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Tag: cohabitation

How do you get pet custody after a breakup?

I cannot speak on what the law is in every jurisdiction, but according to Utah (Utah is where I practice divorce and family law), the answers are: 

If by “breakup” you mean the breakup of a marriage by divorce: 

Pets are property, and so they are treated like property, although because they are living creatures they are not treated as a coffee table or money in a bank account would be, obviously. 

And usually pets are not an asset but are more of a liability. In other words, while I can sell a used coffee table and while I can spend my half of the money I was awarded out of the joint marital bank account, owning and caring for a pet costs money. If one spouse is willing to take on the liability associated with caring for a pet and the other spouse is not, then who gets the dog or cat or iguana won’t be in dispute. 

But if both spouses love the dog and both of them want to keep the dog for himself/herself, then who is awarded this particular piece of property can lead to a vicious and expensive fight. We can’t split the dog in half, as we could with money in the bank. But we could award one spouse the dog and then compensate the other spouse with an award of other marital property equal to the value of the dog. That often happens. 

But what about the intangible factors of pet ownership? While I can go out and buy a replacement coffee table if my spouse gets in divorce the one we bought together, it’s not as easy simply to buy a replacement dog. People become emotionally attached to pets and certain kinds of pets (especially dogs, I hear), and that emotional bond is often unique to that animal. Just as losing a child is not “cured” simply by adopting a “new” one, the relationship one formed with a pet is sometimes impossible to replace like one would replace a lightbulb. 

Still, there is only so much a court can do when faced with who gets Fido. What options are there? 

If the court decides that one spouse must be awarded the sole ownership and control of the pet, then the court will usually award the pet to one spouse and award the other spouse marital property of equal value. 

If the court decides that the parties to the divorce will “share custody” of the pet as if it were a child who spends time in the custody of both parents, the court can do that too. The court could order that Fido spends a week with ex-wife, then a week with ex-husband (or impose some other schedule). 

If by “breakup” you mean the breakup of a cohabitant (unmarried) relationship: 

If two people cohabit (that means “live together and have a sexual relationship without being married”), and if during that relationship: 

  • the couple both contribute money toward the purchase of a dog (or cat, or iguana, etc.) so that it’s a joint purchase and they are co-owners, and then the couple breaks up and they can’t agree who gets to keep the dog, then they could go to court to have the matter resolved. The judge could either order the dog sold and the proceeds of sale divided equally between the owners or award the dog to one of the parties and order that party pay the other half the value of the dog. 

OR 

  • one member of the couple buys a dog to which the other member of the couple becomes attached, and then the couple breaks up, the other member of the couple has no ownership rights in the pet. 

Had the couple been married when the pet was purchased—even if it was not a joint purchase—then because the couple was married when the property (i.e., the pet) was acquired, the pet is marital property. But when a couple is not married, if one member of the couple purchases something in his/her individual/separate capacity, then that person is the only owner. It’s not “joint” property. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-do-you-get-pet-custody-after-a-breakup/answer/Eric-Johnson-311  

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New Developments in Utah Law Governing Termination of Alimony

New developments in Utah case law governing the termination of alimony with the case of Scott v. Scott. In this case, the ex-husband moved to terminate alimony and won.

The ex-wife claimed that her relationship with her post-divorce boyfriend did not rise to the level of cohabitation required by law to terminate her alimony award.

The district court terminated alimony by finding that the ex-wife’s relationship exhibited many of the hallmarks of a marriage relationship that Utah’s case law recognizes. Like a married couple, ex-wife and her boyfriend (a) engaged in an extended and exclusive sexual relationship; they spent a significant amount of time together at the boyfriend’s homes and elsewhere, including on vacations and holidays;  they established a common household involving shared expenses and shared decisions, boyfriend authorized ex-wife as a user on his credit cards, and the two participated jointly in financial and other decisions related to the purchase of a home together, a house where Jillian acted like a spouse, made decorating decisions, to which she and her boyfriend agreed she had her own a key. Ex-wife’s boyfriend gave her “family status” at a country club based on his representation that the couple was “living together and maintaining a common household. When boyfriend broke up with ex-wife he paid her a financial settlement on the condition that she “sign a release from all future claims.”

Ex-wife claims that the determination of “shared residence” was a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. The Utah Supreme Court disagreed.

Ex-wife took the view that the home the couple shared was not the legal domicile for either her boyfriend or her. The Utah Supreme Court disagreed.

Ex-wife argued that the shared-residence threshold requires a couple to live together for a longer period of time than she and her boyfriend did. The Utah Supreme Court disagreed.

Shared residence is not a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage.

Moreover, the term “shared residence” does not mean legal domicile.

[The Utah Supreme Court did not delve into the distinction between domicile and residence, but in a nutshell: essentially domicile involves one’s intent while residence is where one actually is.]

The home in question in this case may not have been the prototypical “principal domicile,” but it was a common residence or dwelling. Neither ex-wife or her boyfriend were visitors in that home. It was a common residence—albeit one of several.

The Supreme Court acknowledged that “shared residence” implies some period of time that is indicative of a marriage-like relationship, but declined to endorse a hard-and-fast rule as to a precise minimum number of days to establish shared residency in all circumstances.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Scott v. Scott – 2020 UT 54 – termination of alimony

This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 54
IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Appellant,
v.
BRADLEY SCOTT, Appellee.
No. 20180210
Heard March 11, 2020
Filed July 29, 2020
On Certification from the Utah Court of Appeals
Third District, Salt Lake County
The Honorable Robert P. Faust
No. 124903563
Attorneys:
Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellant
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City,
Frederick N. Green, Sandy, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN, and JUDGE POHLMAN joined.
Having recused himself, JUSTICE HIMONAS does not participate herein; COURT OF APPEALS JUDGE JILL M. POHLMAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1     This is the second time that Jillian Scott has asked this court to reverse a lower court decision terminating her right to alimony on the basis of her alleged cohabitation. When the case first came to this court, Jillian’s right to alimony had been terminated under Utah Code section 30-3-5(10)—a statute that then provided that an alimony order “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”[1] See Scott v. Scott (Scott I), 2017 UT 66, ¶ 3, 423 P.3d 1275. We interpreted the statute to “require[] the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Id. ¶¶ 10, 33. And we reversed a decision terminating Jillian’s right to alimony to the extent it relied on this statute, concluding that Jillian was not cohabiting with her ex-boyfriend at the time the motion to terminate was filed (even if she had been cohabiting previously). See id. ¶¶ 1, 21, 21 n.5, 23, 33.

¶2 On the heels of this decision, Jillian’s ex-husband filed a new motion to terminate Jillian’s right to alimony under the terms of the couple’s divorce decree, which provided that her alimony would terminate “upon” her “cohabitation.” (Emphasis added.) And the district court granted that motion. We now uphold that decision. The subtle distinction between the wording of the statute and the divorce decree makes all the difference. Jillian may not have been cohabiting at the time Bradley filed his motion. But there is ample evidence to support the district court’s determination that she had cohabited previously. And that triggered termination of Bradley’s alimony obligations under the decree. We affirm on that basis, while rejecting Jillian’s assertions that there could be no cohabitation here because she and her ex-boyfriend had no shared legal domicile and did not have a common residence for a sufficient period of time.

¶3    In so doing we reiterate that “a marriage-like cohabitation relationship is difficult to define with a hard-and-fast list of prerequisites.” Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. And we hold that the district court is entitled to substantial deference in its fact-intensive determination on the existence of such a relationship. We reverse on one minor point, however, concluding that Jillian was entitled to an award of her costs on her prior appeal.

I. BACKGROUND

A. Factual Background

¶4 Jillian and Bradley Scott married in 1979. During their marriage, the couple amassed a level of personal wealth that allowed them to “live[] a lifestyle beyond even the imagination of most of humanity.” But they ultimately ended up divorcing in 2006 after Jillian walked in on Bradley with another woman.

¶5    The divorce decree obligated Bradley to pay Jillian $6,000 per month after they separated in 2006. But it also provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. From the time of the divorce until 2018, the Utah Code provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See UTAH CODE § 30-3-5(10).

¶6    In October 2008, Jillian began dating James Okland. Their “intimate” and “exclusive” relationship was a serious one that involved celebrating holidays, traveling, and otherwise spending a significant amount of time together. But their relationship was atypical in many ways.

¶7 Okland’s immense personal wealth allowed the couple to enjoy a lavish lifestyle very different from that of most people. When the couple began dating, Okland owned at least two homes—one in Salt Lake City, Utah (his primary residence) and one in Sun Valley, Idaho.[2] He later purchased an additional home in Rancho Santa Fe, California. Okland also had access to a private jet and owned multiple vehicles, including a Porsche that he later had shipped to the Rancho Santa Fe house. Though Jillian had her own condominium in Salt Lake City, she spent the majority of her time traveling with Okland or at one of his homes. During the relationship, the couple took approximately thirty-six trips together. These trips included work trips for Okland as well as many trips to Okland’s homes, where they would stay for a week or more at a time. In light of the couple’s frequent vacationing and traveling, Jillian arranged to have all but her junk mail delivered electronically.

¶8 Jillian spent upwards of eighty percent of her time traveling with Okland or in one of his homes. She accompanied him on work trips. The couple celebrated holidays and special occasions together, including Okland’s retirement (a twenty-five-day cruise) and Jillian’s daughter’s high school graduation (a trip to Hawaii). Okland also gave Jillian’s daughter $5,000 as a graduation gift.

¶9 The two spent more than just time together. They also spent money together. Jillian was an authorized user on Okland’s credit cards. And Jillian made good use of these cards, paying for necessities such as groceries, gas, and lodging, as well as wedding gifts, Christmas and birthday gifts, and presents for grandchildren.

¶10 In 2010, around the time Jillian’s daughter moved to southern California for college, the couple began looking to acquire a home in Rancho Santa Fe, California. While Okland ended up financing the purchase, both “shared [in the] decisions regarding the selection and ultimate purchase of the home,” and viewed the home as a joint acquisition. Jillian hired the real estate agent, and she was charged with locating a home to her liking. In August 2010, she wrote to the agent and said that the house “ha[d] [her] name all over it!,” while noting that Okland “still want[ed] to look at the covenant and get a feel for everything.” The next month, she wrote that they were “looking for a really good buy!!!” She also explained that Okland was “very conservative with his money” and commented that he had said that they “pa[id] cash for everything.”[3] She also wrote that “it’s really up to James at this point” and noted that she had told him that she “want[ed] to grow old” in Rancho Santa Fe with him and “[h]e [had] agreed!” About a month later, Okland made an offer on behalf of both of them, stating: “Jill and I would like to offer $2,125,000 all cash and close within 15 days.” (Emphasis added.)

¶11 In February 2011 (after Okland had purchased the home), the couple flew to Rancho Santa Fe in Okland’s plane. Okland also had his Porsche shipped there. The real estate agent noted that Jillian “act[ed] like a spouse” as she decorated and replaced furniture in the home. Jillian had several personal items shipped to the home on Okland’s dime, including paintings, Italian tables, dining room cabinets, bedroom chairs, ottomans, a wooden desk, a game table and chairs, Navajo rugs, and three stone cheetahs. Both Jillian and Okland had keys and full access to the home, and Jillian participated in decisions about who else should have a key. Okland also gave Jillian “family status” at the community country club—a move that required him to represent that the couple was “living together and maintaining a common household.”

