Spencer v. Spencer

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BRENNA M. SPENCER v. ROBERT B. SPENCER
(AC 38050)
DiPentima, C. J., and Mullins and Harper, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed from the judgment of the trial court, which denied the
plaintiff’s motions for contempt and granted the defendant’s motion
for modification and termination of alimony. The dissolution judgment
provided that the defendant would pay the plaintiff periodic alimony
until, inter alia, her cohabitation. After a change in the way the defendant
was compensated allegedly caused a decrease in his income, he fell
behind on his alimony payments, and the parties entered into a stipulated
agreement. Thereafter, the plaintiff filed two motions for contempt in
response to the defendant’s failure to make alimony payments pursuant
to the dissolution judgment and the stipulation. The defendant based his
modification request on an allegedly substantial change in circumstances
due to a decrease in his income and his termination request on the
plaintiff’s cohabitation with her boyfriend. In granting the defendant’s
request to terminate alimony, the court determined, inter alia, that the
plaintiff began living with her boyfriend, who had been contributing to
the household expenses, and that had altered the plaintiff’s financial
needs. In granting the defendant’s request to modify alimony payable
in the month immediately prior to the month in which the termination
of alimony became effective, the court found a substantial change in the
defendant’s financial circumstances as a result of substantially reduced
income. The plaintiff appealed to this court, claiming, inter alia, that
the trial court improperly denied her motions for contempt and granted
the defendant’s motion to modify and terminate alimony. Held:
1. The trial court did not abuse its discretion in granting the defendant’s
motion as to the termination of alimony: the court properly interpreted
the term ‘‘cohabitation’’ in the dissolution judgment as consistent with
the requirements of the statute (§ 46b-86 [b]) providing that a court may
terminate alimony upon a showing that the party receiving alimony is
living with another person under circumstances that alters the financial
needs of that party, and, contrary to the plaintiff’s claim, the defendant
was not required to present evidence that the plaintiff was engaged in
a romantic or sexual relationship with the person with whom she was
living; moreover, the trial court’s finding that the plaintiff cohabitated
within the meaning of § 46b-86 (b) was not clearly erroneous, as the
plaintiff testified that she had been living with her boyfriend and that,
as a result, her monthly rent payment was reduced; furthermore, the
plaintiff could not prevail on her claim that the defendant had unclean
hands on the basis of his allegedly wilful nonpayment of alimony, as
the trial court properly determined that the defendant’s nonpayment
of alimony was excusable because his substantial decrease in income
prevented him from making full and timely alimony payments.
2. The trial court did not abuse its discretion in modifying alimony: the
court’s finding that the defendant experienced a substantial change in
his financial circumstances due to a reduction in his income was not
clearly erroneous, as the evidence demonstrated that his income was
substantially lower during the time for which he sought modification
than at the time of the dissolution judgment, and, notwithstanding the
plaintiff’s claim to the contrary, the trial court properly determined that
the defendant met his burden of proving that the compensation change
to which he agreed with his business partner, which reduced his income,
was not the result of neglect or culpable conduct; furthermore, even if
this court assumed that the trial court improperly excluded relevant
testimony as to whether the defendant’s reduction in his income was
due to his neglect or culpable conduct because he did not seek advice
from an attorney or an accountant, as the plaintiff claimed, the plaintiff
failed to demonstrate that this ruling was harmful and required reversal,
as such testimony would have been cumulative of other evidence; more-
over, the amount by which the trial court modified the defendant’s
alimony obligation was proportionate to the decrease in his income and
was based on that court’s determination that the defendant was having
trouble meeting his financial obligations during the period for which he
sought a modification.
3. The trial court did not abuse its discretion in denying the plaintiff’s motions
for contempt; the court’s determination that the defendant’s nonpayment
of alimony was not wilful was based on findings that were not
clearly erroneous.
Argued March 13—officially released October 31, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Winslow, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Turner, J., issued cer-
tain orders in accordance with the parties’ stipulation;
subsequently, the court, Sommer, J., granted the defen-
dant’s motion for modification and denied the plaintiff’s
motions for contempt and for counsel fees, and the
plaintiff appealed to this court. Affirmed.
Norman A. Roberts II, with whom, on the brief, was
Tara C. Dugo, for the appellant (plaintiff).
James H. Lee, for the appellee (defendant).
Opinion
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 ali-
mony 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 rele-
vant to this appeal. The court rendered a judgment
of marital dissolution in accordance with the parties’
agreement on April 7, 2011 (dissolution judgment). Arti-
cle 3.1 of the dissolution judgment provides: ‘‘Com-
mencing and effective May 1, 2011 through and
including the payment due on April 1, 2017, the [defen-
dant], during his lifetime, shall pay alimony to the [plain-
tiff], 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 con-
cerning 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 semi-
monthly alimony payment of $2500, and (2) an October
26, 2011 motion for contempt alleging that the defen-
dant had failed to make an unspecified number of ali-
mony 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’ preoc-
cupation 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 con-
tempt 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 arrear-
age, and (3) continue to make monthly alimony pay-
ments of $5000 pursuant to the dissolution judgment.
The court accepted the stipulated agreement and ren-
dered judgment accordingly.
Soon after the January, 2013 stipulation, the defen-
dant 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 con-
tinued 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 con-
cerning 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 defen-
dant’s amended motion for modification and termina-
tion 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 defen-
dant’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 install-
ments of $1500. This appeal followed. Additional facts
will be set forth as necessary.
I
TERMINATION OF ALIMONY
The plaintiff’s first claim is that the trial court improp-
erly 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 pre-
sent any evidence that her cohabitation had ‘‘a romantic
or sexual component,’’ the plaintiff contends, the court
erred in terminating alimony on the ground of cohabita-
tion. We disagree.
The following additional facts and procedural history
are relevant to our resolution of the plaintiff’s first chal-
lenge to the court’s termination of alimony. As
explained previously, the dissolution judgment obli-
gated 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 plain-
tiff, 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 cohabita-
tion 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 cor-
rected 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 boyfried] 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 modify or sus-
pend alimony instead of terminating it, the court stated
the following: ‘‘Once the fact of termination has been
established, the final part of the inquiry is the effective
date of that termination. Our case law clearly estab-
lishes that where, as here, the language of the decree
provides for remedies separate from those contained in
. . . § 46b-86 (b), the language of the decree controls.
Mihalyak v. Mihalyak, 30 Conn. App. 516, 520–22, 620
A.2d 1327 (1993) . . . .’’ With respect to the effective
date of termination, the court determined that the ‘‘ali-
mony termination provision was automatic and self-
executing upon cohabitation . . . . See also Krichko
v. Krichko, 108 Conn. App. 644, 648–52, 948 A.2d 1092,
cert. granted, 289 Conn. 913, 957 A.2d 877 (2008) (appeal
withdrawn May 19, 2009).’’ Thus, it determined that
alimony terminated on ‘‘September 30, 2013, the date
[immediately preceding] the plaintiff’s cohabitation.’’
With these additional facts in mind, we turn to our
analysis of the plaintiff’s first challenge to the court’s
termination of alimony. As previously explained, the
crux of this challenge is that the court improperly con-
strued the term ‘‘cohabitation’’ in the dissolution judg-
ment as not requiring evidence of a romantic or sexual
relationship and, furthermore, that the defendant pre-
sented insufficient evidence that the plaintiff’s ‘‘cohabi-
tation’’ with her boyfriend included a romantic or sexual
relationship. We are not persuaded.
We begin with our standard of review. ‘‘The standard
of review in family matters is well settled. An appellate
court will not disturb a trial court’s orders in domestic
relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . In
determining whether a trial court has abused its broad
discretion in domestic relations matters, we allow every
reasonable presumption in favor of the correctness of
its action. . . . Appellate review of a trial court’s find-
ings of fact is governed by the clearly erroneous stan-
dard of review. The trial court’s findings are binding
upon this court unless they are clearly erroneous in
light of the evidence and the pleadings in the record
as a whole. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Therefore, to conclude that the trial
court abused its discretion, we must find that the court
either incorrectly applied the law or could not reason-
ably conclude as it did.’’ (Internal quotation marks omit-
ted.) Emerick v. Emerick, 170 Conn. App. 368, 378, 154
A.3d 1069 (2017).
