What is the Definition of Cohabitation in Arkansas?

06/29/2009 - Cohabitation - State: AR #17250

Full Question:

If my girlfriend were to spend the weekend with me at the lake in a separate cabin that was connected (like a duplex/apartment) while my kids and I stay in another cabin would that be considered cohabitating by Arkansas law? What is the definition of cohabitate in Arkansas?

Answer:

Arkansas state statutes do not contain a definition of cohabitation. It will be a matter of subjective determination for the court, based on all the facts and circumstances involved. Typically, cohabitation involves more than residing together for a weekend. Cohabitation is generally defined as two people living together as if a married couple. State laws vary in defining cohabitation. Some states have statutes which make cohabitation a criminal offense under adultery laws. Under one state's law, cohabitation means "regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation." Another state statute defines cohabitation as "the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage." Yet another state, Georgia, defines cohabitation as "dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person."

Living together, or cohabitation, in a non-marital relationship does not automatically entitle either party to acquire any rights in the property of the other party acquired during the period of cohabitation. However, adults who voluntarily live together and engage in sexual relations may enter into a contract to establish the respective rights and duties of the parties with respect to their earnings and the property acquired from their earnings during the nonmarital relationship. While parties to a nonmarital cohabitation agreement cannot lawfully contract to pay for the performance of sexual services, they may agree to pool their earnings and hold all property acquired during the relationship separately, jointly or to be governed by community property laws. They may also agree to pool only part of their earnings and property, form a partnership or joint venture or joint enterprise, or hold property as joint tenants or tenants in common, or agree to any other arrangement.

Other legal issues that may be affect cohabiting couples inlude estate planning and medical care. Generally, someone who cohabits with another is not considered an heir under the law or have the same rights to make medical care decisions in the same manner as a spouse. Therefore, unmarried cohabitants may consider estate planning and power of attorneys in addition to having a nonmarital agreement.

In some cases of people who formerly cohabited, courts have found a trust created in property of one person who cohabits with another, whereby the property is deemed held for the benefit of their domestic partner. When there is no formal trust agreement, a resulting trust may still be found under certain circumstances in order to enforce agreements regarding the property and income of domestic partners. If there is evidence that the parties intended to create a trust, but the formalities of a trust are lacking, the court may declare a resulting trust exists. The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. Each case is decided on its own facts, taking all circumstances into consideration.

A minority of states have anti-cohabitation laws on their books, although they are largely not enforced. State laws also exist allowing cohabitation as affirmative defense in certain criminal sexual offenses. Cohabitation alone may not qualify as common law marriage. Under the terms of an alimony order, payments may cease if the recipient cohabits with another. Some state statutes and case law allow modification or termination of alimony based upon a significant change of circumstances, such as cohabitation.

Please see the following AR cases:

HAMILTON v. BARRETT, 337 Ark. 460 (1999)

