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MURPHY v. MURPHY—DISSENT
PRESCOTT, J., dissenting. For at least two reasons,
I disagree with the majority’s conclusion that the judg-
ment of the trial court in this case must be reversed due
to the court’s application of the wrong legal standard
in deciding whether to terminate the alimony obligation
of the plaintiff, Robert R. Murphy. First, the majority’s
decision conflicts with, and implicitly overturns, prior
decisions of this court. Second, the legal standard that
the majority opinion announces is contrary to the legis-
lative intent expressed in General Statutes § 46b-86 (b).
In my view, the majority opinion fashions a new and
significantly lower standard of proof in cases in which
a party seeks to modify or terminate an alimony obliga-
tion because the recipient of the alimony is now living
with another person.
This simply is not a case in which the trial court
applied the wrong legal standard but, instead, is a case,
like many others, in which the moving party did not
meet his burden of persuasion with respect to the criti-
cal facts he needed to demonstrate in order to be enti-
tled to relief. Accordingly, I respectfully dissent.
The following facts and procedural history are rele-
vant to this appeal. The parties were divorced on March
12, 2012. The parties have one minor child that is an
issue of the marriage, and the defendant, Jamie D. Mur-
phy, also has a child who was born prior to the marriage
and who subsequently was adopted by the plaintiff.
The court rendered a judgment of marital dissolution
in accordance with the parties’ separation agreement.
Paragraph 12 of the separation agreement provides that
the plaintiff would pay periodic alimony to the defen-
dant in the amount of $400 per month until July, 2016,
nonmodifiable as to amount and duration. It further
provides that the obligation to pay alimony terminates
on the earlier of the (a) death of the plaintiff, (b) death
of the defendant, (c) remarriage of the defendant, or
(d) cohabitation by the defendant as defined by § 46b-
86 (b). On August 27, 2013, the parties agreed that the
plaintiff’s alimony obligation should be reduced to $320
per month. This modification later was approved by
the court, Olear, J.
After the divorce, the defendant began renting a con-
dominium on Sunfield Drive in South Windsor. In
December, 2014, the defendant moved into her boy-
friend’s residence in Bloomfield. The defendant paid
her boyfriend approximately $800 per month for rent
and other housing expenses. She continued to pay all
of her personal expenses and the expenses she incurred
for the parties’ children.
Upon learning that the defendant had moved into her
boyfriend’s residence in Bloomfield, the plaintiff filed
a number of motions, including the amended postjudg-
ment motion seeking termination of his obligation to
pay alimony. In that motion, the plaintiff alleged that
the defendant had moved to Bloomfield where she was
living with her boyfriend and that the new living
arrangement caused such a change in circumstances
as to alter her financial needs. The plaintiff therefore
asked the court to terminate his alimony obligation
pursuant to paragraph 12 (d) of the parties’ separa-
tion agreement.
On April 21, 2015, the parties entered into a stipula-
tion that was accepted by the court. The stipulation
provided, in relevant part, that ‘‘[i]f [the defendant] [did]
not return to South Windsor on or before August 15,
2015, then the issue of cohabitation and [the plaintiff’s]
claim to modify/terminate alimony [would] be
addressed in mid-September, 2015. Further, if [the
defendant] cohabitate[d] in South Windsor the issue of
cohabitation [would] also be addressed in mid-Septem-
ber, 2015.’’
The plaintiff’s counsel further represented to the
court that ‘‘[i]f [the defendant] resumes living in South
Windsor and leaves the residence where we’re claiming
that she’s residing with her significant other, then the
issue of cohabitation . . . [is] not a major issue and
will likely be done with. If [the defendant] returns with
her significant other to South Windsor, or if she does
not return to South Windsor and stays in Bloomfield
with her significant other, we’re going to come back in
mid-September and deal with cohabitation.’’
On August 14, 2015, as a result of the parties’ stipula-
tion, the defendant executed a lease to rent a residence
in South Windsor. Although the defendant’s boyfriend
cosigned the lease, it provided that only the defendant
and the parties’ two children would occupy the rental
residence. The defendant moved into that residence on
October 1, 2015.
At the plaintiff’s request, the court subsequently
scheduled a hearing on the plaintiff’s amended post-
judgment motion seeking termination of his alimony
obligation. The hearing took place over two days in
January and February, 2016, during which the court,
Bozzuto, J., Chief Administrative Judge for Family Mat-
ters, heard testimony and admitted into evidence vari-
ous exhibits.
