Connolly v. Connolly

• Decision Date: 13 September 1983
• Citation: 191 Conn. 468,464 A.2d 837
• Court: Connecticut Supreme Court
• Parties: Anne M. CONNOLLY v. Joseph F. CONNOLLY.

Page 837

464 A.2d 837

191 Conn. 468

Anne M. CONNOLLY v. Joseph F. CONNOLLY.

Supreme Court of Connecticut.

Argued June 9, 1983.

Decided Sept. 13, 1983.

Elaine S. Amendola, Bridgeport, for appellant-appellee (plaintiff).

Edward F. Czepiga II and Daiga G. Osis, Bridgeport, for appellee-appellant (defendant).

Before SPEZIALE, C.J., and PARSKEY, SHEA, GRILLO and SPONZO, JJ.

SHEA, Justice.

The genesis of this appeal and cross appeal was a motion by the plaintiff to modify child support and alimony awards which were part of an initial dissolution decree. The facts are undisputed. The marriage of the parties was dissolved in 1974 with the plaintiff wife retaining custody of the three minor children. The defendant husband was ordered to pay $600 monthly alimony and $350 monthly child support for each child. In March, 1981, the plaintiff moved to increase both child support ¹ and alimony. No motion to decrease or terminate child support or alimony was ever filed by the defendant. After a hearing, the trial court, Geen, J., concluded that there had been a substantial change in circumstances which justified an increase in child support to $115 per week per child. In addition, citing General Statutes § 46b-86, the court terminated the plaintiff's right to periodic alimony as of June 1, 1981. An appeal from the order terminating alimony was taken by the plaintiff.

On July 28, 1981, the plaintiff filed a motion to adjudge the defendant in contempt for failure to continue alimony payments in accordance with the original dissolution decree on the ground that Practice Book § 3065 stayed the termination order during the pendency of her appeal. The defendant opposed the motion. Ten months later, while the first motion was still under consideration by the court, Maiocco, J., the plaintiff filed a second contempt motion for the failure to pay alimony from June, 1981, to March, 1982. The trial court, Gerety, J., found the defendant in contempt and ordered him to pay an arrearage of $6000, which had accrued from June 1, 1981, to the clerk of the court and to make all future alimony payments to the clerk in accordance with the initial decree pending the determination of the plaintiff's appeal. In accordance with an agreement of the parties, in April, 1982, the court modified its order to permit the money to be deposited in an interest bearing escrow account managed by the defendant's attorney.

In her appeal the plaintiff presents four issues: (1) whether the trial court had the authority to terminate alimony when ruling only on a motion to increase alimony; (2) whether the trial court denied the plaintiff due process of law by terminating alimony pursuant to General Statutes § 46b-86(b), the "cohabitation" statute, without the special notice and hearing required by that statute; (3) assuming the trial court complied with the procedural prerequisites of General Statutes § 46b-86(b), whether the trial court abused its discretion in ordering the termination of alimony under that section; and (4) whether the exclusion of the plaintiff's evidence regarding voluntarily incurred expenses to support an emancipated child constituted harmful error.

In his cross appeal, the defendant seeks to reverse an adjudication of contempt and to recover the monies paid as alimony since June 1, 1981. He claims error on the grounds (1) that the trial court's order terminating alimony was not automatically stayed pursuant to Practice Book § 3065; (2) that the legal effect of a § 3065 stay on orders terminating alimony is so unclear that the defendant's refusal to pay alimony in accordance with the initial divorce decree after July 1, 1981, cannot be deemed contemptuous behavior; and (3) that the trial court should not have ruled upon the contempt motion when a similar motion for failure to pay alimony during June and July of 1981 was pending before another trial court. ²

Regarding the appeal we find that the trial court erred in terminating the plaintiff's alimony. On the cross appeal, we conclude that the order terminating alimony was stayed pursuant to Practice Book § 3065 and the alimony payments made by the defendant into the escrow account are owing to the plaintiff. Nevertheless, we reverse the lower court's adjudication of contempt because it was rendered prematurely.