¶12 There is no indication, however, that Okland viewed the new home as his primary residence. He arranged to have his bills associated with that property sent to Salt Lake and testified that he viewed the Rancho Santa Fe home as a vacation property. Jillian, conversely, put her Salt Lake condominium up for sale.

¶13 Despite access to Okland’s substantial financial resources, Jillian was loath to “give up [her] alimony,” which she described on one occasion as her “extra ‘fun money.’” And fear of losing out on that cash flow may have been a factor in the couple putting off marriage. As she wrote to a friend, “[w]e have talked about marriage but I am not ready to give up my alimony.”[4] The record also suggests that the couple may have openly told others that they remained unmarried only because they didn’t want Jillian to lose her alimony. And while Okland did not recall ever proposing or telling others that the alimony was what stood in the way of their marriage, he did testify that he had purchased a diamond for Jillian. He also acknowledged that his memory was imperfect.

¶14 Jillian’s relationship with Okland eventually fell apart. Around the beginning of April 2011, Okland left Rancho Santa Fe and returned to Salt Lake. He then abruptly ended the relationship by leaving Jillian a voice message.

¶15 Like many breakups, this one left an ex-partner upset and disoriented. In an email to Okland shortly after the breakup, Jillian wrote “I just don’t understand how this happened. . . . You buy a dream home for us to share our lives in. . . . We decorate it with my furniture . . . . You then voice mail me it’s over with no explanation. My dream has now become a nightmare[;] I wish I never shared Rancho Santa Fe with you.” She said that she was “sad, really sad, [and] confused.” In a later email she called Okland a “DREAM STEALER,” a “needy user,” and a “Spineless Snake.”

¶16 Like their relationship, however, their breakup was also singular in many ways. Because Jillian had contracted a dangerous staph infection following a breast augmentation surgery that Okland had paid for (a $17,000-plus bill), Okland told her that she could stay at the Rancho Santa Fe house following the breakup until she recovered. He also said that she could continue to use his credit card for gas and groceries. As a result, Jillian continued to treat the California home as her own. On April 10, she posted a picture of the roses at the Rancho Santa Fe home on Facebook and wrote “I love my rose garden.” In an email to Okland on April 13, she told him that she had bought things to make the home “earth-quake ready.”

¶17 The couple also began discussing a possible financial settlement. Eventually Okland paid Jillian $110,000. And when Okland emailed Jillian and asked her to “sign a release from all future claims,” Jillian responded that “[w]hen the money is in my account, you may consider this e-mail as the disclaimer to any and all future claims against you.” Okland also informed Jillian that he wanted his Porsche back, though he suggested that he was willing to either pay for a one-year lease or give her $36,000 to buy a new car. Neither Jillian nor Okland had ever had a relationship with a boyfriend or girlfriend that had ended in financial settlement.

B. Procedural Background

¶18 Following the break-up, Jillian’s ex-husband Bradley filed a petition to terminate his alimony payments. He argued that Jillian had cohabited with Okland and that termination was proper under both the divorce decree and state statute, the latter of which provided that “[a]ny order” requiring “a party [to] pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10). The district court held that Okland and Jillian had cohabitated and terminated alimony “pursuant to Utah Code § 30-3-5(10).”

¶19 The court of appeals affirmed on the same ground. See Scott v. Scott, 2016 UT App 31, ¶¶ 9 n.2, 39, 368 P.3d 133, rev’d, Scott I, 2017 UT 66, 423 P.3d 1275. We reversed, holding that “Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” Scott I, 2017 UT 66, ¶¶ 10, 33. It was undisputed that Jillian had not been cohabiting at the time of Bradley’s filing, and we did not address the question whether she and Okland had ever done so. Like the lower courts, we “d[id] not consider the decree’s language.” Id. ¶ 3 n.1.

¶20 After we issued our opinion, Bradley moved to terminate alimony under the divorce decree rather than the statute. And Jillian filed a motion for an award of her costs in the Scott I appeal under Utah Rule of Appellate Procedure 34(a), under which the costs of an appeal are “taxed against the appellee” “if a judgment or order is reversed” “unless otherwise ordered.”

¶21 Jillian opposed Bradley’s motion, asserting that Bradley was foreclosed from relying on the decree under the “mandate rule” given that Bradley had presented his appeal as if the decree and statute were “coextensive for purposes of the law of the case.” Jillian thus contended that Bradley had waived the right to rely on the divorce decree as an alternative ground for termination of alimony. She also opposed the motion on its merits. She asserted that there could be no finding of cohabitation because she and Okland had never established a shared legal domicile and because the two of them had not resided together for more than a temporary or brief period of time.

¶22 The district court granted Bradley’s motion. It first held that it was not foreclosed from considering the decree under the mandate rule. It also held that Bradley had carried his burden of establishing Jillian’s cohabitation with Okland, relying on findings and conclusions entered in the first round of proceedings (under the statute) and noting that Jillian had not contested any of the court’s findings.

¶23 The district court also denied Jillian’s motion for an award of costs. It did so without explanation.

¶24 Jillian then filed this appeal, which the court of appeals certified for our consideration. Jillian raises three principal claims of error on appeal. First, she contends that the district court violated the mandate rule in addressing Bradley’s motion under the divorce decree. Next, she challenges the district court’s termination of alimony on the merits, asserting error in the determination that Jillian cohabited with Okland under the terms of the decree. Finally, Jillian claims that she was entitled to an award of her costs on appeal in Scott I and that the district court erred in refusing to enter an award in her favor. We affirm on the first two points and reverse on the third.

II. MANDATE RULE

¶25 In Scott I we assessed whether Bradley’s alimony obligation was properly terminated under Utah Code section 30-3-5(10). 2017 UT 66, 423 P.3d 1275. That statute contemplated termination of alimony upon a showing that a former spouse was cohabiting with another at the time the petition for termination was filed. Because there was no basis for concluding that Jillian had been cohabiting with Okland in October 2011 when Bradley filed his termination petition, we reversed a decision terminating alimony under the terms of the statute. And we did so without considering whether Jillian and her ex-boyfriend had cohabited at some point prior to the filing of Bradley’s petition.

¶26 Thereafter, the district court considered a motion to terminate alimony under the divorce decree—a document that contemplates termination “upon cohabitation” and thus does not require a showing of cohabitation at the time the motion to terminate is filed. Jillian sought to avoid an inquiry into cohabitation under the decree. She pointed to an element of the “law of the case” doctrine called the “mandate rule.” In her view this rule prevents a litigant (appellee) from taking a position on remand that he previously “represent[ed] . . . [was] not an alternative ground [on which] to affirm” a lower court in appellate proceedings. And Jillian claimed that this rule barred Bradley from relying on the divorce decree in proceedings on remand in the district court, since in her view Bradley had affirmatively represented that the divorce decree and the statute “presented the same issue”—and thus impliedly represented that the decree was not “an alternative ground [on which] to affirm.”

¶27 We accept Jillian’s formulation of the mandate rule for the sake of argument (without formally endorsing it). But we reject her position because we find no basis for the assertion that Bradley represented that the divorce decree could not provide an alternative ground for affirmance.

¶28 Jillian initially appealed from a district court decision that terminated alimony solely “[p]ursuant to Utah Code § 30-3-5(10).” Before the court of appeals and this court, Jillian relied on an (unpreserved) argument that Utah Code section 30-3-5(10) required ongoing cohabitation. In response, Bradley argued that the statute did not require ongoing cohabitation. In so doing, he did not ignore the decree; he cited it in support of his position that the parties had understood that the statute did not require ongoing cohabitation. In the course of this argument, Bradley did once assert that the standard under the decree and the statute was “similar or the same.” But Bradley made this point in the context of his broader argument that the statute did not require ongoing cohabitation.[5] So contrary to Jillian’s characterization, Bradley did not represent that termination under the decree rose or fell with the court’s acceptance or rejection of Jillian’s statutory argument. He simply asserted that the statute did not support Jillian’s argument, as evidenced by the fact that the parties had understood the statute differently when they made their agreement.

¶29 Because the parties focused their attention on the statute rather than the decree, both the court of appeals and this court relied on the statute and refused to consider whether the decree could lead to a different outcome. As we explained in Scott I, “[o]n certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result.” 2017 UT 66, ¶ 3 n.1. We accordingly limited “our analysis to the parties’ arguments,” and did not “consider the decree’s language.” Id. We even went so far as to note that “the language of the divorce decree may point to a different result.” Id. ¶ 21 n.5.

¶30 As an appellee, Bradley had the prerogative of identifying alternative grounds for affirmance. See State v. Van Huizen, 2019 UT 01, ¶ 39, 435 P.3d 202. But he was under no obligation to do so. See Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 17, 218 P.3d 583; Madsen v. Washington Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898. Because Jillian was challenging decisions (in the district court and the court of appeals) that were based solely on the statute, Bradley was under no obligation to make an argument under the divorce decree; he was free to simply argue that he should prevail under the statute.

¶31 Our prerogative as an appellate court was similar. We were in a position to “affirm the judgment appealed from if it [was] sustainable on any legal ground or theory apparent on the record.” Madsen, 2008 UT 69, ¶ 26 (citation and internal quotation marks omitted). But we had no obligation to do so. Id. The fact that “we have the discretion to affirm [a] judgment on an alternative ground” that is “apparent in the record,” moreover, does not mean “that our declining to rule on an alternative ground can be construed as a ruling on the merits of the alternative ground.” Id. When our decisions leave issues open, “the trial court ordinarily has discretion to permit amended or supplemental pleadings as to those matters.” Ivers, 2009 UT 56, ¶ 12 (citation omitted). That is what our decision in Scott I did—it left open the decree issue. And that left the district court free to consider arguments on that issue thereafter.

¶32 In hindsight, Bradley’s decision to litigate the initial round of appeals under the alimony statute alone may seem to have been a poor one.[6] While Bradley was not obligated to rely on the decree as an alternative ground for affirmance, the decree’s language would have provided a powerful response to Jillian’s statutory “is” argument. And, as our decision today shows, this court would have reached a different outcome in Scott I if we had exercised our discretion to consider the decree. Yet none of this changes the fact that Bradley was under no obligation to raise this argument and we were under no obligation to address it. Because we chose not to address it, the district court was permitted to consider the decree’s language even after our decision in Scott I.

III. COHABITATION

¶33 The district court relied on the terms of the divorce decree in its decision following Scott I. It noted that the divorce decree provided that Bradley’s alimony obligation would terminate “upon the remarriage or cohabitation” of Jillian. And it terminated Jillian’s right to alimony on the ground that Jillian began cohabitating with Okland on February 17, 2011.

¶34 The district court’s cohabitation determination is a fact-intensive determination of a mixed question of fact and law that is entitled to substantial deference on appeal.[7] See In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382 (noting that “fact-like” mixed determinations are subject to a deferential standard of review). And there is ample evidence to support the district court’s decision.

¶35 Our case law holds that the “key question” in the cohabitation analysis is whether an unmarried couple has “entered into a relationship akin to that generally existing between husband and wife.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806 (citation and internal quotation marks omitted). We have emphasized that such a relationship is “difficult to define with a hard-and-fast list of prerequisites,” given that “there is no single prototype of marriage” to which “all married couples conform.” Id. ¶ 24. With this in mind, our case law “identif[ies] general hallmarks of marriage (and thus cohabitation)” rather than laying out bright-line rules in this area. Id.

