The Kinseys were married in 1994 and divorced in 2021. At trial, Husband was ordered to pay alimony for twenty-six years, the length of the marriage.
In January 2022, Huband filed a Petition to Modify the Decree od Divorce to terminate alimony due to Wife’s alleged cohabitation. For the sake of convenience, I will call the parties Husband and Wife, although they were divorced at the time of the events described in this blog post.
HE had hired two private investigators who obtained evidence that purported showed that Wife and her Boyfriend cohabited between March 2021 and August 2021.
Wife responded by saying that she was in a relationship with Boyfriend and had spent overnights at his home but that she resided with her daughter at her parents’ house. She claims she had not cohabited with her Boyfriend.
Nature of the Evidence
Overnights
The Court held a two-day evidentiary hearing in September and October 2022. Following the haring, the Court issued a written ruling that found that, while Wife and Boyfriend had a relationship that was “romantic and intimate”, they had not cohabited.
In making this ruling, the Court noted the number of overnights Wife spent at Boyfriend’s house in the summer of 2021. She had spent 31 out of 47 nights at his home between the end of June and the middle of August. They had also spent several nights together on vacation during that same timeframe.
There was conflicting testimony about the amount of time the two spend together in later 2021 and 2022. The Court found that Wife had stayed at Boyfriend’s home regularly each week but they had not consistently spend nights together at a rate as high as they had during the summer of 2021.
Access and Use of Residence
The Court found further than Wife did not have a key to Boyfriend’s house and Boyfriend did not have a key to Wife’s parents’ house.
Property
There wasn’t much evidence as to whether Wife had stored significant amounts of personal property at Boyfriend’s house. Her wave runners had been at his house, but she claimed it was for repairs.
Finances
The Court found the parties did not share finances nor pay each other’s expenses. They did not share bank accounts or credit cards or own any property together. Boyfriend leased his house and Wife was not on the lease.
Wife’s Bills and Other Documents
The Court found that Wife used her parents’ address for her “bills, statements and amil related to her phone, car, and health insurance, retirement, bank, pet hospital, Costco [membership], GMC recall notice, medical information, and driver’s license.”
The Court concluded that Husband had not proved by a preponderance of the evidence that Wife had cohabited with Boyfriend.
The Court noted that a new statutory definition for the term “cohabit” went into effect on May 5th, 2022. However, the Court analyzed the definition of “cohabitation” from a common law perspective. The Court did so for two reasons.
The first was that the Court saw no indication that the new statutory definition abrogated al the common law factors that are suggestive of cohabitation.
The second reason the Court gave for its common law analysis was that Husband had filed his petition in January 2022 and the Court saw no basis for applying the new statutory definition retroactively since the behavior predated the new statute.
The Court noted that spousal support is economic in nature and that just because two people have a sexual relationship and live under the same roof does not necessarily constitute grounds to terminate an important economic pipeline. Rather, the relationship must be “akin” to a marriage.
In the instant case, there was no evidence that the Wife shared Boyfriend’s residence nor that the Wife’s financial dependency had been terminated by a permanent romantic relationship.
The standard oF review for determining cohabitation is a mixed questions of law and fact that is entitled to substantial deference upon appeal. But to the degree the decision turns on an interpretation of a statute, the proper interpretation of that statute is a question of law that is reviewed for correctness.
The statute in question at the time of appeal in this matter was Utah Code § 30-3-5(14)(a). That statute stated that a court “shall terminate an order that a party pay alimony to a former spouse if the party establishes that, after the order for alimony is issued, the former spouse cohabits with another individual even if the former spouse is not cohabiting with the individual when the party paying alimony files the motion to terminate alimony”
By case law (Myers v. Myers, 2011 UT 65 ¶ 29; 266 P.2d 806), cohabitation must be proved by a preponderance of the evidence.
The Court noted that, prior to 2022, the term cohabitation was not defined by statute, but rather by case law. But the terms cohabit arises in a variety of contexts, including being one of the elements of an unsolemnized marriage, an element of the crime of bigamy, grounds for denying an adoption, and an element needed to obtain a protective order.
According to case law that had developed, cohabitation was simply defined according to its ordinary meaning, that of living together as husband and wife. State v. Barlow, 153 P.2d 647, 651 (Utah 1944), Haddow v. Haddow, 707 P.2d 669, 671 (Utah 1985).
In 2020, the Utah Supreme Court, in the case of Scott v. Scott, 2020 UT 54 ¶ 35, 472 P.3d 897, set out a number of factors that show whether a relationship has the hallmarks of a marriage.
