McGowan v. McGowan

• Decision Date: 26 February 1980
• Citation: 179 Conn. 685,427 A.2d 852
• Court: Connecticut Supreme Court
• Parties: Michael R. McGOWAN v. Marilyn E. McGOWAN.

Page 852

427 A.2d 852

179 Conn. 685

Michael R. McGOWAN v. Marilyn E. McGOWAN.

Supreme Court of Connecticut.

Argued Nov. 15, 1979.

Decided Feb. 26, 1980.

Stuart M. Ketaineck, New Haven, with whom, on brief, was Alan E. Silver, New Haven, for appellant (defendant).

Robert K. Walsh, New Haven, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, SPEZIALE and HEALEY, JJ.

LOISELLE, Associate Justice.

The defendant appeals from the modification of a judgment of dissolution awarding alimony and child support. The judgment was rendered March 14, 1978. The decree was modified June 13, 1978.

In the March judgment, the court dissolved the marriage and ordered the plaintiff to pay $30 per week support for each of three minor children and $20 per week alimony. The court awarded the defendant the parties' jointly owned home in West Haven, subject to an equitable lien of $5000 in favor of the plaintiff to be paid by the defendant within five years. The household furnishings and counsel fees of $250 were also awarded to the defendant.

The plaintiff's affidavit, filed in March 1978, showed that he had $180.39 per week net income and $188.84 weekly expenses. His total assets were valued at $11,963.71 and his total liabilities at $11,854.96.

At the time of the hearing on the subsequent motion for modification, the plaintiff's affidavit, filed in June 1978, showed that his weekly net income had not changed but that his expenses had increased to $284.19 per week. These expenses included the $110 per week which he had been ordered to pay for alimony and child support. His total assets were valued at $100 and his total liabilities at $8652.70. The reduction in assets was largely the result of the court's order transferring his equity in the family home to his former wife. The court modified the support order to $20 per week for each of the three minor children and $10 per week alimony for the defendant wife.

An increase in the plaintiff's expenses due to child support and alimony payments would not ordinarily constitute a substantial change in circumstances worthy of a modification of the original decree, because the effect of these payments is contemplated when the decree is entered. Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see Clark, Domestic Relations § 14.9, p. 456; 2A Nelson, Divorce & Annulment (2d Ed.) § 17.07. In this case, however, it is apparent that the trial court did not give credence to the plaintiff's original financial affidavit or that the evidence indicated some other source of revenue, or both, because the plaintiff's affidavit standing alone could not have supported the original award, even if his expenses could be pared to the bare essentials of existence and his obligations on past debts eliminated.

In its finding on the motion for modification held in June 1978, the court found that the plaintiff had made a support and alimony payment each week since the date of the judgment, but was unable to pay the full amount due every week. One third of the finding is concerned with the financial assistance given the plaintiff by his sister. The court found that the plaintiff received money from his sister to pay his bills including the alimony payments; that he owed his sister $1630 which she had loaned him to pay his bills; that he would have been unable to pay the mortgage during the year that he did not live in the family home without the assistance of his sister; that she continued to loan him money to pay his bills and alimony until six or seven weeks before the hearing on modification on June 13, 1978; that his sister told him that she could no longer loan him any money for bills and alimony; and that he no longer had his sister as a source to draw upon because she had no more money to give him.

The court found that there was "no way" the plaintiff could make payments of alimony and child support of $110 per week. This finding is more in the nature of a conclusion and will be considered as such. The ultimate conclusion of the court was that there had been a substantial change for the worse in the plaintiff's financial condition and that these changes supported a modification.

" 'Inability to pay' does not automatically entitle a party to a decrease of an alimony order. It must be excusable and not brought about by the defendant's own fault." Sanchione v. Sanchione, supra, 407, 378 A.2d at 527. It is evident from the affidavits and the finding that from the date of the decree the plaintiff would have had difficulty meeting his alimony and support payments. His sister had been the source of the additional sums to supplement his income, and he had come to rely on her financial assistance both before and after the dissolution. When his sister's help was no longer available, it became clear that he could not make the payments ordered.

The court was not in error in concluding that the inability of the plaintiff's sister to help him, which inability arose subsequent to the judgment, constituted a change in circumstances which was substantial. Both before and after the dissolution, the plaintiff's financial condition was critical. The loss of supplemental financial assistance in such a situation can be found to be a substantial change. The award was within the power of the court to modify as authorized by General Statutes § 46-54, now § 46b-86.

The plaintiff's motion for modification was filed less than three months after the dissolution. This raises the issue of whether the motion was an improper substitute for an appeal or an attempt to "judge shop." The court's finding indicates that in this instance, however, the plaintiff's loss of his sister's financial support after the dissolution decree constituted a critical change in the plaintiff's financial condition. This justified the motion as made.

There is no error.

In this opinion BOGDANSKI and HEALEY, JJ., concurred.

COTTER, Chief Justice (dissenting).

The propriety of the order of modification should be decisive of the merits in this appeal. It is well-established and has been recently reiterated by this court that "(a) modification of an order for the payment of alimony or support is permitted only where there has been a showing that there has been a substantial change in the circumstances of either party and that these changed circumstances requiring modification were not contemplated by the parties at the time of the entry of the original decree and have arisen subsequent to the entry of that decree." Friedly v. Friedly, 174 Conn. 279, 280, 386 A.2d 236, 237. General Statutes § 46b-86; see also Fricke v. Fricke, 174 Conn. 602, 392 A.2d 473; Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172; Biglione v. Biglione, 171 Conn. 213, 215, 368 A.2d 202; 2A Nelson, Divorce & Annulment (2d Ed.) § 17.07. Since the plaintiff cannot be deemed to have made the requisite showings under the tests just noted, and consequently the support order should not have been modified, I must dissent.

SPEZIALE, Associate Justice (dissenting).

Regrettably, the majority has put its imprimatur on judge-shopping. Also, in finding a substantial change in circumstances on the facts of this case, the majority has opened the floodgates to frivolous motions for modification.

When the marriage of the plaintiff, Michael McGowan, and the defendant, Marilyn McGowan, was dissolved on March 14, 1978, the trial court (Hon. James P. Doherty, state referee) ordered, inter alia, the plaintiff to pay to the defendant toward the support of the children $30 per week for each of three minor children and $20 per...