Nation-Bailey v. Bailey

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REBECCA NATION-BAILEY v.
ADRIAN PETER BAILEY
(SC 19245)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 3, 2014—officially released April 21, 2015
David N. Rubin, for the appellant (plaintiff).
Roger K. Smith, pro hac vice, with whom, on the
brief, were Robert Jon Hendricks, pro hac vice, and
Bernard J. Garbutt III, for the appellee (defendant).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether a separation agreement that requires the
payment of unallocated alimony and child support
‘‘until the death of either party, the [w]ife’s remarriage
or cohabitation as defined by [General Statutes] § 46b-
86 (b),’’1 terminates the support obligation permanently
upon the wife’s cohabitation, or whether that agreement
affords the trial court discretion to suspend that obliga-
tion for the cohabitation period, which in this case
lasted approximately four months. The plaintiff, Rebe-
cca Nation-Bailey, appeals, upon our grant of her peti-
tion for certification,2 from the judgment of the
Appellate Court reversing the judgment of the trial court
and remanding the case with direction to, inter alia,
render judgment terminating the obligation of the defen-
dant, Adrian Peter Bailey, to pay the plaintiff alimony
‘‘as of the initial date of the plaintiff’s cohabitation
. . . .’’ Nation-Bailey v. Bailey, 144 Conn. App. 319,
330, 74 A.3d 433 (2013). On appeal, the plaintiff claims
that the Appellate Court improperly concluded that § 3
(B) of the parties’ separation agreement (agreement),
which was incorporated into the judgment dissolving
their marriage, ‘‘mandated the permanent cessation of
unallocated . . . support upon a finding of cohabita-
tion by the plaintiff,’’ because, inter alia, the agreement:
(1) did not provide that the unallocated support obliga-
tion was nonmodifiable; and (2) includes § 46b-86 (b) by
reference, thus incorporating the trial court’s remedial
authority under that statute to modify, suspend, or ter-
minate the alimony obligation. We conclude that the
plaintiff’s reading of the agreement is inconsistent with
its plain and unambiguous language. Accordingly, we
affirm the judgment of the Appellate Court.
The Appellate Court’s opinion aptly sets forth the
following undisputed facts and procedural history. ‘‘The
parties [married] on July 4, 1999, and one child was
born of their union. On February 21, 2007, the court,
incorporating by reference the terms of the agreement,
entered a judgment dissolving the parties’ marriage.
The relevant portions of the agreement are as follows.
‘‘Section 3 (B) provides in relevant part: ‘Unallocated
alimony and child support shall be paid until the death
of either party, the [plaintiff’s] remarriage or cohabita-
tion as defined by . . . § 46b-86 (b), or until August
1, 2011.’
‘‘Section 3 (F) provides: ‘In the event of the termina-
tion of the alimony payments during the minority of
the child, the parties shall determine the amount of
child support to be paid by the [defendant] during his
lifetime to the [plaintiff] for the support of [the] child
and in the event they are unable to agree, the amount
of such child support payments shall be determined by
a court of competent jurisdiction. Said amount shall be
paid retroactive to the date of the termination of
alimony.’
‘‘On May 25, 2010, the defendant filed a postjudgment
motion for modification of unallocated support, medi-
cal and other expenses. On November 24, 2010, the
plaintiff filed a motion for contempt, alleging, in part,
that the defendant was in wilful contempt for failing to
pay unallocated alimony and child support as ordered
in the dissolution judgment. On April 21, 2011, the defen-
dant filed a motion to ‘enforce termination of unallo-
cated support and for other relief,’ arguing that, by
virtue of the self-executing language of § 3 (B) of the
agreement, the unallocated alimony and child support
obligation had terminated in December, 2007, because
the plaintiff, at that time, was cohabiting, as defined
by § 46b-86 (b). On July 7, 2011, the plaintiff filed a
postjudgment motion for child support, requesting that
the court enter child support orders if it found that
the unallocated alimony and child support order had
been terminated.
‘‘On April 17, 2012, following a hearing, the court
found that there had been a substantial change in cir-
cumstances warranting a reduction in the defendant’s
unallocated alimony and child support obligation, and
the court ordered the defendant to pay $200 per week
to the plaintiff in such unallocated alimony and support.
The substantial change in circumstances was that the
plaintiff and her then fiance´, Steven Cooper, had exe-
cuted a lease together and that they had cohabited from
December, 2007, through late March, 2008, with Cooper
sharing some of the plaintiff’s living expenses during
that period, thus altering her financial needs. The court
substantively applied § 46b-86 (b) and ordered that the
defendant’s unallocated support obligations were sus-
pended during the time of the plaintiff’s cohabitation,
but that, otherwise, he continued to owe her unallo-
cated alimony and child support. Further, the court
found that the defendant was in contempt for not having
paid such unallocated support to the plaintiff for a six
month period prior to his filing the May 24, 2010 motion
for modification.’’ Nation-Bailey v. Bailey, supra, 144
Conn. App. 321–23.
