A Guide to Resources in the Law Library
· “The term alimony usually and technically means an allowance for spousal support and is distinguishable from property division and child support.” In Re Marriage of Sjulin, 431 NW2d 773 (Iowa 1988).
· “The difference between the assignment of property under § 46b-81 and alimony under § 46b-82 . . . . The purpose of property assignment is equitably to divide the ownership of the parties’ property . . . . On the other hand, periodic and lump sum alimony is based primarily upon a continuing duty to support . . . .” Dubicki v. Dubicki, 186 Conn. 709, 714, footnote 2, 443 A.2d 1268 (1982).
· “ . . . alimony typically is modifiable, while disposition of marital property are not.” Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 133, 869 A.2d 164 (2005).
· Civil Union: “Wherever in the general statutes the terms ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’ or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes, except sections 7-45 and 17b-137a, subdivision (4) of section 45a-727a, and sections 46b-20 to 46b-34, inclusive, 46b-38nn and 46b-150d, the term ‘marriage’ is used or defined, a civil union shall be included in such use or definition. Wherever in the general statutes, except sections 46a-60, 46a-64, 46a-64c and 46a-66, the term ‘marital status’ is used or defined, civil union status shall be included in such use or definition. CONN. GEN. STATS. § 46b-38oo (2008 supp.) (Effective October 1, 2005).
· “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” CONN. GEN. STATS. § 46b-38nn (2007) (Effective October 1, 2005).
Contents
§ 1 Duty to Support Spouse or Party to Civil Union
§ 4 Factors Considered in Awarding and Modifying
§ 5 Enforcing Alimony in Connecticut
§ 6 Alimony and a Nonresident Party
§ 7 Duration of Alimony in Connecticut
§ 8 Attorney Fees and Expenses
§ 9 Tax Consequences of Alimony
Appendix A Termination of Alimony
Appendix B Alteration of Alimony Awards
Tables in this chapter
Table 1 Proof of Abandonment of the Marriage without cause
Table 2 Request for Leave Shall be Appended to Motion to Modify
Table 3 Statutory Factors in Awarding Alimony
Table 4 Wife's Ability to Support Herself
Table 5 Proof of Former Wife's Ability to Earn Own Support
Table 6 Proof of Right to Spousal Support and Factors Affecting Amount of Support
Table 7 Appeals of Alimony Awards
Table 9 Connecticut's Cohabitation Statute
Table 10 Questions & Answers on Alimony and Taxes
A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to joint duty to support spouse or party to a civil union as basis for awarding alimony. Also, liability of one spouse or party to a civil union for purchases and contracts made by other spouse or party to a civil union. Provisions relating to civil unions are effective October 1, 2005.
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CURRENCY: |
· 2008 Edition
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DEFINITION: |
· “An award of alimony is based primarily on a spouse’s continuing duty to support . . . . General Statutes § 46b-82 governs the award of alimony and specifically states it may be in addition to a property distribution award . . . .” Martone v. Martone, 28 Conn. App. 208, 217, 611 A.2d 896(1992). · Periodic alimony: is a type of permanent alimony paid at scheduled intervals. The purpose of periodic alimony is primarily to continue the duty to support the recipient spouse.” Bijur v. Bijur, 79 Conn. App. 752, 767, 831 A.2d 824 (2003). · Property division vs. Alimony. “The purpose of property assignment is equitably to divide the ownership of the parties' property . . . . On the other hand, periodic and lump sum alimony is based primarily upon a continuing duty to support.” Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989). · “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” CONN. GEN. STATS. § 46b-38nn (2007).
