This is an appeal by plaintiff June Abbott from an order of the district court granting defendant Lowell Abbott’s petition for modification of the alimony provisions of the parties’ judgment of divorce. The principal questions for determination are whether the trial court’s finding of a substantial change in June’s economic circumstances is clearly erroneous, whether the trial court erred in reducing and then terminating alimony, and whether the trial court erred in concluding that the existence of a meretricious relationship between plaintiff and another man is a sufficient ground, standing alone, to justify termination of her alimony. We conclude that the evidence does support a finding of substantial сhange in June’s economic circumstances but that the trial court erred in determining the extent to which her need for support was diminished. We further conclude that participation in a meretricious relationship does not of itself justify reduction or termination of alimony. We therefore reverse and remand for a redetermination of the amount of the modification.
June and Lowell Abbott were married on February 17, 1958. It was June’s third marriage, two previous marriages having ended in divorce. Lowell adopted June’s son, Robert, issue of a prior marriage, but no child was born of their marriage. On May 4, 1967, June obtained a judgment of divorce which incorporated the terms of a negotiated stipulаtion concerning child custody, property settlement, support, and alimony. Lowell was to pay June $500 per month, $200 of which was to be considered support until Robert reached age 21. Subsequently, the entire $500 was to be paid as alimony, with payments to cease in the event of June’s remarriage. June was also awarded the homesteаd subject to a $10,000 mortgage, a lake cottage, a mobile home, an automobile, and $10,000 in cash. Lowell retained his interest in a contracting firm and a boat. In 1971, Robert reached age 21. That same year June sold the lake cottage for $9,500. In 1976, she sold the homestead, realizing $35,000. Lowell has fully complied with the support and alimony provisions of the judgment of divorce.
Although June has not remarried, she begun dating Donald Bock, a childless widower, in 1973. They have been living together since June 1976, first at his home and currently in a basement house on 6 acres of land which they own as tenants in common, each with a one-half interest. The cost of the 6 acres was $43,000, $20,000 of which was contributed by June from the proceeds of the sale of her homestead. June and Bock both signed a mortgage note for the remaining $23,000, and they are jointly obligated on a loan of $7,000 to $8,000 for improvements to the property. No mortgage payments have yet come due. June and Bock have informally agreed that Bock will satisfy the outstanding obligations upon the salе of personally owned real estate currently listed at an asking price of $108,000. They have entered a written agreement permitting Bock to purchase June’s interest in the property during her lifetime or after her death for the sum of $20,000, the amount of her contribution, plus interest. Bock has paid the taxes on the property and plans to build a house thereon with the proceeds of the sale of his other real property.
June, who has not been employed since her marriage to Lowell, does the shopping, cooking, laundry, and housecleaning, while Bock, in addition to teaching school, performs the traditionally male household tasks. They admittedly engage in sexual relations. Financially, their arrangement is that each pays a “fair share” of the household expenses. They maintain separate checking accounts, and on the rare occasions that June borrows money from Bock she repays it. June spends her $500 monthly alimony primarily on life insurance, groceries, laundry, clothing, and medical сare. Bock earns $14,500 per year and similarly
In July 1977, Lowell petitioned for modification of the alimony provisions of the judgment of divorce on the ground that June was living with and being substantially supported by Bock. In response, June petitioned for an increase in alimony. The parties waived an evidentiary hearing and agreed to submit the matter for the court’s decision on affidavits, depositions, and written arguments. The trial judge found a clear showing of a substantial change in June’s economic circumstances based on the emancipation of Robert and the fact that she no longer pays mortgage installments, real estate taxes, and the costs of heating and maintaining a home. He also concluded that June’s meretriciоus relationship with Bock, regardless of its financial consequences, constituted a sufficient basis for terminating alimony. He accordingly reduced alimony to $150 per month for 6 months and terminated it thereafter.
The general rule is that a court will not exercise its discretion to modify a provision for alimony except upon a positive showing оf a substantial change in the circumstances of the parties.
