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Increase in income, standing alone, does not justify modifying alimony

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Parties to a divorce judgment agreed on an alimony award of $15,000. per month plus 25 percent of any bonus income. Approximately 10 years later, the former wife / recipient of alimony, sought to increase alimony based on two grounds: i) the former husband’s income increased, and ii) her own medical costs increased.

The trial judge increased the alimony award from $15,000 to $40,000 per month, plus 25 percent of any bonus income received. (The trial court’s decision was not based on increased medical costs, but it was based on an increase in the paying spouse’s income.) The trial court did not address the issue of whether “exceptional circumstances” justified the increase.

The decision was appealed. The Connecticut Supreme Court concluded that an increase in the supporting spouse’s income, standing alone, ordinarily will not justify the granting of a motion to modify an alimony award.

The case is Dan vs. Dan, 315 Conn. 1 (2014), and it is available here:
https://www.jud.ct.gov/external/supapp/Cases/AROCR/CR315/315CR103.pdf

 

 

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

The U.S. Supreme Court weighs in on Stun-Gun Carry Ban

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In Massachusetts, a law prohibits the possession of stun guns. The Supreme Judicial Court of Massachusetts upheld that law, when a woman convicted of violating the law challenged it on constitutional grounds. On March 21, 2016, the United States Supreme Court issued a two page decision, which vacates the judgment of the Massachusetts Court. However, it is a separate concurring opinion of Justice Samuel Alito (with whom Justice Clarence Thomas joins), which provides us with these details:

After a “bad altercation” with an abusive boyfriend put
her in the hospital, Jaime Caetano found herself homeless
and “in fear for [her] life.” Tr. 31, 38 (July 10, 2013). She
obtained multiple restraining orders against her abuser,
but they proved futile. So when a friend offered her a stun
gun “for self-defense against [her] former boy friend,” 470
Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano
accepted the weapon.

It is a good thing she did. One night after leaving work,
Caetano found her ex-boyfriend “waiting for [her] outside.”
Tr. 35. He “started screaming” that she was “not gonna
[expletive deleted] work at this place” any more because
she “should be home with the kids” they had together.
Ibid. Caetano’s abuser towered over her by nearly a foot
and outweighed her by close to 100 pounds. But she didn’t
need physical strength to protect herself. She stood her
ground, displayed the stun gun, and announced: “I’m not
gonna take this anymore. . . . I don’t wanna have to [use
the stun gun on] you, but if you don’t leave me alone, I’m
gonna have to.” Id., at 35–36. The gambit worked. The
ex-boyfriend “got scared and he left [her] alone.” Id.,
at 36.

The events leading to Caetano’s prosecution occurred
sometime after the confrontation between her and her ex boyfriend.
[Police officers] arrested her for violating Mass. Gen. Laws, ch. 140, §131J,
“which bans entirely the possession of an electrical weapon,” 470
Mass., at 775, 26 N. E. 3d, at 689.1 When Caetano moved
to dismiss the charge on Second Amendment grounds, the
trial court denied the motion.

The United States Supreme Court rejected three explanations provided by the Massachusetts court, which were used to uphold the law, because those explanations contradict United States Supreme Court precedent, as follows:

1) The Massachusetts Court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The US Supreme Court stated this is inconsistent with the decision of District of Columbia v. Heller, 554 US 570 (2008), which provided a clear statement that the Second Amendment “extends … to … arms… that were not in existence at the time of the founding.”

2) The Massachusetts Court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” The US Supreme Court disagreed with the reasoning, and found the reasoning was inconsistent with the Heller opinion.

3) The Massachusetts Court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” The US Supreme Court disagreed again, because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.” (citation omitted.)

For these three reasons, the US Supreme Court issued its order vacating the judgment of the Supreme Judicial Court of Massachusetts, and remanded the case “for further proceedings not inconsistent with [the US Supreme Court’s] opinion.”

In the concurring opinion Justice Alito wrote:

“A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

Justice Alito was dismayed by the manner in which the US Supreme Court issued its decision. He wrote:

“This Court’s grudging per curiam now sends the case back to that same [Massachusetts Supreme Judicial] court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.” “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

The Supreme Court’s per curiam opinion in Caetano v. Massachusetts, and the concurring opinion of Justice Alito and Justice Thomas, is available here:

https://www.supremecourt.gov/orders/courtorders/032116zor_h3ci.pdf

 

Last Will & Testament must be properly witnessed

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In Connecticut a Last Will & Testament is not filed in any public record, until it is presented to a probate court after a person passes away. For it to be admitted to probate as a valid will, a Last Will & Testament must be executed with certain formalities. The proper signatures of attesting witnesses are essential to the due execution of a will. Buck v. Robinson, 128 Conn. 376 (1941).