¶36 The hallmarks of a marriage relationship include “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. Other factors such as “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” may also “inform the question whether a relationship resembles that of a married couple.” Id. ¶ 24 n.3.

¶37 Jillian’s relationship with Okland exhibited many of the above-noted hallmarks of a marriage relationship. Like a married couple, Okland and Jillian (a) engaged in an extended and exclusive sexual relationship that lasted around thirty months;[8] spent a significant amount of time together at Okland’s homes and elsewhere, including on vacations and holidays;[9] established “a common household involving shared expenses and shared decisions,”[10] in which Jillian was an authorized user on Okland’s credit cards and the two participated jointly in financial and other decisions related to the purchase of a home; purchased a shared residence together—a house in Rancho Santa Fe—where Jillian acted like a spouse in the purchase, in decorating decisions, and in deciding who would have a key, and where Jillian was given “family status” at a country club based on Okland’s representation that the couple was “living together and maintaining a common household”;[11] and (e) ended their relationship with a financial settlement, in which Okland paid Jillian $110,000 on the condition that she “sign a release from all future claims.”

¶38 In light of the evidence of these hallmarks of a marriage relationship, Jillian is in no position to challenge the district court’s determination of cohabitation on the ground that it exceeded the bounds of its discretion. And in fact, Jillian does not raise that kind of challenge to the district court’s decision. Instead she contends that the district court applied a faulty legal standard in assessing cohabitation.

¶39 Jillian claims that the determination of “shared residence” is a threshold legal requirement that must be established before any other “hallmarks” of marriage are considered in the cohabitation analysis. And she cites two purported legal errors in the district court’s shared residence analysis. First, she contends that the threshold showing of shared residence requires proof that both members of the relationship deem the residence their principal “domicile.” Because in Jillian’s view the Rancho Santa Fe home was not the legal domicile for either Okland or for her, she asserts that any remaining hallmarks of marriage are insufficient to establish cohabitation. Second, she argues that the shared-residence threshold requires a couple to live together for a longer period of time than she and Okland ever did. As she notes, they lived together in the Rancho Santa Fe home for only forty-two days. And she argues that a stay of that length is insufficient under our case law as well as the cohabitation law of other states.

¶40 We reject the premise that shared residence is a threshold element that must be met before other hallmarks of marriage may be considered in the cohabitation analysis. The key hallmarks of a marriage-like relationship under Myers go to the “nature and extent” of a couple’s “common residence, relationship, and interactions.” Id. ¶ 22. These considerations are assessed in a holistic inquiry that recognizes that there is no single prototype of a relationship akin to marriage. And that framework is incompatible with the rigid rule that Jillian proposes.

¶41 We also conclude that our case law has not established the bright-line rules on residence proposed by Jillian. First, we hold that “shared residence” does not mean legal domicile. And we find that there is ample evidence in the record to sustain the determination that the Rancho Santa Fe home was a shared residence. Next, we consider the question of a minimum duration standard for shared residence. We acknowledge that “shared residence” implies some period of time that is indicative of a marriage-like relationship. But we decline to endorse a hard-and-fast rule precluding a decision to credit the forty-two days of shared residency in the circumstances of this case.

A. Shared Residence, Not Legal Domicile

¶42 Jillian’s position on the definition of “shared residence” may seem to find support in our decision in Haddow v. Haddow, 707 P.2d 669 (Utah 1985). There we said that “common residency means the sharing of a common abode that both parties consider their principal domicile.” Id. at 672 (emphasis added). And there is a sense of “domicile” that would suggest that the Rancho Santa Fe home
was not Okland’s legal domicile, and perhaps not Jillian’s either.[12]

¶43 That said, we do not interpret Haddow to impose a requirement of a shared legal domicile, or to foreclose evidence of other hallmarks of marriage until after proof of a shared residence. Haddow did not establish a requirement of a unitary legal conception of domicile like that advocated by Jillian. In context, we think the Haddow reference to “domicile” is best viewed as a colloquial use of the term—a synonym for residence or dwelling place. See Domicile, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictiona ry/domicile (last visited July 5, 2020) (“a dwelling place: place of residence”).

¶44 Haddow speaks of a couple’s “principal domicile.” 707 P.2d at 672. And the existence of a shared, unitary domicile in the legal sense would undoubtedly weigh strongly in favor of a determination of cohabitation. We find no room in our law for the imposition of a hard-and-fast requirement of proof of such a domicile, however.

¶45 Haddow contrasts the status of a “resident” with that of a “visitor.” Id. at 673. A “resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting.” Id. This is key to understanding the Haddow notion of residence. It focuses on a person’s status and place in the home, without any firm requirement that it be his only home.

¶46 This is reinforced in our more recent case law. In Myers we emphasized that there is no one-size-fits-all conception of a marriage-like relationship. 2011 UT 65, ¶ 24, 266 P.3d 806. With that in mind, we declined to “delineate a list of required elements of cohabitation,” electing instead to merely identify the “hallmarks” of the relationship. Id. And our framework for this analysis is incompatible with the rigid, unitary notion of legal domicile proposed by Jillian.

¶47 Just as there is no single prototype of a marriage-like relationship, there is likewise no required conception of a couple’s “common residence.” Our law considers the “nature and extent” of the couple’s shared residence as an important element of the overall inquiry into the existence of a relationship akin to marriage. Id. ¶ 22. And we have no trouble concluding that there was a basis for the district court to conclude that Jillian and Okland established a common residence in their home in Rancho Santa Fe—a residence indicative of a marriage-like relationship.

¶48 The Rancho Santa Fe home may not have been the prototypical “principal domicile” that we spoke of in Haddow. But it was a common residence or dwelling. Neither Jillian nor Okland were visitors in that home. It was a common residence—albeit one of several.

¶49 As the purchase process revealed, Okland and Jillian viewed the Rancho Santa Fe property as a shared dwelling. Jillian was heavily involved in the purchase process, and Okland recognized that he was buying the house for the both of them. Tellingly, he made the offer on the home on behalf of both himself and Jillian. And given that Okland financed the purchase, there is no question the home was one of his residences.

¶50 In February 2011, Jillian (accompanied by Okland) moved herself and substantial personal items into the Rancho Santa Fe home. This was not a visit. And neither Okland nor Jillian treated it as such. Both were aware that Jillian was trying to sell her home in Salt Lake. And they acted as if they were spouses as they ordered their affairs concerning the home. As the real estate agent observed, Jillian acted like a spouse as she made decisions about decorations and furnishings. Both had keys and full access to the home. Jillian also made decisions about who else would have a key. And Okland gave Jillian “family status” at the community country club, which required representing to the club that the couple was “living together and maintaining a common household.”

¶51 The above record facts are significant. They amply support the district court’s determination that the Rancho Santa Fe home was a shared residence under our case law.

B. Shared Residence for a Period Indicative of a Marriage-Like Relationship

¶52 Jillian’s position on the duration standard for common residence is also rooted in our opinion in Haddow. There we spoke of a “common abode” shared by a couple “for more than a temporary or brief period of time.” Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). In this case Jillian and Okland shared the Rancho Santa Fe home for only a forty-two-day period. And Jillian insists that that is a “temporary or brief period”—insufficient under our case law, and short of the period required in a number of other jurisdictions.

¶53 Jillian claims that our case law has already established that a shared stay of two months and ten days is too “temporary or brief” to sustain a determination of shared residence—and by association, cohabitation. And because forty-two days falls short of that benchmark, she suggests that the district court erred in finding cohabitation.

¶54 Jillian claims to find support for her position in Knuteson v. Knuteson, 619 P.2d 1387 (Utah 1980). And she notes that other states have adopted minimum time bars that support her view that forty-two days fails as a matter of law.[13] She further asserts that almost no cases from jurisdictions without a statutory time bar have found cohabitation when confronted with such a short stay.

¶55 We understand the impulse to establish a clear time standard. A very brief period of shared residence may not resemble a marriage-like relationship. And a spouse with a right to alimony could certainly benefit from a clear rule, which would facilitate planning and protect reliance interests. We decline to set a clear rule here, however, as we find it unsupported by our case law— which again emphasizes that “there is no single prototype of marriage that all married couples conform to,” and subjects the cohabitation inquiry to a holistic, multi-factor analysis. Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. So although we do not foreclose the possibility of establishing a minimum time standard in a future case, for now we fall back on our flexible, multi-factor inquiry and leave for the legislature the decision whether to set a fixed standard by statute.

¶56 Our existing case law does not support Jillian’s view. Knuteson did not set a generally applicable minimum period of “two months and ten days.” We did make reference to that period. Knuteson, 619 P.2d at 1388. But the time period itself was not the basis for our holding. Instead we were focused on the circumstances and motivation of the spouse who moved in with a neighbor in that case (Ms. Knuteson)—the fact that she had been forced to move out of her own home when her ex-husband had failed to pay alimony and thereby left her unable to pay her utility bills, which “resulted in the utility companies cutting off the light, gas, and water.” Id. We also emphasized that Ms. Knuteson moved back to her own home “as soon as [she] could resume her normal life in her own home”—once Mr. Knuteson was forced to pay alimony, and the utilities were turned back on. Id. at 1389. This was the basis for our determination that the period of shared residence in Knuteson was “a temporary stay at another’s home.” Id. But this was not the establishment of a minimum period of shared residence. It was a holding based on the unique circumstances of the case, which highlighted that Ms. Knuteson’s stay was “temporary” in the sense that it was not a marriage-like shared residence, but the result of an unfortunate economic necessity.

¶57 Jillian’s and Okland’s shared residence bore little resemblance to the residence that Ms. Knuteson shared with a neighbor. So the Knuteson determination that two months and ten days was a “temporary stay” and not a marriage-like shared residence is not particularly helpful to the question presented here. And it is certainly not controlling under the flexible, multi-factored analysis under Myers.

¶58 In light of all the unique facts and circumstances of this case, we conclude that Jillian shared a residence with Okland for a sufficient period of time to support a determination of cohabitation. In so holding, we emphasize the deferential standard of review that applies to our review of a fact-intensive determination of cohabitation. And we acknowledge that the relatively brief period of Jillian’s shared residence with Okland is the most tenuous element of the inquiry into her alleged cohabitation.[14] But we affirm because we see no basis for a determination that the district judge exceeded the bounds of his ample discretion on the fact-intensive question presented for our decision.

IV. COSTS OF SCOTT I APPEALS

¶59 Jillian filed a motion for an award of the costs incurred in her appeal in the first appeal in this case (in Scott I). She invoked rule 34 of the Utah Rules of Appellate Procedure, which states that “if a judgment or order is reversed, costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). The district court denied that motion. We now reverse.

¶60 The simple standard set forth in rule 34 was satisfied here. In the Scott I appeal Jillian secured a reversal of the judgment entered against her. She did so on the basis of our determination that the governing statute required proof that an ex-spouse “is cohabiting at the time” of a motion to terminate alimony. See Scott I, 2017 UT 66, ¶ 33, 423 P.3d 1275.

