On March 18, 2008, In Smith v Smith, decided (For Publication), the Michigan court of appeals adopted the test from an Ohio decision to determine what constitutes “cohabitation.” In Smith, the parties' consent judgment of divorce mandated termination of spousal support upon “cohabitation.” Mr. Smith filed a motion to terminate alimony, claiming that his ex-wife was cohabiting with another man. The trial court denied his motion, after carefully analyzing whether the ex-wife's conduct as described constituted "cohabitation." Mr. Smith appealed.
The court rejected ex-H’s request to construe the judgment against ex-W, the drafter, saying that this rule of law 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.
The Smith panel said that it was entirely appropriate for the trial court to look at dictionary definitions for an interpretation, at how unpublished cases in Michigan have dealt with the issue, and also at how courts in other jurisdictions have resolved this issue.
The court of appeals approved the trial court’s adoption of the definition for the term “cohabitation” that was articulated in Berthelmer v Berthelmer, an unpublished opinion of the Court of Appeals of Ohio for the Sixth District, issued July 15, 1983. This unpublished decision was later adopted and applied in in Dickerson v Dickerson, 87 Ohio App 3d 848; 623 NE2d 237 (1993) and Moell v Moell, 98 Ohio App 3d 748; 649 NE2d 880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).
In Berthelmer, 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 court of appeals approved the trial court’s rationale for adopting Berthelmer:
- Ohio is geographically proximate to Michigan
- The Berthelmer case provided a well-reasoned decision for selecting the three factors
- The Berthelmer rationale has since been followed by other Ohio Court of Appeals decisions that have adopted the three factors and added to them.
The trial court in Smith v Smith considered the following additional factors in reaching its decision:
- Whether defendant and her male friend 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.
In short, the court of appeals held that the trial court properly employed this multiple-factor test in determining whether defendant and Walsh were cohabiting, and concluded that “cohabitation,” to permit termination of a spousal support award, 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.”
The Smith case provides a clear roadmap for those seeking to terminate spousal support where a judgment of divorce provides for termination based upon “cohabitation.” It also provides a helpful guide to those wanting to keep their spousal support payments coming while having a relationship with another person.
You can read Smith v Smith here.