Peterson v. Peterson

• Decision Date: 27 May 1981
• Citation: 403 So.2d 236
• Parties: B. D. PETERSON v. Mary Jo PETERSON. Civ. 2228.
• Court: Alabama Court of Civil Appeals

Page 236

403 So.2d 236

B. D. PETERSON v. Mary Jo PETERSON.

Civ. 2228.

Court of Civil Appeals of Alabama.

May 27, 1981.

Rehearing Denied July 1, 1981.

Douglas Corretti and Robert H. Adams of Corretti & Newsom, Birmingham, for appellant.

L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellee.

HOLMES, Judge.

The husband instituted this action in January of 1979 by petitioning the Jefferson County Circuit Court for a modification of periodic alimony and child support.

The husband later amended his petition to request termination of periodic alimony pursuant to § 30-2-55, Code of Ala. 1975 (1979 Cum. Supp.). In July of 1979, the wife filed a petition for rule nisi, alleging that the husband had failed to comply with a previous court order regarding certain arrearages in alimony and child support payments. The wife also requested an attorney's fee.

After an ore tenus hearing, the trial court specifically found that, at the time the wife's rule nisi petition was filed, the husband was in willful contempt of a prior court order, as alleged by the wife. The court also found, however, that the husband had purged himself of contempt by satisfying all arrearages during the course of the hearing.

The trial court denied the husband's petition regarding the modification of alimony and granted the wife an attorney's fee. The husband, through able and distinguished counsel, appeals and we affirm.

There are two issues on appeal: (1) whether the trial court erred in refusing to terminate the wife's periodic alimony based on its determination that the wife was not "living openly or cohabiting with a member of the opposite sex" within the meaning of § 30-2-55, Code of Ala. 1975 (1979 Cum. Supp.); and (2) whether the trial court erred in granting the wife an attorney's fee.

Viewing the record with the attendant presumptions the following is revealed.

When the parties were divorced in March of 1976, the wife was awarded periodic alimony until her death or remarriage. The wife was also given custody of the parties' four minor children and the husband was ordered to make certain child support payments. Only the youngest child, who is fifteen, is still living with the wife.

Several months after the divorce, the wife met Mr. Pennington. She began to date him approximately six months later, in December of 1976. At the time of the hearing, the wife had been seeing Mr. Pennington regularly for about one and a half to two years.

Mr. Pennington often visits the wife at her apartment. He had, on six or seven occasions, spent the night at the wife's apartment. When he did spend the night, the wife always slept on the couch, as was her custom, and Pennington always slept in the wife's bedroom. Pennington and the wife did not have sexual intercourse at her apartment or when any of her children were present.

The wife has taken several out of town trips with Mr. Pennington. On some of these trips they have had sexual intercourse. They have also had sexual intercourse at the motel where Mr. Pennington resides.

Pennington does not keep any clothes at the wife's apartment, although the wife does wash his clothes on occasion. Occasionally, Mr. Pennington buys groceries for a meal or cooks a meal at the wife's apartment.

Pennington does not receive his mail at the wife's address; he receives it at his motel or at his place of business. He does not pay any part of the rent or utilities for the wife's apartment.

The husband in this case is a successful businessman. He owns nine El Palacio restaurants in Alabama and has a one-third interest in three El Palacio restaurants in Mississippi and Louisiana. He also owns Kosher Leasing Company, which leases automobiles and restaurant equipment to El Palacio restaurants.

In addition, the husband is a partner in three business partnerships. He owns a one-third interest in Southeastern Restaurant and Supply, a two-thirds interest in Gulf States Leasing, and a one-third interest in Delta Leasing Company. His income in 1978 was approximately $86,000. In 1977 he earned about $154,000, and in 1976 he earned approximately $191,000.

As stated above, the first issue on appeal is whether the trial court erred in refusing to terminate the wife's periodic alimony, based on its determination that the wife was not "living openly or cohabiting with a member of the opposite sex" within the meaning of § 30-2-55.

Whether a former spouse is living openly or cohabiting with a member of the opposite sex for purposes of § 30-2-55 is a factual determination. Etheridge v. Etheridge, Ala.Civ.App., 379 So.2d 87, cert. denied, Ala., 379 So.2d 89 (1979). This court may reverse the trial court's determination only if we conclude, after consideration of all the evidence and all other reasonable inferences drawn therefrom, that such determination is plainly and palpably wrong. Blackwell v. Blackwell, Ala.Civ.App., 383 So.2d 196 (1980).

There is ample evidence in this case to support the trial court's finding that the wife was not "living openly or cohabiting with" Mr. Pennington. The evidence shows that Pennington only rarely spent the night at the wife's apartment and that when he did spent the night, he did not sleep with the wife or have sexual intercourse with her. Pennington did not keep his clothes at the wife's apartment, neither did he receive his mail there. Although he occasionally brought groceries...