Opinion
No. FA 02-039 85 18 S
June 3, 2004
MEMORANDUM OF DECISION
Factual Background
The parties were divorced on June 13, 2003. The judgment of dissolution incorporated a negotiated separation agreement of the same date which states in Article II, § 2.1:
The Husband shall pay the sum of fifty-five thousand ($55,000.00) dollars per year as alimony to the Wife until the earlier of the death of either party, the remarriage or cohabitation of the Wife, or six years from the date of dissolution . . . The definition of cohabitation shall not include any same sex roommate(s).
The parties were represented by separate counsel at the time of their divorce.
The Husband, Gary Pawlaczyk, sent the Wife, Mary Pawlaczyk, a letter terminating alimony as of April 1, 2004, due to cohabitation, as per the separation agreement. The Wife filed a Motion for Contempt dated April 12, 2004, for the Husband's failure to pay alimony. The Wife also maintains that she is not cohabitating. The Husband filed a Motion for Modification of Alimony Postjudgment, dated May 5, 2004. The court heard testimony from witnesses and the parties on April 29, 2004, May 5, 2004 and May 25, 2004.
Law
Certain provisions of separation agreements can be self-executing. Behrns v. Behrns, 80 Conn.App 286, 835 A.2d 68 (2003). A provision terminating alimony upon cohabitation can be self-executing. DeMaria v. DeMaria, 47 Conn. App. 729, 734, CT Page 9142 707 A.2d 741 (1998), rev'd on other grounds 247 Conn. 715, 724 A.2d 1088 (1999).
Cohabitation is defined under our case law or common law as "a dwelling together of a man and woman in the same place in the manner of husband and wife." Wolk v. Wolk, 191 Conn. 328, 332, 464 A.2d 780 (1983). Our Connecticut state statutes specifically allow for the court to review circumstances and adjust alimony based upon the fact that the "living arrangements cause such a change in circumstances as to alter the financial needs of that party." Section 46b-86(b), C.G.S. See also DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999).
Decision
The Separation agreement between the parties is self-executing. Definable events such as death, remarriage or cohabitation allow for such action.
There is a dispute between the parties as to the fact of cohabitation by Mary Pawlaczyk. Issues of credibility were raised as to certain witnesses, including Mary Pawlaczyk who denied continuous cohabitation with a male friend, Stephen Sulkazi, whom she had known for over a year. Steven D'Ercole, a private investigator, hired by Mr. Pawlaczyk, surveilled and videotaped the actions of Mary Pawlaczyk and Stephen Sulkazi during a stake-out of the residence of Mary Pawlaczyk during the first 3 weeks of March of 2004. The private investigator observed the comings and goings of Mr. Sulkazi and his activities on and around the property in question. Mr. Sulkazi was observed moving snow off of the cars and driveway. The respective cars the subjects drove stayed at the residence of Mary Pawlaczyk overnight, the entire time of surveillance. The investigator followed the subjects to a furniture store and other establishments as they shopped together. The investigator also traveled to the purported residence of Mr. Sulkazi in the same town, and concluded there was no sign or evidence of resident activity, during the time the parties were under videotape surveillance. The investigator also noted as he checked records of the town, that there was no evidence of Mr. Sulkazi being a resident at the address in question, but that his son, Stephen P. Sulkazi, was listed as a resident. Mr. Sulkazi did produce documents showing rental payments and utility payments at the address he claimed as his residence. Mr. Sulkazi also asserted his Fifth Amendment privilege when questioned about his CT Page 9142-a vacationing with Mrs. Pawlaczyk and simultaneously receiving unemployment benefits.
Mary Pawlaczyk admitted that she took several domestic and international 8-10 day vacations with Mr. Sulkazi. Though she claimed to pay for 1/2 of the trips or vacations they took, there were only partial records to verify the reimbursements. Furthermore, Mrs. Pawlaczyk by her own testimony admitted that she occasionally did Mr. Sulkazi's laundry, that he kept certain toiletries and clothing at her house, that he did home repairs to her house, that he helped her paint inside the house, that he did yard work including lawn work and that he took the garbage to the dump regularly. Though Mary Pawlaczyk claimed she did not benefit financially from her relationship from Mr. Sulkazi, the evidence is to the contrary. Additionally, the testimony of the private investigator was convincing and uncontradicted as to the daily cohabitating by Mrs. Pawlaczyk and Mr. Sulkazi.
The totality of the circumstances compel the Court to conclude there was ample proof of cohabitation with Mr. Sulkazi which had a financial impact upon Mary Pawlaczyk. Therefore, the Motion for Contempt is denied. Mr. Pawlaczyk was entitled to cease payments without a court order given the self-executing nature of the relevant provision of the Separation Agreement. The Motion to Modify, dated 5/5/04, is granted only so that proper coding may take place in the file. The request for fees on the defendant's Motion for Contempt is denied.
SO ORDERED
Judge John R. Downey