With the appropriate standard of review in mind, we
now outline the relevant legal principles governing the
termination of alimony on the basis of an alimony obli-
gee’s cohabitation. ‘‘General Statutes § 46b-86 (b) is the
so-called cohabitation statute, which was enacted [in
1978 five] years after § 46b-86 (a) to correct the injustice
of making a party pay alimony when his or her ex-
spouse is living with a [significant other], without mar-
rying, to prevent the loss of support.’’ (Footnote omit-
ted; internal quotation marks omitted.) Connolly v.
Connolly, 191 Conn. 468, 473–74, 464 A.2d 837 (1983).
Section 46b-86 (b) provides in relevant part that a
court may ‘‘modify [a dissolution judgment] and sus-
pend, reduce or terminate the payment of periodic ali-
mony 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. . . .’’
Our Supreme Court has characterized § 46b-86 (b) as
containing both a ‘‘definitional portion’’ and a ‘‘remedial
aspect.’’ Nation-Bailey v. Bailey, 316 Conn. 182, 197,
112 A.3d 144 (2015). The ‘‘definitional portion’’ of the
statute refers to how the legislature defines ‘‘cohabita-
tion.’’ (Internal quotation marks omitted.) See id., 198
n.11; Fazio v. Fazio, 162 Conn. App. 236, 240 n.1, cert.
denied, 320 Conn. 922, 132 A.3d 1095 (2016). The ‘‘reme-
dial aspect’’ refers to the equitable powers the statute
permits the trial court to exercise upon making a finding
of cohabitation. Nation-Bailey v. Bailey, supra, 195–97.
With respect to the definitional portion, ‘‘[s]ection
46b-86 (b) does not use the word cohabitation. The
legislature instead chose the broader language of living
with another person rather than cohabitation . . . .
Because, however, living with another person without
financial benefit did not establish sufficient reason to
refashion an award of alimony under General Statutes
§ 46b-8[2], 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.’’ (Citation omitted; inter-
nal quotation marks omitted.) DeMaria v. DeMaria, 247
Conn. 715, 720, 724 A.2d 1088 (1999).
Thus, under § 46b-86 (b), ‘‘a finding of cohabitation
requires that (1) the alimony recipient was living with
another person and (2) the living arrangement caused
a change of circumstances so as to alter the financial
needs of the alimony recipient.’’ Fazio v. Fazio, supra,
162 Conn. App. 240 n.1.
Regarding the remedial aspect of § 46b-86 (b), we
previously outlined that the court has the authority to
‘‘modify . . . suspend, reduce or terminate the pay-
ment of periodic alimony’’ upon making a finding of
cohabitation. (Emphasis added.) General Statutes
§ 46b-86 (b). Section 46b-86 (b) is not the exclusive
basis on which an obligor can seek termination of ali-
mony due to the obligee’s cohabitation, as an obligor
can also seek such termination on the basis of the terms
of a dissolution judgment. See, e.g., Remillard v. Remil-
lard, 297 Conn. 345, 352–53, 999 A.2d 713 (2010). The
issue of determining which basis the defendant
invokes for termination of alimony, however, is con-
ceptually distinct from the issue of construing the ter-
mination provision of a dissolution judgment. For
instance, if a dissolution judgment incorporates
expressly the definitional portion of § 46b-86 (b), the
court will apply the statutory definition, even though
the obligor has moved for termination pursuant to the
agreement rather than § 46b-86 (b). See, e.g., D’Ascanio
v. D’Ascanio, 237 Conn. 481, 484–86, 678 A.2d 469 (1996)
(court applied definition of cohabitation in § 46b-86 (b)
where obligor moved for modification pursuant to dis-
solution judgment providing that alimony would be
reduced ‘‘in the event that . . . [obligee] . . . cohab-
itates, as defined by statute’’ [emphasis omitted]). Our
Supreme Court has extended this principle even further,
holding that a court properly applies the statutory defi-
nition of cohabitation even where the dissolution judg-
ment fails to incorporate that definition. DeMaria v.
DeMaria, supra, 247 Conn. 719–22.
A review of the factual circumstances of DeMaria
aids in our resolution of the plaintiff’s claim. In DeMa-
ria, the dissolution judgment neither defined ‘‘ ‘cohabi-
tation’ ’’ nor referenced § 46-86 (b) or any other statute.
Id., 717. Rather, it provided merely that ‘‘alimony shall
terminate upon . . . the cohabitation by the [obligee]
with an unrelated male . . . .’’ (Internal quotation
marks omitted.) Id. When the obligor sought termina-
tion of alimony, he moved pursuant to the dissolution
judgment, not § 46b-86 (b). Id., 717–18 n.3. The trial
court denied the obligor’s motion for termination of
alimony on the ground that, although he proved that
the obligee was living with another person, there was
no evidence that that obligee’s financial needs were
altered by her living with another person. Id., 717–18.
On appeal to this court, the obligor in DeMaria
argued that the trial court had improperly construed
the term cohabitation as it was used in the dissolution
judgment. Id., 718–19. In particular, he contended that
he had moved for termination specifically pursuant to
the dissolution judgment, which, unlike § 46b-86 (b), did
not require him to prove that the obligee’s cohabitation
altered her financial circumstances. Id., 719. This court
agreed with the obligor, and the obligee appealed to
our Supreme Court.
In reversing this court’s judgment, our Supreme Court
in DeMaria first observed that ‘‘cohabit[ation]’’ was not
defined in the dissolution judgment, and, therefore, ‘‘in
deciding the . . . motion to terminate alimony, the trial
court was left to construe the word.’’ Id., 720. In constru-
ing ‘‘cohabitation,’’ our Supreme Court stated that it
was appropriate for the trial court to rely on § 46b-86
(b): ‘‘Although the definition of cohabitation as set forth
in the dissolution judgment is not controlled by § 46-
86 (b), statutes are a useful source of policy for com-
mon-law adjudication, particularly when there is a close
relationship between the statutory and common-law
subject matters. . . . We consider this case to be a
similarly appropriate instance to look to our statutes
as a useful source of common-law policy and, therefore,
consider the trial court’s reliance upon § 46b-86 (b) as
a definitional source to have been a proper exercise of
its authority.’’ (Citations omitted; emphasis added.) Id.,
721–22. Accordingly, the court concluded that ‘‘as a
matter of common-law adjudication, the trial court was
guided properly by the statute. . . . Nothing in . . .
any . . . case that we have examined, precludes an
interpretation of cohabitation that is consistent with
the considerations expressed by the legislature in § 46b-
86 (b). Indeed, we have found no principled reason to
reject such an interpretation of cohabitation.’’ (Cita-
tions omitted.) Id., 722.
With the relevant legal principles in mind, we turn
to the present case. In the present case, our reading of
the court’s corrected memorandum of decision leads
us to conclude that it interpreted ‘‘cohabitation’’ in the
dissolution judgment as consistent with the two require-
ments of § 46b-86 (b). Three reasons support this con-
clusion.
First, like the trial court in DeMaria, the trial court
in the present case determined that only two factors
controlled its cohabitation analysis. Those two factors
are the two requirements imposed by § 46b-86 (b). In the
present case, the court based its decision to terminate
alimony on only two findings: (1) the plaintiff admitted
that she began ‘‘cohabitating with her boyfriend’’; and
(2) the plaintiff’s cohabitation altered her financial
needs. The first finding, although formulated in terms
of ‘‘cohabitating,’’ refers to the first requirement
imposed by § 46b-86 (b) that the obligee live with
another person. See, e.g., Gervais v. Gervais, 91 Conn.
