Cohabitation, the recent case of In re Marriage of Bower

It is common for family law attorneys to hear from clients who are paying spousal support that their ex-spouse is now living with someone and as a result they should not be obligated to continue to pay spousal support. The state legislature, in Family Code Section 4323, addresses the relationship between cohabitation and the need for spousal support. In the recent case of In re Marriage of Bower, (DJDAR 2547/343/4/2002) the reviewing court analyses what constitutes living together in the context of utilizing the presumptions found in Family Code Section 4323.

In fact, Family Code Section 4323 is entitled the “Effect of cohabitation on support.” The section states,in part, as follows:

(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, effecting the burden of proof, of decreased need for spousal support if the supporting party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support….

It is often difficult to determine what evidence needs to be presented in order to trigger this “rebuttable presumption”.

In Bower, there was an October 1995 decree of divorce dissolving a 15-year marriage. Husband was ordered to pay Wife $1,700.00 per month as spousal support.

In February 1997, Husband went to court seeking a reduction of spousal support based upon the fact that Wife was then living with Mr. S and, as such, her need for support (i.e., her expenses) had decreased as per application of Family Code Section 4323. Husband was unsuccessful in his modification and the court did not reduce support. His ex-wife admitted that she had “moved in” with Mr. S but that he was, in essence, a “roommate”. Wife provided checks to the court payable to Mr. S for her portion of living expenses (rent, utilities, food, etc.). Wife stated that pursuant to this arrangement her only decrease in expenses was that her rent had declined a small “little bit”. Wife also indicated, from her income and expense declaration, that her 1997 gross monthly income of $2,690.00 had only increased approximately $100.00 compared to her gross monthly income in October 1995 (the time the original order was made), of $2,586.00.

Based upon the information presented, the trial court, at that time, denied Husband’s request. The court specifically found that Wife and Mr. S’s relationship was only as “roommates” and that in fact she was not “cohabiting” pursuant to the intent of Family Code Section 4323.

In October 2000, Husband again filed a modification requesting either a reduction or termination of spousal support. He again alleged that Wife was now cohabiting with Mr. S and, as such, her need for continued support had decreased pursuant to Family Code Section 4323. This time however, Husband submitted a joint bank statement between Wife and Mr. S indicating that they had maintained a joint savings account. In fact, the parties stipulated that Wife was now cohabiting with Mr. S. The court ruled that Wife was now cohabiting with Mr. S and reduced monthly spousal support to $500.00 per month with a termination of support in a year from the reduction.

Wife appealed this decision.

In the Court of Appeals, Wife contended that in 1997 she had been cohabiting with Mr. S and that, as such, there had not been a change of circumstance with regards to the characterization of her relationship in 2000. She argued that the court absent any change in circumstances had abused its discretion in modifying the existing order. The Court of Appeals rejected this argument. Based upon the 1997 court ruling, it was clear that the court had found that Wife and Mr. S were only living together in the same residence but were not cohabiting.

The trial court’s ruling in 1997 that the parties were “only” roommates sharing expenses, and as such were not cohabiting within the meaning of Family Code Section 4323 was consistent with the legislative intent behind the statute. The court, citing the case of In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, stated:

“When the legislature chose to use ‘cohabiting’ it was selecting a word of particular legal significance that carries more meaning than two persons of the opposite sex living under the same roof”.

The court in Thweatt found no cohabitation where Wife shared expenses with two male boarders and there was “no evidence of a sexual relationship, a romantic involvement, or even a homemaker-companion relationship between either of the men and women.” Wife’s 1997 proceeding was similarly devoid of such evidence. The Appellate Court stated that the evidence presented at Mrs. Bower’s 2000 hearing was substantially different. There was a stipulation by all parties that Wife was now cohabiting with Mr. S and in fact the Appellate Court characterized her relationship with Mr. S as having “ripened into more than just an arrangement for sharing expenses”.

Additional assistance to trial counsel regarding the meaning of what constitutes cohabitation can be found in the case of Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535, wherein the Court said: “Cohabitation has acquired a ‘peculiar and appropriate meaning’ through its use in defining common law marriages. [Citation.] The settled meaning of cohabitation is ‘”living together as husband and wife.”‘ [Citation.] … [T]he California Supreme Court reversed a line of cases which held mere access or opportunity for access sufficient to satisfy the cohabitation requirement. [Citation.] The court specifically incorporated the definition of cohabitation previously used in determining common law marriage:

‘”And by cohabitation is not meant simply the gratification of the sexual passion, ‘but to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.’”‘ [Citation.]

Cohabitation implies more than a stolen weekend, or a sexual encounter; it is living together in a marital household, sharing day to day life.” (Id. at pp. 1114-1115.)

In addition, there was evidence presented to the court about Wife’s current decreased needs. The trial court found that in the order to show cause filed October 2000, that Wife’s monthly gross income was $3,598.00. In 1997 her gross monthly income was $2,690.00 At the time that the support order was originally made in October 1995 her gross monthly income was $2,586.00. (As such, her gross monthly income had increased $1,000.00 per month in three years). The court found that she currently had $500.00 in cash and $3,000.00 in savings and over $13,000.00 in other liquid assets. The court found that the joint account with Mr. S “which they equally contribute[d] to save up for vacations and trips taken together” was a material change of circumstances. The Appellate Court found that there had not been an abuse of discretion on the trial court’s part by reducing support. The Appellate Court noted that the trial court had determined that Husband had the financial ability to continue to provide support and that Wife was still living below the standard of living that was established during the marriage. The Appellate Court found that the trial court had not abused it discretion by ordering only one additional year of support, to allow Wife the time and income to obtain her own residence without having to invade savings and other assets. The Court noted that the record would have justified an outright termination of spousal support. Essentially, the Appellate Court found that the evidence presented by Husband was sufficient to shift the burden of proof to Wife to show that her expenses had not decreased thereby effecting her need. The trial court’s determination that Wife had not met this burden, was sustained.

The Bower decision tells us that in order to have the court apply the burden shifting inherent in the application of Family Code Section 4323, specific evidence, as to the sharing of expenses and saving money together (i.e., joint bank accounts) is highly valued.
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