*1 emergency belief an reasonable objectively existed.14 of the trial court. judgment
I would affirm the ALAN L. SCHWARZ W. SCHWARZ MAJELLA (AC 31337) Flynn Schaller, Beach, Js. by majority scrupulous facts, even set forth under its review entry support, my opinion, analysis, conclusion that the was based objectively does belief. A conclusion of reasonable belief reasonable court, every fact, perhaps years require that sifted later be consistent
with that belief. *2 officially released
Argued April October M. Potash, appellant Arnold for the (defendant). Wieler, appellee (plaintiff). Martha Anne Opinion Alan BEACH, defendant, Schwarz, appeals J. The L. from of the trial court both his judgment granting by plaintiff, Majella motion and the motion filed W. Schwarz, increasing for modification of $2175 alimony obligation per week to his from improp claims that per week. The defendant cir in his financial erly a substantial (1) found award of increased the (2) cumstances and that he had met burden finding after basis modify on the to his motion regard financial circumstances in the person.1 disagree, We another caused of the trial court. and, judgment affirm the accordingly, parties’ facts. The following reveals record February twenty-nine year marriage was dissolved on dissolution, filed 23, 2005. At the time incorporated which was separation agreement, *3 three decree. Paragraph reference into the dissolution pay provided that the defendant shall agreement of the $2000 per amount alimony plaintiff to the in the of death of either week until the specifically “[a]limony stated that remarriage. It also subject shall be to section 46b-86 Connecticut General Statutes.” postjudgment
This arose from the defendant’s case alimony September 24, 2008, modify motion to dated motion, 23, requested 2008. In his he and filed October of a modified or terminated because alimony be in the financial circumstances of change substantial with another individual. plaintiff residing that she own to mod- plaintiff subsequently The filed her motion requested Her an increase ify April 1,2009. dated motion of a in the finan- because substantial both The claimed parties. cial circumstances of substan- that the financial circumstances defendant’s in his tially improved had result of cir- remarriage income his and that financial of had deteriorated as a result a substantial cumstances premiums for her health insur- increase in the cost pay. The court ance which she was unable coverage, argument, defendant his claim that the court erred At oral withdrew alimony. payments ordering of increased amounts of retroactive April conducted a on the hearing 7, motions 2009. July On filed its memorandum of parties’ decision both for granting motions modification of ordering defendant the amount of week. will Additional facts necessary. set forth as
I claims that the court erred when it found that increase in his income constituted a substantial circumstances a modi- warranting fication of obligation. We disagree. The following additional facts the trial found necessary are our for resolution defendant’s claim. In 2005, at time of the dissolution of the parties’ the defendant marriage, gross income $373,620 per year income, and a net excluding his deduction retirement, per year. of $265,980 At the hearing time of the on the motions for modification, a gross $450,000 defendant had per year income of and a net income, excluding his deduction retire- ment, year. $301,756 per The court noted that because comply subpoena defendant did not with the served on him plaintiff, only information available to *4 the regarding defendant’s income was derived from his affidavit, may financial which not have been accurate. time Since the of the mar- dissolution riage, the had remarried, and his new wife had a gross approximately $150,000 per year. income The court found that the increase in the defendant’s financial circumstances as well decrease in as the his expenses, expenses as he was sharing living with his wife, new a change constituted substantial in circum- stances.
The also claimed that there was a substantial in circumstances due to a substantial in the coverage. parties’ cost of her health insurance The need contemplated plaintiffs the
separation agreement provided and, accordingly, insurance for health plaintiffs for COBRA2 pay would the defendant stopped years. When the defendant three for coverage coverage COBRA paying for by at the working coverage insurance plaintiff procured living. she was man whom pro shop golf partner testified that due plaintiffs cohabiting The shop beyond golf pro control, circumstances health insurance. longer could no plaintiff anticipated paying approxi result, As mately for her health insurance. $15,000 year we our matter, set forth standard preliminary
As not disturb a trial appellate “An court will of review. relations cases unless court’s orders domestic that it discretion or it is found court has abused its did, on the reasonably conclude as it based could not ... whether a trial presented. determining facts rela- its broad discretion domestic court has abused every presumption we matters, tions allow reasonable quota- its (Internal the correctness of action.” favor of Cleary Cleary, 103 Conn. tion marks omitted.) A.2d 798, 800, (2007). in deciding
“Trial courts have broad discretion . . ali- . Modification of motions for modification. is mony, judgment, gov- the date of a dissolution after . . . . . 46b-86. . When erned General Statutes alimony, applicable provision issue disputed that a final provides is 46b-86 (a), statute alimony may be modified the trial court order for the circum- upon showing a substantial party. . . . modifi- seeking stances of either the existence of showing cation the burden bears . . . The change in the circumstances. substantial *5 2 Budget See Omnibus Reconciliation Act of the Consolidated §§ U.S.C. 1161-68. may be in the
change party. circumstances of either . . . The date of most prior recent in proceeding which an order entered is the appropriate in date to use determining significant whether change in circumstances warrants a modification of an . award. . .
