Pence v. Pence

401 S.E.2d 727, 261 Ga. 75, 1991 Ga. LEXIS 136
CourtSupreme Court of Georgia
DecidedMarch 15, 1991
DocketS90A1372
StatusPublished
Cited by1 cases

This text of 401 S.E.2d 727 (Pence v. Pence) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pence v. Pence, 401 S.E.2d 727, 261 Ga. 75, 1991 Ga. LEXIS 136 (Ga. 1991).

Opinions

Bell, Justice.

The plaintiff-appellant was the wife of the defendant-appellee. The parties were divorced in New Jersey in April 1988. Under the terms of a settlement agreement that was incorporated into the decree of divorce, appellee agreed to pay periodic alimony to the wife, but appellant agreed that the alimony could be terminated if she cohabited with another man within the meaning of New Jersey law that under certain circumstances permits reduction or termination of periodic alimony if a former spouse cohabits with another person. See Gayet v. Gayet, 456 A2d 102 (92 N.J. 149) (1983). Thereafter, appellant became a Florida resident and appellee became a Georgia resident. Appellee ceased to pay periodic alimony to appellant, alleging that she had cohabited with another man (hereafter the third party) in Florida. In August 1989 appellant filed suit in Georgia to domesticate the New Jersey decree and to hold appellee in contempt for failure to pay the periodic alimony. Appellee counterclaimed for modification of his obligation to pay alimony, and for attorney fees.

After holding an evidentiary hearing, the trial court entered a judgment that domesticated the New Jersey decree and awarded appellee the relief he sought. The court found appellant had cohabited with the third party within the meaning of both New Jersey and Georgia law, and terminated appellee’s obligation to pay periodic alimony. Appellant then applied for discretionary review, which we granted. For the reasons we give in the remainder of this opinion, we reverse and remand.

1. Initially, we must decide whether to apply Georgia or New Jersey law to determine whether appellant’s actions constituted cohabitation. The New Jersey divorce decree provided that the appellee would pay periodic alimony until, inter alia, appellant “cohabit[ed] with an unrelated male, [but that] in the event that [appellant] . . . cohabit[ed] with an unrelated male, tantamount to marriage pursuant to Gayet [, supra, 456 A2d] or subsequent caselaw,” appellee would [76]*76still have to pay periodic installments representing appellant’s equitable distribution of appellee’s pension. Considering this language as a whole, we find it reflects the parties’ intent that periodic alimony would be terminated if appellant cohabited with another man within the meaning of Gayet. Gayet, as we shall describe later in this opinion, is the law of New Jersey on this subject.

However, although the decree refers only to the New Jersey law of cohabitation, the evidentiary hearing in this case was conducted under the law of both states, and the trial court concluded that appellant’s actions were cohabitation under both Georgia and New Jersey law. Appellant contends that the law of Georgia governs this case, and appellee responds that the trial court’s judgment is sustainable under either Georgia or New Jersey law.

There is no indication that when the parties entered into their agreement they considered whether New Jersey law would be applied in the event a modification action was filed in another state. However, as the parties at least intended that Gayet would govern New Jersey modification proceedings, as a matter of comity we deem the best approach to be to apply Gayet uniformly, regardless of where the modification proceeding is brought. Accordingly, we will apply New Jersey law to this case. See generally Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979); Hutto v. Plagens, 254 Ga. 512, 514 (3) (330 SE2d 341) (1985).1

2. Unlike Georgia, New Jersey has no statute prescribing the conditions under which alimony may be modified due to cohabitation. Cf. OCGA § 19-6-19 (b). In their settlement agreement the parties referred to a case, Gayet, supra, 456 A2d, that is the controlling case in New Jersey on this subject. In Gayet at 102 the New Jersey Supreme Court announced that

the test for modification of alimony is whether the [cohabitation] relationship has reduced the financial needs of the dependent former spouse.
In Lepis v. Lepis, [416 A2d 45 (83 N.J. 139)] (1980), this Court held that an award of alimony, whether incorporated in a separation agreement or the terms of the divorce judg[77]*77ment, may be modified following a final judgment of divorce whenever changed circumstances substantially modify the economic conditions of the parties. Among the changed circumstances to be considered by trial courts, the Court specifically included “the dependent spouse’s cohabitation with another. ...” [Cit.] The Court noted that alimony should decrease when circumstances render the original amount unnecessary to maintain the standard of living reflected in the original decree or agreement. [Cit.] The task here is to determine whether circumstances have rendered a portion of the support received unnecessary.
[T]he majority of jurisdictions have adopted an economic needs test to determine whether cohabitation requires modification of an alimony award. [Cit.] That test “has been clearly defined in Garlinger v. Garlinger, [347 A2d 799 (137 N. J. Super. 56) (N. J. Super. Ct. App. Div. 1975)] and has been used by other courts in determining termination of alimony.” [Cit.] The principles of Garlinger call for modification when (1) the third party contributes to the dependent spouse’s support, or (2) the third party resides in the dependent spouse’s home without contributing anything toward the household expenses. [Cit.] In short, this scheme permits modification for changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.
The extent of actual economic dependency, not one’s conduct as a cohabitant, must determine the duration of support as well as its amount. [Gayet, supra at 103, 104.]

3. In the present case the trial court found that during the time appellant lived with the third party in Florida she received an economic benefit, in that she did not pay any rent or portion of the third party’s mortgage. The court further found appellant and the third party had cohabited within the meaning of New Jersey law. After reviewing the record, we conclude that the evidence supports the findings of the trial court.

4. However, on the record and findings before us, we hold the court was not authorized under New Jersey law to terminate appellant’s alimony. The pertinent case in this regard appears to be [78]*78Garlinger v. Garlinger, supra, 347 A2d at 804.2 In Garlinger the Appellate Division of the New Jersey Superior Court reviewed a judgment in which the trial court had

suspended alimony from the first week of November 1973, the date of the beginning of cohabitation, until the further order of the court.

The Appellate Division held that the trial court had erred in totally suspending alimony, both for the period in which the former wife cohabited with her “paramour” and for the period after they ceased to cohabit:

[T]he record does not support a suspension beyond March 2, 1974, in view of the acknowledged absence of proof that Mrs. Garlinger and her paramour cohabited after that date or that he was supporting her.

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Bluebook (online)
401 S.E.2d 727, 261 Ga. 75, 1991 Ga. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pence-v-pence-ga-1991.