¶61 That holding entitled Jillian to an award of her costs under rule 34. A “judgment or order” was “reversed” in Scott I. That required that “costs shall be taxed against the appellee unless otherwise ordered.” UTAH R. APP. P. 34(a). And we did not otherwise order. We reverse the denial of Jillian’s motion for an award of costs on that basis. And we remand to allow the district court to determine the amount of such costs in the first instance.

V. CONCLUSION

¶62 Our Utah standard of cohabitation requires a fact-intensive inquiry into the nature and extent of a couple’s “common residence, relationship, and interactions.” Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806. The goal is to determine whether these considerations sustain a determination that an ex-spouse has entered into a relationship akin to marriage. Such a determination triggers a deferential standard of review. We affirm the termination of Jillian’s right to alimony under that standard, while reversing the denial of her motion for costs on her first appeal.

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https://www.utcourts.gov/opinions/supopin/Scott%20v.%20Scott20200729_20180210_54.pdf

[1] This statutory language was amended in 2018 following our decision in Scott I. We cite to the “the version of the statute that was in effect at the time of the events giving rise to [the] suit.” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d 256 (alteration in original) (citation and internal quotation marks omitted).

[2] Okland “may have either owned or had use of a home in Scottsdale, Arizona” as well.

[3] The direct quote was, “[W]e pay cash for everything. We only financed a part of the plane!” (Emphases added.)

[4] In November 2010, Jillian endorsed one alimony check by signing and then writing “hahahahaha.”

[5] In the oral argument before the court of appeals, for example, Bradley argued that the “is” in the statute “just means are they cohabiting at some point after the divorce . . . , which is also consistent with what the parties themselves understood because . . . they . . . agree[d] to a decree that said [alimony] terminates upon cohabitation. They knew that’s what the statute meant and that’s what they agreed to.” And in his brief in both appellate courts Bradley asserted that “Ms. Scott’s argument is not supported by the statute, or by the stipulated Decree itself (which provides that alimony terminates ‘upon’ cohabitation).”

[6] The strategy was perhaps understandable, however, given that Jillian did not raise her statutory “is” argument until the case arrived at the court of appeals. For that reason, Bradley may have had no reason to ask the district court to adjust its order to rely on the decree rather than the statute. And because he had already won on statutory grounds before the district court, he may have simply thought he could do so again on appeal. Such an assumption would not have been completely unfounded. The question of timing under Utah Code section 30-3-5(10) that we considered in Scott I was a close call, as evidenced by the fact that Bradley convinced a panel of court of appeals judges that he should prevail under that statute.

[7] The court of appeals has occasionally employed a different standard of review in cohabitation cases. See, e.g., Hosking v. Chambers, 2018 UT App 193, ¶ 23, 437 P.3d 454 (reviewing the ultimate determination of cohabitation for correctness). To the extent those cases suggest that a different standard of review applies, they are hereby overruled.

[8] See Myers v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806 (noting that the hallmarks of marriage include “an intimate relationship”); id. ¶ 24 n.3 (identifying “the length and continuity of the relationship” as a factor that informs the cohabitation inquiry).

[9] See id. ¶ 24 n.3 (identifying “the amount of time the couple spends together” and “whether the couple spends vacations and holidays together” as cohabitation considerations).

[10] Id. ¶ 24.

[11] Id. (identifying “shared residence” as a hallmark of marriage).

[12] See Lilly v. Lilly, 2011 UT App 53, ¶ 13, 250 P.3d 994 (stating that “[a] person may . . . have multiple physical residences at any one time but only one domicile or legal residence”); see also 25 Am. Jur. 2d Domicil § 24 (2020) (”One does not lose one’s domicil by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new.”).

[13] See N.D. CENT. CODE ANN. § 14-05-24.1(3) (requiring cohabitation for one year); S.C. CODE ANN. § 20-3-130(B) (ninety days); VA. CODE ANN. § 20-109(A) (one year).

[14] Perhaps another judge encountering these same facts might have concluded that Jillian’s shared residence with Okland was for too short a period of time to sustain a determination that they cohabited in a manner that was akin to a marriage relationship. And perhaps we would also sustain that determination on a record like this one. But that just underscores the significance of the standard of review in a case like this one, and the importance of the district judge’s exercise of discretion.

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Who is responsible for debt when you get a divorce or if you break up?

Who is responsible for debt when you get a divorce or if you break up?

For the jurisdiction where I practice law (Utah), the law governing who can be made responsible for the payment of marital debts in divorce is very different from the law governing responsibility for debts incurred during the period of time a couple lives together without being married.

DIVORCE

Debts you and your spouse incurred jointly. The presumption in divorce is that responsibility for debts incurred jointly during the marriage (i.e., in the names of both the husband and the wife) be divided equally between the both spouses. But this presumption can be rebutted if it could be proven that there is a compelling equitable reason for an unequal division of responsibility for marital debts, such as one spouse having a significantly higher income than the other or if you can show that your spouse benefited from incurring the debt far more than you did.

But what about debts that you incurred during the marriage in your name only? Such as credit card debt for expenses you incurred for the benefit of the family? The presumption is that debts that incurred during the marriage in your name only will be your sole responsibility unless you can prove that the expenses you incurred in your name only were “family expenses,” meaning expenses that were not incurred for you sole or primary benefit, but for the benefit of both spouses or for the benefit of the parents and children or for the benefit of the children. In other words, just because the credit card or the loan or the invoice is in your name only, that doesn’t mean you should necessarily be the only one responsible for paying such a debt if the debt was for your son Jimmy’s braces, for your daughter’s wedding, or for a trip for two to Hawaii.

BREAKUP OF COHABITING UNMARRIED COUPLES

First, you need to understand the difference between mere roommates and a couple who lives together like a married couple but for the fact they are unmarried.[1]

There is both a quick, but oversimplified explanation for how the law works and a more complex explanation when dealing with division of responsibility for debts when an unmarried cohabiting couple breaks up.

The quick and oversimplified explanation: an unmarried couple that decides to live together clearly do not enjoy the same legal rights that married couples do. If a man and woman (or two gay men or two lesbians for that matter) decide they want to live together and have sexual intercourse with each other, but don’t want to be married, they certainly can do that, but one of the differences between married couples and near cohabiting couples is that one of the two members of the cohabiting couple cannot obligate the other for debts that one of them incurs. Because there is no family, one of the members of the couple cannot incur expenses as a “family expense” and thus make the other member of the couple liable for those debts or expenses. Simply (but not completely accurately) stated, cohabiting couples cannot obligate each other to debts and expenses without each other’s knowledge and consent.

The more complex explanation: You may have heard of concepts such as “palimony”; that doesn’t exist in Utah. But there are other equitable concepts that can be used to recover money from people (cohabiting or otherwise) who claim the lack of a formal contract as a means of taking advantage of others. Here are just a few:

Unjust enrichment. To establish under a claim for unjust enrichment, you must prove: 1) you conferred a benefit on your cohabitant; 2) an appreciation or knowledge of the benefit by your cohabitant; and 3) your cohabitant’s acceptance or retention of the benefit under such circumstances as to make it inequitable for your cohabitant to retain the benefit without payment of its value.

Quantum meruit (quasi- contract or a contract implied in law). To recover under quantum meruit, you must prove that your cohabitant received a benefit from you, had an appreciation or knowledge of the benefit, and accepted the benefit under circumstances that would make it unjust for him/her to retain it without compensating you.

Constructive trust. Courts recognize a constructive trust as a matter of equity where there has been (1) a wrongful act, (2) unjust enrichment, and (3) specific property that can be traced to the wrongful behavior. Such trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.

COMMON LAW MARRIAGE

Now remember, I am writing about what the law is in the jurisdiction where I practice divorce and family law (Utah). Utah recognizes common law marriage. Most states do not.

There are two different kinds of marriage in Utah: solemnized marriages and common-law marriages. A “solemnized marriage” is a marriage that involves the performance of a ceremony by someone authorized by the government to perform marriage ceremonies. A common law marriage is created in Utah if a couple has not entered into a solemnized marriage but who have instead entered into a contract and who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

So one way to get your cohabitant to be responsible for debts that you incurred in your name only, but for the benefit of you and your cohabitant and/or you and your cohabitants children during the period of time you were cohabiting together, would be if you could prove that you and your cohabitant were common law spouses. The problem is that most people who are cohabiting are doing so expressly for the purpose of not being married. They want to live together have sex together even have children together and essentially act like a married couple without having incurred the obligations of marriage. When that is the case, common law marriage cannot exist. There are a lot of people who have cohabited for years or even decades and then split up and are then shocked to discover that they do not enjoy the same rights as they would had they been married and were then seeking a divorce. Many of these people then tried to revise history to claim that their cohabitation relationship was in fact a common-law marriage. Consequently, the claims of unmarried people who claim to be common-law spouses for the purpose of obtaining financial benefits are met with skepticism, and proving common-law marriage is extraordinarily difficult to do.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] *Two or more guys or gals who live together as roommates in the same apartment to save money while they go to college, who aren’t engaged in a romantic relationship, who aren’t having sexual intercourse with one another—they are clearly not married and they are clearly not “shacking up”. Each roommate is on his/her own for his/her own debts. If one of them generously chooses to purchase groceries for everyone in the apartment without compensation, that’s a gift. The generous roommate cannot complain about all the money he or she is “owed” when he or she decides to move out. Roommates cannot very easily obligate one another to share expenses unless they agree to do so in advance.

https://www.quora.com/Who-is-responsible-for-debt-when-you-get-a-divorce-or-break-up/answer/Eric-Johnson-311

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Does cohabitation before marriage affect how long alimony is awarded?

Does cohabitation before marriage affect how long alimony is awarded?

How can cohabitation and marriage be calculated to determine the terms of a divorce judgment?

Great question.

How long can alimony be awarded?

In Utah, where I practice divorce and family law, alimony cannot (except in rare extenuating circumstances) “[a]limony may not be ordered for a duration longer than the number of years that the marriage existed” (Utah Code § 30–3–5(8)(j)).

Can alimony take into account any period of time we cohabited before marriage?

No. If, for example, you cohabited without being married for 5 years, then married and divorced after being married for, say, 4 years, the period of time for which alimony could be paid is 4 years, not 9, even though you cohabited for 9 years (five years before your marriage ceremony, then 4 years after your marriage ceremony).

The duration of alimony in Utah can only be, with rare exception, no longer than the number of years of marriage. This does not mean that alimony “shall be” equal to the length of the marriage, only that alimony can be awarded for a period equal to the length of the marriage, but it can also be (and usually is) awarded for a period less than the length of the marriage.

But what if you could claim that you entered into a common law marriage when you cohabited and then you later participated in a solemnized marriage ceremony?

Would a previously existing common law marriage mean that the subsequent solemnized marriage ceremony “revoked” the previous common law marriage? Would that mean that your “marriage clock” started over upon entering into the solemnized marriage? Or would the solemnized marriage have no effect on the existence of the common law marriage? It’s a very interesting question, and one that I’m not sure Utah case law has yet addressed or resolved.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-cohabitation-and-marriage-be-calculated-to-determine-the-terms-of-a-divorce-judgement/answer/Eric-Johnson-311

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Hosking v. Chambers – 2018 UT App 193 – termination of alimony

2018 UT App 193
The Utah Court of Appeals

CRAIG HOSKING,
Appellee,
v.
ERIN JO CHAMBERS,
Appellant.

