McGowan v. McGowan

Speziale, J.

(dissenting). Regrettably, the majority has put its imprimatur on judge-shopping. Also, in finding a substantial change in circumstances on the facts of this case, the majority has opened the floodgates to frivolous motions for modification.

When the marriage of the plaintiff, Michael McGowan, and the defendant, Marilyn McGowan, was dissolved on March 14, 1978, the trial court {Hon. James P. Doherty, state referee) ordered, inter alia, the plaintiff to pay to the defendant toward the support of the children $30 per week for each of three minor children and $20 per week as alimony. No appeal was taken from this order. A mere two months and ten days later, however, on May 24, 1978, the plaintiff filed a motion for modification of alimony stating that “due to the increase *691in the cost of living and other causes, he is not able to pay the alimony and support [originally] awarded by the Court [Doherty, state referee] ... On June 13, 1978, this motion was granted by the court (Phillips, J.) and the support payments were reduced to $20 per week for each of three children and the alimony award was lowered to $10 per week. When an arrearage of $517 was paid, the alimony was to increase to $20 per week.

In its finding on the motion for modification the court (Phillips, J.) found that the plaintiff’s weekly expenses in March of 1978, were $188.84; and as of June of 1978 his expenses had increased by approximately $100, which increase included alimony and support payments totaling $110. Thus, absent the support and alimony payments, the plaintiff’s weekly expenses decreased by $10 between March and June. On March 7, 1978, the date of the final hearing for the dissolution, the plaintiff had liabilities totaling $11,854; but on June 13, 1978, the plaintiff’s liabilities had decreased to approximately $8652. In addition to the support and alimony payments, the only other indication in the finding that the plaintiff’s financial condition had worsened was the finding that the plaintiff no longer had his sister as a source of loans since she had no more money to give him. The plaintiff was found to have owed his sister $1630.

The majority states that it is “apparent that the trial court did not give credence to the plaintiff’s original financial affidavit or that the evidence indicated some other source of revenue, or both, because the plaintiff’s affidavit standing alone could not have supported the original award.” The majority is obviously concerned with the inability of the plain*692tiff to make ends meet, and is therefore seeking to treat this ease as an appeal of the original order. The plaintiff does have a duty to support his three minor children born between 1964 and 1968. It appears that even the original award would not provide sufficient funds to enable them to have a style of life equal to that they enjoyed prior to the divorce. The limited funds involved evidently supported a family of five when they lived together,* however, if two separate residences are to be maintained, it is obvious that all will have to struggle to provide the necessities. Realistically speaking, it may be that both the plaintiff and the defendant will have to seek other sources of revenue, perhaps through part-time employment.

Despite the majority’s attempts to reach the issue of whether the affidavit alone could have supported the original award, that issue is not before us. The plaintiff, who was represented by counsel during the dissolution action, chose not to appeal the support and alimony order. Further, what may be “apparent” to the majority, I feel is speculative and irrelevant insofar as this appeal is concerned. Our inquiry must be limited to the facts contained in the record before us.

The conclusions of the court in ordering modification of the original support and alimony order are tested by the finding. A conclusion must stand unless the facts found are legally or logically inconsistent with it. Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92 (1972). As indicated, both the weekly expenses and the liabilities of the plaintiff had actually decreased since the original order. The question, then, is whether the termination of loans *693by the plaintiff’s sister or the increase in weekly expenses which is exclusively attributable to the support and alimony payments constitutes a substantial change in circumstances as required by § 46-54 of the General Statutes (now § 46b-86) to warrant modification of the support and alimony award. We have emphasized repeatedly that “[f]or purposes of a new hearing on alimony modification . . . modification is not warranted unless there has been a substantial change in the circumstances of either party, occurring subsequent to the entry of the original decree, cmd not contemplated by the parties at that time. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172.” (Emphasis added.) Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). The majority acknowledges, as it must, that an increase in the plaintiff’s expenses due to child support and alimony payments is not a basis for modification of the original decree because the effect of these payments is contemplated when the decree is entered. Likewise, for this very same reason, the loans in the instant case do not provide a basis for modification. An examination of the record before us reveals that according to the financial affidavit in March of 1978, the plaintiff owed Katherine McGowan $1400. His affidavit filed in June shows a debt to Katherine McGowan of $1430. According to the finding the defendant owed his sister $1630. If one is to accept the premise of the majority that the cessation of the loans by Katherine McGowan was not contemplated by the parties at the time of the original decree, then one must accept the converse — that the parties contemplated that the extensions of credit would continue indefinitely. Such an illogical assumption, however, cannot be attributed to the parties.

*694There was no change in circumstances since the original orders for support and alimony were entered that was not within the contemplation of the parties at that time. For the majority to find a substantial change in circumstances on the facts of this case is to open the floodgates and give the greatest encouragement both to frivolous motions for modification and to judge-shopping. I am compelled to dissent from the opinion of my colleagues and conclude that the motion for modification should not have been granted by the trial court.