Fazio v. Fazio

• Decision Date: 05 January 2016
• Docket Number: No. 37241.,37241.
• Citation: Fazio v. Fazio, 162 Conn. App. 236, 131 A.3d 1162 (Conn. App. 2016)
• Court: Connecticut Court of Appeals
• Parties: Madeline G. FAZIO v. Michael A. FAZIO.

162 Conn.App. 236

131 A.3d 1162

Madeline G. FAZIO

v.Michael A. FAZIO.

No. 37241.

Appellate Court of Connecticut.

Argued Oct. 19, 2015.

Decided Jan. 5, 2016.

Thomas C.C. Sargent, Westport, for the appellant(plaintiff).

Kevin F. Collins, Stamford, for the appellee(defendant).

DiPENTIMA, C.J., and PRESCOTT and HARPER, Js.

PRESCOTT, J.

This appeal requires us to interpret a separation agreement incorporated into a dissolution judgment to determine whether the parties intended by their agreement that, in the event of cohabitation, alimony must be immediately and irrevocably terminated, or whether the parties intended that the court be permitted to exercise the equitable and remedial powers set forth in General Statutes § 46b–86 (b) to consider suspending or modifying alimony instead of irrevocably terminating it.We conclude, contrary to the decision of the trial court, that the agreement at issue in this case is ambiguous and that the court should have considered extrinsic evidence of, and made additional factual findings regarding, the parties' intent before it concluded that the agreement required immediate termination of alimony.Accordingly, we reverse the judgment of the court and remand this case for further proceedings.

The plaintiff, Madeline G. Fazio, appeals from the judgment rendered by the trial court in favor of the defendant, Michael A. Fazio, on his postdissolution motion to modify or terminate his obligation to pay unallocated alimony and child support to the plaintiff pursuant to the parties' separation agreement incorporated as part of the judgment of dissolution.The plaintiff claims that the court improperly interpreted article 3.2(a) of the separation agreement to require immediate termination of the unallocated alimony and child support in the event that the plaintiff cohabitated with another person as defined by § 46b–86 (b), rather than to allow the court to exercise its remedial powers pursuant to § 46b–86 (b).

The record reveals the following relevant facts and procedural history.The parties were married on May 7, 1988, and they subsequently had three children.On February 9, 2005, the plaintiff filed a marital dissolution action on the ground that the marriage had broken down irretrievably with no hope of reconciliation.On May 19, 2006, the court rendered judgment dissolving the parties' marriage.The judgment incorporated by reference a separation agreement that the parties had signed on May 18, 2006, and that the court found to be "fair and equitable."

Article 3.2 (a) of the separation agreement provides in relevant part: "Commencing on June 1, 2006, the [defendant] 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] pursuant to Section 46b–86 (b) of the ... General Statutes, or May 31, 2013, whichever event shall first occur...."Article 3.2(b) provides in relevant part: "Commencing on June 1, 2013, the [defendant] shall pay to the [plaintiff] ... unallocated alimony and child support in cash until the death of either party, the remarriage of the [plaintiff], or November 30, 2019...."Additionally, article 3.6 of the separation agreement provides: "The [defendant's] obligation to pay alimony and support to the [plaintiff] pursuant to Article 3.2 shall be non-modifiable by either party as to the amount and duration, except (1) that the [defendant] shall have the right to seek a modification of [the] amount of alimony and support based on the [plaintiff's] earnings only in the event the [plaintiff] earns in excess of $100,000.00 gross per year and (2) the [plaintiff] shall have the right to seek a modification of the amount of alimony and support in the event the [defendant] is unemployed for a period of six months.The [plaintiff's] right to seek child support shall not be precluded if the [defendant] is unemployed."

On July 5, 2012, the defendant filed a postjudgment motion to modify or terminate unallocated alimony and child support pursuant to § 46b–86 (b) on the ground that the plaintiff was cohabitating with another person.Section 46b–86 (b) provides: "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.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."(Emphasis added.)

