Kinsey v. Kinsey ( 2024 )

2024 UT App 120THE UTAH COURT OF APPEALS
JULIE KINSEY,
Appellee,
v.
GLEN D. KINSEY,
Appellant.
Opinion
No. 20230088-CA
Filed August 22, 2024
Third District Court, Salt Lake Department
The Honorable Dianna M. Gibson
No. 204907035
K. Bradley Carr, Attorney for Appellant
Cory R. Wall, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
TENNEY, Judge:
¶1 Glen Kinsey and Julie Kinsey divorced in 2021. 1 The next
year, Glen filed a petition asking the district court to terminate his
alimony obligations, claiming that Julie had cohabited with
another man. After an evidentiary hearing, the district court
issued a ruling rejecting Glen’s petition. Glen now appeals that
decision. For the reasons set forth below, we affirm.
1. Because the parties share the same last name, we’ll follow our
usual practice and refer to them by their first names, with no
disrespect intended by the apparent informality.
Kinsey v. Kinsey
BACKGROUND
Petition to Modify
¶2 Julie and Glen were married in 1994 and divorced in
January 2021. In the divorce decree, Glen was ordered to pay Julie
alimony for twenty-six years, which was the length of the
marriage.
¶3 In January 2022, Glen filed a petition to modify the decree.
In his petition, Glen alleged that he had retained two private
investigators and that they had obtained evidence showing that
between March 2021 and August 2021, Julie and another man
(Boyfriend) had “cohabited in a relationship akin to marriage.”2
Relying on this evidence, Glen asked the district court to
terminate his alimony obligations.
¶4 Julie opposed the petition. In her memorandum, Julie
acknowledged that she was “in a relationship” with Boyfriend,
that they were currently “dating,” and that she had “stayed
overnight” at his home “as a guest.” But even so, Julie claimed
that she had never “liv[ed] at his residence,” instead claiming that
she and her adult daughter had resided at her parents’ home after
she sold the marital home following the divorce. For these and
other reasons, Julie argued that she and Boyfriend had not
cohabited and that Glen’s alimony obligations should not be
terminated.
¶5 The district court held a two-day evidentiary hearing on
the issue in September and October 2022. At that hearing, the
parties called several witnesses and introduced evidence about
2. The parties both referred to the man in question by name in
their briefs, and the district court did so as well in its decision. But
in the interest of privacy, we see no need to include his name in
this published opinion. For simplicity, and seeing no better
option, we’ll refer to him as Boyfriend, while recognizing that this
may not have been the label that Julie used when describing him.
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the nature of the relationship between Julie and Boyfriend, as well
as about other factors potentially relevant to a cohabitation
determination. 3
Ruling
¶6 The court subsequently issued a written ruling denying
Glen’s petition. At the outset of its findings of fact, the court found
that “[s]ometime after the divorce, Julie began dating
[Boyfriend].” It also found that Julie and Boyfriend had each
admitted that their relationship was “romantic and intimate.” In
the remainder of its findings of fact, the court summarized the
testimony (and it sometimes, though not always, resolved
conflicts in the testimony) about various aspects of the
relationship between Julie and Boyfriend. These findings
included the following:
• Overnights in the summer of 2021. The court noted that
Glen’s private investigator had testified that Julie spent 31
out of 47 nights at Boyfriend’s home between the end of
June and the middle of August of 2021, and it also noted
that there had been testimony that Julie and Boyfriend had
spent several nights together on vacation during that same
timeframe.
• Overnights later in 2021 and in 2022. The court then
recounted (but did not necessarily resolve) the sometimes-
conflicting testimony about how often Julie and Boyfriend
spent nights together at Boyfriend’s home after the
summer of 2021. On Glen’s side of this dispute, the court
3. At the hearing, the parties introduced evidence of some events
that occurred in 2022 after Glen filed the petition to modify. And
as will be seen shortly, the district court entered findings relating
to post-petition conduct in its ruling. On appeal, Glen argues that
the post-petition conduct was “tried by consent,” and Julie does
not dispute that contention in her appellate brief. As a result, we’ll
consider the post-petition conduct throughout this opinion.
