In Re Marriage of Kilkenny

Opinion

BROWN (Gerald), P. J.

Bernard J. Kilkenny appeals the order denying his request for modification of spousal support of $256 per month paid by him to his former wife, Myrtle Kilkenny.

Originally the support obligations were set out in a separation agreement executed in Connecticut in 1967. The agreement terms were characterized as “absolute, unconditional and irrevocable.” This separation agreement was incorporated into the interlocutory and final decrees of dissolution granted in California in 1972 and 1973, respectively. In 1978 Bernard filed in California a motion for modification requesting a reduction in the amount of support paid to Myrtle. The trial court denied Bernard’s motion, finding the agreement was not modifiable.

Bernard contends the separation agreement is modifiable because it was not specifically made nonmodifiable by its terms. The parties are in

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conflict about whether Connecticut or California law should be used in determining modificability. The resolution of the conflict of laws issue is unnecessary as the result is the same under both states’ laws.

Connecticut general statutes provide: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said Court upon a showing of substantial change in the circumstances of either party.” (Conn. Gen. Stat. (Rev. Jan. 1979) tit. 46b, § 46b-86 (formerly § 46-54). Thus, under Connecticut law, modification will not be allowed if precluded by a separation agreement which has become a part of the court decree. The intent of the parties governs

(McDonnell

v.

McDonnell

166 Conn. 146 [348 A.2d 575, 577];

Foley

v.

Foley,

149 Conn. 469 [181 A.2d 607, 608-609]).