DeMaria v. DeMaria

• Decision Date: 16 February 1999
• Docket Number: (SC 15912)
• Citation: 724 A.2d 1088,247 Conn. 715
• Court: Connecticut Supreme Court
• Parties: EILEEN DEMARIA v. JOSEPH L. DEMARIA

247 Conn. 715

724 A.2d 1088

EILEEN DEMARIA v. JOSEPH L. DEMARIA

(SC 15912)

Supreme Court of Connecticut.

Argued October 29, 1998.

Officially released February 16, 1999.

Callahan, C. J., and Katz, Palmer, McDonald and Peters, Js. David P. Ball, for the appellant (plaintiff).

Raymond C. Lubus, for the appellee (defendant).

Opinion

KATZ, J.

The sole issue in this certified appeal is whether the trial court improperly denied a motion to terminate alimony based upon its factual finding that the financial impact component of General Statutes § 46b-86 (b)¹ had not been satisfied. The motion had been based upon a clause in the dissolution judgment that provided for the termination of alimony upon the recipient's "cohabitation" with an unrelated male but did not expressly require consideration of the financial impact of such a living arrangement. We conclude that the trial court properly applied § 46b-86 (b) to determine whether the plaintiff, Eileen DeMaria, had been "cohabiting" with an unrelated male pursuant to the dissolution judgment.

The following undisputed facts were set forth by the Appellate Court. "When the marriage of the parties was terminated on June 4, 1992, the judgment of dissolution included a provision stating that `the defendant [Joseph L. DeMaria] shall pay to the plaintiff the sum of $85 per week as and for alimony, which alimony shall terminate upon ... the cohabitation by the plaintiff with an unrelated male ....'

"On January 29, 1997, the plaintiff filed a motion for contempt on the ground that the defendant had voluntarily and intentionally stopped paying alimony.² This was followed, on January 31, 1997, by the defendant's motion to terminate the alimony payments on the ground that the plaintiff had been cohabiting with a male since April, 1996.³ Following an evidentiary hearing, the trial court found that the plaintiff was living with another person, but also found that there was no evidence that this fact [had] altered her financial needs. As a result, the trial court denied the defendant's motion to terminate alimony." DeMaria v. DeMaria, 47 Conn. App. 729, 730, 707 A.2d 741 (1998).⁴

Thereafter, the defendant appealed the judgment of the trial court to the Appellate Court. In his appeal to the Appellate Court, the defendant argued that, in his motion to terminate alimony, he had been seeking relief pursuant to the judgment of dissolution, which in his view did not require a finding that the plaintiffs cohabitation had altered her financial needs. The defendant claimed, therefore, that the trial court should have terminated the alimony based solely upon its finding that the plaintiff had been living with an unrelated male.

In response, the plaintiff argued that § 46b-86 (b) expressly provides that to terminate alimony, the cohabitation must "cause such a change of circumstances as to alter the financial needs of [the cohabiting] party." Therefore, according to the plaintiff, because the trial court found that her financial needs had not been altered, it properly denied the defendant's motion to terminate alimony. The Appellate Court agreed with the defendant, concluding that because he had sought relief from alimony pursuant to a clause in the judgment that did not expressly include consideration of the financial impact, the trial court, having found that the plaintiff had been living with an unrelated male, should have terminated the defendant's alimony obligation. DeMaria v. DeMaria, supra, 47 Conn. App. 730. The plaintiff petitioned this court for certification to appeal from the judgment of the Appellate Court, which we granted, limited to the following issue: "Under the circumstances of this case, did the Appellate Court properly render a judgment terminating alimony to a cohabiting spouse where there was no showing that the cohabiting spouse's financial needs had changed?"⁵DeMaria v. DeMaria, 244 Conn. 925, 714 A.2d 9 (1998).

The Appellate Court essentially treated the word "cohabit" as synonymous with "living together," and concluded that in view of its finding that the plaintiff was living with an unrelated male, the trial court should have terminated her alimony. DeMaria v. DeMaria, supra, 47 Conn. App. 734. We conclude, in accordance with the definition contained in § 46b-86 (b), that the trial court properly construed the term "cohabitation" as used in the dissolution judgment to include the financial impact of the living arrangement on the cohabiting spouse, and accordingly, we reverse the judgment of the Appellate Court.

