As noted in a blog earlier this year, I have despaired that our South Carolina appellate courts would ever find the requisite “ninety or more consecutive days” of “continued cohabitation” to terminate alimony pursuant to S.C. Code § 20-3-130(B) and § 20-3-150. In seven previous reported decisions alimony obligors had always failed in their attempts to terminate alimony on this basis.
An August 14, 2013 Court of Appeals decision in the case of McKinney v. Pedery may–and I mean may–finally end this losing streak for alimony obligors. In McKinney the Court of Appeals upheld the family court’s determination that ex-husband was, as defined by these statutes, engaged in “continued cohabitation” with his girlfriend and terminated his alimony.
In McKinney ex-husband’s girlfriend was spending every Wednesday afternoon through Monday morning at his house but spending every Monday morning through Wednesday afternoon at her son’s house taking care of her grandchildren. This went on for at least seven months: ex-wife, at what must have been considerable expense, had a private investigator go to ex-husband’s house daily during this time period. The issue was whether the girlfriend spending only five days each week with ex-husband for a period of seven months was “continued cohabitation.”
Two of the three members of the Court of Appeals panel believed this met the statutory requirement. Judge Konduros dissented, believing the girlfriend’s weekly two-day stay with her son prevented there from being cohabitation ninety or more consecutive days.
As a cynic I note that the seven previous times our appellate courts rejected the continued cohabitation finding it was a husband trying to terminate an ex-wife’s alimony, while here it was a wife trying to terminate her ex-husband’s alimony. Alimony awards remain one of the last bastions of sexism in our family courts. Yet I suspect the Supreme Court may grant a writ of certiorari if asked. Under SCACR 242(b)(2) one of the factors the Supreme Court uses in deciding whether to grant certiorari is when, as here, “there is a dissent in the decision of the Court of Appeals.”
Another strong basis for granting certiorari is “[w]here the decision of the Court of Appeals is in conflict with a prior decision of the Supreme Court.’ SCACR 242(b)(3). There is some argument that language from the Supreme Court’s opinion in Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) directly conflicts with the holding in McKinney. In Strickland, the Supreme Court interpreted continued cohabiting as a “requirement that the supported spouse live under the same roof as the person with whom they are romantically involved for at least ninety consecutive days.” Here no party argued, and no judge found, that ex-husband and his girlfriend were ever under the same roof for ninety consecutive days. The broad reading of cohabitation in McKinney may conflict with the more narrow reading in Strickland.
Thus I remain unconvinced that the alimony obligors’ losing streak on continued cohabitation ends with the Court of Appeals’ opinion in McKinney.