Schwarz v. Schwarz (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** SCHWARZ v. SCHWARZ DISSENT FLYNN, J., dissenting. The majority holds that where a trial court grants a party s motion to terminate or to reduce alimony such that, at a minimum, alimony must accordingly be terminated or reduced, the court may simultaneously grant an opposing motion to increase alimony. Because I believe that these actions are inherently inconsistent and, further, would vitiate the purpose of General Statutes § 46b-86 (b), I cannot agree with the majority. Therefore, I respectfully dissent. If a party remarries after divorce, the remarriage terminates the alimony such a party receives. Human nature being what it is, some parties who had been divorced entered cohabiting relationships rather than remarrying, to avoid termination of alimony received from a former spouse. To avoid such arrangements which took unjust advantage of a former spouse, the legislature enacted a reform in adopting § 46b-86 (b). Subsection (b) is a separate and independent statutory basis for the modification of alimony . . . . (Internal quotation marks omitted.) Taylor v. Taylor, 17 Conn. App. 291, 292 93, 551 A.2d 1285 (1989). It is a distinct statutory basis for such modifications from § 46b-86 (a), which authorizes modifications for other reasons. Section 46b-86 (b) was enacted to correct the injustice of making a party pay alimony when his or her exspouse is living with a person of the opposite sex, without marrying, to prevent the loss of support. (Internal quotation marks omitted.) Duhl v. Duhl, 7 Conn. App. 92, 94, 507 A.2d 523, cert. denied, 200 Conn. 803, 509 A.2d 517 (1986), quoting Connolly v. Connolly, 191 Conn. 468, 473 74, 464 A.2d 837 (1983). It consists of two prongs. First, the divorced party receiving the alimony must have commenced living with another person, and, second, the former spouse s financial needs have been altered and decreased because of the cohabitation. The plaintiff and Kane admitted cohabiting with one another and the court so found. The court found that they had ceased living together only because the defendant had filed a motion to terminate or to reduce alimony. In addition, the court found that the way the plaintiff and Kane had orchestrated their financial lives satisfied the second prong of § 46b-86 (b). So, the defendant s motion to terminate or to modify alimony under § 46b-86 (b) was well within the court s discretion and properly was granted. Although the court did not specify whether it was terminating or ordering a reduction of alimony, these were the court s only two alternatives when it granted the defendant s motion. This appeal is before us because after the defendant filed a § 46b-86 (b) motion because the plaintiff was living with another man and her financial needs had been altered, the plaintiff filed a § 46b-86 (a) motion to increase her alimony because the defendant s income had increased. The court, after having granted the defendant s subsection (b) motion, nonetheless granted the plaintiff s motion to increase alimony based on this increase in the defendant s income.1 This last action is inconsistent with the first. If a divorced former spouse is found to be living with another person and her needs are altered and diminished, but said former spouse can avoid a dimunition or decrease in alimony simply by the expedient of making a motion to increase alimony because the former spouse is making more money than at the time of the dissolution, then the legislature s attempt in enacting § 46b-86 (b) to remedy the unjust taking advantage of a former spouse, would be of no force or effect. I therefore would conclude that the increase in alimony ordered pursuant to § 46b-86 (a) was an abuse of discretion under the facts that the court found and would reverse that judgment. The defendant ex-husband has suffered an injustice where, in order to avoid alimony termination, the plaintiff entered a relationship with another person without benefit of marriage, and then, after termination or modification should have occurred, he suffered an increase in alimony because his income had increased. 1 In ruling on the plaintiff s motion, the court noted that it did not consider the plaintiff s increased health insurance costs in determining whether there had been a substantial change in financial circumstances because the parties had contemplated the plaintiff s medical needs in forming their separation agreement under which the defendant paid the plaintiff s COBRA costs for three years. The plaintiff s diagnosis of leukemia was known at the time of the dissolution.
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