In re Marriage of Hoff

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NOT DESIGNATED FOR PUBLICATION

No. 119,705

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

SHANNON E. CREAGH, f/k/a SHANNON E. HOFF,
Appellee,

and

DAVID T. HOFF,
Appellant.

MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed August 23, 2019.
Affirmed.

Melissa D. Richards, of Weary Davis, L.C., of Manhattan, for appellant.

Todd A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for appellee.

Before HILL, P.J., STANDRIDGE, J., and NEIL B. FOTH, District Judge, assigned.

PER CURIAM: David T. Hoff appeals a district court order denying his motion to
terminate spousal maintenance owed to ex-wife Shannon E. Creagh, alleging she
cohabitated with another man in violation of the parties' separation agreement. The
parties divorced by agreement on November 10, 2014. Creagh and Hoff executed
settlement documents, which the district court adopted and incorporated into the final
Journal Entry and Decree of Absolute Divorce. Pursuant to the agreed terms, Hoff was
ordered to pay $900 per month in maintenance to Creagh beginning October 1, 2014. The
parties also agreed that maintenance would terminate upon the first of the following: (1)
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the passing of 84 months; (2) Creagh's death; (3) Creagh's remarriage; or (4) Creagh's
cohabitation with an unrelated adult male in a marital-type relationship. Cohabitation was
not further qualified or defined.

Three years later, Hoff moved to terminate spousal maintenance, alleging that
Creagh had been cohabitating with her fiancé, David Anderson, in a marital-type
relationship for "a number of months." Creagh denied that she and Anderson were
cohabitating. The district court heard the motion and agreed with Creagh, leaving the
maintenance order in place.

On appeal, Hoff argues that the district court failed to apply the proper legal
definition of cohabitation and thus abused its discretion. Hoff further argues that the
district court arbitrarily disregarded undisputed evidence of cohabitation, and instead
exhibited bias, passion, or prejudice by basing its decision primarily on Creagh's religious
beliefs and associated lack of sexual relations. This court disagrees and affirms the
district court.

Summary of the Facts

Anderson moved from Arizona to Kansas in July 2016, after dating Creagh long
distance for "quite some time." In September 2016, Creagh and Anderson got engaged.
The couple quickly became financially entangled. In August 2016, Creagh added
Anderson as a joint tenant on one of her bank accounts, stating that she wanted to make
sure somebody could financially care for her children if something happened to her.
Anderson transferred money into their joint account several times when Creagh struggled
to make ends meet. Between August 2016 and January 2018, Anderson made
approximately 23 transfers from his bank account to the couple's joint bank account. Hoff
contended these transfers totaled over $11,000. The transfers were usually designated by
memo for rent or bills. Two tax refunds went into the joint account. Hoff contended that
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one of these, over $6,000, belonged to Anderson. Anderson wrote a few checks out of the
joint account. Creagh received thousands of dollars of support from Anderson's mother,
either directly or through Anderson, depending on the testimony. The couple was on a
joint cell phone plan. Anderson served as a cosigner on Creagh's car loan when she failed
to qualify, and he was also on the title. Anderson used Creagh's address on the loan
documents. Anderson testified that he gave approximately $8,000 to Creagh during this
period because she was his best friend, they were engaged, and he wanted to see her
succeed. He also stated that about half of the money provided to Creagh came from his
mother.

On a personal level, Creagh and Anderson were extensively involved as one
would expect of an engaged couple. However, Creagh maintained she and Anderson did
not live together, were not financially obligated to each other, and did not have sex as it
would be inconsistent with their membership in the Church of Jesus Christ of Latter-Day
Saints. Creagh testified she and Anderson did not spend much time together because of
conflicting work schedules, but he had been at her house four times in the week before
the hearing. He spent from 20 minutes to an hour and a half at her house during those
visits. She estimated Anderson spent the night at her house about two times per month,
and when he did stay the night, he slept on the couch in the basement. Anderson could
not access Creagh's house, but he had the garage door opener in the past to use on an as-
needed basis to let the dog out or pick the kids up for activities or appointments when
Creagh could not do so. Anderson testified that he occasionally mowed Creagh's lawn,
helped with landscaping, and assisted with minor repairs in the house. Creagh and
Anderson took five weekend trips together between June 2015 and October 2016. They
testified that they stayed with family or friends and never shared a room. They were still
engaged at the time of the hearing, but there was no testimony regarding when they might
marry.

