Scott v. Scott

2016 UT App 31THE UTAH COURT OF APPEALS
JILLIAN SCOTT,
Appellant,
v.
BRADLEY SCOTT,
Appellee.
Opinion
No. 20131122-CA
Filed February 19, 2016
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 124903563
Michael D. Zimmerman, Julie J. Nelson, Bart J.
Johnsen, and Melissa M. Bean, Attorneys
for Appellant
Karra J. Porter and Kristen C. Kiburtz, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY and SENIOR JUDGE JAMES Z. DAVIS concurred.1
ROTH, Judge:
¶1 The district court granted Bradley Scott’s (Husband)
motion to terminate his alimony obligation to Jillian Scott (Wife)
on the ground that she had cohabited with J.O., with whom she
1. Senior Judge James Z. Davis began his work on this case as a
member of the Utah Court of Appeals. He retired from the court,
but thereafter became a Senior Judge. He completed his work on
this case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6).
Scott v. Scott
had maintained a long-term relationship. We affirm the district
court’s conclusion that cohabitation occurred, but we adjust its
determination regarding the date that cohabitation began and
remand for the court to recalculate the amount of alimony to be
recouped by Husband.
BACKGROUND
¶2 As part of their 2006 divorce, Husband agreed to pay
Wife $6,000 per month in alimony. The decree of divorce
provided that alimony was to continue ‚for the duration equal to
the number of years that the parties’ marriage existed‛
(approximately twenty-seven years) but would terminate ‚upon
the remarriage or cohabitation of [Wife] or upon the death of
either party.‛ See generally Utah Code Ann. § 30-3-5(9), (10)
(LexisNexis Supp. 2014).
¶3 In October 2008, Wife began dating J.O. They had an
‚intimate and exclusive‛ ‚long-term‛ relationship until J.O.
suddenly ended it in April 2011. In October 2011, Husband filed
a petition to terminate alimony on the basis that Wife had
‚cohabited with an adult male . . . commencing on or about
February 2011.‛ After an evidentiary hearing, the district court
determined that Wife and J.O. began cohabiting on December 22,
2010, and terminated alimony as of that date. The court awarded
Husband a judgment against Wife for $211,742 to reimburse the
alimony he had paid since the termination date.
¶4 The court based its cohabitation decision on evidence
adduced at the hearing. Until the final six weeks or so of their
thirty-one-month relationship, Wife and J.O. maintained
separate homes in Salt Lake City, where each resided while in
Salt Lake City. J.O., however, owned or had use of two vacation
homes, one in Sun Valley, Idaho, and the other in Scottsdale,
Arizona. During the relationship, the couple took thirty-six trips
together, often ‚stay*ing+ in *J.O.’s+ various homes‛ for a week or
20131122-CA 2 2016 UT App 31Scott v. Scott
more at a time. Wife stored personal items at the vacation homes
and had unfettered access to them while there.
¶5 In July 2010, Wife began exploring the possibility of
purchasing a house in California and planned a trip to Rancho
Santa Fe in hopes that J.O. would ‚fall in love with it so *they+
could have a home there.‛ By September 2010, the couple
planned to ‚purchase . . . the Rancho Santa Fe home for the two
of them.‛ Although Wife originally intended to finance the
purchase with proceeds from the sale of her Salt Lake City
residence and another piece of property, neither property sold,
and J.O. paid for the Rancho Santa Fe house. The sale closed in
January 2011.
¶6 The district court made findings regarding several events
it found significant that occurred in the months leading up to the
house purchase. First, in late summer 2010, ‚*J.O.+ proposed
marriage to *Wife+,‛ and she accepted. On December 22, 2010,
Wife and J.O. traveled to J.O.’s Sun Valley vacation home where
they spent Christmas together with Wife’s daughter. And in
January 2011, the couple took a twenty-five-day cruise to
celebrate J.O.’s retirement. Finally, upon returning to Salt Lake
City from the cruise, the couple spent only a couple of weeks
preparing for the move before they ‚physically moved into the
Rancho Santa Fe home on February 17, 2011.‛ In determining
that Wife and J.O. had both changed their primary residence
from Salt Lake City to Rancho Santa Fe, the court considered it
significant that Wife had hired movers to transport her
household belongings to California, that J.O. had arranged to
have his vehicle shipped to California, and that J.O. had also
arranged to have his and Wife’s ‚computers, linens and
whatever clothes they wanted‛ transported there on a private
plane. Further, immediately upon arriving in Rancho Santa Fe,
J.O. joined a golf club, where he filled out a form that listed Wife
as having ‚Family Status,‛ which, according to the document
itself, constituted a representation that they were ‚living
together and maintaining a common household.‛ A friend also
20131122-CA 3 2016 UT App 31Scott v. Scott
testified that she had visited J.O. and Wife after they had moved
to Rancho Santa Fe and described the new house as ‚their
home.‛
¶7 The couple’s relationship ended abruptly on about April
1, 2011, when J.O. broke off the relationship and returned to Salt
Lake City. Soon after, Wife agreed to move out of the Rancho
Santa Fe house, and the parties negotiated a settlement
agreement under which J.O. paid Wife $110,000 to ‚give him a
release of *any+ claims‛ she may have had against him.
ISSUES AND STANDARDS OF REVIEW
¶8 Wife appeals the district court’s decisions to terminate
alimony and to order her to return $211,742 in alimony
payments received on or after December 22, 2010. ‚Whether
cohabitation exists is a mixed question of fact and law.‛ Myers v.
Myers (Myers I), 2010 UT App 74, ¶ 10, 231 P.3d 815 (citation and
internal quotation marks omitted), aff’d, Myers v. Myers (Myers
II), 2011 UT 65, 266 P.3d 806. Because Wife does not challenge
the court’s findings of fact but instead contends only that the
court failed to analyze the facts under the proper legal standard,
we review the court’s ‚ultimate *cohabitation+ conclusion for
correctness.‛ See id. (citation and internal quotation marks
omitted). We review the judgment reimbursing Husband for
alimony paid while Wife was cohabiting for abuse of discretion.
