Opinion
No. FA 04-0485657
May 13, 2008
MEMORANDUM OF DECISION
Before the court can address financial issues when converting a legal separation to a decree of dissolution, it must first examine the relationship of the parties. If it determines that the parties have resumed marital relations, it must reexamine the final orders entered at the time of the legal separation in a full hearing. If the parties' relationship is unchanged, the court plays a minor role and merely converts the de facto dissolution to a de jure dissolution.
The parties were married on August 10, 2002. The plaintiff filed for a dissolution of marriage sixteen months later, on December 30, 2003. On May 3, 2004, the court entered a decree of dissolution by agreement. (Gilardi, J.) The agreement divided the parties' real and personal property as well as other assets but made no provisions for payment of alimony to either party. Approximately three months later, on August 12, 2004, the defendant filed a Motion to Re-Open and Modify the Judgment with a stipulation, which stated: "(1) The judgment of divorce shall be reopened and modified to a judgment of separation; and (2) The plaintiff and her daughter Kelly will remain covered under the defendant's medical insurance policy." On August 30, 2004, the court granted the motion to re-open and modify the judgment to a legal separation, ordered the insurance coverage as per the stipulation, again found the agreement dated May 3, 2004, reviewed at the time of the dissolution, to be fair and equitable, and incorporated it into its judgment. (Munro, J.) Thereafter, on December 18, 2006, the plaintiff petitioned this court for a decree dissolving marriage after legal separation, pursuant to General Statutes § 46b-65(b), wherein she alleged in her petition that "[n]either party has filed a declaration of resumption of marital relations since the entry of the legal separation."
Section 46b-65(b) provides: "If no [declaration of resumption of marital relations] has been filed . . . then at any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage and the court shall enter the decree in the presence of the party seeking the dissolution."
At the hearing on the petition for decree dissolving the marriage after the legal separation, the plaintiff was represented by counsel, and the defendant was self-represented. The court heard from the plaintiff and the defendant, as well as one witness called by the plaintiff, and was presented with twenty-one (21) exhibits filed by the plaintiff and five (5) exhibits filed by the defendant. The court has considered all relevant statutes, in particular, General Statutes §§ 46b-62, 46b-65, 46b-66, 46b-67, 46b-81 and 46-82. In her prayers for relief, the plaintiff is not only seeking a dissolution of the marriage, but she is asking this court for a hearing to "determine whether the original terms of the Legal Separation Agreement are fair and equitable in light of the circumstances at the present time." She has filed a memorandum in support of her position that this court should modify the orders entered with the legal separation to reconsider the issue of an award of alimony. Further, in her proposed orders, she is also seeking repayment of some debts as well as partial payment of her attorneys fees.
No evidence was presented as to when the debts accrued.
The plaintiff is almost fifty-seven years old and now in very poor health. She suffers from a number of serious, major health conditions, most of which were contracted after the judgment was re-opened and converted to a legal separation. Despite her severe medical conditions, she continues to work full-time, has a gross weekly income of $1,204 and a net weekly income of $757. She owns her own home and has owned the home for approximately 16 years, since prior to this marriage. The defendant makes a claim for reimbursement of approximately $16,000 for work he allegedly performed on this home, although it is not clear when these repairs were performed, whether before the entry of the decree of legal separation or after. He did not furnish the court with any bills or statements to specify the details of the work or repairs on the home.
The defendant is fifty-seven years old and in good health according to his own testimony. He has a gross income of $1,600 per week and a net income of $1,086. He owns a condominium to which the plaintiff is not making any claim.
In the legal separation agreement, each party was awarded his/her own real estate, as well as the bank accounts, IRAs, pensions, and automobiles in his/her own name.
The statute which governs a conversion of a legal separation decree into a dissolution of marriage is General Statutes § 46b-65. In subsection (a), the statute sets forth the procedure for vacating the decree of legal separation should the parties resume marital relations by the filing of a declaration of resumption of marital relations. If, however, no declaration of resumption of marital relations is filed, then under subsection (b), ". . . at any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage and the court shall enter the decree in the presence of the party seeking the dissolution." (Emphasis added.)
"If the parties to a decree of legal separation at any time resume marital relations and file their written declaration of resumption, signed, acknowledged and witnessed, with the clerk for the superior court for the judicial district in which the separation was decreed, the declaration shall be entered upon the docket, under the entries relating to the complaint, and the decree shall be vacated and the complaint shall be deemed dismissed." General Statutes § 46b-65(a). In effect, this is the procedure by which the decree of legal separation is vacated.
The question for the court to decide in this case, where a legal separation has been entered, and the parties have not filed a declaration of the resumption of marital relations and there is no dispute alleged as to the resumption of marital relations, whether the court, proceeding under § 46b-65(b) can convert the legal separation into a decree of dissolution summarily, without the necessity of conducting a hearing as to the financial circumstances of the parties as they exist at the time of the dissolution of marriage hearing.
