Borkowski v. Borkowski

• Decision Date: 15 March 1994
• Docket Number: No. 14705,14705
• Court: Connecticut Supreme Court
• Parties: Kathleen BORKOWSKI v. John J. BORKOWSKI.

Page 1060

638 A.2d 1060

228 Conn. 729

Kathleen BORKOWSKI v. John J. BORKOWSKI.

No. 14705.

Supreme Court of Connecticut.

Argued Dec. 1, 1993.

Decided March 15, 1994.

Wesley W. Horton, Hartford, with whom were Michael S. Taylor, Certified Legal Intern, and, on the brief, Lloyd Frauenglass, Glastonbury, and Alexandra Davis, Hartford, for appellant (defendant).

Averum J. Sprecher, Middletown, for appellee (plaintiff).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

KATZ, Associate Justice.

This is an appeal from a postjudgment modification rendered in a dissolution of marriage action. The defendant, John J. Borkowski, appeals from the judgment of the Appellate Court which affirmed a trial court order partially granting his motion for modification and/or termination of the unallocated alimony and support order. We reverse.

The following facts are undisputed. The plaintiff, Kathleen B. Brick, and the defendant were married in New Jersey on December 14, 1968. Their marriage was dissolved on August 23, 1983, on the grounds of intolerable cruelty by the defendant. At the time of dissolution, the trial court's decree awarded custody of the parties' four minor children to the plaintiff, and ordered the defendant to pay unallocated alimony and child support of $3000 per month. By motion dated February 25, 1988, the defendant sought a modification of the decree on the grounds that one minor child had reached majority and another had moved into the defendant's home. Pursuant to that motion, the trial court reduced the unallocated order by $500 per month, requiring the defendant to pay $2500 monthly.

On March 30, 1990, the defendant filed a second motion for modification to reduce the unallocated order of alimony and child support. While that motion was pending, the plaintiff filed a motion for modification to increase the order. Thereafter, following a joint evidentiary hearing on July 9, 1990, the trial court granted both motions, reducing the unallocated order by $250 per month to reflect that a second minor child had reached majority, and increasing the order by $250 per month because of the plaintiff's chronic medical problems. As a result of the trial court's concurrent orders, the unallocated support and alimony remained $2500 per month.

On April 12, 1991, the defendant filed the motion for modification of unallocated alimony and child support that is the subject of this appeal. In his motion, the defendant sought a modification of the latest unallocated order by "reducing and/or terminating the unallocated support payable to the plaintiff and/or entering a separate order of support for the [remaining minor child not in his custody]." Following an evidentiary hearing, the trial court found that, because the plaintiff was earning more and the defendant was earning less, there had been a substantial change in circumstances as to the parties' income. The trial court also found that the plaintiff's medical condition, which had been complicated by a 15 percent permanent disability of her cervical spine, remained problematic. ¹ On the basis of these findings, the trial court granted the defendant's motion to modify the unallocated order but denied the defendant's motion to terminate alimony. Specifically, the trial court separated the unallocated order into distinct alimony and child support orders, and reduced the defendant's total amount of monthly payments to the plaintiff. ²

The defendant appealed the trial court's order to the Appellate Court, claiming that the trial court had improperly admitted evidence of events and conditions that had occurred prior to the last modification of the unallocated order. In a per curiam decision the Appellate Court affirmed the judgment of the trial court. Borkowski v. Borkowski, 29 Conn.App. 925, 618 A.2d 588 (1993). Thereafter, the defendant petitioned this court for certification to appeal, which we granted, limited to the following issue: "When a party files a motion to modify which seeks termination of alimony after a prior modification of alimony, may the trial court consider any change of circumstances arising since the date of the original decree?" Borkowski v. Borkowski, 225 Conn. 908, 909, 621 A.2d 289 (1993).

The defendant's claim on appeal relates to evidentiary rulings made by the trial court. At trial, the court admitted into evidence, over the defendant's objection: (1) the plaintiff's testimony about the cause of her spinal injury in 1981 and about the deterioration of her medical condition since that time; (2) the defendant's testimony on cross-examination concerning the increase of his business' gross receipts subsequent to 1983, the year of the original dissolution decree; (3) the plaintiff's testimony about the diminution in value of an investment account worth $37,000 in 1983; and (4) the plaintiff's testimony concerning the termination of her interest in the defendant's accumulated retirement plan subsequent to 1983.

The defendant argues that the trial court should not have considered this evidence because such consideration led the trial court improperly to base its modification of alimony upon changed circumstances arising subsequent to the original dissolution decree and antecedent to the last modification. The defendant asserts that the trial court should have considered only changed circumstances arising subsequent to the last modification on July 16, 1990, in deciding whether and by how much to modify the unallocated order of support and alimony.

We agree with the defendant's statement of the law and conclude that the trial court improperly considered evidence--all predating the latest modification--relating to the defendant's business income, the plaintiff's investment account and the defendant's retirement account. Accordingly, we reverse.

I

General Statutes § 46b-86 ³ governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony, the applicable provision of the statute is § 46b-86(a), which provides that a final order for alimony may be modified by the trial court "upon a showing of a substantial change in the circumstances of either party." See Theonnes v. Theonnes, 181 Conn. 111, 113-14, 434 A.2d 343 (1980). Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. Bunche v. Bunche, 180 Conn. 285, 290, 429 A.2d 874 (1980). Because a request for termination of alimony is, in effect, a request for a modification, this court has treated as identical motions to modify and motions to terminate brought under § 46b-86(a). See Scott v. Scott, 190 Conn. 784, 788, 462 A.2d 1054 (1983); Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979).

The traditional purpose of alimony is to meet one's "continuing duty to support." Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); Rubin v. Rubin, 204 Conn. 224, 228, 527 A.2d 1184 (1987); Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Section 46b-86 "reflects the legislative judgment that continuing alimony payments should be based on current conditions." Rubin v. Rubin, supra, 204 Conn. at 236, 527 A.2d 1184. Thus, "[t]o avoid re-litigation of matters already settled, courts in modification proceedings allow the parties only to present evidence going back to the latest petition for modification.... Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted." H. Clark, Law of Domestic Relations (1968) § 14.9, p. 456. It is, therefore, well established that when a party, pursuant to § 46b-86, seeks a postjudgment modification of a dissolution decree that earlier had been modified, he or she must demonstrate that a substantial change in circumstances has arisen subsequent to the entry of the earlier modification. Benson v. Benson, 187 Conn. 380, 383 n. 3, 446 A.2d 796 (1982); Theonnes v. Theonnes, supra, 181 Conn. at 114, 434 A.2d 343; Cleveland v. Cleveland, 161 Conn. 452, 459-60, 289 A.2d 909 (1971).

"In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties." (Internal quotation marks omitted.) Sanchione v. Sanchione, 173 Conn. 397, 401-402, 378 A.2d 522 (1977); H. Clark, supra, § 14.9, pp. 456-57; see also Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). More specifically, these criteria, outlined in General Statutes § 46b-82, ⁴ require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.

In Hardisty v. Hardisty, supra, 183 Conn. at 258-59, 439 A.2d 307, we stated: "Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony ... are relevant to the question of modification. Sanchione v. Sanchione, [supra, 173 Conn. at 401-402, 378 A.2d 522]; see also [H. Clark, supra], § 14.9, pp. 456-57." By so bifurcating the trial court's inquiry, however, we did not mean to suggest that a trial court's determination of whether a substantial change in circumstances has occurred, and its determination to modify alimony, are two completely separate inquiries. Rather, our bifurcation of the trial court's modification inquiry was meant to reflect that, under our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree. General Statutes § 46b-86. Thus, once the...