I

At the hearing on the motion to increase child support and alimony, the plaintiff, a registered nurse, testified on direct examination that since the dissolution she had held several jobs, each of which she had left for reasons relating to the necessity of properly caring for her minor children. She also stated that she was currently receiving unemployment compensation benefits and was seeking part-time employment which would permit her to return home in the afternoon to supervise her children's after school activities, and to have the weekends free to spend with her children. On cross-examination, the defendant elicited from the plaintiff certain information, which for the purposes of appellate review need only be generally summarized. During the two previous summers, the plaintiff had spent nearly every weekend on the boat of a man to whom she was not related. After the first summer, only her youngest son accompanied her on these boat outings, and, then, only on an irregular basis. The plaintiff's companion, at times, spent up to four nights a week at the plaintiff's house. When staying at the plaintiff's house he contributed $45 to $50 weekly toward the purchase of food. In addition, he had also purchased holiday groceries for the plaintiff and her children and had loaned the plaintiff money to paint her house. The plaintiff had also accompanied her companion on several vacations. The plaintiff objected only twice to the line of inquiry resulting in this testimony. These objections were overruled on the grounds that the testimony was relevant to the financial needs of the plaintiff or to the credibility of her claim that her reluctance to secure full-time employment was based on her desire to spend more time with her children.

The trial court terminated the periodic alimony "pursuant to [General Statutes] § 46b-86." The decision to terminate was clearly based on the testimony elicited during the cross-examination of the plaintiff. As articulated in the memorandum of decision, the trial court found "that the plaintiff is co-habiting in her home with a male person who quite patently has more than the average person's financial means .... The plaintiff also has a profession which she chooses not to exercise under the guise of being a good mother. The court sees no reason for the defendant to support the plaintiff who wishes the best of two worlds, the company, entertainment by, and some admitted financial contributions from a co-habiting able male as well as full support from a former spouse."

"Our review of a trial court's decision on a motion for modification of periodic alimony is limited to deciding whether the trial court has abused its discretion. Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981); Koizim v. Koizim, 181 Conn. 492, 497, 435 A.2d 1030 (1980); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979)." Kaplan v. Kaplan, 185 Conn. ---, --- (43 CLJ 3, pp. 3, 5) 440 A.2d 252 (1981) (Kaplan I ). General Statutes § 46b-86 ³ governs motions to modify alimony and support judgments or orders. To the extent modification is not precluded by the initial decree, General Statutes § 46b-86(a) permits a court to continue, set aside or modify any final order for periodic or pendente lite alimony or support "upon a showing of a substantial change in the circumstances of either party." To warrant a modification, the substantial change in circumstances must have occurred subsequent to the entry of the decree and must have been uncontemplated by the parties at the rendition of the initial decree. Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976). General Statutes § 46b-86(b) is the so-called "cohabitation" statute, which was enacted four years after § 46b-86(a) ⁴ 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." H.B. No. 6174, 1977 Sess. (Statement of Purpose). Under § 46b-86(b), "the superior court may, in its discretion and upon notice and hearing ... suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person" and that this arrangement has caused "a change of circumstances" which "alter[s] the financial needs" of the alimony recipient. (Emphasis added.) As we have noted, the provision places the burden of proof on the party moving for such a modification. Kaplan v. Kaplan, supra, --- Conn. --- - ---, 4-5, 440 A.2d 252.

In the present case, the parties concede that no written or oral motion invoking § 46b-86(b) was made to the court by the defendant. ⁵ The plaintiff claims that without written notice that the issue of termination pursuant to § 46b-86(b) was before the court, the trial court was without authority to terminate alimony on that ground. We agree.

By its very terms, General Statutes § 46b-86(b) mandates that when the statute is to be invoked notice must be given to the parties and a hearing held on the claim. Our rules of practice require that every motion directed toward pleading or procedure, unless relating to procedure during the course of a trial, be in writing. Winick v. Winick, 153 Conn. 294, 297, 216 A.2d 185 (1965); New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329-30, 133 A. 99 (1926); Practice Book § 196. The purpose of requiring written motions is not only the orderly administration of justice; see Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); but the fundamental requirement of due process of law. Winick...