The proponent of the will (the person who presents the will to the Probate Court) must prove that the will’s execution was in compliance with the statute in effect at the time it was executed.

To be valid, the Will must comply strictly with the requirements of Connecticut General Statutes § 45a-251, which provides:

A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator’s presence; but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the testator situated in this state. [Current through the 2015 Regular and Special Sessions § 45a-251. (Formerly Sec. 45-161). Making and execution of wills. Wills executed outside the state.]

In a recent Connecticut Appellate Court case, the court noted that Connecticut law does not recognize a “substantial compliance exception” to the strict statutory requirements. The place for the signature of the witnesses, on the proposed will at issue in the case, was left blank. The witnesses, if there were any, did not sign the actual will. Affidavits by purported witnesses (the affidavits were presented separately from the will) having been presented in an effort to show “substantial compliance” were deemed insufficient under Connecticut law. The proposed Last Will was not admitted to probate.

See: Davis v. Davis-Henriques, Connecticut Appellate Court, No. AC 37495 (Feb. 23, 2016).

Breach of Contract Claims:  Must the Agreement be in writing?

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Some agreements, but not all agreements, must be in writing, to be enforceable. Your state’s “statute of frauds” laws might apply to the type of agreement at issue.

For example, in Connecticut agreements / contracts conveying real estate, must be in writing, per the statue of frauds.

“Any contract whose purpose is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the Statute [and should be in writing].” (Citation omitted.) Zipp v. JFC Endeavors, Inc., CV10-5014884, March 18, 2011 (Hon. Cynthia Swienton). (Note that Connecticut has other statutory requirements, governing the number of witnesses and acknowledgments, on real estate deeds.)

Although seemingly simple, this is potentially a very confusing area of the law, and factual and legal arguments pertaining to the statute of frauds, might be made in litigation that are pivotal to the success or failure of claims.

Connecticut’s Statute of Frauds, General Statutes Section 52-550 is set forth below.

 

Connecticut Statutes

Title 52. CIVIL ACTIONS

Chapter 923. STATUTE OF FRAUDS

Current through the 2015 Second Special Session

  • 52-550. Statute of frauds; written agreement or memorandum
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:

(1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;

 

(2) against any person upon any special promise to answer for the debt, default or miscarriage of another;

 

(3) upon any agreement made upon consideration of marriage;

 

(4) upon any agreement for the sale of real property or any interest in or concerning real property;

 

(5) upon any agreement that is not to be performed within one year from the making thereof; or

 

(6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

 

(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.

 

 

 

Contractors & the Connecticut Home Improvement Act

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A Contractor who works on a residential home, but who violates the Connecticut Home Improvement Act (HIA), may lose rights to recover (collect payment) against the Homeowner, who does not pay the Contractor.

“Home improvement”, as the term is defined by the HIA “includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building, or that portion thereof which is used or designed to be used as a private residence…” §20-419(4).

The HIA provides for exceptions to the “home improvement” definition; certain trades may be exempt, and the HIA will not generally apply to new home construction.

Contract language, for home improvement contracts, are governed by Section 20-429(a) of the HIA. This statute, set forth below, identifies components required to be included in a Home Improvement Contract, in order for that contract to be valid or enforceable against the Homeowner.

“[C[ompliance with the act is mandatory in order for a contractor to recover on a home improvement contract . . . Nevertheless . . . that does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act’s prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 410 (2001).

Disputes between Homeowners and Home Improvement Contractors are always fact-specific. Review these facts with an attorney who is familiar with the Connecticut Home Improvement Act.

If you are a Home Improvement Contractor, discuss with your attorney if your existing contract complies with the HIA.

