Schwarz v. Schwarz
Schwarz v. Schwarz
Dissenting Opinion
dissenting. The majority holds that where a trial court grants a party’s motion to terminate or to reduce alimony such that, at a minimum, alimony must accordingly be terminated or reduced, the court may simultaneously grant an opposing motion to increase alimony. Because I believe that these actions are inherently inconsistent and, further, would vitiate the purpose of General Statutes § 46b-86 (b), I cannot agree with the majority. Therefore, I respectfully dissent.
If a party remarries after divorce, the remarriage terminates the alimony such a party receives. Human nature being what it is, some parties who had been divorced entered cohabiting relationships rather than remarrying, to avoid termination of alimony received from a former spouse. To avoid such arrangements which took unjust advantage of a former spouse, the legislature enacted a reform in adopting § 46b-86 (b). Subsection (b) “is a separate and independent statutory basis for the modification of alimony . . . .” (Internal quotation marks omitted.) Taylor v. Taylor, 17 Conn.
The plaintiff and Kane admitted cohabiting with one another and the court so found. The court found that they had ceased living together only because the defendant had filed a motion to terminate or to reduce alimony. In addition, the court found that the way the plaintiff and Kane had “orchestrated” their financial lives satisfied the second prong of § 46b-86 (b). So, the defendant’s motion to terminate or to modify alimony under § 46b-86 (b) was well within the court’s discretion and properly was granted. Although the court did not specify whether it was terminating or ordering a reduction of alimony, these were the court’s only two alternatives when it granted the defendant’s motion. This appeal is before us because after the defendant filed a § 46b-86 (b) motion because the plaintiff was living with another man and her financial needs had been altered, the plaintiff filed a § 46b-86 (a) motion to increase her alimony because the defendant’s income had increased. The court, after having granted the defendant’s subsec
This last action is inconsistent with the first. If a divorced former spouse is found to be living with another person and her needs are altered and diminished, but said former spouse can avoid a diminution or decrease in alimony simply by the expedient of making a motion to increase alimony because the former spouse is making more money than at the time of the dissolution, then the legislature’s attempt in enacting § 46b-86 (b) to remedy the unjust taking advantage of a former spouse, would be of no force or effect. I therefore would conclude that the increase in alimony ordered pursuant to § 46b-86 (a) was an abuse of discretion under the facts that the court found and would reverse that judgment. The defendant ex-husband has suffered an injustice where, in order to avoid alimony termination, the plaintiff entered a relationship with another person without benefit of marriage, and then, after termination or modification should have occurred, he suffered an increase in alimony because his income had increased.
In ruling on the plaintiff’s motion, the court noted that it did not consider the plaintiff’s increased health insurance costs in determining whether there had been a substantial change in financial circumstances because the parties had contemplated the plaintiffs medical needs in forming their separation agreement under which the defendant paid the plaintiff’s COBRA costs for three years. The plaintiffs diagnosis of leukemia was known at the time of the dissolution.
Opinion of the Court
Opinion
The defendant, Alan L. Schwarz, appeals from the judgment of the trial court granting both his motion and the motion filed by the plaintiff, Majella W. Schwarz, for modification of alimony and increasing his alimony obligation from $2000 per week to $2175
The record reveals the following facts. The parties’ twenty-nine year marriage was dissolved on February 23, 2005. At the time of dissolution, the parties filed a separation agreement, which was incorporated by reference into the dissolution decree. Paragraph three of the agreement provided that the defendant shall pay alimony to the plaintiff in the amount of $2000 per week until the death of either party or the plaintiffs remarriage. It also specifically stated that “[a]limony shall be subject to section 46b-86 (b) of the Connecticut General Statutes.”
This case arose from the defendant’s postjudgment motion to modify alimony dated September 24, 2008, and filed October 23, 2008. In his motion, he requested that alimony be modified or terminated because of a substantial change in the financial circumstances of the plaintiff in that she was residing with another individual. The plaintiff subsequently filed her own motion to modify dated April 1,2009. Her motion requested an increase in alimony because of a substantial change in the financial circumstances of both parties. The plaintiff claimed that the defendant’s financial circumstances substantially had improved as a result of an increase in his income and his remarriage and that her financial circumstances had deteriorated as a result of a substantial increase in the cost of premiums for her health insurance coverage, which she was unable to pay. The court
I
The defendant claims that the court erred when it found that the increase in his income constituted a substantial change in circumstances warranting a modification of his alimony obligation. We disagree.
