Order Michigan Supreme Court
Lansing, Michigan
November 14, 2008 Clifford W. Taylor,
Chief Justice
136697 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
WILLIAM JEFFREY SMITH, Stephen J. Markman,
Plaintiff-Appellant, Justices
v SC: 136697
COA: 273547
Kent CC: 98-004557-DM
BETTY LEE SMITH a/k/a
BETTY LEE JENKINS,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the March 18, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting.)
I would grant leave to appeal because I believe that the test for “cohabitation” that
the Court of Appeals adopted emphasizes definitions of cohabitation that do not square
with the contemporary living conditions of cohabiting couples. Because a majority of
American couples now cohabit before marriage, the definitions and standards we employ
pose questions of jurisprudential significance in cases where the parties have failed to
define their terms. Moreover, the Court of Appeals opinion is too uncertain. It leaves too
much room for litigation over the essential features of cohabitation that would terminate
spousal support obligations.
I note preliminarily that a great deal of time and expense could be saved in post-
judgment proceedings if the parties would only define their terms. We construe
judgments of divorce like contracts. Beason v Beason, 435 Mich 791, 798-799 n 3
(1990). By defining terms such as “cohabitation,” parties ensure that courts will construe
the language used in a manner that comports with the parties’ understanding of their
agreement.
I. Underlying Facts and Procedural History
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The parties’ 1999 judgment of divorce obligates plaintiff ex-husband to pay
defendant ex-wife $3,500 a month in spousal support. That obligation terminates “upon
such time as the Defendant cohabitates with a non-related male.” The term cohabitation
was not defined in the judgment. In January 2005, plaintiff moved to terminate spousal
support, alleging that defendant had been cohabiting with her partner. The trial court
held an evidentiary hearing, during which defendant’s partner testified that he and
defendant had been in a committed relationship since December 2002. Although the
couple had plans to marry, defendant told her partner that she did not want to marry or
live together until her spousal support ends when her youngest child reaches the age of
18. The couple also does not share bank accounts or credit cards. Evidence was also
adduced that defendant’s partner used her address to receive mail from his bank and
documents pertaining to his divorce. Although defendant’s partner claimed that he
moved into his ex-wife’s home in May 2004, when he returned to Michigan from
Georgia, and lived there until April 2005, his ex-wife testified that he never lived with
her during that time. He also claimed that he began staying at the home he formerly
shared with his ex-wife approximately three days a week beginning in April 2005, but his
ex-wife observed that the minimal utility bills from their former home during that period
were inconsistent with his claim. After the evidentiary hearing, the trial court identified a
1983 test for cohabitation from Ohio, found that defendant and her partner were not
cohabiting, and denied plaintiff relief. On appeal, the Court of Appeals affirmed.
The Court of Appeals initially cited the three-part Ohio test used by the trial court:
“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. Third, shared
expenses with respect to financing the residence (i.e., rent or mortgage
payments) and incidental day-to-day expenses (e.g., groceries) are the
principal relevant considerations.” [Smith v Smith, 278 Mich App 198, 202;
748 NW2d 258 (2008), citing 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), 1983 WL 6869, *4, as affirmed and applied in
Dickerson v Dickerson, 87 Ohio App 3d 848 (1993), and Moell v Moell, 98
Ohio App 3d 748 (1994).]
It also stated that “[c]ohabitation 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.’” Smith, supra at 202-203.
II. Objections to the Court of Appeals Analysis
3
The Court of Appeals ultimately adopted a totality of the circumstances test and
stated that no one factor was dispositive. Smith, supra at 203-204. Nonetheless, its
apparent endorsement of the Ohio test raises doubts about the standard it articulates.
Proof of shared expenses, sustained duration, and a marriage-like commitment are all
potentially relevant factors, but they are not the sine qua non in determining whether
cohabitation exists. Nor do I believe that these factors amount to the “principal relevant
considerations,” id. at 202, in determining whether a couple is cohabiting.
Many dictionary definitions include the analogy to marriage that our Court of
Appeals cited, see, e.g., Merriam Webster’s Online Dictionary (11th ed) (“to live together
as or as if a married couple”); Webster’s New World Law Dictionary (“to live together as
husband and wife, esp. when not married”); Law.com Dictionary (“[l]iving together in
the same residence, generally either as husband and wife or for an extended period of
time as if the parties were married”). Others, however, define cohabitation as merely
living together in a sexual or intimate relationship, see, e.g., Cambridge Dictionary of
American English (“(esp. of a man and woman who are not married) the act of living
together”); The Online Plain Text English Dictionary (“[t]he living together of a man and
woman in a supposed sexual relationship”); Webster’s Revised Unabridged Dictionary
(1913 ed) (same); Wiktionary (“[a]n emotional and physical intimate relationship which
includes a common living place and which exists without legal or religious sanction”). I
believe that the latter definitions provide a more accurate reflection of contemporary
cohabiting arrangements.
Recent social science research suggests that the commitments of cohabiting
couples are not equivalent to those of married couples. On the contrary, “the behaviors,
understandings, and attitudes of cohabitants typically differ dramatically from those of
married couples.” Garrison, Marriage Matters: What’s Wrong with the ALI’s Domestic
Partnership Proposal, Reconceiving the Family, Critique on the American Law Institute’s
Principles of the Law on Family Dissolution (New York: Cambridge University Press,
2006), p 307. In fact, “cohabitants overwhelmingly see cohabitation as a substitute for
being single, not for being married.” Id. at 310. Moreover, Professor Garrison argues
that cohabitants “do not typically follow the relational norms associated with marriage”:
they are “much less likely than married couples to have children together, to pool their
resources, to feel secure and unconflicted in their relationships, to value commitment, or
to express commitment to their partners.” Id. at 308-309 (footnotes omitted). A test that
essentially equates cohabitation with common-law marriage fails to account for the
significant differences between married and cohabiting couples.
