Scott v. Scott, 2017 UT 66

Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. The decree provided alimony ($6,000/month for 25 years) and stated alimony terminates upon the former spouse’s remarriage or cohabitation.
In 2011 Husband moved to terminate alimony, alleging Wife had cohabited with her ex-boyfriend J.O. from approximately February 2011; the relationship had ended months before Husband filed the motion.
The district court found Wife and J.O. had cohabited and ordered Wife to repay alimony from December 22, 2010 onward.
On appeal the Utah Court of Appeals affirmed, interpreting Utah Code § 30-3-5(10) to allow termination based on past cohabitation (reading “is cohabitating” to permit proof that the spouse had been cohabiting at an earlier time).
The Utah Supreme Court granted certiorari to resolve whether the present-tense phrase "is cohabitating" requires ongoing cohabitation at the time the paying spouse files to terminate alimony, and to address preservation and attorney-fee issues.

Issue	Plaintiff's Argument (Scott)	Defendant's Argument (Scott)	Held
Whether § 30-3-5(10) requires ongoing cohabitation at time of filing	"Is cohabitating" is present tense; alimony terminates only if cohabitation exists at filing	Statute should be read in context to allow termination based on established past cohabitation; practical concerns justify reading "is" more broadly	Court held the statute requires present/ongoing cohabitation at time of filing; reversed lower court’s cohabitation-based termination because Husband did not meet that burden
Whether the Court of Appeals could resolve an arguably unpreserved statutory argument	Preservation preserved by prior briefing; plain-language issue was presented on appeal	Husband argued Wife failed to preserve the present-tense argument, so appeals court should not have reached it	Court explained appellees must meaningfully explain why review of an unpreserved issue should be declined; here it was not apparent the Court of Appeals erred in reaching the issue, so Supreme Court addressed the merits
Whether defending a motion to terminate alimony permits fee award under Utah Code § 30-3-3	Fees statute applies only to actions to establish or enforce alimony orders, not to defend a termination motion	Husband sought no fees; statute doesn’t cover defense of termination actions	Court held § 30-3-3 does not authorize attorney fees for defending a petition to terminate alimony

Patterson v. Patterson, 266 P.3d 828 (Utah 2011) (discussing when appellate courts may reach unpreserved statutory issues)
Nichols v. Jacobsen Constr. Co., 374 P.3d 3 (Utah 2016) (standard of review for Court of Appeals decisions on certiorari)
Bagley v. Bagley, 387 P.3d 1000 (Utah 2016) (primary rule to ascertain legislative intent from plain statutory language)
Carr v. United States, 560 U.S. 438 (2010) (use of verb tense aids statutory temporal interpretation)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (statutory tense indicates temporal reach)
First Equity Fed., Inc. v. Phillips Dev., L.C., 52 P.3d 1137 (Utah 2002) (appellate courts may affirm on any ground apparent in the record)