Daniel K. Cassell v. Lisa J. Cassell (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S POSTJUDGMENT MOTION TO MODIFY ALIMONY—# 108

I. Nature of the Proceeding

The plaintiff, who is the former spouse of the defendant, has filed a post-dissolution motion to modify his periodic alimony order pursuant to General Statutes § 46b–86(b), Connecticut's so-called cohabitation statute.¹  The motion, dated December 18, 2012, was served on the defendant at her abode on December 20, 2012.   The court heard the matter during portions of three days, commencing April 2, 2013, and concluding on May 2, 2013, during which the court heard from each of the parties and from George Spoering, the gentleman with whom the defendant is admittedly residing in an intimate relationship.   In addition to current financial affidavits from each of the parties, the court received seventeen exhibits into evidence, ten offered by the plaintiff and seven offered by the defendant.   Among those exhibits were bank statements, canceled checks, utility bills, federal and state tax returns, an accounting of the college expenses of the parties' twenty-one-year-old son, Benjamin, who is an issue of the marriage, and the plaintiff's December 21, 2013 pay stub.

After considering the testimony and assessing the credibility of each of the witnesses, reviewing all of the exhibits, and considering the arguments of counsel, all in light of the controlling legal principles, the court will grant the plaintiff's motion and reduce his current alimony obligation from $2,250 per month to $1,500 per month, retroactive to May 2, 2013, the date on which the hearing concluded.

II. The Dissolution Agreement

On April 21, 2011, the parties' thirty-year marriage was dissolved, by the court (Gill, J.), on the grounds of irretrievable breakdown.   Pursuant to General Statutes § 46b–66(a), the court incorporated into its decree a “Marital Settlement Agreement” of the same date, negotiated between the parties with the assistance of their respective counsel, during the “collaborative divorce process,” which purportedly settled all matters relevant to the dissolution of the parties' marriage.   Among the issues addressed and resolved in the agreement were the division of real and personal property, the equitable division of retirement accounts and the creation of a college fund for their son, then age nineteen.   Additionally, agreement was reached on life and health insurance benefits, as well as income tax issues.

Paragraph 6 of the agreement addressed the alimony issue.   In paragraph 6.1, the plaintiff specifically waived any right to receive any form of alimony from the defendant.   Paragraph 6.2 is entitled “Periodic Alimony” and provides:  “Commencing on May 1, 2011, the Husband shall pay periodic alimony in the amount of $2,250 per month ($1,125 bimonthly) until the Husband reaches his full Social Security retirement age, April 30, 2020, the death of either party, or the Wife's remarriage, whichever occurs first.   Alimony is includable in the income of the Wife, and deductible from the income of the Husband, for income tax purposes.”   Paragraph 6.3, entitled “Modifiability,” is comprised of three subparagraphs.   It provides as follows:

a. The term of the alimony is non-modifiable.

b. The amount of the alimony is non-modifiable except that (1) either party may petition for a modification in the event that he or she experiences a total disability from full-time employment or involuntary on employment (despite good faith efforts to become re-employed), and (2) the Husband may petition for a modification in the event that the Wife earns more than $35,000 per year or receives support from a non-related person which causes her income from all sources to exceed $35,000 per year.

c. In no event may the Wife petition for modification based solely on the Husband's greater income.

During the trial, the parties agreed that the only portion of the alimony provision triggered by the plaintiff's motion and, therefore, the only portion which is relevant to this court's resolution of that motion, is paragraph 6.4, entitled, “Cohabitation.”   It provides:  “The Husband shall be entitled to petition the court to terminate, modify or suspend alimony in accordance with the provisions of the Connecticut cohabitation statute, presently codified at Conn. Gen. Stats. § 46b–86(b) except that the Husband expressly waives the right to file a motion or petition to terminate, modify, or suspend alimony based upon cohabitation with a relative.”

