Opinion
FBTFA104032600S
06-24-2016
Gary Kunschaft v. Denise Kunschaft
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO MODIFY, POSTJUDGMENT (#148.79)
Gerard I. Adelman, Judge Trial Referee.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This postjudgment matter comes to the court on the plaintiff's motion to modify, seeking termination of the alimony order (#148.79) that was part of the original dissolution judgment (#121). The matter was heard by the court on May 3, 2016. At that hearing, the plaintiff called four witnesses, including the two parties. The defendant did not call any witnesses and relied on the testimony given during the plaintiff's case in chief. A variety of documents were received into evidence.
The motion alleged that the defendant was now cohabitating with another, and that as a result of that cohabitation, her financial circumstances had changed. The plaintiff sought a termination of his unallocated alimony and support obligation retroactive to May 2014, and a determination of an appropriate child support order.
The basic facts of the case are not in dispute. The parties were married on May 1, 1993, and had two children from the marriage, one of which is still a minor. Their marriage was dissolved by the court, Winslow, J., on February 18, 2011, and the court's judgment incorporated by reference the separation agreement (Agreement) of the parties (#121). The relevant provision under consideration during the hearing was ¶ 3.1 of the Agreement, which reads in relevant part: " [T]he Plaintiff shall commence paying to the Defendant the sum of $875 per week, as and for unallocated alimony and child support. These payments shall terminate upon the death of either party; the Wife's remarriage or cohabitation as defined by statute [or a specific term] . . . whichever shall first occur." The defendant does not dispute the fact that she has been cohabitating with a male--described by all parties as the defendant's fiancé --and that said arrangement has been in place since approximately May 2014. The parties also agree that their older child, now of majority, lives with the plaintiff, and that the remaining minor child lives with the plaintiff approximately half of the time.
DISCUSSION
The issues before the court are: (1) whether or not the current living arrangements of the defendant and her fiancé meet the second prong of the statutory test under General Statues § 46b-86(b); and (2) whether the language of the Agreement restricts the court's options to either terminating the alimony or not. The court shall address the second issue first.
Section 46b-86(b) provides: " In an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, 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. In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith."
The language of the Agreement states that upon a finding of cohabitation as defined by § 46b-86(b), the award of alimony shall terminate. That is the relief being sought by the plaintiff, but the defendant in her brief suggests that the court may well have all the options as set forth in § 46b-86(b), namely to suspend, modify or terminate the award of alimony.
I
It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, " is to be regarded and construed as a contract." Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999); see also Parisi v. Parisi, 315 Conn. 370, 383, 107 A.3d 920 (2015). Accordingly, the court's interpretation of the Agreement " is guided by the general principles governing the construction of contracts . . . A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Issler v. Issler, supra, 235. If a contract is unambiguous within its four corners, " the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Id. " When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact . . ." (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).
In this matter, the language used by the parties is unambiguous. The phrase " as defined by statute" modifies the noun " cohabitation" as it is used in ¶ 3.1 of the Agreement. That view is further strengthened by the language that precedes the phrase when the sentence clearly states that the alimony award " shall terminate" upon the first occurrence of the multiple triggering events. The mere mention of the statute in the Agreement does not incorporate all of the remedies provided for under it, especially when it is used in the Agreement in such a limited sense. Had the parties wished to provide the court with the ability to use the remedies of suspension, modification or reduction in addition to termination, that could have been included in the language, but it was not. The court is therefore obligated to enforce the Agreement as the contract of the parties approved by the court. See Parisi v. Parisi, supra, 315 Conn. 383 (" separation agreement that has been incorporated into a dissolution decree . . . must be regarded as a contract and construed in accordance with the general principles governing contracts").
Additionally, this specific issue was the subject of a recent Supreme Court decision in Nation-Bailey v. Bailey, 316 Conn. 182, 112 A.3d 144 (2015). In that case, the Supreme Court reversed the Appellate Court and held that the language of the separation agreement--virtually identical to the language in this Agreement--was clear, unambiguous, and self-executing. Id., 193-95. Similarly here, the intent of the parties was clear and the court shall enforce that negotiated outcome.
II
The remaining issue, however, is not as clearly decided. Although the defendant does not dispute the cohabitation, she claims that the current living arrangements has not altered her finances. It is her position that her fiancé lives with her, but does not substantially contribute to her income or impact her financial situation in any meaningful way. The defendant testified that she wants to be independent and does not want to have to rely on the assistance of another, but likes having a man in the house for a variety of non-financial reasons. It is conceded by the defendant that her fiancé does work for her around the house on occasion, and that he has given her some considerable cash gifts a few times. The testimony revealed that the defendant's fiancé also pays for both the defendant's and the defendant's daughter's cell phone at a cost of approximately $90 per month. Other than these limited items, the defendant's fiancé pays no rent, nor does he contribute to the cost of the utilities or groceries. Vacations and restaurant meals are shared equally as much as is possible.