Among these are “a shared residence, an intimate relationship, … a common household involving shared expenses and shared decisions … the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together.”
In a footnote the court noted that prior to 1995 the applicable statute provided that alimony could be terminated upon a showing that the former spouse was residing with a person of the opposite sex, unless the recipient spouse could prove that there was no sexual relationship. The question naturally arises, “how does one prove a negative?” But that is how the law stood prior to 1995.
In 2022, the legislature defined “cohabitation.” Under Utah Code § 30-3-5(1)(a), cohabit means “to live together, or to reside together on a regular basis, in the same residence and in a relationship of a romantic or sexual nature.”
Husband argued that this statute should apply, although much of the behavior at issue occurred prior to the enactment of the statute on May 4th, 2022. He argued that the statutory definition excluded the prior case law and that the statute should apply retroactively because his petition to modify was still pending at the time the amendment went into effect.
Former Spouse argued that the new statute was consistent with prior case law and even if it was not, it should not be applied retroactively.
The court found no need to decide whether the common law test or the statutory test should apply, because under either definition, Husband had not established cohabitation.
The court found that under the common law test, there was no establishment of cohabitation. It is true that former spouse and Boyfriend were in a romantic relationship in the summer of 2021, that they vacationed together, and that they spent many overnights together. But other key factors were missing.
For example, Former Spouse did not have a key to Boyfriend’s home; they did not make financial decisions together; she had breakfast and dinner with her father at his home; they did not share any bank accounts or credit cards; Former Spouse received her main at the home she shared with her parents.
Based on these factors, and the deference owed to the district court’s decision based on the mixed questions of law and fact, the Court of Appeals saw no reason to overturn the trial court’s decision.
The Court next looked at the statutory definition of cohabitation. It noted that the statute refers to both living together and residing together. It acknowledged that it may be possible that these two concepts mean different things since they are separated by the disjunctive “or” and the surplusage canon would suggest these terms should be given separate meanings.
On the other hand, the legislature could have intended the meanings to be synonymous and mutually reinforcing, such as a “belt and suspenders” approach.
But the parties had not meaningfully briefed the difference between the terms, and instead focused on whether the parties were “residing together.” Thus, the Court did the same thing and saw no need to determine if the two terms had different meanings or not.
Because the legislature did not specifically define the word “reside”, the Court interpreted the word based on its ordinary usage, recognizing the potential difficulty with multiple meanings.
Nevertheless, the Court looked at the term in light of previous Utah Supreme Court guidance on the meaning of the word in the alimony context. After all, “when a word or phrase is transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Maxfield v. Herbert, 2012 UT 44 ¶ 31, 284 P.3d 647.
The Court noted that residency implies permanency, rather than just a visiting relationship. It implies continuity. A visitor will often schedule his or her visits to coincide with the presence of the person he is visiting. On the other hand, a resident will come and go as he pleases. Likewise, a residence will store his or her personal belongings at the residence, rather than just a few toiletry articles or a few items of clothing.
In Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996), on the other hand, the ex-wife’s boyfriend had his own key to her house, spent about ninety percent of his time there, came and went there three or four times daily, even when she was not there. The couple ate almost all their meals together and the boyfriend kept clothing and other personal effects at her residence. This court had no problem concluding that these factors supported a cohabitation determination.
Similarly, in the 2020 Scott case, the new partner made an offer on a house on behalf of both himself and the ex-wife. Both had keys to the house. The ex-wife moved herself and substantial personal belongings into the house. She also made decisions about decorations and furnishing. The supreme court thus found that the couple shared a residence.
But in the instant case, ex-wife did not go to the Boyfriend’s residence when he was not there. There was no evidence that she moved substantial personal belongings at the house. She was not on the lease, did not receive her mail there, and usually had breakfast and dinner with her father at his house.
Even though it was established that ex-wife spent a lot of time at Boyfriend’s home, especially in the summer of 2021, time alone is not the determining factor. A court may find that a person spends a substantial amount of time at a place without that place being his or her residence.
In the instant case, ex-wife did not have keys to the Boyfriend’s residence, did not necessarily come and go as she pleased, and did not regard Boyfriend’s home as her “settled abode.” Thus, she appeared to be more of a visitor there than a resident.
Based on all these factors, the Court upheld the trial court’s decision that ex-wife did not cohabit with her Boyfriend. Alimony was not terminated.
This material should not be construed as legal advice for any particular fact situation but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.