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Hoff also contended Anderson was involved in the lives of Creagh's two minor
children, ages 15 and 16 at the time of the hearing. Anderson was one of three emergency
contacts at the children's school. He had taken the children to extracurricular activities
when Creagh had been unable. However, Anderson did not consistently attend the
children's extracurricular activities and they did not call him "dad."

Creagh countered Hoff's assertion that she and Anderson cohabitated by testifying
that they had not held themselves out to be husband and wife; they each had separate
credit cards and bank accounts; they had never been on each other's leases or utilities; and
they filed their taxes individually. Though Anderson cosigned Creagh's auto loan, he only
did so because she was denied on her own credit and she had made every payment on that
loan.

Regarding Anderson's residence, the couple contended that since April 2017
Anderson had lived with one of Creagh's elderly clients as a house guest. In place of rent
and utilities, he took care of landscaping and work around the house. He had no lease
agreement with the homeowner. Anderson testified that he kept his clothing at this house
and did not keep clothing at Creagh's residence.

The District Court Ruling

The district court ruled from the bench. It cited In re Marriage of Kuzanek, 279
Kan. 156, Syl. ¶ 1, 105 P.3d 1253 (2005), in determining that "Kansas has defined
cohabitation to mean living together as husband and wife and mutual assumption of those
marital rights, duties, and obligations that are usually manifested by married people
including but not necessarily dependent on sexual relations."

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The district court also quoted an older definition of cohabitation as:

"'The act or state of dwelling together, or in the same place with another; living
together as husband and wife; a living together as man and wife. A condition or status of
the parties, a status resembling that of the marital relation. Cohabitation is not a sojourn,
nor a habit of visiting, nor even a remaining with for a time; the term implies continuity.'"
Biltgen v. Biltgen, 121 Kan. 716, 721, 250 P. 265 (1926) (quoting 11 C.J. 952).

The district court further cited In re Marriage of Wessling, 12 Kan. App. 2d 428,
747 P.2d 187 (1987), a case that approves the above language from Biltgen. The district
court explained that marriage is the standard by which it would measure cohabitation and
it would consider the circumstances of the relationship, including the realities of modern
married life, in determining whether Hoff met his burden of showing Creagh and
Anderson were cohabitating.

In its oral ruling, the district court reviewed and considered various aspects of the
evidence in support of Hoff's claim of cohabitation. The court found no evidence
regarding how Creagh and Anderson met but that Anderson moved to Kansas from
Arizona in the summer of 2016. Anderson and Creagh bought an engagement ring soon
after, and he reimbursed her for it in August. They got engaged in September 2016 and
were still engaged at the time of the hearing in May 2018, although there was no
evidence regarding when they planned to marry.

The district court also considered other evidence supporting Hoff's claim of
cohabitation including the almost monthly transfers of money Anderson made into the
joint account. The court looked at bank statements, totaled the transactions, and
concluded Anderson transferred $8,975 to Creagh. The court found that half of the
money had come from Anderson's mother as a gift to Creagh, so she did not have to
donate plasma to make ends meet. The court found Creagh's monthly bills ran up to
$4,000 and she made much less. The court noted Creagh's phone bill ranged between
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$184 and $293 per month, and the testimony was that Anderson paid $125 of the bill. The
district court found that Anderson cosigned Creagh's auto loan after she had been denied
on her own credit, and both of their names were on the title. The court also noted the
couple's several short trips together.

