dissenting. The controlling issue in this case is Gordon Gibson’s second point of appeal, that the trial court erred in failing to find that Connie Gibson and Michael Black were living in the same household under the definition of “cohabitation” that was set forth in the June 4, 1999 order that corrected clerical mistakes in the divorce decree. The trial court’s failure to terminate Gordon’s obligation to pay alimony to Connie under the trial court’s own contrived definition of cohabitation is clearly erroneous.
In finding that Connie and Black did not live in the same household, the majority has looked to the concurring opinion in Smith v. Southern Farm Bureau Cas. Ins. Co., 353 Ark. 188, 114 S.W.3d 205 (2003), which was an insurance case concerning who was covered by insurance under the phrase “you or any member of your family residing in your household.” In this case, it is clear that Connie and Black resided in the same household, and the trial court erred in holding otherwise. According to Connie, Mike Black moved to Colorado at the end of September 1997. She moved to Lakewood, Colorado, in February/March 1999, and Mike Black moved into that house in July 1999. Connie sold her first house in November/December 2000 and moved into a new house in Wheatridge, Colorado, and Mike Black moved with her into that house as well. Connie admitted that she lived in the same houses with Mike Black, although she claimed that he was a tenant who paid her $1000 per month in rent. She said that she had written leases with Black for both of the houses in which he had lived with her. However, she admitted that she did not report her “rental income” on her tax return, nor did she inform her insurance agent that she was renting out any portion of her house. Although she denied any romantic relationship with Black, she admitted that she had told him that she loved him, that he spent holidays with her and her family, that he went on vacations with her and her family, and that Black was listed as Mike Gibson on her athletic club membership because she had signed up as a “household(Emphasis added.) She also said that she was lenient when Black got behind on his rent, and that she sometimes allowed him to pay his rent by purchasing items for her from the sporting goods store where he worked, using his employee discount.
The trial court pointed out several different factors that went into her decision that Connie Gibson and Michael Black were not living in the same household; however, all of those factors are irrelevant in light of the definition of “cohabitation” in the divorce decree, which is “spending at least four (4) nights per week from 12:00 a.m. (midnight) until 6:00 a.m. in the same household with another party of the opposite sex with whom the Plaintiff is not married or related.” Using that definition, coupled with the fact that Connie admitted that Black lived with her, the only conclusion that can be drawn is that Connie violated the prohibition against cohabitation as defined by the trial court in the parties’ decree, as amended by joint motion on June 4, 1999. Gordon was entitled to rely upon the definition of “cohabitation” set forth in the 1999 joint amendment to the divorce decree, and Connie’s living arrangements were clearly in violation of that provision.
The majority cites Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998), in which the supreme court reinstated an ex-wife’s alimony payments even though she was living in a sexual relationship with another man, holding that her cohabitation had not changed her financial circumstances or lessened her need for alimony. However, Herman is inapplicable to this case, as there was no provision in the Herman case that cohabitation would terminate alimony, as is the scenario in the present case. Here, the trial judge elected to fashion her own definition of cohabitation, which was more restrictive than the meaning provided in Arkansas case law; therefore, Arkansas case law regarding cohabitation is not applicable.
Although not relevant to the basis of this dissenting opinion, I feel I must comment on Gordon’s point of appeal concerning the denial of his motion to deem facts admitted after Connie failed to answer the requests for admissions. On August 8, 2002, Gordon filed his motion to deem facts admitted; Connie filed an answer to that motion on August 19, 2002, and an answer to the requests for admission on August 21. She amended her answer to the motion to deem facts admitted on September 30, 2002, one day prior to trial, to deny that she had been served with any requests for admission. The trial judge found that Connie had not received the requests for admissions and denied Gordon’s motion to deem facts admitted although Connie had failed to answer them in the required period of time, and even though a disinterested third party had executed a return of service verifying that he had indeed served such documents along with the other documents that Connie does not deny receiving. In denying Gordon’s motion to deem facts admitted, the trial judge stated:
What we have from the Plaintiff [Connie], is her intention that she did not receive the request for admissions. In coupling that with the magnitude of what stands to be lost in this case, I have to accept her intention that she has not received the request for admission when she was served with the other documents, and the Court will deny the motion to deem that the request for admissions be admitted.
Today’s majority opinion reinforces that improper basis for the continuation of alimony.
I would reverse and remand for termination of alimony. I am authorized to state that Judges Gladwin and Neal join in this dissent.