A published appellate opinion that might finally terminate alimony based upon continued cohabitation–finally

Posted Monday, April 8th, 2019 by Gregory Forman
Filed under Alimony/Spousal Support, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

When, in 1990, South Carolina enacted its current alimony statute, S.C. Code § 20-3-130, it provided three grounds to automatically terminate permanent periodic alimony: 1) either party’s death; 2) the supported spouse’s remarriage; and 3) the “continued cohabitation” of the supported spouse. The statute further defined continued cohabitation as:

the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

Obviously it’s clear when a party dies or the supported spouse remarries. Proving continued cohabitation has proven more difficult. Through 2013, no reported South Carolina case affirmed the termination of alimony based upon this ground. Finally, that year, the Court of Appeals affirmed such termination in the case of McKinney v. Pedery, 406 S.C. 1, 749 S.E.2d 119 (Ct.App.2013). Yet, two years later, the Supreme Court reversed the Court of Appeals and found that such continued cohabitation had not been proven. In her concurrence, Justice Hearn noted, “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.” McKinney v. Pedery, 413 S.C. 475, 776 S.E.2d 566, 574 (2015). Thus it seemed the appellate court might never approve an alimony termination on this basis.

The April 3, 2019 Court of Appeals opinion in Moore v. Moore, 427 S.C. 26, 828 S.E.2d 224 (Ct. App. 2019), may finally be the published case in which alimony is terminated based upon continue cohabitation. In Moore, the parties reached an agreement in 2003 setting Husband’s alimony at $3,800 per month. They reached another agreement in 2011 reducing Husband’s alimony obligation to $3,250 per month based upon his reduced income.

In 2013 Husband filed a second alimony modification action, seeking to terminate his obligation based upon Wife’s continued cohabitation or reduce his obligation based upon further reduced income. At trial, the family court refused to terminate Husband’s obligation but reduced it to $2,250 per month and required him to contribute $10,000 towards Wife’s attorney’s fees. Both parties then filed motions to alter or amend and the family court reduced Husband’s obligation to $1,800 per month. Both parties then appealed.

On appeal, the Court of Appeals terminated Husband’s alimony obligation because it found he had proved continued cohabitation. The evidence cited by the Court of Appeals to substantiate this finding:

• One of the parties’ daughters, Stephanie Brown, testified that she believed Wife was living with her current boyfriend, Scott Erickson, and that Wife had put pressure on her not to testify.

• Another of the parties’ daughters, Lauren Kott, testified that she was at Wife’s house almost daily from March to July, 2013, that Wife and Erickson were living together, and that Wife and Erickson “strategically planned nights apart so they were not together for 90 consecutive days.” Kott also testified to Wife’s attempts to hide this cohabitation from Husband, including having Erickson provide funds to Wife’s sister that was then provided to Wife so that it would not look like Erickson was contributing to Wife’s household expenses. This daughter also noted Wife put pressure on her not to testify.

• Erickson testified that he had a key to Wife’s home, was involved in a romantic relationship with Wife, and that many of his and some of his son’s items were at Wife’s home. While he denied living with Wife, he noted that if his testimony had any impact on Wife’s alimony, it would create a conflict in his relationship with Wife.

• Wife’s ex-fiancé, Andy Cromer, testified that he and Wife began living together in 2004 or early 2005. He testified he and Wife were living together when Husband filed an action to terminate alimony in 2009, and they lived together until the summer of 2011. He testified that during his deposition, he gave vague answers because he was engaged to Wife and did not want to hurt her case against Husband. Wife told Cromer she did not want to get a full-time job because Husband should have to take care of her. Cromer said he and Wife had conversations about the 90-day rule, and Wife was well-versed in the South Carolina family court guidelines.

• Brown further testified Wife told her “she knew she had to stay somewhere when she was with [Cromer], that she could not stay at his house 90 consecutive days because that was in their original divorce agreement.” Brown testified that her perception was Wife lived with Cromer because she had things at his house, she was always there when she called, and they had family functions at his house.

The Court of Appeals noted Wife’s relationship with Cromer was relevant to show Wife’s pattern of separating to avoid the 90-day rule. In terminating Wife’s alimony, the Court of Appeals held,

While it is true Husband did not present proof that Wife cohabitated with a paramour for a continuous period of 90 days, contrary to the family court we find he did present testimony that Wife intentionally separated from Erickson to avoid the 90-day requirement. After our de novo review, we find substantial evidence was presented in this case that Wife had a history of living with her boyfriends and separating to avoid the 90-day rule.

Because it terminated Wife’s alimony, the Court of Appeals did not address Wife’s argument that her alimony should not have been reduced. It also reversed Wife’ s award of attorney’s fees and remanded the matter back to the family court to address both parties’ claims for attorney’s fees. It further remanded Husband’s request for reimbursement of alimony he paid after Wife’s continued cohabitation began.

While McKinney notes how hard it is to prove continued cohabitation, Moore may be the case that demonstrates it is possible. Certainly Wife’s attempts to evade the 90-day rule coupled with her attempts to have witnesses either not testify or be deliberately vague and evasive in their testimony, leads to a conclusion that Wife was not credible in her testimony regarding cohabitation and that if there was not 90 days of continued cohabitation it was simply because Wife was periodically separating to circumvent the rule.