This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 66
IN THE
SUPREME COURT OF THE STATE OF UTAH
JILLIAN SCOTT,
Petitioner,
v.
BRADLEY SCOTT,
Respondent.
No. 20160299
Filed September 21, 2017
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Judge Robert P. Faust
No. 124903563
Attorneys:
Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher,
Julie J. Nelson, Salt Lake City, for petitioner
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, for respondent
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM and JUDGE BROWN joined.
Having been recused, JUSTICE HIMONAS does not participate herein;
DISTRICT COURT JUDGE JENNIFER A. BROWN sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Jillian Scott petitions this court to overturn the Utah Court of
Appeals’ order affirming the district court’s conclusion that she
cohabited with her now ex-boyfriend and, therefore, her alimony
payments terminated under Utah Code section 30-3-5(10). This
requires us to revisit a question that captured the nation’s attention
in 1999 because the meaning of section 30-3-5(10) “depends upon
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Opinion of the Court
what the meaning of the word ‘is’ is.” We conclude that the
legislature intended that is should mean is and not was or has been.
We reverse.
BACKGROUND
¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in
2006. Under the terms of their divorce settlement and decree, Wife
would collect $6,000 a month in alimony from Husband for the
number of years they had been married: twenty-five. The divorce
decree provided, “Alimony shall terminate upon the remarriage or
cohabitation of [Wife].”
¶3 In October 2011, Husband moved to terminate alimony,
claiming that Wife had cohabited with J.O., her ex-boyfriend.
Husband argued that Wife had begun “cohabit[ing] with an adult
male . . . on or about February 2011,” that Wife had a relationship
with her cohabitant “akin to that generally existing between
husband and wife,” and that she and cohabitant “shared a common
residence for a significant period of time.” Wife and J.O. had broken
up months before Husband filed his motion. The statutory language 1
governing termination of alimony provides that alimony “terminates
upon establishment by the party paying alimony that the former
spouse is cohabitating with another person.” UTAH CODE § 30-3-
5(10). 2
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1 The court of appeals’ opinion correctly noted:
The parties’ decree of divorce differs from the language
contained in Utah Code section 30-3-5(10). . . .
However, the parties have presented this case as
though the statutory language governs the result, and
for purposes of this analysis we assume that the
parties’ decree is substantively identical to the statute
on the issue of cohabitation.
Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379
P.3d 1183 (Utah 2016). On certiorari, neither party contends that the
language of the decree controls or that under the decree this court
should reach a different result. We thus limit our analysis to the
parties’ arguments and do not consider the decree’s language.
2 The Utah statute employs the verb cohabitate. See UTAH CODE
§ 30-3-5(10). We, however, use the more common term cohabit
(continued . . .)
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Opinion of the Court
¶4 The district court found that Wife and J.O. had cohabited
and that their cohabitation terminated Husband’s obligation to pay
Wife alimony. The court stated that “[Wife] and [J.O.] lived their
lives in multiple homes and had extensive and constant travel, which
does not lend itself to a traditional analysis of a couple, who without
those resources, cohabitate in a single home.” The court found it
significant that Wife and J.O. had been “together or staying in one of
[J.O]’s homes approximately 87% of the time from December 2010
onward.” Thus, considering the details of the couple’s intimate and
exclusive 30–31-month relationship ending sometime before April
2011, the district court found that the evidence before it established
“cohabitation and a relationship akin to a husband and wife.” The
court ordered Wife to return to Husband “any alimony paid to her
from December 22, 2010 to the present.” 3
¶5 Wife appealed and argued to the Utah Court of Appeals that
the district court’s interpretation of the statute failed to account for
the present tense of the to be verb “is” in the statute. See UTAH CODE
§ 30-3-5(10) (alimony should dissolve upon establishment that “the
former spouse is cohabitating”). Under Wife’s reading, Husband
could not establish that Wife is cohabiting, since she and J.O. had
broken up months before Husband filed his motion. She argued that
in order to terminate Husband’s obligation under the plain language
of the statute, Husband had to show that she was cohabiting at the
time he filed his motion to terminate alimony.