“In
general
same sorts of
are relevant
[criteria]
in deciding whether the decree
bemay modified as are
relevant making the initial award of
. . .
alimony.
specifically,
More
these criteria, outlined in General
require
46b-82,
Statutes
consider
needs and financial resources of each of
...
well
as such factors as the causes for the disso-
lution
health,
occu-
marriage
age,
station,
pation, employability and amount and sources of
parties.”
income of the
(Citations omitted;
quo-
internal
tation marks omitted.) Crowley
Crowley,
App. 87, 91-92,
found that his increase income constituted a substan- tial in circumstances because the income than percent. net was less He this bases argument (a), provides 46b-86 in relevant part “any that deviation less than fifteen cent from child support guidelines is not substantial . . . .” The defendant’s reliance how- (a), §on 46b-86 misplaced. ever, is The reference to substantial devia- tion not a change does refer to in income of a but, rather, refers to a final order of court for child support that support deviates from the guidelines. child persuaded We are this language applied should be mechanistically the context of a prohibit modification of a trial court from ever determining percent that an increase of less than 15 can be a substantial circumstances.
The defendant argues also that the court erred when specifically held that the need health *6 478 finding for a of did not constitute a basis
insurance
factual
in circumstances
change
a substantial
then later considered the need
context of this case but
in ali-
making adjustments
when
for health insurance
incorrectly
the court’s
mony.
interprets
The defendant
not consider
The court held that
it would
decision.
health insurance as a
need for
current
in circumstances because the
change
substantial
for health insurance
contemplated
need
they
that the defendant would
agreed
when
years.
finding, however,
for three
This
expenses
COBRA
considering
plain-
from
preclude
did not
part
insurance as
of her current
tiffs need
health
determining that a sub-
financial circumstances after
change in circumstances existed
the basis
stantial
court determines that
Indeed,
of other factors.
once the
exists,
in circumstances
it must
change
a substantial
of
in 46b-82 to order
consider all
the factors
needs and financial resources
in accordance
v.
parties.
Borkowski,
See Borkowski
of each of the
(1994) (“[o]nce
228
A.2d 1060
a
Conn.
638
there has been a substantial
trial court determines that
change in the financial circumstances
one
an
the same criteria that determine
initial award
parties,
question
.
alimony .
. are relevant to the
of modifi-
marks
quotation
omitted]).
cation” [internal
gross
found that
the defendant’s
Here,
court
$373,620
$450,000
from
income had increased
had
from
year and that his net
income
increased
repre-
$265,980
year
figures
. These
$301,756 per
percent
income of
gross
sented an increase
20
13 percent.
in his net income
over
termed ‘dramatic’ or ‘star-
increase need not be
“[T]he
a
change
it is found
substantial
tling’
long
so
supra,
v.
Conn.
Crowley Crowley,
in circumstances.”
n.9. This
alone is
sufficient basis
finding
in circumstances. We
substantial
finding
applied
that the
conclude
the correct
stan-
legal
dard and did not abuse its discretion in determining
substantial
in circumstances
See
Serby
Serby,
App. 398, 401,
occurred.
*7
II The defendant next claims improperly that the court plaintiffs the increased award of after conclud- he had ing that met his burden regard to his motion modify alimony to based on the in plaintiffs financial situation caused her living with another person. appears The court, to claim that a as a matter of law, cannot increase the ali- amount of mony after finding that was receiving with another person, contemplated in 46b- appears additionally The defendant (b). to claim that even if statutory authority the court had the to increase these circumstances, it abused its discretion in this case. We disagree.
