Maryalice Meeks v. III (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION IN LIMINE, POSTJUDGMENT (# 152.00) DEFENDANT'S MOTION TO DISSOLVE AND TERMINATE MARRIAGE, POSTJUDGMENT (# 156.00)

The parties in the above referenced matter received a judgment of legal separation on January 11, 2007 (Dewey, J.).   The judgment incorporated an agreement as to the terms and conditions of their separation including a parenting plan, an alimony provision and the division of their real and personal property.   Subsequent to the judgment, the defendant filed a motion to convert the legal separation and to dissolve the marriage on February 29, 2008 (# 121.00).   That motion never went forward.   On September 8, 2008 (# 122.00), the defendant filed a second motion to convert.   He withdrew that motion on October 23, 2008 (# 123.00) and the motion was never heard.   Both motions made reference to a provision in the agreement which allowed the plaintiff to file to convert the legal separation to a dissolution any time after January 12, 2008.   Neither motion made reference to whether the parties had resumed marital relations at any time after the January 2007 judgment.

In May 2009, the defendant filed a motion to reopen the judgment (# 128.00) claiming he was forced into the agreement due to him not being properly prepared for the trial scheduled to commence on January 11, 2007, and that he was never properly canvassed by the court at the time judgment was entered.   A two-day hearing on defendant's motion was held in February 2010.   The motion was denied, Calmar, J., in a decision issued on April 20, 2010 (# 143.00).   That decision found that the defendant was canvassed properly, his responses indicated his full understanding of the agreement and it had been entered into voluntarily.   The court also found that the agreement not to proceed with the dissolution but rather to seek a legal separation was done to allow the defendant to remain on the plaintiff's medical insurance because he had undergone major back surgery and was still recovering from that operation.

The defendant filed another motion to dissolve the marriage (# 144.25) in December 2011, to which the plaintiff consented, but objected to his request for new financial orders.   The plaintiff thereafter filed her motion in limine which is the subject of this memorandum.   The defendant then withdrew his motion and filed his current motion to dissolve and terminate the marriage.

Both parties agree that they have never resumed marital relations since the entry of the legal separation decree.   The plaintiff asserts that since they have not resumed marital relations, the entry of decree converting the separation to a dissolution should be done without any further orders while the defendant claims that the court must hold a hearing to determine that the original agreement is fair and equitable.

General Statutes §§ 46b–65 and 46b–66 govern the procedure to convert a decree of legal separation into a decree of dissolution.   See also Practice Book §§ 25–36 and 25–37.¹  Pursuant to § 46b–65(b) ² and Practice Book § 25–36, a motion or petition for a decree of dissolution after legal separation may be filed at any time after the entry of a decree of legal separation and must state that the parties have not resumed marital relations.   Thus, “a party seeking to convert a legal separation into a dissolution under [§ ]46b–65(b) must comply with Practice Book [§ 25–36] which requires the petitioner to state in the petition whether the parties have resumed marital relations.”  (Internal quotation marks omitted.)  Mignosa v. Mignosa, 25 Conn.App. 210, 214, 594 A.2d 15 (1991).  “[I]n order to grant such a decree, dissolving and terminating the marriage, the court need only find that the parties have not resumed marital relations since the entry of the decree of legal separation.”  Schaefer v. Schaefer, 26 Conn.Sup. 224, 224–25, 217 A.2d 70 (1965).