Following the hearing, the court, in a written memo-
randum of decision, denied the plaintiff’s motion. In
its decision, the court recognized that the cost of the
defendant’s rent and utilities decreased when she was
living with her boyfriend but reasoned that such a
decrease ‘‘does not in and of itself lead to the conclusion
that the boyfriend [was] contributing to the defen-
dant’s expenses.’’
Indeed, the court found that ‘‘[t]here was no reliable
or persuasive evidence that the defendant’s boyfriend
paid any of her other personal or housing expenses.’’
The court concluded that there was insufficient evi-
dence to draw the inference that, in light of the new
living arrangements, the boyfriend contributes financial
support to the defendant so as to alter her financial
needs. The plaintiff did not offer any credible evidence
regarding whether the defendant’s boyfriend gave her
money for clothing, food, household items, or anything
else while she lived at the boyfriend’s residence. Nor
did the plaintiff offer any credible evidence ‘‘as to the
monthly cost of the [Bloomfield] home or an indication
of what percentage of the overall cost of the housing
the defendant’s $800 contribution covered.’’ The court
reasoned that, standing alone, the fact that the cost of
the defendant’s rent and utilities decreased while she
lived in Bloomfield with her boyfriend did not suffice
to show that her boyfriend contributed to her expenses
such that the living arrangements altered her financial
needs. In sum, the court concluded that the plaintiff
failed to meet his burden to persuade it that living with
her boyfriend in Bloomfield caused such a change of
circumstances as to alter the financial needs of the
defendant. ‘‘There is insufficient evidence before the
court to draw such a conclusion.’’1 This appeal
followed.2
On appeal, the plaintiff primarily argues that the court
applied the wrong legal standard in deciding his motion
and should have found, on the basis of the evidence
presented, that the defendant’s financial needs were
altered when she was living with her boyfriend simply
because she paid less for rent and utilities in Bloomfield
than what she had paid at the Sunfield Drive residence
in South Windsor.
At the outset, I note the points on which the majority
opinion and I appear to agree. Paragraph 12 of the
separation agreement provided that the plaintiff would
pay periodic alimony to the defendant in the amount
of $400 per month until July, 2016, nonmodifiable as
to amount and duration, and that the alimony would
terminate on the earlier of the (a) death of the plaintiff,
(b) death of the defendant, (c) remarriage of the defen-
dant, or (d) cohabitation by the defendant as defined
by § 46b-86 (b). Pursuant to the parties’ agreement,
permanent termination of the plaintiff’s obligation to
pay alimony is the sole remedy following a finding of
cohabitation and the definition of cohabitation set forth
in § 46b-86 (b) sets the standard for assessing whether
cohabitation has occurred. See Nation-Bailey v. Bailey,
316 Conn. 182, 193, 112 A.3d 144 (2015) (parties’
agreement reflects intent not to import remedial aspect
of § 46b-86 [b]).3
Section 46b-86 (b) defines cohabitation as ‘‘living with
another person under circumstances which the court
finds should result in the . . . termination of alimony
because the living arrangements cause such a change
in circumstances as to alter the financial needs of that
party.’’ Thus, in accordance with § 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.’’
(Emphasis added.) Fazio v. Fazio, 162 Conn. App. 236,
240 n.1, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132
A.3d 1095 (2016). As this court stated in DiStefano v.
DiStefano, 67 Conn. App. 628, 633, 787 A.2d 675 (2002),
‘‘[b]ecause . . . living with another person without
financial benefit did not establish sufficient reason to
refashion an award of alimony . . . the legislature
imposed the additional requirement that the party mak-
ing the alimony payments prove that the living arrange-
ment has resulted in a change in circumstances that
alters the financial needs of alimony recipient.’’ (Cita-
tion omitted; emphasis added; internal quotation
marks omitted.)
The majority opinion and I also agree that, pursuant
to § 46b-86 (b), the alteration of the financial needs of
the alimony recipient caused by the new living arrange-
ments ‘‘need not be substantial . . . [but] the differ-
ence must be measurable in some way. . . . [T]he
court must have the ability to compare the plaintiff’s
financial needs at different points in time to determine
whether those needs either have increased or have
decreased over time.’’ (Citations omitted.) Blum v.
Blum, 109 Conn. App. 316, 324–25, 951 A.2d 587, cert.
denied, 289 Conn. 929, 958 A.2d 157 (2008).