The court summarized its factual findings regarding living arrangements as follows. “Prior to February on 23, 2005, plaintiff dissolution moved out of the purchased marital residence and had Drive, three bedroom house located at 142 Colin Hill Some plaintiff Meriden. time in began residing apermanent with Arthur ‘Tex’Kane on basis. In addition at living together residence, they the Meriden lived January from March at the through home Port Lucie, judicial pretrial St. Florida.3 A con and, in January, shortly thereafter, ducted Kane moved out of the Meriden but plaintiff home traveled to the Florida home. testified that once in Florida, ‘stayed stay Kane with a friend’ did not purchased St. The Port Lucie home was also after the dissolution parties’ maniges. cohabitation, their Throughout home.
the Florida paid homes. She expenses of both plaintiff paid for paid etc., and Kane taxes, telephone, heat, utilities, entertain- home,’ dinners, expenses ‘outside of him to that she never asked testified ment, etc. She expenses and that any of the household contribute contribute, as the bills were want him to she did not She stated responsibility. her her name and [were] anyone on dependent she not want to that did money, might if Kane money, gave beyond her possibly she could live her income and accept was her ‘conscious decision’ not means. This money accept the fact any from Kane. She does money—her someone else for dependent she is spouse]. [former *8 nurse, a and has an addi- plaintiff
“The is registered practice registered certification as an tional [advanced practitioner a nurse stopped working She as nurse]. sporadic Wallingford does work for the June, and has job income from that of education. Her board of as her finan- dissolution, much since the date varied February the financial 23,2005, filed on and cial affidavit essentially April 7, indicate affidavit filed net income from the board of education. gross same and and health issues. She has several chronic serious She colitis when she was her from ulcerative suffered son, of her third had total twenties, and after the birth spinal condition, colectomy. causing also has She chores, getting routine such as difficulty doing condition, however, is leuke- Her most serious dressed. May, 2003, prior mia, diagnosed it a chemo- Currently treating she dissolution. daily takes on a basis. side therapy she drug [that] particularly grueling, of and diarrhea are effects nausea Although without colon. the fact she is given present stage time, in a chronic at the leukemia is situation, into acute which would progress an could control, may make it difficult to and be [sepa- fatal. The agreement provided plaintiff that would ration] receive COBRA benefits for her medical insurance and the defendant for pay would those benefits for [that] years. three When the benefits expired, plaintiff began shop to work at golf bookkeeper, Kane’s so that she insurance, would able to obtain under arrangement books, would do the record etc., and Kane would for keeping, her health insurance, approximately $600 $700 which was per month. That expired insurance to a May, 2009, due beyond Kane’s control, coverage and her new will approximately cost $15,000 year, approxi- $300 mately per week. pro
“Kane is a golf golf at a course in Meriden and has years. been the head pro the last five The defendant subpoena issued a records, certain and tax returns, but Kane comply. did not gross His income from all of employment sources his is approximately $200,000— ‘maybe a paid by little more.’ He is town, leases golf carts, gives golf lessons, equipment sells receives some by way income In addition, cash. while he is in Florida with plaintiff, he does also some teaching golf. His 2007 tax return indicates business income winnings of gambling $108,638. He acknowledged that he began living *9 aon full-time basis the spring 2006, of both while in Connecticut and in Florida. He testified pay that he does anything by way not her of rent but pays out, for their evenings and that approx- amounts to imately five out nights week, a spending approximately $30 $60per all night, with cash. He has no recollection
of any conversations with the plaintiff payment about any of rent or living expenses. other he Currently, is living apartment in hotel while an he intends to rent is being renovated. It was his idea that plaintiff] [the work for him, books, his handling pay and he would pay salary. no Since but would
for her health insurance
he will
insurance,
offer her health
longer
he can no
which
him,
work
does for
per
for the
she
her
hour
month,
$180 substan-
approximately
amounts
her behalf
he was
tially
payments
making
less than
he moved
Kane testified that
for
health insurance.
plaintiff] undue stress
causing
out because it
[the
of
for modifica-
filing
the motion
due to the defendant’s
while
provide
deal
assistance
great
tion. He did
and
her medical conditions
her,
with
helping
defendant’s
that but
issues. It is uncontroverted
modification,
plain-
Kane and the
of the motion
filing
together.”
still be living
tiff would
erred when
argues that the court
The defendant
proof under
46b-
he had met his burden of
found that
alimony payments
failed to reduce
but then
party has
its
met
He contends
once
accordingly.
must then
respect
to 46b-86
(b),
burden
may not increase
payments
and
reduce
claim raises
payments. Because the defendant’s
those
interpretation,
review is
question
statutory
“our
con
statutory
... A
plenary.
fundamental
[tenet]
give
is that
are to be considered to
struction
statutes
body.
the lawmaking
intention of
apparent
effect to
1-
.
