This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 7 UT 66

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

J I LLIAN S COTT , Petitioner

,

v.

B RADLEY S COTT , Respondent

.

No. 20160299
Filed September 2 1 , 2017

On Cert iorari to the Utah Court of Appeals

Third District

, Salt Lake The Honorable Judge Robert P. Faust

No. 124903563

Attorneys:

Michael D. Zimmerman, Bart J. Johnsen , Troy L. Booher, Julie J. Nelson

, Salt Lake City , for petitioner

Karra J. Porter, Kristen C. Kiburtz, Salt Lake City , for respondent

J USTICE P EARCE au thored the opinion of the Court in which

C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE , J USTICE D URHAM and J UDGE B ROWN joined.

Having been recused, J USTICE H IMONAS does not participate herein;

D ISTRICT C OURT J UDGE J ENNIFER A. B ROWN sat.

J USTICE P EARCE , opinion of the Court:

INTRODUCTION

¶1 Jillian Scott petitions this c ourt to overturn the Utah Court of Appeals ’ order affirming the district court’s conclusion that she
cohabited with her now ex

- boyfriend and, therefore, her alimony payments terminated under Utah Code section 30

- 3

- 5(10)

. This requires us to revisit a question that captured the nation’s attention

in 1999 because the meaning of section 30

- 3

- 5(10) “depends uponS COTT v. S COTT
Opinion of the Court

2 what the meaning of the word ‘is’ is.” We conclude that the legislature intended that is should mean is and not was or has been

. We reverse

.
BACKGROUND

¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in

200 6

. Under the terms of their divorce settlement and decree

, Wife
would collect $6,000 a month in alimony from Husband for the number of years they had b een married: twenty

- five. The divorce
decree provided

, “Alimony shall terminate upon the remarriage or
cohabitation of [Wife] .”

¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex

- boyfriend. Husband argued that Wife had begun “ cohabit [ ing ] with an adult
male .

. . on or about February 2011,” that Wife had a relationship
with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time

. ” Wife and J.O. had broken

up months before Husband filed his motion. The statutory language 1 governing termination of alimony provides that alimony “ terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” U TAH C ODE § 30

- 3

- 5(10)

. 2

_____________________________________________________________

1 The court of appeals’ opinion correctly noted : The parties’ d ecree of divorce differs from the language
contained in Utah Code section 30

- 3

- 5(10).

. . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ dec ree is substantively identical to the statute
on the issue of cohabitation.

Scott v. Scott , 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted , 379 P.3d 1183 (Utah 2016)

. On certiorari , neither party contends that the language of the decree controls or t hat under the decree this court
should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree’s language.

2 The Utah statute employs the verb cohabitate

. See U TAH C ODE § 30

- 3

- 5(10). We, however, use the more common term cohabit (continued .

. .)Cite as: 201 7 UT 66

Opinion of the Court

3 ¶4 The district court found that Wife and J.O. had cohabited
and that their cohabitation terminated Husband’s obligation to pay

W ife alimony

. The court stated that “[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple

, who without those resources, cohabitate in a single home

. ” The court found it signi ficant that Wife and J.O. had been “together or staying in one of [J.O] ’s homes approximately 87 % of the time from December 2010 onward.” Thus, considering the details of the couple’s intimate and
exclusive 30

– 31

- month relationship ending sometime before A pril 2011, the district court found that the evidence before it established
“cohabitation and a relation ship akin to a husband and wife

. ” The
court ordered Wife to return to H usband “ any alimony paid to her from December 22, 2010 to the present

. ” 3

¶5 Wife app ealed and argued to the Utah Court of A ppeals that
the district court’s interpretation of the statute failed to account for
the present tense of the to be verb “ is ” in the statute

. See U TAH C ODE § 30

- 3

- 5(10) ( alimony should dissolve upon establishment that “ the former spouse is cohabit at ing ”). Under Wife’s reading, Husband
could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that
in ord er to terminate Husband’s obligation under the plain language
of the statute, Husband had to show that she was cohabiting at the
time he filed his motion to terminate alimony.

¶6 Husband contended to the court of appeals that Wife’s statutory interpretation a rgument was not preserved in the district

court

. The court of appeals responded, however, “ that resolution of the question of whether Wife and J.O. cohabited requires us to

inter pret the Cohabitation Provision

. . . ” Scott v. Scott , 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory

_____________________________________________________________ throughout this opinion when not quoting the statute

. See C ohabit

, G ARNER ’ S M ODERN A MERICAN U SAGE (4 th ed. 2016) (“ Cohabitate is a misbegotten BACK

- FORMATION that has never seriously competed
with cohabit in print sources.