See Black v. Black, 2008 UT App 465, ¶¶ 11, 13, 199 P.3d 371.
ANALYSIS
¶9 The Utah statute governing cohabitation following
divorce (the Cohabitation Provision) provides, ‚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 Ann.
§ 30-3-5(10) (LexisNexis Supp. 2014). Wife contends that the
20131122-CA 4 2016 UT App 31Scott v. Scott
district court erred in a number of ways in its legal application of
this provision.2
I. Cohabitation
A. The District Court Properly Concluded That There Was
Cohabitation, but Cohabitation Did Not Begin as Early as
the Court Determined.
¶10 Wife contends that the district court erred in concluding
that she and J.O. cohabited. See id. Specifically, Wife asserts that
she and J.O. did not establish a common residency. Cohabitation
occurs when a couple establishes a common residency and
engages in a ‚relatively permanent sexual relationship akin to
that generally existing between husband and wife.‛ Myers II,
2011 UT 65, ¶¶ 16–17 (quoting Haddow v. Haddow, 707 P.2d 669,
672–73 (Utah 1985)); see also Levin v. Carlton-Levin, 2014 UT App
3, ¶ 10 & n.3, 318 P.3d 1177 (explaining that cohabitation
involves living together and being sexually intimate under
circumstances ‚akin to marriage‛). Because there is no dispute
that Wife and J.O. engaged in a ‚relatively permanent sexual
relationship‛ lasting for more than two years, see Myers II, 2011
UT 65, ¶ 17 (citation and internal quotation marks omitted), we
focus on whether the district court’s findings support its
conclusion that Wife and J.O. cohabited as of December 22, 2010.
We agree with the district court that Wife and J.O. established a
common residency, but we conclude that cohabitation did not
2. The parties’ decree of divorce differs from the language
contained in Utah Code section 30-3-5(10). The decree provides
that Wife’s alimony award ‚shall terminate upon the . . .
cohabitation of *Wife+.‛ 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.
20131122-CA 5 2016 UT App 31Scott v. Scott
begin until February 17, 2011, when they moved into the Rancho
Santa Fe house together.
¶11 ‚Common residency‛ is ‚not a sojourn, nor a habit of
visiting, nor even remaining with for a time; the term implies
continuity.‛ Id. ¶ 16 (citation and internal quotation marks
omitted). Thus, the phrase requires that the parties ‚*(i)]
establish a ‘common abode [(ii)] that both parties consider their
principal domicile [(iii)] for more than a temporary or brief
period of time.’‛ Id. (quoting Haddow, 707 P.2d at 672). We
address each element of the common residency test in turn.
1. Common Abode
¶12 We first consider whether the parties ‚establish*ed+ a
common abode.‛ See id. (citation and internal quotation marks
omitted). The district court found that Wife and J.O. shared a
residence from December 22, 2010, through April 1, 2011,
because during that time, the parties had actively begun plans to
move in together, their time spent together had escalated to
nearly full time, and by February 17, 2011, the parties had
moved into the Rancho Santa Fe house together. Wife contends
that the court erred when it concluded that she and J.O.
established a common abode. In particular, she asserts that
between December 22, 2010 and April 1, 2011, she and J.O.
stayed either in their separate Salt Lake City homes or in
vacation homes and that a ‚choppy sequence of visits to
different places does not make an ‘abode.’‛
¶13 But the court made ample factual findings to support a
conclusion that Wife and J.O. shared a common abode as of
February 17, 2011, when they moved to Rancho Santa Fe,
California. In anticipation of moving from Salt Lake City, Wife
hired movers to pack up all of her household belongings and
transport them to Rancho Santa Fe. J.O. also made arrangements
to have their personal belongings, including his vehicle, and his
and Wife’s computers, linens, and clothing, either shipped to
20131122-CA 6 2016 UT App 31Scott v. Scott
California or transported by private plane. The pair purchased a
couch to furnish the Rancho Santa Fe house. The sharing of
household expenses and keeping of clothing and other personal
items in a joint location are indicators of common residency. See
Sigg v. Sigg, 905 P.2d 908, 918 (Utah Ct. App. 1995). Furthermore,
upon arriving in California, J.O. joined a golf club, where he
filled out a form that listed Wife as having ‚Family Status,‛
which, according to the document itself, amounted to a
representation that she and J.O. were ‚living together and
maintaining a common household.‛3 A friend also testified that
J.O. and Wife had purchased and moved into the Rancho Santa
Fe house together.4
¶14 Whether the findings legally justify a determination that
Wife and J.O. resided together between December 22, 2010, and
February 17, 2011, however, is a closer question. The findings
certainly support a determination that the couple increased the
amount of time spent together (including the number of
overnight visits) during this time period. But other than
increased time together, Wife and J.O. behaved in the
3. The court also found that after Wife moved out of the house
following the couple’s breakup, J.O. rescinded Wife’s Family
Status. This finding lends further support to the conclusion that
J.O. and Wife modified their relationship status when they
moved to Rancho Santa Fe.
4. In its findings, the district court set forth much of the
witnesses’ testimonies, including some statements that do not
support the court’s ultimate conclusion that the parties had
cohabited. After the court set forth its 122 findings of fact,
however, it then conducted an analysis where it identified which
evidence supported its conclusions. Therefore, we have
interpreted the court’s numbered findings as simply identifying
the information before it and its analysis about cohabitation as
identifying the evidence it found pertinent and credible.
20131122-CA 7 2016 UT App 31Scott v. Scott
relationship as they had from its inception. Wife and J.O. had
traveled frequently throughout their thirty-one-month
relationship, often visiting one of J.O.’s vacation homes for a
week or more at a time. But the couple did not continuously
occupy any vacation home. Cf. Myers II, 2011 UT 65, ¶ 16, 266
P.3d 806 (observing that the term common residency ‚implies
continuity‛ (citation and internal quotation marks omitted)).