Opinion
No. 20160444-CA
Filed October 12, 2018

Second District Court, Ogden Department
The Honorable W. Brent West
No. 044901699

Jason B. Richards, Brandon R. Richards, and Christopher Hill, Attorneys for Appellant
Troy L. Booher, Julie J. Nelson, and Laura M. Rasmussen, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1        After their divorce in 2008, Craig Hosking was ordered to pay alimony to Erin Jo Chambers. In 2012, suspecting that Chambers might be cohabiting with a new boyfriend, Hosking asked the district court to terminate his alimony obligation. After holding a two-day evidentiary hearing, the district court determined that Chambers was indeed cohabiting, and granted Hosking’s petition. Chambers appeals, and asks us to consider two issues. First, she asserts that the district court’s cohabitation determination was unsupported. Second, she contends that the district court failed to address certain other issues pertaining to the division of property in the decree of divorce. We affirm.

BACKGROUND

¶2        Because the two issues Chambers raises are grounded in different underlying facts, we set forth the facts relevant to each issue separately, in turn.

Cohabitation

¶3        Chambers and Hosking married in 1997 and divorced in 2008. As part of the decree of divorce, the court ordered Hosking to pay Chambers alimony of $8,000 per month for three years, then $7,000 per month for four additional years. Alimony would cease after seven years, or “upon the death of either party, or upon the re-marriage or co-habitation of [Chambers].”

¶4        In 2001, after making alimony payments for more than three years, Hosking ran across an obituary that described Chambers as the spouse of the deceased’s brother. His interest piqued, Hosking hired two private investigators to determine whether Chambers was cohabiting. One of the private investigators surveilled Chambers and her boyfriend (Boyfriend) daily from August to November 2011, and again during late December 2011 and early January 2012. The other private investigator surveilled Chambers’s Ogden residence daily for seventeen days in March 2012. In May 2012, after examining the results of the surveillance, Hosking filed a petition to terminate alimony, alleging that Chambers was cohabiting with Boyfriend.

¶5        In 2015, the court held a two-day evidentiary hearing to consider Hosking’s petition. Hosking introduced testimony from the two private investigators, and also presented documentary evidence obtained during discovery from Chambers and from Boyfriend, including bank statements, credit card statements, insurance policies, and other financial records. The investigators testified that Boyfriend owned a condominium in Provo, and traveled often for work, but that he spent the majority of his non-traveling time at Chambers’s residence in Ogden rather than at his condo in Provo.

¶6        The first investigator testified that, between late August and early November 2011, Boyfriend spent twenty-four nights at Chambers’s residence and only fifteen nights in Provo. The investigator observed that Boyfriend traveled frequently for work and would return to the Ogden residence after traveling. He also observed that Boyfriend often drove three vehicles, each of which was regularly parked at the Ogden residence. Boyfriend drove one of those vehicles—later determined to belong to Chambers—not only to his job in Provo, but to the airport where he left it for several days while apparently on a trip to Hawai‘i. The investigator also testified that Boyfriend stayed at the Ogden residence continuously from December 19 to 27, and again during the first weekend of January 2012. The investigator also testified that, during the entire period of surveillance, Boyfriend regularly attended church with Chambers in Ogden. He also observed that Boyfriend’s parents took care of the Ogden residence while Chambers and Boyfriend were out of town. On a separate occasion, the investigator observed Chambers take care of a house owned by a member of Boyfriend’s family.

¶7        The second investigator surveilled the Ogden residence for seventeen days in March 2012. He testified that he observed Boyfriend stay at the Ogden residence for thirteen of those nights, and that the house was empty the remaining four nights. He also testified that Boyfriend helped with yard work and household chores, and attended church with Chambers in Ogden. He testified that he observed the same three cars observed by the first investigator parked regularly at the Ogden residence, and that Boyfriend regularly drove all three cars. Moreover, he testified that two of these cars were registered to Chambers and Boyfriend jointly. He also testified that Boyfriend appeared to have independent access to the house, stating as follows: “He could come and go from the front door. He could come and go from the garage doors. He could come and go and leave the home at will. He didn’t need help from anybody. Never knocked on a door. Never stood outside and made a phone call.”

¶8        During this time period, Chambers was attempting to sell the residence, and the second investigator posed as a potential homebuyer in order to gain access to the interior of the house. While inside the house, the investigator observed men’s clothing in the closet of the master bedroom that matched the type of clothing that he observed Boyfriend wearing during his surveillance. He also observed men’s grooming products, including shaving cream and men’s shampoo, in the master bathroom.

¶9        The financial records presented by Hosking indicated that Chambers and Boyfriend owned two vehicles together and held five joint insurance policies. In addition, the records demonstrated that Chambers and Boyfriend had a joint bank account and frequently transferred various sums of money to each other, including large amounts up to $30,000. The two had applied for a mortgage on the Ogden residence together, first in 2008, and again in 2012. On the 2008 application, Boyfriend listed his Provo address as his residence, but on the 2012 application he indicated that he had lived at the Ogden residence for a year.

¶10      Chambers and Boyfriend disputed Hosking’s characterization of their living arrangements. Both testified that Boyfriend lacked independent access to the house, did not keep any clothes in the house, and did not meaningfully contribute to household expenses. Both testified that Boyfriend kept his Provo condo as his primary residence and only occupied the Ogden home infrequently and as a guest. Both testified that Boyfriend occasionally spent the night in Ogden because Chambers was afraid of the private investigators—whom Chambers and Boyfriend had noticed loitering near the residence—and that Boyfriend would often sleep in his car in front of the house. And both characterized the various transfers of money between themselves as loans with repayment obligations.

¶11      Chamber’s mother testified at trial, acknowledging that Chambers and Boyfriend had a very close relationship, and that at the time of a pretrial deposition, she did not know whether Chambers and Boyfriend were married or not. Chambers herself testified that she and Boyfriend became engaged in 2012 and remained so, but at the time of the 2015 hearing had not yet set a wedding date. Chambers admitted to having a sexual relationship with Boyfriend and frequently traveling with him. She also acknowledged that she and Boyfriend attended church and other family events together, and that she took care of Boyfriend’s brother (the subject of the aforementioned obituary) as he suffered from terminal cancer.

¶12      Boyfriend testified that he spent a large amount of time in the Ogden area, not necessarily because of Chambers, but because most of his extended family lived in the area, his dentist and doctor were located there, and he had several business dealings in the area. He testified that he usually spent only “two or three nights a month” with Chambers, but acknowledged that his presence in Ogden increased after they became aware of the surveillance, because he was concerned about Chambers’s welfare and worried that “there were people . . . harassing her and following her.” Boyfriend also acknowledged that he was engaged to Chambers and that they had a very close relationship; indeed, he testified that he was “in love with her” and that she was his “main concern in this life.”

¶13      After the two-day hearing, the district court concluded that Chambers and Boyfriend were cohabiting, and entered an order terminating Hosking’s future alimony obligations. In addition, the court concluded that the cohabitation had begun “at least as of September 2011,” and ordered Chambers to repay Hosking all of the alimony she received during the cohabitation. In reaching these conclusions, the district court found that Hosking’s “witnesses and evidence [are] more credible than [Chambers’s] witnesses and evidence,” and that the explanations offered by Chambers and Boyfriend “are not consistent or credible.” As a result of this credibility determination, the district court concluded that it would “resolve[] all inconsistencies in the evidence and therefore all disputed issues of fact in favor of [Hosking].”

Procedural History of Allegedly Unresolved Issues

¶14      The parties’ original divorce decree, which was based on a stipulated settlement agreement, specifically addressed several items of personal marital property, including two aircraft, but stated that “[a]ll other items of personal property will be resolved separately,” that “neither party has waived any claim or interest to any other personal property not covered herein,” and that “all such claims are hereby reserved by the Court.”

¶15      Following entry of the decree, the parties conducted discovery and negotiations for over a year regarding the remaining personal property items, before the district court held a one-day trial on the issue in July 2009. At that trial, after lengthy testimony regarding various items of personal property, Chambers attempted to raise an issue regarding an insurance payment deposited into a joint bank account while she and Hosking were still married. Hosking objected, on the ground that there was already an order regarding that money; Chambers conceded that such an order existed, but claimed she was now asserting that the money was a premarital asset and that the order was in error. The court stated that it “thought [the issue] was resolved” in earlier proceedings before the domestic relations commissioner and told the parties that they would “have to sort out what happened with the commissioner” and that the court would “reserve the issue for [the parties] to figure it out.” The court took the remaining issues presented at the July 2009 trial under advisement.

¶16      On January 6, 2010, the district court issued a decision dividing the items of personal property addressed at the July 2009 trial. Soon thereafter, Hosking filed a “Request for Clarification of Court’s 1/6/10 Decision and Request for Further Findings,” asserting that the court had erred in its division of the personal property. The parties continued to litigate various issues involving the exchange of personal property through the end of 2011.

¶17      In February 2012, Chambers filed a “Notice of Issues Still Pending Before the Court,” listing ten issues that Chambers believed to be still pending. In June 2012, the district court held a hearing on those issues, at which it heard arguments from both parties on each issue and concluded that it would “not re-open the divorce.” The transcript of this hearing is not in the record on appeal. In September 2012, the court issued an order stating that eight of the ten issues Chambers raised “were merged into” the divorce decree, and “declin[ed] to re-open or proceed on those issues” in any manner. The court stated that it would retain continuing supervision over “[p]ayment of [Chambers’s] portion of retirement accounts and [Chambers] taking [Hosking’s] name off of the” Ogden residence, as already ordered in the divorce decree. And the court stated that it would retain continuing supervision, “as needed,” over the parties’ respective transfer of minor items of personal property (referred to as “[p]ots and [p]ans”), as previously ordered.

¶18      Chambers did not appeal the September 2012 order, but continued to file motions asking the court to address issues of personal property. Hosking had petitioned the court to terminate alimony by this time, and Chambers sought to address personal property issues as part of those proceedings. In March 2015, Chambers filed a document entitled “Respondent’s Submission Regarding Pending Retirement and Personal Property Issues,” which sought “final review” of certain issues that Chambers had previously raised in her February 2012 filing, including “[a]ssets that belonged to [Chambers’s] children,” Chambers’s “premarital assets,” “[f]ixtures in the family home,” and “[a]ssets included earlier in the division of assets held within the California home.” In her filing, Chambers gave no specific description of what these assets or fixtures were.

¶19      On May 12, 2015, the court held a telephonic hearing – separate from the upcoming evidentiary hearing regarding cohabitation—to discuss the scope of the personal property and retirement issues that remained to be addressed. No transcript of this hearing is in the record on appeal, but the minutes of the hearing reflect that the court stated that it would “reconsider factual errors but not legal errors,” and would not readdress issues regarding “California property” that had been “previously decided.”

¶20      At the evidentiary hearing, the court primarily hear argument and testimony on the issue of cohabitation. There was also evidence given by two accountants regarding the correct present value of one of Hosking’s retirement accounts. No argument or evidence was presented regarding any personal property, or of any factual errors the court may have made in earlier decisions regarding personal property.

