Haddow v. Haddow

• Decision Date: 30 September 1985
• Docket Number: No. 18368,18368
• Citation: Haddow v. Haddow, 707 P.2d 669 (Utah 1985)
• Parties: Ingrid Mae HADDOW, Plaintiff and Appellant, v. John David HADDOW, Defendant and Respondent.
• Court: Utah Supreme Court

Page 669

707 P.2d 669

Ingrid Mae HADDOW, Plaintiff and Appellant, v. John David HADDOW, Defendant and Respondent.

No. 18368.

Supreme Court of Utah.

Sept. 30, 1985.

David O. Drake, Costa Mesa, Cal., for plaintiff and appellant.

John D. Parken, Salt Lake City, for defendant and respondent.

DURHAM, Justice:

This is an appeal from a decision in which the trial court found that appellant was cohabiting with a man and ordered her to pay to her former husband one-half of the equity in the home in which she was living, pursuant to an equitable lien established in the divorce decree. Because we believe that the trial court improperly construed the language of the decree, we reverse.

The parties in this action, appellant Ingrid Haddow and respondent John Haddow, were divorced on September 11, 1980. Mrs. Haddow waived her right to alimony. She was awarded custody of the parties' three children, who ranged in age from seven years to thirteen years. Mr. Haddow was ordered to pay child support in the amount of $450 per month, and Mrs. Haddow was awarded the parties' home, subject to an equitable lien in favor of Mr. Haddow of half the equity in the home. The equity was to be payable upon any of the following occurrences: all of the children ceased to reside in the house or Mrs. Haddow moved out of the house, remarried, or "cohabited with a male person."

After the divorce, Mr. Haddow entered the house and took several items without Mrs. Haddow's permission. Thereafter, in February 1982, Mrs. Haddow obtained a temporary restraining order enjoining Mr. Haddow from coming to the house without her express permission. A short time later, Mr. Haddow filed a motion for an order requiring Mrs. Haddow to pay him one-half of the equity in the home because she was allegedly cohabiting with a man.

At trial, the testimony centered on the nature and extent of appellant's relationship with her boyfriend, Hy Hudson. There was no dispute that Mr. Hudson spent most of his free time with appellant. The trial court found that Mr. Hudson had dinner at appellant's house five or six times a week, that on those occasions he usually stayed until sometime between 10:30 p.m. and midnight, and that he would often return in the morning to have coffee or breakfast with appellant before work. The court also found that Mr. Hudson spent the night with appellant approximately once a week. There was testimony that Mr. Hudson left some clothes at appellant's house and that she did some of his laundry and sometimes took clothes to the dry cleaner for him. Mr. Hudson occasionally showered and changed at the house, particularly when he worked late and was going out for the evening with appellant. Mr. Hudson maintained a separate residence, however, living at his parents' home. Although Mr. Hudson used appellant's mailing address for a couple of bank accounts, he testified that he also received mail at his ex-wife's address, as well as at his parents' home. There was no evidence that Mr. Hudson and appellant shared any assets or had any joint financial accounts, projects, or liabilities. On several occasions, Mr. Hudson gave appellant money to reimburse her for the food he ate. He also took her car to be serviced at the car dealership where he worked. Beyond that, Mr. Hudson made no financial or tangible contributions to appellant or to her household, nor did he share living expenses with her in any sense.

On appeal, Mrs. Haddow challenges the trial court's conclusion that she was cohabiting with Mr. Hudson. In its memorandum decision, the trial court stated that there was no substantial conflict in the testimony as to the facts of the relationship between appellant and Mr. Hudson and that the controversy was whether their conduct constituted cohabitation within the meaning of the divorce decree. Although the trial court labeled its resolution of that question a "finding of fact," the determination of whether given circumstances constitute cohabitation requires the application of the terms of a court order to a given set of facts. This process is in reality a mixed question of fact and law, and we are not bound by the conclusion reached by the trial court. See Olwell v. Clark, Utah, 658 P.2d 585, 586 n. 1 (1982). Moreover, in reviewing a trial court's actions in a divorce case, we are vested with broad equitable powers. See Read v. Read, Utah, 594 P.2d 871, 872-73 (1979).