Indeed, Wife and J.O. maintained separate residences in Salt
Lake City, where they returned at the end of each vacation.5
Although Wife and J.O. shared meals and other expenses during
their travels and Wife stored some of her personal belongings at
J.O.’s Sun Valley vacation home, those activities appear to have
been motivated primarily by convenience related to travel rather
than an intention to share a common residence. More
5. We make this distinction in the context of the facts of this case.
In doing so, we are not foreclosing the possibility that a couple
who gives up permanent residence in favor of a lifestyle of travel
could be considered to be cohabiting, even if the couple never
settles in a particular place with the intention of remaining.
Indeed, an argument could be made that a couple living a
nomadic life where they maintain no permanent abode, but
intend to be together wherever they happen to be, could be
cohabiting even if they had no permanent place of residence. As
we have frequently observed, whether a particular couple is
cohabiting is a fact-intensive inquiry to be made on a case-by-
case basis. See, e.g., Levin v. Carlton-Levin, 2014 UT App 3, ¶ 10,
318 P.3d 1177; Cox v. Cox, 2012 UT App 225, ¶ 15, 285 P.3d 791.
We do not believe the circumstances of this case would
support such a conclusion, however. While Husband argues that
the pattern of frequent stays in vacation homes is the way
wealthy people live together, Wife contends that it is the way
wealthy people vacation together. For reasons discussed in our
analysis, we do not believe that Wife and J.O.’s vacation-
intensive relationship rose to the level of cohabitation before
they moved into the Rancho Santa Fe house together.
20131122-CA 8 2016 UT App 31Scott v. Scott
importantly, while the amount of time Wife and J.O. spent
together between December 22 and February 17 increased, the
fundamental nature of their relationship remained the same. The
increase in their time together appears to be the result of timing
and circumstances—specifically the coincidence of the Christmas
and New Year’s holidays when couples, even those who are only
dating, often travel together—with the ensuing celebration
cruise marking J.O.’s transition into retirement. That Wife and
J.O. were making plans to move in together at this time does not
transform their future intent into present reality.
¶15 Accordingly, we conclude that the findings do not
support the district court’s conclusion that cohabitation occurred
as of December 22, 2010. Instead, it appears that Wife and J.O.
‚establish*ed+ a common abode‛ beginning on February 17,
2011, when they moved into the Rancho Santa Fe house together,
and ending on April 1, 2011, when the relationship ended and
J.O. moved out. See id.
2. Principal Domicile
¶16 Wife next argues that the district court erred by
concluding that she and J.O. shared a principal domicile. She
contends that even though ‚domicile‛ has not been specifically
defined in the context of cohabitation, we should seek guidance
from other areas of law, such as the tax code, which employs a
‚totality of the circumstances test.‛ She also asserts that the
circumstances in this case do not support a conclusion that she
and J.O. had established a principal domicile where each had
‚their own principal domicile in Salt Lake City‛ and neither of
them ‚considered any of the vacation destinations to be their
principal domicile.‛
¶17 We are not persuaded, however, that the concept of
‚domicile,‛ as that term is employed either in the tax code or in
the determination of divorce jurisdiction, can be imported
wholesale into the context of alimony-related cohabitation.
20131122-CA 9 2016 UT App 31Scott v. Scott
Indeed, the Cohabitation Provision does not use the term
domicile; rather, it refers only to ‚cohabitating.‛ Utah Code Ann.
§ 30-3-5(10) (LexisNexis Supp. 2014). The term ‚cohabitating‛ is
not statutorily defined, but judicial usage of the term as well as
corresponding references to ‚domicile‛ in our case law suggest
that the legislature did not intend the residency component of
cohabitation to be so rigid as to be satisfied only if each member
of the couple intends their common residence to be his or her
sole and permanent residence. For example, in Haddow v.
Haddow, 707 P.2d 669 (Utah 1985), where the residency
requirement of cohabitation was first defined, the Utah Supreme
Court spoke in terms of a ‚principal domicile.‛ See id. at 672.
‚Principal‛ generally means ‚*c+hief; primary; *or+ most
important.‛ Black’s Law Dictionary 1312 (9th ed. 2009). The use of
the qualifier ‚principal‛ thus seems to recognize that a
cohabiting couple may have a second residence or another place
that each considers to be his or her permanent home but that if
the couple is residing together primarily in one place for some
amount of time, then the common residency requirement has
been satisfied.
¶18 And this approach is consistent with how the common
residency requirement has been treated in our subsequent
cohabitation cases. In Sigg v. Sigg, 905 P.2d 908 (Utah Ct. App.
1995), for example, we upheld the trial court’s determination
that a couple who lived in separate condominiums in the same
complex began cohabiting once they maintained ‚open access to
each other’s condominiums, ate together and shared food
expenses, kept clothing in the same condominium, used the
same furniture and otherwise lived as though they were
husband and wife.‛ Id. at 918 (internal quotation marks omitted).
In so doing, we did not apply a rigid one-domicile approach
along the lines proposed by Wife but instead looked more
generally at whether the couple lived together in the sense of
establishing a common residence—in that case consisting of two
places they occupied together. Thus, although the couple in Sigg
maintained ownership of separate residences, we considered it
20131122-CA 10 2016 UT App 31Scott v. Scott
significant that the couple lived together in both residences. We
took a similar approach in Levin v. Carlton-Levin, 2014 UT App 3,
318 P.3d 1177. There, we focused on whether the evidence
demonstrated that the ex-wife’s boyfriend was living at her
home in Colorado in the ordinary sense, see Lilly v. Lilly, 2011 UT
App 53, ¶ 13, 250 P.3d 994 (defining ‚residence‛ as ‚*t+he place
where one actually lives‛ (alteration in original) (citation and
internal quotation marks omitted)), not whether he intended that
home to be his domicile, as that term is legally defined in other
areas of the law, see Levin, 2014 UT App 3, ¶¶ 15–16.
