Lobaugh v. Lobaugh

753 A.2d 834, 2000 Pa. Super. 159, 2000 Pa. Super. LEXIS 724
CourtSuperior Court of Pennsylvania
DecidedMay 30, 2000
StatusPublished
Cited by26 cases

This text of 753 A.2d 834 (Lobaugh v. Lobaugh) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lobaugh v. Lobaugh, 753 A.2d 834, 2000 Pa. Super. 159, 2000 Pa. Super. LEXIS 724 (Pa. Ct. App. 2000).

Opinions

CERCONE, President Judge Emeritus:

¶ 1 This is a direct appeal from an order terminating Appellant’s alimony pursuant to the parties’ marital property settlement agreement. We affirm.

¶ 2 The parties married in July of 1980 and were divorced on January 29, 1999. As part of their divorce settlement, the parties entered into a marital property settlement agreement on January 13, 1999. In July of that year, Appellee petitioned the Trial Court to terminate Appellant’s right to collect alimony due to her noncompliance with the terms of the parties’ agreement. Specifically, Appellee argued that Appellant was cohabiting with another man and that he was no longer liable to pay her alimony. The Trial Court held a hearing on the matter on August 16, 1999. The Trial Court entered an order granting Appellee’s request to terminate his alimony obligation on August 24,1999 and made it retroactive to the filing date of his petition, July 7, 1999. Under the order, Appellant was also liable for Appellee’s reasonable attorney fees, expenses and court costs in compliance with the terms of the parties’ marital property settlement agreement. This timely appeal follows.

¶ 3 Appellant raises two (2) issues for our consideration:

1. DID THE COURT ERR IN DETERMINING THAT THERE WAS COHABITATION UNDER TITLE 23 PA.C.S.A. SECTION 3706 WITH REGARD TO ALIMONY?
2. DID THE COURT ERR IN NOT LIMITING THE TIME PERIOD FOR THE TERMINATION OF ALIMONY TO THE TIME PERIOD OF COHABITATION?

Appellant’s Brief at 3. In reviewing alimony orders, “we review only to determine whether there has been an error of law or abuse of discretion by the trial court. An abuse of discretion entails a misapplication of the law or a manifestly unreasonable judgment in light of the record.” Peck v. Peck, 707 A.2d 1163, 1164 (Pa.Super.1998) (citations omitted).

¶4 Our review of the parties’ divorce decree reveals that the parties’ marriage property settlement agreement is subject to enforcement under 23 Pa.C.S.A. § 3105, entitled, Effect of agreement between parties. With respect to the parties’ alimony [836]*836provision under the terms of the agreement, enforcement is controlled specifically under Section 3105(c). See Marital Property Settlement Agreement, 1/13/99, at 6-7 ¶ 12. That section of the statute provides:

In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite counsel fees or expenses shall not be subject to modification by the court.

23 Pa.C.S.A. § 3105(c) (emphasis supplied). Also, the agreement between the parties provides that “unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties.” See Marital Property Settlement Agreement, 1/13/99, at 2 ¶2. Moreover, the agreement reads that “no modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties.” Id., at 6 ¶ 12. Thus, it is clear that the parties’ language in their agreement, a contract, concerning issues of alimony is controlling.

¶ 5 We recognize that “[a] basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the contract itself.” Little v. Little, 441 Pa.Super. 185, 657 A.2d 12, 15 (1995). Therefore, it is axiomatic that this Court “must construe the contract only as written and may not modify the plain meaning under the guise of interpretation.” Id. With respect to alimony, the agreement states:

It is agreed that wife shall receive $350.00 per month for thirty-six (36) consecutive months following the entry of the Divorce Decree. Alimony shall terminate earlier upon the death of Husband, the death of Wife, or the remarriage or cohabitation of Wife as defined under the Divorce Code....

See Marital Property Settlement Agreement, at 11-12 ¶ 32. Although not specifically defined in the Divorce Code, in order to be found in “cohabitation” one must at least be doing so “with a person of the opposite sex who is not a member of the family of the petitioner [alimony recipient] within the degrees of consanguinity.” 23 Pa.C.S.A. § 3706. We have elaborated further by holding that cohabitation, for purposes of barring alimony, occurs when:

two persons of the opposite sex reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means.... An occasional sexual liaison, however, does not constitute cohabitation.

Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550, 554 (1986).

¶ 6 In light of foregoing legal analysis, Appellant avers that the Trial Court erred in ruling that cohabitation occurred in this case so as to effectuate the termination of her alimony. Specifically, Appellant submits that:

[i]t is contended that it should be ruled that there was no cohabitation on a legal basis in the case here at issue. There was no showing of sexual interdependence. There was no commingling interdependence with regard to financial matters in any manner. There was no expressed intention to marry in the future. There was no establishment of an intent to cohabit, nor was there any determination that in' fact the particular parties, Nancy Lobaugh and Thomas Jones made a commitment to each other, and in fact just the reverse occurred. There was no commitment and this was a temporary matter from the standpoint of residing in the same home together.

Appellant’s Brief at 10-11. We have read carefully the testimony presented to the Trial Court at the August 16, 1999 hearing [837]*837and we conclude that the Trial Court did not err in its ruling concerning “cohabitation” in this matter.

¶7 The record supports the fact that Tom Jones and his son, Jeremy, primarily resided in Appellant’s home from some point in January of 1999 until early April of that year. The focus becomes whether this living arrangement can be characterized as “cohabitation” so as to effect Appellant’s right to alimony under the terms of the parties’ agreement. Appellant maintains that she was helping a close friend who was ill at the time with his personal needs as well as those of his of his school-aged child. However, the parties’ son, Steven, testified that the living arrangement was that Tom Jones resided in his mother’s bedroom, even though there was another bedroom (that was used as an office-type room) that could have accommodated Jones. Also, Steven testified that Appellant and Jones were affectionate towards one another and often kissed, hugged and held hands, even though Appellant and Jones denied having a “sexual relationship.” Appellant, Jones and their respective sons ate meals together, either at home or out, and attended church weekly.

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Cite This Page — Counsel Stack

Bluebook (online)
753 A.2d 834, 2000 Pa. Super. 159, 2000 Pa. Super. LEXIS 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lobaugh-v-lobaugh-pasuperct-2000.