DocketNumber: No. 0108787
Citation Numbers: 1998 Conn. Super. Ct. 9273
Judges: SOLOMON, J.
Filed Date: 7/28/1998
Status: Non-Precedential
Modified Date: 4/18/2021
The relevant facts are largely undisputed. The parties were married in 1972. In 1995, the Plaintiff commenced an action against the Defendant seeking a dissolution of the marriage. The matter proceeded to trial in August of 1996 resulting in the entry of the Decree. In its Memorandum of Decision, the Court found that, although both parties substantially contributed to the breakdown of the marriage, the conduct of the Defendant was more culpable as a result of an affair which she had commenced with an individual named Michael Gauvin (Gauvin). The Court further found that, soon after the commencement of the action, the Defendant left the marital home and was renting an apartment in Norwich where Gauvin continued to visit her at times. The Court found that the Defendant and Gauvin did not plan to marry. CT Page 9274 After considering the evidence in light of the applicable statutes, the Court ordered, inter alia, that the Plaintiff pay to the Defendant alimony (on a declining basis) "for five years, her death, remarriage or cohabitation with an unrelated male, whichever is the first to occur." (Emphasis added.) Plaintiff, seeking a termination of his alimony obligation under the Decree, alleges in his motion that, on or about November 7, 1997, the Defendant moved out of her apartment and commenced "cohabiting" with Gauvin at his residence. Soon after the filing of this motion, Plaintiff ceased making alimony payments to the Defendant which, in turn, prompted her issuance of a contempt citation.
The Defendant stipulates that (i) she has been living with Gauvin (in his one-bedroom residence) since November 7, 1997, and (ii) she and Gauvin had relations prior to the entry of the Decree and continued to do so to the date of the hearing on the motions presently before this Court. Additional findings of fact are supplied in the discussion set forth below. The essence of the controversy involves a determination whether Defendant's relationship with Gauvin constituted "cohabitation" within the meaning of the Decree.
The Court notes at the outset that the Plaintiff seeks to be relieved of his alimony obligation under the cohabitation provision of the Decree. His motion does not seek relief under the separate and independent statutory basis provided by C.G.S. §
The Court also notes that the Defendant does not claim that the language in the Decree terminating alimony, inter alia, upon her "cohabitation with an unrelated male" is an incorporation of the Statute. In other words, she (and apparently the Plaintiff as well) interprets the cohabitation provision of the Decree not to require an alteration of her financial needs as would otherwise be required under the Statute. Notwithstanding that such an interpretation would impose, in some respects, a lesser burden on the Plaintiff were he to seek a termination of alimony under the Statute (because he would be relieved of the burden of proving an alteration of the Defendant's financial need)2, the Defendant did not appeal from this or any other portion of the Decree.
The issue of whether a trial court can condition the CT Page 9275 termination of alimony upon "cohabitation" rather than the Statute with its dual-pronged requirements ("living together" and "alteration of financial needs") has been addressed recently by the Appellate Court. In Mihalyak v. Mihalyak,
The Defendant opposes Plaintiff's request for relief on two grounds. First, she claims that her relationship with Gauvin doesn't rise to the level of "cohabitation". Second, she contends that enforcement of the "cohabitation" clause is unconstitutional. The Court will address the issues in the order they were raised.
"Cohabitation" is the dwelling together of a man and woman in the same place in the manner of husband and wife. Wolk v. Wolk,
Finally, the Defendant, in conclusory fashion, contends that the enforcement of the "cohabitation" provision in the Decree is unconstitutional because (i) virtually all alimony awards are made to women, and (ii) women are a protected class under state and federal law. The Court rejects this contention for many reasons. First, neither Defendant's memorandum submitted to the Court nor the oral argument presented by counsel presents any meaningful legal analysis or relevant authority to support this claim. Second, to the extent the Defendant takes issue with the "cohabitation" provision in the Decree, she should have pursued appellate relief at the time the Decree entered. Third, the Defendant cannot be heard to complain about a "cohabitation" provision in the Decree when her own proposed orders submitted to the trial court (as to which the Court takes judicial notice) requested that a term of alimony be ordered which would be sooner terminable upon Defendant's "death, remarriage or cohabitation." Finally, notwithstanding Defendant's views regarding the CT Page 9277 frequency with which women, as opposed to men, receive alimony, the alimony statute (C.G.S. §
The Court finds that the Defendant and Gauvin have been cohabiting within the meaning of the Decree. Although the Defendant disputes the characterization of her relationship with Mr. Gauvin as one of "cohabitation", she did not disagree with the Plaintiff's claim that, if cohabitation were found by the Court, then the rights of the parties are governed by Mihalyak, supra. Specifically, the Court in Mihalyak found that the "alimony termination provision was automatic and self-executingupon cohabitation, just as it would have been upon the remarriage or the death of either party." Mihalyak, supra, at 1330 (Emphasis in original.) This Court finds that the language in the Decree is similarly unambiguous and, accordingly, the Plaintiff's obligation to pay alimony terminated effective November 7, 1997. The Plaintiff is entitled to reimbursement for all payments made to the Defendant for periods subsequent to November 7, 1997.
The Court has also considered C.G.S. §
2. Defendant's Contempt Citation, dated February 9, 1998, being premised upon Defendant's purported entitlement to alimony subsequent to November 7, 1997, is dismissed.
Dated this 28th day of July, 1998 at Norwich, Connecticut.
Solomon, J.