¶19 In other words, the concept of residence or domicile in the
cohabitation context seems focused on the nature of the couple’s
living arrangements as it reflects the individuals’ commitment to
each other. But the concept of legal residence or domicile in the
cases Wife cites is focused on something different—the
relationship of a person to a place. In that context, the concept of
residence or domicile focuses more on the reach of local
government, whether in terms of eligibility for benefits, such as
resident tuition or fishing licenses; access to the courts for
divorce or other proceedings; imposition of legal obligations
such as taxes; or the concomitants of citizenship, such as the
right to vote in local elections. Accordingly, we are not
persuaded that there is a justification for deviating from our
precedent treating ‚principal domicile‛ as meaning the place in
which two people intend to live together in an intimate
relationship. We now turn to the question of whether the district
court’s findings support a determination that the Rancho Santa
Fe house was Wife’s and J.O.’s ‚principal domicile‛ in the
cohabitation context.
¶20 The district court found that ‚obtaining . . . the Rancho
Santa Fe home was a joint effort by *J.O.+ and *Wife+‛ that
further established their relationship as ‚akin to *that of+ a
husband and wife‛ in advance of their intended marriage. The
court bolstered these findings with additional findings regarding
Wife’s and J.O.’s subjective intent. The court found that Wife and
20131122-CA 11 2016 UT App 31Scott v. Scott
J.O. ‚physically moved‛ to California on February 17, 2011. The
court cited Wife’s decisions to sell all her Utah real property and
to transport her household and personal belongings to
California, as well as Wife’s own statements—that she and J.O.
purchased the house in Rancho Santa Fe to ‚grow old‛ together
and that she was ‚excited‛ to ‚finally *be+ back in California . . .
where [she] want[ed] to be‛—as evidence that she intended the
Rancho Santa Fe house to be her principal domicile. According
to the district court, ‚*i+t is clear from *Wife’s+ own writings that
she considered [the Rancho Santa Fe house] to be her home. In
fact, it was her ‘dream home.’‛ A friend’s testimony that Wife
had furnished the house with her household belongings further
corroborated that Wife had made the Rancho Santa Fe house her
principal domicile. The court reached the same conclusion with
respect to J.O. Although the court noted J.O.’s testimony that
‚Rancho Santa Fe was not intended to be his primary residence,‛
the court apparently found this testimony belied by J.O.’s
marriage proposal to Wife, Wife’s testimony that she and J.O.
both ‚hated Salt Lake and wanted to live in Rancho Santa Fe,‛
Wife’s attempt to sell her real estate in Utah and to change her
principal residence to California, and J.O.’s own efforts to
transport his possessions to the Rancho Santa Fe house. In other
words, the district court’s undisputed findings support a
determination that both Wife and J.O. intended the Rancho
Santa Fe house to be their principal domicile for purposes of the
cohabitation analysis, i.e., that they intended to live there
together in a marriage-like arrangement.
3. More than a Temporary or Brief Period of Time
¶21 Finally, we turn to the third component of the common
residency analysis: whether the couple established a common
residence ‚for more than a temporary or brief period of time.‛
Myers II, 2011 UT 65, ¶ 16, 266 P.3d 806 (citation and internal
quotation marks omitted). Wife contends that even if she and
J.O. established a common abode that they both considered to be
their principal domicile, they did not, as a matter of law, reside
20131122-CA 12 2016 UT App 31Scott v. Scott
in the Rancho Santa Fe house for ‚more than a temporary or
brief period of time.‛ See id. (citation and internal quotation
marks omitted).
¶22 Our case law has not established a bright-line
rule for what constitutes ‚a temporary or brief period of
time.‛ Using ordinary definitions of those terms, we
conclude that ‚temporary‛ focuses more on 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‛ refers to the duration of
the stay. Compare Temporary, Merriam–Webster Online, (Jan. 28,
2016), http://www.merriam-webster.com/dictionary/temporary
[https://perma.cc/RER4-LF2W] (defining ‚temporary‛ as ‚not
permanent‛ or ‚intended to be used for a limited
amount of time‛), with Brief, Merriam–Webster Online, (Jan.
28, 2016), http://www.merriam-webster.com/dictionary/brief
[https://perma.cc/5YC8-NER9] (defining ‚brief‛ as ‚short in
duration, extent, or length‛). That the two terms are contained in
a single phrase, however, suggests that they do not operate
entirely independently of each other. The Utah Supreme Court’s
cohabitation discussion in Knuteson v. Knuteson, 619 P.2d 1387(Utah 1980), helps illustrate how these concepts interrelate.
¶23 In Knuteson, the ex-wife (the recipient of alimony)
temporarily moved in with her male neighbor after her ex-
husband became ‚considerably in arrears in his alimony
payments‛ and left her ‚nearly destitute‛ and without funds to
make utility payments. Id. at 1388. During her ‚two months and
ten days‛ stay with the neighbor, the ex-wife and the neighbor
began a sexual relationship. Id. During this period, however, the
ex-wife managed to ‚garnish*+ her prior spouse’s funds, and
obtain*+ some money in record time‛ so that she could quickly
move back into her own home. Id. The supreme court
determined that the ex-wife never intended to permanently
reside with the neighbor but did so only to deal with the
20131122-CA 13 2016 UT App 31Scott v. Scott
circumstances brought on by her ex-husband’s decision to
‚flout*+ the interdiction of the court.‛ Id. at 1389. Her stay at the
neighbor’s house was brief, just over two months, during which
time the ex-wife ‚expended much of her efforts in the daytime at
her own home doing chores and yard work.‛ Id. Furthermore,
the ex-wife moved out and back to her former home ‚as soon as
the emergency . . . was over.‛ Id. Thus, the court seemed to
conclude that despite the common residency and the sexual
relationship, the ex-wife did not cohabit with the neighbor
because the quality of their relationship was temporary and its
duration was insufficient to undermine that conclusion. In short,
the Knuteson court determined that the ex-wife and neighbor did
not choose to establish a common residence as a consequence of
their relationship—rather the sexual relationship arose from the
common residence—and that once they did reside together, the
shared abode was never intended to be anything other than
temporary—driven by circumstance, not intention. Id.
Consequently, the two-month-and-ten-day duration was too
brief to take the common residency over the threshold into
cohabitation. Id.
