Fazio v. Fazio ( 2016 )

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MADELINE G. FAZIO v. MICHAEL A. FAZIO
(AC 37241)
DiPentima, C. J., and Prescott and Harper, Js.
Argued October 19, 2015—officially released January 5, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; Emons, J. [motion for
modification; motion for contempt].)
Thomas C. C. Sargent, for the appellant (plaintiff).
Kevin F. Collins, for the appellee (defendant).
Opinion
PRESCOTT, J. This appeal requires us to interpret a
separation agreement incorporated into a dissolution
judgment to determine whether the parties intended
by their agreement that, in the event of cohabitation,
alimony must be immediately and irrevocably termi-
nated, or whether the parties intended that the court
be permitted to exercise the equitable and remedial
powers set forth in General Statutes § 46b-86 (b) to
consider suspending or modifying alimony instead of
irrevocably terminating it. We conclude, contrary to the
decision of the trial court, that the agreement at issue
in this case is ambiguous and that the court should have
considered extrinsic evidence of, and made additional
factual findings regarding, the parties’ intent before it
concluded that the agreement required immediate ter-
mination of alimony. Accordingly, we reverse the judg-
ment of the court and remand this case for further
proceedings.
The plaintiff, Madeline G. Fazio, appeals from the
judgment rendered by the trial court in favor of the
defendant, Michael A. Fazio, on his postdissolution
motion to modify or terminate his obligation to pay
unallocated alimony and child support to the plaintiff
pursuant to the parties’ separation agreement incorpo-
rated as part of the judgment of dissolution. The plaintiff
claims that the court improperly interpreted article 3.2
(a) of the separation agreement to require immediate
termination of the unallocated alimony and child sup-
port in the event that the plaintiff cohabitated with
another person as defined by § 46b-86 (b), rather than
to allow the court to exercise its remedial powers pursu-
ant to § 46b-86 (b).
The record reveals the following relevant facts and
procedural history. The parties were married on May
7, 1988, and they subsequently had three children. On
February 9, 2005, the plaintiff filed a marital dissolution
action on the ground that the marriage had broken
down irretrievably with no hope of reconciliation. On
May 19, 2006, the court rendered judgment dissolving
the parties’ marriage. The judgment incorporated by
reference a separation agreement that the parties had
signed on May 18, 2006, and that the court found to be
‘‘fair and equitable.’’
Article 3.2 (a) of the separation agreement provides
in relevant part: ‘‘Commencing on June 1, 2006, the
[defendant] shall pay to the [plaintiff] unallocated ali-
mony and child support in cash until the death of either
party, the remarriage or cohabitation of the [plaintiff]
pursuant to Section 46b-86 (b) of the . . . General Stat-
utes, or May 31, 2013, whichever event shall first occur
. . . .’’ Article 3.2 (b) provides in relevant part: ‘‘Com-
mencing on June 1, 2013, the [defendant] shall pay to
the [plaintiff] . . . unallocated alimony and child support
in cash until the death of either party, the remarriage
of the [plaintiff], or November 30, 2019 . . . .’’ Addi-
tionally, article 3.6 of the separation agreement pro-
vides: ‘‘The [defendant’s] obligation to pay alimony and
support to the [plaintiff] pursuant to Article 3.2 shall
be non-modifiable by either party as to the amount and
duration, except (1) that the [defendant] shall have the
right to seek a modification of [the] amount of alimony
and support based on the [plaintiff’s] earnings only in
the event the [plaintiff] earns in excess of $100,000.00
gross per year and (2) the [plaintiff] shall have the right
to seek a modification of the amount of alimony and
support in the event the [defendant] is unemployed for
a period of six months. The [plaintiff’s] right to seek
child support shall not be precluded if the [defendant]
is unemployed.’’
On July 5, 2012, the defendant filed a postjudgment
motion to modify or terminate unallocated alimony and
child support pursuant to § 46b-86 (b) on the ground
that the plaintiff was cohabitating with another person.
