Gervais v. Gervais

• Decision Date: 11 October 2005
• Docket Number: No. 24612.,24612.
• Citation: 882 A.2d 731,91 Conn.App. 840
• Court: Connecticut Court of Appeals
• Parties: Daniel R. GERVAIS v. Pamela M. GERVAIS.

882 A.2d 731

91 Conn.App. 840

Daniel R. GERVAIS v. Pamela M. GERVAIS.

No. 24612.

Appellate Court of Connecticut.

Argued April 28, 2005.

Decided October 11, 2005.

Campbell D. Barrett, with whom were Michael R. Suppappola, certified legal intern, and, on the brief, C. Michael Budlong, Hartford, for the appellant (defendant).

Dina M. Menchetti, with whom was John P. Febbroriello, Torrington, for the appellee (plaintiff).

LAVERY, C.J., and SCHALLER and HARPER, Js.

SCHALLER, J.

The defendant, Pamela M. Gervais, appeals from the postdissolution order of the trial court that terminated the obligation of the plaintiff, Daniel R. Gervais, to pay alimony as a result of her cohabitation with another man. On appeal, the defendant claims that the court improperly (1) failed to consider her sworn financial affidavit when determining whether her financial needs had been altered as a result of her cohabitation, (2) failed to consider the criteria of General Statutes § 46b-82 and (3) terminated the alimony award without a sufficient evidentiary basis. We agree with the defendant with respect to her first two issues and, accordingly, reverse the judgment of the trial court.¹

The following facts and procedural history are relevant to our discussion. The plaintiff and the defendant were married in 1970 and have one child who has reached the age of majority. The court dissolved the parties' marriage on November 16, 2001. The judgment of dissolution incorporated by reference a settlement agreement forged by the parties. The terms of the agreement required, inter alia, that the plaintiff pay the defendant alimony in the amount of $1500 per month for a period of fifteen years. The alimony was nonmodifiable, but would terminate on either party's death, the defendant's remarriage or her cohabitation with a male as if she were married, in accordance with the General Statutes.

By a motion dated September 27, 2002, the plaintiff requested the court to terminate, reduce or modify his alimony payment on the ground that the defendant was cohabitating with a man. The court scheduled a hearing on the plaintiff's motion for October 28, 2002. The plaintiff subpoenaed both the defendant and her alleged cohabitator, Gordon Page. The defendant, who had been served properly with the subpoena, failed to attend the hearing. The court suspended the alimony payments and ordered the plaintiff to make payments to a trustee account pending the outcome of his motion.

The court held a hearing on the plaintiff's motion over the course of four days. During the hearing, the defendant was questioned several times with regard to her most recent financial affidavit. In its August 21, 2003 memorandum of decision, the court found that the defendant and Page had been cohabitating as if they were married. In support of that finding, the court noted that the defendant admitted to having an intimate relationship with Page, sharing expenses with him and having gone on several vacations together. In making that finding, the court specifically discredited the testimony of the defendant, her father and Page regarding the issue of cohabitation. The court also determined that the plaintiff had met his burden of showing that the defendant's financial circumstances had changed as a result of her cohabitation. Specifically, the court found that the defendant and Page shared expenses and engaged in accountings to ensure that both were paying their share of expenses. The court specifically discredited the defendant's testimony regarding that issue. The court granted the plaintiff's motion to terminate alimony, effective October 12, 2002, the date the motion was served on the defendant.

On December 1, 2003, the defendant filed a motion for an articulation of the court's decision. The court granted the motion in part and stated that the defendant did not file a financial affidavit either at the time of the dissolution or at the hearing on the plaintiff's motion to terminate alimony. It also explained that it found the defendant's testimony regarding her increased expenses not to be credible as a result of her "dishonesty in other parts of her testimony [which] casts serious doubt on all of her testimony ...."

The court also articulated that it did not consider the factors set forth in § 46b-82² when it terminated the alimony payments. The court stated that it had "determined both that [the defendant] was cohabitating pursuant to the terms of their stipulation and that such cohabitation had altered her financial needs." The court again stated that the defendant had failed to submit a financial affidavit either at the time of the dissolution or at any time while the plaintiff's motion was pending. This appeal followed. Additional facts will be set forth as necessary.

Before discussing the specifics of the defendant's appeal, we identify certain legal principles that are relevant to our discussion. "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....

"A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.... In reviewing the trial court's decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other....

"We apply that standard of review because it reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.... As pithily stated by Justice Parskey, in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence." (Citations omitted; internal quotation marks omitted.) Chyung v. Chyung, 86 Conn.App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).

I

The defendant first claims that the court improperly failed to consider her sworn financial affidavit when determining whether her financial needs had been altered as a result of her cohabitation. Specifically, she argues that the court abused its discretion by failing to consider her sworn financial affidavits from both the original dissolution action and the hearing on the plaintiff's motion. We agree.

The following additional facts are necessary for our resolution of the defendant's claim. In its articulation, the court twice stated that the defendant had failed to file a financial affidavit, either at the time of the dissolution or during the pendency of the motion to terminate alimony. The record reveals that the defendant completed a sworn financial affidavit dated October 23, 2000, approximately one year before the judgment of dissolution was rendered. That affidavit is contained in the court file. We have been unable, however, to locate the affidavit that allegedly was completed and updated at the time of the hearing on the plaintiff's motion to terminate his alimony payments.

Our review of the transcript of the proceedings, however, reveals that the defendant was questioned extensively by the plaintiff's counsel with respect to a financial affidavit she completed on April 24, 2003. The defendant was asked about payments for a garage and whether those payments were "reflected on [her] financial affidavit that [she] filed that day . . . ." The court then indicated that it needed to examine that affidavit. The plaintiff's counsel then proceeded to ask several more questions regarding the April 24, 2003 affidavit and showed that document to the defendant during her testimony. During redirect examination, the defendant again was shown her April 24, 2003 affidavit by the plaintiff's counsel. Extensive questioning regarding her income followed.

"As has been repeatedly stated by this court, judicial review of a trial court's exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.... Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record.... With respect to the financial awards ... great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.... For that reason, we allow every reasonable presumption... in favor of the correctness of [the trial court's] action." (Citations omitted; internal quotation marks omitted.) Brent v. Lebowitz, 67 Conn.App. 527, 529-30, 787 A.2d 621, cert. granted on other grounds, 260 Conn. 902, 793 A.2d 1087 (2002) (appeal withdrawn April 25, 2002)....