App. 840, 854, 882 A.2d 731 (referring to first require-
ment of § 46b-86 [b] as ‘‘cohabitation’’), cert. denied,
276 Conn. 919, 888 A.2d 88 (2005). The second finding
unequivocally refers to the second requirement of § 46b-
86 (b) that the obligee’s financial needs have been
altered. Thus, the trial court effectively determined that
the two requirements of § 46b-86 (b) were the exclusive
considerations in its analysis of cohabitation.
Second, as previously set forth in considerable detail,
a fair reading of the transcript of the trial court hearing
reveals that the plaintiff’s counsel suggested that the
court should apply § 46b-86 (b). In particular, counsel
argued that the definition of cohabitation found in
§ 46b-86 (b) applies even to dissolution judgments that
do not incorporate that definition. In light of this sugges-
tion, and the court’s corrected memorandum of deci-
sion, we are convinced that the trial court in fact applied
the statutory definition of cohabitation.
Third, we do not believe that the court’s statement
that ‘‘the language of the decree controls’’ is inconsis-
tent with its application of the definition of cohabitation
in § 46b-86 (b). Rather, in making that statement, the
court was addressing whether the dissolution judgment
incorporated that statute’s remedial aspect, not
whether that statute’s definitional portion is applicable.
See Nation-Bailey v. Bailey, supra, 316 Conn. 197. To
be sure, as the court correctly pointed out, ‘‘where
. . . the language of the decree provides for remedies
separate from those contained in . . . § 46b-86 (b), the
language of the decree controls.’’ (Emphasis added.) In
other words, the court had to determine if the dissolu-
tion judgment required it to terminate alimony upon a
finding of cohabitation, or if it had the discretion to
modify or suspend alimony pursuant to the statute.
The court ultimately concluded that it was obligated to
terminate alimony because the dissolution judgment
unambiguously provided that the ‘‘alimony termination
provision was automatic and self-executing upon
cohabitation . . . .’’ Thus, it appears that the court con-
cluded that the dissolution judgment was consistent
with § 46b-86 (b) with respect to that statute’s defini-
tional portion, but it was inconsistent with that statute
with respect to the statute’s remedial aspect.4
Having concluded that the trial court interpreted the
term ‘‘cohabitation’’ in the dissolution judgment as con-
sistent with § 46b-86 (b), we must determine whether
that was a proper interpretation. As previously
explained, our Supreme Court has held that it is appro-
priate for a trial court to apply the statutory definition
of cohabitation to a dissolution judgment that neither
defines ‘‘cohabitation’’ nor references the statute. Thus,
we are aware of no principled basis for deviating from
that rule in the present case, in which the dissolution
judgment neither defines ‘‘cohabitation’’ nor references
§ 46b-86 (b) or any other statute. Accordingly, because
the definition of cohabitation in § 46b-86 (b) has only
two elements, neither of which is evidence of a romantic
or sexual relationship, the defendant was not required,
pursuant to the dissolution judgment, to present evi-
dence of a romantic or sexual relationship.5
Our conclusion that the trial court properly construed
the term cohabitation does not end our analysis. Rather,
we still must determine whether it was clearly errone-
ous for the court to find that the plaintiff cohabited
within the meaning of § 46b-86 (b). On the basis of the
record before us, we have no difficulty concluding that
this finding is not clearly erroneous because there is
ample evidence to support it, and we are without the
definite and firm conviction that a mistake has been
committed. Specifically, the plaintiff’s own testimony
established that she began living with her boyfriend
and that, as a result of that living arrangement, her
monthly rent obligations were reduced from $950 to
$375. Thus, there was clear evidence of the two require-
ments imposed by the definition of cohabitation in
§ 46b-86 (b). Accordingly, we conclude that the trial
court’s termination of alimony was not an abuse of dis-
cretion.
B
The plaintiff’s second challenge to the court’s termi-
nation of alimony is that termination was improper
because the defendant had unclean hands. Specifically,
the plaintiff argues that the defendant’s ‘‘wilful’’ and
‘‘culpable’’ nonpayment of alimony caused the plaintiff
to cohabit with her boyfriend. We disagree.
The following additional facts and procedural history
are relevant to our resolution of the plaintiff’s claim.
The plaintiff testified that, before moving in with her
boyfriend in October, 2013, she had lived by herself on
the second floor of a Holyoke, Massachusetts, home
from October 1, 2012 to September 30, 2013. At the time
she rented the Holyoke home, she was employed and
earning approximately $15 per hour. On October 1,
2013, she moved from the Holyoke home to a home
her boyfriend was renting because she could no longer
afford the rent for the Holyoke home. According to the
plaintiff, the reason she could not afford the rent for the
Holyoke home was that the defendant was not making
timely and full alimony payments.
Regarding the defendant’s failure to make timely ali-
mony payments, the plaintiff presented evidence that
the defendant’s total alimony obligation from the time
of the dissolution judgment, April, 2011, to the time of
her cohabitation, October 1, 2013, was $144,000. When
her cohabitation began, according to the plaintiff’s evi-
dence, the defendant had paid approximately $114,950
of that $144,000 obligation, $31,950 of which was paid
between the January, 2013 stipulation and October 1,
2013. Further evidence relating to the defendant’s par-
tial and sporadic payment of alimony during that period
was provided in the defendant’s testimony. Specifically,
the defendant testified that a substantial decrease in
income prevented him from making full and consistent
alimony payments in 2013, that his reduced income also
frustrated his ability to meet other financial obligations,
including his mortgage, living expenses, taxes, legal
fees, and childcare costs, and that he ultimately bor-
rowed from his 401 (K) retirement account and the
overdraft feature on his checking account to pay ali-
mony and to meet his other financial obligations.
As we explain in parts II and III of this opinion,
the court, in its corrected memorandum of decision,
credited the defendant’s testimony. Crucially, it cred-
ited the part of his testimony that a substantial decrease
in his income prevented him from making full and timely
alimony payments and from satisfying his other finan-
cial liabilities. In so crediting the defendant’s testimony,
the court refused to find the defendant in contempt
for his nonpayment of alimony: ‘‘With respect to the
plaintiff’s motions for contempt, the court also con-
cludes that the defendant attempted to pay the alimony
and the prior arrearage, despite falling behind due to
his decreased income, by drawing from his retirement
account and other assets. The plaintiff has failed to
sustain her burden for a finding of contempt . . . .’’
With these additional facts in mind, we turn to our
analysis of the plaintiff’s second challenge to the court’s
termination of alimony. The plaintiff has not identified
any specific legal doctrine, other than unclean hands,
that purportedly precludes the termination of alimony
on the basis of cohabitation when the cohabitation
allegedly was caused by the obligor’s ‘‘wilful’’ or ‘‘culpa-
ble’’ conduct. Even if we assume, without concluding,
that unclean hands or some other unspecified doctrine
affords such relief, the record does not support the
plaintiff’s claim that the defendant’s nonpayment of
alimony was ‘‘wilful’’ or ‘‘culpable.’’
Having invoked specifically the doctrine of unclean
hands, the plaintiff’s claim requires us to set forth a
critical requirement imposed by that doctrine. That is,
like a claim of contempt, a claim of unclean hands will
not lie unless the alleged misconduct is wilful. See, e.g.,
Bauer v. Bauer, 173 Conn. App. 595, 600, 164 A.3d 796
(2017) (‘‘To constitute contempt, a party’s conduct must
be wilful. . . . Noncompliance alone will not support
a judgment of contempt.’’ [Emphasis added; internal
quotation marks omitted.]); Bank of America, N.A. v.
Aubut, 167 Conn. App. 347, 380, 143 A.3d 638 (2016)
(‘‘[t]he party seeking to invoke the clean hands doctrine
to bar equitable relief must show that his opponent
engaged in wilful misconduct with regard to the matter
in litigation’’ [emphasis added; internal quotation
marks omitted]).
Our review of the record leads us to conclude that
the plaintiff failed to meet her burden of proving that
the defendant’s nonpayment of alimony was wilful.
