Trevor Thorpe v. Tina Thorpe (2013)

MEMORANDUM OF DECISION

The plaintiff's motion to modify alimony was filed on January 8, 2013.   An evidentiary hearing was held on August 12, 2013, at which time there were no disputes to the following facts.   The marriage of the parties was dissolved on February 22, 2010 and the plaintiff was ordered to pay alimony to the defendant.   On May 14, 2012, the parties' postjudgment agreement to modify alimony was made an order of the court and provided that the plaintiff pay $90.00 per week to the defendant until November 22, 2013, and, thereafter, the plaintiff was to pay $60.00 per week for a period of 15 months until February 22, 2015.   The order further provided that alimony was to “terminate upon the earliest to occur of the following events:  A. The death of either party;  B. The Wife's remarriage;  C. The Wife's cohabitation pursuant to Connecticut General Statute Section 46b–86(b);  D. The week of February 22, 2015.”

The plaintiff seeks to terminate alimony based on the defendant's cohabitation.   The plaintiff states that the defendant has had another child with a person with whom she now resides, Mr. Player.   Ms. Thorpe admits that she recently gave birth to a child and that Mr. Player is the father.   However, she denies that he resides with her.   She states that he stays over a couple of nights a week.   The plaintiff presented evidence that during a two-week period in November 2012, Mr. Player's car was parked in her driveway every night.   Mr. Player testified that he visits one to seven days per week with his child.   He states that he resides with his parents and pays them $50.00 a month.   He has recently become unemployed.   He also testified that he does not contribute to Ms. Thorpe's rent, utilities, or other expenses, except expenses directly related to his child.   Ms. Thorpe testified credibly that her expenses have not increased since the last court date and her expenses listed on her financial affidavit have not increased since May of 2012.

“Section 46b–86(b), known as the cohabitation statute, provides in pertinent part that a 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 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.   Therefore, in order to find that the [defendant] was cohabiting with [Player], the [plaintiff] had to prove that (1) the defendant was living with [Player], and (2) the living arrangement with [Player] caused a change of circumstances so as to alter the financial needs of the [defendant].”  Nation–Bailey v. Bailey, 144 Conn.App. 323–24 (2013), (citations omitted;  internal quotation marks omitted).

The court finds that the testimony of Ms. Thorpe regarding the frequency with which Mr. Player stays with her to be not credible.   Even if she does not consider Mr. Player as residing with her and the children, the evidence shows that, for all intents and purposes, he is residing there.   However, the plaintiff has provided no credible evidence that the financial needs of the defendant have been altered as a result of the continuous residence of Mr. Player with the defendant.

In addition to the termination of alimony, the plaintiff seeks an award of counsel fees for two appearances in court by his counsel on two motions for continuances by the defendant.   The defendant gave proper notice to the plaintiff that the defendant was unable to attend court on two occasions as a result of medical issues.   Both times the plaintiff's counsel received notice in sufficient time to apprise the plaintiff so that the plaintiff did not have to travel from out of state where he resides to attend court.   Plaintiff's counsel did attend court and seeks counsel fees for the attendance to object to the continuances on the grounds that the medical provider's letters were vague and the plaintiff was unable to ascertain whether the medical reasons were in fact valid or an attempt to prolong the matter by the defendant.   The letters the defendant's counsel presented stated “due to medical reasons, my patient, Tina Thorpe, will not be attending her scheduled court appearances.   She will be able to attend after August 1, 2013.”   Plaintiff testified regarding her medical conditions and the court is satisfied that her lack of attendance was valid and based on her medical condition at the time.

Accordingly, the court hereby enters the following orders:

1. Plaintiff's motion to modify alimony is hereby denied.

2. Plaintiff's motion for counsel fees is hereby denied.

BY THE COURT

Maureen M. Murphy, Judge

Murphy, Maureen M., J.