Kelly, T. v. Kelley, F. ( 2016 )


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  • J-S51029-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    THOMAS C. KELLEY                                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    FRANCES C. KELLEY
    Appellee                 No. 3080 EDA 2015
    Appeal from the Order Entered September 10, 2015
    In the Court of Common Pleas of Delaware County
    Civil Division at No(s): 2008-016439
    BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
    MEMORANDUM BY LAZARUS, J.:                             FILED JULY 26, 2016
    Thomas C. Kelley (hereinafter “Husband”) appeals from the order
    entered in the Court of Common Pleas of Delaware County denying
    Husband’s Petition to Terminate Alimony. After careful review, we affirm.
    The parties, Husband and Frances C. Kelley (hereinafter “Wife”), were
    married on April 14, 1984. On September 12, 2006, they separated.
    On December 10, 2013, Husband filed a Petition to Terminate Alimony.
    Wife filed an Answer to Husband’s Petition to Terminate Alimony and New
    Matter for Counsel Fees on January 20, 2015. The court held hearings on
    January 20, 2015, January 28, 2015 and April 15, 2015.
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S51029-16
    At the hearing, Husband and Wife stipulated that they entered into a
    Property Settlement Agreement. This stipulation was placed on the record
    on March 12, 2013. The agreement provided that beginning April 1, 2013,
    Husband was to pay Wife alimony in the amount of $3800 per month for a
    period of ten years. It also provided that if Wife “remarries, cohabits with a
    person of the opposite sex in a romantic relationship, . . . [or] if she dies,
    then alimony shall terminate.” Hearing, March 12, 2013, at 8-9.
    By order dated September 9, 2015, the court denied Husband’s
    petition to terminate alimony.     The court concluded that Husband did not
    prove, by a preponderance of the evidence, that Wife cohabited with Carter
    Winterbottom (“Winterbottom”).
    Husband filed a notice of appeal, and by order dated October 8, 2015,
    the trial court directed Husband to file a Concise Statement of Matters
    Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).       On October 28,
    2015, Husband filed his Rule 1925(b) Statement. Husband raises the
    following claims for our review:
    1. Whether Wife was cohabitating with Winterbottom, thereby
    relieving Husband of the obligation to pay her alimony?
    2. Whether the Lower Court erred in requiring the “passage of
    time” as a prerequisite to finding cohabitation?
    3. Whether the Lower Court erred in requiring a couple to hold
    themselves out in the community as husband and wife before
    cohabitation will be found?
    Brief for Appellant, at 25.
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    In reviewing orders granting, denying or modifying support or alimony,
    this court is limited to considering whether the trial court abused its
    discretion or committed an error of law. Simmons v. Simmons, 
    723 A.2d 221
    , 223 (Pa. Super. 1998). An abuse of discretion requires proof of more
    than a mere error of judgment, but rather evidence that the law was
    misapplied or overridden, or that the judgment was manifestly unreasonable
    or based on bias, ill will, prejudice, or partiality. 
    Id. at 222-223
    (citing
    Crawford v. Crawford, 633 A.2d 155,156 (Pa. Super. 1993)). Additionally,
    our scope of review is narrow.     Peck v. Peck, 
    707 A.2d 1163
    , 1163 (Pa.
    Super. 1998).
    The record reveals that the parties were married for 22 years prior to
    their separation in 2006. The following facts are not in dispute. Wife and
    her paramour, Winterbottom, have been in a romantic, monogamous sexual
    relationship since 2011. They have been friends since 2006. Winterbottom
    sleeps at Wife’s residence on average of two or three nights a week.             He
    visits Wife’s residence each morning, and they solve crossword puzzles
    together. When Wife is away, Winterbottom walks Wife’s dogs when he is
    available, takes out the trash, and kills weeds in her lawn.                   When
    Winterbottom does shopping for the household, Wife reimburses him the
    amount he spent.       They often go out and travel together.      Winterbottom
    keeps a toothbrush and deodorant at Wife’s house.
    The court determined that the facts in this case, although close, did
    not   establish   by   a   preponderance   of   the   evidence   that   Wife    and
    -3-
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    Winterbottom were cohabitating.      Significant to the court’s determination
    was the fact there was no indication that Wife and Winterbottom were
    sharing a household or that they were socially or financially interdependent.
    Cohabitation means more than two individuals seeing each other on an
    occasional basis and taking a week-long trip together, even if the individuals
    sporadically engage in sexual relations. Thomas v. Thomas, 
    483 A.2d 945
    (Pa. Super. 1984).   See also Miller v. Miller, 
    508 A.2d 550
    (Pa. Super.
    1986);   Lobaugh     v.   Lobaugh,   
    753 A.2d 834
      (Pa.   Super.   2000).
    Cohabitation is not evidenced simply by remaining at someone’s house
    overnight, nor it is evidenced by mere sexual liaisons; cohabitation requires
    some permanence of relationship coupled with more than occasional sexual
    activity. 
    Miller, 508 A.2d at 553-554
    .
    Cohabitation may be shown by evidence of financial, social, and sexual
    interdependence. 
    Lobaugh, supra
    . In Lobaugh, the court found that the
    couple was cohabitating despite wife’s protests that she was merely helping
    a male friend by providing housing during a crisis. The couple lived together
    for nine weeks.    They shared a bedroom during that period, and they
    regularly took meals together. In a 2-1 decision, a panel of this Court found
    that the factual circumstances were sufficient to prove cohabitation and
    wife’s resultant non-entitlement to continued alimony. The panel reiterated
    that cohabitation, for purposes of barring alimony, occurs when:
    two persons reside together in the manner of husband and
    wife, mutually assuming those rights and duties usually
    attendant upon the marriage relationship. Cohabitation
    -4-
    J-S51029-16
    may be shown by evidence of financial, social and sexual
    interdependence, by sharing of the same residence, and by
    other means. . . . An occasional sexual liaison, however,
    does not constitute cohabitation.
    
