NORTH CAROLINA TRIAL JUDGES’
BENCH BOOK
2016
DISTRICT COURT
VOLUME 1
FAMILY LAW
Chapter 2
Postseparation Support and Alimony
In cooperation with the School of Government, The University of North Carolina at Chapel Hill
by Cheryl D. Howell and Jan S. Simmons
This chapter is one of ten chapters in North Carolina Trial Judges’ Bench Book, ISBN 978-1-56011-881-7.
Preparation of this bench book was made possible by funding from the North Carolina Administrative
Ofce of the Courts, as administered by the School of Government.
Copyright © 2017
School of Government, The University of North Carolina at Chapel Hill
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2
I. Jurisdiction ................................................ 3
A. Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Personal Jurisdiction .................................... 4
C. Venue ................................................... 9
D. Application of Foreign Law That Results in a
Violation of Constitutional Rights Prohibited ........... 10
II. Postseparation Support ................................. 10
A. Denition .............................................. 10
B. Procedure for Postseparation Support (PSS) ............ 11
C. Entitlement to Postseparation Support (PSS) ........... 12
D. Defenses ............................................... 13
E. Judgment or Order (PSS) ............................... 14
F. Duration of an Order for Postseparation
Support (PSS) .......................................... 17
G. Modication of an Order for Postseparation Support ... 19
H. Enforcement of an Order for Postseparation
Support (PSS) .......................................... 19
I. Appeal ................................................ 20
III. Alimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Denitions ............................................. 21
B. Procedure for Alimony ................................. 35
C. Entitlement to Alimony ............................... 44
D. Amount of Alimony ................................... 45
E. Duration of the Award ................................. 59
F. Defenses .............................................. 60
G. Judgment or Order ................................... 65
H. Forms of Payment .................................... 78
I. Termination of an Order for Alimony ................... 81
J. Modication of an Order for Alimony ................. 90
K. Enforcement of an Order for Alimony ................ 100
L. Enforcement of Foreign Support Orders ............... 117
IV. Eect of Bankruptcy ................................... 120
A. Bankruptcy Reform Legislation . . . . . . . . . . . . . . . . . . . . . . . 120
B. Denitions ........................................... 120
C. Automatic Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
D. Status, Priority, and Payment of Support Claims ...... 127
E. Dischargeability of Support and Other
Divorce-Related Claims .............................. 129
V. Attorney Fees ........................................... 131
A. Attorney Fees ......................................... 131
VI. Appeal .................................................. 142
A. Right to Take an Immediate Appeal .................. 142
B. Treatment of Findings of Fact and Conclusions
of Law by an Appellate Court ........................ 144
C. Standard of Review .................................. 144
D. Eect of an Appeal on Jurisdiction ................... 146
Required Findings Checklists .............................. 149
Postseparation Support (PSS) ............................ 149
Alimony .................................................. 151
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Chapter 2: Postseparation Support and Alimony
I. Jurisdiction
A. Subject Matter Jurisdiction
1. District and superior courts have original concurrent jurisdiction. [G.S.7A-240; 7A-242.]
e district court is the proper court for alimony proceedings. [G.S.7A-244; Peoples
v.Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).]
2. e court of appeals has held that a trial court lacks subject matter jurisdiction over a
spouse’s claim for postseparation support if the parties have not physically separated,
noting that G.S.50-16.2A “clearly presupposes that the parties have already separated.”
[Baumann-Chacon v.Baumann, 212 N.C. App. 137, 147, 710 S.E.2d 431, 437 (2011) (not
addressing alimony because plainti appealed only the dismissal of claim for postsepara-
tion support).]
3. Subject matter jurisdiction cannot be conferred upon a court by consent, waiver, or estop-
pel, and failure to demur or object to jurisdiction is immaterial. [Stark v.Ratashara, 177
N.C. App. 449, 628 S.E.2d 471 (court of appeals dismissed case based on lack of subject
matter jurisdiction where alimony claim was led after judgment of divorce; court of
appeals addressed issue even though parties did not raise issue of subject matter jurisdic-
tion in the trial court), review denied, 360 N.C. 536, 633 S.E.2d 826 (2006).]
4. Prior dismissal of an action for registration of a British order for spousal support for lack
of subject matter jurisdiction was not a judgment on the merits; neither res judicata nor
collateral estoppel applied to bar a subsequent action for registration and enforcement
under the Uniform Interstate Family Support Act (UIFSA). [Foreman v.Foreman, 144
N.C. App. 582, 550 S.E.2d 792 (previous dismissal of plainti’s action for registration
based on the Uniform Reciprocal Enforcement of Support Act (URESA) was not a judg-
ment on the merits of plainti’s claims), review denied, 354 N.C. 68, 553 S.E.2d 38 (2001).]
5. A North Carolina trial court had subject matter jurisdiction to register a British spou-
sal support order under UIFSA because England has reciprocity with North Carolina in
issues of support and thus is treated as a “State” under G.S.52C-1-101(19) for purposes of
UIFSA. [Foreman v.Foreman, 144 N.C. App. 582, 550 S.E.2d 792, review denied, 354 N.C.
68, 553 S.E.2d 38 (2001).] NOTE: Denitions for “foreign country” and “issuing foreign
country” were added to UIFSA by S.L. 2015-117, §1, eective June 24, 2015. See G.S.
52C-1-101(3a) and -101(8a).
6. A district court had subject matter jurisdiction to enter an order for postseparation sup-
port during pendency of wife’s personal injury action in superior court arising out of an
accident that left her paralyzed from the neck down. [Washington v.Mahbuba, 222 N.C.
App. 319, 729 S.E.2d 731 (2012) (unpublished).]
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B. Personal Jurisdiction
1. Generally.
a. Action for alimony is an in personam action. [Surratt v.Surratt, 263 N.C. 466, 139
S.E.2d 720 (1965).] A court must have personal jurisdiction over a party before it can
order that party to pay alimony.
b. When a nonresident defendant challenges the court’s exercise of jurisdiction, the
burden is upon the plainti to establish by a preponderance of the evidence that
personal jurisdiction exists. [Sherlock v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757
(2001) (action seeking, among other things, alimony, postseparation support, and
equitable distribution).]
c. Personal jurisdiction acquired by a tribunal in North Carolina in a proceeding
under G.S. Chapter 52C relating to a support order continues as long as the North
Carolina tribunal has continuing, exclusive jurisdiction to modify its order or con-
tinuing jurisdiction to enforce its order as provided by G.S. 52C-2-205, -206, and
-211. [G.S. 52C-2-202, amended by S.L. 2015-117, §1, eective June 24, 2015.] A
“support order” includes a judgment, decree, order, decision, or directive, whether
temporary, nal, or subject to modication, issued in a state or a foreign country for
the benet of a spouse or former spouse providing for monetary support, health care,
arrearages, retroactive support, or reimbursement for nancial assistance provided
to an individual obligee in place of child support. [G.S.52C-1-101(21), amended by
S.L. 2015-117, §1, eective June 24, 2015.]
2. Two-part inquiry to determine personal jurisdiction over a nonresident.
a. When a nonresident defendant challenges the court’s exercise of personal jurisdic-
tion, the court must undertake a two-part inquiry:
i. e court must rst determine whether North Carolina law provides a statu-
tory basis for the assertion of personal jurisdiction, i.e., “long-arm jurisdiction.”
[Speedway Motorsports Int’l Ltd. v.Bronwen Energy Trading Ltd., 209 N.C. App.
474, 707 S.E.2d 385 (2011), review denied, 365 N.C. 542, 720 S.E.2d 669 (2012).]
ii. If the court concludes that there is a statutory basis for jurisdiction, it next must
consider whether the exercise of personal jurisdiction complies with the due
process requirements of the Fourteenth Amendment, i.e., “minimum contacts”
analysis. [See Sherlock v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757 (2001).]
b. Because North Carolina’s long-arm statute extends personal jurisdiction to the lim-
its permitted by due process, in some appellate opinions, the two-part inquiry has
been merged into one question: whether the exercise of jurisdiction comports with
due process. [See Lang v.Lang, 157 N.C. App. 703, 579 S.E.2d 919 (2003); Sherlock
v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757 (2001).] Note, however, that in Speed-
way Motorsports International Ltd. v.Bronwen Energy Trading Ltd., 209 N.C. App.
474, 487, 707 S.E.2d 385, 394 (2011) (citing Brown v.Ellis, 363 N.C. 360, 678 S.E.2d
222 (2009)), review denied, 365 N.C. 542, 720 S.E.2d 669 (2012), the court of appeals
rejected the practice of collapsing the long-arm statute analysis into the minimum
contacts analysis in favor of “two separate steps of analysis.”
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c. Factors to consider when determining whether defendant has sucient minimum
contacts with North Carolina:
i. Quantity of defendant’s contacts with the state;
ii. e nature and quality of those contacts;
iii. e source and connection of the cause of action to the contacts;
iv. e interest of North Carolina in litigating the matter;
v. e convenience of the parties; and
vi. e interests of, and fairness to, the parties. [Hamilton v.Johnson, 228 N.C.
App. 372, 747 S.E.2d 158 (2013) (rst ve factors); Shaner v.Shaner, 216 N.C.
App. 409, 717 S.E.2d 66 (2011), and Sherlock v.Sherlock, 143 N.C. App. 300, 545
S.E.2d 757 (2001) (both citing Filmar Racing, Inc. v.Stewart, 141 N.C. App. 668,
541 S.E2d 733 (2001)).]
d. Whether a party has sucient contacts is a factual determination made on a case-by-
case basis. [Shaner v.Shaner, 216 N.C. App. 409, 717 S.E.2d 66 (2011) (citing Filmar
Racing, Inc. v.Stewart, 141 N.C. App. 668, 541 S.E.2d 733 (2001)).]
e. Service on defendant within the state. [G.S.52C-2-201(a)(1); 1-75.4(1)a.]
i. It is not necessary to apply the minimum contacts test of due process set forth
in International Shoe Co. v.Washington, 326 U.S. 310, 66 S. Ct. 154 (1945), and
later cases when the defendant is personally served in the forum state. [Lockert
v.Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987); Jenkins v.Jenkins, 89 N.C. App.
705, 367 S.E.2d 4 (1988) (court need not determine minimum contacts where
nonresident defendant was served with process while temporarily in North Car-
olina for a brief visit related to his employment).]
f. Consent to personal jurisdiction. [G.S.52C-2-201(a)(2), amended by S.L. 2015-117,
§1, eective June 24, 2015 (an individual may submit to jurisdiction by consent in a
record, by entering a general appearance, or by ling a responsive document having
the eect of waiving any contest to personal jurisdiction). See Section I.B.3.c.i, below,
for denition of “record”.]
i. Where a nonresident defendant has consented to the jurisdiction of the court,
the two-part inquiry to determine personal jurisdiction over a nonresident need
not be conducted. [Montgomery v.Montgomery, 110 N.C. App. 234, 429 S.E.2d
438 (1993).]
ii. A consent agreement in which the parents agreed that future legal actions
regarding their children would be brought where the children reside was a valid
consent to the exercise of long-arm personal jurisdiction over the nonresident
defendant and waived the minimum contacts/due process analysis usually
required in the two-step inquiry. [Montgomery v.Montgomery, 110 N.C. App.
234, 429 S.E.2d 438 (1993) (consent agreement acted as a waiver of the require-
ments usually necessary to invoke personal jurisdiction).]
3. Statutory basis for personal jurisdiction. A North Carolina tribunal has the statutory
authority (“long-arm” jurisdiction) to assert personal jurisdiction over a resident or non-
resident spouse who is a defendant in a civil action seeking to establish or enforce a sup-
port order for a spouse or former spouse:
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a. If the defendant is personally served with a summons and complaint within the state.
[G.S.52C-2-201(a)(1); 1-75.4(1)a. See Section I.B.2.e, above, on service within state
negating need for minimum contacts inquiry.]
b. If the defendant is domiciled in the state at the time he is served with process.
[G.S.1-75.4(1)b.]
c. If the defendant submits to jurisdiction by consent in a record, by entering a general
appearance in the action, or by ling a responsive document that has the eect of
waiving her right to contest personal jurisdiction. [G.S.52C-2-201(a)(2), amended by
S.L. 2015-117, §1, eective June 24, 2015; 1-75.7(1) (general appearance). See Section
I.B.2.f, above, on consent to jurisdiction negating need for two-part inquiry.]
i. “Record” is dened as “information that is inscribed on a tangible medium or
that is stored in an electronic or other medium and is retrievable in perceivable
form.” [G.S. 52C-1-101(13c), added by S.L. 2015-117, §1, eective June 24, 2015.]
d. If the defendant is engaged in substantial activity within the state at the time he is
served with process. [G.S.1-75.4(1)d.]
e. For injury to person or property arising from an act or omission by defendant within
the state. [G.S.1-75.4(3).]
i. Under prior law, an action for alimony on the ground of abandonment was
a claim of “injury to person or property” under G.S.1-75.4(3). [Sherwood
v.Sherwood, 29 N.C. App. 112, 223 S.E.2d 509 (1976) (former G.S.50-16.2 pro-
vided for permanent alimony based on abandonment); Robinson v.Robinson, 56
N.C. App. 737, 289 S.E.2d 612 (1982).]
f. A local contract arising out of a promise, made anywhere to plainti by defendant, to
deliver or receive within this state things of value. [G.S.1-75.4(5)c.]
i. A separation agreement executed within this state, which required defendant to
pay wife alimony, provided basis for asserting long-arm jurisdiction over non-
resident defendant; separation agreement was a local contract and the support
payments were a “thing of value” that were sent or delivered into this state. [Pope
v. Pope, 38 N.C. App. 328, 248 S.E.2d 260 (1978).]
g. If things of value have been shipped from this state by the plainti to the defendant
on her order or direction. [G.S.1-75.4(5)d.]
i. Alimony is a “thing of value” under G.S.1-75.4(5)d. [Schofield v.Schofield, 78
N.C. App. 657, 338 S.E.2d 132 (1986) (North Carolina plainti sent alimony pay-
ments to out-of-state defendant).]
h. When the alimony claim arises out of the marital relationship within the state, not-
withstanding subsequent departure from the state, if the other party to the marital
relationship continues to reside in the state. [G.S.1-75.4(12).]
i. Jurisdiction proper under G.S.1-75.4(12) when the parties were married in
North Carolina, plainti continued to reside here, and the action arose under
G.S.Chapter 50 and sought resolution solely of issues pertaining to the dissolu-
tion of parties’ marriage. [Sherlock v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757
(2001) (rejecting defendant’s argument that the action did not arise out of the
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marital relationship when the parties never established a permanent home in
North Carolina and defendant had never owned property here).]
i. If there is any other basis consistent with the constitutions of this state and the
United States for the exercise of personal jurisdiction. [G.S.52C-2-201(a)(8).]
i. G.S.52C-2-201(8) (now (a)(8)) permits the assertion of long-arm jurisdiction
over a nonresident defendant in an action for spousal support. [Butler v.But-
ler, 152 N.C. App. 74, 566 S.E.2d 707 (2002) (citing Ocial Comment, G.S.
52C-2-201).] Ocial Comment (2015), Applicability of Long-Arm Jurisdiction
to Spousal Support, continues to recognize 52C-2-201(a)(8) as applicable to an
action for spousal support asserting long-arm jurisdiction over a nonresident.
4. Compliance with due process standards.
a. Due process requires that defendant have minimum contacts with the state. [Sherlock
v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757 (2001).]
b. A summary of the aspects of a defendant’s situation that have proven useful in an
analysis of “minimum contacts” with a jurisdiction include:
i. e quantity of defendant’s contacts with the state;
ii. e nature and quality of those contacts;
iii. e source and connection of the cause of action to the contacts;
iv. e interest of the forum state;
v. e convenience of the parties; and
vi. e interests of, and fairness to, the parties. [Hamilton v.Johnson, 228 N.C.
App. 372, 747 S.E.2d 158 (2013) (rst ve factors); Shaner v.Shaner, 216 N.C.
App. 409, 717 S.E.2d 66 (2011), and Sherlock v.Sherlock, 143 N.C. App. 300, 545
S.E.2d 757 (2001) (both citing Filmar Racing, Inc. v.Stewart, 141 N.C. App. 668,
541 S.E.2d 733 (2001)).]
c. Cases nding minimum contacts requirement met.
i. Defendant’s contacts “clearly exceeded” the minimum contacts required for
personal jurisdiction when he purchased a marital residence in North Carolina,
made monthly visits for two years while still married, maintained a member-
ship in a local social and sporting association, and used an equity line of credit
secured by the North Carolina marital residence for business purposes. [Butler
v.Butler, 152 N.C. App. 74, 566 S.E.2d 707 (2002) (claims for spousal support,
child support, and equitable distribution).]
ii. Defendant’s contacts sucient when, despite the parties’ continuous travel,
defendant intentionally developed an assortment of nancial, legal, and personal
connections within North Carolina to manage his aairs, which defendant
sustained over a period of years and which appeared intended to inure to his
benet. [Sherlock v.Sherlock, 143 N.C. App. 300, 545 S.E.2d 757 (2001) (parties
married in Durham; while parties were overseas, defendant used Durham
address to receive important mail, including federal income tax documents;
defendant’s salary was directly deposited into an account in Durham; defendant
had a North Carolina driver’s license; defendant executed and led in Durham
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a power of attorney, pursuant to which attorney-in-fact conducted business
for parties; defendant made a will naming Durham residents as executors;
defendant hired Durham accountant to receive and pay bills on his behalf; and
parties opened an investment account in North Carolina; court noted unusual
history of the parties, characterized by frequent moves from one foreign country
to another and their failure to establish a permanent home anywhere in the U.S.
or abroad).]
iii. Where parties were married in North Carolina and resided as husband and wife
in this state and husband’s alleged abandonment of wife was an act occurring
within the state, “minimum contacts” test satised. [Robinson v.Robinson, 56
N.C. App. 737, 289 S.E.2d 612 (1982) (plainti wife sought divorce from bed and
board and alimony).]
iv. Minimum contacts test met when defendant resided with wife in the state, aban-
doned her in the state, and ed the state following willful misconduct. [Sher-
wood v.Sherwood, 29 N.C. App. 112, 223 S.E.2d 509 (1976) (action for alimony
based on former G.S.50-16.2, which provided for permanent alimony based on
abandonment).]
d. Cases nding minimum contacts requirement not met.
i. Fact that child had lived since birth with mother in North Carolina, defendant
had visited child three times in North Carolina, and defendant’s corporate bank
statements listed a Charlotte address found insucient to justify in personam
jurisdiction. [Hamilton v.Johnson, 228 N.C. App. 372, 747 S.E.2d 158 (2013).]
ii. Fact that defendant resided in North Carolina for a period of four months sev-
eral years before the alimony action was led in North Carolina, and made only
brief visits thereafter, was not sucient to support exercise of jurisdiction over
defendant. [Shaner v.Shaner, 216 N.C. App. 409, 717 S.E.2d 66 (2011).]
iii. Plainti’s allegation that defendant abandoned her in this state was not su-
cient without allegations as to a nexus between defendant’s misconduct and this
state, such as parties were married or shared a marital domicile in this state or
that defendant had conducted activities here, owned property here, or otherwise
had invoked the protection of North Carolina laws. [Tompkins v.Tompkins, 98
N.C. App. 299, 304, 390 S.E.2d 766, 769 (1990) (even if the marital relationship
was still in existence when action for alimony was brought, this “cannot of itself
constitute sucient contacts to establish personal jurisdiction”).]
iv. Defendant did not have minimum contacts with North Carolina where par-
ties were not married or divorced in this state and did not share a matrimo-
nial domicile here; the complaint was led almost a year after defendant had
moved out of state; and there was nothing in the record to indicate that defen-
dant had conducted business or other activities in the state since she left, had
owned property here, or had in any way invoked the protection of the laws of
North Carolina. [Schofield v.Schofield, 78 N.C. App. 657, 338 S.E.2d 132 (1986)
(motion to modify or terminate alimony).]
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C. Venue
1. Action for alimony must be brought in the county in which one of the parties resides at
the commencement of the action, subject to right of the court to transfer venue in accor-
dance with G.S.1-83 or other statute. [G.S.1-82; 50-3.]
a. A court may not change venue sua sponte under G.S. 1-83, whether under 1-83(1)
or (2), when no defendant had answered or objected to venue. [Zetino-Cruz
v. Benitez-Zetino, 791 S.E.2d 100 (N.C. Ct. App. 2016) (trial court’s authority to
change venue under G.S. 1-83(1) or (2) is triggered by a defendant’s objection to
venue). For more on this case, see Cheryl Howell, No Sua Sponte Change of Venue
Allowed, UNC S. G’: O C S B (Aug. 26, 2006), http://
civil.sog.unc.edu/no-sua-sponte-change-of-venue-allowed.]
2. Removal.
a. e defendant has the right to remove an action for alimony to defendant’s county of
residence, either before or after judgment, if:
i. Both plainti and defendant were residents of North Carolina when action was
led;
ii. Plainti stopped being a North Carolina resident after ling action in county of
residence; and
iii. Defendant does not reside in the county in which action was led. [G.S.50-3.]
b. If defendant seeks a change of venue pursuant to this section, the court must grant
it. [G.S.50-3; Gardner v.Gardner, 43 N.C. App. 678, 260 S.E.2d 116 (1979) (language
of G.S.50-3 is mandatory), aff’d, 300 N.C. 715, 268 S.E.2d 468 (1980); Dechkovskaia
v.Dechkovskaia, 780 S.E.2d 175 (N.C. Ct. App. 2015) (citing opinion of the North
Carolina Supreme Court in Gardner) (G.S. 50-3 requires that if one spouse les an
action for alimony or divorce in her county of residence and then leaves the state,
upon proper motion, the trial court must order removal to the other spouse’s county
of residence; moreover, G.S. 50-3 requires removal of all properly joined claims led
in the same action, even after the case has been appealed and remanded).]
