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NANCY SCHOTT v. TERRENCE JOHN SCHOTT
(AC 43541)
Elgo, Alexander and DiPentima, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the decision of the trial court denying
his motion to modify his alimony obligation. Pursuant to a separation
agreement entered into by the parties and incorporated in the court’s
judgment of dissolution, the defendant was obligated to pay alimony to
the plaintiff until, inter alia, the plaintiff’s cohabitation with another
individual. On appeal, the defendant claimed that, pursuant to the plain
language of the separation agreement, the court was obligated to termi-
nate his alimony obligation in light of evidence of the plaintiff’s cohabita-
tion. Held that the trial court improperly denied the defendant’s motion
to modify his alimony obligation: the separation agreement plainly and
unambiguously provided, in mandatory language, that the defendant’s
alimony obligation shall be terminated upon cohabitation by the plaintiff,
and the court found that, following the dissolution of the parties’ mar-
riage, the plaintiff cohabitated with another individual, which was sub-
stantiated by evidence adduced at a hearing on the motion; moreover,
although the court expressly found that the plaintiff experienced a
change in circumstances, it nonetheless failed to apply the relevant
provision of the statute (§ 46b-86 (b)) regarding cohabitation, and,
instead, sua sponte invoked § 46b-86 (a), which permits modification
of an alimony order upon a showing of a substantial change in circum-
stances, which was error, as the defendant’s postjudgment motion for
modification was premised on cohabitation pursuant to § 46b-86 (b).
Argued April 20—officially released June 15, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury and tried to the court, Hon. Robert
T. Resha, judge trial referee; judgment dissolving the
marriage and granting certain other relief; thereafter,
the court, Ficeto, J., denied the defendant’s motion to
modify alimony, and the defendant appealed to this
court. Reversed; further proceedings.
Prerna Rao, for the appellant (defendant).
Opinion
ELGO, J. The defendant, Terrence John Schott,
appeals from the judgment of the trial court denying
his postjudgment motion to modify his alimony obliga-
tion. 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 plain-
tiff, Nancy Schott, was cohabitating with another per-
son. 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 agree-
ment that the court incorporated into its April 22, 2014
judgment of dissolution (separation agreement). Pursu-
ant 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 ‘‘retroac-
tive 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 Gen-
eral 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, how-
ever, 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 lan-
guage of the separation agreement, the court was obli-
gated to terminate that obligation in light of the plain-
tiff’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 con-
tract 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 con-
nected 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 lan-
guage 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 unambig-
uous . . . 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 omit-
ted.) 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 separa-
tion agreement. Sections 5.1 and 5.2 obligate the defen-
dant to pay alimony to the plaintiff.2 Critical to this
appeal is § 5.3, which provides: ‘‘Alimony shall termi-
nate 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 mari-
tal residence, whichever occurs first.’’3 (Emphasis
added.)
We conclude that § 5.3 of the separation agreement
plainly and unambiguously provides that the defen-
dant’s alimony obligation shall be terminated upon
cohabitation by the plaintiff. As was the case in Nation-
Bailey v. Bailey, supra, 316 Conn. 195, 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 rele-
vant part that alimony ‘‘shall terminate’’ upon the plain-
tiff’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., 305. This court
rejected that argument in light of the mandatory lan-
guage utilized by the parties in the separation agree-
ment, which treated cohabitation as an event akin to
death or remarriage. Id., 321. 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 plain-
tiff commenced living with another person. The use of
the word ‘shall’ usually connotes a requirement, unlike
the word ‘may,’ which implies some degree of discre-
tion.’’ 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., 320. For those
reasons, this court concluded that ‘‘the parties clearly
and unambiguously intended that the defendant’s ali-
mony obligation be terminated upon a court’s finding
that the plaintiff is living with another person.’’ Id., 321.
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. Lucie. The plaintiff’s name is on the deed,
however the mortgage is solely in Cerone’s name.’’ The
evidence adduced at the hearing on the motion to mod-
ify substantiates those findings, and there is no dispute
that the plaintiff was cohabitating with Cerone at some
point after the dissolution judgment was rendered.
Because the separation agreement entered into by the
parties, and incorporated into the judgment of dissolu-
tion, plainly and unambiguously provides that the defen-
dant’s alimony obligation ‘‘shall terminate’’ upon the
plaintiff’s cohabitation, the court improperly denied the
defendant’s motion to modify.
In its memorandum of decision, the court expressly
found that ‘‘the plaintiff has experienced a change in
circumstances . . . .’’ The court nonetheless failed to
apply the relevant provisions of the cohabitation stat-
ute; see General Statutes § 46b-86 (b); and instead sua
sponte invoked the provisions of § 46b-86 (a), which
permits modification of an alimony order upon a show-
ing of a substantial change in circumstances. This was
error, as the defendant’s postjudgment motion for modi-
fication was premised on cohabitation pursuant to
§ 46b-86 (b), and not a substantial change in circum-
stances pursuant to § 46b-86 (a). As our Supreme Court
repeatedly has instructed, ‘‘[§] 46b-86 (b) requires only
a change of circumstances, not a substantial change as
required by § 46b-86 (a).’’ (Internal quotation marks
omitted.) D’Ascanio v. D’Ascanio, 237 Conn. 481, 486,
678 A.2d 469 (1996); see also Kaplan v. Kaplan, 185
Conn. 42, 45–46, 440 A.2d 252 (1981). Once the court
found that the plaintiff had been living with Cerone
and had experienced a change in circumstances, it was
required to grant the defendant’s motion to modify his
alimony obligation in accordance with the plain man-
date of the separation agreement.
The remaining question is the precise date on which
that obligation terminated, which requires a factual
determination as to when the plaintiff began cohabitat-
ing with Cerone. See D’Ascanio v. D’Ascanio, supra,
237 Conn. 485–86. Because the court did not make such
a finding, further proceedings are necessary to resolve
that factual issue.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
The plaintiff did not file a brief in this appeal. We, therefore, ordered
that this appeal shall be considered on the basis of the defendant’s brief
and the record alone. See Barr v. Barr, 195 Conn. App. 479, 480 n.1, 225
A.3d 972 (2020).
2
Section 5.1 of the separation agreement provides: ‘‘The [defendant] shall
pay the [plaintiff] alimony in the amount of [$175] per week beginning
with the [defendant’s] first pay-day after the [plaintiff] vacates the marital
residence. Said payment will be by bank electronic funds transfer within
48 hours of receipt of the [defendant] receiving his paycheck.’’
Section 5.2 of the separation agreement provides: ‘‘The [defendant’s] ali-
mony obligation shall increase to [$220] per week when the [plaintiff] is no
longer receiving dependent benefits from Social Security.’’
3
As our Supreme Court has observed, § 46b-86 (b) is ‘‘known as the
‘cohabitation statute,’ ’’ and defines cohabitation in relevant part as ‘‘ ‘living
with another person,’ ’’ which entails ‘‘a fact specific determination.’’ D’As-
canio v. D’Ascanio, 237 Conn. 481, 485–86, 678 A.2d 469 (1996).