Significant Developments in Family Law 1999-2004
| Publication year | 2021 |
| Pages | 273 |
79 CBJ 273. SIGNIFICANT DEVELOPMENTS IN FAMILY LAW 1999-2004
Vol. 79, No. 4
December 2005
In the past six (6)+ years a number of cases have been decided which have altered the face of family law practice in Connecticut. In addition, there have been some statutory revisions which bear discussion, as well as cases decided since those changes went into effect. This article considers developments in the law since the 1998 Survey of Connecticut Family Law, and the 1998 Connecticut Appellate Review.1
I. SUBJECT MATTER JURISDICTION VS. STATUTORY AUTHORITY
The distinction between the trial court's subject matter jurisdiction in family law matters and its authority to act was highlighted in the Connecticut Supreme Court's 1999 decision of Amodio v. Amodio, reversing the Appellate Court's decision. The trial court granted the defendant's motion to modify child support. The Appellate Court reversed on the basis that the trial court lacked subject matter jurisdiction to modify because the dissolution decree "clearly and unambiguously" foreclosed modification of the support order in the financial circumstances then existing.2
At the time the defendant returned to court for modification downward, he was making $900 per week, the same amount he had been earning at the time of the dissolution. The basis for his claim that he was entitled to downward relief was that his obligation exceeded the obligation imposed by the child support guidelines by 15%. The defendant argued that to preclude modification because of that deviation, the original trial court was required to make a specific finding on the record that the agreed-upon support, more than 15% in excess of the child support guidelines then in effect, constituted a deviation from those guidelines. Since the initial trial court did not so state, the guidelines governed and the defendant claimed he was entitled, therefore, to a downward deviation due to that disparity. The Appellate Court held, on an issue it raised sua sponte, that because the defendant's income had not increased, the decree foreclosed modification under the existing circumstances and the trial court accordingly lacked jurisdiction to modify. The Court noted that the cases it cited dealt with the modification of alimony, but held that Section 46b-86(a)3 allows for a preclusion of modification of alimony or support.
The Supreme Court reversed, holding that the superior court had subject matter jurisdiction. The Court held that General Statutes Section 46b-1(4), providing the superior court with subject matter jurisdiction over legal disputes in family relations matters, as defined, including alimony and support, and General Statutes Section 46b-86(a), providing the trial court with continuing jurisdiction to modify support orders, gave the trial court subject matter jurisdiction to determine the modification motion.4 The Court determined, however, that the inquiry did not end there; the "separate and distinct" question is whether the trial court properly applied the statute, i.e., whether the court "properly exercise[d] its authority to act."5 The Supreme Court held that the Appellate Court confused the issues of subject matter jurisdiction and the proper exercise of the trial court's authority to act and reversed and remanded to the Appellate Court.6
While the Amodio decisions did not change the law on jurisdiction and authority to act, they brought the distinction into sharp focus. Notwithstanding those decisions, whether the parties can agree to make child support orders nonmodifiable remains unclear. While the Appellate Court construed §46b-86(a) to allow the parties to limit modifiability of child support, the Supreme Court did not reach that issue. The Appellate Court's 2000 Amodio opinion can be read as fact-specific, i.e. upholding an agreed-to preclusion of downward modification of child support, or it can be read as generally allowing agreed-to preclusion of modification of child support.7
II. ALIMONY TERMINATION: STATUTE VS. JUDGMENT
The Supreme Court in DeMaria v. DeMaria,8 reversing the Appellate Court,9 held that the trial court must consider the terms of Section 46b-86(b) of the Connecticut General Statutes10 in determining whether to grant a former husband's motion to terminate alimony on the basis of the former wife's cohabitation.
