Gloria Jean Greene v. John Burkland Greene

No factual dispute was presented to the courts below. The parties were divorced in December of 1976 and the divorce decree provided that the husband would pay the wife $600 per month for two years. The wife remarried eight months later and so informed the husband, who thereupon ceased making payments. The wife through counsel made demands for payment, but the husband declined. Neither party at that time sought a judicial determination of whether the remarriage absolved the husband of any further obligation to pay. When the two year period for payment had elapsed, the wife instituted proceedings to collect alleged arrearages. The husband filed a counter motion seeking retroactive modification of the alimony provision so as to terminate his support obligation as of the time of the wife's remarriage. In the proceedings below, the wife neither claimed nor attempted to prove that following her remarriage she had needed the alimony payments for her support while relocating and acquiring further education -- the declared purpose of the limited alimony award. The courts below applied the vesting rule, however, and awarded the wife a monetary judgment in the amount of $9,600. Appellant husband in this case relies upon Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956) and McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938), for the proposition that the Court is required to recognize that the obligation to pay alimony ceases upon the alimony recipient's remarriage. Respondent wife argues that Despain and McHan left intact the vesting rule -- that, as is the case with an ordinary change of circumstances, as distinguished from remarriage or death, a divorce decree cannot be modified retroactively as to installments which have accrued prior to a motion for modification. She argues that under McHan and Despain retroactive modification of a support order is permitted only if a spouse's remarriage is concealed. Thus, the sole issue presented on appeal is whether the McHan-Despain principle should be applied only in cases of concealment.