Boreen v. Boreen

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MAYA BOREEN v. KEVIN A. BOREEN
(AC 41155)
DiPentima, C. J., and Alvord and Diana, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the defendant’s motion to terminate alimony, to determine
overpayments and to set a repayment schedule. The trial court found
that the plaintiff was living with R, her boyfriend, within the meaning of
the applicable statute (§ 46b-86 [b]), and, therefore, that the defendant’s
alimony obligation terminated under the terms of the parties’ separation
agreement, which had been incorporated into the dissolution judgment
and provided that the defendant’s alimony obligation would terminate
on the date the court determined that the plaintiff commenced ‘‘living
with another person.’’ Held:
1. The trial court did not err in finding that the plaintiff was ‘‘living with
another person’’ for purposes of § 46b-86 (b): although the plaintiff
claimed that she and R maintained separate residences and were
together less than all of the time, ample evidence supported the court’s
finding that the plaintiff was living with R, including evidence that the
couple resided under the same roof for approximately half the week,
took many meals together, regularly communicated by cell phone, and
frequently traveled together, and that R provided for the plaintiff’s health
insurance coverage under his own policy as a result of the couple holding
themselves out as being in a domestic partnership, and allowed the
plaintiff to keep a rent-free art studio in his home, and even though the
plaintiff and R maintained separate homes and did not sleep in the same
residence every night, the plaintiff’s living arrangements changed such
that she no longer needed the same financial support as at the time of
the original alimony order; moreover, the court properly relied on the
fact that R provided the plaintiff with health insurance coverage in
concluding that the plaintiff was living with him, as the plaintiff and R
held themselves out as a couple who were in a nonmarital union as
domestic partners when R added the plaintiff to his health insurance
policy, and the court properly considered the attendant financial benefits
the plaintiff received as a result of the free health insurance coverage
when determining whether her financial needs changed as a result of
her living with R such that the defendant’s alimony obligation should
be terminated.
2. The trial court did not err in finding that the only remedy available under
the terms of the separation agreement, upon a finding that the plaintiff
was ‘‘living with another person,’’ was to terminate the defendant’s
alimony obligation: the provision of the separation agreement stating
that the plaintiff shall be deemed to have been living with another person
in the event a court makes a finding that the alimony should terminate
or be reduced ‘‘pursuant to’’ § 46b-86 (b) did not reflect an intent to
broadly incorporate all aspects of § 46b-86 (b), as the only remedy
explicitly provided in the agreement upon a finding that the plaintiff
commenced living with another person was to terminate alimony, the
language in the agreement that alimony ‘‘shall’’ terminate when the
plaintiff commenced living with another person was mandatory in
nature, and the separation agreement treated cohabitation as an event
akin to death or remarriage, both of which are events that ordinarily
terminate a periodic alimony obligation; moreover, a finding that alimony
could be modified upon a finding of cohabitation, as opposed to termi-
nated, would be inconsistent with the structure of the separation agree-
ment as a whole, which contained provisions governing discrete circum-
stances in which one or both parties could seek to modify the
alimony obligation.
Argued April 23—officially released September 3, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Hon. Stan-
ley Novack, judge trial referee, rendered judgment dis-
solving the marriage; thereafter, the court, Hon.
Michael E. Shay, judge trial referee, granted the motion
filed by the defendant to terminate alimony, to deter-
mine overpayments and to set a repayment schedule,
and the plaintiff appealed to this court; subsequently,
the court, Hon. Michael E. Shay, judge trial referee,
denied the motion for articulation filed by the plaintiff;
thereafter, the plaintiff filed a motion for review with
this court, which granted the plaintiff’s motion for
review but denied the relief requested. Affirmed.
James H. Lee, for the appellant (plaintiff).
Thomas M. Shanley, for the appellee (defendant).
