(dissenting).
Notwithstanding the recent case of Perry v. Perry, 47 OBJ 1106, 551 P.2d 256 (Okl.*6181976), to the contrary, I dissent to the majority’s interpretation of 12 O.S.1971 § 1289(b), which holds the statute is not mandatory as to termination of support alimony payments where there is an agreement and consent decree that alimony payments do not terminate on death or remarriage of the wife.
Prior to 1965, alimony judgments were considered to be final judgments. This fixed rule of construction of 12 O.S.1931 § 1278 was recognized in Gilcrease v. Gilcrease, 186 Okl. 451, 98 P.2d 906, 907, 127 A.L.R. 735 (1940):
“We conclude that each judgment for alimony to the wife upon the granting of a divorce should be measured by the same rules as to finality, and that in no case does the husband have a right to modification of an alimony judgment, after the same has become final on account of the remarriage of his wife to another man.”
The legislature recognized the inequity of this situation, and enacted 12 Okl.Supp.1965 § 1289 which provided:
“In a divorce decree which provides for periodic payments of alimony, the Court may, in its discretion, declare that the obligation to pay future installments automatically ceases on the death or remarriage of the person receiving alimony.”
The statute was amended by 12 Okl. Supp.1967 § 1289 and it has remained unchanged since that time. Under this statute, it is the mandatory duty of the court to provide in the divorce decree that the alimony judgment terminated upon remarriage unless a proper showing of equitable necessity was presented to the court within ninety (90) days. Failure to include this language does not change the application or clear intent of the statute. Termination of the alimony judgment was obligatory pursuant to the statute, in the absence of the permitted exceptions. The statute, 12 O.S. 1971 § 1289,1 provides support payments shall terminate unless the recipient shall commence an action for their continuance within ninety (90) days.
In the construction of statutes the word “shall” normally implies a command or mandate depending upon the construction of the statute as a whole and the intention of the legislature. Oklahoma Alcoholic Beverage Control Bd. v. Moss, 509 P.2d 666, 668 (Okl.1973).
The duty devolved not only upon the court to terminate the alimony, but upon the spouse to show a necessity for the continuance of support within ninety (90) days *619to prevent termination of the alimony judgment. See dissenting opinion, Perry v. Perry, supra.
A very clear picture of legislative history and intent is thus revealed. Alimony judgments have undergone a metamorphosis from judgments of absolute finality, regardless of death or remarriage; to judgments which may terminate upon death or remarriage at the discretion of the court; to judgments which mandatorily terminate on death and remarriage unless a proper showing is made that support is still needed and payment is not inequitable within ninety (90) days of remarriage.
The law imposes a duty on a second husband to support a wife. Husband and wife contract towards each other obligations of mutual respect, fidelity and support. 32 O.S.1971 § 3. A new marital contract supposedly excludes dependence on an old spouse for these obligations. This obligation is recognized by 12 O.S.1971 § 1289(b). It is presumed that when one remarries the new spouse becomes obligated for support and maintenance. It is unreasonable to permit one to benefit from that right and to demand alimony from a former spouse at the same time, thus enjoying an economic polyandry.
I also dissent on the grounds that the present case can be readily distinguishable from the facts in the Perry case. There the agreement of the parties specifically provided that termination of alimony payments was only dischargeable upon death of the wife, notwithstanding the provisions of 12 O.S.1971 § 1289(b) to the contrary. In the present case the agreement of the parties is silent as to the termination of alimony. If the agreement and decree of divorce are silent on matters mandated by statute, then the statute should be read into the decree as a part thereof.
If the agreement as to termination of alimony is allowed to supersede the statute, then, at least, we should require the agreement to be specific and expressed. In absence of a specific provision, then the statute on termination of alimony should prevail.
I am authorized to state that Justice DOOLIN concurs in the views herein expressed.
. 12 O.S.1971 § 1289 presently provides :
“(a) In a divorce decree which provides for periodic payments of alimony, the Court may, in its discretion, declare that the obligation to pay future installments automatically ceases on the death or remarriage of the person receiving ,the alimony. This subsection shall not apply to divorce decrees entered after December 31, 1967.
“(b) In any divorce decree entered after December 31, 1967, which provides for periodic alimony payments, the Court, at the time of entering the original decree, only, may designate all or a portion of each such payment as support, and all or a portion of such payment pertaining to a division of property. Upon the death of the recipient, the payments for support, if not already, accrued, shall terminate, but the payments pertaining to a division of property shall continue until completed; and the decree shall so specify. The payments pertaining to a division of property shall be irrevocable. Upon the presentation of proper proof of the death of such recipient, the Court shall order the judgment for support to be terminated, and ,the lien thereof released unless a proper claim shall be made for any past due support payments by any executor, administrator or heir within ninety (90) days from the date of death of the recipient. The Court shall also provide in the divorce decree that any such support payments shall terminate after remarriage of the recipient, unless the recipient cam make a proper shornng that said 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 unthin ninety (90) days of the date of such remarriage, the Court shall, upon proper application, order the support judgment terminated and the lien thereof discharged. (Emphasis Supplied)