Cohabitation and Termination of Alimony
July 5, 2016 § 2 Comments
If you have been looking for a history of Mississippi law on termination of alimony due to cohabitation, you need look no further than the MSSC’s decision in Heiter v. Heiter, by Sheffield, handed down June 9, 2016.
Patrick and Lindalyn Heiter were divorced in 2001. At the time of the divorce, Lindalyn had been diagnosed with several cognitive conditions that impaired her ability to perform simple tasks such as counting money or writing checks. Her ability to hold a job was impacted by her inability to coordinate or manage time properly. She could complete small tasks, but lacked organizational skills. Dr. Koch, a professional who examined her, opined that she would need to reside in an assisted-living situation; she had attempted living on her own after the separation, but those attempts ended poorly. Patrick agreed to pay Lindalyn $650 a month in periodic alimony.
Soon after the divorce, the court appointed co-guardians, one for her person, and the other for her estate. Sheffield, an attorney whose name appears in the style of the case, was appointed guardian of her estate, and Stepro was appointed guardian of the person.
In 2007, Patrick filed a petition for modification to terminate alimony, alleging that Lindlyn was cohabiting with a male, Curtis Cole. Patrick also claimed that she was receiving SSI, but that proved to be untrue.
Following a trial, the chancellor found that Lindalyn’s only income was the $650 alimony, and that she was drawing down some retirement funds she received in the divorce to make up the nearly $300 deficit between those sums and her expenses. The chancellor also found:
. . . [I]t is clear that Lindalyn is also unable to maintain employment. . . .
There is ample evidence that both Curtis and Lindalyn are supporting each other financially, and that Lindalyn would not be able to survive if she did not share finances with him. . . . Lindalyn only pays half of the rent and utilities on the house, while Curtis picks up the remaining expenses. . . . Curtis is currently on disability and does not work. . . .
The chancellor denied Patrick’s request to terminate alimony, and he appealed.
Justice Randolph addressed Patrick’s for a unanimous court:
¶5. Patrick sought to be relieved from paying alimony to Lindalyn. Patrick alleged that Lindalyn was cohabiting with a male and was receiving SSI benefits. Patrick further averred that there had been “a substantial and material change in circumstances since the original decree was entered,” and that the original decree should be modified to terminate or reduce his alimony obligation. Traditionally, alimony payments cease only if the receiving party remarries or either party dies. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). However, a chancellor has authority to modify alimony “upon a finding of a substantial change in circumstances, regardless of any intent expressed by the parties to the contrary.” Id.
¶6. In 1961, this Court was first faced with whether “a chancery court [could] divest a wife of future alimony payments on the ground of misconduct of the wife after the divorce.” Rubisoff v. Rubisoff, 242 Miss. 225, 233, 133 So. 2d 534, 536 (1961). Citing Bunkley and Morse’s Amis on Divorce and Separation in Mississippi [Fn 4] and 17 American Jurisprudence, Divorce and Separation, the Rubisoff Court concluded that a chancery court could exercise its powers by modifying or revoking its prior alimony award. Rubisoff, 242 Miss. at 236, 133 So. 2d at 538. The Court further determined that “it was the duty of the trier of facts to determine whether or not the alleged misconduct . . . was of such nature as to forfeit [the] right to future alimony.” Rubisoff, 242 Miss. at 236, 133 So. 2d at 538.
[Fn 4] 4 J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi, § 6.12 (1957); 17 Am. Jur. Divorce and Separation, § 755.
¶7. Twenty years later, the issue arose again in McRae v. McRae, 381 So. 2d 1052 (Miss. 1980). The Court held that “[n]o hard and fast rule or mold may be laid down to fit at once all of the spectrum of misconduct. The question must be faced and determined on a case-by-case basis.” McRae, 381 So. 2d at 1055.
¶8. Relying on Rubisoff and McRae, the Court later affirmed the judgment of a chancellor who found that a recipient spouse “had forfeited her right to future support from appellee because her admitted adultery during the period following her divorce was of sufficient duration and frequency to justify the holding of the chancellor.” McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). The Court stated that “[t]o hold otherwise would be to condone adultery and in effect would penalize a divorcee for marrying but reward her for cohabitation without benefit of marriage.” Id.