Our Appellate Court, in Mignosa, discussed separation agreements and the extent to which they are binding on a court that is subsequently dissolving the marriage between the two parties.   In Mignosa, the plaintiff had originally commenced an action for the dissolution of the marriage.   The plaintiff later amended her prayer for relief and sought a legal separation instead of a dissolution of marriage.   By judgment, the court had granted the legal separation and issued certain orders.   Subsequently, the defendant filed a petition for a decree dissolving the marriage after legal separation.   He stated in his petition that “the parties have not resumed marital relations since the entry of the decree, and no written declaration of the resumption of marital relations has been filed pursuant to General Statutes § 46b–65.”   (Internal quotation marks omitted.)  Mignosa v. Mignosa, supra, 25 Conn.App. 212.   The plaintiff did not file any pleading responding to the defendant's petition either affirming or denying the allegations in the petition.   No declaration of resumption of marital relations had been filed.   Thus, the lower court had incorporated the separation agreement into the divorce decree upon the finding that marital relations had not resumed between the parties.   Upon review, the Appellate Court stated that although the “trial court properly granted the defendant's petition converting the parties' legal separation into a dissolution of marriage, 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.   In support of its position, the Appellate Court referred to a previous Supreme Court decision, Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984), and reemphasized:  “The effect of the separation agreement [orders] ․ 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 dissolution and to afford an opportunity for a hearing on the issues involved.”  (Internal quotation marks omitted.)  Mignosa v. Mignosa, supra, 215–16, citing Mitchell v. Mitchell, supra, 330.

Following the decision in Mignosa, trial courts have predominately found that “[t]he separation agreement incorporated into the legal separation ․ is not binding on the court dissolving the marriage and will not automatically be incorporated into the dissolution decree.”  (Internal quotation marks omitted.)   Treadwell v. Treadwell, Superior Court, judicial district of Fairfield, Docket No. FA 01 0386575 (September 24, 2012, Frankel, J.).   This has been premised on the notion that “[i]n a proceeding to convert a legal separation to a dissolution, there is a due process right to a hearing on the issue of whether the orders entered at the time of the legal separation are still fair and equitable when that issue is contested.”   7 A. Rutkin & K. Hogan, Connecticut Practice Series:  Family Law and Practice (1999) § 10.11, p. 103.   See also Szot v. Szot, 41 Conn.App. 238, 241, 674 A.2d 1384 (1996) (“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved ․”).  Accordingly, based on such principles of fairness and equity, many courts have inquired into the situation of the parties to determine whether the separation agreement is fair and equitable at the time of the dissolution.³

Regardless of this trend, because of the Supreme Court's opinion in Mitchell, certain courts have declined to follow the Appellate Court's holding in Mignosa.⁴  In doing so, these courts have focused on the rationale used by the court in Mitchell, specifically the analysis discussing the intent and purpose behind § 46b–65, and have found that inquiring into the fairness of a previous separation agreement is only warranted in situations in which marital relations may have resumed.⁵  For example, in the case of Gilbert v. Gilbert, supra, 45 Conn. L. Rptr. 553, the court did not follow the holding of Mignosa.   It reasoned that the courts that have interpreted Mignosa as applying to every separation agreement have misapplied the concurring/dissenting opinion in Mitchell.   The court in Gilbert stressed:  “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.”  Gilbert v. Gilbert, supra, 45 Conn. L. Rptr. 556.  “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.”  (Internal quotation marks omitted.)  Id. Thus, the court held that a judge's “affirmative obligation to determine 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.”   (Internal quotation marks omitted.)  Id., 555.   See also Buggy v. Buggy, supra, Superior Court, Docket No. FA 05 4005647.

Nevertheless, even though there is a slight split in authority as to whether Mitchell and Mignosa collectively require that the court inquire into the fairness of a separation agreement, a majority of the trial courts have made the initial determination of whether the agreement remains fair and equitable, which continues to be the current trend.⁶  Given the fact that Mitchell primarily focused on the implications of resumed marital relations, rather than a party's challenge as to the fairness and equity of the original agreement, along with the fact that Mignosa stated that a court is required to determine whether the original agreement remains fair and equitable, the current trend of inquiring into the fairness of the agreements remains the stronger position.

