Sims v. Sims, 35998
| Decision Date | 23 April 1980 |
| Docket Number | No. 35998,35998 |
| Citation | 266 S.E.2d 493,245 Ga. 680 |
| Parties | SIMS v. SIMS. |
| Court | Georgia Supreme Court |
Wilbur T. Fitzgerald, Atlanta, for appellant.
James B. Drew, Jr., Atlanta, E. Freeman Leverett, Elberton, for appellee.
Plaintiff, former husband, brought an action under the provisions of Code Ann. § 30-220(b) praying that a previous divorce and alimony decree be modified and revised by relieving him of all obligations for alimony. The grounds for an action under the Code section is that the former spouse is voluntarily cohabiting with a third party of the opposite sex in a meretricious relationship. The trial court granted the relief sought by the plaintiff and relieved him of any further obligation to pay alimony to the defendant. It is from this order that defendant brings her appeal to this court.
1. Defendant complained that the evidence was insufficient to support the finding that defendant was dwelling with a person of the opposite sex, continuously and openly, in a meretricious relationship. The parties were afforded a full and complete hearing by the trial court and a voluminous record was made. We have carefully studied the record and find that there was sufficient evidence adduced at the hearing to authorize the finding by the trial court that defendant and a third party were dwelling together continuously in a meretricious relationship. Pape v. Pape, 240 Ga. 806, 242 S.E.2d 584 (1978); Berkowitz v. Berkowitz, 239 Ga. 1, 236 S.E.2d 7 (1977).
2. Defendant also contends that the parties through their settlement agreement waived the statutory right to seek modification of the permanent alimony agreed to therein and made part of the court's decree. We disagree. The "settlement and release" language which appears in the agreement repeatedly refers to the settlement or release of rights or claims which the parties "may have" against the other. There is nothing in the agreement to release future rights or claims. We have held that where the language is couched in the present tense, there is no waiver of rights to modification. Hilsman v. Hilsman, 245 Ga. 555, 266 S.E.2d 173 (1980); Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9 (1976).
3. Defendant contends plaintiff had no right to seek a modification under present Code Ann. § 30-220(b) because he had within two years brought a modification action pursuant to this Code section as it previously existed prior to its being declared unconstitutional. See Sims v. Sims, 243 Ga. 275, 253 S.E.2d 762 (1979). This contention is grounded upon the prevision in Code Ann. § 30-220(a) that "No petition may be filed by either former spouse under this law within a period of two years from the date of the filing of a previous petition by the same former spouse." The above provision was part of the original Code section which was enacted in 1955 (Ga.L.1955, pp. 630-632) providing for modification because of a change in income and financial status of the husband. The limitation still appears in that subsection as it now exists. The historical presence of this provision in that subsection and its noticeable absence in Code Ann. § 30-220(b) clearly shows that the General Assembly intended for the limitation to apply only to modification actions grounded upon financial and income changes. We therefore hold that the two year limitation does not apply to the live in lover statute.
4. In Morris v. Morris, 244 Ga. 120, 259 S.E.2d 65 (1979), we held that alimony judgments entered prior to the effective date of the Code section being here considered are not immune from modification based upon our "live in lover" laws. We also held that evidence of "living in" existing at and prior to the effective dates of the statute are admissible. Defendant urges the court to depart from this holding. This we decline to do.
5. Defendant attacks the constitutionality of Code Ann. § 30-220(b) by contending that this section denies her equal protection of the laws and due process rights afforded by both the Georgia and United States Constitutions. She contends that the statute creates a classification which is devoid of a rational basis. The classification established by this Code section is of former spouses receiving periodic payments of alimony who voluntarily cohabit with a third party of the opposite sex in a meretricious relationship. That class of persons is made subject to modification of provisions made for periodic payment of permanent alimony. It is well recognized that the state has an interest in the institution of marriage. Code Ann. § 53-107. It is from the marriage relationship that any right or claim for alimony arises and alimony is in fact defined as ". . . an allowance out of one party's estate, made...
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