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STATUTES: |
· Conn. Gen. Stat. (2007) § 46b-37. Joint duty of spouses to support family. Liability for purchases and certain expenses. Abandonment. § 46b-82. Alimony § 46b-85. Order for support of mentally ill spouse § 53-304(a). Nonsupport. Support orders and agreements. Administration of oaths by family relations counselors and support enforcement officers. § 46b-38oo “. . . a civil union shall be included in such use or definition.” ) (eff. October 1, 2005). Full text
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CASES: |
DUTY TO SUPPORT · Feldman v. Allegheny Airlines, Inc., 524 F.2d 384 (1975), remand 452 F.2d 151. · U.S. v. Edwards, 572 F. Supp. 1527 (1983). · Page v. Welfare Commissioner, 170 Conn. 258, 365 A.2d 1118 (1976). · Sklar v. Sklar’s Estate, 168 Conn. 101, 357 A.2d 900 (1975). · McDonnell v. McDonnell, 166 Conn. 146, 348 A.2d 575(1974).
ALIMONY · Loughlin v. Loughlin, 93 Conn. App. 618, 635, 889 A.2d 902 (2006) “A reviewing court is not necessarily bound by the trial court's characterization of a financial order in a dissolution action when evaluating the order's propriety.” · Rubin v. Rubin, 204 Conn. 224, 234, 527 A.2d 1184 (1987). “It must be remembered, however, that an alimony order is predicated upon the obligation of support that spouses assume toward each other by virtue of the marriage.” · Baker v. Baker, 166 Conn. 476, 488 , 352 A.2d 217(1974). “The primary basis for an award of alimony is the continuing duty of a divorced husband to support a wife, whom, in legal contemplation, he has abandoned.” · Fattibene v. Fattibene, 183 Conn. 433, 441, 441 A.2d 3 (1981). “The primary basis for an award of alimony has been not to punish a guilty spouse but to continue the duty to support . . . .” · Venuti v. Venuti, 185 Conn. 156, 158, 440 A.2d 878 (1981). “Adultery is not listed as a factor to be considered unless it is one of the causes for the dissolution of marriage.”
NECESSITIES · Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966). · State v. Turello, 183 Conn. 330, 439 A.2d 364 (1981). Chronic illness. · Ematrudo v. Gordon , 100 Conn. 163, 123 A. 14 (1923). Plastic surgery on spouse. · Hanf v. Hanf, 23 Conn. Supp. 306 at 307, 182 A.2d 631(1962). Medical care and burial of spouse. · Cohn v. Snyder, 102 Conn. 703, 130 A. 631 (1925). Rent
DEFENSES · Yale University School of Medicine v. Scianna, 45 Conn. Supp. 84, 701 A.2d 65 (1977). History of the separation defense. · Yale University School of Medicine v. Collier, 206 Conn. 31 at 37, 536 A.2d 588 (1988). "It follows that since the decedent left the named defendant without just cause, the obligations of the named defendant imposed by 46b‑37(b) were suspended."
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WEST KEY NUMBERS: |
Husband and Wife# 4. Support of family # 19. Necessities and family expenses 19(3). Separation defense 19(14). What constitutes necessaries in general 19(15). Medical services 19(16). Last sickness and funeral expenses
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DIGESTS: |
Dowling’s Digest: Husband and Wife § 8. Liability of one spouse for contracts and purchases of other
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ENCYCLOPEDIAS: |
· 41 Am. Jur. 2d Husband & Wife (2005). § 160. Spousal liability for necessaries § 161. Applicability to both spouse § 162. Purpose § 163. Elements or requirements § 164. Basis of liability § 165. Validity of necessaries doctrine § 166. Nature of liability imposed; primary and secondary liability § 167. Necessaries furnished by public authorities § 168. Notice not to extend credit to wife § 169. Effect of abandonment or misconduct by spouse incurring the debt · 41 C.J.S. Husband and Wife (1991). §§ 48-55. Support of spouse; Necessaries and family expenses · Abandonment Of Marriage Without Cause—Defense In Alimony, Spousal Support, Or Separate Maintenance Proceedings, 27 POF2d 737 (1981). §§ 5- 11. Proof that spouse wilfully abandoned marital domicile without good cause, thereby precluding award of alimony, spousal support, or separate maintenance [TABLE 1]. · Wife’s ability to support herself, 2 POF2d 99 (1974). §§ 5-22. Proof of former wife’s independent means of support · Defense against wife’s action for support, 17 Am Jur Trials 721 (1970). · Jay M. Zitter, Annotation, Modern Status Of Rule That Husband Is Primarily Or Solely Liable For Necessities Furnished Wife, 20 ALR4th 196 (1983). · Jay M. Zitter, Annotation, Necessity, In Action Against Husband For Necessaries Furnished Wife, Of Proving Husband’s Failure To Provide Necessaries, 19 ALR4th 432 (1983). · Jay M. Zitter, Annotation, Wife's Liability for Necessities Furnished Husband, 11 ALR4th 1160 (1982). · Annotation, Husband's Liability to Third Person for Necessities Furnished to Wife Separated from Him, 60 ALR2d 7 (1958).