Ramsay v. Ramsay,
The second change found by the trial court was the improvement of June’s financial circumstances by reason of the economies in housing expenses gained by her living arrangement with Bock. In
Sieber v. Sieber,
In our view, the record overall supports a finding of a substantial change in June’s financial circumstances but lacks specific proof of the extent of that change. It contains neither an itemized statement of her living expenses prior to cohabitation with Bock nor a summary of the expenses she presently is incurring, data critical to a reasoned comparison. Contrary to the trial court’s finding, our review of the record discloses no admission by June that her living expenses have been substantially reduced. Moreover, an additional factor relied upon by the trial court, the execution of wills by June and Bock in favor of one another, is entirely too speculative to constitute a change in June’s financial circumstances. The trial court’s finding that June has executed a will favoring Bock is in error as no evidence supports it, and, although Bock’s will names June as beneficiary, it is ambulatory and confers no present rights. We therefore conclude that the finding of a substantial change in June’s economic circumstances was not clearly erroneous but that the trial court, because of unsupported factual findings and a failure to properly apply our holding in the Sieber case, erred in computing the amount of the modification. We express no opinion whether a reduction or termination of alimony would be warranted upon a more precise showing, which the parties on remand will be afforded an opportunity to present.
We also are not persuaded, despite the urging of the trial court, to overrule our decision in
Sieber v. Sieber, supra.
In that case we declined to hold that the existence of a meretriciоus relationship, standing alone, is a sufficient ground to justify termination of alimony. While older decisions of this court have held that a former spouse’s sexual misconduct can be a factor in determining whether to modify an alimony provision, none of them have held that postdivorce misconduct is sufficient per se to justify a modification. See,
Martens v. Martens,
The relationship between June and Bock is clearly not a marriage sanctioned by the laws of this state. De facto or common-law marriages were specifically abolished by the legislature in 1941. Minn.St. 517.01. Unless a license is obtained and proper solemnization observed, no legally cognizable marriage with its attendant obligations can be contracted.
4
Baker v. Baker,
We believe that Junе’s claim that the trial court abused its discretion by fail
Reversed and remanded for redetermination оf the amount of the modification.
Notes
. On appeal, Lowell emphasizes that Bock’s intention to contribute greater than half of the purchase price of property in which June owns a one-half interest constitutes an enhancement of her economic рosition. This contention is speculative, since Bock has not yet made such payments. Moreover, the agreement between Bock and June permits Bock to purchase June’s interest, should she desire to sell or upon her death, for the amount of her contribution plus interest. Although the agreement is unclear, it may also allow him to force June to convey her
. Minn.St. 518.552 and 518.58 eliminate marital misconduct as a consideration in determining maintenance awards and property dispositions. The arguments for eliminating postmarital misconduct as a factor bearing upon modification
. Since 1934, New York has had a statute permitting courts to terminate alimony upon proof thаt a former wife is habitually living with another man and holding herself out as his wife, although not married to such man. N.Y. Dom.Rel.Law, § 248 (McKinney 1977). California adopted a similar statute in 1974. 1974 Cal.St., c. 1338, § 1. The “holding out” requirement has made circumvention of these statutes relatively easy.
Owyang v. Owyang,
4 Fam.L. Rptr. 2316;
Northrup v. Northrup,
. Minn.St. 518.055 specifically confers the rights of a legal spouse, including the right to maintenance, on a putative spouse (one who cohabits with the good faith belief that he or she is married). No such exception is made for those who cohabit knowingly without the benefit of marriage.
. In
Carlson v. Olson,
. The result is different in jurisdictions recognizing common-law marriage. Such a marriage, if proved, terminates the obligation to pay alimony for the reason that in a common-law marriage there is a manifestation that the relationship is permanent and that each party assumes the obligations of marriage, including the obligation of support. The former husband’s obligation is thus supplanted by that of the common-law husband.