Divorce: If a Decree Misclassifies a Payment, the Effective Date of the Reclassification is the Date of the Petition to Modify.

Cox v. Cox, 2012 UT App. 225, Utah Court of Appeals, August 16, 2012

In Husband and Wife’s stipulated divorce decree, husband was ordered to pay $3000 per month as a property settlement and child support.  Wife remarried.  Husband did not learn of the remarriage for two years, upon learning of the remarriage he petitioned the court to modify his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the trial court classified payments as alimony.  However, the Court terminated alimony on the day of the trial and not the date of remarriage. Husband appealed.

The Court of Appeals affirmed the trial court’s denial of retroactively modifying the alimony award to the date of remarriage. The Court found it was Husband’s burden to have the payments classification corrected.  The court analogized this re-classification procedure with having to establish cohabitation in order to end alimony.  The misclassification in the decree is effective until a party asks to correct it.  The Court of Appeals did modify the award retroactively to the date the Petition to Modify was filed.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/cox265081612.pdf

Cohabitation = Marriage-Like Relationship Not Merely Sex + Same Roof

Myers v. Myers, 2011 UT 65, Utah Supreme Court October 21, 2011

Husband and Wife were divorced in 2006.  Husband was ordered to pay alimony.  For a time Wife resided with her parents.  The trial court found that while living with her parents, Wife engaged in sexual relations with a foster child teenager of Wife’s parents.   The trial court found that this was sufficient to show cohabitation and terminated alimony.  Mother Appealed.  The Court of Appeals reversed finding that cohabitation is more than having sex and sharing a residence, but must be a relationship akin to a marriage.

The Supreme Court granted cert and affirmed the Court of Appeals.  The Supreme Court reached its finding in much the same way as the Court of appeals.   In this case, Mother and foster child shared a home, but it was not their home.  They did not share expenses, nor did they hold themselves out as a married couple.  The relationship was also temporary; there was no sign of permanence.  The Court indicated that the correct question for the trial court to consider is not the sharing of a residence or the existence of a sexual relationship, but whether cohabitation occurred.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/Myers2102111.pdf

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  

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 http://www.utcourts.gov/opinions/appopin/black121808.pdf