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noted that Glen had testified that he had driven by and
seen “Julie’s car parked in front of [Boyfriend’s] home” in
the late evening or very early morning hours on 26
different days between late February and mid-August
2022. On Julie’s side, the court noted that Julie had testified
that she spent “more nights” at her parents’ home than she
did at Boyfriend’s, as well as that Julie’s father had testified
that he “typically has breakfast and dinner with [Julie]”
and that she did not “spend[] more time at [Boyfriend’s]
home than his.” The court also noted Boyfriend’s
testimony that Julie “stays at his home likely 3-4 times a
week,” as well as Boyfriend’s insistence that they “do not
live together.” From all this, the court found that after the
period from June to August 2021, “the evidence, at best,
shows that” Julie stayed at Boyfriend’s “home regularly
each week, but it does not show” that they “consistently”
spent nights together at a rate as high as they had during
the summer of 2021.
• Access and use of residences. The court found that Julie
did not have a key to Boyfriend’s home and that Boyfriend
did not have a key to the home of Julie’s parents. The court
also found that Julie “does not stay at [Boyfriend’s] place
when he is not there.”
• Property. In the written briefing, the parties had disputed
whether and to what extent Julie stored her personal
property at Boyfriend’s home. In its findings, the court
only addressed the extent to which Julie had stored her
“wave runners” there. It noted that Glen had testified that
the wave runners had been stored at Boyfriend’s home
throughout the summer of 2021, but the court also noted
(and seems to have credited) testimony that Boyfriend was
fixing the wave runners that summer and that they were
more typically stored at the home of Julie’s sister.
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• Finances. The court found that Julie and Boyfriend “do not
share finances and do not pay each other’s expenses.” The
court also found that Julie and Boyfriend “do not share
bank accounts or credit cards” and “do not own property
together.” The court further found that Boyfriend leases his
home and that “Julie is not on the lease.”
• Julie’s bills and other documents. The court found that
Julie used her parents’ address as her address for such
things as her “bills, statements and mail related to her
phone, car and health insurance, retirement, bank, pet
hospital, Costco [membership], GMC recall notice, medical
information, and driver’s license.”
¶7 In its conclusions of law, the district court then ruled that
Glen had failed to prove by a preponderance of the evidence that
Julie “was or is cohabiting with [Boyfriend].” In doing so, the
court recognized that a new statutory definition for the term
“cohabit” became effective on May 5, 2022. But the court decided
to assess the question under “the traditional cohabitation
analysis” from the common law. It did so for two reasons. First,
the court saw no indication that the new “statutory definition was
intended to call into question or vacate Utah’s common law
cohabitation analysis . . . or eliminate[] from consideration the
factors historically deemed to be indicative of ‘cohabitation.’”
And second, the court noted that Glen had filed his petition in
January 2022 (before the new statutory definition went into
effect), and the court saw no basis for applying the new statutory
definition retroactively to conduct that predated the statute’s
enactment.
¶8 Applying pre-2022 caselaw, the court observed that
because the “clear” “purpose of alimony is economic in nature,”
alimony should only be terminated for post-divorce cohabitation
if there is evidence of not just “a sexual relationship between two
individuals living under the same roof” but also “a relationship
‘akin’ to marriage.” Drawing on the findings set forth above, the
court concluded that there was “no evidence to show that Julie
20230088-CA 5 2024 UT App 120Kinsey v. Kinsey
and Boyfriend ‘shared’ his residence,” nor was there “evidence to
show that [Julie’s] financial dependency has been eliminated by
another more permanent romantic relationship.” In the court’s
view, there was “no evidence that they shared finances,
household expenses, accounts, property, or made any decisions
together.” From all this, the court concluded that Glen had failed
to establish that Julie and Boyfriend were “in a relationship akin
to that of a husband and wife.” It accordingly concluded that Julie
had not cohabited with Boyfriend, and it thus denied Glen’s
request to terminate his alimony obligations.
ISSUE AND STANDARD OF REVIEW
¶9 Glen challenges the district court’s conclusion that Julie
had not cohabited with Boyfriend. A “cohabitation determination
is a fact-intensive determination of a mixed question of fact and
law that is entitled to substantial deference on appeal.” Scott v.
Scott, 2020 UT 54, ¶ 34, 472 P.3d 897. But to the extent that this
determination turns on the interpretation of a statute, the “proper
interpretation and application of a statute is a question of law
which we review for correctness.” McFarland v. McFarland, 2021
UT App 58, ¶ 19, 493 P.3d 1146 (quotation simplified).
ANALYSIS
¶10 By statute, a court
shall terminate an order that a party pay alimony to
a former spouse if the party establishes that, after
the order for alimony is issued, the former spouse
cohabits with another individual even if the former
spouse is not cohabiting with the individual when
the party paying alimony files the motion to
terminate alimony.