Phyllis Karen (Barrett) HAMILTON v. Randall Ray BARRETT

98-1536

989 S.W.2d 520

Supreme Court of Arkansas

Opinion delivered May 13, 1999

1. APPEAL & ERROR — PETITION FOR REVIEW — CASE TREATED AS THOUGH ORIGINALLY FILED WITH SUPREME COURT. — When the supreme court grants review following a decision by the court of appeals, it reviews the case as though it had been originally filed with the supreme court.
2. APPEAL & ERROR — CHANCERY `scases — DE NOVO REVIEW. — In reviewing chancery cases, the appellate court considers the evidence de novo but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence.
3. APPEAL & ERROR — CHANCERY CASES — DEFERENCE TO CHANCELLOR IN JUDGING WITNESS CREDIBILITY. — The appellate court gives due deference to the superior position of the chancellor to view and judge the credibility of the witnesses.
4. PARENT & CHILD — CUSTODY — DEFERENCE TO CHANCELLOR GREATER. — The appellate court's deference to the chancellor is even greater in child-custody cases than in other chancery cases, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children.
5. PARENT & CHILD — CUSTODY — APPELLATE CONCLUSION REGARDING CHANGE OF CIRCUMSTANCES. — Where the chancellor fails to make findings of fact about a change in circumstances, the appellate court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a change in circumstances.
6. PARENT & CHILD — CUSTODY — BEST INTEREST OF CHILD IS PRIMARY CONSIDERATION. — The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.
7. PARENT & CHILD — CUSTODY — WHEN AWARD MAY BE MODIFIED. — A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.
8. PARENT & CHILD — CUSTODY — MORE STRINGENT STANDARDS IMPOSED FOR MODIFICATION. — Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody.
9. PARENT & CHILD — CUSTODY — CASE RELIED UPON BY APPELLANT NOT CONTROLLING. — The case of Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), relied upon by appellant, was not controlling where the holding was not intended to prohibit the chancellor from ever considering the event of a noncustodial parent's remarriage as a change in circumstances affecting the best interest of the children but, rather, was limited to the facts of that case, in which there was evidence that the noncustodial parent's remarriage was reasonably contemplated at the time he entered into the custody agreement and thus could not have constituted a change in circumstances arising since the entry of the prior order; where the decision rested largely on the noncustodial parent's repeated procurement of ex parte orders; and where the chancellor in the Jones case had erroneously shifted the burden to the custodial parent to prove her emotional stability.
10. PARENT & CHILD — CUSTODY — PURPOSE OF NONCOHABITATION ORDER. — The purpose of a noncohabitation order is to promote a stable environment for the children; it is not imposed merely to monitor a parent's sexual conduct; in the event that a parent violates the order, the chancellor may take necessary, even drastic, steps to ensure that the children are raised in a proper custodial environment; at a minimum, a violation of such an order may be considered by the chancellor as a material change in circumstances affecting the best interest of the children.
11. PARENT & CHILD — MATERIAL CHANGE IN CIRCUMSTANCES — CHANCELLOR'S AWARD OF CUSTODY TO APPELLEE NOT CLEARLY ERRONEOUS. — Where proof was presented that appellant's behavior in entertaining two male guests overnight while the children were present violated the parties' custody and settlement agreement, the evidence, combined with the events of appellant's remarriage and the birth of appellee's child, demonstrated material changes in the parties' circumstances; thus, the chancellor's decision to award custody to appellee was not clearly erroneous.
12. PARENT & CHILD — CUSTODY — ISSUE OF CHANCELLOR'S PREVIOUS KNOWLEDGE IRRELEVANT. — In custody-modification cases, courts usually restrict evidence to those facts arising since the prior order; it was irrelevant whether the issue of the chancellor's previous knowledge was raised below where it was clear that the evidence presented at the modification hearing demonstrated that appellee had engaged in conduct in violation of the custody and settlement agreement after the custody order was entered.

Appeal from Montgomery Chancery Court; Vicki S. Cook, Chancellor; affirmed.

Benny M. Tucker and George M. Callahan, for appellant.

J. Sky Tapp, for appellee.
Donald L. Corbin, Justice.

[1]This is a child-custody case. Appellant Phyllis Karen Hamilton (Karen) appeals the judgment of the Montgomery County Chancery Court awarding custody of the parties' two minor children to her ex-husband, Appellee Randall Ray Barrett (Randy). In an unpublished opinion, the Arkansas Court of Appeals affirmed the chancellor's ruling. See Barrett v. Barrett, CA 97-1132, (Ark.App. December 9, 1998). We granted Appellant's petition to review that decision, which was rendered by a tie vote, pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Huffman v. Fisher, 337 Ark. 58,

