Blackwell v. Blackwell

348 So. 2d 500

Opinion

This appeal is from a judgment denying a request to modify a previous divorce decree awarding periodic alimony to the wife.

In his petition to modify the husband contended that Title 34, Section 31, Code of Alabama 1940 (Recomp. 1958) is unconstitutional and consequently he should be relieved of the alimony payments. After a hearing the trial court denied the husband's request for modification of the alimony decree and he appeals.

In brief appellant-husband raises only one issue: the constitutionality of Title 34, Section 31, Code of Alabama 1940 (Recomp. 1958). He says he is aware of our recent case of Orrv. Orr, Civ. 1006 (Ala.Civ.App., 1977) wherein we decided that the alimony statutes, i.e. Title 34, Sections 31-33, Code of Alabama 1940 (Recomp. 1958), were not violative of the equal protection clause of the United States Constitution's fourteenth amendment, but asks us to reconsider that decision in the light of the recent supreme court case of Peddy v.Montgomery, Ala., 345 So.2d 631 (1977). Appellant argues that the Peddy case makes sex a suspect classification and the alimony statute is based on sex, hence the statute denies equal protection and is unconstitutional.

The supreme court in Peddy — as we understand that decision — struck down a statute denying a wife the power of alienating or mortgaging her lands without the assent and concurrence of her husband. The court specifically declined to decide whether all gender-based classifications are inherently suspect; consequently, we do not consider Peddy to require that we alter the position we took in Orr, supra.

Based on the authority of Orr v. Orr, supra, we affirm the judgment of the trial court.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.