. . . Current ratio ( cohabiting vs. cohabitating ): 8:1.”).

3 We omit the details of Wife and J.O.’s time spent together at
their various homes and vacation destinations , recounted at length
in the court of a ppeals ’ opinion, Scott , 2016 U T App 31

.S COTT v. S COTT
Opinion of the Court

4 interpretation argument “ regardless of whether it was properly preserved.” Id

. ¶7 T he court of a ppeals disagreed with Wife ’s plain language argument

. The court explained that “[t]he language of the

Co habitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we
utilize applicable canons of construction to ascertain the meaning of
the statute. ” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “ when the present

- tense [ to be ] verb is read
within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of
determination seems less persuasive. ” Id. ¶ 3 2 ( internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “ terminate s upon establishment ” of cohabitation. Id

. (emphasis adde d) ; U TAH C ODE § 30

- 3

- 5(10)

. T he court of appeals determined that , because the
statute lack s a provision allowing for “alimony reinstatement once cohabitation ends” or a provision explaining “that alimony is only suspended during cohabitation,” “the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it
with such a burden .” Scott , 2016 UT App 31, ¶ 32

. ¶8 The court of appeals also reasoned that the le gislature “could not have intended” the result Wife’s briefing described. Id

. ¶ 33 (citation omitted)

. The court acknowledged “ that requiring termination of alimony in [Wife’s] circumstances does not entirely align with the general economic policies underl ying alimony .” Id

. ¶ 35. “ [C] ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony;
cohabitation does not .” Id

. But the court explained that

interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for coh abitation over marriage, which seems unlike ly to have been the legislature’ s intent

.Cite as: 201 7 UT 66

Opinion of the Court

5 Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “ a common abode ” that was also their “ princip al domicile ” for “ more than a temporary or brief period of t ime

, ” t he court rejected Wife’s argument and upheld the district court’s conclusion that Wife and J.O. had cohabited. Id

. ¶ ¶ 16

– 26.

¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court ’s timeframe

. Id. ¶ 26

. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of a ppeals found that Wife and J.O. began to
cohabit o n February 17 , 2011

, “because their vacations together before they moved to [California] still retained a te mporary quality

. ”
Id

. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife’s payment to Husband to reflect the dates it found significant

. Id

. ¶ 38.

¶10 We disagree with the c ourt of a ppeals ’ reading of the
cohabitation statute . We instead conclude that the plain language of
Utah Code section 30

- 3

- 5(10) re quires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse
files the motion to terminate alimo ny

. 4 We also clarify an appellee’s burden of persuasion on certiorari when the court of appeals
addresses an issue th at the appellee claims was unpreserved

. ¶11 We have jurisdiction under Ut ah Code section 78A

- 3

- 102(3)(a)

.
STANDARD OF REVIEW

¶12 O n certioriari , w e review decisions of the Utah Court of

A ppeals for correctness

. Nichols v. Jacobsen Const r . Co. , 2016 UT 19, ¶ 13, 374 P.3d 3. “ We also review questions of statutory interpretation

. . . for correctness. ” Id

.

_____________________________________________________________

4 Becaus e we conclude that Husband did not establish that Wife cohabited within the meaning of the statute, we do not reach the
merits of Wife’s other contentions arguing that the court of appeals erred in its app lication of the law

.S COTT v. S COTT
Opinion of the Court

6 ANALYSIS

I. The Court of Appeals Erred when It Found

T hat Wife and J.O. Cohabited

¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband’s argument that Wife failed to preserve the sta tutory
construction issue

. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and
instead addressed what it believed to be the proper construction of
the statute. The court explained that

, “[b] ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved. ” Scott v.

Scott , 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.

¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson , 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson

, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that

consideration of the [statute] is necessary to a proper decision. As the state’s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted
into law. Refus ing to consider [appellant’s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling
statute. This we will not do.