Opinion
DIANA, J. The plaintiff, Maya Boreen, appeals from
the judgment of the trial court granting the postjudg-
ment motion filed by the defendant, Kevin A. Boreen,
to terminate alimony, to determine overpayments, and
to set a repayment schedule on the ground that, under
the parties’ separation agreement, the defendant’s ali-
mony obligation terminated upon the court’s finding
that the plaintiff was ‘‘living with another person.’’ The
plaintiff claims that the court (1) erred in finding that
she was ‘‘living with another person’’ pursuant to Gen-
eral Statutes § 46b-86 (b),1 and (2) improperly con-
cluded that the only remedy available upon a finding
that she was ‘‘living with another person’’ was to termi-
nate the defendant’s alimony obligation. We disagree
and, accordingly, affirm the judgment of the trial court.
The following procedural history and facts, as found
by the trial court, are relevant to this appeal. The twenty-
four year marriage between the parties was dissolved on
September 29, 2009. The parties executed a separation
agreement, which was approved by the court and incor-
porated in the dissolution decree by reference. The
separation agreement provides that the defendant was
to pay alimony to the plaintiff ‘‘until the earliest of the
[defendant’s] death, the [plaintiff’s] death, the [plain-
tiff’s] remarriage or ‘living with another person’ as
defined in [Article] 2.2 [of the separation agreement].’’
Article 2.2 of the agreement provides in relevant part:
‘‘The [defendant’s] obligation to pay alimony shall termi-
nate on the date . . . the [c]ourt determines [the plain-
tiff] commenced ‘living with another person.’ . . . For
purposes of this Agreement, the [plaintiff] shall be
deemed to have been ‘living with another person’ in the
event a court of competent jurisdiction makes a finding
that the alimony should terminate or be reduced pursu-
ant to the provisions of [General Statutes] § 46b-8[6]
(b).’’2
In December, 2009, the plaintiff began dating Robert
Rodriguez. On March 13, 2017, the defendant filed a
motion to terminate alimony, to determine overpay-
ments, and to set a repayment schedule, claiming that,
although the plaintiff still maintained her own home,
she had been living with Rodriguez within the meaning
of § 46b-86 (b) since July, 2013, such that her financial
needs had been altered. At the hearing on the defen-
dant’s motion, Rodriguez testified that, although he
began dating the plaintiff in 2009, he had only owned
and maintained a home in Wilton since July, 2013. The
plaintiff’s home, which she purchased in August, 2011,
is also located in Wilton. Rodriguez testified that the
couple spends ‘‘between three and four’’ nights together
each week at one of their respective homes, but that
neither of them contribute to the maintenance of the
other’s residence. He further testified that the plaintiff
typically cooks for the couple twice per week and that
he pays for their meals when they eat out more than
half, and possibly as much as 75 percent of the time.
Further, the plaintiff, who works part-time as an artist,
keeps a rent-free art studio at Rodriguez’s home in
Wilton.
Importantly, Rodriguez admitted that in approxi-
mately January, 2015, he added the plaintiff to his health
insurance policy and indicated on the enrollment form
that the plaintiff was his ‘‘domestic partner.’’ Before
receiving health insurance coverage as a domestic part-
ner under Rodriguez’ policy, the plaintiff’s insurance
company required her to pay annually a $6000 deduct-
ible and a 20 percent copay. Under Rodriguez’ health
insurance policy, the deductible is $750 per incident.
The plaintiff’s total estimated share of the health insur-
ance premium payments that had been made on her
behalf by Rodriguez was, at the time of trial, in excess
of $26,000. Although Rodriguez testified that the plain-
tiff had agreed to reimburse him for her portion of
the health insurance premium, that agreement was not
reduced to writing and the plaintiff had made no reim-
bursement payments to Rodriguez at the time of the
hearing on the defendant’s motion.