In the matter currently before the court, there is no dispute regarding the resumption of marital relations.   Both parties acknowledge that there has been no resumption of any kind.   Additionally, one of the provisions in the agreement that was incorporated into the judgment reads “[a]t any time following the date of the court approval and the adoption of these orders the plaintiff may file a motion seeking conversion of the legal separation into a dissolution, which motion may be granted at any time after January 12, 2008.   The defendant shall not oppose such motion in any manner, and shall never file any form of motion seeking to resume marital relations or reinstate the marriage of the parties.” (¶ 1, pp. 3–4, emphasis added.)   Given the mandate of this portion of the agreement and the summary nature of the procedure called for under § 46b–65, what sort of hearing should the court now hold?   In their agreement, incorporated into their decree, the parties divided their real property.   They also, in great detail, divided their personal property, as well as their debts and liabilities.   The alimony provision gave to the defendant the sum of $100 per year as periodic alimony to terminate on August 12, 2012.   The alimony provision was nonmodifiable as to both term and amount.⁷ (¶ 6, p. 12.)

The language of the agreement supports the conclusion reached by the court, Calmar, J., in the order denying the motion to reopen in which the parties were seeking a legal separation to provide medical coverage to the defendant while he recuperated from his surgery.   The provision regarding medical insurance coverage required the plaintiff to maintain family coverage for a period of time “not to exceed 365 days” and her obligation would “irrevocably end as of January 11, 2008.” (¶ 7, p. 12.)

To protect the due process rights of the parties and due to the trend toward allowing a hearing, some form of inquiry is appropriate regardless of the definitiveness of the legal separation decree and terms of the parties' own agreement.   Certainly these facts do not support a de novo review of the agreement.   To do that would be to make the 2007 judgment utterly meaningless.   It would also be a practical impossibility at least as to the division of property under General Statutes § 46b–81.   Moreover, the minor child is now nineteen years of age and neither party has filed any request for modification of any order regarding the child.   Given the fact that the parties never resumed a marital relationship, on what basis would the court even begin to consider changing an agreement and decree that is now six and a half years old?

Due to the significant passage of time between the parties reaching their contractual agreement in early 2007 and the present, the issues suggest a pattern of events similar as to when one is dealing with a prenuptial or postnuptial agreement.   In such cases, the court is dealing with an agreement written in the past designed to be enforced at some future date.   In the present case, many of the considerations are similar in converting a legal separation into a dissolution decree.

General Statutes § 46b–36g states that a premarital agreement shall be unenforceable upon proof that:  the party did not voluntarily execute the agreement;  the agreement was unconscionable;  the opposing party did not make fair and reasonable disclosure of financial assets at the time of the agreement;  or the party was not given an opportunity to consult with counsel.   The first, third and fourth factors are not applicable in this situation, but the second factor might offer a reasonable solution.

In the case that established the legitimacy of postnuptial agreements, Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011), the court noted that the test of fairness was something similar:

[I]n determining whether a particular postnuptial agreement is fair and equitable at the time of execution, a court should consider the totality of the circumstances surrounding execution.   A court may consider various factors, including “the nature and complexity of the agreement's terms, the extent of and disparity in assets brought to the marriage by each spouse, the parties' respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement's provisions, and the amount of time available to each spouse to reflect upon the agreement after first seeing its specific terms ․ [and] access to independent counsel prior to consenting to the contract terms.”   Annot., 53 A.L.R.4th 85, 92–93, § 2[a] (1987);  [McHugh v. McHugh, 181 Conn. 482, 485, 436 A.2d 8 (1980) ] (discussing factors that courts have considered in evaluating fairness of circumstances surrounding execution of prenuptial agreement) ․ Although we agree with the defendant that principles of contract law generally apply in determining the enforceability of a postnuptial agreement, we conclude that postnuptial agreements are subject to special scrutiny and the terms of such agreements must be both fair and equitable at the time of execution and not unconscionable at the time of dissolution.

(Internal quotation marks omitted.)  Bedrick v. Bedrick, supra, 705.

In the instant matter, we have an agreement—a contract—between the parties that two different courts have now found to have been entered into voluntarily and knowingly by both parties who were represented by competent legal counsel.   Every agreement brought to the court in a family matter is a compromise of some sort with each party accepting certain items that they do not like or want, but finding that for a multitude of reasons the overall agreement is satisfactory—or at least better than the alternatives they might perceive to be available.   The court encourages parties to resolve their disputes themselves and it is good public policy.   The Supreme Court “has acknowledged that the government has an interest in encouraging the incorporation of separation agreements into decrees for dissolution.   See, e.g., Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (‘private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine’ [internal quotation marks omitted] ).”  Bedrick v. Bedrick, supra, 300 Conn. 698.

