# Petition for Writ of Certiorari — Bell v. Bell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1027

## Text

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84-9 os ( / Office - Supreme Court, U.S.
FILED
DEC 1% 1984
IN THE SUPREME COURT OF THE UNITED TADS Roer . sTEVAS
CLERK
October Term,

No.

ANNE C. BELL, Petitioner
vs.

LOWRY M. BELL, JR., Respondent

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT FOR
THE COMMONWEALTH OF MASSACHUSETTS

John P. White, Jr.
Counsel for Petitioner
White, Inker, Aronson,

Connelly & Norton,P.C.
One Washington Mall
Boston, Ma. 02108
(617) 367-7700

Of Counsel:
Monroe L. Inker

Margot Ames Clower
Ann Wagner

1 of
fle

QUESTIONS PRESENTED

1. Whether the termination of
petitioner's support payments ordered
under a judgment of divorce solely upon
the grount"ee petitioner's intimate
association with an unrelated man on
a regular basis violates petitioner's
rights of association and privacy
guaranteed by the First, Fourth, Ninth
and Fourteenth Amendments to the United
States Constitution.

2. Whether, in terminating peti-
tioner's support payments ordered under
a judgment of divorce solely upon the
ground of petitioner's intimate assoc-
iation with an unrelated man on a rea-
ular basis, the court below created a
classification with no rational rela-

tionship to any legitimate state

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objective in violation of the Due
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of the Fourteenth Amendment.

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TABLE OF CONTENTS

Questions Presented
Opinions Below

Statement of Jurisdictional
Grounds

Constitutional Provisions
Involved

Statement of the case
Reasons for Granting the Writ

Conclusion

iii.

SS SOE Aa SS

9 Wena Writ Pat et

TABLE OF AUTHORITIES CITED

Cases: Page

Abbott v. Abbott, 282 N.W.2d 561

[ee Beseh es. «6 & © 0.6 © 2 @ 30
Alibrando v. Alibrando, 375 A.2d

> (B.C. C&s OF App. A977) . « « 29
Bailey v. Dillon, 186 Mass. 244

oo | er ee ee oe ee ee . 22

Bell v. Bell, 393 Mass. 20, 468

MiSs 2G BSS CASCR) uc « so ce « « 0 «4688
Bowman v. Bowman, 163 Neb. 336,

79 Wel. 2G°554 (1956) .« « « « 30
Brinkerhoff-Faris Trust & Savings

Cos VW. Bi21, 288: 0.8s° 673 (2930) 7,21
Brister v. Brister, 92 N.M. 71l,

306 Peae BAG? -5ASTSh« 6 & © © « 30
Byrd v. Byrd, 252 Ark. 202, 478

Sse ae 6S Cheeses 6-4 © 8 8 o 29
Clifford v. Clifford, 354 Mass.

Ban Capea 6 -s bike 8 oe ee 12
Commonwealth v. Catlin, 10 Mass.

S t2eees—»— * 7. 15
O'Donnell v. Bane, 385 Mass. 114

ae + me

Partridge v. Partridge, 14 Mass.
App. Ct. 901 (1982) . . « « « « 13
Pruneyard Shopping Center v.
Robins, 447 U.S. 74 (1980). . . 7,17
Reuter v. Ballard, 267 Mass. 557
el, | BP ee ee ee ee eee 19
Riley v. Murphy, 265 Mass. 420
O) - ) ) Pa ee eS
Roberts v. Roberts, 657 P. 2d

Ree taeen 8 lf ltl lw ell ek ef} 32
Robbins v. Robbins, 342 Mass. 247

[Seen s 6s s « @ 8.8 6 6 © @ 10
Roe v. Wade, 410 U.S. 113 (1973) 28

Rubisoff v. Rubisoff, 242 Miss.
225, 133 So. 24 534 (1961)... 30
Saunders v. Shaw, 244 U.S. 317

Taeaee + 6 8 eS eee ee el 7
Sims v. Sims, 245 Ga. 680,266
S.E. 44 492 (1980) . .- -« 32

Southworth v. Treadwell, 168 Mass.

Bae Gt) «© 0 6 6 ee eh tl le 9
Stallings v. Stallings, 36 N.C.

App. 643, 244 S.E. 2d 494

+ 3, Se oe a ee er a oe ee ee
Stanley v. Georgia, 394 U.S. 557

>) a ir la ee a a
Street v. New York, 394 U.S. 576

[nny - 4 8 0-4 s+ -& es Se oe 7
Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229 (1969)18,19
Surabian v. Surabian, 362 Mass.

wae Seetal' «6 6 6 s e+ 8 & o& @ Be@a
VanGorder v. VanGorder, 110 Wis.

2d 188, 327 N.W. 2d 674 (1983). 30
Wight v. Wight, 284 S.E. 2d 625

[es Vee Bears 6 & Se « 6 3 -é 30

vi.

