Facts: Husband and Wife divorced after 24 years of marriage. Their marital dissolution agreement awarded Wife alimony in futuro of $10,000 per month, which would “automatically terminate upon [the] death of either party or remarriage or cohabitation with a paramour of Wife.”

The MDA also gave Wife exclusive use of the marital residence until it was sold, at which time the net proceeds would be distributed $115,500 to Wife and the remaining portion divided equally.

A year after their divorce, Wife and her boyfriend formed a general partnership to purchase a home on Hickory Valley Road. Their plan was:

• Wife would use the proceeds from the sale of the marital residence to buy out her boyfriend’s interest in the partnership, or
• Wife and her boyfriend would renovate the Hickory Valley home and sell it for profit.

The marital residence eventually sold a year later but for over $1 million less than anticipated. Because of this, Wife and her boyfriend dissolve the partnership, conveyed the Hickory Valley home to themselves, and entered into an ownership agreement. Wife moved into the Hickory Valley home.

Several years later, Husband petitioned to terminate alimony because Wife cohabited with her boyfriend. While this litigation was pending, Wife and her boyfriend married in December 2017.

After a three-day trial, the trial court concluded that while, before their marriage, Wife and her boyfriend had dinner together more often than not, traveled and attended social events together, celebrated holidays and special occasions together, and professed their love for one another, they spent only one to two nights per week together. Wife’s boyfriend maintained his own home and did not have unfettered access to Wife’s home. The trial court further found that Wife continued to need alimony, and Husband could pay. Husband’s petition to terminate alimony for the period preceding Wife’s marriage was denied.

Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Neither Tennessee law nor most marital dissolution agreements define “cohabit.” The appellate courts have defined it to include

• living together as husband and wife,
• living together for some period of time exclusive of “mere visits or journeys,”
• more than an intimate or sexual relationship and more than spending the night on several occasions, and
• the mutual assumption of rights and obligations customarily manifested by a married couple or life partners.

The Court agreed with the trial court’s assessment of the evidence:

[W]hile [Wife’s boyfriend] did have a key to the Hickory Valley home, he did not have unfettered access to it. Furthermore, the record reflects that Wife and [her boyfriend] maintains their own separate residences until they were married in December 2017, and there is no proof that [Wife’s boyfriend] ever listed Wife’s address as his own on his driver’s license, voter’s registration, tax returns, or bank accounts.

* * * * *

Because the term cohabitation requires more than spending the night on several occasions, and because the record reflects that [Wife’s boyfriend] kept a trivial amount of clothes at Wife’s homes, did not have unfettered access to the Hickory Valley home, maintained a separate residence from Wife until they married in December 2017, and never listed Wife’s address as his own on his driver’s license, voter’s registration, tax returns, or bank accounts, we agree with the trial court’s conclusion that Wife and [her boyfriend] did not cohabit with one another.

The trial court’s judgment was affirmed.

K.O.’s Comment: (1) The Court found this case to be factually analogous to Mabee v. Mabee.

(2) Wife requested her attorney’s fees on appeal but did so under a section in her brief titled “Relief Sought” while failing to do so in her “Statement of the Issues” section. She also made no argument and cited no authority to support her request. The Court denied her request for fees on appeal, finding she waived the issue by not including it in her statement of the issues. Take note.

Mathews v. Mathews (Tennessee Court of Appeals, Middle Section, September 11, 2019).