Fredo v. Fredo
| Decision Date | 12 December 2005 |
| Docket Number | No. FA-04 4000885S.,FA-04 4000885S. |
| Citation | 49 Conn.Sup. 489,894 A.2d 399 |
| Court | Connecticut Superior Court |
| Parties | Thomas FREDO v. Kristin FREDO. |
Kristin Fredo, pro se, with whom was Hersh & Crockett, Hartford, for the defendant.
Berger, Santy & Barbieri, guardian ad litem, for the minor children.
The issue set forth in the present case is whether an order for the payment of periodic alimony contained in a decree of dissolution of marriage (entered pursuant to an agreement of the parties) which is expressly terminable upon, inter alia, the remarriage of the alimony recipient, is revivable in the event of an annulment of the recipient's subsequent marriage. It appears that this issue has not been previously addressed by the courts of this state.
The following facts are undisputed. The parties were married in 1993. The marriage was dissolved pursuant to a decree of dissolution dated November 24, 2004 (the decree). That decree incorporated the parties' agreement and stipulation (the agreement) bearing the same date. Both parties were represented by counsel. The agreement provided that Thomas Fredo, the plaintiff husband, would pay alimony to Kristin Fredo, the defendant wife, in the amount of $250 per week. Those payments were to terminate upon the earliest occurrence of three specific contingencies: first, the death of either party; second, the remarriage of the defendant; and, third, December 31, 2009. The order was nonmodifiable as to its duration. On June 8, 2005, the defendant was married in Las Vegas, Nevada, to Timothy Doyle, a man who, by her own acknowledgment, she had been seeing on and off for some time.
By motion dated June 21, 2005, the plaintiff, unaware that the defendant had remarried, sought to terminate the alimony based upon the defendant's cohabitation with Doyle. By the time the aforementioned motion was argued before this court, the plaintiff had learned of the defendant's remarriage and sought a declaration that the alimony had terminated by reason thereof as provided in the agreement and the decree. The defendant, through counsel, represented that she and her new husband had not discussed a number of issues, that the marriage was a mistake and that she was seeking to have it annulled in the Nevada courts. In contemplation and by reason of the alleged pending annulment, she claims that her remarriage should not result in the termination of alimony payments. It is the opinion of this court that alimony terminates upon remarriage and is not resurrected by subsequent events.
In the first instance, the court notes that the exercise of judicial power in the present matter is, in all likelihood, unnecessary. The provision in the agreement regarding the termination of the alimony obligation is self-executing. Certainly no further judicial action would have been necessary to terminate the alimony in the event that any of the other specified termination contingencies had occurred. Clearly, one would not have expected either party to seek a court-ordered termination of the alimony if either party had died or December 31, 2009 had passed. Either event would have resulted in an automatic termination of the alimony payments pursuant to the terms of the agreement and decree. The defendant's remarriage is no less definitive—the ceremonial marriage constituted a remarriage within the meaning of the agreement and decree. Indeed, our Appellate Courts, in dicta, have recognized that a provision calling for termination of alimony upon remarriage is self-executing. In Stein v. Stein, 49 Conn.App. 536, 714 A.2d 1272 (1998), our Appellate Court dealt with an alimony recipient who had obtained full-time employment. The parties' decree provided for the termination of alimony upon the earliest occurrence of the death of either party, the remarriage of the recipient or her full-time employment. The court found the provision in question to be self-executing and that the alimony terminated when she found full-time employment, "just as it would upon [her remarriage]." Id., at 540, 714 A.2d 1272. Similarly, in DeMaria v. DeMaria, 47 Conn.App. 729, 707 A.2d 741 (1998), rev'd on other grounds, 247 Conn. 715, 724 A.2d 1088 (1999), the court found a provision in the dissolution decree calling for the termination of alimony upon remarriage to be self-executing. Id., at 731-32 n. 5, 707 A.2d 741.
Even if the termination provision were not self-executing, it is this court's opinion that, where the agreement provides that the payor's obligation to pay alimony shall terminate upon remarriage, a later annulment of that marriage does not revive the payor's obligation to pay. Although this issue apparently has not been addressed by the courts of this state, it has been addressed, with some degree of frequency, in other jurisdictions. Those jurisdictions that have addressed the issue follow one of three approaches.