¶24 The present case stands in sharp contrast to Knuteson. The
district court’s unchallenged findings demonstrate that Wife and
J.O. established an ‚intimate and exclusive‛ dating arrangement
that culminated in the couple moving in together. The
relationship particularly intensified in the seven months that
preceded their move into the Rancho Santa Fe house. During this
period, Wife and J.O. became engaged, purchased a house they
intended to share, increasingly involved their extended families
(as evidenced by J.O.’s spending vacations and holidays with
Wife’s children and giving them gifts6), and just before the move,
vacationed together for weeks. The facts thus fully support a
6. The district court found that the couple intended the Rancho
Santa Fe house to be for Wife and J.O. ‚to share *their+ lives in
. . . along with *their+ children.‛
20131122-CA 14 2016 UT App 31Scott v. Scott
conclusion that neither Wife nor J.O. intended their common
residency in Rancho Santa Fe to be temporary. Rather, their
move to the California house represented a deliberate escalation
of their relationship to something akin to marriage with all the
trappings of cohabitation.
¶25 In contrast, during the period before the move, Wife and
J.O. traveled together frequently but always with the intent of
returning to their respective homes in Salt Lake City. And the
intertwining of their personal belongings and financial resources
while on vacation seems motivated primarily by convenience
related to travel away from home. But in moving to Rancho
Santa Fe, they chose a new house to inhabit together and
brought significant household and personal property together in
one place for what appeared to be the long term. J.O. himself had
represented that they were ‚living together and maintaining a
common household‛ when he completed the application for golf
club membership, and a friend testified that she had visited the
couple in ‚their home.‛ Even the relationship between J.O. and
Wife’s daughters seemed to be affected by the move into the
Rancho Santa Fe house. Before the move, J.O. had a presence in
the daughters’ lives, but after the move, one of Wife’s daughters,
who was by then an adult, moved in with the couple. Thus, we
conclude that, in light of the relationship’s progression over
more than two years of intimacy marked by frequent periods of
vacationing together, the six weeks together in Rancho Santa Fe
was not so brief as to nullify as a matter of law the final step they
took into cohabitant status once they crossed the threshold of the
Rancho Santa Fe house.7
7. In affirming the district court’s conclusion, we do not intend to
foreclose the possibility that a six-week period might be
sufficiently ‚brief‛ in different circumstances to preclude a legal
conclusion of cohabitation, just as a two-month period seemed to
be under the circumstances in Knuteson.
20131122-CA 15 2016 UT App 31Scott v. Scott
¶26 Accordingly, we affirm the district court’s overall
conclusion that Wife and J.O. cohabited, but we adjust the date
cohabitation began from December 22, 2010, to February 17,
2011, because their vacations together before they moved to
Rancho Santa Fe still retained a temporary quality.
B. The Language of the Cohabitation Provision and the
Policies Surrounding Alimony Do Not Undermine This
Conclusion.
¶27 Wife contends that the district court’s conclusion
regarding cohabitation is not supported by the language of the
Cohabitation Provision itself or the policies underlying alimony
awards in general.8 The Cohabitation Provision states, ‚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 Ann. § 30-3-5(10) (LexisNexis Supp. 2014). Wife asserts that
use of the present tense ‚is‛ ‛contemplates an ongoing
condition‛ of cohabitation, and that any cohabitation was not
ongoing in this case once J.O. moved out in early April 2011.9
According to Wife, reading the Cohabitation Provision in this
way ‚reflects the economic policy that underlies *alimony+
generally,‛ which is ‚to provide support for the *receiving
8. Husband contends that this argument is unpreserved because
Wife never made such a statutory interpretation argument in the
district court. Because 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.
9. It is undisputed that J.O. moved out of the common residence
when his relationship with Wife terminated in April 2011 and
that Husband did not file the petition to terminate alimony until
October 2011, some six months after cohabitation ended.
20131122-CA 16 2016 UT App 31Scott v. Scott
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,‛ Jones v. Jones, 700 P.2d 1072,
1075 (Utah 1985) (citation and internal quotation marks omitted).
Cohabitation, Wife argues, must be presently occurring to
further this purpose because cohabitation only functions as a
financial substitute for alimony while it is ongoing; she asserts
that once ‚a cohabiting relationship ends, the law places no
ongoing financial responsibility on either party‛ and therefore
can no longer ‚legally or functionally replace[] [the] need for
financial support.‛
¶28 The language of the Cohabitation Provision has never
been parsed in this way, and our case law has not squarely
addressed the issue.10 Accordingly, we utilize applicable canons
10. Utah courts have considered whether there was cohabitation
in cases where the conduct claimed to constitute cohabitation
had already ended by the time the motion for termination of
alimony was filed. See, e.g., Myers II, 2011 UT 65, ¶¶ 5–6, 266 P.3d
806 (considering whether the ex-wife and a foster child living in
the same home had cohabited during the spring and summer of
2007 when the ex-husband had filed a petition to terminate
alimony in January 2008); Knuteson v. Knuteson, 619 P.2d 1387,
1388 (Utah 1980) (considering whether the ex-wife and her
neighbor had cohabited when the ex-husband filed the petition
after the ex-wife had moved back into her home). In these cases,
the operative statute also used the word ‚is‛ to describe the
nature of the relationship that would terminate alimony. See
Knuteson, 619 P.2d at 1388 (applying a version of the
Cohabitation Provision that reads, ‚*A+limony . . . shall be
terminated upon . . . establishing that the former spouse is
residing with a person of the opposite sex unless . . . the
relationship or association between them is without any sexual
contact.‛ (emphasis added)); see also Myers II, 2011 UT 65, ¶ 5
(applying a version of the Cohabitation Provision with language
(continued…)
20131122-CA 17 2016 UT App 31Scott v. Scott
of construction to ascertain the meaning of the statute. When
interpreting a statute, an appellate courts’ ‚primary goal is to
give effect to the legislative intent, as evidenced by the plain
language, in light of the purpose the statute was meant to
achieve.‛ State v. Burns, 2000 UT 56, ¶ 25, 4 P.3d 795. Because
‚*t+he best evidence of the legislature’s intent is the plain
language of the statute itself,‛ we will assume, ‚absent a
contrary indication, that the legislature used each term advisedly
according to its ordinary and usually accepted meaning.‛ Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863(citations and internal quotation marks omitted). We will follow
this practice ‚unless such a reading is unreasonably confused,
inoperable, or in blatant contravention of the express purpose of
the statute,‛ Black v. Black, 2008 UT App 465, ¶ 7, 199 P.3d 371(citation and internal quotation marks omitted), or requires ‚a
result [that is] so absurd that the legislative body which
authored the legislation could not have intended it,‛ Marion
Energy, 2011 UT 50, ¶ 26 (citation and internal quotation marks
omitted). Additionally, we must construe the plain language ‚as
a whole‛ and ‚in harmony with‛ the other provisions of the
statute as well as ‚other statutes in the same chapter and related
chapters.‛ In re A.T., 2015 UT 41, ¶ 16, 353 P.3d 131 (citation and
internal quotation marks omitted).