Statutes §
. . .
. . enacted General
legislature
Our
shall,
of a statute
2z,
provides
meaning
that [t]he
instance,
ascertained from the text of
in the first
If,
statutes.
relationship
itself and its
other
statute
such relation
considering
after
such text
examining
plain
unambiguous
of such text is
ship, meaning
results, extra-
yield
absurd or unworkable
and does
of the statute shall
meaning
textual evidence of the
quotation
omitted.)
marks
(Internal
not be considered.”
Gervais,
840, 849-50, 882 A.2d
Gervais
(2005).
The court do not dispute, for purposes of 46b-86 living Kane. The court also found that the financial circumstances had changed as a result of her living arrangement with Kane.4 The issue this case is argues The defendant also that the court no as made determination altered, required by what extent needs had been § 46b-86 (b). Blum, 323-24, (“court See Blum 109 Conn. 951 A.2d ability compare [plaintiffs] must have financial needs at different points in time in order to determine those whether needs either have time”), denied, increased have over decreased cert. (2008). disagree. dissolution, A.2d 157 We at found that the time of plaintiffs needs, weekly expenses based on as indicated
484 its the may, discretion, the in increase
whether court to alimony on basis her motion increase plaintiffs the of the alimony despite 46b-86 (a)5 accordance § alimony reduce or to terminate defendant’s motion to in the circum We conclude that (b). based on 46b-86 § its discre case, of this the court did abuse stances finding after plaintiffs tion in increasing 46b-86 had met his burden under § that the defendant had met her plaintiff also found that the because it (b), to 46b-86 regard (a). burden § met held that once a has previously We have either 46b-86 or (a) (b), his or her burden under § apply the of 46b-82 to fash- court then should factors § Gervais, supra, Gervais See v. ion anew award. change circum- App. (“[o]nce 854-55 [a or proven either 46b-86 (a) has been under § stances 46b-82 fac- application a uniform (b)] § 46b-86 applied request to a warranted and should be tors is per affidavit, approximately $1568 week. current were Her her financial weekly expenses $2400. an in her financial affidavit showed Although at trial showed that Kane’s financial contributions the evidence week, the court determined that because to the household were only any debt, plaintiff “can conclude had not incurred substantial it defrayed expenses [beyond being somehow that these her income were] plaintiff indirectly by directly had Kane.” The also found that the court premiums, being expense met was not of health insurance added by relationship her with Kane. Accordingly, that the had increased financial the court found thus, cohabitation, and, being needs were not met alimony. find a The noted that it would not substantial increased her court pay change health need in circumstances based on current separation premiums parties’ agreement contem- because the insurance responsible point longer plated would no be that at some premiums. court, however, plaintiff’s paying health insurance premiums insurance need to her health able to consider the part financial once a substantial of her overall circumstances proven grounds. other circumstances been financial part: provides (a) “Unless and § 46b-86 in relevant General Statutes any precludes . final . . order that the decree modification extent may any periodic payment permanent time . . . at thereafter upon showing aside, continued, or modified [the] be set altered party . . .” of either . in the circumstances substantial for a postdissolution modification of whether under brought either “The trial court is subsection”). limited to reviewing the current situation of [financial] criteria light set forth Crowley 46b-82.” 91. Crowley, supra, Conn. decision light parties’ court’s that both of the motions should therefore was free to granted, *12 alimony fashion an award under either 46b-86 or (a) § require Section (b). (b) 46b-86 does not a court alimony proves reduce if a party party’s that other financial have as a changed circumstances result of or her choice to live with another In person. addition, no preclude there is 46b-86 language who is receiving pursuing from a motion alimony. to increase
Having that permitted determined the corut was plaintiffs these alimony, circumstances to increase the we now trun to the defendant’s claim that the court its abused discretion increasing alimony under these facts. “Trial courts are vested with broad liberal discretion in fashioning orders concerning type, duration and amount of and support, applying in each guidelines case the General If Statutes. the court considers relevant when its alimony support award, criteria making may the award not be disturbed unless the has its Hartney Hartney, abused discretion.” 83 Conn. App. 553, 559, denied, 850 A.2d cert. A.2d
