Lead Opinion
Opinion
The defendant, Adrian Peter Bailey, appeals from the judgment of the trial court modifying his unallocated alimony and child support payments to the plaintiff, Rebecca Nation-Bailey, and finding him in contempt. On appeal, the defendant claims that the court improperly (1) modified, rather than terminated, his alimony payments upon the plaintiffs cohabitation pursuant to the parties’ separation agreement (agreement), which was incorporated into the judgment dissolving their marriage and contained a self-executing provision terminating alimony in the event of cohabitation, аnd (2) found him in contempt. We agree that the termination provision was self-executing and that alimony terminated when the plaintiff began cohabiting. Accordingly, we reverse the judgment of the trial court.
The following facts inform our review. The parties intermarried on July 4, 1999, and one child was bom 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 thе death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (b), or until August 1, 2011.”
Section 3 (F) provides: “In the event of the termination 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 child and
On May 25, 2010, thе defendant filed a postjudgment motion for modification of unallocated support, medical 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 dissolutionjudgment. OnApril21,2011, the defendant filed a motion to “enforce termination of unallocated 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 circumstances 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 substаntial change in circumstances was that the plaintiff and her then fiancé, Steven Cooper, had executed a lease together and that they had cohabited from December, 2007, through late March, 2008, with Cooper sharing some of the plaintiffs living expenses during that period, thus altering her financial needs. The court substantively applied § 46b-86 (b) and ordered that the
“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations casе .... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citations omitted; internal quotation marks omitted.) Tuckman v. Tuckman,
On appeal, the defendant claims that the court, having improperly applied the substantive terms of § 46b-86 (b), modified the judgment by suspending his unallocаted alimony and support payments for four months, rather than, as required by § 3 (B) of the agreement, terminating such payments upon the plaintiffs cohabitation in December, 2007. We agree.
“Section 46b-86 (b), known as the ‘cohabitation statute,’ provides in pertinent part that a court may ‘modify such judgment and suspend, reduce or terminate the
In this case, there is no dispute that the court found that the plaintiff had cohabited with Cooper, causing a change of circumstances so as to alter the plaintiffs financial needs, for a four month period, beginning in December, 2007, thus satisfying the requirements for cohabitation contained in § 46b-86 (b).
The plaintiff argues that the court’s decision was correct and the agreement was not self-executing because it specifically referenced § 46b-86 (b) and that, therefore, the court had the authority to “suspend, reduce or terminate the payment of periodic alimony”; General Statutes § 46b-86 (b); as is contemplated by the statute. The plaintiff relies on two cases, namely, Krichko v. Krichko,
We look to our Supreme Court’s opinion in D’Ascanio v. D’Ascanio, supra,
The language of the modification agreement in D’As-canio is similar to the language in the present case, in that it defines cohabitation by reference to § 46b-86 (b). In D’Ascanio, the modification agreement provided that alimony was not modifiable by either party “except that in the event that the defendant remarries or cohab-itates, as defined by statute, the alimony shall be reduced by one half ($350).” (Emphasis added; internal quotation marks omitted.) Id., 483 n.1. In the present case, the agreement provides that the defendant shall pay unallocated alimony and child support “until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by Conn. General Statutes § 46b-86 (5), or until August 1, 2011.” (Emphasis added.) We therefore conclude that D’Ascanio governs this case and that the court improperly modified the defendant’s alimony obligation pursuant to the remedies available in § 46b-86 (b), rather than terminating the plaintiffs alimony as of the initial date of cohabitation as required by § 3 (B) of the agreement, which was incorporated by reference in the judgment.
We next must consider the issue of child support following the termination of alimony, as of the initial date of cohabitation, pursuant to § 3 (F) of the agreement, which provides in part that in the “event of the termination 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.” We also are aware that the parties have resided in California since 2007
Section 46b-212h (a) provides: “The Family Support Magistrate Division or the Superior Court that has issued a support order consistent with the law of this state has and shall exercise continuing exclusive jurisdiction to modify its child support order if such order is the controlling support order and: (1) At the time of the filing of a request for modification this state is the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or (2) if this state is not the residence of the obligor, the individual obligee, оr the child for whose benefit the support order is issued, the parties consent in a record or in open court that the Family Support Magistrate Division or the Superior Court may continue to exercise jurisdiction to modify its order.”
In this case, the defendant filed a motion for modification of the unallocated alimony and child support order on May 25, 2010, and a motion to terminate unallocated alimony and child support on April 21, 2011. Both of these motions implicate child support. See generally Tomlinson v. Tomlinson,
The judgment is reversed and the case is remanded with direction to render judgment terminating the defendant’s alimony obligation as of the initial date of the plaintiffs cohabitation, and for further proceedings consistent with this opinion on the defendant’s child support obligation and on the plaintiffs motion for contempt.