¶29 To begin with, the Cohabitation Provision immediately
follows a provision governing the remarriage of a spouse who
has been receiving alimony (the Remarriage Provision). It
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.‛
(…continued)
identical to the current version). However, the question of
whether cohabitation must be contemporaneous with the
alimony termination proceeding was not before the courts in
those cases.
20131122-CA 18 2016 UT App 31Scott v. Scott
See generally Myers I, 2010 UT App 74, ¶ 12, 231 P.3d 815(observing that the ‚the principal purpose of alimony is
economic,‛ ensuring the recipient spouse is provided for
without penalizing the payor spouse), aff’d, 2011 UT 65, 266 P.3d
806. Thus, the two provisions are structured to provide that
alimony ‚terminates‛ upon the occurrence of a particular event.
The Remarriage Provision provides that ‚alimony to a former
spouse automatically terminates upon the remarriage . . . of th[e]
former spouse.‛ Utah Code Ann. § 30-3-5(9). The Cohabitation
Provision provides that ‚alimony to a former spouse terminates
upon establishment by the party paying alimony that the former
spouse is cohabitating with another person.‛ Id. § 30-3-5(10). The
only significant difference in the two provisions is the means by
which termination occurs.
¶30 With remarriage, alimony ‚automatically terminates‛ at
the time of the marriage whereas with cohabitation, alimony
‚terminates upon establishment‛ of cohabitation. Id. § 30-3-5(9),
(10) (emphases added). Having alimony ‚automatically
terminate*+‛ upon remarriage makes sense, because it is
generally a straightforward process to establish both that a
marriage occurred and when it began. The persons intending to
marry must obtain a marriage license, solemnize the marriage
within thirty days, and send proof of the solemnization and the
date of its occurrence (by returning the license and certificate of
marriage) to the county clerk for recordation in the public
records. Id. §§ 30-1-6, -7, -8, -11, -12 (LexisNexis 2013).11
¶31 Cohabitation, however, is not as readily established. As
demonstrated by our analysis above, ascertaining both the fact of
cohabitation and the date of its commencement can require a
11. The Utah Legislature amended section 30-1-6 during the 2015
General Legislative Session, but that amendment does not affect
this appeal. See Utah Code Ann. § 30-1-6 (LexisNexis Supp.
2015).
20131122-CA 19 2016 UT App 31Scott v. Scott
complex factual and legal analysis on a case-by-case basis. The
legislature seems to have structured the Cohabitation Provision
with that in mind, recognizing that there is often not a bright line
and that a process may be required to determine whether
cohabitation has actually occurred. The Cohabitation Provision
requires alimony to continue until the cohabitation is proven or
established. The alimony consequences may then take effect as of
the date cohabitation began, just as in the case of a remarriage.
¶32 Nevertheless, the strongest statutory support for Wife’s
interpretation of the Cohabitation Provision is the use of the
present-tense ‚is.‛ See id. § 30-3-5(10) (LexisNexis Supp. 2014)
(‚*A+limony to a former spouse terminates upon establishment
by the party paying alimony that the former spouse is
cohabitating with another person.‛ (emphasis added)). Instead
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.‛ See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d
911 (emphasis, citation, and internal quotation marks omitted);
see also Marion Energy, 2011 UT 50, ¶ 14 (providing that the
general rules of statutory construction require an interpretation
in accordance with the ordinary and plain meaning of the
language used). But when the present-tense verb is read within
the context of the Cohabitation Provision as a whole, see In re
A.T., 2015 UT 41, ¶ 16, the argument that its use demands that
cohabitation be ongoing at the time of determination seems less
persuasive. In discontinuing alimony upon establishment of
cohabitation, the legislature chose to use the word ‚terminate‛ to
convey that cohabitation cuts off alimony entirely. See Marion
Energy, 2011 UT 50, ¶ 14 (explaining that the general rule that we
utilize the ordinary and accepted meaning of a particular word
is only overridden when there is evidence of contrary intent);
Black’s Law Dictionary 1609 (9th ed. 2009) (defining ‚terminate‛
as ‚*t+o end; to conclude‛). This unequivocal language precludes
an interpretation that alimony might then be reinstated should
the cohabitation that ended the alimony itself come to an end. If,
20131122-CA 20 2016 UT App 31Scott v. Scott
as Wife contends, the legislature intended to require proof of
contemporaneous cohabitation at the time alimony terminates to
protect the receiving spouse from economic insecurity, only an
express provision for alimony reinstatement once cohabitation
ends—or, alternatively, a provision that alimony is only
suspended during cohabitation—would seem to fit the bill.12 In
the absence of such a provision, we think 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.
