Robin J. Sargent v. Robert E. Sargent
MEMORANDUM OF DECISION
On August 24, 2007, a judgment of legal separation was granted to the plaintiff, Robin Sargent and the defendant, Robert Sargent pursuant to Statutes § 46b-40. That judgment incorporated the written agreement of the parties which set forth the terms of the separation. At that time both parties were represented by counsel. After a canvass of the parties, the trial court found the agreement to be fair and equitable before it was incorporated into its judgment.
The written separation agreement provided, in pertinent part, that the defendant would “waive any and all right and interest in and to” the marital home 1 and that in exchange, within thirty (30) days the plaintiff would pay the defendant $10,000, which she did.
The agreement also provided for the defendant to pay the plaintiff $250 a week in alimony until she reached the age of 62 years and also:
3. Husband shall maintain medical insurance for the benefit of the Wife so long as it is available through his place of employment at reasonable cost. Currently, the medical insurance [is] (sic) at no expense to the husband. Should Husband be required to pay for a portion of his insurance, the parties shall review the alimony obligation and the then current incomes of the parties to determine each party's obligation toward the insurance expense.
Sometime after the judgment entered, the parties filed motions for modification and in 2008, agreed to modify part of the agreement relating to taxes and the children's college expenses.
On March 16, 2009, the defendant filed a motion for modification of alimony and a “petition for a decree dissolving the marriage” pursuant to General Statutes § 46b-65(b), seeking to convert the separation into a dissolution. The plaintiff filed an objection to the dissolution motion on June 3, 2009 claiming that the conversion would cause her irreparable harm and requested a full hearing on the issues, claiming that the court was required to make a finding that the conversion was fair and equitable under all the present circumstances.
On August 17, 2009, the court, Dyer, J., ordered a hearing on all the issues to take place on November 2, 2009 and stated that the “Defendant may file a motion to modify alimony, which will also be heard on the hearing date[ ].”
The hearing was held on November 2 at which the defendant was self-represented and the plaintiff was represented by counsel and both parties testified. The defendant also presented proposed orders which he asks the court to adopt. Therein, the defendant proposes that the plaintiff enroll in Medicare, that she retain her home in Florida, that she quitclaim her home in Manchester to the defendant and that in lieu of alimony, the plaintiff could live in that home rent-free for eight (8) years.
At the hearing, the plaintiff stated that she does not oppose the defendant's motion to convert the separation to a divorce. Not surprisingly, however, the plaintiff does not agree with the defendant's proposed orders. The parties did stipulate that they had not resumed marital relations during the period of separation, and the court so finds.
After carefully considering the evidence and testimony put before it, the court makes the following additional findings of fact. There are no minor children born of the marriage. The plaintiff does not enjoy good health and has been deemed to be fully disabled by the Social Security administration and by her disability insurance company. From those sources she currently receives $241 a week from social security, $250 a week pursuant to the alimony order and $161 a week from her disability insurance policy, but this source of funds will end at age 65 when she will go on Medicare.
Since the separation, the plaintiff has also received an inheritance which included property in Florida with equity of $58,000 and over $22,000 in a money market account.
The defendant's health insurance plan has changed drastically since the separation agreement was drawn up when it was of no cost to the defendant. It now has a $4,000 a year deductible and, according to the defendant, now costs $777 a month to include the plaintiff on the coverage. Also since the time of the separation, the defendant's earnings dropped about 20% for a period of time due to company furloughs, although that program has ended and he now earns about $1,000 a week, about the same as the time of the separation.
The initial question before the court is to determine the scope of its jurisdiction and its powers regarding conversion of the judgment of separation into a judgment of dissolution.
