Advance Release Opinions – January 10

The Connecticut Supreme Court advance released an opinion about divorce law, which I review below. The Court also advance released an opinion about termination of parental rights, which I do not review.

Divorce Law

Cohen v. Cohen – If Dan v. Dan affects you, seems like you should read this case. In 2012, trial court granted defendant’s motion to reduce alimony because his income had substantially decreased. In 2015, trial court granted plaintiff’s motion to increase alimony because defendant’s income had substantially increased. Supreme Court affirmed in a four part opinion. First, Supreme Court agreed with defendant that, when considering “substantial change in circumstances” and in fashioning a modified order, the trial court’s task was to compare 2015 income with income at the time of the 2012 modification, not at the time of the original alimony order. But, Supreme Court found that’s what the trial court did and, even if the trial court had improperly considered income at the time of the original order, it was harmless error because the trial court would have reached the same conclusion if it had considered income at the time of the 2012 modification. Supreme Court also found that trial court did not impermissibly consider the purpose of the original alimony award instead of the purpose of the 2012 modification when ordering the 2015 modification. Rather, once the trial court concluded that the circumstances justifying the 2012 modification no longer existed, the purpose of the original award controlled and the trial court was bound to consider it. Second, the Supreme Court rejected defendant’s claim that plaintiff’s motion was “legally insufficient” because it did not allege that the 2012 modification did not fulfill the purpose of the original award or some exceptional circumstance. The motion was sufficient because it alleged a substantial change in circumstances. There has never been a requirement to specify in the motion all of the reasons why the change in circumstances justifies a modification. Third, Supreme Court rejected defendant’s claims that trial court should not have (i) considered parol evidence of the parties’ intent when they entered into the separation agreement that became the original decree; or (ii) taken judicial notice of the plaintiff’s 2002 financial affidavit. Parol evidence was necessary to clarify the purpose of the alimony provision in the separation agreement. And, the court always has the power to take judicial notice of the court file. In this case, the 2002 affidavit was relevant to determining the purpose of the original alimony award. Fourth, Supreme Court rejected defendant’s claim that the 2015 modification was an “impermissible lifetime profit sharing award.” Though alimony ordinarily does not allow the supported spouse to share in the supporting spouse’s post-divorce good fortune, the parties can vary that by agreement, which they did in this case.