Id

. ¶ 20. And the court of appeals believed that it was following this path when i t reached the statutory int erpretation question

. ¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceedings by requiring a party to advise a trial co urt of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hope s of enhancing her chances of prevailing on appeal. Thus, weCite as: 201 7 UT 66

Opinion of the Court

7 require a party to present an issue “ in such a way that the [district] court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in original) (citation omitted). We “exercise wide discretion when deciding whether to entertain or reject matters that are first raised on

app eal.” Id. ¶ 13. And we have used that discretion to carve out a few exceptions to the preservation requirement. For example, “we have reached matters not raised below under ‘exceptional circumstances’ or when ‘plain error’ has occurred.” Id. Stated
differe ntly, absent some exception, we do not normally address unpreserved issues.

¶16 This case does not present the normal situation . We are not asked to address an issue that a party is raisi ng for the first time on appeal . Rather, we are asked to address an issue that the court of appeals determined it needed to resolve, even if it were unpreserved.

¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in th e trial court. See Record, passim . Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of ap peals should not have touched the unpreserved issue in the first place

. ¶18 W e have the ability to affirm a decision on any ground apparent on the record. “[ I ] t is well established that an appellate court may affirm ” a judgment “if it is sustainable on any legal

gro und or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed

. , Inc. v. Phillips Dev

. , L.C., 2002 UT 56, ¶ 11

, 52 P. 3 d 1137 ( quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a

co urt of appeals ruling where that court erroneously addressed an unpreserved issue.

¶19 That is not to say, however, tha t an appellee may simply flag the preservation pr oblem and expect that we will exe rcise our discretion to ignore the court of appeals’ decision an d affirm for a lack of preservation

. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in
the matt er, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals
erred in tackling the unpreserved issue and that the error isS COTT v. S COTT
Opinion of the Court

8 “apparent on the record.” This is especially important in a case like this where the court of appeals explained its rationale for reaching
the arguably unpreserved issue. In this circumstance, the party may

want to argue that the unp reserved issue did not implicate plain

error , did not present any exceptional circumstance , or that it was not necessary for the court of appeals to address the issue to reach a proper conclusion

. Husband did none of these.

¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the
Cohabitation Provision should be interpreted. The court of appeals believed that even if the statutory argument was not preserved, it
needed to construe the statute to properl y resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in

Patterson . B ut in the absence of parties willing to develop those arguments, we are reluctant to wade i n on our own

. Simply stated, the decision to affirm on other grounds lies in this Court’s discretion
and Husband has provided us little reason to exercise that discretion
on the record before us.

¶21 As we previously stated, the resolution of this case turns o n what the definition of is is. Utah Code s ection 30

- 3

- 5(10) provides
that

alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabit at ing with another person.

(Emphasis added)

. Wife argues

— both to us now and previously to the court of appeals

— that the statute’s use of “is” requires that
cohabitation be ongoing to terminate alimony under the plain language of the rule

. 5 She contends that the court of appeals erred

_____________________________________________________________

5 We note th at the language of the divorce decree may point to a
different result. See supra ¶ 3 n. 1

. That language provides that “[a] limony shall terminate upon the remarriage or cohabitation of [Wife]

. ” We again note that, while the court of appeals drew this to the parties’ attention, see Scott

, 2016 UT App 31, ¶ 9 n.2, neither party

argues on certiorari that we should decide this case under the language of the divorce decree or that the decree’s langua ge demands a different result.Cite as: 201 7 UT 66

Opinion of the Court

9 when it interpreted is to mean wa s

. The court of appeals understood
Utah Code s ection 30

- 3

- 5(10) to permit a showing that the spouse collecting alimony was or had been cohabiting at some previous date, regardless of whether the spouse was actually cohabiti ng at the time of filing. Scott

, 2016 UT App 31, ¶¶ 27

– 37

. Employing a plain language analysis that consider ed the cohabitation provision both “as a whole” and “in harmony with” the other provisions of the

statute, id

. ¶ 28 (citation omitted)

, the c ourt of appeals determined
that Wife’s “present cohabitation” reading was erroneous regardless of the legislature’s “ use of the present

- tense ‘ is

, ’ ” id

. ¶ ¶ 3 2

– 33 . First,
the court believed the statute’s later use of the verb terminate s “precludes an interpretation that alimony might then be reinstated
should the cohabitation .

. . end

. ” Id

. ¶ 32. Next

, it believed Wife’s interpretation “could lead to result s that the legislature ‘ could not
have intended. ’” I d

. ¶ 33 (citation omitted)

. A n d , finally , it complained that Wife “offered no guidance on how to feasibly implement ” a present

- tense reading

. I d

. ¶ 34. Wife contends that the most reasonable interpretation of the statute is hers: that the plain language of the statute “requires that cohabitation be ongoing to terminate alimony.”

