dissenting: I respectfully dissent from Syllabus 3 of the court’s opinion. The trial court was properly within the bounds of the record when it found no common-law marriage was established because no present marriage agreement between Irene Fleming and Elmer Schlarman was proven. It should be noted, however, Irene and Elmer have the capacity to be married, have lived together and had sexual relations. They have held themselves out to the public as husband and wife.
The public policy of this state should not require a former husband to continue alimony payments to his former wife after proving his former wife and another man are living together and holding themselves out as man and wife, although a common-law marriage has not been established.
K. S. A. 23-118 provides:
“That any persons living together as man and wife within this state without being married shall he deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than five hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than thirty days nor more than three months.”
This clearly expresses Kansas law and fairly states the public policy of the state. Today this public policy of Kansas is ignored by the Supreme Court of Kansas.
The trial court noted “there would be many cases in this town where alimony would terminate because the man or woman is sleeping with someone else.” K. S. A. 23-118 merely precludes living together as man and wife, not “sleeping with someone else,” so the violations may not be as widespread as the trial court indicates. Regardless of the number, however, violations of our law are a poor foundation on which to require Frank to subsidize Irene’s indiscretions. Here Elmer and Irene have lived together as man and wife for over three years. If our courts sanction a *294breakdown in the law, as the record here discloses, orderly society as we know it today may soon become a phenomenon of the past.
It must be admitted the courts of other states are split upon this subject. An Annotation at 6 A. L. R. 2d 859 (1949) and its supplements discuss a divorced wife’s subsequent misconduct as authorizing or affecting modification of a decree for alimony. A leading case on this subject is Weber v. Weber, 153 Wis. 132, 140 N. W. 1052, 45 Lns 875 (1913) where the court stated:
. But it is not in consonance with the evident intent of the statute, or with the judicial policy of this state, or with principles of natural justice, to hold that the subsequent misconduct of a wife of the character here found should not be considered by a court of equity in determining how much the husband shall continue to contribute to her support. If the facts disclose a single lapse from virtue, caused perhaps in some degree by the misconduct of the husband; that he has in his possession property accumulated by the economy and labor of both during the married state; that the wife is without any means of her own and without the ability to earn a livelihood, then the court may well refuse to modify the amount of alimony awarded in the original decree. On the other hand, if the wife, without the fault of the husband and without any adequate excuse or palliation, deliberately chooses a life of shame and dishonor, has no other equitable claim upon property in the hands of the husband, and he is compelled by his daily toil to earn the money paid to her, the court may make the misconduct of the wife the ground for cutting off all alimony, or for reducing the same, as may in its discretion seem just and equitable under all the circumstances of the case. Our statute, . . . prescribes no grounds upon which a judgment for alimony may be modified. It wisely leaves that to the judgment of the court. The considerations that may legitimately influence such judgment are so varied and complex that legislative and judicial wisdom alike refrain from any attempt to enumerate them. This much, however, may be said: the courts of our state do not permit vice to flaunt its banner before them unchallenged. When it appears, its nature and extent may be inquired into, and if justice so demands, it may be made the ground of equitable relief in the allowance of alimony.” (Emphasis added.) (pp. 137-138.)
See also Taake v. Taake, 70 Wis. 2d 115, 233 N. W. 2d 449 (1975), where the majority reaffirmed the rule that cohabitation with another man can be acknowledged as a change of circumstances affecting a former husband’s responsibility to provide alimony for a former wife’s .support, although the court reversed that part of the trial court’s order barring future alimony.
Other cases generally holding that a former wife’s post-divorce immoral conduct is enough to justify a modification or termination of alimony payments include Grant v. Grant, 52 Cal. App. 2d 359, 126. P. 2d 130 (D. Ct. App. 1942); Harper v. Murray, 184 Cal. 290, 193 Pac. 576 (1920); Coggins v. Coggins, 289 Ky. 570, 159 S. W. *2952d 4 (Ct. App. 1942); Martens v. Martens, 211 Minn. 369, 1 N. W. 2d 356 (1941); Wilhelm v. Wilhelm, 201 Minn. 462, 276 N. W. 804 (1937); Lindbloom v. Lindbloom, 180 Minn. 33, 230 N. W. 117 (1930); Haritos v. Haritos, 185 Wis. 459, 202 N.W. 181 (1925); and Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534 (1961). (But see Double v. Double, 248 Cal. App. 2d 650, 56 Cal. Rptr. 687 [1967].)
In my opinion the court is authorized under K. S. A. 60-1610 (d) to consider the former wife’s actions in holding herself out to the public as the wife of another although a common-law marriage has not been established. K. S. A. 60-1610 (d) provides [formerly K. S. A. 1975 Supp. 60-1610 (c) ]:
“The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.” (Emphasis added.)
The court has applied this provision in reducing the original alimony decree in Jarvis v. Jarvis, 218 Kan. 679, 544 P. 2d 1384; Carlton v. Carlton, 217 Kan. 681, 538 P. 2d 727; and Baird v. Baird, 209 Kan. 604, 498 P. 2d 83.)
Here the appellant’s motion for an order terminating alimony, filed April 1, 1975, stated in part:
“. . . [E]ven should .a common-law marriage not be found by the Court, the plaintiff is subverting the intent of the Court’s order pending remarriage by living as the wife of Elmer Schlarman and having all of the benefits of a marriage while collecting alimony from the defendant and that such action is contrary to the public policy of this State as .announced by the Supreme Court of this State.”
It is clear from the foregoing that the appellant’s position was presented to the trial court. But the trial court erred in its implied finding that it lacks the power to modify or terminate alimony because of the former wife’s aotions.
This is a case of first impression in Kansas.
To add further insult, this court has awarded appellee’s counsel an additional attorney’s fee in the sum of $500 for litigating this matter on appeal.
*296It may be argued K. S. A. 23-118 is inconsistent with the recognition of common-law marriages in Kansas. But it must be recognized that common-law marriages are valid in Kansas despite 23-118, supra. In Smith v. Smith, 161 Kan. 1, 165 P. 2d 593, the court said:
“. . . While that penalty may be enforced, the fact that the parties are guilty of the offense there charged does not annul the marriage. . . .” (p. 3.)
Public policy favors marriages. (Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311.) It is apparent from case law that our Supreme Court accepts common-law marriages despite possible violations of 23-118, supra. (See In re Estate of Mazlo, 211 Kan. 217, 505 P. 2d 762.)
In my opinion, there is no contradiction in holding that alimony may be terminated on grounds of public policy, under the facts and circumstances here presented, even where the public policy of this state accepts living together as man and wife for common-law marriage purposes.
Under the facts and circumstances here presented, I would affirm •the trial court as to past-due installments of alimony, but would remand the case to the district court with directions to reconsider the appellant’s motion in accordance with the law stated herein.
Fbomme, J., joins in the foregoing dissenting opinion.