Charles Larry Honeycutt v. Ann Marie Migliaccio

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 16, 2003 Session

CHARLES LARRY HONEYCUTT v. ANN MARIE MIGLIACCIO
HONEYCUTT

A Direct Appeal from the Chancery Court for Shelby County
No. D-26994-2 The Honorable Arnold Goldin, Chancellor

No. W2003-00233-COA-R3-CV - Filed December 12, 2003

This appeal involves the interpretation of an MDA incorporated into a Final Decree of
Divorce concerning a provision for termination of alimony upon wife’s cohabitation with an
unrelated male. The trial court denied Husband’s petition for termination and Husband appeals. We
reverse and remand.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Jerry A. Schatz, Memphis, For Appellant, Charles Larry Honeycutt

Stevan L. Black and Vickie Hardy Jones, Memphis, For Ann Marie Migliaccio Honeycutt

OPINION

Plaintiff, Charles Larry Honeycutt (“Husband” or “Plaintiff”), and defendant, Ann Marie
Migliaccio Honeycutt (“Wife” or “Defendant”), were divorced on February 9, 1998 after nearly 32
years of marriage. Husband filed a Complaint for Absolute Divorce on March 18, 1996, on the
grounds of irreconcilable differences. Husband’s complaint requested the court to dissolve the
parties’ marriage and “approve the Marital Dissolution Agreement which Plaintiff anticipates the
parties will enter into.” Wife filed an Answer and Counter-Complaint for an Absolute Divorce on
April 25, 1996, admitting the existence of irreconcilable differences and alleging, as further grounds
for divorce, Husband’s inappropriate marital conduct. Wife’s Counter-Complaint sought, in part,
an equitable division of the marital assets, alimony pendente lite and permanent alimony, and
reasonable attorney’s fees.
 By Order entered January 2, 1997, the trial court directed Husband to pay Wife “$1,000.00
per week as alimony pendente lite, beginning June 1, 1996, until further Court Order.” The court
additionally ordered Husband to pay Wife $1,200.00 for attorney’s fees incurred during the hearing
on her motion for alimony pendente lite.

A Marital Dissolution Agreement (“MDA”) was filed on January 9, 1999. The parties’
agreement specified, inter alia, that Husband would pay to Wife $1,000.00 per week in alimony in
futuro, “until such time as Wife dies, remarries, cohabitates with a man not related to her, reaches
the age of 65, or becomes qualified to receive Social Security benefits, whichever occurs first.” The
parties further clarified that “Husband’s obligation to pay alimony shall cease upon the occurrence
of any of those events.”

The MDA provided that Husband would pay, as additional alimony in futuro, “the premium
on Wife’s major medical health insurance until such time as Wife remarries, cohabitates with a man
not related to her, reaches the age of 65, becomes eligible for Medicare benefits, or until either party
dies, whichever occurs first.” With regard to attorney’s fees incurred, the agreement specified that
“Husband shall pay, as alimony, directly to Wife’s attorney, Barbara McCullough, $2,500.00 for the
purposes of defraying Wife’s attorney fees.”

The Court entered a Final Decree of Absolute Divorce on February 9, 1998, terminating the
parties’ union on the grounds of irreconcilable differences and, incorporating by reference, the MDA.
On May 23, 2001, Husband filed a Motion to Divorce Referee for termination of his alimony
obligations. This same day, Husband filed a “Petition to Modify Final Decree of Divorce To
Terminate Alimony.” As grounds for his petition, Husband alleged that Wife was cohabitating with
an unrelated male, “with whom she is romantically involved,” both at his residence in Tampa,
Florida, and her Cordova, Tennessee home. Wife filed an Answer to Husband’s petition on January
24, 2002, addressing Husband’s allegation of cohabitation:

Denied. Respondent has been involved in a dating relationship
with a male person who resides in Tampa, Florida. She has spent the
night at his home in Tampa, Florida on a number of occasions.
Likewise, on a few occasions this male person has spent the night at
her home in Cordova, Tennessee located at 8686 Cedar Farms. At all
times Respondent has maintained a separate residence and is not
receiving support from this male person nor is she providing any
support to this male person. Each of the parties is self-supporting.

