Kaplan v. Kaplan

Shea, J.

(concurring). I disagree with the conclusion of the majority that nothing in the record would allow us to upset as “clearly erroneous” the factual determination of the trial court that the defendant and her paramour were not living together in the sense intended by § 46b-86 (b). The majority opinion fails to mention that both of them *393testified that they slept together six nights ont of seven in his bedroom on the second floor of the two-family house which he owned. The defendant and her children occupied the first floor for which they paid rent, but she had access to his apartment and the doors of both apartments were kept unlocked so that her children could go upstairs if they wished. They frequently had breakfast together and also dinner when he was not working. They had traveled together to Italy, Spain, Portugal, Philadelphia, New Hampshire, and Cape Cod. On some of those trips they took the children. When the defendant was asked how her relationship with Doost differed from a marriage, she answered simply that she supported herself. This response is virtually an admission that, except for financial arrangements, their relationship in every respect was equivalent to a matrimonial one. Not one of these facts was contradicted at the modification hearing. If six out of seven is not enough, I cannot imagine how much more togetherness the majority would demand to meet the statutory criterion of “living with another person.” General Statutes § 46b-86 (b). In the face of the undisputed facts recited, to uphold a finding that the defendant and her lover were not living together defies reality and effectively converts the statute into a dead letter at the whim of the trial court.

On the other hand, the evidence produced at the hearing was insufficient to establish as a matter of law that the defendant’s “living arrangements” had caused such a change of circumstances as to alter her financial needs. One unusual feature of the dissolution decree in this case is that the plaintiff husband agreed not to seek a modification of alimony because of the contemplated future employ*394ment of the defendant unless her net earnings exceeded $7500. The word “employment” is inappropriate to characterize the relationship in which the defendant chose to participate and which may have enhanced her financial situation in some degree by virtue of sharing certain expenses, such as housecleaning, food, and travel. Nevertheless, the evidence is far short of establishing the substantial change in the defendant’s income which the parties contemplated as warranting a modification of alimony at the time of the judgment of dissolution. I would, therefore, affirm the conclusion of the trial court that no sufficient change in the financial needs of the defendant resulting from her living arrangement had been proved to satisfy that separate statutory requirement. Unlike remarriage, where a change in the financial circumstances of the alimony recipient has not ordinarily been deemed necessary for its termination; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976); Cary v. Cary, 112 Conn. 256, 260-61, 152 A. 302 (1930); “living with another person” as a ground for modifying periodic alimony under § 46b-86 (b) is not sufficient unless it has resulted in altering “financial needs.” Kaplan v. Kaplan, 185 Conn. 42, 45, 440 A.2d 252 (1981); see McAnerney v. McAnerney, 165 Conn. 277, 285-87, 334 A.2d 437 (1973). Accordingly, I concur in the result reached by the majority.