¶22 When we interpret statutes

, “ our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners,
Ltd. , 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).

Since “ ‘[t]he best evi dence of the legislature’ s intent is the plain language of the statute itself,’ we look first to the plain language of the statute. ” In so doing, “ [w]e presume that the legislature used each word advisedly. ”

. . . When we can ascertain the intent of the
le gislature f rom the statutory terms alone, ” no other interpretive tools are needed, ” and our task of statutory construction is typically at an end.

Bagley v. Bagley , 2016 UT 48, ¶ 10

, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals ’ opinion
no deference

. Nichols v. Jacobsen Const r . Co. , 2016 UT 19, ¶ 13, 374
P.3d 3

. ¶23 We believe the court of appeals erred in reading less into
the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense

— ‘has cohabited’

— which would have ‘denote[d] an act, state, or condition that is now complete d or continues up to theS COTT v. S COTT
Opinion of the Court

10 present. ’ ” Scott

, 2016 UT App 31, ¶ 32 (second alteration in original) (citatio n omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found

. , Inc., 484 U.S . 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past

. . . , but it did not choose this readily available option

. ”)

. And t he court of appeals
admitted that

the strongest statutory support for Wife’s interpretation of the [statute] is the use of the present

tense “ is. ”

Scott

, 2016 UT App 31, ¶ 32. We agree: th e strongest support for Wife’s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon
establishment “that the former spouse is cohabitating with another person.” U TAH C ODE § 30

- 3

- 5 ( 10) (emphasis added )

. “I s cohabiting” is a verb phrase comprised of two verbs: the present tense auxiliary
“is” and the present participle “cohabiting.” B e , cohabit

, - ing

, O XFORD
D ICTIONARY OF E NGLISH I P HONE A PP V ERSION 9.0 .2 ( 20 1 7 )

. The present participle of any verb

— like cohabiting

— paired with is creates a “continuous tense[].” Be

, O XFORD D ICTIONARY OF E NGLISH I P HONE
A PP V ERSION 9.0.2 (201 7 )

. And c ontin u ing means ongoing

, or “still in progress.” Continue

, o ngoing

, O XFORD D ICTIONARY OF E NGLISH I P HONE
A PP V ERSION 9.0.2 ( 201 7 ). In light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing
cohabitation meets the statute’s terms head

- on

. ¶24 A statutory reading that credits a verb’s tense is not uncommon. Our own court of appeals relied on similar reasoning in
Prows v. Labor Commission : “Typically, we understand ‘is’ as a present

- tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present

- tense ve rb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted)

. We have done likewise.
See Richards v. Brown

, 2012 UT 14, ¶ 2 7 , 274 P.3d 911 (interpreting a statute according to the “ present perfect tense ”). And Utah is in good

company

. See , e.g. , Sherley v. Sebelius , 644 F.3d 388, 394 (D.C. Cir. 2011) (“ The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘ unless
the context indicates otherwise

. . . words used in the present tense
include the future as well as the present. ’ ” (omission in original) (quoting 1 U.S.C. § 1 ); United States v. Williams , 462 F. Supp. 2d 342, 344 (E.D.N.Y. 2006) (“ In short, ‘ is’ means ‘is,’ not ‘is or was’ or ‘is, depending on the chronology of events.’”)

, aff’d sub nom. UnitedCite as: 201 7 UT 66

Opinion of the Court

11 States v. Darden , 539 F.3d 116 (2d Cir. 2008) ; s ee also AK Steel Corp. v.

Com monwealth , 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations omitted) (“ This is not the first time a judicial body has been presented with the surprisingly difficult task of discerning the meaning of a monosyllabic word of repeated, everyday usage.”). Not for nothing, t he Supreme Court of the United States has likewise
indicat ed that, “[c]onsistent with normal usage, we have frequently looked to Congress ’ choice of verb tense to ascertain a statute ’ s temporal reach .” Carr v. United States , 560 U.S. 438, 448 (2010) ; s ee , e.g. , United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”)

. ¶25 The court of appeals reached a contrary conclusion reasoning that t he Cohabitation Provision immediately follows the Remarriage Provision and that “[i] t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financial support.’” Scott , 2016 UT App 31, ¶ 29 (citation omitted). Viewing the sta tute through the prism of the statute’s purported purpos e, the court of appeals concluded that its reading
would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a re marriage.” Id

