WFLT 1420 AM, SATURDAY 9:00 AM BANKERT ON FAMILY LAW CALL IN PROGRAM 239-5733

Issues: Divorce; Motion to terminate spousal support;

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GOOD MORNING FLINT!
BY Terry Bankert 3/22/08
http://attorneybankert.com/
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Full article at http://goodmorningflint.blogspot.com/
SUMMARY ON Flint Talk http://flinttalk.com/viewtopic.php?p=26379#26379
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The following is a recent Court of Appeals case that I will present on WFLT 1420 A.M. radio Flint MI Saturday 3/22/08 9:00 am until 9:30 am. It is a call in program. Questions will be fielded by calling 810-239-5733
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In the case we will talk about today the issues are.


WHAT IS COHABITATION
Whether the trial court properly interpreted the term "cohabitation" as used in the judgment of divorce; Beason v. Beason; Birthelmer v. Birthelmer (Unpub. Ohio App.);

Whether the defendant-wife and her boyfriend were cohabiting; In re BZ; Attorney fees and costs under MCR 3.206(C); Gates v. Gates; Maldonado v. Ford Motor Co.; Reed v. Reed;

Whether the trial court properly relied on the "American rule" in denying defendant's request for attorney fees; Haliw v. City of Sterling Heights

THE CASE REVIEWED
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
WILLIAM JEFFREY SMITH,
Plaintiff-Appellant/Cross-Appellee,
FOR PUBLICATION
March 18, 2008
9:05 a.m.
v No. 273547
Kent Circuit Court
BETTY LEE SMITH, a/k/a BETTY LEE
JENKINS,
LC No. 98-004557-DM
Defendant-Appellee/Cross-
Appellant.
Before: Bandstra, P.J., and Meter and Beckering JJ.
BECKERING, J.
Court: Michigan Court of Appeals (Published)
Case Name: Smith v. Smith
e-Journal Number: 38794
Judge(s): Beckering, Bandstra, and Meter

MULTI FACTOR TEST

The court held the trial court properly employed a multiple-factor test in determining whether the defendant-wife and her boyfriend were cohabitating and properly denied the plaintiff-husband's motion to terminate spousal support, finding defendant and her boyfriend were not cohabitating.

17 YEAR MARRAIGE

The parties were divorced following a 17-year marriage during which they had 5 children.

$3,500 PER MONTH IN SPOUSAL SUPPORT

The judgment of divorce required plaintiff to pay defendant $3,500 per month in spousal support, but provided his obligation to pay spousal support would terminate "upon such time as the Defendant cohabitates with a non-related male."

COHABITATE AND YOU GET NO SUPPORT.

Cohabitation requires more than briefly living together or regularly engaging in sexual activity. Whether cohabitation exists is a factual determination based on the totality of the circumstances. No one factor defining a couple's relationship is dispositive on the question of cohabitation.

LONG-DISTANCE RELATIONSHIP

Defendant's relationship with her boyfriend was more accurately characterized as a committed, long-distance relationship, involving regular overnights together, than as two people "living together . . . as partners in life," or "dwelling together . . . in the manner of husband and wife."

THE BOYFRIEND HAD HISOWN HOME

The boyfriend maintains a separate residence in Georgia, does not keep personal items at defendant's house, does not regularly receive mail there, the couple does not share personal property, they do not hold themselves out as living together, and they are not financially interdependent. Affirmed.
—

PROCEDURE

Plaintiff appeals by leave granted the trial court 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.
=
DIVORCED 1999 AFTER 17 YEARS

The parties were divorced in June of 1999, following a seventeen-year marriage during
which they had five children. The judgment of divorce required plaintiff to pay defendant
$3,500 per 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."

SHES LIVING WITH A GUY I WANT SUPPORT STOPPED...NOW!

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 THINK THE COURT MESSED UP

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 NW2d 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 NW2d 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 NW2d 889 (1994).1

THE JUDGEMENT DID NOT SAY WHAT COHABITATION MENT

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 case law 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 NW2d 216 (1997), rev’d on other grounds 460 Mich 348 (1999) (where no Michigan
cases are directly on point regarding the meaning of a phrase, it is appropriate to turn to
dictionary definitions and case law from other jurisdictions).

