Pendente Lite Awards Cannot Distribute Assets

The advance release opinion in this Connecticut appeal (Dumbauld v. Dumbauld) confirms that pendente lite alimony and child support cannot result in a distribution of assets.

The trial court found that defendant was drawing on an account to cover his family’s living expenses because his salary was insufficient. The court ordered him to continue paying the living expenses plus additional amounts for pendente lite alimony and child support. The court also ordered defendant to pay “all postsecondary education expenses” for the two college age children (one was attending American University, the other Barnard College).

“[T]he defendant moved for clarification of the court’s decision and moved to open and reargue the court’s decision, claiming that the orders exceeded his ability to pay.” The trial court denied both motions. Defendant appealed. The Appellate Court reversed.

Defendant’s Main Arguments on Appeal

“The defendant claim[ed] that the court improperly ordered alimony pendente lite in excess of his net income … and impermissibly required him to use assets in order to meet his obligations.”

“The defendant [also] claim[ed] that the court erred in ordering him to pay all college education costs for the two children in violation of General Statutes § 46b-56c, which limits education support orders to the amount charged by the University of Connecticut for a full-time in-state student.”

Pendente Lite Awards Cannot Distribute Assets

The Appellate Court noted that under Supreme Court precedent a trial court can order that alimony be paid out of assets where the trial court finds “that the alimony payor had not accurately represented his financial situation and made a specific finding as to either imputed income or earning capacity.”

“In the present case, the trial court made no finding that the defendant’s testimony was not credible, or that he had income or earning capacity that he had failed to disclose. It made no finding of imputed income ….” Consequently, “[t]he key issue in the present case is whether the court had the power in a pendente lite alimony order to order payment of alimony out of assets, which amounted to a distribution of marital property.”

The power of a court to transfer property from one spouse to another comes only from an enabling statute. General Statutes § 46b-81 empowers a court, “[a]t the time of entering a decree . . . dissolving a marriage . . . [to] assign to either spouse all or any part of the estate of the other.” In contrast, “[t]he pendente lite enabling statute, § 46b-83, … does not provide that the court may assign part of the estate of one party to the other, or otherwise suggest that property distribution is permitted.”

“On the basis of our comparison of §§ 46b-81 and 46b-83, we conclude that distribution of property is not authorized by § 46b-83…. If a court orders the use of assets to pay pendente lite alimony, it decides the issue of property distribution before it is statutorily authorized to do so. We conclude that the trial court’s order in the present case, given its specific factual findings and the absence of a finding of imputed income or lack of credibility, amounts to an impermissible pendente lite property distribution.”

Education Support Orders are Limited by Statute

Section 46b-56c(f) provides that any amount awarded for educational “expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student”, unless the parties agree otherwise.

Plaintiff claimed “that the parties had entered into a stipulation that the defendant would pay the full costs, as permitted by § 46b-56c(f).” In the stipulation, entered on the record three months prior to the hearing on pendente lite alimony, defendant agreed to make “tuition payments [to the children’s respective colleges], which are past due and are needed to be made so they can complete the year ….” The parties agreed that the stipulation as to the tuition payments (and some other payments defendant agreed to make) was “without prejudice to either party in the sense that neither party will be held to have made an evidentiary or judicial admission that the sums paid or the source of the payments or the mechanism of the payment, binds either party as being an appropriate sum, or that it is based upon the underlying claims of either of the parties as to income, assets, or liabilities.”

The Appellate Court concluded that the stipulation “clearly refers to a onetime payment; the parties specifically stipulated that this payment would
not serve as an admission, and would not be binding on either party…. By ordering that the defendant pay the full education costs under these  circumstances, the trial court violated § 46b-56c, which limits an educational support order to the amount of in-state University of Connecticut
tuition.”

Other Things to Note

Judge Beach issued a concurring opinion. He thought that pendente lite alimony could require the invasion of principal if, for example, that’s what the parties had been doing to cover their expenses prior to commencement of the divorce action. That’s what the parties had done in this case. Judge Beach concurred in the remand because the trial court was going to have to revisit the pendente lite awards in any event and the trial court might have abused its discretion as to the alimony amount.