Elliott v. Elliott

541 A.2d 905, 14 Conn. App. 541, 1988 Conn. App. LEXIS 199
CourtConnecticut Appellate Court
DecidedMay 31, 1988
Docket4838
StatusPublished
Cited by20 cases

This text of 541 A.2d 905 (Elliott v. Elliott) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. Elliott, 541 A.2d 905, 14 Conn. App. 541, 1988 Conn. App. LEXIS 199 (Colo. Ct. App. 1988).

Opinion

Norcott, J.

The defendant wife appeals challenging the financial orders rendered by the state trial referee incident to the judgment dissolving the marriage between the parties. Specifically, the defendant claims that the trial court erred (1) in forgiving the alimony arrearage owed to the defendant and rescinding the wage execution ordered on the plaintiffs pay, (2) in failing to consider certain contributions made to the defendant’s support by her mother and sister, (3) in awarding the defendant only $700 in attorney’s fees, and (4) in fashioning the remainder of the award. We find error in part.

The plaintiff and defendant were married on August 14, 1971. There were no children born of the marriage. On August 6, 1979, the plaintiff commenced the present action for dissolution. Thereafter, the defendant filed a motion for alimony pendente lite which was granted by the court on November 25,1980. The court ordered the plaintiff to pay to the defendant a weekly sum of $35 as alimony pendente lite. The court further ordered the plaintiff to pay all of the defendant’s medical bills and to maintain medical insurance for her benefit.

The plaintiff failed to keep up with these payments, and on August 18,1982, the defendant filed a motion for contempt, wage execution and counsel fees. Before [543]*543this motion could be argued before the court, however, the plaintiff paid all past due amounts. In the three years that followed, the plaintiff was continually falling into arrears with respect to his obligation to provide alimony pendente lite to the defendant. The defendant filed several motions for contempt, and the plaintiff made several unsuccessful attempts to become current in his payments. Finally, on August 27, 1985, the trial court found the plaintiff in contempt. The court found an arrearage of $3415 as of August 23,1985 and ordered a wage execution against the plaintiff in the amount of $45 per week, $35 towards the current order and $10 towards the arrearage.

The case was tried before a state trial referee on November 6, 1985. On January 2, 1986, the referee granted the dissolution and ordered that the marital residence be sold and the proceeds distributed 35 percent to the plaintiff and 65 percent to the defendant. In addition, the trial referee ordered the previously determined arrearage forgiven and the wage execution suspended. Finally, the referee ordered the plaintiff to pay $700 toward the defendant’s attorney’s fees and ordered the plaintiff to maintain the defendant on his medical and dental policies. From these financial orders, the defendant appeals.

The defendant’s first claim is that the trial referee erred in forgiving the plaintiff’s arrearage and in rescinding the wage execution against the plaintiff. It is the defendant’s contention that, by taking this action, the trial referee retroactively modified the earlier order for alimony pendente lite. Such retroactive modification, the defendant contends, is not permitted under General Statutes § 46b-86.

It is clear that a trial court does have the authority to modify an award of alimony. General Statutes § 46b-86 (formerly § 46-54) provides that “[ujnless and [544]*544to the extent the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.” This statute has long been held to authorize the modification of periodic alimony for the future. Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979); see also Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1977); Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). In Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1979), however, our Supreme Court held that this statute is not to be construed so as to permit the retroactive modification of alimony awarded at the time of dissolution. The question in the case before us is whether the Sanchione reasoning also prevents the retroactive modification of pendente lite alimony.

In Sanchione, our Supreme Court articulated several compelling reasons why General Statutes § 46b-86 should not be construed so as to permit the retroactive modification of an alimony award entered at the time of dissolution. Among the reasons cited by the court for precluding such retroactive modification were the following: (1) unpaid alimony installments are in the nature of a final judgment which cannot be retroactively disturbed; (2) prohibiting the retroactive modification of alimony would prevent hardship to alimony recipients by protecting their expectations and enabling them to rely on the continuing alimony obligations of the paying spouse; (3) a modifiable alimony decree is not entitled to full faith and credit in another state’s courts, at least not where the spouse has failed to take the final step of reducing the alimony arrearage to a judgment for money owed; and (4) trial judges asked to modify an alimony order retroactively might [545]*545well become engaged in what would essentially be appellate review of another trial judge’s judgment. Id., 405-406.

These considerations apply with equal force to pendente lite alimony orders. First, like unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away. Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964); German v. German, 122 Conn. 155, 164, 188 A. 429 (1936); see also Parenti v. Parenti, 71 R.I. 18, 41 A.2d 313 (1945). “No basis exists for any differentiation in this respect between Connecticut orders made as incident to a final decree of divorce and those granted pendente lite . . . .” Smith v. Smith, supra, 297. Next, we note that the purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action. Id. Allowing a court to modify an award of alimony pendente lite retroactively at the time the dissolution is granted would frustrate that purpose because it would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time. Lastly, the recipients of alimony pendente lite may have a need to enforce such orders in another state and trial judges retroactively modifying an award of alimony pendente lite would actually be engaging in appellate review of another trial judge’s judgment.

Because the factors discussed in Sanchione apply with equal force to orders for alimony pendente lite, we conclude that such orders are not retroactively modifiable. This decision is supported by our Supreme Court’s ruling in Tobey v. Tobey, 165 Conn. 742, 345 A.2d 21 (1974). In Tobey,

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Bluebook (online)
541 A.2d 905, 14 Conn. App. 541, 1988 Conn. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-elliott-connappct-1988.