¶9. Our law further evolved in Hammonds v. Hammonds, 641 So. 2d 1211 (Miss. 1994), in which the Court held that Rubisoff and its progeny “clearly reflect a moral judgment that a divorced woman should not engage in sexual relations; the penalty for such activity is forfeiture of her right to support from her ex-husband.” Hammonds, 641 So. 2d at 1216. The Hammonds Court departed from the prior line of cases and remanded the case for the chancellor to consider the “financial, rather than moral aspect of cohabitation” and further held there is a “presumption that the divorced woman’s partner/cohabitant is providing financial support, thereby eliminating or reducing her need for support from her ex-husband” unless the unique facts of the case direct otherwise. Id. at 1216-17. The Hammonds Court adopted a two-prong test which requires chancellors to consider whether a third party provides support to the recipient spouse and whether the recipient spouse contributes to the support of the third party. Id.
¶10. In Ellis v. Ellis, 651 So. 2d 1068 (Miss. 1995), the Court again remanded a case for a chancellor to determine (1) if there was cohabitation, (2) if the ex-wife was being supported by or was supporting her suitor, and (3) if her financial needs had changed due to the cohabitation and/or support. Ellis, 651 So. 2d at 1074. The Ellis Court cited a Florida [Fn 5]case which stated that cohabitation will raise a presumption of a material change in circumstances, but cohabitation alone does not require an automatic reduction or termination of alimony. Id. at 1072.
[Fn 5] DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. App. 1 Dist.1987).
¶11. In Scharwath, this Court officially adopted the Florida rule and held “that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (Miss. 1997). This presumption shifts the burden to the recipient spouse to produce evidence contradicting mutual financial support. Id. However, the paying spouse still must show that the cohabitation results in “a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs” before alimony can be modified. Id.
¶12. At the conclusion of the presentation of evidence by Patrick, the chancellor denied Lindalyn’s motion to dismiss, satisfied that Patrick had offered sufficient evidence of cohabitation and mutual support, which required Lindalyn to offer evidence related to mutual financial support. Lindalyn admitted that she lived with Curtis, but without sexual relations, and that they mutually supported one another. However, she denied that her financial needs had been altered due to the cohabitation and mutual support. After the parties concluded presentation of their proof, the chancellor announced she would take the case under advisement and would issue a written opinion.
¶13. The chancellor reviewed the evidence, considered the law, and issued an extensive, nine-page Findings of Fact and Conclusions of Law. The chancellor found that Patrick had failed to prove that Lindalyn’s financial needs were altered by her cohabitation with Curtis or the mutual support provided by Curtis. The chancellor found that there was no doubt that Lindalyn was receiving mutual financial support from Curtis. However, the chancellor noted that this was a “factually unique scenario . . . in which [Lindalyn] has no choice but to cohabit with another individual in order to survive.” The testimony presented by Brenda Stepro and Haidee Sheffield, Dr. Koch’s psychological report, and evidence of Lindalyn’s prior living arrangements all support the chancellor’s finding that Lindalyn must live with another person.
¶14. The chancellor held that “[w]ithout the $650.00 she receives from Patrick, Lindalyn would not be able to meet her financial obligations each month without accruing . . . penalties from withdrawals on the retirement account.” Reviewing the evidence submitted to the chancellor, there is sufficient proof that the support provided by Curtis to Lindalyn was not enough to justify eliminating or reducing Lindalyn’s support from Patrick. We find that the chancellor did not abuse her discretion in denying Patrick’s motion to terminate or modify alimony.
That’s about as concise a statement as you will find on the evolution of Mississippi law in this area.
Oh, and the court also affirmed the chancellor’s award of an attorney’s fee to Lindlyn based on testimony of her inability to pay. That’s some authority you might want to file away for future use, because getting an award of attorney’s fees in a modification such as this is not something you see every day.
Does the analysis change if the issue arises during the divorce proceeding because one spouse moved in with a paramour? I.e., not modification/termination of alimony, but the decision whether to award it in the first place?
Yes, because marital fault is one of the Armstrong factors for award of alimony. Also, financial need is a factor, and a live-in would impact need in two ways: one, that the live-in is contributing (or should) to the household expenses; and two, that if the live-in is being supported by the spouse, that would be an unreasonable expense that should not be counted to support his or her financial need.