Levin v. Carlton-Levin
318 P.3d 1177
Utah Ct. App.2014Background
- Divorce finalized in 2007; alimony set for 14 years 3 months with a two-tier schedule depending on remarriage or cohabitation.
- Decree required $15,000 monthly alimony for five years, then potential reduction to $7,500 and termination in 2017 if cohabitation/remarriage occurred.
- Husband suspected Wife was cohabiting with Page Tucker at Wife's Grand Junction home starting in 2008; he hired a private investigator in 2009 to track movements.
- GPS data showed Tucker's Explorer parked at Wife's home 51 of 52 tracked nights and moved regularly, with movement patterns suggesting shared residence.
- Wife and Tucker admitted misleading affidavits about Explorer usage; trial court rejected their explanations and found the couple cohabiting.
- Trial court concluded Wife and Tucker were cohabiting under Utah Code § 30-3-5(10) and ordered alimony reductions; Wife appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was cohabitation under § 30-3-5(10). | Wife argues evidence does not establish marriage-like cohabitation. | Levin contends evidence shows shared residence, intimate relationship, and common household. | Yes, cohabitation established; findings supported by the hallmarks of cohabitation. |
| Adequacy of evidence given surveillance period. | Wife argues the observation period was too short to prove permanency. | Husband relies on totality of evidence beyond 52-day window. | Totality of evidence supports the court's conclusion beyond the short window. |
| Attorney fees on appeal. | Wife's bankruptcy impacts recoverability; fees should not be awarded on appeal. | Prevailing party entitled to reasonable appellate fees; accounting needed for bankruptcy impact. | Remand for calculation of appellate attorney fees, subject to bankruptcy considerations. |
Key Cases Cited
- Myers v. Myers, 266 P.3d 806 (Utah 2011) (identifies marriage-like cohabitation hallmarks and fact-intensive inquiry)
- Haddow v. Haddow, 707 P.2d 669 (Utah 1985) (cohabitation requires marriage-like permanence, not mere visitation)
- Cox v. Cox, 285 P.3d 791 (Utah Ct. App. 2012) (framework for evaluating marriage-like cohabitation)
- Jensen v. Jensen, 178 P.3d 228 (Utah Ct. App. 2007) (standard of review for trial court findings of fact)
- Kimball v. Kimball, 217 P.3d 733 (Utah Ct. App. 2009) (credibility and deference to trial court as fact-finder)