Cases: Page

Williams v. State of Georgia, 349
a Sere ERED 6 © © © © © « «© 18
Wolfe v. Wolfe, 46 Ohio St. 399,
on ues ee Me C2976). « 6 oo 30
Ziegler v. McKinlay, 318 Mass. 765
DTD MOMs 6 6 6 © ¢ « © « « 10
Zytka v. Dmochowski, 302 Mass. 63
Dt. . 6 «6 6 «© & «© © ec e 20

Constitutional and Statutory Provisions:

EES ee ee ee ee ee ee
Pourteenth Amendment .... .3,4,26,27,32
Fourth Amendment ......« -» 3,26
PPP. 5 5 6 6 6 0 «© «© « 394,26
Alabama Code, §30-2-55 (1983) .. 31,32,33
Ga. Code Ann. §30-220(b) (1980). . 31,32
ene meee meee Eee S248 . 6 tl le lel wl C80 38
Gnas wees. ADM. Cit. 12,$1289(D) . 32,33
Mass. Gen. Laws Ann. c. 207,

DC Merc ie 6c 5 6 5 6 © © o e« 14
Penn. Stat. Ann. tit. 23, §507

(Purdon Supp. 1984-1985) ..... 31
Utah Code Ann. §30-3-5(3) (Supp.

C(((UUPPP TEE TE S 6 « 6 «© «© © ec © 3k

Other Authorities:

Comment, "The Effect of Third Party

Cohabitation on Alimony Payments",

15 Tulsa L.J. 772 (1980) ..... 33
S. Green and J. Long, Marriage

and Family Law Agreements (1984). . 34
Journal of Geriatric Psychiatry,

>) |
R. Jacobs, Life After Youth (1979). .
J.F. Lombard, Family Law §1309

OES 5g 6g 6 0 6 tl lw
Note, "Alimony, Cohabitation and

the Wages of Sin: A Statutory

Analysis", 33 Ala. L. Rev. 577 (1982) 33

vii.

Other Authorities:

Note, Alimony Modification: Co-

habitation of Ex-Wife with

Another Man, 7 Hofstra L. Rev.

471, 494-496 (1979) . « « « « « 33
Note, "Domestic Relations: Oklahoma's

Live-In Lover Statute: §1289(D)

of Title 12", 36 Okla. L. Rev.

S06 4400s) s# 060 «2 6 e@ & © 6 oo «(OS
| Strickman, "Marriage, Divorce and

the Constitution," 22 Boston

College L. Rev. 935 (1981) ... . 33
U.S. House of Representatives

Select Committee on Aging,

Women in Midlife-Security and

Fulfillment, Vol. 1 (1979)... .
Weitzman, "The Economics of

Divorce: Social and Economic

Consequences of Property,

Alimony and Child Support Awards,"

28 U.C.L.A. L. Rev. 1181 (1982). . 35
Weitzman and Dixon, "The Alimony

Myth: Does No-Fault Divorce Make

a Difference?" 14 Family Law

Quarterly 141 (1980) .....e«.. 35

Vili.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

ANNE C. BELL, Petitioner,
vs.

LOWRY M. BELL, JR., Respondent

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT FOR
THE COMMONWEALTH OF MASSACHUSETTS

OPINIONS BELOW

The findings of fact and conclusions
of law of the Probate Court for the county
of Norfolk, which dismissed petitioner's
complaint for contempt, are unreported
and are appended hereto at p. A-44. The
opinion of the Court of Appeals for the
Commonwealth of Massachusetts, which
reversed the judgment of the Probate

Court, is officially reported at 16 Mass.

App. Ct. 188 and is unofficially reported
at 459 N.E.2d 109 (1983), and is appended
hereto at p. A-19. The opinion of the
Supreme Judicial Court for the Common-
wealth of Massachusetts, which affirmed
the judgment of the Probate Court, is
officially reported at 393 Mass. 20 and
is unofficially reported at 468 N.E.2d
859 (1984), and is appended hereto at

p. A-l.

STATEMENT OF JURISDICTIONAL GROUNDS

(i) Petitioner respectfully prays
that a writ of certiorari issue to review
the final order of the Supreme Judicial
Court for the Commonwealth of Massachusetts
made and entered on September 13, 1984,
and appended hereto at p. A-65. |

(ii) Petitioner filed no petition
for a rehearing in the court below and
made no application for an extension of
time within which to petition for

2.

a writ of certiorari.
(iii) (not applicable)
(iv) The jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the First, Fourth,
Ninth and section one of the Fourteenth
Amendments to the United States Constitu-
tion. The First Amendment provides:

Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press;
or the right of the people peaceabiy
to assemble, and to petition the
Government for a redress of griev-
ances.

The Fourth Amendment provides:

The right of the people to ke
secure in their persons, houses,
papers, and effects, against unreas-
onable searches and seizures, shall
not be violated, and no Warrants
shall issue, but upon probable cause,
supported by Oath or affirmation,
and particularly describing the place
to be searched, and the persons or
things to be seized.

3.