The defendant appealed from the judgment of the
trial court to the Appellate Court. In a divided decision,
the Appellate Court reversed the judgment of the trial
court. Id., 330. The Appellate Court majority agreed
with the defendant’s claim that the trial court had
‘‘improperly applied the substantive terms of § 46b-86
(b), [and] modified the judgment by suspending his
unallocated alimony and support payments for four
months, rather than, as required by § 3 (B) of the
agreement, terminating such payments upon the plain-
tiff’s cohabitation in December, 2007.’’ Id., 323. Noting
that the fact of cohabitation, as defined by § 46b-86 (b)
and D’Ascanio v. D’Ascanio, 237 Conn. 481, 485–86, 678
A.2d 469 (1996), was undisputed for purposes of the
appeal, the Appellate Court concluded that the
agreement ‘‘clearly provides that alimony terminates
upon [the] death of either party, the remarriage or
cohabitation of the plaintiff as defined in § 46b-86 (b),
or on August 1, 2011 . . . .’’ (Footnote omitted.)
Nation-Bailey v. Bailey, supra, 144 Conn. App. 324; see
also id., 324 n.2 (citing Black’s Law Dictionary [4th Ed.
1968] for definition of ‘‘until’’ in determining meaning
of agreement).
In so concluding, the Appellate Court rejected the
plaintiff’s argument that the agreement’s reference to
§ 46b-86 (b) means that ‘‘the alimony award is not termi-
nated upon cohabitation, although that is the sole rem-
edy set forth in the agreement,’’ because ‘‘any reference
to § 46b-86 (b) in the agreement means that the court
has the authority in the event of cohabitation to modify
the amount of, to suspend or to terminate alimony,
despite any limitation of or delineation of a remedy in
the agreement.’’ Nation-Bailey v. Bailey, supra, 144
Conn. App. 325. The Appellate Court relied on this
court’s decision in D’Ascanio v. D’Ascanio, supra, 237
Conn. 481,3 and disagreed with the plaintiff’s reliance
on its decisions in Krichko v. Krichko, 108 Conn. App.
644, 948 A.2d 1092, cert. granted, 289 Conn. 913, 957
A.2d 877 (2008) (appeal withdrawn May 19, 2009), and
Mihalyak v. Mihalyak, 30 Conn. App. 516, 620 A.2d
1327 (1993). Nation-Bailey v. Bailey, supra, 326–28.
Accordingly, the Appellate Court reversed the judgment
of the trial court and remanded the case ‘‘with direction
to render judgment terminating the defendant’s alimony
obligation as of the initial date of the plaintiff’s cohabita-
tion, and for further proceedings consistent with this
opinion on the defendant’s child support obligation4
and on the plaintiff’s motion for contempt.’’5 (Footnote
added.) Id., 330. This certified appeal followed. See
footnote 2 of this opinion.
On appeal, the plaintiff claims that the Appellate
Court improperly concluded that the use of the word
‘‘until’’ in § 3 (B) of the agreement ‘‘mandated the per-
manent cessation of unallocated alimony and child sup-
port upon a finding of cohabitation by the plaintiff.’’
Citing, inter alia, the Appellate Court’s decision in Pite
v. Pite, 135 Conn. App. 819, 43 A.3d 229, cert. denied,
306 Conn. 901, 52 A.3d 728 (2012), the plaintiff argues
that this was an improper construction because the
agreement lacks a clear and unambiguous provision
rendering the payment of unallocated support nonmodi-
fiable as to term or amount. Thus, the plaintiff contends
that the fact that the agreement is modifiable means
that the use of the word ‘‘until’’ in § 3 (B) does not by
itself mandate termination of unallocated support. The
plaintiff relies on Scoville v. Scoville, 179 Conn. 277,
426 A.2d 271 (1979), for the proposition that a trial court
retains the authority, when intervening circumstances
warrant, to extend an alimony obligation beyond a date
of termination contained in a judgment of dissolution.
The plaintiff further relies on Judge Borden’s opinion
dissenting from the judgment of the Appellate Court;
see footnote 5 of this opinion; and argues that the refer-
ence to § 46b-86 (b) in § 3 (B) of the agreement gave
the trial court access to the ‘‘ ‘full panoply of remedies’ ’’
under the statute, such as modification, rather than
mandating termination of alimony upon a finding of
cohabitation.