“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.’ “ Gilbert v. Gilbert, Superior Court, judicial district of New Haven, Docket No. CV FA 04 0485657 (May 13, 2008, Swienton, J.) (45 Conn. L. Rptr. 553, 554). Additionally, General Statutes § 46b-66(a) provides in relevant part: “where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into [the parties' circumstances], in order to determine whether the agreement ․ is fair and equitable ․ If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court ․” 2
There appears to be a split of authority within the Superior Court regarding whether a trial court may modify a separation agreement when incorporating it into a dissolution decree. The relevant appellate authority with respect to this issue is Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984), Mignosa v. Mignosa, 25 Conn.App. 210, 594 A.2d 15 (1991) and Szot v. Szot, 41 Conn.App. 238, 674 A.2d 1384 (1996). In Mitchell v. Mitchell, supra, 314, the parties entered into a written separation agreement which the court approved and entered a judgment of legal separation. Id. Subsequently, the parties resumed marital relations but never filed a written declaration with the court so stating. Id., 315. Thereafter, both parties commenced actions for dissolution of the marriage with the wife seeking to dissolve the marriage pursuant to General Statutes § 46b-40 3 and the husband seeking to convert the legal separation into a dissolution of marriage pursuant to § 46b-65(b). Id. The trial court dismissed the wife's complaint on the ground that it was required to proceed under § 46b-65(b) because the parties had never filed the declaration of resumption of marital relations, even though they had actually resumed marital relations. Id., 316.
The Supreme Court disagreed and found that the parties were required to proceed under § 46b-40. Id., 326-27. The court recognized that, pursuant to § 46b-65, parties under mutual agreement were allowed to forego § 46b-40 and petition the court to convert a legal separation into a dissolution. Id., 325-26. “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. To that effect subsection ․ (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.” Id., 321.
The Supreme Court, however, did not find that the trial court had a minimal role with respect to the dissolution of the Mitchells' marriage. In fact, the court turned down the husband's argument that a couple could file a separation agreement, resume marital relations for over twenty years, and then, should one party file for a dissolution pursuant to § 46b-65(b), the court was required to accept the terms of the twenty-year-old separation agreement because the parties had never filed the declaration in court. Id., 323. The court rejected this argument, stating, “[a] judge in a dissolution proceeding performs a much greater role than that of a mere ministerial functionary. Under our statutes, a court has an affirmative obligation, in divorce proceedings, to determine whether a settlement agreement is ‘fair and equitable under all the circumstances.’ ․ The presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated.” (Citation omitted; internal quotation marks omitted.) Id.
In his concurring/dissenting opinion, Justice Shea disagreed that the parties were required to proceed under § 46b-40 because they had resumed marital relations.4 Id., 328. Instead, he argued that the parties could proceed under § 46b-65, with the court taking a second look at the separation agreement to determine whether it was fair and equitable under the circumstances. Id., 329-30. He stated 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 not 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 ․ 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.” (Citation omitted.) Id.
Following Mitchell, the Appellate Court had an opportunity to review a trial court's dissolution decree in Mignosa v. Mignosa, supra, 25 Conn.App. 210, where the husband had filed a petition to convert a legal separation decree to a dissolution decree. Id., 211-12. The trial court found that the parties had not resumed marital relations and incorporated the legal separation into the dissolution decree. Id., 212-13. The Appellate Court found error in the trial court's incorporation of the legal separation decree without a finding that the orders were “fair and equitable” at the time of the dissolution, even though the parties had not resumed marital relations. Id., 216. The court relied on the rationale of Justice Shea's concurring/dissenting opinion and held that § 46b-66 requires the court to determine whether the agreement is fair and equitable by inquiring into the financial resources and actual needs of the spouses at both the time of the legal separation and at the time of the dissolution. Id., 215-16. Thus the case was remanded with instructions to determine whether the agreement was fair and equitable given the situation of the parties. Id., 216.