¶33 Furthermore, a ‚present cohabitation‛ construction of the
Cohabitation Provision could lead to results that the legislature
‚could not have intended.‛ See Marion Energy, 2011 UT 50, ¶ 26
(citation and internal quotation marks omitted). Requiring
cohabitation to be presently occurring, at best, makes
cohabitation a more advantaged method of engaging in long-
term relationships than remarriage and, at worst, encourages
abuse by creating an incentive for a cohabiting spouse to simply
cease cohabitation in order to avoid its consequences, even when
the relationship itself has not ended.13 For example, under the
12. The fact that the Remarriage Provision provides for
reinstatement of alimony if the marriage is annulled further
demonstrates that the legislature could have provided for
alimony reinstatement after termination. Cf. State v. Larsen, 865
P.2d 1355, 1358 (Utah 1993) (explaining that the legislature must
not have required a mens rea of ‚scienter‛ when it used
‚willfully‛ to describe the criminal conduct because ‚a brief
survey of the [Utah] Code confirms that the Utah legislature
knows how to require scienter, if it so desires, by including
specific language to that effect‛).
13. This concern is not unfounded. For example, South Carolina
specifically defines cohabitation as ‚mean*ing+ the supported
spouse resides with another person in a romantic relationship
(continued…)
20131122-CA 21 2016 UT App 31Scott v. Scott
Remarriage Provision, once a person who is receiving alimony
remarries, his or her alimony payments from the former spouse
terminate forever. Utah Code Ann. § 30-3-5(9). But interpreting
the Cohabitation Provision 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.14
(…continued)
for a period of ninety or more consecutive days‛ and provides
that ‚*t+he court may determine that a continued cohabitation
exists if there is evidence that the supported spouse resides with
another person in a romantic relationship for periods of less than
ninety days and the two periodically separate in order to
circumvent the ninety-day requirement.‛ S.C. Code Ann. § 20-3-
150 (2002). South Carolina’s statutory scheme specifically
anticipates that some couples will attempt to circumvent the
ninety-continuous-day requirement by making it appear as
though the cohabitation relationship had terminated when, in
fact, it did not. As a result, courts in South Carolina have had to
determine whether or not a couple has circumvented the ninety-
continuous-day requirement to avoid the alimony consequences.
See, e.g., Biggins v. Burdette, 708 S.E.2d 237, 238—39 (S.C. Ct. App.
2011).
14. We note, however, that for those choosing between
cohabitation and remarriage, there would also be
counterbalancing and, for some, weightier incentives to remarry
rather than cohabit, regardless of the alimony consequences.
These incentives include, among other things, legitimization of
children, inheritance rights, and property rights. Nevertheless, a
statutory scheme that reinstates alimony upon dissolution of a
(continued…)
20131122-CA 22 2016 UT App 31Scott v. Scott
¶34 In addition, Wife has offered no guidance on how to
feasibly implement an interpretation requiring present
cohabitation. For example, must the recipient spouse presently
be cohabiting at the time of the motion to terminate alimony or
at some later point, such as a hearing on the motion or at trial?
Because cohabitation relationships can cease at any time (as
illustrated by the facts of this case), 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
a hearing or trial. And even if the language were interpreted to
require present cohabitation only at the time of the filing of a
motion to terminate, a determined couple may endeavor to
forever avoid ‚present‛ cohabitation for purposes of the
Cohabitation Provision, all the while engaging in what amounts
to a serial cohabitation relationship, periodically interrupted for
strategic reasons. We recognize that not all persons with alimony
on the line would behave in such a way and that there may be
other potential consequences that would make such an approach
impracticable, but it is this potential for abuse that underscores
our conclusion that Wife’s reading of the Cohabitation Provision
could create unintended and undesirable results. The alternative
reading—that once the recipient spouse’s cohabitation is
demonstrated or ‚established‛ through an appropriate process,
alimony terminates as of the date the cohabitation began—
provides a much more predictable outcome and better accords
with the purpose of alimony to provide for the recipient spouse’s
needs without penalizing the payor spouse. See Myers I, 2010 UT
App 74, ¶ 12, 231 P.3d 815, aff’d, 2011 UT 65, 266 P.3d 806.
(…continued)
cohabitation relationship potentially allows an alimony payee to
accrue the benefit of a new relationship markedly similar to
remarriage without incurring its concomitant legal burden
(namely, the permanent termination of alimony that remarriage
would otherwise impose).
20131122-CA 23 2016 UT App 31Scott v. Scott
¶35 We acknowledge Wife’s argument that requiring
termination of alimony in these circumstances does not entirely
align with the general economic policies underlying alimony.
Wife has accurately identified that ‚the principal purpose of
alimony is economic.‛ Id. 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.‛ Jones v. Jones, 700 P.2d 1072, 1075
(Utah 1985) (citation and internal quotation marks omitted); see
also English v. English, 565 P.2d 409, 411 (Utah 1977) (explaining
that the alimony ‚is not intended as a penalty against‛ the payor
spouse). And in this regard, cohabitation is qualitatively
different from remarriage. Remarriage provides a legally
binding substitute for alimony; cohabitation does not. When a
recipient spouse remarries, that spouse is making a legal
decision to separate his or her financial interests from the former
spouse and to realign them with a new one. See Gayet v. Gayet,
456 A.2d 102, 103 (N.J. 1983) (‚*There is+ a policy to end alimony
when the supported spouse forms a new bond that eliminates
the prior dependency as a matter of law.‛). The second spouse
then acquires a legal obligation for financial support both during
the marriage and, if the couple divorces, after its dissolution if
the circumstances properly align. Myers I, 2010 UT App 74, ¶ 16.
With the exception of a marriage that is ‚annulled and found to
be void ab initio,‛ this is true even if the second marriage is
ultimately short term. Utah Code Ann. § 30-3-5(9). Conversely,
even if cohabitation creates a practical realignment of financial
interests between cohabiting parties, it is rare that such a change
would have legal significance once the relationship ends; rather,
as Wife asserts, the cohabiting relationship ‚‘can be readily
broken off without obligation.’‛ (Quoting Diane M. Allen,
Annotation, Divorced or Separated Spouse’s Living with Member of
Opposite Sex as Affecting Other Spouse’s Obligation of Alimony or
Support Under Separation Agreement, 47 A.L.R. 4th 38 § 2(b) (1986),
for the idea that the lack of legal obligation in a cohabiting
20131122-CA 24 2016 UT App 31Scott v. Scott
relationship would leave the person receiving alimony
financially vulnerable if the relationship were to end.)
