D'Ascanio v. D'Ascanio

678 A.2d 469, 237 Conn. 481, 1996 Conn. LEXIS 215
CourtSupreme Court of Connecticut
DecidedJune 25, 1996
Docket15273
StatusPublished
Cited by37 cases

This text of 678 A.2d 469 (D'Ascanio v. D'Ascanio) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Ascanio v. D'Ascanio, 678 A.2d 469, 237 Conn. 481, 1996 Conn. LEXIS 215 (Colo. 1996).

Opinion

BERDON, J.

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 § 4023 and General 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 aha, was ordered “to pay the defendant as alimony the sum of $900 per week [483]*483for 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).1 Following 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. See Hayes 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 [484]*484settlement 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-66,2 the 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 [485]*485subject 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 $350.3 The 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 plaintiffs alimony payment by $350. Instead, the court reduced the alimony award by only $100 per week, thereby 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).4 Section 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 [486]*486to 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. See Lupien v. Lupien, 192 Conn. 443, 472 A.2d 18 (1984); Kaplan v. Kaplan, supra, 186 Conn. 387; 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).”5 Kaplan v. Kaplan, supra, 185 Conn. 45-46.

With respect to the factual predicates for modification of an alimony award pursuant to § 46b-86 (b), our [487]*487standard 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 patties, which is not fully reflected in the cold, printed record which is available to us.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schott v. Schott
205 Conn. App. 237 (Connecticut Appellate Court, 2021)
Boreen v. Boreen
192 Conn. App. 303 (Connecticut Appellate Court, 2019)
Thompson v. Commissioner of Correction
194 A.3d 831 (Connecticut Appellate Court, 2018)
Spencer v. Spencer
173 A.3d 1 (Connecticut Appellate Court, 2017)
Fazio v. Fazio
Connecticut Appellate Court, 2016
Grimes v. Grimes
128 A.D.3d 894 (Appellate Division of the Supreme Court of New York, 2015)
Nation-Bailey v. Bailey
Supreme Court of Connecticut, 2015
Nation-Bailey v. Bailey
74 A.3d 433 (Connecticut Appellate Court, 2013)
Hurley v. Heart Physicians, P.C.
3 A.3d 892 (Supreme Court of Connecticut, 2010)
Somers v. Chan
955 A.2d 667 (Connecticut Appellate Court, 2008)
Blum v. Blum
951 A.2d 587 (Connecticut Appellate Court, 2008)
Doody v. Doody
914 A.2d 1058 (Connecticut Appellate Court, 2007)
Gervais v. Gervais
882 A.2d 731 (Connecticut Appellate Court, 2005)
State v. Michael J.
875 A.2d 510 (Supreme Court of Connecticut, 2005)
Lucas v. Lucas
592 S.E.2d 646 (West Virginia Supreme Court, 2003)
Gorton v. Gorton
832 A.2d 675 (Connecticut Appellate Court, 2003)
Benedetto v. Wanat
829 A.2d 901 (Connecticut Appellate Court, 2003)
Oliver v. Oliver, No. Cv 98-0583609 (Dec. 19, 2002)
2002 Conn. Super. Ct. 16502 (Connecticut Superior Court, 2002)
Behrns v. Behrns, No. Fa86 022 98 34 S (Oct. 4, 2002)
2002 Conn. Super. Ct. 12958 (Connecticut Superior Court, 2002)
Smith v. Smith, No. Fa 9046304s (Sep. 7, 2001)
2001 Conn. Super. Ct. 12460 (Connecticut Superior Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
678 A.2d 469, 237 Conn. 481, 1996 Conn. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dascanio-v-dascanio-conn-1996.