This case involves two actions for dissolution of marriage that were consolidated for the purposes of this appeal. The principal issue is whether a party seeking to convert a legal separation into a dissolution under General Statutes § 46b-65 (b)
The parties, David and Gay Mitchell, were married on May 20, 1978. On June 6, 1979, David Mitchell (hereinafter David) brought an action seeking a dissolution which he later amended to seek a legal separation (the 1979 action). The parties entered into a written separation agreement which they filed with the court along with their financial affidavits. On March 6, 1980, the court, Higgins, J., approved the separation agreement and placed it on file and rendered a judgment of legal separation.
The following findings of fact made by the trial court, Edelberg, J., are undisputed by both parties. After living separately for over a year, in May, 1981, the parties began living together "as husband and wife" and continued to do so until January 5, 1982. In early
The following events then ensued. On March 27, 1982, Gay commenced an action for dissolution of the marriage pursuant to General Statutes § 46b-40, the general dissolution provision. On April 27, 1982, David petitioned the court to convert the 1980 legal separation into a dissolution of the marriage "pursuant to Conn. Gen. Stat. § 46b-65." He did not state in the petition that the parties had resumed marital relations. On
On May 25, 1982, Gay amended her complaint to include a second count claiming breach of contract and a third count claiming negligence, resulting in emotional harm, impairment of her earning capacity and damage to her reputation in the business community. In the amended complaint she sought a dissolution of the marriage, temporary and permanent alimony, an assignment from the defendant's estate, temporary and permanent counsel fees, specific performance of the separation agreement and damages.
On August 18, 1982, the trial court, Edelberg, J., granted David's motion to dismiss the first count of Gay's complaint and denied Gay's motion to stay David's petition on the ground that General Statutes § 46b-65 (b) requires that when either party petitions for a dissolution after a legal separation has been ordered and neither party has filed a signed, acknowledged, and witnessed declaration that they have resumed marital relations, as provided for in § 46b-65 (a), "the court has no option but to enter a decree of dissolution."
On September 3, 1982, Gay filed an answer, a counterclaim and special defenses to David's dissolution petition in which she claimed that (1) the parties by their conduct had abrogated the separation agreement and, therefore, the court did not have jurisdiction to convert the separation into a dissolution;
(2) David had failed to comply with Practice Book § 472;
(3) § 46b-65 (b) does not apply when the parties have resumed marital relations; and (4) David was estopped from seeking a dissolution because he falsely represented that he would have his attorney prepare and file a declaration of resumed marital relations.
At the September 20 hearing on David's petition for dissolution, the trial court found that Practice Book § 472 was procedural and could not derogate the statute which mandated a dissolution in the absence of a filed declaration that the parties had resumed marital relations. After limiting the hearing to the issue of fraud, the court found that "there was no fraudulent intent on the part of Mr. Mitchell" and rendered a decree of dissolution.
Gay has appealed from the judgment granting David's petition for dissolution and the judgment dismissing the first count of her complaint and denying her motion for stay and her motion for a rehearing. After the commencement of the appeal, she filed a motion for support pending the appeal and a motion for already incurred attorneys' fees and for attorneys' fees to prosecute the appeal. The trial court, Vasington, J., denied the motion for support. It denied the motion for attorneys' fees with respect to those fees relative to her action but granted the motion for those fees incurred for the defense of David's petition. Gay amended her appeal to include the denial of these motions.
Gay contends that the court erred in granting David's petition because he did not comply with Practice Book § 472 in that he did not state in his petition that the parties had resumed marital relations. David responds that the rule is no longer viable because even if he had included that statement in his petition, in the absence of a signed, written, and acknowledged declaration of resumption, according to General Statutes § 46b-65 (b) the court was compelled to grant the dissolution. The question we are confronted with is whether the legislature intended the petitioner to reveal whether the parties had resumed marital relations and, if they have resumed, whether he can avail himself of the summary proceeding established in § 46b-65 (b).
General Statutes 46b-65
Practice Book § 472,
When interpreting a statute we resort to the traditional rules of statutory construction.
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. The deletion of the requirement that the court affirmatively find no resumption suggests that subsection (b) assumes that it is undisputed that the parties had not resumed marital relations. To give its legal sanction to the parties' status, however, the court must know the true relationship of the parties.
David posits a scenario where neither rule nor statute requires the parties to disclose their relationship to the court. It is his position that since a party proceeding under General Statutes § 46b-65 (b) need not file a declaration that the parties had not resumed marital relations, the court, in acting on a petition seeking to convert a legal separation into a dissolution, can only inquire to determine if the parties have filed a declaration of resumption under subsection (a). If none has been filed, the court must grant the dissolution (in the presence of the petitioner) even if it knows that the
We cannot accept this scenario. It completely ignores the spirit of our rules which requires full disclosure of all material facts,
Moreover, we cannot accept a construction of the statute which suggests that the court's power to respond to this changed status is subject to the decision of the parties to file a declaration under subsection (a). At oral argument David asserted that if the parties reunited after a decree of legal separation, and twenty years later one party decided that he or she 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. 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.' General Statutes § 46b-66. 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." Baker v. Baker, supra, 321, quoting Monroe v. Monroe, supra, 183-84.
