August 27, 2013 § 2 Comments
The chancery court always retains jurisdiction to modify an award of alimony. For many years, Mississippi law was that periodic alimony was terminable upon a showing that the recipient had cohabited or engaged in a sexual relationship. That rigid rule has softened over the years.
In the COA case of Pritchard v. Pritchard, handed down October 23, 2012, Judge Griffis penned as good a synopsis of the law on termination of alimony as you will be likely to find. Here it is:
¶20. The supreme court has found “that cohabitation creates a presumption of mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1210 (¶2) (Miss. Ct. App. 1997). The presumption shifts “the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage.” Id. at 1211 (¶7).
¶21. In Scharwath, the ex-wife, recipient spouse, had a sexual relationship with another man and provided him a truck and rent-free home. Id. at 1211 (¶¶5-6). The man, in turn, provided support around the house when he built a deck, retiled the basement, moved furniture, cut the grass, washed the car, and carried out the garbage. Id. at (¶6). “In kind” services must be assigned monetary value. See Tedford v. Dempsey, 437 So. 2d 410, 422 n.11 (Miss. 1983). The supreme court in Scharwath held that the chancellor erred when he did not consider the mutual support. Scharwath, 702 So. 2d at 1211 (¶6).
¶22. Periodic alimony may be terminated based on cohabitation or a de facto marriage. In her book, Professor Deborah H. Bell summarized this principle as follows:
Cohabitation and presumed support. In 1997, the supreme court discarded the fact-based test for determining whether an alimony payee’s cohabitation involves mutual financial support. The court reasoned that an alimony payor lacks the necessary information to prove mutual support between cohabitants. Accordingly, the court adopted a presumption that cohabitation is accompanied by financial support. . . . [Scharwath, 702 So. 2d at 1211; see Alexis v. Tarver, 879 So. 2d 1078, 1082 (Miss. Ct. App. 2004).]
A short period of cohabitation may not trigger the presumption. A chancellor properly refused to reduce alimony to a recipient whose friend and two sons moved into her house for five weeks after a hurricane. Her friend did not share her bedroom, bought groceries only once, and moved when his home was repaired. [Tillman v. Tillman, 809 So. 2d 767, 770 (Miss. Ct. App. 2002).] In a factually unusual case, a chancellor properly conditioned an award of rehabilitative alimony on the wife’s moving from her boyfriend’s home and establishing her own residence. [Alexis, 879 So. 2d at 1082.]
. . .
De facto marriage. Alimony may also be terminated even in the absence of cohabitation if a court finds that a payee is avoiding marriage to continue alimony. Alimony was terminated to a payee who was engaged without immediate plans to marry, even though there was little evidence of mutual financial support, on the basis that she had entered a de facto marriage. The court found significant that the couple appeared to forego marriage to obtain the benefits of alimony, stating that “equity should not require the paying spouse to endure supporting such misconduct.” [Martin v. Martin, 751 So. 2d 1132, 1136 (Miss. Ct. App. 1999).]
The de facto marriage test was restated recently to include an element of financial support. The court of appeals stated that alimony may be terminated where a recipient and another person “so fashioned their relationship, to include their physical living arrangements and their financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Applying this test, no de facto marriage existed based on proof that a woman spent several weekends with a man, that he stayed at her house overnight five or six times, and that he purchased groceries on those occasions. [Pope, 803 So. 2d at 504.]
Deborah H. Bell, Bell on Mississippi Family Law § 9.10[a]-[b] (2005).
¶23. In Burrus, the recipient spouse was paying for her “live in”’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, materials for his job, and motel room charges. Burrus, 962 So. 2d at 622-23 (¶18). The “live in” provided “in kind” household services and chores, such as maintenance and repair of the home. We held that there was sufficient evidence to support the chancellor’s decision there to modify alimony, child support, and custody. Id. at 626 (¶33).
The Pritchard case was the subject of a prior post on this blog that was somewhat summary. This issue can be so intricate, however, that I thought it would be helpful to set out the applicable law in a concise fashion for your use.
October 29, 2012 § 1 Comment
The COA decision in Pritchard v. Pritchard, handed down October 23, 2012, is the most recent alimony termination case in which the courts have addressed the rule that cohabitation creates a presumption of mutual support, shifting the burden to the recipient spouse to produce evidence that there is no mutual support within the de facto marriage.
You need to read Pritchard yourself to appreciate the scope of mutual support that was enough to trigger the presumption. I won’t rehash them here. But here are a few nuggets gleaned from Judge Griffis’s decision (which quotes Professor Bell’s treatise):
- Recipient-wife and another man had a sexual relationship, and she provided him a truck and lodging rent-free. In return, he built a deck, installed a floor, moved furniture, did yard work, and carried out the garbage. The trial court should have considered this mutual support. Scharwath v. Scharwath, 702 So.2d 1210 (Miss.App. 1997).
- A de facto marriage can terminate alimony, as where a couple was engaged without immediate plans to marry, solely to prolong the receipt of alimony. Martin v. Martin, 751 So.2d 1132, 1136 (Miss. App. 1999).
- A similar result in Pope v. Pope, 803 So.2d 499, 504 (Miss.App. 2002).
- Where the recipient spouse pays for her live-in’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, job materials, and motel room, and the live-in provides household services and chores such as maintenance and repair of the home, the presumption is triggered. Burrus v. Burrus, 926 So.2d 618, 621 (Miss.App. 2006).
In Pritchard, the COA found that the chancellor applied the correct legal standard, but that there was not sufficient evidence to support the chancellor’s decision that the presumption was overcome by proof of non-mutual support. The COA reversed and rendered.
CAVEAT: a brief period of cohabitation may not trigger the presumption. See, Tillman v. Tillman, 809 So.2d 767, 770 (Miss.App. 2002).
These cases are fact-intensive. Before you go thrashing off into this swamp, you would do well to study what Professor Bell has to say, and read as many cases on point that you can find. There has to be either cohabitation for more than a short period coupled with mutual support, or there must be a de facto marriage. The latter is a more elusive concept. You will likely need a substantial base of discovery or PI work to do the job.