At the time of the dissolution proceeding, each of the parties filed the requisite financial affidavits that included income, weekly expenses, liabilities, and the marital property, real and personal, held by each.   The defendant's financial affidavit, dated April 21, 2011, listed income from her then and current full-time position as a teacher's aide as well as from a then and current summer job as a beach supervisor.   Her total gross weekly income was $513.   She netted $387 per week.   Her weekly expenses amounted to $749, which included $397 incurred by the defendant as living expenses at her rented condominium unit.   Prior to the dissolution, the parties had netted $312,000 on the sale of the marital home.   They agreed to equally divide those proceeds, after establishing a $70,000 college fund for their son.   After most of the liabilities, except for a $949 joint credit card debt, were paid, the defendant retained a $5,700 bank account, as did the plaintiff.   The balance of her 403b deferred compensation plan was $12,300.   The defendant owned a 2006 Camry which she valued at $13,500.   The plaintiff's financial affidavit of the same date disclosed a weekly gross income of $2,202 and weekly net income of $1,527.   The plaintiff was and is currently employed as a sales representative for a company that sells beverage equipment.   His weekly expenses amounted to $955, of which $385 was allocated to maintaining his residence and $119 was claimed as expenses paid on behalf of Benjamin.   His affidavit likewise included, after deducting the college fund, 50% of the net proceeds from the sale of the marital home and his one-half share, represented by a $5,700 bank account, after the bulk of all the couples' liabilities were paid.   The plaintiff listed two separate deferred compensation plans that were valued at $520,630 as of April 20, 2011.   The plaintiff owned a 2003 Tacoma worth $11,100.

Attached to each of the dissolution financial affidavits was a document entitled, “Property Division Report for Daniel K. and Lisa J. Cassell—Final Property Division 21 April 2011.”   The document listed the dollar amount of each of five categories of the parties' marital property, including real estate equity, cash and investments, cars and personal effects, life insurance (no cash value) and IRAs and 401k plans.   In addition, the document included the percentage allocated to each party in accordance with their separation agreement with a goal of allocating 53% of the marital assets to the plaintiff husband, and 47% of said assets to the defendant wife.   The total of all five categories, i.e., the total value of all marital assets, was $806,581.   The share allocated to the plaintiff was $431,032, while the defendant's share amounted to $375,548.   There were several footnotes attached to the document, including a reference to the $70,000 college fund and the specific allocation of the deferred compensation plans, the total of which was $806,581, of which 55%, or $431,032, went to the plaintiff husband while 45%, or $375,548, was allocated to the defendant wife.

III. The Current Status

After considering the testimony of all the witnesses, the court reviewed all seventeen exhibits and the most recent financial affidavits submitted by the parties.²  Having done so, the court finds the following facts.

One week prior to the dissolution of her marriage, the defendant rented a condominium unit in Granby for $1,350 a month plus utilities.³  The unit was located in the same condominium development as one owned by George Spoering, a gentleman known to the defendant for ten years prior to the dissolution and with whom the defendant admittedly enjoyed an intimate relationship while she was still married to the plaintiff and while Spoering was still married to his spouse.   In July 2012, when the defendant's lease of the condominium unit expired and after Spoering's marriage was dissolved, the defendant took up residence in the condominium unit owned by Spoering, with whom she continues to reside and maintain an intimate and romantic relationship akin to that enjoyed by spouses, without however, the benefits of, or, in this case, the financial burden of marriage.   Despite the anticipation of the parties, evidenced by that portion of paragraph 6.2.b of the settlement agreement that envisioned some reduction in the plaintiff's alimony obligation in the event the defendant was able to gross in excess of $35,000 per year, the defendant continues in the same employment that she held at the time the marriage was dissolved.   Indicative of her lack of due diligence in this regard is her testimony that since April 21, 2011, a period of two years, she has submitted only two applications in seeking higher earnings.   The defendant is a college graduate, possessing a four-year college degree.

Spoering and the defendant take vacations and trips together, however, each was eager to point out that each party pays his/her own way, including airfare and hotels, via separate credit cards and, further, that they own nothing in joint names.   Spoering conceded that he has provided the defendant with unspecified amounts of cash from time to time.⁴  There is no question, and therefore no dispute, as to whether Spoering and the defendant are “cohabiting” as that term is commonly understood.   As to whether they are doing so within the meaning of the statute requires a more searching inquiry.

