Roberts v. Roberts

• Decision Date: 11 January 1983
• Docket Number: No. 55069,55069
• Citation: 657 P.2d 153,1983 OK 1
• Parties: Donna Janell ROBERTS, Appellant, v. David Lavern ROBERTS, Appellee.
• Court: Oklahoma Supreme Court

Page 153

657 P.2d 153

1983 OK 1

Donna Janell ROBERTS, Appellant, v. David Lavern ROBERTS, Appellee.

No. 55069.

Supreme Court of Oklahoma.

Jan. 11, 1983.

Appeal from the District Court, Tulsa County; Clifford E. Hopper, District Judge.

Appellee filed an application to modify award of support alimony granted in divorce decree, on grounds of a substantial change in circumstances relating to need for such support, citing 12 O.S.Supp.1979, § 1289(D), in that appellant was living in a "private conjugal relationship." Trial court granted the relief and appellant appeals on grounds of unconstitutionality of the statute and sufficiency of the evidence.

AFFIRMED.

Jack Winn, Williams, Landman & Savage, Tulsa, for appellant.

Ralph R. Adkisson, Smith, Brown, Martin, Adkisson & Birmingham, Tulsa, for appellee.

DOOLIN, Justice:

Appellant challenges the constitutionality of 12 O.S.Supp.1979, § 1289(D) ¹ which makes the voluntary cohabitation of a former spouse with a member of the opposite sex a ground for reducing or terminating support alimony.

Parties were granted a divorce October 26, 1979, with appellee ordered to pay a total of $10,000.00 in support alimony in three payments: $2,000.00 at the time of the divorce decree, $3,000.00 on December 20, 1979 and $5,000.00 on or before March 26, 1980.

Appellee made the first payment on December 26, 1979; he filed a motion to modify the divorce decree by terminating the other alimony payments. On March 26, 1980 the trial court granted appellee's motion and terminated the final two alimony payments, one due before the filing of the motion and the other one due after the granting of the motion.

Appellant attacks the constitutionality of the statute as violative of equal protection and due process because (1) the statute does not allow a party the right to seek an increase in support alimony upon a showing of substantial change of condition and (2) the described cohabitation penalizes only the recipient of alimony, not the other spouse who also engages in such conduct. Appellant also alleges the trial court erred in finding a "substantial change of circumstances," warranting termination of support alimony and also erred in finding that a "private conjugal relationship" existed.

Appellant cites only two cases as authority for her constitutional challenge. One case ² simply offers a definition of "alimony" which is of no help here. The second case ³ offers wisdom from New York State that "even immoral conduct will not permit the court to make a modification unless the type of conduct engaged in is contemplated by the statutory language ... the power to modify a provision for alimony is only such as is conferred by statute ...." We find such language is of little assistance to appellant in light of our statute.

The raison d'etre of § 1289(D) is not to regulate morality, but rather to regulate support maintenance when the need for continued support has diminished or vanished. Aside from voluntary cohabitation, there must be present, and proved, a "substantial change of circumstances relating to need for support or ability to support."

A judgment in a divorce suit may only be modified or vacated under one of the statutory provisions enumerating situations wherein the trial court is granted such power, unless it is held to be a void judgment. Fisher v. Fisher, 558 P.2d 391 (Okla.1976). We have held that where alimony has been allowed to a wife in a divorce decree, the court has no power on subsequent application to increase or diminish the allowance given in the original judgment without statutory authority. Funnell v. Funnell, 584 P.2d 1319 (Okla.1978); Fisher v. Fisher, supra.

We find nothing unconstitutional in § 1289(D). To argue the giver of support alimony should be penalized for engaging in voluntary cohabitation is ludicrous; what possible bearing would that have on the need for support of the recipient spouse? Support alimony is a final judgment; it can be neither increased nor decreased absent specific statutory authority. We find nothing constitutionally infirm in a statute which provides for a decrease in support alimony, and as appellant can point us to no authority to support her argument, we dismiss it.

Appellant's final propositions of error argue there was insufficient evidence to find "cohabitation," "a private conjugal relationship" and "a substantial change in circumstances."

The trial court spent considerable time examining the evidence and listening to the witnesses and absent an abuse of discretion this Court will not reverse a discretionary decision by a trial court based on the evidence. Walker v. Walker, 140 Okla. 1, 282 P. 361 (1929); Hughes v. Hughes, 363 P.2d 155 (Okla.1961).

