This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 66

IN THE

SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT,

Petitioner,

v.

BRADLEY SCOTT,

Respondent.

No. 20160299

Filed September 21, 2017

On Certiorari 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

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM and JUDGE BROWN joined.

Having been recused, JUSTICE HIMONAS does not participate herein; 

DISTRICT COURT JUDGE JENNIFER A. BROWN sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Jillian Scott petitions this court 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 upon 
SCOTT v. SCOTT

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 

2006. 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 been 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 language1

governing termination of alimony provides that alimony “terminates 

upon establishment by the party paying alimony that the former 

spouse is cohabitating with another person.” UTAH CODE § 30-3-

5(10).2

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1 The court of appeals’ opinion correctly noted:

The parties’ decree 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’ decree 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 that 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 UTAH CODE

§ 30-3-5(10). We, however, use the more common term cohabit

(continued . . .)
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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 

Wife 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 

significant 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 April 

2011, the district court found that the evidence before it established 

“cohabitation and a relationship akin to a husband and wife.” The 

court ordered Wife to return to Husband “any alimony paid to her 

from December 22, 2010 to the present.”3

¶5 Wife appealed and argued to the Utah Court of Appeals 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 UTAH CODE

§ 30-3-5(10) (alimony should dissolve upon establishment that “the 

former spouse is cohabitating”). 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 order 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 argument 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 

interpret 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 Cohabit, 

GARNER’S MODERN AMERICAN USAGE (4th 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 appeals’ opinion, Scott, 2016 UT App 31.
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Opinion of the Court

4

interpretation argument “regardless of whether it was properly 

preserved.” Id.

¶7 The court of appeals disagreed with Wife’s plain language

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

Cohabitation 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. ¶ 32 (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 “terminates upon 

establishment” of cohabitation. Id. (emphasis added); UTAH CODE

§ 30-3-5(10). The court of appeals determined that, because the 

statute lacks 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 legislature 

“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 underlying 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 cohabitation 

over marriage, which seems unlikely to have been the 

legislature’s intent.
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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 “principal domicile” for “more 

than a temporary or brief period of time,” the 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 appeals found that Wife and J.O. began to 

cohabit on February 17, 2011, “because their vacations together 

before they moved to [California] still retained a temporary 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 court of appeals’ reading of the 

cohabitation statute. We instead conclude that the plain language of 

Utah Code section 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.4 We also clarify an appellee’s 

burden of persuasion on certiorari when the court of appeals 

addresses an issue that the appellee claims was unpreserved.

¶11 We have jurisdiction under Utah Code section 78A-3-

102(3)(a).

STANDARD OF REVIEW

¶12 On certioriari, we review decisions of the Utah Court of 

Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, 

¶ 13, 374 P.3d 3. “We also review questions of statutory 

interpretation . . . for correctness.” Id.

_____________________________________________________________

4 Because 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 application of the law.
SCOTT v. SCOTT

Opinion of the Court

6

ANALYSIS

I. The Court of Appeals Erred when It Found

That 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 statutory 

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. Refusing 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 it reached the statutory interpretation question.

¶15 Our preservation requirement promotes a number of 

important policies. It encourages orderly proceedings by requiring a 

party to advise a trial court 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 hopes of enhancing her chances of prevailing on appeal. Thus, we 
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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 

appeal.” 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 

differently, 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 raising 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 the 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 appeals should not have touched the unpreserved issue in 

the first place.

¶18 We 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 

ground 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.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, 

¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a 

court of appeals ruling where that court erroneously addressed an 

unpreserved issue.