In July 2012, Spoering and the defendant agreed that the defendant should contribute $700 per month for the cost of maintaining his condominium unit, which includes utilities, association fees and real estate taxes.   Apparently, Spoering has no mortgage obligation.   That amount was increased to $1,000 per month, coincidently, around the time that the plaintiff first contacted his attorney, concerning the possibility of reducing or ending his alimony obligation per paragraph 6.3 of the settlement agreement.⁵  The court finds that, but for the plaintiff's motion seeking the reduction or termination of his alimony obligation, the defendant currently would be paying her cohabitant $700 per month as her contribution toward the living expenses of the couples' residence.

In arriving at its decision to reduce the plaintiff's alimony obligation, the court has considered the current financial status of each of the parties as depicted in their respective current financial affidavits.   The defendant discloses current gross weekly income of $489 from her two jobs in addition to $519 periodic alimony, for a total of $1,008.   Her net weekly income is $604.   Her weekly expenses are $643, of which $231 are for utilities and rent.   She has no outstanding liabilities.   She has $125,000 deposited in several bank accounts and certificates of deposit.   Her total deferred compensation benefits amount to $274,000, consisting of the IRA rollover from the dissolution agreement in the amount of $248,900 and her 403b plan, now worth $25,100.   Since the dissolution, per her financial affidavit, her earned income has decreased by 5% and her expenses have decreased by 14%.   She has doubled the value of her 403b plan due to, according to her own testimony, being able to double the payroll deduction from $100 a week in 2011 to $200 a week in 2013.   The plaintiff's most recent financial affidavit disclosed a gross weekly income of $2,395 and a net weekly income of $1,627.   He claims weekly expenses of $1,601, of which $309 are for a mortgage and real estate taxes on his North Carolina residence and $101 of which are for expenses incurred by Benjamin, who lives with him when he is not attending college.   He likewise lists no outstanding liabilities.   He values his residential real estate at $200,000 with a mortgage balance in the amount of $103,000.   He lists two motor vehicles, a 2006 Ford Fusion and a 2003 Chevrolet Impala (apparently used by Benjamin).   He has $1,514 in the bank and his deferred compensation benefits have a current value of $510,514, to which, in 2012, he contributed an average of $433 per week via payroll deduction.   Since the dissolution, per his financial affidavit, his net income has increased 6.5%, and his expenses, excluding the alimony, have increased by 13%.

IV. Claims of the Parties

In arguing for the “full termination” of his periodic alimony order, the plaintiff asserts that the evidence establishes that since the defendant took up residence with Spoering, her living expenses have been reduced by more than 50% and that the relationship between the cohabiting couple is “marital in nature.”   In addition, the plaintiff argues, as the court has found, that the defendant's monthly payment of $1,000 to Spoering commenced once the defendant became aware of the plaintiff's intent to seek a reduction or termination of the alimony and was motivated by that knowledge.   The plaintiff asserts that the purpose of the increased payment from $700 to $1,000 a month was to influence the court and was and is, in effect, a sham.

The defendant insists that her relationship with Spoering was well known to the plaintiff at the time that the settlement agreement was negotiated.   The plaintiff asserts that she is actually paying $1,000 a month to Spoering and has been doing so since October 2012, a full two months before the plaintiff filed his motion.   The defendant asserts that the current alimony payment constitutes two-thirds of her income that she requires to support herself and that, without the full alimony payment, she would not be able to sustain her current standard of living relative to which, she argues, there has been no “significant change in circumstances.”

V. Applicable Law

“Section 46b–86(b) was enacted to correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.”  (Internal quotation marks omitted.)  Duhl v. Duhl, 7 Conn.App. 92, 94, 507 A.2d 523, cert. denied, 200 Conn. 803, 509 A.2d 517 (1986), quoting Connolly v. Connolly, 191 Conn. 468, 473–74, 464 A.2d 837 (1983).   In Gervais v. Gervais, 91 Conn.App. 840, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005), a case arising from this judicial district, the Appellate Court provides a well-articulated, informative and instructive analysis of the manner in which a trial court should consider and decide a post-dissolution motion to modify alimony filed under General Statutes § 46b–86(a) or (b).  The court first addressed the approach that should be taken when a trial court addresses a motion filed under subparagraph (a):  “When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties ․ Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b–82 criteria, make an order for modification ․ [T]he court's power to modify is created by statute, and it must make its determination on the basis of the statutory standards ․ The trial court is limited to reviewing the current [financial] situation of the parties in light of the statutory criteria set forth in § 46b–82.”  (Citation omitted;  emphasis omitted;  internal quotations omitted.)  Id., 850–51.

