Scott v. Scott

Decision Date21 September 2017
Docket NumberNo. 20160299,20160299
Citation423 P.3d 1275
Parties Jillian SCOTT, Petitioner, v. Bradley SCOTT, Respondent.
CourtUtah Supreme Court

Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher, Julie J. Nelson, Salt Lake City, for petitioner.

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

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham and Judge Brown joined.

Justice Pearce, opinion of the Court:


¶ 1 Jillian Scott petitions this court to overturn the Utah Court of Appeals' order affirming the district court's conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under Utah Code section 30-3-5(10). This requires us to revisit a question that captured the nation's attention in 1999 because the meaning of section 30-3-5(10)"depends upon what the meaning of the word ‘is’ is." We conclude that the legislature intended that is should mean is and not was or has been . We reverse.


¶ 2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, "Alimony shall terminate upon the remarriage or cohabitation of [Wife]."

¶ 3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex-boyfriend. Husband argued that Wife had begun "cohabit[ing] with an adult male ... on or about February 2011," that Wife had a relationship with her cohabitant "akin to that generally existing between husband and wife," and that she and cohabitant "shared a common residence for a significant period of time." Wife and J.O. had broken up months before Husband filed his motion. The statutory language1 governing termination of alimony provides that alimony "terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person." UTAH CODE§ 30-3-5(10).2

¶ 4 The district court found that Wife and J.O. had cohabited and that their cohabitation terminated Husband's obligation to pay Wife alimony. The court stated that "[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple, who without those resources, cohabitate in a single home." The court found it significant that Wife and J.O. had been "together or staying in one of [J.O]'s homes approximately 87% of the time from December 2010 onward." Thus, considering the details of the couple's intimate and exclusive 30–31-month relationship ending sometime before April 2011, the district court found that the evidence before it established "cohabitation and a relationship akin to a husband and wife." The court ordered Wife to return to Husband "any alimony paid to her from December 22, 2010 to the present."3

¶ 5 Wife appealed and argued to the Utah Court of Appeals that the district court's interpretation of the statute failed to account for the present tense of the to be verb "is " in the statute. See UTAH CODE § 30-3-5(10) (alimony should dissolve upon establishment that "the former spouse is cohabitating").

Under Wife's reading, Husband could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that in order to terminate Husband's obligation under the plain language of the statute, Husband had to show that she was cohabiting at the time he filed his motion to terminate alimony.

¶ 6 Husband contended to the court of appeals that Wife's statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, "that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision ..." Scott v. Scott , 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife's statutory interpretation argument "regardless of whether it was properly preserved." Id.

¶ 7 The court of appeals disagreed with Wife's plain language argument. The court explained that "[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute." Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, "when the present-tense [to be ] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive." Id. ¶ 32 (internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony "terminates upon establishment" of cohabitation. Id. (emphasis added); UTAH CODE § 30-3-5(10). The court of appeals determined that, because the statute lacks a provision allowing for "alimony reinstatement once cohabitation ends" or a provision explaining "that alimony is only suspended during cohabitation," "the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it with such a burden." Scott , 2016 UT App 31, ¶ 32, 368 P.3d 133.

¶ 8 The court of appeals also reasoned that the legislature "could not have intended" the result Wife's briefing described. Id. ¶ 33 (citation omitted). The court acknowledged "that requiring termination of alimony in [Wife's] circumstances does not entirely align with the general economic policies underlying alimony." Id. ¶ 35. "[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not." Id. But the court explained that

interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature's intent.

Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared "a common abode" that was also their "principal domicile" for "more than a temporary or brief period of time," the court rejected Wife's argument and upheld the district court's conclusion that Wife and J.O. had cohabited. Id. ¶¶ 16 –26.

¶ 9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court's timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, "because their vacations together before they moved to [California] still retained a temporary quality." Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife's payment to Husband to reflect the dates it found significant. Id. ¶ 38.

¶ 10 We disagree with the court of appeals' reading of the cohabitation statute. We instead conclude that the plain language of Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony. 4

We also clarify an appellee's burden of persuasion on certiorari when the court of appeals addresses an issue that the appellee claims was unpreserved.

¶ 11 We have jurisdiction under Utah Code section 78A-3-102(3)(a).


¶ 12 On certioriari , we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co. , 2016 UT 19, ¶ 13, 374 P.3d 3. "We also review questions of statutory interpretation ... for correctness." Id.

I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited

¶ 13 Before we reach the merits of the court of appeals' conclusion that Wife cohabited with J.O., we must address Husband's argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, "[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved." Scott v. Scott , 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.

¶ 14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson , 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson , we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that "our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement." Id. ¶ 19. But we concluded that

consideration of the [statute] is necessary to a proper decision. As the state's highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant's] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.

Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation...

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