This is an area which has been litigated before, and the court has the benefit of many decisions issued by the Appellate and Supreme Courts on which to rely. In Blum v. Blum, 109 Conn.App. 316, 324, 951 A.2d 587 (2008), for example, the Appellate Court discussed the issue as follows: " Although the alteration need not be substantial . . . the difference must be measurable in some way before the court can conclude whether a difference, in fact, exists." See also D'Ascanio v. D'Ascanio, 237 Conn. 481, 488, 678 A.2d 469 (1996) (evidence sufficient when defendant's cohabitation resulted in contribution from cohabitant of $100 per week); Distefano v. Distefano, 67 Conn.App. 628, 630 n.2, 787 A.2d 675 (2002) (evidence not sufficient when cohabitant living in defendant's basement at no charge and storing possessions in basement); Duhl v. Duhl, 7 Conn.App. 92, 93, 507 A.2d 523, cert. denied, 200 Conn. 803, 509 A.2d 517 (1986) (evidence sufficient when cohabitant paying plaintiff $400 per month for rent); Lupien v. Lupien, 192 Conn. 443, 444-45, 472 A.2d 18 (1984) (evidence sufficient when cohabitant paid plaintiff $30 weekly for food and performed numerous handyman chores that plaintiff's financial situation previously had prevented her from procuring). The Appellate Court went on to state, " [i]n other words, the court must have the ability to compare the plaintiff's financial needs at different points in time in order to determine whether those needs either have increased or have decreased over time. Because the court, in setting the alimony award pursuant to § 46b-82, quantified the plaintiff's financial needs in terms of dollar amounts at the time of dissolution, we conclude that the proper way for the court to determine whether the plaintiff's financial needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollar amounts during the period of cohabitation. Such an 'apples to apples' comparison would harmonize § § 46b-82 and 46b-86(b) into one coherent statutory scheme and lead to more just and rational results." (Internal quotation marks omitted.) Blum v. Blum, supra, 325.
The plaintiff argues that the contribution of the defendant's fiancé does meet the second prong of the statutory test and that there has been a clear change in her finances. He cites the accumulation of evidence including the payment of the cell phone bill, the various cash gifts, and the work done on the defendant's home. He cites to the decrease in expenses on the defendant's financial affidavits between the final judgment hearing and the present hearing as further proof that her financial situation has changed. The plaintiff argues that he has demonstrated a measurable change in the defendant's financial situation since her cohabitation began in May 2014. Although such amounts may not be considered substantial, that is not the criteria by which the court must determine the matter. The test is whether or not there has been a measurable change--not whether or not there has been a substantial change. See Blum v. Blum, supra, 109 Conn.App. 324-25.
The plaintiff also argues that the apparent lack of financial contribution by the fiancé to the defendant is an effort on the part of the defendant and her fiancé to avoid the natural consequences of their new relationship. He has, according to his testimony and that of the defendant as well, offered to contribute to the cost of the household only to have the defendant refuse to accept such offers. The defendant argues that her fiancé is struggling financially despite owning his own business and owning real property which he rents to paying tenants. Such an argument, however, is negated by the testimony that her fiancé has offered support in a variety of ways.
FINDINGS OF FACT
Having reviewed carefully the testimony of the parties and the other witnesses, including their demeanor while on the stand, and the items presented to the court as evidence, as well as having considered the statutory criteria of the appropriate statutes, and the case law of our state, the court makes the following findings of fact:
1. The defendant has cohabitated with another individual since May 2014;
2. As a result of said living arrangement, the defendant's financial situation has changed in a measurable manner;
3. The provisions of the Agreement ¶ 3.1 call for the termination of the plaintiff's alimony obligation upon the cohabitation of the defendant;
4. Said termination provision is self-executing under its terms;
5. The original order was for a payment of unallocated alimony and child support; and
6. The court requires further evidence to determine an appropriate child support order as well as to determine a retroactive credit for a possible overpayment by the plaintiff.
ORDERS
Accordingly, in light of the findings of the court as enumerated above, the court hereby
ORDERS
I. Plaintiff's motion to modify, postjudgment (#148.79) is granted;
II. Plaintiff's obligation to pay alimony is terminated as of May 1, 2014;
III. The parties are to prepare and file with the court current child support guidelines as well as guidelines for May 2014;
A. Said guidelines shall be filed no later than thirty days from the date of this decision;
B. A bench copy shall be forwarded to the court through case flow when the originals are filed with the clerk; and
IV. The court will schedule a hearing to determine the appropriate child support retroactive to May 2014 and presently as well as determine if a credit to the plaintiff is required.