Wilson v. Wilson
Wilson v. Wilson
Concurring in Part
concurring in part, dissenting in part:
¶ 1 I must respectfully dissent from the majority’s decision insofar as it remands this matter to the trial court for further proceedings under 43 O.S.1991, § 134 D. I would affirm the trial court’s award of support alimony and denial of Orlan’s motion to modify the award based on its finding that § 134 C, under which Orlan brought his motion, was the only applicable statute and he did not prove his case. These statutory subsections, C and D of § 134, are, as the majority points out, separate and independent. I believe that if they are they are not kept so, confusion and perhaps mischief will result as this case illustrates. This motion to modify was brought under the explicit provisions of § 134 C and the parties and the trial court considered that to be the only applicable statute. In my opinion, the scope of that hearing did not change because Lacretia was forthcoming and revealed her whole financial status when asked.
I am authorized to state that Justice KAUGER joins with the views expressed herein.
Opinion of the Court
¶ 1 Central to resolution of today’s cause is what effect is to be accorded cohabitation in a trial court’s deliberations concerning modification of earlier awarded support alimony.
I
FACTS AND PROCEDURAL HISTORY
¶ 2 Orlan and Lacretia Wilson
II
THE STANDARD OF REVIEW
13 An award of support alimony and hence its modification are matters of equitable cognizance.
III
THE EVIDENCE ADDUCED AND THE LEGAL ARGUMENTS PRESSED BY ORLAN AT TRIAL IMPLICATE THE TERMS OF BOTH SUB PARTS C AND D OF 43 O.S.1991 § 134; TO AVOID AMBIGUITY AND DUPLICITY THESE PROVISIONS MUST BE CONSTRUED IN PARI MATERIA.
¶ 4 Title 43 O.S.1991 § 134 C — the statutory provision allowing reduction or termination of support alimony upon proof of cohabitation — was first enacted in 1979.
A
¶5 Fundamental to all statutory construction is ascertainment of legislative intent and purpose as expressed in the act’s language.
B
¶ 6 Support alimony, as defined by Oklahoma’s extant jurisprudence and as reflected in Title 43 O.S.1991 § 134, is a need-based concept.
¶ 7 In assessing the two sub parts’ application to the cause before us we are mindful that each must be construed in a way which renders each independently viable and meaningful. The terms of § 134 C evince a legislative understanding that a supported spouse’s cohabitation with a member of the opposite sex has the potential to affect the supported spouse’s need for economic assistance. Hence, the statutory provision’s focus is limited to cohabitation’s impact on the recipient spouse’s economic needs. An overarching consideration in the economic analysis required by the statute is that the supported spouse not be punished because of cohabitation.
After the divorce the parties go into the world as strangers to each other, and generally even the adultery [sic] of the wife ... will not relieve the husband of the payment of alimony in accordance with the decree. Stanfield v. Stanfield, 22 Okla. 574, 98 P. 334, 339 (1908).
The finding of a non-spousal menage simply authorizes an inquiry into the recipient spouse’s then financial circumstances.
¶ 8 Because evidence was introduced establishing that Lacretia had received substantial gifts
¶ 9 As to sums received by way of gift and actually available to assist Lacretia in meeting her financial needs, she would have the Court consider only the income stream which these funds are capable of generating through investment and not require her to invade the corpus of the same. We view her suggestion as too restrictive. Support alimony is need based and hence to the extent the supported spouse has monies available — regardless of their source — to meet needs, he/she is obliged to use them.
¶ 10 The trial court in its assessment of the gifts as a current source of income to Lacretia must determine if the gifted sums are available — at the time the motion to modify is filed - to meet Lacre-tia’s financial needs. If they are not, Oklahoma’s extant jurisprudence requires that they not be used to reduce or modify future support alimony payments.
IV
SUMMARY
¶ 11 Today’s pronouncement prescribes the scope of review (implicated by sub parts “C” and “D” of 43 O.S.1991 § 134) that a trial court must undertake when ruling upon a motion to modify earlier awafded support alimony. Had the parties raised only the issue of cohabitation and its economic effect upon Lacretia’s resources and needs the matter would be concluded. Nonetheless, it must be remanded to the district court for further proceedings because Orlan suggested “substantial and continuing” changes had occurred in Lacretia’s resources due to nonrecurring gifts which she had received from her mother. Under the facts adduced the trial court must make additional factual findings concerning the availability of these funds as of the time the motion to modify was brought.
¶ 12 Upon certiorari previously granted.
THE COURT OF CIVIL APPEALS’ OPINION IS VACATED; THE DISTRICT COURT’S DECISION IS REVERSED; AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY’S PRONOUNCEMENT.
