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Cohen v. Cohen

Supreme Court of Connecticut

January 16, 2018

RUTH COHEN
v.
FRANKLIN COHEN

          Argued October 17, 2017

         Syllabus

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. Dennis Harrigan, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Shay, J., granted the defendant's motion for modification of alimony; subsequently, the court, Colin, J., granted the plaintiff's motion for modification of alimony, from which the defendant appealed. Affirmed.

          Samuel V. Schoonmaker IV, with whom, on the brief, were Jonathan E. Von Kohornand Wendy Dunne DiCh-ristina, for the appellant (defendant).

          Thomas M. Cassone, for the appellee (plaintiff).

          Rogers, C. J., and Palmer, Robinson, D'Auria and Vertefeuille, Js.

         The defendant, whose marriage to the plaintiff previously had been dissolved, appealed from the trial court's decision to grant the plaintiff's motion to modify alimony on the ground that the defendant's income had substantially increased. The parties' separation agreement, which was incorporated into the dissolution judgment, provided that the defendant would pay the plaintiff alimony based on a certain percentage of his income. Several years later, the defendant's income was significantly reduced, and the trial court granted his motion to modify alimony to a fixed weekly amount, finding that there had been a substantial change in circumstances since the time of the divorce. Subsequently, the plaintiff filed a motion to modify that prior modification order, claiming that the defendant's earnings at that time were substantially in excess of the earning capacity on which the prior modification order was based, and noting that the original alimony award was based on a percentage of the defendant's income. The defendant objected, claiming that the modification of alimony statute (§ 46b-86) required the trial court to compare the parties' current financial circumstances to their circumstances at the time of the last court order and, furthermore, that it was improper under Dan v. Dan (315 Conn. 1) to modify alimony solely on the basis of an increase in the supporting spouse's income. The trial court found that there had been a substantial change in circumstances because the income of both parties had substantially increased and granted the motion for modification, ordering the defendant to pay alimony based on a percentage of his income. The court reasoned that the modification was permitted under Dan because the alimony award based on the prior modification order was no longer sufficient to fulfill the underlying purpose of the original award, namely, to have the plaintiff share in the defendant's fluctuating income from employment.

         Held:

         1. The defendant could not prevail on his claim that the trial court improperly considered the parties' financial circumstances at the time of the divorce decree when it granted the plaintiff's motion to modify the prior modification order: the trial court did not improperly base its decision to modify alimony on a comparison between the parties' current financial circumstances and their circumstances at the time of the divorce decree, as that court's finding that the prior modification order was no longer sufficient to fulfill the underlying purpose of the original alimony award could only have been made on the basis of the change in the parties' financial circumstances since the date of that prior modification order, the most significant of which was the threefold increase in the defendant's income; furthermore, there was no merit to the defendant's claim that the trial court was barred from considering the purpose of the original alimony award in crafting an equitable modification because, although the trial court was not permitted the change the underlying purpose of the original alimony award by way of a modification, the underlying purpose of the original alimony award was properly considered once the court determined that the changed circumstances justifying the prior modification had ceased to exist.

         2. The plaintiff's motion for modification was not legally insufficient on its face on the ground that it alleged only that the defendant's income had significantly increased without alleging that the prior modification order was insufficient to fulfill the underlying purpose of the original alimony award; the allegation that there had been a substantial change in circumstances because the defendant's income had substantially increased since the prior modification order was sufficient to justify reconsideration of that prior order, and the plaintiff was not required to enumerate in the motion itself the reasons why the substantial change in circumstances justified a modification or to cite the case law supporting the motion.

         3. The trial court properly considered extrinsic evidence of the parties' intent when they entered into the separation agreement and properly took judicial notice of the plaintiff's previous financial affidavit in the court file to support its conclusion that the purpose of the original alimony award was to address the fluctuating nature of the defendant's income and to have the plaintiff share in that income: the trial court properly considered extrinsic evidence of the parties' intent, as the separation agreement did not indicate whether the purpose of the alimony award was to allow the plaintiff to continue to share in the defendant's standard of living after the divorce or to provide her with the same standard of living she had enjoyed during the marriage; furthermore, it having been well established that a court has the power to take judicial notice of court files of other actions between the same parties and this court having determined that the trial court was authorized to consider the underlying purpose of the original alimony award, it was proper for the trial court to take judicial notice of items in the court file that shed light on that underlying purpose.

