McRae v. McRae, 51731

• Decision Date: 02 April 1980
• Docket Number: No. 51731,51731
• Citation: 381 So.2d 1052
• Parties: Laura S. McRAE v. John M. McRAE, Jr.
• Court: Mississippi Supreme Court

Page 1052

381 So.2d 1052

Laura S. McRAE v. John M. McRAE, Jr.

No. 51731.

Supreme Court of Mississippi.

April 2, 1980.

Gray, Montague & Pittman, Frank D. Montague, Jr., Hattiesburg, for appellant.

Pack, Ratcliff & Ratcliff, Kalford C. Ratcliff, Laurel, for appellee.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

COFER, Justice, for the Court:

The cause has been brought here from the Chancery Court of the Second District of Jones County. Appellant is Mrs. Laura S. McRae, and appellee is John M. McRae, Jr. The main issue here is the effect, if any, adultery of the former wife after divorce, has upon her right to continued alimony from her former husband.

The parties were married in 1956. Three children, a son and two daughters, were born to them in 1957, 1960, and 1964. The children were respectively 21, 17 and 14 years of age at the modification hearing, from which this appeal is taken. She was awarded divorce on the 13th day of June 1975.

Alimony, child support and other property matters were resolved by agreement of the parties and were by the court found to be reasonable, and were incorporated in the divorce decree. Among other things, agreed upon by the parties and incorporated in the decree were (1) a lump sum of $11,500 which appellee was to pay to appellant "out of which (appellant) shall pay past due bills incurred by her in the approximate sum of $3,000; the expenses of moving herself, the children of the parties and her household belongings to Massachusetts, and her solicitor's fees," and (2) appellee was to pay $1,525 per month as alimony, and (3) $250 per month for each of the three children, custody of all whom was awarded to appellant.

As was anticipated in the decree, appellant took herself and the two daughters to Massachusetts. There, appellant experienced difficulty in finding a place to live, and, in three years had undertaken a living in more than a half-dozen abodes. She was acquainted with a man from childhood, who had become a resident of New Jersey, with whom she came in contact through his living in the summers next door to where she was sojourning in Massachusetts. This acquaintance was separated from his wife, but their divorce suit then pending was experiencing some delay before trial. He was a partner in some real estate in New Jersey, a residence of sorts which would be available but which required repairs to make it suitable for living purposes for her and the children. Appellant moved herself and the children into this living arrangement and the childhood friend did likewise, and the four of them set about doing the things to the residence which made it to their liking.

There appellant lived and cohabited with the man from September 6, 1977, to October 1, 1978, and her two daughters lived in the place of residence with them. She admitted that she had sexual relations, not habitual, with the man during their cohabitation, and said there had been none since the cohabitation ended. He paid the rent a part of the time and she paid all of the other expenses of living. The situation of their cohabitation became socially and emotionally difficult for her and they discussed his moving out on many occasions, but he did not move until appellee filed a petition for modification.

Appellee filed petition to modify the earlier decree about October 1, 1978, alleging that he had kept his alimony payments current, and prayed termination of the requirement alleging as a basis therefor that on information and belief appellant had entered in a meretricious relationship, and, for many months, had been cohabiting with another man, in adultery amounting to a fraud on him. He claimed it amounted to a change of circumstances warranting relief from payment of alimony. Appellant admitted that she formerly cohabited with the man, but denied that it was meretricious. She alleged instead, that it was made necessary by appellee's refusal to perform his support obligations to her and the children of the parties. In a cross petition she sought increase in support and for the "immediate listing and sale of the Gulf Shores, Alabama, property of the parties and the equal division of the equity resulting therefrom." (To receive treatment hereinafter). She alleged numerous failures of appellee to meet the requirements of the original decree, including defaults in the alimony payments. He amended his original petition for modification to allege as a change in the circumstances, that his financial condition had become worse so that compliance therewith had become oppressive and unmanageable and would result in his insolvency.

Appellee testified that he ceased alimony payments when appellant moved to New Jersey because he supposed she was remarried, and it took her six months to let him know that such was not the case. During her living in the home with the man, appellee had seen the man when appellee had visited in New Jersey, and he had also talked with him by telephone and found it easier to transact business with him than with appellant.

The record reflects delays on appellee's part in paying alimony, even before appellant's relations with a man. In fact, it may correctly be said that appellee met the demands of the support decree in a very casual manner. Several solicitors were retained at various times in efforts to bring his payments to a current basis. Appellant blames his lack of attention to his court-ordered support on her assuming the unconventional relationship with the man. He was in fact in default during the hearing on the modification petition, but, on the eve of the decision, he brought himself to a current basis.

The court found that, through her own confessed cohabitation with the man for the period established, appellant forfeited her right to future alimony as would have happened had she been married to the man, and that there had been a material change in the circumstances upon which it discontinued all future alimony.

Appellant here assigns errors as follows:

I. Certain findings of fact of the lower court are clearly erroneous and against the great preponderance of the evidence.

II. The conclusion of law that the appellant forfeited her right to future alimony is erroneous.

III. The direction to dispose of certain property in accordance with former decree is erroneous.

We fail to find merit in the first assignment of error.

Noticing the second assignment, that the court erred in the conclusion that appellant had forfeited her right to future alimony, we preface our remarks and decision by observing that appellee has not shown an inability to provide alimony for appellant the record supporting the belief that he was more able at this hearing than he was at the entry of the original decree; appellee knew of the relationship for months before he took court action, during which time the relationship continued; before his petition to modify, appellee visited and had face-to-face contact with the man, and found he could conduct business with him more easily than directly with appellant, and his petition to modify does not include a prayer for some action removing his children from the environment nor any reference to the poor quality of the example their mother was setting for them. (We are mindful of their ages.)

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