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In divorce agreements, three circumstances for terminating alimony are frequently listed: remarriage, death and cohabitation. Death and remarriage are so easy to prove that an ex-spouse doesn’t need court permission to immediately stop payments. But cohabitation is a much cloudier issue. Dennis Knapp’s Connecticut Supreme Court appeal, argued April 12, may clarify whether a cohabitation clause is more trouble than it’s worth. Nine years ago, Knapp entered into a separation agreement with his soon-to-be ex-wife, Janet, agreeing to pay $775 a week in alimony for the next five years, subject to termination on either party’s death, the wife’s remarriage or “cohabitation, as defined by statute.” But what courts in Connecticut have dubbed the “cohabitation statue” doesn’t even contain that word. It’s C.G.S. � 46b-86(b) and says that, “in its discretion and upon notice and hearing,” a court can modify or terminate alimony upon a showing the party receiving the alimony “is living with another person” under circumstances that “alter the financial needs” of the alimony recipient. Dennis Knapp made his alimony payments steadily at first. He testified he didn’t know his ex-wife was living with another man at the time of the divorce, or that the two were largely being supported by his alimony payments. In December 1995, Knapp had a heart attack, and stopped payments while recuperating from open heart surgery. His payments were sporadic after that, but totaled $41,075, with $160,425 unpaid. When the alimony stopped, Janet Knapp’s boyfriend, Frank Felicissimo, began contributing $1,000 to $1,100 a month toward the couple’s restaurant and travel costs. In 1997 and 1998, Dennis Knapp made court motions to modify alimony, but didn’t pursue them. Then in 2001, after the five-year alimony period was over, he moved to open the original divorce judgment, terminate alimony and get a refund of what he’d paid on grounds the no-alimony-upon-cohabitation clause was triggered from the start. Judge Trial Referee Dennis F. Harrigan ruled in Knapp v. Knapp in 2002. Harrigan concluded that the clause referencing “cohabitation, as defined by statute,” wasn’t something Dennis Knapp could invoke without court approval. And since the alimony period had run, the judge declined to reopen the case, let alone order a refund, on grounds he lacked the power to modify alimony retroactively. Dennis Knapp was ordered to pay $200 a week until 2027. He appealed. At the Supreme Court, his lawyer, Michael S. Taylor of Hartford’s Horton, Shields & Knox, tried to minimize the impact of the words “as defined by statute.” Taylor noted that his client was not invoking the cohabitation statute as grounds for relief. His pleadings asked for a termination of alimony enforcing the agreement’s contract provisions, as triggered by the trial court’s findings of both cohabitation and financial contribution on Felicissimo’s part. Justice David M. Borden asked, “Why do you say this case has nothing to do with modification under the statute, when it refers to cohabitation ‘as defined by statute’?” Taylor replied that in 1999, in DiMaria v. DiMaria, the high court read into the term “cohabitation” the need for a consequent change in financial circumstances, in light of the statute. Cohabitation is a term of art, defined by statute with common law gloss. He contended that the trial court could have terminated Dennis Knapp’s obligation to pay alimony when it found both cohabitation and financial contribution, and that it was reversible error not to do so. But Borden said he couldn’t imagine the clause operating automatically, even on the case’s record to date. “We’d have to send it back for another hearing” to find out when, if ever, a financial change took place, Borden contended. Taylor also argued that, if a court cannot revisit the rights of parties under an alimony agreement like this, it would create an incentive to hide the fact of cohabitation, and deceptively collect from both the ex-husband and the new boyfriend, then be beyond the reach of the law once the alimony term ends. But Janet Knapp’s advocate, Mark Stern of Westport, Conn., maintained that the husband’s missed payments amounted to a loan of the $160,000 and asked the court to impose statutory interest at 10 percent. “If we lose the [cross] appeal today, it rewards him with an interest-free loan for nine years,” said Stern.

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