Section 46b-86 (b) provides: ‘‘In an action for divorce,
dissolution of marriage, legal separation or annulment
brought by a spouse, in which a final judgment has
been entered providing for the payment of periodic
alimony by one party to the other spouse, the Superior
Court may, in its discretion and upon notice and hear-
ing, modify such judgment and suspend, reduce or ter-
minate the payment of periodic alimony upon a
showing that the party receiving the periodic alimony
is living with another person under circumstances
which the court finds should result in the modifica-
tion, suspension, reduction or termination of alimony
because the living arrangements cause such a change
of circumstances as to alter the financial needs of that
party. In the event that a final judgment incorporates
a provision of an agreement in which the parties agree
to circumstances, other than as provided in this subsec-
tion, under which alimony will be modified, including
suspension, reduction, or termination of alimony, the
court shall enforce the provision of such agreement
and enter orders in accordance therewith.’’ (Empha-
sis added.)
The plaintiff subsequently filed a motion for contempt
on the ground that the defendant had failed to pay
unallocated alimony and child support as provided for
in the separation agreement. After a hearing on the
motions and the submission of posthearing briefs, the
court denied the plaintiff’s motion for contempt, and
granted the defendant’s motion to modify or terminate
unallocated alimony and child support. The court found
that the plaintiff had been living with another person,
Adam Monges, from December, 2011 to July, 2012, and
that this living arrangement had changed the plaintiff’s
circumstances as to alter her financial needs because
Monges had paid her between $300 and $350 per week.
On the basis of those findings, the court concluded that
the plaintiff was cohabitating1 with another person as
defined by § 46b-86 (b).2
The court further concluded that the separation
agreement required the immediate termination of ali-
mony in the event of the plaintiff’s cohabitation. The
court determined that the plain language of the separa-
tion agreement was clear and ‘‘unequivocally intended
to provide that cohabitation . . . would result in self-
effecting termination of alimony.’’ The court interpreted
the phrase ‘‘until the . . . cohabitation of the [plaintiff]
pursuant to Section 46-86b of the . . . General Stat-
utes’’ to include only the definitional aspects of § 46b-
86 (b) regarding cohabitation. According to the court,
‘‘[t]he parties could have chosen to render cohabitation
an event resulting in modification or they could have
incorporated the remedies as provided in . . . § 46b-
86 (b), but they chose to do neither.’’
In attempting to ascertain the parties’ intent, the court
relied heavily on this court’s decision in Nation-Bailey
v. Bailey, 144 Conn. App. 319, 324, 74 A.3d 433 (2013),
aff’d, 316 Conn. 182, 112 A.3d 144 (2015), which was
decided almost one year after the defendant had moved
to modify or terminate alimony in this case, but before
the court had rendered its decision on his motion. In
Nation-Bailey, this court was asked to interpret a provi-
sion within a separation agreement with language quite
similar to the provision at issue in this case: ‘‘Unallo-
cated alimony and child support shall be paid until
the death of either party, the [plaintiff’s] remarriage
or cohabitation as defined by Conn. General Statutes
§ 46b-86 (b) or until August 1, 2011.’’ (Emphasis added.)
Id., 321. In that agreement, we interpreted ‘‘until’’ as a
word of limitation equivalent to the word ‘‘termination’’
and, in the event of cohabitation, requiring immediate
termination of unallocated alimony and child support.
Id., 327–28. We also concluded that the parties’ use of
the phrase ‘‘as defined by Conn. General Statutes § 46b-
86 (b)’’ should be construed to import only the defini-
tional aspects of that statute. Id., 324–25 n.2. This court
was unwilling to construe that phrase as reflective of
a broader intent to permit a trial court to exercise the
remedial powers contained in that provision.3 Id.
Tracking the reasoning of our decision in Nation-
Bailey, the trial court in the present case concluded
that the parties’ similar use of the word ‘‘until’’ in article
3.2 (a) clearly and unambiguously expressed the parties’
intent that alimony would be immediately terminated
in the event of cohabitation. The court did not, however,
discuss the fact that the parties in this case had used
the phrase ‘‘pursuant to Section 46b-86 (b) of the . . .
