Opinion
FA094015530S
11-08-2017
Eric HIGGINS v. Caren HIGGINS
UNPUBLISHED OPINION
OPINION
SHAY, J.T.R.
The marriage of the parties was dissolved by decree of this court on July 16, 2009, at which time they entered into a Separation Agreement (#113.00) of even date therewith, which was approved by the court and incorporated in the decree by reference. They are the parents of three children, all of whom have reached their majority. The plaintiff husband (" husband") resides in Stamford, and the defendant wife (" wife") resides on 61 Hecker Avenue in Darien. Each party is responsible for the costs associated with their respective homes.
The wife entered into what she describes as a " committed, monogamous relationship" with a neighbor, one Jeffrey Bruno, which began in the summer of 2016. At that time, Mr. Bruno lived in his former married residence at Catalpa Terrace, Darien. He moved out of Catalpa Terrace on November 9, 2016, and he now resides his home at 33 Chimney Point Road, New Milford. Mr. Bruno is a self-employed excavating contractor in business with his brother. He keeps his work clothes at the wife’s home, and generally leaves for work from there. He has also stored several large pieces of furniture there. The wife is a registered nurse and has an independent income. Since November 2016, she and Mr. Bruno spend most of the week in Darien at her home, and most weekends in New Milford at his. (Exhibit #2) Neither of them contributes to the upkeep of the other’s home, and neither maintains any joint bank or investment accounts with the other. The wife told the court that it is " an emotional not a financial relationship, and that it would continue even without the alimony."
The wife testified that each usually buys the groceries for their respective homes, but that she occasionally buys some for the New Milford house. In addition, because they each have dogs, as a practical matter, he or she will sometimes buy large a bag of dogfood that is eaten by all the pets. Each cleans their own home, and Mr. Bruno testified that he plowed her driveway two or three times last winter and did not charge. Each told the court that they dine out occasionally, and that Mr. Bruno usually pays, but that she contributes from time to time. When they travel to visit family, they have shared the expenses. Even taken cumulatively, the court does not find these activities sufficiently quantified to make a finding that the wife’s financial circumstances have been altered. The main contention of the husband is that the wife’s use of the New Milford property is tantamount to a vacation, and hence alters her financial circumstances. Again, the court is not persuaded. The husband’s argument might carry more weight, if she did not own and occupy her Darien residence, and lived full-time in New Milford, but that is not the case.
Article 3.1 of the Separation Agreement provides in relevant part for the payment of time-limited, unallocated alimony and child support, as follows: " ... the Husband shall pay to the Wife, during his lifetime and until her death, remarriage, statutory cohabitation as defined by General Statutes § 46b-86(b) or July 1, 2019, whichever is first in time ..." (Emphasis added.) The husband is current with his alimony obligation. In light of the wife’s relationship with Mr. Bruno, on January 23, 2017, the husband filed a Motion to Terminate Alimony, Post Judgment (#122.01). The husband later filed an Amended Motion to Terminate Alimony (#124.00) dated February 16, 2017. He also claims attorneys fees for a claimed breach of the terms Article 11.4 of the Separation Agreement.
Words of termination like " death" and " remarriage" need no explanation. However, as is the case with the meaning of the term " cohabitation, " the meaning of the term " living with another person" does not come with a clear definition, but rather is arrived at through a fact-driven analysis. In DeMaria v. DeMaria, 247 Conn. 715 (1999), when presented with the question of whether or not there was cohabitation, the trial judge looked to General Statutes § 46b-86(b) for guidance, and he applied the two-pronged test which holds that the mere fact of living together is not alone sufficient to disturb the underlying order, and that the court must also determine the economic consequences, if any, of that relationship. DeMaria v. DeMaria, at 720. This court finds that the clear import of the language of Article 3.1 of the Separation Agreement is a direction to the court to perform the two-part analysis called for in General Statutes § 46b-86(b) in order to define the term " statutory cohabitation." Nation-Bailey v. Bailey, 316 Conn. 182, 198 (2015).
The matter was heard by the court on October 24, 2017, at which time the evidence closed. Both parties filed a Memorandum of Law.
FINDINGS
1. That " when a judgment incorporates a separation agreement in accordance with the stipulation of the parties, it is to be regarded and construed as a contract." Barnard v. Barnard, 214 Conn. 99, 109 (1990); and that " in giving meaning to the terms of the contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered." Greenberg v. Greenberg, 26 Conn.App. 591, 596 (1992).
2. That Article 3.1 of the Separation Agreement clearly and unequivocally calls for the termination of alimony in the event that the court finds that the defendant’s relationship with Mr. Bruno amounts to " statutory cohabitation" as defined by General Statutes § 46b-86(b) .
3. That General Statutes § 46b-86(b) has both definitional as well as remedial aspects. Nation-Bailey v. Bailey, 316 Conn. 182, 191-94 (2015); Spencer v. Spencer, Conn.App. (Released October 31, 2017); and that the court must first determine whether or not the relationship in question amounts to " a living with another person" (i.e. " statutory cohabitation") prior to considering the remedial aspects of the case.
4. That under all the facts and circumstances, while the evidence supports a finding that the wife is currently maintaining a committed relationship, and has done so for approximately one year, nevertheless, that alone is not sufficient to establish " statutory cohabitation; " that the moving party must offer evidence as to the value of the cohabitant’s " contributions to, or demands on, the [wife’s] financial resources. Blum v. Blum, 109 Conn.App. 316, 325-26 (2008); and that there is no credible evidence that the relationship has " altered her financial needs" as set forth in General Statutes § 46b-86(b).
5. That where, as here, the court determines that there was no " living with another person, " this factual finding on the threshold issue ... terminates the need for further inquiry under § 46b-86(b)." Kaplan v. Kaplan, 186 Conn. 387, 390-91 (1982).
6. That under the so-called " American System, " in the absence of a contractual, statutory, or legally recognized exception, each party is responsible for their own legal fees and costs; that Article 11.4 of the Separation Agreement provides that where a party has been determined to be in breach of the terms thereof, or found in contempt, that party may be liable for the reasonable attorneys fees of the other; that in this case there were no allegations of contempt or breach proven; and that there were no claims of litigation misconduct or any " clear evidence" introduced that would give rise to a finding with a " high degree of specificity" that either party’s claims were without color. Kupersmith v. Kupersmith, 146 Conn.App. 79, 98-99 (2013); Berzins v. Berzins, 306 Conn. 651, 663 (2012); Maris v. McGrath, 269 Conn. 834, 845-48 (2004); Munro v. Munoz, 146 Conn.App. 853, 860-61 (2013); Lederle v. Spivey, Conn.App. (released July 18, 2017).
ORDER
For the foregoing reasons, the plaintiff’s Amended Motion to Terminate Alimony, Post Judgment (#124.00) dated February 16, 2017, is HEREBY DENIED.