It is at this point in the analysis, however, that the
majority and I diverge. The majority appears to con-
clude that, so long as the alimony obligor demonstrates
that the alimony recipient’s expenses such as rent were
reduced in a measurable way after moving in with
another person, then the alimony obligor has estab-
lished cohabitation as defined by § 46b-86 (b). The
majority reasons that because the rental obligations of
the defendant in this case may have been reduced by
$840 per month when she moved into the new residence
in Bloomfield and began living with her boyfriend, the
plaintiff was not required to demonstrate that the per-
son with whom the defendant was living (the cohabita-
tor) made any financial contributions to paying the rent
or to the new household in general.4 I respectfully dis-
agree with this conclusion.
First, it directly conflicts with established precedent.
In Blum v. Blum, supra, 109 Conn. App. 319, the defen-
dant sought to terminate or modify his alimony obliga-
tion because the plaintiff, his former wife, had begun
living with Damian Donovan, the father of the plaintiff’s
fourth child, at a new residence that she had purchased
out of the proceeds from the sale of the marital resi-
dence. In his motion to modify, the defendant alleged
that the plaintiff’s new living arrangements ‘‘resulted in
a change to her financial circumstances sufficient to
justify a reduction or termination of the defendant’s
alimony obligations.’’ Id. The trial court denied the
motion, concluding that the defendant ‘‘failed to meet
his burden because he adduced no evidence as to the
values of the contributions that Donovan made to the
plaintiff’s household or the burdens that Donovan
placed on the plaintiff’s financial resources.’’ (Emphasis
added.) Id., 323.
This court subsequently affirmed the judgment of the
trial court. In so doing, this court emphasized that ‘‘the
defendant adduced no evidence as to the goods, ser-
vices and resources provided . . . by Donovan.’’ Id.,
321. This court plainly stated: ‘‘Parties are not required
to account for every penny that leaves the cohabitant’s
purse or elicit expert testimony as to the value con-
ferred on the alimony recipient by every activity of the
cohabitant. The party moving for a change in the court’s
alimony order, however, must adduce some evidence
from which the court could infer the value of the cohabi-
tant’s contributions. . . . In this case, there was no
evidence from which the court could have inferred the
value of Donovan’s contributions to, or demands on,
the plaintiff’s financial resources. Accordingly, we con-
clude that the court properly construed § 46b-86 (b)
in denying the defendant’s May 30, 2006 motion.’’
(Emphasis added.) Id., 325–26. The trial court in the
present case directly relied on this language from Blum
in denying the motion to terminate alimony.
The majority, however, implicitly overrules Blum
because it frees a party seeking to terminate or modify
alimony from the obligation of demonstrating that the
cohabitator contributed to the alteration in the financial
needs of the alimony recipient. Thus, the decision by
the majority contravenes the long-standing policy of
this court ‘‘that one panel should not, on its own, [over-
rule] the ruling of a previous panel. The [overruling]
may be accomplished only if the appeal is heard en
banc.’’ (Internal quotation marks omitted.) State v.
White, 127 Conn. App. 846, 858 n.11, 17 A.3d 72, cert.
denied, 302 Conn. 911, 27 A.3d 371 (2011). Indeed, nei-
ther the majority opinion nor the plaintiff cite a single
appellate case in which this court or our Supreme Court
affirmed a trial court’s termination or modification of
alimony in the absence of evidence that the cohabitator
made any contributions to the household of the alimony
recipient that thereby resulted in the alteration of his
or her financial needs.
Other appellate decisions, in analyzing the question
of cohabitation, have relied on findings that the cohab-
itator made financial contributions after moving in with
the alimony recipient. For example, in Lehan v. Lehan,
118 Conn. App. 685, 697–98, 985 A.2d 378 (2010), this
court reversed the trial court’s judgment modifying ali-
mony despite evidence that the recipient’s overall
expenses had been reduced during the period of cohabi-
tation. In doing so, we emphasized the requirement that
‘‘[t]he party moving for a change in the court’s alimony
order . . . must adduce some evidence from which the
court reasonably could infer the value of the cohabi-
tant’s contributions.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 697; see also Knapp v.
Knapp, 270 Conn. 815, 821–22, 856 A.2d 358 (2004)
(noting that trial court found that even though alimony
recipient and cohabitator already had been living
together, cohabitation did not begin until cohabitator
began to contribute financial support); Lupien v.
