Mihalyak v. Mihalyak

620 A.2d 1327, 30 Conn. App. 516, 1993 Conn. App. LEXIS 96
CourtConnecticut Appellate Court
DecidedMarch 2, 1993
Docket10825
StatusPublished
Cited by33 cases

This text of 620 A.2d 1327 (Mihalyak v. Mihalyak) 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
Mihalyak v. Mihalyak, 620 A.2d 1327, 30 Conn. App. 516, 1993 Conn. App. LEXIS 96 (Colo. Ct. App. 1993).

Opinion

Foti, J.

The defendant appeals from the judgment of the trial court granting in part and denying in part his motion to terminate alimony.1 He claims that the trial court improperly (1) ordered the plaintiff to repay alimony payments to the defendant only from the date on which he filed the motion rather than from the date on which the plaintiff’s cohabitation began, and (2) failed to exercise its discretion when it denied the defendant an award of interest, attorney’s fees and costs. The plaintiff has cross appealed, her sole claim being that the trial court improperly ordered a retroactive modification of alimony. We agree with the defendant and reverse the judgment of the trial court.

[518]*518The relevant facts are as follows. The parties’ marriage was dissolved in February, 1985, at which time the plaintiff, who was awarded the marital residence, was ordered to pay the defendant $30,000 as a property settlement on or before April 15,1985. Until such payment, the defendant was to pay the plaintiff $180 per week in alimony, which would be increased to $225 per week when the defendant received the $30,000. On June 1,1988, the alimony was to be reduced from $255 to $180 per week; on June 1, 1989, the alimony was to be further reduced to $100 per week. The amount of alimony was also to change if the plaintiff sold the house. The judgment, which incorporated an oral stipulation of the parties, further provided that “the Wife’s right to receive alimony will terminate upon the death of either party or upon the wife’s remarriage or cohabitation.”

The defendant first learned of the plaintiff’s possible cohabitation in the summer of 1990. After investigating to confirm his suspicion, he filed a motion for contempt in December, 1990, and a motion for modification or termination of alimony on February 14,1991. He continued paying alimony to the plaintiff until July 19,1991. Thereafter, he paid alimony into an interest bearing escrow account.

The trial court held an evidentiary hearing on. the defendant’s motions, at which time the plaintiff orally and by written stipulation admitted to living with a man at the former marital house since the beginning of September, 1988, “under the same roof’ and “sharing the same bed.” The plaintiff also orally stipulated that she did not want to receive any more alimony from the defendant after July 19,1991. The defendant had paid some 150 weeks of alimony from September 1, 1988, until July 19, 1991.

[519]*519After hearing the evidence, the court found “that the plaintiff was cohabiting or living with another person under circumstances which the court finds should result in a modification, suspension, reduction, or termination of alimony because the living arrangements caused a change of circumstances so as to alter the financial needs of the plaintiff.”2 The court ordered termination of the alimony effective February 14, 1991, the date the defendant filed his motion for modification. The plaintiff was ordered to repay, without interest, all sums paid to her by the defendant between February 14 and July 19, 1991. The court also terminated the defendant’s obligation to name the plaintiff as a beneficiary on a policy insuring his life, and ordered that alimony payments escrowed after July 19, 1991, be returned to the defendant. No attorney’s fees or costs were awarded to either party.

The defendant first claims that the trial court should have ordered a termination of alimony as of September 1, 1988, the date it found the plaintiff’s cohabitation began, since the dissolution decree provided for automatic termination in the event of cohabitation. The plaintiff, on the other hand, argues that the trial court should have terminated alimony as of July 19, 1991, the date as of which she stipulated to the court that she did not want to receive any further alimony from the defendant. By her analysis, a termination any time prior to that date would constitute an improper retroactive modification. We agree with the defendant and reject the plaintiff’s position.

[520]*520The plaintiff relies on the principle of law established in Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), and reaffirmed in Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), Vickery v. Vickery, 25 Conn. App. 555, 595 A.2d 905, cert. denied, 220 Conn. 919, 597 A.2d 344 (1991), and Paddock v. Paddock, 22 Conn. App. 367, 577 A.2d 1087 (1990), that alimony already “accrued” may not be modified. This principle, however, applies when a party seeks modification of alimony pursuant to General Statutes § 46b-86. “That statute ‘is a separate and independent statutory basis for the modification of alimony and is a claim which must be raised in a written motion by the party seeking to modify the award of periodic alimony.’ (Emphasis added.) Connolly v. Connolly, 191 Conn. 468, 478, 464 A.2d 837 (1983).” Taylor v. Taylor, 17 Conn. App. 291, 292-93, 551 A.2d 1285 (1989).

The record is clear that the defendant never sought a termination of alimony pursuant to General Statutes § 46b-86.3 Rather, he sought to terminate alimony solely [521]*521on the basis of a provision in the decree.* **4 The defendant’s motion does not refer to § 46b-86 (a) or (b).5 Dur-ing the evidentiary hearing, the defendant’s counsel informed the trial court that “[w]ith respect to the issue of retroactivity, this case is not about retroactivity whatsoever. We are seeking and we are respectfully asking this court to enforce its order, which order said that alimony shall terminate in the event of cohabitation. I don’t believe this is a matter . . . that is controlled by the statute in any way ... . It is merely seeking to enforce a court order. And, that’s what I’m asking the court to do.”

The defendant contends, and we agree, that the dissolution judgment itself provided for termination of the alimony upon the occurrence of the plaintiff’s cohabitation. The provisions of General Statutes § 46b-86 are inapplicable. The trial court should have considered the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation. Taylor v. Taylor, supra. “When a judgment incor[522]*522porates a separation agreement in accordance with a stipulation of the parties, it is to be regarded and construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). . . .” (Citations omitted.) Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992). The ultimate issue for this court is whether the trial court, in construing the judgment “as a contract,” reasonably could have concluded as it did. Pasquariello v. Pasquariello, 168 Conn.

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Bluebook (online)
620 A.2d 1327, 30 Conn. App. 516, 1993 Conn. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mihalyak-v-mihalyak-connappct-1993.