The court granted the defendant’s motion in a memo-
randum of decision dated October 31, 2017, finding that
‘‘at least since January, 2015, the parties have been
living together, and that the arrangement has altered
the financial needs of [the plaintiff] within the meaning
of General Statutes § 46b-86 (b).’’ On that basis, the
court terminated the defendant’s alimony obligation.
The court further determined that from January 1, 2015,
until October 31, 2017, the defendant had paid alimony
to the plaintiff in the amount of $358,216, and ordered
the plaintiff to repay the overage in full in semiannual
installments of $30,000 each without interest. On
November 20, 2017, the plaintiff filed a motion for rear-
gument and reconsideration, which the court denied
on November 30, 2017. This appeal followed. Additional
facts and circumstances will be set forth as necessary.
I
The plaintiff first claims that the court erred in finding
that she had been ‘‘living with another person’’ within
the meaning of § 46b-86 (b). Specifically, the plaintiff
argues that the court erred in finding that she was living
with Rodriguez because (1) they maintain separate resi-
dences and ‘‘are together less than all the time’’ and (2)
the court improperly considered that Rodriguez had
provided for her health insurance coverage under his
own policy in making its determination about her living
arrangements.3 We are not persuaded.
The court made the following additional findings rele-
vant to this claim: ‘‘In this case, the testimony and
evidence clearly support a finding that [Rodriguez] and
[the plaintiff] have entered into a long-time, committed,
and monogamous relationship that meets their emo-
tional needs, and comes with significant financial bene-
fits for the latter. The couple resides under the same
roof for approximately half the week, take many of
their meals together, regularly communicate by cell
phone, and frequently travel together. Both described
the relationship as exclusive, and [Rodriguez] called
[the plaintiff] his ‘best friend.’ More importantly, he
also described her as his ‘domestic partner,’ and, since
January, 2015, he has made provision for her health
insurance coverage under his own policy at no cost to
her. For her part, on her Facebook page she has referred
to the workshop at [Rodriguez’] home in Wilton as ‘her
studio’ and posted photos of it and her artwork. Accord-
ingly, the court finds that at least since January, 2015,
the parties have been living together, and that the
arrangement has altered the financial needs of [the
plaintiff] within the meaning of General Statutes § 46b-
86 (b).’’
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . Therefore, to
conclude that the trial court abused its discretion, we
must find that the court either incorrectly applied the
law or could not reasonably conclude as it did.’’ (Inter-
nal quotation marks omitted.) Emerick v. Emerick, 170
Conn. App. 368, 378, 154 A.3d 1069, cert. denied, 327
Conn. 922, 171 A.3d 60 (2017).
A
The plaintiff first argues that the court erred in finding
that she was living with Rodriguez within the meaning of
§ 46b-86 (b) because they maintain separate residences
and are together ‘‘less than all the time.’’ We disagree.
Section 46b-86 (b) provides, in relevant part, that a
court may modify a dissolution judgment and ‘‘suspend,
reduce or terminate the payment of periodic alimony
upon a showing that the party receiving the periodic
alimony is living with another person under circum-
stances which the court finds should result in the modi-
fication, suspension, reduction or termination of ali-
mony because the living arrangements cause such a
change of circumstances as to alter the financial needs
of that party.’’ Thus, ‘‘a finding of cohabitation requires
that (1) the alimony recipient was living with another
person and (2) the living arrangement caused a change
of circumstances so as to alter the financial needs of
the alimony recipient.’’ Fazio v. Fazio, 162 Conn. App.
236, 240 n.1, 131 A.3d 1162, cert. denied, 320 Conn. 922,
132 A.3d 1095 (2016).
Whether an individual is ‘‘living with another person’’
is a fact specific determination. D’Ascanio v. D’Ascanio,
237 Conn. 481, 486, 678 A.2d 469 (1996). ‘‘The fact-
finding function is vested in the trial court with its
unique opportunity to view the evidence presented in
a totality of circumstances, i.e., including its observa-
tions of the demeanor and conduct of the witnesses
and parties, which is not fully reflected in the cold,
printed record which is available to us. Appellate review
of a factual finding, therefore, is limited both as a practi-
cal matter and as a matter of the fundamental difference
between the role of the trial court and an appellate
court. . . .