987 S.W.2d 269 (1999). For the reasons set forth below, we affirm the chancellor's decision.

The record reflects that Randy and Karen were married on June 5, 1982. Two children were born of the marriage: Michael, born on August 19, 1986, and Randi Michelle, born on July 11, 1989. Randy is president of the Mount Ida School Board, and Karen is an art teacher in the same school system. The parties separated on or about June 22, 1993, and a divorce decree was entered on September 26, 1994. Incorporated into the decree was the parties' child-custody and property-settlement agreement, which provided that the parties would have joint custody of the children, with Karen being the primary custodian of the children. Randy agreed to pay child support in the amount of $120 per week, in accordance with the Family Support Chart. The custody and settlement agreement also prohibited both parents from having members of the opposite sex, to whom they were not married, stay overnight in their homes during any visitation or custodial periods.

Randy married Jennifer Gossett on December 31, 1994, and they had a child on September 24, 1996. Karen married Jody Hamilton on November 10, 1996. On August 1, 1995, Randy filed a petition for specification of visitation rights and reduction in child support. That petition was never ruled upon by the chancellor. Randy filed an amended petition on August 29, 1996, this time requesting a change of custody, and alternatively for a reduction in child support. The amended petition reflected in part that since the divorce decree was entered, there have been several substantial changes in circumstances, including Randy's remarriage, the birth of a child from his remarriage, changes in Randy's income and cattle operation, and an oral agreement reached by the parties for joint custody that Randy had maintained since the end of the 1996 school year. Karen denied that there had been any material change in the parties' circumstances since the divorce.

During the hearing below, evidence was presented that was of a favorable nature to both parents. For example, several witnesses, including neighbors, the elementary school principal, teachers, and in-laws, testified that both Karen and Randy appeared to be good parents. There was also testimony that both parents were particularly interested in the children's performance at school, and that both frequently participated in the children's extracurricular activities. The evidence also showed that both Michael and Randi Michelle were bright, well-adjusted children who performed well at school. The chancellor found that both Randy and Karen were very responsible, good parents; that both had good, but different, discipline skills; and that both did a good job at enforcing each other's prior discipline decisions.

Much of the remaining evidence concerned Karen's relationships with men, particularly her actions in permitting male guests to stay overnight while the children were present, in direct violation of the parties' custody and settlement agreement. Gary Breashears testified that he had a relationship with Karen, which began around August or September 1993, during Karen and Randy's separation, and continued until November 1995. He stated that on one occasion in November 1995, he spent the night with Karen in her home while the children were present. On two other occasions, he, Karen, and the children had gone on overnight trips. During a trip to Alabama, which lasted several days, the four of them shared a motel room. Although he initially claimed that he had slept on the couch, he later admitted that there was no couch in the motel room. He then stated that he was not sure whether he and Karen had slept in one bed while the children slept in the other bed. In any event, he stated that Karen had not expressed a problem with the sleeping arrangements. Breashears also described a camping trip, during which he, Karen, and the children slept in tents. He admitted that he and Karen had slept together on that trip.

Jody Hamilton testified that he began dating Karen in October 1995. He stated that he had a sexual relationship with Karen between October and December 1995, while she was still dating Breashears. He indicated that between December 1995 to November 10, 1996, the date he and Karen were married, he spent the night at Karen's home on numerous occasions. He admitted that the children had been present on some of those occasions. Indeed, he stated that the children had seen him in bed with their mother. Although he conceded that their actions were inappropriate, he justified them on the basis that they only occurred after he and Karen had decided to get married.

Karen admitted engaging in conduct that violated the custody and settlement agreement. Although she denied having ever slept with Breashears in her home while the children were present, she admitted that she had done so with Hamilton, prior to their marriage. Like Hamilton, Karen stated that she felt such conduct was appropriate because they were about to be married, and the children knew of their plan to wed. In contrast to this testimony, there was no evidence that Randy had violated the parties' agreement by having female guests overnight at his home when the children were in his care.