The following additional facts found by the trial court are necessary for our resolution of the defendant’s claim. In 2005, at the time of the dissolution of the parties’ marriage, the defendant had a gross income of $373,620 per year and a net income, excluding his deduction for retirement, of $265,980 per year. At the time of the hearing on the motions for modification, the defendant had a gross income of $450,000 per year and a net income, excluding his deduction for retirement, of $301,756 per year. The court noted that because the defendant did not comply with the subpoena served on him by the plaintiff, the only information available to the court regarding the defendant’s income was derived from his financial affidavit, which may not have been accurate. Since the time of the dissolution of the marriage, the defendant had remarried, and his new wife had a gross income of approximately $150,000 per year. The court found that the increase in the defendant’s financial circumstances as well as the decrease in his expenses, as he was sharing living expenses with his new wife, constituted a substantial change in circumstances.
The plaintiff also claimed that there was a substantial change in circumstances due to a substantial increase in the cost of her health insurance coverage. The parties’
As a preliminary matter, we set forth our standard of review. “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.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800, 930 A.2d 811 (2007).
“Trial courts have broad discretion in deciding motions for modification. . . . Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b-86. . . . When . . . the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. . . . The
“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. . . . 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.” (Citations omitted; internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 91-92, 699 A.2d 1029 (1997).
The defendant argues that the court erroneously found that his increase in income constituted a substantial change in circumstances because the increase in his net income was less than 15 percent. He bases this argument on § 46b-86 (a), which provides in relevant part that “any deviation of less than fifteen per cent from the child support guidelines is not substantial . . . .” The defendant’s reliance on § 46b-86 (a), however, is misplaced. The reference to a substantial deviation does not refer to a change in income of a party but, rather, refers to a final order of the court for child support that deviates from the child support guidelines. We are not persuaded that this statutory language should be applied mechanistically in the context of a modification of alimony to prohibit a trial court from ever determining that an increase of less than 15 percent can be a substantial change in circumstances.
The defendant also argues that the court erred when it specifically held that the plaintiffs need for health
Here, the court found that the defendant’s gross income had increased from $373,620 to $450,000 per year and that his net income had increased from $265,980 to $301,756 per year . These figures represented an increase in his gross income of 20 percent and an increase in his net income of over 13 percent. “[T]he increase need not be termed ‘dramatic’ or ‘startling’ so long as it is found to be a substantial change in circumstances.” Crowley v. Crowley, supra, 46 Conn. App. 95 n.9. This finding alone is a sufficient basis for a finding of a substantial change in circumstances. We
II
The defendant next claims that the court improperly increased the plaintiffs award of alimony after concluding that he had met his burden with regard to his motion to modify alimony based on the change in the plaintiffs financial situation caused by her living with another person. The defendant appears to claim that a court, as a matter of law, cannot increase the amount of alimony after finding that the party receiving alimony was living with another person, as contemplated in § 46b-86 (b). The defendant appears additionally to claim that even if the court had the statutory authority to increase alimony in these circumstances, it abused its discretion in this case. We disagree.
The court summarized its factual findings regarding the plaintiffs living arrangements as follows. “Prior to the dissolution on February 23, 2005, the plaintiff had moved out of the marital residence and had purchased a three bedroom house located at 142 Colin Hill Drive, Meriden. Some time in 2006, the plaintiff began residing with Arthur ‘Tex’ Kane on apermanent basis. In addition to living together at the Meriden residence, they lived from January through March at the plaintiffs home in Port St. Lucie, Florida.