          4. The defendant could not prevail on his claim that the trial court's modification order was impermissible in view of the court's finding that the underlying purpose of the original alimony award was to allow the plaintiff to share in the defendant's standard of living after the divorce because that purpose was not a legitimate purpose of the original award: although the defendant's claim that the trial court's modification order had an unlawful purpose effectively constituted a collateral attack on the original alimony award, inasmuch as the trial court was bound by the purpose of the original award in determining whether a modification was justified, this court addressed the defendant's claim because he could not prevail on it and in order to provide future litigants with guidance; furthermore, under this court's decision in Dan, it may be a legitimate purpose of an alimony award to allow the supported spouse to share the supporting spouse's standard of living after the divorce, and any modification of an alimony award should implement the original purpose of the award to the extent possible; moreover, the trial court was not required to presume, pursuant to this court's decision in Dan, that the exclusive purpose of the original alimony award was to allow the plaintiff to continue to enjoy the standard of living that she had enjoyed during the marriage, as the plaintiff, unlike the supported spouse in Dan, was merely attempting to reinstate the percentage provision of the original alimony award, thereby preserving its underlying purpose.

          OPINION

          VERTEFEUILLE, J.

         The marriage of the plaintiff, Ruth Cohen, and the defendant, Franklin Cohen, was dissolved in 2002. At that time, the trial court, Hon. Dennis Harrigan, judge trial referee, incorporated their separation agreement, which contained a provision requiring the defendant to pay alimony to the plaintiff, into the divorce decree. In 2010, the defendant filed a motion to modify the alimony provision of the divorce decree on the ground that his income had declined significantly. The trial court, Shay, J., granted that motion by way of a corrected memorandum of decision in 2012. In 2013, the plaintiff filed a motion to modify the 2012 modification order on the ground that the defendant's income had substantially increased. The trial court, Colin, J., granted that motion. The defendant then filed this appeal[1] claiming, among other things, that Judge Colin improperly (1) based his conclusion that there had been a significant change in the parties' financial circumstances warranting a modification of the 2012 modification order on a comparison of their current circumstances to their circumstances at the time of the divorce decree, instead of their circumstances at the time of the previous 2012 modification order, (2) considered the plaintiff's motion for modification when it was ‘‘legally insufficient'' on its face, (3) considered certain evidence in support of his conclusion that the 2012 modification order should be modified, and (4) rendered an illegal ‘‘lifetime profit sharing order.'' We reject these claims and affirm the judgment of the trial court.

         The record reveals the following procedural history and facts that were found by Judge Colin or are undisputed. The marriage of the parties was dissolved on January 4, 2002, after twenty-seven years of marriage. At the time of the dissolution judgment, the plaintiff was unemployed and had no income. The defendant was employed in the commercial mortgage business and had a net weekly income of $2961.98. The parties entered into a separation agreement, which the trial court, Hon. Dennis Harrigan, judge trial referee, approved and incorporated into the divorce decree. The separation agreement provided in relevant part that, ‘‘[c]ommencing January 1, 2002, the [defendant] shall pay during his lifetime to the [plaintiff], as alimony, 33 1/3 [percent] of the first $180, 000 of the [defendant's] gross income from his employment and 33 1/3 [percent] of [one half] . . . of the income actually received from his limited partnership interest in [various entities] and 25 [percent] of the next $200, 000 in earnings and 38 [percent] of the next $370, 000 in earnings . . . .'' The agreement further provided that ‘‘[t]he [plaintiff] shall not be entitled to share in [the] earnings of the [defendant] in excess of $750, 000 in any calendar year and in no event shall receive more than $250, 000 as her share of commission payments in any calendar year.'' The alimony payments were to continue until the plaintiff's death, remarriage or cohabitation.

         As the result of poor market conditions during the years 2008, 2009 and 2010, the defendant's income was significantly reduced. In 2010, he filed a motion to modify the alimony provision of the divorce decree by reducing the percentage of his income that he was required to pay the plaintiff. After an evidentiary hearing, the trial court, Shay, J., found that there had been a substantial change in circumstances since the time of the divorce decree because the defendant's current net income had decreased to $1373.95 per week, and the plaintiff's net income had increased to $945.15 per ...


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