On August 14, 2002, Wife filed a “Petition for Scire Facias and Citation for Civil and
Criminal Contempt, to Reduce Arrearage to Judgment, and for Attorneys’ Fees.” Wife’s petition
alleged that Husband regularly failed to pay alimony as required by the parties’ MDA since entry of
the Final Decree of Divorce and, specifically, had failed to pay alimony and Wife’s health insurance
premium since July 12, 2002.

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 In response to a motion filed by Wife requesting a continuance of the hearing scheduled for
Husband’s petition, a special chancellor entered an Order on August 28, 2002 resetting the hearing
and further directing:

It further appearing to the Court that the alimony payments of
$1,000.00 per week that Petitioner was previously ordered to pay
pursuant to the terms of the Marital Dissolution Agreement entered
in this cause shall be suspended as of August 14, 2002 until the
hearing herein. Such suspended payments will be due and payable to
Defendant in the event that alimony previously awarded to her is not
terminated at the hearing.

Wife next filed a “Motion to Reinstate Alimony Payments Pending Hearing on Mr.
Honeycutt’s “Petition to Modify Final Decree of Divorce to Terminate Alimony”” on October 4,
2002, asserting that the protracted litigation was causing her to deplete her already limited financial
assets. The trial court granted Wife’s motion for reinstatement of alimony by Order entered October
18, 2002, concluding that the alimony payments required of Husband pursuant to the parties’ MDA
should be reinstated, and further directing Husband to “pay to Ms. Honeycutt promptly all payments
which have accrued since the date of the suspension of Mr. Honeycutt’s obligation.”

On November 1, 2002, Wife filed a second “Petition for Scire Facias and Citation for Civil
and Criminal Contempt, to Reduce Arrearage to Judgment, and for Attorneys’ Fees,” citing
Husband’s continued and repeated failure to comply with the alimony requirements set forth in the
MDA. Shortly thereafter, Husband filed a Motion to Dismiss Wife’s petition of August 14, 2002.
As grounds for his motion, Husband stated:

Respondent states and alleges that no alimony payments have
been due to Petitioner under the terms of the Marital Dissolution
Agreement since at least October, 1999, as Petitioner has been
cohabitating with a man not related to her since October, 1999, or
before. Likewise, Respondent has not been obligated to pay the
premium on Petitioner’s health insurance since at least October 1999,
for the same reason.

Respondent further states and alleges that at the time the
Petition for Scire Facias was filed, August 14, 2002, Respondent was
current on all alimony payments he would have been obligated to
make had his obligation not already ceased as a result of Petitioner’s
cohabitation with an unrelated male.

Husband’s Motion to Dismiss Wife’s November 1, 2002 petition, cited identical grounds in support.

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 A non-jury trial in this case was held on November 13 and 14, 2002. During her testimony
at trial, Wife admitted to beginning a long-distance romantic relationship with Mr. Vern Barclay
(“Barclay”) in August 1999. At the time, Wife lived in Cordova, Tennessee, and Barclay resided
in Tampa, Florida. The parties entered a stipulated calender as collective exhibits 1, 2, and 3 at trial,
the calendars indicating that Wife spent approximately 266 days, from October 1999 through
September 2000, at Barclay’s residence in Tampa. Wife testified that she stayed at Barclay’s home
while in Tampa, and admitted that she engaged in sexual relations with Barclay and slept in his bed.
Wife further acknowledged that when she was in Tampa, she always stayed at Barclay’s home.

Throughout her testimony, Wife characterized her trips and extended stays in Tampa as
“visits,” and repeatedly denied cohabitating with Barclay.1 The evidence is undisputed, however,
that Wife had a key to Barclay’s home, was free to stay there even when Barclay was not around, and
kept several articles of clothing at the Tampa residence. Wife testified that she never paid any
monies to Barclay for rent or utilities with regard to his Tampa home. The evidence is further
undisputed that all of Wife and Barclay’s Florida friends knew that the two were a couple.