In response, the defendant contends that the Appel-
late Court properly enforced, rather than ‘‘rewriting,’’
the unambiguous terms of § 3 (B) of the agreement.6
The defendant contends that the word ‘‘until,’’ as used in
§ 3 (B) of the agreement, is plainly and unambiguously a
‘‘word of limitation’’ that ‘‘establish[es] . . . that upon
[the] plaintiff’s cohabitation, [the defendant’s] alimony
obligation immediately terminates,’’ arguing that it does
not ‘‘[connote] that the cessation is temporary [such]
that the previous state of affairs can be resumed or
restored.’’ (Internal quotation marks omitted.) In sup-
port of this reading, the defendant relies on the
agreement’s linkage of cohabitation with events such
as death or the plaintiff’s remarriage, and contends that
‘‘unless the word ‘until’ is qualified by some other lan-
guage indicating the possibility that the prior state of
affairs can be resumed or restored, there is no factual
basis upon which to conclude that the termination is
only temporary.’’ Disagreeing with Judge Borden’s dis-
senting opinion; see footnote 5 of this opinion; the
defendant also relies on D’Ascanio v. D’Ascanio, supra,
237 Conn. 481, Krichko v. Krichko, supra, 108 Conn.
App. 644, and Mihalyak v. Mihalyak, supra, 30 Conn.
App. 516, and argues that the incorporation of the defini-
tion of cohabitation from § 46b-86 (b) into § 3 (B) of
the agreement does not, as a matter of law, import the
entire statute into the agreement and, therefore, that
the trial court’s ‘‘equitable powers are sharply con-
strained’’ in the present case.7 We agree with the defen-
dant, and conclude that the trial court lacked any
remedial powers to suspend the defendant’s unallo-
cated support obligation for the duration of the plain-
tiff’s cohabitation because the plain language contained
within § 3 (B) of the agreement permanently terminated
the defendant’s unallocated support obligation upon
that cohabitation.
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a con-
tract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract. . . . Extrinsic evidence is always admissible,
however, to explain an ambiguity appearing in the
instrument. . . . When the language of a contract is
ambiguous, the determination of the parties’ intent is
a question of fact. . . . When the language is clear and
unambiguous, however, the contract must be given
effect according to its terms, and the determination of
the parties’ intent is a question of law. . . .
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Parisi v.
Parisi, 315 Conn. 370, 383–84, A.3d (2015).
We conclude that § 3 (B) of the agreement plainly and
unambiguously provides that permanent termination of
the unallocated support obligation is the sole remedy
upon cohabitation by the plaintiff, particularly given
the provision’s use of the word ‘‘until’’ without further
qualification.8 As noted previously, § 3 (B) of the
agreement requires the payment of unallocated support
‘‘until the death of either party, the [plaintiff’s] remar-
riage or cohabitation as defined by . . . § 46b-86 (b),
or until August 1, 2011.’’ (Emphasis added.) We often
consult dictionaries in interpreting contracts, including
separation agreements, to determine whether the ordi-
nary meanings of the words used therein are plain and
unambiguous, or conversely, have ‘‘varying definitions
in common parlance.’’ Remillard v. Remillard, 297
Conn. 345, 355, 999 A.2d 713 (2010); see also id., 355–56
(comparing conflicting dictionary definitions of term
‘‘ ‘cohabitation’ ’’ in determining that it was ambiguous
for purpose of contract interpretation). Thus, we
observe that the word ‘‘until’’ is a ‘‘function word to
indicate continuance (as of an action or condition) to
a specified time.’’ Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003); see also id. (defining ‘‘until’’ as
conjunction for ‘‘up to the time that’’). Similarly, Black’s
Law Dictionary defines ‘‘until’’ as ‘‘[u]p to time of. A
word of limitation, used ordinarily to restrict that which
precedes to what immediately follows it, and its office
is to fix some point of time or some event upon the
arrival or occurrence of which what precedes will cease
to exist.’’ Black’s Law Dictionary (6th Ed. 1990); see
also Harbour Pointe, LLC v. Harbour Landing Condo-
minium Assn., Inc., 300 Conn. 254, 285, 14 A.3d 284(2011) (Vertefeuille, J., dissenting) (comparing defini-
tion of ‘‘ ‘until’ ’’ with definition of ‘‘ ‘unless’,’’ which
is ‘‘ ‘conditional promise,’ ’’ and describing words as
having ‘‘very different meanings’’). Accordingly, the use
of the word ‘‘until,’’ standing alone, indicates that the
defendant’s unallocated support obligation was termi-
nated upon the plaintiff’s cohabitation because the obli-
gation ‘‘cease[d] to exist’’ at that ‘‘point of time or . . .
