{ "id": 862798, "name": "Gloria Goolsby HERMAN v. Michael Thomas HERMAN", "name_abbreviation": "Herman v. Herman", "decision_date": "1998-11-05", "docket_number": "98-85", "first_page": "36", "last_page": "41", "citations": [ { "type": "official", "cite": "335 Ark. 36" }, { "type": "parallel", "cite": "977 S.W.2d 209" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "57 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139214 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "194" }, { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ark-app/57/0190-01" ] }, { "cite": "312 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935041 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "67" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0061-01" ] }, { "cite": "302 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884262 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "105" }, { "page": "679" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/302/0103-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-12-314", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1998, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "252 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630080 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "203" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ark/252/0202-01" ] }, { "cite": "41 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136549 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0029-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-12-312", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(l)(A)" } ], "opinion_index": 0 }, { "cite": "332 Ark. 427", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377636 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "431" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0427-01" ] }, { "cite": "333 Ark. 414", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703791 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "417-18" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0414-01" ] } ], "analysis": { "cardinality": 461, "char_count": 8378, "ocr_confidence": 0.745, "pagerank": { "raw": 2.761714968706315e-07, "percentile": 0.8336157822328638 }, "sha256": "349d65b109665a10c3215652fd9832b46e506cd6c89aceb005c9935f7f213b54", "simhash": "1:9de888e269cd0500", "word_count": 1367 }, "last_updated": "2023-07-14T15:28:04.221219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gloria Goolsby HERMAN v. Michael Thomas HERMAN" ], "opinions": [ { "text": "David Newbern, Justice.\nAppellant Gloria Goolsby Herman and appellee Michael Thomas Herman were divorced on June 30, 1992. The decree directed Mr. Herman to pay alimony in the amount of $25 per week until June 1994 and $50 per week thereafter. In March 1997, Mr. Herman petitioned to terminate his alimony obligation on the ground that Ms. Herman and Richard Purifoy, although unmarried, had been living together for several years. Mr. Herman alleged that Mr. Purifoy was \u201cgainfully employed\u201d and contributing towards Ms. Herman\u2019s \u201csupport and maintenance\u201d and that their cohabitation was a \u201cmaterial change in circumstances\u201d that warranted the termination of his alimony obligation. Ms. Herman appeals the Chancellor\u2019s order granting Mr. Herman\u2019s petition. We reverse and remand.\nMr. Herman\u2019s alimony obligation was determined in June 1992 on the basis of several factors, including (1) the fact that Ms. Herman, as a result of the divorce, would lose coverage under Mr. Herman\u2019s insurance policies and would need financial assistance to procure coverage for herself; and (2) the fact that Ms. Herman\u2019s father would be living with Ms. Herman and contributing $200 per month toward household expenses. No issue has been raised in this case with respect to whether an agreement between the parties is merged in the decree.\nSince the divorce, Ms. Herman has used the alimony payments to purchase life and health insurance policies. The $200 monthly payments that Ms. Herman received from her father ceased upon his death in March 1994. Mr. Purifoy moved into Ms. Herman\u2019s home in July 1994 and has remained there except for the period from September to December of 1995.\nMr. Purifoy testified that he and Ms. Herman five together in a \u201cpermanent\u201d sexual relationship that is \u201ceverything but marital in name.\u201d He testified that he and Ms. Herman have discussed marriage and \u201cplan to\u201d marry. Mr. Purifoy is employed and contributes $200 per month toward his share of the utility bills, which is the same amount that Ms. Herman\u2019s father had contributed. Mr. Purifoy added that he \u201csometimes pick[s] up the tab\u201d when he and Ms. Herman \u201cgo out for dinner\u201d and that he \u201coccasionally pay[s] for the groceries.\u201d Ms. Herman testified that she purchases groceries \u201cmost of the time.\u201d She added that Mr. Purifoy pays \u201chis fair share\u201d of the utility bills and is neither \u201cfreeloading\u201d nor \u201cthe kind of fellow who would mooch off of someone.\u201d\nMr. Herman testified that he has remarried, but he did not assert, or introduce evidence showing, that his ability to pay alimony has diminished since the time of the divorce. Mr. Herman conceded that Ms. Herman\u2019s financial condition has not changed since the divorce \u201cif what [Mr. Purifoy] is contributing is basically the same thing that [Ms. Herman\u2019s father] was contributing.\u201d\nThe Chancellor granted Mr. Herman\u2019s petition. The Chancellor found that Ms. Herman had been \u201ccohabitating\u201d with Mr. Purifoy and that Mr. Purifoy \u201cregularly contributes to the monthly household expenses.