Opinion
No. FA05 400 46 04
March 2, 2011
MEMORANDUM OF DECISION
On November 18, 2010, the plaintiff filed a Post-Judgment Motion to Terminate Alimony. Plaintiff claims that a separation agreement providing for termination of support in the event of cohabitation is enforceable irrespective of the cohabiting spouse's receipt of other support. Count Two is based on Connecticut General Statutes § 46b-86(b), which provides for the modification of support where the spouse receiving such support "is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangement cause such a change of circumstances as to alter the financial needs of that party."
Defendant's Motion to Dismiss relies on the following allegations: (1) that the Motion to Terminate should have addressed other contempt options that do not relate to the termination or modification of alimony; (2) insufficient service of process; (3) that the Motion to Terminate was "conclusory"; (4) that the use of "counts" in the Motion to Terminate was an improper form; and (5) that the Motion to Terminate should have identified the statute by number. The defendant also claims, incorrectly, that several of the allegations above implicate her due-process rights.
The Motion to Terminate properly states its factual and legal bases. The Motion to Terminate was served properly and the defendant's argument regarding the use of "counts" is superfluous.
The parties were divorced on May 16, 2006. The decree incorporated by reference the parties' Separation Agreement, also dated May 16, 2006. The terms of the agreement require the plaintiff to pay to the defendant alimony in the amount of $4,875 per month plus a portion of his bonus. The plaintiff is required to make these payments until June 1, 2016, absent certain other events, which will terminate the obligation immediately. Once of these events is the defendant's cohabitation.
The plaintiff has alleged in his Motion to Terminate that, at or about the end of 2009, the defendant began cohabiting with a man. Given the plain language of the agreement and his rights under state statute, on November 12, 2010, the plaintiff filed a Post-Judgment Motion to Terminate Alimony. The Motion to Terminate was predicated on two bases: First, that alimony ought to terminate under the terms of the agreement, which provides for termination of alimony without respect to other support; and second, that alimony ought to terminate under C.G.S. § 46b-86(b), which provides, inter alia, for termination or modification of alimony in the event that the party receiving support "is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangement cause such a change of circumstances as to alter the financial needs of that party."
The Court denies the defendant's Motion to Dismiss, as it fails to demonstrate any legitimate ground for dismissing or denying the plaintiff's Motion to Terminate. The Motion to Terminate complies with Connecticut Practice Book § 25-26 and Connecticut General Statutes § 46b-86(b).
Under Connecticut Practice Book § 25-26, a Motion to modify alimony "shall state the specific factual and legal basis for the claimed modification and shall include the outstanding order and date thereof to which the Motion for modification is addressed." The plaintiff has complied with this provision. The Motion to Terminate specifically and explicitly cites the factual basis — Mrs. Anderson's cohabitation (Motion to Terminate, Count One, ¶¶ 3, 5-7, Count Two ¶¶ 5-8) — and its two legal bases — (1) the effect of such cohabitation under the agreement, as incorporated into the decree (Motion to Terminate, Count One ¶¶ 3, 6-7); and (2) under the C.G.S § 46b-86(b) standard (Motion to Terminate, Count Two ¶¶ 5-9) — for terminating alimony. It also includes the operative language and the date of the agreement, and explicitly notes that the decree incorporated the agreement by reference.
The plaintiff has also complied with C.G.S. § 46b-86(b), which specifies several grounds under which a party may move for a modification of support. The Motion to Terminate states the plaintiff's grounds for seeking modification, including that the defendant has been cohabiting with a man for approximately one year, that this person is contributing to her financial support and that the receipt of such support has altered the defendant's financial needs. (Motion to Terminate, Count Two ¶¶ 5-9.)
The defendant claims that the plaintiff has failed to meet the standard under Connecticut Practice Book § 25-26 because the Motion to Terminate does not discuss the Contempt Motions and the Contempt Resolution. These alleged "facts" are not required under the Practice Book section that the motion to dismiss invokes. Nor are they required by any other rule or by statute.
The Contempt Motions and the Contempt Resolution would only be relevant if they covered the same ground as the Motion to Terminate, which they do not. The Motion to Dismiss the cites cases holding that, in considering a motion for the modification of support, a court should look back to the last order granted with respect to a prior modification. Such is indeed the rule in Connecticut. The Connecticut Supreme Court has stated the rationale behind the doctrine: "A court, having performed its function of ruling upon a controversy, cannot be taken over by the litigants for the continued readjudication and reconsideration of their affairs. To allow otherwise would waste time and leave an undesirable uncertainty in the economic affairs of the parties." Borkowski v. Borkowski, 228, Conn. 729, 739 (1994).
The defendant has provided fair notice. The plaintiff has notified the defendant that he seeks to terminate alimony under the decree and under the statute. The motion to terminate complies with C.G.S. § 46b-86(b), as well as Connecticut Practice Book § 25-26. The defendant has been provided sufficient notice to afford her due process.