The Ninth Amendment provides:

The enumeration in the Constit-
ution, of certain rights, shall not
be construed to deny or disparage
others retained by the people.

Section One of the Fourteenth
Amendment provides:

All persons born or naturalized
in the United States, and subject to
the jurisdiction thereof, are citi-
zens of the United States and of the
State wherein they reside. No State
shall make or enforce any law which
shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive
any person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal protec-
tion of the laws.

STATEMENT OF THE CASE
This case has its genesis in a
judgment of divorce entered in the Pro-
bate Court for the county of Norfolk,
Massachusetts, on April 28, 1976, nunc
pro tunc November 28, 1975, when

petitioner and respondent were divorced

after twenty-six years of marriage

4.

(R. 5-6). The judgment of divorce, by

reference to an agreement of the parties,

ordered that respondent make significant
monthly alimony payments to petitioner
for a period of fifteen years, or until
the happening of any one of several
contingencies, including petitioner's
living together with a member of the
opposite sex, so as to give the outward
appearance of marriage (R. 12). For
convenience, this contingency provision
is hereafter sometimes referred to as
the “outward appearance clause".

In a four-to-three decision, the
Massachusetts Supreme Judicial Court
interpreted this outward appearance
clause to apply to petitioner's "sharing

a bedroom with a man on a regular basis

lynless otherwise indicated, refer-
ences are to the printed record sub-
mitted in the Appeals Court below as
an "Appendix to the Briefs".

for approximately three years,” and held

that petitioner has thereby forfeited
her right under the judgment of divorce

to alimony. Bell v. Bell, 393 Mass. 20,

22, 468 N.E.2d 859, 861 (1984) (Appendix,
appended hereto, at p. A-6). Petitioner
claims that this construction and
application of the outward appearance
clause violates her federal constitution-
al rights to privacy and freedom of
association and to equal protection and
due process of the laws. The Massachu-
setts Supreme Judicial Court expressly
declined to consider petitioner's federal
constitutional claims on the ground that
those claims were not seasonably raised.
Petitioner recognizes that as a general
rule failure to raise a federal question
at the stage of proceedings required by
state law precludes review by this

Court. However, this case falls within

exceptions to this general rule.

Whether a federal question has been
sufficiently and timely raised ina
state court is itself a federal question
that this Court can decide for itself.

Street v. New York, 394 U.S. 576, 583

(1969); Douglas v. Alabama, 380 U.S.

415, 420-423 (1963). As a matter of
federal law, it is well-established
that a federal claim was timely raised if
the ruling of the state court could not
reasonably have been anticipated and
the federal claim was raised at the

earliest opportunity. Pruneyard

Shopping Center v. Robins, 447 U.S. 74,

85 n. 9 (1980); Brinkerhoff-Faris Trust

& Savings Co. v. Hill, 281 U.S. 673,

677-678 (1930); Missouri ex rel. Missouri

Ins. Co. v. Gehner, 281 U.S. 313, 320

(1930); Saunders v. Shaw, 244 U.S. 317,

320 (1917). In this case, the construc-

tion given the outward appearance clause

7.

by the State Supreme Judicial Court

was unforeseeable and indefensible by
reference to prior Massachusetts deci-
sions. 2

Petitioner is well aware that this
Court has no power to revise the judgment
of the Massachusetts Supreme Judicial
Court on questions of state law. The
following discussion of Massachusetts
substantive law is necessary to show
that the construction given the outward
appearance clause by the court below
was unforeseeable, in support of
petitioner's view that, as a matter of
federal law, her federal constitutional
claims were seasonably raised in the

state court.

2Neither party advocated the construc-
tion given to the clause by the court
below. Nor was such a construction
adopted by any judge who had interpreted
the outward appearance clause previously
in the course of this litigation.

While there is no prior Massachu-
setts decision involving a provision for
the termination of alimony identical to
the outward appearance clause herein,
there are numerous decisions dating
back to the last century involving the
termination of alimony payments on
account of the “remarriage” of the
woman, which remarriage had in most
of the cases been annulled. [In all of
the cases where alimony was ordered

terminated, the ratio decidendi was

either that, as a result of the re-
marriage, the woman had acquired a
right to be supported by another man,

Glazer v. Silverman, 354 Mass. 177, 179

(1968); Southworth v. Treadwell, 168

Mass. 511, 513 (1897) or that termina-
tion of alimony payments was equitable
under the particular circumstances of

the case, Surabian v. Surabian, 362 Mass.

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342, 348 (1972); Gerrig v. Sneirson,

344 Mass. 518, 520-521 (1962). In two
other cases, the court found that the
circumstances relating to the wife's
need for support had not changed as a
result of her remarriage, and so refused
to modify its order for alimony.

Robbins v. Robbins, 342 Mass. 247, 252

(1961); Ziegler v. McKinlay, 318 Mass.

765, 767 (1945).