In Szot v. Szot, supra, 41 Conn.App. 241, the Appellate Court reiterated its holding in Mignosa. In that case, the parties entered into a legal separation and the defendant subsequently filed a petition for dissolution.5 Id., 239. The court then held a hearing on the petition and declared the marriage dissolved. Id. Two weeks later, the court conducted a further hearing to determine whether the financial status of the parties was substantially different from that at the time of the legal separation but during the hearing it abruptly ended the plaintiff's “wide ranging” cross-examination, did not allow the plaintiff to present any further evidence, and ruled that there had been no substantial financial change since the legal separation and incorporated the legal separation agreement, without modification, into the decree of dissolution. Id., 240. The Appellate Court reversed, holding that it was error to terminate the hearing before the plaintiff had a fair opportunity to present evidence on whether the parties' financial situations had changed. Id., 242. “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 dissolution and to afford an opportunity for a hearing on the issues involved.” (Internal quotation marks omitted.) Id., 241.
Following Mignosa, various Superior Court decisions have held that the court is always required to make an inquiry as to the situation of the parties to determine whether the separation agreement is fair and equitable at the time of the dissolution. See, e.g., Hibbard v. Hibbard, Superior Court, judicial district of New Haven, Docket No. FA 00 0446060 (June 9, 2008, Frazzini, J.) (relying on Mignosa, and determining that the separation agreement was not fair and equitable in light of the circumstances of the parties at the time of dissolution and modifying the alimony award.6
However, there are other Superior Court decisions that question the holding of Mignosa. For instance, in Gilbert v. Gilbert, supra, 45 Conn. L. Rptr. 554, the plaintiff petitioned for a decree of dissolution after legal separation, pursuant to § 46b-65(b). In addition, she petitioned for a hearing to determine whether the original terms of the legal separation agreement were fair and equitable in light of the circumstances at the time of the dissolution. Specifically, she wanted the court to reconsider the issue of alimony. Id. Finding that the parties had not resumed marital relations, and consequently, there had not been a significant change in their relationship, the court denied the request for the hearing. Id., 556-57.
The court disagreed that, in all cases, it was required to determine whether the separation agreement was fair and equitable at the time of the dissolution. Id. It reasoned that those decisions were based on the misapplication of Justice Shea's concurring/dissenting opinion in Mitchell. Id., 556. “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 ․ 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.’ “ Id.
As support, the court looked at the plain language of the statute and concluded that § 46b-65(b) specifically mandates that, if the parties have not resumed marital relations, then upon petition for dissolution, the court “shall” enter the dissolution decree. Id., 554. Thus, it reasoned that the plain language supports the position that “[i]f the parties' relationship is unchanged, the court plays a minor role and merely converts the de facto dissolution to a de jure dissolution.” Id., 553.
Moreover, the Gilbert court pointed out that the oft quoted language, “[a] judge in a dissolution proceeding performs a much greater role than that of a mere ministerial functionary,” referred to a situation where the parties had resumed marital relations. Thus, the court held that a judge's “affirmative obligation” to determine, in dissolution proceedings, whether a settlement agreement is fair and equitable, under the circumstances, is limited to when the parties have resumed marital relations, and was not extended to every petition to convert a separation agreement into a decree of dissolution. Id., 559 n.9. Moreover, several Superior Court decisions have questioned the holding of Mignosa because it seems to allow a reassignment of property. See Bemonte v. Bemonte, 44 Conn.Sup. 431, 435-36, 693 A.2d 739 [16 Conn. L. Rptr. 336] (1995) (declining to reevaluate the separation agreement prior to incorporating it into a dissolution decree because “[a]bsent a properly executed declaration of resumption of marital relations or intervention by court action opening the judgment for good reason, the judgment of legal separation, once the appeal period has expired, is final. The division of assets and liabilities is also final. An assignment of property is nonmodifiable. Hence, the court is without jurisdiction or other authority to modify a final judgment of legal separation insofar as it assigns property. The holding in Mignosa must give way to the holding of the majority in Mitchell, which controls the outcome of the present case); Haley v. Johnson, Superior Court, judicial district of Fairfield, Docket No. FA 00 0377734 (October 12, 2004, Owens, J.) (“Mitchell ․ and Bemonte ․ make clear that ․ a property division [pursuant to a separation agreement] cannot be reopened or modified after the passage of the appeal time or the statutory four-month period [for purposes of a dissolution]. The finality of property division would be meaningless and chaotic and would violate the statutory purpose of a judgment of legal separation”).