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Utah Code § 30-3-5(14)(a). When a person seeks to terminate his
or her alimony obligations under this statute, the person must
establish cohabitation by a preponderance of the evidence. See
Myers v. Myers, 2011 UT 65, ¶ 29, 266 P.3d 806.
¶11 On appeal, Glen challenges the district court’s conclusion
that he failed to establish that Julie cohabited with Boyfriend.
Before addressing Glen’s argument, we first note that the parties
disagree about which definition of “cohabit” we should use in our
analysis.
¶12 The term “cohabit” (or its noun-form “cohabitation”)
comes into play in several aspects of domestic law. As noted,
cohabitation is grounds for terminating an alimony award.
Elsewhere, cohabitation is one of the elements for an
unsolemnized marriage determination. See Utah Code § 30-1-
4.5(1)(c). And it is also one of the elements of the crime of bigamy,
see id. § 76-7-101(4)(a); can be grounds for denying an adoption,
see id. § 78B-6-117(3) (prohibiting the adoption of a child “by an
individual who is cohabiting,” barring certain exceptions); and
constitutes one of the relationship types for which a protective
order may be granted, see id. §§ 78B-7-601 to -609 (authorizing
“Cohabitant Abuse Protective Orders”).
¶13 Up until 2022, the term was not defined by statute in the
divorce context. Instead, its meaning had been developed through
the common law. Early use of the term in the broader domestic
context explained that “the word ‘cohabit’ as used in the statutes
has had the ordinary common meaning––to live together as
husband and wife.” State v. Barlow, 153 P.2d 647, 651 (Utah 1944);
see also Haddow v. Haddow, 707 P.2d 669, 671 (Utah 1985) (citing
dictionaries for the proposition that “cohabitation” means “to live
together as husband and wife” (quotation simplified)). In 1995,
the statute allowing a former spouse to terminate alimony was
amended to include the term “cohabitating” for the first time. See
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Utah Code § 30-3-5(9) (1995). 4 Because the statutory amendment
did not define the term, courts applied the meaning of
“cohabitation” that had been established by this existing line of
domestic law cases. See, e.g., Hill v. Hill, 968 P.2d 866, 868–69 (Utah
Ct. App. 1998) (supporting the practice of applying the “Haddow
definition of cohabitation” in cases determining the termination
of alimony); Pendleton v. Pendleton, 918 P.2d 159, 160 (Utah Ct.
App. 1996) (relying on the Haddow formulation to determine if
alimony should be terminated); Sigg v. Sigg, 905 P.2d 908, 917
(Utah Ct. App. 1995) (same).
¶14 In 2020, our supreme court drew on this same line of cases
and held that the “key question” in a cohabitation case was
whether the couple had “entered into a relationship akin to that
generally existing between husband and wife.” Scott v. Scott, 2020
UT 54, ¶ 35, 472 P.3d 897 (quotation simplified). But the supreme
court also recognized that it could be “difficult to define” the
precise contours of this relationship. Id. (quotation simplified). To
assist lower courts, the supreme court drew upon past cases and
“identifie[d]” the “general hallmarks” of such a relationship. Id.(quotation simplified); see also Myers, 2011 UT 65, ¶ 24. These
hallmarks included “a shared residence, an intimate relationship,
. . . a common household involving shared expenses and shared
decisions, . . . the length and continuity of the relationship, the
amount of time the couple spends together, the nature of the
activities the couple engages in, and whether the couple spends
4. Specifically, the statute stated, “Any order of the court that a
party 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(9)
(1995). Previously, the statute allowed termination of alimony
“upon establishment by the party paying alimony that the former
spouse [was] residing with a person of the opposite sex” unless
the person receiving alimony could show “that that relationship
or association [was] without any sexual contact.” Id. § 30-3-5(6)
(1994).
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vacations and holidays together.” Scott, 2020 UT 54, ¶ 36
(quotation simplified).
¶15 In 2022, the Utah Legislature added a new provision to
Utah Code section 30-3-5 (which governs various aspects of an
alimony determination) that, for the first time, defined the term
“cohabit” for alimony decisions. See Act of Mar. 23, 2022, ch. 263,
§ 1, 2022 Utah Laws 1883, 1883. This definition became effective
on May 4, 2022. See id. Under this definition, “cohabit” means “to
live together, or to reside together on a regular basis, in the same
residence and in a relationship of a romantic or sexual nature.”
