Opinion
No. FA 02-0730665
June 30, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO MODIFY AND/OR VACATE ALIMONY
Plaintiff in this matter "requests that this court enter an order modifying and/or vacating the alimony awarded defendant per the judgment entered September 30, 2002 as defendant is now cohabitation with another male individual." Helpful background information on the events which precipitated this motion are set forth as follows.
The marriage of the parties was dissolved by this court on July 14, 2002 at which time a "separation agreement" executed by the parties was submitted to and approved by the court which adopted it as part of its judgment. Included in the agreement and judgment was a provision relating to alimony which stated that "the husband shall pay during his lifetime to the wife during her lifetime until her death or until her remarriage or cohabitation unallocated alimony and support in the amount of $900 per month payable in equal semi-monthly installments of $450 by the 5th and 20th of each month.
During the hearing on plaintiff's motion a private detective hired by him testified to having seen the truck arrival by one Richard in defendant's yard on two different evenings at 8:30-9:00 p.m. and once at 6:00 a.m. He also stated that he had never seen Richard go in and out of the home, drive his truck away, bring clothing or general effects into the house. In conclusion he stated he had never seen Richard at the residence.
Brian Frazer, son of the private detective as well as his associate testified that on two evenings at 11:00 p.m. and three mornings at 6:00 a.m. he observed Richard's truck in defendant's driveway. These observations occurred during November 2003. On cross examination he said that he had never seen Richard go in or out of defendant's home and had no knowledge of whether Richard was contributing to the defendant's household expenses.
Plaintiff testified at length on the subject of Richard's involvement with defendant. He testified that when he asked defendant "whether Richard had moved in, she said no — he was living with his mother." Plaintiff further stated that:
On September 2, 2003 I parked and videotaped at 6:23 a.m. I observed Richard get into his truck and drive away. I observed the truck there at 5:30-6:00 a.m. several times in September 2003.
In October I went there sixteen times. The truck was there fourteen times — between 5:30-6:00 a.m.
In December 2003 I went by defendant's home nineteen times. Richard's truck was there on fourteen of them; the first week between 5:30-6:00 a.m., the other times between 10:00-11:00 p.m.
In January 2004 I went by the house twenty six times. Richard's truck was there nineteen times. I went mostly in the evening.
Plaintiff continued his testimony on this subject, stating that defendant "told me Richard helps around the house, cuts the grass, takes out the garbage, drops the children off at school and attends my son's concerts." He also said that "I don't know if Richard contributed to the defendant's care, that Richard was living with his mother and that "I have no information on Richard's contribution to her household." He concluded by stating that defendant at her deposition on February 20, 2004 testified that "she didn't need or want Richard's money. She relies on her father to provide her with funds."
Richard's testimony on the subject of cohabitation is summarized in his own words as follows: "I have not moved into her house. I stay over on occasion. I usually change my clothes at work or at my mother's house. I contribute nothing to her house or her finances. I have never handed her any money for anything. Her daughter Lia was ill so I stayed over a lot in December 2003 and January 2004. Since January her health has improved and I stayed over less. Her older son stopped living at the house in January 2003. I've never given (defendant) cash. I loaned her $5500. If we go away on trips we split expenses right down the middle. I'm not living with her on a permanent basis."
Defendant's testimony on the subject of cohabitation is summarized as follows:
My daughter Lia suffers from depression and is suicidal. I don't have any relatives around. My children don't see their father. That's why I needed Richard to help us. He stays over Tuesdays and every other weekend. He had no clothing or furniture in my house. He has not contributed in any way to my support. He has not assisted in my household expenses. He and I are boyfriend and girlfriend. I've charged nothing to his charge account, nor he to mine. He does not have a key to my house and does not have the code to my burglar alarm. He mows the lawn on occasion and has showered at my house. He does not have free access to my home.
Having summarized the evidence on the subject of cohabitation, this court returns to plaintiff's motion and a discussion of the law applicable thereto. A remarkably similar case and one by which this court will be guided is that of DeMaria v. DeMaria, 247 Conn. 715 (1999). In that matter the parties did not have an agreement covering alimony but the trial court ordered defendant to pay alimony to the plaintiff "which alimony shall terminate upon the cohabitation by the plaintiff with an unrelated male." It should be noted that in making its alimony order and the provision concerning cohabitation, the trial court made no reference to Sec. 46b-86b C.G.S. That statute which concerns modification of alimony orders states in part that the Superior Court "may modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the 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."
