Berry v. Berry, No. Fa88 0253397 S (Jun. 24, 1992) , 1992 Conn. Super. Ct. 6126 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: PETITION FOR DECREE DISSOLVING MARRIAGE AFTER LEGAL SEPARATION (NO. 115.00) This case comes to this court wherein the plaintiff seeks, under Connecticut General Statutes 46b-65, to transform his legal separation entered on January 3, 1989 to a dissolution of marriage pursuant to Connecticut General Statutes 46b-65.

The court is aware of Mitchell v. Mitchell, 194 Conn. 312 at p. 318, wherein there is an indication that there must be no resumption of marital relations. If the parties dispute that, there has to be a hearing. This court has held a hearing and heard the evidence.

The wife indicates in her testimony that the parties slept together, had sex, and the husband fondled and kissed her. The husband claims he never had sex with the wife after the legal separation but did stay in the house for a period of time between reconciliations but never resumed marital relations.

The court finds the more credible testimony to be that no marital relations were resumed sufficient to deny the husband the requested relief under 46b-65. Because of the ambiguity created by Mitchell, this court further finds that there was a hearing sufficient to satisfy 46b-40, and the court has found the husband's testimony more credible on the issue of resumption of marital relations. Accordingly, the court grants a dissolution of marriage.

The court finds the separation agreement of the parties entered into on January 3, 1989, is fair and reasonable under all the circumstances and incorporates it by reference in the decree of dissolution as it did in the decree of legal separation.

EDWARD R. KARAZIN, JR., JUDGE