event.’’ Black’s Law Dictionary (6th Ed. 1990); see also
In re Marriage of Schu, 231 Cal. App. 4th 394, 396, 179
Cal. Rptr. 886 (2014) (interpreting marital settlement
agreement reserving court’s jurisdiction to award spou-
sal support ‘‘ ‘until’ ’’ wife is released from prison and
holding that jurisdiction did not expire immediately
after wife’s release where motion was filed prior to her
release and hearings on that motion had been contin-
ued); cf. Bergman v. Bergman, 25 Va. App. 204, 214,
487 S.E.2d 264 (1997) (concluding that term ‘‘ ‘shall
cease’ ’’ in divorce settlement agreement clearly and
unambiguously meant that alimony would ‘‘end perma-
nently’’ and not be ‘‘temporarily suspend[ed]’’ upon
cohabitation, particularly given its linkage to death
and remarriage).
The surrounding contractual provisions also support
our conclusion that the agreement clearly and unambig-
uously provides that the unallocated support obligation
terminates upon the plaintiff’s cohabitation, and that
there is no other remedy, such as suspension, available.
First, the agreement treats cohabitation as an event
akin to death or remarriage, both of which are events
that ordinarily terminate a periodic alimony obligation
absent an express provision to the contrary in the
court’s decree or incorporated settlement agreement.9
See Williams v. Williams, 276 Conn. 491, 499–500, 886
A.2d 817 (2005) (discussing default presumption that
alimony obligation terminates upon recipient’s remar-
riage); see also id., 501 (upholding trial court decision
not to terminate alimony upon remarriage because sep-
aration agreement’s ‘‘provision regarding duration of
alimony does not provide that alimony shall terminate
upon remarriage; rather, it expressly provides that it
shall terminate only upon the death of either party or
by a date certain’’); Pulvermacher v. Pulvermacher, 166
Conn. 380, 384, 349 A.2d 836 (1974) (describing decree
that ‘‘specifically and unequivocally orders that the pay-
ments ‘continue without any diminution whether or not
the defendant remarries and shall not terminate if the
plaintiff remarries or dies, and in the event of the death
of the defendant, the unexpired payments shall be an
indebtedness of his estate’ ’’). Second, this language in
the agreement is not juxtaposed with any other reme-
dies with respect to unallocated support available upon
a triggering event. Lastly, § 3 (F) of the agreement
expressly contemplates termination of the unallocated
support obligation, and requires the determination of
child support ‘‘[i]n the event of the termination of the
alimony payments during the minority of the child
. . . .’’
The plaintiff does not dispute that the language set
forth in § 3 (B) of the agreement is automatic and self-
executing with respect to stopping the unallocated sup-
port obligation immediately upon her cohabitation—at
least temporarily.10 See Krichko v. Krichko, supra, 108
Conn. App. 651–52; Mihalyak v. Mihalyak, supra, 30
Conn. App. 522. Rather, relying on Judge Borden’s dis-
senting opinion, she appears to argue that Krichko and
Mihalyak are distinguishable because the separation
agreements at issue in those cases did not refer specifi-
cally to § 46b-86 (b), whereas the agreement in this case
incorporates that statute’s definition of cohabitation
and, therefore, ‘‘must . . . be read to include the
court’s full panoply of powers under the statute, includ-
ing, as in the present case, the power to suspend peri-
odic alimony.’’ Nation-Bailey v. Bailey, supra, 144
Conn. App. 331 (Borden, J., dissenting). We disagree.
This reading of the agreement is inconsistent with the
parties’ use of the word ‘‘define’’ to limit the scope of
the reference to § 46b-86 (b) in relation to ‘‘cohabita-
tion.’’ The word ‘‘define’’ means ‘‘[t]o explain or state
the exact meaning of words and phrases; to state explic-
itly; to limit; to determine essential qualities of; to deter-
mine the precise significance of; to settle; to establish
or prescribe authoritatively; to make clear.’’ Black’s
Law Dictionary (6th Ed. 1990); see also id. (defining
‘‘definition’’ as, inter alia, ‘‘[t]he process of stating the
exact meaning of a word by means of other words,’’ or
‘‘an explanation of the meaning of a word or term’’).
Indeed, had the parties intended to import the reme-
dial aspect of § 46b-86 (b), in addition to its definitional
portion, they could have used more expansive reference
terms such as ‘‘in accordance with’’ or ‘‘pursuant to.’’