A significant period of time has passed since the agreement was made and now the court is being asked, by at least one party, to determine if that agreement is still fair and equitable.   The test that the court applies to weigh the agreement offered, however, is not fair and equitable in a vacuum;  it is fair and equitable given all the circumstances that bring the parties to the court at this time.   The Supreme Court's language in Crews v. Crews, 295 Conn. 153, 989 A.2d 1060 (2010) clearly states the law and the policy regarding premarital agreements and the same test should be applied in this matter.  “[In any case] the party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden.”  Id., 169.  “In the absence of a clear indication that the antenuptial agreement is unenforceable because it was not validly entered into, that it violated public policy, or that it would be unjust to enforce the agreement due to a significant and uncontemplated change in the parties' circumstances ․ we are unable to rewrite the terms of the contract to which the parties themselves agreed.”  (Citation omitted.)  Id., 173.

The court will hold a hearing to determine that marital relations have never resumed and that the totality of the circumstances have not changed to the point where the decree issued in January 2007 would now be considered unconscionable and it would be unjust to continue to incorporate that agreement into the converted dissolution.   Such a hearing would provide protection to both parties and assure that the new decree would continue to be fair and equitable to both parties under all the circumstances, including the factors discussed above.

Accordingly, having considered the arguments of the parties, General Statutes §§ 46b–65 and 46b–66 as well as the case law, the court hereby

ORDERS

1. Plaintiff's motion in limine postjudgment (# 152.00) is denied;

2. Defendant's motion to dissolve and terminate the marriage postjudgment (# 156.00) shall be heard at a time to be determined by caseflow.   That hearing shall be limited to determining the following:

a.  Have the parties resumed marital relations since January 11, 2007?;   and

b. Has the totality of circumstances for the parties changed to a degree and in a manner so unforeseen that it would make the incorporation of their agreement of January 11, 2007 unconscionable today?

Adelman, J.

FOOTNOTES

FN1. Practice Book 25–36 states.  “Every motion for a decree finally dissolving and terminating the marriage or civil union, after a decree of legal separation, shall state the number of the case in which the separation was granted, the date of the decree of legal separation and whether the parties have resumed relations relating to the marriage or civil union since the entry of the decree, and it shall be accompanied by an application for an order of notice to the adverse party.”Practice Book 25–37 states:  “Upon presentation of such motion to the judicial authority it shall fix a time for hearing the same and make an order of notice, by personal service if the adverse party is within the state and that party's place of residence is known, otherwise in such manner as it shall deem reasonable.”.  FN1. Practice Book 25–36 states.  “Every motion for a decree finally dissolving and terminating the marriage or civil union, after a decree of legal separation, shall state the number of the case in which the separation was granted, the date of the decree of legal separation and whether the parties have resumed relations relating to the marriage or civil union since the entry of the decree, and it shall be accompanied by an application for an order of notice to the adverse party.”Practice Book 25–37 states:  “Upon presentation of such motion to the judicial authority it shall fix a time for hearing the same and make an order of notice, by personal service if the adverse party is within the state and that party's place of residence is known, otherwise in such manner as it shall deem reasonable.”

FN2. Section 46b–65(b) provides:  “If no declaration has been filed under subsection (a) of this section [a written declaration of resumption of marital relations] 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.”.  FN2. Section 46b–65(b) provides:  “If no declaration has been filed under subsection (a) of this section [a written declaration of resumption of marital relations] 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.”

