Viglione v. Viglione
| Decision Date | 15 June 1976 |
| Court | Connecticut Supreme Court |
| Parties | Antoinette G. VIGLIONE v. Stephen J. VIGLIONE. |
Charles G. Albom, New Haven, for appellant (defendant).
William M. Mack, New Haven, for appellee (plaintiff).
Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.
A judgment dated February 27, 1973, granted the plaintiff wife a divorce from the defendant husband, awarded her custody of their three minor children, and ordered the defendant to pay the plaintiff $5000 annually for three years plus $115 per week as alimony, and $35 per week for the support of each minor child. The decree also required the defendant to transfer his title to the family residence in Woodbridge to the plaintiff, to pay the mortgage installments and taxes on that residence, and to furnish the plaintiff with copies of his tax returns annually.
In March, 1975, the plaintiff remarried, and in April, 1975, the defendant moved that the decree of February 27, 1973, be modified in accordance with that change in circumstances. He sought termination of the obligations to pay periodic alimony and the mortgage and taxes on the Woodbridge residence. He also sought termination of the order to furnish the plaintiff with copies of his tax returns. The trial court concluded that the periodic alimony should terminate, that the order for the payment of the mortgage installments was not affected by the remarriage since it was in the nature of lump-sum alimony, and that the obligations to pay real estate taxes and to furnish tax returns should continue because they are related to the defendant's duty to support the children.
The defendant took the present appeal from the court's order, assigning error in the finding, in the overruling of his claims of law, and in the conclusions reached. Thereafter, upon motion, the plaintiff was granted an allowance of $1500 to defend this appeal, to which ruling the defendant duly assigned error.
We first consider the defendant's claim that the court erred in refusing to modify that part of the order requiring him to pay the mortgage installments on the Woodbridge residence. The defendant contends that that order was for periodic alimony and should have been terminated upon the plaintiff's remarriage.
Under the provisions of § 46-21 of the General Statutes (repealed, 1973 Public Acts, No. 73-373, § 43), in effect as the time of the original judgment, alimony could take the form of an assignment of a part of a husband's estate, an award of periodic payments from income, or both. See e.g., Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 438, 162 A.2d 182. Periodic alimony may be modified by the court upon a showing of a substantial change in the circumstances of either party, and, except in the rarest of situations, the remarriage of a wife will furnish the basis for vacating such an award. General Statutes § 46-54; Cary v. Cary, 112 Conn. 256, 260-61, 152 A. 302. Alimony consisting of a specific portion of an estate or of a specific sum of money, however, is a final judgment which the court cannot modify even should there be a change of circumstances. Harrison v. Union & New Haven Trust Co., supra; Cary v. Cary, supra, 259-60; see General Statutes § 46-54; see also General Statutes § 46-21 (repealed, 1973 Public Acts, No. 73-373, § 43).
In the present case, the obligation to pay the mortgage on the former family residence was not periodic alimony. When the 1973 decree was rendered, the state referee indicated that the mortgage obligation would survive the defendant's death. In ordering the mortgage payments, the court in essence ordered the defendant to pay the plaintiff a specific sum of money from his estate, the amount of which could be accurately determined at the time of judgment. The fact that the defendant was permitted to pay the mortgage according to an existing amortization schedule rather than in a single payment does not have the effect of changing the obligation into periodic alimony. Since the mortgage award was for a specific sum of money, the court did not err in refusing to modify it.
The defendant next challenges the court's refusal to terminate the obligation to pay the real estate taxes on the Woodbridge residence. The court concluded that the defendant's duty to pay those taxes remained unaffected by the plaintiff's remarriage because the terms of the 1973 decree tied that duty to child support rather than to alimony. The defendant contends that the court misconstrued the 1973 decree.
The 1973 decree does not specifically state whether the duty to pay the taxes is related to alimony, child support, or both. An examination of the entire decree, however, compels the conclusion that the tax obligation is related to alimony and not to child support. Two provisions in the decree specifically concern child support: the defendant is required (1) to provide medical insurance for each minor child and (2) to pay the plaintiff $35 per week for the support of each minor child. The obligation to support each child automatically terminates when that child reaches the age of majority. The fact that the language of the decree does not suggest that the obligation to pay the taxes is dependent upon the minority status of any of the children, and the fact that it does so say with respect to the medical insurance and weekly support payments, is strong evidence that the referee intended the payment of the taxes to be alimony.
Moreover, the provision of the decree requiring payment of taxes reads: 'And the defendant is to pay mortgage and taxes on said residence.' As already noted, and as the plaintiff concedes, the obligation to pay the mortgage was a form of alimony. If the state referee intended that the duty to pay taxes be treated as child support, it is most unlikely that he would have imposed that obligation by the use of the same clause which sets forth an obligation which is clearly alimony without specifically designating the tax payments as being for the support of the children. Furthermore, since the home itself came to the plaintiff by way of lump-sum alimony, it follows, in the absence of circumstances to the contrary, that the ancillary order for payment of taxes for the maintenance of that home was periodic alimony. We conclude, therefore, that the court should have terminated the defendant's duty to pay real estate taxes. See Cary v. Cary, supra.
The defendant next contends that the court erred in requiring him to continue to furnish copies of his tax returns to the plaintiff. Although the 1973...
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