Despite her frequent and prolonged “visits” to Florida, Wife testified that she maintained a
home in Cordova, Tennessee.2 Wife testified that she continues to pay taxes, insurance, and
maintenance expenses on her Cordova home. Wife additionally noted that she has maintained utility
service in her home, including telephone and internet service. Wife’s income tax returns for the years
1999, 2000, and 2001 list her address as Cordova, Tennessee.

Wife also testified that she maintains her primary personal checking account with Union
Planters Bank in Memphis, Tennessee. In further regard to her financial interests and assets, Wife
testified that she opened a Morgan Stanley account in Florida, transferred a Payne-Webber security
account from Memphis to Florida, and opened a personal account with Nations Bank in Florida. All
of these accounts listed Wife’s address as Barclay’s Tampa residence.

1
Wife further explained her frequent and extended visits to Florida were necessitated b y her invo lveme nt in
a placeme nt service business that she ow ned with B arclay. W ife testified that she was the D irecto r of a corporation
known as Legal Staff & M ore, and noted that she made her initial investment into this corporation in July 1999. T he
corporation, which began in Clearwater, Florida, was run out of Barclay’s home in Tampa. Legal Staff & More ceased
operation in October or November 2001, and Wife and Barclay closed the books on this business in January 2002.

2
W ife testified that she put her Cordova ho me up for sale in February 2000, for a perio d of six m onths. W ife
explained the reason for putting her home up for sale as she had plans to build a home in Tampa.

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 In an Order entered November 22, 2002, the court denied Husband’s “Petition to Modify
Final Decree of Divorce to Terminate Alimony.” The court’s order further denied the parties’
individual requests for attorney’s fees. Husband filed a Notice of Appeal on December 3, 2002.3

Husband presents as his sole issue for review the question of whether the trial court erred in
denying his “Petition to Modify Final Decree of Divorce to Terminate Alimony,” where Wife has
continued to cohabitate with an unrelated male, thereby triggering the alimony termination
conditions set forth in the parties’ MDA. Wife presents for review the following additional issues,
as stated in her brief:

Whether the trial court erred in denying [Wife’s] request for attorney
fees incurred in defending her right to receive alimony from
[Husband].

Whether [Wife] should be awarded her attorney fees incurred in
defending this appeal.

Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).

I.

Husband’s sole issue for review asks this Court to consider whether the trial court erred in
denying his “Petition to Modify Final Decree of Divorce to Terminate Alimony,” in light of Wife’s
cohabitation with Barclay.

The parties’ MDA states, in pertinent part:

7. Alimony. As support and maintenance, Husband agrees to
pay alimony in futuro to Wife in the amount of $1,000.00 per week
until such time as Wife dies, remarries, cohabitates with a man not
related to her, reaches the age of 65, or becomes qualified to receive
Social Security benefits, whichever occurs first. The parties agree
that under no circumstances shall Wife seek alimony in excess of that
provided for in this Agreement, either in amount or duration.
Husband’s obligation to pay alimony shall cease upon the occurrence

3
This Court denied a motion of Husband to expedite the decision in the present matter by Order entered June
5, 2003.

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 of any of those events. The parties acknowledge that this alimony is
taxable to Wife and deductible by Husband.

******************************************************

9. As further alimony in futuro, Husband agrees to pay the
premium on Wife’s major medical health insurance until such time
as Wife remarries, cohabitates with a man not related to her,
reaches the age of 65, becomes eligible for Medicare benefits, or
until either party dies, whichever occurs first.

(emphasis added).

“An MDA is a contract and as such generally is subject to the rules governing construction of
contracts.” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001) (citations omitted). “Since the
interpretation of a contract is a matter of law, our review is de novo on the record with no
presumption of correctness in the trial court’s conclusions of law.” Witham v. Witham, No. W2000-
00732-COA-R3-CV, 2001 WL 846067, at * 3 (Tenn. Ct. App. July 24, 2001) (citing Union Planters
Nat’l Bank v. American Home Assurance Co., 865 S.W.2d 907, 912 (Tenn. Ct. App. 1993)).

