Bishop v. Bishop

100 So. 3d 538, 2010 WL 4151988, 2010 Ala. Civ. App. LEXIS 296
CourtCourt of Civil Appeals of Alabama
DecidedOctober 22, 2010
Docket2090628
StatusPublished

This text of 100 So. 3d 538 (Bishop v. Bishop) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. Bishop, 100 So. 3d 538, 2010 WL 4151988, 2010 Ala. Civ. App. LEXIS 296 (Ala. Ct. App. 2010).

Opinions

THOMAS, Judge.

Sharon Jaynae Bishop (“the former wife”) appeals from a judgment of the Mobile Circuit Court terminating the periodic-alimony obligation of Ervin Edward Bishop (“the former husband”) after it determined that the former wife had cohabited with a member of the opposite sex, pursuant to § 30-2-55, Ala.Code 1975.1 We reverse and remand.

[540]*540The former husband and the former wife were divorced in February 2008 by a judgment of the trial court. One of the provisions of the divorce judgment required the former husband to pay the former wife $500 per month in periodic alimony pending the sale of the marital residence and $1,500 per month in periodic alimony after the sale of the marital residence. At all times relevant to these proceedings the former wife was still occupying the marital residence.

On June 3, 2009, the former husband moved the trial court to terminate his periodic-alimony obligation, alleging that the former wife was cohabiting with a member of the opposite sex, within the meaning of § 30-2-55.2 The former wife answered the former husband’s motion, denying that she was cohabiting with a member of the opposite sex. The trial court held a hearing on the former husband’s motion on November 22, 2009, at which it heard ore tenus evidence. On November 30, 2009, the trial court entered a judgment granting the former husband’s motion to terminate his periodic-alimony obligation. Thereafter, the former wife filed a post-judgment motion, pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied after a hearing. The former wife subsequently appealed to this court.

The former wife argues that the trial court erred when it terminated the former husband’s periodic-alimony obligation because, she says, the evidence was insufficient for the trial court to determine that she had cohabited with a member of the opposite sex.

“It is a question of fact for the trial court to determine as to whether a former spouse is living openly or cohabiting with a member of the opposite sex in order to authorize a termination of periodic alimony under § 30-2-55, Code of Alabama 1975. The burden of proof as to that matter is upon the party seeking relief under that code section. The trial court’s decision upon that issue will not be revised upon an appeal unless, after considering all of the evidence and the reasonable inferences therefrom, the trial court was palpably wrong. Rutland. v. Rutland, 494 So.2d 662 (Ala.Civ.App.1986); Capper v. Capper, 451 So.2d 359 (Ala.Civ.App.1984); Penn v.Penn, 437 So.2d 1053 (Ala.Civ.App.1983); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.), cert. denied, 403 So.2d 239 (Ala.1981).

“ ‘Based upon the foregoing authorities and common usage, it is apparent that cohabitation requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants. In previous cases before this court in which alimony has been terminated pursuant to § 30-2-55, this permanency of relationship has manifested itself by the former spouse sharing a dwelling with a member of the opposite sex. Blackwell v. Blackwell, 383 So.2d 196 (Ala.Civ.App.1980); Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979); Parish v. Parish, 374 So.2d 348 (Ala.Civ.App.1979); cert. denied, 374 So.2d 351 (Ala.1979); Atkinson v. Atkinson, 372 So.2d 1106 (Ala.Civ.App.1979). Other [541]*541factors, previously considered by this court, which indicate a permanency of relationship include ceasing to date other members of the opposite sex, Atkinson v. Atkinson, supra; payment of the former spouse’s creditors by a member of the opposite sex, Parish v. Parish, supra; and purchase of clothes for the former spouse by a member of the opposite sex, Parish v. Parish, supra.’

Knight v. Knight, 500 So.2d 1113, 1115 (Ala.Civ.App.1986) (quoting Hicks v. Hicks, 405 So.2d 31, 33 (Ala.Civ.App.1981)).

