Nation-Bailey v. Bailey

• Decision Date: 23 July 2013
• Docket Number: No. 34606.,34606.
• Citation: 144 Conn.App. 319,74 A.3d 433
• Court: Connecticut Court of Appeals
• Parties: Rebecca NATION–BAILEY v. Adrian Peter BAILEY.

144 Conn.App. 319

74 A.3d 433

Rebecca NATION–BAILEY

v.Adrian Peter BAILEY.

No. 34606.

Appellate Court of Connecticut.

Argued April 8, 2013.

Decided July 23, 2013.

Adrian P. Bailey, self-represented, the appellant (defendant).

David N. Rubin, for the appellee (plaintiff).

BEAR, SHELDON and BORDEN, Js.

BEAR, J.

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 plaintiff's 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, and (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 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 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 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, 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 dissolution judgment. On April 21, 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 substantial change in circumstances was that the plaintiff and her then fiance', 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 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 suspended during the time of the plaintiff's cohabitation, but that, otherwise, he continued to owe her unallocated 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. This appeal followed.

“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 case .... 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, 308 Conn. 194, 200, 61 A.3d 449 (2013)

On appeal, the defendant claims that the court, having improperly applied the substantive terms of § 46b–86 (b), 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 plaintiff's 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 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.’ ” D'Ascanio v. D'Ascanio, 237 Conn. 481, 485–86, 678 A.2d 469 (1996). Therefore, in order to find that the plaintiff was cohabiting with Cooper, the defendant had 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. See id. at 486, 678 A.2d 469.

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 plaintiff's financial needs, for a four month period, beginning in December, 2007, thus satisfying the requirements for cohabitation contained in § 46b–86 (b).¹ Because the agreement clearly provides that alimony terminates upon death of either party, the remarriage or cohabitation of the plaintiff as defined in § 46b–86 (b), or on August 1, 2011,² we conclude that the court improperlymodified the unallocated alimony and child support order by applying § 46b–86 (b) instead of terminating such order as of the initial date of the plaintiff's cohabitation, as required by § 3(B) of the agreement incorporated by reference in the judgment. We further conclude that the court failed to make findings concerning child support for the period beginning after the date of cohabitation and to enter any necessary orders related thereto.

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, 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), to support her argument that because the agreement references § 46b–86 (b), the alimony award is not terminated upon cohabitation, although that is the sole remedy set forth in the agreement. She argues that 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. We disagree.

The cases relied on by the plaintiff do not stand for the proposition for which she argues. In Krichko, this court held that the trial court improperly had “failed to conclude that the plaintiff's alimony obligation terminated as of the date the defendant began cohabiting, pursuant to the separation agreement”; Krichko v. Krichko, supra, 108 Conn.App. at 652, 948 A.2d 1092; but, instead, had relied on § 46b–86 despite the fact that the agreement did not reference § 46b–86 and the plaintiff had not relied on § 46b–86 in his motion for modification. See id. at 649–52, 948 A.2d 1092. In Mihalyak, as in Krichko, neither the separation agreement nor the plaintiff's motion to modify alimony referenced § 46b–86 (b). Mihalyak v. Mihalyak, supra, 30 Conn.App. at 520–21, 620 A.2d 1327. We held in Mihalyak that under such circumstances, the provisions of § 46b–86 are inapplicable and that the clear terms of the agreement govern. Id. at 521, 620 A.2d 1327. Additionally, neither Mihalyak nor Krichko discussed whether a reference to § 46b–86 (b) in an agreement, specifically to define the meaning of cohabitation, would have an impact on the analysis set forth in each of those opinions.

We look to our Supreme Court's opinion in D'Ascanio v. D'Ascanio, supra, 237 Conn. 481, 678 A.2d 469, 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...