ISSUES AND STANDARDS OF REVIEW

¶21      On appeal, Chambers first challenges the district court’s cohabitation determination, arguing that its factual findings do not support its ultimate determination that cohabitation was present here. In her brief, Chambers appeared to be directly challenging some of the district court’s underlying factual findings, but abandoned that position at oral argument, stating there that she was “accepting” the district court’s underlying findings, but was challenging the court’s ultimate determination that those findings add up to cohabitation.

¶22      A district court’s “pure findings of fact” are “entitled to substantial deference on appeal,” and are to be disturbed by an appellate court only if they are “clearly erroneous.” Myers v. Myers, 2011 UT 65, ¶¶ 32, 34, 266 P.3d 806. Such findings of fact “entail the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind.” Id. ¶ 32 (quotation simplified). In the cohabitation context, such “pure” findings include whether a sexual relationship exists between putative cohabitants, as well as “the degree to which they share[] space or expenses” in a household. Id. ¶ 37.

¶23      In the cohabitation arena, however, other determinations that a district court must make are findings “premised on embedded questions of law, which are reviewed for correctness.” Id. ¶ 34. For instance, a district court’s determination that two individuals do or do not have a shared residence is a “mixed question of law and fact” that involves “embedded legal conclusions that are reviewed for correctness on appeal.” Id. ¶ 35. And the ultimate determination that two individuals are cohabiting is a “question[] of law on which no deference is due.”[1] Id. ¶ 36 (stating that “the impact of common residency and of a sexual relationship on the determination of cohabitation are questions of law on which no deference is due, since they do not call for proof but rather for argument” (quotation simplified)).

¶24      Next, Chambers “seeks a reversal of the [district] court’s decision to refuse to address substantial personal property issues.” This challenge is premised on the assumption that the trial court failed to address certain issues in this case. On this issue, Chambers “seeks a remand directing the trial court” to address the issues Chambers believes remain unaddressed. “It is the duty of the [district] court to find upon all material issues raised by the pleadings, and the failure to do so is reversible error.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 25, 414 P.3d 933.

ANALYSIS

I

¶25      The “ultimate inquiry” in any cohabitation case is whether there exists “a relationship akin to that existing between” a married couple. Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806. Although the uniqueness of each individual marriage-like relationship precludes the development of a hard and fast set of elements comprising cohabitation, our supreme court has identified three general “hallmarks” of the sort of relationship that constitutes cohabitation: “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. ¶ 24.

¶26      In this case, the district court determined that all three of these hallmarks were present in the relationship between Chambers and Boyfriend, and from this determination concluded that Chambers and Boyfriend had a relationship akin to a married couple. On appeal, Chambers challenges the district court’s determination regarding the existence of two of these hallmarks: (1) a shared residence, and (2) a common household involving shared expenses and shared decisions.[2]

A

¶27      A shared (or common) residence requires the “sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time.” Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). Cohabitation “implies continuity,” and an individual’s status as resident— rather than guest—is critical to a determination that a common residence exists. Id. at 673 (quotation simplified). Indeed, “a resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting.” Id.

¶28      Here, the district court’s unchallenged factual findings support the conclusion that Chambers and Boyfriend shared a common residence. In this case, unlike in Haddow, the court found that Boyfriend spent more time at the Ogden residence than he spent at any other residence, and that Chambers’s residence was therefore his “primary residence.” The district court based that finding on abundant evidence, including the investigators’ testimony about Boyfriend’s nightly whereabouts, as well as evidence that Boyfriend came and went from the house freely, received mail at the house, returned to the house when he came back from business trips, kept clothes at the house, kept his primary vehicles at the house, and asserted in a mortgage application that he resided there.

¶29      Chambers resists the district court’s determination, arguing that the evidence relied upon by the district court failed to support the conclusion that Chambers and Boyfriend lived together for more than a temporary or brief period of time. We find this argument unpersuasive. In Scott v. Scott, 2016 UT App 31, 368 P.3d 133, rev’d on other grounds, 2017 UT 66, 423 P.3d 1275, this court noted that “temporary” refers to “the couple’s state of mind—that is, whether moving in together is motivated or accompanied by a desire to operate as a couple for the foreseeable future or is simply an expedient arrangement with no enduring quality,” while “brief” has to do with “the duration of the stay.” Id. ¶ 22 (quotation simplified). There is no doubt that Chambers and Boyfriend envisioned a non-temporary arrangement; indeed, they were engaged to be married. And while we acknowledge that a longer surveillance period would give us a more comprehensive look at the relationship, we note that a court may consider even a short surveillance period to be “representative of a longer trend in the relationship.” See Levin v. Carlton-Levin, 2014 UT App 3, ¶ 17, 318 P.3d 1177 (stating that a “fifty-two-day observation window” was long enough, because it was “representative of a longer trend in the relationship” and did not “constitut[e] the entirety of their relationship”).

¶30      We therefore see no error in the court’s determination that Chambers and Boyfriend enjoyed a common residence.

B

¶31      While both an intimate relationship and common residency are necessary conditions for cohabitation, they are not sufficient—either alone or in conjunction with each other—to establish the existence of the type of marriage-like relationship that defines cohabitation. See Myers, 2011 UT 65, ¶ 22 (finding a shared residence and sexual relationship insufficient to establish cohabitation when the relationship “bore little resemblance to a marriage” (quotation simplified)). To constitute cohabitation, the relationship must also bear the hallmarks of “a common household in the sense of shared expenses, shared decision-making, shared space, or shared meals.” Id. ¶¶ 23–24 (quotation simplified).

¶32      The district court’s unchallenged factual findings provide ample support for its determination that Chambers and Boyfriend shared a common household. The district court specifically found that Chambers and Boyfriend “made many ‘big ticket’ decisions together, including numerous major financial decisions,” and referenced their joint bank account, their joint ownership in vehicles which they jointly insured, their money transfers back and forth, and the fact that they twice jointly applied for a mortgage on the Ogden residence. The court also found that Chambers and Boyfriend “shared expenses in particular situations,” would go shopping together, and would take at least some of their joint purchases to the Ogden house. The court also referenced the fact that the couple often vacationed together, attended church together, and had “extensive involvement in each other’s extended families.” The court also noted that Chambers’s own mother, at the time of her deposition, did not know whether or not Chambers and Boyfriend were married, and that Boyfriend’s brother’s obituary listed Chambers as Boyfriend’s spouse.

¶33      On this record, we discern no error in the district court’s determination that Chambers and Boyfriend shared a common household. See Levin, 2014 UT App 3, ¶ 16 (affirming the district court’s determination regarding common household where the couple shared meals, shared responsibility in care and upkeep of the home, shared in living expenses, and made major financial decisions together).

C

¶34      Much of the evidence in this case was contested, and it is certainly conceivable that a district court could have made different credibility determinations, and accordingly made factually-supported findings on many of the issues in favor of Chambers and Boyfriend. But the district court in this case found Hosking’s witnesses much more persuasive than Chambers’ witnesses and, as a result, made a series of “pure” factual findings, all supported by competent (if contested) evidence, that comfortably support the conclusion that Chambers and Boyfriend were cohabiting.

¶35      As noted, the district court’s ultimate “determination of cohabitation” is a question of law on which no deference is due. See Myers, 2011 UT 65, ¶ 36. But that determination was informed by amply-supported findings of fact, and we cannot perceive any error in the district court’s ultimate conclusion. It is true that “there is no single prototype of marriage that all married couples conform to,” see id. ¶ 24, but the relationship enjoyed by Chambers and Boyfriend, as characterized in the district court’s unchallenged factual findings, has all of the hallmarks of a marriage-like relationship. We therefore affirm the district court’s ultimate conclusion that Chambers and Boyfriend were cohabiting, and that they began cohabiting no later than September 2011.

II

¶36      In her second argument, Chambers “seeks a reversal of the [district] court’s decision to refuse to address substantial personal property issues,” and “seeks a remand directing the [district] court” to address the issues Chambers believes remain unaddressed. This argument fails for the simple reason that the district court did not fail to address the issues Chambers raises. The district court addressed the issues, but did so in a manner that Chambers did not like, namely, by determining that it had already dealt with them.

¶37      As noted above, the district court held a series of post-decree hearings and trials on various issues of personal property, issuing rulings in 2009 and 2010. Ultimately, in 2012, after Chambers kept filing motions asking for further relief, the court determined that all of the issues raised had already been decided in previous orders, or had been merged into the original decree of divorce. In that order, the court offered to retain supervision, “as needed,” over certain personal property rulings made in its January 2010 order, but in our view this statement did not constitute an admission that certain issues remained open for adjudication; rather, this statement indicated the court’s willingness to supervise the parties, “as needed,” in their implementation of orders already made.[3]

¶38      If Chambers thought that the district court was wrong in any of its findings or conclusions as set forth in that 2012 order, Chambers had the opportunity to take an appeal from that order. But she elected not to appeal that order, and cannot do so now.[4] And to the extent that Chambers’s 2015 filing was a motion asking the court to reconsider its previous rulings, we perceive no abuse of discretion in the district court’s decision to decline such reconsideration. See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615 (stating that district courts are “under no obligation to consider motions for reconsideration,” and that a court’s “decision to address or not to address the merits of such a motion is highly discretionary” (quotation simplified)).

CONCLUSION

¶39      The district court committed no error in concluding, based on its amply-supported factual findings, that Chambers and Boyfriend were cohabiting. And Chambers’s second argument is without merit, because the district court did address the issues Chambers raises, just not in a manner Chambers liked. Accordingly, we affirm.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] In other similar contexts in which a district court is asked to make a determination regarding a mixed question of law and fact, Utah appellate courts afford district courts far more discretion than Myers permits in the cohabitation context. See Myers v. Myers, 2011 UT 65, ¶ 34, 266 P.3d 806. In other contexts, a district court’s determination regarding mixed questions of law and fact is reviewed deferentially, because such determinations are “highly fact-dependent,” and have “numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts.” See Judd v. Bowen, 2018 UT 47, ¶ 8 (quotation simplified) (affording district courts discretion in determining whether “the legal standard for establishing a prescriptive easement” is met); see also State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (stating that the ultimate decision about whether to terminate a parent’s rights “presents a mixed question of law and fact,” but that due to the “factually intense nature” of the analysis, a court’s final decision regarding termination of parental rights “should be afforded a high degree of deference”); State v. Pena, 869 P.2d 932, 936–39 (Utah 1994) (stating that “the reasonable-suspicion legal standard is one that conveys a measure of discretion to the trial judge when applying that standard to a given set of facts”), abrogation on other grounds recognized by USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 40 n.36 372 P.3d 629. While we wonder why our supreme court has prescribed a more restrictive standard of review for district court determinations in the cohabitation arena than in other similar contexts, we recognize that we are bound to follow Myers, and therefore apply the standard of review set forth there.

[2] As noted, Chambers does not challenge any of the district court’s “pure” factual findings, including its finding – based largely on her own admission – that she and Boyfriend “shared an intimate or sexual relationship.”

