More on Proving Cohabitation in Alimony Termination Cases - Melvin
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More on Proving Cohabitation in Alimony Termination Cases

by Melvin Cook

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I have previously posted on alimony termination and the important Utah Supreme Court case of Myers v. Myers. 2011 UT 65, 266 P.3d 806 (Utah 2011) . See post from June 13, 2014.

The question sometimes arises, does sharing a residence with a member of the same sex in an intimate relationship count as cohabiting under Utah law?

The answer, as one might expect, is yes. This was clarified in the case of Garcia v. Garcia, 60 P.3d 1174 (2002), 2002 UT App 381. Although one of the arguments set forth by the alimony recipient in that case was that same-sex couples cannot cohabit in a marriage-like relationship because same-sex marriage was not recognized, the Utah Court of Appeals found that logic unpersuasive. The plain reading of the statute referred to cohabitating with another person, not necessarily a person of the opposite sex. The logic in that case is even more pronounced after the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 576 U.S. _____ (2015), which legalized same-sex marriage.

In the more recent case of Levin v. Carlton-Levin, 2014 UT App 2, decided in 2014, the parties divorced in 2008. The husband was to pay wife alimony of $15,000 per month (wow!), for five years regardless of whether she remarried or cohabited. (It is important to note that this was the result of an agreement of the parties, as otherwise alimony automatically terminates upon remarriage or the death of the former spouse, or upon a showing that the former spouse is cohabitating with another person. See Utah Code Section 30-3-5 (9) and (10)).

However, if during those five years the wife remarried or cohabitated the alimony would be reduced to $7,500 beginning in October 2012 and would terminate in October 2017.

In 2008 the Husband began suspecting Wife of cohabitating with her boyfriend, Page Tucker. Accordingly, he hired a private investigator, who tracked the movements of Tucker’s Ford Explorer by means of a GPS unit for fifty-two nights. He found that the vehicle was parked overnight at Wife’s home for fifty-one of the fifty-two nights from June 18 to August 8, 2009 and was driven regularly throughout those fifty-two days.

The Husband brought a motion to reduce and eventually terminate alimony. The Wife and her boyfriend filed affidavits alleging that he hardly ever drove his vehicle during the summer of 2009, that it was simply parked at Wife’s house for convenience, and that he was living primarily with his brother during this time period.

At trial, the private investigator presented his evidence. The Wife and Tucker then admitted they had lied in their affidavits, stating that the reason they had done so was because the Explorer was not properly licensed and registered during the summer of ’09.

The Husband presented other evidence, including testimony from several witnesses, phone records, credit card records, records of store purchases, and e-mail exchanges.

The trial court found that that the parties were purchasing food and household items together, sharing meals together, and that Tucker had free access to the Wife’s house regardless of whether or not she was there. The trial court also found that they had traveled together.

The trial court found it particularly noteworthy that the Wife had leaned on Tucker for emotional support over difficult financial issues for which she believed him more capable than herself. This included sitting in on lawyers’ meetings with her.

The Court of Appeals, citing the case of Jensen v. Jensen, 2008 UT App 377, ¶ 2, 173 P.3d 223, noted that whether or not there is cohabitation is a mixed question of law and fact. The reviewing court will not disturb the trial court’s findings of fact unless they are clearly erroneous. The reviewing court, however, reviews the ultimate determination of cohabitation for correctness.

It is important to note that courts of appeals generally give deference to trial court’s findings of fact because of the trial court’s advantaged position of being a primary fact-finder, having opportunity to observe witness’s demeanors, hearing all of the facts with all of their various nuances, and having the opportunity to make appropriate credibility findings. On the other hand, with respect to ultimate legal conclusions, courts of appeal usually review these for correctness without any special deference to the trial court.

On appeal, the Wife, citing the Myers case, argued that just because two parties are physically living together does not necessarily mean they are cohabitating for purposes of the alimony termination statute. The question is whether or not the relationship is akin to a marriage, which is a very fact-intensive inquiry. The appeals court, however, found ample reasons to uphold the trial court’s findings of fact.

The Wife’s other big argument was that the evidence taken as a whole did not support the legal conclusion that she and Tucker had a relationship akin to a marriage.

The Court rejected this argument as well, citing Myers and noting that there is “no single prototype of marriage that all married couples conform to.”

The Court noted some important facts tending to show cohabitation. Among these were the sharing of meals, the sharing of household upkeep and maintenance, the sharing of living expenses, the fact that Wife and Tucker kept their clothing at the same house, and the fact that Wife had leaned on Tucker for emotional support for stressful financial issues of which she deemed him more capable.

Wife argued that the period of observation was too short (fifty-two days), noting that pursuant to Haddow v. Haddow, 707 P.2d 669 (Utah 1985), a mere sojourn or habit of visiting did not prove cohabitation, which implies a continuity of living together in a conjugal relationship. She argued that the period of time observed by the private investigator was too short as a matter of law to prove cohabitation. However, the court of appeals noted that the trial court had found that this period of time was merely representative of a much longer period of time that the couple was together.

With respect to the issue of attorney fees, the court granted the Husband his attorney fees on appeal, citing the case of Robertson’s Marine, Inc. v. 14 Solutions, Inc., 2010 UT App. 9 ¶ 8, 223 P.3d 1141. noting the general rule that a party who receives attorney fees below and prevails on appeal is typically awarded attorney fees on appeal as well.

In contrast to Levin, the case of Jensen v. Jensen, 2008 UT App 377, presents a case where Husband’s petition to terminate alimony was denied. In that case, Wife lived in the same residence with one Mr. Andrews off and on for a period of two months, sharing a bedroom with his sister, but maintaining a separate residence.

There was no evidence that Wife and Mr. Andrews shared living expenses or meals, or that she had “open access” to Mr. Andrews’ house, or that she and Mr. Andrews lived together in a relationship akin to that of husband and wife.

This case also deals with factors for when an alimony award may be modified, upon a showing of a substantial changes in circumstances. This would typically be a change where the recipient spouse is now able to support herself (or himself) at a standard of living that prevailed during the marriage, or if the paying spouse is no able to pay. In effect, the court of appeals must again consider the Jones factors of 1) the needs of the recipient spouse, 2) the ability of the recipient spouse to provide for his or her own needs, 3) the ability of the payor spouse to assist in providing support for the recipient spouse’s unmet needs. These factors come from the seminal alimony case of Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985).

The trial court had lowered the Husband’s alimony obligation, but not terminated it entirely, based on such a change of circumstances.

The Husband had argued that he no longer had the ability to pay alimony because he was retired and his sole income was from his retirement, of which the Wife was already awarded her one-half share in the property settlement. He argued that, in effect, he was having to pay to his wife more than her share of the retirement. The Court rejected this argument, noting the different analyses that apply to alimony awards and property awards. Citing the cases of Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988) and Mortensen v. Mortensen 760 P.2d 304, 308 (Utah 1988), the Court noted that it is proper to consider property, such as retirement income or inheritance or donated property (especially if it is income-producing), in fashioning an alimony award.

In addition, the Court noted that the Husband’s argument, if taken to its extreme, would allow a payor spouse to simply choose to not earn any income other than that from the income-producing property and thus eliminate an alimony obligation. Or, if the person retired and now relied solely on the income-producing property, their alimony obligation would automatically terminate. The Court stated that such a result has been rejected by the Utah Supreme Court and the Court of Appeals. The Court of Appeals upheld the alimony modification, rather than a termination.

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.

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