Tillis v. Tillis
| Decision Date | 17 June 1981 |
| Citation | 405 So.2d 938 |
| Parties | Patsy TILLIS, now Smith v. Lowell A. TILLIS. Civ. 2586. |
| Court | Alabama Court of Civil Appeals |
James H. Farmer, Jr. of Farmer, Farmer, Price & Espy, Dothan, for appellant.
James W. Rane, Abbeville, for appellee.
The pivotal question in this case is: Do periodic alimony payments, which are separate from child support payments, terminate as of the date of the admitted or uncontested remarriage of the former spouse to whom such alimony is paid?
The 1973 judgment which divorced the parties was approved and incorporated therein their agreement whereby the husband, Mr. Tillis, was to pay monthly child support of $500 and periodic alimony of $300 per month to the wife, who subsequently remarried and is now Mrs. Smith. When she remarried, the periodic alimony payments of Mr. Tillis were current, but he ceased making such payments at that time and has made no alimony payment since.
Mrs. Smith filed her petition to place Mr. Tillis in contempt of court, among other things, for an arrearage totaling $13,200 in periodic alimony payments. Mr. Tillis later filed a petition to terminate such alimony as of the date of Mrs. Smith's remarriage. After an evidentiary hearing, by means of a learned six-page judgment the trial court, in effect, denied enforcement of Mrs. Smith's petition, and, by separate order, granted the relief sought by Mr. Tillis. Mrs. Smith now appeals.
The statute in controversy appears in the pocket parts to the Code of Alabama (1975) as § 30-2-55 as follows:
Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments or alimony already received shall have to be reimbursed.
The first sentence of that act was enacted in 1978 and the last sentence was added by an amendatory act in 1979. At the November 1980 general election, the people adopted an amendment to Alabama's constitution, which provided that the legislature Act 81-155 of the 1981 legislature merely reenacted in toto § 30-2-55 as above copied.
Mrs. Smith's brief in this court states, "(I)t is clear that this statute applies to the case at bar." Mr. Tillis concurs in that conclusion. Their disagreement is as to when her periodic alimony should terminate-as of the date of her remarriage or on the date of the belated filing of his petition to terminate alimony.
Hearn v. Hearn, 379 So.2d 595 (Ala.Civ.App.1979), cert. denied, 379 So.2d 597 (Ala.1980) is our only appellate decision touching upon the point in question. There the circuit court terminated the wife's periodic alimony as of the date of the filing of the husband's alimony termination petition, and that judgment was affirmed on appeal. Factually, however, the cases are greatly distinguishable. There, the husband was required to pay a lump sum of $185 per week as "alimony and child support," and a court hearing and judgment were essential to ascertain the amount of the $185 which was attributable to alimony and what amount thereof should be allocated to child support. Here the two items of alimony and child support were separated by the terms of the approved agreement of the parties and the award of periodic alimony was already distinct from child support payments. In Hearn it was stated:
In this instance, the trial court had to first make a determination of what amount of the support award was alimony and what amount was child support. Such a determination was essential in order for the court to terminate the...
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Kelley v. STATE DEPT. OF REVENUE
...periodic alimony payments which are not combined with child support cease upon the remarriage of the former wife. Tillis v. Tillis, 405 So.2d 938 (Ala.Civ.App.1981), cert. denied, 405 So.2d 940 (Ala.1981). It also ends upon the death of either of the former spouses. Borton v. Borton, 230 Al......
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Henderson v. Mogren
...paying spouse to pay periodic alimony arrearages that accrued during the other spouse's remarriage or cohabitation. See Tillis v. Tillis, 405 So.2d 938 (Ala.Civ.App.1981) (where husband stopped paying alimony on date of wife's remarriage, he did not have to repay alimony due between date of......
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RoMe. Samples SCOTT III v. SCOTT
...paying spouse to pay periodic alimony arrearages that accrued during the other spouse's remarriage or cohabitation. See Tillis v. Tillis, 405 So.2d 938 (Ala.Civ.App.1981) (where husband stopped paying alimony on date of wife's remarriage, he did not have to repay alimony due between date of......
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Cheek v. Cheek
...the obligation to pay periodic alimony ceases upon the remarriage of the receiving spouse as directed under § 30-2-55. Tillis v. Tillis, 405 So.2d 938 (Ala.Civ.App.1981). In further support of his argument, the husband cites Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983), where the cou......