 

 

Connecticut Statutes

Title 20. PROFESSIONAL AND OCCUPATIONAL LICENSING, CERTIFICATION, TITLE PROTECTION AND REGISTRATION, EXAMINING BOARDS

Chapter 400. HOME IMPROVEMENT CONTRACTORS

  • 20-429. Required contract provisions. Negative option provisions prohibited. Contract considered home solicitation sale. Contractor-financed contract. Recovery of payment for work performed
a) No home improvement contract shall be valid or enforceable against an owner unless it:

(1) Is in writing,

 

(2) is signed by the owner and the contractor,

 

(3) contains the entire agreement between the owner and the contractor,

 

(4) contains the date of the transaction,

 

(5) contains the name and address of the contractor and the contractor’s registration number,

 

(6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740,

 

(7) contains a starting date and completion date,

 

(8) is entered into by a registered salesman or registered contractor, and

 

(9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.

 

(b) No home improvement contract shall be valid if it includes any provision obligating the owner to instruct the home improvement contractor, by a date determined by such contractor, that periodic home improvements are not to be performed unless it also includes a provision requiring the contractor to remind the owner of that obligation by means of a card or letter mailed to the owner and postmarked not earlier than twenty days, and not later than ten days, prior to such date.

 

(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.

 

(d) The commissioner may, by regulation, require the inclusion of additional contractual provisions.

 

(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract. Each home improvement contract in which the owner agrees to repay the contractor an amount loaned or advanced to the owner by the contractor for the purposes of paying for the goods and services provided in such contract, or which contains a finance charge, (1) shall set forth the information required to be disclosed pursuant to the Truth-in-Lending Act, sections 36a-675 to 36a-685, inclusive, (2) shall allow the owner to pay off in advance the full amount due and obtain a partial refund of any unearned finance charge, and (3) may contain a finance charge set at a rate of not more than the rate allowed for loans pursuant to section 37-4. As used in this subsection, “finance charge” means the amount in excess of the cash price for goods and services under the home improvement contract to be paid by the owner for the privilege of paying the contract price in installments over a period of time.

 

(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.

Cite as Conn. Gen. Stat. § 20-429

 

Remote Vehicle Starters: DUI/OUI laws in Connecticut

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In Connecticut, no person shall operate a motor vehicle while under the influence of intoxicating liquor, or any drug, or both. CGS 14-227a.

Question: What if the key is in the ignition, but the engine is not started?

Answer: “We [the Connecticut Supreme Court] conclude that the defendant’s act of inserting the key into the ignition constituted operation of a motor vehicle within the meaning of [the statute] § 14-227a (a).” State of CT vs. Haight, 279 Conn. 546 (2006).


Question: What if the engine is started by a Remote Starter, but no key is in the ignition?

Answer: “… the lack of an inserted ignition key is but a temporary impediment to the movement of a remotely started vehicle. Because such an impediment easily is overcome by insertion of the key, it will not preclude a finding of operation.” State of CT vs. Cyr, 291 Conn. 49 (2009).

Sleeping in a Vehicle?

Each case is fact specific. However there are many DUI arrests in Connecticut that involve occupants sleeping in the vehicle, who had not put the vehicle in motion, but who are considered to have violated the statute. Connecticut court decisions finding that this action constitutes prohibited “operation”, rely on public policy provisions of the statute. Such provisions are “preventive measure [s] … which deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers … and which enable the drunken driver to be apprehended before he strikes ….” (Citations omitted) State of CT vs. Cyr, at 61.

Dog Bite Liability:  “The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him. …”

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A 28-year old woman (the Plaintiff), recovered $15,000.00 non-economic damages (pain and suffering), and $815.05 economic / medical expenses, after the defendant’s dog bit her.

The Court’s factual findings, based on the evidence presented at trial, include:

  • The Plaintiff was at a barbeque, where the dog was kept.
  • The dog was twelve years old, blind in one eye, and was uncomfortable with strangers.
  • The Plaintiff acknowledged that she was aware that the dog was “not friendly”.
  • All attendees, at the barbeque, were advised multiple times that the dog was not friendly and to stay away from him.
  • A specific area of the house was designated for the event. There were multiple signs warning about the defendant’s dog. Certain areas of the house were separated from the event and “off-limits” to the guests. These were the areas where the dog was kept, including a portion of the house which was closed, locked, and contained signs directing guests to stay away from the dog.
  • The Plaintiff’s trial testimony confirmed that she was aware of the signs.
  • The Plaintiff consumed her own beer and as a result of her beer consumption she became “buzzed” or intoxicated.
  • “The plaintiff, in spite of the warnings, and knowing full well that the dog was not friendly to strangers and was dangerous, wanted to pet the defendant’s dog. The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him. The dog bit the plaintiff and she sustained lacerations to the right eyelid…”

The dog’s owner/keeper, argued that the Plaintiff’s actions amounted to trespass, teasing, and tormenting the dog; that she was warned several times that the dog was unfriendly towards strangers, and she was sarcastic in her response, stating “Thanks for the warning, and that she had gotten the message.”