¶6 Husband contended to the court of appeals that Wife’s
statutory interpretation argument was not preserved in the district
court. The court of appeals responded, however, “that resolution of
the question of whether Wife and J.O. cohabited requires us to
interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App
31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory
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throughout this opinion when not quoting the statute. See Cohabit,
GARNER’S MODERN AMERICAN USAGE (4th ed. 2016) (“Cohabitate is a
misbegotten BACK-FORMATION that has never seriously competed
with cohabit in print sources. . . . Current ratio (cohabiting vs.
cohabitating): 8:1.”).
3 We omit the details of Wife and J.O.’s time spent together at
their various homes and vacation destinations, recounted at length
in the court of appeals’ opinion, Scott, 2016 UT App 31.
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Opinion of the Court
interpretation argument “regardless of whether it was properly
preserved.” Id.
¶7 The court of appeals disagreed with Wife’s plain language
argument. The court explained that “[t]he language of the
Cohabitation Provision has never been parsed in this way, and our
case law has not squarely addressed the issue. Accordingly, we
utilize applicable canons of construction to ascertain the meaning of
the statute.” Id. ¶ 28. The court of appeals then reasoned that, under
a plain language reading, “when the present-tense [to be] verb is read
within the context of the [statute] as a whole, the argument that its
use demands that cohabitation be ongoing at the time of
determination seems less persuasive.” Id. ¶ 32 (internal citation
omitted). It reasoned that to read the statute in a way that gives
independent meaning to the word is would undermine the final
effect the statute requires: that alimony “terminates upon
establishment” of cohabitation. Id. (emphasis added); UTAH CODE
§ 30-3-5(10). The court of appeals determined that, because the
statute lacks a provision allowing for “alimony reinstatement once
cohabitation ends” or a provision explaining “that alimony is only
suspended during cohabitation,” “the word ‘is’ cannot bear the
burden of an interpretation that requires such a complex approach,
and there is no other language in the statute to justify encumbering it
with such a burden.” Scott, 2016 UT App 31, ¶ 32.
¶8 The court of appeals also reasoned that the legislature
“could not have intended” the result Wife’s briefing described. Id.
¶ 33 (citation omitted). The court acknowledged “that requiring
termination of alimony in [Wife’s] circumstances does not entirely
align with the general economic policies underlying alimony.” Id.
¶ 35. “[C]ohabitation is qualitatively different from remarriage.
Remarriage provides a legally binding substitute for alimony;
cohabitation does not.” Id. But the court explained that
interpreting the [statute] to terminate alimony only
during periods of active cohabitation could create an
incentive for persons receiving alimony to simply
cohabit rather than marry, so that if the new
relationship does not endure, the alimony from the
former spouse would resume. This could result in
something of a statutory preference for cohabitation
over marriage, which seems unlikely to have been the
legislature’s intent.
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Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “a
common abode” that was also their “principal domicile” for “more
than a temporary or brief period of time,” the court rejected Wife’s
argument and upheld the district court’s conclusion that Wife and
J.O. had cohabited. Id. ¶¶ 16–26.
¶9 Although the court of appeals agreed that Wife and J.O. had
cohabited, it disagreed with the district court’s timeframe. Id. ¶ 26.
Instead of finding that Wife and J.O. began to cohabit on December
22, 2010, the court of appeals found that Wife and J.O. began to
cohabit on February 17, 2011, “because their vacations together
before they moved to [California] still retained a temporary quality.”
Id. The court of appeals therefore remanded the case to the district
court for the limited purpose of adjusting Wife’s payment to
Husband to reflect the dates it found significant. Id. ¶ 38.