See Black’s Law Dictionary (6th Ed. 1990) (defining
‘‘accordance’’ as ‘‘[a]greement; harmony; concord; con-
formity’’ and stating that ‘‘ ‘[p]ursuant to’ means ‘in the
course of carrying out: in conformance to or agreement
with: according to’ and, when used in a statute, is a
restrictive term’’); Merriam-Webster’s Collegiate Dic-
tionary, supra (defining ‘‘according to’’ as ‘‘in confor-
mity with’’ and defining ‘‘pursuant to’’ as ‘‘in carrying
out: in conformity with’’); see also In re Steven Daniel
P., 309 P.3d 1041, 1044 (Nev. 2013) (statute requiring
proceedings ‘‘pursuant to’’ second statute means that
requirements of second statute must be followed);
Stocker v. Sheehan, 13 App. Div. 3d 1, 8–9, 786 N.Y.S.2d
126 (2004) (explaining that phrase ‘‘ ‘pursuant to’ ’’ is
more restrictive than ‘‘ ‘consistent with’ ’’). Similarly,
had the parties desired only to suspend, rather than
terminate, alimony during the period of cohabitation,
they could have used specific contractual language to
that effect. See, e.g., Melletz v. Melletz, 271 N.J. Super.
359, 361, 638 A.2d 898 (App. Div.) (dissolution
agreement provided that ‘‘ ‘[h]usband’s alimony obliga-
tion shall be suspended during the period of cohabita-
tion if the wife cohabits with a male unrelated to her
by blood or marriage’ ’’), cert. denied, 137 N.J. 307, 645
A.2d 136 (1994). We therefore conclude that the parties’
use of § 46b-86 (b) to define the term ‘‘cohabitation’’
means nothing more than that the defendant was
required to prove that (1) the plaintiff was living with
Cooper, and (2) the living arrangement with Cooper
caused a change of circumstances so as to alter the
financial needs of the plaintiff.11 See D’Ascanio v. D’As-
canio, supra, 237 Conn. 486; see also id., 485 (noting
that parties did not contest that modification
agreement’s use of term ‘‘ ‘cohabitates, as defined by
statute,’ ’’ referred to definition set forth in § 46b-86 [b]).
Thus, Judge Borden, in dissenting from the judgment
of the Appellate Court, may well be correct in his obser-
vation that denying the trial court the remedy of modifi-
cation upon cohabitation runs counter to the ‘‘broad
remedial purpose’’ of § 46b-86 (b). Nation-Bailey v.
Bailey, supra, 144 Conn. App. 333. This case is, how-
ever, purely one of contractual interpretation, and the
limited use of § 46b-86 (b) in the agreement removes
this matter from the ambit of the statutory construction
process, insofar as we are bound to give effect to the
plain and unambiguous language that the parties, each
represented by counsel, used in drafting the agreement
that ultimately was incorporated into the judgment of
dissolution.12 See, e.g., Parisi v. Parisi, supra, 315 Conn.
383; see also Williams v. Williams, supra, 276 Conn.
501–502 (concluding that settlement agreement
‘‘clear[ly] and unequivocal[ly]’’ provided that modifica-
tions upon remarriage were to be governed by § 46b-
86 [b], requiring court to follow that statute despite fact
that legislature intended it to govern cohabitation, and
that legislative ‘‘intent has no bearing on whether par-
ties or the dissolution court can invoke the statute for
a different purpose in an agreement or decree’’).
‘‘[C]ourts do not unmake bargains unwisely made.
Absent other infirmities, bargains moved on calculated
considerations, and whether provident or improvident,
are entitled nevertheless to sanctions of the law. . . .
Although parties might prefer to have the court decide
the plain effect of their contract contrary to the
agreement, it is not within its power to make a new
and different agreement; contracts voluntarily and fairly
made should be held valid and enforced in the courts.’’
(Emphasis omitted; internal quotation marks omitted.)
Tallmadge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., 252 Conn. 479, 505–506, 746 A.2d 1277(2000). Accordingly, we conclude that the Appellate
Court properly construed § 3 (B) of the agreement to
require the permanent termination of the unallocated
support obligation immediately upon the plaintiff’s
cohabitation.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH, McDONALD and ESPINOSA, Js., concurred.
1
General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolu-
tion of marriage, legal separation or annulment brought by a spouse, in
which a final judgment has been entered providing for the payment of
periodic alimony by one party to the other spouse, the Superior Court may,
in its discretion and upon notice and hearing, modify such judgment and
suspend, reduce or terminate the payment of periodic alimony upon a show-
ing that the party receiving the periodic alimony is living with another person
under circumstances which the court finds should result in the modification,
suspension, reduction or termination of alimony because the living arrange-
ments cause such a change of circumstances as to alter the financial needs
of that party. In the event that a final judgment incorporates a provision of
an agreement in which the parties agree to circumstances, other than as
provided in this subsection, under which alimony will be modified, including
suspension, reduction, or termination of alimony, the court shall enforce
the provision of such agreement and enter orders in accordance therewith.’’