Any doubt that the dispositive
criteria in Massachusetts in cases in-
volving termination of alimony payments
have been support and other equitable

considerations is eliminated by Heistand

v. Heistand, 384 Mass. 20 (1981). In

Heistand, the Supreme Judicial Court

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summarized the applicable law as follows:

Because the law of New York
entitled the wife to support from
her second husband after annul-
ment of her remarriage, this

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court in Glazer? deemed it in-
equitable to allow the wife to
receive support from two hus-
bands. Id. at 180. In that
case this court also evaluated
a ceremonial, invalid marriage
according to its effect on
third parties. Id. at 178.
This court declined to hold

a husband liable for alimony
where he was entitled to rely
on the apparent validity of

his former wife's remarriage.

- e « Neither of the criteria
dispositive in Glazer -- double
support or third-party reliance
-- is evidence on the record
before us. Heistand v. Heistand,
384 Mass. 20, 24-25 (1981).4

Thus there is ample precedent in Mass-
achusetts decisions for resolving dis-
putes relating to the termination of

alimony payments to women who had re-

3Glazer v. Silverman, 354 Mass. 177

(1968).

4the Supreme Judicial Court reached
this conclusion in spite of undisputed
evidence that the woman participated in
a symbolic marriage ceremony, exchanging
vows and sending out printed announcements
and the man she "married" thereafter
moved into her house & paid her former
husband the $15,000 by which the woman
acquired full title to the house. Id.
at a2.

il,

married or who had formed a

""spousal-oriented' relationship,"

Id. at 24, by weighing support and

other equitable considerations. This
has been the rule whether the case arose
as a contract action based upon an
agreement of the parties or as a con-
tempt or modification proceeding based
upon the judgment of divorce.

Need for support has also always
been an essential consideration in
Massachusetts in regard to an award of
alimony; adultery or other misconduct
of the wife, standing alone, has never
been sufficient grounds to deny alimony.

Graves v. Graves, 108 Mass. 314, 317-318

(1871); Clifford v. Clifford, 354 Mass.

945, 3420 (1905). Over the iast century
Massachusetts courts have evolved to the
view that "(o)rdinarily matters such as

custody, support and alimony are not

12.

affected by such general considerations

as the relative moral rectitude of the
spouses or which spouse is awarded the

divorce." Davisson v. Davisson, 12 Mass.

Ct. App. 420, 425 N.E.2d 762, 765 (1981),
further app. review denied, 425 N.E.2d

762 (Mass. 1981). See also Partridge v.

Partridge, 14 Mass. App. Ct. 901, 919

(1982), wherein the Appeals Court
reversed an order denying alimony to a
woman who was living with a male compan-
ion, because the Appeals Court found
", »« « no indication of the amount of
support provided the wife by her com-
panion or whether it constitutes a
dependable financial resourse." Id.
at 919.

The construction given the outward
appearance clause by the court below
represents a radical departure from

prior Massachusetts law in a second

13.

important respect. Since 1840 Massachu-

setts has had a statute which provides
in pertinent part that "(m)arriage

may be proved .. . by evidence of
general repute or of cohabitation of
the parties as married persons .. .”
Mass. Gen. Laws Ann. c. 207, §47.
Decisions under this statute make it
clear that "cohabitation as married
persons" has always. been distinguished
in Massachusetts from "illicit" or

"meretricious” cohabitation. Riley v.

Murphy, 265 Mass. 420 (1929); Edwards

v. Cockburn, 264 Mass. 112 (1928);

Finer v. Steuer, 225 Mass. 611 (1926);

Meyers v. Pope, 110 Mass. 314 (1872);

Loring v. Thorndike, 87 Mass. 257 (1862).

In all of these decisions, there was a
holding out as man and wife by the
cohabitants and/or a recognition of

their relation as husband and wife by

14.

family, friends and the general

community. See also, Newburyport v.

Boothbay, 9 Mass. 414 (1812). For

example, in Riley v. Murphy, 265 Mass.

420 (1929), the factors relied upon by
the court in finding that the parties'
cohabitation evidenced marriage in-
cluded the woman's holding herself

out as the man's wife, her use of his
surname on her bank accounts, and the
couple's consistent reputation as
husband and wife amongst their family,
their neighbors and the community.

In Edwards v. Cockburn, 264 Mass,

112 (1928), the Supreme Judicial Court
stated:

Mere cohabitation of a man
and woman alone is not, under
the statute, evidence of marriage.
They must so cohabit "as
married persons", and not live
together merely in illicit in-
tercourse. Id. at 125.

In regard to evidence of reputation of

15.

marriage, the court further stated:

- « »(T)he weight of such
evidence is to be determined
to a great degree by the stan-
dards of living and the char-
acter of the people in the
community. There was evidence
that, when Crabtree and Annie
Leopold were living in
Tombstone, many men and women
were living there together who
were not married, and that
fact was generally known. In
such circumstances evidence
of repute that a man and
woman who were living together
were married might be entitled
to less weight than would be
given to similar evidence in
a community where correct
standards of conduct were more
strictly observed. Id. at 126.

