Spencer v. Spencer

• Citation: 173 A.3d 1,177 Conn.App. 504
• Decision Date: 31 October 2017
• Docket Number: AC 38050
• Court: Connecticut Court of Appeals
• Parties: Brenna M. SPENCER v. Robert B. SPENCER

177 Conn.App. 504

173 A.3d 1

Brenna M. SPENCER

v.Robert B. SPENCER

AC 38050

Appellate Court of Connecticut.

Argued March 13, 2017

Officially released October 31, 2017

Norman A. Roberts II, with whom, on the brief, was Tara C. Dugo, for the appellant (plaintiff).

James H. Lee, for the appellee (defendant).

DiPentima, C.J., and Mullins and Harper, Js.

MULLINS, J.

The plaintiff, Brenna M. Spencer, appeals from the judgment of the trial court denying her motions for contempt and granting the motion for modification and termination of alimony filed by the defendant, Robert B. Spencer. On appeal, the plaintiff claims that the trial court erred in (1) terminating alimony on the basis of her cohabitation, (2) modifying alimony on the basis of a substantial change in the defendant's financial circumstances, and (3) denying her motion for contempt.¹ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The court rendered a judgment of marital dissolution in accordance with the parties' agreement on April 7, 2011 (dissolution judgment). Article 3.1 of the dissolution judgment provides: "Commencing and effective May 1, 2011 through and including the payment due on April 1, 2017, the [defendant], during his lifetime, shall pay alimony to the [plaintiff], until her death, remarriage, civil union, cohabitation or April 1, 2017, whichever shall first occur, the sum of Five Thousand Dollars ($5,000.00) per month, which shall be paid one-half each on the first and fifteenth of each month."

Within a few months after the dissolution judgment, the defendant fell behind on his semimonthly alimony payments, prompting both parties to file motions concerning the defendant's alimony obligation. On her part, the plaintiff filed: (1) an August 11, 2011 pro se motion for contempt alleging that the defendant owed one semimonthly alimony payment of $2500, and (2) an October 26, 2011 motion for contempt alleging that the defendant had failed to make an unspecified number of alimony payments. The plaintiff's August 11, 2011 motion never was heard, and her October 26, 2011 motion was not heard until January 24, 2013. It appears that the court's inability to hear the former, as well as its delay in ruling on the latter, was caused by the parties' preoccupation with various discovery disputes. At around the same time that the plaintiff filed her two motions for contempt, the defendant filed a motion to modify alimony. The defendant subsequently withdrew that motion at some point before January 24, 2013.

When the plaintiff's October 26, 2011 motion for contempt was heard by the court on January 24, 2013, the parties entered into a stipulated agreement (January, 2013 stipulation) specifying that the defendant had an alimony arrearage of $22,000. Pursuant to the January, 2013 stipulation, the defendant agreed, inter alia, to (1) make an immediate payment of $2250 to the plaintiff, (2) pay the plaintiff $750 per month toward the arrearage, and (3) continue to make monthly alimony payments of $5000 pursuant to the dissolution judgment. The court accepted the stipulated agreement and rendered judgment accordingly.

Soon after the January, 2013 stipulation, the defendant again fell behind on alimony payments and the stipulated arrearage. On May 14, 2013, the plaintiff filed a motion for contempt, alleging the defendant had failed to make several alimony payments and that his alimony arrearage totaled $27,250. Although the motion was continued by agreement, the record does not disclose whether the court ever heard the plaintiff's May 14, 2013 motion. On April 29, 2014, the plaintiff filed another motion for contempt, alleging that the defendant had failed to make several more alimony payments and that his alimony arrearage totaled $70,000. It is unclear from the record if the April 29, 2014 motion was continued, or if it ever was heard by the court. On September 12, 2014, the plaintiff filed another motion for contempt, alleging that the defendant had failed to make several more alimony payments and that his alimony arrearage totaled $91,700. It is unclear from the record if this motion was continued, or if it ever was heard by the court. On November 13, 2014, the plaintiff filed motions for contempt alleging that the defendant's alimony arrearage exceeded $94,000. The plaintiff's November 13, 2014 motions eventually were heard on January 21, 2015.