3. Improper venue is subject to attack under G.S.1A-1, Rule 12(b)(3). [Little v.Little, 12 N.C.
App. 353, 183 S.E.2d 278 (1971) (stating the general rule that, in the absence of waiver or
consent of the parties, express or implied, when a motion for change of venue as a mat-
ter of right has been properly made in apt time, the court is in error thereafter to enter
any order aecting the rights of the parties, save the order of removal; trial court erred
in ordering alimony pendent lite and attorney fees while Rule 12(b)(3) motion to change
venue was pending).]
4. Venue provisions are not jurisdictional. Objection to venue is waived if not raised in writ-
ing before time for answering expires. [See Denson v.Denson, 255 N.C. 703, 122 S.E.2d
507 (1961); Smith v.Smith, 56 N.C. App. 812, 290 S.E.2d 390 (1982) (citing Denson) (both
cases considering venue under G.S.50-3 in context of divorce action).]
5. Court obtaining jurisdiction is proper court for subsequent actions unless change of
venue allowed or objection to venue is waived.
a. Venue for modication of alimony order entered in Cumberland County was in that
county and not Mecklenburg County, where modication action was brought. [Lessard
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v.Lessard, 68 N.C. App. 760, 316 S.E.2d 96 (1984) (citing Tate v.Tate, 9N.C. App. 681,
177 S.E.2d 455 (1970)); Tate (court rst obtaining jurisdiction is the only proper court
to hear an action for modication of a custody and child support order).]
b. e court of original venue may, in its discretion, grant a motion to change venue
to a more appropriate county. [Broyhill v.Broyhill, 81 N.C. App. 147, 343 S.E.2d 605
(1986) (citing Tate v.Tate, 9 N.C. App. 681, 177 S.E.2d 455 (1970)) (court rst obtain-
ing jurisdiction properly transferred venue of action to modify child support).]
D. Application of Foreign Law That Results in a Violation of Constitutional Rights Prohibited
1. e application of foreign law in cases under G.S.Chapters 50 (Divorce and Alimony)
and 50A (Uniform Child Custody Jurisdiction and Enforcement Act) is prohibited when
it would violate a fundamental right of a person under the federal or state constitution. A
motion to transfer a proceeding to a foreign venue must be denied when doing so would
have the same eect. [See G.S.1-87.14, 1-87.17, and other provisions in Article 7A in
G.S.Chapter 1, added by S.L. 2013-416, eective Sept. 1, 2013, and applicable to proceed-
ings, agreements, and contracts entered into on or after that date.]
II. Postseparation Support
A. Denition
1. Postseparation support means spousal support to be paid until the earlier of any of the
following:
a. e date specied in the order for postseparation support;
b. e entry of an order awarding or denying alimony;
c. e dismissal of the alimony claim;
d. e entry of a judgment of absolute divorce if no claim of alimony is pending at the
time of entry of the judgment of absolute divorce; or
e. Termination of postseparation support as provided in G.S.50-16.9(b).
[G.S.50-16.1A(4), amended by S.L. 2005-177, §1, eective Oct. 1, 2005, and appli-
cable to all postseparation support orders issued on or after that date; prior to that,
spousal support was to be paid until the earlier of the date specied in the order of
postseparation support or an order awarding or denying alimony.]
2. Postseparation support is “primarily designed to function as a means of securing tempo-
rary support for a dependent spouse in an expedited manner.” [Wells v.Wells, 132 N.C.
App. 401, 410, 512 S.E.2d 468, 474 (quoting Sally B. Sharp, Step By Step: The Development
of the Distributive Consequences of Divorce in North Carolina, 76 N.C. L. R.2017, 2090
(Sept. 1998)), review denied, 350 N.C. 599, 537 S.E.2d 495 (1999).]
3. For actions led before Oct. 1, 1995, temporary alimony is called alimony pendente lite.
G.S.50-16.1 (repealed by S.L. 1995-319, § 1) dened alimony pendente lite as “alimony
ordered to be paid pending the nal judgment of divorce in an action for divorce, whether
absolute or from bed and board, or in an action for annulment, or on the merits in an
action for alimony without divorce.”
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B. Procedure for Postseparation Support (PSS)
1. Postseparation support may be ordered in an action for divorce, whether absolute or from
bed and board, for annulment, or for alimony without divorce. [G.S.50-16.1A(4).]
2. In an action brought pursuant to G.S.Chapter 50, either party may move for postsepara-
tion support. [G.S.50-16.2A(a).]
3. A party requesting postseparation support shall set forth the factual basis for the relief
requested in a veried pleading, veried motion, or adavit. [G.S.50-16.2A(a).]
4. e court may base its award of postseparation support on a veried pleading, adavit,
or other competent evidence. [G.S.50-16.8; Squires v.Squires, 178 N.C. App. 251, 631
S.E.2d 156 (2006) (citing Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999)) (noting
that because postseparation support involves a relatively brief examination of the parties’
needs and assets, the court may base its award on a veried pleading, adavit, or other
competent evidence).]
5. G.S.50-16.8, setting forth the procedure for postseparation support, contains no specic
requirement that the supporting spouse receive at least ve days’ notice of a hearing, as
did the statute dealing with alimony pendente lite. However, the North Carolina Rules of
Civil Procedure require that notice of hearing for all motions be served no later than ve
days before the time specied for the hearing. [G.S.1A-1, Rule 6(d).]
6. e court shall set forth the reasons for its award or denial of postseparation support,
and if making an award, the reasons for its amount, duration, and manner of payment.
[G.S.50-16.8; Nicks v.Nicks, 774 S.E.2d 365, 380 (N.C. Ct. App. 2015) (trial court is to
explain in “adequate factual ndings” its reasons for granting or denying postseparation
support (PSS); trial court erred when it dismissed at the alimony trial plainti’s PSS claim
without explaining its reasoning).] Regarding required ndings and conclusions in orders
for PSS and alimony, see Section III.G, below.
7. Unlike the law before 1995, present statutes do not authorize a court to order repayment
of postseparation support if a claim for alimony is denied. S.L. 1995-319, § 1 repealed
G.S.50-16.11, which allowed a court to require a spouse to repay amounts received as
alimony pendente lite prior to the denial of an award of permanent alimony if permanent
alimony was denied because no grounds for granting alimony were found to exist. [See
Alvarez v.Alvarez, 134 N.C. App. 321, 517 S.E.2d 420 (1999).]
8. In an action for alimony or postseparation support, if either or both of the parties have
sought and obtained marital counseling from persons listed in the statute, the person or
persons rendering counseling are not competent to testify in the action concerning infor-
mation acquired while rendering the counseling. [G.S.8-53.6.] For other privileges, see
Sections III.A.4.b.vi, vii, and viii, below.
9. ere is probably no right to a jury trial in an action for postseparation support. [See
Wells v.Wells, 132 N.C. App. 401, 413, 512 S.E.2d 468, 475 (noting that language in
G.S.50-16.2A(d) “mandat[es] resolution of the factual circumstance of marital miscon-
duct by the trial court at [postseparation support] hearings,” while G.S.50-16.3A(d) allows
a jury trial on the issue of marital misconduct for alimony determination), review denied,
350 N.C. 599, 537 S.E.2d 495 (1999); Rowe v.Rowe, 131 N.C. App. 409, 507 S.E.2d 317
(1998) (a PSS order is a temporary measure; appeal from an order granting postseparation
support is interlocutory and not generally subject to immediate appeal); 2 Lee’s North
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Carolina Family Law §8.43 (5th ed. 1999) (stating that a claim for PSS is tried to the trial
court without a jury).]
C. Entitlement to Postseparation Support (PSS)
1. A dependent spouse is entitled to an award of postseparation support if, after consider-
ing the factors set out in Section II.C.4, below, the court determines that the resources of
the dependent spouse are not adequate to meet her reasonable needs and the supporting
spouse has the ability to pay. [G.S.50-16.2A(c).]
a. e denitions of dependent spouse and supporting spouse are the same as in the
context of alimony. See Sections III.A.2 and III.A.3, below.
b. e legal principles that govern alimony awards “are equally applicable to awards of
post-separation support.” [Collins v.Collins, 778 S.E.2d 854, 857 (N.C. Ct. App. 2015)
(quoting Crocker v.Crocker, 190 N.C. App. 165, 168, 660 S.E.2d 212, 214 (2008)).]
2. e court shall consider marital misconduct by a dependent spouse occurring before or
on the date of separation in deciding whether to award postseparation support and in
what amount, provided that if the court considers the marital misconduct of the depen-
dent spouse, it must also consider any marital misconduct by the supporting spouse.
[G.S.50-16.2A(d). See Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (noting that
G.S.50-16.2A(d) requires that the trial court resolve the factual circumstance of mari-
tal misconduct at PSS hearings, while G.S.50-16.3A(d) allows a jury trial on the issue of
marital misconduct for alimony determination), review denied, 350 N.C. 599, 537 S.E.2d
495 (1999).] A nding that the dependent spouse committed marital misconduct may be
sucient by itself to deny postseparation support. [Sorey v.Sorey, 233 N.C. App. 682, 757
S.E.2d 518 (2014) (citing Evans v.Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005)).]
3. While the court is required to consider only preseparation marital misconduct in decid-
ing whether and in what amount to award postseparation support, the court may con-
sider incidents of postseparation marital misconduct as corroborating evidence sup-
porting other evidence that marital misconduct occurred before the date of separation.
[G.S.50-16.2A(e).]
4. e court shall base an award of postseparation support on the nancial needs of the par-
ties, considering:
a. e parties’ accustomed standard of living;
i. e portion of the trial court’s order awarding postseparation support (PSS) suf-
ciently addressed the parties’ accustomed standard of living when it included
ndings (1) as to the supporting spouse’s gross yearly income for three of the
four years before the PSS award was made and his current monthly needs and
(2) as to the dependent spouse’s net monthly income for the year before the
PSS award was made and her current monthly needs “to live in the lifestyle to
which she had become accustomed leading up to the date of separation.” [Col-
lins v.Collins, 778 S.E.2d 854, 858 (N.C. Ct. App. 2015) (standard of living was
suciently addressed without specic ndings regarding the parties’ marital
standard of living, such as their necessary and discretionary expenditures, type
of home they lived in, or the types of activities or vacation they shared).]
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b. e present employment income and other recurring earnings of each party from
any source;
i. PSS order upheld when husband’s income from employment had decreased to
zero upon retirement but his tax returns for a three-year period showed sub-
stantial recurring earnings from interest, dividends, capital gains, and partner-
ships. [Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006) (the court
averaged the recurring earnings from tax returns to determine husband’s annual
and monthly income).]
ii. Trial court did not err in concluding that a lump sum payment from corporate
employer to wife was not income to wife when payment was made in consider-
ation of her early retirement from an employer in the process of merger. [Ross
v.Ross, 193 N.C. App. 247, 666 S.E.2d 889 (2008) (unpublished) (citing Glass
v.Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998)) (noting in footnote 1 that
when a lump sum payment is not based on the length of a spouse’s employment
but is made, rather, in exchange for the spouse’s waiver of certain rights, the
payment is not included in the spouse’s income for purposes of determining the
amountand duration of an alimony award), review dismissed, 363 N.C. 656, 685
S.E.2d 105 (2009).]
c. e income-earning abilities of the parties;
i. See Section III.D.9.b, below, for a discussion of earning capacity.
d. e separate and marital debt service obligations of each party;
e. e expenses reasonably necessary to support each of the parties; and
f. Each party’s respective legal obligations to support other persons. [G.S.50-16.2A(b).]
D. Defenses
1. Waiver by contract generally.
a. Postseparation support, alimony, and attorney fees may be barred by an express
provision of a valid separation agreement, premarital agreement, or marital con-
tract made pursuant to G.S.52-10(a1) so long as the agreement is performed.
[G.S.50-16.6(b), amended by S.L. 2013-140, §2, eective June 19, 2013 (amendment
added reference to G.S.52-10(a1)); Muchmore v.Trask, 192 N.C. App. 635, 666
S.E.2d 667 (2008) (waiver of spousal support in a prenuptial agreement was valid
and enforceable in North Carolina pursuant to California law), review improvidently
allowed, 363 N.C. 742, 686 S.E.2d 151 (2009).]
2. Waiver by contract pursuant to G.S.52-10(a1).
a. For contracts entered into on or after June 19, 2013, spouses who are separated
but contemplating reconciliation may provide for support rights or for the waiver
of support rights that will apply upon the occasion of any future separation.
[G.S.52-10(a1).] is statute does not authorize agreements regarding support rights
and obligations while the parties live together as husband and wife. [See In re Estate
of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989) (recognizing that the state supreme
court in Motley v.Motley, 255 N.C. 190, 120 S.E.2d 422 (1961), established as public
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policy that married parties may not shirk their spousal duties of support and alimony
and yet live together as a married couple), aff’d per curiam, 326 N.C. 359, 388 S.E.2d
768 (1990).]
b. A contract between a husband and wife made, with or without a valuable consider-
ation, during a period of separation to waive, release, or establish rights and obliga-
tions to postseparation support, alimony, or spousal support is valid and not incon-
sistent with public policy. [G.S.52-10(a1), added by S.L. 2013-140, §1, eective June
19, 2013.]
c. A provision waiving, releasing, or establishing rights and obligations to postsepa-
ration support, alimony, or spousal support shall remain valid following a period of
reconciliation and subsequent separation if the contract is in writing, the provision
waiving the rights or obligations is clearly stated in the contract, and the contract
was acknowledged by both parties before a certifying ocer. [G.S.52-10(a1)(1)–(3),
added by S.L. 2013-140, §1, eective June 19, 2013.]
d. A release made pursuant to G.S.52-10(a1) may be pleaded in bar of any action or
proceeding for the recovery of the rights released. [G.S.52-10(a1), added by S.L.
2013-140, §1, eective June 19, 2013.]
e. See Spousal Agreements, Bench Book, Vol. 1, Chapter 1.
3. Marital misconduct.
a. Postseparation support is not barred automatically by illicit sexual behavior by the
dependent spouse as was alimony pendente lite under pre-1995 law and as is alimony
under G.S.50-16.3A(a).
b. e judge shall consider any marital misconduct by the dependent spouse occurring
prior to or on the date of separation in deciding whether to award postseparation
support and in deciding the amount of postseparation support. [G.S.50-16.2A(d).
See Section III.A.4, below, for denition of “marital misconduct”; cf. Sorey v.Sorey,
233 N.C. App. 682, 757 S.E.2d 518 (2014) (citing Evans v.Evans, 169 N.C. App. 358,
610 S.E.2d 264 (2005)) (a nding that the dependent spouse committed marital mis-
conduct may be sucient by itself to deny postseparation support).]
c. When the judge considers acts of misconduct by the dependent spouse, the judge
shall also consider any marital misconduct by the supporting spouse in deciding
whether to award postseparation support and in deciding the amount of postsepara-
tion support. [G.S.50-16.2A(d).]
d. e judge may consider incidents of marital misconduct occurring after the date of
separation as corroborating evidence supporting other evidence that marital miscon-
duct occurred before the date of separation. [G.S.50-16.2A(e).]
E. Judgment or Order (PSS)
1. If postseparation support is ordered at the time a judgment of absolute divorce is
entered, a claim of alimony must be pending when the divorce judgment is entered.
[G.S.50-16.1A(4), amended by S.L. 2005-177, §1, eective Oct. 1, 2005, and applicable to
all PSS orders issued on or after that date.]
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2. For postseparation support, the trial court must make conclusions of law that:
a. e receiving spouse is a dependent spouse. [See G.S.50-16.2A(c) and Section
III.A.2, below.]
b. e payor spouse is the supporting spouse. [See G.S.50-16.2A(c) and Section III.A.3,
below.]
c. Based on consideration of the factors set out in G.S.50-16.2A(b), the resources of the
dependent spouse are not adequate to meet her reasonable needs and the supporting
spouse has the ability to pay. [G.S.50-16.2A(c).]
3. For postseparation support, the trial court must make ndings of fact in support of all
conclusions of law.
a. For ndings sucient to support a conclusion of dependency in the alimony con-
text, see Section III.G.5.b, below. For ndings to support a conclusion that the payor
spouse is the supporting spouse in the alimony context, see Section III.G.5.c, below.
b. G.S.1A-1, Rule 52(a) requires in all nonjury trials that the trial court nd specially
“those material and ultimate facts from which it can be determined whether the
ndings are supported by the evidence and whether they support the conclusions of
law reached.” [Crocker v.Crocker, 190 N.C. App. 165, 168, 660 S.E.2d 212, 214 (2008)
(quoting Quick v.Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)) (noting that
the general principles articulated in Quick in the context of an alimony award are
generally applicable to awards of postseparation support).]
c. e court must set forth the reasons for its award or denial of postseparation sup-
port, and if making an award, the reasons for its amount, duration, and manner of
payment. [G.S.50-16.8.]
d. e amount and duration of postseparation support is based on consideration of
factors set out in Section II.C.4, above. [G.S.50-16.2A(b).] Findings must be made on
each factor about which evidence is presented.
e. If evidence is presented about the marital misconduct of the dependent spouse, the
court must consider that misconduct in deciding whether to award postseparation
support and in deciding the amount of postseparation support. [G.S.50-16.2A(d).]
e court should indicate this consideration in its ndings of fact.
f. If the court considers evidence of marital misconduct by the dependent spouse, it
must also consider any marital misconduct by the supporting spouse in deciding
whether to award postseparation support and in deciding the amount of postsepara-
tion support. [G.S.50-16.2A(d).] e court should indicate this consideration in the
ndings of fact.
g. Findings in PSS order were insucient because nding about husband’s need for sup-
port merely recited his testimony and did not show that the court considered other
statutory factors for postseparation support. [Crocker v.Crocker, 190 N.C. App.165,
660 S.E.2d 212 (2008) (trial court also failed to make ndings about the standard of
living of the parties as a family unit).]
h. One unpublished opinion from the court of appeals has held that ndings in a PSS
order were sucient even though the order lacked a nding as to the parties’ accus-
tomed standard of living. [Ross v.Ross, 193 N.C. App. 247, 666 S.E.2d 889 (2008)
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(unpublished) (not paginated on Westlaw) (quoting Wells v.Wells, 132 N.C. App.
401, 411, 512 S.E.2d 468, 474 (1999)) (court noting the “relative brevity” of the factors
guiding postseparation support awards when compared with the extensive list of
sixteen factors governing alimony awards and that the process for a PSS award “con-
templates a rather truncated examination of the parties’ needs and assets”), review
dismissed, 363 N.C. 656, 685 S.E.2d 105 (2009).]
i. A nding as to each party’s income without ndings as to expenses does not support
a conclusion that a party is not a supporting spouse. [Pawlus v.Wise-Pawlus, 195
N.C. App. 325, 672 S.E.2d 782 (2009) (unpublished) (while a surplus of income over
expenses is sucient in and of itself to warrant a supporting spouse classication, a
nding as to income alone is not sucient).]
j. PSS order upheld when the court made no specic nding about husband’s employ-
ment income or other recurring earnings but instead incorporated by reference
into a nding the income gures from husband’s tax returns for a three-year period.
[Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006).]
k. A court may incorporate by reference into the PSS order the party’s nancial stand-
ing adavit as support for a nding on the party’s expenses. [Squires v.Squires, 178
N.C. App. 251, 631 S.E.2d 156 (2006).]
l. A nding of bad faith must be supported by the evidence. [See Childers v.Childers,
167 N.C. App. 370, 605 S.E.2d 266 (2004) (unpublished) (defendant’s motion to ter-
minate postseparation support was denied based on nding that defendant appeared
to be intentionally depressing his income to avoid paying postseparation support;
this nding was supported by evidence that defendant had not applied for any job
between the date he was terminated, November 2002, and the date of the hearing,
March 2003, and that his only eort to receive unemployment benets after sever-
ance pay ended was an Internet search to determine the amount he would be entitled
to if he applied).]
4. Findings and conclusions in PSS order not binding at alimony hearing.
a. A trial court’s ndings and conclusions in an order for postseparation support are
not binding at the alimony hearing. [Langdon v.Langdon, 183 N.C. App. 471, 644
S.E.2d 600 (2007) (citing Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999));
Megremis v.Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006) (citing Wells) (a trial
court’s rulings regarding postseparation support are neither conclusive nor binding
in the alimony context); Perkins v.Perkins, 85 N.C. App. 660, 355 S.E.2d 848 (under
prior law, ndings in alimony pendente lite order irrelevant in nal hearing), review
denied, 320 N.C. 633, 360 S.E.2d 92 (1987), superseded on other grounds by statute as
stated in Wells.]
b. e amount of alimony pendente lite to which the parties consent does not bind
the trial court as to the amount of permanent alimony it must eventually award.
[Bookholt v.Bookholt, 136 N.C. App. 247, 523 S.E.2d 729 (1999), superseded on other
grounds by statute as stated in Williamson v.Williamson, 142 N.C. App. 702, 543
S.E.2d 897 (2001).]
c. PSS orders are temporary determinations and do not constitute nal judgments.
erefore, factual ndings made during a PSS hearing are not binding in subsequent
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proceedings. [Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (wife was not collat-
erally estopped from asserting in hearing for permanent alimony that a separation
agreement was invalid, even though PSS judge had ruled that the separation agree-
ment was a valid bar to postseparation support), review denied, 350 N.C. 599, 537
S.E.2d 495 (1999).]
d. For a case considering a general incorporation of ndings from a PSS order, and
other court documents, into an alimony order, see Crocker v.Crocker, 190 N.C. App.
165, 660 S.E.2d 212 (2008), discussed at Section III.G.2.d, below.
