Rester v. Rester
| Docket Number: | 2007-CA-00570-COA Linked Case(s): 2007-CA-00570-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-26-2008 Opinion Author: Roberts, J. Holding: REVERSED AND RENDERED ON DIRECT APPEAL, AFFIRMED ON CROSS-APPEAL |
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| Additional Case Information: |
Topic: Termination of alimony - Proof of cohabitation - Mutual support Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, and Carlton, JJ. Non Participating Judge(s): Ishee, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-15-2007 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: CHANCELLOR DENIED APPELLANT/CROSSAPPELLEE’S REQUEST TO TERMINATE ALIMONY AND APPELLEE/CROSSAPPELLANT’S REQUEST TO INCREASE ALIMONY PAYMENTS. Case Number: C2401-94-00383 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JOHN RESTER, also Cross-Appellee |
JOSEPH R. MEADOWS |
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| Appellee: | BETH HERRINGTON RESTER, also Cross-Appellant | THOMAS WRIGHT TEEL |
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| Topic: | Termination of alimony - Proof of cohabitation - Mutual support |
| Summary of the Facts: | John and Beth Rester divorced and executed a property settlement agreement in which John agreed to pay Beth $2,500 in monthly periodic alimony. Approximately ten years later, John claimed Beth had been cohabitating with a man as though they were married and sought to terminate his obligation to pay Beth alimony. Beth filed a request for additional alimony. The chancellor denied John's request for termination of alimony and also Beth’s request for additional alimony. John appeals, and Beth cross-appeals. |
| Summary of Opinion Analysis: | John argues that the chancellor erred when he declined to terminate alimony. Periodic alimony may be terminated based on either cohabitation or a de facto marriage. Beth lived in the marital home she received as a result of her and John’s divorce. At the time of the hearing, Beth had not worked for approximately twenty-one years. She testified that she initially stopped working to take care of her and John’s daughter, but their daughter was in graduate school at the time of the hearing. At the time John filed his complaint to terminate alimony, Beth and the other man had been involved in a sexual relationship for approximately five years. From the end of 2004 forward, she and the other man were monogamous and exclusive. In February 2006, Beth submitted a sworn affidavit to her property insurer and characterized this man as her “fiancee.” Beth unequivocally admitted that this man lived with her. Thus, the chancellor was clearly wrong when he declined to find cohabitation. Proof of cohabitation creates a presumption that a material change in circumstances has occurred. Upon proof of cohabitation, the burden of proof shifts to the recipient spouse to come forward with evidence suggesting that there is no mutual support. Beth did not rebut the presumption of mutual support. Instead, the evidence indicates that there was mutual support to the degree that Beth and the other man needed it. That is, Beth was financially independent for the most part, and he was also financially independent, so they did not need what could be considered traditional financial support. In fact, the evidence overwhelmingly demonstrated the presence of mutual support. The other man bought groceries for Beth. By Beth’s testimony, he gave her money for clothes and when she went on trips. Beth had access to his debit card PIN number. He helped her with her utilities and with projects around her home. Thus, John’s obligation to pay Beth monthly periodic alimony is hereby terminated. |
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