Boreen v. Boreen

• Decision Date: 03 September 2019
• Docket Number: AC 41155
• Citation: 217 A.3d 1040,192 Conn.App. 303
• Court: Connecticut Court of Appeals
• Parties: Maya BOREEN v. Kevin A. BOREEN

192 Conn.App. 303

217 A.3d 1040

Maya BOREEN

v.Kevin A. BOREEN

AC 41155

Appellate Court of Connecticut.

Argued April 23, 2019

Officially released September 3, 2019

James H. Lee, Fairfield, for the appellant (plaintiff).

Thomas M. Shanley, Greenwich, for the appellee (defendant).

DiPentima, C.J., and Alvord and Diana, Js.

DIANA, J.

The plaintiff, Maya Boreen, appeals from the judgment of the trial court granting the postjudgment motion filed by the defendant, Kevin A. Boreen, to terminate alimony, to determine overpayments, and to set a repayment schedule on the ground that, under the parties' separation agreement, the defendant's alimony obligation terminated upon the court's finding that the plaintiff was "living with another person." The plaintiff claims that the court (1) erred in finding that she was "living with another person" pursuant to General Statutes § 46b-86 (b),¹ and (2) improperly concluded that the only remedy available upon a finding that she was "living with another person" was to terminate the defendant's alimony obligation. We disagree and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts, as found by the trial court, are relevant to this appeal. The twenty-four year marriage between the parties was dissolved on September 29, 2009. The parties executed a separation agreement, which was approved by the court and incorporated in the dissolution decree by reference. The separation agreement provides that the defendant was to pay alimony to the plaintiff "until the earliest of the [defendant's] death, the [plaintiff's] death, the [plaintiff's] remarriage or ‘living with another person’ as defined in [Article] 2.2 [of the separation agreement]." Article 2.2 of the agreement provides in relevant part: "The [defendant's] obligation to pay alimony shall terminate on the date ... the [c]ourt determines [the plaintiff] commenced ‘living with another person.’ ... For purposes of this Agreement, the [plaintiff] shall be deemed to have been ‘living with another person’ in the event a court of competent jurisdiction makes a finding that the alimony should terminate or be reduced pursuant to the provisions of [General Statutes] § 46b-8 [6] (b)."²

In December, 2009, the plaintiff began dating Robert Rodriguez. On March 13, 2017, the defendant filed a motion to terminate alimony, to determine overpayments, and to set a repayment schedule, claiming that, although the plaintiff still maintained her own home, she had been living with Rodriguez within the meaning of § 46b-86 (b) since July, 2013, such that her financial needs had been altered. At the hearing on the defendant's motion, Rodriguez testified that, although he began dating the plaintiff in 2009, he had only owned and maintained a home in Wilton since July, 2013. The plaintiff's home, which she purchased in August, 2011, is also located in Wilton. Rodriguez testified that the couple spends "between three and four" nights together each week at one of their respective homes, but that neither of them contribute to the maintenance of the other's residence. He further testified that the plaintiff typically cooks for the couple twice per week and that he pays for their meals when they eat out more than half, and possibly as much as 75 percent of the time. Further, the plaintiff, who works part-time as an artist, keeps a rent-free art studio at Rodriguez's home in Wilton.

Importantly, Rodriguez admitted that in approximately January, 2015, he added the plaintiff to his health insurance policy and indicated on the enrollment form that the plaintiff was his "domestic partner." Before receiving health insurance coverage as a domestic partner under Rodriguez' policy, the plaintiff's insurance company required her to pay annually a $6000 deductible and a 20 percent copay. Under Rodriguez' health insurance policy, the deductible is $750 per incident. The plaintiff's total estimated share of the health insurance premium payments that had been made on her behalf by Rodriguez was, at the time of trial, in excess of $26,000. Although Rodriguez testified that the plaintiff had agreed to reimburse him for her portion of the health insurance premium, that agreement was not reduced to writing and the plaintiff had made no reimbursement payments to Rodriguez at the time of the hearing on the defendant's motion.

The court granted the defendant's motion in a memorandum of decision dated October 31, 2017, finding that "at least since January, 2015, the parties have been living together, and that the arrangement has altered the financial needs of [the plaintiff] within the meaning of General Statutes § 46b-86 (b)." On that basis, the court terminated the defendant's alimony obligation.

The court further determined that from January 1, 2015, until October 31, 2017, the defendant had paid alimony to the plaintiff in the amount of $358,216, and ordered the plaintiff to repay the overage in full in semiannual installments of $30,000 each without interest. On November 20, 2017, the plaintiff filed a motion for reargument and reconsideration, which the court denied on November 30, 2017. This appeal followed. Additional facts and circumstances will be set forth as necessary.

I

The plaintiff first claims that the court erred in finding that she had been "living with another person" within the meaning of § 46b-86 (b). Specifically, the plaintiff argues that the court erred in finding that she was living with Rodriguez because (1) they maintain separate residences and "are together less than all the time" and (2) the court improperly considered that Rodriguez had provided for her health insurance coverage under his own policy in making its determination about her living arrangements.³ We are not persuaded.

The court made the following additional findings relevant to this claim: "In this case, the testimony and evidence clearly support a finding that [Rodriguez] and [the plaintiff] have entered into a long-time, committed, and monogamous relationship that meets their emotional needs, and comes with significant financial benefits for the latter. The couple resides under the same roof for approximately half the week, take many of their meals together, regularly communicate by cell phone, and frequently travel together. Both described the relationship as exclusive, and [Rodriguez] called [the plaintiff] his ‘best friend.’ More importantly, he also described her as his ‘domestic partner,’ and, since January, 2015, he has made provision for her health insurance coverage under his own policy at no cost to her. For her part, on her Facebook page she has referred to the workshop at [Rodriguez'] home in Wilton as ‘her studio’ and posted photos of it and her artwork. Accordingly, the court finds that at least since January, 2015, the parties have been living together, and that the arrangement has altered the financial needs of [the plaintiff] within the meaning of General Statutes § 46b-86 (b)."

"The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Internal quotation marks omitted.) Emerick v. Emerick , 170 Conn. App. 368, 378, 154 A.3d 1069, cert. denied, 327 Conn. 922, 171 A.3d 60 (2017).

A

The plaintiff first argues that the court erred in finding that she was living with Rodriguez within the meaning of § 46b-86 (b) because they maintain separate residences and are together "less than all the time." We disagree.

Section 46b-86 (b) provides, in relevant part, that a court may modify a dissolution 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." Thus, "a finding of cohabitation requires that (1) the alimony recipient was living with another person and (2) the living arrangement caused a change of circumstances so as to alter the financial needs of the alimony recipient."

Fazio v. Fazio , 162 Conn. App. 236, 240 n.1, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016).

Whether an individual is "living with another person" is a fact specific determination. D'Ascanio v. D'Ascanio , 237 Conn. 481, 486, 678 A.2d 469 (1996). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between...