F. Duration of an Order for Postseparation Support (PSS)
1. Beginning of payments.
a. A judge has discretion to begin payments at time PSS order is entered or at some
other time, as long as order explains duration.
b. Award of alimony pendente lite in the form of a lump sum payment covering the
period from the date of the parties’ separation until the date of the award was upheld.
[Gardner v.Gardner, 40 N.C. App. 334, 252 S.E.2d 867, review denied, 297 N.C. 299,
254 S.E.2d 917 (1979).]
c. e court may order postseparation support eective from the date of the separation
if the facts warrant. [2 Lee’s North Carolina Family Law §8.30 (5th ed. 1999) (citing
Gardner v.Gardner, 40 N.C. App. 334, 252 S.E.2d 867, review denied, 297 N.C. 299,
254 S.E.2d 917 (1979), and other cases).]
2. e statutory denition of postseparation support provides for four possible termination
dates, whichever rst occurs:
a. e date specied in the order granting postseparation support. [G.S.50-16.1A(4)a.]
b. e date an order allowing or denying alimony is entered. [G.S.50-16.1A(4)b. See
Langdon v.Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007) (an initial order for
alimony terminates a preexisting order for postseparation support).]
i. e statutory language that postseparation support (PSS) terminates upon
entry of an order allowing or denying alimony “does not necessarily mean
that an order awarding alimony cannot also provide for the payment of an
already-pending claim for postseparation support when warranted.” [Nicks
v.Nicks, 774 S.E.2d 365, 380 (N.C. Ct. App. 2015) (a trial court has broad discre-
tion to award PSS and to determine the date the award should take eect).]
ii. Because a PSS order terminates upon entry of an alimony award, a trial court
lacks jurisdiction to consider a contempt motion for failure to pay postsepara-
tion support while alimony order is on appeal. [Harris v.Harris, 173 N.C. App.
232, 617 S.E.2d 723 (2005) (unpublished).]
iii. A PSS order terminated upon entry of an order for alimony does not continue in
force while the alimony order is on appeal, even if the alimony order is vacated
on appeal. [Harris v.Harris, 173 N.C. App. 232, 617 S.E.2d 723 (2005) (unpub-
lished) (court of appeals vacated alimony order nineteen months after its entry;
a supporting spouse cannot be subject to liability for both postseparation sup-
port and alimony during the pendency of an appeal and during remand).]
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c. e date an order is entered dismissing the alimony claim. [G.S.50-16.1A(4)c. (appli-
cable to all PSS orders issued on or after Oct. 1, 2005, pursuant to S.L. 2005-177,
§1).]
d. e date an order of absolute divorce is entered if no claim of alimony is pending on
that date. [G.S.50-16.1A(4)d. (applicable to all postseparation support orders issued
on or after Oct. 1, 2005, pursuant to S.L. 2005-177, §1).]
i. Before the 2005 amendments, postseparation support terminated either on
the date specied in the order granting postseparation support or on the date
of an order allowing or denying alimony, whichever rst occurred. [See former
G.S.50-16.1A(4).]
ii. Cases decided under former G.S.50-16.1A(4) held that a judgment of absolute
divorce did not terminate an existing PSS order unless the support order
so provided. [Vittitoe v.Vittitoe, 150 N.C. App. 400, 563 S.E.2d 281 (citing
Marsh v.Marsh, 136 N.C. App. 663, 525 S.E.2d 476 (2000)) (obligation to pay
postseparation support not terminated by entry of divorce judgment when PSS
order provided that it would terminate upon the nal determination of alimony
and there was no order addressing alimony), review denied, 356 N.C. 314, 571
S.E.2d 218 (2002); Marsh (decided under former G.S.50-16.1A(4), set out
immediately above, in which the court of appeals held that postpostseparation
support continued after divorce when the PSS order did not specify a termina-
tion date and there was no court order awarding or denying alimony).]
3. e statutory denition of postseparation support provides for termination upon
the occurrence of any of the following events, as provided in G.S.50-16.9(b):
[G.S.50-16.1A(4)e.]
a. Upon the death of either the supporting or the dependent spouse. [G.S.50-16.9(b).]
i. But a vested postseparation support arrearage is not terminated by the depen-
dent spouse’s death. [Badrock v.Pickard, 185 N.C. App. 543, 648 S.E.2d 576
(unpublished) (fact that the trial court allowed defendant to make installment
payments toward his arrearage did not alter the already vested nature of the
arrearage), review denied, 362 N.C. 86, 655 S.E.2d 836 (2007).]
b. For court-ordered postseparation support, upon the remarriage or cohabitation of
the dependent spouse. [G.S.50-16.9(b).]
c. Upon the resumption of marital relations between parties who remain married to
each other. [See G.S.50-16.9(a); Hester v.Hester, 239 N.C. 97, 79 S.E.2d 248 (1953)
(resumption of the marital relationship after an award of alimony pendente lite voids
the award); Baumann-Chacon v.Baumann, 212 N.C. App. 137, 710 S.E.2d 431(2011)
(citing Hester for this point).]
i. Reconciliation is to be determined in accordance with G.S.52-10.2.
[G.S.50-16.9(a).]
ii. Isolated instances of sexual intercourse between the parties do not constitute
resumption of marital relations. [G.S.52-10.2.]
iii. EXCEPTION: For contracts entered into on or after June 19, 2013, spouses who
are separated but contemplating reconciliation may provide for support rights
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or for the waiver of support rights that will apply upon the occasion of any
future separation. [G.S.52-10(a1), added by S.L. 2013-140, §1, eective June
19, 2013.] is statute does not authorize agreements regarding support rights
and obligations while the parties live together as husband and wife. [See In re
Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989) (recognizing that the
state supreme court in Motley v.Motley, 255 N.C. 190, 120 S.E.2d 422 (1961),
established as public policy that married parties may not shirk their spousal
duties of support and alimony and yet live together as a married couple), aff ’d
per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).] A provision in a contract
between a husband and wife made, with or without a valuable consideration,
during a period of separation waiving, releasing, or establishing rights and
obligations to postseparation support, alimony, or spousal support shall remain
valid following a period of reconciliation and subsequent separation if the
contract is in writing, the provision waiving the rights or obligations is clearly
stated in the contract, and the contract was acknowledged by both parties before
a certifying ocer. [G.S.52-10(a1), added by S.L. 2013-140, §1, eective June
19, 2013.]
iv. For reconciliation in the alimony context, see Section III.I.3.d, below.
v. See Spousal Agreements, Bench Book, Vol. 1, Chapter 1 for eect of reconcilia-
tion on obligations in a separation agreement.
G. Modication of an Order for Postseparation Support
1. An order for postseparation support, whether contested or entered by consent, may be
modied or vacated at any time, upon a motion in the cause and a showing of changed
circumstances by either party or anyone interested. [G.S.50-16.9(a). See Wolf v.Wolf, 151
N.C. App. 523, 566 S.E.2d 516 (2002) (requiring a change in circumstances since entry of
the order).]
2. e trial court did not err when it refused to modify a husband’s postseparation support
payments based on a substantial reduction in his income when it found that he had in bad
faith disregarded his marital obligations. [Wolf v.Wolf, 151 N.C. App. 523, 566 S.E.2d 516
(2002) (noting that a substantial reduction in a supporting spouse’s salary or income does
not automatically entitle the supporting spouse to a reduction in support payments and
nding that husband’s unemployment was voluntary because his actions at work irritated
and embarrassed his employer, resulting in an “entirely predictable” termination).]
H. Enforcement of an Order for Postseparation Support (PSS)
1. An order for postseparation support is enforceable by civil contempt, and its disobe-
dience may be punished by criminal contempt. [G.S.50-16.7(j).] Remedies set out in
G.S.50-16.7(k) also are available to enforce a PSS order. e enumeration of those reme-
dies does not bar remedies otherwise available. [G.S.50-16.7(l).]
2. Civil contempt.
a. A party may be found in civil contempt for failure to comply with an order for post-
separation support if:
i. e order remains in force;
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ii. e purpose of the order may still be served by the supporting spouse’s compli-
ance with the order;
iii. e supporting spouse’s failure to comply with the order is willful; and
iv. e supporting spouse has the present ability to comply with the order (in whole
or in part) or to take reasonable measures that would enable him to comply with
the order (in whole or in part). [G.S.5A-21(a); Wolf v.Wolf, 151 N.C. App. 523,
566 S.E.2d 516 (2002) (husband not in contempt for failure to pay postsepara-
tion support when trial court did not nd that husband had the ability to pay or
that his failure to pay was willful); Thompson v.Thompson, 223 N.C. App. 515,
519, 735 S.E.2d 214, 217 (2012) (citing McMiller v.McMiller, 77 N.C. App. 808,
336 S.E.2d 134 (1985)) (reversing contempt portion of an order when the trial
court failed to make ndings regarding subsections (1) and (2) of G.S.5A-21(a);
additionally, nding that “Defendant has had the ability and means to pay the
Post Separation Support previously ordered, or at least a substantial portion of
that amount” was insucient because it spoke to past ability to pay and was not
a nding about defendant’s present ability to pay).]
b. e trial court did not err when it found husband in contempt of a PSS order that
obligated him to pay certain percentages of future bonuses to his wife. [Wolf v.Wolf,
151 N.C. App. 523, 566 S.E.2d 516 (2002) (husband had prevented his wife from
receiving part of his bonus by willfully relabeling the bonus a relocation expense).]
c. For more on contempt, see Section III.K.2, below. For other remedies, see Section
III.K.5, below.
3. For enforcement of postseparation support provisions contained in a spousal agreement,
see Spousal Agreements, Bench Book, Vol. 1, Chapter 1.
I. Appeal
1. Right to take an immediate appeal.
a. Appeal of an order granting postseparation support (PSS) is interlocutory and does
not aect a substantial right. [Thompson v.Thompson, 223 N.C. App. 515, 735 S.E.2d
214 (2012) (citing Rowe v.Rowe, 131 N.C. App. 409, 507 S.E.2d 317 (1998)) (PSS order
remains interlocutory even after defendant found in contempt of the order).] e PSS
order is reviewable once the trial court has entered an order awarding or denying
alimony. [Thompson v.Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012) (citing
Crocker v.Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008)).]
i. G.S.50-19.1, added by S.L. 2013-411, §2, eective Aug. 23, 2013, providing for
immediate appeal of certain actions when other claims are pending in the same
action, does not include postseparation support in the list of actions. us, the
nonappealability of an order granting postseparation support is not changed by
G.S.50-19.1.
b. Appeal of an order denying or terminating temporary alimony has been found to
aect a substantial right allowing immediate appeal. [Sorey v.Sorey, 233 N.C. App.
682, 757 S.E.2d 518 (2014) (citing Mayer v.Mayer, 66 N.C. App. 522, 311 S.E.2d 659
(1984)) (order denying motion for postseparation support aected a substantial right,
so appeal was proper even though interlocutory); Brown v.Brown, 85 N.C. App. 602,
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355 S.E.2d 525 (husband obtained order terminating his obligation in a consent order
for alimony pendent lite, from which immediate appeal was allowed), cert. denied,
320 N.C. 511, 358 S.E.2d 516 (1987), superseded on other grounds by statute as stated
in Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).]
2. Standard of review.
a. e standard of review of an order concerning postseparation support is “whether
there was competent evidence to support the trial court’s ndings of fact and
whether its conclusions of law were proper in light of such facts.” [Sorey v.Sorey,
233 N.C. App. 682, 684, 757 S.E.2d 518, 519–20 (2014) (quoting Oakley v.Oakley,
165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004)).]
3. Eect of an appeal on jurisidiction.
a. Appeal of an alimony order probably divests the trial court of jurisdiction to enforce
through contempt any arrearages accrued under a postseparation support (PSS)
order before entry of the alimony order. [See Harris v.Harris, 173 N.C. App. 232,
617 S.E.2d 723 (2005) (unpublished) (wife attempted to enforce arrearages accrued
pursuant to a PSS order by civil contempt after an alimony order had been entered
and appealed; the appellate court held that husband’s appeal of the alimony order
divested the trial court of jurisdiction to consider wife’s motion, led during appeal
of the alimony order, for civil contempt for husband’s failure to pay postseparation
support; alimony award “aected” postseparation support as that term is used in
G.S.1-294; also holding that PSS order did not continue in force during appeal of
alimony award).]
4. For appeal of an alimony order, see Section VI, below.
III. Alimony
A. Denitions
1. Alimony. [G.S.50-16.1A(1).]
a. “Alimony” means an order for payment for the support and maintenance of a spouse
or a former spouse, periodically or in a lump sum, for a specied or for an indenite
term, ordered in an action for divorce, whether absolute or from bed and board, or
an action for alimony without divorce. [G.S.50-16.1A(1).]
i. Alimony means payment for support and maintenance of a spouse and does not
mean payment for the support and maintenance of a spouse’s business ventures.
[Beaman v.Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).]
ii. A court may order a supporting spouse to pay for health insurance for a depen-
dent spouse as a form of “support and maintenance” if proper ndings are made.
[Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011) (payments for health
insurance are authorized under G.S.50-16.1A(1) and 50-16.3A(a)).]
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b. North Carolina alimony law was rewritten by S.L. 1995-319, eective Oct. 1, 1995.
at law does not apply to actions pending on Oct. 1, 1995, nor does it apply to
motions to modify judgments in eect on that date.
c. e 1995 statutory amendments created a new cause of action for alimony, a law
that is fundamentally dierent from what existed before. [Brannock v.Brannock, 135
N.C. App. 635, 523 S.E.2d 110 (1999), review denied, appeal dismissed, 351 N.C. 351,
543 S.E.2d 123 (2000).] e new law replaced a “fault-based approach” with a “need-
based approach” to alimony. [Alvarez v.Alvarez, 134 N.C. App. 321, 517 S.E.2d 420
(1999).]
2. Dependent spouse. [G.S.50-16.1A(2).]
a. “Dependent spouse” means a spouse, whether husband or wife, who is actually
substantially dependent upon the other for his or her maintenance and support or is
substantially in need of maintenance and support from the other. [G.S.50-16.1A(2).]
NOTE: e 1995 amendments to the alimony statutes did not amend the denition
of dependency.
b. e issue of dependency is for the trial judge. [Long v.Long, 71 N.C. App. 405, 322
S.E.2d 427 (1984), and Stickel v.Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982) (both
citing Vandiver v.Vandiver, 50 N.C. App. 319, 274 S.E.2d 243 (1981)).]
c. Because the determination of dependency requires application of legal principles, it
is a conclusion of law. [Hunt v.Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993).]
d. e burden of proving dependency is on the spouse asserting the claim for alimony.
[Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012) (citing Williamson v.William-
son, 217 N.C. App. 388, 719 S.E.2d 625 (2011)).]
e. Even if a spouse is dependent, she is not entitled to an award of alimony if the other
spouse does not have the ability to pay. [Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d
11 (2012) (even if wife dependent, no award of alimony when husband in bankruptcy
and did not have ability to pay any amount of alimony at time of hearing).]
f. Dependency determination is not always undertaken by the court when alimony is
part of a private agreement between the parties and is then incorporated into a court
order such as a divorce decree. [Cunningham v.Cunningham, 345 N.C. 430, 480
S.E.2d 403 (1997).]
g. A nding of adultery renders a dependency determination moot. [Slight v.Slight, 200
N.C. App. 321, 683 S.E.2d 467 (2009) (unpublished) (trial court’s nding of wife’s
indelity, which was supported by evidence, was a bar to her receiving alimony;
whether she was a dependent spouse was moot).]
h. To determine dependency, the court must determine the income and expenses of
the parties, their standard of living, as well as the present earnings, earning capacity
and any other “condition” of the parties at the time of hearing, including health and
child custody. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Carpen-
ter v.Carpenter, 781 S.E.2d 828 (N.C. Ct. App. 2016) (in calculating income for the
dependency determination for alimony purposes, amounts received as postsepa-
ration support (PSS) are not to be included, as PSS is not permanent income and
income may not be imputed to a dependent spouse without a nding of bad faith);
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Fink v.Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995) (childcare expenses of the
custodial parents is one of the factors contemplated by Williams and should be con-
sidered when determining dependency), review denied, 342 N.C. 654, 467 S.E.2d 710
(1996).] NOTE: G.S.50-16.3A(b)(7), discussed in Section III.D.9.g, below, requires
the court to consider as a relevant factor in determining the amount and duration
of an alimony award the extent to which the expenses of a spouse will be aected by
serving as the custodian of a minor child. [See Ritchie v.Ritchie, 228 N.C. App. 282,
748 S.E.2d 774 (2013) (unpublished) (citing Fink) (a trial court has discretion when
determining alimony to consider the caregiving obligations of the children’s primary
caregiver).]
i. In determining dependency, a trial court is to view the reasonableness of a spouse’s
expenses in light of the parties’ accustomed standard of living during the marriage
and is to identify those expenses that are reasonable. [Carpenter v.Carpenter, 781
S.E.2d 828 (N.C. Ct. App. 2016) (citing Williams v.Williams, 299 N.C. 174, 261
S.E.2d 849 (1980)) (trial court erred in nding that wife’s expenses were “excessive”
and “lavish” without nding which of the claimed expenses, if any, were reasonable in
light of her accustomed standard of living).]
j. In determining dependency, it was error for a court to “speculate” about the results
of the parties’ pending equitable distribution (ED) when there was no evidence
presented as to the likely outcome. [See Rhew v.Rhew, 138 N.C. App. 467, 469, 531
S.E.2d 471, 473 (2000) (trial court nding that after ED, defendant “will have the
ability to make a substantial down payment toward the purchase of a residence and
should be able to nance the unpaid amount with a relatively small mortgage” was
not supported by the evidence).] Similarly, a person’s status as a dependent spouse
is not determined based upon events set to occur in the future, but is established
according to the person’s accustomed standard of living prior to the parties’ sepa-
ration. [Helms v.Helms, 191 N.C. App. 19, 661 S.E.2d 906 (citing Vadala v.Vadala,
145 N.C. App. 478, 550 S.E.2d 536 (2001)) (fact that wife was to receive 41.5 percent
of defendant’s retirement upon the sale of the marital residence was not relevant to
the court’s determination of her status as a dependent spouse; status as a dependent
spouse is not determined based on events to occur in the future), review denied, 362
N.C. 681, 670 S.E.2d 233 (2008).]
k. “Actually substantially dependent.”
i. “Actually substantially dependent” means that the spouse seeking alimony must
be actually dependent on the other to maintain the standard of living to which
that spouse became accustomed during the last several years before separa-
tion; the spouse must be actually unable to maintain the accustomed standard
of living from his own means. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d
849 (1980); Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012) (“actually
substantially dependent” means one spouse would be unable to maintain her
preseparation accustomed standard of living without nancial contribution
from the other spouse); Rhew v.Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000)
(citing Talent v.Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985)); Hunt v.Hunt,
112 N.C. App. 722, 436 S.E.2d 856 (1993) (to be “actually substantially depen-
dent,” the party seeking alimony must be entirely without the means to maintain
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the preseparation accustomed standard of living); Lamb v.Lamb, 103 N.C. App.
541, 406 S.E.2d 622 (1991) (citing Williams).]
ii. “Actually substantially dependent” means that the spouse is currently unable to
meet his own maintenance and support needs. [Barrett v.Barrett, 140 N.C. App.
369, 536 S.E.2d 642 (2000) (citing Williams v.Williams, 299 N.C. 174, 261 S.E.2d
849 (1980)).]
iii. at party seeking alimony is able to meet her current expenses does not nec-
essarily preclude a determination that the party is a dependent spouse entitled
to receive alimony if the evidence shows that (1) the party is unable to maintain
the standard of living to which the party was accustomed during the marriage
and (2) the other spouse has the means to pay a sucient amount of alimony
to enable party seeking alimony to maintain previous standard of living. [Bodie
v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).]
l. “Substantially in need of maintenance and support.”
i. If the trial court determines that one spouse is not actually dependent upon
the other, the court must consider the second test set out in G.S.50-16.1A(2),
whether one spouse is “substantially in need of maintenance and support” from
the other. [Rhew v.Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000).]
ii. “Maintenance and support” means more than mere economic survival; it means
the economic standard established by the spouses for the family during the mar-
riage. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).]
iii. “Substantially in need of maintenance and support” means something less than
“actually substantially dependent”; a spouse is substantially in need of support
if he is unable to maintain his accustomed standard of living without nancial
contribution from the other. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849
(1980); Lamb v.Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991) (citing Phillips
v.Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986)).]
iv. “Substantially in need of maintenance” means that a spouse will be unable
to meet her needs in the future, even if she is currently meeting those needs.
[Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000) (citing Williams
v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980)); Quesinberry v.Quesinberry,
210 N.C. App. 578, 709 S.E.2d 367 (2011) (citing Barrett); Taylor v.Taylor, 219
N.C. App. 402, 722 S.E.2d 211 (2012) (unpublished) (citing 2 Lee’s North Car-
olina Family Law §9.5 (5th ed. 1999)) (premise of substantially in need is that
petitioning spouse, who may be meeting reasonable needs, will be unable to
continue to do so).]
v. To determine when a spouse is “substantially in need” the trial court must:
(a) Determine the standard of living, socially and economically, to which the
parties as a family unit had become accustomed during the several years
prior to their separation.
(b) Determine the present earnings and prospective earning capacity and any
other “condition” (such as health and child custody) of each spouse at the
time of hearing.
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(c) Determine whether the spouse seeking alimony has a demonstrated need
for nancial contribution from the other spouse in order to maintain the
standard of living of the spouse seeking alimony in the manner to which
that spouse became accustomed during the last several years prior to sepa-
ration, considering what reasonable expenses the party seeking alimony
has, bearing in mind the family unit’s accustomed standard of living.