‘‘A factual finding may not be rejected on appeal
merely because the reviewing judges personally dis-
agree with the conclusion or would have found differ-
ently had they been sitting as the factfinder. . . A
factual finding may be rejected by this court only if it
is clearly erroneous.’’ (Citations omitted; internal quota-
tion marks omitted.) Kaplan v. Kaplan, 186 Conn. 387,
391–92, 441 A.2d 629 (1982).
In Kaplan, our Supreme Court considered whether
the trial court properly found that a couple was not
living together pursuant to § 46b-86 (b) where,
‘‘(a)lthough at times the defendant slept in [her signifi-
cant other’s] bedroom . . . and, [he] would often take
meals with the defendant and her children, they main-
tained completely separate households . . . .’’ (Inter-
nal quotation marks omitted.) Id., 390. Our Supreme
Court concluded that, because the question of whether
an individual is living with another person is a fact
specific determination, it could not reject the trial
court’s finding that the couple was not living together
as defined by § 46b-86 (b) because there was ample
evidence in the record to support such a finding. Id.,
392. Our Supreme Court, however, noted that there was
ample evidence in the record to support the opposite
finding as well, and that § 46b-86 (b) was ‘‘clearly
intended by the General Assembly to apply to the situa-
tion alleged by the plaintiff.’’ Id., 390–91. Indeed, the
stated purpose of the bill which was eventually enacted
as Public Acts 1977, No. 77-394, now § 46b-86 (b), was
‘‘[t]o correct the injustice of making a party pay alimony
when his or her ex-spouse is living with a person of
the opposite sex, without marrying, to prevent the loss
of support.’’ H.B. 6174, 1977 Sess.
In the present case, we conclude that the trial court
had ample evidence to support its finding that the plain-
tiff had been living with Rodriguez within the meaning
of § 46b-86 (b) since January, 2015. The couple resided
under the same roof for approximately half the week,
took many of their meals together, regularly communi-
cated by cell phone, and frequently traveled together.
Rodriguez, moreover, provided for the plaintiff’s health
insurance coverage under his own policy as a result of
the couple holding themselves out as being in a domes-
tic partnership. Further, Rodriguez allows the plaintiff
to keep a rent-free art studio at his home. The totality
of these facts form a reasonable basis to support the
court’s finding that the plaintiff has been ‘‘living with
another person’’ pursuant to § 46b-86 (b) since January,
2015. As our Supreme Court stated in Kaplan, § 46b-
86 (b) was written broadly and was clearly intended by
the legislature to encompass a factual situation such
as the present case where, although the plaintiff and
Rodriguez maintain separate homes and do not sleep
in the same residence every night, the plaintiff’s living
arrangements have changed such that she no longer
needs the same financial support as at the time of the
original alimony order. See Kaplan v. Kaplan, supra,
186 Conn. 389.
B
The plaintiff next argues that the court improperly
relied on the fact that Rodriguez provided her health
insurance coverage in concluding that the plaintiff was
living with him. We disagree.
In order to decide the merits of the defendant’s
motion, the court was required to perform a two part
analysis to determine whether alimony should be termi-
nated under the separation agreement. See Fazio v.
Fazio, supra, 162 Conn. App. 240 n.1 (finding of cohabi-
tation requires finding that alimony recipient was living
with another person and living arrangement caused
change of circumstances so as to alter financial needs
of alimony recipient). The court enumerated the facts
that it had found, which supported both a finding that
the plaintiff was living with Rodriguez and a finding
that that living arrangement had altered the plaintiff’s
financial needs. The court did not distinguish which
facts it had found supported a finding under each prong
of the analysis required by § 46b-86 (b).
