David Cardone v. Trudie Cardone (2011)

MEMORANDUM OF DECISION

By Motion dated February 2, 2011, plaintiff seeks to modify his alimony obligation to defendant based on her changed financial circumstances due to her alleged cohabitation with an unrelated male.   Defendant filed an Objection dated March 16, 2011.   On March 25, 2011, a hearing on plaintiff's Motion was held before the court at which both parties appeared and were heard.

The parties' marriage was dissolved by Order of the court dated April 17, 2001 and plaintiff was required to pay defendant alimony in the amount of $250.00 per week for 12 years.   Pursuant to the agreement of the parties, plaintiff's alimony obligation was to “automatically sooner terminate upon the death of either party or the remarriage of the Defendant.”   In addition, “[t]he provisions of the cohabitation statute, C.G.S. 46b–86b” were to apply.

The evidence presented at the hearing demonstrated that since September 2009, defendant has resided almost exclusively on a sailboat in the Caribbean owned by an unrelated male.   Their adventures are detailed in a lengthy and entertaining blog the couple posted on the internet, which was made an exhibit at the hearing.   During the aforementioned period of time, defendant leased her Connecticut condominium to relatives, although she does reside there when she returns, paying a pro rata share of the rent.   While defendant testified that she has no immediate plans to return to the Caribbean, she did not rule that out as a possibility and presented no evidence that her lessees were planning on vacating her condominium.

Plaintiff apparently was not aware of defendant's living circumstances until January of this year, when he either discovered or was made aware of the existence of the blog, at which point he unilaterally terminated payment of his alimony obligation and filed this Motion to Modify.   He argues that defendant had an affirmative obligation to inform him of the change in her living situation given the effect it might have on his alimony obligation and that the aforementioned situation constitutes a cohabitation that has resulted in changed circumstances that have altered defendant's financial needs as required by Connecticut General Statutes § 46b–82(b).  Defendant counters that plaintiff's unilateral termination of his alimony obligation was made without sufficient excuse so as to place plaintiff in contempt of court and, as a result, the court should not consider any modification until he has paid the arrearage pursuant to Practice Book § 25–26(a).

Based on the foregoing, the court makes the following findings:

1) Based on the court's review of the aforementioned blog, the court finds that defendant has been cohabitating with an unrelated male since September 2009.

2) Based on the blog and the evidence that defendant has rented out her condominium, the court further finds that her cohabitation has resulted in changed circumstances that have altered her financial needs.

3) The court finds, in its discretion pursuant to Practice Book § 25–26(a), that sufficient excuse existed for plaintiff's unilateral termination of his alimony obligation so that such termination did not rise to the level of contempt of court.

4) The court finds, in its discretion pursuant to Practice Book § 25–26(a), that the existence of the resulting arrearage does not bar plaintiff from seeking relief pursuant to this Motion.

ORDERS

1) Plaintiff's alimony obligation is hereby reduced to $75.00 per week effective March 25, 2011, the date of the hearing in this matter.

2) Plaintiff is hereby ordered to pay defendant any and all arrearage owed from the date he unilaterally ceased paying his alimony obligation through March 25, 2011 at the rate of $250.00 per week.1

James W. Abrams, Judge

FOOTNOTES

FN1. The court is barred from issuing retroactive alimony modification orders pursuant to § 46b–82(a).   Had the agreement of the parties contained language that automatically terminated plaintiff's alimony obligation upon defendant's cohabitation rather than a reference to § 46b–82, the court would have had the power to terminate plaintiff's alimony obligation effective September 2009 and order defendant to reimburse plaintiff for payments made since that date.   See, Krichko v. Krichko, 108 Conn.App. 644, 651 (2008)..  FN1. The court is barred from issuing retroactive alimony modification orders pursuant to § 46b–82(a).   Had the agreement of the parties contained language that automatically terminated plaintiff's alimony obligation upon defendant's cohabitation rather than a reference to § 46b–82, the court would have had the power to terminate plaintiff's alimony obligation effective September 2009 and order defendant to reimburse plaintiff for payments made since that date.   See, Krichko v. Krichko, 108 Conn.App. 644, 651 (2008).

Abrams, James W., J.