Opinion
FA155102762
02-15-2018
Deidre WICKHAM v. Darryl WICKHAM
UNPUBLISHED OPINION
OPINION
Shluger, J.
A review of the record reveals that the parties were divorced, pursuant to a legal separation agreement dated March 21, 2016. In said judgment, the husband was ordered to pay alimony in the amount of $200 per week for a period of seven years. The judgment provided " both parties understand and agree that said alimony shall terminate sooner upon the death of either party or the remarriage of the plaintiff and shall terminate, be suspended, or be modifiable upon the cohabitation of the plaintiff. Said alimony shall be non-modifiable as to term."
The other relevant language of the judgment contains an order that " the parties understand and agree that the defendant owes $20,000 total on said [credit card] debt as of the date of dissolution, and he will pay off the same as soon as practical, but shall make minimum monthly payments until his amount is paid."
The judgment further provided that " the parties agree that they have exchanged their statements for credit cards with Navy Federal Credit Union and the Gap. The parties further agree that there will be no other charges on these cards and they will be closed."
The parties appeared before the undersigned, on January 24, 2018 and were both represented by counsel. Post hearing briefs were filed February 9, 2018.
The court finds proven the following facts:
1. The plaintiff was ordered to close the Gap Visa and the Navy Federal Credit Union credit card accounts and incur no charges after the date of dissolution.
2. The plaintiff decided not to close said credit cards upon learning that closing the credit cards might affect her credit score.
3. Following the judgment, the plaintiff permitted recurring charges to said cards for her Sirius Radio and Norton antivirus accounts to continue. She also made nine or more miscellaneous charges on said accounts.
4. The court finds that the plaintiff’s failing to close the credit cards and charging on said cards after the date of dissolution was a violation of the court order, which the court finds to be a willful violation.
5. There was no evidence that the defendant was harmed by these violations.
6. The defendant was ordered to pay $20,000 of said debt " as soon as practical."
7. The parties reached a postjudgment oral agreement whereby the defendant would pay $700 per month to the plaintiff for the credit cards. Since the date of the judgment, the defendant has paid $14,600 on said credit cards and still owes $5,400.
8. On or about December 2016, the defendant liquidated an IRA and deposited $25,000 into a Wells Fargo joint account with his sister to assist her financially.
9. On or about November 2017, the defendant sold a boat and received between $17,000 and $19,000. He utilized this money to pay off his own credit cards.
10. The court finds that the defendant’s failure to pay off the credit cards as ordered by the judgment from one or both of these sources constituted a willful violation of the court order to pay off the credit cards " as soon as practical."
11. The plaintiff was not harmed by this violation, unless one considers some amount of interest which will accumulate on the existing balance of which there was no evidence.
12. The defendant claims that the plaintiff is cohabiting with her boyfriend, Richard Shaw, in his beachfront property in Old Saybrook, CT.
13. The plaintiff leases an apartment, owned by her boyfriend in Westbrook, which she claims to be her permanent residence. The utilities are in her name, she furnished it with purchases from Bob’s Discount Furniture Warehouse and she gets her mail at her Westbrook apartment.
14. The plaintiff’s 26-year-old son resides in the Westbrook apartment. Although the plaintiff and her son both testified that he sleeps on the couch and only the mother sleeps on the bed, the defendant introduced into evidence Facebook posts showing the son in the bedroom and on the bed. The bedroom is decorated with mood lighting much to the son’s liking and with artwork owned by the son. The court finds that the son is residing full-time in the Westbrook apartment. Although he claims that he spends most of his time at the home of his friend " David," he does not even know that address.
15. The plaintiff owns a dog but the dog resides at the defendant’s residence.
16. Black’s Law dictionary defines cohabitation as " dwelling together."
17. Robert Vance, a private investigator hired by the defendant, testified that he conducted surveillance during the entire month of October 2017 of the boyfriend’s residence. He confirmed that on each and every night which he conducted surveillance, the plaintiff arrived at her boyfriend’s house in the early evening and was still there at 6:00 a.m. Although the private investigator did not conduct surveillance every night, he conducted surveillance on different nights each week in October to get a reliable sampling.