If cohabitation in "illicit inter-

course" in Tombstone, Arizona in 1881

was not treated as cohabitation "as

married persons" by the Supreme Judicial

Court in 1928, petitioner could not

reasonably be expected to anticipate the
holding of the Supreme Judicial Court

in this case that sharing a bedroom with

a man in Boston in the 1980's ona

16.

regular basis constitutes an outward
appearance of marriage. It may not
reasonably be held that petitioner was
bound to anticipate such a construction,
and thus raise federal constitutional
challenges to the outward appearance
clause at the outset of this litigation.
For this reason, the ruling of the
court below that petitioner's consti-
tutional claims were not seasonably
raised presents no bar to the exercise
of certiorari jurisdiction by this

court.

“The circumstances of this case
satisfy the requirement that federal
claim be raised at the earliest oppor-
tunity. The federal questions which
petitioner asksthis court to review
were briefed and argued before the
Massachusetts Supreme Judicial Court.
See, Supplemental Brief of the Appellant
to the Supreme Judicial Court at pp. 9-
17. See also, Pruneyard Shopping Center
v. Robins, 447 U.S. 74, 85 n. 9 (1980)
(federal constitutional claim first
raised before State Supreme Court in
brief in response to amici curiae briefs.

Massachusetts' state procedural
rule should not bar review of
petitioner's federal constitutional
claims for an additional reason. The
Massachusetts Supreme Judicial Court

declined to consider petitioner's con-

stitutional claims, although possessed
of power to do so under state law.
This Court stated the federal rule in

Williams v. State of Georgia, 349 U.S.

375 (19535) s

A state court may not, in
the exercise cf its discretion,
decline to entertain a consti-
tutional claim while passing
upon kindred issues raised in
the same manner. Id. at 383.

See also, Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229 (1969), where

the state court had denied the
petitioners' state appeals because of
their failure to comply with a state
rule of appellate procedure, and this

Court granted review because the state

18.

court had not:

» « «80 consistently applied
its notice requirement as to
amount to a self-denial of the

ower to entertain the federal
Claim here presented if the
Supreme Court of Appeals
desires to do so. See Henr

v. Mississippi, 379 U.S. ’

- » @ 0 eo (BlaCK, Je,
dissenting). Such a rule,
more properly deemed discre-
tionary than jurisdictional,
does not bar review here by
certiorari. Id., 396 U.S.
at 234, dual

The Massachusetts Supreme Judicial
Court declined to consider petitioner's
constitutional claims in spite of well-
established Massachusetts law that an
agreement violative of some fundamental
principle of public policy will not be
enforced by the Supreme Judicial Court,
even though the issue of the legality
of the agreement was not raised below,

O'Donnell v. Bane, 385 Mass. 114, 117

(1982) (dictum); Gleason v. Mann, 312

Mass, 420, 422 (1942); Reuter v. Ballard,

19.

267 Mass. 557, 563 (1929). There can

be no question that individual rights
guaranteed by the Constitution of the
United States express fundamental
principles of public policy. The
Supreme Judicial Court has applied the
well-established rule that an agreement
violative of a fundamental principle

of public policy will not be enforced
in a case involving an agreement argued

to be in restraint of marriage. Gleason

v. Mann, 312 Mass. 420 (1924). Nor will

agreements which include sexual inter-
course or cohabitation as part of the
consideration be enforced as against

public policy. Green v, Richmond, 369

Mass. 47 (1975); Zytka v. Dmochowski,

—*

302 Mass. 63 (1938). Thus, the fact
that the Supreme Judicial Court declined
to entertain petitioner's constitutional

claims, while treating kindred issues

20.

differently, does not bar review by

this Court.

Finally, the fact that the court
below was applying a provision in a judg-
ment of divorce, incorporated by reference
to an agreement of the parties, does not
insulate that court's judgment from consti-
tutional scrutiny. A transgression of
constitutional rights "is none the less
clear when that result is accomplished by
the state judiciary in the course of
construing an otherwise valid [cite

omitted] state statute.” Brinkerhoff-Faris

Trust & Savings Co. v. Hill, 281 U.S. 673,

680 (1930). Hare, the court below
accomplished the transgression in the
course of construing and enforcing an
otherwise valid provision in a judgment
of divorce.

Under Massachusetts law, a judgment
for divorce providing for alimony "does

not rest upon the agreement of the

21.

parties,” but rather rests upon the court's

Statutory authority. Surabian v. Surabian,

362 Mass. 342, 346 (1972) (provision in
parties’ agreement for termination of
alimony upon remarriage of wife incorp-
orated in divorce judgment). In deter-
mining the effect of a termination provi-
sion incorporated in a judgment of
divorce by reference to an agreement, "it
is the court's intention which must be
ascertained." Id. at 347. Furthermore,
an agreement between the parties will not
be enforced in a contempt proceeding unless
"a judge rules, either at the time of the
entry of a judgment nisi of divorce or at
any subsequent time, that the agreement

- - « Was fair and reasonable at the

6
time of entry of the judgment nisi. .."