But even granting the import of the first case (that conclusory allegations are impermissible) and that of the other cases (that the movant bears the burden of presenting some evidence in support of the motion), the extent that they would apply to the motion to terminate, these cases offer nothing to the defendant's argument. In each of the cases the defendant cites, the movant had been given the opportunity to present evidence. See e.g. Kusznir, 60 Conn.App. at 501 ("Here, the plaintiff was entitled to a trial-like hearing because the alleged contempt occurred outside the presence of the court") (emphasis added).
The plaintiff is entitled to produce evidence at a hearing. See D'Ascanio v. D'Ascanio, 237 Conn. 481, 485, 678 A.2d 469, 471 (1996) ("The trial, after a hearing on the motion, found that the defendant was in fact cohabiting with Griffin"). The plaintiff explicitly alleged and will, in fact, demonstrate that the defendant is, and has been for approximately one year, cohabiting with a man. The defendant outright ignores the fact that the plaintiff has requested a hearing and informed the court that testimony may be required (Motion to Terminate at p. 1). The proper time to consider whether the motion to terminate is properly supported is after a hearing and after the defendant's deposition.
The Motion to Terminate was Properly Served
The plaintiff properly served the motion to terminate in accordance with C.G.S. § 46b-86(a). An authorized state marshal served the motion to terminate on November 30, 2010. The return of service was filed December 10, 2010.
The Form of the Plaintiff's Motion is Proper
The defendant argues that the use of "counts" in motions is not sanctioned for post-judgment motions. Neither statute nor the Practice Book prohibits the use of counts in motions such as the motion to terminate.
The grounds for seeking a modification of support were set forth specifically in the motion to terminate in compliance with Connecticut Practice Book 25-26(e) and C.G.S. § 46b-86(b). The defendant cites Connecticut Practice Book §§ 25-2, 25-7 and 25-8 to support the assertion that counts "apply to complaints and not to a motion." (Motion to Dismiss at 6.) Nothing in the Practice Book rules governs the form of a motion or the appropriateness of counts therein.
Connecticut courts look to substance rather than form. See In re Cameron C., 103 Conn.App. 746, 751-52 (2007). In considering a motion, "the court must look to the substance of the relief sought by the motion rather than its form. To hold [a litigant] strictly to the label on his filing would exalt form over substance." Henry E.S., Sr. v. Hamilton, Docket No. F02CP 07003237A, 2008 WL 1001969 (Conn.Super.Ct. Febr. 28, 2008). The Motion to Terminate succeeds both in its substance and its form. There is no prohibition on the use of counts in a motion such as that filed by the plaintiff.
The Motion to Terminate Relies on C.G.S. § 46b-86(b)
Count Two of the Motion to Terminate states its basis as a motion under Conn. Gen. State. § 46b-86(b). The defendant misinterprets precedent to argue that a motion to modify a judgment must allege the statute on which it relies by number.
Defendant's reliance on Clark v. Clark, 66 Conn.App. 657, cert. denied, 259 Conn. 901 (2001), is misplaced. In Clark, the issue was not that the movant had not named the statute by its number, but rather that the original motion was not as a motion under the statute instead having sought relief solely under a stipulated judgment. It was not until later that the movant sought to invoke the statute: "[It is clear that the plaintiff was seeking relief exclusively under the terms of the stipulated judgment of dissolution and that the court correctly determined the basis for modification."
There are cases that treat the effect of motions that did not cite a statue by the number and yet intended to invoke the statute. The Practice Book does call for statutes to be specifically identified by number. C.G.S. § 10-3(a). The rule is, however, directory, rather-than mandatory:
The Appellate Court also concluded that Practice Book § 109A [now § 10-3(a)] was directory, rather than mandatory, and although the defendants' motion to strike failed to identify precisely the statute that it claimed "barred" the plaintiff's cause of action, that failure did not invalidate the defendants' motion. We agree with the reasoning of, and the result reached by the Appellate Court in deciding the plaintiff's claims relative to the defendants' alleged failure to comply with Practice Book § 109A.
Rowe v. Goudou, 209 Conn. 273, 275 (1988); see also Norwalk Pres. Trust, Inc. v. Norwalk Inn Conference Ctr., Inc., Docket No. FSTCV074010609S, 2009 WL 2961747 (Conn.Super.Ct. Aug. 17, 2009).
Here, it is clear that the defendant always based part of the Motion to Terminate on C.G.S. § 46b-86(b). The numerical identification was unnecessary in light of the language of the motion to terminate.
The defendant makes a due-process argument — that she cannot "fairly meet the plaintiff's allegations and properly limit the evidence," because the Motion to Terminate does not distinguish between C.G.S. 46b-86(a) and 46b-86(b). The Motion to Dismiss itself demonstrates that the defendant understands full well the statute under which the Motion to Terminate is brought.
The Defendant's Motion to Dismiss is denied.