Smith v. Smith

SIMMS, J.,

concurring specially:

*299I would strike § 1289(D) as unconstitutional.

HODGES, LAVENDER, DOOLIN and HARGRAVE, JJ., dissents. OPALA, Justice,

concurring specially:

I concur in the court’s analysis that gives the statute under consideration, 12 O.S.1981 § 1289 D, prospective application from and after its effective date of October 1, 1979. Art. 5 §§ 52 and 54, Okl. Const.1

I do not share the court’s view, implicit in its opinion, that the statute here in question constitutes the sole source of judicial power to terminate support alimony of a recipient who has a cohabiting non-marital mate. A nonspousal union based in a common household may create a bond of economic interdependence that bears all the earmarks of a matrimonial partnership. When interposed for the purpose of terminating support alimony, such bond should be treated as a de facto remarriage2 within the purview of 12 O.S.1981 § 1289 B.3 This' court’s pronouncement of a contrary doctrine in All-good v. Allgood4 should be overruled.

. The judgment of a court constitutes “an obligation of the highest nature known to the law.” A right to a judgment is “vested”. Vaughn v. Osborne, 103 Okl. 59, 229 P. 467, 470 [1924], “A ‘vested right’ is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created either by common law, by statute or by contract. Once created, it becomes absolute, and is protected from legislative invasion by Art. 5, Secs. 52 and 54 of our Constitution." [Emphasis added], Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District, Okl., 464 P.2d 748, 755 [1969],

. The concept of a de facto remarriage has been applied in other jurisdictions to effect support-alimony termination. Parish v. Parish, 374 So.2d 348, 349 [Ala.Civ.App.1979]; In re Marriage of Lieb, 80 Cal.App.3d 629, 145 Cal. Rptr. 763 [1978]; In re Support of Halford, 70 Ill.App.3d 609, 27 IU.Dec. 168, 388 N.E.2d 1131 [Ill.App.1979]. See also The Effect of Third Party Cohabitation on Alimony Payments, 15 Tulsa Law Journal 772, 780-785 [1980] Cf. Allgood v. Allgood, Okl., 626 P.2d 1323 [1981],

. The terms of 12 O.S.1981 § 1289 B provide in pertinent part:

“ * * * The court shall also provide in the divorce decree that any such [alimony] payment of support shall terminate añer remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable. Provided however, that unless the recipient shall commence an action for such determination within ninety (90) days of the date of such remarriage, the court shall, upon proper application, order the payment of support terminated and the lien thereof discharged.” [Emphasis added]. Absent an explicit agreement to the contrary which is incorporated in the divorce decree, support alimony is terminable ex lege on obligee’s remarriage. Dickason v. Dicka-son, Okl., 607 P.2d 674, 677-678 [1980],

. Supra note 2.