REBECCA NATION-BAILEY v. ADRIAN PETER BAILEY, SC 19245

Judicial District of Stamford-Norwalk

 

      Dissolution of Marriage; Support; Cohabitation; Whether Parties’ Separation Agreement Required the Automatic Termination of Unallocated Alimony and Child Support Upon Plaintiff’s Cohabitation.  The parties were divorced in 2007.  The judgment of dissolution incorporated the parties’ separation agreement, which provided in § 3 (B) that the defendant must pay the plaintiff unallocated alimony and child support until the plaintiff’s remarriage or cohabitation as defined by General Statutes § 46b-86 (b).  Section 46b-86 (b) provides in part that a trial court may “suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person. . . .”  The defendant filed a motion to modify his obligation to pay unallocated alimony and support, and the plaintiff filed a motion for contempt, claiming that the defendant had willfully failed to make such payments pursuant to the agreement.  The trial court found that there had been a substantial change in circumstances warranting a reduction in the defendant’s support obligations due to the plaintiff’s cohabitation with her fiancé for four months.  The court determined that the defendant’s support obligations had been suspended only during the time of the plaintiff’s cohabitation and that the defendant was in contempt for not having paid any unallocated support for a six month period prior to his filing of the motion for modification.  On appeal, the defendant argued that the trial court improperly suspended his support obligations for four months rather than terminating his obligations upon the plaintiff’s cohabitation.  The Appellate Court (144 Conn. App. 319) agreed, finding that, because § 3 (B) of the agreement provided that unallocated alimony and support shall be paid until the plaintiff’s cohabitation, it clearly required the automatic termination of such support as of the initial date of the plaintiff’s cohabitation.  In coming to that conclusion, the Appellate Court rejected the plaintiff’s contention that the agreement was not self-executing because it specifically referred to § 46b-86 (b) and that, therefore, the trial court had the authority to “suspend, reduce or terminate the payment of periodic alimony” pursuant to the statute.  The Appellate Court reasoned that the agreement’s reference to § 46b-86 (b) merely provided a definition for the term “cohabitation” and that once the plaintiff cohabited as defined by the statute, the defendant’s obligation to pay her unallocated alimony and support terminated automatically because, under the plain language of § 3 (B), the sole consequence of the plaintiff’s cohabitation is the immediate termination of support payments.  In this appeal, the Supreme Court will decide whether the Appellate Court correctly determined that the trial court improperly suspended the payment of unallocated alimony and support for four months, rather than terminating such payments in accordance with § 3 (B) of the separation agreement.