FN3. 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 to determine that the separation agreement was not fair and equitable in light of circumstances of the parties at time of dissolution), Crabtree v. Crabtree, Superior Court, judicial district of New Haven, Docket No FA 94 0363150 (August 28, 2007, Frazzini, J.) (relying on statutory criteria and evidence for guidance to modify separation agreement before converting it into a dissolution);  McDaniel v. McDaniel, Superior Court, judicial district of Waterbury, Docket No. FA 044000415 (November 7, 2006, Cutsumpsas, J.T.R.) (42 Conn. L. Rptr. 305, 305) (prior to converting separation agreement into dissolution decree, court must consider statutory criteria outlined in General Statutes §§ 46b–81 and 46b–82 to determine whether agreement is fair);  Myjak v. Myjak, Superior Court, judicial district of Middlesex, Docket No. FA 97 0083207 (November 17, 2000, Spallone, J.T.R.) (29 Conn. L. Rptr 30, 31) (“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 tune of the dissolution”), Harris v. Harris, Superior Court, judicial district of New London, Docket No. FA 502129 (June 9, 1995, Vasington, J.) (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)..  FN3. 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 to determine that the separation agreement was not fair and equitable in light of circumstances of the parties at time of dissolution), Crabtree v. Crabtree, Superior Court, judicial district of New Haven, Docket No FA 94 0363150 (August 28, 2007, Frazzini, J.) (relying on statutory criteria and evidence for guidance to modify separation agreement before converting it into a dissolution);  McDaniel v. McDaniel, Superior Court, judicial district of Waterbury, Docket No. FA 044000415 (November 7, 2006, Cutsumpsas, J.T.R.) (42 Conn. L. Rptr. 305, 305) (prior to converting separation agreement into dissolution decree, court must consider statutory criteria outlined in General Statutes §§ 46b–81 and 46b–82 to determine whether agreement is fair);  Myjak v. Myjak, Superior Court, judicial district of Middlesex, Docket No. FA 97 0083207 (November 17, 2000, Spallone, J.T.R.) (29 Conn. L. Rptr 30, 31) (“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 tune of the dissolution”), Harris v. Harris, Superior Court, judicial district of New London, Docket No. FA 502129 (June 9, 1995, Vasington, J.) (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).

FN4. Buggy v. Buggy, Superior Court, judicial district of Stamford–Norwalk, Docket No. FA 05 4005647 (October 25, 2010, Burke, J.);  Gilbert v. Gilbert, Superior Court, judicial district of New Haven, Docket No. FA 04 0485657 (May 13, 2008, Swienton, J.) (45 Conn. L. Rptr. 553), Haley v. Johnson, Superior Court, judicial district of Fairfield, Docket No. FA 00 0377734 (October 14, 2004, Owens, J.);  Bemonte v. Bemonte, 44 Conn Sup 431, 693 A.2d 739 (1995) [16 Conn. L. Rptr. 336]..  FN4. Buggy v. Buggy, Superior Court, judicial district of Stamford–Norwalk, Docket No. FA 05 4005647 (October 25, 2010, Burke, J.);  Gilbert v. Gilbert, Superior Court, judicial district of New Haven, Docket No. FA 04 0485657 (May 13, 2008, Swienton, J.) (45 Conn. L. Rptr. 553), Haley v. Johnson, Superior Court, judicial district of Fairfield, Docket No. FA 00 0377734 (October 14, 2004, Owens, J.);  Bemonte v. Bemonte, 44 Conn Sup 431, 693 A.2d 739 (1995) [16 Conn. L. Rptr. 336].