General Statutes,’’ which differed from the ‘‘as defined
by’’ language in our decision in Nation-Bailey. Because
the court found that the language of article 3.2 (a) was
clear and required termination in the event of cohabita-
tion, as defined by § 46b-86 (b), it stated that it had
‘‘but one option—to enforce the plain terms of the
Agreement [which required immediate termination of
alimony].’’ This appeal followed.
The plaintiff’s sole claim on appeal is that the court
improperly interpreted article 3.2 (a) of the separation
agreement to require termination in the event that the
plaintiff cohabitated with another person, rather than
to allow the court to exercise its remedial powers pursu-
ant to § 46b-86 (b) and consider other remedies such
as the temporary suspension or modification of ali-
mony. The plaintiff argues that article 3.2 (a) of the
separation agreement incorporates § 46b-86 (b) in its
entirety, affording the court the full panoply of the stat-
ute’s remedial powers. In other words, if the remedial
powers of § 46b-86 (b) are incorporated into the judg-
ment of dissolution, as the plaintiff contends is the case
here, the court has the discretion to modify, suspend,
reduce, or terminate the alimony obligation in the event
of the alimony recipient’s cohabitation.
The defendant argues that the court correctly inter-
preted article 3.2 (a) to require immediate termination
in the event of cohabitation, because ‘‘until’’ is a term
of limitation connoting termination and § 46b-86 (b)
was referenced in the provision only for definitional
purposes. We note that although the defendant makes
this argument on appeal, his argument is belied by the
language he employed in his motion to the court, which
sought modification or termination of the unallocated
alimony and child support. On three occasions in his
roughly page and a half motion, the defendant implored
the court to utilize its remedial powers pursuant to
§ 46b-86 (b) ‘‘to suspend, reduce, or terminate the unal-
located alimony . . . .’’
We conclude that the court improperly interpreted
article 3.2 (a) of the separation agreement as clearly
and unambiguously requiring termination of unallo-
cated alimony and child support in the event of the
plaintiff’s cohabitation because we determine that the
language used in article 3.2 (a) is ambiguous. Accord-
ingly, the court should have determined the parties’
intent in light of all the available extrinsic evidence and
the circumstances surrounding the formation of the
separation agreement in determining whether article 3.2
(a) incorporates the remedial aspects of § 46b-86 (b).
We begin our analysis by setting forth the applicable
standard of review and principles of law. ‘‘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 trans-
action. . . . [T]he intent of the parties is to be ascer-
tained 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 interpreta-
tion of a contract is possible, the court need not look
outside the four corners of the contract. . . . Extrinsic
evidence is always admissible, however, to explain an
ambiguity appearing in the instrument.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Isham v. Isham, 292 Conn. 170, 180–81, 972 A.2d
228 (2009).
‘‘If a contract is unambiguous within its four corners,
the determination of what the parties intended by their
contractual commitments is a question of law [and our
review is plenary]. . . . When the language of a con-
tract is ambiguous, [however] the determination of the
parties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous.’’ (Citation omitted; internal quota-
tion marks omitted.) Remillard v. Remillard, 297 Conn.
345, 355, 999 A.2d 713 (2010).
Accordingly, ‘‘[t]he threshold determination in the
construction of a separation agreement . . . is
whether, examining the relevant provision in light of
the context of the situation, the provision at issue is
clear and unambiguous, which is a question of law over
which our review is plenary. . . . Contract language is
unambiguous when it has a definite and precise mean-
ing . . . concerning which there is no reasonable basis
for a difference of opinion . . . . The proper inquiry
focuses on whether the agreement on its face is reason-
ably susceptible of more than one interpretation. . . .
It must be noted, however, that the mere fact that the
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Isham
v. Isham, supra, 292 Conn. 181–82.
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Internal quotation marks omit-
ted.) Parisi v. Parisi, 315 Conn. 370, 383–84, 107 A.3d
920 (2015).
Applying the foregoing principles to the present mat-
ter, we conclude that the language used in article 3.2
(a) of the separation agreement is ambiguous. At the
outset, it is important to note that, after the court issued
its memorandum of decision, our Supreme Court
affirmed this court’s decision in Nation-Bailey. Nation-
Bailey v. Bailey, 316 Conn. 182, 112 A.3d 144 (2015).