¶10 We disagree with the court of appeals’ reading of the
cohabitation statute. We instead conclude that the plain language of
Utah Code section 30-3-5(10) requires the paying spouse to establish
that the former spouse is cohabiting at the time the paying spouse
files the motion to terminate alimony. 4 We also clarify an appellee’s
burden of persuasion on certiorari when the court of appeals
addresses an issue that the appellee claims was unpreserved.
¶11 We have jurisdiction under Utah Code section 78A-3-
102(3)(a).
STANDARD OF REVIEW
¶12 On certioriari, we review decisions of the Utah Court of
Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19,
¶ 13, 374 P.3d 3. “We also review questions of statutory
interpretation . . . for correctness.” Id.
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4 Because we conclude that Husband did not establish that Wife
cohabited within the meaning of the statute, we do not reach the
merits of Wife’s other contentions arguing that the court of appeals
erred in its application of the law.
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Opinion of the Court
ANALYSIS
I. The Court of Appeals Erred when It Found
That Wife and J.O. Cohabited
¶13 Before we reach the merits of the court of appeals’
conclusion that Wife cohabited with J.O., we must address
Husband’s argument that Wife failed to preserve the statutory
construction issue. Husband argued to the court of appeals that it
should not address the meaning of the statute because Wife had not
presented that question to the district court. The court of appeals
declined to resolve whether the issue had been preserved and
instead addressed what it believed to be the proper construction of
the statute. The court explained that, “[b]ecause we believe that
resolution of the question of whether Wife and J.O. cohabited
requires us to interpret the Cohabitation Provision, we address this
argument regardless of whether it was properly preserved.” Scott v.
Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.
¶14 The court of appeals appears to have believed that it was
trekking down a path we marked in Patterson v. Patterson, 2011 UT
68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a
statute even though the parties had not preserved the issue before
the district court. We recognized that “our decision to reach [the]
argument may undermine some of the policies underlying the
preservation requirement.” Id. ¶ 19. But we concluded that
consideration of the [statute] is necessary to a proper
decision. As the state’s highest court, we have a
responsibility to maintain a sound and uniform body
of precedent and must apply the statutes duly enacted
into law. Refusing to consider [appellant’s] statutory
argument in this case would cause us to issue an
opinion in contravention of a duly enacted controlling
statute. This we will not do.
Id. ¶ 20. And the court of appeals believed that it was following this
path when it reached the statutory interpretation question.
¶15 Our preservation requirement promotes a number of
important policies. It encourages orderly proceedings by requiring a
party to advise a trial court of potential errors so the trial court has
the opportunity to correct them before they blossom into appellate
issues. It also discourages a party from strategically ignoring errors
in hopes of enhancing her chances of prevailing on appeal. Thus, we
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Opinion of the Court
require a party to present an issue “in such a way that the [district]
court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in
original) (citation omitted). We “exercise wide discretion when
deciding whether to entertain or reject matters that are first raised on
appeal.” Id. ¶ 13. And we have used that discretion to carve out a
few exceptions to the preservation requirement. For example, “we
have reached matters not raised below under ‘exceptional
circumstances’ or when ‘plain error’ has occurred.” Id. Stated
differently, absent some exception, we do not normally address
unpreserved issues.
¶16 This case does not present the normal situation. We are not
asked to address an issue that a party is raising for the first time on
appeal. Rather, we are asked to address an issue that the court of
appeals determined it needed to resolve, even if it were unpreserved.
¶17 Husband all but ignores the court of appeals’ decision to
reach the statutory construction issue. He asserts simply that “[Wife]
failed to preserve this argument in the trial court. See Record,
passim. Therefore it should not have been considered by the court of
appeals.” In essence, Husband invites us to look past the court of
appeals’ actual decision and affirm on the alternative ground that the
court of appeals should not have touched the unpreserved issue in
the first place.
¶18 We have the ability to affirm a decision on any ground
apparent on the record. “[I]t is well established that an appellate
court may affirm” a judgment “if it is sustainable on any legal
ground or theory apparent on the record, even though such ground
or theory differs from that stated by the trial court to be the basis of
its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002
UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61,
¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a
court of appeals ruling where that court erroneously addressed an
unpreserved issue.
