Monday, April 13, 1998 | 10:08 a.m.
CARSON CITY -- Ex-spouses don't automatically lose alimony or child support if they are living with another person, the Nevada Supreme Court has ruled.
The court, in two cases from Las Vegas, ruled against ex-husbands who wanted to reduce or eliminate support when their ex-wives started living with new men.
"Rights to spousal support are not rescinded merely because the recipient spouse is cohabiting," said Justice Miriam Shearing, who wrote the majority opinion issued Friday. The decision said there must be a financial test to determine whether there should be a change in support.
The court refused to lower the payments of one of the women, even though she was supporting her new lover.
Richard and Marjorie Gilman were divorced in Las Vegas in 1990 after 27 years of marriage. As part of the divorce decree, Marjorie receives $1,500 a month that can be terminated only upon death or remarriage. The amount of the support, however, could be reconsidered if Marjorie co-habits with a man who "significantly contributes to her support."
Marjorie started living with Tom Westmoreland in Las Vegas, sharing expenses. They then moved to Massachusetts where Marjorie bore the brunt of the expenses, providing him free rent and food in return for carpentry work around the house.
Westmoreland used his salary to make payments on his car and his home in Las Vegas.
Gilman said that his ex-wife and Westmoreland are living together and that she chose not to remarry to avoid the terms of the divorce.
The court upheld former Family Court Judge Terrance Marren, who ruled that Westmoreland had not significantly contributed to Marjorie's support and that "Nevada law contained no presumption that spousal support should terminate if the recipient cohabits with another person ..."
The court also rejected the appeal of Kenneth Callahan, divorced from Valerie Callahan in Las Vegas after eight years of marriage. She received $1,500 a month, according to the decree that says the support would terminate upon Ken's death or Valerie's remarriage.
Valerie moved in with Chuck Maraden, and they moved to Reno. Callahan sought an end to the support, claiming Valerie and Maraden were living together as if they were married, except for the ceremony.
The court upheld the decision of Family Court Judge Gloria Sanchez, who declined to lower or end the support even though Valerie and Maraden were sharing living expenses. Valerie argued that her financial condition actually deteriorated during her cohabitation.
Shearing wrote, "Shared living arrangements, unaccompanied by evidence of a decrease in the actual financial needs of the recipient spouse, are generally insufficient to call for alimony modification."
Shearing said a recipient spouse may be left unprotected economically if she breaks off the new relationship.
She said the Legislature created spousal-support awards to keep recipient spouses off welfare. "Modifying or terminating spousal-support payments based upon cohabitation may be inconsistent with this purpose."
But there are also provisions for changing or stopping the support payments if the recipient significantly improves his or her financial position.
"We hold that a showing that the recipient spouse has an actual decreased financial need for spousal support due to the fiscal impact of a cohabitant may constitute changed circumstances sufficient to require a modification of unaccrued payments under that support obligation," the majority said.
Chief Justice Charles Springer dissented in the Callahan case, saying Valerie and Maraden were acting in every way as if they were married except for exchanging wedding vows.
"In my opinion, this kind of 'marriage-like' relationship should not only be considered by the family court, it should create a rebuttable presumption of a change in circumstances," Springer said.
He said in these types of relationships, each party may make a claim against the other for palimony and for community property if there is a breakup.
"It is my position that an alimony-receiving ex-spouse cannot 'have it both ways' -- that is, cannot put himself in a position where he is entitled to receive palimony and property division ... and also be entitled to continue to receive alimony from a former spouse," Springer said.
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