J.L.M. v. S.A.K.
| Decision Date | 19 December 2008 |
| Docket Number | 2070641. |
| Citation | 18 So.3d 384 |
| Parties | J.L.M. v. S.A.K. |
| Court | Alabama Court of Civil Appeals |
J.L.M. ("the former husband") appeals from a March 5, 2008, judgment entered by the Dale Circuit Court, denying his petition to terminate his periodic-alimony obligation to S.A.K. ("the former wife"). We affirm.
The Dale Circuit Court ("the trial court") entered a judgment on November 1, 2006, divorcing the parties on the ground of incompatibility of temperament. Among other things, that judgment required the former husband to pay the former wife $1,000 per month as periodic alimony. On June 7, 2007, the former husband filed a petition to terminate his alimony obligation on the basis that he was soon to lose his employment and that the former wife had begun cohabiting with L.B. in an "immoral sexual" lesbian relationship.1 The former wife filed an answer admitting to the relationship but denying all other material allegations of the complaint.2
On September 4, 2007, the trial court conducted an ore tenus hearing. The testimony of the parties established that the former wife's relationship with L.B. was a motivating factor for the parties' divorce in 2006. The former wife testified that, after the divorce was finalized, she left Daleville, where she, the former husband, and the their children had resided before the divorce, to visit her parents in Missouri and to visit L.B. in Nebraska. During the former wife's visit, L.B. lost her job and the former wife and L.B. decided to move back to Daleville. In March 2007, the former wife and L.B. moved into a rental home owned by K.B., a longtime friend of the former wife's.
The former wife testified that she and L.B. were in an exclusive, committed relationship, which she termed a "life partnership." She also testified that she and L.B. were not legally married but that they had exchanged "friendship rings," that they lived together as a couple, that they slept in the same room, and that they engaged in sexual relations. The former wife further testified that she and L.B. maintained a joint checking account from which they paid household bills.
The former wife, who was 45 years old at the time of the hearing, testified that, although she graduated from college with an English degree, she had not worked full-time since 1995. She had previously worked in the postal office of a branch of the military. At the time of the hearing, the former wife was currently enrolled part-time at Troy University in an effort to obtain a teaching certificate, which she estimated would take two years, and occasionally she worked as a substitute teacher. The former wife testified that, at the time she and L.B. moved back to Alabama, L.B. was receiving unemployment benefits from the State of Nebraska. The former wife also testified that, in lieu of paying rent, K.B. had allowed her and L.B. to make improvements to the house. She testified further that the only other income she has is the $1,000 per month periodic-alimony payment and a $600 per month property-settlement payment she receives from the former husband. The former wife also testified that she was not eligible for educational financial aid because of her income history.
The former husband testified that the company for which he worked had been sold and that he had been offered continued employment only if he moved to Virginia. Because he did not want to move, he had declined the offer. As a result, his employment was scheduled to end on September 30, 2007. The former husband did not testify as to his future employment plans or to the effect his job loss would have on his overall income.
The former husband testified that he sought to have his periodic-alimony obligation terminated because he did not believe the former wife was making a good-faith effort to find employment and because he did not want to "pay for their existence," referring to the former wife and L.B. The former husband acknowledged that he knew of the former wife's relationship with L.B. at the time of the divorce but that he believed the circumstances had changed since that time because the former wife was now cohabiting openly with L.B. and the two were "all but married."
On October 5, 2007, the trial court entered a judgment reducing the former husband's periodic-alimony obligation from $1,000 to $500 per month. The former husband filed a postjudgment motion objecting to the failure of the trial court to terminate completely his alimony obligation based on the former wife's living arrangements and lifestyle choices. The trial court granted the motion on January 3, 2008, entering an order that contained the following:
The trial court then set the case for the taking of additional testimony on the issue.
On February 19, 2008, the trial court conducted a second ore tenus hearing. The former wife, who was the only witness to testify at that hearing, stated that, immediately before Thanksgiving 2007, she had received a letter from an unnamed source advising her of the illegality of her relationship with L.B. According to the former wife, based on that letter, L.B. had moved back to Nebraska and the former wife remained in K.B.'s rental house. The former wife testified that, although L.B. was no longer cohabiting with her, they remained in a committed relationship and they continued to talk with one another over the telephone. She also testified that L.B. had visited her for one week in late January 2008 and that, during that visit, she and L.B. had resumed their sexual relationship.
The former wife testified that, other than the payments she receives from the former husband, her only income comes from substitute teaching and substitute bus driving. The former wife testified that she might move to St. Joseph, Missouri, to try to find work in the post office and that, if she does move, she plans to continue her relationship with L.B., who would be living only 120 miles away in Beatrice, Nebraska.
On March 5, 2008, the trial court entered a judgment reinstating the former husband's periodic-alimony obligation of $1,000 per month. The judgment further provides that periodic alimony will terminate if and when the former wife cohabits with a member of the same or the opposite sex or if the court otherwise orders termination.
The former husband argues that the trial court erred in failing to terminate his alimony obligation once it found that the former wife was cohabiting with L.B. in a committed lesbian life partnership that the former husband characterizes as a criminal and immoral union contrary to the public policy of this state.
At trial, the parties did not present conflicting evidence regarding the salient facts pertinent to the issue before this court.
Section 30-2-55, Ala.Code 1975, provides, in pertinent part:
"Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex."
By its plain terms, § 30-2-55 requires a court to terminate periodic alimony upon proof that the former spouse receiving alimony is "living openly or cohabiting with a member of the opposite sex." (Emphasis added.) When the legislature uses language that is plain and unambiguous, there is no room for judicial construction; instead, the statute should be applied as written. Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Courts may not improve a statute, but may only expound it. Siegelman v. Chase Manhattan Bank (USA), Nat'l Ass'n, 575 So.2d 1041, 1045 (Ala. 1991).
" "
Alabama Dep't of Envt'l Mgmt. v. Legal Envt'l Assistance Found., Inc., 973 So.2d 369, 377 (Ala.Civ.App.2007) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998)).
Section 30-2-55 cannot reasonably be read as applying to an ex-spouse receiving alimony who is living openly or cohabiting with a member of the same sex. See Phillip M. Longmeyer, Note, Look on the Bright Side: The Prospect of Modifying or Terminating Maintenance Obligations Upon the Homosexual Cohabitation of Your Former Spouse, 36 Brandeis J. Fam. L. 53, 57-58 (Winter 1997-1998) ...
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