In Pitt v. Tyree Organization Ltd., 90 S.W.3d 244 (Tenn. Ct. App. 2002), we discuss the
rules concerning construction of a contract:

The cardinal rule in the construction of contracts is to
ascertain the intent of the parties. Bradson Mercantile, Inc. v.
Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999)(citing West v.
Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. Ct. App. 1984)).
If the contract is plain and unambiguous, the meaning thereof is a
question of law, and it is the Court's function to interpret the contract
as written according to its plain terms. Id. (citing Petty v. Sloan, 277
S.W.2d 355 (Tenn. 1955)). The language used in a contract must be
taken and understood in its plain, ordinary, and popular sense. Id.
(citing Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc.,
521 S.W.2d 578 (Tenn. 1975)). In construing contracts, the words
expressing the parties' intentions should be given the usual, natural,
and ordinary meaning. Id. (citing Ballard v. North American Life &
Cas. Co., 667 S.W.2d 79 (Tenn. Ct. App. 1983)). If the language of
a written instrument is unambiguous, the Court must interpret it as
written rather than according to the unexpressed intention of one of
the parties. Id. (citing Sutton v. First Nat. Bank of Crossville, 620
S.W.2d 526 (Tenn. Ct. App. 1981)). Courts cannot make contracts
for parties but can only enforce the contract which the parties

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 themselves have made. Id. (citing McKee v. Continental Ins. Co.,
234 S.W.2d 830 (Tenn. 1951)).

Id. at 252.

In Heyer-Jordan & Associates v. Jordan, 801 S.W.2d 814, 821 (Tenn. Ct. App. 1990), this
Court stated that “in the absence of fraud or mistake, a contract must be interpreted and enforced as
written, even though it contains terms which may be thought harsh and unjust.” See Petty v. Sloan,
277 S.W.2d 355, 359 (Tenn. 1955).

In interpreting the parties’ MDA, the trial court found the term “cohabitates with a man not
related to her,” ambiguous, and further determined that, in light of the language utilized in MDA
paragraph 7 regarding alimony, this term should be read in conjunction with the other conditions
listed for termination of alimony in futuro. Moreover, the trial court interpreted the parties’ intent
with regard to the alimony in futuro paragraph as requiring proof of support from a third party
before termination of Husband’s alimony obligations was triggered or permitted. We quote at length
from the court’s ruling from the bench on November 14, 2002:

I think in looking at it, I have to make a determination in light
of what the purpose of the agreement was, not just the agreement
itself, because I think the language does have an ambiguity to it.
There is certainly no definition for what this means.

I think that one side may have one opinion about what the
term “cohabitate” means, and the other side might have a different
opinion. We could probably spend the rest of the day here arguing
what it is.

******************************************************

I don’t think we can just pull that one section out of there
which says, “... cohabitates with a man not related to her...” and not
look at what these other statements say to determine what that term,
“... cohabitates with a man not related to her...” means.

I think when we look at these other statements, my
interpretation of that is, and the purpose for which this alimony
paragraph was put into the agreement was as support and
maintenance until such time as an event occurs for which she would
no longer require support and maintenance.

In this case, those events would be: When the wife dies she
would no longer require support and maintenance.

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 When she remarries she would no longer require support and
maintenance.

When she reaches the age of 65 or becomes qualified to
receive Social Security benefits she would no longer require support
and maintenance, or when she becomes qualified to receive Social
Security benefits, whichever occurs first.

Now, what does the term, “cohabitates with a man not related
to her...” mean in the context of those events?

******************************************************

I think in light of what the purpose of Paragraph 7 of the
agreement was, which was as support and maintenance for the lady.
And in seeing her tax returns, that is essentially her whole support
and income, which I think was the intention of the parties when this
agreement was entered into.

I just don’t think that I can pull out this part of the agreement
that says, “... cohabitates with a man not related to her...” simply
because she is having a relationship with someone – be it a sexual
relationship or otherwise – unless I have proof that that person is
providing her support.

******************************************************

I think in the context of these statements within Paragraph 7,
that was the intent of this paragraph. The intent of this paragraph was
for an event to occur that would no longer require Mrs. Honeycutt to
require the alimony as support and maintenance that was agreed to in
this agreement. That is the way I interpret, “... cohabitates with a man
not related to her...”