¶19 That is not to say, however, that an appellee may simply
flag the preservation problem and expect that we will exercise our
discretion to ignore the court of appeals’ decision and affirm for a
lack of preservation. Indeed, when the court of appeals decides to
reach an unpreserved issue, and we hear a petition for certiorari in
the matter, an appellee would be well advised to do more than just
point out that the issue was unpreserved in the district court.
Sometimes we may need to be convinced that the court of appeals
erred in tackling the unpreserved issue and that the error is
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Opinion of the Court
“apparent on the record.” This is especially important in a case like
this where the court of appeals explained its rationale for reaching
the arguably unpreserved issue. In this circumstance, the party may
want to argue that the unpreserved issue did not implicate plain
error, did not present any exceptional circumstance, or that it was
not necessary for the court of appeals to address the issue to reach a
proper conclusion. Husband did none of these.
¶20 Here, it is not apparent on the record that the court of
appeals should not have reached the question of how the
Cohabitation Provision should be interpreted. The court of appeals
believed that even if the statutory argument was not preserved, it
needed to construe the statute to properly resolve the matter. We can
see arguments going both ways on whether this case presented the
court of appeals with the same choice we were presented in
Patterson. But in the absence of parties willing to develop those
arguments, we are reluctant to wade in on our own. Simply stated,
the decision to affirm on other grounds lies in this Court’s discretion
and Husband has provided us little reason to exercise that discretion
on the record before us.
¶21 As we previously stated, the resolution of this case turns on
what the definition of is is. Utah Code section 30-3-5(10) provides
that
alimony to a former spouse terminates upon
establishment by the party paying alimony that the
former spouse is cohabitating with another person.
(Emphasis added). Wife argues—both to us now and previously to
the court of appeals—that the statute’s use of “is” requires that
cohabitation be ongoing to terminate alimony under the plain
language of the rule. 5 She contends that the court of appeals erred
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5 We note that the language of the divorce decree may point to a
different result. See supra ¶ 3 n.1. That language provides that
“[a]limony shall terminate upon the remarriage or cohabitation of
[Wife].” We again note that, while the court of appeals drew this to
the parties’ attention, see Scott, 2016 UT App 31, ¶ 9 n.2, neither party
argues on certiorari that we should decide this case under the
language of the divorce decree or that the decree’s language
demands a different result.
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when it interpreted is to mean was. The court of appeals understood
Utah Code section 30-3-5(10) to permit a showing that the spouse
collecting alimony was or had been cohabiting at some previous date,
regardless of whether the spouse was actually cohabiting at the time
of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain
language analysis that considered the cohabitation provision both
“as a whole” and “in harmony with” the other provisions of the
statute, id. ¶ 28 (citation omitted), the court of appeals determined
that Wife’s “present cohabitation” reading was erroneous regardless
of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First,
the court believed the statute’s later use of the verb terminates
“precludes an interpretation that alimony might then be reinstated
should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s
interpretation “could lead to results that the legislature ‘could not
have intended.’” Id. ¶ 33 (citation omitted). And, finally, it
complained that Wife “offered no guidance on how to feasibly
implement” a present-tense reading. Id. ¶ 34. Wife contends that the
most reasonable interpretation of the statute is hers: that the plain
language of the statute “requires that cohabitation be ongoing to
terminate alimony.”
¶22 When we interpret statutes, “our primary objective is to
ascertain the intent of the legislature.” Penunuri v. Sundance Partners,
Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).
Since “‘[t]he best evidence of the legislature’s intent is
the plain language of the statute itself,’ we look first to
the plain language of the statute.” In so doing, “[w]e
presume that the legislature used each word
advisedly.” . . . When we can ascertain the intent of the
legislature from the statutory terms alone, ”no other
interpretive tools are needed,” and our task of
statutory construction is typically at an end.