Edward Jannis (“the paramour”) testified that he was currently involved in a sexual relationship with the former wife that began about a year and a half before the trial. According to the paramour, the former wife would stay at his house, on average, “a couple of long weekends a month,” but, he stated, there had been one time when he and the former wife had not seen each other for a month and another time when they had not seen each other for two months. The paramour further testified the he and the former wife had, at times, vacationed together for a week or longer, including a trip to the Florida Keys that was two or three weeks in duration. According to the paramour, his relationship -with the former wife was not exclusive; he continues to date other women. The paramour also testified that he and the former wife have no plans to get married. The paramour testified that he had not paid any of the former wife’s bills or expenses, that the former wife did not receive any mail at his address, that she did not have a key to his house, and that she did not leave any clothing or personal effects at his house. The paramour further testified that he and the former wife do not have any bank accounts together or own any property together.

The former -wife testified that her relationship with the paramour was substantially as testified to by him. According to the former wife, she spent some weekends at the paramour’s house and they went on a “couple of trips together.” The former wife testified that the paramour had not paid any of her bills or expenses, that she did not receive any mail at the paramour’s address, that she did not leave any personal effects or clothing at the paramour’s house, that she did not have a key to the paramour’s house, that she did not use the paramour’s address for any purposes, and that she and the paramour did not own any property together or have any joint bank accounts. The former wife testified that the only gift the paramour had given her was a Nintendo Wii video-game system. The former wife stated that the paramour occasionally provided her with dinner or breakfast while she was at his house. Although the former wife testified that she had generally only spent some weekends at the paramour’s house, the former husband entered into evidence the former wife’s credit-card statements, which showed some purchases in Destín, Florida, where the paramour resides, on weekdays. In response, the former wife stated that she did not keep track of the exact days that she was at the paramour’s house.

The former husband testified that the former wife was often not at the former marital residence over the 20-month period before the trial. The former husband testified that he had driven by the former marital residence 4 or 5 days each week since the divorce and that the former wife was absent 86% of the times in 2008 that he had driven by and 85% of the times that he had driven by in 2009. The former husband stated that Colin Bishop, the parties’ daughter, was also not at the former marital home 50 to 70% of the times that [542]*542he went by the former marital residence. The former husband testified that he had concluded that the former wife was out of town when she was not at home because his children “tell [him] a lot of things.” The former husband further testified that he had driven by the paramour’s house four times since the divorce and had photographed the former wife’s automobile in the driveway on each of those occasions.

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Related

Rutland v. Rutland
494 So. 2d 662 (Court of Civil Appeals of Alabama, 1986)
Blackwell v. Blackwell
383 So. 2d 196 (Court of Civil Appeals of Alabama, 1980)
Parish v. Parish
374 So. 2d 348 (Court of Civil Appeals of Alabama, 1979)
Ex Parte Fann
810 So. 2d 631 (Supreme Court of Alabama, 2001)
Ex Parte Peterson
403 So. 2d 239 (Supreme Court of Alabama, 1981)
Peterson v. Peterson
403 So. 2d 236 (Court of Civil Appeals of Alabama, 1981)
Penn v. Penn
437 So. 2d 1053 (Court of Civil Appeals of Alabama, 1983)
Knight v. Knight
500 So. 2d 1113 (Court of Civil Appeals of Alabama, 1986)
Dobbins v. Dobbins
602 So. 2d 900 (Court of Civil Appeals of Alabama, 1992)
Atkinson v. Atkinson
372 So. 2d 1106 (Court of Civil Appeals of Alabama, 1979)
Hicks v. Hicks
405 So. 2d 31 (Court of Civil Appeals of Alabama, 1981)
O'Dell v. O'Dell
326 So. 2d 747 (Court of Civil Appeals of Alabama, 1976)
Capper v. Capper
451 So. 2d 359 (Court of Civil Appeals of Alabama, 1984)
Rubisoff v. Rubisoff
133 So. 2d 534 (Mississippi Supreme Court, 1961)
Ivey v. Ivey
378 So. 2d 1151 (Court of Civil Appeals of Alabama, 1979)
Swindle v. Swindle
55 So. 3d 1234 (Court of Civil Appeals of Alabama, 2010)
Dixie Coaches, Inc. v. Ramsden
190 So. 92 (Supreme Court of Alabama, 1939)
Northrup v. Northrup
373 N.E.2d 1221 (New York Court of Appeals, 1978)
Massey v. Massey
678 So. 2d 1146 (Court of Civil Appeals of Alabama, 1996)

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Bluebook (online)
100 So. 3d 538, 2010 WL 4151988, 2010 Ala. Civ. App. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-bishop-alacivapp-2010.