. We note that in the caption of Orlan’s petition in error Lacretia Wilson’s name is spelled "Lucretia.” The caption will stand unchanged although the record demonstrates at p. 137 that
. During the hearing on the motion to modify Lacretia testified that she received $20,000 gifts from her mother in 1994, 1995 and 1996. Tr. trans. pp. 62-64. She also testified that she did not expect to receive the same in 1997. Tr. trans. p. 118.
. See Mocnik v. Mocnik, 1992 OK 99, 838 P.2d 500, 507; Branson v. Branson, 190 Okla. 347, 123 P.2d 643, 647 (1942). There is no fixed rule by which an amount of alimony can be determined. Because an award of support alimony is equitable in nature, a specific test for measuring a spouse’s financial needs is not prescribed today. Nonetheless, such factors as the estates, earnings, earning capacity, health and physical condition, and accustomed standard of living of the parties as well as other factors which are particular to the case would be appropriate considerations.
. Evans v. Neal, 198 Okla. 515, 180 P.2d 661, 662 syl.1 (Okla. 1947); Marshall v. Marshall, 364 P.2d 891, 895 (Okla. 1961); Archer v. Archer, 1991 OK CIV APP 28, 813 P.2d 1059, 1062 (approved for publication by tire Supreme Court).
. See 43 O.S.1991 § 134 C., whose pertinent terms provide:
C. The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances of either party to the divorce relating to need for support or ability to support.... [Emphasis added.]
See also Roberts v. Roberts, 1983 OK 1, 657 P.2d 153, 155, where the Court held that a trial court has no power to increase or diminish an earlier awarded support-alimony allowance sans statutory authority.
. See 43 O.S.1991 § 134 D., whose pertinent terms provide:
D. Except as otherwise provided in subsection C of this section, the provisions of any divorce decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party.... Such modification shall only have prospective application.
. Kluver v. Weatherford Hospital Auth., 1993 OK 85, 859 P.2d 1081, 1084.
. Id. at 1084, Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).
. See 1979 Okla. Sess. Law, ch. 278, § 1, effective October 1, 1979.
. See 1983 Okla. Sess. Law, ch. 86, § 1, effective November 1, 1983.
. See supra note 2.
. Knight v. Ford, 1994 OK 74, 877 P.2d 602, 604.
. Ledbetter v. Okla. Alcoholic Bev. Laws Enforcement Com’n., 1988 OK 117, 764 P.2d 172, 179.
. For a discussion of when statutory provisions should be construed “in pari materia” see Kimes v. L.W. Bechtold, 176 W.Va. 182, 342 S.E.2d 147, 150-51 (1986).
. Eason Oil Co. v. Corp. Com’n, 1975 OK 14, 535 P.2d 283, 286; Bd. of Com’rs of Creek County v. Alexander, 58 Okla. 128, 159 P. 311, 315 (Okla. 1916).
. Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, 546;
. See 43 O.S.1991 § 134 C which provides in pertinent part that "[t]he court that entered the divorce decree shall have jurisdiction over the modification application.”
. See supra note 5, for the terms of § 134 C.
. See supra note 6, for the terms of § 134 D.
. Roberts, supra note 5 at 155; Thielenhaus v. Thielenhaus, 1999 OK CIV APP 7, 978 P.2d 369 Before the enactment of 43 O.S.1991 § 134 C & D, support alimony was subject to termination only upon the recipient spouse's death or remarriage. Id. at 159 (Opala, J., concurring).
. See Roberts, supra note 5 at 154, where the Court held that the purpose of 43 O.S. Supp. 1989 § 134 D [now 43 O.S.1991 § 134 C] "is not to regulate morality, but rather to regulate support maintenance when the need for continued support has diminished or vanished.”
. See Garlinger v. Garlinger, 137 N.J.Super. 56, 347 A.2d 799, 803 (1975)
. See supra note 2 for a description of the gifts.
. For the terms of 43 O.S.1991 § 134 D see supra note 3.
. See Brister v. Brister, 92 N.M. 711, 594 P.2d 1167 (1979); Lemm v. Lemm, 72 Wis.2d 457, 241 N.W.2d 593, 595 (1976).
. Thielenhaus, supra note 20 at 7, fn. 1, which holds that modification shall only have prospective application.
. Were the Court today to permit an offset to Grlan's obligation for support alimony for those sums which Lacretia had received from her motljer and had spent and hence were not available to meet her financial needs when the motion to modify was filed, we would in effect be opening to inquiry Lacretia’s economic needs for times which predate Orlan’s quest for modification. This process is not sanctioned by the terms of 43 O.S.1991 § 134 C & D.
Reference
- Full Case Name
- Orlan v. WILSON, Plaintiff/Appellant, v. Lucretia G. WILSON, Defendant/Appellee
- Cited By
- 15 cases
- Status
- Published