Levin v. Carlton-Levin

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 3
_________________________________________________________
THE UTAH COURT OF APPEALS
ROBERT KEITH LEVIN,
Petitioner and Appellee,
v.
HOPE M. CARLTON-LEVIN,
Respondent and Appellant.
Opinion
No. 20111023-CA
Filed January 9, 2014
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 054700107
Rodney R. Parker and Richard A. Van Wagoner,
Attorneys for Appellant
Joshua K. Peterman and Bradley M. Strassberg,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH concurred. SENIOR JUDGE RUSSELL W. BENCH
concurred in the result.1
ORME, Judge:
¶1 Hope M. Carlton-Levin (Wife) appeals a trial court order
reducing, and eventually terminating, her alimony based on a
finding of cohabitation. We affirm.

Levin v. Carlton-Levin
2. Wife challenged the amount of alimony and other aspects of the
divorce decree in a prior appeal. See Levin v. Carlton, 2009 UT App
170, 213 P.3d 884. We affirmed and awarded Husband attorney fees
incurred on appeal. See id. ¶ 32.
20111023-CA 2 2014 UT App 3
BACKGROUND
¶2 Robert Keith Levin (Husband) and Wife divorced in 2007.
As part of the divorce decree, the trial court awarded Wife alimony
for fourteen years and three months—the duration of the
marriage. The decree provided that Husband pay Wife $15,000 per2
month for five years, regardless of whether Wife remarried or
cohabited. However, if during those five years Wife remarried or
cohabited, her alimony would be reduced to $7,500 per month
beginning in October 2012 and payments would terminate in
October 2017.
¶3 In 2008, Husband began to suspect that Wife was cohabiting
with Page Tucker at Wife’s home in Grand Junction, Colorado.
Based on these suspicions, Husband hired a private investigator to
track the movements of Wife and Tucker from June 18 to August
8, 2009, in large part by monitoring the movements of Tucker’s
Ford Explorer by means of a GPS tracking unit. Husband then filed
a motion requesting that the trial court determine that Wife and
Tucker were cohabiting and that alimony should therefore be
reduced and then terminated in accordance with the schedule the
court had established in the divorce decree. Wife and Tucker, then
unaware that the Explorer’s movements had been tracked, filed
responsive affidavits stating that Tucker hardly ever drove his
Explorer during the summer of 2009 and that it had merely been
parked at Wife’s home because he needed somewhere to park it.
Both Wife and Tucker also denied that they were living together
but alleged that Tucker was instead sharing a home with his
brother during the surveillance period.
¶4 At trial, Husband presented the private investigator’s GPS
evidence, which indicated that Tucker’s Explorer was parked

Levin v. Carlton-Levin
20111023-CA 3 2014 UT App 3
overnight at Wife’s home for fifty-one of the fifty-two nights that
it was tracked. The GPS evidence also indicated that the Explorer
was driven regularly throughout those fifty-two days. The private
investigator also testified and introduced summaries of the raw
GPS data which described three basic patterns of movement for the
Explorer:
a. For twenty-four (24) days it went to [Tucker’s]
gym first thing in the morning, then to
[Tucker’s] work, then back to [Wife’s] home,
where it remained overnight.
b. For fifteen (15) days it went to [Tucker’s]
work, followed by a brief stop at [his
brother’s] home, then back to [Wife’s] home,
where it remained overnight.
c. For twelve (12) days, mostly on weekends, it
went to various locations and then came back
to [Wife’s] home.
¶5 After the investigator presented this evidence, both Wife
and Tucker admitted that they had not been truthful in their
affidavits about the usage of the Explorer. They also admitted that
Tucker had driven the Explorer and claimed that they made
untruthful statements about the Explorer’s usage only because it
was not properly licensed and registered during the summer of
2009. The trial court, however, did not believe this explanation,
perhaps finding it incredible that one would risk contempt
sanctions, or even a perjury conviction, in an effort to conceal a
lapse in a vehicle’s registration. As a result, the trial court
“determined not to believe the testimony of either [Tucker] or
[Wife], where it conflicts with other evidence,” and added that
“their testimony has been disregarded by the Court.”
¶6 In addition to the GPS tracking data, the trial court received
evidence from a number of other sources, including testimony from