Our survey of out-of-state caselaw reveals that many cases, like those cited by our
Court of Appeals, define “cohabitation” in a manner that does not reflect the current
reality, as documented by the social science research mentioned above. These cases view
cohabitation as a substitute for marriage, and inappropriately emphasize the financial
arrangements and duration of the new relationship. See, e.g., Rose v Csapo, 359 NJ
4
Super 53, 59, 62 (2002); Pellegrin v Pellegrin, 31 Va App 753, 767 (2000); Konzelman v
Konzelman, 158 NJ 185, 202; 729 A 2d 7 (1999); Sanders v Burgard, 715 So 2d 808,
811-812 (Ala Civ App, 1998); Gordon v Gordon, 342 Md 294, 308-310 (1996); Moell v
Moell, supra at 883-884.
Some courts, however, have recognized that proof of shared expenses should not
be a controlling factor. In In re Marriage of Edwards, 73 Or App 272, 279-280 (1985),
the Oregon Court of Appeals “decline[d] to adopt [the ex-]wife’s suggestion that
financial benefit to the supported spouse that permanently affects the need for the decreed
spousal support is a prerequisite to a finding of cohabitation.” It agreed with the trial
court that the ex-wife was cohabiting, even though the couple had kept their finances
separate. Id. at 275, 279. Similarly, in Bell v Bell, 393 Mass 20, 22-23 (1984), the
Supreme Judicial Court of Massachusetts concluded that the ex-wife was living with a
man “so as to give the outward appearance of marriage,” and ordered the termination of
alimony payments, even though the two maintained separate bank accounts and never
comingled any assets.
Moreover, New York’s highest court very recently reversed the finding of the
intermediate appellate court that “cohabitation” had a plain meaning under New York
caselaw that contemplated changed economic circumstances and required shared
finances. The majority held that the term was ambiguous as used in the parties’
settlement agreement because neither New York caselaw nor dictionary definitions
revealed a plain meaning, and courts of other states had not uniformly defined the term.
Graev v Graev, ____ NY2d _____ (2008), 2008 WL 4620698, *4. The dissenting judge
disagreed because he concluded that the inclusion of a specific period rendered the
cohabitation provision unambiguous (the agreement provided that the ex-husband’s
maintenance obligation would terminate in the event of the ex-wife’s cohabitation with
an unrelated adult for a period of 60 “substantially consecutive” days). Graev, supra
2008 WL at *1, 6 (Graffeo, J., dissenting). Significantly, the majority and dissent agreed
that financial interdependence is not a sine qua non of cohabitation. The dissent stated:
Today, as a Court, we unanimously reject the rule that economic
interdependence is a sine qua non of cohabitation. Aside from the textual
and contractual considerations, that rule makes little sense practically
because a party receiving maintenance can easily evade the consequence of
a termination provision and receive more than the benefit of his or her
bargain. Mrs. Graev and M.P., for example, would be free to continue their
relationship in its current form indefinitely without violating the
termination provision—they could be together 24 hours a day and sleep
together every night for years—but as long as they maintain separate bank
accounts and do not share expenses, they would not be cohabitating under
the economic unit concept. This is not how a cohabitation clause is
5
supposed to work; nor is it what other parties anticipate when including
similar cohabitation clauses in their agreements. [Id. at *8 (Graffeo, J.,
dissenting).]
The facts of this case are somewhat similar to the hypothetical situation Judge
Graffeo describes. Defendant and her partner have decided to postpone marriage until
her spousal support automatically expires. Defendant’s partner claims to have resided
with his ex-wife, then at least part-time at his former marital home, rather than with
defendant, but his ex-wife’s testimony about the mailing address he used and the minimal
utility bills suggest that these claims were a further attempt to avoid triggering the
termination provision in the parties’ judgment of divorce. I share Judge Graffeo’s view
and the view of the Graev majority that a test that focuses primarily on the degree of the
parties’ financial interdependence does not fully capture the reality of “cohabitation” in
cases like this.
I would grant leave to appeal to clarify that no single factor is dispositive under a
totality of the circumstances test for cohabitation. The primary goal of the finder of fact
should be to distinguish between dating relationships and cohabitation by first
considering the extent to which the parties share a common residence. Courts should
thus consider such factors as whether each party has keys to the residence, keeps personal
items there, and uses it as a mailing address; whether the parties share household duties;
and the amount of time each party spends at any separate residence. Second, courts
should consider the extent to which the parties have an intimate relationship or engage in
sexual relations; they need not inquire whether the couple’s commitment to one another
resembles a marriage. The social science data show otherwise.
Third, while courts may consider the parties’ financial situation, including shared
expenses and joint accounts, I would clarify that sharing expenses is not controlling. As
Judge Graffeo notes in his dissent, financial interdependence is not the “sine qua non” of
cohabitation. It is possible that one cohabiting party would pay all the expenses. I would
also emphasize that the length of the parties’ relationship is not dispositive.
In short, I believe that the problem posed by this case is jurisprudentially
significant. I would grant leave to appeal to explore the parameters of an appropriate test
for cohabitation.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 14, 2008 _________________________________________
p1110 Clerk