Although § 46b-86 has recently been amended by our legislature; see, e.g.,
Public Acts 2013, No. 13-213, § 4; those amendments have no effect on our
resolution of the present appeal. In the interest of simplicity, we refer to
the current revision of the statute.
2
We granted the plaintiff’s petition for certification limited to the following
issue: ‘‘Did the Appellate Court correctly determine that the trial court
improperly suspended the payment of unallocated alimony and support
payments for four months, rather than terminating such payments in accor-
dance with § 3 (B) of the separation agreement?’’ Nation-Bailey v. Bailey,
310 Conn. 953, 82 A.3d 625 (2013).
3
In particular, the Appellate Court looked to D’Ascanio v. D’Ascanio,
supra, 237 Conn. 481, ‘‘for guidance on the issue of whether the agreement’s
self-executing provision terminating alimony in the event of cohabitation
should have been enforced by the court after it found that the plaintiff had
cohabited as defined in § 46b-86 (b).’’ Nation-Bailey v. Bailey, supra, 144
Conn. App. 326. Observing that ‘‘[t]he language of the modification agreement
in D’Ascanio is similar to the language in the present case, in that it defines
cohabitation by reference to § 46b-86 (b),’’ the Appellate Court relied on
this court’s holding in D’Ascanio that, ‘‘because the modification agreement
defined cohabitation by reference to § 46b-86 (b) . . . once the trial court
found that the defendant had cohabited as defined in § 46b-86 (b), ‘the [trial]
court should have enforced the terms of the modification agreement’ ’’ by
halving the weekly alimony payment ‘‘retroactive to the date the defendant
began cohabiting.’’ (Citation omitted.) Id., 327; see also id. (‘‘[w]e therefore
conclude that D’Ascanio governs this case and that the [trial] court improp-
erly modified the defendant’s alimony obligation pursuant to the remedies
available in § 46b-86 [b], rather than terminating the plaintiff’s alimony as
of the initial date of cohabitation as required by § 3 [B] of the agreement,
which was incorporated by reference in the judgment’’).
4
Acknowledging § 3 (F) of the agreement, the Appellate Court concluded
that ‘‘additional findings on issues relating to child support are necessary
and that the trial court on remand should make such findings and establish
any necessary orders.’’ Nation-Bailey v. Bailey, supra, 144 Conn. App. 330;
see also id., 329–30 (Connecticut court retained jurisdiction over child sup-
port matter under General Statutes § 46b-212h [a] because of parties’ con-
sent, despite fact that they had moved to California with their child and
California court had changed custody of child). The Appellate Court’s deci-
sion with respect to child support is not at issue in this certified appeal.
5
Dissenting from the judgment of the Appellate Court, Judge Borden
disagreed with the majority’s conclusion ‘‘that the trial court improperly
temporarily suspended, rather than terminated, the unallocated alimony and
support award contained in the judgment.’’ Nation-Bailey v. Bailey, supra,
144 Conn. App. 330 (Borden, J., dissenting). Judge Borden concluded that
the agreement’s reference to ‘‘ ‘cohabitation as defined by . . . § 46b-86 (b)’
must, as a matter of law, be read to include the court’s full panoply of
powers under the statute, including, as in the present case, the power to
suspend periodic alimony.’’ Id., 331. Describing the trial court’s decision to
suspend, rather than permanently terminate, the alimony obligation as a
‘‘commonsense position,’’ Judge Borden concluded that the ‘‘majority’s focus
on the language ‘cohabitation as defined by . . . § 46b-86 (b)’ as limited to
the statutory definition, without also including the accompanying remedial
powers of the court, finds no support in the actual language of the statute.’’
Id., 332–33.
After disagreeing with the majority’s reading of the relevant cases; see
id., 334–36; Judge Borden then challenged the majority’s reading of the
agreement’s language, stating, inter alia, that the majority ‘‘puts more weight
on the word ‘until’ than it can bear. The use of that word in the judgment
is equally consistent with the trial court’s ruling in the present case, because
by suspending the alimony, rather than terminating it as sought by the
defendant, the word could carry a similar meaning: for example, the alimony
continues ‘until’ cohabitation under the statute, which carries the court’s
range of equitable powers.’’ Id., 336.
For additional discussion of Judge Borden’s dissenting opinion, see foot-
note 11 of this opinion and accompanying text.
