Van Dyck v. Van Dyck

Feb 8, 1993
S92A1279
Versions:262 Ga. 720
425 S.E.2d 853
93 Fulton County D. Rep. 405
1993 Ga. LEXIS 198

Lead Opinion

Hunt, Presiding Justice.

Wе granted this application for interlocutory appeal to determine *721whether OCGA § 19-6-19 (b) (the “live-in lover” statute) permits the modification оf alimony when a former spouse is living in a meretricious relationship with a person of the same sex. We find the plain language of thе 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, аlleging 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 conсluded, 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 а 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, аnd 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 reasоnable construction, the court has no authority to place a different construction upon it, but must construe it according to its tеrms. [Cits.]” [Cit.] “In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evi*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 thе 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 legislаture 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 cohаbitation with a man — to its present form, allowing modification of alimony payments to either former spouse, where the former spоuse 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.



Concurrence Opinion

Sears-Collins, Justice,

concurring.

Alimony is based on an ex-spouse’s need, and if in reality that need decreases, alimony probably should be reduced or even terminated. Logically, it should make no difference whether the ex-spouse has remarried, is living in a meretricious rеlationship with a person of the opposite sex or is living with a gay partner. In a perfect world it ought to be the financial reality that counts.

But this is not yet a perfect world. While the relationships of married couples are clearly defined by law, lesbian and gаy couples in America today cannot legally marry, no matter how deep their love and how firm their commitment. Thus, unlike those cоuples of the opposite sex who live together but are not married, they are forever denied the numerous legal rights that come with marriаge. These rights include the right to: a) file joint income tax returns; b) create a marital life estate trust; c) claim estate tax marital deductions; d) claim family partnership tax income; e) recover damages based on injury to a partner; f) receive survivor’s benefits; g) enter hospitals, jails and other places restricted to “immediate family”; h) live in neighbor*723hoods zoned “family only”; i) obtain “family” health insurаnce, dental insurance, bereavement leave and other employment benefits; j) collect unemployment benefits if they quit their job to move with their partner to a new location because he or she has obtained a new job; k) get residency status for a noncitizen partner to avoid deportation; 1) automatically ‍‌‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌‌​​​‌​‌‌‌​​‌​​‌​​‌‌​‌​​‍make medical decisions in the event a partner is injured оr incapacitated; m) and automatically inherit a partner’s property in the event he or she dies without a will. Many of the other legal consequences of gay “coupling” are not so immediately apparent, but surface only at times of stress — misunderstandings, separation and death.1

Decided February 8, 1993. Frankel, Hardwick, Tanenbaum, & Fink, Martha J. Kuckleburg, for appellant. Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Albert M. Pearson III, for appellee.

In view of the foregoing, it is clear that the law does not еncourage permanent gay “coupling” arrangements by providing them either the same acceptance and suppоrt or the same governmental, legal or social service benefits or the many tax and other economic benefits accorded married couples.

It would not be fair to expand OCGA § 19-6-19 through judicial interpretation so as to saddle gay and lesbian couples with a penalty acсorded unwed heterosexual couples who live together who have the choice of taking advantage of the benefits of marriage without according homosexual couples who live together the benefits of a relationship that for them can never happen under the law. To do so would only appear to be fair. In truth and in practice, however, it would not be fair at all.

Notes

H. Curry and D. Clifford, A Legal Guide for Lesbian and Gay Couples 1:2 (1991).