Lupien, 192 Conn. 443, 444–45, 472 A.2d 18 (1984)
(extensive discussion of facts showing cohabitator’s
financial contributions to alimony recipient’s house-
hold); Nation-Bailey v. Bailey, 144 Conn. App. 319,
322, 74 A.3d 433 (2013) (‘‘the plaintiff and her then
fiance´ . . . had cohabitated from December, 2007,
through late March 2008, with [her fiance´] sharing
some of the plaintiff’s living expenses during that
period, thus altering her financial needs’’), aff’d, 316
Conn. 182, 112 A.3d 144 (2015); Gervais v. Gervais, 91
Conn. App. 840, 842, 882 A.2d 731 (court found that
alimony recipient and cohabitator shared expenses and
engaged in accountings to ensure that they were each
paying their share of expenses), cert. denied, 276 Conn.
919, 888 A.2d 88 (2005); Duhl v. Duhl, 7 Conn. App. 92,
94–95, 507 A.2d 523 (finding of cohabitation supported
by evidence that alimony recipient received rent from
cohabitator), cert. denied, 200 Conn. 803, 509 A.2d
517 (1986).
Furthermore, I disagree with the majority that this
court’s recent decision in Spencer v. Spencer, 177 Conn.
App. 504, 173 A.3d 1 (2017), cert. granted, 328 Conn.
903, 177 A.3d 565 (2018), supports its conclusion that
a reduction in living expenses of the alimony recipient
alone is sufficient to establish that the living arrange-
ments have resulted in a change in circumstances that
alters the financial needs of the alimony recipient.
Indeed, if anything, Spencer reaffirms the importance
of adducing evidence that the cohabitator is making
financial contributions to the new household or the
alimony recipient.
In Spencer, contrary to the suggestion of the majority,
the defendant, the alimony obligor, demonstrated that
the cohabitator was contributing financially to the new
living arrangements with the plaintiff, the alimony recip-
ient. Prior to moving in with her boyfriend in a rented
single-family home, the plaintiff lived alone on the sec-
ond floor of a two-family house where she paid $950
per month in rent. Id. 511. As this court specifically
noted, ‘‘[r]egarding her living arrangement with her boy-
friend, 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.’’ (Emphasis added.) Id. Indeed, the trial court in
Spencer specifically predicated its conclusion that the
defendant had established cohabitation on the basis of
‘‘two findings: (1) [t]he plaintiff has admitted that she
began cohabitating with her boyfriend on or about Octo-
ber 1, 2013, and (2) as result of that cohabitation and
the contribution[s] of [her boyfriend] to the plaintiff’s
household expenses, the plaintiff’s financial needs have
been altered.’’ (Emphasis added; internal quotation
marks omitted.) Id., 512.
Thus, Spencer is entirely consistent with Blum and
other appellate cases in which cohabitation was estab-
lished after the alimony obligor had met his or her
burden to demonstrate that the cohabitator’s financial
contributions to the alimony recipient have altered the
financial needs of the alimony recipient. In light of the
previously quoted language from Spencer, I simply can-
not read the decision, as the majority seems to do, as
standing for the proposition that a reduction in rent is
sufficient evidence, by itself, to establish that the ali-
mony recipient’s financial needs have altered because
the alimony recipient is living with her boyfriend.
My second point of contention with the majority opin-
ion is that the conclusion it reaches is contrary to the
definition of cohabitation set forth in § 46b-86 (b)
because it effectively eliminates the requirement con-
tained in the plain language of the statute that a party
seeking to avoid his or her alimony obligation must
establish a causal nexus between the living arrangement
and the change of circumstances that alters the alimony
recipient’s needs. The statute plainly states that alimony
may be terminated when the party seeking termination
establishes that the living arrangements, that is, living
with another person, ‘‘cause such a change of circum-
stances as to alter the financial needs of that party.’’
(Emphasis added.) General Statutes § 46b-86 (b).
A simple hypothetical will help to explain why I think
that the majority’s decision eliminates the causal nexus
required by the statute. Consider a scenario in which
an alimony recipient is living in a residence for which
the rent is $2000 per month. In order to reduce her
expenses, however, she chooses to move into a new,
smaller residence where the rent is only $1200 per
month. Several months later, another person moves
into the new residence of the alimony recipient, but
the cohabitator does not pay any of the rent or other-
wise make any financial contributions to the alimony
recipient.
Under these circumstances, the decision to cohab-
itate is not the cause of the alteration of the alimony
recipient’s financial needs. Instead, the financial needs
of the alimony recipient have been altered because of
his or her choice to live in a less expensive dwelling
and not because he or she has chosen to cohabitate.
