We granted the application for discretionary appeal in this case to determine the propriety of the trial court’s rulings regarding collateral estoppel and self-execution with respect to a divorce decree’s provision for termination of alimony on the wife’s cohabitation with another man. We reverse.
The parties’ divorce decree incorporated their settlement agreement which provided the husband would pay the wife alimony until “the Wife marries, dies or begins living in a state of cohabitation with another man, whichever event shall first occur.” When the husband stopped making alimony payments, claiming the wife was cohabiting, the wife filed an action against him for contempt. The court in the contempt proceeding found the wife was not cohabiting, but held the husband was not in wilful contempt because he had justifiable reasons to believe the wife was cohabiting with another man. Thereafter, the husband filed an action for declaratory judgment regarding his obligation to pay alimony, and for modification of alimony under OCGA § 19-6-19 (b), the “live-in-lover” statute. The trial court (a different judge) found the husband was not barred by the doctrine of collateral estoppel by the contempt court’s finding on the issue of the wife’s cohabitation, and that the termination provision regarding cohabitation was self-executing.
1. The trial court erred in holding the husband was not estopped by the earlier judgment in the contempt proceeding on the issue of whether the wife was cohabiting with another man.
1
We agree with the husband that collateral estoppel applies where an issue of fact or law is actually litigated and determined by a valid judgment,
and
the determination is essential to the judgment. That determination is then conclusive in a subsequent action between the same parties.
Boozer v. Higdon,
2. The husband argues, and the trial court held, that the provision of termination of alimony on the wife’s cohabitation with another man permitted the husband to stop payment thereunder without first seeking judicial relief. The trial court cited, and the husband cites, certain child support cases in which we have held provisions inverting support obligations where the child elects to live with the other parent to authorize the cessation of child support. E.g.,
Weaver v. Jones,
Judgment reversed.
Notes
This estoppel applies only to the same time period involved in the contempt proceedings. Of course, the husband is not estopped from claiming the wife is or was cohabiting for a period other than that claimed in the contempt proceeding.
The wife argues the second element, that the determination be essential to the judgment, is unnecessary. A number of cases from our court and the Court of Appeals state that collateral estoppel (or “estoppel by judgment”) applies to matters “necessarily
or
actually adjudicated.” (Emphasis supplied.) See, e.g.,
Powell v. Powell,
The husband argues that the contempt court’s decision regarding cohabitation cannot be the subject of collateral estoppel because the trial court ruled for the husband on the issue of contempt, and the husband could not have appealed the contempt court’s decision regarding cohabitation. We agree with the husband that a party’s opportunity to appeal an issue is a factor in determining whether the party is precluded from relitigating the issue. Restatement, 2d, Judgments, § 28 (1) and Comment a (1982). Here, the trial court’s ruling regarding the husband’s obligation to pay alimony and the wife’s cohabitation was, for the contested time period, a final one which should have been appealable. We need not determine whether the contempt court’s order was, on its face, appealable. It was the husband’s duty to obtain an appealable order on that issue, and to the extent he did not, he cannot now argue that collateral estoppel should not apply.
Under OCGA § 19-6-19 (b) the voluntary cohabitation by the former spouse with a third party is always
grounds
for modification of a support obligation. See
Allen v. Allen,