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20111023-CA 4 2014 UT App 3
several witnesses, phone records, credit card records, records of
purchases at various stores and email exchanges. The phone
records included cell phone records, which were used to determine
the location of the parties at various times based on the locations
from which their cell phone calls originated.
¶7 Based on this evidence, the trial court found that “Tucker
commenced using [Wife’s] Grand Junction, Colorado home as his
personal residence at about the time [Wife] moved [there] . . . in
June, 2008.” Additionally, the court found that during this time
Tucker and Wife “were purchasing food and household items
together,” Tucker “contributed cash to the purchase of groceries
that were then prepared and consumed” by both Wife and Tucker,
and Tucker “provided assistance in the care and upkeep of [Wife’s]
home.” The court also found that Wife and Tucker “maintained a
common residence, in which [Tucker] was free to come and go,
whether or not [Wife] was present”; they “shared meals and
traveled together”; they had “a physically intimate relationship”;
and “[w]hile there was no direct evidence about where [Tucker]
kept his clothes,” based on the GPS evidence about his day-to-day
movement “it would have been extremely inconvenient for him to
keep his wardrobe in the home he supposedly shared with his
brother.” The court also found it noteworthy that when Wife “had
matters which were stressful for her, such as meetings with
lawyers, she took [Tucker] with her. She looked to [Tucker] for
emotional support as well as assistance in dealing with financial
matters with respect to which she considered him to be more
capable than was she.”
¶8 Based on these findings of fact, the court concluded that
Wife and Tucker “were thus cohabiting within the meaning of § 30-
3-5(10) of the Utah Code” and ordered that Wife’s “alimony should
be reduced and ultimately terminated in accordance with the
schedule the Court established for that eventuality.” The court then
awarded Husband attorney fees as the prevailing party but
reserved the discretion to reduce those fees if paying the full
amount would be too burdensome for Wife. Wife appeals.

Levin v. Carlton-Levin
3. Because the statutory provisions in effect at the relevant time do
not differ in any way material to our analysis from those now in
effect, we cite the current version of the Utah Code as a
convenience to the reader.
20111023-CA 5 2014 UT App 3
ISSUE AND STANDARD OF REVIEW
¶9 Wife challenges the trial court’s cohabitation determination.
“Whether cohabitation exists is a mixed question of fact and law.
While we defer to the trial court’s factual findings unless they are
shown to be clearly erroneous, we review its ultimate conclusion
for correctness.” Jensen v. Jensen, 2007 UT App 377, ¶ 2, 173 P.3d 223
(citation and internal quotation marks omitted).
ANALYSIS
¶10 Under Utah law, unless otherwise provided in the divorce
decree, alimony “terminates upon establishment by the party
paying alimony that the former spouse is cohabitating with another
person.” See Utah Code Ann. § 30-3-5(10) (LexisNexis 2013). That3
a couple is living in the same house, even if they are physically
intimate, does not automatically mean there is cohabitation
for purposes of this statute. See Myers v. Myers, 2011 UT 65, ¶ 39,
266 P.3d 806. The key is whether the arrangement is akin
to marriage, and “[w]hether a relationship bears the hallmarks
of a marriage-like cohabitation is a fact-intensive inquiry.” Cox v.
Cox, 2012 UT App 225, ¶ 15, 285 P.3d 791. See also Myers, 2011 UT
65, ¶ 24 (“[A] marriage-like cohabitation relationship is difficult to
define with a hard-and-fast list of prerequisites.”). As a result, the
burden of establishing that cohabitation has occurred is on the
payor spouse. See Utah Code Ann. § 30-3-5(10) (stating that
“alimony to a former spouse terminates upon establishment by the
party paying alimony that the former spouse is cohabitating with
another person”) (emphasis added). Here, the trial court concluded
that Husband had met his burden. We agree.

