Scott v. Scott

• Citation: 368 P.3d 133
• Decision Date: 19 February 2016
• Docket Number: No. 20131122–CA.,20131122–CA.
• Parties: Jillian SCOTT, Appellant, v. Bradley SCOTT, Appellee.
• Court: Court of Appeals of Utah

368 P.3d 133

Jillian SCOTT, Appellant,

v.Bradley SCOTT, Appellee.

No. 20131122–CA.

Court of Appeals of Utah.

Feb. 19, 2016.

Michael D. Zimmerman, Julie J. Nelson, Bart J. Johnsen, Salt Lake City, and Melissa M. Bean, for Appellant.

Karra J. Porter and Kristen C. Kiburtz, Salt Lake City, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judge KATE A. TOOMEY and Senior Judge JAMES Z. DAVIS concurred.¹

Opinion

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 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 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 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 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, 266 P.3d 806

(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, 266 P.3d 806 (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 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 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...