Demaria v. Demaria

MCDONALD, J.,

dissenting. I dissent from the majority opinion.

The defendant was ordered, pursuant to a dissolution judgment, to pay periodic alimony to the plaintiff until either party dies, the plaintiff remarries, “the cohabitation by the plaintiff with an unrelated male,” or until June 4, 2004. Because the plaintiff was cohabiting with an unrelated male, the defendant moved to terminate that alimony under the terms of the dissolution judgment or, in the alternative, under General Statutes § 46b-86 (b).

The Appellate Court held that a finding of a change in financial circumstances was not required to terminate the alimony under the terms of the initial dissolution judgment. The majority now engrafts onto the terms of that judgment the need to show a financial change. The majority takes the financial change requirement from § 46b-86 (b). Furthermore, the majority interprets the term cohabitation in the dissolution judgment as “living with another person” because that phrase is used in § 46b-86 (b). The majority thereby applies § 46b-86 (b) to both grounds.

Yet, cohabitation has a narrower meaning than “living with another person.” It means the “dwelling together of man and woman in the same place in the manner of husband and wife.” Wolk v. Wolk, 191 Conn. 328, 332, 464 A.2d 780 (1983). “Living with another person” may include cohabitation, but also may include living with a relative or another in a platonic manner. It simply *724is not true, as the majority suggests, that “living with another person” and “cohabitation” have the same meaning. The dissolution judgment obviously never contemplated living in a convalescent home or in a coed dormitory as grounds for terminating alimony when it used the words “cohabitation . . . with an unrelated male.”

The definition of cohabitation found in the decisions of this court and in Black’s Dictionary, cited by the majority, was sufficient in and of itself to render a judgment pursuant to the terms of the dissolution judgment. Cohabitation with an unrelated male was a specific circumstance foreseen in the dissolution judgment as grounds for terminating alimony. “The authority of the court to refashion the [award] of alimony ... is limited by the concept that the initial decree equitably distributed the joint estate of the parties . . . .” Connolly v. Connolly, 191 Conn. 468, 477, 464 A.2d 837 (1983). By modifying the dissolution judgment and adding the financial change requirement of § 46b-86 (b), the majority ignores this principle. The majority also fails to recognize “that ... § 46b-86 (b) is a separate and independent statutory basis for the modification of alimony . . . .” Id., 478. The modification properly may be based solely on the terms of the dissolution judgment, independent of the provisions of § 46b-86 (b).

For these reasons, as well as those put forward by the Appellate Court in its well reasoned opinion, I respectfully dissent.