At the conclusion of the hearing, the chancellor awarded Randy care and custody of the two minor children, with Karen being granted liberal visitation. The chancellor made no specific findings of fact on the issue of material changes in circumstances; however, in response to Karen's directed-verdict motion, the chancellor found that Randy had presented evidence of a material change in circumstances. Specifically, the chancellor concluded that two events, Karen's marriage to Hamilton and a child being born to Randy and Jennifer, satisfied the requirement that a substantial change of circumstances existed.

[2-5] In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the chancellor is even greater in cases involving child custody, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children.

Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). Where the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

[6-8] Our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Jones, 326 Ark. 481, 931 S.W.2d 767. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id.

Before reaching the merits of this appeal, we first address an issue raised by one of the dissenting opinions from the court of appeals, concerning the evidence of Karen's having male guests overnight in her home while the children were present. The dissent pointed out that the issue was not properly before the chancellor because Randy had failed to specifically plead it as a material change of circumstance. We disagree with that reasoning, as it is clear from the record that this issue was fully litigated, without objection by Karen. Arkansas Rule of Civil Procedure 15(b) provides in part that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b) provides further that the failure to amend the pleadings does not affect the result of the trial on these issues. See also Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Thus, the issue of Karen's having violated the custody and settlement agreement was properly presented to the chancellor and, likewise, is properly before this court for de novo review.

As to the merits of the case, Karen argues that the evidence failed to demonstrate that any material change in circumstance had occurred since the parties' divorce, and that the chancellor thus erred in awarding custody to Randy. She further asserts that the court of appeals erred in refusing to apply this court's holding in Jones, 326 Ark. 481, 931 S.W.2d 767, pertaining to a change in circumstances of the noncustodial parent. We disagree with both arguments.

In the first place, Karen's reliance on our holding in Jones, is misplaced. She asserts that Jones stands for the proposition that the noncustodial parent's remarriage cannot be properly considered by the chancellor in determining whether a modification in custody is warranted. This interpretation is too narrow. In Jones, this court held that based on the facts presented, Dr. Jones's remarriage did not constitute a material change in circumstances. In other words, the holding in Jones merely underscores the rule that changes in circumstances of the noncustodial parent, including a claim of improved life because of remarriage, were not alone sufficient to modify an order of custody. Indeed, during oral argument before this court, Dr. Jones admitted that at the time of the divorce decree, it was within his reasonable contemplation to remarry. Given those facts, this court held:

Stated simply, Dr. Jones cannot use the circumstances he created as grounds to modify custody. Given his awareness of the circumstances at the time he voluntarily entered into the agreement to award custody of Cameron to Ms. Jones, we cannot agree that his remarriage constituted a material change in circumstances.

Id. at 491, 931 S.W.2d at 772.

[9] In sum, the holding in Jones was not intended to prohibit the chancellor from ever considering the event of a noncustodial parent's remarriage as a change in circumstances affecting the best interest of the children. Rather, it is limited to the facts of that case, wherein there was evidence that the noncustodial parent's remarriage was reasonably contemplated at the time he entered into the custody agreement and, thus, could not have constituted a change in circumstances arising since the entry of the prior order. The Jones decision is further distinguished from the instant case in that the decision rested largely on Dr. Jones's repeated procurement of ex parte orders. Moreover, the Jones court held that the chancellor had erroneously shifted the burden to Ms. Jones to prove her emotional stability. Accordingly, Jones is not controlling for the above reasons.

