November 3, 2014 § Leave a comment
The COA’s decision in McMinn v. McMinn decided October 28, 2014, includes a handy resume of the law applicable in termination of alimony cases. Since there has been so much turnover in this area of the law, I thought you might find this excerpt from Judge James’s opinion useful:
¶22. Keith argues that Sharon was receiving financial benefits from her then-boyfriend, Rooks. According to Keith, Sharon and Rooks entered into a de facto marriage and lived together from June 2011 to June 2012. Keith asserts that as a result of Sharon and Rooks’s cohabitation, alimony should be terminated.
¶23. Alimony may be terminated if the recipient spouse has entered cohabitation or a de facto marriage. Wallace v. Wallace, 12 So. 3d 572, 575 (¶14) (Miss. Ct. App. 2009). “[P]roof of cohabitation creates a presumption that a material change in circumstances has occurred.” Id. “Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶6) (Miss. 1997). In Byars, this Court held that evidence of a sexual relationship between the recipient spouse with another is not enough to terminate alimony. Byars, 850 So. 2d at 149 (¶5). However, alimony may be terminated if a payee purposefully avoids marriage to continue receipt of alimony payments. Pritchard v. Pritchard, 99 So. 3d 1174, 1179 (¶24) (Miss. Ct. App. 2012).
¶24. “There is indeed a general presumption that, where there is cohabitation, there is also mutual support.” Coggins v. Coggins, 132 So. 3d 636, 643 (¶27) (Miss. Ct. App. 2014). We have previously stated:
This presumption is based on two considerations. One is the difficulty a providing spouse faces in presenting direct evidence of mutual financial support between cohabiting parties. And the second consideration stems from the notion that parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed from the paying spouse as well as from courts seeking only financial documentation before granting a modification. Id.
¶25. The recipient spouse has the burden of proving that there is no mutual support. Alexis v. Tarver, 879 So. 2d 1078, 1080 (¶8) (Miss. Ct. App. 2004). If the recipient spouse proves no support existed, then it is possible that the alimony payments can continue. Id.
¶26. At trial, it was established that Sharon 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 testified that he observed Sharon’s car at Rooks’s house several times a week. The trial court stated that “[a] relationship accompanied by sexual activity, alone, does not rise to the level necessary to forfeit alimony.” In his brief, Keith enumerates certain behaviors such as overnight trips, Sharon’s visits to Rooks’s home, and gift exchanges. The course of conduct described, however, is similar to a normal, casual dating relationship.
¶27. “The chancellor’s findings of fact about cohabitation, de facto marriage, and mutual support are entitled to substantial deference when reviewed on appeal.” Coggins, 132 So.3d at 643 (¶29). The chancellor, as the trier of fact, found that alimony was properly awarded to Sharon. There is nothing in the record to indicate that the chancellor’s findings were manifestly wrong or there was an abuse of discretion. Accordingly, this issue is without merit.
These cases are extremely fact-intensive, and one chancellor (and the COA) may see it differently from another. They are within the trial court’s discretion, so lean heavily on your knowledge of your judge’s predilections and preferences.