The plaintiff frames the issue as "whether it is proper to relitigate a prior order for alimony when converting a legal separation decree to a dissolution decree under . . . § 46b-65(b)." The plaintiff claims that statutory and case law requires, in all cases, that the court re-examine the agreement and decree entered at the time of the legal separation in order to determine whether that agreement is fair and equitable at the time of the entry of dissolution of marriage.
Neither the dissolution judgment which was re-opened and vacated nor the legal separation, both of which approved the same separation agreement as being fair and equitable, awarded alimony to either party.
The seminal case is Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984). In Mitchell, the parties entered into a written separation agreement which was approved by the court and a decree of judgment of legal separation was rendered. After living separately for over a year, the parties began living together again as "husband and wife." The husband thereafter directed his attorney to take the necessary legal steps to dissolve the separation agreement. The attorney supplied the parties with a written agreement stating that the parties had resumed living together as husband and wife. The wife signed the agreement, but the husband never did, and it was never filed with the court.
Both parties then commenced actions for dissolution of the marriage, the wife seeking to dissolve the marriage pursuant to General Statutes § 46b-40 and the husband seeking to convert the legal separation into a dissolution of marriage pursuant to General Statutes § 46b-65(b). The husband did not state in his petition whether the parties had resumed marital relations as required by then Practice Book § 472.fn5 The Supreme Court phrased the issue to be decided as "whether a party seeking to convert a legal separation into a dissolution under
General Statutes § 46b-65(b) must comply with Practice Book § 472 which requires the petitioner to state in the petition whether the parties have resumed marital relations." Mitchell v. Mitchell, supra, 194 Conn. 313-14. (Internal quotation marks omitted.) The majority interpreted the § 472 as requiring a statement in the petition that there was no resumption of marital relations as a condition precedent to converting a separation decree into a dissolution, and, because the parties "had resumed marital relations, the [husband] could not make the required statement in his petition and thus could not seek a dissolution under 46b-65(b)." Id., 326. The majority held that § 46b-65(b) "contemplates a minimal role for the court when there is no dispute that the parties had not resumed marital relations. When that is the case the statute requires the court to give effect to the parties' status and convert a de facto dissolution into a de jure dissolution. (Emphasis added.) Id., 321. In Mitchell, the court found that because the parties had resumed marital relations and lived together as husband and wife, "the viability of the separation agreement [was] in doubt," and it was necessary for the court to hear evidence concerning the parties' resumption of marital relations and "whether they had intended to abrogate the separation agreement." Id., 327.
"General Statutes § 46b-65 . . . was enacted in 1973 as part of a complete revision of the domestic relations statutes . . . The specific provision that it amended . . . required the court to find that the parties had not resumed marital relations since the legal separation, and gave the court discretion to grant or deny a divorce. The present statute completely revamped its predecessor. Subsection (a) established a new and expeditious method by which parties who had reconciled could vacate their separation agreement without the intervention of a judge . . . This subsection on its face requires this formal declaration only when the parties choose to vacate their agreement under this method. Subsection (b) sets up the method by which the parties can convert a legal separation into a dissolution. It no longer requires the court to find affirmatively that the parties had not resumed marital relations." Id., 319. "An obvious goal of the legislature in enacting 46b-65 was to reduce the role of the court by creating a summary proceeding when there is no dispute between the parties" that they had not resumed marital relations. Id., 321.
Justices Shea and Healed concurred with the remand of the case for a full hearing upon the issues related to the financial terms of the dissolution decree, but disagreed with the majority's assertion that "where there has been a resumption of marital relations General Statutes § 46b-65(b) is inapplicable and a party seeking a dissolution of marriage must start afresh under the general dissolution provision, General Statutes § 46b-40." Id., 328. According to the concurring/dissenting opinion, the intention of the legislature in enacting the 1973 amendments to the domestic relations statutes was that "unless a declaration of resumption of marital relations has been filed pursuant to subsection (a), the court must enter a dissolution decree upon the petition of either party to the prior decree of legal separation." Id., 328. Justice Shea goes on to state that he "would find error in the failure of the court to hold a full hearing upon all of the issues related to the terms of the dissolution decree. Although § 46b-65(b) mandates a dissolution [when the parties have resumed marital relations], it does not require that the terms of the legal separation decree automatically be repeated in the dissolution decree. The terms of the separation decree are certainly not binding on the judge who enters the decree of dissolution, any more than a separation agreement would be binding." Id., 330. "The fact that the parties have resumed marital relations is a highly significant circumstances requiring the court to evaluate the situation of the parties anew in order to treat them equitably." Id. "The effect of the separation agreement, which was approved in the legal separation judgment, is governed by General Statutes § 46b-66, which requires that the court `inquire into the financial resources and actual needs of the spouses . . .' The fact that the agreement was presumably found `fair and equitable' at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of the dissolution and to afford the opportunity for a hearing on the issues involved." Id. Mitchell has been interpreted by other courts to state that regardless of whether there has been a resumption of marital affairs, it is always necessary for a court to examine the separation agreement in light of the circumstances as they exist at the time of the conversion into a decree of dissolution. See, Mignosa v. Mignosa, 25 Conn.App. 210, 594 A.2d 15 (1991); Szot v. Szot, 41 Conn.App. 238, 674 A.2d 1384 (1996); Crabtree v. Crabtree, Superior Court, Judicial District of New Haven, FA 94-0363150S, (August 28, 2007); McDaniel v. McDaniel, Superior Court, Judicial District of Waterbury, FA 04-4000415 (November 7, 2006) [42 Conn. L. Rtpr. 305].
