, in responding to the plaintiff's argument that § 46b-86 (b) permitted the court to modify or suspend alimony instead of terminating it, the court stated the following: ‘‘Once the fact of termination has been established, the final part of the inquiry is the effective date of that termination. Our case law clearly establishes that where, as here, the language of the decree provides for remedies separate from those contained in . . . § 46b-86 (b), the language of the decree controls. Mihalyak v. Mihalyak, 30 Conn.App. 516, 520-22, 620 A.2d 1327 (1993) . . . .'' With respect to the effective date of termination, the court determined that the ‘‘alimony termination provision was automatic and self-executing upon cohabitation . . . . See also Krichko v. Krichko, 108 Conn.App. 644, 648-52, 948 A.2d 1092, cert. granted, 289 Conn. 913, 957 A.2d 877 (2008) (appeal withdrawn May 19, 2009).'' Thus, it determined that alimony terminated on ‘‘September 30, 2013, the date [immediately preceding] the plaintiff's cohabitation.''

         With these additional facts in mind, we turn to our analysis of the plaintiff's first challenge to the court's termination of alimony. As previously explained, the crux of this challenge is that the court improperly construed the term ‘‘cohabitation'' in the dissolution judgment as not requiring evidence of a romantic or sexual relationship and, furthermore, that the defendant presented insufficient evidence that the plaintiff's ‘‘cohabitation'' with her boyfriend included a romantic or sexual relationship. We are not persuaded.

         We begin with our standard of review. ‘‘The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.'' (Internal quotation marks omitted.) Emerick v. Emerick, 170 Conn.App. 368, 378, 154 A.3d 1069 (2017).

         With the appropriate standard of review in mind, we now outline the relevant legal principles governing the termination of alimony on the basis of an alimony obligee's cohabitation. ‘‘General Statutes § 46b-86 (b) is the so-called cohabitation statute, which was enacted [in 1978 five] years after § 46b-86 (a) to correct the injustice of making a party pay alimony when his or her ex-spouse is living with a [significant other], without marrying, to prevent the loss of support.'' (Footnote omitted; internal quotation marks omitted.) Connolly v. Connolly, 191 Conn. 468, 473-74, 464 A.2d 837 (1983).

         Section 46b-86 (b) provides in relevant part that a court may ‘‘modify [a dissolution 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 characterized § 46b-86 (b) as containing both a ‘‘definitional portion'' and a ‘‘remedial aspect.'' Nation-Bailey v. Bailey, 316 Conn. 182, 197, 112 A.3d 144 (2015). The ‘‘definitional portion'' of the statute refers to how the legislature defines ‘‘cohabitation.'' (Internal quotation marks omitted.) See id., 198 n.11; Fazio v. Fazio, 162 Conn.App. 236, 240 n.1, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016). The ‘‘remedial aspect'' refers to the equitable powers the statute permits the trial court to exercise upon making a finding of cohabitation. Nation-Bailey v. Bailey, supra, 195-97.

         With respect to the definitional portion, ‘‘[s]ection 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-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.'' (Citation omitted; internal quotation marks omitted.) DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999).

         Thus, under § 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.'' Fazio v. Fazio, supra, 162 Conn.App. 240 n.1.

         Regarding the remedial aspect of § 46b-86 (b), we previously outlined that the court has the authority to ‘‘modify . . . suspend, reduce or terminate the payment of periodic alimony'' upon making a finding of cohabitation. (Emphasis added.) General Statutes § 46b-86 (b). Section 46b-86 (b) is not the exclusive basis on which an obligor can seek termination of alimony due to the obligee's cohabitation, as an obligor can also seek such termination on the basis of the terms of a dissolution judgment. See, e.g., Remillard v.Remillard, 297 Conn. 345, 352-53, 999 A.2d 713 (2010). The issue of determining which basis the defendant invokes for termination of alimony, however, is conceptually distinct from the issue of construing the termination provision of a dissolution judgment. For instance, if a dissolution judgment incorporates expressly the definitional portion of § 46b-86 (b), the court will apply the statutory definition, even though the obligor has moved for termination pursuant to the agreement rather than § 46b-86 (b). See, e.g., D'Ascanio v.D'Ascanio, 237 Conn. 481, 484-86, 678 A.2d 469 (1996) (court applied definition of cohabitation in § 46b-86 (b) where obligor moved for modification pursuant to dissolution judgment providing that alimony would be reduced ‘‘in the event that . . . ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.