[10, 11] In the second place, we disagree with Karen's assertion that there was no evidence of material changes in the parties' circumstances. Testimony was presented demonstrating that during 1995 and 1996, after her divorce from Randy, Karen entertained both Breashears and Hamilton overnight in her home, or in other locations, while the children were present. The parties' custody and settlement agreement, entered on September 20, 1994, specifically provided that neither parent was to have members of the opposite sex to whom they were not married stay overnight while the children were in their care. That agreement was incorporated into the divorce decree; thus, Karen is wrong in asserting that there was no non-cohabitation order entered by the chancellor. We have held that the purpose of such an order "is to promote a stable environment for the children, and is not imposed merely to monitor a parent's sexual conduct." Campbell, 336 Ark. at 389, 985 S.W.2d at 730, (citing Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1995)). In the event that a parent violates the order, the chancellor may take necessary, even drastic, steps to ensure that the children are raised in a proper custodial environment. Id. At a minimum, a violation of such an order may be considered by the chancellor as a material change in circumstances affecting the best interest of the children. Here, proof was presented that Karen's behavior violated the parties' custody and settlement agreement. This evidence, combined with the events of Karen's remarriage and the birth of Randy's child, demonstrates material changes in the parties' circumstances. Thus, the chancellor's decision to award custody to Randy is not clearly erroneous.

[12] Additionally, we note that Karen takes issue with the court of appeals' conclusion that Randy met his burden of proving material facts that were unknown to the chancellor at the time of the original custody award. She argues that the issue of what the chancellor knew prior to entering the decree and custody order was never raised by Randy below, and is thus not proper for consideration on appeal. There is no merit to this argument for two reasons. First, the chancellor informed the attorneys at the beginning of the hearing that they should only present evidence of events that occurred after the divorce decree was entered, thus acknowledging the principle that in custody-modification cases, courts usually restrict evidence to those facts arising since the prior order. See Campbell, 336 Ark. 379, 985 S.W.2d 724. Secondly, our de novo review of the evidence reveals that the conduct between Karen and Breashears and, later, between Karen and Hamilton occurred after entry of the decree and custody order on September 26, 1994. Thus, it is irrelevant whether the issue of the chancellor's previous knowledge was raised below, as it is clear that the evidence presented at the modification hearing demonstrated that Karen engaged in conduct in violation of the custody and settlement agreement after the custody order was entered.

In sum, we conclude that the chancellor was presented with facts demonstrating a material change in circumstances, arising since the prior order of custody, such that a modification of custody would be in the best interest of the children. We thus affirm the chancellor's decision to award custody to Randy.

WRENN v. STATE, 92 Ark. App. 167 (2005)

211 S.W.3d 582

Michael WRENN v. STATE of Arkansas.

No. CA CR 03-1146.

Court of Appeals of Arkansas.

Opinion delivered August 31, 2005.

[Rehearing denied September 28, 2005.]

CRIMINAL LAW APPELLANT NOT A "FAMILY OR HOUSEHOLD MEMBER" AS CONTEMPLATED BY STATUTE CONVICTION FOR FIRST-DEGREE DOMESTIC BATTERY REVERSED. — The record indicated that appellant's relationship with the victim had ended; while it was true that he was staying in the victim's home, it was uncontroverted that at the time he assaulted the victim, he had already decided to return to his home in North Carolina the next day; furthermore, while it was true that appellant and the victim had a sexual relationship in the past, the victim made it very clear in her testimony that they had not cohabited; under these facts, the State failed to prove that appellant was a household member as defined by Arkansas Code Annotated section 5-26-302 (Supp. 2003), and therefore, appellant's conviction for first-degree domestic battery was reversed and dismissed.

Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge, affirmed in part; reversed and dismissed in part.

Daniel C. Becker, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

JOSEPHINE LINKER HART, Judge.

Michael Wrenn was convicted in a Jefferson County jury trial of first-degree domestic battery, kidnapping, and first-degree terroristic threatening for which he received concurrent sentences of 240 months, 180 months, and 72 months, respectively, in the Arkansas Department of Correction. Previously, Wrenn's appellate counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. However, based upon our review of the record and the law concerning the offense of first-degree domestic battery, we concluded that an argument addressing whether Wrenn was a "family or household member," as contemplated by the sections of our criminal code dealing with domestic battery and assault, see Ark. Code Ann. § 5-26-301 et seq. (Supp. 2003), would not be wholly frivolous. Wrenn now raises that argument on appeal, asserting that the trial court erred in failing to direct a verdict on the charge of domestic battery in that the State failed to prove that he was a household or family member. Wrenn does not contest his conviction on the other charges, and we affirm those convictions. However, we find merit in his argument concerning the domestic-battery conviction and reverse and dismiss.