There is no indication that the court conflated or
misunderstood the factual findings that it was required
to make in order to determine whether the couple was
living together pursuant to § 46b-86 (b). See De
Almeida-Kennedy v. Kennedy, 188 Conn. App. 670, 687,
205 A.3d 704 (‘‘[w]hen the decision of the trial court
does not make the factual predicates of its findings
clear, we will . . . assume that the trial court acted
properly’’ [internal quotation marks omitted]), cert.
denied, 332 Conn. 909, 210 A.3d 566 (2019). Rather, it
appears from the memorandum of decision that the
court properly considered that the plaintiff and Rodri-
guez were holding themselves out as a couple who were
in a nonmarital union as domestic partners, as they
indicated when Rodriguez added the plaintiff to his
health insurance policy, in finding that the couple was
living together pursuant to § 46b-86 (b).
The court also properly considered the attendant
financial benefits that the plaintiff received as a result
of this free health insurance coverage, among other
pertinent facts, when determining whether the plain-
tiff’s financial needs were changed as a result of her
living with Rodriguez such that the defendant’s alimony
obligation should be terminated. We, therefore, con-
clude that the court did not err in considering the cou-
ple’s health insurance policy when making its finding
that the plaintiff was living with another person. For
the foregoing reasons, we conclude that the trial court
did not err in finding that the plaintiff was living with
Rodriguez pursuant to § 46b-86 (b).
II
The plaintiff next claims that the court improperly
determined that, upon finding that the plaintiff was
living with another person, the only remedy available
under the terms of the separation agreement was to
terminate the defendant’s alimony obligation. We agree
with the trial court that the sole remedy available under
the terms of the separation agreement upon a finding
that the plaintiff was living with another person was to
terminate alimony.
The following additional facts are relevant to this
claim. Article 2 of the separation agreement between
the parties is titled ‘‘Alimony.’’ Article 2.1 (a) of the
separation agreement provides that the defendant’s ali-
mony obligation continues ‘‘until the earliest of the
[defendant’s] death, the [plaintiff’s] death, the [plain-
tiff’s] remarriage or living with another person as
defined in [Article] 2.2 . . . .’’ (Internal quotation
marks omitted.) Article 2.2 of the agreement provides
in relevant part: ‘‘The [defendant’s] obligation to pay
alimony shall terminate on the date . . . the [c]ourt
determines [the plaintiff] commenced ‘living with
another person.’ . . . For purposes of this Agreement,
the [plaintiff] shall be deemed to have been ‘living with
another person’ in the event a court of competent juris-
diction makes a finding that the alimony should termi-
nate or be reduced pursuant to the provisions of [Gen-
eral Statutes] § 46b-8[6] (b).’’ Articles 2.3, 2.4, and 2.6
provide for discrete circumstances in which the defen-
dant or the plaintiff may bring a motion to modify the
defendant’s alimony obligation, none of which include
a finding that the plaintiff is living with another person.4
After concluding that the plaintiff was living with
Rodriguez under circumstances that altered her finan-
cial needs, the court then turned to the relief available
to the defendant under the agreement. The trial court
concluded that ‘‘together as a whole, Articles 2.1 (b)
and 2.2 are clear and unambiguous and provide that
where a court finds that the recipient of the alimony
is ‘living with another person’ as defined by General
Statutes § 46b-86 (b), the obligation to pay alimony ter-
minates effective as of the date that the living with
another person commenced . . . and that neither
party has claimed any ambiguity in the agreement itself
or requested an opportunity [to] offer any credible
extrinsic evidence as to the meaning of the relevant
provisions thereof.’’ (Citation omitted.)
The court reasoned that ‘‘[w]hile the language of the
last sentence of Article 2.2 is somewhat imprecise (i.e.