Utah Code § 30-3-5(1)(a).
¶16 As noted, Glen filed his petition to modify in January
2022, and much of the evidence that the district court
considered predated May 4, 2022. But as also noted, the court
considered evidence of conduct that occurred after May 4, 2022,
as well.
¶17 This leads to the initial question posed by the parties in this
appeal: whether this case should be assessed under the common
law test or instead under the test set forth in the 2022 statute. In
Glen’s view, (1) the new statutory definition “clearly and
unequivocally express[ed] the legislature’s intended meaning of
the term” to the exclusion of the prior case law, and (2) the new
definition should apply retroactively because his petition to
modify was still pending at the time the amendment went into
effect. By contrast, Julie argues that (1) the new definition is
consistent with prior caselaw (i.e., that it did not abrogate the
common law definition), and (2) if the statutory definition
somehow did abrogate prior caselaw, it should not be
retroactively applied.
¶18 We need not decide whether the common law test or
instead the new statutory definition governs this case. This is so
because no matter which approach is used, we see no error in the
court’s cohabitation determination.
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A. Common Law Test
¶19 Again, under the common law, the “key question” is
whether Julie and Boyfriend had “entered into a relationship akin
to that generally existing between husband and wife.” Scott, 2020
UT 54, ¶ 35 (quotation simplified). And under this approach, we
look to see if the “hallmarks of marriage” were present. Id.(quotation simplified). These hallmarks include
a shared residence, an intimate relationship, . . . a
common household involving shared expenses and
shared decisions, . . . the length and continuity of the
relationship, the amount of time the couple spends
together, the nature of the activities the couple
engages in, and whether the couple spends
vacations and holidays together.
Id. ¶ 36 (quotation simplified).
¶20 On this record, there’s no question that Julie and Boyfriend
were in a relationship by the summer of 2021—indeed, Julie and
Boyfriend each admitted that they had been “romantic and
intimate.” It’s undisputed that the two vacationed together in
2021. And it’s also undisputed that they spent many nights
together.
¶21 But even so, their relationship was still missing many of the
other “hallmarks of marriage.” To recap some of the key findings
outlined above: Julie didn’t have a key to Boyfriend’s home; the
two did not make financial decisions together and did not have
shared bank accounts or credit cards; there was no evidence that
they made any other “decisions together” either; Julie was not on
the lease to Boyfriend’s home, nor did they own any other
property together; Julie typically had breakfast and dinner with
her father at his home (rather than having those meals with
Boyfriend at his home); and Julie’s mail (including important
correspondence such as her bills and medical statements) was
20230088-CA 10 2024 UT App 120Kinsey v. Kinsey
sent to the home she shared with her parents, not to Boyfriend’s
home.
¶22 Based on all this, the district court concluded that Julie and
Boyfriend were not cohabiting under the common law test. And
as indicated, this “determination is a fact-intensive determination
of a mixed question of fact and law that is entitled to substantial
deference on appeal.” Id. ¶ 34. In light of both the district court’s
findings and the deference we give to its determination, we see no
basis for overturning this decision. 5
B. Statutory Definition
¶23 Under the statutory definition that became effective in May
2022, “cohabit” means “to live together, or to reside together on a
regular basis, in the same residence and in a relationship of a
romantic or sexual nature.” Utah Code § 30-3-5(1)(a).
¶24 We first note that this test refers to both living together and
residing together. We recognize that it may be possible that the
legislature thought these two concepts refer to different things.
After all, they’re separated by the word “or,” which is usually
5. As indicated, the common law test also turned in some measure
on whether the couple was residing or living together. See Scott v.
Scott, 2020 UT 54, ¶ 36, 472 P.3d 897; Haddow v. Haddow, 707 P.2d
669, 671 (Utah 1985). In Scott, however, our supreme court
cautioned that residency did not function as a standalone or
“threshold element that must be met before other hallmarks of
marriage” could be considered, instead holding that all of the
hallmarks of marriage (including a common residence) were
considered together “in a holistic inquiry.” 2020 UT 54, ¶ 40.
In the statutory analysis below, we conclude that Julie and
Boyfriend did not reside together, and we ground that conclusion
in the common law’s definition of the term “residence.” If this case
is analyzed under the common law test, our conclusion that there
was no common residence provides additional support for our
conclusion that Julie and Boyfriend did not cohabit.