AFFIRMED.

HODGES, LAVENDER and HARGRAVE, JJ., concur.

BARNES, C.J., and OPALA, J., concur and file separate opinions.

SIMMS, V.C.J., and IRWIN and WILSON, JJ., dissent.

BARNES, Chief Justice, concurring specially:

I agree with the majority opinion, but I concur for the specific reason that it appears that the legislature, by enacting 12 O.S.Supp.1979 § 1289(D), sought to remove the impetus that existed under § 1289(A) and (B) for an alimony recipient to remain unmarried, even while cohabiting, in order to avoid statutorily-imposed loss of support alimony. It is well established that public policy favors marriage and frowns upon statutes which act to restrain or discourage the marital relationship. It was essential for the legislature to enact § 1289(D) because prior to its enactment, cohabiting recipients found that it was financially detrimental for them to marry (and thus lose support alimony), while those who married were automatically (with certain exceptions) removed from recipient status. With the enactment of 12 O.S.Supp.1979 § 1289(D), the law is equally and equitably applied to both those recipients who marry and those who do not. The law no longer serves as an impetus to discourage or encourage marriage of support recipients, but relies solely, in both cases on true financial need of the parties.

I am authorized to state that OPALA, J., joins me in this Concurring Specially opinion.

OPALA, Justice, concurring:

Under challenge in this appeal is the constitutional validity of 12 O.S.1981 § 1289D ¹ whose provisions make nonmarital cohabitation a ground for downward modification of a decree-imposed alimony award. ² The attack is narrowly anchored on invidious underinclusion. Appellant urges that the statute in contest violates the Equal Protection Clause by "penalizing" cohabitation of alimony recipients without subjecting to similar economic disadvantage those alimony obligors who live in the same lifestyle. While I concur in the court's decision that § 1289D is free from the infirmity sought to be ascribed to its terms, I write separately to add a few observations.

I.

APPELLANT'S CLAIM THAT § 1289D

IS INVIDIOUSLY UNDERINCLUSIVE

The vice of underinclusion--in the Equal Protection sense--stems from the legislative use of an impermissible classification. ³ It is not present here.

"A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike'." ⁴ The enactment challenged here does not rest on an impermissible classification scheme. It bears a rational relationship to a legitimate state objective of affording alimony obligors a form of relief against economically emancipated recipients living in a nonmarital menage which is akin to that available against remarried recipients. The legislative scheme adopted by § 1289D provides similar treatment for married and unmarried alimony obligees who are similarly situated. ⁵

Unmarried alimony recipients living in a common household with a non-spousal mate as a single economic unit are left by § 1289D in no worse jural or economic position than remarried alimony recipients. Oklahoma law, 12 O.S.1981 § 1289B, makes alimony terminable on remarriage of the recipient unless proper and timely showing is made "that some amount of support is still needed and that circumstances have not rendered [continued] payment ... inequitable." ⁶ The test for judicial assessment of a recipient's post-remarriage support need is strikingly similar to that fashioned for the cohabiting recipient. The latter may also qualify for continued alimony receipt "upon proof ... relating to need for support ...." 12 O.S.1981 § 1289D.

The states are not restricted by the Federal Constitution from either reducing or terminating an alimony award before its recipient enters into another matrimonial venture that is legally "foolproof". They are free to decide, based on their own policy, whether an event that falls short of legal remarriage will nonetheless afford a ground for relief from the adjudicated alimony obligation. ⁷ Cohabitation in a nonmatrimonial setting is usually a reliable external indicator of a newly-formed relationship which--more often than not--spells a change in economic circumstances and hence--for alimony modification purposes--may be treated on a footing similar to remarriage. Cohabitation is not a basis for, and will not justify, modification under § 1289D unless it is accompanied by "changed circumstances" that manifest the presence of economic interdependence within the common non-spousal menage. ⁸ When these elements are present, the relationship is to be viewed as a de facto remarriage. ⁹

Because our statute allows alimony modification not only upon remarriage but also on a showing of obligee's economic involvement in a home-centered nonmarital union, the Oklahoma obligor is provided with the opportunity for reduction or termination relief against a broader class of recipients--those who either de jure or de facto become economically interdependent with a new co-resident mate. ¹⁰ The fact that alimony recipients standing in an economic alliance...