“The plaintiff is a registered nurse, and has an additional certification as an [advanced practice registered nurse]. She stopped working as a nurse practitioner in June, 2002, and does sporadic work for the Wallingford board of education. Her income from that job has not varied much since the date of dissolution, as her financial affidavit filed on February 23,2005, and the financial affidavit filed on April 7, 2009, indicate essentially the same gross and net income from the board of education. She has several chronic and serious health issues. She suffered from ulcerative colitis when she was in her twenties, and after the birth of her third son, had a total colectomy. She also has a spinal condition, causing her difficulty in doing routine chores, such as getting dressed. Her most serious condition, however, is leukemia, which was diagnosed in May, 2003, prior to the dissolution. Currently she is treating it with a chemotherapy drug [that] she takes on a daily basis. The side effects of nausea and diarrhea are particularly grueling, given the fact she is without a colon. Although the leukemia is in a chronic stage at the present time, it could progress into an acute situation, which would
“Kane is a golf pro at a golf course in Meriden and has been the head pro for the last five years. The defendant issued a subpoena for certain records, and tax returns, but Kane did not comply. His gross income from all sources of his employment is approximately $200,000— ‘maybe a little more.’ He is paid by the town, leases golf carts, gives golf lessons, sells equipment and receives some of his income by way of cash. In addition, while he is in Florida with the plaintiff, he also does some teaching of golf. His 2007 tax return indicates business income of $8858 and gambling winnings of $108,638. He acknowledged that he began living with the plaintiff on a full-time basis in the spring of 2006, both while in Connecticut and in Florida. He testified that he does not pay her anything by way of rent but pays for their evenings out, and that amounts to approximately five nights out a week, spending approximately $30 to $60 per night, all with cash. He has no recollection of any conversations with the plaintiff about payment of rent or any other living expenses. Currently, he is living in a hotel while an apartment he intends to rent is being renovated. It was his idea that [the plaintiff] work for him, handling his books, and he would pay
The defendant argues that the court erred when it found that he had met his burden of proof under § 46b-86 (b) but then failed to reduce his alimony payments accordingly. He contends that once a party has met its burden with respect to § 46b-86 (b), the court must then reduce the alimony payments and may not increase those payments. Because the defendant’s claim raises a question of statutory interpretation, “our review is plenary. ... A fundamental [tenet] of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . Our legislature . . . enacted General Statutes § 1-2z, which provides that [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 849-50, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
We further note that “[i]t is an accepted principle of statutory construction that, if possible, the component
Section 46b-86 (b) 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.” (Emphasis added.)
The court found, and the parties do not dispute, that for purposes of § 46b-86 (b) the plaintiff was living with Kane. The court also found that the plaintiffs financial circumstances had changed as a result of her living arrangement with Kane.
We previously have held that once a party has met his or her burden under either § 46b-86 (a) or (b), the court then should apply the factors of § 46b-82 to fashion anew alimony award. See Gervais v. Gervais, supra, 91 Conn. App. 854-55 (“[o]nce [a change in circumstances has been proven under either § 46b-86 (a) or § 46b-86 (b)] a uniform application of the § 46b-82 factors is warranted and should be applied to a request
Having determined that the corut was permitted in these circumstances to increase the plaintiffs alimony, we now trun to the defendant’s claim that the court abused its discretion by increasing the alimony under these facts. “Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes. If the court considers the relevant statutory criteria when making its alimony and support award, the award may not be disturbed unless the court has abused its discretion.” Hartney v. Hartney, 83 Conn. App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004).
The court concluded that its finding that the parties’ financial circumstances significantly had changed pursuant to § 46b-86 (a) warranted an increase in alimony. It first found that the financial needs of the plaintiff had increased but that the increase in her financial needs was being met mostly by Kane. It also found that she now needed to pay for health insurance. The court subsequently found that, as the defendant’s income had
The judgment is affirmed.
At oral argument, the defendant withdrew his claim that the court erred in ordering retroactive payments of increased amounts of alimony.
See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-68.
The Port St. Lucie home was also purchased in 2005, after the dissolution of the parties’ maniges.
The defendant also argues that the court made no determination as to what extent the plaintiffs needs had been altered, as required by § 46b-86 (b). See Blum v. Blum, 109 Conn. App. 316, 323-24, 951 A.2d 587 (“court must have the ability to compare the [plaintiffs] financial needs at different points in time in order to determine whether those needs either have increased or have decreased over time”), cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). We disagree. The court found that at the time of dissolution, the plaintiffs needs, based on her weekly living expenses as indicated on
Accordingly, the court found that the plaintiff had increased financial needs that were not being met by her cohabitation, and, thus, the court increased her alimony. The court noted that it would not find a substantial change in circumstances based on the plaintiffs current need to pay health insurance premiums because the parties’ separation agreement contemplated that at some point the defendant would no longer be responsible for paying the plaintiff’s health insurance premiums. The court, however, was able to consider the plaintiffs need to pay her health insurance premiums as part of her overall financial circumstances once a substantial change in financial circumstances had been proven on other grounds.
General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party . . . .”
Reference
- Full Case Name
- Majella W. Schwarz v. Alan L. Schwarz
- Cited By
- 16 cases
- Status
- Published