6Under Massachusetts law a separation
agreement does not stand “upon the same
footing in all respects as ordinary
contracts. . ." Bailey v. Dillon, 186 Mass.
244, 247 (1904). Nor is the freedom of
parties "to limit or waive their legal

22.

Knox v. Remick, 371 Mass. 433, 436 (1976).

See also, Dominick v. Dominick, 18 Mass.

App. Ct. 85, 92, further app. review
denied, 392 Mass. 1103 (1984).

Neither petitioner nor respondent
ever argued that petitioner's sleeping
arrangement, standing alone, was a suffic-
ient basis to find an "outward appearance
of marriage." That view of the outward
appearance clause originated with a bare
majority of the court below. There is
absolutely nothing in the record of this
case to suggest that petitioner ever
agreed to a termination of her alimony
payments in the event she should Share a
bedroom with a man on a regular basis.
Petitioner agreed to a termination of

support if her living arrangement gave an

6 (cont. ) rights in the event of a divorce
+ »« »« appropriately left unrestricted."
Osborne v. Osborne, 384 Mass. 591, 599
(1981).

23.

"outward appearance of marriage." As the
dissenters in the court below observed,
sharing a bedroom is a private matter and
presents no outward appearance of anything.

Bell v. Bell, 393 Mass. 20, 25, 468 N.E.2d

859, 862 (1984) (Wilkins, J., dissenting,
with whom Liacos and Abrams, JJ., join)

(Appendix appended hereto at A-12)./

7See also, Commonwealth v. Catlin,
10 Mass. 8 (1803), wherein an indictment
for "open gross lewdness and lascivious
behavior" was dismissed, because the
testimony of witnesses who had observed
the defendant in bed with a woman in a
very familiar situation on separate
Occasions proved nothing more than
secret or private lewdness and lascivious
behavior. (emphasis in original)

24.

REASONS FOR GRANTING THE WRIT
This case squarely presents an
important question of federal law which
has not been, but should be, settled by
this Court. That question is whether
termination of alimony payments based
exclusively on a divorced woman's post-

divorce intimate association® with an

8The right at issue in this case is

appropriately characterized as a right to
"intimate association". This case does
not concern sexual behavior per se but an
inference of sexual behavior based wholly
upon the sharing of a bedroom. In the
course of petitioner's testimony at the
contempt hearing, covering 62 pages of
the trial transcript, there were only two
questions that could conceivably he
characterized as touching upon the intimate
or private aspects of petitioner's
association. After establishing that the
apartment shared by petitioner consists
of a living room and a bedroom, counsel
for respondent inquired of petitioner:

"Q. You sleep in the bedroom?

Ae * 308,

QO. Anc does J.R. sleep in the bed-
room?

mh “Tee. * (R. 70)

The construction of the outward appearance
clause by the court below rests exclus-
ively on this testimony.

25.

unrelated man violates that woman's

rights to privacy and freedom of assoc-
iation and to due process and equal
protection of the laws guaranteed by
the First, Fourth, Ninth and Fourteenth
Amendments to the United States Consti-
tution.

1. This is an appropriate case for
an extension of the right to privacy

first articulated in Griswold v.

Connecticut, 381 U.S. 479 (1965). In

Griswold, this Court struck down a state

statute which prohibited the use of
contraceptives as an unconstitutional
infringement of "an intimate relation
of husband and wife,” Id. at 482.
Justice Douglas, writing for the
majority, stated:

Would we allow the police to
search the sacred precincts of
marital bedrooms for telltale
signs of the use of contracep-

tives? The very idea is re-
pulsive to the notions of

26.

privacy surrounding the
marriage relationship. Id.
at 485-486.

Subsequently this Court recognized the
constitutionally protected right of an
individual “to satisfy his intellectual
and emotional needs in the privacy of

his own home." Stanley v. Georgia,

394 U.S. 557, 565 (1969) (state obscenity
statute, insofar as it punished mere
private possession of obscene matter,
violated First Amendment).

In Eisenstadt v. Baird, 405 U.S.

438 (1972), this Court, relying upon

Griswold, held that a Massachusetts

statute which barred the distribution of
contraceptives to single persons violated
the equal protection clause of the
Fourteenth Amendment. Justice Brennan,
writing for the majority, indicated that
the zone of privacy articulated in

Griswold protects single persons in

27.

regard to fundamental decisions, as
follows:

It is true that in Griswold
the right of privacy in ques-
tion inhered in the marital
relationship. Yet the marital
couple is not an independent
entity with a mind and heart
of its own, but an association
of two individuals each with a
separate intellectual and
emotional makeup. If the right
of privacy means anything, it
is the right of the individual,
married or single, to be free
from unwarranted governmental
intrusion into matters so
fundamentally affecting a
person as the decision whether
to bear or beget a child. See

Stanley v. Georgia, 394 U.S.
way « 6 eco Id. at 453,

See also, Roe v. Wade, 410 U.S. 113

(1973) (right of personal privacy ex-
tends to the decision by a single woman
whether to have an abortion).

