Termination or Modification of Alimony Today
February 25, 2016 § 2 Comments
Timothy and Mariel Hughes were divorced in 2008. Tim was ordered to pay Mariel $2,500 a month in periodic alimony.
Tim filed pleadings in 2011 to terminate alimony based on cohabitation and de facto marriage.
The case was set for a two-day trial in May, 2013, but could not be concluded in that time, so a date was set four months later for the third day. Then the original chancellor recused himself, and the case was reassigned to another chancellor. The third day of trial was scheduled for a date ten months after the first day. Following a hearing, the chancellor ruled that Tim had failed to prove either cohabitation or a de facto marriage. Tim appealed.
In Hughes v. Hughes, handed down February 16, 2016, the COA affirmed.
Judge Wilson’s opinion includes a helpful exposition on the law. Here’s how he addressed the law of cohabitation vis a vis alimony:
¶7. In an earlier time, a divorced woman risked forfeiture of her right to alimony payments if she engaged in a sexual relationship with another man subsequent to the divorce. See, e.g., Owen v. Gerity, 422 So. 2d 284, 287-88 (Miss. 1982); McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). Such forfeitures were based at least in part on “a moral judgment that a divorced woman should not engage in sexual relations.” Hammonds [v. Hammonds], 641 So. 2d [1211,] at 1216[(Miss. 1994)]; see also McHann, 383 So. 2d at 826 (“To hold otherwise would be to condone adultery . . . .”). However, in Hammonds, the Supreme Court limited this forfeiture doctrine to cases in which the alimony recipient is “cohabitating” with another and receiving support from, or providing support to, that person such that the financial need for alimony is reduced or eliminated. Hammonds, 641 So. 2d at 1217. Per Hammonds, the “moral aspects of the cohabitation” are no longer a basis for terminating alimony. Id. In a subsequent decision, the Court clarified that “proof of cohabitation creates a presumption that a material change in circumstances has occurred” and “shift[s] the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶7) (Miss. 1997).
¶8. In Scharwath, after Frank and Dianna divorced, Dianna commenced a relationship and cohabited with Jim Burns. Id. at (¶5). She allowed Burns to live in her home rent-free and provided him with a truck for use in his carpentry business. Id. at (¶6). In turn, Burns made improvements to the home, including re-flooring the basement and building a deck; he regularly mowed the yard; and he took on various other tasks and responsibilities around the house. Id. “He even moved furniture into the home[.]” Id. On these facts, the chancellor found that Dianna and Burns were cohabiting but denied Frank’s petition to modify alimony because he found that the cohabitation did not involve substantial mutual support. Id. at (¶5). On appeal, the Supreme Court held that the chancellor erred by relying on “the lack of direct financial evidence” of mutual support. Id. at (¶7). The Court observed that “parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed” if “only financial documentation” will suffice to support such a finding. Id. For this reason, the Court adopted—and remanded to the chancellor with instructions to apply—a “rule that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Id.
¶9. In a more recent case, Bill alleged that his ex-wife, Alicia, had forfeited her right to alimony by cohabiting with her boyfriend and enjoying his support. Coggins [v. Coggins] , 132 So. 3d [636,] at 643 (¶26) [(Miss. App. 2014)]. “Bill’s main evidence of cohabitation” was that the boyfriend’s car was often at Alicia’s house late at night and early in the morning. Id. at (¶28). Alicia and her boyfriend admitted that he stayed at her house one or two nights a week, but both denied that he lived there permanently. Id. The boyfriend had his own residence, kept no personal items at Alicia’s house, and did not contribute to her household financially or in kind. Id. The chancellor found that “Bill failed to prove Alicia cohabited with her boyfriend, so the mutual support presumption did not arise.” Id. at (¶27). The chancellor also found that even if Alicia and her boyfriend were deemed to be cohabiting, she had rebutted the presumption of mutual support. Id. Emphasizing that a “chancellor’s findings of fact about cohabitation, de facto marriage, and mutual support ‘are entitled to substantial deference when reviewed on appeal,’” we affirmed. Id. at (¶29) (quoting Pritchard v. Pritchard, 99 So. 3d 1174, 1177 (¶19) (Miss. Ct. App. 2012)).
¶10. In another recent case, we affirmed the denial of a motion to modify alimony on the following facts:
Sharon [(the ex-wife)] had a sexual relationship with Rooks, regularly stayed overnight weekends and several days during the week, and went on vacations with him and his family. Sharon and Rooks testified that Sharon did not receive any financial help from him to pay her bills or contribute to her everyday expenses. Sharon also maintained a separate residence and stated that she and Rooks had no plans to marry. Keith [(the ex-husband)] testified that he observed Sharon’s car at Rooks’s house several times a week. McMinn, 171 So. 3d at 518 (¶26). We agreed with the chancellor that a “relationship accompanied by sexual activity, alone, does not rise to the level necessary to forfeit alimony.” Id. Indeed, the Supreme Court made this point clear twenty years earlier in Hammonds. We reemphasized that the chancellor’s findings on these issues are entitled to “substantial deference when reviewed on appeal,” and we found nothing “manifestly wrong” in the chancellor’s determination that Keith failed to prove cohabitation or mutual support. Id. at (¶27) (quoting Coggins, 132 So. 3d at 643 (¶29)).
