Schott v. Schott

205 Conn.App. 237

256 A.3d 732

Nancy SCHOTT

v.Terrence John SCHOTT

AC 43541

Appellate Court of Connecticut.

Argued April 20, 2021

Officially released June 15, 2021

Prerna Rao, for the appellant (defendant).

Elgo, Alexander and DiPentima, Js.

Opinion

ELGO, J.

The defendant, Terrence John Schott, appeals from the judgment of the trial court denying his postjudgment motion to modify his alimony obligation. He claims that, pursuant to the plain terms of the parties’ separation agreement, the court was obligated to terminate that obligation once it found that the plaintiff, Nancy Schott, was cohabitating with another person. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts are not in dispute. The parties married in 1996. Following the subsequent breakdown of their marriage, they entered into a separation agreement that the court incorporated into its April 22, 2014 judgment of dissolution (separation agreement). Pursuant to §§ 5.1 and 5.3 of that agreement, the defendant was obligated to pay alimony to the plaintiff until "the death of either party, the [plaintiff's] remarriage, or the [plaintiff's] cohabitation according to the statutes ...."

On June 21, 2019, the defendant filed a postjudgment motion to modify his alimony obligation, which was predicated on the plaintiff's alleged cohabitation "with another individual for at least two years ...." The court held a hearing on the motion, at which the plaintiff testified that she had been living with Michael Cerone for approximately two years. The plaintiff also testified that she was in a romantic relationship with Cerone. At the conclusion of the hearing, the defendant asked the court to terminate his alimony obligation "retroactive as of two years for when [the plaintiff] and [Cerone] had moved in together or, alternatively, back to the date of the filing of this motion."

In its subsequent memorandum of decision, the court found that "[a]t some point [Cerone] moved into [the plaintiff's] home with her." The court further found that, "[i]n March, 2019, the plaintiff and Cerone purchased a 2800 square foot home in Port St. Lucie. The plaintiff's name is on the deed, however the mortgage is solely in Cerone's name." The court nevertheless did not make any specific finding as to precisely when the plaintiff began her cohabitation with Cerone. After invoking the substantial change in circumstances provision of General Statutes § 46b-86 (a), the court stated: "The court finds that the plaintiff's living arrangement with Cerone is such that she receives a benefit. She has an ownership interest in the Port St. Lucie home. Her expenses, however, appear to remain the same. The evidence at the hearing indicates that the plaintiff continues to pay half the household expenses, including the mortgage, and bears the expense of maintaining her animals. She is disabled and has no ability to earn beyond her disability income. Although the plaintiff has experienced a change in circumstances, the court finds that the change is not such that it warrants a modification of alimony after considering the factors set forth in [General Statutes] § 46b-82." The court thus denied the defendant's motion for modification, and this appeal followed.¹

On appeal, the defendant claims that the court improperly denied his motion to modify his alimony obligation. He contends that, pursuant to the plain language of the separation agreement, the court was obligated to terminate that obligation in light of the plaintiff's cohabitation with Cerone. We agree.

"It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts. ... When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. ... When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract. ... When the language is clear and unambiguous ... the contract must be given effect according to its terms, and the determination of the parties’ intent is a question of law." (Internal quotation marks omitted.) Nation-Bailey v. Bailey , 316 Conn. 182, 191–92, 112 A.3d 144 (2015) ; see also Gold v. Rowland , 325 Conn. 146, 157–58, 156 A.3d 477 (2017) (whether contractual language is plain and unambiguous is question of law subject to plenary review).

We begin with the relevant provisions of the separation agreement. Sections 5.1 and 5.2 obligate the defendant to pay alimony to the plaintiff.² Critical to this appeal is § 5.3, which provides: "Alimony shall terminate upon the death of either party, the [plaintiff's] remarriage, or the [plaintiff's] cohabitation according to the [s]tatutes, but in any event no later than [ten] years from the date of the [plaintiff's] vacating the marital residence, whichever occurs first."³ (Emphasis added.)

We conclude that § 5.3 of the separation agreement plainly and unambiguously provides that the defendant's alimony obligation shall be terminated upon cohabitation by the plaintiff. As was the case in Nation-Bailey v. Bailey , supra, 316 Conn. at 195, 112 A.3d 144, the separation agreement here "treats cohabitation as an event akin to death or remarriage, both of which are events that ordinarily terminate a periodic alimony obligation absent an express provision to the contrary in the court's decree or incorporated settlement agreement." Moreover, the language of § 5.3, which provides in relevant part that alimony "shall terminate" upon the plaintiff's cohabitation, is mandatory in nature.

Particularly instructive in this regard is Boreen v. Boreen , 192 Conn. App. 303, 217 A.3d 1040, cert. denied, 333 Conn. 941, 218 A.3d 1046 (2019). In Boreen , the plaintiff claimed that the court "improperly concluded that the only remedy available upon a finding that she was ‘living with another person’ was to terminate the defendant's alimony obligation." Id., at 305, 217 A.3d 1040. This court rejected that argument in light of the mandatory language utilized by the parties in the separation agreement, which treated cohabitation as an event akin to death or remarriage. Id., at 321, 217 A.3d 1040. As we explained: "[T]he language employed by the parties in the separation agreement to direct terminating the alimony obligation is mandatory, not permissive. ... [T]he agreement provides that alimony ‘shall’ terminate when the plaintiff commenced living with another person. The use of the word ‘shall’ usually connotes a requirement, unlike the word ‘may,’ which implies some degree of discretion." Id. We further noted that "[t]he only remedy explicitly provided for in the separation agreement upon ... a finding [of cohabitation] is to terminate the defendant's alimony obligation." Id., at 320, 217 A.3d 1040. For those reasons, this court concluded that "the parties clearly and unambiguously intended that the defendant's alimony obligation be terminated upon a court's finding that the plaintiff is living with another person." Id., at 321, 217 A.3d 1040. That precedent compels a similar conclusion here.

In the present case, the court found that, following the dissolution of the parties’ marriage, "[a]t some point [Cerone] moved into [the plaintiff's] home with her." The court further found that, "[i]n March, 2019, the plaintiff and Cerone purchased a 2800 square foot home in Port St....