FN5. In discussing the enactment of § 46b–65, the court in Mitchell stated:  “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 (a) contemplates that the court satisfy itself that the prescribed formal declaration has been filed before vacating the separation decree while 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.”  Mitchell v. Mitchell, supra, 194 Conn 321.  “A person seeking either a legal separation or a dissolution of marriage must file a petition pursuant to [General Statutes] § 46b–40.   If the court renders a decree of legal separation the parties may then pursue one of two avenues, the summary route under § 46b–65 or the trial route under § 46b–40.   The summary route contemplates mutual agreement of the parties either for a reconciliation under § 46b–65(a) or a dissolution under § 46b–65(b).  One of the purposes of Practice Book § [25–36] is to enable the court to ascertain whether the case is an appropriate candidate for summary disposition.   Therefore, in order to convert a legal separation into a dissolution under General Statutes § 46b–65(b) the petitioner must state in the petition whether the parties had resumed marital relations, pursuant to Practice Book § [25–36].   If the petitioner states that they have not resumed and the defendant admits to this in her answer;  Practice Book § [25–9];  then the court must, under Practice Book § [25–37], fix a time for a hearing.   At that hearing the court can further satisfy itself that there is no dispute that the parties had not resumed marital relations.   If it is thus satisfied and the petitioner is present, the court must grant the dissolution.   If the parties had resumed marital relations, even for a trial reconciliation, or the petitioner states in the petition that they did not resume and the defendant disputes that fact, the parties cannot proceed under the summary method of § 46–65(b) but must instead proceed under the general dissolution provision, § 46b–40.”  Id., 325–26..  FN5. In discussing the enactment of § 46b–65, the court in Mitchell stated:  “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 (a) contemplates that the court satisfy itself that the prescribed formal declaration has been filed before vacating the separation decree while 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.”  Mitchell v. Mitchell, supra, 194 Conn 321.  “A person seeking either a legal separation or a dissolution of marriage must file a petition pursuant to [General Statutes] § 46b–40.   If the court renders a decree of legal separation the parties may then pursue one of two avenues, the summary route under § 46b–65 or the trial route under § 46b–40.   The summary route contemplates mutual agreement of the parties either for a reconciliation under § 46b–65(a) or a dissolution under § 46b–65(b).  One of the purposes of Practice Book § [25–36] is to enable the court to ascertain whether the case is an appropriate candidate for summary disposition.   Therefore, in order to convert a legal separation into a dissolution under General Statutes § 46b–65(b) the petitioner must state in the petition whether the parties had resumed marital relations, pursuant to Practice Book § [25–36].   If the petitioner states that they have not resumed and the defendant admits to this in her answer;  Practice Book § [25–9];  then the court must, under Practice Book § [25–37], fix a time for a hearing.   At that hearing the court can further satisfy itself that there is no dispute that the parties had not resumed marital relations.   If it is thus satisfied and the petitioner is present, the court must grant the dissolution.   If the parties had resumed marital relations, even for a trial reconciliation, or the petitioner states in the petition that they did not resume and the defendant disputes that fact, the parties cannot proceed under the summary method of § 46–65(b) but must instead proceed under the general dissolution provision, § 46b–40.”  Id., 325–26.

FN6. See Bettencourt v. Bettencourt, Superior Court, judicial district of Windham, Docket No. FA 12 4012888 (February 15, 2013, Graziano, J.);   Kupersmith v. Kupersmith, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. FA 03 0193413 (July 10, 2012, Shay, J.);   Smith v. Smith, Superior Court, judicial district of Waterbury, Docket No. FA 06 4009083 (December 7, 2010, Cutsumpas, J.);  Treadwell v. Treadwell, supra, Superior Court, Docket No. FA 01 0386575..  FN6. See Bettencourt v. Bettencourt, Superior Court, judicial district of Windham, Docket No. FA 12 4012888 (February 15, 2013, Graziano, J.);   Kupersmith v. Kupersmith, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. FA 03 0193413 (July 10, 2012, Shay, J.);   Smith v. Smith, Superior Court, judicial district of Waterbury, Docket No. FA 06 4009083 (December 7, 2010, Cutsumpas, J.);  Treadwell v. Treadwell, supra, Superior Court, Docket No. FA 01 0386575.

FN7. The provision did allow for a modification by “court order” under certain conditions.   What that actually means is unclear, but the defendant has never filed a motion to modify the alimony award prior to the termination date.   Rather, he has filed several motions to terminate the marriage and award alimony to him..  FN7. The provision did allow for a modification by “court order” under certain conditions.   What that actually means is unclear, but the defendant has never filed a motion to modify the alimony award prior to the termination date.   Rather, he has filed several motions to terminate the marriage and award alimony to him.

Adelman, Gerard I., J.