Schott v. Schott, 205 Conn. App. 237 (2021) (cohabitation under § 46b-86(b) & separation agreement language regarding termination)
Officially released June 15, 2021
In Short: Where a separation agreement indicates that alimony will terminate upon cohabitation as defined by statute, rather than be modifiable based on the remedies available in the statute, termination is mandatory once the criteria for cohabitation are met under § 46b-86(b).
The parties married in 1996 and were divorced pursuant to separation agreement in 2014. Alimony was to terminate upon death, remarriage “or [Wife’s] cohabitation according to the statutes …”
Husband filed a post-judgment motion to modify alimony predicated on Wife’s alleged cohabitation over the prior two years. At the evidentiary hearing on Husband’s motion, Wife testified that she had been living with a man in a romantic relationship for approximately two years. Husband requested that alimony terminate retroactive to the date of cohabitation or to the date of the motion.
The trial court issued a memorandum of decision finding that Wife had begun cohabitating without finding a precise date of cohabitation. The trial court found that Wife’s living arrangement provided her a financial benefit, but that she is disabled and that her change in circumstances did not warrant modification after consideration of the factors in § 46b-82.
Husband appealed. Husband argued that the plain language of the separation agreement required the trial court to terminate the alimony obligation in light of Wife’s cohabitation.
Separation agreements are to be construed as contracts, and contracts, where unambiguous, do not permit the court to look beyond the four-corners. Here, the Appellate Court found that the contract was unambiguous, stating that alimony would terminate upon cohabitation according to the statute, rather than implicate the statute’s other remedies, equating cohabitation with death or remarriage.
The Appellate Court held that the trial court erred in applying § 46b-86(a), which requires a substantial change in circumstances, rather than applying § 46b-86(b) which was pled by Husband and which requires only a change in circumstances, not a substantial change. “Once the court found that [Wife] had been living with [her paramour] and had experienced a change in circumstances, it was required to grant [Husband’s] motion to modify his alimony obligation in accordance with the plain mandate of the separation agreement.”
Because the trial court did not find a specific date of cohabitation, the matter was remanded for a factual finding as to when cohabitation began.
