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Chopin v. Chopin - 6/3/2010

Arizona Court of Appeals Division One Holds That Definition of “Romantic Cohabitation,” As Used in Spousal Maintenance Agreement, Includes a “Physical Living Together.”


As part of their divorce in February 2007, Husband and Wife entered into a spousal maintenance agreement that stated, among other things, that spousal maintenance would terminate “upon Wife’s remarriage or romantic cohabitation” with another.  Starting in January 2007, Wife started a romantic relationship with Waddell; they were engaged in January 2008, but the relationship ended in December 2008.  After a hearing, the trial court found that Wife and Waddell were romantically cohabitating and terminated the spousal maintenance as of January 1, 2008.  Wife appealed.

In a unanimous opinion, the Court of Appeals reversed the termination of spousal maintenance. Relying on the parties’ testimony at the trial court and dictionary definitions of “romantic cohabitation,” the Court accepted the trial court’s conclusion that “romantic cohabitation” includes a financial support requirement and means “living together and behaving as a married couple.”

The Court reversed because the trial court failed to apply the “living together” requirement to Wife and Waddell.  Instead, in the Court’s view, the lower court inappropriately considered any living arrangement a married couple might engage – including not living at the same residence –as a “romantic cohabitation.”  In the Court’s view, this stripped the word “cohabitation” of meaning.  The Court reasoned that cohabitation can be determined by looking to many factors but that a “physical living together” is indispensable.

Finally, the Court applied its definition to Wife and Waddell.  Evidence showed that Waddell stayed at Wife’s home approximately one day a week, that he did not keep his things at Wife’s home, and did not receive mail there.  On that record, the Court held that Wife and Waddell never lived together and thus were not “romantically cohabitating.”  Consequently, the Court reversed the termination of Wife’s maintenance.

Judge Barker authored the opinion; Judges Winthrop and Johnsen concurred.

PRACTICE NOTE:  Wife asked the trial court for attorney’s fees in connection with Husband’s petition to terminate.  The Court deemed the request denied because the trial court did not rule on the request.  On appeal, Wife asserted that the denial was in error because of the difference in income between Husband and Wife.  The Court held this argument was waived because Wife did not assert a statutory basis for her fee request.  The Court further held that the denial would be affirmed in any event because Wife did not support her request with any evidence of Husband’s financial status.

Posted By: Joseph N. Roth

Posted On: 6/22/2010