(d) Consider the nancial worth or “estate” of both spouses. [Williams v.Wil-
liams, 299 N.C. 174, 183, 261 S.E.2d 849, 856 (1980); Phillips v.Phillips, 185
N.C. App. 238, 647 S.E.2d 481 (2007) (citing Williams), aff’d per curiam,
362 N.C. 171, 655 S.E.2d 350 (2008).] For a list of the ndings set out
by Williams as supporting a determination of substantially in need, see
Section III.G.5.b.iv, below.
m. e court of appeals has held that an income-expense decit is sucient in and of
itself to support a nding of dependency. [Carpenter v.Carpenter, 781 S.E.2d 828
(N.C. Ct. App. 2016) (citing Beaman v.Beaman, 77 N.C. App. 717, 336 S.E.2d 129
(1985)) (court of appeals identied an income-expense decit, and the lack of other
means to make up the decit, as a basis for concluding that a spouse is dependent);
Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000) (citing Beaman and
Phillips v.Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986)) (court found that income
of $2,666 with reasonable expenses of $3,450 was sucient to support conclusion of
dependency but noted that other factors supported conclusion); Helms v.Helms, 191
N.C. App. 19, 661 S.E.2d 906 (citing Beaman) (income-expenses decit of $627 per
month sucient to conclude that plainti a dependent spouse), review denied, 362
N.C. 681, 670 S.E.2d 233 (2008); Phillips (income of $978 with reasonable expenses of
$1,300 was sucient to support conclusion of dependency); Webb v.Webb, 207 N.C.
App. 526, 700 S.E.2d 248 (2010) (unpublished) (citing Barrett) (income-expense
decit of $8,134 per month supported classication of wife as a dependent spouse),
review denied, 365 N.C. 211, 709 S.E.2d 924 (2011). But see Knott v.Knott, 52 N.C.
App. 543, 546, 279 S.E.2d 72, 75 (1981) (stating that “a mere comparison of plainti’s
expenses and income is an improperly shallow analysis” but arming a nding of
dependency because wife was without means to maintain her accustomed standard
of living).]
n. Cases nding spouse not dependent.
i. Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012) (wife not dependent when
she was able to meet her current living expenses with a small monthly surplus;
wife’s lower standard of living since separation did not warrant award of alimony
when the marital standard of living was not sustainable and had been “articially
maintained” by a massive infusion of debt).
ii. Caldwell v.Caldwell, 86 N.C. App. 225, 356 S.E.2d 821 (wife not dependent
where parties’ incomes were not signicantly dierent in the two years before
separation and parties had maintained separate bank accounts and divided
expenses before separating), cert. denied, 320 N.C. 791, 361 S.E.2d 72 (1987).
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o. Cases nding spouse dependent.
i. Ellinwood v.Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162 (1989) (court found
wife was dependent where her monthly expenses were $2,800 and her monthly
earnings were $1,353 and found husband was supporting when his gross income
was four times that of wife).
ii. Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980) (wife dependent
where she had a monthly shortfall of $1,667; without alimony, wife would have
been required to deplete her estate to maintain marital standard of living).
p. For ndings as to dependency, see Section III.G.5.b, below.
3. Supporting spouse. [G.S.50-16.1A(5).]
a. “Supporting spouse” means a spouse, whether a husband or a wife, upon whom the
other is actually substantially dependent for maintenance and support or from whom
such spouse is substantially in need of maintenance and support.
b. Just because one spouse is dependent does not automatically mean the other is sup-
porting. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Barrett v.Bar-
rett, 140 N.C. App. 369, 536 S.E.2d 642 (2000) (citing Williams).]
c. A surplus of income over expenses is sucient in and of itself to warrant a support-
ing spouse classication. [Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012)
(citing Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000)); Barrett (citing
Beaman v.Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985)) (defendant’s income of
$7,250 and reasonable expenses of $6,216 was sucient to support conclusion that
he was a supporting spouse). See also Quesinberry v.Quesinberry, 210 N.C. App.
578, 709 S.E.2d 367 (2011) (citing Barrett); Rhew v.Felton, 178 N.C. App. 475, 631
S.E.2d 859 (citing Barrett), review denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d
810 (2006); and Webb v.Webb, 207 N.C. App. 526, 700 S.E.2d 248 (2010) (unpub-
lished) (citing Barrett), review denied, 365 N.C. 211, 709 S.E.2d 924 (2011) cf. Pawlus
v.Wise-Pawlus, 195 N.C. App. 325, 672 S.E.2d 782 (2009) (unpublished) (a surplus
of income over expenses is sucient in and of itself to warrant a supporting spouse
classication, but a nding as to income alone is not sucient).]
4. Marital misconduct. [G.S.50-16.1A(3).]
a. Marital misconduct means any of the nine acts listed in G.S.50-16.1A(3) and set
out below that occur during the marriage and prior to or on the date of separation.
[Pursuant to G.S.50-16.3A(b)(1), a court may consider incidents of post–date of
separation marital misconduct as corroborating evidence supporting other evidence
that marital misconduct occurred during the marriage and prior to the date of sepa-
ration).] For a jury instruction on marital misconduct, see N.C.P.I.—C 815.70—
Alimony—Marital Misconduct. For more on marital fault, see Cheryl Howell, e
Role of Fault in Alimony, UNC S. G’: O C S B (Jan. 8,
2016), http://civil.sog.unc.edu/the-role-of-fault-in-alimony/.
i. e date of separation, as used in G.S.50-16.1A(3), is the date on which the hus-
band and wife begin to live separate and apart, with “separate and apart” mean-
ing that there was both a physical separation and an intention on the part of at
least one of the parties to cease marital cohabitation. [Romulus v.Romulus, 215
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N.C. App. 495, 715 S.E.2d 308 (2011) (adopting case law on date of separation in
context of divorce under G.S.50-6).]
ii. In addition to the intention on the part of at least one of the parties to separate,
the parties must physically separate in a manner that indicates a cessation of
cohabitation. While the trial court found “there was some physical separation of
the parties” during the period of plainti’s illicit sexual behavior, the court did
not err in concluding that the parties were not separated. [Romulus v.Romulus,
215 N.C. App. 495, 525, 715 S.E.2d 308, 327 (2011) (evidence showed that hus-
band came and went during the period of separation but continued to receive
mail and maintain belongings at the marital residence and that, while he occa-
sionally slept at his oce, he returned home to do chores and take the children
to activities).]
b. Illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate
sexual acts, or sexual acts dened in G.S.14-27.20(4), voluntarily engaged in by a
spouse with someone other than the other spouse. [G.S.50-16.1A(3)a. See Romulus
v.Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011) (identifying the four statutory
categories of sexual misconduct as sexual intercourse, deviate sexual intercourse,
deviate sexual acts, and sexual acts as dened in G.S.14-27.1(4) (recodied as G.S.
14-27.20(4)).]
i. e term “sexual relations” is not part of the statutory denition for illicit sexual
behavior. [See Romulus v.Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011)
(plainti’s admission of sexual relations did not establish illicit sexual behavior).]
ii. Eect of condonation.
(a) In determining whether to award alimony, any act of illicit sexual behavior
by either party that has been condoned by the other party shall not be con-
sidered by the court. [G.S.50-16.3A(a).]
(b) For more on condonation, see Section III.F.2.a.iii, below. For condonation
in the context of divorce, see Divorce and Annulment, Bench Book, Vol. 1,
Chapter 5.
iii. Proof of illicit sexual behavior.
(a) To establish adultery, evidence, whether circumstantial or direct, must
tend to show both opportunity and inclination to engage in sexual inter-
course. [Wallace v.Wallace, 70 N.C. App. 458, 319 S.E.2d 680 (1984) (when
evidence only shows opportunity, issue should not be submitted to jury),
review denied, 313 N.C. 336, 327 S.E.2d 900 (1985); In re Estate of Trogdon,
330 N.C. 143, 409 S.E.2d 897 (1991) (adultery shown by sucient circum-
stantial evidence of opportunity and inclination to commit adultery); Slight
v.Slight, 200 N.C. App. 321, 683 S.E.2d 467 (2009) (unpublished) (citing
State v.Rinehart, 106 N.C. 787 (1890)) (adultery is usually proved by cir-
cumstances and rarely by positive and direct evidence of adultery).]
(b) Admission of a party spouse has been competent to prove adultery
since the eective date of the North Carolina Rules of Evidence in 1984.
[See N.C. R. E. 801.] However, no husband or wife shall be compelled to
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disclose any condential communication made by one to the other during
the marriage. [G.S.8-56.]
iv. Sexual intercourse.
(a) A nding of penetration of a vagina by a penis satises the denition of
sexual intercourse. [Romulus v.Romulus, 215 N.C. App. 495, 715 S.E.2d 308
(2011).]
(b) In considering a claim for alimony, the doctrine of inclination and oppor-
tunity may be used to show “sexual intercourse.” [Romulus v.Romulus, 215
N.C. App. 495, 715 S.E.2d 308 (2011) (while there was no direct evidence
of sexual intercourse, evidence of plainti’s and third party’s inclination
and opportunity was sucient to support the nding that plainti had
engaged in sexual intercourse, despite evidence of third party’s erectile
dysfunction).]
v. Sexual acts as dened in G.S.14-27.20(4) (formerly G.S. 14-27.1(4)).
(a) A nding of penetration of a vagina by a nger constitutes a sexual act as
dened in G.S.14-27.1(4). [Romulus v.Romulus, 215 N.C. App. 495, 715
S.E.2d 308 (2011).]
(b) In considering a claim for alimony, the doctrine of inclination and oppor-
tunity may be used to show “a sexual act” as dened in G.S.14-27.1(4)
(recodied as G.S. 14-27.20(4)). [Romulus v.Romulus, 215 N.C. App. 495,
715 S.E.2d 308 (2011) (doctrine of inclination and opportunity applies in
cases involving sexual intercourse as well as other forms of “illicit sexual
behavior”).]
vi. Privilege for condential communications.
(a) G.S.8-56 provides that no husband or wife shall be compelled to disclose
any condential communication made by one to the other during their
marriage.
(b) What constitutes a “condential communication” is determined by whether
the communication was induced by the marital relationship and prompted
by the aection, condence, and loyalty engendered by the relationship.
[State v.Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981). See also Scott
v.Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982) (nonwitness spouse holds
the privilege and may prevent the witness spouse from testifying about con-
dential conversations).]
(c) Husband’s statement to wife that he had met another woman and planned
to leave the family was not a privileged condential marital communication
under G.S.8-56 when one of the party’s children overheard the statement.
[Cooper v.Cooper, 150 N.C. App. 713, 564 S.E.2d 319 (2002) (unpublished)
(also noting that husband’s statements to wife were admissions of a party
opponent and were admissible pursuant to N.C. R. E. 801(d)).]
vii. Privilege for communications made during marital counseling.
(a) In an action for postseparation support or alimony, if either or both of the
parties have sought and obtained marital counseling from persons listed in
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the statute, the person or persons rendering counseling are not competent
to testify in the action concerning information acquired while rendering the
counseling. [G.S.8-53.6.]
viii. Privilege against self-incrimination.
(a) Adultery is a class 2 misdemeanor. [G.S.14-184.]
(b) e Fifth Amendment to the U.S. Constitution (applicable to states by Sec-
tion 1 of the Fourteenth Amendment to the U.S. Constitution and ArticleI,
Section 23 of the North Carolina Constitution) applies to the pleading,
discovery, and trial stages of a civil matter to protect against disclosures
that the witness reasonably believes could be used in a criminal prosecution
or that could lead to other evidence that may be so used. [See In re Estate
of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991) (wife’s refusal to testify
about the nature of her relationship with another man on the grounds that
it might incriminate her, and her failure to refute the charge of adultery,
logically gave rise to an inference of adultery); Cantwell v.Cantwell, 109
N.C. App. 395, 427 S.E.2d 129 (1993) (under prior law, wife waived right to
pursue alimony claim by asserting privilege against self-incrimination when
husband alleged adultery as a defense).]
(c) e privilege is not applicable if prosecution would be barred by a statute
of limitations. [Leonard v.Williams, 100 N.C. App. 512, 397 S.E.2d 321
(1990) (statute of limitations for adultery prosecution is two years under
G.S.15-1).]
(d) For the jury instruction on the assertion of this privilege in a civil proceed-
ing, see N.C.P.I.—C 101.38—Evidence—Invocation by Witness of Fifth
Amendment Privilege Against Self-Incrimination.
ix. Immunity. [G.S.15A-1051 and 15A-1052.] Statutory grants of immunity may be
procured for witnesses who are called to testify concerning their own adultery,
depending on the policy of the district attorney in the applicable judicial district.
[See Brown v.Brown, 85 N.C. App. 602, 355 S.E.2d 525 (wife compelled to
answer questions about her adultery after receiving immunity from prosecution;
issue not addressed on appeal), cert. denied, 320 N.C. 511, 358 S.E.2d 516 (1987),
superseded on other grounds by statute as stated in Wells v.Wells, 132 N.C. App.
401, 512 S.E.2d 468 (1999).]
c. Involuntary separation of the spouses in consequence of a criminal act committed
prior to the proceeding in which alimony is sought. [G.S.50-16.1A(3)b.]
d. Abandonment of the other spouse. [G.S.50-16.1A(3)c.]
i. One spouse abandons the other when he brings cohabitation to an end with-
out justication, without the consent of the other spouse, and without intent
of renewing cohabitation. [Sorey v.Sorey, 233 N.C. App. 682, 757 S.E.2d 518
(2014) (citing Hanley v.Hanley, 128 N.C. App. 54, 493 S.E.2d 337 (1997));
Panhorst v.Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Cunningham
v.Cunning ham, 171 N.C. App. 550, 615 S.E.2d 675 (2005) (citing Corbett
v.Corbett, 67 N.C. App. 754, 313 S.E.2d 888 (1984)); Hanley; Patton v.Patton,
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78 N.C. App. 247, 337 S.E.2d 607 (1985), rev’d in part on other grounds, 318 N.C.
404, 348 S.E.2d 593 (1986).]
ii. When the evidence, when considered in the light most favorable to plainti, is
sucient to raise a factual question as to the issue of abandonment, it is proper
to submit that issue to the jury. [Tan v.Tan, 49 N.C. App. 516, 272 S.E.2d 11
(1980), review denied, 302 N.C. 402, 279 S.E.2d 356 (1981).]
iii. Since there is no all-inclusive denition as to what will justify abandonment,
each case must be determined in large measure upon its own circumstances.
[Hanley v.Hanley, 128 N.C. App. 54, 493 S.E.2d 337 (1997) (citing Tan v.Tan, 49
N.C. App. 516, 272 S.E.2d 11 (1980)).]
iv. e spouse alleging abandonment must prove the absence of justication for
the abandonment. [Cunningham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d
675 (2005) (citing Corbett v.Corbett, 67 N.C. App. 754, 313 S.E.2d 888 (1984));
Morris v.Morris, 46 N.C. App. 701, 266 S.E.2d 381 (plainti does not have to
negate every possible justication for defendant’s leaving but must prove only an
absence of conduct by plainti that made it impossible for defendant to continue
in the marriage), aff ’d per curiam, 301 N.C. 525, 272 S.E.2d 1 (1980).]
v. A spouse is not justied in bringing cohabitation to end unless the conduct of
the other spouse is such as would likely render it impossible for the withdrawing
spouse to continue the marital relationship with safety, health, and self-respect.
[Caddell v.Caddell, 236 N.C. 686, 73 S.E.2d 923 (1953). See also Morris
v.Morris, 46 N.C. App. 701, 266 S.E.2d 381 (discussing burdens of proof on issue
of abandonment), aff’d per curiam, 301 N.C. 525, 272 S.E.2d 1 (1980).]
vi. Abandonment does not occur if the parties live apart by mutual agreement.
[Sauls v.Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975) (noting that consent that is a
positive willingness on the part of the complainant, not induced by the miscon-
duct of the other spouse, to cease cohabitation negates a claim of abandonment,
while an agreement to separate induced by the other spouse’s misconduct does
not preclude the complainant from maintaining a claim for abandonment).]
vii. A spouse’s failure to object to the other spouse’s decision to leave the marital
home does not necessarily constitute consent to abandonment. [Sorey v.Sorey,
233 N.C. App. 682, 757 S.E.2d 518 (2014) (when wife alleged that she told hus-
band in advance that she was moving and husband said he did not want to move
with her, husband’s statement did not necessarily constitute consent; husband
was under no obligation to explicitly protest wife’s decision to leave the marital
home; nding that husband did not consent was supported by nding that he
only became aware that wife was leaving when he was out of town and when,
upon calling wife, he was informed that wife no longer wanted him and had
found someone else).]
viii. Where parties occupied adjacent apartments and ceased having sexual relations
but had extensive interactions for about ten years, parties were not living “sep-
arate and apart.” Husband held to have abandoned wife when he moved from
adjacent apartment and stopped paying wife’s rent and other expenses. [Lin
v.Lin, 108 N.C. App. 772, 425 S.E.2d 9 (1993).]
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ix. Trial court did not err in nding that wife had abandoned husband when wife
left for Hawaii without saying when she would return, bought a car while there,
and did not notify husband of her return. [Hanley v.Hanley, 128 N.C. App. 54,
493 S.E.2d 337 (1997).]
x. One spouse may abandon the other without physically leaving the home.
[Panhorst v.Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971) (a court could nd
constructive abandonment based on either armative acts of physical or
mental cruelty or armative acts of a willful nature, such as a willful failure
to provide adequate support); Ellinwood v.Ellinwood, 88 N.C. App. 119, 362
S.E.2d 584 (1987) (mental or physical cruelty, or failure to fulll obligations of
marriage, may constitute constructive abandonment).] But a spouse who has
neither left the marital home nor withheld support cannot be found to have
abandoned the other spouse merely by electing to sleep in a separate bedroom.
[Oakley v.Oakley, 54 N.C. App. 161, 282 S.E.2d 589 (1981) (desertion of the
marital bed not sucient by itself to constitute abandonment).]
xi. A court can nd constructive abandonment by the defendant even though
the defendant was forcibly removed from the marital home pursuant to a
G.S.Chapter 50B emergency protective order. [Walker v.Walker, 143 N.C. App.
414, 546 S.E.2d 625 (2001) (fact that defendant did not voluntarily leave the res-
idence did not preclude a verdict in favor of plainti on the issue of constructive
abandonment).]
xii. No constructive abandonment of the husband by the wife if the wife’s refusal to
engage in sexual relations except on rare occasions, asserted by the husband as
justication for his departure from the home, was not willful but was due to her
health and physical condition. [Panhorst v.Panhorst, 277 N.C. 664, 178 S.E.2d
387 (1971).]
xiii. Proof of constructive abandonment may not be based on actions after separa-
tion. [Ellinwood v.Ellinwood, 88 N.C. App. 119, 362 S.E.2d 584 (1987) (citing
Fogelman v.Fogelman, 41 N.C. App. 597, 255 S.E.2d 269 (1979)).]
xiv. For more on abandonment as marital misconduct, see N.C.P.I. C—815.70
Alimony—Issue of Marital Misconduct.
xv. For more on this topic, see Divorce and Annulment, Bench Book, Vol. 1,
Chapter5.
e. Malicious turning out-of-doors of other spouse. [G.S.50-16.1A(3)d.]
i. Evidence wife presented on issue of whether she was maliciously turned out-
of-doors was sucient to submit to a jury when it tended to show that husband
threatened wife with bodily harm if she did not comply with his wishes, wife
was afraid not to do as she was told, and husband took wife to the airport and
bought her a one-way ticket to California and put her on the plane. [Osornio
v.Osornio, 12 N.C. App. 30, 182 S.E.2d 283 (1971).]
f. Cruel or barbarous treatment endangering the life of the other spouse.
[G.S.50-16.1A(3)e.]
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i. Trial court did not err in nding husband’s conduct constituted cruel or bar-
barous treatment when husband’s love and aection for wife had ceased, he no
longer cared where wife went or what she did, and he repeatedly slapped wife,
cursed her, and stated he could kill her. [Gardner v.Gardner, 40 N.C. App. 334,
252 S.E.2d 867 (considering conduct in context of wife’s claim for temporary
alimony under former statute), review denied, 297 N.C. 299, 254 S.E.2d 917
(1979).]
g. Indignities rendering the condition of the other spouse intolerable and her life bur-
densome. [G.S.50-16.1A(3)f.]
i. North Carolina courts have declined to specically dene “indignities,” prefer-
ring instead to examine the facts on a case-by-case basis. [Barwick v.Barwick,
228 N.C. 109, 44 S.E.2d 597 (1947); Evans v.Evans, 169 N.C. App. 358, 610
S.E.2d 264 (2005); Presson v.Presson, 12 N.C. App. 109, 182 S.E.2d 614 (1971)
(whether spouse has committed indignities is determined by the facts and cir-
cumstances of each individual case).]
ii. Must be more than isolated instances of misconduct. [Hall v.Mabe, 77 N.C.
App. 758, 336 S.E.2d 427 (1985). See Schmeltzle v.Schmeltzle, 147 N.C. App. 127,
130, 555 S.E.2d 326, 328 (2001) (emphasis in original) (quoting Traywick v.Tray-
wick, 28 N.C. App. 291, 295, 221 S.E.2d 85, 88 (1976)) (stating that “[t]he funda-
mental characteristic of indignities is that it must consist of a course of conduct
or continued treatment which renders the condition of the injured party intoler-
able and life burdensome” and that “indignities must be repeated and persisted
in over a period of time”).]
iii. Failure to protect or preserve the marital relationship, standing alone, does not
constitute an indignity. [Vann v.Vann, 128 N.C. App. 516, 495 S.E.2d 370 (1998)
(husband did not have a greater duty than wife to recognize the diculties
between himself and wife; his failure to do so did not constitute indignities).]
iv. “Indignities consist of a course of conduct or repeated treatment over a period
of time including behavior such as ‘unmerited reproach, studied neglect, abusive
language, and other manifestations of settled hate and estrangement.’ ” [Evans
v.Evans, 169 N.C. App. 358, 363–64, 610 S.E.2d 264, 269 (2005) (quoting Cham-
bless v.Chambless, 34 N.C. App. 720, 722, 239 S.E.2d 624, 625 (1977)).]
v. Court may consider factors such as the station in life, the temperament, state of
health, habits, feelings, relative sensitiveness and renement, etc. of the parties.
