Opinion
No. FA04-4000415S
November 7, 2006
MEMORANDUM OF DECISION
On May 18, 2005, after 12 years of marriage and the birth of three children, the parties were declared to be legally separated and their separation agreement of even date incorporated into the decree. The Wife was represented by counsel at the time and the Husband appeared pro se. Both parties were extensively canvassed by the court on the fairness of the agreement and the nature of legal separation decrees. They each testified that they believed the agreement was fair and equitable and should be incorporated into the decree.
On March 21, 2006, a mere 10 months later, the Wife through new counsel, filed a Petition for Decree Dissolving Marriage After Legal Separation (pleading #123) and a separate Motion for Counsel Fees (pleading #124). She alleged that the parties had not resumed marital relations and no written declaration of resumption of marital relations had been filed pursuant to Connecticut General Statutes § 46b-65. The Husband agreed with the allegations and had no objection to having the decree converted to a dissolution of marriage.
The issue presented is whether a court must consider all statutory criteria outlined in Connecticut General Statutes §§ 46b-81 and 46b-82 at the time a party seeks a conversion of a legal separation decree to a dissolution of marriage.
The Husband claims that the only power possessed by the court in such situations, is to modify orders which would be subject to modification in the event of a substantial change in circumstances. For example, in the instant case the parties waived alimony and divided up assets, subjects which the Husband claims could not be revisited by the court. He did concede that the court had the power to modify child support and other parenting issues, which are always subject to modification, provided there is a substantial change in circumstances.
The Wife claims that statutory and case law require the court to consider anew all the criteria recited in the pertinent statutes. She argued that it was not simply a case of the court accepting the previously approved separation agreement and incorporating it into the decree of dissolution, but rather one in which a new finding needed to be made. Cited in support of that position are the cases of Mignosa v. Mignosa, 25 Conn.App. 210 (1991), and Szot v. Szot, 41 Conn.App. 238 (1996).
The statutory language in both §§ 81 and 82 is clear that the assignment of property and the awarding of alimony are to be done "at the time of entering a decree . . . dissolving a marriage."
The case law is likewise clear as described in Szot v. Szot on page 241.
In a similar case where a party petitioned to convert a legal separation decree to a dissolution decree, this court stated that "although we hold that the trial court properly granted the defendant's petition converting the parties' legal separation into a dissolution of marriage, the trial court's incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were `fair and equitable' at the time of the dissolution was improper." Mignosa v. Mignosa, 25 Conn.App. 210, 216, 594 A.2d 15 (1991).
"The plaintiff correctly pointed out that the question of whether the separation decree orders were still fair and equitable was properly before the court. In order to determine whether such orders were fair and equitable, the parties were entitled to an opportunity to present evidence in a hearing. The fact that the agreement was presumably found fair and equitable at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford an opportunity for a hearing on the issues involved. (Internal quotation marks omitted.) A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . (Citations omitted.)" (Internal quotation marks omitted.) Id., 215-16.
Unfortunately, the Husband relied on the terms of the separation agreement which was approved by the court at the legal separation hearing wherein assets were divided and alimony waived. Now he is faced with re-litigation of those issues. It would appear that the Wife is getting a proverbial "second bite of the apple." While one might be sympathetic to the Husband in light of what happened, this court cannot ignore the plain language of the law. If the law is harsh, it is the province of the legislature, not the court, to change it.
While many of the orders which follow are the same as those found in the original separation agreement, the court is cognizant that there are substantial differences. The most significant is the real estate provision which gives the Wife sole title to the former marital residence instead of leaving it in both names. Also, the Husband is required to shoulder more of the liabilities of the parties than previously agreed to. Several other changes were either stipulated or relatively minor.
The court, after listening to the parties and reviewing all of the evidence, finds that residence requirements have been satisfied and neither party has been the recipient of public assistance. All pertinent criteria outlined in Chapter 815 of the General Statutes as well as applicable case law were considered by the court in the entry of the following orders.
ORDERS DISSOLUTION OF MARRIAGE
The marriage is dissolved on the grounds of an irretrievable breakdown.
CUSTODY AND VISITATION
The parties shall have joint legal custody of the minor child whose primary residence shall be with the Wife. The Husband shall have reasonable, liberal, and flexible rights of visitation including but not limited to the following: two days during the week (to be determined by the parties) and every other weekend from Friday at 5:00 p.m. until Sunday at 8:00 p.m. Holiday visitation shall be determined by the parties. Each party shall have two non-consecutive weeks of vacation time per year provided they give 30 days written notice of the days intended. The Husband shall take the children to their counseling sessions.
CHILD SUPPORT
The Husband shall pay to the Wife child support in the amount of $275.00 per week which is in accordance with the Child Support Guidelines. Said payment is to be made pursuant to an immediate wage withholding order.
As additional child support, the Husband shall pay the annual YMCA membership for each of the children.
Qualified childcare expenses shall be shared in accordance with the Child Support Guidelines worksheet.
EDUCATIONAL SUPPORT ORDER
The court reserves jurisdiction to enter an educational support order pursuant to statute.
LIFE INSURANCE
Each party shall name the minor children beneficiaries on any life policies available to them at no cost from their places of employment.
MEDICAL INSURANCE
The Husband shall maintain medical insurance for the minor children as it is available through employment and all unreimbursed expenses are to be shared in accordance with the percentages shown on the Child Support Guidelines worksheet.
REAL ESTATE
The Husband shall immediately quitclaim to the Wife his interest in the former marital domicile located at 106 Cedar Avenue, Waterbury subject to the outstanding mortgage and all expenses concerning same which the Wife shall assume and save the Husband harmless from any and all claims regarding same. In the event of the Wife's remarriage, cohabitation, removal from the premises as her principal place of residence, or when the youngest child attains the age of 18 years, whichever shall first occur, she shall immediately remove the Husband's name from the mortgage on the premises. If she fails to do so, the premises are to be immediately listed for sale and sold to the buyer with the first reasonable offer. The net proceeds of sale shall belong solely to the Wife.
The Husband shall retain the property located at 157 Hill Street, Waterbury.
ALIMONY
No alimony is awarded to either party.
PERSONAL PROPERTY
Each party shall retain the furniture, vehicles, bank accounts, and other personal property now in their respective possession and control.
RETIREMENT ASSETS
Each party shall retain their own retirement assets.
LIABILITIES
Each party shall be solely responsible for the liabilities shown on their financial affidavits except that the dental bill shown on the Wife's financial affidavit shall be shared in accordance with the percentages shown on the Child Support Guidelines Worksheet.
The liability on the Wife's automobile shall be shared $288.00 per month by the Wife and $500.00 per month by the Husband. The insurance on said automobile shall be the Husband's sole responsibility until the loan is paid in full.
Any deficiency amount due the lender at the termination of the loan shall be equally shared.
COUNSEL FEES
Each party shall pay their own counsel fees. CT Page 20670
TAXES
By April 15 of each year, until there is no longer any financial obligation for child support, the parties shall exchange their complete IRS returns in order to determine that the support payment is appropriate under the circumstances then existing.The Husband shall be entitled to claim the child Taylor and the Wife the children Ashley and Ayanna as dependents on their tax returns.
MISCELLANEOUS
Each party shall sign any necessary documents to effectuate the orders contained herein.
Plaintiff's counsel shall prepare the judgment file, have it certified by defendant's counsel, and file it with the court within 30 days.