Levin v. Carlton-Levin
20111023-CA 6 2014 UT App 3
I. We Accept the Trial Court’s Factual Findings.
¶11 There is some debate among the parties about whether Wife
properly marshaled the evidence supporting the factual findings
that she resists. See generally Chen v. Stewart, 2004 UT 82, ¶ 77, 100
P.3d 1177 (holding that “appellants must provide a precisely
focused summary of all the evidence supporting the findings they
challenge . . . and then convince us that the trial court erred in the
assessment of that evidence to its findings”). However, Wife
concedes that her challenge is not to the evidentiary foundation for
the factual findings, but “to the legal conclusion the fact-finding is
alleged to support.” Therefore, we turn to consider the findings
made by the trial court. See Kimball v. Kimball, 2009 UT App 233,
¶ 20 n.5, 217 P.3d 733.
¶12 “A trial court’s findings of fact will not be set aside unless
clearly erroneous.” Chen, 2004 UT 82, ¶ 19. And “due regard shall
be given to the opportunity of the trial court to judge the credibility
of the witnesses.” Utah R. Civ. P. 52(a). Here, while the trial court
did draw some inferences to support its ultimate findings, it went
to great lengths to fully present and explain its findings of fact in
its comprehensive, detailed ruling. That another fact-finder might
have reached different factual findings based on the evidence
presented does not render the trial court’s findings clearly
erroneous. See Kimball, 2009 UT App 233, ¶ 20 n.5 (“No matter
what contrary facts might have been found from all the evidence,
our deference to the trial court’s pre-eminent role as fact-finder
requires us to take the findings of fact as our starting point.”).
¶13 We do not always have the benefit of knowing a trial court’s
assessment of credibility, other than by inference. In this case,
however, in fully spelling out its findings, the trial court expressly
detailed the basis for its key credibility determinations, explaining,
with our emphasis, as follows:

Levin v. Carlton-Levin
20111023-CA 7 2014 UT App 3
The Court finds that [Tucker and Wife] lied initially
in their affidavits in order to deceive the Court about
where [Tucker] was living. The Court also found
they continued to lie in their testimony before the
Court in an effort to deceive the Court about the
motivation for their initial lies. As a result, the Court
determined not to believe the testimony of either
[Tucker or Wife], where it conflicts with other
evidence, and their testimony has been disregarded by the
Court.
The trial court carefully outlined its factual findings in a detailed
written ruling authored by the court itself. It explained the
evidentiary bases for its findings and explicitly outlined the
reasoning for its key credibility determinations. We defer to the
trial court’s advantaged role as fact-finder and accept, for purposes
of our review, the facts as stated in its ruling.
II. Wife and Tucker Were Cohabiting.
¶14 Based on its factual findings, the trial court concluded that
Wife and Tucker “were thus cohabiting within the meaning of
§ 30-3-5(10) of the Utah Code.” Wife contends that the evidence
when taken as a whole does “not support the legal conclusion that
the two had established a relationship akin to husband and wife.”
¶15 The Utah Supreme Court has never “delineate[d] a list of
required elements of cohabitation because there is no single
prototype of marriage that all married couples conform to.” Myers
v. Myers, 2011 UT 65, ¶ 24, 266 P.3d 806. What Utah courts have
done “is identify general hallmarks of marriage (and thus
cohabitation). “Those hallmarks include a shared residence, an
intimate relationship, and a common household” involving shared
expenses, shared decisions, shared space, and shared meals. Id.
¶¶ 23–24. There are a number of other possible factors “that might
more completely inform the question whether a relationship

