Scott v. ScottScott v. Scott
INTRODUCTION
¶1 Jillian Scott petitions this court to overturn the Utah Court of Appeals’ order affirming the district court‘s conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under
BACKGROUND
¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, “Alimony shall terminate upon the remarriage or cohabitation of [Wife].”
¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabitеd with J.O., her ex-boyfriend. Husband argued that Wife had begun “cohabit[ing] with an adult male . . . on or about February 2011,” that Wife had a relationship with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time.” Wife and J.O. had broken up months before Husband filed his motion. The statutory language1 governing termination of alimony provides that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”
¶4
¶5 Wife appealed and argued to the Utah Court of Appeals that the district court‘s interpretation of the statute failed to account for the present tense of the to be verb “is” in the statute. See
¶6 Husband contended to the court of appeals that Wife‘s statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, “that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife‘s statutory
¶7 The court of appeals disagreed with Wife‘s plain language argument. The court explainеd that “[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute.” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “when the present-tense [to be] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive.” Id. ¶ 32 (internal citation omitted). It reasoned that to read the stаtute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “terminates upon establishment” of cohabitation. Id. (emphasis added);
¶8 The court of aрpeals also reasoned that the legislature “could not have intended” the result Wife‘s briefing described. Id. ¶ 33 (citation omitted). The court acknowledged “that requiring termination of alimony in [Wife‘s] circumstances does not entirely align with the general economic policies underlying alimony.” Id. ¶ 35. “[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not.” Id. But the court explained that
interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature‘s intent.
¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court‘s timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, “because their vacations together before they moved to [California] still retained a temporary quality.” Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife‘s payment to Husband to reflect the dates it found significant. Id. ¶ 38.
¶10 We disagree with the court of appeals’ reading of the cohabitation statute. We instead conclude that thе plain language of
¶11 We have jurisdiction under
STANDARD OF REVIEW
¶12 On certioriari, we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. “We also review questions of statutory interpretation . . . for correctness.” Id.
I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited
¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband‘s argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, “[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved.” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.
¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that
consideration of the [statute] is necessary to a proper decision. As the state‘s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant‘s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.
Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation question.
¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceеdings by requiring a party to advise a trial court of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hopes of enhancing her chances of prevailing on appeal. Thus, we
¶16 This case does not present the normal situation. We are not asked to address an issue that a party is raising for the first time on appeal. Rather, we are asked to address an issue that the court of appeals determined it nеeded to resolve, even if it were unpreserved.
¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in the trial court. See Record, passim. Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of appeals should not have touched the unpreserved issue in the first place.
¶18 We have the ability to affirm a decision on any ground apparent on the record. “[I]t is well established that an appellate court may affirm” a judgment “if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002 UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a court of appeals ruling where that court erroneously addressed an unpreserved issue.
¶19 That is not to say, however, that an appellee may simply flag the preservation problem and expect that we will exercise our discretion to ignore the court of appeals’ decision and affirm for a lack of preservation. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in the matter, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals erred in tackling the unpreserved issue and that the error is
¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the Cohabitation Provision should be interpreted. The court of appеals believed that even if the statutory argument was not preserved, it needed to construe the statute to properly resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in Patterson. But in the absence of parties willing to develop those arguments, we are reluctant to wade in on our own. Simply stated, the decision to affirm on other grounds lies in this Court‘s discretion and Husband has provided us little reason to exercise that discretion on the record before us.
¶21 As we previously stated, the resolution of this case turns on what the definition of is is.
alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.
(Emphasis added). Wife argues—both to us now and previously to the court of appeals—that the statute‘s use of “is” requires that cohabitation be ongoing to terminate alimony under the plain language of the rule.5 She contends that the court of appeals erred
¶22 When we interpret statutes, “our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).
Since “‘[t]he best evidence of the legislature‘s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” In so doing, “[w]e presume that the legislature used each word advisedly.” . . . When we can ascertain the intent of the legislature from the statutory terms alone, “no other interpretive tools are needed,” and our task of statutory construction is typically at an end.
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals’ opinion no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.
¶23 We believe the court of appeals erred in reading less into the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense—‘has cohabited‘—which would have ‘denote[d] an act, state, or condition that is now completed or continues up to the
the strongest statutory support for Wife‘s interpretation of the [statute] is the use of the present-tense “is.”
Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for Wife‘s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon establishment “that the former spouse is cohabitating with another person.”
¶24 A statutory reading that credits a verb‘s tense is not uncommon. Our own court of appeals relied on similar reasoning in Prows v. Labor Commission: “Typically, we understand ‘is’ as a present-tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise. See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a statute according to the “present perfect tense“). And Utah is in good company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.‘” (omission in original) (quoting
¶25 The court of appeals reached a contrary conclusion reasoning that the Cohabitation Provision immediately follows the Remarriage Provision and that “[i]t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financiаl support.‘” Scott, 2016 UT App 31, ¶ 29 (citation omitted). Viewing the statute through the prism of the statute‘s purported purpose, the court of appeals concluded that its reading would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.
¶26 The court of appeals noted that the only significant difference between
¶27
¶28 Both Husband and the court of appeals invoke the absurdity doctrine without calling it by name. The absurdity doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley, 2016 UT 48, ¶ 27.
[T]his court will not apply the absurdity doctrine unless “the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” This stаndard is satisfied only if the legislature could not reasonably have intended the result.
Id. ¶ 28 (second alteration in original) (omission in original) (citations omitted). We concede that the legislature could have intended a different result—in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome—but we do not believe that the result the plain language dictates is absurd, let alone “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” Id. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result.8
¶29
¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The рresent tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends upon the state of things at time of the action brought.’ . . . [The time-of-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.“) (citations omitted); Int‘l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus“); Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney‘s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context);
¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized, i.e., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple who has been warned a paying spouse is planning to move to terminate alimony could choose to stop cohabiting to avoid the termination. And, if that occurs, the continued payment of alimony would square with the policy behind alimony. See Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] from
II. Wife Is Not Entitled to Attorney Fees in Defending Husband‘s Petition to Terminate Alimony
¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under
CONCLUSION
¶33 We conclude that
Notes
Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379 P.3d 1183 (Utah 2016). On certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree‘s language.The parties’ decree of divorce differs from the language contained in Utah Code section 30-3-5(10). . . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ decree is substantively identical to the statute on the issue of cohabitation.