920, 859 578 (2004). The court that finding parties’ concluded its that the financial significantly changed pur- circumstances alimony. suant to 46b-86 warranted an increase in (a) It first found that the financial needs of the had increased but that her financial mostly by was being needs met Kane. It also that found she needed now health insurance. The court that, subsequently found as the defendant’s income had portion equitable pay a for him to increased, it was plaintiffs also took into need. The court increased plaintiffs were not as needs account the fact arrange- high claimed, because of her she had despite Kane’scontributions Kane, but that ments need she still circumstances, financial to her alimony. Accordingly, increased additional the basis of these find- award on findings, ings. fight conclude that the court its we In correctly applied and did not abuse its discre- the law increasing tion in
week. judgment is affirmed. opinion SCHALLER,J., concurred. this majority dissenting. The holds that where
FLYNN,J., party’s grants *13 a motion to terminate to a trial court alimony minimum, at must that, such reduce may accordingly reduced, the court be terminated or simultaneously opposing grant to motion alimony. are inher- I believe that these actions Because pur- ently vitiate the and, further, would inconsistent agree (b), pose § I cannot General Statutes 46b-86 majority. respectfully Therefore, I dissent. with the remarriage party divorce, the ter- If a remarries after party Human such a receives. minates being who it some had been is, nature what relationships cohabiting than entered rather divorced remarrying, received avoid termination spouse. arrangements To avoid such from a former spouse, unjust advantage a former took adopting (b). § legislature a reform in 46b-86 enacted separate independent (b) “is a and Subsection (Internal .” . . . basis for the modification Taylor, omitted.) Taylor quotation marks
487
292-93,
App. 291,
A.2d 517 Connolly v. (1986), quoting Connolly, 191 468, 473-74, Conn. A.2d It (1983). consists of First, two prongs. divorced receiving the ali mony must have commenced per another son, second, and, the former spouse’s financial needs have been altered and decreased because of the cohabi tation.
The plaintiff and Kane admitted cohabiting one another court so found. The court found that they together had ceased living only because the defen- dant had filed a motion terminate or to ali- reduce mony. addition, way the court found that the plaintiff and Kane had “orchestrated” their financial lives satisfied second prong So, §of 46b-86 (b). defendant’s motion to modify alimony terminate or to under 46b-86 well within the court’s discretion properly was granted. the court did Although specify whether was terminating reduc- ordering *14 alimony, tion of these only were the court’s two alterna- tives when it granted the defendant’s motion. This appeal is before us because after the defendant filed a 46b-86 motion plaintiff living § because the with another man and her financial needs had altered, been plaintiff the filed a (a) 46b-86 motion to increase her § alimony because the defendant’s income had increased. court, The after the defendant’s subsec- having granted the motion, nonetheless granted
tion (b) alimony on this in based increase motion increase income.1 the defendant’s the first. If a is inconsistent with This last action spouse is found to be divorced former dimin- person and her needs are altered and another avoid a diminution or spouse but said former can ished, expedient making simply in the decrease spouse former to increase because the motion of the dissolu- money than at time making more 46b-86 tion, attempt enacting the legislature’s then former remedy unjust taking advantage (b) to force or effect. I therefore would spouse, would be no pursuant ordered conclude that the increase was an abuse of discretion under 46b-86 (a) judg- found and would reverse that facts that court injus- has The defendant ex-husband suffered an ment. alimony termination, where, tice in order to avoid relationship person entered a another then, termination benefit of after marriage, without have he suffered an occurred, or modification should had because his income increased. motion, ruling plaintiff’s noted that it did not consider determining plaintiff’s there increased health insurance costs whether had a substantial in financial circumstances because been separation contemplated forming medical needs their paid plaintiff’s agreement under which the COBRA costs years. plaintiffs diagnosis at of leukemia was known the time of three the dissolution.