‘should terminate or be reduced’), nevertheless, given
the preceding language, the court finds that the only
logical explanation is that [the reference] is merely
[intended to direct] the court to apply both the factual
and financial analysis called for in General Statutes
§ 46b-86 (b). Any other reading would simply fly in
the face of the clear intent of the parties to terminate
alimony in such circumstances, and that it was never
intended to give the court the option to modify the
alimony award. Were the court to apply that literal
reading, it would render those remedial provisions of
the agreement that call for the termination of the ali-
mony and the triggering of obligation to repay alimony
meaningless.’’ (Emphasis omitted.)
We begin our analysis by setting forth the applicable
standard of review and principles of law. ‘‘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 contract 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 connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . the language 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 interpreta-
tion 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.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Isham v. Isham, 292 Conn. 170, 180–81, 972 A.2d
228 (2009).
‘‘If a contract is unambiguous within its four corners,
the determination of what the parties intended by their
contractual commitments is a question of law [and our
review is plenary]. . . . When the language of a con-
tract is ambiguous, [however] the determination of the
parties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous.’’ (Citation omitted; internal quota-
tion marks omitted.) Remillard v. Remillard, 297 Conn.
345, 355, 999 A.2d 713 (2010).
Accordingly, ‘‘[t]he threshold determination in the
construction of a separation agreement . . . is
whether, examining the relevant provision in light of
the context of the situation, the provision at issue is
clear and unambiguous, which is a question of law over
which our review is plenary. . . . Contract language is
unambiguous when it has a definite and precise mean-
ing . . . concerning which there is no reasonable basis
for a difference of opinion . . . . The proper inquiry
focuses on whether the agreement on its face is reason-
ably susceptible of more than one interpretation. . . .
It must be noted, however, that the mere fact that the
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Isham
v. Isham, supra, 292 Conn. 181–82.
‘‘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.’’ (Internal quotation marks omit-
ted.) Parisi v. Parisi, 315 Conn. 370, 383–84, 107 A.3d
920 (2015).
The plaintiff contends that the parties intended to
incorporate the entirety of § 46b-86 (b) into the separa-
tion agreement, including the alternative remedial mea-
sures provided for in the statute, when they used the
language ‘‘alimony should terminate or be reduced pur-
suant to the provisions of General Statutes § 46b-8[6]
(b).’’ (Emphasis omitted.)
In Nation-Bailey v. Bailey, 316 Conn. 182, 187–88, 112
A.3d 144 (2015), our Supreme Court rejected a similar
argument from the plaintiff, who argued that ‘‘the agree-
ment’s reference to § 46b-86 (b) means that the alimony
award is not terminated upon cohabitation, although
that is the sole remedy 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 delin-
eation of a remedy in the agreement.’’ (Internal quota-
tion marks omitted.) The provision at issue in Nation-
Bailey read as follows: ‘‘Unallocated alimony and child
support shall be paid until the death of either party,
the [plaintiff’s] remarriage or cohabitation as defined
by . . . § 46b-86 (b), or until August 1, 2011.’’ (Internal
quotation marks omitted.) Id., 185.
Our Supreme Court rejected the plaintiff’s argument
and found that ‘‘the trial court lacked any remedial
powers to suspend the defendant’s unallocated support
obligation for the duration of the plaintiff’s cohabitation
because the plain language contained within . . . the
agreement permanently terminated the defendant’s
unallocated support obligation upon that cohabitation.’’
Id., 191. Our Supreme Court reasoned that ‘‘given the
provision’s use of the word until without further qualifi-
cation,’’ while requiring the payment of unallocated sup-
port ‘‘until the death of either party, the [plaintiff’s]
remarriage or cohabitation as defined by . . . § 46b-
86 (b), or until August 1, 2011,’’ the agreement was
clear and unambiguous, and provided for ‘‘permanent
termination of the unallocated support obligation [as]
the sole remedy upon cohabitation by the plaintiff
. . . . [T]he use of the word until, standing alone, indi-
cates that the defendant’s unallocated support obliga-
tion was terminated upon the plaintiff’s cohabitation
because the obligation 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. 3d 886 (2014) (interpreting
marital settlement agreement reserving court’s jurisdic-
tion to award spousal 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 continued) . . . .’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Id., 93–94.
