Orr v. Orr
| Decision Date | 10 November 1977 |
| Citation | 351 So.2d 906 |
| Parties | In re William Herbert ORR v. Lillian M. ORR. Ex parte William Herbert Orr. SC 2536. |
| Court | Alabama Supreme Court |
Petition for Writ of Certiorari to the Court of Civil Appeals.
PETITION FOR WRIT OF CERTIORARI QUASHED AS IMPROVIDENTLY GRANTED.
ALMON, J., concurs specially, with whom BLOODWORTH, J., joins.
I concur in affirming the Court of Civil Appeals, 351 So.2d 904, and continue to adhere to the views expressed in my dissent in Peddy v. Montgomery, 345 So.2d 631, 637 (Ala., 1977).
I dissented from the Court's opinion in Peddy because I felt it established a precedent which would lead to striking down every state statute making a gender related classification. At the forefront of my fears were challenges to the laws concerning marital rights; such as, homestead, dower, and alimony. These laws are designed to foster and preserve the family unit, a constitutionally permissible area for legislation.
The breadth of the pen with which the Court wrote Peddy has now come back to confront us. It appears that when viewed in isolation, statutes which restrict the rights of women are unconstitutional. On the other hand, statutes which grant to women rights which men do not possess are not unconstitutional.
This case, before the Court upon writ of certiorari, concerns the constitutionality of Alabama's alimony statutes. See Tit. 34, §§ 31-33, Code. William Herbert Orr, Petitioner, contends that these statutes are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because a wife may obtain alimony, whereas a husband, under similar circumstances, may not. The Petitioner also asserts that these statutes violate the Due Process Clause of the Fifth Amendment. Because this argument is so interwoven into the fabric of the equal protection contentions, the two will be dealt with together. Based upon Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. den. 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975), the trial Court and Court of Civil Appeals held our statute constitutionally acceptable. I would reverse.
The facts of this case are not in dispute. On February 27, 1974, Mr. Orr and Lillian M. Orr, Respondent, signed a written stipulation wherein Mr. Orr agreed to pay Mrs Orr the sum of $1,240 per month for her support and maintenance. On that same date, a final decree of divorce, incorporating the above agreement, was granted.
On July 28, 1976, Mrs. Orr alleged that Mr. Orr was $2,848 in arrears in his alimony payments. Mr. Orr filed a motion alleging that Mrs. Orr's petition was based upon an illegal decree in that it relied upon Tit. 34, §§ 31-33, Code, and that these sections are unconstitutional. The trial Court denied the motion and granted judgment against Mr. Orr for the arrearages, attorney's fees, and court costs.
Here, we have a needy wife who qualifies for alimony and a husband who has the property and earnings from which alimony can be paid. The veracity of this statement has not been contested. The husband, however, complains that the statutes are unconstitutional because they place an obligation upon male spouses which is not reciprocally impressed upon female spouses. The husband who must pay this alimony has sufficient standing to raise the constitutional questions involved. See Stern v. Stern, 165 Conn. 190, 332 A.2d 78 (1973).
Tit. 34, § 31, Code of Alabama, provides:
If the wife has no separate estate, or if it be insufficient for her maintenance, the judge, upon granting a divorce at his discretion may decree to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family. (Emphasis added.)
This Court has held that the statutory scheme is to provide alimony only in favor of the wife. Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966). It is this inequality of treatment which the Petitioner alleges is unconstitutional.
Two standards are utilized to determine whether a statute will withstand examination under the Equal Protection Clause of the United States Constitution. The strict scrutiny standard is a test reserved for cases involving laws which operate to the disadvantage of suspect classifications or that interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. San Antonio School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Under the second, and traditional, equal protection analysis, a legislative classification must be sustained unless it is patently arbitrary and bears no reasonable, rational relationship to a proper governmental interest. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); and Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).
"General equality" is one of the fundamental rights guaranteed each citizen. Peddy v. Montgomery, 345 So.2d 631 (Ala.1977); and In re Dorsey, 7 Port. 293 (Ala.1838). This, however, does not mean that all types of equal protection classifications are to be examined under the strict scrutiny test. Likewise, it does not mean that natural, rational classifications must be treated identically. Instead, they must be treated with "general equality."
Sex, itself, has been held to be a "suspect" classification by only a plurality of the Supreme Court. Frontiero, supra. As a plurality decision, it is enlightening, but not controlling. Husband M v. Wife M, 321 A.2d 115 (Del.1974). Moreover, as pointed out by the dissent in Frontiero, it is inappropriate to hold sex suspect while the Equal Rights Amendment, which would render the decision moot, is still pending. Frontiero, 411 U.S. at 691, 93 S.Ct. 1764 (Powell, J., concurring). I see no reason to hold sex suspect in this case because the discrimination evident upon the face of the statutes fails even under the lesser "rational relationship" test.
Separating persons into various classifications does not, per se, violate the Equal Protection Clause. It is only invidious discrimination which offends the Constitution. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).
When the above-stated formula is applied to the classification contained in our alimony statutes, in my opinion, these statutes must be deemed unconstitutional.
The initial inquiry concerns whether these statutes are "arbitrary." The basis of our alimony statutes lies in the common law obligation of a husband to support his wife. Sims v. Sims, 253 Ala. 307, 45 So.2d 25 (1950); 27A C.J.S. Divorce § 228; and 15 A.L.R.2d 1246 (1951). While this discrimination may have some historical legal justification, the advent of the married woman's property acts dissolve any present justification. The wife is no longer the chattel of her spouse. She is a coequal partner, with equal duties, rights and obligations. Therefore, any discrimination as to who may receive alimony, merely because of sex, in my opinion, must be viewed as arbitrary.
Even should we hold that the classification by sex is not arbitrary, it must bear a rational relation to some legitimate governmental purpose. Rationality, as used here, however, does not mean that some vague, sentimental, paternalistic, or chivalric reason for the rule exists; it means that there is a truly rational relationship between the means used and the purpose sought to be served. See Thaler v. Thaler, 89 Misc.2d 315, 391 N.Y.S.2d 331 (1977). Because, as stated, the basis of the statute rests upon the assumption that wives may depend upon their husbands for support, but husbands never so depend upon their wives, the statute must fail because such a distinction has no rational basis in reality.
Mrs. Orr asks this Court to follow the example of the Georgia Supreme Court in Murphy v. Murphy, supra. In that case, the Georgia alimony statute (similar to our own in that only women can receive alimony) was held constitutional. To a large extent, the case was based upon the Supreme Court case of Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). While dealing with a tax exemption for widows only, Kahn held that a rational relation to a legitimate interest existed because of the undisputed financial difficulties confronting the lone woman in today's society.
I cannot accept the reasoning of the Georgia Court in Murphy and Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974) (reaffirming Murphy ). The Kahn decision was based upon a state taxing statute. It is well recognized that such statutes are given great constitutional leeway. See Kahn, 416 U.S. at 355, 94 S.Ct. 1734; Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); and ...
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