Indeed, as we explain in greater detail in part III of this
opinion, in refusing to find the defendant in contempt,
the trial court properly determined that the defendant’s
nonpayment was excusable. In making this determina-
tion, the court credited the defendant’s testimony that
the substantial decrease in his income and the attendant
financial hardship prevented him from making full and
timely alimony payments, and that he made efforts to
make some partial alimony payments despite the sub-
stantial decrease in income and financial hardship.6
Accordingly, having failed to prove that the defendant’s
nonpayment of alimony was wilful, the plaintiff’s sec-
ond challenge to the termination of alimony must fail.
II
MODIFICATION OF ALIMONY
The plaintiff’s second claim is that the court improp-
erly modified alimony on the basis of a substantial
change in the defendant’s financial circumstances. Hav-
ing concluded in part I of this opinion that the court
properly terminated alimony effective October 1, 2013,
our analysis of the plaintiff’s second claim is confined
to the month of September, 2013, which is the only
period for which the court modified alimony. The plain-
tiff’s second claim consists of four challenges, which
we address separately.
A
The plaintiff’s first challenge to the court’s modifica-
tion of alimony is that it was clearly erroneous for the
court to find that the defendant experienced a substan-
tial change in his financial circumstances. We disagree.
The following additional facts and procedural history
are necessary to our resolution of the plaintiff’s second
claim. At the hearing, the defendant presented testimo-
nial and documentary evidence in support of his claim
that he experienced a substantial decrease in income
when he filed his July 30, 2013 motion to modify. The
defendant testified that the decrease was due to a
change in the way in which he was compensated by
the company in which he held a partnership interest.
Specifically, prior to 2013, he and the company’s only
other partner split the partnership’s yearly profits
equally, regardless of how much revenue each of them
generated for the partnership. Beginning in 2013, how-
ever, the partnership switched to a commission based
compensation model, pursuant to which the defen-
dant’s compensation was based on how much sales
revenue he personally generated.
As a result of the change in the partnership’s compen-
sation scheme, the defendant’s adjusted gross income
in 2013, the year in which he sought a modification of
alimony, was less than his adjusted gross income in
2011, the year in which the parties’ marriage was dis-
solved. The defendant’s federal income tax returns,
which were admitted at the hearing as exhibits, indi-
cated that his 2011 adjusted gross income was $121,743
and that his 2013 adjusted gross income was $82,507.
The defendant provided testimony, corroborated by his
bank statements, that his company’s new compensation
scheme caused there to be months in 2013 in which he
did not receive any payments from the company.
In addition to frustrating his ability to make timely
alimony payments, the decrease in the defendant’s
income had other financial consequences. Specifically,
the defendant testified that he was unable to pay his
federal income tax liability for the years of 2010, 2012,
and 2013, that a lien had been placed on his home, that
he was five months behind on mortgage payments, and
that he had borrowed funds from his 401 (K) retirement
account to cover bills and expenses.
In its corrected memorandum of decision, the trial
court found that ‘‘prior to August, 2013, the defendant’s
income had been substantially reduced . . . . [T]he
defendant’s substantial income reduction occurred
shortly before the plaintiff’s . . . cohabitation termi-
nated his ongoing alimony obligation.’’ Thus, the court
ordered that ‘‘alimony . . . [be] reduced to $4000 for
September, 2013, the period between when [the defen-
dant] had zero draws and the termination of alimony
as a result of plaintiff’s cohabitation.’’ In finding a sub-
stantial change in the defendant’s financial circum-
stances, the court reasoned as follows: ‘‘There is no
dispute that the defendant’s income as of 2013 is signifi-
cantly lower than it was previously, in particular, as
reflected on his 2011 and 2012 income tax returns.’’
With these additional facts in mind, we begin our
analysis of the plaintiff’s first challenge to the court’s
modification of alimony by outlining the pertinent legal
principles. ‘‘Our review of a trial court’s granting or
denial of a motion for modification of alimony is gov-
erned by the abuse of discretion standard. . . . To the
extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings
were clearly erroneous. . . . In determining whether
a trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action. . . . Trial
courts have broad discretion in deciding motions for
modification.’’ (Citation omitted; internal quotation
marks omitted.) Light v. Grimes, 156 Conn. App. 53,
64, 111 A.3d 551 (2015).
‘‘Modification of alimony is governed by [§ 46b-86
(a)] which provides in relevant part: Unless and to the
extent that the decree precludes modification . . . an
order for alimony . . . may at any time thereafter be
. . . altered or modified . . . upon a showing of a sub-
stantial change in the circumstances of either party
. . . . As the party seeking modification, the defendant
ha[s] the burden of proving a substantial change in
circumstances. . . .
‘‘We previously have explained the specific method
by which a trial court should proceed with a motion
brought pursuant to § 46b-86 (a). 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 author-
ity to issue a modification only if it conforms the order
to the distinct and definite changes in the circumstances
of the parties. . . . Simply put, before the court may
modify an alimony award pursuant to § 46b-86, it must
make a threshold finding of a substantial change in
circumstances with respect to one of the parties.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Schade v. Schade, 110 Conn. App. 57,
62–63, 954 A.2d 846, cert. denied, 289 Conn. 945, 959
A.2d 1009 (2008). A finding of a substantial change
in circumstances is subject to the clearly erroneous
standard of review. See, e.g., O’Donnell v. Bozzuti, 148
Conn. App. 80, 89, 84 A.3d 479 (2014). ‘‘A finding is
clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Perricone v. Perricone, 292 Conn. 187, 209,
972 A.2d 666 (2009).
Generally, ‘‘[i]n considering a motion to modify or
terminate an alimony or support order pursuant to
§ 46b-86, the court is limited to a comparison between
the current conditions and the last court order.’’
(Emphasis added; internal quotation marks omitted.)
Robinson v. Robinson, 172 Conn. App. 393, 401, 160
A.3d 376, cert. denied, 326 Conn. 921, A.3d
(2017). If a postjudgment order merely reaffirms the
dissolution judgment’s original alimony order, however,
the court must compare the current conditions to the
conditions existing at the time of the dissolution judg-
ment. See Demartino v. Demartino, 79 Conn. App. 488,
495–96, 830 A.2d 394 (2003) (‘‘Because the 1991 order
did not modify alimony, but instead merely denied the
motion for modification and maintained the alimony
award, the appropriate order was the original order
of periodic alimony contained within the judgment of
dissolution in 1982. To determine properly whether
there had been a substantial change in circumstances,
the court would have been required to compare the
parties’ financial circumstances as they existed in 1982
to the parties’ financial circumstances as they existed
[when the motion for modification was filed] in 2002.’’).
Having outlined the relevant law, we proceed to an
analysis of the plaintiff’s claim. The trial court found
that the defendant experienced a substantial change in
his financial circumstances in 2013 due to a reduction
in his income. Our review of the record leads us to
conclude that this finding is not clearly erroneous.
Testimonial and documentary evidence was pre-
sented that the defendant’s income in 2013 was substan-
tially lower than his income at the time of the 2011
dissolution judgment.7 Specifically, the defendant pro-
vided testimony, which was corroborated by his federal
tax returns, that his monthly net income was $10,145.25
in 2011 and $6875.58 in 2013. Moreover, the defendant
testified that, as a result of this reduction in income,
he had difficulty paying alimony and meeting his other
financial obligations. The court was free to credit this
evidence and assign to it whatever weight it deemed
appropriate. See, e.g., Zilkha v. Zilkha, 167 Conn. App.
480, 487–88, 144 A.3d 447 (2016) (‘‘[i]t is within the
province of the trial court, when sitting as the fact
finder, to weigh the evidence presented and determine
the credibility and effect to be given the evidence’’
[internal quotation marks omitted]). This court pre-
viously has held that an income reduction of similar
magnitude can constitute a substantial change in cir-
cumstances. See, e.g., Arena v. Arena, 92 Conn. App.