The plaintiff urges us to adopt the reasoning of this
court in Fazio v. Fazio, supra, 162 Conn. App. 245, in
which we concluded that the language from a similar
provision in the parties’ separation agreement did not
convey the clear and precise intent of the parties. In
Fazio, the provision at issue was substantially similar
to the language from the present case, stating, in rele-
vant part: ‘‘Commencing on June 1, 2006, the [defen-
dant] shall pay to the [plaintiff] unallocated alimony
and child support in cash until the death of either party,
the remarriage or cohabitation of the [plaintiff] pursu-
ant to Section 46b-86 (b) of the . . . General Statutes,
or May 31, 2013, whichever event shall first occur
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Id., 238. In concluding that the agreement
was ambiguous, this court reasoned that ‘‘our Supreme
Court has indicated, albeit in dicta, that the use of the
phrase ‘pursuant to’ in a virtually identical provision of
a separation agreement might be reflective of an intent
to broadly incorporate all aspects of § 46b-86 (b), not
just the definitional language. Conversely, if the parties
had intended to reference § 46b-86 (b) solely for defini-
tional purposes, they could have used the phrase ‘as
defined by.’ Thus, our Supreme Court has suggested
that the use of ‘pursuant to’ may show an intent by
the parties to incorporate more than the definition of
‘cohabitation’ from § 46b–86 (b).’’ Id., 246.
We conclude that, unlike the provision at issue in
Fazio, the provision’s use of ‘‘pursuant to’’ in the pres-
ent case does not reflect an intent to broadly incorpo-
rate all aspects of § 46b-86 (b) and, thus, agree with the
trial court that the parties clearly and unambiguously
intended for the defendant’s alimony obligation to ter-
minate upon a court’s finding that the plaintiff had com-
menced living with another person. The only remedy
explicitly provided for in the separation agreement
upon such a finding is to terminate the defendant’s
alimony obligation. We are unpersuaded, moreover,
that the agreement’s use of the words ‘‘pursuant to’’
conveys an intent to incorporate the remedial provi-
sions of § 46b-86 (b) as suggested in Fazio. As we noted
in Fazio, the broader language may indicate an intent to
incorporate the statute. We cannot conclude, however,
that the parties in the present case intended for the
words ‘‘pursuant to’’ to incorporate the statute into the
provision in its entirety.
In the present case, the language employed by the
parties in the separation agreement to direct terminat-
ing the alimony obligation is mandatory, not permissive.
The parties first agreed that alimony shall continue
‘‘until’’ the plaintiff commences living with another per-
son. The word ‘‘until’’ suggests that the obligation
ceases to exist at a certain point in time, specifically,
when the plaintiff begins living with another person.
Further, the agreement provides that alimony ‘‘shall’’
terminate when the plaintiff commenced living with
another person. The use of the word ‘‘shall’’ usually
connotes a requirement, unlike the word ‘‘may,’’ which
implies some degree of discretion. See Kingdomware
Technologies, Inc. v. United States, U.S. , 136
S. Ct. 1969, 1977, 195 L. Ed. 2d 334 (2016). Thus, like
the separation agreement in Nation-Bailey, the agree-
ment in the present case ‘‘treats cohabitation as an
event akin to death or remarriage, both of which are
events that ordinarily terminate a periodic alimony obli-
gation absent an express provision to the contrary in the
court’s decree or incorporated settlement agreement.’’
Nation-Bailey v. Bailey, supra, 316 Conn. 195.