¶36 Nevertheless, we conclude that the language of the
Cohabitation Provision and the cases that have interpreted it
require the decision we have come to today. In reaching this
conclusion, we are not insensitive to the cost of this result for
Wife; she has lost her long-term alimony award due to her
cohabitation with J.O., and because that relationship has also
ended, Wife is left with none of the legal benefits that a marriage
might have provided. But we emphasize that a former spouse
receiving alimony who enters into a cohabitation relationship
makes a choice under our law. As part of that choice, the former
spouse hazards the security of an ongoing alimony award for
whatever benefits, economic or non-economic, he or she
anticipates from the new relationship.15 If that cohabiting
relationship dissolves, the recipient spouse has still forfeited his
or her entitlement to alimony just as if he or she had entered into
15. Indeed, although this decision cuts off Wife’s alimony only
four-and-a-half years into a twenty-seven-year term, she and
Husband stipulated to the alimony provisions of the divorce.
Included within the divorce decree is a provision that ‚*a+limony
shall terminate upon the remarriage or cohabitation of *Wife+.‛
(Emphasis added.) And it is apparent that Wife was aware of the
risk. In describing her alimony negotiations with Husband, Wife
said she stipulated to ‚lowered . . . alimony so that when *she+
did fall in love with a man it would be easy to give up that extra
. . . money.‛ (Emphasis omitted.) And the record shows that,
with the potential consequences of her alimony award in mind,
she was deliberately careful to avoid taking steps that she
thought would cut off her alimony until she felt secure about her
relationship with J.O.
20131122-CA 25 2016 UT App 31Scott v. Scott
a short-term marriage.16 Moreover, although a failed
cohabitation relationship may be accompanied by a significant
economic cost to a former spouse who would otherwise have
continued to receive alimony, our conclusion is bolstered by the
consideration that the task of balancing competing policy goals
and crafting a statute that appropriately expresses that balance is
the province of the legislature, not the courts. See Lindsay v.
Walker, 2015 UT App 184, ¶ 24, 356 P.3d 195 (‚Our constitutional
responsibility is not to redefine the line based upon competing
considerations (even when those considerations may be
compelling) but to interpret the statute as written.‛).17
16. Although this is generally the case, we note that here Wife
and J.O. ultimately reached a ‚financial settlement . . . *relating
to+ their relationship,‛ in which J.O. paid Wife $110,000 ‚to give
him a release of *any+ claims‛ she may have had against him
arising from their relationship.
17. Other jurisdictions have taken different approaches to
cohabitation’s effect on alimony. For example, in some states, the
alimony award may be modified, rather than ended, upon a
showing that the cohabitation creates a material change in
financial circumstances. In these states, the monetary needs of
the receiving party drive the analysis, and if the cohabiting
relationship has not changed or altered the financial needs of
that party, the alimony award will not be disturbed. See, e.g.,
Conn. Gen. Stat. Ann. § 46b-86(b) (West 2013) (‚*T+he Superior
Court may . . . modify such judgment and suspend, reduce or
terminate the payment of periodic alimony upon a showing that
the party receiving the periodic alimony is living with another
person under circumstances which the court finds should result
in the modification, suspension, reduction, or termination of
alimony because the living arrangements cause such a change of
circumstances as to alter the financial needs of that party.‛); Horr
v. Horr, 445 N.W.2d 26, 28 (S.D. 1989) (‚Although remarriage
(continued…)
20131122-CA 26 2016 UT App 31Scott v. Scott
¶37 In sum, we affirm the district court’s overall decision that
Wife cohabited with J.O. The court’s findings, however, only
support a determination that cohabitation began on February 17,
2011. Thus, we modify the court’s decision in that respect.
II. Judgment to Husband
¶38 Because we have affirmed the district court’s conclusion
that Wife and J.O. cohabited, we also affirm its decision to
retroactively terminate Wife’s alimony as of the date of
(…continued)
makes a prima facie case for termination of alimony,
cohabitation, in and of itself, is not a circumstance upon which
alimony may be modified or terminated. Cohabitation may be
considered as a sufficient change in circumstances for alimony
modification only when it affects the financial needs of the
recipient.‛ (citations omitted)). Maine provides that alimony
may not be terminated until the cohabitation exceeds a specified
period of time. See Me. Rev. Stat. Ann. tit. 19-A, § 951-A(12)
(2013) (‚When it appears that justice requires, an order awarding
spousal support is subject to modification to terminate spousal
support when it can be shown that the payee and another person
have entered into a mutually supportive relationship that is the
functional equivalent of marriage that has existed for at least 12
months of a period of 18 consecutive months.‛). And
Massachusetts allows for reinstatement of alimony payments
upon cessation of the cohabitation relationship. See Mass. Gen.
Laws Ann. ch. 208, § 49(d)(2) (West 2012) (providing that
‚*g+eneral term alimony shall be suspended, reduced, or
terminated upon the cohabitation of the recipient spouse‛ but
that ‚*a+n alimony obligation suspended, reduced or terminated
under this subsection may be reinstated upon termination of the
recipient’s common household relationship; but, if reinstated, it
shall not extend beyond the termination date of the original
order.‛).
20131122-CA 27 2016 UT App 31Scott v. Scott
cohabitation and award Husband a judgment for the amount of
alimony paid from the time she began cohabiting. District courts
have discretion to retroactively terminate alimony to the date
cohabitation began. See Black v. Black, 2008 UT App 465, ¶ 13, 199
P.3d 371. However, because we have determined that
cohabitation began February 17, 2011, and not December 22,
2010, the calculation of the judgment for Husband is inaccurate.
Thus, we remand for the district court to adjust the amount of
the judgment accordingly.
CONCLUSION
¶39 We affirm the district court’s decision to terminate
alimony on the ground that Wife cohabited. Cohabitation began,
however, on February 17, 2011, not on December 22, 2010. Thus,
we remand for the district court to reduce the judgment it
awarded Husband for alimony previously paid.
20131122-CA 28 2016 UT App 31