In DiMaria five years after, the marriage was dissolved defendant filed a motion to terminate alimony payments because plaintiff had been cohabitation with an unrelated male. The lower court concluded, after hearing this motion, that while plaintiff was indeed living with another person, her financial needs had not thereby been altered and denied defendant's motion to terminate alimony. Our Appellate Court reversed the ruling of the lower court and in return was reversed by our Supreme Court. The latter ruled in effect that while the original alimony order of the trial court made no mention of Sec. 46b-86 C.G.S., that nevertheless the economic impact of cohabitation on the recipient of alimony must be considered when a request for modification of alimony is made by the payor.
In applying the ruling in DeMaria to the matter here at issue it is determined that for plaintiff to prevail he must prove the following:
a) that defendant was cohabitating;
b) that defendant's financial needs were altered because of this living arrangement.
In Black's Law Dictionary (6th Ed. 1990) referred to in DiMaria cohabitation is defined as "to live together as man and wife, the mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependant on sexual relations."
On the evidence it is found that the plaintiff has not sustained his burden of proving by a fair preponderance of the evidence that the defendant is cohabitating with Richard. If a man were living with a woman as man and wife he would be expected to have a key to the family home, to know the code for the burglar alarm for that home, to provide her with funds to run the household, to have his clothing in the home, to share a charge account as well as family expenses. On the evidence it is found that Flaherty has performed none of those acts associated with cohabitation. Plaintiff has thus failed to satisfy the first requirement in order to prevail.
As to the financial impact or altered financial situation resulting to the defendant from her association with Richard the following evidence is helpful. At the time of the dissolution of the marriage on September 30, 2002 the defendant's financial affidavit indicated that she was unemployed, had a net weekly income from alimony and support totaling $616 per week, and had weekly expenses of $685. At the present time she has a net weekly income from her part-time employment of $139, alimony and support in the amount of $534 for a total weekly income of $673. Her present weekly expenses amount to $853. On the evidence it is concluded that the defendant's financial position is less favorable now than it was at the time her marriage to plaintiff was dissolved.
Plaintiff in his brief argues that an agreement by the parties that cohabitation by the wife would terminate the husband's obligation to pay future alimony is a contract which should be enforced by the court regardless of any economic impact this arrangement might have on the wife's living conditions. The alimony order by the trial court in DeMaria (that defendant husband's obligation to pay to the plaintiff wife alimony shall terminate upon the occurrence of plaintiff's "cohabitation with an unrelated male") without any reference to its financial impact on the former wife is strikingly similar to the original alimony provision in the case at bar, i.e. that alimony should be paid "until wife's cohabitation." In neither case were financial needs mentioned or reference to Sec. 46b-86b C.G.S. made. In effect the plaintiff argues that the same provisions in a dissolution decree that alimony would terminate upon the wife's cohabitation with an unrelated male should be treated differently if it represents the agreement of the parties than if it portrays only the feelings of the presiding judge. While this suggested distinction is not lacking in appeal, this court is not prepared to adopt it as the law in this matter. In so holding, the court notes that the DeMaria court found that, while not controlling, "statutes are a useful source of policy for common-law adjudication, particularly when there is a close relationship between the statutory and common-law subject matters . . . [They] are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time. More often, the issue is to what extent the statute is itself a source of policy for consistent common law development." DiMaria v. DiMaria, supra, 247 Conn. 721.
Thus, for modification or termination of an existing alimony award, proof is required that (1) the recipient of the alimony is cohabitating, and (2) the financial needs were altered because of that living arrangement. When faced with similar requirements, other states have allocated the burden between the parties. The party seeking to modify the alimony award bears the burden of showing that the alimony recipient is cohabitating and, upon this showing, the burden shifts to the recipient to show that the cohabitation has not affected financial circumstances in such a way as to justify changes to the alimony award. See, e.g. In re Marriage of Ales and Ales, 592 N.W.2d 698 (Iowa Ct.App. 1999) (explaining that the shift in the burden of proof stems from the concept that a person in possession of facts necessary to prove an issue, in this case economic need, should have the burden of proving those facts); Rose v. Csapo, 359 N.J. Super. 53, 818 A.2d 340 (2002) (noting that it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof).
The plaintiff having failed to prove by a preponderance of the evidence that the defendant was cohabitating and the evidence showing that her financial position has not improved because of her living arrangement, his motion to modify or terminate the existing alimony award is denied.
John D. Brennan Judge Trial Referee CT Page 10058