The term cohabit was not defined in the dissolution judgment. Therefore, in deciding the defendant's motion to terminate alimony, the trial court was left to construe the word. Black's Law Dictionary (6th Ed. 1990) defines cohabitation as "[t]o live together as man and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations...." See Boyd v. Boyd, 228 Cal. App. 2d 374, 381, 39 Cal. Rptr. 400 (1964). This court has defined cohabitation to be "a dwelling together of man and woman in the same place in the manner of husband and wife." Wolk v. Wolk, 191 Conn. 328, 332, 464 A.2d 780 (1983). As is readily apparent, the word is not inflexible nor is it one of strict or narrow meaning.

Section 46b-86 (b) does not use the word cohabitation. The legislature instead "chose the broader language of `living with another person' rather than `cohabitation'...." Kaplan v. Kaplan, 185 Conn. 42, 45, 440 A.2d 252 (1981), on appeal after remand, 186 Conn. 387, 441 A.2d 629 (1982). Because, however, "living with another" person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b-81, the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony. Although the definition of cohabitation as set forth in the dissolution judgment is not controlled by § 46b-86 (b), statutes are a useful source of policy for common-law adjudication, particularly when there is a close relationship between the statutory and common-law subject matters. Fahy v. Fahy, 227 Conn. 505, 514-15, 630 A.2d 1328 (1993) (use of Public Acts 1990, No. 90-213, § 46, which amended General Statutes [Rev. to 1989] § 46b-86 [a], to conclude, as matter of common law, that elimination of contemplation requirement applies to alimony as well as child support orders); see New England Savings Bank v. Lopez, 227 Conn. 270, 281-82, 630 A.2d 1010 (1993) (Uniform Commercial Code used as statutory source for transactions involving real property); Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983) (same); Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983) (same); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980) (same); see also Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 453-54, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (statute governing rights of successor corporation following merger used as precedent for determining rights of partnership as successor entity following merger). "Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time.... More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development." E. Peters, "Common Law Judging in a Statutory World: An Address," 43 U. Pitt. L. Rev. 995, 998 (1982); see generally J. Landis, "Statutes and the Sources of Law," Harvard Legal Essays (R. Pound ed. 1934) p. 213; G. Calabresi, A Common Law for the Age of Statutes (1982).

We consider this case to be a similarly appropriate instance to look to our statutes as a useful source of common-law policy and, therefore, consider the trial court's reliance upon § 46b-86 (b) as a definitional source to have been a proper exercise of its authority. Section 46b-86 (b) was an express grant of authority to modify or terminate alimony "upon [a] showing that the receiving party is living with another person and that such living arrangements result in a change of circumstances that alter the financial needs of such party." 20 S. Proc., Pt. 7, 1977 Sess., p. 2793, remarks of Senator Salvatore DePiano. In the absence of a compelling reason to ignore the legislative consideration of financial impact and thus truncate the analysis after simply having found a change in living arrangements, we conclude that as a matter of common-law adjudication, the trial court was guided properly by the statute.

We recognize the statement by this court that a motion to terminate alimony based upon § 46b-86 (b) is a separate and independent statutory basis for modification and is a claim that must be raised, if at all, in a written motion. Connolly v. Connolly, 191 Conn. 468, 478, 464 A.2d 837 (1983). That statement, however, merely recognizes the limitations of § 46b-86 on a court's authority to modify a prior distribution of property and determination of alimony made pursuant to § 46b-81. In recognition of the sensitive nature of the allegations needed to satisfy § 46b-86 (b), and because such considerations are reflected in its notice and hearing requirements, the court in Connolly concluded that an attempt by one party to increase periodic alimony pursuant to § 46b-86 (a) does not extend constructive notice to subsection (b) of the statute. Id. Nothing in Connolly, or in any other case that we have examined, precludes an interpretation of cohabitation that is consistent...