[3] Neither in her briefing on appeal nor in her filings before the district court did Chambers set forth exactly what the issues are that she wanted the district court to address. In her appellate brief, she devotes just over one page to the entire issue, and never makes any meaningful effort to specify what particular issues were not addressed. As noted, she included a general description (e.g., “premarital assets,” “fixtures”) of these issues in one of her filings before the district court, but made no effort to specifically identify the items. In addition, she fails to include in the record on appeal a copy of the transcript of the May 12, 2015 telephone conference at which the district court discussed these issues, and made determinations about whether and to what extent these issues had already been addressed. Under these circumstances, Chambers has not carried her burden on appeal. See Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612 (stating that “it is the appellant’s burden to assemble, transmit, and perfect the record on appeal,” and holding that, where the appellant had failed to provide a transcript of a relevant hearing, the appellant had failed to carry its burden of demonstrating district court error). Chambers’s failure to provide a specific description of the issues she complains of, or a transcript of the relevant hearing, provides an independent basis for us to reject her second argument.

[4] In her brief on appeal, Chambers gave no hint that she was attempting to appeal the September 2012 order; in her brief, her argument was that the district court failed to address the issues, not that it had addressed them in a previous order. At oral argument, however, Chambers appeared to change tactics to assert that she was indeed seeking to challenge the September 2012 order. To the extent that Chambers is asking us to review the district court’s September 2012 order, this request suffers from two fatal infirmities. First, “[w]e do not address issues raised for the first time during oral argument.” Porenta v. Porenta, 2017 UT 78, ¶ 33, 416 P.3d 487. Second, the time to appeal the 2012 order has long since expired. That order was a final order, because it purported to finally resolve the issues presented, and she had thirty days from the entry of that order to file a notice of appeal. See Utah R. App. P. 4(a); see also America West Bank Members, L.C. v. State, 2014 UT 49, ¶ 11, 342 P.3d 224 (“Our general rule in determining whether an order is final is whether the effect of the ruling is to finally resolve the issues.” (quotation simplified)); Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982) (stating that orders enforcing a divorce decree “are independently subject to the test of finality, according to their own substance and effect”); Ross v. Barnett, 2018 UT App 179, ¶ 20 (“Where the effect of a postjudgment order is to determine substantial rights and end the litigation regarding a specific issue in a supplemental proceeding, the order will be a final order for purposes of appeal.” (quotation simplified)). Her time to appeal that order expired in October 2012, and we are without jurisdiction to consider an appeal from that order now. See Express Recovery Services, Inc. v. Wall, 2012 UT App 138, ¶ 2, 278 P.3d 628 (per curiam) (“If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal.” (quotation simplified)).

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Scott v. Scott – 2017 UT 66 – Utah Supreme Court – September 21, 2017 – termination of alimony for cohabitation

This opinion is subject to revision before final publication in the Pacific Reporter

2017 UT 66

IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Petitioner,

v.

BRADLEY SCOTT, Respondent.

No. 20160299

Filed September 21, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Judge Robert P. Faust

No. 124903563

Attorneys:

Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher,  Julie J. Nelson, Salt Lake City, for petitioner

Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, for respondent

JUSTICE PEARCE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM and JUDGE BROWN joined.

Having been recused, JUSTICE HIMONAS does not participate herein; DISTRICT COURT JUDGE JENNIFER A. BROWN sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Jillian Scott petitions this court to overturn the Utah Court of Appeals’ order affirming the district court’s conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under Utah Code section 30-3-5(10). This requires us to revisit a question that captured the nation’s attention in 1999 because the meaning of section 30-3-5(10) “depends upon what the meaning of the word ‘is’ is.” We conclude that the legislature intended that is should mean is and not was or has been.

We reverse.

BACKGROUND

¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, “Alimony shall terminate upon the remarriage or cohabitation of [Wife].”

¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex-boyfriend. Husband argued that Wife had begun “cohabit[ing] with an adult male . . . on or about February 2011,” that Wife had a relationship with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time.” Wife and J.O. had broken up months before Husband filed his motion. The statutory language[1] governing termination of alimony provides that alimony “terminates upon establishment by the party paying alimony that the former

spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10).[2]

[1] The court of appeals’ opinion correctly noted:

The parties’ decree of divorce differs from the language contained in Utah Code section 30-3-5(10). . . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ decree is substantively identical to the statute on the issue of cohabitation.

Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379 P.3d 1183 (Utah 2016). On certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree’s language.

[2] The Utah statute employs the verb cohabitate. See UTAH CODE § 30-3-5(10). We, however, use the more common term cohabit throughout this opinion when not quoting the statute. See Cohabit, GARNER’S MODERN AMERICAN USAGE (4th ed. 2016) (“Cohabitate is a misbegotten BACK-FORMATION that has never seriously competed with cohabit in print sources. . . . Current ratio (cohabiting vs. cohabitating): 8:1.”).

¶4 The district court found that Wife and J.O. had cohabited and that their cohabitation terminated Husband’s obligation to pay Wife alimony. The court stated that “[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple, who without those resources, cohabitate in a single home.” The court found it significant that Wife and J.O. had been “together or staying in one of [J.O]’s homes approximately 87% of the time from December 2010 onward.” Thus, considering the details of the couple’s intimate and exclusive 30–31-month relationship ending sometime before April 2011, the district court found that the evidence before it established “cohabitation and a relationship akin to a husband and wife.” The court ordered Wife to return to Husband “any alimony paid to her from December 22, 2010 to the present.”[3]

[3] We omit the details of Wife and J.O.’s time spent together at their various homes and vacation destinations, recounted at length in the court of appeals’ opinion, Scott, 2016 UT App 31.

¶5 Wife appealed and argued to the Utah Court of Appeals that the district court’s interpretation of the statute failed to account for the present tense of the to be verb “is” in the statute. See UTAH CODE § 30-3-5(10) (alimony should dissolve upon establishment that “the former spouse is cohabitating”). Under Wife’s reading, Husband could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that in order to terminate Husband’s obligation under the plain language of the statute, Husband had to show that she was cohabiting at the time he filed his motion to terminate alimony.

¶6 Husband contended to the court of appeals that Wife’s statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, “that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory interpretation argument “regardless of whether it was properly preserved.” Id.

¶7 The court of appeals disagreed with Wife’s plain language argument. The court explained that “[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute.” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “when the present-tense [to be] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive.” Id. ¶ 32 (internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “terminates upon establishment” of cohabitation. Id. (emphasis added); UTAH CODE § 30-3-5(10). The court of appeals determined that, because the statute lacks a provision allowing for “alimony reinstatement once cohabitation ends” or a provision explaining “that alimony is only suspended during cohabitation,” “the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it with such a burden.” Scott, 2016 UT App 31, ¶ 32.

¶8 The court of appeals also reasoned that the legislature “could not have intended” the result Wife’s briefing described. Id. ¶ 33 (citation omitted). The court acknowledged “that requiring termination of alimony in [Wife’s] circumstances does not entirely align with the general economic policies underlying alimony.” Id. ¶ 35. “[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not.” Id. But the court explained that

interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature’s intent.

Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “a common abode” that was also their “principal domicile” for “more than a temporary or brief period of time,” the court rejected Wife’s argument and upheld the district court’s conclusion that Wife and J.O. had cohabited. Id. ¶¶ 16–26.

¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court’s timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, “because their vacations together before they moved to [California] still retained a temporary quality.” Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife’s payment to Husband to reflect the dates it found significant. Id. ¶ 38.

¶10 We disagree with the court of appeals’ reading of the cohabitation statute. We instead conclude that the plain language of Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.[4]

[4] Because we conclude that Husband did not establish that Wife cohabited within the meaning of the statute, we do not reach the merits of Wife’s other contentions arguing that the court of appeals erred in its application of the law.

We also clarify an appellee’s burden of persuasion on certiorari when the court of appeals addresses an issue that the appellee claims was unpreserved.

¶11 We have jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶12 On certioriari, we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. “We also review questions of statutory interpretation . . . for correctness.” Id.

ANALYSIS

I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited

¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband’s argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, “[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved.” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.

¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that

consideration of the [statute] is necessary to a proper decision. As the state’s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant’s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.

Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation question.

¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceedings by requiring a party to advise a trial court of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hopes of enhancing her chances of prevailing on appeal. Thus, we require a party to present an issue “in such a way that the [district] court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in original) (citation omitted). We “exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal.” Id. ¶ 13. And we have used that discretion to carve out a few exceptions to the preservation requirement. For example, “we have reached matters not raised below under ‘exceptional circumstances’ or when ‘plain error’ has occurred.” Id. Stated differently, absent some exception, we do not normally address unpreserved issues.

¶16 This case does not present the normal situation. We are not asked to address an issue that a party is raising for the first time on appeal. Rather, we are asked to address an issue that the court of appeals determined it needed to resolve, even if it were unpreserved.

¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in the trial court. See Record, passim. Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of appeals should not have touched the unpreserved issue in the first place.

¶18 We have the ability to affirm a decision on any ground apparent on the record. “[I]t is well established that an appellate court may affirm” a judgment “if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002 UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a court of appeals ruling where that court erroneously addressed an unpreserved issue.

¶19 That is not to say, however, that an appellee may simply flag the preservation problem and expect that we will exercise our discretion to ignore the court of appeals’ decision and affirm for a lack of preservation. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in the matter, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals erred in tackling the unpreserved issue and that the error is “apparent on the record.” This is especially important in a case like this where the court of appeals explained its rationale for reaching the arguably unpreserved issue. In this circumstance, the party may want to argue that the unpreserved issue did not implicate plain error, did not present any exceptional circumstance, or that it was not necessary for the court of appeals to address the issue to reach a proper conclusion. Husband did none of these.

¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the Cohabitation Provision should be interpreted. The court of appeals believed that even if the statutory argument was not preserved, it needed to construe the statute to properly resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in Patterson. But in the absence of parties willing to develop those arguments, we are reluctant to wade in on our own. Simply stated, the decision to affirm on other grounds lies in this Court’s discretion and Husband has provided us little reason to exercise that discretion on the record before us.

¶21 As we previously stated, the resolution of this case turns on what the definition of is is. Utah Code section 30-3-5(10) provides that

alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.

(Emphasis added). Wife argues—both to us now and previously to the court of appeals—that the statute’s use of “is” requires that cohabitation be ongoing to terminate alimony under the plain language of the rule.[5]

[5] We note that the language of the divorce decree may point to a different result. See supra ¶ 3 n.1. That language provides that “[a]limony shall terminate upon the remarriage or cohabitation of [Wife].” We again note that, while the court of appeals drew this to the parties’ attention, see Scott, 2016 UT App 31, ¶ 9 n.2, neither party argues on certiorari that we should decide this case under the language of the divorce decree or that the decree’s language demands a different result.

She contends that the court of appeals erred when it interpreted is to mean was. The court of appeals understood Utah Code section 30-3-5(10) to permit a showing that the spouse collecting alimony was or had been cohabiting at some previous date, regardless of whether the spouse was actually cohabiting at the time of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain language analysis that considered the cohabitation provision both “as a whole” and “in harmony with” the other provisions of the statute, id. ¶ 28 (citation omitted), the court of appeals determined that Wife’s “present cohabitation” reading was erroneous regardless of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First, the court believed the statute’s later use of the verb terminates “precludes an interpretation that alimony might then be reinstated should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s interpretation “could lead to results that the legislature ‘could not have intended.’” Id. ¶ 33 (citation omitted). And, finally, it complained that Wife “offered no guidance on how to feasibly implement” a present-tense reading. Id. ¶ 34. Wife contends that the most reasonable interpretation of the statute is hers: that the plain language of the statute “requires that cohabitation be ongoing to terminate alimony.”