[Barwick v.Barwick, 228 N.C. 109, 112, 44 S.E.2d 597, 599 (1947) (noting that
treatment that would send “the broken heart of one to the grave” would make
“no sensible impression” upon another).]
vi. Ultimate nding that defendant’s conduct constituted indignities was fully
supported by a guardian ad litem report and detailed in specic ndings that
defendant controlled all nances during the marriage, as well as the associations
of wife and children and the food they ate, refused to allow one child to attend
public school, and engaged in parental alienation, which actions were inten-
tional and malicious and part of a long-standing course of conduct and were
not an isolated incident, amounting to emotional abuse of wife. [Dechkovskaia
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v.Dechkovskaia, 232 N.C. App. 350, 358, 754 S.E.2d 831, 837 (defendant’s “over-
whelming control” and attempts at isolation from “broader society” supported
a determination of indignities, especially when plainti was a relatively recent
immigrant to the U.S.), review denied, 367 N.C. 506, 758 S.E.2d 870 (2014).]
vii. In Dechkovskaia v.Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831, review
denied, 367 N.C. 506, 758 S.E.2d 870 (2014), the trial court’s failure to nd that
the indignities defendant oered to plainti were “without adequate provoca-
tion” did not require reversal of the order awarding alimony when:
(a) It is not clear that a nding on provocation is required, as G.S.50-16.1A
does not speak to provocation and requires a factor analysis that seems
inconsistent with such a requirement; no case decided under G.S.50-16.1A
has explicitly required a nding of an absence of provocation before deter-
mining whether indignities were oered; even though the denition of
“indignities” has not changed over the years and is the same in the divorce
statute, the requirement of a lack of provocation, added “generations ago,”
has been carried forward as “judicial gloss” without consideration of its
origins and its application to the modern alimony statute; earlier cases
that support a requirement of provocation were decided when divorce was
fault-based and are based on antiquated beliefs about the roles of husband
and wife; there have been substantial changes in pleading requirements and
in procedural law; and substantive changes in North Carolina family law,
and a vast societal change in the status of women, severely undermine the
rational for a provocation rule.
(b) Assuming, however, that a nding as to lack of provocation is required,
defendant did not raise plainti’s failure to do so in the trial court and did
not present any evidence that could sustain a nding that plainti had “pro-
voked” the conduct that constituted indignities. (Matter remanded only so
that the trial court could reconsider the alimony amount and term in light
of the new equitable distribution award to be entered on remand.)
viii. Wife’s forced removal of husband from the marital home without justication,
her sexually explicit emails to another man, her hostility toward husband, which
included slapping him fteen to twenty times, her decision to take several trips
without telling husband where she was going, and her extreme lack of care and
destruction of the marital home, constituted indignities justifying a denial of
postseparation support. [Evans v.Evans, 169 N.C. App. 358, 610 S.E.2d 264
(2005); Hunt v.Hunt, 233 N.C. App. 785, 759 S.E.2d 712 (unpublished) (citing
Evans) (husband’s inappropriately close relationship with a female co-worker
over a period of time before separation, fact that he frequently left the house at
night without explanation, and was caught with sexual items for which he did
not have an adequate explanation constituted indignities), review denied, 367
N.C. 524, 762 S.E.2d 443 (2014).]
ix. Indignities found when husband saw another woman every weekend and holi-
day for a year, moved to the basement and withdrew from active participation
in the family, used pornographic material in the presence of the parties’ minor
children, made sexual advances upon the parties’ daughter, and requested that
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plainti indulge him in various unnatural sexual desires. [Vandiver v.Vandiver,
50 N.C. App. 319, 274 S.E.2d 243, review denied, 302 N.C. 634, 280 S.E.2d 449
(1981).]
x. Denial of plainti’s request for alimony based on indignities armed when
plainti had caused defendant great embarrassment and humiliation, had
caused her family to “walk on eggshells,” had withdrawn from her family, had
continually yelled, and was explosive. [Schmeltzle v.Schmeltzle, 164 N.C. App.
598, 596 S.E.2d 474 (2004) (unpublished) (plainti’s contention on appeal, that
her conduct arose from her mental illnesses, was not presented at trial).]
xi. For more on indignities as marital misconduct, see N.C.P.I. C 815.70—
Alimony—Issue of Marital Misconduct.
xii. For more on this topic, see Divorce and Annulment, Bench Book, Vol. 1,
Chapter5.
h. Reckless spending of the income of either party, or the destruction, waste, diversion,
or concealment of assets. [G.S.50-16.1A(3)g. See Odom v.Odom, 47 N.C. App. 486,
267 S.E.2d 420 (dening “spendthrift” under prior law), review denied, 301 N.C. 94,
273 S.E.2d 300 (1980).]
i. Even though trial court found that dependent spouse’s expenditures on clothing
were excessive and unreasonable, conclusion that she had not engaged in mari-
tal misconduct was correct because court found that excessive and unreasonable
spending was part of the accustomed standard of living by both parties during
the marriage. [Glass v.Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998).]
ii. Where a party properly raised the issue of spendthrift and oered evidence to
support his allegation, the trial court erred in refusing to submit the issue of
spendthrift to the jury. [Skamarak v.Skamarak, 81 N.C. App. 125, 343 S.E.2d
559 (1986).]
i. Excessive use of alcohol or drugs so as to render condition of the other spouse intol-
erable and life burdensome. [G.S.50-16.1A(3)h.]
i. Allegation that defendant had been an habitual drunkard for the last three years
constituted a ground for divorce from bed and board and alimony under prior
law, even though other insucient allegations also appeared in the complaint.
[Best v.Best, 228 N.C. 9, 44 S.E.2d 214 (1947).]
j. Willful failure to provide necessary subsistence according to one’s means and con-
dition so as to render the condition of the other spouse intolerable and life burden-
some. [G.S.50-16.1A(3)i.]
i. Absent waiver by plainti of her alimony rights, defendant’s postseparation fail-
ure to support a dependent spouse constituted a ground for alimony. [See Brown
v.Brown, 104 N.C. App. 547, 410 S.E.2d 223 (1991) (prior law) (award of per-
manent alimony on this ground armed), cert. denied, 331 N.C. 383, 417 S.E.2d
789 (1992).]
ii. Evidence regarding a party’s earnings and earning capacity is relevant when the
other party is seeking alimony under this provision. [VanDooren v.VanDooren,
37 N.C. App. 333, 246 S.E.2d 20 (trial court erred in excluding evidence as to
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husband’s earnings and earning capacity; information relevant to party’s “means
and condition”), review denied, 295 N.C. 653, 248 S.E.2d 258 (1978).]
iii. For more on willful failure to support as marital misconduct, see N.C.P.I. C
815.70—Alimony—Issue of Marital Misconduct.
B. Procedure for Alimony
1. Manner of asserting claim.
a. In an action brought pursuant to G.S.Chapter 50, either party may move for ali-
mony. [G.S.50-16.3A(a); 50-16.1A(a) (where alimony is dened as support ordered
in an action for divorce, whether absolute or from bed and board, or in an action for
alimony without divorce).]
b. A party seeking to claim alimony must comply with G.S.1A-1, Rule 8(a)(1). us, an
alimony pleading must contain “[a] short and plain statement of the claim suciently
particular to give the court and the parties notice of the transactions, occurrences,
or series of transactions or occurrences . . . showing that the pleader is entitled to
relief[.]” [Coleman v.Coleman, 182 N.C. App. 25, 31, 641 S.E.2d 332, 337 (2007)
(quoting Rule 8(a)(1) and citing 2 Lee’s North Carolina Family Law §9.62 (5th ed.
1999)) (a pleading or motion for alimony should contain allegations addressed to
dependency, supporting spouse, and some of the economic and other factors that
make an award of alimony equitable under the circumstances).]
c. e trial court erred by dismissing plainti’s alimony claim based on his failure to
reply to what defendant contended were counterclaims related to alimony. Rather
than asserting counterclaims to which a reply was required, by incorporating in three
counterclaims language from an earlier paragraph that asserted that plainti was
not a dependent spouse and that defendant was not a supporting spouse, defendant
merely denied in the armative allegations in the complaint. [Crowley v.Crowley,
203 N.C. App. 299, 309, 691 S.E.2d 727, 734 (holding that a plainti is not required
to re-allege allegations in a complaint that have been “denied in the armative” in a
counterclaim), review denied, 364 N.C. 749, 700 S.E.2d 749 (2010).]
2. Suciency of a pleading or motion for alimony.
a. According to Quesinberry v.Quesinberry, 210 N.C. App. 578, 709 S.E.2d 367 (2011)
(citing 2 Lee’s North Carolina Family Law §9.62 (5th ed. 1999)), to be sucient:
i. A pleading or motion for alimony should contain facts addressed to dependency,
supporting spouse, and some of the economic and other facts that make an
award of alimony equitable under the circumstances.
ii. e statement of the claim on dependent and supporting spouses should
include facts that indicate that the petitioner has a shortfall between income
and expenses, or that the petitioner will experience such a shortfall, and that
the other spouse is able to address that shortfall. e statement of the claim on
dependent and supporting spouses should include factual allegations on the
petitioner’s needs and inability to meet them and must oer more than just the
amount of the other spouse’s income.
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b. Pleadings sucient.
i. Complaint, when read in its entirety, suciently alleged husband’s income-
expense shortfall and wife’s ability to address that shortfall and suciently stated
a claim for alimony, even though it did not specically detail husband’s standard
of living, amount of wife’s income and expenses, or her income surplus. [Quesin-
berry v.Quesinberry, 210 N.C. App. 578, 592, 593, 709 S.E.2d 367, 378 (2011)
(husband addressed the shortfall between his income and expenses; alleged that
wife, unlike husband, was “an able-bodied person capable of gainful employ-
ment” who received a “signicant income as a result of her employment”; and
alleged that husband needed support to “maintain his accustomed standard of
living established during the marriage”).]
c. Pleadings not sucient.
i. Wife’s counterclaim “hereby request[ing] alimony payments from Plainti in the
amount of $1500.00 per month” was not sucient to state a claim for alimony.
[Coleman v.Coleman, 182 N.C. App. 25, 30, 641 S.E.2d 332, 337 (2007) (state-
ment provided no notice of any grounds upon which wife might have pursued
and been entitled to alimony, such as her status as the dependent spouse).]
ii. Plainti’s complaint failed to state a claim for alimony when it alleged that she
was a dependent spouse, but the only allegation in support of this position was
a factually incorrect statement of the amount of her husband’s salary. [Shook
v.Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989) (complaint properly dismissed
pursuant to G.S.1A-1, Rule 12(b)(6)), review denied, appeal dismissed, 326 N.C.
50, 389 S.E.2d 94 (1990).]
3. Right to a jury trial.
a. In an action for alimony, either spouse may request a jury trial on the issue of marital
misconduct as dened in G.S.50-16.1A. [G.S.50-16.3A(d).]
b. If a jury trial is requested, the jury will decide whether either spouse or both have
established marital misconduct. [G.S.50-16.3A(d).] For a jury instruction on marital
misconduct, see N.C.P.I. C—815.70—Alimony—Issue of Marital Misconduct.
c. e court of appeals has held that an appeal of a jury verdict on fault divests the trial
court of jurisdiction to enter an alimony order. [Lewis v.Lewis, 128 N.C. App. 183,
493 S.E.2d 785 (1997) (trial court had no jurisdiction to enter alimony order during
husband’s appeal of a verdict nding that he had committed adultery).] However, the
court did not address whether the appeal was an appropriate interlocutory appeal.
4. Pretrial mediated settlement conference. [G.S.7A-38.4A.]
a. A chief district court judge may order a mediated settlement conference, or other
settlement procedure pursuant to G.S.7A-38.4A(g), for any pending action involving
issues of alimony, postseparation support, or claims arising out of contracts between
the parties under G.S.52-10, 52-10.1, or Chapter 52B. [G.S.7A-38.4A(c).] In the
mediated settlement conference or other settlement procedure required in all equi-
table distribution matters, all nancial issues between the parties, including those
set out above, as well as child support, may be discussed, negotiated, or decided
during the settlement conference. [N.C. G. S. A R N
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C, R I S P E D-
O F F C 1.C(1), (2).]
b. At the request of a party and with the consent of all parties, a chief district court
judge, or that judge’s designee, may order parties to attend and participate in any
other settlement procedure authorized by local or supreme court rule in lieu of
attending a mediated settlement conference. [G.S.7A-38.4A(g).]
c. All parties, their attorneys, and other persons with authority to settle a claim (except
victims of domestic violence may be excused from attending) must attend the medi-
ated settlement conference or other settlement procedure. [G.S.7A-38.4A(d).]
d. ose required to attend who, without good cause, fail to appear or fail to pay any
or all of the mediator or other neutral’s fee are subject to contempt and monetary
sanctions imposed by a district court judge. [G.S.7A-38.4A(e).] See procedure in G.S.
7A-38.4A(e).
e. e trial court did not err when it set aside a consent order incorporating an agree-
ment signed by the parties and their counsel in a mandatory mediation when the
wife withdrew her consent to entry of the order before the agreement was signed by
the judge. [Small v.Parker, 184 N.C. App. 358, 646 S.E.2d 658 (2007) (agreement not
enforceable as an order of the court; court did not address enforceability of the agree-
ment as a contract).]
f. For rules implementing G.S.7A-38.4A, see N.C. G. S. A R
N C, R I S P E-
D O F F C.
5. In an action for alimony or postseparation support, if either or both parties have sought
and obtained marital counseling from persons listed in the statute, the person or persons
rendering counseling are not competent to testify in the action concerning information
acquired while rendering the counseling. [G.S.8-53.6.]
6. Relationship of alimony to entry of divorce judgment.
a. General rules on eect of a judgment for divorce.
i. A judgment of absolute divorce destroys the right of a spouse to alimony
unless the right has been asserted prior to judgment of absolute divorce. [See
G.S.50-11(c); 50-6.]
ii. A divorce obtained outside the state from a court without jurisdiction over the
dependent spouse will not impair or destroy the dependent spouse’s right to
alimony in this state. [G.S.50-11(d).]
b. e trial court’s reservation of the issue of alimony in the divorce order only pre-
serves a claim that has been asserted and not dismissed before judgment of absolute
divorce. [Stark v.Ratashara, 177 N.C. App. 449, 628 S.E.2d 471, review denied, 360
N.C. 536, 633 S.E.2d 826 (2006).]
c. Whether an action for alimony was pending at the time a judgment of divorce was
granted has been the matter of some litigation.
i. Claim for alimony not pending; claim lost.
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(a) Statement in wife’s answer that “the claims for alimony and equitable distri-
bution pending this action are to be reserved” did not assert a claim for ali-
mony. [Stark v.Ratashara, 177 N.C. App. 449, 451, 628 S.E.2d 471 (because
wife had led no counterclaim or separate action for alimony before entry
of divorce judgment, she lost her alimony claim), review denied, 360 N.C.
536, 633 S.E.2d 826 (2006).]
(b) Wife’s counterclaim “hereby request[ing] alimony payments from Plainti
in the amount of $1500.00 per month” was not sucient to state a claim for
alimony. us, no alimony claim was pending at time divorce judgment was
entered. [Coleman v.Coleman, 182 N.C. App. 25, 30, 641 S.E.2d 332, 337
(2007).]
ii. Claim for alimony pending; claim not lost.
(a) Wife’s claim for alimony, asserted in her action for divorce and not dis-
missed before entry of divorce judgment, was pending when judgment of
absolute divorce was entered. [Stegall v.Stegall, 336 N.C. 473, 444 S.E.2d
177 (1994).]
(b) Action for divorce from bed and board is “pending action” asserting
spouse’s right with respect to alimony within meaning of G.S.50-6.
[Wilhelm v.Wilhelm, 43 N.C. App. 549, 259 S.E.2d 319 (1979).]
d. Eect of a voluntary dismissal on a claim for alimony.
i. A properly asserted claim for alimony is lost by the taking of a voluntary dis-
missal before entry of judgment of absolute divorce. [Banner v.Banner, 86 N.C.
App. 397, 358 S.E.2d 110, review denied, 320 N.C. 790, 361 S.E.2d 70 (1987),
overruled on other grounds by Stachlowski v.Stach, 328 N.C. 276, 401 S.E.2d 638
(1991). See also Rhue v.Pace, 165 N.C. App. 423, 598 S.E.2d 662 (2004) (applying
principle to voluntarily dismissed equitable distribution claim).]
ii. A properly asserted claim for alimony is not lost by the taking of a voluntary
dismissal after entry of judgment of absolute divorce and may be the basis of a
new action for alimony led within the one-year period provided by G.S.1A-1,
Rule 41(a). [Stegall v.Stegall, 336 N.C. 473, 444 S.E.2d 177 (1994) (alimony claim
was asserted in an action separate from the action in which divorce decree was
entered).] NOTE: A plainti may not voluntarily dismiss an action without the
other party’s consent if the defendant asserts a counterclaim arising out of the
same transaction as alleged in the complaint. [See Swygert v.Swygert, 46 N.C.
App. 173, 264 S.E.2d 902 (1980) (citing McCarley v.McCarley, 289 N.C. 109,
221 S.E.2d 490 (1976)) (trial court did not err when it refused to allow plainti’s
G.S.1A-1, Rule 41(a) voluntary dismissal of complaint for divorce from bed
and board and alimony when defendant had led a counterclaim for absolute
divorce).]
e. In certain circumstances, the doctrine of equitable estoppel may be available to allow
a party to assert a claim for alimony that would otherwise be barred.
i. Under appropriate circumstances, a supporting spouse may be estopped from
asserting divorce as a bar to alimony. [See Hamilton v.Hamilton, 296 N.C. 574,
251 S.E.2d 441 (1979) (defendant estopped from asserting divorce as bar to
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alimony when court entered absolute divorce based on parties’ representations
that they had reached settlement as to support claims, but settlement never
materialized).]
7. Relationship of alimony to equitable distribution (ED).
a. Alimony claim may be heard before ED.
i. For actions led on or after Oct. 1, 1995, aclaim for alimony may be heard on
the merits before entry of a judgment for ED. [G.S.50-16.3A(a), amended by S.L.
1995-319, § 2, eective Oct. 1, 1995.]
ii. If alimony is awarded before entry of a judgment for ED, the issues of amount
and whether a spouse is a dependent or supporting spouse may be reviewed
by the court after the conclusion of the ED claim. [G.S.50-16.3A(a).] Unlike
G.S.50-20(f), cited immediately below, G.S.50-16.3A(a) does not appear to
require a nding of changed circumstances before an alimony order can be
modied following ED.
iii. Upon request of either party after entry of an ED judgment, the court must
consider whether an order for alimony should be vacated or modied pursuant
to G.S.50-16.9 (G.S. 50-16.9(a) requires a showing of changed circumstances.)
[G.S.50-20(f); Romulus v.Romulus, 215 N.C. App. 495, 529, 715 S.E.2d 308, 329
(2011) (noting that G.S. 50-20(f) “does not address the details of scheduling of
hearings, but only what the trial court should consider as to each aspect of the
case”).]
iv. If alimony is heard rst, the trial court should not speculate about the pending
ED claim in determining its award of alimony. [See Rhew v.Rhew, 138 N.C. App.
467, 469, 531 S.E.2d 471, 473 (2000) (in determining whether to award alimony,
it was error for a court to “speculate” about the results of the parties’ pending
ED when there was no evidence presented as to the likely outcome; trial court
nding that after ED, defendant “will have the ability to make a substantial down
payment toward the purchase of a residence and should be able to nance the
unpaid amount with a relatively small mortgage” not supported by evidence).]
v. Before G.S.50-16.3A(a) was added in 1995, case law provided that when both
alimony and ED were requested, the court was to decide the ED claim rst.
[Talent v.Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985), superseded by statute
as stated in Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000); McIntosh
v.McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).]
b. ED may be heard before alimony claim.
i. G.S.50-16.3A(a) provides that a claim for alimony may be heard before entry of
a judgment for ED but does not require it. G.S.50-16.3A(b)(16) directs a trial
judge determining the amount, duration, and manner of payment of alimony to
consider that income received by a party was previously considered in determin-
ing the value of marital or divisible property during ED.
ii. In Carpenter v.Carpenter, 781 S.E.2d 828, 834 (N.C. Ct. App. 2016), the trial
court heard alimony and ED claims simultaneously. On remand from an appeal
of the order deciding those claims, the court of appeals directed the trial court
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to determine the nal equitable distribution before determining alimony “since
the distribution could potentially change the nancial circumstances of the par-
ties including the need for or ability to pay alimony.”
iii. Cases where the ED claim was heard before the alimony claim include Embler
v.Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001), and McIntyre v.McIntyre,
175 N.C. App. 558, 623 S.E.2d 828 (2006), discussed in Section III.B.7.d.ii, below.
iv. If the ED claim is heard rst or is heard simultaneously with the alimony claim,
the trial court should be mindful, when considering the separate estates of the
parties for alimony purposes, to use the value of property within a reasonable
time before or after the commencement of the action for permanent alimony.