One approach is the void/voidable approach, pursuant to which an existing alimony obligation is revived following the annulment of a void marriage and generally, extinguished following the annulment of a voidable marriage. Broadus v. Broadus, 361 So.2d 582 (Ala.Civ.App.1978); Evans v. Evans, 212 So.2d 107 (Fla.App.1968); Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466 (1996); Darling v. Darling, 44 Ohio App.2d 5, 335 N.E.2d 708 (1975); Brown v. Brown, 29 S.W.3d 491 (Tenn.App.2000). The courts distinguish between void and voidable marriages on the basis that voidable marriages are valid until the annulment is granted (and then deemed void as of the date of the marriage through a legal fiction known as the relation back doctrine), whereas void marriages are void ab initio.
On the other hand, a significant number of courts eschew the void/voidable distinction and conclude that the remarriage of the alimony recipient automatically terminates the alimony obligation irrespective of subsequent events. Hodges v. Hodges, 118 Ariz. 572, 578 P.2d 1001 (Ct.App.1978); Berkely v. Berkely, 269 Cal.App.2d 872, 75 Cal.Rptr. 294 (1969); G. v. G., 387 A.2d 200 (Del.Super.1977); Hutton v. Hutton, 118 S.W.3d 176 (Ky.2003); Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972); Glass v. Glass, 546 S.W.2d 738 (Mo.App.1977); Shank v. Shank, 100 Nev. 695, 691 P.2d 872 (1984); Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971); Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971); Denberg v. Frischman, 24 App. Div.2d 100, 264 N.Y.S.2d 114 (1965).
Yet a third approach disregards either of the foregoing and would have the court decide the issue on a case-by-case basis. This least followed approach is utilized by a distinct minority of jurisdictions and, in at least three cases, has been adopted by divided courts. In re Marriage of Cargill and Rollins, 843 P.2d 1335 (Colo.1993) (over three dissenters); Peters v. Peters, 214 N.W.2d 151 (Ia.1974) (); In re Marriage of Williams, 208 Mont. 252, 677 P.2d 585 (1984); Joye v. Yon, 355 S.C. 452, 586 S.E.2d 131 (2003) (); Ferguson v. Ferguson, 564 P.2d 1380 (Utah 1977).
This court believes that the case-by-case approach is the least desirable option. By its very nature, it provides the least certainty and guidance to litigants in family cases (which may explain, at least in part, why so few jurisdictions employ this approach). One can scarcely doubt that parties to a decree of dissolution of marriage, to the extent possible, look for finality in concluding their relationship and certainty regarding the rights and obligations arising therefrom. That is particularly apparent from the agreement in the present case, which provides that the alimony obligation created therein would terminate nonmodifiably upon the first occurrence of one of three specific events: (1) the death of either party; (2) the defendant's remarriage; or (3) December 31, 2009. Adoption of the case-by-case approach would eviscerate the clear intent of the agreement and deprive the parties of the finality and certainty for which they bargained. A review of the cases that have adopted this approach demonstrates the breadth of the considerations that a court might consider in making its determination: length of the subsequent marriage; whether the alimony recipient receives support as a result of the annulled marriage; the degree to which the payor spouse is prejudiced by the revival of the alimony obligation; the circumstances surrounding the annulment; any changes in the parties' respective financial circumstances, and the like. Query whether the scope of this analysis is an all or nothing assessment of the revivability of the alimony obligation or, alternatively, does it allow a measured response from the trial court in the form of a modification of the original order? Far from creating a bright line, this approach establishes no line. It vests far too much discretion in a court on an issue which the parties, by the terms of their agreement, decided for themselves. Although this approach may appeal to those interested in intellectual analysis, it does little to assist family law litigants in their efforts to plan and move on with the very real lives that they lead. Accordingly, for all the foregoing reasons as well as those further considerations hereinafter set forth, the court rejects the case-by-case approach as a means of resolving this issue.
This leaves the court with one of the two remaining alternative approaches; the automatic termination...
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