Milbauer v. Milbauer, (AC 18149)

• Decision Date: 27 July 1999
• Docket Number: (AC 18149)
• Citation: 54 Conn. App. 304,733 A.2d 907
• Court: Connecticut Court of Appeals
• Parties: ELAINE F. MILBAUER v. ALAN J. MILBAUER

54 Conn. App. 304

733 A.2d 907

ELAINE F. MILBAUER v. ALAN J. MILBAUER

(AC 18149)

Appellate Court of Connecticut.

Argued April 28, 1999.

Officially released July 27, 1999.

Foti, Landau and Dupont, Js. Emily J. Moskowitz, with whom, on the brief, was Robert D. Zaslow, for the appellant (plaintiff).

Carol Widing, for the appellee (defendant).

Opinion

FOTI, J.

The plaintiff, Elaine F. Milbauer, appeals from the judgment of the trial court dissolving her marriage to the defendant, Alan J. Milbauer. On appeal, the plaintiff claims that the trial court improperly (1) modified, retroactively, an order of alimony pendente lite, (2) limited her permanent alimony award to a term of ten years, (3) based the duration of her alimony award on her future right to social security benefits,

(4) distributed an asset to her that neither she nor the defendant considered part of the marital estate and

(5) invalidated a mortgage of record. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The parties were married on August 23, 1964, in Bridgeport. Two children were born of the marriage, both of whom have reached the age of majority. At the time of trial, the plaintiff was fifty-five years of age and the defendant was fifty-six years of age.

The plaintiff has taken various courses since graduating from high school, including accounting, statistics and real estate. At the time of the parties' marriage, the plaintiff was employed and continued to work outside the home until she became pregnant with the parties' first child. Thereafter, the plaintiff remained at home with the children while they were very young and then returned to outside employment in 1976. For the past eight years, the plaintiff has worked for the town of Somers as an administrative assistant to the first selectman. During her employment with the town, the plaintiffs salary has increased from $17,000 per year to its present level of $24,000 per year.

During the early years of the marriage, the defendant worked part-time while he completed his college degree in business administration and marketing. Thereafter, in the mid-1970s, he became a manufacturer's representative in the furniture sales business. In April, 1994, the defendant was informed of a change in his sales area and his commission arrangement, which removed certain profitable geographic areas from his territory. While the territory the defendant covers has been enlarged, he has lost large retail furniture stores as accounts and his commission for dealing with certain remaining accounts has been reduced. As a result, since 1994, the defendant's income has decreased. The defendant's taxable income for the years 1994, 1995 and 1996 was $43,883, $32,184 and $30,847, respectively.

On September 13, 1993, the plaintiff filed an action seeking a dissolution of her marriage to the defendant. On November 15, 1993, the parties entered into a pendente lite stipulation, which was then made an order of the court, that provided, inter alia, that the defendant would pay the plaintiff alimony pendente lite in the amount of $500 per week. On June 20, 1994, the defendant filed a motion to modify alimony pendente lite. In it, the defendant claimed that there had been a substantial change in his circumstances that prevented him from continuing to pay the agreed upon sum of $500.

The defendant, however, did not pursue his motion when filed, or at subsequent dates when it was reclaimed. Instead, the defendant unilaterally reduced the amount of alimony pendente lite he was paying to the plaintiff. In 1994, the defendant failed to pay any alimony to the plaintiff. In 1995, the defendant paid the plaintiff $9000. In 1996, the defendant paid the plaintiff $4400. Finally, in 1997, the defendant paid the plaintiff $1275, through April 27 of that year. All of those amounts were in lieu of the $26,000 per year the defendant was required to pay.

On August 29, 1997, the trial court rendered judgment dissolving the parties' marriage, finding that it had broken down irretrievably. In so doing, the trial court found that the plaintiff had been unfaithful to the defendant and that this unfaithfulness contributed to the ultimate failure of the marriage. In addition, the trial court ruled on the defendant's motion to modify and made findings with respect to issues of permanent alimony and the disposition of marital assets. Additional facts will be set forth where relevant to the issues on appeal.

