D'Ascanio v. D'Ascanio

• Decision Date: 25 June 1996
• Docket Number: No. 15273,15273
• Citation: D'Ascanio v. D'Ascanio, 678 A.2d 469, 237 Conn. 481 (Conn. 1996)
• Court: Connecticut Supreme Court
• Parties: Joseph D'ASCANIO v. Mary Louise D'ASCANIO.

Page 469

678 A.2d 469

237 Conn. 481

Joseph D'ASCANIO v.Mary Louise D'ASCANIO.

No. 15273.

Supreme Court of Connecticut.

Argued March 26, 1996.

Decided June 25, 1996.

Robert M. Casale, Branford, for appellant-appellee(plaintiff).

Gary I. Cohen, with whom was Lee Marlow, New Haven, for appellee-appellant(defendant).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and PALMER, JJ.

BERDON, Justice.

In this appeal, the plaintiff seeks to reverse the judgment of the trial court for failing to modify an alimony award in accordance with the terms of a settlement agreement entered into between the parties that was incorporated by reference into the original decree dissolving their marriage.The defendant cross appeals, claiming that there was insufficient evidence to support the trial court's modification of the alimony award.The parties appealed to the Appellate Court, and we transferred both appeals to this court pursuant to Practice Book§ 4023andGeneral Statutes § 51-199(c).We reverse the judgment of the trial court.

The marriage between the plaintiff, Joseph D'Ascanio, and the defendant, Mary Louise D'Ascanio, was dissolved on January 9, 1986.Pursuant to the decree of dissolution, the plaintiff, inter alia, was ordered "to pay the defendant as alimony the sum of $900.00 per week for so long as she lives and remains unmarried."Subsequently, the parties returned to court on numerous occasions regarding various issues pertaining to the dissolution of their marriage, including several motions to modify the alimony award.Ultimately, on August 21, 1990, the parties entered into a written settlement agreement that modified a number of the terms of the dissolution judgment (modification agreement).¹Following a hearing at which the parties acknowledged their understanding of the modification agreement's terms and consequences, the trial court, Mihalakos, J., approved the agreement, finding that it was fair and equitable.SeeHayes v. Beresford, 184 Conn. 558, 567-68, 440 A.2d 224(1981) ("Under our statutes, a court has an affirmative obligation, in [dissolution] proceedings, to determine whether a settlement agreement is 'fair and equitable under all the circumstances.'General Statutes § 46b-66.The presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated....With such judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine."[Citation omitted.].Pursuant to § 46b-66, ²the court ordered that the modification agreement be incorporated in the original dissolution decree.

The pertinent paragraph of the modification agreement provides: "That effective on [August] 25, 1990, the plaintiff shall pay alimony to the defendant of $700 per week; said alimony shall be paid for nine years and four months (507 weeks).Said alimony shall terminate upon the expiration of nine years and four months (507 weeks) and shall not be modifiable by either party in terms of duration or amount except that in the event that the defendant remarries or cohabitates, as defined by statute, the alimony shall be reduced by one half ($350).Further it is understood that if and when the defendant obtains gainful employment, regardless of the amount she earns, that such income shall not be a basis for a reduction in child support by the plaintiff which shall otherwise not be subject to any restriction as to modifiability other than usual statutory and common law criteria."(Emphasis added.)

On May 23, 1994, alleging that the defendant was cohabiting with Dean Griffin, the plaintiff moved, pursuant to the terms of the modification agreement, to have his weekly alimony payment reduced by $350.³The trial court, after a hearing on the motion, found that the defendant was in fact cohabiting with Griffin.Notwithstanding its finding, however, the trial court refused to apply the terms of the modification agreement that would have reduced the plaintiff's alimony payment by $350.Instead, the court reduced the alimony award by only $100 per week, obligating the plaintiff to pay $600 per week.