THE DICTIONARY SAID

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 (3rd 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),

1 Defendant argues that the term "cohabitation" should be construed against plaintiff, as the
drafter of the judgment of divorce. Our Supreme Court has held, however, that the rule of contra proferentem, i.e., that ambiguities are to be construed against the drafter of the contract, should
only be applied if all conventional means of contract interpretation, including the consideration
of relevant extrinsic evidence, have left the finder of fact unable to determine what the parties
intended their contract to mean. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 470-471, 474; 663 NW2d 447 (2003). Because the trial court relied on conventional rules of contract
interpretation, construing the term "cohabitation" against plaintiff as the drafter of the judgment was unnecessary.

2 In Passwaters v Passwaters, unpublished opinion per curiam of the Court of Appeals, issued
September 3, 1999 (Docket Nos. 204310, 204311), slip op p 6, this Court found no error in the
trial court’s interpretation of the term "cohabitation" in the parties’ judgment of divorce. The
divorce judgment in that case specifically adopted the definition of "cohabitation" in Black’s
Law Dictionary (5th ed). Id., slip op p 5.

WHY DO WE HAVE SPOUSAL SUPPORT

The trial court explained that the purpose of spousal
support was to allow a spouse in need of support to continue to receive support after a divorce,
and that, if the recipient spouse cohabited with another person, such as her mother, the payor’s
responsibility to pay spousal support would not be abrogated. Id., slip op p 6.

COHABITATION MORE THAN LIVING TOGETHER?

That is, "merely
sharing a home and expenses with another person without romantic involvement does not
mandate termination of spousal support." Id. On appeal, this Court found that the trial court’s
reasoning was supported by the dictionary definition of cohabitation, which likens cohabitation
to a marriage relationship. Id.

This Court also pointed out that the term "cohabitation" as used
in Ianitelli v Ianitelli, 199 Mich App 641, 644-645; 502 NW2d 691 (1993), and Petish v Petish,
144 Mich App 319, 321; 375 NW2d 432 (1985), involved situations where the recipient former
spouse admitted to living with another person in an apparently romantic manner. Passwaters,
supra, slip op p 6. as affirmed and applied in Dickerson v Dickerson, 87 Ohio App 3d 848; 623 NE2d 237 (1993) and Moell v Moell, 98 Ohio App 3d 748; 649 NE2d 880 (1994).

THREE ELEMENTS OF COHABITATION

In Birthelmer, supra, the Ohio Court of Appeals set out three elements distinguishing genuine cohabitation relationships from those which 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-today
expenses (e.g., groceries) are the principal relevant considerations.

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.

OTHER FACTORS IN DETERMINING COHABITATION

In addition to the three elements set out in Birthelmer, supra, 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 765, § 2 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 NJ Super 53, 60-61; 818 A2d 340
(2002); Sanders v Burgard, 715 So 2d 808, 811 (Ala Civ App, 1998); Baker v Baker, 1997 ND
135; 566 NW2d 806, 811-812 (1997); Moell, supra at 752-753; In re Marriage of Herrin, 262 Ill
App 3d 573, 577; 634 NE2d 1168 (1994); McCarty v McCarty, 29 Pa D & C3d 687, 692 (1984);
Quisenberry v Quisenberry, 449 A2d 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 factfinder
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. 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 NW2d 505 (2004).

TOTALITY OF THE EVIDENCE

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 for a period of time 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 time 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 business.
When his schedule allows, Walsh stays at defendant’s house in Grand Rapids, Michigan,
where he sleeps in the same bedroom as defendant. Whenever possible, defendant and Walsh
exercise together, share meals, spend vacations and holidays together, and spend time with each other’s children. April Piper, defendant’s housemate in 2004 and 2005, testified that she saw
Walsh’s vehicle parked at defendant’s house overnight between two and four times per week.
Piper was uncertain, however, whether Walsh actually spent the night on all of those occasions,
as she acknowledged there were times when Walsh simply left his vehicle at the house while
away on business travel.

Walsh testified that he does not keep any personal belongings at defendant’s house,
toiletries or otherwise, and that while he brings clothing to defendant’s house, he does not leave
it there and takes it back to his own house for cleaning. He does not receive any mail at
defendant’s home, with the exception of his judgment of divorce and subpoena for this case.
Defendant’s friends testified that they were aware of defendant’s relationship with Walsh, but
that they saw no evidence indicating that Walsh lived with defendant. Walsh estimated that he
spent 30 to 35 nights with defendant in both 2004 and 2005, including vacations. Walsh also
stayed with defendant at her house for four nights in January of 2006, and for a long weekend in March of 2006.

