It is likely practicably impossible to terminate alimony due to “continued cohabitation” in South Carolina

In January 2013, noting that none of the seven published South Carolina appellate opinions dealing with the issue of “continued cohabitation” had found it existed and therefore terminated alimony, I blogged, “Is there ever sufficient evidence of “continued cohabitation” to terminate alimony?

Seven months later the Court of Appeals finally affirmed a “continued cohabitation” alimony termination in the case of McKinney v. Pedery, 406 S.C. 1, 749 S.E.2d 119 (Ct. App. 2013). Writing at the time:

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.

I further noted:

I suspect the Supreme Court may grant a writ of certiorari if asked. … I remain unconvinced that the alimony obligors’ losing streak on continued cohabitation ends with the Court of Appeals’ opinion in McKinney.

With the August 26, 2015 Supreme Court opinion in McKinney v. Pedery, 413 S.C. 475, 776 S.E.2d 566 (2015), my predictive powers prove greater than my cynicism. The Supreme Court did indeed grant certiorari and did indeed reverse both the family court and the Court of Appeals. The appellate court losing streak for obligors seeking to terminate alimony based on their ex-spouse’s “continued cohabitation” remains intact.

Under section 20-3-130(B)(1) of the South Carolina Code, periodic alimony terminates on the “continued cohabitation of the supported spouse.” S.C. Code Ann. § 20-3-130(B)(1). For purposes of section 20-3-130, “continued cohabitation means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.” S.C. Code Ann. § 20-3-130(B). In McKinney, Ex-husband’s paramour, Hamby, resided with him five days a week. However the other two days she resided with her son.  She maintained enough possessions at her son’s home that she took only an overnight bag with her when going from one home to the other.

As the Supreme Court noted, “During the time in question, Hamby lived at her son’s house in Duncan approximately two days of every week, which means that under a literal interpretation of the statute, Pedery and Hamby could not have lived ‘under the same roof’ for ninety consecutive days.” It rejected the Court of Appeals’ analysis that there the “continued cohabitation” requirement was met because Pedery and Hamby “shared a home on a continuous and uninterrupted basis for substantially longer than ninety days.” It stated that this interpretation “would render section 20-3-130(B) a nullity.”

The Supreme Court further found that Pedery and Hamby did not fall under the exception S.C. Code Ann. § 20-3-130(B) where “the two periodically separate in order to circumvent the ninety-day requirement.” It noted that Hamby’s periodic absences predated the litigation and were designed so she could provide care for her grandchildren. Thus these separations were for a purpose other than to circumvent the alimony statute.

Because the family court failed to address Ex-wife’s request to reduce alimony based upon alleged change circumstances–since the family court terminated alimony, it didn’t need to address the changed circumstance issue–the Supreme Court remanded the matter back to family court to consider this request for a reduction along with Ex-husband’s request for attorney’s fees.

Justice Hearn issued a concurrence, joined by Justice Kittredge, disagreeing with the majority’s opinion that, “If we were to uphold the court of appeals’ analysis, our decision would render section 20-3-130(B) a nullity.” She wrote:

I find this criticism unwarranted, as I believe the opposite is true. In my opinion, the family court and court of appeals’ interpretation attempts to reconcile the language of the statute with the realities of our mobile society. Few people live under the same roof for ninety consecutive days; indeed, I would venture to say that because of their work schedule, none of the members of this Court could be considered to have resided with his or her spouse for ninety consecutive days. While I cannot say that our construction is absurd so as to allow this Court to ignore the plain language, I nevertheless recognize that the practical application of the statute distorts the intent of the General Assembly. As the statute is written, it is virtually impossible to terminate any award of alimony as a result of the continued cohabitation of the supported spouse.

Emphasis added.

The majority opinion responds to this concurrence in footnote 3, and partially agrees with Justice Hearn’s conclusion:

We agree with the concurrence that the plain language of the statute makes it almost impossible for a family court to find continued cohabitation for purposes of section 20-3-130(B) and therefore terminate a supported spouse’s alimony award. Regardless, the language of the statute is a choice made by the Legislature and creates a result to which we are confined, as the plain meaning of section 20-3-130(B) cannot accord with the so-called “common sense application” of the statute.

Emphasis added.

I suspect it will take legislative changes to Section 20-3-130(B) before alimony will be terminated for all but the least careful cohabitants. It is simply too easy to skirt the ninety-day continuous cohabitation requirement.

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