The previous statute required the court to make a finding that the parties had not resumed marital relations. General Statutes (Rev. To 1972) § 56-30 [46-30].
However, the majority would require first a determination of the status of the parties when in dispute, prior to any further review of the separation agreement.
Courts have repeatedly quoted Mitchell's language — "A judge in a dissolution proceeding performs a much greater role than that of a mere ministerial functionary." Mitchell v. Mitchell, supra, 194 Conn. 323. However the majority was referring to the fact pattern set forth by the husband, where he argued by way of example, that if the parties reunited after a decree of legal separation and lived together as husband and wife, and twenty years later the husband decided that he no longer wanted to live as husband and wife, he could proceed under § 46b-65(b), and the court would have to grant the dissolution with the terms governed by the twenty-year-old separation decree. The majority, responding to the husband's argument under that scenario where the parties had resumed marital relations, stated that the court had "an affirmative obligation, in divorce proceedings, to determine whether a settlement agreement is fair and equitable under all the circumstances." Id. (Internal quotation marks omitted.) Mitchell requires a full divorce hearing where the parties have resumed marital relations stating that the summary dissolution provided for in § 46b-65(b) is not available to them.
In Mignosa v. Mignosa, a petition to convert a legal separation decree to a dissolution decree was filed where the husband stated that the parties had not resumed marital relations since the entry of the legal separation decree. At the hearing held on the petition, the wife raised the issue of resumption of marital relations for the first time, claiming that the parties had engaged in sexual intercourse. The court found that neither party had filed a written declaration of resumption of marital relations and although the parties had social contact, "none of the contacts ever reached a level of resumption of marital relations within the purview of General Statutes § 46b-65. The court then incorporated all of the orders that had previously been entered in the decree of legal separation in the decree of dissolution." Id., 213. (Internal quotation marks omitted.) On appeal, the wife argued that since the issue of resumption of marital relations was in dispute, under Mitchell, the court was required to proceed under the general dissolution provisions of General Statutes § 46b-40.
The Appellate Court found that since the trial court had conducted an evidentiary hearing and found that the parties had not in fact resumed marital relations, it properly granted the petition and entered a decree of dissolution of marriage. However, the court went further, and construed Justice Shea's concurring and dissenting opinion to require a full hearing on the separation agreement even though the trial court had found the parties had not resumed marital relations. "The trial court's incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were fair and equitable at the time of the dissolution was improper." Id., 216. (Internal quotation marks omitted.)
But Justice Shea was speaking about those circumstances where the parties had resumed marital relations and was disagreeing with the majority in Mitchell which required the parties to start anew under § 46b-40 instead of simply entering the decree of dissolution and then holding a hearing on the financial issues. The majority in Mitchell held that because the parties had resumed marital relations, the husband could not make the statement in his petition that they had not resumed marital relations, therefore he could not proceed under § 46b-65(b). Justice Shea disagreed with this holding, and asserted that instead, the parties could have proceeded under § 46b-65(b), but, that the court would have needed to look anew at the separation agreement in order to find it fair and equitable because the resumption of marital relations had changed the relationship of the parties.
In Szot v. Szot, 41 Conn.App. 238, 674 A.2d 1382 (1996), another version of the procedure for the conversion of a legal separation into a dissolution of marriage decree was followed. In that case, the parties had obtained a decree of legal separation in 1993. One year later, the husband petitioned for a decree dissolving the marriage, which the court granted on November 7, 1994. The court continued the matter for two weeks and conducted a further hearing to consider additional financial and other information bearing on the issue of whether the financial status of the parties was substantially different from that at the time of the separation. During the plaintiff's wide ranging and slow moving cross-examination, the court abruptly ended the questioning and the hearing, ruled that there had been no substantial financial changes since the legal separation, and entered the same orders as had been entered at the time of the separation. Id., 240. The plaintiff claimed that the trial court had violated her right of due process by prematurely terminating the hearing. The court, citing Mignosa v. Mignosa — and that portion of Mignosa which cited Justice Shea's concurring and dissenting opinion — stated that the question of whether the separation decree orders were still fair and equitable was properly before the court, and therefore remanded the matter for a hearing on the issue of the financial orders. The court in Szot appeared to be concerned with court's termination of the hearing and the plaintiff's fair opportunity to present evidence on the contested issues, rather than a strict adherence to the requirements of § 46b-65(b).