I

The plaintiff first claims that the trial court improperly modified, retroactively, an order of alimony pendente lite. We disagree.

In its memorandum of decision, the trial court ruled on the defendant's motion to modify alimony pendente lite. In so doing, the trial court found that a substantial change in the defendant's circumstances had occurred since the date of the original pendente lite order "when the defendant's business arrangements were altered to decrease his more profitable business accounts while not lessening his travel requirements." While the trial court noted that it did "not favor self help," a reference to the defendant's unilateral reduction in his alimony payments, it nonetheless found, "as credible, the defendant's claim that he did not pursue his motion to modify in a timely manner because he was engaged in negotiations with [the plaintiff] and because he believed that the plaintiff had decided to accept his lower payments in satisfaction of the court order."

The trial court then granted the defendant's motion to modify and ruled that effective June 20, 1994, the date of the defendant's original motion to modify, the defendant was ordered to pay the plaintiff, as alimony pendente lite, the sum of $125 per week, less credits for the amounts the defendant had paid. On appeal, the plaintiff does not argue that the change in the defendant's circumstances did not justify a modification of the alimony pendente lite. Instead, the plaintiff claims that a "retroactive" modification of an alimony pendente lite award is not authorized by either case law, or by statute, and that the trial court's order was, therefore, improper.

We note initially that while the trial court chose to include its modification of the alimony pendente lite award in its final memorandum of decision, modification at that time was not, in and of itself, improper. We recognize that "[p]endente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action, or litigation. Ballentine's Law Dictionary (3d Ed.) 1969. Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time. Connolly v. Connolly, 191 Conn. 468, 479, 464 A.2d 837 (1983). [Generally] [p]endente lite orders do not survive the entry or rendition of judgment. Tobey v. Tobey, [165 Conn. 742, 745, 345 A.2d 21 (1974)

]; LaFaci-Zitzkat v. Zitzkat, 19 Conn. App. 805, 806, 562 A.2d 527 (1989)." (Emphasis added; internal quotation marks omitted.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990).

It is clear from an examination of the record in this case, however, that two separate hearings were held and that those hearings were conducted by the same judge sitting as two separate courts. The trial court initially took evidence regarding the defendant's motion to modify the pendente lite award and then moved on to the final hearing concerning the ultimate dissolution of the parties' marriage.¹ So, despite the fact that the trial court included, in the text of its final decision, the modification of the pendente lite award, it is clear that the trial court in this case sat both as a pendente lite court and as a final court of dissolution and was not precluded, therefore, from entering orders as to both the alimony pendente lite award and the final dissolution. We now turn to the merits of the plaintiffs claim.

Under General Statutes § 46b-86 (a), "[u]nless and to the extent that the decree precludes modification, any... order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party...." Prior to 1990, the long-standing rule of law was that a court's order modifying alimony could not be retroactive. See Vickery v. Vickery, 25 Conn. App. 555, 559, 595 A.2d 905, cert. denied, 220 Conn. 919, 597 A.2d 344 (1991), and cases cited therein. In 1990, however, the Connecticut legislature passed an amendment to § 46b-86 (a) that provided, inter alia, that "[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50." (Emphasis added.) Public Acts 1990, No. 90-188, § 1. This amendment permitted the retroactive modification of alimony awards back to the date of the motion to modify.² The plaintiff argues that because there is no specific mention in § 46b-86 (a) of the court's authority to modify retroactively pendente lite awards, and because prior to the 1990 amendment courts uniformly interpreted § 46b-86 (a) as precluding all retroactive modifications, the authority to modify retroactively pendente lite awards simply does not exist. We do not agree, however, that the above amendment either removed from, or conferred upon, pendente lite courts the inherent authority to modify retroactively alimony pendente lite orders.

In support of her argument, the plaintiff cites Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977); Elliott v. Elliott, 14 Conn. App. 541, 544, 541 A.2d 905 (1988); ...