Opinion
No. 82-443
Decided December 29, 1983
1. Divorce — Alimony — Subsequent Marriages In Eaton v. Eaton, 90 N.H. 4 (1939), wherein the supreme court held that marriage terminates the right to further alimony, unless extraordinary circumstances would make it inequitable for the alimony to cease, the court reasoned that a new marriage, bestowing upon the former wife the right to support from a new source, terminated her right to support from the former husband because she ought not to have two sources of support at the same time.
2. Divorce — Alimony — Subsequent Marriages The reasoning behind the supreme court's prior holding in Eaton v. Eaton, 90 N.H. 4 (1939) that marriage terminates the right to further alimony, that a new marriage bestows upon the alimony recipient the right to support from a new source and terminates her right to support from her former husband, does not apply to the case of an unmarried cohabitant receiving alimony, because unmarried cohabitants are under no legal obligation to support each other.
3. Husband and Wife — Common Law Marriage — Generally Generally, a person who cohabits with another acquires no rights in the accumulations of the other.
4. Husband and Wife — Separation and Support — Generally The right to "spousal" support is predicated upon the existence of a valid marriage.
5. Divorce — Alimony — Subsequent Marriages Since various benefits, including legal rights and duties, arise from marriage which do not arise from cohabitation, and since the right to support does not arise from cohabitation, the mere resemblance of cohabitation to marriage does not require that alimony to an unwed cohabitant be suspended; it would be incongruous for a court to impose on the parties to cohabitation the same consequences of marriage that they sought to avoid when they entered into their arrangement.
6. Husband and Wife — Common Law Marriage — Recognition New Hampshire does not recognize the validity of common-law marriages, except to the limited extent provided in the statute which provides that certain persons cohabiting prior to the death of one of them are deemed thereafter to have been legally married. RSA 457:39.
7. Divorce — Alimony — Subsequent Marriages Where former husband filed a motion seeking suspension or reduction of alimony payments on the basis that his former wife was cohabiting with a third person, the master properly determined that the former wife and the third person were not living together as man and wife, since the conditions of the statute governing marriage, which are required for a marriage to be recognized in New Hampshire, had not been met. RSA ch. 457.
8. Divorce — Alimony — Subsequent Marriages The supreme court holds that cohabitation by a former spouse does not automatically suspend the right to alimony.
9. Divorce — Alimony — Discretion New Hampshire's alimony statute merely directs the courts to award alimony as they deem "just;" therefore notwithstanding the numerous considerations involved, which considerations apply to the original award as well as to any modifications thereof, trial courts have broad discretion in matters involving alimony. RSA 458:19 (Supp. 1983).
10. Divorce — Alimony — Modification or Vacation To obtain a modification of an alimony award, a substantial change in circumstances in the financial condition or needs of the parties must be shown.
11. Divorce — Alimony — Modification or Vacation Cohabitation by an alimony recipient is not, in and of itself, a ground upon which alimony may be modified or suspended, but it is to be considered a substantial change in circumstances if it substantially changes the financial condition or needs of the recipient so that a continuance of the original decree would be unjust.
12. Divorce — Alimony — Modification or Vacation A modification of an alimony award will be set aside only if upon the evidence it clearly appears that there has been an abuse of discretion.
13. Divorce — Alimony — Modification or Vacation Where former husband filed a motion seeking suspension or reduction of alimony payments on the basis that his former wife was cohabiting with a third person, and where the master ordered that the alimony payments be reduced during the period in which the former wife was cohabiting with the third person, based on the master's finding that the former husband had alleged and proved substantial changed circumstances of the former wife consisting of her cohabitation with a third person and the latter's financial assistance to her, the supreme court could not say that the master abused his discretion since the record showed that the master went beyond the mere fact of cohabitation and considered the change in the financial condition or needs of the former wife, and the evidence supported the master's recommendation.
14. Divorce — Alimony — Modification or Vacation Absent a provision incorporated into a divorce decree to the effect that alimony will be suspended or reduced if the recipient engages in a relationship resembling marriage, the trial court may not suspend or modify alimony payments based upon cohabitation by the alimony recipient unless there is a substantial change in the economic circumstances of the recipient.
15. Divorce — Alimony — Particular Cases The supreme court found no merit in a former wife's argument that the trial court's determination that the facts surrounding her cohabitation with a third person constituted a substantial change in circumstances, warranting a reduction of alimony payments during the period of cohabitation from $1,500 to $1,100 per month, violated her constitutional right of freedom of association.
Nadeau Professional Offices, of Rye (J. P. Nadeau on the brief and orally), for the plaintiff.
Sanders McDermott P.A., of Hampton (Lawrence M. Edelman on the brief, and Patricia McKee orally), for the defendant.
The issue in this appeal is whether cohabitation by a former spouse is a ground for relieving the other former spouse of his or her obligation to pay alimony. We hold that cohabitation is not a ground, in and of itself, for suspending or reducing the obligation to pay alimony.
