The March 16, 2011 Court of Appeals opinion in Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct.App. 2011), continues the trend of the South Carolina appellate courts to interpret “cohabitation” strictly against an obligor seeking to terminate alimony. South Carolina law terminates alimony “upon the … continued cohabitation of the supported spouse…” S.C. Code Ann. § 20-3-150. Continued cohabitation occurs when “the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.” S.C. Code Ann. § 20-3-150(B). The family court can terminate alimony if it determines the supported spouse was cohabitating with someone in a romantic relationship for less than ninety days if the pair separated periodically for purposes of circumventing the ninety-day requirement. Id.
In Biggins, Ex-Husband hired numerous private investigators to document that Ex-Wife was cohabiting with a boyfriend. However, the evidence showed that Burdette and her boyfriend spent no more than sixty to seventy-two nights together, although they may have been in a relationship for more than ninety days, and those nights were not consecutive. The family court also noted boyfriend maintained his own residence during the relationship and did not receive mail at Burdette’s home or use that as his address. The family court concluded the pair had not continually cohabitated and separated only to circumvent the statute but had lived apart and met for romantic rendezvous. The Court of Appeals further noted the boyfriend’s testimony showed that Burdette and her boyfriend separated to protect her reputation. Thus any breaks in cohabitation were for reasons other than to circumvent the statute.
In affirming the family court’s determination not to terminate alimony, the Court of Appeals noted four recent appellate decisions which found continued cohabitation wasn’t established because the supported spouse and romantic companion either had separate residences or didn’t cohabit for ninety consecutive days. Eason v. Eason, 384 S.C. 473, 482, 682 S.E.2d 804, 808 (2009) (finding no bar to alimony when ex-wife and boyfriend may have resided together for periods of two to four weeks but never for a continuous period of ninety days); Fiddie v. Fiddie, 384 S.C. 120, 126, 681 S.E.2d 42, 45 (Ct. App. 2009) (holding ex-wife did not continually cohabitate with a man when she lived with him sometimes but also stayed with her sister and friend several days each month so as to not “wear out her welcome”); Feldman v. Feldman, 380 S.C. 538, 544, 670 S.E.2d 669, 671-72 (Ct. App. 2008) (affirming family court’s finding of no continued cohabitation when ex-wife and boyfriend were not observed living together for ninety days and when ex-wife’s friends and family testified she lived alone); Semken v. Semken, 379 S.C. 71, 77, 664 S.E.2d 493, 497 (Ct. App. 2008) (reversing family court’s termination of alimony because evidence did not demonstrate ex-wife and boyfriend lived under the same roof for ninety consecutive days).
The trend of Biggins and these four recent cases indicate that continued cohabitation to terminate alimony is unlikely to be found unless the supported spouse and the romantic companion are actually sharing a residence–as opposed to sharing a bed–and doing so for a period greater than ninety days.
In losing his case, Biggins was ordered to pay Burdette’s attorney’s fees of $126,797.30. Biggins challenged this award on appeal on numerous grounds. One novel argument was based on a general theory that Biggins had reason to believe Burdette was cohabitating with boyfriend and was therefore justified in bringing the action. Biggins cited no authority to support this argument and failed to challenge Burdette’s attorney fee affidavit. One those bases, the Court of Appeals rejected this argument and affirmed the fee award.
Family court attorneys often think they are being “collegial” when they accept the opposing attorney’s fee affidavit into evidence without challenge. However, as Biggins demonstrates, doing so makes it extremely difficult to argue on appeal that a fee award is excessive.