The dissolution judgment provided that the defendant-husband's obligation to pay alimony to the plaintiff-wife would terminate upon her death, remarriage or "cohabitation with an unrelated male."11 Post-judgment, the defendant pled that the plaintiff was cohabiting with an unrelated male and asked for termination based upon the judgment, or, in the alternative, based upon the terms of Section 46b-86(b). He requested reimbursement of alimony paid from the date he claimed the cohabitation commenced. The trial court, after an evidentiary hearing, found the plaintiff was living with an unrelated male but denied the defendant's motion to terminate alimony because there was no evidence that her living situation altered her financial needs.12 The trial court also determined an alimony arrearage but declined to hold the defendant in contempt.
The Appellate Court reversed the trial court, distinguishing between alimony termination based upon the terms of a judgment and modification pursuant to Section 46b-86(b) of the Connecticut General Statutes. The court held that proof of a change in financial circumstances should not have been required because the cohabitation provision of the judgment did not set any financial requirements for alimony termination.
Reversing, the Supreme Court stated that the legislature's use in Section 46b-86(b) of the words "living together with another person" constituted broader language than "cohabitation," and that the statute and its underlying public policy require proof of financial consequences to the living arrangement before an alimony award would be altered. The Court determined that it was appropriate for the trial court to look to the terms of the statute as a "source of common law policy" and that it was a proper exercise of the trial court's authority to rely upon the statute as "a definitional source."13 On this basis, the Supreme Court reversed and remanded to the Appellate Court with the direction to affirm the trial court's judgment denying the defendant's motion to terminate alimony because of his failure to prove a change in financial circumstances.
Dissenting, Justice McDonald points out that by applying the terms of Section 46b-86(b) to a motion for modification of a judgment using the word "cohabitation," the majority equated that word and the statutory words: "living with another person." Not only did that application eradicate the distinction between the words themselves but also ignored the "separate and independent statutory basis for modification of alimony provided by the statute."14
The Supreme Court had asked the trial court to articulate what the parties intended by use of the term, "cohabitation" in the separation agreement. The trial court answered that there was no separation agreement. If there had been, would the results have been different? Given the Supreme Court's treatment of the stipulated agreement in Amodio, particularly its overlay of the statutes onto the language of the agreement, arguably not.15
Another presentation of the tension between statutory and agreement language (albeit not in an alimony termination case) arose subsequently but no further than the Appellate Court level, in Clark v. Clark.16 In Clark, the Appellate Court upheld the trial court's order granting the plaintiff's motion for modification, which motion used as its basis for relief only the terms of the judgment incorporating the parties' Separation Agreement. The plaintiff argued that she was also entitled to modification, and, potentially a more ample award, based upon statutory factors and that the trial court erred in not considering them. The Appellate Court held that the trial court need not have considered these statutory factors because the plaintiff's pleading relied exclusively on the parties' stipulated agreement. In reaching its conclusion, the Appellate Court reasserted that Section 46b-86 of the Connecticut General Statutes is a "separate and independent statutory basis for the modification of alimony and is a claim which must be raised" by motion of the party who seeks to modify alimony.17
III. ALIMONY MODIFICATION -- WHAT CONSTITUTES INCOME?
Another interesting parry between the Appellate and Supreme Courts developed out of a post-judgment motion for modification in Gay v. Gay.18
The defendant-former husband moved to modify down-ward the alimony payments to the plaintiff-former wife. He claimed that he had suffered a decrease in income due to retirement and that the plaintiff's income and assets had "dramatically increased." The trial court reduced the alimony obligation from $710 per month to $1 per year.19
On appeal, the plaintiff argued that the court improperly considered capital gain realized from her investment accounts as income. She claimed that capital gain represents an appreciation of an asset and, therefore, cannot be a basis for the court's finding of a substantial change in circumstances. The defendant argued that asset appreciation can be a proper basis for modification.
The Appellate Court treated the issue as one of first impression. It found that the crucial distinction to be made is whether the asset(s) generating the capital gain were acquired before or after the dissolution of marriage. If acquired before and distributed pursuant to the divorce decree, it would be improper to consider a subsequent gain as a basis for modification of alimony. In doing so, a court would...
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