Susan Dewitt v. Christopher Dewitt (2013)

MEMORANDUM OF DECISION RE MOTION TO QUASH # 126

ISSUE

Whether the court should grant the nonparty deponent Philip Valenti's motion to quash the subpoena and request for a protective order.

FACTS

The plaintiff, Susan Dewitt, and the defendant, Christopher Dewitt, were divorced on September 1, 2009.   The court incorporated the separation agreement dated August 27, 2009, into its judgment terminating the marriage.   Article 7.1 and 7.2 of the separation agreement provide for alimony to be paid to the plaintiff by the defendant.   Article 7.3 establishes the terms by which the payment of alimony is to terminate.   Article 7.3 states that alimony terminates upon the plaintiff's remarriage or cohabitation with an unrelated adult, regardless of financial contributions.   The same article defines cohabitation as living or residing with the plaintiff for no less than 180 consecutive days during any two-year period.

On July 5, 2013, the defendant filed a postjudgment motion to terminate alimony.   In his motion, the defendant alleges the following facts.   The plaintiff has been in a relationship with Philip Valenti since 2008.   On or about November 22, 2011, the plaintiff and Valenti purchased real property together in New Hampshire.   Valenti does not reside at the property he owns in Connecticut, and has given up a lease on a rental as of January 31, 2013.¹  The plaintiff and Valenti have been cohabiting over the proceeding two years, and any time not spent together is for the purpose of avoiding the termination of alimony.   The defendant seeks termination of alimony retroactively to the date of the filing of his motion.

Following the filing of the motion to terminate alimony, the defendant issued a notice of deposition and request for disclosure and production to the plaintiff, and a subpoena duces tecum and notice of deposition to Valenti.   The notice of deposition includes a demand that Valenti provide various documents at his deposition.²  On July 29, 2013, the plaintiff filed a motion for protective order in response to the defendant's discovery requests.   The defendant filed an objection to the plaintiff's motion on July 31, 2013.   On August 13, 2013,³ Valenti filed a motion to quash the subpoena and for a protective order precluding the defendant from deposing him.

Oral argument was heard by the court on August 12, 2013.   At argument, the defendant withdrew his request for Valenti's tax returns, but maintained his discovery request for the remaining documents.   No additional briefs or memorandum were filed following oral argument.

DISCUSSION

General Statutes § 46b–86(b) provides that “[i]n an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony 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 arrangements cause such a change of circumstances as to alter the financial needs of that party.   In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith.”

Where “the separation agreement did not reference § 46b–86, and the plaintiff's motion to modify the alimony was made solely on the basis of the separation agreement, not the statute ․ the separation agreement's termination provision was self-executing upon cohabitation.”  Krichko v. Krichko, 108 Conn.App. 644, 650–51, 948 A.2d 1092, cert. granted, 289 Conn. 913, 957 A.2d 877 (2008) (appeal withdrawn May 19, 2009).  “It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract ․ A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”  (Citation omitted, internal quotation marks omitted.)  Remillard v. Remillard, 297 Conn. 345, 357, 999 A.2d 713 (2010) (finding the definition of the term cohabitation ambiguous where it was not defined in the separation agreement).   Where “the dissolution judgment itself provided for termination of the alimony upon the occurrence of the plaintiff's cohabitation ․ [t]he provisions of General Statutes § 46b–86 are inapplicable.   The trial court should [consider] the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation.”  Mihalyak v. Mihalyak, 30 Conn.App. 516, 521–22, 620 A.2d 1327 (1993).

In the present case, Valenti argues that because the separation agreement defines cohabitation specifically as residing with the plaintiff for 180 consecutive days, his financial contributions are neither relevant nor probative of whether the plaintiff and he are cohabiting under the agreement.   Valenti further argues that because he was not a party to the dissolution action, his finances were not an issue.   The defendant argues in response that the manner in which the expenses are listed in the financial records he has requested, such as bills for utilities and homeowner's insurance policies, would provide evidence regarding whether the plaintiff and Valenti were and are cohabiting.   Moreover, the defendant maintains that the discovery requests are calculated to lead to the discovery of admissible evidence.