20230088-CA 11 2024 UT App 120Kinsey v. Kinsey
understood to be disjunctive, and the surplusage canon would
likewise suggest that these separate terms should be given
separate meanings. See Croft v. Morgan County, 2021 UT 46, ¶ 32,
496 P.3d 83. But on the other hand, the terms have obvious
similarity, so in context, we think it’s also possible that the
legislature intended for them to function synonymously in a
mutually reinforcing, “belt and suspenders” kind of way. If there
is such a difference, however, the parties haven’t meaningfully
briefed what it would be. Instead, in their briefs, the parties
focused on whether Julie and Boyfriend “resided” together.
Taking the parties’ lead, we likewise focus on whether Julie and
Boyfriend resided together. Because we conclude that they did
not, and in light of how this case has been presented to us on
appeal, we have no need to opine on whether it is possible to live
together without residing together.
¶25 When the legislature added a definition for the term
“cohabit,” it did not also add a definition for the term “reside.” As
a result, we must make our best effort to interpret this term, and
we do so “according to the plain meaning of its text,” applying
“the meaning” of the word in its “ordinary daily usage.” In re J.E.,
2023 UT App 3, ¶ 40, 524 P.3d 1009 (quotation simplified). The
potential difficulty here is that the “terms ‘residence’ and ‘reside’
are open to a diverse array of usages and interpretations” and the
term “resident” likewise “has different shades of meaning,
depending upon its context.” Lilly v. Lilly, 2011 UT App 53, ¶ 12,
250 P.3d 994 (quotation simplified). But in cases that predate the
2022 statute, our supreme court repeatedly provided guidance for
what “reside” and “residency” mean in the cohabitation and
alimony context. And this matters—after all, “when a word or
phrase is transplanted from another legal source, whether the
common law or other legislation, it brings the old soil with it.”
Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quotation
simplified). Seeing no indication to the contrary, we think it
appropriate to assume that when the legislature defined the term
“cohabit” to mean, in part, that the people in question were
“resid[ing] together,” the legislature did so advisedly and
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incorporated the prior definitions of “reside” that have been used
by Utah’s appellate courts in this same context.
¶26 As set forth in those cases, the word “reside” means “to
dwell permanently or for a length of time” or “to have a settled
abode for a time.” Knuteson v. Knuteson, 619 P.2d 1387, 1389 (Utah
1980) (quotation simplified); see also Keene v. Bonser, 2005 UT App
37, ¶ 11, 107 P.3d 693. This refers to something that is “more than
a temporary stay.” Haddow, 707 P.2d at 672. It’s “not a sojourn, nor
a habit of visiting, nor even remaining with for a time.” Id. at 673
(quotation simplified). Instead, “the term implies continuity.” Id.
(quotation simplified). In this sense, our supreme court has
“contrast[ed] the status of a ‘resident’ with that of a ‘visitor.’”
Scott, 2020 UT 54, ¶ 45 (quotation simplified).
¶27 Past cases illustrate how this distinction plays out. In
Haddow, our supreme court considered the question of whether a
former spouse had developed a “common residency” with her
new partner after her divorce. 707 P.2d at 673. Although it was
“clear from the record” that the new partner “spent a substantial
amount of time” at the ex-wife’s home, the supreme court held
that the two were not residing together. Id. The supreme court
noted that there was “no finding” from the district court that the
new partner “either spent any time at the home when [the ex-
wife] was not there or had a key to the house.” Id. The supreme
court thought “[t]hese circumstances seem[ed] particularly
significant,” “since 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. The supreme court also pointed out that the new
partner had not “move[d] any furniture into” the ex-wife’s home
or kept “any personal items” there “other than toiletry articles, a
few items of clothing[,] . . . and one picture album.” Id. This, too,
suggested to the supreme court that the ex-wife and her new
partner did not share a common residency—and, thus, were not
cohabiting. See id.
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¶28 By contrast, in Pendleton v. Pendleton, this court affirmed a
district court’s decision that an ex-wife had resided with her new
boyfriend. 918 P.2d 159, 160 (Utah Ct. App. 1996). We noted that
the boyfriend stayed with the ex-wife “ninety percent of the time
when he was in town,” “had his own key,” and “came and went
from [the ex-wife’s] home three to four times daily, even when she
was not there.” Id. at 161. We further noted that the couple tended
to eat “almost all meals together” and that the boyfriend kept
“clothing and other personal effects” at the ex-wife’s home—
details that we believed supported a cohabitation determination.
