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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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*
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
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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
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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.
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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.
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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
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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).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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