Opinion
Case No. 20030987-CA.
Filed June 23, 2005. (Not For Official Publication).
Appeal from the Eighth District, Roosevelt Department, 004000114, The Honorable John R. Anderson.
Lorie D. Fowlke and Donald E. McCandless, Provo, for Appellant.
Clark B. Allred and Clark A. McClellan, Roosevelt, for Appellee.
Before Judges Billings, Bench, and Orme.
MEMORANDUM DECISION
Petitioner Kenneth D. Sursa appeals the district court's order of dismissal. Utah Code section 30-3-5(10) provides "[a]ny order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person." Utah Code Ann. § 30-3-5(10) (Supp. 2003). Kenneth argues that he established a prima facie case of cohabitation, and therefore, the district court erred by finding that "[t]he facts did not meet either the residency or the sexual relationship requirements, required by the case law to establish cohabitation." "Whether dismissal was appropriate for failure to make a prima facie case is a question of law reviewed for correctness." Grossen v. Dewitt, 1999 UT App 167, ¶ 8, 982 P.2d 581. Where the district court did not make factual findings, we consider the evidence in the light most favorable to Kenneth.See, e.g., Davis v. Payne Day, Inc., 10 Utah 2d 53, 348 P.2d 337, 338 (1960); Utah R. Civ. P. 41(b) and 52(a).
Kenneth asserts that his ex-wife, Respondent Karen J. Sursa, is sharing a common residence, the first element of cohabitation, with Dane Gerkin. Common residency is "the sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time." Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). Utah courts have considered various factors to determine whether a couple shares a common residence. These factors include: open access to the residence, possession of a key, time spent at the residence, using the same furniture, keeping clothing and toiletries at the residence, presence of vehicles, shared living expenses, and "otherwise liv[ing] as though they were husband and wife." Sigg v. Sigg, 905 P.2d 908, 918 (Utah Ct.App. 1995); see also Pendelton v. Pendelton, 918 P.2d 159, 160-61 (Utah Ct.App. 1996). Applying law to the facts, we conclude that Kenneth did not establish that Karen and Gerkin were residing together.
First, Kenneth presented evidence that Karen and Gerkin spent a lot of time together, particularly at Gerkin's house. The court in Haddow, 707 P.2d at 673, noted that "Mr. Hudson spent a substantial amount of time at appellant's home," but "focused on whether Mr. Hudson traveled freely in and out of [the] home."Pendelton, 918 P.2d at 160 (citing Haddow, 707 P.2d at 673). "The two determinative facts were that Mr. Hudson had no key to the house and that he did not spend time there when Ms. Haddow was away." Id. (citing Haddow, 707 P.2d at 673). The court reasoned that "these circumstances seem particularly significant on the question of whether Mr. Hudson was living with appellant, since a resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting." Haddow, 707 P.2d at 673. In this case, as inHaddow, Karen spent a substantial amount of time at Gerkin's house; however, there is no evidence that Karen had a key nor that she spent time at Gerkin's house while he was not present.
Second, the presence of portable possessions may be regarded as some evidence of residency, though it is not dispositive. See Pendleton, 918 P.2d at 160. The facts show that Sammy, Karen's daughter, observed Karen's purse, cigarettes, keys, blanket, shoes, and a few articles of clothing while visiting her mother at Gerkin's house. However, she also testified that she observed Karen's furniture and toiletries in place at Karen's house in Cedar View. In Haddow, "Mr. Hudson did not move any furniture into appellant's home or keep there any personal items other than toiletry articles, a few items of clothing . . . and one picture album," items similar to those in this case. Haddow, 707 P.2d at 673. The court "fail[ed] to see any determinative significance in the presence of any one or all of these portable items in appellant's residence." Id.
Finally, Kenneth asserts that Karen and Gerkin shared living expenses and assets. The sharing of living expenses is not a requisite element of residency. See id. at 673. However, it can "be indicative of maintaining a shared household and be regarded as some evidence of residency." Pendleton, 918 P.2d at 160. Though the sharing of assets is not important in a general sense "it may indeed be relevant if one party pays the other's mortgage, the insurance on his or her house, or the utility bills — actions which would be quite atypical for a mere visitor."Id. at 161.
The facts reflect a few indications of shared expenses and assets. It is undisputed that Gerkin had access to Karen's truck, particularly once her licence was revoked. However, Karen alone made the payments on the truck, and there is no evidence in the record that she considered her truck the property of Gerkin.See Haddow, 707 P.2d at 674. Sammy testified that Karen paid Gerkin's satellite TV bills and one electric bill, which could constitute shared living expenses. However, when considering that there is no evidence that Karen had a key nor that Karen was present at the house when Gerkin was not, and that she kept only insignificant items at his house, the payment of these bills does not equate to common residency. See Pendelton, 918 P.2d at 160 (stating that although shared living expenses may be regarded as some evidence of residency it is not dispositive).
Where Kenneth did not establish a common residency, there was no cohabitation. We therefore do not need to discuss the element of a sexual relationship. We affirm, and award Karen the attorney fees she has incurred on appeal. See Hall v. Hall, 858 P.2d 1018, 1027 (Utah Ct.App. 1993) ("Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal." (quoting Lyngle v. Lyngle, 858 P.2d 1027, 1031 (Utah Ct.App. 1992))).
WE CONCUR: Judith M. Billings, Presiding Judge, Gregory K. Orme, Judge.