I interpret that to mean not merely that she is visiting a man,
staying with a man who she is having a sexual relationship with, but
it has to go beyond that. It has to be that this person, in fact, is
providing her support so that this alimony that she is provided under
this agreement is no longer necessary.

So based on my interpretation of the agreement to mean that,
and based on the fact that I have not heard any facts to support that

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 Mrs. Honeycutt is, in fact, receiving financial assistance from Mr.
Barclay, I deny the petition.

“Cohabit” is defined as:

1: to live together as or as if as husband and wife (~ ed without
formal marriage[;] 2a: to live together or in company[;] b: to be
intimately together or in company[.]

Webster’s Third New International Dictionary 440 (1993). Another definition for “cohabitation”
reads:

To live together as husband and wife. The mutual assumption of
those marital rights, duties and obligations which are usually
manifested by married people, including but not necessarily
dependent on sexual relations.4

Black’s Law Dictionary 236 (5th ed. 1979).

On the basis of the above-cited definitions for “cohabit” and “cohabitation,” we conclude that these
terms, as applied and utilized in common usage, do not require or necessarily include the receipt of
financial assistance from or by a cohabitor. Moreover, from our reading of the plain language of the
MDA, paragraph 7, we find no suggestion or requirement that Wife must receive financial assistance
or support from an “unrelated male” with whom she is cohabitating, to allow for or trigger
termination of Husband’s alimony obligations.5 We respectfully disagree with the trial court that
the purpose of the cohabitation language is for Wife’s support. To the contrary, Husband explicitly
provided for termination of his support in the event of alternative areas of support. However,
Husband did not attach “support” as a condition of cohabitating without benefit of marriage. It

4
“Cohabitation” is m ore succinctly defined in the po cket ed ition of Black’s Law Dictionary as, “[t]he fact or
state of living together, [especially] as partners in life, [usually] with the suggestion of sexual relations.” Black’s Law
Dictionary 107 (pocket ed . 199 6).

5
W ife asserts that T.C.A. § 36-5-101(a)(3)(A) and (B) (Supp. 2003) are applicable in this matter, as it involves
a forme r spouse rec eiving alimony in futuro. Acco rdingly, Wife contends that the rebuttab le presump tions listed in
subsections (3)(A) and (3)(B) regarding the contribution of financial support to, or receipt of said sup port from, a third
person with whom the alimony recipient is living, must be considered. As such, Wife asserts that there is no evidence
in the record to indicate that Wife is contributing support to, or receiving support from, Barclay. Further, Wife maintains
that the mo ney that she rece ives from Husband in the fo rm of alimony in futuro is her primary means of financial
supp ort, and that she still has a need for such supp ort.

In this particular case, we find T.C .A. § 3 6-5-1 01(a)(3)(A) and (B ) inapp licable. This is a case of contract
interpretation. Our review is governed by the plain language of the parties’ MDA. The M DA does not reference, cite,
or incorporate this statute with regard to suspension or termination of Husband’s alimony obligations. Rather, the MDA
explicitly provides for the termination of these obligations upo n W ife’s death, remarriage, cohabitation with an unrelated
male, her be com ing qualified for receip t of Social Security benefits, or he r reaching age 65, “whiche ver occurs first.”

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appears to the Court that Husband was not adverse to providing support for Wife, except when the
enjoyment of the use of his money is shared with a paramour.

We further note that the parties freely chose to include in the MDA, as a condition for
termination of alimony in futuro, Wife’s “cohabit[ation] with a man not related to her.” (emphasis
added). If it was truly the intention of the parties to premise termination of Husband’s alimony
payments upon Wife’s receipt of financial assistance from a cohabitor, we find no reason for the
parties’ to elect to explicitly terminate alimony upon cohabitation with an unrelated male, and not
upon cohabitation with any third party, such as family members or girlfriends. That said, we find
that the parties explicitly contracted for the termination of Husband’s alimony obligations in the
event Wife cohabits with an unrelated male, regardless of whether said male was providing Wife
with financial assistance or support. We therefore find that the trial court erred in denying
Husband’s petition on the basis that he failed to introduce proof that Wife was receiving financial
assistance from Barclay.