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TEXTS & TREATISES: |
· 8 Arnold H. Rutkin et al., Connecticut Practice Series, Family Law And Practice with Forms (2d ed. 2000). Chapter 33. Alimony in General § 33.1. Definition § 33.36. Order for support of mentally ill spouse § 33.37. —Time for entry of order § 33.38. —Parties who may apply for order § 33.39. Order for support of mentally ill spouse—Duration of obligation Chapter 34 Modification of Alimony Provisions 34.12 Changes in health of the parties · Barbara Kahn Stark, Dissolution of Marriage, CONNECTICUT LAWYERS’ DESKBOOK: A REFERENCE MANUAL, XVI-13 to XVI-14 (Peter L. Costas, managing ed., 1998).
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560. EMAIL
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Table 1 Proof of Abandonment of the Marriage without Cause
Proof that spouse wilfully abandoned marital domicile without good cause,thereby precluding award of alimony, spousal support, or separate maintenance.
27 POF2d 737 (1981)
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A. Elements of Proof
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§ 5
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Guide and checklist |
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B. Testimony of Complaining Spouse (Cross-Examination)
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§ 6
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Voluntary departure from marital domicile |
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§ 7
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Absence of reasonable cause for separation |
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C. Testimony of Defendant
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§ 8
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Absence of reasonable cause for separation |
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§ 9
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Voluntary departure from marital domicile |
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§ 10
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Intent not to resume cohabitation |
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§ 11
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Absence of consent to separation
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A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to the grounds and procedures used for applying for and extending alimony pendente lite (temporary alimony while court proceeding is pending). Also includes the effect of prenuptial agreements on alimony.
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CURRENCY: |
· 2008 Edition
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DEFINITION:
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· ALIMONY PENDENTE LITE: “ means alimony or maintenance ‘pending litigation’ and is payable during the pendency of a divorce proceeding so as to enable a dependent spouse to proceed with or defend against the action.” Jayne v. Jayne, 663 A.2d 169, 176 ( Pa. Super. 1995). · PURPOSE: “is to provide for wife . . . they are living apart from her husband pending a determination of the issues in the case.” Fitzgerald v. Fitzgerald, 169 Conn. 147, 151, 362 A.2d 889 (1975). · “The purpose of alimony pendente lite is to provide support to a spouse who the court determines requires financial assistance pending the dissolution litigation and the ultimate determination of whether that spouse is entitled to an award of permanent alimony.” Weinstein v. Weinstein, 18 Conn. App. 622, 639-640, 561 A.2d 443 (1989). · “There is no absolute right to alimony.” Weinstein v. Weinstein, 18 Conn. App. 622, 637, 561 A.2d 443 (1989).