While this court is drawn to the well-reasoned analysis in Gilbert, Bemonte and Haley, especially as they regard the problems arising from the reassignment of any real property, this court also recognizes that they appear to be contrary to the Appellate Court's holdings in Mignosa, and Szot. While this court may have concerns with those holdings, it is bound by them. “Although the concerns raised by the trial court might ultimately have merit ․ revision of [appellate] precedent is not the trial court's function.” Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996). Therefore, this court will review the entire separation agreement to determine whether it continues to be fair and equitable at this time.7
The court finds that the terms of the agreement should be modified as follows: The defendant shall maintain the plaintiff's health insurance that is available through his employer as allowed by COBRA or its equivalent for the duration of the period allowed by law, which shall be in the nature of alimony. The defendant will pay 50% of the cost of such insurance and the plaintiff will pay 50% and be responsible for any co-pays and unreimbursed expenses. If the plaintiff does not pay 50%, the defendant's obligation in this regard will end.
The defendant shall pay the plaintiff $175 a week in alimony until she reaches the age of sixty-two (62).
All other aspects of the agreement dated August 24, 2007 and the subsequent amendments shall remain in full force and will be incorporated in this judgment of dissolution.8
The marriage is dissolved and judgment will enter in accordance with its decision.
BY THE COURT
J. Fischer, J.
1. FN1. Prior to their marriage in 1993, the parties had been married and divorced before remarrying. As part of that divorce, the defendant had quitclaimed his interest in the marital residence.
2. FN2. General Statutes §§ 46b-81(c) and 46b-82(a) provide the statutory criteria that the court must consider in order to determine the appropriate property distribution and alimony. As discussed below, these criteria are used as guidance to determine whether a separation agreement is fair and equitable, as required by § 46b-66(a).
3. FN3. Section 46b-40 provides the grounds for a marriage dissolution.
4. FN4. He was joined by Justice Healey in the opinion.
5. FN5. The decision does not mention whether such petition was pursuant to § 46b-65(b) nor whether the parties had resumed marital relations.
6. FN6. See also Crabtree v. Crabtree, Superior Court, judicial district of New Haven, Docket No. FA 94 0363150 (August 28, 2007, Frazzini, J.) (using §§ 46b-81 and 46b-82 for guidance to modify separation agreement prior to converting it into a dissolution); McDaniel v. McDaniel, Superior Court, judicial district of Waterbury, Docket No. FA 044000415 (November 7, 2006, Cutsumpas, J.T.R.) (42 Conn. L. Rptr. 305) (prior to converting a separation agreement into a dissolution of marriage, court must consider all statutory criteria outlined in §§ 46b-81 and 46b-82 to determine whether the agreement is fair); Myjak v. Myjak, Superior Court, judicial district of Middlesex, Docket No. FA 97 0083027 (November 17, 2000, Spallone, J.T.R.) [29 Conn. L. Rptr. 30] (“A final distribution of property and financial orders after legal separation should not be based on a separation agreement without an inquiry by the court as to whether the agreement is fair and equitable at the time of the dissolution”); Harris v. Harris, Superior Court, judicial district of New London, Docket No. 502129 (June 9, 1995, Vassington, S.T.R.) (granting new orders with respect to alimony and property division prior to converting the legal separation into dissolution of marriage because previous orders were no longer fair and equitable).
7. FN7. In any event, full review seems especially warranted here where the agreement itself calls for a review of the financial and health insurance issues under certain circumstances. Moreover, the defendant has filed a motion for modification of alimony which was ordered to he heard in conjunction with the conversion hearing. This court also notes that it makes little sense for a court to blindly convert the separation into a judgment of dissolution and then force the parties to file postjudgment motions to modify the dissolution terms.
8. FN8. The court specifically finds that it would not be fair or equitable to reassign any of the property, whether real or personal at this point in time.
Fischer, Jack W., J.