Having concluded that the language of the MDA requires or allows for termination of
Husband’s alimony obligations upon Wife’s cohabitation with an unrelated male, we must now
determine whether Wife in fact cohabited with Barclay as said term is defined in common, plain
language. The evidence in this case is undisputed that Wife began an exclusive romantic
relationship with Barclay in August 1999. The parties entered, as a collective exhibit, calendars for
the years 1999, 2000, and 2001, to which Wife stipulated. According to the 1999 calender, Wife
spent 41 consecutive days in Barclay’s home from October 3, 1999 through November 13, 1999.
The 2000 calender reveals that Wife stayed with Barclay in his Tampa home for 206 days during a
period spanning January 2000 through September 2000. Collective Exhibit 3, the 2001 calender,
indicates that Wife stayed in Barclay’s Tampa home for 175 days from January 1, 2001 through
September 8, 2001.6 Additionally, Wife acknowledged that she and Barclay took several trips
together, including vacations to New England, Europe, Disney World, Atlanta, Lake Tahoe, and

6
Wife contends that her freque nt and extend ed visitations in T amp a were prima rily a result of her interest and
involvement in Legal Staff & Mo re. Wife further suggests that her visits to Florida became less frequent after the
business closed in late 2001, early 2002. We note that neither of the parties entered a calender for the months of October
through December 2001, or for the year 2002.

Despite Wife’s assertion, we find no evidence in the record to indicate that W ife’s visits to Florida became more
or less frequent after the closing of the aforementioned corporation. Point of fact, W ife testified that she continues to
visit and stay with Barclay at his new Florida home “on a regular basis,” stating:

Q. (BY MR. SCH ATZ) Yo u would agree, based on that information, that
you are still continuing to stay in his resid ence, in his bedroom, sleeping with him,
for long periods o f time. W ould that be a correct statement?

A. Yes.

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North Carolina. Wife testified that she and Barclay took these trips as a couple, sharing hotel rooms
or bedrooms.

Wife admits to engaging in sexual relations with Barclay during her “visits” to Tampa, and
further acknowledges that while in Tampa, she always stayed with Barclay, and shared his bed. Wife
testified that she kept clothing in the closets at Barclay’s Tampa home, stating:

Q. Okay. And now, again so we can be crystal clear on this,
you kept clothing down at 4309[, Barclay’s Tampa residence,] that
just stayed there; am I correct?

A. It depended on if I needed it in Memphis. I’m sure I left
clothing behind, in all honesty.

******************************************************

Q. (BY MR. SCHATZ) Is it in fact true that you kept a large
amount of clothes, including underwear, down at [Barclay’s Tampa
home]?

A. I have clothes and underwear. I have clothes in Tampa.

Q. In fact, isn’t it so many that you have at least a large part
of the closet in the bedroom that you share with Mr. Barclay?

A. A large part of it?

Q. Yes, of the closet.

A. No.

Q. Okay. And is it true that you also have clothes on a
hanging rack or have had clothes on a hanging rack because it [sic]
wasn’t room in the bedroom for all of your clothes? Isn’t that true?

A. I had a rack, yes.

Q. That was in addition to the clothes that you kept in the
bedroom closet, is that true?

A. I have quite a few clothes there.

Q. Okay.

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 A. I mean, I wouldn’t say that I have more than two suitcases
full of clothes.

In addition to clothing, Wife also admitted to keeping toiletries at Barclay’s home, although she
insisted that she normally “took all my toiletries back and forth [from Memphis to Tampa].” Wife
further conceded that she kept her automobile in Tampa from January 1, 2001 through September
or October 2001. The evidence is moreover undisputed that Wife had a key to Barclay’s home, and
would have had free run of the home even on occasions when Barclay was away.

There is no evidence in the record to indicate that Wife paid rent or utilities during her stay
in Barclay’s home, nor is there any evidence that Barclay provided her with financial support. Wife
acknowledged that she and Barclay both contributed to the purchase of groceries and toiletries.

