Opinion
File No. CK16-16030
09-08-2017
G----------- C-------------, Petitioner, v. L--------- C-------------, Respondent.
JAMES G. MCGIFFIN, JR. JUDGE
Petition No. XX-XXX
ANCILLARY ORDER
Temporary & Permanent Alimony
On August 23, 2017, the Court was scheduled to convene on the ancillary matters to the divorce of G----- C---------- and L------- C----------. The parties advised the Court they had settled on all issues but alimony and presented to the Court an executed stipulation to that effect.
The Court entered an interim alimony Order on March 28, 2017. The parties agreed to use this hearing time to address Husband's opposition to the Alimony Order, based on his claim that Wife is regularly residing with another adult and that Wife and the other adult hold themselves out as a couple. This is the Court's decision on Husband's "cohabitation" defense to the alimony obligation.
The Court received evidence from Wife, R----- H---------- (the alleged paramour) and from C---- E----- C----------, the 19-year-old daughter of the parties.
This is my summary of the testimony. Wife and her adult son were living in a rental unit after she left the marital home. She was evicted from the rental unit at the end of October 2016. About six months prior to that event, Wife met R------- H-----'s through an internet dating site. Their relationship was romantic in nature. According to Wife, upon eviction, she moved to the home of some friends for about two months and then moved into two homes, where she now stays. She occupies H-----'s home and the home of H-----'s sister (B--- M-------), at their invitation, spending time in each home. H-----'s testimony suggests he was confused about the sequence of events. He could not recall when he and his sister opened their homes to Wife and her son. The other major discrepancy in the testimony of these witnesses is about the time Wife spends in the two homes. Wife's version is that she spends an average of three nights each week at H-----'s home and the balance of the week at H-----'s sister's home. H----- reports that Wife she spends one or two weeks with H----- and then three weeks with H-----'s sister.
Wife and H----- agree that their relationship ceased to be a romantic one simultaneous with Wife's decision to split her time between the H----- and M------ homes. They both testified that they stopped engaging in sexual relations.
C---- testified that she has visited Wife in the H----- home about 5 times since January 2017. She observed that Wife kept a bedroom in the H----- home. She also indicated that she believed Wife and H----- are a couple, though Wife has not characterized H----- as a "boyfriend" in her conversation with C----.
H----- pays for Wife's cell phone and car insurance, and he registered her car in his name for insurance purposes. Wife does not pay rent at either home, but she contributes to utility expenses at H-----'s home and does some housekeeping to otherwise contribute to the M----- home. She has little money, as she receives general assistance from the State of Delaware in the paltry amount of $79 each month. Wife does not use the H----- or M------- street addresses as her own address, but uses a Delaware post office box.
The alimony statutes direct that the obligation to pay alimony terminates upon the cohabitation of the party receiving alimony. The term "cohabitation" means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. It is Husband's burden to show that Wife is cohabiting with another. "Regularly residing" means "living together with some degree of continuity, as though . . . husband and wife."
Id.
Sowers v Sowers, 1988 WL 113311 (Del. Oct. 3, 1988).
Andrews v Andrews, Del. Supr., 16 A.3d 937 (Table) (2011), 2011 WL 1380010.
The evidence adduced indicates that Wife frequently spends time, including overnight time, in H-----'s home. Viewing the evidence in a light most favorable to Husband, I conclude that Wife spends an average of three nights each week at H-----'s home. But Wife does not spend the balance of her nights in her own home. She is homeless since her late October eviction. The evidence indicates that Wife spends an average of four nights each week in the M------ home.
There are decisions on this question where the Court found that the alimony recipient was "regularly residing" with an intimate partner even when the couple spent the night together less than half the time. In Hubbs v. Hubbs, Judge Conner found that Wife's paramour spent in Wife's home "the majority of the time that he is not working." A similar finding is not supported by the evidence in this case. Similarly, in Paul v. Paul, where the paramour spent two to four nights each week at Wife's home, the Delaware Supreme Court put more weight on paramour's behaving "like someone who lives at Wife's house." He possessed a key to the house, took out the garbage, did yard work and showed a painter around the house. The case at bar has no similar evidence. I find that Wife's history does not indicate that she "regularly resides" with H-.
1993 WL 331916 (Del. Fam. May 4, 1983).
60 A.3d 1080, (Del. 2012).
Id. At 1083.
Id. --------
The parties also dispute whether Wife and H----- hold themselves out as a couple. This issue of fact does not require resolution, as Husband has failed to prove the other element of cohabitation.
Husband's application to terminate alimony is DENIED.
IT IS SO ORDERED this 8th day of SEPTEMBER, A.D. 2017.
/ JAMES G. McGIFFIN, JR. /
JAMES G. MCGIFFIN, JR., JUDGE JGM/ksw cc: Edward Curley
Stephan Holfeld