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R. Musgrove v. L. Musgrove (12/6/91), 821 P 2d 1366
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
RONALD MUSGROVE, )
) Supreme Court No. S-3968
Appellant,)
v. ) Superior Court No.
) 3AN-86-15059 Civil
LOITA MUSGROVE, )
) O P I N I O N
Appellee. )
_________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
John Reese, Judge.
Appearances: Lawrence H. Crosby,
Minneapolis, Minnesota, and Charles E. Tulin,
Anchorage, for Appellant. Lawrence A.
Pederson, Paul J. Nangle & Associates,
Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
FACTS AND PROCEEDINGS
Loita and Ron Musgrove were married in 1981 and had two
children. In November of 1986, they petitioned for dissolution
of their marriage and a dissolution decree was thereafter
entered.
Under the terms of the dissolution, Loita received
custody of the parties' children, and Ron was required to pay
child support of $1,000 per month. Ron also agreed to pay Loita
$1500 per month in spousal support until "1-1-92 or until the
recipient dies or remarries or until wife ceases to be a full
time student during the school year (roughly Sept. through
June)."1
In August of 1989, Loita filed a motion in superior
court to reduce to judgment an alleged $7,325.80 arrearage in
child and spousal support. Loita is a full time nursing student,
who is scheduled to graduate with a B.S.N. in nursing from
Eastern Washington University in December 1991. She stated that
"I have not remarried, although I am residing with David Blake
and have been for several years." Additionally, Loita attached a
letter from Ron, written June 22, 1989, in which he stated that
he would continue to make timely child support payments, but
would no longer pay spousal support. In his letter, Ron cited
his recent visitation trip in which he learned "that you are, for
all practical purposes, married."
In his opposition memorandum, Ron asked that Loita's
motion be rejected on "legal, equitable, social, and moral
grounds." At a subsequent hearing before a superior court
master, Ron requested the master to find "that the modification
of the spousal support on ground of -- grounds of cohabitation is
here and existent."
In his decision the master found that there was no
elaboration of the meaning of the term "until married" in the
dissolution agreement other than a statement in Ron's affidavit
that it was the intent of the parties that the term include
cohabitation. He further found that while "Ms. Musgrove and Mr.
Blake live with the Musgrove children as a family unit," Ron's
claim that "'neighbors consider them married' is not
substantiated by independent evidence." The master rejected any
finding of de facto marriage, and refused to terminate spousal
support on those grounds. The master also found no evidence of
the contracting parties' intent to provide other grounds for
terminating spousal support beyond those enumerated in the
dissolution agreement.
The master concluded, however, that Loita's
cohabitation with David was an unanticipated change in
circumstances. The master noted that Loita's income had
increased due to educational loans, which were anticipated by the
parties, and due to the contribution David made to the household,
which was unanticipated. After analyzing the financial data that
Loita and David submitted, the master concluded that,
notwithstanding David's support contribution, Loita still
experienced a deficit in her legitimate child care and
educational expenses. He, therefore, concluded that
Mr. Musgrove's spousal support is
necessary for her to meet her financial
obligations, and just the fact that support
now results in $829 total income [per month]
greater than her expenses . . . is not good
cause to eliminate it entirely. It would be
fairer to reduce the spousal support to
$1,000 per month, as that would still allow
Ms. Musgrove to comfortably meet hers and the
children's needs.2
The superior court ruled on the objections which had
been filed to the master's report. The court characterized
Loita's spousal support as "rehabilitative" noting that the
ordered support met all the conditions for rehabilitative
alimony. The court found that none of these conditions were
changed by her cohabitation and that none of the conditions
precedent for a discontinuance of spousal support had occurred.
The court declined to address the moral issues, and concluded
that, while Loita may have reduced some of her expenses by living
with David, her living arrangement had the same economic effect
as if Loita had chosen to live with a female roommate. The
superior court ordered that judgment be entered for the full
amount of the claimed arrearages. This appeal followed.3
DISCUSSION
Ron raises four issues on appeal. However, he has
abandoned his first claim, relating to de facto marriage, by
failing to designate error. Patricia R. v. Sullivan, 631 P.2d 91
(Alaska 1981).4 In Ron's second point on appeal, he asks this
court to adopt a rule that cohabitation "creates a rebuttable
presumption against continuing rights to alimony." Ron's third
claim is that Loita's cohabitation, in and of itself, is a
material and substantial change in circumstance which warrants a
modification of spousal support. Ron's fourth claim is that
Loita's cohabitation has created legal rights for her in the
state of Washington, or possibly even in Alaska, which would
suffice to end Ron's legal obligation of spousal support. We
find none of Ron's points on appeal persuasive.
