Nation-Bailey v. Bailey

• Citation: 112 A.3d 144,316 Conn. 182
• Decision Date: 21 April 2015
• Docket Number: No. 19245.,19245.
• Court: Supreme Court of Connecticut
• Parties: Rebecca NATION–BAILEY v. Adrian Peter BAILEY.

316 Conn. 182

112 A.3d 144

Rebecca NATION–BAILEY

v.Adrian Peter BAILEY.

No. 19245.

Supreme Court of Connecticut.

Argued Dec. 3, 2014.

Decided April 21, 2015.

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

Roger K. Smith, pro hac vice, with whom, on the brief, were Robert Jon Hendricks, pro hac vice, and Bernard J. Garbutt III, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ROBINSON, J.

The sole issue in this certified appeal is whether a separation agreement that requires the payment of unallocated alimony and child support “until the death of either party, the [w]ife's remarriage or cohabitation as defined by [General Statutes] § 46b–86 (b),”¹ terminates the support obligation permanently upon the wife's cohabitation, or whether that agreement affords the trial court discretion to suspend that obligation for the cohabitation period, which in this case lasted approximately four months. The plaintiff, Rebecca Nation–Bailey, appeals, upon our grant of her petition for certification,² from the judgment of the Appellate Court reversing the judgment of the trial court and remanding the case with direction to, inter alia, render judgment terminating the obligation of the defendant, Adrian Peter Bailey, to pay the plaintiff alimony “as of the initial date of the plaintiff's cohabitation....” Nation–Bailey v. Bailey, 144 Conn.App. 319, 330, 74 A.3d 433 (2013). On appeal, the plaintiff claims that the Appellate Court improperly concluded that § 3(B) of the parties' separation agreement (agreement), which was incorporated into the judgment dissolving their marriage, “mandated the permanent cessation of unallocated ... support upon a finding of cohabitation by the plaintiff,” because, inter alia, the agreement: (1) did not provide that the unallocated support obligation was nonmodifiable; and (2) includes § 46b–86 (b) by reference, thus incorporating the trial court's remedial authority under that statute to modify, suspend, or terminate the alimony obligation. We conclude that the plaintiff's reading of the agreement is inconsistent with its plain and unambiguous language. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court's opinion aptly sets forth the following undisputed facts and procedural history. “The parties [married] 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 ... § 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 [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.’

“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.” Nation–Bailey v. Bailey, supra, 144 Conn.App. at 321–23, 74 A.3d 433.

The defendant appealed from the judgment of the trial court to the Appellate Court. In a divided decision, the Appellate Court reversed the judgment of the trial court. Id., at 330, 74 A.3d 433. The Appellate Court majority agreed with the defendant's claim that the trial court had “improperly applied the substantive terms of § 46b–86 (b), [and] 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.” Id., at 323, 74 A.3d 433. Noting that the fact of cohabitation, as defined by § 46b–86 (b) and D'Ascanio v. D'Ascanio, 237 Conn. 481, 485–86, 678 A.2d 469 (1996), was undisputed for purposes of the appeal, the Appellate Court concluded that the agreement “clearly provides that alimony terminates upon [the] death of either party, the remarriage or cohabitation of the plaintiff as defined in § 46b–86 (b), or on August 1, 2011....” (Footnote omitted.) Nation–Bailey v. Bailey, supra, 144 Conn.App. at 324, 74 A.3d 433 ; see also id., at 324 n. 2, 74 A.3d 433 (citing Black's Law Dictionary [4th Ed.1968] for definition of “until” in determining meaning of agreement).

In so concluding, the Appellate Court rejected the plaintiff's argument that the agreement'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 delineation of a remedy in the agreement.” Nation–Bailey v. Bailey, supra, 144 Conn.App. at 325, 74 A.3d 433. The Appellate Court relied on this court's decision in D'Ascanio v. D'Ascanio, supra, 237 Conn. 481, 678 A.2d 469,³ and disagreed with the plaintiff's reliance on its decisions in 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). Nation–Bailey v. Bailey, supra, at 326–28, 74 A.3d 433. Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case “with direction to render judgment terminating the defendant's alimony obligation as of the initial date of the plaintiff's cohabitation, and for further proceedings consistent with this opinion on the defendant's child support obligation⁴ and on the plaintiff's motion for contempt.”⁵ (Footnote added.) Id., at 330, 82 A.3d 625. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the plaintiff claims that the Appellate Court improperly concluded that the use of the word “until” in § 3(B) of the agreement “mandated the permanent cessation of unallocated alimony and child support upon a finding of cohabitation by the plaintiff.” Citing, inter alia, the Appellate Court's decision in Pite v. Pite, 135 Conn.App. 819, 43 A.3d 229, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012), the plaintiff argues that this was an improper construction because the agreement lacks a clear and unambiguous provision rendering the payment of unallocated support nonmodifiable as to term or amount. Thus, the plaintiff contends that the fact that the agreement is modifiable means that the use of the word “until” in § 3(B) does not by itself mandate termination of unallocated support. The plaintiff relies on Scoville v. Scoville, 179 Conn. 277, 426 A.2d 271 (1979), for the proposition that a trial court retains the authority, when intervening circumstances warrant, to extend an alimony obligation beyond a date of termination contained in a judgment of dissolution. The plaintiff further relies on Judge Borden's opinion dissenting from the judgment of the Appellate Court; see footnote 5 of this opinion; and argues that the reference to § 46b–86 (b) in § 3(B) of the agreement gave the trial court access to the “ ‘full panoply of remedies' ” under the statute, such as modification, rather than mandating termination of alimony upon a finding of cohabitation.

In response, the defendant contends that the Appellate Court properly enforced, rather than “rewriting,” the unambiguous terms of § 3(B) of the agreement.⁶ The defendant contends that the word “until,” as used in § 3(B) of the agreement, is plainly and unambiguously a “word of limitation” that “establish[es] ... that upon [the] ...