[Clark v.Clark, 301 N.C. 123, 135, 271 S.E.2d 58, 67 (1980) (value of property
within a reasonable time before or after commencement of an action for alimony
is “a proper subject of inquiry” for the court; otherwise, it would be dicult, if
not completely impossible, to accurately assess the value of the parties’ separate
estates and make a fair determination of the ability of one spouse to provide,
and the need of the other spouse to receive, such an award at the time the order
is entered). See also Kelly v.Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (2002)
(unpublished) (citing Clark) (in a case where the court entered an ED judgment
the day before it entered an order denying plainti alimony, the trial court erred
when denial was based in part on the value, taken directly from the ED order, of
the marital property awarded to plainti in ED, when the value was based on the
value of the property on the date of separation, some seven years before entry of
the alimony order).]
v. A trial court may, under appropriate circumstances, take judicial notice of nd-
ings of fact in a previously entered order in the same cause when making nd-
ings in an order for alimony. [See Williamson v.Williamson, 217 N.C. App. 388,
719 S.E.2d 625 (2011) (trial court, in making a nding about plainti’s income
in an order awarding alimony, could rely on a nding in a previous ED order of
gross weekly income of $1,250; trial court determined that defendant’s evidence
at the alimony hearing that plainti earned $7,000 a month was not credible,
and plainti did not present evidence of his income at the alimony hearing).]
Note, however, that not all ndings of fact in previously entered orders in the
same cause may be relied upon by the court in later proceedings. [See Khaja
v.Husna, 777 S.E.2d 781, 792 (N.C. Ct. App.) (trial court erred when it relied (1)
on the date of separation (DOS) found in a summary judgment divorce when the
trial court later determined alimony and (2) on ndings as to wife’s marital mis-
conduct in an order granting a preliminary injunction; as to (1), the DOS was
not a necessary nding in the summary judgment divorce when parties agreed
that they had been separated for the statutorily required period but contested
the actual DOS, thus the DOS “should . . . have been irrelevant to the trial court
when considering alimony;” as to (2), an order granting a preliminary injunction
is interlocutory, making ndings and conclusions in that order not binding at
the nal hearing; trial court on remand was to make its own independent deter-
mination of martial misconduct by wife), appeal dismissed, 368 N.C. 605, 780
S.E.2d 757, appeal dismissed, petition for supersedeas dismissed, 368 N.C. 605,
781 S.E.2d 293 (2015).]
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c. Simultaneous hearing of ED and alimony claims.
i. It is not clear whether claims for alimony and ED may be heard together. [See
Romulus v.Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011) (plainti waived
argument that trial court erred by hearing alimony and ED together when plain-
ti failed to object to having both claims heard at the same time and failed to
request separate hearings; moreover, plainti invited the error, if any, and was
not prejudiced by it).]
ii. Cases where the claims have been heard simultaneously without considering the
appropriateness of that procedure include Helms v.Helms, 191 N.C. App. 19, 28,
661 S.E.2d 906, 912 (Stephens, J., concurring and dissenting in part and noting
that the “case confounds me,” based partially on the trial court’s attempt to
resolve simultaneously the issues of postseparation support, alimony, and ED),
review denied, 362 N.C. 681, 670 S.E.2d 233 (2008), Robinson v.Robinson, 210
N.C. App. 319, 707 S.E.2d 785 (2011) (trial of child support, alimony, and ED
with defendant not present), Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270
(2011), and Johnson-White v.White, 209 N.C. App. 750, 709 S.E.2d 602 (2011)
(unpublished).]
iii. In Carpenter v.Carpenter, 781 S.E.2d 828, 834 (N.C. Ct. App. 2016), the trial
court heard alimony and ED claims simultaneously. On remand from an appeal
of the order deciding those claims, the court of appeals directed the trial court
to determine the nal equitable distribution before determining alimony “since
the distribution could potentially change the nancial circumstances of the par-
ties including the need for or ability to pay alimony.”
d. Appeal of ED or alimony order when other claims remain pending.
i. G.S.50-19.1, added by S.L. 2013-411, §2, eective Aug. 23, 2013, may change
the result in the cases listed in Section III.B.7.d.ii, below. It provides:
(a) Notwithstanding any other pending claims led in the same action, a party
may appeal from an order or judgment adjudicating a claim for absolute
divorce, divorce from bed and board, child custody, child support, alimony
or equitable distribution if the order or judgment would otherwise be a
nal order or judgment within the meaning of G.S.1A-1, Rule 54(b), but for
the other pending claims in the same action.
(b) A party does not forfeit the right to appeal under this section if the party
fails to immediately appeal from an order or judgment described in
G.S.50-19.1.
(c) An appeal from an order or judgment under G.S.50-19.1 shall not deprive
the trial court of jurisdiction over any other claims pending in the same
action. [G.S.50-19.1.] us, in actions to which G.S.50-19.1 applies, appeal
from a nal alimony order may be taken even if claims for divorce, either
absolute or from bed and board, custody, child support, or ED remain
pending.
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ii. Before the eective date of G.S.50-19.1, nal judgments of equitable distribu-
tion, alimony, child support, custody, divorce, and divorce from bed and board
could not be appealed if other claims remained pending in the case, unless the
trial judge certied that there is no just reason for delay pursuant to G.S.1A-1,
Rule 54(b). [See Embler v.Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001)
(noting that interlocutory appeals that challenge only the nancial repercussions
of a separation or divorce generally do not aect a substantial right; therefore,
appeal of ED order was interlocutory and inappropriate while claims for ali-
mony, child custody, and support remained pending); McIntyre v.McIntyre, 175
N.C. App. 558, 623 S.E.2d 828 (2006) (citing Embler) (appeal from an ED order
that left open the issue of alimony was dismissed as interlocutory; that appel-
late court decision on ED could put trial court in a better position to determine
alimony or could avoid a retrial on alimony not a “substantial right”).]
e. Allocation of postseparation debt payments in alimony proceeding.
i. Whether certain postseparation payments by a supporting spouse should be
credited as alimony depends on the classication of the debts or liabilities being
paid. If the payments were made toward marital debt, the payments should not
be considered as alimony, but if they were paid to the dependent spouse, or paid
on his behalf, for the dependent spouse’s personal expenses or to make pay-
ments on his separate property, they may be considered payments of alimony.
[Robinson v.Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011) (supporting
spouse sought to have postseparation mortgage and car payments applied to his
retroactive alimony obligation, but residence and cars were not classied, val-
ued, and distributed, so appellate court could not determine whether payments
should have been credited as alimony or included within the ED order).]
8. Financial adavits.
a. Local rules may require the parties to le a nancial adavit.
b. A sworn nancial adavit is competent evidence as to the information contained
therein. [Parsons v.Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013) (citing Row
v.Row, 185 N.C. App. 450, 650 S.E.2d 1 (2007)) (adavit of expenses itself is evidence
of a party’s expenses; thus, wife’s adavit as to her monthly expenses did not have to
be supported by other evidence).]
c. When a party les a nancial adavit with the court and also submits as evidence a
nancial statement provided to her bank that is contrary in some respects, the court
may assign greater weight and credibility to the nancial statement submitted to the
bank. [Clark v.Clark, 231 N.C. App. 514, 753 S.E.2d 743 (2013) (unpublished) (when
nancial adavit led with the court listed a $250/month warehouse debt but nan-
cial statement to the bank did not, trial court did not have to include that debt in
defendant’s reasonable monthly expenses).]
9. Evidence.
a. A trial court is not personally required to take an oer of proof under G.S.1A-1, Rule
43(c). [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d 859 (Rule 43(c) requires the trial
court, upon request, to allow the insertion of excluded evidence in the record but
does not require the judge to personally consider the oer of proof; allowing party to
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make a tape recording of his oer of proof regarding changed circumstances in the
presence of a courtroom clerk sucient), review denied, appeal dismissed, 360 N.C.
648, 636 S.E.2d 810 (2006).]
b. A trial court may, under appropriate circumstances, take judicial notice of ndings of
fact in previously entered orders in the same cause. [Williamson v.Williamson, 217
N.C. App. 388, 719 S.E.2d 625 (2011) (citing Devaney v.Miller, 191 N.C. App. 208,
662 S.E.2d 672 (2008)) (trial court, in making a nding about plainti’s income in
an order awarding alimony, could rely on a nding in a previous ED order of a gross
weekly income of $1,250; trial court determined that defendant’s evidence at the ali-
mony hearing that plainti earned $7,000 a month was not credible, and plainti did
not present evidence of his income at the alimony hearing).] Note, however, that not
all ndings of fact in previously entered orders in the same cause may be relied upon
by the court in later proceedings. [See Khaja v.Husna, 777 S.E.2d 781, 792 (N.C. Ct.
App.) (trial court erred when it relied (1) on the date of separation (DOS) found in
an summary judgment divorce when the trial court later determined alimony and
(2) on ndings as to wife’s marital misconduct in an order granting a preliminary
injunction; as to (1), the DOS was not a necessary nding in the summary judgment
divorce when parties agreed that they had been separated for the statutorily required
period but contested the actual DOS, thus the DOS “should . . . have been irrelevant
to the trial court when considering alimony;” as to (2), an order granting a prelimi-
nary injunction is interlocutory, making ndings and conclusions in that order not
binding at the nal hearing; trial court on remand was to make its own independent
determination of martial misconduct by wife), appeal dismissed, 368 N.C. 605, 780
S.E.2d 757, appeal dismissed, petition for supersedeas dismissed, 368 N.C. 605, 781
S.E.2d 293 (2015).]
c. Trial court’s decision not to admit an email of plainti when defendant wrongfully
obtained it from a password-protected email account was upheld. Even if court
assumed exclusion of the email was error, defendant failed to show prejudicial error.
[Williamson v.Williamson, 217 N.C. App. 388, 719 S.E.2d 625 (2011).]
10. Summary judgment.
a. Denial of party’s motions pursuant to G. S.1A-1, Rule 12(c) and Rule 12(b)(6) for
judgment on the pleadings and for dismissal of a complaint for postseparation sup-
port, alimony, and ED did not preclude the trial court from granting a subsequent
motion for summary judgment. [Rhue v.Pace, 165 N.C. App. 423, 598 S.E.2d 662
(2004) (citing Barbour v.Little, 37 N.C. App. 686, 247 S.E.2d 252 (1978)) (denial of a
Rule 12(b)(6) motion). See also Smithwick v.Crutchfield, 87 N.C. App. 374, 361 S.E.2d
111(1987) (in a personal injury case, denial of a Rule 12(c) motion did not prevent the
trial court from granting a subsequent motion for summary judgment; motion for
judgment on the pleadings did not present the same question as that raised by later
motion for summary judgment).]
11. Setting aside a judgment or order under G.S.1A-1, Rule 60(b).
a. Action of the trial court setting aside an order for ED and permanent alimony pur-
suant to Rule 60(b)(6) was upheld based on husband’s failure to disclose to the court
that he had borrowed against a home equity line of credit that the parties had previ-
ously satised. [Sloan v.Sloan, 151 N.C. App. 399, 566 S.E.2d 97 (2002).]
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C. Entitlement to Alimony
1. e court shall award alimony to the dependent spouse upon a nding that one spouse
is a dependent spouse, that the other spouse is a supporting spouse, and that an award
is equitable after considering all relevant factors, including the factors set out in
G.S.50-16.3A(b). [G.S.50-16.3A(a).]
a. For denition of “dependent spouse,” see Section III.A.2, above.
b. For cases considering whether an award of alimony is or is not equitable, see Section
III.G.5.d, below.
c. For actions led before Oct. 1, 1995, former G.S.50-16.2 allowed an award of ali-
mony to a dependent spouse upon proof that the supporting spouse had committed
one of the fault grounds listed in the statute.
2. “Illicit sexual behavior” may determine entitlement to alimony.
a. If the court nds that the dependent spouse participated in an act of illicit sexual
behavior, as dened in G.S.50-16.1A(3)a., set out in Section III.A.4.b, above, during
the marriage and before or on the date of separation, the court shall not award ali-
mony unless the court nds that the supporting spouse also participated in an act of
illicit sexual behavior before or on the date of separation. [G.S.50-16.3A(a).]
b. If the court nds that the supporting spouse participated in an act of illicit sexual
behavior during the marriage and before or on the date of separation, then the court
shall order that alimony be paid unless the court nds that the dependent spouse
also participated in an act of illicit sexual behavior before or on the date of separa-
tion. [G.S.50-16.3A(a); Fleming v. Fleming, 237 N.C. App. 618, 767 S.E.2d 704 (2014)
(unpublished) (trial court erred when it denied plainti’s request for alimony after
nding that she was a dependent spouse, that defendant was a supporting spouse,
and that defendant had engaged in illicit sexual behavior before the date of separa-
tion; language in G.S. 50-16.3A(a) that court “shall” order alimony is mandatory; trial
court’s belief that plainti had received a sucient amount of postseparation support
up to the time of the trial could warrant a conclusion that plainti was not entitled to
retroactive alimony but could not be the basis for denying prospective alimony).]
c. If the court nds that both the supporting and the dependent spouse engaged in
illicit sexual behavior during the marriage and before or on the date of separation,
the court shall award or deny alimony in its discretion after consideration of all of the
circumstances. [G.S.50-16.3A(a).]
d. e court shall not consider any act of illicit sexual behavior by either party that has
been condoned by the other party. [G.S.50-16.3A(a).]
e. Illicit sexual behavior is treated dierently than the other statutory categories of mar-
ital misconduct. e trial court has discretion under G.S.50-16.3A(b) to weigh the
other forms of marital misconduct and to determine the eect, if any, the miscon-
duct should have on the alimony award; but as to illicit sexual behavior only, the trial
court’s discretion to weigh the marital misconduct is eliminated unless both spouses
have engaged in the behavior. [Romulus v.Romulus, 215 N.C. App. 495, 715 S.E.2d
308 (2011).]
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f. Under G.S.50-16.3A(b), if only the dependent spouse has engaged in uncondoned
illicit sexual behavior during the marriage and before the date of separation, the trial
court cannot award alimony, even if the supporting spouse has committed egre-
gious marital misconduct of another sort. [Romulus v.Romulus, 215 N.C. App. 495,
715 S.E.2d 308 (2011) (nding that one act by dependent spouse is sucient to bar
alimony).]
D. Amount of Alimony
1. “In setting the amount of an alimony award, the trial court must do three things: deter-
mine the needs of the dependent spouse and the ability of the supporting spouse to
address those needs, compare income and expenses of both spouses and consider all
relevant factors, including those specically enumerated in [G.S.] 50-16.3A(b).” [Bryant
v.Bryant, 139 N.C. App. 615, 617, 534 S.E.2d 230, 231–32 (citing 2 Lee’s North Carolina
Family Law §9.22 (5th ed. 1999)), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000).]
2. “Alimony is ordinarily determined by a party’s actual income . . . at the time of the order”
based on evidence presented at the hearing. [See Burger v. Burger, 790 S.E.2d 683, 686
(N.C. Ct. App. 2016) (quoting Works v.Works, 217 N.C. App. 345, 347, 719 S.E.2d 218, 219
(2011)) (nding that husband was unemployed and had no monthly income at the time
of the hearing); Works, 217 N.C. App. at 347, 719 S.E.2d at 219 (quoting Kowalick v.Kow-
alick, 129 N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998)).] Extensive time between the
hearing and entry of the alimony order may raise concerns, especially if the evidence of
income at the hearing was not recent. [See Collins v.Collins, 778 S.E.2d 854, 858–59 (N.C.
Ct. App. 2015) (order entered in 2014 pursuant to a hearing in 2012, at which the trial
court considered evidence of the parties’ incomes for years 2007 to 2009, was reversed;
error to determine amount of dependent spouse’s shortfall by using dependent spouse’s
income ve to seven years prior to entry of the order).]
3. Alimony may be based on earning capacity rather than actual income if the court nds
that the party is deliberately depressing income in bad faith. For a discussion on imputing
income to a party who has acted in bad faith, see Section III.D.9.b.iii, below.
4. “e determination of what constitutes the reasonable needs and expenses of a party in an
alimony action is within the discretion of the trial judge, and he is not required to accept
at face value the assertion of living expenses oered by the litigants themselves.” [Nicks
v.Nicks, 774 S.E.2d 365, 376 (N.C. Ct. App. 2015) (quoting Whedon v.Whedon, 58 N.C.
App. 524, 529, 294 S.E.2d 29, 32 (1982)); Byrant v.Bryant, 139 N.C. App. 615, 618, 534
S.E.2d 230, 232 (citing Whedon), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000). See
also Bookholt v.Bookholt, 136 N.C. App. 247, 250, 523 S.E.2d 729, 731 (1999) (quoting
Whedon) (also noting that implicit in the judge’s discretion is that a “trial judge may resort
to his own common sense and every-day experiences in calculating the reasonable needs
and expenses of the parties”), superseded on other grounds by statute as stated in William-
son v.Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001); Harris v.Harris, 188 N.C.
App. 477, 485, 656 S.E.2d 316, 320 (2008) (quoting Bookholt “common sense” statement).]
5. Amount of alimony is question for judge. [Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653
(1982) (citing 2 Lee’s North Carolina Family Law §139 (4th ed. 1980)).] e court must
set out the reasons for the amount of alimony awarded. [G.S.50-16.3A(c) (requiring the
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court, if awarding alimony, to set forth the reasons for the amount of the award).] For
ndings as to amount of the award, see Section III.G.4.e, below.
6. An alimony award must be fair and just to all parties. [Quick v.Quick, 305 N.C. 446,
290 S.E.2d 653 (1982) (citing Beall v.Beall, 290 N.C. 669, 228 S.E.2d 407 (1976)); Swain
v.Swain, 179 N.C. App. 795, 635 S.E.2d 504 (2006) (citing Quick) (an award that required
both parties to deplete their estates to meet their living expenses was fair to both parties),
review denied, 361 N.C. 437, 649 S.E.2d 897 (2007).] See Section III.G.5.d, below, on fair-
ness and equity of the award.
7. Alimony means payment for support and maintenance of a spouse and does not mean
payment for the support and maintenance of a spouse’s business ventures. [Beaman
v.Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985) (where wife had business in her
home and had business expenses that duplicated her personal expenses, the trial court
was instructed to determine the extent of the duplication and to consider the duplication
when setting amount of alimony).]
8. An award of alimony must be based on the statutory requirements of G.S. 50-16.3A,
including the sixteen factors in G.S. 50-16.3A(b), set out in Section III.D.9, immediately
below, on which evidence is oered. [Collins v.Collins, 778 S.E.2d 854, 861 (N.C. Ct. App.
2015) (supporting spouse argued on appeal that the trial court erred when it tried to
achieve a “parity of income” between the parties with its alimony award instead of basing
the award on the requirements in G.S. 50-16.3A; appellate court agreed).]
9. In determining the amount, duration, and manner of payment of alimony, the court shall
consider all relevant factors, including:
a. e marital misconduct of either spouse. [G.S.50-16.3A(b)(1). See Section III.A.4,
above, for denition of marital misconduct and for case law on various categories of
misconduct.]
i. North Carolina courts have held that the purpose of alimony is to provide rea-
sonable support for the dependent spouse, not to punish the supporting spouse
or to divide the supporting spouse’s estate. [See Schloss v.Schloss, 273 N.C. 266,
160 S.E.2d 5 (1968) (alimony pendent lite), and Taylor v.Taylor, 26 N.C. App.
592, 216 S.E.2d 737 (1975) (citing Schloss).]
ii. e 1995 amendments to the alimony statutes replaced a “fault-based approach”
with a “needs-based” approach to alimony. Under the needs-based approach,
marital misconduct is only one factor considered when determining the amount
and duration of a potential alimony award. [Alvarez v.Alvarez, 134 N.C. App.
321, 517 S.E.2d 420 (1999).]
b. e relative earnings and earning capacities of the spouses. [G.S.50-16.3A(b)(2).]
i. Earning capacity generally.
(a) Earning capacity typically refers to earning capacity from working. [See
Honeycutt v.Honeycutt, 152 N.C. App. 673, 568 S.E.2d 260 (2002).]
(b) A court may properly consider the parties’ relative estates in evaluating the
earnings and earning capacities of the parties. [Swain v.Swain, 179 N.C.
App. 795, 635 S.E.2d 504 (2006) (citing Williams v.Williams, 299 N.C. 174,
261 S.E.2d 849 (1980)) (court properly considered the relative estates of the
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parties as well as their relative income and earning capacities in setting
amount of alimony), review denied, 361 N.C. 437, 649 S.E.2d 897 (2007).]
(c) A party’s earning capacity generally is not the type of undisputed fact that
is appropriate for judicial notice. [Khaja v.Husna, 777 S.E.2d 781, 792 (N.C.
Ct. App.) (wife’s earning capacity was contested; trial court erred when it
took judicial notice of Department of Labor statistics to nd that wife could
earn $99,540/year as an electrical engineer), appeal dismissed, 368 N.C.
605, 780 S.E.2d 757, appeal dismissed, petition for supersedeas dismissed,
368 N.C. 605, 781 S.E.2d 293 (2015).]
ii. A party’s earning capacity may be used to determine the appropriate amount
to award as alimony. [e “earning capacity” considered by the court as a factor
pursuant to G.S.50-16.3A(b)(2) is dierent than the “earning capacity” used
by the court when deciding whether to impute income. Earning capacity in the
latter context requires a nding of bad faith. See Section III.D.9.b.iii, below.]
(a) e trial court did not err in determining the amount of alimony to be
awarded to a dependent spouse by considering, among other things, the
dependent spouse’s earning capacity as a nurse of $42,767 per year, even
though it was likely that she would have to complete a refresher course.
[Bersin v.Golonka, 170 N.C. App. 436, 613 S.E.2d 752 (unpublished) (at
the time of trial, wife was certied and licensed to practice nursing in North
Carolina, had bachelor’s and master’s degrees in nursing, and had experi-
ence in the eld), review denied, 360 N.C. 60, 623 S.E.2d 578 (2005).]
