Gilman v. Gilman , 114 Nev. 416 ( 1998 )

Springer, C. J.,

concurring in part and dissenting in part:

I concur in the Gilman case and dissent in the Callahan case.

The reason that I agree with the judgment in the Gilman case is that the family court properly applied the agreed-upon standard for modifying support, namely, whether the person with whom Marjorie was cohabiting “significantly” contributed to her support. In accordance with the agreement of the parties, the court simply ruled that the “adult male” with whom Marjorie was cohabiting did not “significantly contribute” to her support and that, therefore, Richard was not entitled to relief. The court was acting well within its discretion when it ruled that there was not such a significant contribution as to justify a modification; so I would affirm the family court’s judgment in the Gilman case.

I dissent in Callahan because, absent the kind of negotiated agreement present in Gilman, the family court had to apply general principles of law in deciding whether modification was justified. In my opinion, it was error for the family court to ignore the fact that Valerie had been living for a time with “Chuck,” with whom she was “acting in every way as if they were married except the legal solemnization of the marriage.” The family court ruled that this marriage-like “cohabitation was not a fact that [the court] was considering would warrant termination of spousal support.” The majority opinion agrees with the family court’s judgment in this regard. In my opinion, this kind of “marriage-like” relationship should not only be considered by the family court, it should create a rebuttable presumption of a change in circumstances.

When a man and woman live together “as if they were married” they create a legally-cognizable status, a status that might, in Nevada, be properly called a “Michoff marriage.” A Michoff¹ marriage is created when two people cohabit in such a way as to entitle either party to make claims against the other for “palimony” and for community property “by analogy.” Michoff marriages are a creature of Michoff, which allows “inter-cohabitant” claims to be made based upon a supposed “implied contract” that is created by virtue of the cohabitation. It is my position that an alimony-receiving ex-spouse cannot “have it both ways” — that is, cannot put himself in a position where he is entitled to receive palimony and property division by virtue of a Michoff marriage and also be entitled to continue to receive alimony from a former spouse.

I argue in this dissent that, at the very least, a rebuttable presumption of disentitlement to continued alimony should follow from a Michoff marriage and, further, that there are persuasive reasons for concluding that the presumption should be irrebuttable in cases where an alimony-receiving spouse’s claim to palimony has matured by reason of ripening support and property rights attendant to a Michoff marriage. I dissent because the common law of this state, per Michoff, 108 Nev. at 938, 840 P. 2d at 1124, requires that the marriage-like status created by “as-if-they-were-married” cohabitation, of itself must be seen as “changed circumstances” that must, at the very least, be considered by the family court in any alimony modification proceeding.

It should be kept in mind that the words “cohabitation” and “cohabiting” are words of particular legal significance that carry more meaning than merely living under the same roof. Merely living with a person of the opposite sex does not constitute cohabitation. In re Marriage of Thweatt, 157 Cal. Rptr. 826 (Cal. Ct. App. 3d 1979). To be cohabitants, it is not necessary that the cohabiting parties hold themselves out as husband and wife. Id. at 828. To be “cohabiting,” the parties must be engaged in a romantic or homemaker-companion relationship that resembles the marital relationship, but without a formal marriage ceremony. Id. Michoff recognizes the “cohabiting” status that arises out of one’s being an “unmarried cohabitant!]” and recognizes the right of one unmarried cohabitant to sue the other in family court, “seeking one-half of the parties’ assets.” 108 Nev. at 933, 840 P.2d at 1221. In Michoff, this court ruled that “the remedies in Marvin² are available to unmarried cohabitants” and that, accordingly, “adults who voluntarily live together,” in addition to acquiring rights to be supported by the other cohabitant (facetiously called “palimony”), may acquire property rights “during the relationship in accord with the law governing community property.” Michoff, 108 Nev. at 938, 840 P.2d at 1224.

According to Michoff, the laws of spousal support and “the community property laws of the state will apply by analogy,” at some stage of extra-marital cohabitation. Id. (quoting Hay v. Hay, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984)). The Michoff right of an unmarried cohabitant to “seek[] one-half of the parties’ assets” rests on the parties’ having cohabited and thereby “impliedly agreed to hold their property as though they were married.” Id. at 938, 840 P.2d at 1224. Although Michoff did not deal with palimony, because it expressly adopted Marvin, Michoff cohabitants are in a position to prove a case that would entitle them to recover both palimony as well as “one-half of the [other] part[y’s] assets.” My point is that Michoff cohabitants become vested with a right to sue for support and property distribution benefits, and Michoff status necessarily has a significant bearing on the alimony-paying spouse’s obligation to support a former, but now “cohabiting,” spouse. It cannot be denied that Michoff cohabitation gives rise to claims of implied agreements to support and for property division at the termination of the cohabitation; thus, under Michoff, when “adults voluntarily live together,” each is placed in a position in which he or she is entitled to make legally-enforceable claims for support from the other and to make claims for “one-half of the parties’ assets.” Michoff cohabitations create a special legal status that possesses certain, defined rights and liabilities that cannot be ignored.

