Opinion
No. FA 01 0275818
August 7, 2007
MEMORANDUM OF DECISION RE MOTION NO. 121 TO TERMINATE ALIMONY, POSTJUDGMENT
The parties' marriage in this case was dissolved on April 17, 2002 (Winslow, J.). The plaintiff, Vito J. Boccuzzio, now seeks to terminate his obligation to pay support in the form of alimony to the defendant, Frances P. Boccuzzio, which was ordered by the court in the amount of $220 per week. He alleges that his obligation to pay alimony has terminated pursuant to the cohabitation provision in the judgment in this case. The memorandum of decision of the trial judge, dated April 17, 2002, states that "the plaintiff shall pay to the defendant as and for spousal support the sum of $220 per week until the death of either party, the remarriage of the defendant, or her cohabitation in a marriage-like relationship with another person." (Emphasis added.)
A hearing on the motion to terminate alimony was held on August 1, 2007, and the following relevant facts are found by the court. In 2005, the defendant became intimately involved in a friendship with Wayne Allen. On or about December 28, 2005, Wayne Allen moved into the defendant's home at 115 Oak Street in Meriden, Connecticut. He lived with the defendant for six months until June of 2006. Thereafter, Wayne Allen moved back into the defendant's home in February 2007, and is where he presently resides.
Ms. Boccuzzio owns the two-bedroom home where she and Wayne Allen reside. She and Wayne Allen sleep in the same bed and have sexual relations, share meals at home and in restaurants regularly, grocery shop together, celebrate holidays, visit with her children, share in the maintenance and upkeep of the home and have, on one occasion, vacationed together in Vermont. She does Wayne Allen's laundry on a regular basis. Wayne Allen performs chores around the home, including, but not limited to, cutting the lawn, snow plowing, as well as occasional painting and minor repairs. He keeps clothes and important financial records in a room at Ms. Boccuzzio's home, which is dedicated to his personal property. In addition, Wayne Allen has continuously paid the defendant $100 per week as his financial contribution to live at her home. Although he is willing and able to pay additional money to the defendant, Ms. Boccuzzio is satisfied with the amount he pays and believes it to be a fair contribution toward their household expenses.
Wayne Allen, however, is married to Stacia Allen, who resides in their marital abode in Harwinton. Although Stacia Allen filed a dissolution action on January 10, 2006, the action has since been withdrawn. Wayne Allen has not returned to his marital abode since January 2007, and has been unable to do so pursuant to a restraining order. Wayne Allen nonetheless continues to support his wife and pay expenses associated with their property.
These essential facts are generally undisputed. The defendant, however, claims that the facts of this case are not within the intended meaning of Judge Winslow's specific language in the divorce decree. She claims that her relationship with Wayne Allen involves neither an emotional commitment nor the joining of their economic lives. Therefore, she claims that the facts do not rise to Judge Winslow's specific requirement that cohabitation, if any, must be in "a marriage-like relationship with another person."
Ms. Boccuzzio contends that the ordinary, common-law standard for cohabitation was not intended by Judge Winslow due to the extraordinary circumstances of this case. In particular, she asserts that the memorandum of decision details the deceptive depletion of marital assets by the plaintiff, which were caused by his addiction to gambling. Due to this depletion of family assets, she further claims that the alimony payments in this case were intended to restore marital assets planned for her retirement. She, therefore, concludes that the specific language of Judge Winslow's order was intended to require a higher threshold for cohabitation than would normally be required under the law. For reasons set forth below, the court disagrees with her conclusion.
The specific language of Judge Winslow's order did not include a definition of the term cohabitation, such as the statutory definition provided in General Statutes § 46b-86(b). Since this term was undefined, the court is now required to construe the term cohabitation followed by the phrase "in a marriage-like relationship with another person," as used in the dissolution judgment.
General Statutes § 46b-86(b) provides: "In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party." (Emphasis added.)
In DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999), the Supreme Court addressed the question of termination of alimony for alleged cohabitation. In deciding the defendant's motion to terminate alimony, the trial court in that case "was left to construe the word [cohabitation]. Black's Law Dictionary (6th Ed. 1990) defines cohabitation as `[t]o live together as man and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations . . .' [Further, the Supreme Court] has defined cohabitation to be `a dwelling together of man and woman in the same place in the manner of husband and wife . . .' As is readily apparent, the word is not inflexible nor is it one of strict or narrow meaning." (Citations omitted.) DeMaria v. DeMaria, supra, 247 Conn. 720.
Returning to the specific language of the dissolution judgment in this case, the court must determine the meaning of the words "marriage-like relationship with another person." This phrase is different from the language used in other, more traditional definitions of cohabitation, such as those used by our Supreme Court or found in Black's Law Dictionary. For example, Judge Winslow's language is gender neutral. It refers to a marriage-like relationship "with another person" instead of in the manner of a "man and wife" or "husband and wife."