(b) e earning capacity must not be too speculative, however. [See Rice v.Rice,
159 N.C. App. 487, 584 S.E.2d 317 (2003) (error to consider as part of the
wife’s income the potential rental income she could have earned from rent-
ing the North Carolina marital residence while she was living out of state
as a probationary employee at a new job; wife’s continued employment and
residence were uncertain); Gatlin v.Gatlin, 188 N.C. App. 164, 654 S.E.2d
833 (2008) (unpublished) (error to consider the earning potential of a
certicate of deposit when there was no evidence in the record to support a
nding that the certicate could produce a return of $300 per month).]
iii. While the alimony statute allows a court to consider a party’s earning capacity, a
trial court may not impute income to a party without rst nding that the party
is deliberately depressing income or indulging in excessive spending because of
disregard of a marital support obligation. [See Works v.Works, 217 N.C. App.
345, 347, 719 S.E.2d 218, 219 (2011) (quoting 2 Lee’s North Carolina Family
Law §9.26 (5th ed. 1999)) (in the context of alimony, bad faith means that “the
spouse is not living up to income potential in order to avoid or frustrate the
support obligation” or that a spouse has “the intent to avoid reasonable support
obligations, from evidence that a spouse has refused to seek or to accept gainful
employment; willfully refused to secure or take a job; deliberately not applied
himself or herself to a business or employment; [or] intentionally depressed
income to an articial low”); Carpenter v.Carpenter, 781 S.E.2d 828 (N.C. Ct.
App. 2016) (citing Works) (when trial court’s calculation of wife’s income at
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$130,000/year was not based on evidence presented at trial, which was that wife
earned between $40,000 to $50,000/year, trial court must have imputed income
to wife, which was error without nding that she had depressed her income in
bad faith); Nicks v.Nicks, 774 S.E.2d 365, 377 (N.C. Ct. App. 2016) (quoting “not
living up to” language from Works set out above); Beall v.Beall, 290 N.C. 669,
228 S.E.2d 407 (1976); Spencer v.Spencer, 70 N.C. App. 159, 171, 319 S.E.2d
636, 645 (1984) (to impute income, a trial court must nd that the “reduction
in income was primarily motivated by a desire to avoid . . . reasonable support
obligations”).]
iv. A trial court may, in some circumstances, average a parent’s prior income with-
out “imputing” income to that parent. [See Zurosky v.Shaffer, 236 N.C. App. 219,
763 S.E.2d 755 (2014) (citing Diehl v.Diehl, 177 N.C. App. 642, 630 S.E.2d 25
(2006)) (when determining father’s income for alimony and child support pur-
poses, trial court used father’s net income from 2003–2008 to determine father’s
actual income in 2013; determination of income upheld when trial court found
father’s reported income was not credible; ndings in support of unreliability
of father’s evidence included that father overstated his monthly tax payments,
contended that he operated at a signicant decit each month, failed to report
signicant expenditures, and presented conicting evidence as to his postsepa-
ration work habits).]
v. e court of appeals has held that the 1995 amendments to the alimony stat-
utes did not change the earning capacity rule. [See Wolf v.Wolf, 151 N.C. App.
523, 527, 566 S.E.2d 516, 519 (2002) (the “dispositive issue is whether a party
is motivated by a desire to avoid his reasonable support obligation”); Megremis
v.Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006) (citing Conrad v.Conrad,
252 N.C. 412, 113 S.E.2d 912 (1960)) (acknowledging well-established rule that
a trial court may impute income only upon nding that the party acted in bad
faith).]
vi. Courts most frequently impute income to a supporting spouse.
(a) e rule allowing an award of alimony to be based upon the supporting
spouse’s ability to earn, as distinguished from his actual income, “seems to
be applied only when it appears from the record that there has been a delib-
erate attempt on the part of the supporting spouse to avoid his nancial
family responsibilities by refusing to seek or to accept gainful employment;
by willfully refusing to secure or take a job; by deliberately not applying
himself to his business; by intentionally depressing his income to an arti-
cial low; or by intentionally leaving his employment to go into another
business.” [Bowes v.Bowes, 287 N.C. 163, 171–72, 214 S.E.2d 40, 45 (1975)
(evidence before the trial court was insucient to support an award based
on earning capacity rather than actual earnings); Wolf v.Wolf, 151 N.C.
App. 523, 566 S.E.2d 516 (2002) (citing Bowes and the above-listed factors
and adding as factors that the supporting spouse failed to exercise his rea-
sonable capacity to earn, deliberately avoided his family’s nancial respon-
sibilities, and acted in deliberate disregard for his support obligations);
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Juhnn v.Juhnn, 775 S.E.2d 310 (N.C. Ct. App. 2015) (citing Wolf and the
eight factors set out therein).]
(b) Before imputing income, the nder of the fact must have before it sucient
evidence of the proscribed intent. [Bowes v.Bowes, 287 N.C. 163, 214 S.E.2d
40 (1975); Wachacha v.Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978)
(citing Bowes); Wolf v.Wolf, 151 N.C. App. 523, 566 S.E.2d 516 (2002)
(citing Wachacha).]
(c) Upon a nding of bad faith, a court may impute income when determining
an initial award of alimony and when considering a motion to modify an
alimony award. [Wachacha v.Wachacha, 38 N.C. App. 504, 248 S.E.2d 375
(1978).]
(d) It is error to impute income to a supporting spouse without a nding of bad
faith or when the nding of bad faith is not supported by competent evi-
dence. See Sections III.G.3.b.vi, vii, below.
vii. While income is most frequently imputed to a supporting spouse, there may be
circumstances where it would be appropriate to impute income to a dependent
spouse upon a nding of bad faith. [See Works v.Works, 217 N.C. App. 345, 347,
719 S.E.2d 218, 219 (2011) (quoting 2 Lee’s North Carolina Family Law §9.26
(5th ed. 1999)) (noting that in the context of alimony, “[b]ad faith for the depen-
dent spouse means shirking the duty of self-support. . . .”); Burger v. Burger,
790 S.E.2d 683 (N.C. Ct. App. 2016) (no abuse of discretion when trial court
imputed minimum wage income to dependent spouse who acted in bad faith
by exhibiting a naïve indierence toward his self-support and toward his duty
of support for his children); Brown v.Brown, 192 N.C. App. 734, 666 S.E.2d 217
(2008) (unpublished) (considering whether to impute income to a dependent
spouse for the fair market value of a basement apartment occupied rent-free by
emancipated son; because there was no nding of bad faith on the part of the
dependent spouse, decision not to impute $600/month to the dependent spouse
as income armed); 2 Lee’s North Carolina Family Law §9.26 (5th ed. 1999)
(noting that in context of alimony, requirement of a nding of bad faith before
imputing income is applicable to both dependent and supporting spouses).]
(a) It was error to impute income to the dependent spouse based on a nding
that she “has the ability to earn at least minimum wage” without rst nd-
ing that she had depressed her income in bad faith. [Works v.Works, 217
N.C. App. 345, 347, 719 S.E.2d 218, 219 (2011) (citing 2 Lee’s North Caro-
lina Family Law §9.26 (5th ed. 1999)) (even though court made ndings on
wife’s limited recent work experience and her failure to complete training
needed for her brief pursuits in real estate and in a clerical setting, without
a nding of bad faith, ndings were not sucient to support trial court’s
decision to impute income to wife); Carpenter v.Carpenter, 781 S.E.2d 828
(N.C. Ct. App. 2016) (citing Works) (when trial court’s calculation of wife’s
income at $130,000/year was not based on evidence presented at trial,
which was that wife earned between $40,000 to $50,000/year, trial court
must have imputed income to wife, which was error without nding that
she had depressed her income in bad faith).]
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c. e ages and the physical, mental, and emotional conditions of the spouses.
[G.S.50-16.3A(b)(3). See Brandt v.Brandt, 92 N.C. App. 438, 374 S.E.2d 663 (1988)
(in case considering child support, mother’s medical condition prevented meaningful
employment), aff’d per curiam, 325 N.C. 429, 383 S.E.2d 656 (1989); Burger v. Burger,
790 S.E.2d 683, 686 (N.C. Ct. App. 2016) (even though husband “would be at a disad-
vantage for employment prospects due to his health,” husband was able to work and
earn minimum wage).]
d. e amount and sources of earned and unearned income of both spouses, including,
but not limited to, earnings, dividends, and benets such as medical, retirement,
insurance, Social Security, or others. [G.S.50-16.3A(b)(4).]
i. In determining income, the trial court must include a party’s total income, undi-
minished by savings contributions or income automatically reinvested. [Bryant
v.Bryant, 139 N.C. App. 615, 534 S.E.2d 230 (interpreting rst part of holding in
Glass v.Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998), to require that income
invested in retirement accounts and dividends being automatically reinvested
be included in income), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000);
Friend-Novorska v.Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998) (must
include investment income that is automatically reinvested); Glass (must include
deferred compensation and contributions to 401K accounts); Parsons v.Parsons,
231 N.C. App. 397, 752 S.E.2d 530 (2013) (interest and dividend income, gener-
ated by investment account and distributed to wife monthly as her sole source
of income, properly used to determine wife’s gross monthly income; passive
appreciation in the value of the investment account, approximately $4,500/
month over relevant three-year period, not treated as income to wife, and hus-
band’s argument that wife should use this amount to supplement her income
was rejected; trial court properly considered the total value of the investment
account, including passive appreciation of $4,500/month, in the estimate of
wife’s estate).]
ii. As gross income includes earned and unearned income, the court must include
employer-paid benets such as life insurance, car allowance, and IRA contri-
butions. [Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000); Clark
v.Clark, 231 N.C. App. 514, 753 S.E.2d 743 (2013) (unpublished) (calculation
of defendant’s gross annual income properly included income from the sale of
stock).]
iii. Income does not include amount received as postseparation support (PSS), as
PSS is not permanent income. [Carpenter v.Carpenter, 781 S.E.2d 828 (N.C. Ct.
App. 2016).]
iv. Award of alimony vacated when trial court made no ndings with respect to
wife’s medical benets or potential income from her IRA, although evidence
of these additional sources of income was presented at the hearing. [Phillips
v.Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff ’d per curiam, 362 N.C.
171, 655 S.E.2d 350 (2008). See also Phillips v.Phillips, 206 N.C. App. 330, 698
S.E.2d 557 (2010) (unpublished) (award vacated on remand when trial court
made a nding as to only one of two IRA accounts of wife; court also found that
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wife had employer-paid health insurance but made no nding as to value of that
benet).]
v. Tax refunds and sporadic bonuses are not to be included in the calculation of
regular income. [Williamson v.Williamson, 217 N.C. App. 388, 719 S.E.2d 625
(2011) (citing Edwards v.Edwards, 102 N.C. App. 706, 403 S.E.2d 530 (1991))
(trial court improperly included defendant’s tax refund as a part of her regular
income). Cf. Burger v. Burger, 790 S.E.2d 683 (N.C. Ct. App. 2016) (trial court
properly included supporting spouse’s 2014 bonus in her average gross monthly
income when evidence established that wife had consistently received bonuses
for the past four years and wife had included the bonus in the monthly gross
income listed in her nancial adavit and in a loan application; court of appeals
distinguished Williamson based on the lack of evidence in that case that defen-
dant’s tax refund “constituted regular income”).]
vi. Closely held or Subchapter S corporation.
(a) Trial court did not err in ordering supporting spouse to pay alimony based
on his annual salary of $200,000, plus additional alimony of 50 percent of
any bonuses received, capped by the dependent spouse’s reasonable needs
at the time of trial, which trial court found to be $97,608 annually. [Webb
v.Webb, 207 N.C. App. 526, 700 S.E.2d 248 (2010) (unpublished) (noting
that defendant supporting spouse worked for a closely held family corpo-
ration where he had substantial input as to his own compensation and that
amount ordered as alimony resulted in a shortfall for dependent spouse,
making order for sharing of any bonuses reasonable), review denied, 365
N.C. 211, 709 S.E.2d 924 (2011).]
(b) Money a party received from corporations in which he had an interest,
which was separate from the salary paid by the party’s employer, properly
included as income to party and not subject to being discounted because
it was funneled rst through the corporations. [Webb v.Webb, 207 N.C.
App. 526, 700 S.E.2d 248 (2010) (unpublished) (monthly income defendant
received from two entities in which he owned 99 percent and 50 percent
interests properly considered income to defendant), review denied, 365
N.C. 211, 709 S.E.2d 924 (2011). See also Cooper v.Cooper, 150 N.C. App.
713, 564 S.E.2d 319 (2002) (unpublished) (not paginated on Westlaw) (trial
court properly found that defendant’s income was substantially higher than
the gross annual income reported on his W-2 statement; evidence showed
that defendant derived income from a corporation he solely owned, in addi-
tion to his annual salary, in the form of a car, funds received as repayment
of a “shareholder’s loan,” and nonemployee compensation paid to the “other
woman”).]
(c) e trial court properly considered the nancial benets defendant
received from his solely-owned company, such as health insurance, use of
a vehicle, and reimbursed living expenses, when calculating the amount of
alimony owed to plainti. [Walker v.Walker, 143 N.C. App. 414, 546 S.E.2d
625 (2001).]
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(d) Trial court can consider expenditures on behalf of the supporting spouse
when determining income available to pay alimony. [Ahern v.Ahern, 63
N.C. App. 728, 306 S.E.2d 140 (1983) (alimony award of $25,000 a year
upheld, even though husband’s salary from drug company that he owned
was $31,000 a year, where evidence showed that the company paid for many
of the couple’s living and other expenses).]
(e) Finding that defendant’s monthly earned income was greater than shown
in defendant’s nancial adavit upheld, even though “problematic,”
because income from defendant’s consulting business structured as a
Subchapter S corporation uctuated yearly and included periods of unem-
ployment. [Dorwani v.Dorwani, 214 N.C. App. 560, 714 S.E.2d 868 (2011)
(unpublished).]
(f) Act of supporting spouse in pledging cash reserves of his Subchapter S cor-
poration to a bank, thus precluding those funds from being income to him,
improperly placed the burden of his voluntarily-assumed business invest-
ment on the dependent spouse. [Barham v.Barham, 127 N.C. App. 20, 487
S.E.2d 774 (1997), aff ’d per curiam, 347 N.C. 570, 494 S.E.2d 763 (1998).]
vii. Income includes true severance pay. e court of appeals has cited the A-
H D (2d ed. 1982) denition of “severance pay” as “a
sum of money usually based on length of employment for which an employee is
eligible upon termination.” [Glass v.Glass, 131 N.C. App. 784, 789, 509 S.E.2d
236, 239 (1998) (to determine to what extent the pay is true severance pay, trial
court should use the analytic approach, which asks what the award was intended
to replace). Cf. Ross v.Ross, 193 N.C. App. 247, 666 S.E.2d 889, (2008) (unpub-
lished) (citing Glass) (lump sum payment from corporate employer to wife was
not income to wife when payment was made in consideration of her early retire-
ment from an employer in the process of merger; noting in footnote 1 that when
a lump sum payment is not based on the length of a spouse’s employment but is
made, rather, in exchange for the spouse’s waiver of certain rights, the payment
is not included in the spouse’s income for purposes of determining the amount
and duration of an alimony award), review dismissed, 363 N.C. 656, 685 S.E.2d
105 (2009).]
e. e duration of the marriage. [G.S.50-16.3A(b)(5).]
f. e contribution by one spouse to the education, training, or increased earning
power of the other spouse. [G.S.50-16.3A(b)(6).]
g. e extent to which the earning power, expenses, or nancial obligations of
a spouse will be aected by reason of serving as custodian of a minor child.
[G.S.50-16.3A(b)(7).]
i. Enactment of G.S.50-16.3A(b)(7) mandates that trial courts consider the
expenses and nancial obligations related to serving as a custodian of a minor
child when setting the amount and duration of an alimony award. [Harris
v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008).]
ii. Where court in postseparation support order considered wife’s expenses as
custodian and calculated her reasonable housing expenses in part on the receipt
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of child support, attributing one-half of housing expenses to wife and other half
to child, trial court in alimony modication proceeding was within its discretion
when it considered the cessation of child support payments and when it, given
the “limited circumstances” of the case, increased husband’s alimony obliga-
tion accordingly. [Harris v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008)
(increase in alimony award armed but appellate court careful to note that it
was not holding that cessation of child support would always provide adequate
grounds to warrant modication of an alimony award); Hunt v.Hunt, 233 N.C.
App. 785, 759 S.E.2d 712 (unpublished) (trial court did not impermissibly blur
line between child support and alimony when it ordered $800/month in alimony
to wife until children no longer attended private school, at which time alimony
payable to wife would be increased by the cost of private school tuition), review
denied, 367 N.C. 524, 762 S.E.2d 443 (2014).]
iii. While this factor allows the court to consider the expenses of the custodial
parent relating to the child when determining dependency for alimony, fairness
requires that the court consider the noncustodial parent’s contributions in a like
manner. [Robinson v.Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011) (citing
Fink v.Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995)) (father was credited only
with guideline amount of child support while mother, the custodial parent, was
credited with her actual expenses for the child, which increased her monthly
shortfall and father’s alimony obligation; alimony award vacated so that alimony
could be determined based upon mother’s shortfall after paying only her guide-
line share of the child’s expenses).]
h. e standard of living of the spouses established during the marriage.
[G.S.50-16.3A(b)(8).]
i. is factor is of “critical importance” in determining amount as well as depen-
dency. [Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).]
ii. e point in evaluating the parties’ accustomed standard of living is to consider
the pooling of resources that marriage allows. [Rice v.Rice, 159 N.C. App. 487,
584 S.E.2d 317 (2003).]
iii. Marital standard of living is one of the factors the court takes into consideration
in calculating the reasonable expenses of each party. [Bryant v.Bryant, 139 N.C.
App. 615, 534 S.E.2d 230 (noting, however, as a practical matter, that the parties’
reasonable expenses and their standard of living are two separate and distinct
considerations), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000).]
iv. A trial court may consider accustomed pattern of savings during the mar-
riage when determining the parties’ standard of living. [Vadala v.Vadala, 145
N.C. App. 478, 550 S.E.2d 536 (2001) (citing Rhew v.Rhew, 138 N.C. App. 467,
531 S.E.2d 471 (2000), and Glass v.Glass, 131 N.C. App. 784, 509 S.E.2d 236
(1998)); Rhew (parties had a “historical pattern” of savings contribution); Glass
(trial court can properly consider parties’ custom of making regular additions
to savings plans as a part of their standard of living in determining amount
and duration of alimony award).] However, “the purpose of alimony is not to
allow a party to accumulate savings.” [Glass v.Glass, 131 N.C. App. 784, 789,
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509 S.E.2d 236, 239–40 (1998); Collins v.Collins, 778 S.E.2d 854, 860 (N.C. Ct.
App. 2015) (trial court erred when it sua sponte added a lump sum gure to an
alimony award “to allow Plainti to accumulate savings” without nding that
the parties had a habit of regularly contributing to savings as part of their stan-
dard of living during the marriage).] e marital pattern of savings also may be
considered as a reasonable expense of a party. See Section III.D.9.j.v, discussing
this factor, below. Contributions to savings must be considered in calculating a
party’s total income. See Section III.D.9.d, above.
v. A spouse seeking alimony should not be required to deplete her estate to main-
tain her accustomed standard of living. [Williams v.Williams, 299 N.C. 174, 261
S.E.2d 849 (1980) (noting that, similarly, requiring a supporting spouse, through
depletion of the supporting spouse’s estate, to maintain the dependent spouse
at the standard of living to which they were accustomed could soon lead to the
supporting spouse’s inability to provide for either party).]
vi. An alimony award should not result in a higher standard of living for the
dependent spouse. [Dodson v.Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008)
(unclear whether move of the dependent spouse from manufactured housing in
North Carolina during the marriage to a three-bedroom rental home in South
Carolina after the marriage increased her standard of living, but if so, support-
ing spouse should not bear increased expense); Kelly v.Kelly, 167 N.C. App. 437,
606 S.E.2d 364 (2004) (by statute, trial court is to consider the parties’ “accus-
tomed standard of living,” not the potential standard of living).]
vii. Trial court properly considered that wife intended to use her condominium as a
home for her mother until the mother’s death, even though the mother had no
life estate or legal right to remain there. [Phillips v.Phillips, 185 N.C. App. 238,
647 S.E.2d 481 (2007) (the nding spoke to the wife’s need for more space to
maintain the standard of living to which she had become accustomed during the
last several years prior to separation), aff’d per curiam, 362 N.C. 171, 655 S.E.2d
350 (2008).]
i. e relative education of the spouses and the time necessary to acquire sucient
education or training to enable the spouse seeking alimony to nd employment to
meet his reasonable economic needs. [G.S.50-16.3A(b)(9).]
j. e relative assets and liabilities of the spouses and the relative debt service require-
ments of the spouses, including legal obligations of support. [G.S.50-16.3A(b)(10).]
i. e court’s comparison of the spouses’ income and expenses is one of the most
important considerations in setting the amount of the alimony award. [Bryant
v.Bryant, 139 N.C. App. 615, 534 S.E.2d 230 (citing 2 Lee’s North Carolina Fam-
ily Law §9.22 (5th ed. 1999)), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000).]
ii. Expenses for emancipated children.
(a) A supporting spouse’s reasonable expenses do not include mortgage pay-
ments and fees on an adult child’s condominium that the supporting spouse
is under no legal obligation to provide, nor do they include the expenses of
the supporting spouse’s current spouse. [Martin v.Martin, 207 N.C. App.
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121, 698 S.E.2d 491 (2010) (supporting spouse’s request to decrease his
alimony obligation properly denied).]
(b) Trial court abused its discretion by including in defendant supporting
spouse’s reasonable expenses payments for vehicles driven by two of the
parties’ children, both of whom had reached majority, and rent payments,
for which he was contractually liable, for an apartment for one of the chil-
dren. Defendant’s assumption of those obligations, which was voluntary
and not out of necessity, could not be used to reduce his income, and thus
his obligation to his dependent spouse. [Kelly v.Kelly, 151 N.C. App. 748,
567 S.E.2d 468 (2002) (unpublished); Clark v.Clark, 231 N.C. App. 514,
753 S.E.2d 743 (2013) (unpublished) (trial court properly declined to
include in defendant’s reasonable monthly expenses a monthly payment of
$1,000 on credit card debt totaling $56,000, which the trial court found was
incurred in part to nance a son’s college education; even if court erred in
nding that the credit card debt arose from tuition payments, defendant
failed to produce evidence that the payments were reasonable and neces-
sary expenses when he presented no direct testimony or other evidence
setting out the expenses that made up the credit debt).]