463, 467–68, 885 A.2d 765 (2005) (trial court properly
found substantial change in circumstances where obli-
gor’s annual income decreased from $200,000 to
$145,000).
Accordingly, we conclude that the trial court’s finding
that there was a substantial change in circumstances
is not clearly erroneous because there is evidence to
support it, and we are without the definite and firm
conviction that a mistake has been committed.
B
The plaintiff’s second challenge to the court’s modifi-
cation of alimony is that the court improperly deter-
mined that the substantial change in circumstances was
not caused by the defendant’s own neglect or culpable
conduct. We disagree.8
The following additional facts and procedural history
are relevant to our resolution of the plaintiff’s second
challenge to the court’s modification of alimony. As
previously explained, the defendant testified that the
reduction in his income resulted from a change in the
way that he is compensated by the company in which
he holds a partnership interest. The defendant’s com-
pany is in the business of reselling video broadcasting
equipment. The defendant and his business partner,
Clifford Allen, are the company’s only partners and
employees. The defendant’s role in the company differs
slightly from Allen’s role. Allen is responsible primarily
for sales, while the defendant does consulting, design,
deployment, and installation. From 2005 to 2013, Allen
and the defendant shared the company’s profits equally,
regardless of how much sales revenue each of them
generated. While this compensation scheme was in
effect, Allen and the defendant generated varying
amounts of sales revenue, but the defendant was the
principal revenue generator.
In 2013, the defendant’s company switched to a com-
mission based compensation scheme whereby each
partner receives remuneration only for sales that he
generates. According to the defendant, the change in
the compensation structure was initiated unilaterally
by Allen; the defendant was not involved in the decision
at all. When the defendant’s sales revenue began to
decline in 2013, Allen told the defendant that he would
force him out of the company if he did not agree to the
new compensation scheme. According to the defendant,
the following factors had contributed to the decline in
his sales revenue: (1) ‘‘changes in technology’’; (2) ‘‘a
much more competitive marketplace’’; and (3) ‘‘influ-
ences outside the company,’’ including his devotion of
more time to childrearing. The defendant testified
regarding the efforts he made, under the new compensa-
tion scheme, to increase his sales revenue by expanding
his client base. Specifically, the defendant has ‘‘ma[de]
more outgoing calls to clients to increase their interest
in the [company’s] technologies . . . participat[ed] in
marketing programs with . . . the manufacturers that
[produce his company’s products],’’ and attempted to
secure ‘‘referral business through . . . existing cus-
tomers.’’
The defendant testified that he believed that he had
no other alternative but to accept the compensation
change so he could remain with the company. He
‘‘remained with the company in the hope that things
might change in the future because [he] needed to have
a job and insurance to take care of [his children].’’
The defendant reasoned that starting another company
would be the only alternative to remaining with his
current company that would have ‘‘the same kind of
income potential.’’ Starting another company, however,
was not a viable option because the defendant lacked
‘‘[s]eed money . . . to start a company [and] credit.’’
The defendant’s financial affidavit, which was admitted
at the hearing as an exhibit, also revealed that, as of
December 31, 2013, there was a $93,436 deficit in the
defendant’s capital account in the company.
The defendant was cross-examined thoroughly about
the change to his company’s compensation scheme.
The defendant denied that the change was the result
of a ‘‘negotiation’’ between Allen and him. Rather, the
change, as characterized by the defendant, was the
result of being ‘‘given [the] choice of either . . .
accepting [the compensation change] or leav[ing] the
company.’’ When asked by the plaintiff’s counsel if he
had sought advice from either a lawyer or an indepen-
dent accountant regarding whether Allen could force
him out of the company in this manner, the defendant
answered in the negative. The defendant further testi-
fied that he did not have any money to pay for the cost
of seeking such advice.
In its corrected memorandum of decision, the court
credited the defendant’s testimony that the change in
his company’s compensation scheme was not volun-
tary. Thus, it found that ‘‘the evidence does not support
any conclusion that the decrease in income was due to
voluntary or culpable conduct by the defendant.’’ In so
finding, the court reasoned that ‘‘[i]t was not unreason-
able for [Allen] to insist that they each draw income
from [the defendant’s company] based on the amount
of business they [each] generate[d].’’
With these additional relevant facts in mind, we turn
to our analysis of the plaintiff’s second challenge to the
court’s modification of alimony. We begin by setting
forth the relevant law. ‘‘[T]o qualify as a substantial
change in circumstances, a change or alleged inability
to pay must be excusable and not brought about by the
defendant’s own fault. . . . Thus, a mere [i]nability to
pay does not automatically entitle a party to a decrease
of [a support] order. . . . The moving party must show
that the alleged change in circumstances is excusable
and not brought about by the defendant’s own fault,
such as through the moving party’s own extravagance,
neglect, misconduct or other unacceptable reason
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Zilkha v. Zilkha, supra, 167 Conn. App.
488–89; see id., 485–90 (trial court did not abuse its
discretion by denying obligor’s motion to modify ali-
mony because alleged decrease in obligor’s earning
capacity was caused by his culpable conduct, which
consisted of violations of federal security laws and per-
petration of domestic violence). In determining whether
the evidence establishes a substantial change in circum-
stances, ‘‘the [trial] court [is] free to credit or reject all
or part of the testimony given . . . . On review, we
do not reexamine the court’s credibility assessments.’’
Id., 490.
Here, as explained previously, the trial court credited
the defendant’s testimony that he could not resist the
change to his company’s compensation scheme. Specifi-
cally, it credited the defendant’s assertion that Allen
gave him an ultimatum that put him squarely in a
dilemma. That is, the defendant could either accede to
the change to the compensation scheme or leave the
company. On the basis of the record before us, we
conclude that the trial court properly determined that
the defendant’s accession to the compensation change
was not the result of neglect or other culpable conduct.
Specifically, the record reveals that the defendant had
begun to experience a decline in sales revenue in 2013
due to a multitude of factors beyond his control. Rather
than leave the company for which he worked and in
which he was a partner since 2005, the defendant chose
to stay with the company and attempt to rehabilitate his
declining sales revenue. In so choosing, the defendant
reasonably determined that staying with the company
was preferable to the uncertainty of leaving it for
another opportunity. The reasonableness of this choice
is underscored by the fact that the defendant did not
have the requisite capital or credit to start a new busi-
ness and that he preferred to maintain some income
so he could meet his financial obligations, including
his mortgage and childcare expenses. Accordingly, we
conclude that the court properly determined that the
change in the defendant’s financial circumstances was
not caused by his own neglect or culpable conduct.
The plaintiff argues that what the defendant charac-
terizes as the dilemma of either agreeing to the compen-
sation change or leaving the company actually was a
false dilemma. According to the plaintiff, the defendant
had a third option, namely, challenging his business
partner’s authority to make him agree to the compensa-
tion change or leave the company. The plaintiff con-
tends that, by admittedly not seeking expert legal or
accounting advice regarding whether he could avail
himself of this third option, the defendant failed to
exercise due diligence. We are not persuaded by this
argument because it focuses too narrowly on general
notions of legal and accounting principles at the cost
of disregarding the specific practical circumstances sur-
rounding the defendant’s situation.
As an initial matter, we reiterate that implicit in the
defendant’s decision to remain with the company was
the reasonable determination that this decision was
preferable to the uncertainty of seeking other employ-
ment. Likewise, it also would be reasonable to deter-
mine that remaining with the company was preferable
to the uncertainty of resolving, and possibly litigating,
a partnership dispute. Moreover, the record amply dem-
onstrated that the defendant did not need expert legal
or accounting advice to surmise that his business part-
ner had leverage over him. In other words, regardless of
what the principles of partnership law and accounting
dictate, the defendant was not necessarily in a position
practically to oppose the compensation change. This
is especially true in light of the facts that the defendant’s
income began to decline relative to his business part-
ner’s, his capital account in the company contained a
substantial negative balance, he needed to maintain
some level of income to meet his financial obligations,
and he lacked the capital and credit to start another
company.
