Sims v. Sims

243 Ga. 275 (1979)

253 S.E.2d 762

SIMS v. SIMS.

34228.

Supreme Court of Georgia.

Argued November 15, 1978.

Decided March 8, 1979.

Fitzgerald & Crane, Wilbur T. Fitzgerald, for appellant.

Drew & Jones, James B. Drew, Jr., Don M. Jones, for appellee.

UNDERCOFLER, Presiding Justice.

We granted an interlocutory appeal to consider the constitutionality of the so-called "live in lover" bill provided for in Ga. L. 1977, pp. 1253, 1255, § 1 (b) (Code *276 Ann. § 30-220 (b)). The trial court upheld the Act. We reverse.

This section provides: "Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of the wife, the voluntary cohabitation of the former wife with a man shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former wife. As used herein, the word cohabitation shall mean dwelling together continuously and openly. In the event the petitioner does not prevail in his petition for modification on the ground as set forth herein, he shall be liable for reasonable attorney's fees incurred by the respondent for the defense of said action."

The statute provides only for the modification of alimony awarded to the wife and this is a classification by gender which violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Orr v. Orr, ___ U. S. ___ (99 SC 1102, 59 LE2d ____) (1979).

This section is severable and the constitutionality of the remaining portions of the statute are not attacked and accordingly not addressed here.

Judgment reversed. All the Justices concur.