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in
original) (citations omitted). We review questions of statutory
interpretation for correctness affording the court of appeals’ opinion
no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374
P.3d 3.
¶23 We believe the court of appeals erred in reading less into
the word is than the word demands. As the court of appeals noted,
“[i]nstead of ‘is,’ the legislature certainly could have used the present
perfect tense—‘has cohabited’—which would have ‘denote[d] an act,
state, or condition that is now completed or continues up to the
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present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original)
(citation omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its
requirement in language that looked to the past . . . , but it did not
choose this readily available option.”). And the court of appeals
admitted that
the strongest statutory support for Wife’s
interpretation of the [statute] is the use of the present-
tense “is.”
Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for
Wife’s interpretation of the statute is, indeed, the language itself. The
language of the statute provides that alimony terminates upon
establishment “that the former spouse is cohabitating with another
person.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting”
is a verb phrase comprised of two verbs: the present tense auxiliary
“is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORD
DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present
participle of any verb—like cohabiting—paired with is creates a
“continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE
APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in
progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE
APP VERSION 9.0.2 (2017). In light of the statute’s plain language, we
cannot see how a showing of anything less than present or ongoing
cohabitation meets the statute’s terms head-on.
¶24 A statutory reading that credits a verb’s tense is not
uncommon. Our own court of appeals relied on similar reasoning in
Prows v. Labor Commission: “Typically, we understand ‘is’ as a
present-tense form of the verb ‘to be.’ Accordingly, we assume that
the legislature used ‘is’ here as a present-tense verb.” 2014 UT App
196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise.
See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a
statute according to the “present perfect tense”). And Utah is in good
company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir.
2011) (“The use of the present tense in a statute strongly suggests it
does not extend to past actions. The Dictionary Act provides ‘unless
the context indicates otherwise . . . words used in the present tense
include the future as well as the present.’” (omission in original)
(quoting 1 U.S.C. § 1); United States v. Williams, 462 F. Supp. 2d 342,
344 (E.D.N.Y. 2006) (“In short, ‘is’ means ‘is,’ not ‘is or was’ or ‘is,
depending on the chronology of events.’”), aff’d sub nom. United
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States v. Darden, 539 F.3d 116 (2d Cir. 2008); see also AK Steel Corp. v.
Commonwealth, 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations
omitted) (“This is not the first time a judicial body has been
presented with the surprisingly difficult task of discerning the
meaning of a monosyllabic word of repeated, everyday usage.”). Not
for nothing, the Supreme Court of the United States has likewise
indicated that, “[c]onsistent with normal usage, we have frequently
looked to Congress’ choice of verb tense to ascertain a statute’s
temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010); see,
e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use
of a verb tense is significant in construing statutes.”).
¶25 The court of appeals reached a contrary conclusion
reasoning that the Cohabitation Provision immediately follows the
Remarriage Provision and that “[i]t appears that the legislature had
the same purpose in enacting each provision: to terminate alimony
when a new relationship ‘legally or functionally replaces the need
for financial support.’” Scott, 2016 UT App 31, ¶ 29 (citation
omitted). Viewing the statute through the prism of the statute’s
purported purpose, the court of appeals concluded that its reading
would allow the “alimony consequences [to] take effect as of the date
cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.
¶26 The court of appeals noted that the only significant
difference between Utah Code section 30-3-5(9), the Death or
Remarriage Provision, and section 30-3-5(10), the Cohabitation
Provision, is “the means by which termination [of alimony] occurs.”
Id. ¶ 29. The language of the Death or Remarriage Provision
provides that alimony terminates automatically “upon the
remarriage or death” of the former spouse; however, the
Cohabitation Provision provides that alimony terminates “upon
establishment . . . that the former spouse is cohabitating.” UTAH
CODE § 30-3-5(9), (10) (emphases added). 6 But because the court of
appeals posited that the legislature must have wanted both
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6 Husband cites Black v. Black for the proposition that cohabitation
need not be ongoing: “the order imposing alimony terminate[s]
automatically upon the establishment of cohabitation.” 2008 UT App
465, ¶ 8, 199 P.3d 371. This passage is court of appeals dicta and does
not bind us. Moreover, in light of our decision today, it misstates the
law.