In so doing, the Supreme Court agreed with our court
that the word ‘‘until,’’ standing alone, indicates termina-
tion, and that ‘‘as defined by’’ incorporates only the
definitional aspects of § 46b-86 (b). Id., 193–95, 197–98.
As part of its analysis of whether the parties in
Nation-Bailey had intended to incorporate the remedial
aspects of § 46b-86 (b) into the agreement through their
use of the phrase ‘‘as defined by,’’ the Supreme Court
reasoned that ‘‘had the parties intended to import the
remedial aspect of § 46b-86 (b), in addition to its defini-
tional portion, they could have used more expansive
reference terms such as ‘in accordance with’ or ‘pursu-
ant to.’ ’’ Id., 197. Accordingly, presaging this case, our
Supreme Court has indicated, albeit in dicta, that the
use of the phrase ‘‘pursuant to’’ in a virtually identical
provision of a separation agreement might be reflective
of an intent to broadly incorporate all aspects of § 46b-
86 (b), not just the definitional language. Conversely,
if the parties had intended to reference § 46b-86 (b)
solely for definitional purposes, they could have used
the phrase ‘‘as defined by.’’ Thus, our Supreme Court
has suggested that the use of ‘‘pursuant to’’ may show
an intent by the parties to incorporate more than the
definition of ‘‘cohabitation’’ from § 46b-86 (b).
In considering whether ‘‘pursuant to’’ incorporates
the remedial aspects of § 46b-86 (b), we turn to the
dictionary definition of the phrase. ‘‘We often consult
dictionaries in interpreting contracts, including separa-
tion agreements, to determine whether the ordinary
meanings of the words used therein are plain and unam-
biguous, or conversely, have varying definitions in com-
mon parlance.’’ (Internal quotation marks omitted.) Id.,
193. Black’s Law Dictionary (9th Ed. 2009) defines ‘‘pur-
suant to’’ as ‘‘[i]n compliance with; in accordance with;
under . . . [a]s authorized by . . . [i]n carrying out
. . . .’’ Ballentine’s Law Dictionary (3d Ed. 1969)
defines ‘‘pursuant to’’ as ‘‘[a]cting or done in conse-
quence or in prosecution (of anything); hence, agree-
able; conformable; following; according.’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003) defines
‘‘pursuant to’’ as ‘‘in carrying out: in conformity with:
according to.’’ See id. (defining ‘‘according to’’ as ‘‘1: in
conformity with 2: as stated or attested by 3: depending
on’’ and defining ‘‘conformity’’ as ‘‘action in accordance
with some specified standard or authority’’). Accord-
ingly, the use of the phrase ‘‘pursuant to,’’ standing
alone, suggests that the language modified by that
phrase is intended to conform to and comply with the
statute in its entirety. In the present case, ‘‘pursuant
to’’ modifies ‘‘cohabitation,’’ and, therefore, if viewed
in isolation, that phrase arguably demonstrates an
intent by the parties that the court may exercise its
equitable remedial powers in the event of the plain-
tiff’s cohabitation.
The meaning of ‘‘pursuant to,’’ however, is muddied
by its context in article 3.2 (a). Similar to the language
in Nation-Bailey, ‘‘the agreement 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.’’ (Emphasis added.) Nation-Bailey v. Bai-
ley, supra, 316 Conn. 195. On the one hand, ‘‘pursuant
to’’ reasonably could be interpreted to be ‘‘an express
provision to the contrary,’’ but, on the other hand, the
grammatical arrangement of the provision as a whole
makes it unclear.
