CORRARINO v. CORRARINO
| Decision Date | 11 May 2010 |
| Docket Number | No. 30546.,30546. |
| Court | Connecticut Court of Appeals |
| Parties | Joseph M. CORRARINO v. Maryann M. CORRARINO. |
Geraldine Ficarra, Trumull, with whom were Michael Ruben Peck, Lisa A. Knopf, Trumbull, and, on the brief, Megan Dianne Monahan, certified legal intern, for the appellant (plaintiff).
Deborah L. Grover, Danbury, for the appellee (defendant).
FLYNN, C.J., and ALVORD and FOTI, Js.*
I this postjudgment marital dissolution matter, the plaintiff, Joseph M. Corrarino, appeals from the trial court's denial of his postjudgment motion for modification of a support award that sought a decrease in the amount of alimony to be paid to the defendant, Maryann M. Corrarino, and the court's granting of the defendant's postjudgment motion for modification that sought an increase in alimony.1 On appeal, the plaintiff claims that the court abused its discretion in failing to consider the financial contributions of Joseph DeBroske, the defendant's boyfriend, as part of her gross income regardless of a finding of cohabitation. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. In 2002, the plaintiff sought a judgment of dissolution. In rendering the dissolution judgment on September 3, 2003, the court incorporated the parties' separation agreement (agreement) into its judgment. The agreement included a provision pertaining to alimony. That provision provided, in relevant part, that the plaintiff would pay to the defendant as alimony $2500 per month. It further provided that the court "may, in its discretion, modify the alimony and suspend, reduce or terminate the payment of periodic alimony upon a showing that the defendant 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 a change of circumstances as to alter the defendant's financial needs." The agreement also provided that "the alimony which has been agreed upon is predicated upon the plaintiff's salary structure of a current base gross salary from employment of $140,000.00 and his bonus for his performance paid once per year."
On June 2, 2008, the plaintiff filed a motion for modification in which he sought a decrease in the amount of alimony to be paid. The basis for the modification alleged in the motion was that the defendant was "residing with another person under circumstances which should result in a modification of the alimony order." On July 1, 2008, the defendant filed a motion for modification in which she sought an increase in the amount of alimony paid to her based on a substantial change in circumstances. See footnote 1 of this opinion. After hearing testimony and taking evidence on both motions over the course of three days, both counsel presented oral argument on each motion.2 The court issued a memorandum of decision on November 4, 2008. In its decision, the court denied the plaintiff's motion for modification and granted the defendant's motion for modification. In addressing the plaintiff's motion, the court stated that the threshold issue to be determined was whether the plaintiff had proven that the defendant was cohabiting with another person. The court found that DeBroske slept over at the defendant's residence on weekends and "`once in a blue moon'" on weekdays. The court, however, found that the plaintiff had failed to carry his burden of proving cohabitation because that arrangement was not sufficient to show that the defendant was cohabiting. The court further found that the plaintiff had failed to prove that the sleeping arrangement between the defendant and DeBroske had altered the defendant's financial needs and, therefore, denied the plaintiff's motion. The plaintiff moved for an articulation of the court's ruling, which the court subsequently denied.
On appeal, the plaintiff argues that because "regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise, are properly considered in determining alimony awards to the extent that they increase the amount of income available for support purposes"; Unkelbach v. McNary, 244 Conn. 350, 360-61, 710 A.2d 717 (1998); the court erred in failing to consider as part of the defendant's gross income financial contributions she received from DeBroske regardless of a finding of cohabitation. Therefore, the plaintiff asserts, the court improperly denied his motion for modification. On the basis of our review of the record, we conclude that the plaintiff has raised this argument for the first time on appeal and, therefore, decline to afford it review.
The following additional facts and procedural history provide the necessary backdrop for our resolution of the plaintiff's claim. The plaintiff filed his motion for modification using form JD-FM-174 Rev. 8-07. On it, he alleged that the defendant was "residing with another person under circumstances which should result in a modification of the alimony order." Furthermore, that form indicated that the modification he sought was the termination, reduction, suspension or modification of his alimony obligation to the defendant. The record is bereft of any memorandum of law in support of his motion, either accompanying it or subsequently filed with the court. Also, as noted, the parties, by agreement, did not file any posttrial briefs in this matter. See footnote 2 of this opinion. Our thorough review of the transcripts reveals that the issue of the alleged financial contributions of DeBroske to the defendant was squarely before the court. The issue, however, of whether the plaintiff's alimony should be modified regardless of any finding of cohabitation simply was not.
At the outset of the hearing, the court stated, without objection: At the commencement of the second day of the hearing on the plaintiff's motion, the court stated, again without objection: "When we were last here on August 18, 2008, we had commenced the plaintiff's motion regarding alimony and cohabitation." Later that day, during direct examination of the plaintiff by his counsel the following exchange took place:
Later that day, the court asked the plaintiff's counsel, "does the plaintiff rest on the cohabitation motion?" to which she replied, "yes." After the defendant rested on that motion, the court asked the parties whether they preferred to have "final argument then on the cohabitation motion, and then final argument when we complete the defendant's modification motion" or have final arguments for each motion after the close of evidence in the defendant's motion? On October 16, 2008, the court heard closing argument on each motion. The plaintiff's counsel commenced her closing argument by stating: "As Your Honor is well aware, the law is perfectly clear; the court may, in its discretion, modify an alimony order upon a showing that the party receiving the alimony is living with another person, under circumstances, which the court believes should result in a modification or a suspension or a reduction or a termination in alimony because the living arrangements cause a change in circumstances so as to alter the financial needs of the party receiving the alimony." The plaintiff's counsel went on to argue that the court should not credit DeBroske's testimony. Rather, she urged the court to conclude from the evidence before it that DeBroske "was paying the defendant money, the defendant benefited from that money, the defendant was able to live well from that money and DeBroske and the defendant were living together." Not at any time during closing argument on the plaintiff's motion did his counsel argue that regardless of any cohabitation finding, the court should consider the alleged monetary gifts given to the defendant by DeBroske in deciding his motion to modify alimony.
In its memorandum of decision, the court, at the outset of addressing the plaintiff's motion, stated: "In this motion, the plaintiff seeks to reduce the amount of alimony based on a claim that the defendant is residing with another person under circumstances that should result in a modification of the alimony order." The court went on to cite General Statutes § 46b86 (b), as well as case law that sets out the two-pronged test utilized in determining whether the payment of alimony can be modified or terminated.3 The court then determined that the plaintiff failed to prove that the defendant cohabited with another person. Moreover, the court went on to conclude that the plaintiff failed to prove that the defendant's relationship with DeBroske had altered her financial needs such that a modification in alimony payments should result.4 The plaintiff filed a motion for articulation, requesting, among other things, that the court articulate whether it considered DeBroske's financial contributions regardless of cohabitation. The court denied the motion for articulation without comment.5
The plaintiff asserts that the court, in addressing the plaintiff's...
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