Citing evidence that cuts against a finding of cohabitation, the district court found
that Anderson's payments to Creagh were not consistent. He transferred money to her
when she needed funds, but never a consistent percent of the rent or certain bills. Some of
Anderson's transfers into the joint bank account were reimbursements because Creagh
had paid for certain items for him. The court concluded Anderson's financial support to
Creagh was purely altruistic because she was his fiancée. The court found Creagh and
Anderson had separate bank accounts and filed their taxes separately. Though Anderson
used Creagh's address on documents occasionally, he did not do so regularly. The court
held Anderson was not legally obligated to Creagh's lease or utilities and did not share in
her expenses or finances.

The district court found Creagh's and Anderson's testimony that they abstained
from sex because of religious reasons to be credible and found this to be "one of the more
important factors that I see here. Not the sole factor but one of the factors . . . ."
Significantly, the district court found that Anderson spent the night at Creagh's home
only two nights per month, that he slept on the basement couch, and that they never
shared a room when they travelled. The court also found that Anderson did not keep his
possessions or clothes at Creagh's residence. Citing Wessling, the district court found that
cohabitation means living together, including but not dependent on sexual relations; that
while the law does not require full sharing of bed, board, household duties, and tasks, it
determined that even when considering the modern realities of life, the evidence did not
support a finding of cohabitation. The district court went on to conclude that "every case
is separate, and you have to look at the totality of the circumstances, and all the facts
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surrounding this particular scenario. And when I do that, and I look at all these facts here,
it's rather clear to this Court that these folks are not cohabitating."

Standard of Review

The district court found that Hoff failed to sustain his burden of proving that
Creagh had cohabitated with Anderson in contravention of the property settlement
agreement. A district court finding that a party did not meet its burden of proof is a
negative finding.

"The effect of a negative finding by a trial court is that the party upon whom the
burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of
undisputed evidence or some extrinsic consideration such as bias, passion or prejudice
the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial
judge's disbelief of evidence nor can it determine the persuasiveness of evidence which
the trial judge may have believed." Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366,
Syl. ¶ 5, 548 P.2d 719 (1976).

See Kuzanek, 279 Kan. at 159. The appellate court must consider whether the district
court arbitrarily disregarded undisputed evidence or relied upon some extrinsic
consideration such as bias, passion, or prejudice to reach its decision. The question of
cohabitation raises an issue of fact but requires the fact-finder to apply its legal definition
in making the determination. 279 Kan. at 159-60.

Analysis

Hoff's claim that the district court disregarded the legal definition of cohabitation
and arbitrarily disregarded undisputed evidence is not supported by the record. As
detailed above, the district court's ruling considered and discussed numerous factors
supporting Hoff's claim. These included Creagh's engagement, the couple's commingling
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of money, Anderson's extensive financial support of Creagh, the cosigning of her auto
loan, the shared cell phone plan, the possible sharing of his income tax refund, and the
couple's trips together. After reciting the evidence weighing against cohabitation, the
district court stated that it had considered all the facts and circumstances, that it
considered the case on its individual merits, and that it was clear that Creagh was not
cohabitating.

The district court did state that Creagh and Anderson's religiously motivated
chaste lifestyle was a significant factor in its considerations but also specifically stated it
was not the only factor. The district court was duty bound to consider these facts, not
only under the definition of cohabitation in Wessling and other caselaw but in construing
the parties' own contract prohibiting cohabitation in a "marital-type relationship."
Considering the district court's ruling in its entirety, this aspect of the evidence was not
the exclusive or even primary basis for the court's decision.

The inescapable problem with Hoff's motion and his arguments on appeal is that
Creagh and Anderson did not reside together. The district court specifically found that
Anderson spent approximately two nights a month at Creagh's residence, that he did not
keep his clothing or other belongings there, and that he maintained a separate residence.
Although Hoff may have had doubts about the couple's claims, he presented no direct
evidence to the contrary and does not argue on appeal that these were mistaken findings
of fact. He simply argues that other factors are more important.

All appellate precedent cited by Hoff and the district court defining cohabitation
begin with the phrase "living together." Wessling goes on to incorporate and approve the
Biltgen language: "'"The act or state of dwelling together, or in the same place with
another . . . . Cohabitation is not a sojourn, nor a habit of visiting, nor even remaining
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with for a time; the term implies continuity.'" [Citations omitted.]" Wessling, 12 Kan.
App. 2d at 431.

