Opinion
The plaintiff, Sharon Remillard, appeals 1 from the trial court’s denial of her postdissolution motion to terminate her obligation to pay alimony to the defendant, Bradford Remillard, on the basis of the defendant’s cohabitation with an unrelated female. The plaintiff claims that the trial court improperly (1) failed to apply the criteria set forth in General Statutes § 46b-86 (b) 2 in determining whether to terminate the plaintiffs alimony obligation, and (2) interpreted the term “cоhabitation,” as used in the parties’ separation agreement, as requiring proof of a romantic or sexual relationship between the defendant and the unrelated female with whom he resides. We affirm the trial court’s decision.
The record reveals the following relevant facts and procedural background. The parties were married on November 8, 1975. On January 24, 2002, the plaintiff filed an action for the dissolution of the marriage on the ground that the marriage had broken down irretrievably with no hope of reconciliation. On October 23, 2002, the trial court rendered judgment
In 2007, the plaintiff began to suspect that the defendant was residing with an unrelated female, and, on August 17, 2007, she hired a private investigator to conduct surveillance of the defendant to dеtermine his current place of residence and whether anyone was residing with him at that residence. In September, 2007, the private investigator informed the plaintiff that the defendant was residing with Katie Crovo at 49 Iron Works Road in the town of Clinton. On the basis of this information, the plaintiff stopped paying alimony to the defendant in October, 2007, and, on February 14, 2008, the plaintiff filed a motion to terminate alimony. The defendant subsequently filеd a motion for contempt on the ground that the plaintiff was in violation of the court’s October 23, 2002 judgment for failure to pay alimony.
On June 13, 2008, the trial court held an evidentiary hearing on the parties’ motions, at which the parties testified as to their respective understandings of the term “cohabitation” as used in the separation agreement. The plaintiff testified that she understood the term “cohabitation” to meаn “living with and sharing expenses with” another person. In her view, a romantic or sexual relationship is not required to satisfy the definition of “cohabitation.” In contrast, the defendant testified that he understood the term “cohabitation” to mean living together in a manner akin to husband and wife, such that a romantic or sexual relationship is required. In addition, the parties offered conflicting testimony regarding whether the meaning of the term “cohabitation” was discussed as a group between the parties and their attorneys when they executed the separation agreement. The defendant testified that such a discussion occurred and that the attorneys explained that the term “cohabitation” had a standard legal meaning that includes a romantic or sexual component. The plaintiff testified, however, that there was no discussiоn regarding the meaning of the term “cohabitation.”
The defendant also testified as to his living arrangements. Specifically, he admitted that, since November, 2006, he had been sharing a residence with Crovo, a female to whom he is not related. He further testified that he and Crovo each pay 50 percent of the rent and utilities for the residence. The defendant denied, however, that he ever had been in a romantic or sexual relationship with Crovo. To the contrary, the defendant testified that his relationship with Crovo, who is twenty-five years younger than him, is merely that of “coworkers who happen to live together.” 3 In addition, he testified that Crovo is romantically involved with another person, and that he and Crovo rarely socialize together. Finally, the defendant testified that the house in which he and Crovo reside has three bedrooms and two bathrooms, and that he and Crovo occupy different bedrooms and use different bathrooms.
On October 16, 2008, the trial court held oral argument on the parties’ motions.
The trial court found that the term “cohabitation,” as used in the parties’ separation agreement, “would require [the defendant] to be living with another adult female in circumstances akin to marriage, or at least in a romantic [or] sexual relationship,” and that the defendant’s living arrangements did not rise to that level. Accordingly, the trial court denied the plaintiffs motion to terminate alimony. The court further remarked that, in both Krichko and Mihalyak, the party receiving alimony was in a romantic relationship with the unrelated adult with whom she resided; thus, those cases did not present the issue of whether the term “cohabitation” required a sexual or romantic component. With regard to the defendant’s motion for contempt, the court determined that the plaintiff was not in wilful contempt of the court’s October 23, 2002 judgment because the court found that the plaintiff reasonably believed that her alimony obligation had ended under the terms of the separation agreement. Accordingly, the corut denied the motion for contempt. This appeal followed. 4
The plaintiffs first claim is that the trial corut improperly failed to apply the statutory criteria set forth in § 46b-86 (b) in ruling on the plaintiffs motion to terminate alimony. Specifically, the plaintiff contends that our decision in
DeMaria
v.
DeMaria,
“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court.” (Citations omitted; internal quotation marks omitted.)
Burnham
v.
Karl & Gelb, P.C.,
In the present case, a review of the transcripts from the June 13, 2008 evidentiary hearing and the October 16, 2008 oral argument on the motions reveal that the plaintiff not only failed to raise a claim under § 46b-86 (b) but also repeatedly advised and agreed with the trial court that that statute was not at issue. First, the plaintiff failed to invoke § 46b-86 (b) in her written motion to terminate alimony. That motion provides: “Pursuant to the
[j]udgment of [the trial] court
dated October 23, 2002, the [defendant's alimony terminates upon his cohabitation with an unrelated female. The [defendant is currently cohabitating and, therefore, the [p]laintiff moves to have his alimony terminated.” (Emphasis added.) Notably, the plaintiffs motion fails to mention § 46b-86 (b) or otherwise apprise the court or the defendant that the plaintiff seeks relief under that statute. We previously have stated that “§ 46b-86 (b) is a separate and independent statutory basis for the modification of alimony and
is a claim [that] must be raised in a written motion
by the party seeking to modify the award of periodic alimony.” (Emphasis added.)