\u201d The Chancellor\u2019s letter opinion continued with a statement of public policy, although it was not so designated, to the effect that allowing alimony to continue in the circumstances presented would amount to a \u201cdeterrent\u201d to marriage, which is an institution to be encouraged by the court. The Chancellor concluded that Ms. Herman\u2019s situation is no different than if she and Mr. Purifoy were married.\nPublic policy is found in the Constitution of Arkansas and in the laws enacted by the General Assembly. Vincent v. Prudential Ins. Brokerage, 333 Ark. 414, 417-18, 970 S.W.2d 215, 217 (1998); Western World Ins. Co. v. Branch, 332 Ark. 427, 431, 965 S.W.2d 760, 762 (1998). A statute addresses instances in which there shall be an automatic cessation of alimony, unless \u201cotherwise ordered by the court or agreed to by the parties, . . . upon the earlier of\u201d:\n(A) The date of the remarriage of the person who was awarded the alimony; or\n(B) The establishment of a relationship that produces a child or children and results in a court order directing another person to pay support to the recipient of alimony, which circumstances shall be considered the equivalent of remarriage; or\n(C) The establishment of a relationship that produces a child or children and results in a court order directing the recipient of alimony to provide support of another person who is not a descendant by birth or adoption of the payer of the alimony, which circumstances shall be considered the equivalent of remarriage.\nArk. Code Ann. \u00a7 9-12-312(a)(l)(A)-(C) (Repl. 1998). See Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993). While we have no quarrel with the Chancellor\u2019s statement about the encouragement of marriage, the General Assembly has addressed the establishment of a relationship resulting in the birth of a child but has not seen fit to say that mere cohabitation is the \u201cequivalent of marriage\u201d as the Chancellor suggested.\nThe Chancellor\u2019s reasoning also conflicts with our holding in Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972), which clearly indicates that marriage and nonmarital cohabitation are not equivalent for purposes of determining whether a former spouse is entitled to continue receiving alimony. Without deciding the issue, we suggested that a spouse who cohabitates with a third party might lose his or her entitlement to alimony if (1) the third-party \u201ccompanion\u201d has assumed responsibility for the spouse\u2019s \u201ccare and maintenance\u201d; or (2) the spouse has assumed his or her companion\u2019s name and held himself or herself out publicly as the companion\u2019s spouse. 252 Ark. at 203, 478 S.W.2d at 46.\nEven under the analysis suggested in the Byrd case, Ms. Herman\u2019s cohabitation with Mr. Purifoy cannot be viewed as the equivalent to marriage for purposes of determining whether Ms. Herman is entitled to continue receiving alimony payments from Mr. Herman. There is no evidence that Ms. Herman has assumed Mr. Purifoy\u2019s name or held herself out publicly as his wife. Likewise, there is no evidence that Mr. Purifoy has assumed responsibility for Ms. Herman\u2019s \u201ccare and maintenance.\u201d\n\u201cAn award of alimony is always subject to modification, upon application of either party,\u201d pursuant to Ark. Code Ann. \u00a7 9-12-314(a) (Repl. 1998). Bracken v. Bracken, 302 Ark. 103, 105, 787 S.W.2d 678, 679 (1990).\nSuch modification must be based, however, on a change in the circumstances of the parties. The burden of showing such a change in circumstances is always upon the party seeking the change in the amount of alimony. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. Id. (citations omitted).\nWe find no such evidence in the record. As Mr. Herman conceded in his testimony, Ms. Herman\u2019s financial condition is the same as it was at the time of the divorce. Mr. Purifoy contributes $200 toward his share of the household utility expenses, but that is the same amount that Ms. Herman\u2019s father had contributed and that the Hermans had originally taken into account in determining Mr. Herman\u2019s alimony obligation. There is no evidence Mr. Purifoy has otherwise contributed significantly towards Ms. Herman\u2019s care and maintenance. Ms. Herman\u2019s cohabitation with Mr. Purifoy, then, has not changed Ms. Herman\u2019s financial circumstances or diminished her need for alimony.\n\u201cAn award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion.\u201d Burns v. Burns, 312 Ark. 61, 67, 847 S.W.2d 23, 27 (1993). A finding of changed circumstances warranting the termination of an alimony obligation, however, is a finding of fact that will not be reversed unless clearly erroneous or clearly against the preponderance of the evidence. Benn v. Benn, 57 Ark. App. 190, 194, 944 S.W.2d 555, 558 (1997).\nThe Chancellor clearly erred when he terminated Mr. Herman\u2019s alimony obligation absent a showing of changed circumstances. The order terminating Mr. Herman\u2019s alimony obligation is therefore reversed, and the case is remanded for entry of an order consistent with this opinion.\nReversed and remanded.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Robert S. Laney, for appellant.", "Bramblett & Pratt, by: Eugene D. Bramblett, for appellee." ], "corrections": "", "head_matter": "Gloria Goolsby HERMAN v. Michael Thomas HERMAN\n98-85\n977 S.W.2d 209\nSupreme Court of Arkansas\nOpinion delivered November 5, 1998\nRobert S. Laney, for appellant.\nBramblett & Pratt, by: Eugene D. Bramblett, for appellee." }, "file_name": "0036-01", "first_page_order": 56, "last_page_order": 61 }