dissenting:
In Wilbanks we adopted the rule: “Statutes are to be construed as having prospective operation unless the purpose and intention of the Legislature to give a retrospective effect is expressly declared or is necessarily implied from the language used.” (Emphasis supplied).
I am not stating that the court may terminate support alimony due and owing pri- or to October 1, 1979, the effective date of the statute in question. That would be clearly ex poste facto as the parties did not have notice that the support alimony might be terminated. However, support alimony due after October 1, 1979, I view in a far different light. On and after that date the parties, particularly the woman in the case at bar, had notice, and yet continued in the cohabitational status of the statute.
The Appellant argues a judgment is a vested property right and cannot be retrospectively altered by statute. She further argues there is no language in Section 1289(D) to make its effect retrospective. To me a judgment, particularly a support alimony judgment, calling for periodic payments, may fix or define vested property rights but usually is not ipso facto a vested right in itself. Otherwise the Legislature could not have allowed for the termination of support alimony upon the death or remarriage of the recipient, or upon the voluntary cohabitation of the recipient, as in *300the case at bar. Each payment becomes vested only when due, and not before. The fact that the trial court has the discretion, upon proper application, to continue support alimony after remarriage, gives the “vested” argument of Appellant little weight.
I base my dissent on the wording of Wil-banks’ “necessarily implied.” In Wilbanks the statute was not retroactively applied because the statute specifically said it was not to be so applied. In fact the statute gave two different statutes for divorce decrees granted both before and after a certain date. See 12 O.S.Supp.1967, § 1289(A) and (B). Upon the addition of Section (D) the Legislature made no move to specifically inhibit its application as it had done in previous sections (A) and (B). To me this is an unmistakable message that (D) may be applied to those support alimony payments due after the effective date of the statute, regardless of when the decree was entered.
The statute [section 1289(D)] was designed to modify support alimony in cases where such support alimony was no longer needed due to the recipient-spouse’s new living arrangements. If, at the time of trial, the cohabitation continues, I would hold the court may modify all support alimony from the effective date of § 1289(D), including future support alimony [subject to the recipient-spouse filing a motion to reinstate alimony if and when the cohabitation changes, again based on need.] We base the rule on need, not on morality. When the cohabitation has ceased, the court should modify support alimony only for those times when the cohabitation, and hence the need for support alimony, was viable. The object of the statute should not be to punish the spouse who cohabits with a member of the opposite sex; the aim is to allow modification of support alimony when need for such has decreased or ceased to exist. We cannot, and will not, dictate our personal moral philosophy.
I am authorized to state that Justice LAVENDER supports this dissenting position.