According to article 3.2 (a), the defendant was
required to pay unallocated alimony and child support
‘‘until the death of either party, the remarriage or cohab-
itation of the [plaintiff] pursuant to Section 46b-86 (b)
. . . or May 31, 2013 . . . .’’ ‘‘[R]emarriage’’ and
‘‘cohabitation’’ are listed together, not as two separate
events, but as equals. There is a default presumption
that an alimony obligation terminates upon the alimony
recipient’s remarriage in instances where such a result
would not conflict with the terms of the dissolution
decree. See Williams v. Williams, 276 Conn. 491, 499–
500, 886 A.2d 817 (2005). In the present case, the terms
of the separation agreement support the default pre-
sumption that alimony terminates upon the alimony
recipient’s remarriage in light of the use of the word
‘‘until.’’ Accordingly, it could reasonably be inferred
from the linguistic proximity between ‘‘cohabitation’’
and ‘‘remarriage,’’ that alimony must terminate in the
event of remarriage or cohabitation, especially because
the two other circumstances triggering immediate ter-
mination, death and a definitive date, flank ‘‘cohabita-
tion’’ on either side.
Furthermore, a ‘‘contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . .’’ (Internal quotation marks omitted.)
Parisi v. Parisi, supra, 315 Conn. 384. Article 3.6 of
the separation agreement directly modifies article 3.2,
stating that article 3.2 is ‘‘non-modifiable by either party
as to the amount and duration . . . .’’ Article 3.6 clearly
details the two limited circumstances, neither of which
is relevant here, under which the parties may seek a
modification of the amount of unallocated alimony and
child support that the defendant was obligated to pay
to the plaintiff pursuant to article 3.2 (a). In neither of
the exceptions to the nonmodification provision is the
defendant expressly allowed to seek a modification in
the amount of unallocated alimony and child support
on the basis of the plaintiff’s cohabitation with another
person. On the basis of article 3.6, modification of the
amount and duration of unallocated alimony and child
support is not permitted in the event of the plaintiff’s
cohabitation with another person, implying that termi-
nation is the only remedy available. Thus, although the
meaning of ‘‘pursuant to,’’ by itself is clear, article 3.6
further obscures the clear intent of article 3.2 (a).
Article 3.2 (a) must also be read in light of article 3.2
(b), an alimony provision in the separation agreement
that makes no mention of cohabitation. Pursuant to
article 3.2 (b), between June 1, 2013 and November
30, 2019, the defendant is obligated to pay unallocated
alimony and child support until either parties’ death,
the plaintiff’s remarriage, or November 30, 2019. Cohab-
itation is not listed as one of the events that would
affect the defendant’s obligation to pay alimony. This
presents two issues, both of which add to the ambiguity
of the language used in article 3.2 (a). First, because
the defendant appears to be obligated to pay alimony
even if the plaintiff cohabitates during this time period,
it may be argued that the defendant’s obligation to pay
unallocated alimony and child support exists during
this time even if it was terminated prior to June 1, 2013,
on account of the plaintiff’s cohabitation. Although it
seems unlikely that the parties would have intended or
contemplated this scenario, it is arguably possible in
light of the absence of cohabitation language in article
3.2 (b).
Second, if the plaintiff had first cohabitated with
Monges during the time frame covered by article 3.2
(b) instead of when she did, termination of unallocated
alimony and child support would not be required, and
possibly not even permitted. Our Supreme Court has
allowed a party obligated to pay alimony to request,
pursuant to § 46b-86 (b), that alimony be suspended,
reduced, or terminated in the event of cohabitation in
cases where a dissolution judgment requires payment
of alimony, but contains no provision regarding the
effect of cohabitation on the obligation to pay alimony.
See Kaplan v. Kaplan, 186 Conn. 387, 388–89, 441 A.2d
629 (1982) (allowing plaintiff to seek modification of
alimony, pursuant to § 46b-86 [b], because plaintiff was
ordered to pay alimony but dissolution judgment con-
tained no provision regarding effect of cohabitation on
obligation to pay alimony). This court, however, has
held that, because the provisions in an incorporated
separation agreement prevail over § 46b-86 (b), if the
incorporated separation agreement limits modification
of the amount or duration of alimony, and does not
make an exception for modification in the event of
cohabitation, the court does not have access to its reme-
dial powers pursuant to § 46b-86 (b). See Wichman v.
Wichman, 49 Conn. App. 529, 533, 714 A.2d 1274, (‘‘[w]e
find nothing in the legislative history [of § 46b-86 (b)]
cited by the defendant, however, that would permit the
trial court to modify a judgment based on cohabitation
when the judgment itself precludes modification for
any reason other than remarriage or death’’), cert.
denied, 247 Conn. 910, 719 A.2d 906 (1998).
