Kinsey v. Kinsey

1

2024 UT App 120

Julie Kinsey, Appellee, v. Glen D. Kinsey, Appellant.

No. 20230088-CA

Court of Appeals of Utah

August 22, 2024

Third District Court, Salt Lake Department The Honorable Dianna M Gibson No. 204907035

K Bradley Carr, Attorney for Appellant

Cory R. Wall, Attorney for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Ryan M Harris and Amy J. Oliver concurred.

OPINION

TENNEY, Judge

¶1 Glen Kinsey and Julie Kinsey divorced in 2021.^[1] The next year, Glen filed a petition asking the district court to terminate his alimony obligations, claiming that Julie had cohabited with another man. After an evidentiary hearing, the district court issued a ruling rejecting Glen's petition. Glen now appeals that decision. For the reasons set forth below, we affirm.

BACKGROUND

Petition to Modify

¶2 Julie and Glen were married in 1994 and divorced in January 2021. In the divorce decree, Glen was ordered to pay Julie alimony for twenty-six years, which was the length of the marriage.

¶3 In January 2022, Glen filed a petition to modify the decree. In his petition, Glen alleged that he had retained two private investigators and that they had obtained evidence showing that between March 2021 and August 2021, Julie and another man (Boyfriend) had "cohabited in a relationship akin to marriage."^[2]Relying on this evidence, Glen asked the district court to terminate his alimony obligations.

¶4 Julie opposed the petition. In her memorandum, Julie acknowledged that she was "in a relationship" with Boyfriend, that they were currently "dating," and that she had "stayed overnight" at his home "as a guest." But even so, Julie claimed that she had never "liv[ed] at his residence," instead claiming that she and her adult daughter had resided at her parents' home after she sold the marital home following the divorce. For these and other reasons, Julie argued that she and Boyfriend had not cohabited and that Glen's alimony obligations should not be terminated.

¶5 The district court held a two-day evidentiary hearing on the issue in September and October 2022. At that hearing, the parties called several witnesses and introduced evidence about the nature of the relationship between Julie and Boyfriend, as well as about other factors potentially relevant to a cohabitation determination.^[3]

Ruling

¶6 The court subsequently issued a written ruling denying Glen's petition. At the outset of its findings of fact, the court found that "[s]ometime after the divorce, Julie began dating [Boyfriend]." It also found that Julie and Boyfriend had each admitted that their relationship was "romantic and intimate." In the remainder of its findings of fact, the court summarized the testimony (and it sometimes, though not always, resolved conflicts in the testimony) about various aspects of the relationship between Julie and Boyfriend. These findings included the following:

• Overnights in the summer of 2021. The court noted that Glen's private investigator had testified that Julie spent 31 out of 47 nights at Boyfriend's home between the end of June and the middle of August of 2021, and it also noted that there had been testimony that Julie and Boyfriend had spent several nights together on vacation during that same timeframe.

• Overnights later in 2021 and in 2022. The court then recounted (but did not necessarily resolve) the sometimes-conflicting testimony about how often Julie and Boyfriend spent nights together at Boyfriend's home after the summer of 2021. On Glen's side of this dispute, the court noted that Glen had testified that he had driven by and seen "Julie's car parked in front of [Boyfriend's] home" in the late evening or very early morning hours on 26 different days between late February and mid-August 2022. On Julie's side, the court noted that Julie had testified that she spent "more nights" at her parents' home than she did at Boyfriend's, as well as that Julie's father had testified that he "typically has breakfast and dinner with [Julie]" and that she did not "spend[] more time at [Boyfriend's] home than his." The court also noted Boyfriend's testimony that Julie "stays at his home likely 3-4 times a week," as well as Boyfriend's insistence that they "do not live together." From all this, the court found that after the period from June to August 2021, "the evidence, at best, shows that" Julie stayed at Boyfriend's "home regularly each week, but it does not show" that they "consistently" spent nights together at a rate as high as they had during the summer of 2021.

• Access and use of residences. The court found that Julie did not have a key to Boyfriend's home and that Boyfriend did not have a key to the home of Julie's parents. The court also found that Julie "does not stay at [Boyfriend's] place when he is not there."