18. The private investigator never observed the plaintiff arriving at her boyfriend’s residence with an overnight bag, suggesting that her clothing and personal effects were already inside the residence.
19. The plaintiff receives her mail at her apartment in Westbrook and uses the Westbrook address for her banking and credit cards. The plaintiff’s car is registered to a previous address in Alabama and her driver’s license lists a previous address in Norwich, Connecticut. She used the Old Saybrook address for her furniture purchase for the Westbrook apartment.
20. While the plaintiff’s boyfriend has given the plaintiff a few modest gifts and paid for a vacation or two, there was no compelling evidence that the relationship has caused such a change of circumstances as to alter the financial needs of the plaintiff. In fact, the plaintiff testified that she pays all of her own expenses. While the defendant argues that the boyfriend buys the plaintiff gifts, flowers and that they travel together, that is standard boyfriend/girlfriend behavior and does not prove the requisite financial entanglement.
21. The court finds that the plaintiff and her boyfriend are indeed cohabiting in Old Saybrook and that the plaintiff’s son lives in the Westbrook apartment.
The fact that the court finds that the plaintiff and her boyfriend are cohabiting does not resolve this issue. The plaintiff argues that the so-called " cohabitation statute," Connecticut Gen. Statutes § 46b-86(b), involves a two prong test; the first requires a finding of actual cohabitation and the second involves a finding that the living arrangements " cause such a change of circumstances as to alter the financial needs of that party." The defendant argues that the " cohabitation statute" does not apply because it is not referenced in the divorce judgment. Rather, the defendant argues that the contractual language of the divorce judgment controls this issue and the language of the judgment states simply that alimony " shall terminate, be suspended or be modifiable upon the cohabitation of the plaintiff."
There is ample authority demonstrating the difference between a statutory termination of alimony and a termination based on the language of the judgment.
In Krichko v. Krichko, 108 Conn.App. 644 (2008), the separation agreement did not reference § 46b-86(b) and the plaintiff’s motion to modify the alimony was made solely on the basis of the separation agreement, not the statute. In that case, the court found that the language in the separation agreement’s termination provision was self-executing upon cohabitation. Accordingly, the court improperly failed to conclude that the plaintiff’s alimony obligation terminated as of the date the defendant began cohabiting, pursuant to the separation agreement.
The self-effectuating language in Krichko, supra, provided that alimony " shall terminate on the earliest of the following events to occur: a) the death of either party; or b) the remarriage or cohabitation of the defendant; or c) the date on which the defendant obtains her Master’s Degree; or d) April 30, 2007." This is vastly different than the case before the court. While the defendant cites Krichko, supra, for authority, that authority is misplaced. The language in Krichko, supra, is clearly self effectuating; the language in this case is clearly not.
Regardless of which argument the court adopts, the court must still consider the financial implications created by the cohabitation. If the court is controlled by Connecticut Gen. Statutes § 46b-86(b), the two prong test is expressly required by statute. If, on the other hand, the court rules that it is the contractual language of the judgment which controls, the termination of alimony is not automatic or self-executing; the language requires the court to either terminate, suspend or modify the alimony. This necessarily requires an analysis of the financial entanglements and arrangements of the plaintiff and her boyfriend, of which there was no evidence.
Since the defendant was unable to prove that the plaintiff’s boyfriend was supporting her financially or that the living arrangement caused a change in her financial circumstances, the defendant’s proof fails under either argument.
ORDERS
1. The plaintiff’s motion for contempt is granted. The defendant is ordered to pay the balance of $5,400 to the plaintiff within 60 days.
2. The defendant’s motion for contempt is granted. The plaintiff is ordered to close the Gap Visa and Navy Federal credit Union accounts within 60 days.
3. The defendant’s motion to modify alimony based on cohabitation is denied.