Alibrando v. Alibrando, 10987.

• Citation: 375 A.2d 9
• Decision Date: 11 April 1977
• Docket Number: No. 10987.,10987.
• Parties: Alfred P. ALIBRANDO, Appellant, v. Joyce A. ALIBRANDO, Appellee.
• Court: D.C. Court of Appeals

375 A.2d 9

Alfred P. ALIBRANDO, Appellant, v. Joyce A. ALIBRANDO, Appellee.

No. 10987.

District of Columbia Court of Appeals.

Submitted December 16, 1976.

Decided April 11, 1977.

COPYRIGHT MATERIAL OMITTED

Samuel Green and Allan G. Slan, Washington, D. C., were on the brief for appellant.

Barry H. Helfand, Rockville, Md., was on the brief for appellee.

Before KERN, NEBEKER and YEAG-LEY, Associate Judges.

PER CURIAM:

Appellant, the former husband of appellee, appeals an order denying a motion to terminate alimony. The ground for the motion and for the appeal is the fact that the former wife now lives with another man in Maryland. Appellant's argument is that such a relationship forms a basis to terminate alimony. For the reasons contained in the opinion and order of the trial court, incorporated herein as an Appendix, we affirm the order.

So ordered.

APPENDIX

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

DOMESTIC RELATIONS BRANCH

Family Division

CIVIL ACTION NO. D 3616-69 ALFRED P. ALIBRANDO, PLAINTIFF,

v.

JOYCE A. ALIBRANDO, DEFENDANT.

ORDER

On December 4, 1969, the plaintiff, Alfred Alibrando filed in the then District of Columbia Court of General Sessions, Domestic Relations Branch, a complaint for absolute divorce on grounds of desertion for one (1) year. A judgment of absolute divorce was granted Mr. Alibrando on February 26, 1970, by the court from the defendant, Joyce Alibrando, thus dissolving the parties' marriage of seventeen (17) years.

The terms of this divorce provided alimony for the wife of $50.00 bi-weekly ($100.00 per month). Subsequent to the initiation of the complaint for divorce, but prior to the entry of the divorce decree, the parties entered into a separation agreement which, inter alia, also provided for alimony of $100.00 per month for the wife.

On November 14, 1975, Mr. Alibrando filed a motion to terminate alimony, and on January 16, 1976, Mrs. Alibrando filed an opposition thereto. Mr. Alibrando's sole ground for seeking termination of alimony was his assertion that Mrs. Alibrando, while receiving the alimony payments, has been

living in open and notorious adultery,¹ and "he should not be made to pay alimony to a divorced wife guilty of immoral conduct".

At the hearing on Mr. Alibrando's motion evidence was adduced as follows:

1. that Mrs. Alibrando is presently living near Myersville, Maryland and is not now married;

2. that she lives at this home with a Mr. Winston Burse;

3. that she and Mr. Burse have lived together for approximately three (3) years;

4. that she and Mr. Burse have had sexual relations over this period;

5. that Mr. Burse does not contribute to Mrs. Alibrando's support, nor she to his;

6. that Mrs. Alibrando and Mr. Burse do not own property together or share a checking account;

7. that the telephone for this residence is listed to Mrs. Alibrando; and

8. that Mrs. Alibrando does not hold herself out as married to Mr. Burse.

The issue for determination now before this court is whether or not permanent alimony awarded after an absolute divorce can be terminated based solely on the misconduct of the party receiving the alimony.

At the outset it should be noted that the fact that Mr. Alibrando initiated and obtained the divorce between the parties is not a controlling factor on the question of the later termination of alimony. Title 16, Section 913 of the District of Columbia Code specifically holds that "[w]hen a divorce is granted on the application of the husband, the court may require him to pay alimony to the wife, if it seems just and proper."

There can be no question, nor does Mr. Alibrando attempt to raise the issue, that Mrs. Alibrando has a right to receive the alimony as initially ordered on February 26, 1970. Mrs. Alibrando's rights to the alimony derive from her contractual agreement with Mr. Alibrando and more importantly from the divorce decree itself. The initial award of alimony was fully consistent with the purposes of alimony as outlined by case law in the District of Columbia. "Alimony is not intended as a penalty to be imposed upon the husband nor as compensation to solace the wife . . . [i]ts objective is to provide reasonable and necessary support to the wife." McEachnie v. McEachnie, D.C.App., 216 A.2d 169, 170 (1966) (footnote omitted). It has also been held that "[t]he policy underlying the alimony statutes . . . is to insure that where the wife is entitled to support, she will receive it, and not become a public charge." Wheeler v. Wheeler, 88 U.S.App. D.C. 193, 195, 188 F.2d 31, 33 (1951).

