Opinion
No. KNL FA 06-4005894 S
January 2, 2009
MEMORANDUM OF DECISION ON CONTEMPT MOTIONS (#s 131 and 135) AND AMENDED MOTION FOR CONTEMPT, MODIFICATION, TERMINATION (#136)
On April 26, 2007, the court (Purtill, J.) dissolved the marriage of the parties. It approved and ordered their separation agreement incorporated into the judgment. Among the provisions of that agreement was a requirement that defendant pay plaintiff periodic non-modifiable weekly alimony of One Hundred ($100) Dollars per week for six months or until the sale of the family residence, whichever should first occur, and thereafter Five Hundred Fifty ($550) Dollars for a total of ten years. The parties stipulated that the family home sold on June 18, 2008, so the higher rate went into effect on October 26, 2007.
At present, the issue before this court is whether the alimony should terminate, in light of the provision that " . . . alimony . . . shall . . . terminate upon . . . cohabitation by the wife pursuant to Connecticut General Statutes Section 46b-86b (sic). . ." The remaining language of the decree regarding the modification or termination of alimony is not relevant to the motions now before this court. Those motions include defendant's amended motion for contempt and or modification dated September 9, 2008 (#136), and plaintiff's motions for contempt filed May 9 (#131) and July 3 (#135). In essence, defendant argues that plaintiff has begun to cohabit and therefore alimony ought to be terminated. Confident in this conclusion, he has withheld payments to her for several months, a circumstance which has generated plaintiff's two motions urging that he be held in contempt.
When cohabitation of a party to a dissolution judgment is claimed as a basis for a court's modification or termination of a periodic alimony award, the case law indicates that a two-step analysis is indicated. In the seminal case of Demaria v. Demaria, 247 Conn. 715 (1999), our Supreme Court ruled that the duty of a trial court asked to modify on account of cohabitation under CGS § 46b-86(b) is to decide, first, whether cohabitation is taking place, and second, if it is, whether the alimony recipient has thereby experienced a change of circumstances which alter her financial needs. The burden of proof as to each element is on the moving party. Cushman v. Cushman, 93 Conn.App. 186 (2006). In the earlier case of D'Ascanio v. D'Ascanio, 237 Conn. 481 (1996), the Court had noted that a finding on the first prong is "a fact specific determination," 237 Conn. 481, 486.
Here, the question of whether plaintiff is cohabiting at this time is bitterly contested. Defendant has shown that Jeff Byrnes, whom plaintiff has described as her boyfriend, had spent many nights per week at her home between late 2007 and the middle of 2008. On many occasions he has been observed doing yard work around her house, or cleaning snow off her driveway and vehicle. She has taken at least one out of state trip with him. He has kept a limited amount of his clothing at her place.
On the other hand, she is the sole lessee of the residence. She and Byrnes have no pooled assets or joint accounts. Her unrefuted testimony is that she pays the bills on the residence, including the cost of groceries and the like, although he has been seen shopping with her on occasion. More significantly, he does not receive his mail at her home. Apparently, he does not possess a key to her premises, as no one indicated that he does, and a neighbor testified that Byrnes has had to await plaintiff's arrival home at the neighbor's residence. Byrnes is on active duty with the United States Army, deployed to Kuwait as of May of 2008 for a period expected to be over a year. At all times relevant to this proceeding, he has maintained his own apartment at a separate location.
While in many cases involving cohabitation as a basis for modifying or terminating an alimony order the issue of living together is conceded or undeniable, this court has found no litmus test for finding that issue when the parties contest it. In Kaplan v. Kaplan, 186 Conn. 387 (1982), the Supreme Court affirmed a trial court finding that a spouse receiving alimony was not cohabiting with another postjudgment, where the putative roommate was found to have maintained his own residence throughout the period in question. On the other hand, in D'Ascanio, supra, a trial court's finding of cohabitation was sustained where there was proof that the recipient's significant other slept at her house seven nights a week, was identified by her children as their stepfather, and traveled with her and her children; indeed, the Court noted, the alimony recipient herself had not challenged the trial court's finding on that score. In both cases, however, the true holding was that on appeal the reviewing court would not overturn this factual finding of the trial court in light of the record before it.