In light of the foregoing, we conclude that the court
properly determined that the defendant met his burden
of proving that the change in his financial circumstances
was not caused by his own neglect or culpable conduct.
C
The plaintiff’s third challenge to the court’s modifica-
tion of alimony purports to be a claim that the court
applied the wrong legal standard.9 In actuality, this chal-
lenge merely states a garden variety evidentiary claim,
namely, that the court improperly excluded relevant
testimony as to whether the reduction in his income
was due to his neglect or culpable conduct. We are not
persuaded by this evidentiary claim.
The following additional facts and procedural history
are necessary to our resolution of the plaintiff’s third
challenge to the court’s modification of alimony. As
previously set forth in part II B of this opinion, part of
the plaintiff’s strategy was to establish that the defen-
dant did not prove that the change in his financial cir-
cumstances was not due to his own neglect or culpable
conduct. Pursuant to this strategy, the plaintiff sought
to inquire whether the defendant exercised due dili-
gence in deciding to accede to his business partner’s
demand that they change the company’s compensation
scheme. Specifically, she asked the defendant, without
objection, whether he sought advice from a legal or
accounting expert regarding his business partner’s
demand. The defendant answered that he had not
sought such advice. The plaintiff then attempted to ask
the defendant the following question: ‘‘Did you do a
Google search to find out whether or not the ultimatum
that was put to you about being forced out or accepting
less was viable?’’ In response to the question, the defen-
dant raised an objection, which was sustained by the
court. In sustaining the objection, the court stated, inter
alia, that it ‘‘has permitted cross-examination on this
topic. The plaintiff’s counsel has asked a number of
times questions related to whether [the defendant]
sought other advice whether it was legal, whether it
was accounting . . . .’’
With those additional relevant facts in mind, we now
analyze the defendant’s third challenge to the court’s
modification of alimony. We begin by setting forth the
relevant law. ‘‘[Our Supreme Court has] held generally
that [t]he trial court has broad discretion in ruling on
the admissibility [and relevancy] of evidence. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . Additionally, before a party is
entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrating
that the error was harmful.’’ (Citation omitted; empha-
sis added; internal quotation marks omitted.) Urich v.
Fish, 261 Conn. 575, 580, 804 A.2d 795 (2002); see also
Connecticut Light & Power Co. v. Gilmore, 289 Conn.
88, 128, 956 A.2d 1145 (2008) (‘‘Even when a trial court’s
evidentiary ruling is deemed to be improper, we must
determine whether that ruling was so harmful as to
require a new trial. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful.’’ [Internal quotation marks
omitted.]).
‘‘A determination of harm requires [this court] to
evaluate the effect of the evidentiary impropriety in the
context of the totality of the evidence adduced at trial.
. . . Thus, our analysis [would include] a review of: (1)
the relationship of the improper evidence to the central
issues in the case, particularly as highlighted by the
parties’ summations; (2) whether the trial court took
any measures, such as corrective instructions, that
might mitigate the effect of the evidentiary impropriety;
and (3) whether the improperly admitted evidence is
merely cumulative of other validly admitted testi-
mony. . . . The overriding question [we must answer]
is whether the trial court’s improper ruling affected the
[fact finder’s] perception of the remaining evidence.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Hayes v. Camel, 283 Conn. 475, 489–90,
927 A.2d 880 (2007). ‘‘It is well recognized that any error
in the admission of evidence does not require reversal
of the resulting judgment if the improperly admitted
evidence is merely cumulative of other validly admitted
testimony.’’ (Internal quotation marks omitted.) State
v. Dehaney, 261 Conn. 336, 364, 803 A.2d 267 (2002),
cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed.
2d 1070 (2003).
Having outlined the relevant legal principles, we turn
to the present case. Even if we assume, without decid-
ing, that the challenged evidentiary ruling was
improper, the plaintiff has failed to demonstrate that it
was harmful. Our review of the record reveals that
evidence that the defendant failed to perform a ‘‘Google
search’’ was cumulative of other evidence indicating
he failed to explore the implications of his business
partner’s demand to change the company’s compensa-
tion scheme. Indeed, as the trial court itself explicitly
noted, the plaintiff was allowed to ask the defendant
several times whether he sought any legal or accounting
advice regarding that demand. Accordingly, we con-
clude that the plaintiff has failed to demonstrate that
the allegedly improper evidentiary ruling was harmful.10
D
The plaintiff’s final challenge to the court’s modifica-
tion of alimony is that the court abused its discretion
in reducing the defendant’s alimony obligation for the
month of September, 2013. We disagree.
The following additional relevant facts guide our res-
olution of the plaintiff’s final challenge to the court’s
modification of alimony. As previously set forth, the
court properly terminated the plaintiff’s periodic ali-
mony effective October 1, 2013. See part I of this opin-
ion. In addition to seeking termination of alimony on
that date, the defendant also requested that the court
reduce his alimony obligation for the month of Septem-
ber, 2013, from $5000 to $0. Although the court modified
the defendant’s obligation for that month, it reduced
that monthly obligation only by $1000.
As set forth previously, ‘‘[o]ur review of a trial court’s
granting or denial of a motion for modification of ali-
mony is governed by the abuse of discretion standard.
. . . To the extent that the trial court has made findings
of fact, our review is limited to deciding whether such
findings were clearly erroneous. . . . In determining
whether a trial court has abused its broad discretion in
domestic relations matters, we allow every reasonable
presumption in favor of the correctness of its action.
. . . Trial courts have broad discretion in deciding
motions for modification.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Light v.
Grimes, supra, 156 Conn. App. 64. ‘‘Trial courts are
vested with broad and liberal discretion in fashioning
orders concerning the type, duration and amount of
alimony and support . . . .’’ (Emphasis added; internal
quotation marks omitted.) Schwarz v. Schwarz, 124
Conn. App. 472, 485, 5 A.3d 548, cert. denied, 299 Con.
909, 10 A.3d 525 (2010).
Mindful of the broad and liberal discretion that a trial
court enjoys in fashioning alimony orders, we have no
difficulty in concluding that the court’s modification
of alimony in the present case was not an abuse of
discretion. Indeed, the court’s modest reduction of ali-
mony by only 20 percent for only one month, the month
immediately preceding the termination of alimony, was
a proportionate modification under the circumstances
of this case. The proportionality of the court’s modifica-
tion is clear in light of that court’s finding that the
defendant’s income during the period for which alimony
was modified was approximately 32 percent lower than
it was at the time of the dissolution judgment. Further-
more, the court credited the defendant’s assertions that
he was having difficulty meeting his financial obliga-
tions during the period for which alimony was modified.
Accordingly, we conclude that the court’s modification
of alimony for the month of September, 2013, was not
an abuse of discretion.
III
MOTIONS FOR CONTEMPT
The plaintiff’s final claim is that the trial court improp-
erly denied her motions for contempt. We disagree.
The following additional facts and procedural history
are necessary to our resolution of the plaintiff’s final
claim. The plaintiff filed numerous postjudgment
motions for contempt, alleging that the defendant wil-
fully and intentionally failed to make alimony payments.
The motions that are the subject of this appeal are the
plaintiff’s November 13, 2014 motions for contempt.
In one motion, the plaintiff alleged that the defendant
wilfully and intentionally failed to pay alimony pursuant
to the dissolution judgment. With respect to the dissolu-
tion judgment, which required the defendant to pay
$5000 per month in alimony, the plaintiff alleged that
the defendant had failed to make $85,200 in monthly
alimony payments. In the second motion, the plaintiff
claimed that the defendant was in contempt of the Janu-
ary, 2013 stipulation, which required him to make
monthly payments of $750 toward his stipulated arrear-
age of $22,000. The plaintiff alleged that the defendant
had failed to make $9000 in such payments.