. ¶ 3 1

. ¶26 The court o f appeals noted that t he only significant
difference between Utah Code section 30

- 3

- 5(9), the Death or Remarriage Provision, and section 30

- 3

- 5 (10), the Cohabitation Provision, is “the means by which termination [of alimony] occurs .”
Id. ¶ 29. The language of the Death or Remarriage Provision provides that alimony terminates automatically “ upon the remarriage or death” of the former spouse; however, the Cohabitation Provision provides that alimony terminates “upon
establishment

. . . that the former spouse is cohabitating.” U TAH C ODE § 30

- 3

- 5(9), (10) (emphases added)

. 6 B ut b ecause the court of appeals posited that the legislature must have wanted both

_____________________________________________________________

6 Husband cites Black v. Black for the proposition that cohabitation need not be ongoing : “ the order imposing alimony terminate [s ] automatically upon the establishment of cohabitation .” 2008 UT App 465, ¶ 8, 199 P.3d 371 . Thi s passage is court of appeals dicta and does not bind us. Moreover, in light of our decision today, it misstates the
law.S COTT v. S COTT
Opinion of the Court

12 provisions to operate in a similar fashion , it looked to harmonize the statutes in a fashion that would per mit the “alimony consequences”

to “ take effect as of the date cohabitation began,” and consequently
minimized the difference s in the statutory language. Scott , 2016 UT App 31, ¶ 31. But if we start from the premise that we should discern what the legislatu re intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to ac complish, the differen ce in the language assumes greater importance. See , e.g. , Penunuri

, 2013 UT 22, ¶ 15 ( “ Because ‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” (alteration in original) (citation omitted) ) ; Ivory Homes, Ltd. v. Utah State Tax Comm’n , 2011 UT 54, ¶ 21, 266 P.3d 751 (“To discern legislative intent, we first look to the plain language of the statute.”); K & T, Inc. v. Koroulis , 888 P.2d 623, 627 (Utah 1994) ( “When faced with a question of statutory construction, we look first to the plain language of the statute.” )

. Starting with the plain language, we can infer that the legislature intended that alimony cease upon remarriage or death, but that

, in the case of cohabitation, it would terminate upon establishment of present cohabitation

— even if that meant th at the provisions would operate differently. 7

_____________________________________________________________

7 The court of appeals also resisted this conclusion because it might allow for “alimony reinstatement once cohabitation ends

. ”

Scott , 2016 UT App 31, ¶ 32. The court of appeals opined that if the legislature wanted this result, it could have said so explicitly, perhaps by including a provision that stated “that alimony is only suspended during cohabitation.” Id

. We see two issues with this conclusion. First, as written, the statute does not suspend al imony during cohabitation. T he statute’s plain language does not require the resumption of alimony payments after the paying spouse establishes cohabitation, even if the cohabiting later en ds. The seemingly anomalous result the court of appeals assails will occur only when the cohabitation begins and ends before the paying spouse can file a termination petition. Second, although we whole

heartedly agree with the court of appeals that the leg islature could have been clearer, we are not justified from departing from the plain language of the statute just because we can envision a manner in which the legislature could have expressed its intent more clearly

.Cite as: 201 7 UT 66

Opinion of the Court

13 ¶27 We understand the court of appeals’ instinct to push against the result the plain language yields

, and we understand the temptation to read the statute in a fashion t hat treats cohabitation identically to remarriage. It may seem incongruous that a marriage lasting forty

- eight hours will terminate alimony but that a cohabiting relationship lasting years may not if that relationship ends before the paying spouse files to terminate alimony. But we do not believe, as the court of appeals did

, that this is a result that the legislature

“ could not have intended

. ” Scott

, 2016 UT App 31, ¶ 33 ( quoting Marion Energy, Inc. v. KFJ Ranch P ’ ship

, 2011 UT 50, ¶ 26 , 267 P.3d 863 ( invo king “absurdity ” doctrine ) )

. ¶28 Both Husband and the court of appeals invoke the
absurd ity doctrine without calling it by name. The absurdity
doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley , 2016 UT 48, ¶ 27.

[T] his court will not apply the absurdity doctrine unless “the oper ation of the plain language .

. . [is] so overwhelmingly absurd that no ration a l legislator could have intended the statute to operate in such a

manner. ” This stan dard is satisfied only if the legislature could not reasonably have intended the
result.