Levin v. Carlton-Levin
4. This more contemporary statement of the applicable cohabitation
inquiry, found in Myers, does not replace the framework
introduced in Haddow v. Haddow, 707 P.2d 669, 672–74 (Utah 1985),
but is a more reliable template in light of the ever-evolving and
heterogeneous nature of marriage and marriage-like relationships
in modern society.
20111023-CA 8 2014 UT App 3
resembles that of a married couple,” such as “the length and
continuity of the relationship, the amount of time the couple
spends together, the nature of the activities the couple engages in,
and whether the couple spends vacations and holidays together.”
Id. ¶ 24 n.3.4
¶16 In this case, the trial court made findings supporting each of
the hallmarks of marriage-like cohabitation. Specifically, the court
found that Wife and Tucker shared a common residence that
Tucker entered and exited at his leisure and treated as his own
home; they had a sexual relationship; and they maintained a
common household, including sharing meals, sharing
responsibility in care and upkeep of the home, sharing in living
expenses, and keeping clothing in the same home. The court also
found it probative that when Wife “had matters which were
stressful for her, such as a meeting with lawyers, she took [Tucker]
with her. She looked to [Tucker] for emotional support as well as
assistance in dealing with financial matters with respect to which
she considered him to be more capable than was she.” Especially
in view of the trial court’s careful consideration of the hallmarks of
cohabitation and other relevant factors to inform the question of
whether Wife and Tucker’s relationship resembles that of a married
couple, we agree that the evidence supports the trial court’s
conclusion that Wife and Tucker were cohabiting.
¶17 Despite the trial court’s thorough ruling, however, Wife
maintains that in this case the “period of observation was too short
to establish that the relationship was characterized by the
permanency characteristic of a husband and wife relationship.” See

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20111023-CA 9 2014 UT App 3
Haddow v. Haddow, 707 P.2d 669, 673 (Utah 1985) (“Cohabitation is
not a sojourn, nor a habit of visiting, nor even remaining with for
a time; the term implies continuity.”) (citations and internal
quotation marks omitted). She contends that the short period of
surveillance by the private investigator was “insufficient as a
matter of law” to support the trial court’s legal conclusion of
cohabitation. However, the trial court does not appear to have
viewed this evidence in isolation. Indeed, the court found that
based on the totality of the evidence presented, “Tucker
commenced using [Wife’s] Grand Junction, Colorado home as his
personal residence at about the time [Wife] moved [there] . . . in
June, 2008,” a period of time far exceeding the short observation
period that was the subject of the private investigator’s intense
scrutiny. Therefore, it is evident that the court viewed the fifty-two-
day observation window in 2009 as being merely representative of
a longer trend in the relationship of Wife and Tucker stretching
back to the summer of 2008 and not as constituting the entirety of
their relationship.
III. Husband Is Entitled to Attorney Fees.
¶18 Husband was awarded attorney fees below. “The general
rule is that when a party who received attorney fees below prevails
on appeal, the party is also entitled to fees reasonably incurred on
appeal.” Robertson's Marine, Inc. v. I4 Solutions, Inc., 2010 UT App
9, ¶ 8, 223 P.3d 1141 (citation and internal quotation marks
omitted). Husband is therefore entitled to an award of fees
reasonably incurred on appeal as well as those awarded by the trial
court. We remand to the trial court for a calculation of such fees. In
calculating Husband’s award of attorney fees incurred on appeal,
however, the trial court should take into account the extra twists
and turns in this case resulting from Wife’s bankruptcy filing, as
not all fees incurred will be attributable to this appeal. And we
express no opinion on the calculation or recoverability of attorney
fees insofar as the same may be limited or precluded by Wife’s
bankruptcy case.

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20111023-CA 10 2014 UT App 3
CONCLUSION
¶19 The trial court went to great lengths to carefully articulate
the reasoning behind its findings of fact and credibility
determinations, and we accept those findings on appeal. We also
conclude that the trial court’s findings of fact fully support its
conclusion that Wife and Tucker were cohabiting. We therefore
affirm the trial court’s order and remand to the trial court to
determine an award of attorney fees reasonably incurred on
appeal, subject to the reservations expressed above.