Connolly
v.
Connolly,
Moreover, during the evidentiary hearing and oral argument, the plaintiff repeatedly advised the trial court and agreed with the trial court’s conclusion that her claim was being brought pursuant to the parties’ separa
tiоn agreement and not § 46b-86 (b).
5
Clearly then, there can be
The plaintiffs seсond claim is that the trial court improperly interpreted the term “cohabitation,” as used in the parties’ separation agreement, as requiring proof of a romantic or sexual relationship. 6 The plaintiff con tends that our decision in DeMaria “clearly eschewed the more narrow, traditional view of ‘cohabitation’ . . . as ‘a dwelling together of man and woman in the same place in the manner of a husband and wife.’ ” The plaintiff further argues that “the burdеn of proving, even by circumstantial evidence, that a man and a woman, unrelated to each other, who reside under the same roof, are mere roommates or romantic partners, can be virtually insurmountable without an invasion of privacy.”
The defendant responds that the trial court properly interpreted the term “cohabitation” as requiring proof of a romantic or sexual relationship. Specifically, the defendant asserts that the separation agreement’s use of the phrase “cohabitation with [an] unrelated female”-, (emphasis added); evidences that the parties intended for the term “cohabitation” to encompass a romantic or sexual element; otherwise, it would have been unnecessary to describe the gender or relationship of the cohabitant. The defendant further argues that bоth parties were represented by counsel during the dissolution proceedings and had the opportunity to use or make reference to the broader language contained in § 46b-86 (b), i.e., “living with another person,” but, instead, agreed to use the narrower language contained in the agreement. We conclude that the trial court properly construed the term “cohabitation” as used in the parties’ separation agreement.
We begin our analysis of this claim by setting forth the applicable standard of review and principles of law. It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, “is to be regarded and construed as a contract.”
Issler
v.
Issler,
Accordingly, to determine our standard of review, we first must ascertain whether the term “cohabitation,” as used in the parties’ settlement agreement, is ambiguous. This is a question of law over which our review is plenary. See, e.g.,
Isham
v.
Isham,
In the present case, the parties’ separation agreement does not define the term “cohаbitation.” Consequently, whether such a term is ambiguous turns on whether it has varying definitions in common parlance. See
Honulik
v.
Greenwich,
supra,
In the present case, there is ample evidence in the record to support the trial court’s interрretation of the
term “cohabitation” as requiring a sexual or romantic relationship. At the evidentiary hearing, the defendant testified under oath that, when he entered into the separation
Finally, we note that the trial court, in addition to relying on the testimonial evidence, also determined that the defendant’s interpretation of the term “cohabitation” was supported by other language in the separation agreement. Specifically, the court found that the agreement’s use of the modifying phrase, “with [an] unrelated female,” evidences that the parties intended for the term “cohabitation” to require a romantic or sexual relationship. Indeed, under the agreement, the defendant could cohabitate with a related female and the condition for terminating alimony would not be triggered. Accordingly, because the trial court’s interpretation of the term “cohabitation” is supported by the evidence, and we are not “left with the definite and firm conviction that a mistake has been committed”; (internal quotation marks omitted)
Ravetto
v.
Triton Thalassic Technologies, Inc.,
supra,
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
Notes
The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 46b-86 (b) provides: “In an action for divorсe, 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 periodiс 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.”
At the time of the hearing, the defendant and Crovo were both employed at the same supermarket.
The defendant has not appealed from the trial court’s denial of his motion for contempt. The only appeal before this court is the plaintiffs appeal, which concerns the trial court’s denial of her motion to terminate alimony.
First, at the beginning of the evidentiary hearing, the trial court asked counsel the following questions: (1) “I’m only dealing with the alimony provision of [a]rticle [t]wo [of the separation agreement]?” (2) “I guess I don’t neеd financial affidavits because we’re not dealing with any financial issues. We’re just dealing with whether or not there’s been cohabitation such that the alimony would terminate, is that correct?” The plaintiffs counsel responded affirmatively to both questions. These exchanges are significant because § 46b-86 (b) requires a showing that the party receiving alimony “is living with another person under circumstances which . . . alter the finanсial needs of that party.” Thus, the response by the plaintiffs counsel that financial affidavits were unnecessary demonstrates that the plaintiff was not pursuing her claim for termination of alimony under § 46b-86 (b). Similarly, the failure of the plaintiff or the plaintiffs counsel, at the conclusion of the hearing, to respond when the trial court stated that it was its view that “it doesn’t look like we dealt with the statute here,” further indicates that the plaintiff was not pursuing a statutory claim.
Various exchanges between the trial court and the plaintiffs counsel during oral argument on the motions also confirm that the plaintiff was not seeking relief pursuant to § 46b-86 (b). Specifically, the court stated, “I’m not dealing with the statute,” and the plaintiffs counsel responded, “[r]ight.” Furthermore, the plaintiffs counsel expressly argued that the Appellate Court’s recent decision in Krichko was “exactly on point” in that the plaintiff in Krichko, “as in this case," was “not relying [on] the provisions of [#] 46b-86” but, rather, based his motion to terminate alimony “solely [оn] language in [his] separation agreement that is very, very similar to the language in the Remillards’ agreement." (Emphasis added.)
We note that the parties did not litigate whether the term “cohabitation,” as used in the parties’ separation agreement, required proof of a change in the defendant’s financial circumstances.
The sixth edition of Black’s Law Dictionary defines “cohabitation” as “[t]o live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.”