• Property. In the written briefing, the parties had disputed whether and to what extent Julie stored her personal property at Boyfriend's home. In its findings, the court only addressed the extent to which Julie had stored her "wave runners" there. It noted that Glen had testified that the wave runners had been stored at Boyfriend's home throughout the summer of 2021, but the court also noted (and seems to have credited) testimony that Boyfriend was fixing the wave runners that summer and that they were more typically stored at the home of Julie's sister.

• Finances. The court found that Julie and Boyfriend "do not share finances and do not pay each other's expenses." The court also found that Julie and Boyfriend "do not share bank accounts or credit cards" and "do not own property together." The court further found that Boyfriend leases his home and that "Julie is not on the lease."

• Julie's bills and other documents. The court found that Julie used her parents' address as her address for such things as her "bills, statements and mail related to her phone, car and health insurance, retirement, bank, pet hospital, Costco [membership], GMC recall notice, medical information, and driver's license."

¶7 In its conclusions of law, the district court then ruled that Glen had failed to prove by a preponderance of the evidence that Julie "was or is cohabiting with [Boyfriend]." In doing so, the court recognized that a new statutory definition for the term "cohabit" became effective on May 5, 2022. But the court decided to assess the question under "the traditional cohabitation analysis" from the common law. It did so for two reasons. First, the court saw no indication that the new "statutory definition was intended to call into question or vacate Utah's common law cohabitation analysis . . . or eliminate[] from consideration the factors historically deemed to be indicative of 'cohabitation.'" And second, the court noted that Glen had filed his petition in January 2022 (before the new statutory definition went into effect), and the court saw no basis for applying the new statutory definition retroactively to conduct that predated the statute's enactment.

¶8 Applying pre-2022 caselaw, the court observed that because the "clear" "purpose of alimony is economic in nature," alimony should only be terminated for post-divorce cohabitation if there is evidence of not just "a sexual relationship between two individuals living under the same roof" but also "a relationship 'akin' to marriage." Drawing on the findings set forth above, the court concluded that there was "no evidence to show that Julie and Boyfriend 'shared' his residence," nor was there "evidence to show that [Julie's] financial dependency has been eliminated by another more permanent romantic relationship." In the court's view, there was "no evidence that they shared finances, household expenses, accounts, property, or made any decisions together." From all this, the court concluded that Glen had failed to establish that Julie and Boyfriend were "in a relationship akin to that of a husband and wife." It accordingly concluded that Julie had not cohabited with Boyfriend, and it thus denied Glen's request to terminate his alimony obligations.

ISSUE AND STANDARD OF REVIEW

¶9 Glen challenges the district court's conclusion that Julie had not cohabited with Boyfriend. A "cohabitation determination is a fact-intensive determination of a mixed question of fact and law that is entitled to substantial deference on appeal." Scott v. Scott, 2020 UT 54, ¶ 34, 472 P.3d 897. But to the extent that this determination turns on the interpretation of a statute, the "proper interpretation and application of a statute is a question of law which we review for correctness." McFarland v. McFarland, 2021 UT App 58, ¶ 19, 493 P.3d 1146 (quotation simplified).

ANALYSIS

¶10 By statute, a court shall terminate an order that a party pay alimony to a former spouse if the party establishes that after the order for alimony is issued, the former spouse cohabits with another individual even if the former spouse is not cohabiting with the individual when the party paying alimony files the motion to terminate alimony. Utah Code § 30-3-5(14)(a). When a person seeks to terminate his or her alimony obligations under this statute, the person must establish cohabitation by a preponderance of the evidence. See Myers v. Myers, 2011 UT 65, ¶ 29, 266 P.3d 806.

¶11 On appeal, Glen challenges the district court's conclusion that he failed to establish that Julie cohabited with Boyfriend. Before addressing Glen's argument, we first note that the parties disagree about which definition of "cohabit" we should use in our analysis.

¶12 The term "cohabit" (or its noun-form "cohabitation") comes into play in several aspects of domestic law. As noted, cohabitation is grounds for terminating an alimony award. Elsewhere, cohabitation is one of the elements for an...