The Court, despite noting the “unusual behavior and demeanor” of the Plaintiff, concluded that “the plaintiff’s conduct did not amount to trespass, teasing and tormenting the dog”.

This Superior Court decision is based on Connecticut’s strict-liability dog-bite statute, which provides in relevant part:

“If any dog does any damage to either the body or property of any person, the owner or keeper,… shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog…”
CGS 22-357

A copy of the complete Memorandum of Decision is available here:

https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=8430096

Real Estate “Closing Customs” in Connecticut

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When buying or selling real estate, your closing attorney in Connecticut will usually follow the customs of the local county bar.

Customs address questions, such as:

Where is the closing held?

Who holds the deposit?

How are closing expenses and purchase price paid at closing?

A common question is “Who notifies tax collector / assessor and utilities of changes in ownership of property?” In Hartford and Tolland County, the custom is:

ANSWER: Utility companies require that purchaser and seller call them directly. Tax assessor and collector are notified by the Town Clerk once documents are received for recording. (Hartford County; Tolland County)

To review CATIC’s “A Guide to Closing Customs in Connecticut”, use this link:

https://www.catic.com/Consumers/Resources/ClosingCustomsCT.aspx

Buying Real Estate: Joint Tenancy and Tenancy in Common

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Whether an attorney must be present at a real estate closing, typically depends on the state’s view of whether a non-attorney conducting a closing, is the “unauthorized practice of law”. Connecticut, unlike many other states, still heavily relies on attorneys to conduct closings.

If you are buying real estate in Connecticut, and you are taking title jointly with another person such as your spouse, ask your attorney for advice on how to take title. There are differences between a “joint tenancy” and a “tenancy in common”.

In a tenancy in common “each cotenant holds an undivided partial … interest in the whole of their property… A consequence of this form of ownership is that a cotenant can freely sell, lease or mortgage his own undivided interest in the whole property to a third party without the consent of the remaining cotenants … A cotenant may not, however, act unilaterally so as to bind the interest of his cotenant.” (Citations omitted.) Ianotti v. Ciccio, 219 Conn. 36, 41 (1991).

Typically married persons who take title to real estate elect “Joint Tenancy with Rights of Survivorship”. The survivorship provision results in vesting of the entire title to the property, to the surviving party, on the other’s death. This shows how your decision to take title to real estate, is part of your overall estate plan.

At Marder, Roberson & DeFelice Law Offices, LLC our attorneys are knowledgeable in both real estate conveyancing, and estate planning. When you buy a home, take some time to think about your estate plan.

What is the alimony “formula” in Connecticut?

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Connecticut does not use a formula, or “guideline” approach to alimony. Instead Connecticut law provides for statutory factors, that must be considered, when awarding or modifying alimony. After considering the criteria below, governing Connecticut alimony, do you think a formulaic / guideline approach would be beneficial? Or do you support the flexibility of the current system?

Connecticut’s flexible alimony criteria:

“In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties . . . More specifically, these criteria, outlined in General Statutes 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. (Citations omitted; quotations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).

“Court decisions construing the alimony and property division statutes emphasize the responsibility of the trial court to consider all of the evidence, weigh all of the statutory factors, and then to place the weight on each factor that the court deems most fair and appropriate under the particular circumstances of each case. “While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case.” Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). The court is not obligated to make express findings on each and “is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others.” Graham v. Graham, 25 Conn.App. 41, 45, 592 A.2d 424 (1991). The weight to place on each factor depends on the circumstances of each case. (Citation omitted.) Moreover, the statutory factors for awarding alimony or assigning property are not exclusive, and the court may consider other equitable factors in either. Smith v. Smith, 249 Conn. 265, 284, 752 A.2d 1023 (1999). Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). Werkhoven v. Werkhoven, No. FA094011324S (Feb. 17, 2011) (Frazzini, J.)