Kaplan v. Kaplan

Speziale, C. J.

This is an appeal by the plaintiff from the judgment of the trial court denying the plaintiff’s motion for modification of periodic alimony. The plaintiff claims error in the trial court’s failure to order a modification of alimony under the authority of § 46b-86 (b) of the General Statutes, the so-called “cohabitation” statute.

We first heard argument on this appeal on June 5, 1981, after which this court remanded the case with direction that the trial court, which had simply denied the plaintiff’s motion, provide an articulation of the basis of its decision.¹ Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981). The articulation was filed in this court on September 25, 1981 and we have again heard argument by the parties.

The marriage between the plaintiff, Harold L. Kaplan, and the defendant, Michele E. Kaplan, was dissolved on May 26, 1978. Among other awards, the defendant received periodic alimony in the amount of $200 per week to continue until either her remarriage or the plaintiff’s death. On April 17, 1980, the plaintiff filed a motion for modification of alimony under the authority of subsection (b) of General Statutes ^ 46b-86.² This provision states that the Superior Court may, in its discretion and after notice and hearing, modify an alimony award “upon a showing that the party receiving the periodie alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” (Emphasis added.) General Statutes § 46b-86 (b). The plaintiff has alleged that the defendant was living with another person under circumstances “tantamount to remarriage” and within the scope of § 46b-86 (b).

As we stated in our earlier opinion, Kaplan v. Kaplan, supra, 45-46, §46b-86 (b) “requires the party moving for modification to show that the party receiving alimony is ‘living with another person’ and that this living arrangement has caused a ‘change of circumstances’ which ‘alter[s] the financial needs’ of the party receiving alimony. General Statutes § 46b-86 (b). We note that the General Assembly chose the broader language of ‘living with another person’ rather than ‘cohabitation’ and that this provision requires only a ‘change’ of circumstances not a ‘substantial change’ as required by § 46b-86 (a).” We also note that even after the required factual showings the ultimate decision is still entrusted to the discretion of the trial court. General Statutes § 46b-86 (b).

Section 46b-86 (b) was clearly intended by the General Assembly to apply to the situation alleged by the plaintiff.³ The articnlation of the trial conrt, however, indicates that the plaintiff failed to prove his allegations. The trial conrt concluded that “[although at times the defendant slept in Dr. Doost’s bedroom ... and, Dr. Doost would often take meals with the defendant and her children, they maintained completely separate households and were not living together.” (Emphasis added.)⁴ This factual finding on the threshold issue of whether the defendant “was living with another person” terminates the need for any further inquiry under § 46b-86 (b). The plaintiff urges that we hold this factual finding to be “clearly erroneous”; Practice Book § 3060D; but there is nothing in the record which would allow us to do so.⁵ See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). This court, of course, may not retry a case. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. See Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894).

A factual finding may not be rejected on appeal merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the factfinder. Cf. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981). A factual finding may be rejected by this court only if it is “clearly erroneous.” Practice Book § 3060D. The record of this case indicates that there was ample evidence to support the trial court’s conclusion that the defendant and Doost maintained separate households and were not living together. It cannot be said, therefore, that the finding was as a matter of law unsupported by the record, incorrect, or otherwise mistaken. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222. This court may not substitute its own opinion as to the living arrangements of the defendant for the factual finding of the trial court.

Our refusal to overturn the threshold factual finding in this case “does not constitute an abdication of our responsibility for appellate review. To the contrary it evidences a recognition on our part that by constitutional charter we are limited to corrections of errors of law; Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894); and that, therefore, in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence.” Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980). We conclude that there are no grounds for disturbing the trial court’s decision.

There is no error.

In this opinion Peters and Sponzo, Js., concurred.

1 We ordered such, a remand because tbis case presented the first opportunity for this court to consider § 46b-86 (b). It is the appellant’s obligation to provide this court with an adequate appellate record. Practice Book § 3082. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222n, 435 A.2d 24 (1980). Ordinarily, we will not remand a case to correct a deficiency in the record which the appellant should have remedied.

2 “[General Statutes] See. 46b-86. modification of alimony or support orders and judgments, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or 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. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.

“(b) In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, 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, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

3 The stated purpose of the bill which was eventually enacted as Public Acts 1977, No. 77-394, now § 46b-86 (b), was “[t]o correct the injustice of malting a party pay alimony when his or her ex-spouse is living with a person of the opposite sex,’ without marrying, to prevent the loss of support.” H.B. 6174, 1977 Sess.

4 The trial court’s full articulation was as follows: “further ARTICULATION OF THE BASIS OF THE TRIAL COURT’S DECISION.

“The trial Court denied the motion for modification because of the facts found and conclusions reached, as follows:

“Subsequent to the dissolution, the defendant sold her home and, together with her two minor children, moved to 61 MacDonald Court in Noank which is a two-family house owned by Dr. Baier [sic] Doost. Dr. Doost was not only her landlord, but also her business partner and had a close social and personal relationship with the defendant. Although at times the defendant slept in Dr. Doost’s bedroom (while the children slept downstairs) and, Dr. Doost would often take meals with the defendant and her children, they maintained completely separate households and were not living together. The defendant’s tenancy is pursuant to a written lease and she paid Dr. Doost $300.00 per month rent.

“The defendant provided financially for all of the necessities for her children and herself. Dr. Doost made no financial contribution to the support of the defendant and her children. Dr. Doost did reimburse her for the cost of food but only for the cost of food which she provided for him. On her vacation trips with Dr. Doost, the defendant paid her own way.

“Both of two criteria must be met before periodic alimony could be modified in this ease under the provisions of Section 46b-86 (b): (1) that the defendant was living with another person, and, (2) the living arrangements caused such a change of circumstances as to alter her financial needs. Neither criteria has been met. She was not living with Dr. Doost nor did her living arrangements alter her financial needs.”

5 Both the concurring and dissenting opinions contend that it was “clearly erroneous” for the trial court to find as a matter of fact that the defendant and Dr. Doost “maintained completely separate households and were not living together.” Although both the concurrence and the dissent have relied upon the uncontradieted evidence (from the testimony of the defendant and Dr. Doost, the only witnesses to testify at the modification hearing) to the effect that the defendant and Dr. Doost often traveled together and regularly slept and ate together, neither opinion mentions the equally uneontradicted evidence that the defendant and Dr. Doost maintained separate households, that both paid their own expenses on their trips, that the defendant paid rent on her apartment under a written lease, that the defendant paid her own living and household expenses and those of her children, and that Dr. Doost even paid for the meals which he ate in the defendant’s apartment.