Milbauer v. Milbauer

733 A.2d 907, 54 Conn. App. 304, 1999 Conn. App. LEXIS 298
CourtConnecticut Appellate Court
DecidedJuly 27, 1999
DocketAC 18149
StatusPublished
Cited by18 cases

This text of 733 A.2d 907 (Milbauer v. Milbauer) 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
Milbauer v. Milbauer, 733 A.2d 907, 54 Conn. App. 304, 1999 Conn. App. LEXIS 298 (Colo. Ct. App. 1999).

Opinion

Opinion

FOTI, J.

The plaintiff, Elaine F. Milbauer, appeals from the judgment of the trial court dissolving her marriage to the defendant, Alan J. Milbauer. On appeal, [306]*306the plaintiff claims that the trial court improperly (1) modified, retroactively, an order of alimony pendente lite, (2) limited her permanent alimony award to a term of ten years, (3) based the duration of her alimony award on her future right to social security benefits, (4) distributed an asset to her that neither she nor the defendant considered part of the marital estate and (5) invalidated a mortgage of record. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The parties were married on August 23,1964, in Bridgeport. Two children were bom of the marriage, both of whom have reached the age of majority. At the time of trial, the plaintiff was fifty-five years of age and the defendant was fifty-six years of age.

The plaintiff has taken various courses since graduating from high school, including accounting, statistics and real estate. At the time of the parties’ marriage, the plaintiff was employed and continued to work outside the home until she became pregnant with the parties’ first child. Thereafter, the plaintiff remained at home with the children while they were very young and then returned to outside employment in 1976. For the past eight years, the plaintiff has worked for the town of Somers as an administrative assistant to the first selectman. During her employment with the town, the plaintiffs salary has increased from $17,000 per year to its present level of $24,000 per year.

During the early years of the marriage, the defendant worked part-time while he completed his college degree in business administration and marketing. Thereafter, in the mid-1970s, he became a manufacturer’s representative in the furniture sales business. In April, 1994, the defendant was informed of a change in his sales area [307]*307and his commission arrangement, which removed certain profitable geographic areas from his territory. While the territory the defendant covers has been enlarged, he has lost large retail furniture stores as accounts and his commission for dealing with certain remaining accounts has been reduced. As a result, since 1994, the defendant’s income has decreased. The defendant’s taxable income for the years 1994,1995 and 1996 was $43,883, $32,184 and $30,847, respectively.

On September 13, 1993, the plaintiff filed an action seeking a dissolution of her marriage to the defendant. On November 15, 1993, the parties entered into a pendente lite stipulation, which was then made an order of the court, that provided, inter alia, that the defendant would pay the plaintiff alimony pendente lite in the amount of $500 per week. On June 20, 1994, the defendant filed a motion to modify alimony pendente lite. In it, the defendant claimed that there had been a substantial change in his circumstances that prevented him from continuing to pay the agreed upon sum of $500.

The defendant, however, did not pursue his motion when filed, or at subsequent dates when it was reclaimed. Instead, the defendant unilaterally reduced the amount of alimony pendente lite he was paying to the plaintiff. In 1994, the defendant failed to pay any alimony to the plaintiff. In 1995, the defendant paid the plaintiff $9000. In 1996, the defendant paid the plaintiff $4400. Finally, in 1997, the defendant paid the plaintiff $1275, through April 27 of that year. All of those amounts were in lieu of the $26,000 per year- the defendant was required to pay.

On August 29,1997, the trial court rendered judgment dissolving the parties’ marriage, finding that it had broken down irretrievably. In so doing, the trial court found that the plaintiff had been unfaithful to the defendant and that this unfaithfulness contributed to the ultimate [308]*308failure of the marriage. In addition, the trial court ruled on the defendant’s motion to modify and made findings with respect to issues of permanent alimony and the disposition of marital assets. Additional facts will be set forth where relevant to the issues on appeal.

I

The plaintiff first claims that the trial court improperly modified, retroactively, an order of alimony pendente lite. We disagree.

In its memorandum of decision, the trial court ruled on the defendant’s motion to modify alimony pendente lite. In so doing, the trial court found that a substantial change in the defendant’s circumstances had occurred since the date of the original pendente lite order “when the defendant’s business arrangements were altered to decrease his more profitable business accounts while not lessening his travel requirements.” While the trial court noted that it did “not favor self help,” a reference to the defendant’s unilateral reduction in his alimony payments, it nonetheless found, “as credible, the defendant’s claim that he did not pursue his motion to modify in a timely manner because he was engaged in negotiations with [the plaintiff] and because he believed that the plaintiff had decided to accept his lower payments in satisfaction of the court order.”

The trial court then granted the defendant’s motion to modify and ruled that effective June 20, 1994, the date of the defendant’s original motion to modify, the defendant was ordered to pay the plaintiff, as alimony pendente lite, the sum of $125 per week, less credits for the amounts the defendant had paid. On appeal, the plaintiff does not argue that the change in the defendant’s circumstances did not justify a modification of the alimony pendente lite. Instead, the plaintiff claims that a “retroactive” modification of an alimony pendente lite award is not authorized by either case law, [309]*309or by statute, and that the trial court’s order was, therefore, improper.

We note initially that while the trial court chose to include its modification of the alimony pendente lite award in its final memorandum of decision, modification at that time was not, in and of itself, improper. We recognize that “[pjendente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action, or litigation. Ballentine’s Law Dictionary (3d Ed.) 1969. Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time. Connolly v. Connolly, 191 Conn. 468, 479, 464 A.2d 837 (1983). [Generally] [pjendente lite orders do not survive the entry or rendition of judgment. Tobey v. Tobey, [165 Conn. 742, 745, 345 A.2d 21 (1974)]; LaFaci-Zitzkal v. Zitzkat, 19 Conn. App. 805, 806, 562 A.2d 527 (1989).” (Emphasis added; internal quotation marks omitted.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990).

It is clear from an examination of the record in this case, however, that two separate hearings were held and that those hearings were conducted by the same judge sitting as two separate courts.

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Bluebook (online)
733 A.2d 907, 54 Conn. App. 304, 1999 Conn. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milbauer-v-milbauer-connappct-1999.