Id.¶29 Our supreme court reached a similar conclusion in Scott.
There, the ex-wife’s new partner had made an offer on a new
home “on behalf of both himself and [the ex-wife].” Scott, 2020 UT
54, ¶ 49. After the new partner purchased this home, the ex-wife
“moved herself and substantial personal items into” it, and in
doing so, she “made decisions about decorations and
furnishings.” Id. ¶ 50. Moreover, the ex-wife and her new partner
both “had keys and full access to the home.” Id. In light of these
facts, the supreme court affirmed the district court’s
determination that this new home was a “shared residence.” Id.
¶ 51.
¶30 Applying these principles here, we affirm the district
court’s determination that Julie and Boyfriend did not reside
together. As noted, the district court found that Julie does not
have a key to Boyfriend’s home and that Julie “does not stay at
[Boyfriend’s] place when he is not there.” These are the very same
facts that the supreme court thought were “particularly
significant” when it held that there was no common residency
(and, by extension, no cohabitation) in Haddow. 707 P.2d at 673.
Moreover, there was no finding from the district court that Julie
had moved any substantial portion of her personal belongings
into Boyfriend’s home. Aside from the wave runners (which,
under the court’s findings, were arguably at Boyfriend’s home
just so that Boyfriend could fix them), there was no finding from
the district court that Julie kept anything at Boyfriend’s home at
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all. In addition, Julie was not on the lease, did not receive her mail
there, and commonly ate breakfast and dinner with her father at
his home.
¶31 Despite all this, Glen argues that Julie did reside at
Boyfriend’s home. Glen’s argument relies heavily on the amount
of nights that Julie spent with Boyfriend. We certainly agree that
the amount of time that a person spends at another person’s home
(particularly overnights) will be a key factor in determining
whether the other home has become the person’s residence. But
in Haddow, our supreme court held that “time alone” does not
control the inquiry; instead, what ultimately matters is whether
the time there was “spent as a resident.” Id. at 674 (emphasis added,
quotation otherwise simplified). In other words, even if a person
spends “a substantial amount of time” at another home, a court
may still conclude that the person is not residing there based on
additional facts and circumstances about the nature of that
person’s relationship to both the home and its other occupants. Id.
at 673. In Scott, our supreme court accordingly stressed that the
residency question “focuses on a person’s status and place in the
home.” 2020 UT 54, ¶ 45.
¶32 On this record, it’s clear that Julie spent a substantial
amount of time at Boyfriend’s home, particularly in the summer
months of 2021. And it’s also clear that she did so because she was
in a romantic and intimate relationship with him. But again, Julie
did not stay at Boyfriend’s home unless Boyfriend was there, she
did not have a key, she had no ownership interest in his home,
she commonly ate elsewhere, she did not receive her mail there,
and she did not keep her personal belongings there. From all this,
it seems clear enough that she did not “come and go” at her
leisure, Haddow, 707 P.2d at 673, nor did she regard Boyfriend’s
home as her “settled abode,” Knuteson, 619 P.2d at 1389 (quotation
simplified). Instead, it appears that she was there as a visitor, not
as a resident. See Scott, 2020 UT 54, ¶ 45.
¶33 Although the district court assessed the cohabitation
analysis using the common law test, it specifically determined
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that Julie and Boyfriend did not “share[]” Boyfriend’s
“residence.” And as indicated, this is a determination that
receives “substantial deference on appeal.” Id. ¶ 34. On this
record, we see no basis for reversing that determination. As a
result, even if this case is evaluated under the new statutory
definition of “cohabit,” this determination is sufficient to support
the court’s ruling. We therefore affirm the district court’s
conclusion that Julie did not cohabit with Boyfriend.
CONCLUSION
¶34 We affirm the district court’s determination that Glen did
not establish that Julie and Boyfriend cohabited. As a result, we
also affirm its denial of Glen’s petition to modify the decree to
terminate his alimony obligations. 6
6. The district court denied Julie’s request for attorney fees below,
and Julie does not challenge that denial on appeal. In reliance on
Utah Code section 30-3-3(1), however, she asks us to award her
the attorney fees she incurred on appeal in the first instance. But
our supreme court has held that an ex-spouse’s “efforts to resist
[a] motion to terminate alimony are not compensable under Utah
Code section 30-3-3’s plain language.” Scott v. Scott, 2017 UT 66,
¶ 32, 423 P.3d 1275. We accordingly decline Julie’s request.
20230088-CA 16 2024 UT App 120