Practice Book § 13–2 ⁴ provides that a party may obtain “discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action ․ [and][i]t shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”  Practice Book § 13–2.  “A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13–2 through 13–5.”  Practice Book § 13–28.

“[Practice Book] [§ ]13–5's requirement for a showing of good cause for entry of a protective order requires a showing [that] must involve a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements ․ Moreover, it has long been ‘recognized that granting or denial of a discovery request rests in the sound discretion of the [trial] court ․’ Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16–17 (2006).   And, in ruling on discovery matters, including motions to quash deposition notices or subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties.   See. e.g. Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7–8, (2003).”  (Citations omitted, internal quotation marks omitted.)   Lambert–Labato v. Dettmer, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–08–5008865–S (January 31, 2012, Jennings, J.T.R.).

Here, the separation agreement provides a definition of cohabitation and a clause explicitly waiving any consideration of financial support.   Cohabitation is defined exclusively in the agreement as living or residing with the plaintiff for no less than 180 consecutive days during any two-year period.   The details of any time Valenti spent living with the plaintiff are therefore clearly material to the defendant's motion to terminate the alimony on the basis of the plaintiff's cohabitation with Valenti.   The information sought by the defendant appears reasonably calculated to lead to the potential discovery of admissible evidence.   Evidence that the finances of Valenti and the plaintiff were intermingled may very well lead to further discovery by the defendant regarding cohabitation, even if it does not provide conclusive evidence of cohabitation in and of itself.

While Valenti claims that the defendant's discovery requests are intrusive, he does not provide any “particular and specific demonstration of fact” as to how such requests are any more intrusive then what the process of discovery generally permits.  Lambert–Labato v. Dettmer, supra, Superior Court, Docket No. CV–08–5008865–S.   Further, Valenti's claims that because he is not a party to the proceeding he is protected from discovery is contrary to the language of Practice Book § 13–28, which permits a party to subpoena documents from deponents.   See, e.g., Clark v. Quehl, Superior Court, judicial district of New Haven, Docket No. FA–98–0263254–S (September 19, 2013, Shluger, J.) (ordering a nonparty deponent to produce personal bank statements and credit card statements)

CONCLUSION

For the foregoing reasons, the court denies the nonparty deponent's motion to quash.

CUTSUMPAS, J.T.R.

FOOTNOTES

FN1. The defendant's motion did not give details as to the nature or location of the rental Valenti allegedly gave up..  FN1. The defendant's motion did not give details as to the nature or location of the rental Valenti allegedly gave up.

FN2. Schedule A to the defendant's subpoena requests Valenti provide the following:  statements for bank accounts, copies of homeowner or renter's insurance policies, correspondence between himself and the plaintiff, records of any money paid to him by the plaintiff for the last three years, copies of loan applications and closing documents for the purchase of property in Wakefield, New Hampshire, any agreement between himself and the plaintiff for the use and maintenance of the New Hampshire property, copies of documents regarding property owned, leased, or rented by Valenti for the proceeding three years, and the name and address of any person with whom Valenti shared a residence for the past three years..  FN2. Schedule A to the defendant's subpoena requests Valenti provide the following:  statements for bank accounts, copies of homeowner or renter's insurance policies, correspondence between himself and the plaintiff, records of any money paid to him by the plaintiff for the last three years, copies of loan applications and closing documents for the purchase of property in Wakefield, New Hampshire, any agreement between himself and the plaintiff for the use and maintenance of the New Hampshire property, copies of documents regarding property owned, leased, or rented by Valenti for the proceeding three years, and the name and address of any person with whom Valenti shared a residence for the past three years.

FN3. The stenographer's notes from the oral argument dated August 12, 2013 indicate that Valenti provided the motion to quash to the court during oral arguments on that date, even though the motion is marked as filed on August 13, 2013..  FN3. The stenographer's notes from the oral argument dated August 12, 2013 indicate that Valenti provided the motion to quash to the court during oral arguments on that date, even though the motion is marked as filed on August 13, 2013.

FN4. Practice Book § 25–31 provides that § 13–2 applies to discovery in family matters..  FN4. Practice Book § 25–31 provides that § 13–2 applies to discovery in family matters.

Cutsumpas, Lloyd, J.T.R.