Cushman v. Cushman

888 A.2d 156, 93 Conn. App. 186, 2006 Conn. App. LEXIS 25
CourtConnecticut Appellate Court
DecidedJanuary 17, 2006
DocketAC 25541
StatusPublished
Cited by17 cases

This text of 888 A.2d 156 (Cushman v. Cushman) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cushman v. Cushman, 888 A.2d 156, 93 Conn. App. 186, 2006 Conn. App. LEXIS 25 (Colo. Ct. App. 2006).

Opinion

Opinion

BERDON, J.

The plaintiff, Robert E. Cushman, appeals from the postjudgment alimony orders of the trial court that stem from the parties’ 1999 judgment of dissolution. The plaintiff claims that the court improperly (1) inquired whether there was a substantial change of circumstances instead of conducting a de novo review of the parties’ financial circumstances pursuant to General Statutes § 46b-82, as required by the separation agreement that was incorporated into the judgment of dissolution, (2) awarded excessive alimony to the defendant, Lee Cushman, and (3) failed to find that the defendant’s living situation met the definition of cohabitation under General Statutes § 46b-86 (b). We disagree and affirm the judgment of the trial court.

The relevant facts and procedural history of the plaintiffs appeal are as follows. On October 13, 1999, the parties entered into a separation agreement as part of the dissolution of their thirty-seven year marriage. The separation agreement required the plaintiff to pay the defendant $12,500 in monthly alimony for a period of four years. At the conclusion of the four year period, the parties, pursuant to the separation agreement, were to “take a ‘second look’ to redetermine” on a de novo basis “the amount of periodic alimony . . . ,”1 That [189]*189“second look” was to take place prior to September 1, 2003, by which date the parties were to have made a good faith effort to resolve the redetermination of alimony.2 Following September 1, 2003, the alimony set forth under the four year term was to continue until an agreement between the parties or a court order established a new arrangement. Any new arrangement was then to be retroactive to September 1, 2003. An additional provision of the separation agreement required the plaintiff to maintain a $500,000 life insurance policy with the defendant as beneficiary in order to insure the alimony payments. At the time of the “second look” to review the alimony obligations, the parties were also to redetermine the amount of the life insurance “based on the circumstances at that time.”

Not having agreed to the redetermined amount of alimony or life insurance, the plaintiff, on August 13, 2003, filed a motion for modification of alimony in which he requested that the October 13, 1999 judgment of dissolution be modified to terminate or reduce his alimony obligation. He claimed that the defendant’s significant, independent means of support and her cohabitation with another person warranted the modification of alimony. Beginning September 1, 2003, the plaintiff ceased to make his alimony payments to the defendant and failed to maintain the life insurance policy. On September 9, 2003, the defendant filed a motion for contempt on the ground that the plaintiff had failed to pay alimony and failed to maintain the life insurance in accordance with the 1999 judgment of [190]*190dissolution. On May 4, 2004, the court, subsequent to a four day hearing, granted the plaintiffs motion for modification and reduced his monthly alimony obligation to $9000 from $12,500, retroactive to September 1, 2003. The court did not find that the defendant’s living situation caused a change of circumstances so as to alter the defendant’s financial needs under § 46b-86 (b). Further, the court found the plaintiff in wilful contempt for failure to pay alimony and to maintain life insurance pursuant to the dissolution judgment. Accordingly, the plaintiff was ordered to pay the nine month arrearage and $1500 in attorney’s fees, in addition to maintaining a $500,000 life insurance policy with the defendant as beneficiary. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly limited its review to whether there was a substantial change of circumstances instead of conducting a de novo review of the parties’ financial and other circumstances as of September 1, 2003, pursuant to § 46b-82,3 as required by the separation agreement. We disagree and conclude that the court conducted a de novo review based on the parties’ financial circumstances as of September 1, 2003, pursuant to the criteria enumerated under § 46b-82 for the award of alimony.

We first identify our standard of review. The standard of review governing this matter is well settled. “In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated [191]*191into the judgment is a contract of the parties. . . . The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . The scope of review in such cases is plenary.” (Citation omitted; internal quotation marks omitted.) Sullivan v. Sullivan, 66 Conn. App. 501, 504, 784 A.2d 1047 (2001).

When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. “Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.”Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 139, 838 A.2d 1026 (2004).

In the present case, the separation agreement required the parties to take a “second look” at the alimony at the completion of the initial four year term. The “second look” was to be a consideration of the parties’ financial circumstances de novo, as if it were an initial determination of alimony, requiring the application of § 46b-82 criteria. Section 46b-82 “set[s] forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action. The court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding [s] as to each statutory factor. A ritualistic rendition of each and every statutory element would serve no useful purpose. . . . [T]he trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 670, 862 A.2d 374, cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).

[192]*192It is clear that the court properly looked to the separation agreement and conducted a de novo review. At the start of its oral decision, the court established that the issue was “a de novo look at the issue of alimony . . . .” The court stated that it “consider[ed] the criteria which was set forth in the statutes at § 46b-82 and ... § 46b-86 (b),4 which are the criteria to be considered in the determination of alimony . . . .” The court further affirmed its consideration of the proper criteria when it stated that it had heard evidence concerning “the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, state and needs of the parties,” which are set forth in § 46b-82 as factors to be considered in alimony determinations.

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Cite This Page — Counsel Stack

Bluebook (online)
888 A.2d 156, 93 Conn. App. 186, 2006 Conn. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cushman-v-cushman-connappct-2006.