This case squarely presents
governmental intrusion into petitioner's
intimate conduct within the privacy of
her own home. Because the court below

chose to focus exclusively on that

28.

conduct, this case lends itself to a

reasonably narrow extension of the
right of privacy and freedom of assoc-
iation to the intimate and unobstrusive
association of single adults within the
privacy of their own homes.

2. The question whether any federal
constitutional restraints come into
play when continued payment of alimony
pursuant to a judgment of divorce is
conditioned on the recipient's foregoing
certain intimate associations presses
for an answer. A majority of the state
courts of last resort have rejected the
view of the court below that court-
ordered alimony payments may be termin-
ated based solely upon a recipient's

intimate associations or relations. ?

9see, Byrd v. Byrd, 252 Ark. 202, 478
S.W.2d 45 (1972); Husband B.W.D. v. Wife
B.A.D., 436 A.2d 1263 (Del. 1981)
(equally-divided court); Alibrando v.
Alibrando, 375 A.2d 9 (D.C. Ct. of App.

29.

Only one other state court of last
resort had been found that has adopted
the extreme minority view of the court
below. 19

State legislatures, on the other
hand, have enacted statutes that appear,
at least on their face, to represent a
servious intrusion of government in the

private lives of divorced individuals.11

9 1977); Daniels v. Daniels, 82
Idaho 210, 351 P.2d 236 (1960); Fleming
v. Fleming, 221 Kan. 290, 559 P.2d 329
(1977); Mitchell v. Mitchell, 418 A.2d
1140 (Me. 1980); Abbott v. Abbott, 282
N.W.2d 561 (Minn. 1979); Bowman v.
Bowman, 163 Neb. 336, 79 N.W.2d 554
(1956); Gayet v. Gayet, 92 N.J. 149,
456 A.2d 102 (1983); Brister v. Brister,
92 N.M. 711, 594 P.2d 1167 (1979);
Stallings v. Stallings, 36 N.C. App.
643, 244 S.E.2d 494 (1978); Wolfe v.
Wolfe, 46 Ohio St. 399, 350 N.E. 2d 413
(1976); Mvhre v. Myhre,269 N.W.2d 905
(S.D. 1980); Wight v. Wight, 284 S.E.2d
625 (W. VA. 1981); Van Gorder v. Van
Gorder, 110 Wis.2d 188, 327 N.W.2d 674
(1983).

10see, McRae v. McRae, 381 So.2d
1052 (Miss. 1980); Rubisoff v. Rubisoff,
242 Miss. 225, 133 So.2d 534 (1961).

llsee, Alabama Code §30-2-55 (1983)

30.

In addition, these statutes, like the
decision of the Court below, create an
arbitrary classification wholly
without rational basis. . It is only
the economically disadvantaged spouse
whose intimate relations and assoc-
iations are constrained, irrespvect-
ive of the impact of those associa-
tions upon the economic need of

that spouse. Four state

("living openly or cohabiting with a
member of the opposite sex" requires
termination of alimony); Georgia Code
Ann. §30-220 (b) (1980) ("dwelling
together continuously and openly in
a meretricious relationship with a
person of the opposite sex" shall be
grounds to modify provisions for
alimony); Pennsylvania Stat. Ann. aes
tit. 23, §507 (Purdon Supp. 1984-
1985) (where recipient of alimony
"has entered into cohabitation

with a person of the opposite sex"
subsequent to divorce, alimony
terminated); Utah Code Ann. §30-

3-5 (3) (Supp. 1983) ("residing
with a person of the opposite sex"
requires termination of alimony
unless established by recipient

of alimony "that the relationship

or association between them is
without any sexual contact").

31.

Statutes challenged on federal consti-
tutional grounds based upon the Equal
Protection and Due Process Clauses have
been upheld by state courts on various
grounds,12 No reported decision has
been found wherein a state court con-
sidered a federal constitutional
challenge based upon the rights to pri-

vacy and freedom of association. 1/3

l2see, Ivey v. Ivey, 378 So.2d 1151,
1152 (Ala. Civ. App. 1979) (challenge to
Ala. Code §30-2-55 on equal protection
grounds dismissed as "too nebulous" for
court's understanding); Sims v. Sims,
245 Ga. 680, 266 S.E.2a 492 (1980)

(Ga. Code Ann. §30~-220(b) upheid as
rational classification which furthers
legitimate governmental objectives) ;
Hall v. Hall, 82 Misc.2d 814, 372 N.Y.-
S.2d 344 (Fam. Ct. 1976), affirmed men.,
55 A.D.2d 752, 389 N.Y.S.2d 448 (3rd
Dept. 1976) (N.Y. Dom. Rel. Law §248
makes a rational distinction between
persons living in a temporary liaison
and those living together in a more
permanent relationship); Roberts v.
Roberts, 657 P.2d 153, 155 (1983) (three
judges dissenting ) (Okla. Stat. Ann. ©
tit. 12, §1289(D) not violative of equal
protection and due process as requires
proof of change in need for support or

ability to support).
3A number of commentators have

32.