Practice Book § 472 assists the court in fulfilling its equitable obligation by requiring the petitioner to disclose
Nor do we agree that this requirement represents an impermissible intrusion by the courts into the realm of the legislature. It is well settled by statutory; General Statutes § 51-14 (a);
A person seeking either a legal separation or a dissolution of marriage must file a petition pursuant to § 46b-40.
Because the parties in this case had resumed marital relations, David could not make the required statement in his petition and thus could not seek a dissolution under § 46b-65 (b). Therefore, it was error for the trial court to dismiss the first count of Gay's complaint and to grant David's petition.
In ruling on Gay's motions for support pendente lite and attorneys' fees, the trial court, Vasington, J., did not rely on its discretionary authority to make such awards; see General Statutes §§ 46b-62, 46b-82, 46b-83; see also Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983) (counsel fees); Fitzgerald v. Fitzgerald, 169 Conn. 147, 153, 362 A.2d 889 (1975)
In light of the finding that the parties resumed marital relations and lived together as husband and wife, the viability of the separation agreement is in doubt. Before relying on that agreement it was incumbent upon the court to hear evidence concerning the parties' resumption of marital relations and whether they had intended to abrogate the separation agreement. See Rowe v. Cormier, 189 Conn. 371, 373, 456 A.2d 277 (1983); see generally 24 Am. Jur.2d, Divorce and Separation §§ 852, 853 (1983 Ed.) and cases cited therein.
David seems to suggest that because Gay did not file a declaration of resumption of marital relations under § 46b-65 (a)
There is error, the judgments in both cases are set aside, and the cases are remanded for further proceedings consistent with this opinion.
In this opinion PETERS and GRILLO, Js., concurred.
SHEA, J., with whom HEALEY, J., joins, concurring and dissenting. I disagree with the conclusion of the majority 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. That conclusion completely ignores the intention of the legislature in enacting the 1973 amendments to our domestic relations statutes. That intention, as clearly expressed in subsection (b) of § 46b-65 and as indicated by its legislative history,
I, nevertheless, would find error in the failure of the court to hold a full hearing upon all of the issues
The fact that the parties have resumed marital relations is a highly significant circumstance requiring the court to evaluate the situation of the parties anew in order to treat them equitably. It is for this reason that the rule of practice, Practice Book § 472, requiring a statement of whether there has been a resumption of marital relations in a petition to convert a legal separation into a dissolution of marriage, was retained after the demise of the predecessor to § 46b-65.
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 dissolution and to afford the opportunity for a hearing on the issues involved.
"(b) If no declaration has been filed under subsection (a) of this section, 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."
"Every petition for a decree finally dissolving and terminating the marriage, 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 marital relations 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 § 473 provides: "Sec. 473.—NOTICE AND HEARING "Upon presentation of such petition to the court 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 his place of residence is known, otherwise in such manner as it shall deem reasonable."
"Gay and I have been living together under the separation agreement since May of this year. We both feel now that we would like the agreement withdrawn and our marital status fully reestablished.
"Would you please let me know what steps need to be taken to bring this about
"3. The plaintiff and the defendant resumed marital relations and have been living together since May, 1981.
"4. The parties desire that their marriage be fully restored, that the decree of legal separation be vacated, the complaint in this action dismissed, and the said agreement between the parties declared null and void and of no further force and effect, pursuant to Conn. Gen. Stat. §46b-65 (a)."
"Petition for Decree Dissolving Marriage after Legal Separation
(Caption of legal separation action)
"To the Superior Court for (judicial district where legal separation was entered).
"The undersigned a party to the above entitled action, respectfully represents. "1. On (date) a judgment for legal separation was entered by this court in the above entitled action as of record appears.
"2. 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 Gen. Stat., § 46-61. [§ 46b-65]
"Wherefore the undersigned prays that the court enter a decree dissolving the marriage of the parties.
Practice Book § 109 entitled "Pleading Legal Effect," provides in part: "Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove."
GROUNDS FOR DISSOLUTION OF MARRIAGE; LEGAL SEPARATION; ANNULMENT. (a) A marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction.
"(b) An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed.
"(c) A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: (1) The marriage has broken down irretrievably; (2) the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled; (3) adultery; (4) fraudulent contract; (5) wilful desertion for one year with total neglect of duty; (6) seven years' absence, during all of which period the absent party has not been heard from; (7) habitual intemperance; (8) intolerable cruelty; (9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; (10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.
"(d) In an action for dissolution of a marriage or a legal separation on the ground of habitual intemperance, it shall be sufficient if the cause of action is proved to have existed until the time of the separation of the parties.
"(e) In an action for dissolution of a marriage or a legal separation on the ground of wilful desertion for one year, with total neglect of duty, the furnishing of financial support shall not disprove total neglect of duty, in the absence of other evidence."