Wrenn's convictions stem from the events of January 30, 2003, when a social encounter with the victim, Goldie Diane Whitaker, devolved into a physical altercation. In the course of the evening, after visiting a night club, Wrenn allegedly wrapped a belt around Ms. Whitaker's neck and forced her into the van that she had previously been driving with Wrenn as the passenger. She eventually escaped by leaping from the moving vehicle.

Because this appeal only concerns the issue of whether Wrenn was properly convicted under our domestic-battery statute, we will focus on that part of the testimony that relates to Wrenn's and Whitaker's status as "family or household members" under our domestic-battery statute. Under Arkansas Code Annotated section 5-26-302 (Supp. 2003), "family or household members" are defined as

(1) Spouses;

(2) Former spouses;

(3) Parents;

(4) Children, including any minors residing in the household;

(5)

(A) Persons related by blood within the fourth degree of consanguinity.
(B) Degrees of consanguinity shall be computed pursuant to § 28-9-212;

(6) Persons who presently or in the past have resided or cohabited together; and

(7) Persons who have or have had a child in common.

At Wrenn's trial, Anita Stennis testified that Wrenn and the victim Goldie Diane Whitaker had dated for four or five months, but she thought that they had "split up." In her testimony,

Whitaker confirmed that her relationship with Wrenn had ended. She stated that they met in July 2002 and would "see each other three or four times a week." When asked if there were occasions when the two would spend the weekend together, Whitaker denied that they would spend "the whole weekend" but noted that Wrenn would drive to her residence on Sunday morning and attend church services with her and her family. According to Whitaker, in September, Wrenn asked her to marry him, but she told him that she was not ready. However, she claimed that the relationship ended in November 2002, when Wrenn moved to North Carolina.

Whitaker further testified that on or about January 15, 2003, Wrenn called her suggesting that they get back together. He claimed he had an interview at the Pine Bluff Arsenal and would arrive on January 24. Whittaker stated that when she picked him up at the bus terminal on Friday, Wrenn told her that he did not have money for a hotel. She took him to her home, and her mother agreed to "put him up till Monday." According to Whitaker, Wrenn did not go to the arsenal on Monday or any other day that week. Nonetheless, Wrenn told her that he would leave on Friday. The events in question occurred on Thursday evening.

Whitaker stated that she invited Wrenn to accompany her to the "Y-Not Jazz and Blues" club because "since he was at my house it would be nice to invite him to go." She testified that on Tuesday, "we had talked that we would just be friends" and that they would not try to go on with their relationship. Whitaker concluded her testimony by confirming that, in the course of her relationship with Wrenn, they had "physical relations together."

Wrenn moved for a directed verdict, arguing that the State failed to prove cohabitation or that he resided with the victim sufficiently to qualify as a household or family member. The motion was denied, and Wrenn testified on his own behalf. Wrenn confirmed that he and Whitaker had a relationship that lasted from July until he moved to North Carolina in early December and that he intended to return to North Carolina on Friday. Wrenn timely renewed his directed-verdict motion at the close of all the evidence.

On appeal, Wrenn argues the trial court erred in finding that he fit the description of "family or household member" as defined by Arkansas Code Annotated section 5-26-302. He contends that the testimony proved only that he was a short-term guest and that the purpose of his visit was to seek employment. Wrenn argues further that there was no "intent" by him or the victim that he become a family or household member, and therefore his conviction on this count should be reversed and dismissed. We agree.

