Opinion
(2167)
The plaintiff, claiming that his defendant former wife was cohabiting with a male, moved for modification of the judgment dissolving his marriage to her. At the time of the dissolution, the parties had entered into a separation agreement which was incorporated into the judgment and which provided, inter alia, that the plaintiff would, in the event of the defendant's remarriage, be entitled to reduce his monthly payments to her. The agreement defined remarriage to include cohabitation by the defendant with an unrelated male "after and for four continuous months . . . ." It was uncontroverted by the parties that the defendant had been living with a male for periods of two to three weeks, but never for more than four consecutive weeks. The trial court denied the motion for modification and the plaintiff appealed. Since, under the terms of the agreement, a span of four continuous months of cohabitation was necessary to constitute a remarriage by the defendant, as defined in the separation agreement, held that the trial court did not err in denying the motion.
Argued January 9, 1985
Decision released March 26, 1985
Motion for modification of an award of alimony, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Meadow, J.; judgment for the defendant, from which the plaintiff appealed. No error.
Paul J. Pacifico, with whom, on the brief, was Steven W. Russo, for the appellant (plaintiff).
Ralph C. Crozier, with whom, on the brief, was Norman H. Chase, for the appellee (defendant).
The plaintiff has appealed from the refusal of the trial court to modify the judgment of dissolution.
This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes 51-197a (c).
The factual situation does not appear to be in dispute. On August 30, 1976, a judgment dissolving the marriage of the parties was entered by agreement. The terms of the judgment provided, inter alia, that the plaintiff husband would be allowed to reduce the monthly payments in the event of the defendant wife's remarriage. The monthly payments would increase if the remarriage went awry. The separation agreement, which was incorporated into the judgment, provided that "remarriage shall be defined to mean cohabitation by the Wife with an unrelated male after and for four continuous months in the same residence so that the Superior Court at Stamford concludes the Wife and said male are living together." The cessation of cohabitation by the wife would reinstate the increased amount of alimony.
The defendant was to receive, during the relevant period, $1833.33 per month if she did not remarry, and amounts ranging from $916.66 to $1375 per month if she did.
The plaintiff filed a motion for modification, dated September 17, 1982, alleging a change of circumstances of the parties, namely, cohabitation by the defendant with a male. It is uncontroverted that the defendant has been living with a French male intermittently for periods of two to three weeks both in Connecticut and France, but never for more than four consecutive weeks.
The trial court concluded that the plaintiff had not sustained his burden of proving cohabitation for four continuous months, and denied the motion to modify.
The plaintiff claims to have proved a remarriage under the agreement, and also raises the specter of public policy. The plaintiff contends that the terms of the separation agreement were not intended to condone the defendant's lifestyle.
"The interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement." Collins v. Sears, Roebuck Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). The intention of the parties must be determined from the language of the instrument itself and not from any intention either of the parties may have secretly entertained. Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Holden Daly, Connecticut Evidence (1966 Sup. 1983) 83(b).
There is no question that a span of four continuous months of cohabitation is a necessary factor to constitute remarriage, as defined in the separation agreement, and such a span is lacking here. As has been so aptly stated, "`[a]lthough one may sympathize with the position in which the plaintiff finds himself the fact remains that by the separation agreement he made his bed and he cannot now be heard to complain.'" McAnerney v. McAnerney, 165 Conn. 277, 287, 334 A.2d 437 (1973).