Wednesday, February 4, 2009

Court May Terminate Alimony Retroactively Based on Cohabitation

Black v. Black, 199 P.3d 371, 2008 UT App. 465, (Utah Court of Appeals, December 18, 2008).

Kim S. Black (Wife) and Jon Cornell Black (Husband) were married in 1980 and divorced in 1989. In June of 2001, Husband filed his first Petition to Modify the Decree to terminate alimony. Husband served interrogatories on Wife. One of the questions listed, asked Wife to list any individuals residing in her home. She failed to list her cohabitant Mr. Tomlin. Thereafter, Wife attempted to conceal the cohabitation. In 2005, Husband learned of the cohabitation and amended his petition to include it as grounds for termination of alimony. The trial court terminated alimony retroactively to the date of the original petition (relying on UCA § 78B-12-112). Wife appealed.

The Appellate court affirmed the trial court. However, the Court found that while the reliance on UCA § 78B-12-112 was misplaced in this case and should have instead used UCA § 30-3-5(10). UCA § 30-3-35(10) requires that alimony be terminated immediately upon establishment of cohabitation. However, the exact moment of cohabitation is difficult to determine. The statute is also silent as to retroactivity. This silence allows the trial court to decide the appropriate reach of the termination order based on the facts in this case. Based on Wife’s egregious attempts to conceal her cohabitation, the award of retroactive termination was well within the trial court’s discretion and is left undisturbed upon appellate review.

Full Decision available at

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