OPINION
In this appeal, arising from a suit for breach of an agreement incident to divorce, we must decide whether the trial court submitted to the jury a proper definition of the term “cohabitate.” Because we believe the definition was improper, we reverse and remand.
Factual and Pkocedural Background
Pursuant to an agreement incident to divorce, Dennis Allen agreed to pay Joanne Allen $1,100 per month from October 1989 through February 2009; however, his obligation would terminate if one of several enumerated events occurred, including Joanne’s cohabitation with another man. Joanne received no payment from Dennis after September 1991 and subsequently brought suit to collect damages for Dennis’ breach of their agreement. At trial she introduced the agreement, along with evidence showing Dennis owed her $67,100 under their agreement. Dennis took the position that he no longer owed Joanne any money under then-agreement because she cohabited with another man, and he elicited testimony pm-porting to support his contention.
The evidence at trial showed Joanne had been involved in two, sequential romantic relationships since her divorce. Joanne had a sexual relationship with both of the men, who spent the night with her, although not every night. The first man with whom Joanne was involved kept his lawnmower, some tools, and a picnic table at Joanne’s house, and brought a change of clothes with him when he stayed overnight. He paid rent on an apartment in another city, and he and Joanne visited each other. The second man kept a lawnmower at Joanne’s house, did her yard work, loaned her a refrigerator which she kept in a storage room, occasionally bought groceries for meals cooked together, slept at her house almost every weekend, and brought a change of clothing with him when he stayed overnight. He listed his mother’s house as his address of record while he was having a house built. Neither of these men shared living expenses or financial resources with Joanne.
The parties discussed the jury charge with the court at a bench conference. Dennis tendered a proposed jury charge defining “cohabitate.” Joanne objected to the legal accuracy of this definition and offered an alternative as found in a legal dictionary. The trial court overruled Joanne’s objection and included Dennis’ definition in its jury charge. 1 The jury found Joanne had cohabited with another man, and the trial court entered a take nothing judgment in favor of Dennis.
Standard and Scope of Review
We review the trial court’s decision to submit an explanatory instruction or definition with the abuse of discretion standard.
See Plainsman Trading Co. v. Crews,
However, where the trial court actually provided the jury with a definition, the inquiry on appeal is whether the definition is “proper.”
See Oadra v. Stegall,
*660
A trial judge provides jurors -with definitions to assist them in answering questions and rendering a verdict.
Harris,
If we determine the trial court gave an improper definition, we then proceed to inquire whether the error was harmless. TexRApp. P. 44.1(a)(1);
Brummerhop,
Argument and AuthoRities
The test of the propriety of a definition is “the reasonable clearness of the definition[ ] to enable jurors to understand the word.”
Gulf Ins. Co. v. Vela,
Joanne argues the trial court erred in concluding the following definition was proper:
As used here, the term “eohabitate” does not require living together, claiming to be married, in the relationship of husband and wife. It can include an irregular, limited, or partial living together for the purpose of having sexual relations.
She contends the submitted definition finds no support in Texas law and suggests a proper definition was at the trial court’s disposal as contained in
Kurtz v. Jackson,
The agreement in
Kurtz
provided that the ex-husband would collect the lien on a residence “upon sale, transfer or trade of the residence or cohabitation by Wife” but gave no definition of cohabitation pertaining to that provision.
The
Kurtz
court consulted dictionary definitions in arriving at its own.
Dennis replies that the court used a proper definition as derived from
McArthur v. Hall,
An irregular, limited, or partial cohabitation is not sufficient to create a presumption in favor of marriage. It must be continuing and complete and such as is usual between persons lawfully married.
We believe the definition posed in this case was not reasonably clear, especially when no definition was required at all; that is, “cohabitation,” as used in the Allens’ agreement, was unambiguous and readily comprehensible by the jury. Rather than inform the jury of what “cohabitation” is, however, the submitted definition tells the jury what the term “does not require” and what it “can include.” The one proposed by Dennis and adopted by the court is not proper because it binds the jury to the court’s own creative definition, rather than what the jury would ordinarily understand the parties to mean. The disputed definition is confusing and misleading, potentially causing a jury to characterize as “cohabitation” any number of situations falling outside the ordinary meaning of the word. In particular, we do not believe “cohabitation” would encompass, without more, situations involving a frequent overnight guest or someone who stores personal property at someone else’s home. For these reasons, we believe the error was harmful, amounting to such a denial of the rights of the complaining party that it probably caused the rendition of an improper judgment.
Conclusion
Because we sustain the sole point of error before us, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.
Notes
. Neither party takes issue with whose burden it was to tender the definition.