The more traditional definitions of the term cohabitation presume a marriage-like relationship involving a man and a woman and do not explicitly include same-sex partnerships. Although not applicable in this case, Judge Winslow's language is more general in that it may be construed to include more relationships, depending upon sexual orientation. Instead of creating a higher standard for cohabitation, as alleged by the defendant, this language allows for a broader application to instances involving civil unions and other, same-sex partnerships that might arguably be excluded by modifying the term cohabitation with phrases such as "in the manner of a husband and wife" or "man and wife." Therefore, the court finds that Judge Winslow's reference to "cohabitation in a marriage-like relationship with another person" was intended to restate a cohabitation provision in gender neutral terminology. Furthermore, such gender neutrality appears to be a logical extension of, and consistent with, the underlying purpose of terminating alimony upon cohabitation in a heterosexual relationship. Therefore, the court sees no reason to read this language as requiring a greater emotional commitment to one another or some greater indicia of marriage to find that cohabitation exists in this case.
In DeMaria, the Supreme Court considered the legal standard for terminating alimony pursuant to a judgment due to cohabitation, where the term is undefined. The court's analysis in DeMaria included consideration of General Statutes § 46b-86(b) as a definitional source. As a matter of common law, the court found that "[a]lthough the definition of cohabitation as set forth in the dissolution judgment is not controlled by § 46b-86(b), statutes are a useful source of policy for common-law adjudication, particularly when there is a close relationship between the statutory and common-law subject matters." DeMaria v. DeMaria, supra, 247 Conn. 721. Under § 46b-86(b), living together is not sufficient to terminate or modify alimony due to cohabitation. Therefore, in determining the proper standard as a matter of common law, the court concluded that "the non-marital union must be one with attendant financial consequences before the trial court may alter an award of alimony." Id., 720.
The defendant argues strenuously that the alimony order was intended to restore assets that were depleted deceptively by the plaintiff's habitual gambling. Based upon Judge Winslow's findings, the plaintiff seriously hobbled the financial security of this family. Although significant mortgage debt was attributable to his addiction, this debt was known to the defendant and was assigned to her along with the title and remaining equity in the home. The court notes that the plaintiff was ordered to pay much of the remaining marital debt and to hold the defendant harmless from that debt, which amounted to over $50,000.
At the time of the dissolution, there was an annual income disparity between the parties of approximately $28,000, with the plaintiff earning roughly $70,000 and the defendant earning roughly $42,000. The alimony order was for $220 per week, for a total annual income transfer of $11,440. Notwithstanding tax considerations, the practical effect of this support was to narrow the income disparity of the parties at the time to approximately $5,000 and this afforded the defendant the opportunity to comfortably remain in the encumbered marital abode. The alimony order, however, does not state specifically that it was intended to unconditionally and perpetually restore assets to the defendant, nor can it be implied in light of the specific provision that alimony in this case was to be paid until remarriage or cohabitation.
The court finds that the defendant began cohabiting with Wayne Allen in a marriage-like relationship on December 28, 2005. The parties are living together, and have been for a substantial period of time, in a sexually intimate relationship in a home where they share their lives together. The defendant's financial circumstances have been altered by Wayne Allen making weekly payments to her of $100. According to the judgment of dissolution in this case, the plaintiff's obligation to pay spousal support was in effect until the defendant began cohabiting in a marriage-like relationship with another person. Therefore, the alimony in this case is terminated because of the defendant's cohabitation with Wayne Allen.
The plaintiff has overpaid spousal support and is owed a credit for sums paid between December 28, 2005, and the date of this court order terminating his spousal support obligation. He seeks an order of payment as follows: "$ 5,000 in a lump sum within 30 days and thereafter $220 per week until paid in full or, the entire arrearage owed shall be paid no later than January 1, 2008."
The income disparity of the parties has been leveled substantially since the divorce in 2002, primarily due to the defendant's hard work and overtime payments. In addition, through her continued frugality, she has amassed substantially more assets than the plaintiff has been able to accumulate since the time of the divorce. Although this may be the case, the court is not unmindful of the financial history of the parties, as well as the fact that, as a practical matter, the defendant has received weekly payments of only $100 from Wayne Allen, compared with her impending loss of $220 in weekly support by this court's order.
Although her financial affidavit shows a weekly income of only $1,133.00, testimony was elicited at the hearing that this amount did not include overtime, which she earns on a regular basis. Her average weekly earnings, therefore, generally approach the $1,488 weekly earnings of the plaintiff.
In view of the fact that Wayne Allen has been paying the defendant $100 per week for approximately one year, she is ordered to disgorge a substantially equal amount in a lump-sum payment of $5,000 to the plaintiff within thirty (30) days. Weekly payments on the remaining arrearage, however, are to be made at the nominal rate of $35 per week until the entire debt is repaid.
Although the defendant did not inform the plaintiff of the change in her living arrangements, the court believes that she does not personally consider her relationship with Wayne Allen to be consistent with her subjective view of marriage. Based on this consideration, the court has used its discretion to form a remedy less punitive than where court orders are more willfully contravened.