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STATUTES: |
· Conn. Gen. Stat. (2007) § 46b‑82. Factors used in determining an alimony award § 46b‑83(a). Alimony pendente lite. (a) At any time after the return day of a complaint under section 46b-45 or 46b-56 or after filing an application under section 46b-61, and after hearing, alimony and support pendente lite may be awarded to either of the parties from the date of the filing of an application therefor with the Superior Court. Full credit shall be given for all sums paid to one party by the other from the date of the filing of such a motion to the date of rendition of such order. In making an order for alimony pendente lite, the court shall consider all factors enumerated in section 46b-82, except the grounds for the complaint or cross complaint, to be considered with respect to a permanent award of alimony. In making an order for support pendente lite, the court shall consider all factors enumerated in section 46b-84. The court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property. § 46b-83(bIn any proceeding brought under section 46b-45, 46b-56 or 46b-61 involving a minor child, if one of the parents residing in the family home leaves such home voluntarily and not subject to court order, and if the court finds that the voluntary leaving of the family home by such parent served the best interests of the child, the court may consider such voluntary leaving as a factor when making or modifying any order pursuant to section 46b-56.
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LEGISLATIVE: |
· 2005 Conn. Acts 258 § 5(b). “In any proceeding brought under section 46b-45, 46b-56, as amended by this act, or 46b-61 involving a minor child, if one of the parents residing in the family home leaves such home voluntarily and not subject to court order, and if the court finds that the voluntary leaving of the family home by such parent served the best interests of the child, the court may consider such voluntary leaving as a factor when making or modifying any order pursuant to section 46b-56, as amended by this act.” Effective October 1, 2005. · 2003 Conn. Acts 202 § 23 (Reg. Sess.). Amendment to § 46b-82.” The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable.”
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COURT RULES:
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· Connecticut Practice Book (2008 Edition) Chapter 25. Superior Court—Procedure in family matters § 25-24. Motions. (a). Any appropriate party may move for alimony . . . . (b). Each such motion shall state clearly, in the caption of the motion, whether it is a pendente lite or a postjudgment motion. § 25-29. Notice of orders for support or alimony § 25-30. Statements to be filed
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FORMS:
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· Wynn and Lubell, Handbook Of Forms for the Connecticut Family Lawyer. VI‑B‑1. Motion for alimony pendente lite, p. 99 VI-B-2. Motion for alimony, child support, custody and counsel fees, pendente lite, pp. 100-101 VI-B-3. Motion for determination of alimony and child support, pp. 102-103 VI‑B‑5. Motion to extend alimony pendente lite, p. 105 · 8 Arnold H. Rutkin et al., Connecticut Practice Series, Family Law And Practice with Forms (2d ed. 2000). § 32.3. Motion for alimony and other payments pendente lite—Form § 32.4. Motion for alimony and counsel fees pendente lite—Form § 32.5. Motion for determination of alimony and child support—Form · Barbara Kahn Stark, Friendly Divorce Guidebook for Connecticut: Planning, Negotiating and Filing Your Divorce (1998). —Motion for alimony pendente lite, p. 373 —Checklist of temporary alimony and first year filing status, p. 82 —Sample wording for temporary agreements, pp. 85-88
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CASES:
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· Friezo v. Friezo, 84 Conn. App. 727, 733-734, 854 A.2d 1119 (2004). “The defendant also argued in his brief that because he was not permitted to cross-examine the plaintiff at length, he was unable to inquire into the facts underlying the court's pendente lite order. The defendant's claim is a generalization. He has not pointed to anything regarding the plaintiff's financial affidavit for which he does not have sufficient information. He notes that the ‘fundamental purpose of alimony pendente lite is to provide the wife, during the pendency of the divorce action, with current support in accordance with her needs and the husband's ability to meet them’ . . . .Given this rule, the defendant has not demonstrated that he has been harmed by the court's order because he is unable to meet the plaintiff's needs.” · Wolf v. Wolf, 39 Conn, App. 162, 164-165, 664 A.2d 315 (1995). Factors considered in awarding alimony. · Siracusa v. Siracusa, 30 Conn. App. 560, 566, 621 A.2d 309 (1993). "The court looked specifically at the occupations, skills and employability of the parties. It found that the plaintiff, with three years of college education, had worked as a waitress, had obtained her real estate agent's license, and had some experience in the moving business. The defendant, a college graduate, is the chief executive officer of a moving and storage company he established twelve years ago. The trial court found that '[f]rom the nature of the occupations and skills of the parties . . . [the] defendant has a far greater opportunity than does the plaintiff for the future acquisition of capital assets or income.'" · Paddock v. Paddock, 22 Conn. App. 367, 577 A.2d 1087 (1990). Inability to pay alimony. · Martone v. Martone, 28 Conn. App. 208, 611 A.2d 896, cert. granted in part 224 Conn. 909 (1992). Duty to support ‑ In general.
