Cook v. Cook

VANCE, Justice.

The question is whether the conduct of the appellee and her boyfriend amounted to “cohabitation” as that term is used in a property settlement agreement which was incorporated in the decree of dissolution of the marriage of the appellant and the ap-pellee.

Paragraph 5 of the agreement provides as follows:

“The Petitioner shall pay to the Respondent the sum of FIVE HUNDRED DOLLARS ($500.00) per month as maintenance for her support. The first of said payments shall be due and payable on March 1, 1986, and continue on the first day of each and every month thereafter until the Respondent dies, remarries, begins cohabitation with a non-relative adult male, or December 31, 1990, whichever event shall first occur. Upon the Respondent’s death, remarriage, cohabitation with a non-relative adult male, or on December 31, 1990, whichever event shall first occur, the Petitioner’s obligation to pay maintenance to the Respondent shall cease and forever terminate.”

Appellant seeks to terminate the payment of maintenance to the appellee upon the ground that the appellee has cohabited with a nonrelative adult male. The facts are not in dispute. The appellee has established a relationship with a gentleman friend. Although they have engaged in an exclusive sexual relationship, they maintain separate households and reside in separate residences. Each of them pays his own household and living expenses.

The appellee’s friend visits her on a daily basis. Frequently they dine out in the evenings, and he pays for the meals on those occasions. He has purchased a motor vehicle in their joint names because he says that in the event of his death he wishes her to have the vehicle. She has her own bank account and he has opened a *957bank account on which she is permitted to sign checks. She tends to the payment of his bills from this account and claims that she has never used any of his money for her personal expense. She sometimes borrows money from him but always repays it.

He has asked her to marry him, and she has refused because, among other reasons, she does not want to forego the maintenance payments she receives until they terminate automatically on December 31, 1990.

Cohabitation is defined in Black’s Law Dictionary, 5th Edition, as follows:

“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.”

We think the evidence in this case and the facts as found by the commissioner and adopted by the trial court do not establish that the appellee and her friend were living together as husband and wife or that they have mutually assumed the duties and obligations normally assumed by married persons.

They do not live in the same household, and neither of them has assumed an obligation to pay the household bills or personal expenses of the other. They have not moved household furnishings from one house to the other. Although he visits in her home on most evenings, he returns to his own home to spend the night, and they do not engage in sexual relations when her son, who lives with her, is present in the home.

Combs v. Combs, Ky., 787 S.W.2d 260, (1990), has no applicability to this case because the issue in Combs was whether there had been a change in circumstances sufficient to modify maintenance pursuant to K.R.S. 403.250(1). Here the issue is not whether a change of circumstances has occurred but whether there has been “cohabitation” which would automatically terminate maintenance under the terms of the contract.

Whether or not conduct amounted to cohabitation was not an issue in Combs v. Combs, supra, and for that reason that opinion is not of any relevance concerning whether the conduct in this case constitutes cohabitation. The word “cohabitation” as used in Combs, supra, was synonymous with “change of circumstances.”

In addition to the fact that the conduct described herein does not fit within the classic dictionary definition of cohabitation, it also does not comport with the conduct that the appellant and the appellee intended by the word cohabitation as used in their contract. The intention of the parties must be gleaned from the words used by them in the agreement. We note by the terms of their agreement that only cohabitation with a nonrelative adult male would terminate maintenance. Cohabitation with a relative adult male would not terminate maintenance. This leads to the conclusion that the parties were not thinking of cohabitation in terms of sexual relationships because surely the agreement was not meant to condone sexual relations with an adult kinsman. Obviously, the parties intended cohabitation to mean “living in the same house,” and thus living in the same house with an adult male relative would be permitted, whereas living in the same house with an adult male nonrelative would constitute cohabitation and would terminate maintenance.

Under the facts of this case, we conclude that the Court of Appeals was correct in its decision that the appellee did not cohabit with a nonrelative adult male.

The decision of the Court of Appeals is affirmed.

STEPHENS, C.J., and GANT, LEIBSON, VANCE and WINTERSHEIMER, JJ., concur. LAMBERT, J., dissents by separate opinion in which COMBS, J., joins.