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Norberg-Hurlburt v. Hurlburt

Court of Appeals of Connecticut

January 26, 2016

JENNIFER NORBERG-HURLBURT
v.
RICHARD M. HURLBURT

Submitted on briefs October 9, 2015

Appeal from Superior Court, judicial district of Litchfield, Hon. Charles D. Gill, judge trial referee [dissolution judgment]; Ginocchio, J. [motion for contempt, motion to terminate alimony].

J. Keith Nolan filed a brief for the appellant (plaintiff).

James D. Hirschfield filed a brief for the appellee (defendant).

Alvord, Mullins and Pellegrino, Js.

OPINION

ALVORD, J.

The plaintiff, Jennifer Norberg-Hurlburt, appeals from the postjudgment rulings of the trial court granting the motion for contempt and the motion to terminate alimony filed by the defendant, Richard M. Hurlburt. On appeal, the plaintiff claims that the court improperly (1) found her in contempt for failure to make certain payments without allowing her to testify as to her financial condition and (2) terminated her alimony on the basis of cohabitation without allowing her to testify as to her relationship with her fiance´e and her living arrangements. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the plaintiff’s claims. The court, Hon. Charles D. Gill, judge trial referee, dissolved the parties’ seventeen year marriage on October 7, 2009. At the time of the dissolution, the parties had two minor children, aged fifteen and seventeen. The judgment of dissolution incorporated by reference the parties’ ‘‘divorce settlement agreement’’ (agreement), which contained provisions regarding alimony, the marital residence, and responsibility for outstanding debt. With respect to alimony, the defendant was obligated to pay the plaintiff $400 per week. The defendant could seek to modify that amount ‘‘only upon [the plaintiff’s] cohabitation, which shall be defined as a relationship similar to that of husband and wife.’’

With respect to the marital home, the defendant was to transfer his interest in the parties’ jointly owned residence in North Canaan to the plaintiff, and she was thereafter responsible for ‘‘the mortgage(s), taxes, insurance, and all other expenses and financial obligations on, related to and resulting from this property . . . .’’ Paragraph 21 of the agreement further provided in relevant part: ‘‘[I]t is hereby expressly agreed that, notwithstanding the labels of any particular paragraph hereof, all of the obligations created by this Agreement are in the nature of support and therefore shall not be dischargeable by either party in the event of bankruptcy.’’

Sometime in 2013, the plaintiff relocated from Connecticut to New Jersey. On December 2, 2013, she filed for federal bankruptcy protection under chapter 7 of the United States Bankruptcy Code and received a dischargein bankruptcy in March, 2014. On July 7, 2014, the defendant filed a postjudgment motion for contempt, claiming, inter alia, that the plaintiff had failed to pay the mortgage on the former marital residence, had failed to maintain the property and to keep it in repair, and had failed to pay the real estate taxes, all as required by the provisions in their agreement that had been incorporated into their dissolution judgment. Additionally, on July 7, 2014, the defendant filed a postjudgment motion to terminate his alimony obligation, claiming that the plaintiff was ‘‘cohabitating with Russell Brown in a relationship similar to that of husband and wife.’’ The defendant sought the modification pursuant to the terms of the agreement.

The plaintiff filed a memorandum in opposition to the defendant’s postjudgment motions on July 16, 2014. In her opposition, she stated that she had ‘‘not remarried, ’’ but she ‘‘concede[d] she [was] in a relationship with Russ Brown.’’ She argued that the defendant’s motion to terminate her alimony should be denied because the defendant had ‘‘not offered any evidence of a financial impact from [her] relationship with Russ Brown . . . .’’ With respect to the defendant’s motion for contempt, the plaintiff did not contest the allegations that she had failed to make the payments required by the agreement, but she stated that she had ‘‘not wilfully failed to make payments on any of her debts’’ and had been ‘‘struggling with her financial obligations as best she could.’’

A hearing on the defendant’s motions and the plaintiff’s opposition thereto was held on July 21, 2014. At that time, the defendant, his counsel, and the plaintiff’s counsel were in attendance. The plaintiff, however, did not appear. The plaintiff’s counsel, after saying that the plaintiff was ‘‘unable to be here today, ’’ asked the court to read a letter from the plaintiff’s employer explaining her absence. The court asked the defendant’s counsel for his position on this development, and he responded: ‘‘Quite frankly, it’s not going to be as easy for me to prove the motion to terminate alimony without [the plaintiff] here. However, the last three times we’ve been here, she doesn’t show up. The motion was marked- came up on the calendar more than a week ago. I marked it right away, early in the week, and sent it to [the plaintiff’s counsel]. [The plaintiff] just doesn’t come to court. So, I’ve told [the plaintiff’s counsel] that I’m going to ask the court to go forward.’’ The court then reviewed the letter[1] from the plaintiff’s employer and stated: ‘‘All right. I’m going to deny the continuance request. So, we’re going to go forward today . . . .’’

The defendant’s counsel called the defendant to the witness stand. Beginning with the motion for contempt, the defendant testified that, pursuant to the terms of the agreement, he had conveyed his interest in the marital residence to the plaintiff. He stated that at that point, she was responsible for the mortgage payments, taxes, insurance, and all other expenses related to the property. The defendant testified that the plaintiff failed to make mortgage payments beginning in August, 2013, with nonpayment continuing thereafter, and failed to make payments for the homeowner’s insurance. Additionally, according to his testimony, the plaintiff had failed to pay the real estate taxes on the marital residence, and a tax lien foreclosure action was then pending in Superior Court. The defendant testified that the tax arrearage at that time was approximately $23, 000.

The defendant’s counsel inquired as to whether the defendant recently had viewed the North Canaan property. The defendant responded in the affirmative, and he described it as being abandoned and in a state of disrepair. Several photographs were admitted into evidence, without objection by the plaintiff’s counsel, and the defendant indicated that the lawn had not been mowed, the side entrance door was left open, a plastic sheet covered a window in the back of the house, and a pile of debris was located outside the house. At the conclusion of the defendant’s direct testimony, he requested attorney’s fees in the amount of $9000 to cover his expenses in pursuing the subject motions. During a very brief ...


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