At the hearing, the plaintiff presented evidence that
the defendant had paid some, but not all, of his alimony
obligations under the dissolution judgment and the Jan-
uary, 2013 stipulation. Specifically, the plaintiff’s evi-
dence showed that the defendant had paid, as of
November, 2014, $114,950 of his total $144,000 alimony
obligation for the period between the dissolution judg-
ment and the termination of alimony on September 30,
2013. According to the plaintiff’s calculations,11 of the
$114,950 that the defendant paid, $31,950 was paid
between the January, 2013 stipulation and the January
21, 2015 hearing.
Furthermore, as previously explained, on July 30,
2013, the defendant filed a motion for modification of
alimony on the ground that his 2013 income was sub-
stantially less than his income at the time of the dissolu-
tion judgment. Notwithstanding the defendant’s claim
that the substantial decrease in income prevented him
from making full alimony payments, he continued to
make partial alimony payments. Indeed, the parties’
evidence undisputedly indicated that, with the excep-
tion of a few months, the defendant paid some alimony
in the months preceding and following July, 2013. Spe-
cifically, the defendant paid $5700 in February, 2013;
$3250 in March, 2013; $750 in April, 2013; $750 in May,
2013; $3750 in June, 2013; $750 in July, 2013; $1000
in August, 2013; $1000 in November, 2013; $1500 in
December, 2013; $2000 in January, 2014; $3000 in Febru-
ary, 2014; $300 in April, 2014; $100 in May, 2014; $1400 in
June, 2014; $1000 in September, 2014; $750 in October,
2014; and $150 in November, 2014. The defendant testi-
fied that in the months in which he had no income,
he relied on loans from his 401 (K) and the overdraft
protection feature of his checking account to fund par-
tial alimony payments.
As previously set forth in considerable detail, the
court credited the defendant’s testimony that he experi-
enced a substantial decrease in his income in 2013. It
also credited his assertion that, as a consequence of
that decrease, he had difficulty paying alimony and
meeting his other financial obligations. Thus, in light
of the fact that the defendant attempted to pay some
alimony despite the decrease in his income, the court
refused to find the defendant in contempt and stated:
‘‘With respect to the plaintiff’s motions for contempt,
the court also concludes that the defendant attempted
to pay the alimony and the prior arrearage despite fall-
ing behind due to his decreased income by drawing
from his retirement account and other assets. The plain-
tiff has failed to sustain her burden for a finding of
contempt . . . .’’ (Citation omitted.)
With these additional relevant facts in mind, we turn
to our analysis of the plaintiff’s claim that the court
erred in failing to find the defendant in contempt. ‘‘Con-
tempt is a disobedience to the rules and orders of a
court which has power to punish for such an offense.’’
(Internal quotation marks omitted.) In re Jeffrey C.,
261 Conn. 189, 196, 802 A.2d 772 (2002). ‘‘A finding of
contempt is a question of fact, and our standard of
review is to determine whether the court abused its
discretion in failing to find that the actions or inactions
of the [defendant] were in contempt of a court order.
. . . To constitute contempt, a party’s conduct must
be wilful. . . . Noncompliance alone will not support
a judgment of contempt. . . . A finding that a person
is or is not in contempt of a court order depends on
the facts and circumstances surrounding the conduct.
The fact that an order has not been complied with fully
does not dictate that a finding of contempt must enter.
. . . [It] is within the sound discretion of the court to
deny a claim for contempt when there is an adequate
factual basis to explain the failure to honor the court’s
order. . . .
‘‘It is therefore necessary, in reviewing the propriety
of the court’s decision to deny the motion for contempt,
that we review the factual findings of the court that led
to its determination. The clearly erroneous standard is
the well settled standard for reviewing a trial court’s
factual findings. A factual finding is clearly erroneous
when it is not supported by any evidence in the record
or when there is evidence to support it, but the
reviewing court is left with the definite and firm convic-
tion that a mistake has been made.’’ (Citations omitted;
internal quotation marks omitted.) Auerbach v. Auer-
bach, 113 Conn. App. 318, 326–27, 966 A.2d 292, cert.
denied, 292 Conn. 901, 971 A.2d 40 (2009).
Having outlined the relevant law, we turn to the pre-
sent case. The court’s refusal to find the defendant in
contempt is predicated on two findings: (1) the defen-
dant experienced a substantial decrease in income in
2013 that prevented him from fully meeting his alimony
obligations, and (2) despite that substantial decrease in
income, the defendant made partial alimony payments.
Thus, the court concluded, on the basis of those two
factual findings, that the defendant’s nonpayment of
alimony was not wilful because there was an adequate
factual basis explaining his nonpayment. We already
have determined that the first relevant finding support-
ing this conclusion, the substantial decrease in the
defendant’s income, is not clearly erroneous. See part
II A of this opinion. With respect to the second relevant
finding, the defendant’s partial payment of alimony, our
review of the record leads us to conclude that it, too,
is not clearly erroneous. Indeed, the plaintiff’s own evi-
dence established that the defendant made, during the
period in which his income had substantially decreased,
numerous partial alimony payments that totaled nearly
$30,000. Moreover, to the extent that the defendant had
no income at some points during that period, he testified
that he relied on other financial resources to fund partial
alimony payments. Accordingly, because its determina-
tion that the defendant’s nonpayment of alimony was
not wilful is predicated on findings that are not clearly
erroneous, the court did not abuse its discretion in
denying the plaintiff’s motion for contempt.
The plaintiff argues that, even though the defendant
made partial alimony payments, the record reflects that
he had the means to make larger payments but wilfully
chose not to. Specifically, the plaintiff asserts that there
was evidence that the defendant spent money on other
expenses while paying only ‘‘a fraction’’ of his alimony
obligation. The plaintiff’s claim is similar to a claim that
we rejected in Auerbach v. Auerbach, supra, 113 Conn.
App. 327–28.
In Auerbach, an alimony obligee appealed the trial
court’s denial of her motion for contempt, claiming that
the evidence demonstrated that the obligor’s nonpay-
ment of alimony was wilful. Id., 326. Specifically, the
obligee argued that the obligor’s ‘‘conduct . . . was
consistent with a higher income than he claimed’’ and
that he had the ‘‘ability to comply with the court’s
orders.’’ Id., 327. The obligee also argued that the wil-
fulness of the obligor’s nonpayment was typified by
evidence that he made payments to other creditors and
that he ‘‘continued his lavish lifestyle and pursued his
recreational activities.’’ Id. In affirming the trial court’s
denial of the obligee’s motion, this court reasoned that
the trial court could have credited the obligor’s testi-
mony that his income declined substantially, that he
had to borrow large sums of money to pay for his
children’s daily expenses and to meet other financial
obligations, and that he was unable to meet his alimony
obligations. Id., 327–28. The obligor’s testimony, there-
fore, provided an adequate factual basis explaining his
failure to pay alimony: ‘‘From the [obligor’s] testimony
. . . the court reasonably could have concluded that
[his] financial situation had so deteriorated that he was
unable to comply with [his] . . . alimony . . . obliga-
tions . . . .’’ Id., 328.
The defendant’s testimony in the present case, similar
to the obligor’s testimony in Auerbach, indicated that
his income decreased substantially, that he had diffi-
culty paying living expenses, such as his mortgage and
childcare costs, that he was unable to comply fully with
his alimony obligations, and that he ultimately resorted
to loans to cover his living expenses and partial alimony
payments. The trial court here chose to credit that testi-
mony, which it was entitled to do. Notwithstanding the
plaintiff’s assertions to the contrary, that testimony, if
believed, provided an adequate factual basis establish-
ing that the defendant’s nonpayment of alimony was
not wilful. See id.
On the basis of the foregoing, we conclude that the
court did not abuse its discretion in denying the plain-
tiff’s motions for contempt.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The trial court inadvertently released a decision that was in draft form and
that contained mathematical errors and some factual findings that obviously
were not part of this case. Following that decision, the plaintiff appealed and
filed an appellate brief responding to the trial court’s errant memorandum
of decision. Before filing his appellate brief, the defendant filed a motion
for permission to file a late motion for rectification and articulation, which
this court granted. The trial court then issued a corrected memorandum of
decision. After the trial court issued a corrected memorandum of decision,
the plaintiff filed a motion for review with this court, claiming that the trial
court improperly had made substantive changes to its original decision. This
court granted the motion for review but denied the relief requested therein.