The court went on to analyze the proof, the court held that the chancellor properly declined to apply the presumption of mutual support.
As for the issue of de facto marriage, the court explained the law this way:
¶18. In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a “de facto marriage.” A de facto marriage may be proven in two ways. See Deborah H. Bell, Mississippi Family Law § 9.10[2] (2005). First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony. See Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999). Second, a de facto marriage can be found absent cohabitation if the alimony recipient and another person have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). We discuss these two theories of de facto marriage below.
A. Avoiding Remarriage
¶19. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony of $5,000 per month. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple told friends that they planned to marry “next year,” but then testified that they had no immediate plans to marry. Id. However, on cross-examination, Linda “admitted . . . that she and Anderson had not to go on excursions they [might] not otherwise be able to enjoy.” The chancellor did not clearly or manifestly err by concluding that the mere sharing of travel expenses with a boyfriend is not “mutual support” sufficient to warrant the termination of alimony. married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate homes, though Anderson did have a key to Linda’s home. Id. at 1133-34 (¶6). Anderson spent the night at Linda’s home only a few times a month, but he ate meals there regularly, ran errands for her, and did yard work and other household chores. Id. at 1134 (¶6). Linda and Anderson vacationed together and admitted to a sexual relationship. Id. They spent holidays together and bought gifts for each other, and Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothing and cosmetics from the department store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).
¶20. On appeal, we concluded that there was “substantial evidence in the record to support the chancellor’s finding that [Linda] and Anderson [had] provided ‘mutual support’ to one another.” Id. at 1136 (¶15). Anderson provided discounts and domestic services to Linda, and Linda wrote him checks and allowed him use of her “luxurious home.” Id. Thus, we found that it was “clear from the record that Anderson benefit from [Ben’s] largesse and [Linda] benefit financially from her relationship with Anderson.” Id.
¶21. We also affirmed the chancellor’s termination of alimony on the ground that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id. (quoting Anderson v. Anderson, 692 So. 2d 65, 72 (Miss. 1997)). [Fn omitted] * * *
B. Living Arrangements and Financial Affairs
¶23. As noted previously, a de facto marriage may exist where an alimony recipient and a third party have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope, 803 So. 2d at 504 (¶12) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). In Pope, the chancellor found that no material change in circumstances had occurred where the ex-wife became “romantically involved with another man,” she “spent a number of weekends in his company” at his expense, and “on five or six occasions [he] stayed overnight in her home.” Id. at (¶11). There was also evidence that he “helped her buy groceries” when he visited and loaned her $4,000, which she later repaid. Id. We affirmed, concluding that the chancellor did not abuse his discretion by finding “that the relationship . . . had never risen to the level . . . [of] a de facto marriage relationship.” Id. at (¶13).
¶24. Conversely, in Burrus, we affirmed a chancellor’s finding of a de facto marriage between the alimony recipient, Jolee, and James, who regularly stayed at her house. James had a key to Jolee’s home and kept his clothes there.” Burrus [v. Burrus], 962 So. 2d [618,] at 622 (¶18) [(Miss. App. 2006)]. Jolee also gave James an ATM card for her bank account and authority to use it. She spent more than $7,500 on, among other things, James’s attorneys’ fees and other costs of his defense on criminal charges, his motel rooms while he was attempting to evade arrest, and his clothes, cell phone, and cell phone bills. Id. “In return, James . . . continually performed and provided ‘in kind’ household services and chores in Jolee’s home, including maintenance and repair of the home.” Id. “Additionally, Jolee testified, as did her children, that she had recently gotten a tattoo that [said], ‘James’ girl.’” Id. [Fn omitted]
A few comments to follow in a later post.
The Better Chancery Practice Blog 
Thank you for this post. I’m interested to hear thoughts on a situation where an alimony recipient is cohabitating and then ends the cohabitation after a claim of termination of alimony is made. Can the effect of that cohabitation be removed by ending the cohabitation? The facts could be that the alimony recipient continues cohabitation right up until a few months or weeks before a long awaited trial. I suppose one moves forward to show proof of a de facto marriage?
I think the judge would look at the circumstances leading up to the filing. The cessation does not undo the established track record. It’s like physical violence as HCIT. The fact that the beatings stopped with the filing of a divorce complaint does not undo the fact that they happened. Of course, in a close case, the judge could use the cessation as an indicator that the problem is resolved, and no relief is necessary.