Dumbauld v. Dumbauld

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DUMBAULD v. DUMBAULD—CONCURRENCE

BEACH, J., concurring. I agree with the result reached
by the majority and with all but one point of its well
reasoned analysis. My point of departure is the majori-
ty’s holding in part I of its opinion that a trial court
may not, as a matter of law, enter an order of alimony
pendente lite that the payer is unable to satisfy without
invading assets.
I believe that Simms v. Simms, 283 Conn. 494, 927
A.2d 894 (2007), and Graham v. Graham, 25 Conn. App.
41, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d
969 (1991), lead to a different conclusion. In Simms,
our Supreme Court held that a court, in the context
of a postjudgment motion to modify alimony, was not
barred from modifying alimony in a manner that would
require the obligor spouse to invade assets, even though
property distributions were not statutorily authorized
in the postjudgment context. Simms v. Simms, supra,
505. The court reasoned: ‘‘The trial court correctly noted
that it had no authority to modify the division of the
parties’ property after the original dissolution judgment
. . . or to order the defendant to sell his assets to satisfy
his alimony obligation. This does not mean, however,
that the court had no authority to consider the value
of the parties’ assets in determining the amount of the
modification or, in appropriate circumstances, to order
the defendant to pay alimony if doing so may require
him to invade his assets.’’ (Citation omitted.) Id.; see
also Graham v. Graham, supra, 46 (alimony orders
in some circumstances may contemplate invasion of
‘‘corpus’’ of assets).
Here, as in Simms, the court was without authority
to order expressly the division of property. Nonetheless,
an order of periodic alimony payments that required
the invasion of assets was permissible; there, as here,
there was no suggestion that a party was hiding assets or
had an imputed income greater than declared income.
Here, as in Graham, the parties had a history of invading
assets to meet current living expenses. Policy consider-
ations noted in Simms are relevant: ‘‘[I]f the trial court
were not authorized to order a modification that might
require an invasion of assets to meet the modified ali-
mony obligation, then . . . the avoidance of alimony
obligations by converting liquid assets and income pro-
ducing property into nonincome producing assets could
not be prevented. Such an order does not necessarily
amount to an order requiring the sale or liquidation of
the asset because other options, such as the conversion
of an asset into an income producing asset or borrowing
against the asset, are available.’’ Simms v. Simms,
supra, 283 Conn. 506–507 n.12. Other life scenarios are
easily imaginable and not the least nefarious; for exam-
ple, a retired couple may have little income but substan-
tial assets on which they rely.
I nonetheless agree with the remand. The court
improperly ordered payments for college expenses and,
in light of the necessary remand, reconsideration of the
mosaic of the pendente lite financial orders is appro-
priate. Additionally, the court may well have abused its
discretion in the overall amounts of periodic pay-
ments ordered.
For the foregoing reasons, I concur.