The parties do not contest the fact that the modification agreement defines "cohabitation" by reference to General Statutes § 46b-86(b).⁴Section 46b-86(b), known as the "cohabitation statute," provides in pertinent part that a court may "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 ... of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party."Therefore, in order to find that the defendant was cohabiting with Griffin, as defined by statute, the plaintiff had to prove that (1)the defendant was living with Griffin, and (2) the living arrangement with Griffin caused a change of circumstances so as to alter the financial needs of the defendant.Kaplan v. Kaplan, 186 Conn. 387, 389, 441 A.2d 629(1982).

"[T]he General Assembly chose the broader language of 'living with another person' rather than 'cohabitation.' "Kaplan v. Kaplan, 185 Conn. 42, 45, 440 A.2d 252(1981), on appeal after remand, 186 Conn. 387, 441 A.2d 629(1982).Whether an individual is "living with another person" is a fact specific determination.SeeLupien v. Lupien, 192 Conn. 443, 472 A.2d 18(1984);Kaplan v. Kaplan, supra, 186 Conn. 387, 441 A.2d 629;Duhl v. Duhl, 7 Conn.App. 92, 507 A.2d 523(1986).In this case, the trial court found that, because Griffin slept at the defendant's house seven nights a week, was identified by the defendant's children as their stepfather, and traveled with the defendant and her children, the defendant and Griffin were "living together."The defendant does not challenge that finding.

On her cross appeal, however, the defendant asserts that no evidence was presented to support the trial court's finding that her living arrangement with Griffin caused such a change of circumstances as to alter her financial needs.We disagree.Section 46b-86(b)"requires only a 'change' of circumstances, not a 'substantial change' as required by § 46b-86(a)."⁵Kaplan v. Kaplan, supra, 185 Conn. at 45-46, 440 A.2d 252.

With respect to the factual predicates for modification of an alimony award pursuant to § 46b-86(b), our standard of review is clear: "This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken....This court, of course, may not retry a case....The factfinding 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 the role of the trial court and an appellate court."(Citations omitted; internal quotation marks omitted.)Lupien v. Lupien, supra, 192 Conn. at 445, 472 A.2d 18.

The trial court, in concluding that the defendant's financial needs had been altered because of her living arrangement with Griffin, found that "Griffin's corporation provided the defendant with health insurance benefits and hosted the defendant and her children at various Caribbean locales....Griffin contributed a computer, piano and tools to the defendant's residence [and] occasionally contribut[ed] food items....Griffin also performed lawn mowing, snow removal and handy-man services at [the]defendant's home."Indeed, in response to a motion for articulation filed by the defendant, the trial court"found that the defendant's cohabitation with [Griffin] resulted in a contribution to the defendant, above and beyond [Griffin's] expenses, in the amount of one hundred dollars a week."The trial court's factual finding is not clearly erroneous and, therefore, we reject the defendant's claim on her cross appeal.⁶

Having found that the defendant was cohabiting with Griffin, as defined in § 46b-86(b), the trial court held that to enforce the terms of the modification agreement and reduce the plaintiff's weekly alimony payment by $350, when the defendant's financial needs were altered by only $100 per week due to her living arrangement with Griffin, would be inequitable and would amount to a penalty.Consequently, the trial court refused to apply the terms of the modification agreement and, sua sponte, reduced the defendant's weekly alimony by $100 retroactive to October 1, 1993.⁷

This deviation from the terms of the modification agreement by the trial court was improper.The only issue raised before the court was whether the defendant was cohabiting with Griffin within the meaning of § 46b-86(b).Both the parties and the trial court agreed that, according to the modification agreement, once a finding of cohabitation was made, the alimony award would be reduced by one half.⁸At the commencement of the hearing on the plaintiff's motion for modification, the issues before the court were delineated as evidenced by the following colloquy between the court and counsel:

"The Court: Let me just use a few minutes here to talk a little bit about the case here.Do you understand the agreement to have the effect of limiting the court's statutory discretion in the sense that if I find that there is cohabitation under the statute ... it would be an automatic reduction by one half; is that your understanding of the agreement?

"[Michael Beebe, trial counsel for the plaintiff]: Yes, I do, Your Honor, and there is a case that...