¶19 That is not to say, however, that an appellee may simply 

flag the preservation problem and expect that we will exercise our 

discretion to ignore the court of appeals’ decision and 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 matter, 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 is 
SCOTT v. SCOTT

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 unpreserved 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 properly 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. But in the absence of parties willing to develop those 

arguments, we are reluctant to wade in 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 on 

what the definition of is is. Utah Code section 30-3-5(10) provides 

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). 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 

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5 We note that 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 language 

demands a different result.
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Opinion of the Court

9

when it interpreted is to mean was. The court of appeals understood

Utah Code section 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 cohabiting at the time 

of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain 

language analysis that considered the cohabitation provision both 

“as a whole” and “in harmony with” the other provisions of the 

statute, id. ¶ 28 (citation omitted), the court of appeals determined

that Wife’s “present cohabitation” reading was erroneous regardless 

of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First,

the court believed the statute’s later use of the verb terminates

“precludes an interpretation that alimony might then be reinstated 

should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s

interpretation “could lead to results that the legislature ‘could not 

have intended.’” Id. ¶ 33 (citation omitted). And, finally, it 

complained that Wife “offered no guidance on how to feasibly

implement” a present-tense reading. Id. ¶ 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 evidence 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 

legislature from 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 Constr. 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 completed or continues up to the 
SCOTT v. SCOTT

Opinion of the Court

10

present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original) 

(citation 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 the court of appeals

admitted that

the strongest statutory support for Wife’s 

interpretation of the [statute] is the use of the presenttense “is.”

Scott, 2016 UT App 31, ¶ 32. We agree: the 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.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting” 

is a verb phrase comprised of two verbs: the present tense auxiliary

“is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORD 

DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present 

participle of any verb—like cohabiting—paired with is creates a 

“continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE 

APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in 

progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE 

APP VERSION 9.0.2 (2017). 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 verb.” 2014 UT App 

196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise.

See Richards v. Brown, 2012 UT 14, ¶ 27, 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. United 
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Opinion of the Court

11

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

Commonwealth, 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, the Supreme Court of the United States has likewise

indicated 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); see, 

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 the 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 statute through the prism of the statute’s 

purported purpose, 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 remarriage.” Id. ¶ 31.

¶26 The court of appeals noted that the 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.” UTAH 

CODE § 30-3-5(9), (10) (emphases added).6 But because 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. This passage is court of appeals dicta and does 

not bind us. Moreover, in light of our decision today, it misstates the 

law.
SCOTT v. SCOTT

Opinion of the Court

12

provisions to operate in a similar fashion, it looked to harmonize the 

statutes in a fashion that would permit the “alimony consequences” 

to “take effect as of the date cohabitation began,” and consequently 

minimized the differences in the statutory language. Scott, 2016 UT 

App 31, ¶ 31. But if we start from the premise that we should discern 

what the legislature intended from the plain language of the text

unencumbered by notions of what we think the legislature must 

have wanted the language to accomplish, the difference 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 that 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 alimony 

during cohabitation. The statute’s plain language does not require

the resumption of alimony payments after the paying spouse 

establishes cohabitation, even if the cohabiting later ends. 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 wholeheartedly agree with the court of appeals that the legislature 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.
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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 that 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 

(invoking “absurdity” doctrine)).

¶28 Both Husband and the court of appeals invoke the 

absurdity 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 operation of the plain language . . . [is] so 

overwhelmingly absurd that no rational legislator 

could have intended the statute to operate in such a 

manner.” This standard 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 

overwhelmingly 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.
SCOTT v. SCOTT

Opinion of the Court

14

¶29 The court of appeals 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 Provision were to require that the 

recipient spouse ‘is cohabitating’ at the time of hearing or trial.”

Scott, 2016 UT App 31, ¶ 34.

¶30 As an initial matter, the relevant date is not the hearing or 

trial, but the date of filing. The present tense is demands the 

condition to be present at the time the paying spouse declares before 

the court that a former spouse is cohabiting. 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 timeof-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 filing” 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. VA. CODE § 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 warned a paying spouse is planning to move to 

terminate alimony could choose 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] from 
Cite as: 2017 UT 66

Opinion of the Court

15

becoming a public charge” (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 

terminated 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 resided 

together under Utah Code section 30-3-5(6) (1989) although 

boyfriend maintained a separate apartment, among other things).

II. Wife Is Not Entitled to Attorney Fees in Defending

Husband’s Petition to Terminate Alimony

¶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 provides 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 defend an action to terminate alimony. UTAH CODE

§ 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 section 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 an appellee wishing 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, defending a motion to terminate alimony 

does not entitle the defending spouse to an award of attorney fees 

under Utah Code section 30-3-3.