Rehabilitative Alimony and a Material and Substantial
Change of Circumstances
Distinctions which have been recognized between the
nature of permanent alimony and rehabilitative alimony are
determinative of the issues in this appeal.
In Voyles v. Voyles, we held that remarriage
automatically terminates permanent spousal support, in the
absence of an agreement to the contrary. 644 P.2d 847, 849
(Alaska 1982).5 In this regard we stated "remarriage should
serve as an election between the support provided by the alimony
award and the legal obligation of support embodied in the new
marital relationship." Id. In contrast, an award of
rehabilitative alimony does not create a continuing legal
obligation to provide for the reasonable needs of a former
dependent spouse. Rehabilitative alimony is awarded for a short
duration and a specific purpose "limited to job training or other
means directly related to entry or advancement within the work
force."6 Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska
1989). This distinction and its implications have often been
recognized by this court. See Bussell v. Bussell, 623 P.2d 1221,
1224 (Alaska 1981); Larson v. Larson, 661 P.2d 626, 632 n.4
(Alaska 1983) (Rabinowitz, J., dissenting) ("Rehabilitative
alimony in contradistinction to permanent alimony, is an award of
spousal support of limited duration and for a specific
purpose."); Richmond, 779 P.2d at 1215 (Although alimony is
generally not "just and necessary"when a property division can
adequately provide for the "reasonable needs of the spouse
seeking alimony,"rehabilitative alimony can be awarded for a
specific purpose and a short duration even with an adequate
property division if it is "limited to job training or other
means directly related to entry or advancement within the work
force."); Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986);
Carlson v. Carlson, 722 P.2d 222, 224 (Alaska 1986); Bays v.
Bays, 807 P.2d 482 (Alaska 1991).
Rehabilitative alimony is modifiable only when there is
a material and substantial change in circumstances related to its
purpose. In the absence of a special agreement, we agree that
[i]f a recipient of equitable rehabilitative
support achieves rehabilitation or stops trying to
obtain education or training to improve her
employment skills and earning capacity, that
changed circumstance justifies termination of
maintenance. . . . [H]owever, achievement or
cessation of rehabilitative efforts cannot be
presumed by the fact of remarriage.
O'Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.
Rev. 225, 259-60 (1985). Neither intimate personal relationships
between the dependent former spouse and a third party or
reasonable efforts by the dependent former spouse to reduce
expenses constitute a material and substantial change in
circumstances.7
Thus, based on our review of the record, we hold that
the superior court did not err in finding that no material and
substantial change of circumstances occurred. Loita is a full
time nursing student, who will graduate with a B.S.N. in nursing
from Eastern Washington University in December 1991. Ron has not
alleged or proven that Loita completed or ceased her
rehabilitative efforts. Without such a finding or a special
agreement, Ron's efforts to terminate rehabilitative spousal
support were correctly denied.8
There was no special agreement terminating
rehabilitative alimony upon "cohabitation" or "de facto
marriage." Ron specifically agreed to pay alimony to Loita of
$1500 per month in spousal support until "1-1-92 or until the
recipient dies or remarries or until wife ceases to be a full
time student during the school year (roughly Sept. through
June)." Ron's claim that the term "marriage" encompassed
"cohabitation" or "de facto"marriage was based solely on his
statements. Despite Ron's assertions, the master did not find
any evidence of the contracting parties' intent to provide other
grounds for terminating spousal support beyond those specifically
enumerated in the dissolution agreement. Based upon our review
of the record, the master's finding with regard to the intent of
the parties in the dissolution agreement was not clearly
erroneous. Thus, the superior court did not err in concluding
that there was no "legal basis for the failure to pay."
AFFIRMED.
_______________________________
1. The dissolution petition is completed in ink by hand,
apparently by the parties themselves. The form provides a
preprinted space for spousal support with the preprinted
limitation that support ends when the recipient dies or
remarries. The proviso relating to Loita's student status was
added by hand.
2. The master found that Loita received $908.33 in
educational loans and that David contributed $101.60 per month
toward Loita's household expenses.
3. The parties agree that in reviewing the legal issues
presented this court should use its independent judgment in
review. Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987). In
doing so, we adopt the law that is "most persuasive in terms of
precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
4. At no point does Ron allege error in the master's
findings. While the master did apply California law to find that
no de facto marriage existed, Ron admits that the law of
Washington state, where the supposed de facto marriage took place
is similar. Neither state recognizes common law marriage.