Walsh asked defendant to move to Georgia to live with him on various occasions dating
back to 2004, and asked her to marry him on four or five occasions. However, defendant told
Walsh that she did not want to marry or live together with anyone until her spousal support
ENDS when her youngest child turns eighteen years of age. Defendant and Walsh both testified that
they have a committed, monogamous relationship and love each other. The couple does plan to
marry in the future.

Defendant and Walsh do not share bank accounts, credit cards, or a cellular telephone
plan. They do not contribute to each other’s bills, including daily living expenses or mortgage
payments. When the couple travels together, they share the expenses. Walsh has offered advice
to defendant regarding her rental properties and has assisted her with household projects related
to her own home and the rental properties.

Considering the totality of the circumstances, defendant’s relationship with Walsh is
more accurately characterized as a committed, long-distance dating relationship, involving
regular overnights together, than as two people "living together . . . as partners in life," or
"dwelling together . . . in the manner of husband and wife." Walsh maintains a separate
residence in Georgia, he does not keep personal items at defendant’s house, he does not regularly
receive mail there, the couple does not share personal property, they do not hold themselves out
as living together, and they are not financially interdependent. Accordingly, the trial court did
not clearly err in finding that defendant and Walsh were not cohabitating, and it properly denied
plaintiff’s request to terminate spousal support on that basis.

III


Finally, defendant cross-appeals the trial court’s denial of her request for attorney fees
and costs under MCR 3.206(C).3 We review a trial court’s ruling on a request for attorney fees
for an abuse of discretion. Gates v Gates, 256 Mich App 420, 437-438; 664 NW2d 231 (2003).
An abuse of discretion occurs when the trial court’s decision falls outside of the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).


"In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13,
and court rule, MCR 3.206(C)." Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005).
Attorney fees in a divorce action may be awarded "when a party needs financial assistance to
prosecute or defend the suit." Id. That is, "a party should not be required to invade assets to
3 Defendant requested attorney fees and costs in her written closing argument following the
evidentiary hearing. Plaintiff’s argument on appeal that the request was untimely and improperly made is without merit.

MCR 3.206(C) does not require that a request for attorney fees be made
in a separate motion, and provides that a party may request attorney fees "at any time." MCR
3.206(C)(1).

satisfy attorney fees when the party is relying on the same assets for support." Gates, supra at
438. Pursuant to MCR 3.206(C)(2)(a), the party requesting the fees must allege facts sufficient
to show that she is "unable to bear the expense of the action, and that the other party is able to
pay."

We agree with the trial court that defendant did not demonstrate that she was unable to
bear the expense of the action, and that plaintiff was able to pay, in accordance with MCR
3.206(C)(2)(a). Defendant’s request for attorney fees and supporting affidavit were solely
comprised of unsubstantiated assertions that, aside from spousal support used for living
expenses, her income is "minimal," and that she would be unable to defend the action unless the
trial court awarded her attorney fees. The trial court properly concluded that, in light of
defendant’s recent purchase of three income-producing rental properties, she had not
demonstrated a need for financial assistance in defending the action. Defendant also asserted
that there was a wide disparity in the incomes of the parties, but the record does not support this
assertion. While defendant’s affidavit listed plaintiff’s alleged income from 1999-2003,
defendant did not supply income tax returns supporting those figures or any evidence regarding
plaintiff’s income in 2004 and 2005. Nor did defendant supply her own income tax returns to
substantiate the alleged disparity between the parties’ incomes.

Additionally, defendant argues that the trial court improperly relied on the "American
rule" in denying her request for attorney fees. We disagree. "Michigan follows the ‘American
rule’ with respect to the payment of attorney fees and costs.

Under the American rule, attorney

fees generally are not recoverable from the losing party as costs in the absence of an exception
set forth in a statute or court rule expressly authorizing such an award." Haliw v City of Sterling
Hts, 471 Mich 700, 706-707; 691 NW2d 753 (2005). The American rule is codified at MCL
600.2405(6), which provides that "[a]ny attorney fees authorized by statute or by court rule" may
be awarded as costs. See Id. at 707. Here, while the trial court stated that it was "a very big
supporter of the American rule, . . . that everybody has to carry the burden" of litigation, the
court acknowledged that attorney fees are authorized by MCR 3.206(C). The court found that
defendant failed to demonstrate her need for financial assistance in defending the action, as
required by MCR 3.206(C)(2)(a), and denied defendant’s request for attorney fees on that basis.
Affirmed.
/s/ Jane M. Beckering
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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