In this opinion SHELDON, J., concurred.
Notes
Although the court determined that the plaintiff and Cooper signed their lease on December 9, 2007, the court may need to determine the exact date they began cohabiting.
“Black’s Law Dictionary (4th Ed. 1968) defines . . . ‘until’ in pertinent part as ‘ [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.’ ” Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc.,
In light of our conclusion that the court improperly modified the defendant’s alimоny obligation rather than terminating it as of the initial date of cohabitation, we also conclude that the trial court on remand must conduct a new hearing on the plaintiffs motion for contempt.
It is uncontested that the parties moved to California shortly after the dissolution of their marriage in 2007.
The defendant testified before the trial court that there have been fifty-six “hearings in Califomiamostly related to custody issues, since the dissolution. We’ve had two custody evaluations; the result of which is that I now have sole, legal custody of my son.” The plaintiff also acknowledged that the defendant was grаnted sole legal custody of the child, with shared physical custody to the parties, on November 1, 2010.
Dissenting Opinion
dissenting. I disagree with the majority that the trial court improperly temporarily suspended, rather than terminated, the unallocated alimony and support award contained in the judgment. I therefore dissent.
As the majority states, the defendant, Adrian Peter Bailey, challenges on appeal the trial court’s modification of his unallocated alimony and support
The majority concludes, in effect, that the judgment’s reference to “cohabitation as defined by [General Statutes] § 46b-86 (b)” means only the reference to the statutory definition of cohabitation and does not include the court’s remedial powers under that statute. I disagree. I conclude, to the contrary, that the judgment’s reference to “cohabitation as defined by [General Statutes] § 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.
1 take a moment to restate the facts as found by the court. The court found that the plaintiff and her then fiancé had lived together from December, 2007, through March, 2008—a total of four mоnths—under, in the language of the statute, “circumstances as to alter the
First, I address the scope of review. The majority’s conclusion reverses the trial court’s construction of the judgment. That presents a question of law for the court—trial and appellate—which we review de novo, in which “[t]he determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole,” to be ascertained from the language and the surrounding circumstances. (Internal quotation marks omitted.) Racsko v. Racsko,
Second, I turn to the statute itself. In this regard, I first note that the statute does not even contain the word “cohabitation.” Instead, it uses “the broader language of ‘living with another person’ rather than ‘cohabitation.’ ” DeMaria v. DeMaria,
Furthermore, the entire subsection (b) of the statute consists of one long sentence. Thus, although the statute obviously has two substantive components—(1) living together, (2) under circumstances that alter the financial needs of the alimony receiver—linguistically it links the two together in one sentence. Moreover, the statute begins with the remedial powers of the court: the court “may . . . modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party recеiving 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.” General Statutes § 46b-86 (b). Thus, the majority’s slicing of the purported definitional part from the remedial part is simply inconsistent with the language of the statute.
Additionally, it is equally inconsistent with the purpose of the statute, which is “an express grant of authority to modify or terminate alimony upon [a] showing that the receiving party is living with another person and that such living arrangements result in a change of circumstances that alter the financial needs of such party.” (Emphasis added; internal quotation marks omitted.) DeMaria v. DeMaria, supra,
Furthermore, this court has explicitly recognized, in the context of interpreting § 46b-86 (b), that “[i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to thе broader statutory scheme to ensure the coherency of our construction. ... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Blum v. Blum, supra,
Third, I examine the applicable case law. DeMaria v. DeMaria, supra,
Similarly, in Racsko, the judgment provided for alimony for a period of seven years, “nonmodifiable as to term, unless the [defendant] or [plaintiff] dies, remarries, or cohabitates as defined by statute.” Racsko v. Racsko, supra,
The majority principally relies for its conclusion on D’Ascanio v. D’Ascanio,
In D’Ascanio, thе parties had stipulated in the trial court that, if the trial court found cohabitation, it was
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.
Finally, the majority’s emphasis on the fact that the term “cohabitation” is part of a series of otherwise sеlf-executing factors—namely, death or remarriage of the receiving party—is also flawed. Section 3 (B) of the judgment, which contains the specific language at issue, provides that “[unallocated alimony and child support shall be paid until the death of either party, the [plaintiffs] remarriage or cohabitation as defined by . . . § 46b-86 (b) . . . .” (Emphasis added.) Yet it is undisputed that “child support” does not end with remarriage of the plaintiff. Thus, the majority’s reliance on the fact that death or remarriage are self-executing to terminate alimony is misplaced, because termination of child support would not be self-executing. Instead, it is apparent that, contrary to the majority’s reading of the language of the judgment, it was not so perfectly drawn as to
I therefore dissent, and would affirm the trial court’s order temporarily suspending the unallocated alimony and support.
Because I agree with the majority regarding the challenge to the support part of the judgment, I do not discuss it here.
General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, 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.”