[1] The record indicates that Wrenn's relationship with the victim had ended. While it is true that he was staying in the victim's home, it was uncontroverted that at the time he assaulted the victim, he had already decided to return to his home in North Carolina the next day. Furthermore, while it was true that Wrenn and Whitaker had a sexual relationship in the past, Whitaker made it very clear in her testimony that they had not cohabited. Under these facts, we hold that the State failed to prove that Wrenn was a household member, and therefore, we reverse and dismiss his conviction for first-degree domestic battery.

Affirmed in part; reversed and dismissed in part.

BIRD and CRABTREE, JJ., agree.

DELAMAR v. STATE, 101 Ark. App. 313 (2008)

276 S.W.3d 746

James DELAMAR v. STATE of Arkansas.

No. CA CR 07-769.

Court of Appeals of Arkansas.

Opinion delivered February 20, 2008.

CRIMINAL LAW — SUFFICIENCY OF THE EVIDENCE — THERE WAS SUBSTAN TIAL EVIDENCE THAT THE VICTIM WAS A FAMILY OR HOUSEHOLD MEMBER. — The trial court did not err in denying appellant's motion for a directed verdict on the ground that there was no substantial evidence that the victim was a family or household member; the term "family or household member" is defined, inter alia, as persons who presently or in the past have resided or cohabited together; appellant himself took the stand at trial, and his testimony was unquestionably substantial evidence that he cohabited with the victim.

Appeal from Clark Circuit Court; John Thomas, Judge; affirmed.

Alvin Schay, for appellant.

Dustin McDaniel, Att'y Gen., by: Farhan Khan, Ass't Att'y Gen., for appellee.

JOHN MAUZY PITTMAN, Chief Judge.

The appellant in this criminal case was tried by a jury and convicted of committing second-degree domestic battery by stabbing a family or household member on December 7, 2006, and was sentenced as a habitual offender to twelve years' imprisonment. On appeal, he argues that the trial court erred in denying his motion for a directed verdict on the ground that there was no substantial evidence that the victim was a family or household member. We affirm.

Arkansas Code Annotated § 5-26-304(a)(2) (Repl. 2006) provides that a person commits domestic battery in the second degree if, with the purpose of causing physical injury to a family or household member, he causes physical injury to such a person by means of a deadly weapon. The term "family or household member" is defined, inter alia, as persons who presently or in the past have resided or cohabited together. Ark. Code Ann. § 5-26-302(2)(F) (Repl. 2006).

Appellant's argument is based on the fact that the victim in this case denied that she had cohabited with him. Appellant cites Wrenn v. State, 92 Ark. App. 167, 211 S.W.3d 582 (2005), for the proposition that there can be no substantial evidence of cohabitation where the fact of cohabitation is denied by the victim. It is absurd to read Wrenn so broadly. The testimony of the victim in a criminal case is not inviolable but, like the testimony of any other witness, is subject to the jury's scrutiny. The supreme court has repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the State, i.e., must consider only the evidence that supports the verdict. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). The jury is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. A conviction must be affirmed if it is supported by substantial evidence, i.e., evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

[1] Here, appellant himself took the stand at trial. He testified that, up until the date of the altercation that resulted in his arrest, he shared a residence with the victim, that he gave the victim money for some utility bills, that the cable service installed in the residence was in his name, that he received the cable bill and his bank statement at that address, and that he kept ninety percent of his clothing there. He also stated that he recognized the knife with which the victim was stabbed because he "lived there" and "used it, cooked with it, every day." Finally, appellant testified that, while incarcerated, he authorized the release of money to the victim because he "knew that she needed it for bills . . . because" he "lived there and . . . knew when the bills were due and what was due." Appellant's testimony is unquestionably substantial evidence that he cohabited with the victim, and we therefore affirm.

Affirmed.

GLOVER and MILLER, JJ., agree.



Please see the information at the following links:

http://definitions.uslegal.com/a/adultery/

06/29/2009 - Category: Cohabitation - State: AR #17250

See more Questions in the Cohabitation Category