The court then discussed the somewhat different approach that should be undertaken by a trial court, pursuant to subsection (b) of the statute, which addresses a post-dissolution motion to modify alimony premised on an alleged cohabitation by the alimony recipient.  “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 higher burden required by § 46b–86(a) of a ‘substantial change’ in circumstances is lowered when there is cohabitation.   As our Supreme Court has explained, § 46b–86(b) requires only a change of circumstances, not a substantial change as required by § 46b–86(a).”  (Emphasis added;  internal quotation marks omitted.)  Id., 853, citing D'Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996).

Having discussed the different approaches under each of the cited statutes, the Appellate Court concluded:  “With respect to subsection (b), we conclude that once the court finds (1) cohabitation and (2) a change in the financial needs of the party receiving alimony and cohabitating, the court should engage in the same analysis as with subsection (a);  that is, consideration of the § 46b–82 factors.   Relevant to this case, the difference between subsections (a) and (b) is the threshold question.   Subsection (b) requires the finding of cohabitation, and a lower standard with respect to a change in circumstances.   Once those findings are made, however, a uniform application of the § 46b–82 factors is warranted and should be applied to a request for a post-dissolution modification of alimony whether brought under either subsection.   The use of the § 46b–82 criteria serves to ensure that the court has an updated picture of the parties' financial situation.”  Gervais v. Gervais, supra, 91 Conn.App. 854.

In dealing with post-dissolution motions under subsection (b), the Appellate Court has continued to follow the approach set forth in Gervais.   Although continuing to hold that the alteration in the financial needs of the alimony recipient need not be substantial, “the difference must be measurable in some way before the court can conclude whether a difference, in fact, exists.”   Blum v. Blum, 109 Conn.App. 316, 324, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).  “[W]e conclude that the proper way for the court to determine whether the plaintiff's financial needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollar amounts during the period of cohabitation.   Such an ‘apples to apples' comparison would harmonize §§ 46b–82 and 46b–86(b) into one coherent statutory scheme and lead to more just and rational results ․ The party moving for a change in the court's alimony order, however, must adduce some evidence from which the court reasonably could infer the value of the cohabitant's contributions.”  (Citation omitted;  emphasis added.)  Id., 325.

VI. Discussion

In addressing a motion filed by an alimony payor pursuant to Connecticut's cohabitation statute, a trial court must perform a three-step analysis.   The first step is to determine whether the alimony recipient is actually cohabiting with another individual in the colloquial sense of that term.   The defendant and Spoering have admitted that they are living together in a romantic and intimate relationship.

The second step in the court's analysis is to determine whether that living arrangement has, in the words of the statute, altered the financial needs of the defendant.   See General Statutes § 46b–86(b).  This court answers that question in the affirmative.   As noted, our appellate courts do not require the plaintiff in this case to prove that a substantial change in the defendant's financial needs has resulted from her cohabitation with her partner.   The plaintiff's burden in this regard is to satisfy a lesser standard by proving that some change has occurred in the defendant's financial circumstances as a proximate result of the defendant's living arrangement and, further, to quantify that change.   The plaintiff has met this burden and has demonstrated by a fair preponderance of the evidence that a significant measurable change in the defendant's financial needs has resulted from her cohabitation with Spoering.   First and foremost, during her testimony, the defendant admitted that she saved $417 per month by taking up residence with Spoering.   She made this admission while insisting that her payment of $1,000 a month to her partner had nothing to do with the plaintiff's motion and was not motivated by it.   As noted, the court agrees with the plaintiff that the increase from $700 to $1,000 a month was prompted by the defendant's knowledge of the plaintiff's intention to seek a reduction or termination of his alimony order.   Thus, it is reasonable to infer and to conclude that, but for the plaintiff's motion, the defendant would currently be paying $700 a month for her share of living expenses, which would result in a decrease in the defendant's living expenses, not by her claimed amount of $417, but by $717 per month.   That is the money saved by her as a direct result of her current living arrangement.   Moreover, even if the court concedes and accounts for the additional $300 per month contribution, a comparison of the cost of her rented condominium unit to the cost of Spoering's unit could very well support a finding that her financial needs may have been altered by $978 a month, that is, once the cost of the fuel has been factored in.⁶  Whichever finding the court could make, whether $417 per month, $717 per month or $978 per month, the plaintiff has certainly met his burden as to the second step in the analysis.   That being said, however, the court's analysis is not complete.