¶22 When we interpret statutes, “our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).

Since “‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” In so doing, “[w]e presume that the legislature used each word advisedly.” . . . When we can ascertain the intent of the legislature from the statutory terms alone, ”no other interpretive tools are needed,” and our task of statutory construction is typically at an end.

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals’ opinion no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.

¶23 We believe the court of appeals erred in reading less into the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense—‘has cohabited’—which would have ‘denote[d] an act, state, or condition that is now completed or continues up to the present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original) (citation omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option.”). And the court of appeals admitted that

the strongest statutory support for Wife’s interpretation of the [statute] is the use of the presenttense “is.”

Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for Wife’s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon establishment “that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting” is a verb phrase comprised of two verbs: the present tense auxiliary “is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORDDICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present participle of any verb—like cohabiting—paired with is creates a “continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). In light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing cohabitation meets the statute’s terms head-on.

¶24 A statutory reading that credits a verb’s tense is not uncommon. Our own court of appeals relied on similar reasoning in Prows v. Labor Commission: “Typically, we understand ‘is’ as a present-tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise. See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a statute according to the “present perfect tense”). And Utah is in good company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.’” (omission in original) (quoting 1 U.S.C. § 1); United States v. Williams, 462 F. Supp. 2d 342, 344 (E.D.N.Y. 2006) (“In short, ‘is’ means ‘is,’ not ‘is or was’ or ‘is, depending on the chronology of events.’”), aff’d sub nom. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); see also AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations omitted) (“This is not the first time a judicial body has been presented with the surprisingly difficult task of discerning the meaning of a monosyllabic word of repeated, everyday usage.”). Not for nothing, the Supreme Court of the United States has likewise indicated that, “[c]onsistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”).

¶25 The court of appeals reached a contrary conclusion reasoning that the Cohabitation Provision immediately follows the Remarriage Provision and that “[i]t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financial support.’” Scott, 2016 UT App 31, ¶ 29 (citation omitted). Viewing the statute through the prism of the statute’s purported purpose, the court of appeals concluded that its reading would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.

¶26 The court of appeals noted that the only significant difference between Utah Code section 30-3-5(9), the Death or Remarriage Provision, and section 30-3-5(10), the Cohabitation

Provision, is “the means by which termination [of alimony] occurs.” Id. ¶ 29. The language of the Death or Remarriage Provision provides that alimony terminates automatically “upon the remarriage or death” of the former spouse; however, the Cohabitation Provision provides that alimony terminates “upon establishment . . . that the former spouse is cohabitating.” UTAH CODE § 30-3-5(9), (10) (emphases added).[6]

[6] Husband cites Black v. Black for the proposition that cohabitation need not be ongoing: “the order imposing alimony terminate[s] automatically upon the establishment of cohabitation.” 2008 UT App 465, ¶ 8, 199 P.3d 371. This passage is court of appeals dicta and does not bind us. Moreover, in light of our decision today, it misstates the law.

But because the court of appeals posited that the legislature must have wanted both provisions to operate in a similar fashion, it looked to harmonize the statutes in a fashion that would permit the “alimony consequences” to “take effect as of the date cohabitation began,” and consequently minimized the differences in the statutory language. Scott, 2016 UT App 31, ¶ 31. But if we start from the premise that we should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish, the difference in the language assumes greater importance. See, e.g., Penunuri, 2013 UT 22, ¶ 15 (“Because ‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” (alteration in original) (citation omitted)); Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d 751 (“To discern legislative intent, we first look to the plain language of the statute.”); K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994) (“When faced with a question of statutory construction, we look first to the plain language of the statute.”). Starting with the plain language, we can infer that the legislature intended that alimony cease upon remarriage or death, but that, in the case of cohabitation, it would terminate upon establishment of present cohabitation— even if that meant that the provisions would operate differently.[7]

[7] The court of appeals also resisted this conclusion because it might allow for “alimony reinstatement once cohabitation ends.” Scott, 2016 UT App 31, ¶ 32. The court of appeals opined that if the legislature wanted this result, it could have said so explicitly, perhaps by including a provision that stated “that alimony is only suspended during cohabitation.” Id. We see two issues with this conclusion. First, as written, the statute does not suspend alimony during cohabitation. The statute’s plain language does not require the resumption of alimony payments after the paying spouse establishes cohabitation, even if the cohabiting later ends. The seemingly anomalous result the court of appeals assails will occur only when the cohabitation begins and ends before the paying spouse can file a termination petition. Second, although we wholeheartedly agree with the court of appeals that the legislature could have been clearer, we are not justified from departing from the plain language of the statute just because we can envision a manner in which the legislature could have expressed its intent more clearly.

¶27 We understand the court of appeals’ instinct to push against the result the plain language yields, and we understand the temptation to read the statute in a fashion that treats cohabitation identically to remarriage. It may seem incongruous that a marriage lasting forty-eight hours will terminate alimony but that a cohabiting relationship lasting years may not if that relationship ends before the paying spouse files to terminate alimony. But we do not believe, as the court of appeals did, that this is a result that the legislature “could not have intended.” Scott, 2016 UT App 31, ¶ 33 (quoting Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (invoking “absurdity” doctrine)).

¶28 Both Husband and the court of appeals invoke the absurdity doctrine without calling it by name. The absurdity doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley, 2016 UT 48, ¶ 27.

[T]his court will not apply the absurdity doctrine unless “the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” This standard is satisfied only if the legislature could not reasonably have intended the result.

Id. ¶ 28 (second alteration in original) (omission in original) (citations omitted). We concede that the legislature could have intended a different result—in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome—but we do not believe that the result the plain language dictates is absurd, let alone “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” Id. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result.[8]

[8] Of course, parties unhappy with this statutory default may choose instead to agree to a divorce decree that terminates alimony upon cohabitation.

¶29 The court of appeals also sought to avoid the decision we reach because it believed that “there is the potential that the couple will simply cease cohabitation in advance of that date to avoid the consequence if the Cohabitation Provision were to require that the recipient spouse ‘is cohabitating’ at the time of hearing or trial.” Scott, 2016 UT App 31, ¶ 34.

¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The present tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends upon the state of things at time of the action brought.’ . . . [The timeof-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.”) (citations omitted); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context); W. VA. CODE § 49-4-601(i) (requiring findings to be “based upon conditions existing at the time of the filing” in child abuse and neglect context); 38 U.S.C. § 109 (1991) (providing that no benefit “shall be extended to any person who is not a resident of the United States at the time of filing [a] claim”).

¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized, i.e., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple who has been warned a paying spouse is planning to move to terminate alimony could choose to stop cohabiting to avoid the termination. And, if that occurs, the continued payment of alimony would square with the policy behind alimony. See Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] from becoming a public charge” (citation omitted)); Myers v. Myers, 2010 UT App 74, ¶ 12, 231 P.3d 815 (stating that “the principal purpose of alimony is economic”). To the extent that a cohabitant might engage in subterfuge to create the appearance that the cohabiting has terminated when it has not, we trust our district courts and the adversarial system to do their best to detect efforts to manipulate the outcome. See generally Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996) (finding that boyfriend and former spouse resided together under Utah Code section 30-3-5(6) (1989) although boyfriend maintained a separate apartment, among other things).

II. Wife Is Not Entitled to Attorney Fees in Defending Husband’s Petition to Terminate Alimony

¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under Utah Code section 30-3-3. The statute provides for an award of attorney fees “in any action to establish . . . alimony” or “[i]n any action to enforce an order of . . . alimony”; it does not provide for attorney fees to defend an action to terminate alimony. UTAH CODE § 30-3-3(1), (2) (emphases added). Here, there is no allegation that Husband failed to continue to pay alimony. This is not a situation where the paying spouse stops paying and the receiving spouse must petition the district court to intervene and enforce its order. Thus, Wife’s efforts to resist Husband’s motion to terminate alimony are not compensable under Utah Code section 30-3-3’s plain language.

CONCLUSION

¶33 We conclude that Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony. We clarify that an appellee wishing to contest our review of an arguably unpreserved issue already reached by the court of appeals has an obligation to explain how the court of appeals erred in reaching the unpreserved issue. Finally, defending a motion to terminate alimony does not entitle the defending spouse to an award of attorney fees under Utah Code section 30-3-3.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Advances in Technology and Termination of Alimony in Utah

Under Utah Code Ann. § 30–3–5(10) unless otherwise provided in the divorce decree, alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See, Levin v. Carlton-Levin, 2014 UT App 3, ¶ 10, 318 P.3d 1177, 1179-80.

What is cohabitation? How do you prove that a couple is cohabitating? What type of evidence can be used to prove that cohabitation exists?

First, what does cohabitation mean under Utah Code §30-3-5(10)? Cohabitation occurs when a couple is living together, and carrying a marriage like relationship. Courts have turned to look at a number of factors in determining whether cohabitation exists.

  1. Are they living together (this does not mean what most people think, so read on)?
  2. Is there sexual intercourse in the relationship?
  3. Do they share in the household expenses?
  4. Do they share in the household decisions?
  5. Do they share a living space?
  6. Does the relationship resemble that of a married couple?
  7. How long have they been together?

Cohabitation can be challenging to prove, and expensive. Oftentimes people have turned to private investigators to follow their former spouses and/or use secret surveillance techniques in the hope of trying to catch their former spouses in the act. Utah Courts have stated that a couple living together, even if they are physically intimate, does notautomatically mean there is cohabitation for purposes of the statute. See Myers v. Myers, ¶ 39 266 P.3d 806  (2011 Utah Supreme Court). The nature, quality, and volume of the evidence is crucial in determining whether a couple is cohabitating.

Improvements in technology now make it easier than ever to gather evidence to prove cohabitation. In 2014, the Utah Court of Appeals decided that an ex-wife (to whom the ex-husband had been paying $15,000 per month in alimony) was cohabitating based on evidence gathered through a GPS tracking system and cell phone data records (Levin v. Carlton-Levin, 318 P.3d 1177, (Utah Court of Appeals 2014). The private investigator used the raw data from the GPS tracking system to determine when the vehicle that was owned by the boyfriend went to and from the residence of the former spouse. Cell phone records were used to determine the location of the parties at the time the calls they were placing were originated. As a result the court determined that the former spouse and her boyfriend were cohabitating and terminated alimony. In addition to using GPS tracking systems, and cell phone tower data, courts have looked at bank statements, video surveillance, and other types of technology in determining whether cohabitation existed.

Still, Utah’s Supreme Court has never “delineate[d] a list of required elements of cohabitation because there is no single prototype of marriage that all married couples conform to.” (Myers v. Myers, ¶ 24, 266 P.3d 806). What Utah courts have done “is identify general hallmarks of marriage” (and thus cohabitation). “Those hallmarks include a shared residence, an intimate relationship, and a common household” involving shared expenses, shared decisions, shared space, and shared meals. Id. ¶¶ 23–24. There are a number of other possible factors “that might more completely inform the question whether a relationship resembles that of a married couple,” such as “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.” Id. ¶ 24 n. 3. FN4

So keep in mind as you are going through the process of divorce in Utah and moving on with your life that technology can help keep both parties a little more honest, because it will be harder to hide if someone is lying, and easier to prove.

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