Smith v. Smith

• Decision Date: 18 March 2008
• Docket Number: Docket No. 273547.
• Citation: 748 N.W.2d 258,278 Mich.App. 198
• Parties: William Jeffrey SMITH, Plaintiff-Appellant/Cross-Appellee, v. Betty Lee SMITH, a/k/a Betty Lee Jenkins, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

748 N.W.2d 258

278 Mich.App. 198

William Jeffrey SMITH, Plaintiff-Appellant/Cross-Appellee, v. Betty Lee SMITH, a/k/a Betty Lee Jenkins, Defendant-Appellee/Cross-Appellant.

Docket No. 273547.

Court of Appeals of Michigan.

Submitted December 5, 2007, at Grand Rapids.

Decided March 18, 2008, at 9:05 a.m.

Kluczynski, Girtz & Vogelzang (by Richard Radke, Jr.), Grand Rapids, for the plaintiff.

Mark F. Haslem, Grand Rapids for the defendant.

Before BANDSTRA, P.J., and METER and BECKERING, JJ.

BECKERING, J.

Plaintiff appeals by leave granted the trial court's order denying his motion to terminate spousal support. Defendant cross-appeals the trial court's denial of her request for attorney fees and costs. We affirm.

The parties were divorced in June of 1999, following a 17-year marriage during which they had five children. The judgment of divorce required plaintiff to pay defendant $3,500 a month in spousal support, but provided that plaintiff's obligation to pay spousal support would terminate "upon such time as the Defendant cohabitates with a non-related male." In January of 2005, plaintiff moved to terminate spousal support, asserting that defendant was cohabitating with her boyfriend, Philip J. Walsh II. Following an evidentiary hearing, the trial court denied plaintiff's motion to terminate spousal support, finding that defendant and Walsh were not cohabitating.

I

Plaintiff first argues that the trial court erred in its interpretation of the term "cohabitation," as used in the parties' judgment of divorce. A judgment of divorce is to be construed in light of the trial court's findings of fact and conclusions of law. Beason v. Beason, 435 Mich. 791, 798-799 n. 3, 460 N.W.2d 207 (1990). A trial court generally interprets the terms of a divorce judgment, such as the term "cohabitation," in the same manner that it interprets a contract. Id. If the term's meaning is unclear or it is equally susceptible to more than one meaning, as is the case here, interpretation is a question of fact, and the trial court may consider extrinsic evidence to determine the intent of the parties. Id.; Brucker v. McKinlay Transport, Inc. (On Remand), 225 Mich. App. 442, 448, 571 N.W.2d 548 (1997). A trial court commits legal error when it incorrectly chooses, interprets, or applies the law. Fletcher v. Fletcher, 447 Mich. 871, 881, 526 N.W.2d 889 (1994).¹

The parties' judgment of divorce did not define the term "cohabitation," and there are no authoritative Michigan cases that define the term in the context of terminating an award of spousal support.² Therefore, it was appropriate for the trial court to consider the dictionary definition of the term "cohabitation" and caselaw from other jurisdictions that have interpreted the term in a similar context. See Henderson v. State Farm Fire & Cas. Co., 225 Mich.App. 703, 710, 572 N.W.2d 216 (1997), rev'd on other grounds 460 Mich. 348, 596 N.W.2d 190 (1999) (where no Michigan cases are directly on point regarding the meaning of a phrase, it is appropriate to turn to dictionary definitions and caselaw from other jurisdictions).

In making its findings, the trial court referenced Black's Law Dictionary (8th ed), which defines "cohabitation" as "[t]he fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations." Similarly, Ballentine's Law Dictionary (3d ed) defines "cohabitation" as "[a] dwelling together of man and woman in the same place in the manner of husband and wife." After considering the dictionary definition of "cohabitation," the trial court adopted the definition for the term articulated in Birthelmer v. Birthelmer, unpublished opinion of the Court of Appeals of Ohio for the Sixth District, issued July 15, 1983 (Docket No. L-83-046), 1983 WL 6869, as affirmed and applied in Dickerson v. Dickerson, 87 Ohio App.3d 848, 623 N.E.2d 237 (1993), and Moell v. Moell, 98 Ohio App.3d 748, 649 N.E.2d 880 (1994). In Birthelmer, supra, the Ohio Court of Appeals set out three elements distinguishing genuine cohabitation relationships from those that are not:

First, there must be an actual living together, that is, the man and woman must reside together in the same home or apartment. Secondly, such a living together must be of a sustained duration. Thirdly, shared expenses with respect to financing the residence (i.e., rent or mortgage payments) and incidental day-to-day expenses (e.g., groceries) are the principal relevant considerations. [Birthelmer, supra 1983 WL at *4.]