The third and final step in the cohabitation analysis requires that the court consider each of those factors provided in General Statutes § 46b–82(a), in light of each party's current financial circumstances.⁷  In reaching its decision, the court has considered all of those statutory factors relevant to a post-dissolution modification of a periodic alimony award relative to which the court received evidence.   The court does not recall receiving any evidence as to the current health condition status of either party.   However, both appeared to be good health at the time of trial.   The plaintiff is 59 years of age.   The defendant did not state her age but appeared to be several years younger than the plaintiff.  “[T]he trial court is not required to make specific reference to the criteria that it considered in making its decision.”  Hughes v. Hughes, 95 Conn.App. 200, 207–08, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006);  see Szynkowicz v. Szynkowicz, 140 Conn.App. 525, 531, 59 A.3d 1194 (2013).   The court has considered the applicable statutory factors guided by, not only the testimonial and documentary evidence received, but by those principles of equity and fairness that govern the exercise of discretion in family disputes that prompted the General Assembly to enact Connecticut's cohabitation statute in the first place.   Obviously, in this post-dissolution proceeding, the court is not obligated to factor in the length of the marriage, the cause of the dissolution, the distribution of the marital real property (sold and proceeds divided prior to the dissolution decree) or the custody of any minor children, both of whom are now adults.

VI. Conclusion and Order

Based upon all of the foregoing, the court will find that the plaintiff is entitled to a reduction in his current alimony payment.   He is not, however, entitled to a termination of his alimony obligation as the defendant continues to require a portion of the spousal support that was a significant part of the bargain made by the parties as a result of the collaborative divorce process.   “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”   Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984).  “[W]e are cognizant that [t]he issues involving financial orders are entirely interwoven.”  (Internal quotation marks omitted.)  Morrone v. Morrone, 142 Conn.App. 345, 348, 64 A.3d 803 (2013).

Accordingly, the court will modify the plaintiff's current periodic alimony obligation downward from $2,250 per month ($1,125 bimonthly) to $1,500 per month ($750 bimonthly).   The modification will be retroactive to May 2, 2013, the date upon which the hearing concluded.   All other terms and provisions of the dissolution judgment are unaffected by this modification and will therefore remain in full force and effect.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. Section 46b–86 provides, in general, for the modification of the alimony and child support awards.   Subsection (b), the cohabitation portion, 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.”.  FN1. Section 46b–86 provides, in general, for the modification of the alimony and child support awards.   Subsection (b), the cohabitation portion, 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.”

FN2. During the trial, the plaintiff submitted two financial affidavits, the first on April 2, 2013 (Day 1 of the trial), and the second on May 2, 2013 (Day 2).   The most recent affidavit reflects a relatively small increase in income and assets when compared to the earlier submission.   The court has considered the financial affidavit that was last filed by the plaintiff in reaching its decision..  FN2. During the trial, the plaintiff submitted two financial affidavits, the first on April 2, 2013 (Day 1 of the trial), and the second on May 2, 2013 (Day 2).   The most recent affidavit reflects a relatively small increase in income and assets when compared to the earlier submission.   The court has considered the financial affidavit that was last filed by the plaintiff in reaching its decision.

