Bell v. Bell

Wilkins, J.

(dissenting, with whom Liacos and Abrams, JJ., join). The opinion of the Appeals Court presents a reasonable interpretation of the separation agreement, certainly a view preferable to that expressed in the opinion of this court. The court’s opinion gives no effect to the provision in the separation agreement that neither party will “interfere with the personal liberty of the other, and each may lead his or her life free from any criticism or restraint of the other.” We would reverse the judgment of the trial court by focusing on the crucial language of the separation agreement, and would thus ignore the details of the private arrangement between Mrs. Bell and J.R. that have influenced the opinion of this court and the majority and dissenting opinions of the Justices of the Appeals Court.

The question for decision is what the parties meant by the phrase “(3) [the wjife’s living together with a member of the opposite sex, so as to give the outward appearance of marriage at any time prior to May 1, 1981. . . .” We know that the wife’s living with a man would not alone terminate the husband’s alimony obligation. The living together must have the appearance of marriage and that appearance must be outward. *25The court is wrong, therefore, in relying exclusively on the fact of “[Mrs. Bell’s] sharing a bedroom with [J.R.] on a regular basis for approximately three years.” Ante at 22. That fact presents no outward appearance of anything. It was a private matter.

The significant point is that all the facts concerning the conduct and relationship of the wife and J.R. are equally consistent with a couple’s not being married as they are with a couple’s being married.1 Couples, married and unmarried, share or do not share living and travel expenses when they live together. In today’s society, for better or for worse, unmarried couples live together and, from that fact alone, no conclusion can fairly be drawn that such couples are married or that they give the outward appearance of marriage. The fact of sharing a bedroom over a period of time is thus inconclusive on the question of an outward appearance of marriage.

The disputed language would apply, however, if Mrs. Bell were to have held herself out as married to J.R. That fact would have given the outward appearance of marriage. The facts in this case incontestably show that Mrs. Bell made no such representation. It is not for us to apply our moral judgment to conclude that the sharing of a bedroom over a period of time should be treated as giving an outward appearance of marriage when in fact, in today’s world, such a sharing of a bedroom gives no such appearance.

There is one fact which, if true, might indicate that Mrs. Bell and J.R. did not give the outward appearance of marriage. She testified that, during the entire time she had known J.R., she had dated other men and that she and J.R. had no arrangement by which she could not go out with other men. The opinion of the court ignores both this testimony concerning outward conduct and the trial judge’s failure to consider it. The trial judge simply found that “on rare occasions [Mrs. Bell] brought someone other than J.R. to . . . cocktail parties” at J.R.’s apartment.