Therefore, the master would have reached the same result under
Washington law.
5. AS 25.24.170 provides that "any time after judgment the
court, upon the motion of either party, may set aside, alter, or
modify so much of the judgment as may provide for alimony . . .
or for the maintenance of either party to the action." This
court has held that "to modify a support decree pursuant to a
material and substantial change in circumstances is generally
required." Larson v. Larson, 661 P.2d 626, 628 (Alaska 1983)
(citing Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979)).
The trial court's determination of what constitutes a material
and substantial change is guided by the special agreements of the
parties and the nature of the spousal support awarded. E.g.
Estate of Kuhns v. Kuhns, 550 P.2d 816, 817-18 (Alaska 1976)
(obligation of support ceases at death, absent agreement to the
contrary); Larson v. Larson, 661 P.2d 626, 630 (Compton, J.,
concurring) (rehabilitative alimony is not modifiable).
6. The importance of providing dependent spouses with
adequate job skills cannot be over-estimated. Currently,
"households headed by divorced and separated mothers constitute
the fastest growing segment of the American poor." Singer,
Divorce Reform and Gender Justice, 67 N.C.L. Rev. 1103 (1989).
In Alaska, "divorced women and their children experienced a 33%
decline in per capita income resulting in a radical downward
shift of their standard of living. . . ." Alaska Women's
Commission, Family Equity At Issue. A Study Of Economic
Consequences of Divorce on Women and Children, i (October 1987).
It has been explained that "Enhancing earning capacity
of the economically dependent spouse is the purpose of true
rehabilitative alimony." Krauskopf, Rehabilitative Alimony:
Uses and Abuses of Limited Duration Alimony, 21 Fam. L. Q. 573,
581 (1987-88). See also Ford, Rehabilitative Alimony-A Matter of
Discretion or Direction?, 12 Fla. St. U. L. Rev. 285, 290 (1984)
("the purpose of rehabilitative alimony is to establish a
capacity for self-support and . . . the purpose of permanent
alimony is to sustain those who lack a capacity for self-support.
. . .").
7. We have expressed a strong policy "to disentangle fully
interspousal affairs upon dissolution." Voyles v. Voyles, 644
P.2d 847, 849 (Alaska 1982).
While cohabitation by the receiving
spouse may often lead to a sense of moral
outrage on the part of the paying spouse, we
can see no relevance under the present
statutory scheme for evidence concerning the
sexual conduct of the receiving spouse. . . .
The modification of spousal maintenance is
authorized 'only upon a showing of changed
circumstances which are substantial and
continuing.' A.R.S. 25-327(A). A
reference to 'changed circum-stances' . . .
is clearly a reference to the economic
circumstances that justified the original
award. . . [T]he sexual conduct of the
receiving spouse is simply not relevant.
Smith v. Mangum, 747 P.2d 609, 612 (Ariz. App. 1987). We note
that Arizona law on alimony is very similar to Alaska law. In
Arizona, an award of spousal support may be modified only upon a
showing of "changed circumstances which are substantial and
continuing." Id. at 612 (quoting A.R.S. 25-327(A))
Additionally, permanent spousal support in Arizona terminates
automatically upon remarriage, id. at 611 (quoting A.R.S. 25-
327(B)), and Arizona does not recognize common law marriage. Id.
at 611 n.1.
8. Alternatively, we conclude Ron has not established facts
or law to support the proposition that David has acquired a legal
obligation to support Loita. Even if we failed to recognize the
distinction between permanent spousal support and rehabilitative
alimony, Ron has failed to prove that Loita has gained a
continuing legal obligation of support constituting a material
and substantial change of circumstances. Ron argues that "[t]he
decisional law of Washington State . . . makes use of quasi-
marriage or de facto marriage in order to . . . establish
benefits and to settle claims to property . . . ." However, Ron
never asserts that David has a legal obligation to support Loita
or cites any persuasive precedent. Loita correctly asserts that
Washington law only creates "[r]ights to jointly acquired
property [which] is not the same as a legal right to support,
which is the issue in the instant case." See Warden v. Warden,
676 P.2d 1037 (Wash. App. 1984) (holding only that the statutory
criteria for property division upon divorce apply to nonmarital
relationships of long duration).
Ron also invites this court to reinstate common law
marriage or find a right to "palimony"which might serve as
grounds for extinguishing his obligation to pay rehabilitative
spousal support. This is not the correct case to address this
question, because the two concerned parties do not live in this
state.
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