The courts in the District of Columbia have uniformly agreed that "[t]here is no fixed set of rules or formula for determining permanent alimony and any award must be made only after careful study of the particular facts of each case." McEachnie v. McEachnie, supra, at 170. There is agreement, however, that there are certain primary factors which should serve as an objective beginning when confronting the question of permanent alimony. These factors include, inter alia:

. . . the duration of the marriage, the ages and health of the parties, their respective financial positions, both past and prospective, the wife's contribution to the family support and property ownership, the needs of the wife and the husband's ability to contribute thereto, and the interest of society generally in preventing her from becoming a public charge.²

² Quarles v. Quarles, 86 U.S.App.D.C. 41, 179 F.2d 57 (1949); Mazique v. Mazique, D.C.App., 206 A.2d 577 (1965); aff'd D.C.Cir. , 356 F.2d 801, January 17, 1966; Cole v. Cole, D.C.App., 193 A.2d 76 (1963).

[McEachnie v. McEachnie, supra at 170; footnote in original.]

The factors as outlined above, which relate to the initial determination of alimony, obtain increased significance when addressing questions concerning the termination of alimony, for it is these factors which bear most heavily upon the question of changed financial conditions. The courts of the District of Columbia have consistently held that "where the allowance becomes unduly burdensome, the husband is free to seek a suitable adjustment by making a proper showing of a change in circumstances." Tinney v. Tinney, D.C.App., 209 A.2d 927 (1965). See also Butts v. Butts, D.C. App., 192 A.2d 294 (1963); Richardson v. Richardson, 93 U.S.App.D.C. 76, 207 F.2d 133 (1953). Additionally, the District of Columbia Court of Appeals recently affirmed this principle when it held that:

It is well settled in this jurisdiction, as in others, that a support [alimony] decree can be modified only upon a showing of a substantial and material change in the conditions and circumstances of the involved parties since the entry of the decree. The burden of demonstrating the required change of circumstances rests upon the party seeking the modification. . . . [Tydings v. Tydings, D.C.App., 349 A.2d 462, 463 (1975).]

The question presented by this case is one of first impression in the District of Columbia. No case law exists on whether a divorced woman terminates her right to alimony from her former husband when she lives openly with another man without the benefit of marriage. Decisions in other jurisdictions are divided on this issue.

One view is that gross misconduct of an ex-wife after entry of judgment may, in and of itself, justify a modification or termination of alimony payments. See Taake v. Taake, 75 [70] Wis.2d 115, 233 N.W.2d 449 (1975); Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961); Martens v. Martens, 211 Minn. 369, 1 N.W.2d 356 (1941); Lindbloom v. Lindbloom, 180 Minn. 33, 230 N.W. 117 (1930); and Weber v. Weber, 153 Wis. 132, 140 N.W. 1052 (1913). Cf. Grant v. Grant, 52 Cal.App.2d 359, 126 P2d 130 (Dist.Ct.App., 1942); Coggins v. Coggins, 289 Ky. 570, 159 S.W.2d 4 (Ct.App., 1942); Wilhelm v. Wilhelm, 201 Minn. 462, 276 N.W. 804 (1937); Haritos v. Haritos, 185 Wis. 459, 202 N.W. 181 (1925); and Harper v. Murray, 184 Cal. 290, 193 P. 576 (1920). The rationale underlying these cases is that it would be unconscionable and against public policy to force a husband to support his divorced wife "in idleness and adultery". Rubisoff v. Rubisoff, supra [242 Miss. 225, 133 So.2d] at 538. Thus, if the wife

. . . deliberately chooses a life of shame and dishonor . . . the court may make the misconduct of the wife the ground for cutting off all alimony, or for reducing the same as may, in its discretion, seem just and equitable under all the circumstances of the case. [Weber v. Weber, supra [153 Wis. 132, 140 N.W.] at 1055.]

However, other cases hold that the unchastity of a former wife, subsequent to a divorce and the allowance of alimony, does not by itself justify the termination or modification of alimony payments, although it is a factor to be considered in appropriate circumstances. See Garlinger v. Garlinger, 137 N.J.Super. 56, 347 A.2d 799 (Super.Ct. App.Div., 1975); Sheffield v. Sheffield, 310 So.2d 410 (Fla.Dist.Ct.App., 1975); Hall v. Hall, 25 Ill.App.3d 524, 323 N.E.2d 541 (App.Ct., 1975); Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972); Bissell v. Bissell, 291 Minn. 348, 191 N.W.2d 425 (1971); Daniels v. Daniels, 82 Idaho 201, 351 P.2d 236 (1960); Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554 (1956); Christiano v. Christiano, 131 Conn. 589, 41 A.2d 779 (Sup.Ct. Err., 1945); Pauley v. Pauley, 280 Ky. 66, 132 S.W.2d 512 (Ct.App., 1939); Suozzo v. Suozzo, 16 N.J.Misc. 475, 1 A.2d 930 (Ct.Ch., 1938); Hayes v. Hayes, 220 N.Y. 596, 115 N.E. 1040 (Ct.App., 1917); Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334 (1908); Cariens v. Cariens, 50 W.Va. 113, 40 S.E. 335 (1901); and Cole v. Cole, 142 Ill. 19, 31 N.E. 109 (1892). Cf. Lott v. Lott, 213 Ga. 559, 100 S.E.2d 170 (1957) and Smith v. Johnson, 321 Ill. 134, 151 N.E. 550 (1926).

The court believes that this view, considered the majority rule, is based on the more realistic premise that the judgment of absolute divorce absolves the wife of all previous marital obligations. Under this...