Smith v. Mangum
| Decision Date | 06 October 1987 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 155 Ariz. 448,747 P.2d 609 |
| Parties | , 56 USLW 2495 Beverly Ann SMITH and Edward Gant, Petitioners, v. Honorable Richard K. MANGUM, Superior Court of the State of Arizona, in and for the County of Coconino, Respondent Judge, David Dewitt SMITH, Real Party in Interest. 203. |
| Court | Arizona Court of Appeals |
Beverly Smith (Mrs. Smith) and Edward Gant filed this special action seeking relief from a trial court order that compelled them to disclose whether they have had sexual relations. The inquiry arose during discovery in an action that Dr. David Smith (Dr. Smith) filed seeking modification of his spousal maintenance obligation to his ex-wife, Mrs. Smith. This opinion follows our order of July 15, 1987, in which we accepted jurisdiction in this special action proceeding and granted the relief requested by Mrs. Smith and Mr. Gant.
The marriage of Dr. Smith and Mrs. Smith was dissolved in 1975. The decree of dissolution presently requires Dr. Smith to pay Mrs. Smith $500 per month in spousal maintenance "until her demise or remarriage."
In 1986, Dr. Smith filed a petition to modify the spousal maintenance award. He alleged that Mrs. Smith "has become gainfully employed in the real estate business and has, upon information and belief, income substantially in excess of her needs." Accordingly, he alleged that "it would be fair, just and equitable ... to terminate the spousal maintenance payments."
During discovery, Dr. Smith sought information that would tend to indicate that Mrs. Smith and Gant have a personal relationship that is substantially equivalent to a marriage. Mrs. Smith and Gant both provided extensive personal and financial information. The information indicated that they have never lived together or discussed marriage and that they do not commingle their personal finances. The record discloses, however, that they are business associates and have used a joint business account to pay various personal expenses including professional dues, charitable donations, magazine subscriptions, hobby expenses, a down payment on a car, candy, and flowers. Mrs. Smith and Gant have attended various social functions together and have taken business trips and a vacation together.
During his deposition, Gant answered all questions and supplied all records regarding both his personal and business financial affairs. Gant refused to answer specific questions concerning whether a sexual relationship existed between him and Mrs. Smith, arguing that his private life was irrelevant to the proceeding and that the questions violated his right of privacy.
During her deposition, Mrs. Smith also refused to answer questions regarding the alleged sexual relationship. She claimed that the questions were irrelevant in proceedings relating to a request for modification of spousal maintenance provisions of a decree and also that the inquiry violated her constitutional rights to due process, privacy, and freedom of association.
Dr. Smith filed a motion to compel Gant to answer the questions regarding his alleged sexual relationship with Mrs. Smith, and the trial court granted the motion. Subsequently, Gant filed a motion for protective order.
Dr. Smith then filed a motion to compel Mrs. Smith to answer questions regarding her alleged sexual relationship with Gant. He also filed a motion for an order holding Gant in contempt of court for failing to appear at his scheduled deposition.
The trial court denied both Gant's motion for a protective order and Dr. Smith's motion to hold Gant in contempt. The court also granted Dr. Smith's motion to compel Mrs. Smith to testify.
Mrs. Smith and Gant both filed motions for reconsideration, and Mrs. Smith sought a stay of the order. The trial court denied the motions. At subsequent depositions, Mrs. Smith and Gant answered all questions except those regarding any sexual or romantic relationship with each other. They then filed a special action petition in this court. As indicated above, after hearing oral argument we issued an order accepting jurisdiction and granting relief, and indicated that this opinion would follow.
A.R.S. § 25-327(B) provides:
The decree entered in the Smith dissolution proceedings conformed to this statutory provision and awarded Mrs. Smith spousal maintenance "until her demise or remarriage."
The parties recognize that Mrs. Smith is neither dead nor has she remarried. Doctor Smith argues, however, that Mrs. Smith's spousal maintenance should be terminated if it can be shown that her relationship with Mr. Gant constitutes a "de facto " marriage, even though no legal remarriage has occurred. 1 From this premise he argues that questions pertaining to a sexual relationship between Mrs. Smith and Mr. Gant would be relevant to show the existence of a de facto marriage. The respondent judge agreed with this analysis, stating: "[I]f it looks like a marriage and acts like a marriage, it should be treated like a marriage."
We do not find this reasoning persuasive. In our opinion the statutory and decree provisions requiring the termination of spousal maintenance upon remarriage do not become effective unless the receiving spouse legally remarries. Sound policy reasons that support the elimination of spousal maintenance upon remarriage do not apply in a de facto marriage or cohabitation relationship. 2 Unlike in remarriage, in the absence of an express or implied agreement, no quasi-marital property rights accrue as a result of cohabitation. Similarly, there is no legal support obligation imposed on the other party during the relationship, and no spousal maintenance can be awarded when and if the relationship ends. Cook v. Cook, 142 Ariz. 573, 577-80, 691 P.2d 664, 668-71 (1984). Thus, in a cohabitation or de facto marriage relationship, the property and legal support rights of the receiving spouse may be substantially less than they would have been if there had been an actual remarriage.
When no statute controls the situation, courts in other jurisdictions have developed two theories regarding how cohabitation should affect spousal maintenance. Under the majority view, courts modify the amount of spousal maintenance received by the cohabiting ex-spouse only if the spouse's support needs have changed. See, e.g., Kersten v. Kersten, 141 Mich.App. 182, 366 N.W.2d 92 (1985); In re Marriage of Gonzales, 172 Cal.Rptr. 179, 116 Cal.App.3d 556 (1981) (). Under the minority view, some courts treat cohabitation as if it were a legal remarriage and hold that cohabitation terminates the obligation to...
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Miller v. Miller, 04-187.
...the financial circumstances of the recipient spouse enough to substantially reduce the need for maintenance. Smith v. Mangum, 155 Ariz. 448, 747 P.2d 609, 611 (Ct. App.1987) (stating majority rule that "courts modify the amount of spousal maintenance received by the cohabiting ex-spouse onl......
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Van Dyke v. Steinle
...with Galvin is not a sufficient ground on which to terminate spousal maintenance under A.R.S. § 25-327 and Smith v. Mangum, 155 Ariz. 448, 747 P.2d 609 (App.1987). She further argues that husband has failed to establish any substantial or continuing changes in her economic circumstances tha......
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Gilman v. Gilman
...the relationship, no spousal maintenance can be awarded when and if the relationship ends. See generally Smith v. Mangum, 155 Ariz. 448, 747 P.2d 609, 611 (Ariz.Ct.App.1987). Moreover, absent an express or implied agreement to the contrary, no quasi-marital property rights accrue as a resul......
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Lucas v. Lucas
...the case law of other jurisdictions casts the decision in terms of the precise need of the recipient spouse. See Smith v. Mangum, 155 Ariz. 448, 747 P.2d 609, 612 (1987) (holding that the "focal point" of the court's inquiry must be upon the recipient's need for continued support). The burd......