In reaching its decision, the trial court did not specify its definition of "cohabitation." As the trial court pointed out, the term "cohabitation" does not lend itself to a universal definition that is applicable in all settings. As a legal concept, cohabitation has been the determinative issue in cases involving validity of marriage, see, e.g., Boyd v. Boyd, 228 Cal.App.2d 374, 39 Cal.Rptr. 400 (1964); legitimacy of offspring, see, e.g., Burke v. Burke, 216 Or. 691, 340 P.2d 948 (1959); criminal prosecution of cohabitants, see, e.g., State v. Barlow, 107 Utah 292, 153 P.2d 647 (1944); and statutory and nonstatutory termination of alimony payments, see, e.g., Kaplan v. Kaplan, 186 Conn. 387, 441 A.2d 629 (1982) (statutory); Simms v. Simms, 245 Ga. 680, 266 S.E.2d 493 (1980) (statutory); In re Clark, 111 Ill.App.3d 960, 444 N.E.2d 1369 (1983) (statutory); Zipparo v. Zipparo, 70 A.D.2d 616, 416 N.Y.S.2d 321 (1979) (nonstatutory); In re Marriage of Vasconellos, 58 Or.App. 390, 648 P.2d 1358 (1982) (nonstatutory), as well as the enforcement of equitable liens, as in the present case. To some extent, the meaning of the term depends upon the context in which it is used. Nonetheless, a majority of cases and statutes that attempt to fix a definition of "cohabitation" follow the dictionary definition, which is: "To live together as husband and wife." Black's Law Dictionary 236 (5th ed. 1979); Webster's Ninth New Collegiate Dictionary 257 (1984).

Neither the word "cohabitation" nor any variation of it appears in U.C.A., 1953, Title 30, chapter 3, the statutory provision governing divorce. However, language we believe was drafted for the same purpose as the cohabitation clause in the divorce decree is found in section 30-3-5(3), which calls for the termination of alimony payments under certain circumstances. That section reads Any order of the court that a party pay alimony to a former spouse shall be terminated upon application of that party establishing that the former spouse is residing with a person of the opposite sex, unless it is further established by the person receiving alimony that the relationship ... is without any sexual contact.

Although this statute pertains exclusively to termination of alimony, we find it noteworthy that the statute predicates termination of spousal support on a showing that the former spouse is "residing" with a person of the opposite sex. Once residence is established, alimony obligations are terminated unless the recipient can show that the relationship is "without sexual contact." Wacker v. Wacker, Utah, 668 P.2d 533 (1983). This Court has already said that the residency contemplated by the statute is more than a temporary stay. See Knuteson v. Knuteson, Utah, 619 P.2d 1387, 1389 (1980) (where it was held that a stay of two months and ten days did not establish a "settled abode" (quoting Webster's New Twentieth Century Dictionary, 2d ed.)). However, in neither Knuteson nor Wacker were we called upon to define sexual contact.

We also note that neither the record nor the divorce decree itself indicates whether the cohabitation clause was stipulated by the parties to the decree or whether it was imposed by the divorce court. If the parties inserted the clause, they gave no testimony at trial as to how they intended it to be interpreted. If the divorce court judge inserted the clause, we are without benefit of his opinion in this matter since he did not hear this matter below and is now retired from the bench.

We therefore decide that there are two key elements to be considered in determining whether appellant was cohabiting with Mr. Hudson: common residency and sexual contact evidencing a conjugal association. Consistent with our holding in Knuteson, 619 P.2d at 1389, common residency means the sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time. Sexual contact means participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife.

We first address the aspect of sexual contact. As noted above, the trial court found that Mr. Hudson spent the night with appellant an average of once a week. The findings do not indicate how long this conduct continued, but the record does show that at the time of trial, Mr. Hudson and appellant had been dating each other exclusively for about fourteen months. The court also found that appellant and Mr. Hudson had taken a vacation together to Hawaii, "sleeping in the same bed and having sexual relations," and that the couple had spent at least one night together in Elko, Nevada. So even if we disregard the possibility that sexual relations occurred on occasions when Mr. Hudson visited appellant's home but did not remain overnight, we are satisfied that the findings below on this point establish the presence of a relatively permanent sexual relationship.

In reaching his decision, the trial judge, who admittedly was hindered by a lack of applicable standards, placed considerable emphasis on the sexual aspect of the relationship between appellant and her boyfriend and on the effect on appellant's children of the exposure "to a bed and board arrangement between the custodial parent and a member of the opposite sex." Although we agree with the trial judge that this case involves a sensitive situation and we are similarly distressed by the circumstances of this trial where the children were called upon to testify as to the nature and extent of their mother's sleeping arrangements, we decline to...