Van Dyck v. Van Dyck

Supreme Court of Georgia

Van Dyck v. Van Dyck

425 S.E.2d 853, 262 Ga. 720, 93 Fulton County D. Rep. 405, 1993 Ga. LEXIS 198

CourtSupreme Court of Georgia

DecidedFebruary 8, 1993

DocketS92A1279

StatusPublished

Cited by16 cases

This text of 425 S.E.2d 853 (Van Dyck v. Van Dyck) 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

Van Dyck v. Van Dyck, 425 S.E.2d 853, 262 Ga. 720, 93 Fulton County D. Rep. 405, 1993 Ga. LEXIS 198 (Ga. 1993).

Pincite

Opinions

Hunt, Presiding Justice.

We granted this application for interlocutory appeal to determine [721]*721whether OCGA § 19-6-19 (b) (the “live-in lover” statute) permits the modification of alimony when a former spouse is living in a meretricious relationship with a person of the same sex. We find the plain language of the statute does not permit modification in these circumstances. Accordingly, we reverse the trial court’s denial of the former wife’s motion to dismiss the former husband’s complaint for modification.

In his complaint, the former husband sought termination, under OCGA § 19-6-19 (b), of his alimony obligation, alleging only that the former wife was involved in a homosexual meretricious relationship. The trial court denied the wife’s motion to dismiss the complaint for failure to state a claim. The trial court, relying on legislative goals and intent, concluded that OCGA § 19-6-19 (b) permits modification where an alimony recipient is sharing living quarters and, therefore, expenses, with another person of either sex. The trial court concluded, as well, that any other construction of the statute would render it unconstitutional as a violation of the Equal Protection Clause of the United States Constitution.

OCGA § 19-6-19 (b) provides, in pertinent part:

Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word “cohabitation” means dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex. (Emphasis supplied.)

Thus, the plain language of the statute does not apply where the former spouse is involved in a homosexual relationship.

“ ‘It is, of course, fundamental that “the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” [Cits.]’ ” Although “the legislative intent prevails over the literal import of words” [cit.] “where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. [Cits.]” [Cit.] “In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evi[722]*722dence of the ultimate legislative intent.” [Cits.]

Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). In light of the clear and unambiguous language of the statute, which allows modification on a finding of a meretricious relationship between the alimony recipient and “a person of the opposite sex,” the trial court was not authorized to construe the language of the statute otherwise. If, in fact, the legislature intended the statute to allow modification on the finding of the alimony recipient’s cohabitation with a person of either sex, but see Sims v. Sims, 245 Ga. 680 (266 SE2d 493) (1980), it is the duty of the legislature, rather than the courts, to amend the statute.

Nor does the statute, construed as required by its plain language, violate the Fourteenth Amendment of the United States Constitution, under the U. S. Supreme Court’s holding in Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979). Following the Supreme Court’s ruling in that case, and our holding in Sims v. Sims, 243 Ga. 275 (253 SE2d 762) (1979), the legislature amended the former “live-in lover” statute — which allowed modification based only on a former wife’s cohabitation with a man — to its present form, allowing modification of alimony payments to either former spouse, where the former spouse is cohabiting in a meretricious relationship with a person of the opposite sex. Ga. L. 1979, pp. 466, 483, § 23. Thus, the statute applies equally to former spouse/alimony recipients of either sex, and is not unconstitutional under Orr v. Orr, supra.

Judgment reversed.

Clarke, C. J., Benham, Fletcher, Sears-Collins, Hunstein, JJ., and Judge Dewey Smith concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Hunt, Presiding Justice.

We granted this application for interlocutory appeal to determine [721]*721whether OCGA § 19-6-19 (b) (the “live-in lover” statute) permits the modification of alimony when a former spouse is living in a meretricious relationship with a person of the same sex. We find the plain language of the statute does not permit modification in these circumstances. Accordingly, we reverse the trial court’s denial of the former wife’s motion to dismiss the former husband’s complaint for modification.

In his complaint, the former husband sought termination, under OCGA § 19-6-19 (b), of his alimony obligation, alleging only that the former wife was involved in a homosexual meretricious relationship. The trial court denied the wife’s motion to dismiss the complaint for failure to state a claim. The trial court, relying on legislative goals and intent, concluded that OCGA § 19-6-19 (b) permits modification where an alimony recipient is sharing living quarters and, therefore, expenses, with another person of either sex. The trial court concluded, as well, that any other construction of the statute would render it unconstitutional as a violation of the Equal Protection Clause of the United States Constitution.

OCGA § 19-6-19 (b) provides, in pertinent part:

Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word “cohabitation” means dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex. (Emphasis supplied.)

Thus, the plain language of the statute does not apply where the former spouse is involved in a homosexual relationship.

“ ‘It is, of course, fundamental that “the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” [Cits.]’ ” Although “the legislative intent prevails over the literal import of words” [cit.] “where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. [Cits.]” [Cit.] “In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evi[722]*722dence of the ultimate legislative intent.” [Cits.]

Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). In light of the clear and unambiguous language of the statute, which allows modification on a finding of a meretricious relationship between the alimony recipient and “a person of the opposite sex,” the trial court was not authorized to construe the language of the statute otherwise. If, in fact, the legislature intended the statute to allow modification on the finding of the alimony recipient’s cohabitation with a person of either sex, but see Sims v. Sims, 245 Ga. 680 (266 SE2d 493) (1980), it is the duty of the legislature, rather than the courts, to amend the statute.

Nor does the statute, construed as required by its plain language, violate the Fourteenth Amendment of the United States Constitution, under the U. S. Supreme Court’s holding in Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979). Following the Supreme Court’s ruling in that case, and our holding in Sims v. Sims, 243 Ga. 275 (253 SE2d 762) (1979), the legislature amended the former “live-in lover” statute — which allowed modification based only on a former wife’s cohabitation with a man — to its present form, allowing modification of alimony payments to either former spouse, where the former spouse is cohabiting in a meretricious relationship with a person of the opposite sex. Ga. L. 1979, pp. 466, 483, § 23. Thus, the statute applies equally to former spouse/alimony recipients of either sex, and is not unconstitutional under Orr v. Orr, supra.

Judgment reversed.

Clarke, C. J., Benham, Fletcher, Sears-Collins, Hunstein, JJ., and Judge Dewey Smith concur.

Cite This Page — Counsel Stack

Bluebook (online)

425 S.E.2d 853, 262 Ga. 720, 93 Fulton County D. Rep. 405, 1993 Ga. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-dyck-v-van-dyck-ga-1993.

Opinions

Related

Cite This Page — Counsel Stack