Like the plaintiff, the defendant, subsequent to the January, 2013 stipulation, filed additional motions concerning his alimony obligation. On July 30, 2013, the defendant filed a motion to modify alimony on the ground that "a substantial change in the circumstances in [his] business and how [he] is compensated ... [caused] a decrease in [his] income." In a later filing called, "Defendant's Proposed Orders and Claims for Relief," the defendant clarified that he was requesting that alimony be reduced "to $0 per week" for the period between August 22, 2013 and September 30, 2013. The defendant subsequently amended² his July 30, 2013 motion to modify so that it also sought termination of alimony effective October 1, 2013. Specifically, he sought termination on the ground that the plaintiff began cohabitating with her boyfriend on October 1, 2013.

On January 21, 2015, the court held a consolidated hearing on the plaintiff's November 13, 2014 motions for contempt and the defendant's July 30, 2013 amended motion for modification and termination of alimony. Following that proceeding, the court granted the defendant's amended motion for modification and termination of alimony and denied the plaintiff's motions for contempt. With respect to its granting of the defendant's motion, the court terminated and modified the defendant's alimony obligation as follows. First, it terminated alimony effective October 1, 2013, concluding that the plaintiff began cohabitating with her boyfriend on that date. Second, having terminated alimony, the court then determined that it could modify alimony only for the period between August 22, 2013 and September 30, 2013, the period for which the defendant expressly sought a modification. Third, it modified alimony only for the month of September, 2013, reducing that month's obligation from $5000 to $4000. Fourth, it found that the defendant's total arrearage was $31,550 and ordered the defendant to pay that arrearage in monthly installments of $1500. This appeal followed. Additional facts will be set forth as necessary.

ITERMINATION OF ALIMONY

The plaintiff's first claim is that the trial court improperly terminated alimony on the ground that she began cohabitating with her boyfriend on October 1, 2013. This claim consists of two challenges to the court's termination of alimony, and we address each separately.

A

In her first challenge to the court's termination of alimony, the plaintiff argues that, under the parties' dissolution judgment, the plaintiff's cohabitation would terminate alimony only if it had "a romantic or sexual component ...." Because the defendant did not present any evidence that her cohabitation had "a romantic or sexual component," the plaintiff contends, the court erred in terminating alimony on the ground of cohabitation. We disagree.

The following additional facts and procedural history are relevant to our resolution of the plaintiff's first challenge to the court's termination of alimony. As explained previously, the dissolution judgment obligated the defendant to pay the plaintiff alimony "until her death, remarriage, civil union, cohabitation or April 1, 2017, whichever shall first occur ...." (Emphasis added.) At the hearing, the defendant called the plaintiff, who testified that she lived alone on the second floor of a two-family house from October 1, 2012 to September 30, 2013. The plaintiff paid $950 per month to rent the second floor of that house. On October 1, 2013, the plaintiff began residing with her "boyfriend" in a rented single-family house. Regarding her living arrangement with her boyfriend, the plaintiff testified that they share equally the cost of rent and utilities. Pursuant to that cost sharing arrangement, the plaintiff pays only $375 per month in rent.

The court heard argument from the parties regarding whether it should terminate alimony on the basis of cohabitation. A fair reading of the transcript reveals that, in the course of argument, the plaintiff's counsel suggested that the court should apply General Statutes § 46b–86 (b).³ Specifically, the plaintiff's counsel stated:

"[M]y recollection of the [dissolution judgment] is that it referenced [ § 46b–86 (b) ], and whenever cohabitation references the statute, our case law [provides] that the court has the authorities of the statute.... [Even if the dissolution judgment] doesn't specifically reference the statute ... I don't think it changes my argument because I think that absent the definition[of cohabitation in the dissolution judgment] ... the case law says that the court is to use the definition as contained in the statute...." (Emphasis added.) The plaintiff's counsel also argued that a finding of cohabitation under § 46b–86 (b) does not require the court to terminate alimony. Rather, "the statute says that the court has the authority not just to terminate [alimony] but to exercise its discretion to modify, suspend, or terminate as the court deems appropriate."

Following oral argument on the motions, in its corrected memorandum of decision, the court terminated alimony on the ground of cohabitation. Specifically, the court based its termination on two findings: (1) "[t]he plaintiff has admitted that she began cohabitating with her boyfriend on or about October 1, 2013," and (2) "as a result of that cohabitation and the contribution[s] of [her boyfriend] to the plaintiff's household expenses, the plaintiff's financial needs have been altered."

Additionally, in responding to the plaintiff's argument that § 46b–86 (b) permitted the court to...