When questioned as to whether she and Barclay held themselves out as a couple to friends
and acquaintances in Florida, Wife testified:

Q. Were there any other – or can you remember any instances
where you held yourself out or represented to third parties that you
and Mr. Barclay were a couple?

A. All of our friends knew we were a couple.
Is that what you’re asking me, sir?

The evidence additionally indicates that Wife had her mail forwarded to Barclay’s Tampa residence
for an extended period of time in 2000. Further, during examination by Husband’s counsel at trial,
Wife acknowledged that she had given an answer during an earlier deposition admitting that she had,
on at least one occasion, represented her address as Barclay’s Tampa home.

In light of these facts, we find that the evidence in the record establishes that Wife cohabited
with Barclay at his Tampa home. Cf. Harris v. Corley, No. 01-A-019102CH00055, 1991 WL
119061, at *1-2 (Tenn. Ct. App. July 5, 1991) (holding that facts justified application of T.C.A. §
36-5-101(a)(3) where proof was entered that alleged cohabitant spent several nights at plaintiff’s
home, kept toiletries and clothing at plaintiff’s residence, had a key to the residence, used plaintiff’s
telephone number in advertisements for boats, trucks, and trailers that he was attempting to sell, and
where plaintiff and cohabitant gave each other “money as needed”); Azbill v. Azbill, 661 S.W.2d
682, 686-87 (Tenn. Ct. App. 1983) (concluding that it could not find that the evidence preponderated
against the trial court’s finding that plaintiff and alleged cohabitant were living together within the
meaning of T.C.A. § 36-820(a)(3) where record indicates that cohabitant was at plaintiff’s home
daily, “had a key, came in and out as he pleased, had clothes and toilet articles in the house, and at
least on four different occasions spent the entire night in the home,” and where trial court was in
better position to determine the credibility of the witnesses); but cf. McCullough v. McCullough,

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No. 01A01-9701-CV-00039, 1997 WL 749459, at *4 (Tenn. Ct. App. Dec. 5, 1997) (finding of court
that evidence “does not preponderate in favor of a finding of cohabitation where third party’s
overnight visits were sporadic, and where there was “no evidence that [the third party] kept clothing
or toiletries at Wife’s home, that he had a key to the home, or that he routinely ate his meals at
Wife’s home”).

Having determined that Wife cohabited with Barclay, an unrelated male, we find that, under
the plain language of the parties’ MDA, Husband’s alimony obligations are terminated. However,
there must be a determination of when cohabitation occurs. As it is defined, cohabitation requires
a “living with” arrangement, thus contemplating a continued course of conduct. Our Supreme Court
in Jones v. State, 184 S.W.2d 167 (Tenn. 1944), considering the word “cohabit” stated:

Independent of the use of the word continue, the word cohabit,
standing alone, connotes a fixed, rather than a transient, condition.
The term “cohabit,” says 14 C.J.S., Cohabit, p. 1311, “imports a
dwelling together for some period of time, and does not include mere
visits or journeys. . . .

Id. at 169 (citations omitted).

In the instant case, the record establishes that at the very least Wife lived with Barclay in his
Tampa home for 206 days from January 2000 through September 2000. There can certainly be no
doubt that cohabitation occurred during this period of time. However, because of the continuing
nature of the term “living with,” some period must be established for the actual termination of the
alimony obligation. Husband filed his petition to modify the final decree of divorce on May 23,
2001, alleging cohabitation in violation of the MDA. For lack of a better termination period, we
believe that the date of filing the petition would be the proper date for the termination of Husband’s
obligation under the MDA.

Accordingly, on remand, the trial court is to determine alimony paid by Husband from and
after May 23, 2001, and enter judgment against Wife for that amount as a refund to Husband.

In sum, the order of the trial court is reversed, and it is ordered that the obligation of Husband
for alimony is terminated effective May 23, 2001. The case is remanded to the trial court for
determination of the amount of alimony paid by Husband subsequent to May 23, 2001 for entry of
judgment of that amount against Wife. Costs of the appeal are assessed to Appellee, Ann Marie
Migliaccio Honeycutt. The remaining issues are pretermitted.

__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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