6
The defendant also argues that there was no legal or equitable justifica-
tion for the trial court to ‘‘rewrite’’ the agreement, observing that: (1) the
agreement was fairly negotiated, without coercion or duress; (2) both parties
were represented by counsel during negotiations; and (3) similar provisions
are commonly used in Connecticut, and have not been found void as against
public policy. Because the substantive or procedural validity of the
agreement itself is not at issue in this certified appeal; see footnote 2 of
this opinion; we decline to address these arguments. We similarly need
not address the defendant’s argument that the plaintiff, by concealing her
cohabitation with Cooper from the defendant, breached the covenant of
good faith and fair dealing and caused him economic harm by continuing
to collect alimony for one and one-half years longer than she was entitled.
7
To this end, the defendant further argues that the plaintiff’s reliance on
Scoville v. Scoville, supra, 179 Conn. 277, and Pite v. Pite, supra, 135 Conn.
App. 819, is misplaced because those cases concern a trial court’s power
under § 46b-86 (a) to modify alimony before a terminating event, while the
present case concerns a trial court’s decision, in essence, to restore alimony
after a terminating event under the self-executing language of the agreement,
namely, cohabitation.
8
We note at the outset that this case is procedurally similar to D’Ascanio
v. D’Ascanio, supra, 237 Conn. 481, upon which the defendant relies heavily
and the Appellate Court treated as ‘‘govern[ing].’’ Nation-Bailey v. Bailey,
supra, 144 Conn. App. 327. In D’Ascanio v. D’Ascanio, supra, 486–87, the
principal issue, however, was whether the trial court properly had found
that cohabitation had occurred; this court determined that the parties had
stipulated to the relief that a finding of cohabitation would trigger, namely,
requiring the court to halve the weekly alimony payment in accordance with
the terms of the settlement agreement. See also id., 488–90 (relying on
stipulation at trial to conclude that trial court improperly relied on equitable
conclusion regarding wife’s financial needs in reducing husband’s weekly
alimony payment by $100, rather than $350 provided by modification
agreement). We agree with Judge Borden’s observation that this appeal is
distinguishable from D’Ascanio, because that case ‘‘did not address, and
cannot be read to bear on, the issue in the present case, in which there was
no such stipulation and in which the parties did address the issue of whether
the court had the power to suspend, rather than to terminate, the alimony.’’
Nation-Bailey v. Bailey, supra, 336.
9
Indeed, at oral argument before this court, the plaintiff conceded that
the death of one of the parties would terminate the defendant’s unallocated
support obligations under the agreement.
10
Specifically, the plaintiff does not challenge the Appellate Court’s deter-
mination that the agreement used language that rendered it self-executing,
thus automatically stopping the defendant’s alimony obligation as soon as
the plaintiff cohabited. See Krichko v. Krichko, supra, 108 Conn. App. 646–52
(concluding that provision terminating alimony ‘‘ ‘on the earliest of the
following events to occur,’ ’’ including death and ‘‘ ‘remarriage or cohabita-
tion’ ’’ of wife, without reference to § 46b-86 [b], was ‘‘self-executing upon
cohabitation,’’ and trial court ‘‘improperly failed to conclude that the plain-
tiff’s alimony obligation terminated as of the date the defendant began
cohabiting’’); Mihalyak v. Mihalyak, supra, 30 Conn. App. 522 (concluding
that provision for alimony termination upon cohabitation was ‘‘automatic
and self-executing,’’ and trial court, therefore, improperly ended defendant’s
alimony obligation on date he filed motion for modification, rather than
when cohabitation began).
Thus, we agree with the defendant’s argument that the plaintiff inaptly
relies on Scoville v. Scoville, supra, 179 Conn. 277, and Pite v. Pite, supra,135 Conn. App. 819, for the proposition that the agreement’s lack of a
provision rendering the alimony obligation nonmodifiable as to term or
amount, means that the use of the word ‘‘until’’ in § 3 (B) did not by itself
mandate termination. See Scoville v. Scoville, supra, 280 (orders that are
ambiguous as to modifiability are treated as modifiable). The plaintiff’s
reliance on these cases is misplaced. In Scoville, this court concluded that,
absent an express preclusion of modification, the trial court retained the
authority to extend an alimony award that originally had been for a three
year fixed duration. Id. In rejecting the defendant’s argument that the exten-
sion was barred, we emphasized that ‘‘[o]ur interpretation does not render
superfluous the second sentence of the alimony order. Rather, we view that
sentence as placing a time limitation on the alimony payments should no
intervening material change in circumstances occur prior thereto.’’ Id.; see
also Pite v. Pite, supra, 825–26 (judgment language ambiguous, and thus
subject to modification, when it provided for termination of alimony upon
plaintiff’s sixtieth birthday, but did not contain express provision rendering
award nonmodifiable). In contrast to Scoville and Pite, wherein the modifica-
tion motion was filed prior to the terminating event, namely, the end of the
three year term in Scoville and the wife’s sixtieth birthday in Pite, the self-
executing language of the agreement in this case terminated the defendant’s
obligation automatically upon the plaintiff’s cohabitation, thus divesting the
trial court of any authority to modify the agreement after the occurrence
of that event.
