Common Residence + Sexual Contact + Husband-Wife Relationship≠ Cohabitation

Myers v. Myers, 2010 UT App. 74, (Utah Court of Appeals, April 1, 2010).

Husband and Wife were divorced and Husband was ordered to pay alimony.  After the divorce, Wife never had a permanent home, but often stayed with her parents.  Husband alleged, and the trial court found, that wife, while in her parents home, engaged in sexual contact with a foster child living in her parents home.  Husband moved to terminate alimony based on cohabitation with the foster child.  The trial court found cohabitation based on a common residence and sexual contact.  Wife Appealed.

The Court of Appeals reversed and remanded the case, finding that the Court failed to establish that Wife and the foster child engaged in a relationship akin to a husband-wife relationship.  The Court found that Husband failed to show Wife shared expenses with the foster child, shared decision-making, shared space, or shared meals.  The Court found that, Husband had shown that Wife and foster child conducted themselves as boyfriend and girlfriend and not as husband and wife.

Full Decision available at http://www.utcourts.gov/opinions/appopin/myers040110.pdf