As I have indicated above, cohabitation has been judicially recognized as being a status-creating condition. In In re Marriage of Leib, 145 Cal. Rptr. 763 (Cal. App. 3d 1978), the court recognized that cohabitation establishes a status and that such a status provides a benefit or at least a potential benefit to each of the cohabiting spouses. The Leib court thus ruled that such status, therefore, creates a change of circumstances so tied in with payment of spousal support as to be significant enough by itself to require a “re-examination” of the issue of whether a former spouse should be required to continue to support her now-cohabiting ex-spouse.

The majority opinion tells us that “[ajfter entry of the divorce decree [September, 1994], Valerie . . . moved to Reno with Chuck Maraden (“Chuck”).” Further, “Valerie admitted that she was romantically involved with Chuck and cohabited with him . . . .” We know that the two were cohabiting “as if they were married” in May of 1996 when Ken’s motion to modify alimony was denied, and there is no reason to suspect that they are not cohabiting at this time, the point being that Valerie and Chuck are engaged in the relatively permanent marriage-like cohabitation that, by its nature, necessarily gives rise to the status I have referred to as a Michoff marriage. Under these circumstances, it cannot be denied that each partner to the Michoff marriage is in a position to sue the other in family court for Michoff/Marvin-sanctioned support payments and for “one half of the parties’ assets” in the form of “community property by analogy.” Michoff, 108 Nev. at 933, 840 P.2d at 1221.

I appreciate the majority’s reluctance, in the absence of a statute,³ to create any kind of legal presumption arising out of a Michoff marriage, but in my opinion, a Michoff marriage, by the very terms of the Michoff case, creates a presumption of changed circumstances because to say otherwise would be to say that a spouse is entitled to the benefits of two marriages, a former marriage and the later, Michoff marriage. A Michoff “spouse” is, “presumably,” in a position to lay claim to the right to support and to equal property division of all property acquired during the Michoff marriage. As put in Leib, this is “enough by itself to require a re-examination” of whether a former spouse should have to continue to support a divorced spouse who has elected to engage in a Michoff marriage. Leib, 145 Cal. Rptr. at 771.

I argue that, at the very least, some judicial cognizance must be given to Michoff marriages in support modification cases; and it would not be too difficult to argue, further, that since no one is entitled to two alimony claims, establishment of a Michoff marriage should terminate all previous rights to receive alimony. It certainly makes some sense to argue that a Michoff marriage should be an absolute bar to receiving alimony from a previous spouse. A Michoff bride or groom should not be able to have it both ways — to have the right to palimony plus one-half of the analogous community property from a current cohabitant on top of having the right to receive alimony payments from a former, divorced spouse. I do not intend to pursue this argument, however, and will be content to maintain that we should follow California law and presume that cohabitation, a Michoff marriage, of itself, constitutes changed circumstances for alimony-modification purposes. Perhaps, in today’s world, the majority opinion may be right in recognizing an “individual freedom to choose to cohabit”; still, I do not believe that we would “impinge” on that right if we refused to permit a person to be entitled to two alimonies.

I agree with Leib that Michoff cohabitation gives rise to a need for a close “re-examination” of a former spouse’s duty to continue to make “spousal support” payments.⁴ In my opinion, the family court erred in ruling that cohabitation was not a fact that should be considered in proceedings seeking termination or modification of alimony. I would reverse the judgment of the family court and remand with instructions that proof of a Michoff marriage creates a rebuttable presumption of changed circumstances and entitlement to termination or modification of alimony payments being made to a Michoff spouse.

1 Western States Constr. v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992).

2 Marvin v. Marvin, 557 P.2d 672 (Cal. 1984).

3 California has enacted a statute that codifies its common law and creates a “rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex.” Cal. Fam. Code § 4323 (West 1994).

4 I think that it is worth noting that the majority’s relying “solely” on the financial needs of the alimony-receiving party in alimony modification proceedings ignores the true purpose of alimony and runs contrary to the public policy goal of promoting lawful marriages. The purpose of alimony is to maintain the standard of living that the recipient had enjoyed during the marriage. After remarriage, the recipient has no claim against a former spouse for such maintenance. If we were to allow alimony recipients to continue to receive alimony after remarriage, it would be allowing the alimony recipient to accrue benefits of marriage from multiple partners. It seems to me that the present decision, allowing a participant in a Michoff marriage to continue to receive alimony from a former spouse, could create a form of financial polygamy, thus providing a powerful disincentive for lawful marriage. This gives strength to the argument that a Michoff marriage should create an unrebuttable presumption that previous alimony rights should be terminated once a Michoff marriage has been established. The majority appears not to be aware of the problems that inhere in the status created by a Michoff marriage; and I should expect that due consideration be given by the court to the overall consequences of a Michoff marriage. For example, one wonders if, by continuing to receive alimony, Ms. Callahan-Maraden waived her right to palimony and to one-half of the pseudo-community property arising out of her Michoff marriage. As things stand, no one knows the consequences of a Michoff marriage (other than that it creates by “implied contract” rights in extra-marital cohabitants to sue each other in family court for palimony and one-half of the “community property by analogy”). Michoff, obviously, has created a mess; and I think it is incumbent upon the majority to clean up this mess. It has not done so and, in my opinion, has made matters worse.