Further, as noted by the trial court, a finding that
alimony could be modified upon a finding of cohabita-
tion, as opposed to terminated, would be inconsistent
with the structure of the separation agreement as a
whole, which contains separate provisions governing
discrete circumstances in which one or both parties
could seek to modify the alimony obligation. We, there-
fore, agree with the trial court that the parties clearly
and unambiguously intended that the defendant’s ali-
mony obligation be terminated upon a court’s finding
that the plaintiff is living with another person.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46b-86 (b) provides in relevant part: ‘‘In an action for
divorce, dissolution 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 showing 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 arrangements cause such a change of circumstances as to alter
the financial needs of that party.’’
2
Article 2.2 of the separation agreement references General Statutes § 46b-
84 (b), titled ‘‘Parents’ obligation for maintenance of minor child. Order for
health insurance coverage.’’ Although neither party mentions this apparent
error, § 46b-84 (b) is irrelevant to the subject of Article 2.2, alimony, and
both parties refer to § 46b-86 (b) throughout their appellate briefs. We,
therefore, correct the quoted provision to reflect the correct statutory ref-
erence.
3
The plaintiff also argues that the court improperly considered the roman-
tic nature of the plaintiff’s relationship with Rodriguez in finding that the
plaintiff was living with another person pursuant to § 46b-86 (b). The plaintiff
urges us to adopt the reasoning of this court in Spencer v. Spencer, 177 Conn.
App. 504, 520, 173 A.3d 1 (2017), (‘‘because the definition of cohabitation
in § 46b-86 (b) has only two elements, neither of which is evidence of a
romantic or sexual relationship, the defendant was not required, pursuant
to the dissolution judgment, to present evidence of a romantic or sexual
relationship’’), cert. granted, 328 Conn. 903, 177 A.3d 565 (2018). On January
31, 2018, our Supreme Court granted the plaintiff’s petition for certification
to appeal. Spencer v. Spencer, 328 Conn. 903, 177 A.3d 565 (2018). One of
the issues certified by our Supreme Court was: ‘‘Did the Appellate Court
properly affirm the trial court’s finding of cohabitation on the basis of a
definition of cohabitation that does not require a romantic or sexual relation-
ship between the alimony recipient and the individual with whom they
reside?’’ (Internal quotation marks omitted.) Id. On August 5, 2019, our
Supreme Court dismissed the appeal following the death of the plaintiff and
the failure of the administrator to file a motion to substitute pursuant to
Practice Book § 62-5.
We, however, need not reach this issue in the present case. Whether the
plaintiff was ‘‘living with another person’’ is a factual determination to be
made by the trial court that will not be disturbed on appeal unless the
finding is clearly erroneous in light of the evidence and the pleadings in the
record as a whole. See, e.g., D’Ascanio v. D’Ascanio, 237 Conn. 481, 678
A.2d 469 (1996). As discussed in part I of this opinion, we conclude that
there was ample evidence in the record for the court to have concluded
that the plaintiff was living with Rodriguez, regardless of the nature of the
relationship between them.
4
Article 2.3 (b) provides in relevant part that the defendant ‘‘shall not be
entitled to bring any motion . . . the effect of which is to downward modify
his obligation to pay alimony . . . unless [the plaintiff] shall have gross
annual earned income of at least forty thousand . . . dollars . . . in any
calendar year . . . .’’ Article 2.3 (d) provides that ‘‘[a]ny decrease in the
[defendant’s] income resulting from his unilateral change of employment
shall not constitute a significant change in circumstances justifying a modifi-
cation of alimony.’’ Article 2.4 provides in relevant part that ‘‘[u]pon motion
of either party, the court shall retain jurisdiction to modify the definition
of ‘gross annual earned income’ . . . .’’ Finally, Article 2.6 provides in rele-
vant part: ‘‘In the event the [defendant] is terminated from his employment
and receives a severance package, which caused his gross annual earned
income to exceed $775,000 . . . the [plaintiff] shall have the right to move
to modify the earning cap subject to alimony of $775,000 in the year in which
the severance package is received.’’ (Internal quotation marks omitted.)