Smith v. Smith

1982 OK 115, 652 P.2d 297, 1982 Okla. LEXIS 269

• Court: Supreme Court of Oklahoma
• Decided: October 5, 1982
• Docket: 55082
• Status: Published

Opinions

WILSON, Justice:

The question to which this appeal is directed: shall 12 O.S.Supp.1979, & 1289(D),¹ which permits modification of support alimony when the recipient cohabits with a person of the opposite sex, apply to a grant of support alimony imposed prior to the enactment of the statute?

The parties were granted a decree of divorce on February 15, 1979. Appellee was ordered to pay to appellant a total of $3,500 in support alimony in seven annual installments, beginning December 31, 1979. On February 5,1980, appellee filed a motion to modify, alleging that appellant was cohabiting with a member of the opposite sex resulting in a substantial change of circumstances relating to her need for support alimony.

The statute permitting such a modification became effective October 1, 1979. Appellant challenged the constitutionality of applying the statute to a judgment rendered prior to the effective date of the statute; however, the trial court granted the modification, terminated all future alimony payments and ordered each party to pay his/her own attorney fees. Appellant filed a timely appeal.

Appellant argues the Legislature has no authority to alter a final order or judgment. She argues a judgment is a vested property right and cannot be retrospectively altered by statute. She further argues there is no language in § 1289(D) to make its effect retrospective.

We find no language in § 1289(D) which either expressly or impliedly indicates that the Legislature intended to give retrospective effect to this statute. If that were their intent it is not so stated. The question as to whether the Legislature lawfully could have worded the subject act so as to make it retroactive is not an issue before us and it is not necessary for us to determine that question in this opinion.

This Court has held in Wilbanks v. Wil-banks, 441 P.2d 967, that statutes are to be construed as having prospective operation unless the intention of the Legislature to give retrospective effect is expressly declared or necessarily implied from language used, and in every case of doubt, the doubt must be resolved against retrospective effect. Wilbanks passed on the retrospective application of 12 O.S.Supp.1979, § 1289(A) and held that the statute providing that the trial court in divorce decree had discretion to terminate alimony on remarriage of recipient was prospective only,, and had no application where divorce was granted before its passage.

Appellant further appeals the refusal of the trial court to grant her attorney fees. Her authorities do not persuade us.

The trial court’s order overruling Defendant-appellant’s Special Demurrer is reversed. The trial court is ordered to vacate the order terminating alimony payments and to reduce the arrearages to judgment.

IRWIN, C.J., and BARNES, V.C.J., concur. OP ALA, J., concurs specially.

1 . 12 O.S.Supp.1979, § 1289(D): “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 support payments upon proof of substantial change of circumstances relating to need for support or ability to support. As used herein, cohabitation shall mean the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage. The petitioner shall make application for modification and shall follow notification procedures as used in other divorce decree modification actions. The court that entered the divorce decree shall have jurisdiction over the modification application.”