212 Conn.App. 607
Conn. App. Ct.2022Background
- Parties divorced in 2006; judgment incorporated a separation agreement requiring defendant (Victor Pishal) to pay $100/week alimony for 20 years, modifiable and terminable on death, remarriage, or cohabitation.
- In June 2019 defendant moved to terminate or modify alimony, alleging the plaintiff (Cathie Pishal) had cohabited with a significant other for ~4 years (altering her financial needs) and that his income had substantially decreased after a 2019 job termination.
- October 8, 2019 hearing: both parties testified, documentary evidence and a private investigator’s testimony were submitted; after the moving party rested the court orally denied the motion, stating defendant had not proven a prima facie case of cohabitation or a substantial change in circumstances.
- Defendant filed a motion for reargument, which was summarily denied; he appealed to the Appellate Court.
- Appellate disposition: affirmed. The court held defendant failed to show the trial court relied on Practice Book § 15-8, and the remaining claims were unreviewable because the record lacked a signed memorandum/transcript and the defendant did not seek an articulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court improperly relied on Practice Book § 15-8 (civil rule re: judgment of dismissal) | Court did not rely on § 15-8; its prima facie language reflected factfinding on the evidence | Trial court applied an inapplicable civil dismissal rule to deny the motion | Affirmed: defendant failed to demonstrate the court in fact relied on § 15-8; the court’s prima facie phrasing can be read as fact-finding |
| Whether trial court applied wrong standard and improperly weighed evidence when assessing prima facie case | Court properly evaluated totality of evidence and found no prima facie showing | Court used incorrect standard, thereby improperly weighing evidence | Unreviewable: inadequate record to show what legal standard the trial court applied |
| Whether alimony termination was required because of plaintiff’s cohabitation | No cohabitation, or if cohabitation existed it did not alter plaintiff’s financial needs | Plaintiff cohabited and the cohabitation altered her financial needs, so alimony should terminate | Unreviewable: record does not reveal whether court found no cohabitation or no effect on financial needs |
| Whether alimony should be modified for defendant’s alleged substantial change in financial circumstances | No substantial change warranting modification; hold to prior order is just | Defendant’s job loss and reduced income constitute a substantial change justifying modification or termination | Unreviewable: record does not show whether court found no change or found a change but declined relief; no signed memorandum or articulation |
Key Cases Cited
- Carothers v. Capozziello, 215 Conn. 82, 574 A.2d 1268 (Conn. 1990) (appellant must prove harmful error on an adequate record)
- Lehan v. Lehan, 118 Conn. App. 685, 985 A.2d 378 (Conn. App. 2010) (cohabitation requires proof of cohabitation and altered financial needs to modify/terminate alimony)
- Berman v. Berman, 203 Conn. App. 300, 248 A.3d 49 (Conn. App. 2021) (standards for modification: substantial change required; findings reviewed for clear error)
- Berger v. Deutermann, 197 Conn. App. 421, 231 A.3d 1281 (Conn. App. 2020) (appellant’s duty to provide an adequate record; review may be declined if record insufficient)
- Santoro v. Santoro, 132 Conn. App. 41, 31 A.3d 62 (Conn. App. 2011) (signed transcript not always required if certified transcript shows court’s basis)
- Michaels v. Michaels, 163 Conn. App. 837, 136 A.3d 1282 (Conn. App. 2016) (appellate court may overlook lack of signed oral decision when certified transcript identifies findings)
- CC Cromwell, Ltd. P'ship v. Adames, 124 Conn. App. 191, 3 A.3d 1041 (Conn. App. 2010) (responsibility to seek articulation when trial court’s basis is unclear)
- Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 819 A.2d 227 (Conn. 2003) (articulation/rectification may be required to clarify legal basis for a ruling)