Reported trial court decisions adjudicating contested claims of cohabitation fall into no precise categories. Defendant relies heavily upon Pawlaczyk v. Pawlaczyk, Docket Number 02-0398518, Fairfield j.d. at Bridgeport (2004; Downey, J.T.R.) [37 Conn. L. Rptr. 221]. There the court assessed the "totality of the circumstances" as proving cohabitation, and those circumstances included both cars being at one residence night after night, the couple's shopping and taking vacations together, and the significant other's lack of a known alternative address. Defendant did not cite, but might have also found support in, the decision in Sylvestre v. Sylvestre, Docket Number: 95-0108787, New London j.d. at Norwich (1998; Solomon, J.). That case determined that cohabitation existed where both members of the couple gave the court the same address, and stipulated that they were involved romantically with each other.
In contrast, the facts that the recipient's friend had no key to her home nor the code to her burglar alarm, and that the couple did not maintain joint accounts, were sufficient for the court in Elder v. Elder, Docket Number 02-0730665, Hartford j.d. (2004; Brennan, J.T.R.) to overlook a private investigator's observations that the gentleman's car had been parked overnight at the recipient's home for almost three weeks uninterruptedly, and find that no cohabitation was proven. Similarly, in Gordon v. Gordon, Docket Number 89-0265762, Fairfield j.d. at Bridgeport (1999; Cutsumpas, J.) [25 Conn. L. Rptr. 400] the court weighed evidence that a caller had been spending five or six nights weekly at the recipient's home, had a three-year intimate relationship with her, kept his clothing in her home and ate meals there, and had taken vacations with her, against evidence that he had all along maintained his own residence and at the time of trial had cut back his time at her home to less than half and determined that in light of all these circumstances the movant had not proven cohabitation.
This court believes that the "totality of the circumstances" is the proper test on this issue. Applying that test to the facts found, the court does not conclude that defendant has proven that his former wife and Byrnes are now or at any time have been living together so as to constitute cohabitation. The separate residence maintained by Byrnes and the lack of any intermingling of his legal or financial affairs with those of plaintiff are weighty factors.
Defendant has previously filed motions addressing the difficulty he faced in attempting to depose Mr. Byrnes. Although he has not sought definitive rulings on these motions before the commencement of the hearing before this court, and although he did not ask this court to adjudicate those motions, he nonetheless in his post-hearing brief has used Mr. Byrnes's apparent evasion of process, and plaintiff's claimed inducement of those evasions, as arguments for this court to draw certain inferences as to her credibility and as to what he would testify to if present. The court declines this invitation. If Byrnes were present, there is no reason to believe that his testimony would be any different from hers on the essential details. Moreover, defendant did not ask for a continuance to pursue Byrnes's testimony further, nor did he establish that plaintiff was the motivating force behind the proposed witness's recalcitrance. See, Blum v. Blum, 109 Conn.App. 316 (2008), footnote 5.
Because the defendant has not proven the first of the two tests required, his motion must be denied. It is therefore unnecessary for this court to elaborate on whether or not he proved that plaintiff's financial circumstances have altered as a result of her relationship with Byrnes; this court believes, however, that defendant has not made a prima facie case that satisfies that second prong of the cohabitation motion fact-finding process.
As to plaintiff's motions for contempt, there is no dispute that at least as of the date of the hearing (October 9), many thousands of dollars of alimony had not been tendered to her by defendant. He testified that he believed the provisions of his separation agreement are self-actuating, that he was no longer obligated to make the payments in light of his belief that plaintiff had abrogated her right to such payments by her cohabitation with Byrnes, and that he was holding the funds in a designated account until this court ruled upon his motion to terminate. Now that the court has ruled upon that motion, he must, forthwith, tally the amount owed since he stopped payments and deliver that payment to her. To this point in time, the court does not find that he acted with such wiliful indifference to this court's orders as to constitute contempt. The court will, however, continue plaintiff's motions for contempt to the short calendar of January 26, 2009, at 10:00 a.m., to see whether nonpayment continues. At that time, if payment has not been made, defendant is advised that he may be found in contempt and face appropriate sanctions.
In light of the foregoing rulings, no attorneys fees or costs are awarded to either party for proceedings to date.