Azbill v. AzbillAzbill v. Azbill
Mildred Elizabeth Pearcy Azbill (hereinafter wife) appeals from an order of the Circuit Court suspending alimony in futuro payments awarded to her by final decree of divorce.
The final decree of divorce, entered April 6, 1978, provided among other things that Waldon Luther Azbill (hereinafter husband) must pay $500 per month as alimony
in futuro.
On July 28, 1982, husband filed a
The trial court found that wife and Gene Bell are living together as contemplated by
Wife has presented the following issues for review:
1. What is the proper construction of
2. Did the Legislature intend
3. Did the Legislature intend that
Wife asserts the intent of
The witnesses testifying at the hearing were the wife, Mr. Gene Bell, Mr. Martin Klindworth and the husband. The wife testified as follows:
Until a week before the hearing she had resided in the home awarded to her at the time of the divorce at 3199 Dothan, Memphis, Tennessee, which house she has now sold. She has known Mr. Gene Bell since 1978 or 1979, but did not meet Mr. Bell until after the divorce. Mr. Bell did not live with her at the Dothan address, and did not ever spend the night there. He did, however, have a key to the property and watched a lot of television at the house, since he was unable to procure cable television at his trailer home. He came to her house almost every day and stayed there during the day a great deal of the time while she was at work. He has eaten there on occasions and he had free run of the house to come and go as he pleased. On occasions he would remain in the house until late in the evening, possibly after midnight, and watch cable television, although she on many occasions would have gone to bed prior to his departure. Mr. Bell owns a business known as Millie’s Hair Fashions and the wife works there as the manager and also as a hairdresser. As manager she keeps the payroll, writes the checks and orders the supplies. She is 54 years of age and suffers from a degenerative arthritic condition. Mr. Bell did assist her in working on her car and doing yard work, but he did not contribute any money for household expenses, nor did she contribute money to him. Mr. Bell did not keep clothes or toilet articles at her home. She liked to play bingo and checks written in April, May and June for $325, $215 and $380 respectively were checks cashed at the bingo place, but all the money was not spent on bingo. Mr. Bell paid the monthly charge for the cable television since he was unable to obtain cable at his home. For that reason he was able to enter and leave her home as he pleased in order to watch it. Mr. Bell had girlfriends and sometimes a girlfriend would pick him up at her house when he wanted to go home. Mr. Bell was retired and did not take an active part in managing the beauty shop. The address listed on his driver’s license was her home address on Dothan. Mr. Bell also used the Dothan address as his mailing address. She did not expressly permit such uses of her home address.
Martin Klindworth testified as follows: He is a private investigator employed by Mr. Azbill to investigate the possibility of someone living with Ms. Azbill at her home. He placed the house under surveillance during the months of May, June and July, 1982, and observed that Mr. Bell spent the night there on the days that he had the house under surveillance. When the house was put up for sale, he posed as a prospective buyer and made an appointment to inspect the house. He was shown around the house by Mr. Bell and Ms. Azbill. At such time he noticed men’s clothing and toilet articles in the house. On that same evening he watched the house all night and neither Ms. Azbill nor Mr. Bell left the house until the next morning.
Husband testified that he did not leave any clothes in the residence when he left except two pair of coveralls. He had paid $500 per month alimony as required by the order, and he was further allowed to give his opinion as to what constituted living together. No question is raised on appeal regarding this testimony.
The pertinent part of
(a)(1) Whether the marriage be dissolved absolutely, or a perpetual or temporary separation be decreed, the court may make an order and decree for the suitable support and maintenance of the complainant by the respondent, or out of his or her property, and of the children, or any of them, by either spouse or out of such spouse’s property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court’s control; and, on application of either party, the court may decree an increase or decrease of such allowance on cause being shown.
(2) Courts having jurisdiction of the subject-matter and of the parties are hereby expressly authorized to provide for the future support of the complainant and of the children, in proper cases, by fixing some definite amount or amounts to be paid in monthly, semimonthly, or weekly installments, or otherwise, as circumstances may warrant, and such awards, if not paid, may be enforced by any appropriate process of the court having jurisdiction thereof, including levy of execution.
(3) In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a re-buttable presumption is thereby raised that:
(A) The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the amount of support previously awarded, and the court therefore should suspend all or part of the alimony obligation of the former spouse; or
(B) That the third person is receiving support from the alimony recipient and the alimony recipient therefore does not need the amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former spouse.
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The rule of statutory construction to which all others yield is that the intention of the Legislature must prevail.
City of Humboldt v. Morris,
It is the duty of the court to reconcile inconsistent or repugnant provisions of a statute and to construe a statute so that no part will be inoperative, superfluous, void or insignificant. We must give effect to every word, phrase, clause and sentence of the Act in order to achieve the Legislators’ intent, and we must construe a statute so that no section will destroy another. Tidwell v. Collins, supra at 676-677.
Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).
In the case before us, while the wife and Mr. Bell denied that Mr. Bell resided in the home of wife, the record indicates that he was there daily, had a key, came in and out as he pleased, had clothes and toilet articles in the house, and at least on four different occasions spent the entire night in the home. All of this evidence was in the face of the unequivocal testimony of the wife and of Mr. Bell that he did not and had not spent the night at the home and did
Under the record before us we cannot say that the evidence preponderates against the finding of the trial court that the wife and Mr. Bell were living together within the meaning of
In reviewing the record we cannot find that the evidence authorized a $3,000 credit for alimony previously paid, nor for a reduction in the alimony in the amount of $300. On the contrary, the record merely reveals that the wife and Mr. Bell are living together, thus creating the rebuttable presumption that the alimony recipient does not need the amount of support previously awarded. The record does not contain evidence rebutting this presumption and accordingly the entire amount of alimony should be suspended as of the date of the filing of the petition. Accordingly, the order of the trial court is reversed insofar as it allows a credit of $3,000. The order reducing the alimony to $200 per month is modified by suspending the entire amount of $500 from and after July 28, 1982, until such time as a change of circumstances warrants reinstatement in whole or in part.
The case is remanded to the trial court for such other proceedings as necessary and the costs of the appeal are adjudged against the wife.