The parties were divorced by decree of the superior court in June 1981. The decree provided that the defendant, Richard W. Bisig was to pay the plaintiff, Joanne M. Bisig, alimony in the sum of $1,500 per month until she died or remarried. In April 1982, the defendant moved to suspend alimony on the basis that the plaintiff was cohabiting with a third person. The defendant claimed that the facts surrounding the cohabitation constituted a substantial change in circumstances warranting either suspension of alimony or, in the alternative, reduction of the alimony award. After a hearing, the Master (Larry B. Pletcher, Esq.) recommended that "said alimony payment shall be reduced to $1,100 per month during such period as [p]laintiff cohabits with Donald Mayer. . . ." The Superior Court (Bean, J.) approved the master's recommendation and ordered that the alimony payments be reduced to $1,100 per month. The plaintiff appealed, and argues here that the reduction was unjust because it was based solely upon her cohabitation with a third person. The defendant alleges that the trial court erred in declining to suspend payment of alimony during the period of cohabitation.
The defendant urges this court to adopt a rule prescribing, in the absence of special circumstances, suspension of alimony during a period of unmarried cohabitation. His argument is that since under Eaton v. Eaton, 90 N.H. 4, 3 A.2d 832 (1939), alimony is terminated upon the solemnization of a subsequent marriage, irrespective of the new spouse's income, and since cohabitation as in the instant case so closely resembles marriage, a rule like that in Eaton should be adopted and applied for unmarried cohabitation.
[1-4] In Eaton, we held that marriage terminates the right to further alimony, unless extraordinary circumstances would make it inequitable for the alimony to cease. Id. at 7, 3 A.2d at 834. We reasoned that the "new marriage, bestowing upon [the former wife] the right to support from a new source, terminates her right to support from the [former husband]. . . . [S]he ought not to have two supports at the same time." Id. This reasoning does not apply to the case of an unmarried cohabitant receiving alimony, because unmarried cohabitants are under no legal obligation to support each other. "Generally, a person who cohabits with another . . . acquires no rights in the accumulations of the other." DOUGLAS, 3 NEW HAMPSHIRE PRACTICE, FAMILY LAW 53 (1982). The right to "spousal" support is predicated upon the existence of a valid marriage.
Various benefits, including legal rights and duties, arise from marriage which do not arise from cohabitation. This court recognized this principle when it stated: "[c]ouples enter into . . . unstructured domestic relationships in order to avoid the rights and responsibilities that the State imposes on the marital relationship." Tapley v. Tapley, 122 N.H. 727, 730, 449 A.2d 1218, 1220 (1982). The right to support does not arise from cohabitation. Hence, the mere resemblance of cohabitation to marriage does not require that alimony be suspended. "It would be incongruous for a court to impose on the parties the same consequences of marriage that they . . . sought to avoid when they entered into their arrangement." Id.
[6, 7] There can be no claim of marriage in the case at bar. New Hampshire "does not recognize the validity of common-law marriages," Joan S. v. John S., 121 N.H. 96, 98, 427 A.2d 498, 499 (1981) (quoting Fowler v. Fowler, 96 N.H. 494, 497, 79 A.2d 24, 27 (1951)), except to the limited extent provided in RSA 457:39. Generally, for marriage to be recognized in New Hampshire, the conditions of RSA chapter 457 must be met. Here, the statutory conditions have not been met. Thus, the master correctly determined that the "[p]laintiff and Donald Mayer are not living together as man and wife as alleged."
[8-10] We hold that cohabitation does not automatically suspend the right to alimony and now consider whether cohabitation can be a ground for reducing alimony. New Hampshire's alimony statute does not include criteria for determining alimony, but merely directs the courts to award alimony as they deem "just." RSA 458:19 (Supp. 1983). "Notwithstanding the numerous considerations involved, trial courts have broad discretion in matters involving alimony. . . ." Marsh v. Marsh, 123 N.H. 448, 451, 462 A.2d 126, 128 (1983). "These considerations apply to the original award as well as to any modification thereof. . . ." Fortuna v. Fortuna, 103 N.H. 547, 548, 176 A.2d 708, 709 (1961). To obtain a modification of an alimony award, a substantial change in circumstances in the financial condition or needs of the parties must be shown. Id. at 549, 176 A.2d at 710.
Cohabitation, in and of itself, is not a ground upon which alimony may be modified or suspended. Cohabitation by an alimony recipient is, however, to be considered a substantial change in circumstance it substantially changes the financial condition or needs of the recipient so that a continuance of the original decree would be unjust.
[12, 13] In the instant case, the master found that the defendant "alleged and proved substantial changed circumstances of the [p]laintiff consisting of her present cohabitation with Donald Mayer and Donald Mayer's financial assistance to [p]laintiff for rent, utilities, food and travel and entertainment." He then ordered that the alimony payments be reduced during the period in which the plaintiff cohabits with Mr. Mayer. "[A] modification will be set aside only if upon the evidence it clearly appears that there has been an abuse of discretion." Fortuna v. Fortuna, 103 N.H. 547, 548, 176 A.2d 708 709 (1961). The record demonstrates that the master went beyond the mere fact of cohabitation and considered the change in the financial condition or needs of the plaintiff. The evidence supports the master's recommendation and, consequently, we cannot say that the master abused his discretion.
The parties' intent, as expressed in their stipulations which were incorporated into the divorce decree, is clear. The plaintiff is to receive alimony as long as she lives and does not remarry. The parties could have avoided a court appearance by agreeing that alimony would be suspended or reduced if the recipient engaged in a relationship resembling marriage by using words such as: "if she enters into a quasi-conjugal living arrangement." Absent such a provision a court may not suspend or modify alimony payments unless there is a substantial change in the economic circumstances of the recipient.
We find no merit in the plaintiff's argument that the trial court's determination violates her constitutional right of freedom of association.
Affirmed.
All concurred.
(SOUTER, J., did not sit.)