11
Judge Borden contended in his dissenting opinion that it is improper
to ‘‘focus on the language ‘cohabitation as defined by . . . § 46b-86 (b)’ as
limited to the statutory definition, without also including the accompanying
remedial powers of the court,’’ because that construction ‘‘finds no support
in the actual language of the statute.’’ Nation-Bailey v. Bailey, supra, 144
Conn. App. 333. Quoting this court’s decision in DeMaria v. DeMaria, 247
Conn. 715, 720, 724 A.2d 1088 (1999), Judge Borden observes that § 46b-86
(b) ‘‘does not even contain the word cohabitation. Instead, it uses the broader
language of living with another person rather than cohabitation.’’ (Internal
quotation marks omitted.) Nation-Bailey v. Bailey, supra, 332–33. Observing
that § 46b-86 (b) is ‘‘one long sentence’’ that begins with the ‘‘remedial
powers of the court,’’ Judge Borden then argued that it is improper to
‘‘slic[e] the purported definitional part from the remedial part.’’ Id., 333. We
respectfully disagree.
In our view, the reference in the agreement to the definitional portion of
§ 46b-86 (b) is significant, despite the fact that the statute does not define
or even use the term ‘‘cohabitation.’’ The word ‘‘cohabitation’’ is ‘‘not inflexi-
ble nor is it one of strict or narrow meaning.’’ DeMaria v. DeMaria, supra,
247 Conn. 720; see also id., 720–22 (trial court properly relied on § 46b-86
[b] as ‘‘a matter of common-law adjudication’’ to interpret undefined term
‘‘cohabitation’’ in dissolution judgment to require ‘‘party making alimony
payments prove that the living arrangement has resulted in a change in
circumstances that alters the financial needs of the alimony recipient’’).
Indeed, in Remillard, we recently reviewed numerous dictionaries in
determining that the word ‘‘cohabitation’’ was ambiguous as used in a separa-
tion agreement, because some definitions contemplated a ‘‘dwelling together
of man and woman in the same place in the manner of husband and wife,’’
while others encompassed the ‘‘broader definition’’ of simply living together.
(Internal quotation marks omitted.) Remillard v. Remillard, supra, 297 Conn.
356; see also id., 356–57 (upholding trial court’s factual determination based
on extrinsic evidence and modifying phrase ‘‘ ‘with [an] unrelated female’ ’’
that parties intended term ‘‘ ‘cohabitation’ ’’ to require ‘‘sexual or roman-
tic relationship’’).
These cases demonstrate that the parties’ reference to § 46b-86 (b) as
providing the sole definition of ‘‘cohabitation’’ for the agreement in this case
is meaningful, particularly given ongoing debate, discussed at oral argument
before this court, and exemplified by Remillard v. Remillard, supra, 297
Conn. 345, about whether ‘‘cohabitation’’ must include some romantic com-
ponent beyond a shared living situation. Reflecting the plaintiff’s acknowl-
edgment that the agreement was a result of a negotiated compromise, it
relieved the defendant from having to prove that the plaintiff’s new living
situation is romantic in nature, while simultaneously protecting the plaintiff
from the termination of her unallocated support based solely on her decision
to live with someone, without consideration of the financial consequence
of that situation.
12
We note with interest a similar case pending before the New Jersey
Supreme Court. In Quinn v. Quinn, Docket No. A-2876-11T1, 2014 WL
1909479 (N.J. Super. App. Div. May 14, 2014), the Appellate Division of the
New Jersey Superior Court upheld a trial court’s decision to suspend, rather
than terminate, the husband’s alimony obligation because of the wife’s
cohabitation, despite the fact that the ‘‘divorce settlement agreement pro-
vides that ‘[a]limony shall terminate upon . . . the [w]ife’s cohabitation,
per case or statutory law.’ ’’ In September, 2014, the New Jersey Supreme
Court granted certification to review this aspect of the Appellate Division’s
decision; that certified appeal has not yet been argued or decided. See
Quinn v. Quinn, 219 N.J. 631, 99 A.3d 835 (2014); see also New Jersey
Judiciary, ‘‘Track Supreme Court Appeals,’’ (last modified March 30, 2015),
available at http://www.judiciary.state.nj.us/calendars/sc appeal.htm (last
visited April 1, 2015) (Unofficial note stating that the issue in the certified
appeal is, ‘‘[u]nder the circumstances presented, was [the] defendant entitled
to terminate his alimony payments, pursuant to the divorce settlement
agreement, based upon [the] plaintiff’s cohabitation?’’).