Nation-Bailey v. Bailey
A separation agreement's provision terminating alimony in the event of cohabitation, referencing the definition in Connecticut General Statutes §46b-86(b), was self-executing and should have been enforced by the trial court after finding that the plaintiff had cohabitated as defined in the act. The defendant, Adrian Bailey, appealed from the trial court's judgment modifying his unallocated alimony and child support payments to the plaintiff, Rebecca Nation-Bailey, and finding him in contempt. The defendant argued that the court improperly found him in contempt and modified rather than terminated his alimony payments upon the plaintiff's cohabitation pursuant to the parties' separation agreement, which was incorporated into the judgment dissolving their marriage and contained a self-executing provision terminating alimony in the event of cohabitation. The majority of the Appellate Court panel reversed the judgment, agreeing that the termination provision was self-executing and that alimony terminated when the plaintiff began cohabitating. The majority found the provision similar to that in the 1996 Supreme Court decision in D'Ascanio v. D'Ascanio. D'Ascanio governed this case. The trial court found that the plaintiff cohabitated with her fiancé, causing a change of circumstances so as to alter her financial needs for a four month period beginning in Dec. 2007, thus satisfying the requirements for cohabitation in C.G.S. §46b-86(b). Because the parties' separation agreement clearly provided that alimony terminates upon death of either party, the remarriage or cohabitation of the plaintiff as defined in C.G.S. §46b-86(b), or on Aug. 1, 2011, the court improperly modified the unallocated alimony and child support order by applying C.G.S. §46b-86(b) instead of terminating such order as of the date of the plaintiff's cohabitation, as required by the agreement. The court failed to make findings concerning child support following the cohabitation and to enter related orders. Connecticut, not California where the parties now resided, had jurisdiction over child support. Given the defendant's motions implicating child support, his argument that he did not agree to Connecticut's continuing jurisdiction over child support, was disingenuous. The matter was remanded. Judge Borden dissented, disagreeing that the specific reference to C.G.S. §46b-86(b), somehow deprived the court of statutory powers and finding unpersuasive the majority's reliance on D'Ascanio, use of the word "until" in the judgment and reference to cohabitation in the list of purportedly self-executing termination of alimony contingencies.