Kaplan v. Kaplan

Decision Date02 March 1982
CourtConnecticut Supreme Court
PartiesHarold L. KAPLAN v. Michele E. KAPLAN.

Francis J. Foley, III, Norwich, for appellant (plaintiff).

Lois J. Lawrence, Ledyard, for appellee (defendant).


SPEZIALE, Chief Justice.

This is an appeal by the plaintiff from the judgment of the trial court denying the plaintiff's motion for modification of periodic alimony. The plaintiff claims error in the trial court's failure to order a modification of alimony under the authority of § 46b-86(b) of the General Statutes, the so-called "cohabitation" statute.

We first heard argument on this appeal on June 5, 1981, after which this court remanded the case with direction that the trial court, which had simply denied the plaintiff's motion, provide an articulation of the basis of its decision. 1 Kaplan v. Kaplan, --- Conn. ---, ---, 440 A.2d 252 (43 Conn.L.J., No. 3, pp. 3, 5) (1981). The articulation was filed in this court on September 25, 1981 and we have again heard argument by the parties.

The marriage between the plaintiff, Harold L. Kaplan, and the defendant, Michele E. Kaplan, was dissolved on May 26, 1978. Among other awards, the defendant received periodic alimony in the amount of $200 per week to continue until either her remarriage or the plaintiff's death. On April 17, 1980, the plaintiff filed a motion for modification of alimony under the authority of subsection (b) of General Statutes § 46b-86. 2 This provision states that the Superior Court may, in its discretion and after notice and hearing, modify an alimony award "upon a showing that the party receiving the periodic alimony 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 such a change of circumstances as to alter the financial needs of that party." (Emphasis added.) General Statutes § 46b-86(b). The plaintiff has alleged that the defendant was living with another person under circumstances "tantamount to remarriage" and within the scope of § 46b-86(b).

As we stated in our earlier opinion, Kaplan v. Kaplan, supra, --- Conn. at ---, 440 A.2d 252, 4, § 46b-86(b) "requires the party moving for modification to show that the party receiving alimony is 'living with another person' and that this living arrangement has caused a 'change of circumstances' which 'alter(s) the financial needs' of the party receiving alimony. General Statutes § 46b-86(b). We note that the General Assembly chose the broader language of 'living with another person' rather than 'cohabitation' and that this provision requires only a 'change' of circumstances not a 'substantial change' as required by § 46b-86(a)." We also note that even after the required factual showings the ultimate decision is still entrusted to the discretion of the trial court. General Statutes § 46b-86(b).

Section 46b-86(b) was clearly intended by the General Assembly to apply to the situation alleged by the plaintiff. 3 The articulation of the trial court, however, indicates that the plaintiff failed to prove his allegations. The trial court concluded that "(a)lthough at times the defendant slept in Dr. Doost's bedroom ... and, Dr. Doost would often take meals with the defendant and her children, they maintained completely separate households and were not living together." (Emphasis added.) 4 This factual finding on the threshold issue of whether the defendant "was living with another person" terminates the need for any further inquiry under § 46b-86(b). The plaintiff urges that we hold this factual finding to be "clearly erroneous"; Practice Book § 3060D; but there is nothing in the record which would allow us to do so. 5 See Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). This court, of course, may not retry a case. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. See Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894).

A factual finding may not be rejected on appeal merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the fact-finder. Cf. Gallo v. Gallo, --- Conn. ---, ---, 440 A.2d 782 (42 Conn.L.J., No. 45, pp. 3, 6) (1981). A factual finding may be rejected by this court only if it is "clearly erroneous." Practice Book § 3060D. The record of this case indicates that there was ample evidence to support the trial court's conclusion that the defendant and Doost maintained separate households and were not living together. It cannot be said, therefore, that the finding was as a matter of law unsupported by the record, incorrect, or otherwise mistaken. See Pandolphe's Auto Parts, Inc. v. Manchester, supra, 181 Conn. at 222, 435 A.2d 24. This court may not substitute its own opinion as to the living arrangements of the defendant for the factual finding of the trial court.

Our refusal to overturn the threshold factual finding in this case "does not constitute an abdication of our responsibility for appellate review. To the contrary it evidences a recognition on our part that by constitutional charter we are limited to corrections of errors of law; Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894); and that, therefore, in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence." Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). We conclude that there are no grounds for disturbing the trial court's decision.

There is no error.

In this opinion PETERS and SPONZO, JJ., concurred.

SHEA, Associate Justice (concurring).

I disagree with the conclusion of the majority that nothing in the record would allow us to upset as "clearly erroneous" the factual determination of the trial court that the defendant and her paramour were not living together in the sense intended by § 46b-86(b). The majority opinion fails to mention that both of them testified that they slept together six nights out of seven in his bedroom on the second floor of the two-family house which he owned. The defendant and her children occupied the first floor for which they paid rent, but she had access to his apartment and the doors of both apartments were kept unlocked so that her children could go upstairs if they wished. They frequently had breakfast together and also dinner when he was not working. They had traveled together to Italy, Spain, Portugal, Philadelphia, New Hampshire, and Cape Cod. On some of those trips they took the children. When the defendant was asked how her relationship with Doost differed from a marriage, she answered simply that she supported herself. This response is virtually an admission that, except for financial arrangements, their relationship in every respect was equivalent to a matrimonial one. Not one of these facts was contradicted at the modification hearing. If six out of seven is not enough, I cannot imagine how much more togetherness the majority would demand to meet the statutory criterion of "living with another person." General Statutes § 46b-86(b). In the face of the undisputed facts recited, to uphold a finding that the defendant and her lover were not living together defies reality and effectively converts the statute into a dead letter at the whim of the trial court.

On the other hand, the evidence produced at the hearing was insufficient to establish as a matter of law that the defendant's "living arrangements" had caused such a change of circumstances as to alter her financial needs. One unusual feature of the dissolution decree in this case is that the plaintiff husband agreed not to seek a modification of alimony because of the contemplated future employment of the defendant unless her net earnings exceeded $7500. The word "employment" is inappropriate to characterize the relationship in which the defendant chose to participate and which may have enhanced her financial situation in some degree by virtue of sharing certain expenses, such as housecleaning, food, and travel. Nevertheless, the evidence is far short of establishing the substantial change in the defendant's income which the parties contemplated as warranting a modification of alimony at the time of the judgment of dissolution. I would, therefore, affirm the conclusion of the trial court that no sufficient change in the financial needs of the defendant resulting from her living arrangement had been proved to satisfy that separate statutory requirement. Unlike remarriage, where a change in the financial circumstances of the alimony recipient has not ordinarily been deemed necessary for its termination; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976); Cary v. Cary, 112 Conn. 256, 260-61, 152 A. 302 (1930); "living with another person" as a ground for modifying periodic alimony under § 46b-86(b) is not sufficient unless it has resulted in altering "financial needs." Kaplan v. Kaplan, --- Conn. ---, ---, 440 A.2d 252 (43 Conn.L.J., No. 3, pp. 3, 5 (1981); see McAnerney v. McAnerney, 165 Conn. 277, 285-87, 334 A.2d 437 (1973). Accordingly, I concur in the result reached by the majority.

PARSKEY, Associate Justice (dissenting).

This case cries out for reversal because the trial court's decision is clearly erroneous. Practice Book § 3060D....

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