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provisions to operate in a similar fashion, it looked to harmonize the
statutes in a fashion that would permit the “alimony consequences”
to “take effect as of the date cohabitation began,” and consequently
minimized the differences in the statutory language. Scott, 2016 UT
App 31, ¶ 31. But if we start from the premise that we should discern
what the legislature intended from the plain language of the text
unencumbered by notions of what we think the legislature must
have wanted the language to accomplish, the difference in the
language assumes greater importance. See, e.g., Penunuri, 2013 UT 22,
¶ 15 (“Because ‘[t]he best evidence of the legislature’s intent is the
plain language of the statute itself,’ we look first to the plain
language of the statute.” (alteration in original) (citation omitted));
Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d
751 (“To discern legislative intent, we first look to the plain language
of the statute.”); K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994)
(“When faced with a question of statutory construction, we look first
to the plain language of the statute.”). Starting with the plain
language, we can infer that the legislature intended that alimony
cease upon remarriage or death, but that, in the case of cohabitation,
it would terminate upon establishment of present cohabitation—
even if that meant that the provisions would operate differently.7
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7 The court of appeals also resisted this conclusion because it
might allow for “alimony reinstatement once cohabitation ends.”
Scott, 2016 UT App 31, ¶ 32. The court of appeals opined that if the
legislature wanted this result, it could have said so explicitly,
perhaps by including a provision that stated “that alimony is only
suspended during cohabitation.” Id. We see two issues with this
conclusion. First, as written, the statute does not suspend alimony
during cohabitation. The statute’s plain language does not require
the resumption of alimony payments after the paying spouse
establishes cohabitation, even if the cohabiting later ends. The
seemingly anomalous result the court of appeals assails will occur
only when the cohabitation begins and ends before the paying
spouse can file a termination petition. Second, although we whole-
heartedly agree with the court of appeals that the legislature could
have been clearer, we are not justified from departing from the plain
language of the statute just because we can envision a manner in
which the legislature could have expressed its intent more clearly.
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¶27 We understand the court of appeals’ instinct to push
against the result the plain language yields, and we understand the
temptation to read the statute in a fashion that treats cohabitation
identically to remarriage. It may seem incongruous that a marriage
lasting forty-eight hours will terminate alimony but that a cohabiting
relationship lasting years may not if that relationship ends before the
paying spouse files to terminate alimony. But we do not believe, as
the court of appeals did, that this is a result that the legislature
“could not have intended.” Scott, 2016 UT App 31, ¶ 33 (quoting
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863
(invoking “absurdity” doctrine)).
¶28 Both Husband and the court of appeals invoke the
absurdity doctrine without calling it by name. The absurdity
doctrine permits us to reform unambiguous statutory language
where the language would lead to an absurd result. Bagley, 2016 UT
48, ¶ 27.
[T]his court will not apply the absurdity doctrine
unless “the operation of the plain language . . . [is] so
overwhelmingly absurd that no rational legislator
could have intended the statute to operate in such a
manner.” This standard is satisfied only if the
legislature could not reasonably have intended the
result.
Id. ¶ 28 (second alteration in original) (omission in original) (citations
omitted). We concede that the legislature could have intended a
different result—in fact, it could have intended the result the court of
appeals envisioned, one where the Remarriage and Cohabitation
Provisions yield the same outcome—but we do not believe that the
result the plain language dictates is absurd, let alone “so
overwhelmingly absurd that no rational legislator could have
intended the statute to operate in such a manner.” Id. (citations
omitted). As such, it is our obligation to take the plain language at
face value and trust the legislature to amend the statute if it intended
a different result. 8
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8Of course, parties unhappy with this statutory default may
choose instead to agree to a divorce decree that terminates alimony
upon cohabitation.