In the present case, like in the hypothetical, the court
made no findings that the defendant’s boyfriend contrib-
uted in any way to the household’s costs for rent, utili-
ties or other personal expenses.
As I understand the majority decision, the combina-
tion of the fact that the alimony recipient’s expenses
have been reduced with the fact that he or she is now
living with a third party is sufficient to establish cohabi-
tation pursuant to § 46b-86 (b) even though there is no
evidence that the cohabitator has anything to do with
the reduction of those expenses. Such a rule eliminates
the causal nexus required by the plain language of
the statute.
I do not mean to argue that the financial needs of
the alimony recipient in my hypothetical are unaltered
or unchanged, or that the alimony obligor is necessarily
without a remedy. Because it is not the cohabitation
itself, however, that has caused that change, the remedy
for the alimony obligor in my hypothetical must be
sought pursuant to § 46b-86 (a), which permits the trial
court, unless otherwise precluded by the divorce decree
itself, to terminate or modify alimony upon a showing
of a ‘‘substantial change in the circumstances of either
party . . . .’’ The lower standard of proof fashioned by
the majority in this case has the effect of confounding
the first two subsections of § 46b-86. See Berry v. Berry,
88 Conn. App. 674, 682–83, 870 A.2d 1161 (2005)
(whether alimony should be modified pursuant to § 46b-
86 [a] requires different legal analysis than modification
pursuant to § 46b-86 [b]).
I also should note that the majority concludes that
this case should be remanded to the trial court for a
new hearing on the motion to terminate alimony. A
new hearing, however, seemingly would be unnecessary
under the majority’s lower standard of proof because,
on the basis of the factual findings by the trial court
that the defendant’s living expenses have been reduced
during a period in which she was living with her boy-
friend, no other facts would be necessary to entitle the
plaintiff to a termination of alimony.
I do not mean to suggest that the trial court in this
case was prohibited from inferring that the defendant
was receiving financial support from her boyfriend
based on the fact the defendant was paying less rent
in Bloomfield after moving in with him than she had
been paying in South Windsor. The trial court, however,
chose not to draw this inference based on the lack of
reliable evidence of financial support by the cohabitator
or of what the total amount of rent was for the Bloom-
field residence. Thus, in my view, this is simply an
unremarkable case in which an experienced trial judge
heard the evidence, applied the standard set out in Blum
and other appellate decisions, and ultimately concluded
that the plaintiff had not met his burden of persuasion
to prove the nexus between the alteration in the defen-
dant’s financial needs and the fact that she was living
with her boyfriend. Instead, the majority’s decision to
reverse the judgment and implicitly overrule our prece-
dent undoubtedly will surprise members of the bench
and bar who have relied on those cases. If the majority
believes those cases were incorrectly decided, then we
should adhere to the rules regarding when they may
be overruled.
I respectfully dissent.
1
With respect to the period of time after the defendant moved from
Bloomfield back to South Windsor, the court also found that ‘‘the record
[was] devoid of reliable or probative evidence that the boyfriend contributes
financial support to the defendant . . . .’’ The court therefore concluded
that the evidence did not support a finding of cohabitation and declined to
terminate the plaintiff’s alimony obligation to the defendant. The plaintiff
does not challenge on appeal this determination.
2
The defendant did not file a brief in this court.
3
In other words, the plaintiff does not seek to terminate alimony on the
basis of § 46b-86 (b). Instead, the plaintiff seeks to terminate alimony on
the basis of the parties’ agreement, in which they simply rely on the statute
as a means of defining ‘‘cohabitation.’’ See General Statutes § 46b-86 (b) (‘‘[i]n
the event that a final judgment incorporates a provision of an agreement
in which the parties agree to circumstances, other than as provided in this
subsection, under which alimony will be modified, including suspension,
reduction, or termination of alimony, the court shall enforce the provision
of such agreement and enter orders in accordance therewith’’); see also
Nation-Bailey v. Bailey, supra, 316 Conn. 198.
4
Footnote 3 of the majority opinion implies that the defendant’s boyfriend
also contributed to expenses related to the defendant’s minor children while
she was living at the Bloomfield residence by referring to testimony of the
defendant that she did not do ‘‘major grocery shopping’’ during that time.
The trial court, however, made no such finding in its memorandum of
decision and, in fact, found that ‘‘[t]here was no reliable or persuasive
evidence that the defendant’s boyfriend paid any of her other personal or
housing expenses.’’