In the present case, article 3.6 limits modification of
the amount and duration of alimony to two specific
circumstances, which do not include cohabitation, as
discussed previously. Thus, if the plaintiff had cohab-
itated between June 1, 2013 and November 20, 2019,
not only would termination not be immediately
required, but the defendant arguably would have been
unable to seek a modification of the amount or duration
of unallocated alimony and child support. This possible
result adds to the ambiguity of article 3.2 (a) because
it seems nonsensical to require termination during one
time frame and then prohibit any modification, includ-
ing termination, during another time frame.
In light of our Supreme Court’s dicta in Nation-Bai-
ley, the language of article 3.2 (a), and the contract as
a whole, the phrase ‘‘until the . . . cohabitation of the
[plaintiff] pursuant to Section 46b-86 (b),’’ does not
convey a definite and precise intent. Both parties’ inter-
pretations of article 3.2 (a) are plausible. We determine,
therefore, that the trial court improperly concluded that
the parties’ intent was clear and unambiguous.
On the basis of this ambiguity, the court was required
to make a finding of fact as to the parties’ intent regard-
ing whether article 3.2 (a) of the separation agreement
incorporated the remedial aspects of § 46b-86 (b). See
Parisi v. Parisi, supra, 315 Conn. 383, 385–86 (stating
that if language of contract is ambiguous, parties’ intent
is question of fact that trial court is required to consider
and resolve after considering extrinsic evidence and
surrounding circumstances). Because the court made
no such factual finding after considering extrinsic evi-
dence, we conclude that it improperly interpreted arti-
cle 3.2 (a) of the separation agreement. This court
cannot find facts in the first instance. See id., 385–86
(concluding that trial court improperly found separa-
tion agreement to be unambiguous, and, thus, case had
to be remanded for court to make factual finding as to
parties’ intent, because appellate court cannot find facts
in first instance). Accordingly, we remand this case to
the trial court to determine the intent of the parties after
consideration of all the available extrinsic evidence and
the circumstances surrounding the entering of the
agreement.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
We note that although § 46b-86 (b) does not use the term ‘‘cohabitation,’’
that statute has come to be known as the ‘‘ ‘cohabitation statute.’ ’’ D’Ascanio
v. D’Ascanio, 237 Conn. 481, 485, 678 A.2d 469 (1996). The phrase ‘‘living with
another person’’ is used, rather than ‘‘cohabitation,’’ because the legislature
wanted to employ broader language to ensure that the circumstances for
which the law was passed were encompassed in the definition, specifically
instances where the alimony recipient lived with another person without
marrying in order to prevent the loss of alimony support. See Kaplan v.
Kaplan, 185 Conn. 42, 45–46, 45 n.3, 440 A.2d 252 (1981). Therefore, if
cohabitation is defined by § 46b-86 (b) and not by some provision within
the agreement itself, a finding of cohabitation requires that (1) the alimony
recipient was living with another person and (2) the living arrangement
caused a change of circumstances so as to alter the financial needs of the
alimony recipient. See D’Ascanio v. D’Ascanio, supra, 486
2
The plaintiff does not challenge the court’s determination that she cohab-
itated as defined by § 46b-86 (b).
3
Judge Borden dissented from the decision of the majority. Nation-Bailey
v. Bailey, supra, 144 Conn. App. 330–37. He concluded, among other things,
that the majority’s interpretation of the language in the agreement ‘‘puts
more weight on the word ‘until’ than it can bear. The use of that word in
the judgment is equally consistent with the trial court’s ruling . . . because
by suspending the alimony, rather than terminating it as sought by the
defendant, the word could carry a similar meaning: for example, the alimony
continues ‘until’ cohabitation under the statute, which carries the court’s
range of equitable powers.’’ Id, 336. He also construed the phrase ‘‘as defined
by’’ to indicate the parties’ intent to incorporate all aspects of § 46b-86 (b)
into the agreement, not just the statute’s definitional aspects. Id., 331.