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¶29 The court of appeals also sought to avoid the decision we
reach because it believed that “there is the potential that the couple
will simply cease cohabitation in advance of that date to avoid the
consequence if the Cohabitation Provision were to require that the
recipient spouse ‘is cohabitating’ at the time of hearing or trial.”
Scott, 2016 UT App 31, ¶ 34.
¶30 As an initial matter, the relevant date is not the hearing or
trial, but the date of filing. The present tense is demands the
condition to be present at the time the paying spouse declares before
the court that a former spouse is cohabiting. That declaration takes
place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P.,
541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends
upon the state of things at time of the action brought.’ . . . [The time-
of-filing rule] measures all challenges to subject-matter jurisdiction
premised upon diversity of citizenship against the state of facts that
existed at the time of filing.”) (citations omitted); Int’l Trading Corp. v.
Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist
at the time of filing a petition for mandamus”); Spectra-Physics, Inc. v.
Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring
“knowledge of facts within the possession of the inventor at the time
of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th
Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the
time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d
1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct
“under the circumstances existing at the time of the filing” in the
attorney discipline context); W. VA. CODE § 49-4-601(i) (requiring
findings to be “based upon conditions existing at the time of the
filing” in child abuse and neglect context); 38 U.S.C. § 109 (1991)
(providing that no benefit “shall be extended to any person who is
not a resident of the United States at the time of filing [a] claim”).
¶31 We recognize that this does not entirely ameliorate the
problem the court of appeals recognized, i.e., that a couple might
cease cohabiting to avoid forfeiting alimony. It is true that a couple
who has been warned a paying spouse is planning to move to
terminate alimony could choose to stop cohabiting to avoid the
termination. And, if that occurs, the continued payment of alimony
would square with the policy behind alimony. See Jones v. Jones, 700
P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important
function of alimony is to provide support for the [receiving spouse]
as nearly as possible at the standard of living [he or] she enjoyed
during marriage, and to prevent the [receiving spouse] from
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Opinion of the Court
becoming a public charge” (citation omitted)); Myers v. Myers, 2010
UT App 74, ¶ 12, 231 P.3d 815 (stating that “the principal purpose of
alimony is economic”). To the extent that a cohabitant might engage
in subterfuge to create the appearance that the cohabiting has
terminated when it has not, we trust our district courts and the
adversarial system to do their best to detect efforts to manipulate the
outcome. See generally Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct.
App. 1996) (finding that boyfriend and former spouse resided
together under Utah Code section 30-3-5(6) (1989) although
boyfriend maintained a separate apartment, among other things).
II. Wife Is Not Entitled to Attorney Fees in Defending
Husband’s Petition to Terminate Alimony
¶32 Wife also asks this court to remand to the district court for
the purpose of awarding Wife attorney fees both at trial and on
appeal under Utah Code section 30-3-3. The statute provides for an
award of attorney fees “in any action to establish . . . alimony” or “[i]n
any action to enforce an order of . . . alimony”; it does not provide for
attorney fees to defend an action to terminate alimony. UTAH CODE
§ 30-3-3(1), (2) (emphases added). Here, there is no allegation that
Husband failed to continue to pay alimony. This is not a situation
where the paying spouse stops paying and the receiving spouse
must petition the district court to intervene and enforce its order.
Thus, Wife’s efforts to resist Husband’s motion to terminate alimony
are not compensable under Utah Code section 30-3-3’s plain
language.
CONCLUSION
¶33 We conclude that Utah Code section 30-3-5(10) requires the
paying spouse to establish that the former spouse is cohabiting at the
time the paying spouse files the motion to terminate alimony. We
clarify that an appellee wishing to contest our review of an arguably
unpreserved issue already reached by the court of appeals has an
obligation to explain how the court of appeals erred in reaching the
unpreserved issue. Finally, defending a motion to terminate alimony
does not entitle the defending spouse to an award of attorney fees
under Utah Code section 30-3-3.
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