The plaintiff then filed a motion for reconsideration en banc of our denial
of the relief requested in her motion for review. This court denied en banc
the plaintiff’s motion for reconsideration. Following our denial of her motion
for reconsideration en banc, the plaintiff did not request permission to file
a new or supplemental brief directed at the corrected memorandum of
decision. Given the foregoing procedural history and the fact that the plaintiff
did not attempt to file a supplemental brief claiming that the court’s correc-
tion of its decision was improper, the issue of whether the trial court properly
corrected its decision is not before us in this appeal. Additionally, because
the plaintiff did not file a new or supplemental brief responding to the trial
court’s corrected decision, we have done our best to consider her claims,
as briefed, in light of the corrected decision.
2
The record reveals that the defendant attempted to amend his July 30,
2013 motion to modify on or around January 5, 2015. That amended motion,
which set forth the defendant’s claim for termination of alimony on the
ground of cohabitation, was not docketed at the time. Indeed, the record
reveals that the amended motion was not docketed until February, 2015,
which was after the January 21, 2015 hearing on the parties’ motions.
Although the amended motion was not docketed until after that hearing,
the defendant had filed on January 13, 2015 a document called, ‘‘Proposed
Orders and Claims For Relief,’’ which sought termination of alimony on the
basis of cohabitation. Additionally, on the day of the January 21, 2015 hearing,
the defendant filed a memorandum of law wherein he argued that alimony
should be terminated on the basis of cohabitation. Because the plaintiff did
not raise the issue of the amended motion’s belated docketing in either the
trial court or on appeal, we need not address it further.
3
‘‘Section 46b-86 (b), known as the cohabitation statute, provides in perti-
nent 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 circum-
stances which the court finds should result in the modification . . . of
alimony because the living arrangements cause such a change of circum-
stances as to alter the financial needs of that party.’’ (Internal quotation
marks omitted.) D’Ascanio v. D’Ascanio, 237 Conn. 481, 485–86, 678 A.2d
469 (1996).
4
The court’s statement that the ‘‘language of the decree controls’’ also
relates to the issue of ‘‘the effective date of th[e] termination.’’ Indeed, the
authority cited by the court involved the issue of when termination was
effective, not the issue of whether cohabitation occurred. See Krichko v.
Krichko, supra, 108 Conn. App. 648 (‘‘the parties are not disputing whether
the alimony should have been terminated but, rather, when it should have
been terminated’’ [emphasis in original]); Mihalyak v. Mihalyak, supra, 30
Conn. App. 519 (obligor claimed that trial court should have terminated
alimony as of date of cohabitation, not as of date on which obligor filed
motion to terminate).
5
We are not convinced that Remillard v. Remillard, supra, 297 Conn.
345, compels the conclusion that the dissolution judgment in the present
case required evidence of a romantic or sexual relationship to terminate
alimony on the basis of cohabitation. As an initial matter, Remillard does
not purport to explicitly or implicitly overrule DeMaria. Indeed, one of the
claims on appeal brought by the obligor in Remillard was that DeMaria
was controlling, and, thus, § 46b-86 (b) applied even to a dissolution judg-
ment that did not incorporate the statutory definition of cohabitation. Remil-
lard v. Remillard, supra, 350–51. Rather than address the merits of that
claim, our Supreme Court held that it was unpreserved and unreviewable.
Id., 353. Furthermore, there are three crucial distinctions between Remillard
and the present case. First, unlike in Remillard, the parties in the present
case did not litigate at all the issue of a romantic or sexual relationship
requirement. See id., 348–49. Indeed, neither party raised or argued this
issue in any submission to the trial court or at any hearing or oral argument
before the trial court. Second, because the issue of a romantic or sexual
relationship requirement was never raised in the trial court here, that court
never addressed the issue and the parties did not present any evidence of
the same. This is in stark contrast to Remillard, where the trial court ruled
on the romantic or sexual relationship requirement and both parties testified
as to their understandings of whether the term ‘‘cohabitation’’ in their separa-
tion agreement included such a requirement. Id., 349–50. Third, neither
party in Remillard urged the trial court to apply the statutory definition of
cohabitation; id., 352–53; whereas the plaintiff in the present case appears
to have suggested that the court should rely on the definition in § 46b-86
(b). For those reasons, we conclude that Remillard does not control the
present case.
6
From the trial court’s determination that the defendant’s nonpayment
of alimony was excusable, it is reasonable to conclude that his nonpayment
was neither wilful nor ‘‘culpable.’’ See Black’s Law Dictionary (10th Ed.
2014) (defining ‘‘culpable’’ as ‘‘blameworthy’’).
7
We note that, although the parties’ January, 2013 stipulation was a post-
judgment order, it merely reaffirmed the defendant’s periodic alimony obliga-
tion as set forth in the 2011 dissolution judgment. Thus, the trial court
properly compared the defendant’s income at the time of the dissolution
judgment to his current income. See Demartino v. Demartino, supra, 79
Conn. App. 495–96.
8
Related to the plaintiff’s claim that the defendant’s neglect caused the
substantial change in circumstances is her claim that the court improperly
denied her motion for a judgment of dismissal. See Practice Book § 15-8
(‘‘[i]f, on the trial of any issue of fact in a civil matter tried to the court,
the plaintiff has produced evidence and rested, a defendant may move for
judgment of dismissal, and the judicial authority may grant such motion if
the plaintiff has failed to make out a prima facie case’’). After the defendant
rested, the plaintiff moved for a judgment of dismissal, arguing that the
defendant had failed to make out a prima facie case that his own neglect
did not cause the substantial change in circumstances. In so arguing, the
plaintiff reserved the right to present her own evidence. The court apparently
never ruled on the plaintiff’s motion, and she never presented her own
evidence. We need not address separately the court’s functional denial of
the plaintiff’s motion for a judgment of dismissal. The plaintiff never pre-
sented any of her own evidence, and we would affirm the denial of her
Practice Book § 15-8 motion if the defendant had produced evidence ‘‘suffi-
cient to raise an issue to go to the trier of fact.’’ (Internal quotation marks
omitted.) Carter v. State, 159 Conn. App. 209, 223, 122 A.3d 720, cert. denied,
319 Conn. 930, 125 A.3d 204 (2015). Thus, because we conclude that the
court properly found, on the basis of defendant’s evidence alone, that the
substantial change in circumstances was not caused by the defendant’s
neglect, then, a fortiori, the defendant produced evidence sufficient to defeat
a Practice Book § 15-8 motion.
9
The plaintiff contends that the court applied the wrong standard by
improperly failing to consider whether the defendant’s neglect or culpable
conduct caused the change in his financial circumstances. As discussed
previously in part II B of this opinion, that claim simply is without merit.
Indeed, that contention is belied by the court’s explicit determination in its
corrected memorandum of decision that ‘‘the evidence does not support any
conclusion that the [defendant’s] decrease in income was due to voluntary
or culpable conduct . . . .’’ (Emphasis added.)
10
In precluding testimony on whether the defendant performed a ‘‘Google
search’’ regarding his business partner’s demand that the company change
its compensation scheme, the court also remarked: ‘‘I’m not sure whether
Google research is reliable or whether this court would consider that.’’ That
statement further convinces us that the allegedly improper preclusion of
such testimony would not have likely affected the court’s ruling. See, e.g.,
Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 161, 971
A.2d 676 (2009) (‘‘[t]he harmless [impropriety] standard in a civil case is
whether the improper ruling would likely affect the result’’ [internal quota-
tion marks omitted]).
11
The defendant’s own calculations suggest that he paid $2500 less than
what the plaintiff’s calculations suggest he paid. The court ultimately
resolved this discrepancy in the plaintiff’s favor by adopting the defen-
dant’s calculations.