What effect the cohabitation of an

alimony recipient has on the obligation
of the payor is primarily a matter for
state courts and legislatures, But
there is a need for constitutional re-
straint on governmental intrusion in
this area. A recognition that the
federal constitution places a limit on

governmental intrusion into the intimate

l3suggested that termination of
alimony based upon the recipient's co-
habitation constitutes a violation of
constitutionally protected privacy, as
well as a violation of the Equal Pro-
tection Clause. See, Note, “Alimony,
Cohabitation and the Wages of Sin: A
Statutory Analysis”, 33 Ala, L. Rev.
577, 608-612 (1982) (Ala. Code §30-2-55
may be unconstitutional); Strickman,
"Marriage, Divorce and the Constitution",
22 Boston College L. R. 935, 991 (1981);
Note, “Domestic Relations: Oklahoma's
Live-In Lover Statute: §1289(D) of
Title 12", 36 Okla. L. Rev. 906, 914-
915 (1983) (Oklahoma statute uncon-
stitutional); Comment, "The Effect of
Third Party Cohabitation on Alimony
Payments”, 15 Tulsa L. J. 772, 773 n, 6
(1980); Note, Alimony Modification: Co-
habitation of Ex-Wife with Another Man,
7 Hofstra L. Rev. 471, 494-496 (1979)
(N.Y. Dom. Re. Law §248 unconstitu-
tional).

33.

associations of divorced persons will
affect contruction of existing state
statutes, as well as affect the drafting
of new legislation. It will also have
an immediate and far-reaching impact upon
the drafting of agreements between the
parties to a divorce proceedings. _4
3. The primary beneficiaries of
federal constitutional protection will
be women, divorced after long-term
marriages, who, because of their fulltime
homemaking roles, have the least oppor-

tunity to achieve financial independence

14nomestic relations form books
generally suggest inclusion of a clause
in a separation agreement providing for
termination of alimony upon cohabita-
tion. Examples of suggested language
are: “cohabitation with another person
with whom she has a romantic relation-
ship,” S. Green and J. Long, Marriage
and Family Law Agreements, 372-373
(1984); and "(c)ohabitation with a person
of the opposite sex without marriage
shall be deemed a remarriage,” J.F.
Lombard, Family Law §1309 (West. Supp.
1984).

34,

and thus require support over a

significant period of time.15 The

l5petitioner and respondent were
married for twenty-six years and have
two adult children (R.1.). At the
time of their divorce, respondent was
an executive with a major corporation;
he has since remarried (R.153). At the
time of the contempt hearing, petitioner
was sharing a two-room apartment and was
collecting unemployment compensation
(R.34,69).

Statistical studies belie the
assumption that a choice of cohabitation
rather than remarriage is made to avoid
provisions for termination of alimony
upon remarriage. See, Weitzman, "The
Economics of Divorce: Social and
Economic Consequences of Property,
Alimony and Child Support Awards," 28
U.C.L.A. L. Rev. 1181, 1221-1226 (1982).
Opportunity for remarriage is largely
a function of a woman's age at the time
of her divorce. A woman forty or older
has a 28% chance of remarriage, while a
woman under thirty has a 75% chance of
remarrying. Id. at 1229. One study
found that, in a group of individuals
married 18 or more years, 36% of the men
had remarried within a year after the
divorce compared to 6% of the women. An
additional 10% of the men and 6% of the
women had a permanent cohabitant in
their post-divorce household. Weitzman
and Dixon, "The Alimony Myth: Does No-
Fault Divorce Make a Difference?," 14
Family Law Quarterly 141, 177 (1980).

35.

transition of these women from marriage
to independence is difficult enough
without the intrusion of the state into
their intimate associations.1® Divorced
women must be permitted to seek intimate
associations within the privacy of their
own homes freed of the threat of forfei-
ture of their economic support and secure
in their fundamental and equal rights

to privacy and association.

l6éphe social and emotional difficul-
ties faced by women divorced after long-
duration marriages are detailed in
Journal of Geriatric Psychiatry, Vol. 15,
no. 2 (1982); in Ruth Harriet Jacobs,
Life After Youth (1979); and in U.S.
House of Representatives Select Committee
on Aging, Women in Midlife - Security
and Fulfillment, Vol. 1 (1979).

36.

CONCLUSION

For the reasons set forth above,
it is respectfully submitted that this
petition for a writ of certiorari
should be granted.

Respectfully submitted,

John P. White, Jr.

Counsel for Petitioner

White, Inker, Aronson,
Connelly and Norton

One Washington Mall

Boston, Massachusetts 02108

(617) 367-7700

37.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1847%3A1. Public record. Not legal advice.