The plaintiff subsequently filed a motion for contempt on the ground that the defendant had failed to pay unallocated alimony and child support as provided for in the separation agreement.After a hearing on the motions and the submission of posthearing briefs, the court denied the plaintiff's motion for contempt, and granted the defendant's motion to modify or terminate unallocated alimony and child support.The court found that the plaintiff had been living with another person, Adam Monges, from December, 2011 to July, 2012, and that this living arrangement had changed the plaintiff's circumstances as to alter her financial needs because Monges had paid her between $300 and $350 per week.On the basis of those findings, the court concluded that the plaintiff was cohabitating¹ with another person as defined by § 46b–86 (b).²

The court further concluded that the separation agreement required the immediate termination of alimony in the event of the plaintiff's cohabitation.The court determined that the plain language of the separation agreement was clear and "unequivocally intended to provide that cohabitation ... would result in self-effecting termination of alimony."The court interpreted the phrase "until the ... cohabitation of the [plaintiff] pursuant to Section 46–86b of the ... General Statutes" to include only the definitional aspects of § 46b–86 (b) regarding cohabitation.According to the court, "[t]he parties could have chosen to render cohabitation an event resulting in modification or they could have incorporated the remedies as provided in ... § 46b–86 (b), but they chose to do neither."

In attempting to ascertain the parties' intent, the court relied heavily on this court's decision in Nation–Bailey v. Bailey,144 Conn.App. 319, 324, 74 A.3d 433(2013), aff'd, 316 Conn. 182, 112 A.3d 144(2015), which was decided almost one year after the defendant had moved to modify or terminate alimony in this case, but before the court had rendered its decision on his motion.In Nation–Bailey,this court was asked to interpret a provision within a separation agreement with language quite similar to the provision at issue in this case: "Unallocated alimony and child support shall be paid until the death of either party, the [plaintiff's] remarriage or cohabitation as defined byConn. General Statutes § 46b–86 (b) or until August 1, 2011."(Emphasis added.)Id., at 321, 74 A.3d 433.In that agreement, we interpreted "until" as a word of limitation equivalent to the word "termination" and, in the event of cohabitation, requiring immediate termination of unallocated alimony and child support.Id., at 327–28, 74 A.3d 433.We also concluded that the parties' use of the phrase "as defined by Conn. General Statutes § 46b–86 (b)" should be construed to import only the definitional aspects of that statute.Id., at 324–25 n. 2, 74 A.3d 433.This court was unwilling to construe that phrase as reflective of a broader intent to permit a trial court to exercise the remedial powers contained in that provision.³Id.

Tracking the reasoning of our decision in Nation–Bailey, the trial court in the present case concluded that the parties' similar use of the word "until" in article 3.2(a) clearly and unambiguously expressed the parties' intent that alimony would be immediately terminated in the event of cohabitation.The court did not, however, discuss the fact that the parties in this case had used the phrase "pursuant to Section 46b–86 (b) of the ... General Statutes," which differed from the "as defined by" language in our decision in Nation–Bailey.Because the court found that the language of article 3.2(a) was clear and required termination in the event of cohabitation, as defined by § 46b–86 (b), it stated that it had "but one option—to enforce the plain terms of the Agreement [which required immediate termination of alimony]."This appeal followed.

The plaintiff's sole claim on appeal is that the court improperly interpreted article 3.2(a) of the separation agreement to require termination in the event that the plaintiff cohabitated with another person, rather than to allow the court to exercise its remedial powers pursuant to § 46b–86 (b) and consider other remedies such as the temporary suspension or modification of alimony.The plaintiff argues that article 3.2(a) of the separation agreement incorporates § 46b–86 (b) in its entirety, affording the court the full panoply of the statute's remedial powers.In other words, if the remedial powers of § 46b–86 (b) are incorporated into the judgment of dissolution, as the plaintiff contends is the case here, the court has the discretion to modify, suspend, reduce, or terminate the alimony obligation in the event of the alimony...