Id

. ¶ 28 (second alteration in original) (omission in original) (citations omitted)

. We concede that the legislature could have intended a
different result

— in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome

— but we do not believe that the
result the plain language dictates is absurd, let alone “ so overwhelmingl y absurd that no rational legislator could have intended the statute to operate in such a manner .” Id

. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended
a different result. 8

_____________________________________________________________

8 Of course, parties unhappy with this statutory default may choose instead to agree to a divorce decree that terminates alimony upon cohabitation.S COTT v. S COTT
Opinion of the Court

14 ¶29 The c ourt of a ppeals also sought to avoid the decision we
reach because it believed that “there is the potential that the couple will simply cease cohabitation in advance of that date to avoid the consequence if the Cohabitation Provi sion were to require that the recipient spouse ‘is cohabitating’ at the time of hearing or trial.”

Scott , 2016 UT App 31, ¶ 3 4

. ¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The present tense is demand s the condition to be present at the time the paying spouse declares before
the court that a former spouse is cohabit ing

. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P.

, 541 U.S. 567, 570

– 71 (2004) (“ ‘ [J] urisdiction of the court depends

upon the state of things at time of the action brought.’ .

. . [The time

of

- filing rule] measures all challenges to subject

- matter jurisdiction premised upon diversity of citizenship against the state of facts that
existed at the time of filing

. ”) (citations omitted) ; Int’l Trading Corp. v.
Edison , 109 F.2d 825, 826 (D.C. Cir. 1939) ( requiring a “ duty [to] exist
at the time of filing a petition for mandamus ” ) ; Spectra

- Physics, Inc. v. Coherent, Inc ., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context) ; Craig v. Beto , 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence .

. . at the
time of fil ing” in the habeas context) ; Koch v. Carmona , 643 N.E.2d 1376, 1381 ( Ill. App. Ct. 1994) ( evaluating an attorney’s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context) ; W. V A

. C ODE § 49

- 4

- 601 (i) (requiring findings to be “based upon conditions existing at the time of the filing ” in child abuse and neglect context ); 38 U.S.C. § 109 (1991) (providing that no benefit “shall be extended to any person who is
not a resident of the United States at the time of filing [a] claim” )

. ¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized

, i.e ., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple
who has been warn ed a paying spous e is planning to move to
terminate alimony could cho o se to stop cohabiting to avoid the

termination

. And, if that occurs, the continued payment of alimony would square with the policy behind alimony

. See Jones v. Jones , 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [ receiving spouse ] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] fromCite as: 201 7 UT 66

Opinion of the Court

15 becoming a public ch arge” (citation omitted) ); Myers v. Myers , 2010 UT App 74 , ¶ 12, 231 P.3d 815 (stating that “the principal purpose of alimony is economic”). To the extent that a cohabitant might engage in subterfuge to create the appearance that the cohabiting has

termina ted when it has not , we trust our district courts and the adversarial system to do their best to detect efforts to manipulate the

outcome

. See generally Pendleton v. Pendleton

, 918 P.2d 159 ( Utah Ct. App. 1996) (finding that boyfriend and former spouse res ided together under Utah Code section 30

- 3

- 5(6) (1989) although boyfriend maintained a separate apartment , among other things)

.
I I

. Wife I s N ot E ntitled to A ttorney F ees in D efending
Husband’s P etition to T erminate A limony

¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under Utah Code section 30

- 3

- 3

. The statute provide s for an award of attorney fees “in any action to establish

. . . alimony” or “ [i]n any action to enforce an order of .

. . alimony”; it does not provide for attorney fees to defen d an action to terminate alimony

. U TAH C ODE § 30

- 3

- 3(1), (2) (emphases added )

. Here, there is no allegation that
Husband failed to continue to pay alimony. This is not a situation where the paying spouse stops paying and the receiving spouse must petition the district court to intervene and enforce its order. Thus, Wife’s efforts to resist Husband’s motion to terminate alimony

are not compensable under Utah Code section 30

- 3

- 3 ’s plain language

.
CONCLUSION

¶33 We conclude that Utah Code s ection 30

- 3

- 5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony

. We clarify that a n appellee wi shing to contest our review of an arguably unpreserved issue already reached by the court of appeals has an obligation to explain how the court of appeals erred in reaching the unpreserved issue

. Finally, d efending a motion to terminate alimony
does not entitle the defending spouse to an award of attorney fees
under Utah Code section 30

- 3

- 3.