Alison Woodcock v. Thomas Woodcock (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR MODIFICATION

Factual Background

The plaintiff, Alison Woodcock, now known as Allison Ziomek, and the defendant, Thomas Woodcock, dissolved their marriage on March 10, 2010.   The Court, Holzberg, J., entered a judgment of dissolution incorporating their written agreement by reference.

The provision on alimony provides:  “The Husband shall pay to the Wife the sum of $200 per month alimony for ten years.   The term and amount of said alimony is not modifiable.   However, upon the remarriage or death of the Wife, said alimony shall terminate.”   The provision on modification provides:  “No modification or waiver of any of the terms of this Agreement shall be valid unless in writing and executed with the same formality as this Agreement and approved by a Court of competent jurisdiction.   No failure to assert any right or to enforce any provisions of the Agreement shall operate as a waiver of such right or provision and either party shall be fully privileged to assert or enforce such right or provision at any later time.”

On April 4, 2013, the defendant filed the instant motion to modify the plaintiff's alimony on the ground that she is cohabiting with her fiancé.   The defendant admits that the aforementioned agreement is silent as to so-called “co-habitation,” and argues that the General Statutes Sec. 46b–86(b) permits the modification.

Discussion

General Statutes § 46b–86(b) governs the modification of alimony on the ground of cohabitation.   It 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.”  General Statutes § 46b–86(b) (emphasis added).

“[B]efore the payment of alimony can be modified or terminated [on cohabitation grounds], two requirements must be established.   First, it must be shown that the party receiving the alimony is cohabit[ing] with another individual.   If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation.”  (Internal quotation marks omitted.)  Lehan v. Lehan, 118 Conn.App. 685, 695, 985 A.2d 378 (2010);  accord D'Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996).

“[B]oth ․ requirements [of 46b–86(b) ] apply even when the judgment does not define cohabitation or reference the statute.”  Racsko v. Racsko, 102 Conn.App. 90, 93, 924 A.2d 878 (2007).   Since “the purpose of alimony [is] the obligation of support that spouses assume toward each other by virtue of the marriage ․ [t]his court has stated that ․ alimony represents the court's finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution ․ Blum v. Blum, 109 Conn.App. 316, 323–24, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).”  (Internal quotation marks omitted.)  Lehan v. Lehan, supra, 696–97.

“For purposes of § 46b–86(b), the plaintiff must demonstrate that the defendant's financial needs, as quantified by the court in setting the alimony award pursuant to General Statutes § 46b–82, have been altered by her living arrangements ․ Although the alteration need not be substantial ․ the difference must be measurable in some way before the court can conclude whether a difference, in fact, exists ․ In other words, the court must have the ability to compare the [defendant's] financial needs at different points in time in order to determine whether those needs either have increased or have decreased over time.   Because the court, in setting the alimony award pursuant to § 46b–82, quantified the [defendant's] financial needs in terms of dollar amounts at the time of dissolution ․ the proper way for the court to determine whether the [cohabiting party's] financial needs have changed as a result of [the] cohabitation is to quantify [that party's] financial needs in terms of dollar amounts during the period of cohabitation.”  (Internal quotation marks omitted.)  Lehan v. Lehan, supra, 118 Conn.App. 697;  see also Cretella v. Cretella, Superior Court, judicial district of New Haven, Docket No. FA 044000175 (July 27, 2009, Burke, J.) (once the court finds cohabitation and a change in the financial needs of the party receiving alimony, the court should consider § 46b–82 factors).  “[E]ven after the required factual showings [to modify or terminate alimony within the scope of § 46b–86(b) ] the ultimate decision is still entrusted to the discretion of the trial court.”  (Emphasis in original) Kaplan v. Kaplan, 186 Conn. 387, 389, 441 A.2d 629 (1982).

The Supreme Court in DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999), was presented with the issue as to whether alimony of a cohabiting spouse can be terminated where there was no showing made that the cohabiting spouse's financial needs had changed.  Id., 719.   The court stated that because there is no definition of the word cohabitation in the judgment of dissolution and § 46b–86(b) does not use the word cohabitation;  see id., 720;  “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.”  Id., 721.   The court held that the term “cohabitation” in the context of the dissolution judgment includes and requires the “financial impact of the living arrangement on the cohabiting spouse.”   Id., 720.

“Essentially, subsection (b) of § 46b–86, following a finding that a party is living with another individual, allows the court to modify, reduce, suspend or terminate the payment of alimony if there is a corresponding change in financial circumstances.   Put another way, in cases involving the cohabitation statute, subsection (b) lowers the threshold predicate for the modification of alimony to situations where the court finds cohabitation and a change in circumstances so as to alter the needs of the party.   The ․ burden required ․ is lowered when there is cohabitation ․ [Section] 46b–86(b) ‘requires only a change of circumstances not a substantial change as required by § 46b–86(a).”  Gervais v. Gervais, 91 Conn.App. 840, 853, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

In the instant case, the plaintiff testified at the May 20, 2013 hearing on the defendant's motion that she is engaged and has been living with that person for at least a year and a half.   In addition, she testified that the latter individual contributes to the household expenses, and the parties have a joint checking account from which their bills are paid.   The court, however, was not presented with any evidence that would allow it to quantify the plaintiff's financial needs in terms of dollar amounts during the period of cohabitation, as required by Lehan v. Lehan, supra, 118 Conn.App. 697.   Thus, the Court is unable to determine whether there has been a change in the financial needs of the plaintiff since her cohabitation.

Since the Court is unable to find, based on the evidence presented at the hearing, that the plaintiff has had a change in her financial circumstances and needs since the cohabitation begin, the defendant's motion for modification is denied.

GOULD, J.

Gould, Mark T., J.