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DIGESTS:
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· West Key Numbers: Divorce # 208-228 · Dowling’s Digest: Dissolution of marriage § 15 · Connecticut Family Law Citations: Alimony—Pendente Lite
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ENCYCLOPEDIAS:
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· 27B C.J.S. Divorce (1986). §§ 306‑507. Alimony, maintenance and support, and other allowances §§ 315-342. Temporary alimony · 24A AM. JUR. 2D Divorce and Separation (1998). §§ 652-696. Temporary alimony · Jean E. Maess, Annotation, Court’s Authority To Award Temporary Alimony Or Suit Money In Action For Divorce, Separate Maintenance, Or Alimony Where The Existence Of A Valid Marriage Is Contested, 34 ALR4th 814 (1984). · Gary L. Hall, Annotation, Wife’s Possession Of Independence Means As Affecting Her Right To Alimony Pendente Lite, 60 ALR3d 728 (1974).
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TEXTS & TREATISES:
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· 8 Arnold H. Rutkin et al., Connecticut Practice Series, Family Law And Practice with Forms (2d ed. 2000). Chapter 32. Temporary Alimony § 32.2. Time and method for raising claim § 32.6. Hearing § 32.7. Amount of award; factors to be considered § 32.8. Order, stipulation on voluntary compliance § 32.11. Effect of prenuptial or other agreement relating to alimony Chapter 33. Alimony in general § 33.20. Security for award · Barbara Kahn Stark, Friendly Divorce Guidebook for Connecticut: Planning, Negotiating and Filing Your Divorce (1998). —Temporary support including tax considerations, pp. 80-83, 225 —Pendente lite orders, procedures, pp. 296-297
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COMPILER: |
Lawrence Cheeseman , Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560. EMAIL
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A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to the grounds and procedures for modifying alimony in Connecticut.
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CURRENCY: |
· 2008 Edition
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DEFINITION: |
· Cohabitation: “Section 46b-86 (b), known as the ‘cohabitation statute,’ provides in pertinent part that a court may ‘modify such judgment and suspend, reduce or terminate the payment of periodic alimony 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 . . . of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.’” D'Ascanio v. D'Ascanio, 237 Conn. 481, 485-486, 678 A.2d 469 (1996). · Substantial change in circumstances: “When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the § 46b-82 criteria, make an order for modification . . . . The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties.” Crowley v. Crowley, 46 Conn. App. 87, 92, 699 A.2d 1029 (1997). · “When determining whether there is a substantial change in circumstances, the court is limited in its consideration to conditions arising subsequent to the entry of the dissolution decree.” Spencer v. Spencer, 71 Conn. App. 475, 481, 802 A.2d 215 (2002). · Decree or order of the court: “Thus, even if the parties had agreed that the defendant would not be obligated to comply with the alimony order, that agreement would not be effective to modify the defendant's obligation because, as previously stated, ‘[d]ecrees in a dissolution action cannot be modified by acts of the parties without further decree or order by the court.’ Albrecht v. Albrecht, 19 Conn. App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).” Ford v. Ford, 72 Conn. App. 137, 141, 804 A.2d 215 (2002).