    Lobaugh, 753 A.2d at 836
    (quoting 
    Miller, 508 A.2d at 554
    ).1
    Here, husband must establish by a preponderance of the evidence not
    only that Wife and Winterbottom were residing together, but that they were
    living together “in the manner of husband and wife.” See 
    Miller, 508 A.2d at 554
    .
    Husband argues that the trial court’s determination that Wife was not
    cohabitating with Winterbottom was error.           Here, the court reasoned that
    there     was   no   cohabitation    because     Husband   failed   to   prove   by   a
    preponderance of the evidence that Wife and Winterbottom lived as husband
    and wife, or that they mutually assumed duties attendant to a marriage
    relationship.    We conclude the facts here lead to the conclusion that Wife
    and her paramour were not living “in the manner of husband and wife” and
    that they were not cohabitating for purposes of relieving husband of his
    alimony obligation.
    Here, it is apparent that Wife and Winterbottom shared a friendship
    and a sexual relationship. However, they maintained individual residences.
    ____________________________________________
    1
    The Lobaugh dissent opined that because the paramour did not share in
    the household expenses, but maintained a separate apartment and did not
    spend every night with wife, cohabitation had not been established. 
    Id. at 838-39.
    -5-
    J-S51029-16
    Further, there was no evidence that Wife and Winterbottom were financially
    or socially interdependent. 
    Miller, 508 A.2d at 554
    . There was no evidence
    of duties, obligations and rights that the two of them would have
    unavoidably shared if they were truly cohabitating. The couple did not share
    their incomes, expenses or other financial obligations. They maintained no
    joint accounts of any kind. Wife’s mortgage, which Winterbottom helped her
    refinance, was secured by Wife’s residence, and the evidence showed that
    Wife made timely payments on the note.
    Additionally, Wife’s and Winterbottom’s friends and acquaintances
    testified that they believed that the nature of their relationship was similar
    to that of girlfriend-boyfriend, and they testified that the couple held
    themselves out as such.          Winterbottom spends, on average, two nights a
    week at Wife’s residence. He does not receive mail at Wife’s residence, and
    neither keeps personal belongings at each other’s residences, expect for
    minor    personal    care    items,    such    as   deodorant   and   toothbrush   on
    Winterbottom’s part. We conclude, therefore, that the court did not err or
    abuse its discretion in ruling that Husband failed to prove cohabitation by a
    preponderance of the evidence. 
    Lobaugh, supra
    ; Miller, supra.2
    ____________________________________________
    2
    We note that the law prohibits an award of alimony where the petitioner,
    ”subsequent to the divorce pursuant to which alimony is being sought, has
    entered into cohabitation with a person of the opposite sex who is not a
    member of the family of the petitioner within the degrees of consanguinity.”
    See 23 Pa.C.S.A. § 3706. This statute is not applicable here, where alimony
    was not the result of a court-ordered award, but was based on a property
    (Footnote Continued Next Page)
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    Husband also alleged that the court erred in requiring the “passage of
    time” as a prerequisite to finding cohabitation, and he argues there is no
    precedent to support this.           Husband, however, misconstrues the court’s
    statement. Husband mistakenly assumes that the court required a specific
    time period in order to find cohabitation.          The court specifically stated
    otherwise in its opinion, that it required “something more than the passage
    of time.” Trial Court Opinion, 1/20/16, at 7.
    Husband also alleged that the trial court erred in requiring a couple to
    hold themselves out in the community as husband and wife to establish
    cohabitation. Once again, Husband misconstrues the court’s statement. The
    court specifically concluded that Husband “failed to proffer any evidence
    suggesting that [Wife] and Winterbottom live as husband and wife or hold
    themselves out as such or that anyone ever heard [Wife] or Winterbottom
    indicate that they were sharing household or were living together.”          See
    Order/Findings of Fact/Conclusions of Law, 9/9/15, at 13-14 (emphasis
    added). Contrary to Husband’s argument, the court did not require a
    showing that the couple held themselves out as husband and wife as a
    prerequisite to finding cohabitation.
    Order affirmed.
    _______________________
    (Footnote Continued)
    settlement agreement between the parties. See Woodings v. Woodings,
    
    601 A.2d 854
    (Pa. Super. 1992).
    -7-
    J-S51029-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/26/2016
    -8-
    

Document Info

Docket Number: 3080 EDA 2015

Filed Date: 7/26/2016

Precedential Status: Precedential

Modified Date: 4/17/2021