Significantly, the parties resolved their divorce by settlement, rather than a court
trial. "A property settlement agreement incorporated into a divorce decree is 'a hybrid in
the law having the characteristics of a judgment and retaining the contractual rights of the
parties.'" Wessling, 12 Kan. App. 2d at 430 (quoting In re Estate of Sweeney, 210 Kan.
216, 224, 500 P.2d 56 [1972]). "'The primary rule of construction of a settlement
agreement in connection with a divorce action is that, if possible, the court must, as in
other contract cases, ascertain and give effect to the mutual intention of the parties at the
time the contract was made.'" Wessling, 12 Kan. App. 2d at 430 (quoting Holloway v.
Selvidge, 219 Kan. 345, 349, 548 P.2d 835 [1976]). Further, the intent of the parties to a
separation agreement must be determined from the agreement alone if the terms are
unambiguous. Dodd v. Dodd, 210 Kan. 50, 55, 499 P.2d 518 (1972).

Parties are generally free to contract for any terms they choose regarding
termination of maintenance. For example, they can agree to terminate maintenance if the
recipient gets engaged, receives significant financial support from another, or engage in
any other "marital-type" behavior they may specify. They are also free to define
cohabitation differently than Kansas caselaw defines it. These parties' separation
agreement calls for termination of Creagh's maintenance if she cohabitates with another
person as defined by two criteria. First, she must cohabitate with an unrelated male.
Second, the cohabitation must be part of a "marital-type relationship." In this contractual
separation agreement, these are the only conditional modifiers of the term "cohabitation."
In other words, the modifiers define the roommate. Under the terms of this agreement, for
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example, Creagh would presumably be free to live with a female, related or unrelated, in
a marital-type relationship without jeopardizing her maintenance.

Hoff does not agree with such a literal interpretation of caselaw definitions or the
parties' contract. He argues that being in a marital-type relationship is cohabitation, rather
than being a maintenance-terminating condition of it; that being in a marital-type
relationship is cohabitation regardless of whether parties reside together. He essentially
argues that the court should apply a constructive definition of cohabitation; that if the
relationship is sufficiently "marital-like" in character, then residing together does not
matter. In support of this argument, Hoff primarily relies on In re Marriage of Solar, No.
102,631, 2010 WL 4156761 (Kan. App. 2010) (unpublished opinion), wherein this court
affirmed the district court's finding of cohabitation even though the couple in question
maintained separate residences. However, the Solar case is easily distinguished. That
couple admitted that they spent most nights together, and the district court found that the
couple spent almost all their nights together at one residence or the other. Contrary to the
dicta cited by Hoff, physical cohabitation was still the touchstone of the case. Further
supporting the termination of maintenance under the Wessling definition of cohabitation,
the Solar couple did not dispute a marital-like relationship, including extensive financial
and social entanglements.

Considering the district court's stated weighing of findings both for and against a
conclusion of cohabitation, including the uncontested findings that Creagh and Anderson
did not live together, Hoff has failed to show that the district court arbitrarily disregarded
applicable caselaw or undisputed evidence. This court has no basis to expand the
common law definition of the term cohabitation beyond the Black's Law Dictionary
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definition adopted by Wessling and Kuzanek, or to interpret the parties' separation
agreement in some way other than its unambiguous meaning.

Hoff's second argument is rejected as well. The district court did not solely or
improperly rely on Creagh's and Anderson's abstinence for religious reasons, as discussed
above. Further, there is nothing about the district court's discussion of these facts or this
issue that implies bias, passion, or prejudice against Hoff or in favor of Creagh. Hoff
provides no support for his argument other than to quote isolated passages from the
transcript in which the district court addressed the religious foundation of Creagh's and
Anderson's abstinence. Hoff's assertion that if Creagh had not been religious, the district
court would have found that she and Anderson were cohabitating is unsubstantiated
speculation.

Creagh's motion for attorney fees is denied. The district court's judgment is
affirmed.