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STATUTES:
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· Conn. Gen. Stat. (2007) § 46b‑8. Motion for modification of support order combined with motion for contempt. § 46b‑86. Modification of alimony or support orders and judgments.
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COURT RULES:
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· Connecticut Practice Book (2008 Edition) Chapter 25 Superior Court—Procedure in family matters § 25-24(b) ". . . . Each such motion shall state clearly, in the caption of the motion, whether it is a pendente lite or a post judgment motion." § 25-26. Modification of custody, alimony or support (eff. Oct 1, 2007).
§ 25-30. Statements to be filed
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FORMS:
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JD-FM-202 Rev. 8-07. Request for leave (eff. January 1, 2006). "...Any motion for modification of a final custody or visitation order or a parental responsibility plan shall be appended to a request for leave to file such motion..." CONN. PRACTICE BOOK § 25-26. See Table 2 JD-FM-174 Rev. 8-07. Motion for modification
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COURT CASES
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· Simms v. Simms, 283 Conn. 494, 927 A.2d 894 (2007). “[Section] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Because a request for termination of alimony is, in effect, a request for a modification, this court has treated as identical motions to modify and motions to terminate brought under § 46b-86 (a). . . .” [Borkowski v. Borkowski, 228 Conn. 729, 734-735 (1994).] · Berry v. Berry, 88 Conn. App. 674, 678, 870 A.2d 1161 (2005). “In its articulation, the court referenced LaBow v. LaBow, 13 Conn. App. 330, 344-45, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), and Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982), for the proposition that an alimony modification required an uncontemplated change in circumstances. The defendant is correct that this was an improper standard. Public Acts 1987, No. 87-104, eliminated the requirement in § 46b-86 that modification of alimony or support be based on uncontemplated changes of circumstances. Darak v. Darak, 210 Conn. 462, 470, 556 A.2d 145 (1989).” · Doody v. Doody, No. FA 02-0731061 (Conn. Super. Ct., Hartford J.D., May 17, 2005). “However, a defendant's inability to pay ‘does not automatically entitle a party to a decrease of an alimony order.’ Sanchione v. Sanchione 173 Conn. 397 (1977). Such inability to pay must be excusable and not brought about by the defendant's own fault before a motion for modification may be granted. Wanatowitz v. Wanatowitz. 12 Conn.App. 616 (1987); Gleason v. Gleason, 16 Conn.App. 134 (1988). · Simms v. Simms, 89 Conn. App. 158, 162 (2005). “The defendant's claim that the self-executing alimony alterations constitute modifications of the dissolution orders is untenable. Those alterations were required not by a subsequent court order or adjudication by the court, but rather by the express terms of the settlement agreement incorporated into the 1979 dissolution orders. This court has held that ‘[d]ecrees in a dissolution action cannot be modified by acts of the parties without further decree or order by the court." Albrecht v. Albrecht, 19 Conn. App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). The record reveals no further decree or order by the court since 1979.” · Gay v. Gay, 266 Conn. 641, 647-648, 835 A.2d 1 (2003).“‘[T]he purpose of both periodic and lump sum alimony is to provide continuing support." Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023(1999). At least where, as is generally the case, capital gains do not represent a steady stream of revenue, the fact that a party has enjoyed such gains in a particular year does not provide a court with an adequate basis for assessing that party's long-term financial needs or resources. For this reason, we conclude that capital gains are not income for purposes of modification of an order for continuing financial support if those gains do not constitute a steady stream of revenue. This is true without regard to whether the assets from which those gains are derived were acquired before or after the dissolution. There is nothing in the record to suggest that the plaintiff can, through the ongoing sale of capital assets, maintain the income stream found by the trial court. Accordingly, we conclude that, regardless of when the capital assets sold by the plaintiff were acquired, the gains on the assets were not income.” (Emphasis added). · Distefano v. Distefano, 67 Conn. App. 628, 633, 787 A.2d 675 (2002). “In accordance with General Statutes § 46b-86 (b) and the holding in DeMaria, before the payment of alimony can be modified or terminated, two requirements must be established. First, it must be shown that the party receiving the alimony is cohabitating with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation.” · Clark v. Clark, 66 Conn. App. 657, 665, 785 A.2d 1162 (2001). “The court is not required, however, to consider all of the § 46b-82 criteria when modification of alimony is sought pursuant to a dissolution agreement.” · Grosso v. Grosso, 59 Conn. App. 628, 634, 758 A.2d 367 (2000). “In the present case, however, the defendant moved to modify the alimony payments pursuant to § 46-86 (a). The court fashioned a remedy for the defendant's changed circumstances in a way contemplated by subsection (a). Accordingly, we find that the court acted properly and did not abuse its discretion in suspending the alimony payments.” (Emphasis added). · Way v. Way, 60 Conn. App. 189, 194, 758 A.2d 884 (2000). “When a decree contains language precluding modification, a trial court, under its continuing jurisdiction, has the power to determine whether the preclusive language in the decree should be enforced.” · DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999). “Because, however, ‘living with another’ person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b-81, the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony.” · Simmons v. Simmons, 244 Conn. 158, 179, 708 A.2d 949 (1998). “We continue mindful of the substantial deference that this court affords the decisions of the trial court in a dissolution action . . . . We consider this case, however, to present one of those rare situations in which we must conclude that there was an abuse of that discretion.” · Crowley v. Crowley, 46 Conn. App. 87, 699 A.2d 1029 (1997). Interest on modified retroactive alimony orders. · Sheehan v. Balasic, 46 Conn. App. 327, 331, 699 A.2d 1036 (1997). "This statute [46b-86] clearly permits a trial court to make periodic awards of alimony nonmodifiable." · Borkowski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060 (1994). “‘In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties.’ . . . More specifically, these criteria, outlined in General Statutes 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.” · Dooley v. Dooley, 32 Conn. App. 863, 632 A.2d 712 (1993). “Alimony pendente lite may not be modified unless there has been a substantial change in circumstances since the date of the award.” · Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161 (1991). “a dramatic increase in the income of one of the parties may constitute a substantial change in circumstances . . . .” · Cummock v. Cummock, 188 Conn. 30, 448 A.2d 204 (1982). · Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979). “Lump sum alimony, unlike periodic alimony, is a final judgment which cannot be modified even should there be a substantial change in circumstances . . . .” · Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977). Unpaid installments and modification · Gray v. Gray, 12 Conn. Law Tribune, no. 3, p. 25 (1/20/86, Superior Court, Hartford. Alimony and remarriage
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DIGESTS:
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· West Key Numbers: Divorce #245 · Dowling’s Digest: Dissolution of marriage §19 · Connecticut Family Law Citations: Alimony—Judgments, Orders, and Decrees—Modification Alimony—nonmodifiable Alimony—permanent
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ENCYCLOPEDIAS:
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· 24A AM. JUR. 2D Divorce and Separation (1998). §§ 809-847. Modification of alimony awards · 27B C.J.S. Divorce (1986). §§ 401-415. Modification or vacation of allowance §§ 481-487. Proceedings for modification or vacation of order or decree · Jane Massey Draper, Annotation, Retirement Of Husband As Change Of Circumstances Warranting Modification Of Divorce Decree—Prospective Retirement, 110 ALR5th 237 (2003). · James Lockhart, Cause Of Action To Obtain Increase In Amount Or Duration Of Alimony Based On Changed Financial Circumstances Of Parties, 19 COA 1 (1989). · James Lockhart, Cause Of Action For Modification Of Amount Of Permanent Alimony Based On Changed Financial Circumstances Of Party Making Payment, 12 COA 853 (1987). · Modification Of Spousal Support Award, 32 POF2d 491(1982). §§ 12-20. Proof of supported spouse’s right to increased support §§ 21-27. Proof of supporting spouse’s right to decrease or terminate support · Modification Of Spousal Support On Ground Of Supported Spouse’s Cohabitation, 6 POF3d 765 (1989). § 17. Checklist—Proving cohabitation §§ 18-19. Model interrogatories §§ 20-45. Proof of cohabitation as basis of support modification · Robin Cheryl Miller, Annotation, Effect of Same Sex Relationship On Right To Spousal Support, 73 ALR5th 599 (1999). · Annotation, Alimony As Affected By Recipient Spouse’s Remarriage, In Absence Of Controlling Specific Statute, 47 ALR5th 129 (1997). · Karen A. Cusenbary, Annotation, Decrease In Income Of Obligor Spouse Following Voluntary Termination Of Employment As Basis For Modification Of Child Support Award, 39 ALR5th 1 (1996). · Frank J. Wozniak, Annotation, Loss Of Income Due To Incarceration As Affecting Child Support Obligation, 27 ALR5th 540 (1995). · Christopher Vaeth, Annotation, Consideration Of Obligated Spouse’s Earnings From Overtime Or “Second Job” Held In Addition To Regular Full-Time Employment In Fixing Alimony Or Child Support Awards, 17 ALR5th 143 (1994). · Claudia Catalano, Annotation, Spouse’s Right To Set Off Debt Owed By Other Spouse Against Accrued Spousal Or Child Support Payments, 11 ALR5th 259 (1993). · Diane M. Allen, Annotation, Divorced Or Separated Spouse’s Living With Member Of Opposite Sex As Affecting Other Spouse’s Obligation Of Alimony Or Support Under Separation Agreement, 47 ALR4th 38 (1986). · Jay M. Zitter, Annotation, Validity And Enforceability Of Escalation Clause In Divorce Decree Relating To Alimony And Child Support, 19 ALR4th 830 (1983). · Annotation, Divorced Woman’s Subsequent Sexual Relations Or Misconduct As Warranting, Alone Or With Other Circumstances, Modification Of Alimony Decree, 98 ALR3d 453 (1980). · John J. Michalik, Annotation, Divorce: power of court to modify decree for alimony or support of spouse which was based on agreement of parties, 61 ALR3d 520 (1975). · Emile F. Short, Annotation, Retrospective Increase In Allowance For Alimony, Separate Maintenance, Or Support, 52 ALR3d 156 (1973).
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TEXTS & TREATISES:
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· 8 Arnold H. Rutkin et al., Connecticut Practice Series, Family Law And Practice with Forms (2d ed. 2000). Chapter 35. Modification of Alimony Provisions § 35.2. Necessity of changed circumstances § 35.3. Modifiability of lump sum award § 35.4. Modification where no alimony is originally granted or reserved § 35.5. Modifications to change duration of alimony award § 35.6. Effect of provisions limiting or prohibiting modification § 35.7. Effect of modification on accrued alimony § 35.10. Facts justifying modification § 35.11. Inadequacy of original order § 35.12. Changes in health, cost of living, earnings § 35.13. Child's increased earnings, expenses or needs § 35.14. Changes in custody or child support § 35.15. Increases in cost of living § 35.16. Changes in earnings or assets of the payor § 35.17. Changes in earnings or assets of the payee § 35.18. Loss of employment § 35.19. Effects of general business conditions § 35.20. Rehabilitation after divorce § 35.21. Remarriage of payor § 35.22. Remarriage of payee § 35.23 Misconduct of the party receiving alimony § 35.24 Criteria to be considered for modification § 35.25 Modification of alimony based upon cohabitation § 35.26. Proof of cohabitation § 35.27. Relief available based upon cohabitation § 35.28 Burden of proof and notice requirement § 35.29. Modification and appeal distinguished § 35.30. Effect of Child Suppo |