FN3. The plaintiff's financial affidavit, dated April 21, 2011, disclosed that she paid a total of $312 per week for rent of her condominium unit in addition to $85 per week for utilities (electricity, water and sewer), cable and telephone service, and insurance.   No fuel cost was estimated at that time, which, according to Spoering, averages $275 per month or $62.80 per week.   Thus, adding the cost of fuel, the plaintiff's “household expenses” while she resided in a rented condominium would have been approximately $460 per week or $1,978 per month..  FN3. The plaintiff's financial affidavit, dated April 21, 2011, disclosed that she paid a total of $312 per week for rent of her condominium unit in addition to $85 per week for utilities (electricity, water and sewer), cable and telephone service, and insurance.   No fuel cost was estimated at that time, which, according to Spoering, averages $275 per month or $62.80 per week.   Thus, adding the cost of fuel, the plaintiff's “household expenses” while she resided in a rented condominium would have been approximately $460 per week or $1,978 per month.

FN4. It is interesting to note that the couple's income status is somewhat lopsided.   According to her 2012 income tax return, with the plaintiff's alimony payments, the defendant grosses $42,279 per year.   Without the plaintiff's payments, the defendant would gross $15,279 per year from her two occupations.   Spoering, who is an IT manager for a large insurance company, grosses $140,000 annually, excluding a $33,000 bonus received by him in 2012.   There was no evidence adduced as to the amount of his alimony obligation, if any, to his former spouse..  FN4. It is interesting to note that the couple's income status is somewhat lopsided.   According to her 2012 income tax return, with the plaintiff's alimony payments, the defendant grosses $42,279 per year.   Without the plaintiff's payments, the defendant would gross $15,279 per year from her two occupations.   Spoering, who is an IT manager for a large insurance company, grosses $140,000 annually, excluding a $33,000 bonus received by him in 2012.   There was no evidence adduced as to the amount of his alimony obligation, if any, to his former spouse.

FN5. The testimony and documentary evidence is in conflict as to the reasons for and timing of the $300 a month increased contribution by the defendant.   The defendant asserts that the $300 increase was first paid by her in mid-October 2012, at least two weeks prior to any knowledge of the plaintiff's intent to seek a modification.   The plaintiff points out that checks representing two of the additional $300 payments took twenty-eight days to clear.   The plaintiff therefore claims that they were backdated and written only after defendant acquired such knowledge.   The credible evidence negates the defendant's claim, and causes this court to draw an inference that the defendant's $300 monthly increased contribution to Spoering's condominium expenses was initiated only after the defendant became aware the plaintiff's intent to seek a modification and was purposed to defeat the plaintiff's motion, or, at the very least, to improve the defendant's chances of success relative thereto.   See Pl.'s Ex. 2;  Def.'s Ex. B, C..  FN5. The testimony and documentary evidence is in conflict as to the reasons for and timing of the $300 a month increased contribution by the defendant.   The defendant asserts that the $300 increase was first paid by her in mid-October 2012, at least two weeks prior to any knowledge of the plaintiff's intent to seek a modification.   The plaintiff points out that checks representing two of the additional $300 payments took twenty-eight days to clear.   The plaintiff therefore claims that they were backdated and written only after defendant acquired such knowledge.   The credible evidence negates the defendant's claim, and causes this court to draw an inference that the defendant's $300 monthly increased contribution to Spoering's condominium expenses was initiated only after the defendant became aware the plaintiff's intent to seek a modification and was purposed to defeat the plaintiff's motion, or, at the very least, to improve the defendant's chances of success relative thereto.   See Pl.'s Ex. 2;  Def.'s Ex. B, C.

FN6. See Footnote 3..  FN6. See Footnote 3.

FN7. General Statutes § 46b–82(a) provides in relevant part:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”   The statute was recently amended in several respects by Public Act 13–213, Section 3. The amendment, however, is not effective until October 1, 2013, and thus does not have any effect on this case..  FN7. General Statutes § 46b–82(a) provides in relevant part:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”   The statute was recently amended in several respects by Public Act 13–213, Section 3. The amendment, however, is not effective until October 1, 2013, and thus does not have any effect on this case.

Trombley, Wilson J., J.