The trial court noted that, in adopting the Birthelmer test, it gave consideration to the fact that Ohio is geographically proximate to Michigan, the case provided a well-reasoned decision for selecting the three factors, and it has since been followed by other Court of Appeals decisions in Ohio that have adopted the three factors and added to them.

In addition to the three elements set out in Birthelmer, the trial court considered the following factors: whether defendant and Walsh intended to cohabitate; whether they held themselves out as living together; whether they assumed obligations generally arising from ceremonial marriage; whether a sexual relationship existed; whether marriage was contemplated; whether they used one another's addresses; whether they kept joint accounts; whether they were economically interdependent; and whether defendant used her spousal support to subsidize the alleged cohabitation.

We find that the trial court properly employed this multiple-factor test in determining whether defendant and Walsh were cohabitating. Cohabitation requires more than briefly living together or regularly engaging in sexual activity. Pursuant to the dictionary definition of cohabitation, the couple must be "living together ... as partners in life," or "dwelling together ... in the manner of husband and wife." As 6 Am. Jur. Proof of Facts 3d, § 2, p. 773, states, "[g]enerally, it can be said that courts consider cohabitation to mean a relationship between two persons of the opposite sex who reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship." Accordingly, courts in other jurisdictions have considered a number of evidentiary factors in determining whether a couple is cohabitating. See, e.g., Rose v. Csapo, 359 N.J.Super. 53, 60-61, 818 A.2d 340 (2002); Sanders v. Burgard, 715 So.2d 808, 811 (Ala.Civ.App., 1998); Baker v. Baker, 1997 ND 135, 566 N.W.2d 806, 811-812 (1997); Moell, supra at 752-753, 649 N.E.2d 880; In re Marriage of Herrin, 262 Ill.App.3d 573, 577, 199 Ill.Dec. 814, 634 N.E.2d 1168 (1994); McCarty v. McCarty, 29 Pa D & C3d 687, 692 (1984); Quisenberry v. Quisenberry, 449 A.2d 274, 276-277 (Del.Fam. Ct., 1982).

Whether cohabitation exists is a factual determination based on the totality of the circumstances. In making a finding on cohabitation, courts should consider many factors. The following are examples: First, courts may consider the living arrangements of the couple and the extent to which they shared a common residence. Did they both keep personal items such as clothing and toiletries at the residence? Did they both have keys to the residence? What mailing address did each party use? Did they share automobiles, or other personal property? Were household duties shared? How long did such arrangements exist? Second, courts may consider the couple's personal relationship and whether it appeared relatively permanent. Did they engage in sexual relations? Was their relationship monogamous? Was marriage contemplated? Did they spend vacations and holidays together? How did the couple represent their relationship to their family, friends, and acquaintances, and how did those people view the relationship? Third, courts may inquire into the couple's financial arrangements. Did they share expenses? Did they maintain joint accounts? Did they jointly own real or personal property? Did one party support the other? Whether cohabitation exists is a question for the finder of fact. Because no one factor defining a couple's relationship is dispositive on the question of cohabitation, the fact-finder should consider the totality of the circumstances in each particular case.

II

Next, plaintiff argues that the trial court erred in finding that defendant and Walsh were not cohabitating. We disagree. We review a trial court's factual findings for clear error. MCR 2.613(C); Brucker, supra at 448, 571 N.W.2d 548. A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made, giving due regard to the trial court's special opportunity to observe the witnesses. In re BZ, 264 Mich.App. 286, 296-297, 690 N.W.2d 505 (2004).

In finding that defendant and Walsh were not cohabitating, the trial court properly considered the totality of the circumstances. Defendant first met Walsh in 2002, and they have engaged in a monogamous, sexual relationship since 2004. After Walsh's own marriage failed in October of 2003, he moved to Georgia, where he lived with his sister and later purchased a home. He moved back to Michigan in May or June of 2004, but returned to Georgia in September of 2004. He also spent the summer of 2005 living in Grand Rapids where his ex-wife allowed him to live in their marital home after she moved out, although Walsh had minimal utility charges at the home during this period. Walsh obtained a Georgia driver's license and has no plans to move back to Michigan. He is the CEO of his own marketing firm and travels extensively on a regular basis, almost exclusively in connection with business. For example, a credit-card statement revealed that in a single month, Walsh traveled to North Carolina, South Carolina, Virginia, Florida, Nevada, Louisiana, Texas, Indiana, Kentucky, and Alabama. Walsh estimated that he spends 40 weeks each year traveling for...