The case is silent on whether the parties had ever resumed marital relations, but it appears the issue was not in dispute.
The actual holding of Mitchell is that once the marital relations have resumed, the parties have vacated the decree of legal separation, and, therefore, in order to obtain a decree of dissolution, the parties must proceed under § 46b-40. The decree of legal separation no longer exists. There is, of course, the requirement under § 46b-65(a) that the parties are to file a declaration of resumption of marital relations and have that declaration filed with the court. However, there are most likely occasions when the parties, as in Mitchell, fail to follow that procedure. By resuming marital relations, they have altered their relationship in such a way that it would be inequitable to blindly enforce the agreement under the legal separation decree without determining whether it would be fair and equitable to do so.
Conversely, when there has been no resumption of marital relations and no intervening change in their relationship, the statute requires the court to convert the decree. To require a fresh look at the agreement when there has been no resumption of marital relations makes the decree of legal separation a nullity. There would be no purpose in obtaining a legal separation. Such a construction fails to give any effect to General Statutes § 46b-67(b) which provides: " A decree of legal separation shall have the effect of a decree dissolving the marriage except that neither party shall be free to marry." (Emphasis added.)
At first glance, the present case is, as the plaintiff argues, one that would benefit from a fresh look at the separation agreement. But upon closer examination, that may not be so. The parties were married for less than two years when the first decree of dissolution of marriage was entered. The husband filed a motion to "re-open the judgment" and convert the dissolution into a legal separation so that the wife and her daughter (not an issue of the marriage) could receive medical insurance. Thereafter, the wife was diagnosed with cancer and other serious illnesses and she petitioned for conversion into a dissolution less than two years after the date of the legal separation. During the period of the legal separation and while the petition she filed to convert the legal separation to a dissolution was pending, the plaintiff renounced an inheritance of $100,000 in favor of her daughter. There is no claim that the parties have resumed marital relations and the wife's petition states no declaration has been filed. While the wife in her brief urges the court not to "ignore the plain language of the law," it would appear that what she is asking the court to do is precisely that.
The plaintiff also argues that to deny the plaintiff the right to relitigate the issue of alimony would "belie the representation made by [the court] during the legal separation hearing on August 30, 2004. The court: . . . That would mean, sir, that if I re-open your judgment and decree you legally separated, the issue of alimony may once again get visited at the time of the divorce, if there is a subsequent divorce . . ." (Plaintiff's Memorandum of Law, p. 5.) The court indicated that the issue of alimony may be revisited. There were no assurances that would in fact happen.
The agreement was found to be fair and equitable when the parties obtained the dissolution of marriage. The defendant, in order to benefit the plaintiff and her daughter, agreed to convert the dissolution to a legal separation. The court, at the time of entering the decree of legal separation, again found the agreement to be fair and equitable. The court finds no basis, legally or factually, to make a further examination or determination as to the separation agreement.
Those cases on which the plaintiff relies result from a misapplication of the Shea concurring/dissenting opinion in Mitchell in which that opinion rejected the claim of Mr. Mitchell that if the parties resumed marital relations, even for as long as twenty years, the court cannot reexamine the separation agreement. In realty, Justice Shea was agreeing with the majority that after a resumption of marital relations, their relationship changed, and therefore, the court must re-examine the financial situation of the parties. That statement in no way alters the majority opinion, where Justice Parskey stated, ". . . subsection b [of § 46b-65] contemplates a minimal role for the court when there is no dispute that the parties had not resumed marital relations. When that is the case, the statute requires the court to give effect to the parties' status and convert a de facto dissolution into a de jure dissolution . . . To give its legal sanction to the parties' status however, the court must know the true relationship of the parties." Mitchell v. Mitchell, supra, 194 Conn. 321.
FINDINGS AND ORDERS
The court finds it has jurisdiction in this matter, the allegations of the Petition for Decree Dissolving Marriage After Legal Separation are proven and are true, including the allegation that the parties have not resumed marital relations.
The court grants the plaintiff's petition and the judgment is converted to a dissolution of marriage pursuant to General Statutes § 46b-65(b). The court orders the marriage dissolved and the parties are hereby declared single. The Separation Agreement entered at the time of the decree of legal separation is incorporated by reference into this decree of dissolution of marriage.