(c) e trial court did not err when it decided not to attribute half of a depen-
dent spouse’s monthly mortgage and utility expenses to her emancipated
son who lived in a basement apartment rent-free. [Brown v.Brown, 192
N.C. App. 734, 666 S.E.2d 217 (2008) (unpublished) (trial court did not
abuse its discretion when it indicated that it had considered the son’s
temporary living arrangements but nevertheless found the expenses of the
dependent spouse for those categories reasonable and necessary).] NOTE:
As noted by the court of appeals, this case considered whether a spouse’s
expenses should be reduced because an emancipated child lived with the
spouse, as opposed to the above cases, where the court was considering
whether a spouse’s expenses should include, or be increased, because of the
expenses the spouse incurred for an emancipated child.
iii. G.S. 50-16.3A(b)(10) does not require a recitation of the value of each of the
assets, liabilities, and debts of the parties. [Phillips v.Phillips, 185 N.C. App. 238,
647 S.E.2d 481 (2007), aff ’d per curiam, 362 N.C. 171, 655 S.E.2d 350 (2008).]
A trial court is not required to give an exact value to the dollar of a party’s total
estate. [Parsons v.Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013).] If the
evidence as to value is conicting, resolution of the conict, and the weight and
credibility of evidence, are for the trial court to determine. [Clark v.Clark, 231
N.C. App. 514, 753 S.E.2d 743 (2013) (unpublished) (when defendant submitted
a nancial statement to a bank that listed property valued at $150,000, defen-
dant’s argument that trial court should have reduced that value when determin-
ing his personal estate, based on his trial testimony, was rejected).] For ndings
that were sucient under this statute, see Section III.G.3.e, below.
iv. When considering the parties’ separate estates for purpose of alimony, the trial
court is to consider the value of the property within a reasonable time before or
after the commencement of an action seeking an award of permanent alimony.
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[See Clark v.Clark, 301 N.C. 123, 271 S.E.2d 58 (1980) (value of property during
this time frame is “a proper subject of inquiry” for the court; otherwise, it would
be dicult, if not completely impossible, to accurately assess the value of the
parties’ separate estates and make a fair determination of the ability of one
spouse to provide, and the need of the other spouse to receive, such an award at
the time the order is entered); Kelly v.Kelly, 151 N.C. App. 748, 567 S.E.2d 468
(2002) (unpublished) (citing Clark) (trial court erred in attributing to plainti
an estate consisting of 75 percent of the marital estate based on date-of-separa-
tion values, and erred in denying plainti alimony based in part on the value of
the property awarded to plainti in equitable distribution when the value was
based on the date of separation, some seven years before entry of the alimony
order).]
v. In calculating expenses, the trial court may include some amount reecting
the marital pattern of savings, if appropriate under the circumstances. [Bryant
v.Bryant, 139 N.C. App. 615, 534 S.E.2d 230 (citing Cunningham v.Cunning-
ham, 345 N.C. 430, 480 S.E.2d 403 (1997)) (no error in characterizing invest-
ment income, earned and reinvested during the course of the marriage, as an
expense), review denied, 353 N.C. 261, 546 S.E.2d 91 (2000).] e marital pattern
of savings also can be considered when determining the parties’ standard of
living. See Section III.D.9.h, discussing this factor, above. Also, a party’s sav-
ings contributions are considered in determining income. See Section III.D.9.d,
above.
vi. It is error to characterize investment income as an expense for one spouse but
not for the other. [Bryant v.Bryant, 139 N.C. App. 615, 534 S.E.2d 230, review
denied, 353 N.C. 261, 546 S.E.2d 91 (2000).]
vii. A supporting spouse may not intentionally increase his monthly expenditures by
making unnecessary capital expenditures to avoid or minimize his alimony obli-
gation to the dependent spouse. [Friend-Novorska v.Novorska, 131 N.C. App.
867, 509 S.E.2d 460 (1998) (court cannot consider future unnecessary expendi-
tures that the supporting spouse desires to make, such as a new car, when deter-
mining amount of alimony).] However, it is appropriate for a trial court to make
ndings on, and to consider, reasonable future expenses in awarding or modify-
ing alimony, including those relating to upkeep of the former marital residence.
[Parsons v.Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013) (wife’s adavit
and testimony as to future expected costs for home maintenance and repair sup-
ported award of $198/month for those expected expenses).]
viii. In determining a spouse’s reasonable and necessary living expenses, the trial
court should consider contributions of others if those contributions are reliable
and used for household support. [Dodson v.Dodson, 190 N.C. App. 412, 660
S.E.2d 93 (2008) (trial court erred in not making ndings about rental payments
the dependent spouse received from her adult children who resided with her).]
ix. In determining wife’s medical expenses, the trial court did not err when it
included expenses related to a surgical procedure without nding that it
would be a reoccurring expense. Past medical expenses are a valid factor in
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determining future needs. [Clark v.Clark, 231 N.C. App. 514, 753 S.E.2d 743
(2013) (unpublished).]
x. Alimony should not include payment for the support and maintenance of a
spouse’s business ventures. [Beaman v.Beaman, 77 N.C. App. 717, 336 S.E.2d
129 (1985) (where wife had business in her home and had business expenses that
duplicated her personal expenses, trial court was instructed to determine the
extent of the duplication and consider the duplication when setting amount of
alimony); Barham v.Barham, 127 N.C. App. 20, 28, 487 S.E.2d 774, 779 (1997)
(citing Beaman) (stating that “[j]ust as a supporting spouse is not required to
pay for the maintenance and support of a dependent spouse’s business ventures,
a dependent spouse also should not be made to bear the nancial burden of a
supporting spouse’s business investment”; thus, in determining alimony, it was
error to exclude from supporting spouse’s income cash reserves of his Sub-
chapter S corporation that he voluntarily pledged to a creditor bank), aff ’d per
curiam, 347 N.C. 570, 494 S.E.2d 763 (1998).]
xi. Ordinarily, the parties will not be required to deplete their estates to pay ali-
mony or to meet personal expenses. [Williams v.Williams, 299 N.C. 174, 261
S.E.2d 849 (1980); Beaman v.Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985)
(citing Williams).]
xii. A spouse cannot be reduced to poverty in order to comply with an alimony
decree. [Quick v.Quick, 305 N.C. 446, 457, 290 S.E.2d 653, 660 (1982) (based
on the limited ndings as to the supporting spouse’s estate, it appeared to the
appellate court that the trial court abused its discretion when it found that hus-
band “can aord” to pay as alimony more than half of his monthly income when,
given his expenses, he would deplete his estate in ve years). See also Dodson
v.Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008) (court abused its discretion
when the modied alimony payment it ordered left the husband with a nega-
tive cash ow); Hudson v.Hudson, 193 N.C. App. 454, 667 S.E.2d 340 (2008)
(unpublished) (depletion of defendant’s estate was not speculative but certain
and would reduce him to poverty if continued, warranting reversal of alimony
order; defendant had an income-expense decit before alimony was considered,
and even though plainti also had an income-expense decit, defendant was
currently depleting his already substantially diminished estate at a rate three
times faster than plainti).]
xiii. But appellate courts have upheld alimony awards that left supporting spouses
with a shortfall or very limited funds when the evidence showed that the sup-
porting spouse received other substantial nancial benets. [Walker v.Walker,
143 N.C. App. 414, 546 S.E.2d 625 (2001) (trial court properly considered ben-
ets defendant received from his solely-owned company, such as health insur-
ance, use of a vehicle, and reimbursed living expenses); Ahern v.Ahern, 63 N.C.
App. 728, 306 S.E.2d 140 (1983) (evidence showed that plainti’s real earnings
and income from his company greatly exceeded his designated salary).]
k. e property brought to the marriage by either spouse. [G.S.50-16.3A(b)(11).]
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l. e contribution of a spouse as homemaker. [G.S.50-16.3A(b)(12).]
i. is was an unfavorable factor to a wife whose “ability to be a homemaker [wa]s
in question as a result of the condition of the home.” A nding that wife had
hoarded items, accumulated a tremendous amount of clutter, and kept the for-
mer marital residence in total disarray was unchallenged. [Works v.Works, 217
N.C. App. 345, 351, 719 S.E.2d 218, 221 (2011).]
m. e relative needs of the spouses. [G.S.50-16.3A(b)(13).]
i. A “trial judge may resort to his own common sense and every-day experiences
in calculating the reasonable needs and expenses of the parties.” [Cunningham
v.Cunningham, 171 N.C. App. 550, 564, 615 S.E.2d 675, 685 (2005) (quoting
Bookholt v.Bookholt, 136 N.C. App. 247, 250, 523 S.E.2d 729, 732 (1999)).]
ii. It is appropriate for a trial court to make ndings on, and to consider, reasonable
future expenses in awarding or modifying alimony, including those relating to
upkeep of the former marital residence. [Parsons v.Parsons, 231 N.C. App. 397,
752 S.E.2d 530 (2013).]
iii. e trial court did not err by making certain reductions to the monthly expenses
husband claimed in his adavit. [Cunningham v.Cunningham, 171 N.C. App.
550, 615 S.E.2d 675 (2005) (rejecting husband’s argument that reductions in
expenses for cable, vacations, phone, food, gifts, and clothing were arbitrary).
See also Nicks v.Nicks, 774 S.E.2d 365 (N.C. Ct. App. 2015) (reduction of wife’s
monthly adavit expenses by $1,750 upheld based on nding that claimed
expenses for upkeep and maintenance on the home and savings for child, vaca-
tions, and a car were not reasonable); Clark v.Clark, 231 N.C. App. 514, 753
S.E.2d 743 (2013) (unpublished) (when nancial adavit that defendant led
with the court listed a $250/month warehouse debt but nancial statement that
defendant submitted to a bank did not, trial court did not have to include that
debt in defendant’s reasonable monthly expenses).]
iv. When a court exercises its common sense and experience to reduce a party’s
expenses, it must provide some explanation as to how it calculated the parties’
incomes and expenses. [Fennell v.Fennell, 206 N.C. App. 329, 698 S.E.2d 557
(2010) (unpublished) (citing Bookholt v.Bookholt, 136 N.C. App. 247, 250, 523
S.E.2d 729, 731 (1999)) (case remanded for ndings when trial court failed to
indicate how it arrived at a monthly expense gure lower than that claimed by
defendant in his adavit).]
v. Trial court abused its discretion by including in defendant supporting spouse’s
reasonable expenses payments for vehicles driven by two of the parties’ chil-
dren, both of whom had reached majority, and rent payments, for which he was
contractually liable, for one of the children. Defendant’s assumption of those
obligations, which was voluntary and not out of necessity, could not be used to
increase his expenses. [Kelly v.Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (2002)
(unpublished).]
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n. e federal, state, and local tax ramications of the alimony award.
[G.S.50-16.3A(b)(14).]
i. Appellate courts have upheld consideration of the income tax consequences
of an award of alimony. [Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156
(2006) (citing Clark v.Clark, 301 N.C. 123, 271 S.E.2d 58 (1980)) (no abuse of
discretion when court considered that dependent spouse’s combined tax rate
would be 15 percent). See also Clark (under prior law that did not include tax
consequences of an award of alimony as a factor, court held that tax conse-
quence of an alimony award is properly considered by a trial court in determin-
ing the amount of the award).]
ii. It is error to fail to make ndings on the tax ramications of an alimony award
when evidence is presented on the ramications. [Nicks v.Nicks, 774 S.E.2d 365,
378 (N.C. Ct. App. 2015) (dependent spouse presented expert testimony about
the federal and state tax ramications of various hypothetical alimony awards;
the expert did not testify as to the tax ramications on the amount of alimony
awarded to the dependent spouse, $3,000/month or $36,000/year, but made
clear that the dependent spouse would actually receive less than the amount
awarded as a result of state and federal income taxes; while the expert testimony
“does not necessarily require the trial court to increase its alimony award,” G.S.
50-16.3A(c) and (b)(14) require the trial court to support its reasoning with spe-
cic ndings; matter remanded).]
o. Any other factor relating to the economic circumstances of the parties that the court
nds to be just and proper. [G.S.50-16.3A(b)(15).]
i. Under this factor, a trial court was authorized to consider wife’s investment
portfolio when calculating the amount of an alimony award. [Francis v.Francis,
169 N.C. App. 442, 612 S.E.2d 141 (opinion does not set out any facts about the
investment portfolio), review denied, 359 N.C. 631, 616 S.E.2d 233 (2005).]
p. e fact that income received by either party was previously considered by the court
in determining the value of a marital or divisible asset in an equitable distribution
(ED) of the parties’ marital or divisible property. [G.S.50-16.3A(b)(16).]
i. G.S.50-16.3A(b)(16) directs the trial court to consider ED as a factor for
consideration. [Myers v.Myers, 177 N.C. App. 462, 628 S.E.2d 867 (2006)
(unpublished) (where ndings of fact in order awarding alimony failed to men-
tion plainti’s receipt in ED of $100,000 and fact that she retained $73,000 at the
time of trial, matter was remanded for specic ndings on this factor). Cf. Rhew
v.Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000) (in determining dependency,
it was error for a court to “speculate” about the results of the parties’ pending
ED when there was no evidence presented as to the likely outcome).]
ii. For discussion on the relationship of alimony to ED, see Section III.B.7, above.
E. Duration of the Award
1. Alimony may be ordered for a specied or an indenite term. [G.S.50-16.1A(1).]
2. e court must set out the reasons for the duration of an alimony award. It is error not to
do so. [G.S.50-16.3A(c) (requiring the court to set forth the reasons for the duration of
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an award of alimony); Nicks v.Nicks, 774 S.E.2d 365, 376 (N.C. Ct. App. 2015) (emphasis
in original) (trial court erred when it failed to make sucient ndings of fact to support
an award of permanent alimony to wife; on remand the trial court must weigh certain
competing factors “in reaching and explaining its decision on the duration of the alimony
award”); Works v.Works, 217 N.C. App. 345, 719 S.E.2d 218 (2011) (error to order ali-
mony for eighty-four consecutive months without setting forth reasons for that duration);
Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006) (case remanded for ndings
on duration when court ordered alimony paid until death of a party or until wife’s remar-
riage or cohabitation but failed to make ndings about the reasons for that duration);
Friend-Novorska v.Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998) (error to limit
alimony award to thirty months in duration without explaining why).] For ndings as to
duration of the award, see Section III.G.4.f, below.
3. Eective date of alimony award.
a. Trial judge appears to have discretion to determine eective date of an alimony
award.
b. An award of alimony may be eective from the date of separation. [Smallwood
v.Smallwood, 227 N.C. App. 319, 742 S.E.2d 814 (2013) (arming award of alimony
from date of separation to date postseparation support (PSS) payments began, and
from date PSS payments terminated; rejecting defendant’s argument that 1995
changes to alimony statute preclude award of retroactive alimony); Stickel v.Stickel,
58 N.C. App. 645, 294 S.E.2d 321 (1982) (upholding lump sum award of alimony for
eighteen-month period from date of separation to date of hearing). See also 2 Lee’s
North Carolina Family Law §9.50 (5th ed. 1999) and cases cited therein; Austin
v.Austin, 12 N.C. App. 390, 393, 183 S.E.2d 428, 430 (1971) (noting that a dependent
spouse may recover support “not only from the time she instituted her action, but
from the time her husband wrongfully separated himself from her”).]
c. An award of alimony may be eective the month after a claim for alimony was made.
[Burger v. Burger, 790 S.E.2d 683 (N.C. Ct. App. 2016) (husband’s answer in Decem-
ber 2010 asserted claim for alimony; order entered in August 2015 awarding husband
alimony eective Jan. 1, 2011, upheld).]
d. An award ordering alimony to begin some two years after the ling of the complaint
has been upheld. [Francis v.Francis, 169 N.C. App. 442, 612 S.E.2d 141 (complaint
seeking alimony led in May 2000, order for alimony entered in November 2003
providing that monthly alimony payments would begin in June 2003; opinion gives
no reasons for denying alimony for period between ling of the complaint and start
of alimony payments), review denied, 359 N.C. 631, 616 S.E.2d 233 (2005).]
4. For more on ndings generally, see Section III.G.2, below.
F. Defenses
1. Waiver.
a. A party cannot waive alimony in a postnuptial agreement unless it is a separa-
tion agreement, or, for agreements entered on or after June 19, 2013, unless the
waiver is made in an agreement executed during a period of separation pursuant to
G.S.52-10(a1).
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b. Waiver by marital contract generally.
i. Alimony, postseparation support, and attorney fees may be barred by an express
provision in a valid separation agreement, premarital agreement, or marital con-
tract made pursuant to G.S.52-10(a1) so long as the agreement is performed.
[G.S.50-16.6(b), amended by S.L. 2013-140, §2, eective June 19, 2013 (amend-
ment added reference to G.S.52-10(a1)); Napier v.Napier, 135 N.C. App. 364,
367, 520 S.E.2d 312, 314 (1999) (citing dictionary denition of “express” to mean
“[d]enitely and explicitly stated. . . . [p]articular; specic”), review denied, 351
N.C. 358, 543 S.E.2d 132 (2000).]
c. Waiver by contract pursuant to G.S.52-10(a1).
i. For contracts entered into on or after June 19, 2013, spouses who are separated
but contemplating reconciliation may provide for support rights or for the
waiver of support rights that will apply upon the occasion of any future sepa-
ration. [G.S.52-10(a1).] is statute does not authorize agreements regarding
support rights and obligations while the parties live together as husband and
wife. [See In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989) (recog-
nizing that the state supreme court in Motley v.Motley, 255 N.C. 190, 120 S.E.2d
422 (1961), established as public policy that married parties may not shirk their
spousal duties of support and alimony and yet live together as a married couple),
aff’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).]
ii. A contract between a husband and wife made, with or without a valuable con-
sideration, during a period of separation to waive, release, or establish rights and
obligations to postseparation support, alimony, or spousal support is valid and
not inconsistent with public policy. [G.S.52-10(a1), added by S.L. 2013-140, §1,
eective June 19, 2013.]
iii. A provision in a contract between a husband and wife waiving, releasing, or
establishing rights and obligations to postseparation support, alimony, or spou-
sal support shall remain valid following a period of reconciliation and subse-
quent separation if the contract is in writing, the provision waiving the rights or
obligations is clearly stated in the contract, and the contract was acknowledged
by both parties before a certifying ocer. [G.S.52-10(a1), added by S.L. 2013-
140, §1, eective June 19, 2013.]
iv. A release made pursuant to G.S.52-10(a1) may be pleaded in bar of any action
or proceeding for the recovery of the rights released. [G.S.52-10(a1), added by
S.L. 2013-140, §1, eective June 19, 2013.]
d. Case law on waiver.
i. e waiver provision must specically refer to alimony. A general release will
not be sucient. [Napier v.Napier, 135 N.C. App. 364, 365–66, 366, 520 S.E.2d
312, 313 (1999) (emphasis in original) (blanket release of “all causes of action,
claims, rights or demands whatsoever, at law or in equity” did not release or set-
tle wife’s alimony claims since it did not specically refer to the waiver, release,
or settlement of “alimony” or use some other similar language; nor did language
that stated agreement was “an agreement settling their property and marital
rights” and that it was “in full satisfaction of all obligations which each of them
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now has or might hereafter or otherwise have toward the other”), review denied,
351 N.C. 358, 543 S.E.2d 132 (2000); Jones v.Jones, 162 N.C. App. 134, 590
S.E.2d 308 (2004) (citing Napier) (marital dissolution agreement entered into
after execution of a separation agreement, which contained no specic mention
of alimony or of statutory provisions regarding alimony, did not waive alimony
due wife under the separation agreement). But see Stewart v.Stewart, 141 N.C.
App. 236, 240, 541 S.E.2d 209, 212 (2000) (holding that a premarital agreement
that waived “any right or claim of any kind, character, or nature whatsoever” of a
spouse pursuant to G.S. Chapter 50 was suciently express to constitute a valid
waiver of postseparation support and alimony).]
ii. Any waivers or agreements made during the marriage concerning the right of
spousal support must be made in the context of a separation agreement and
executed pursuant to G.S.52-10.1. [Napier v.Napier, 135 N.C. App. 364, 520
S.E.2d 312 (1999) (citing Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d
815 (1995)) (the validity of an agreement as it relates to the waiver of alimony
is not to be judged in the context of G.S.52-10, even though case law has found
that the “right of support” is in the nature of a property right), review denied,
351 N.C. 358, 543 S.E.2d 132 (2000). Cf. G.S.52-10(a1), added by S.L. 2013-140,
§1, eective June 19, 2013, set out in Section III.F.1.c, above, allowing parties to
waive spousal rights by marital contract pursuant to G.S.52-10(a1).]
iii. An agreement between a husband and wife living together and not contemplat-
ing imminent separation that purports to quantify or limit the duty of support
is void as against public policy. [Gray v.Snyder, 704 F.2d 709 (4th Cir. 1983)
(recognizing that under North Carolina law, spouses must separate or intend
to separate immediately to execute valid support waiver under G.S.52-10.1);
Motley v.Motley, 255 N.C. 190, 120 S.E.2d 422 (1961) (case involves agreement
executed before marriage purporting to waive alimony, but opinion discusses
duty of support that comes into existence upon the “moment” parties are mar-
ried); Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d 815 (1995) (agree-
ment executed while parties were living separate and apart but contemplating
a resumption of marital relations and providing for wife’s support in that event
and upon subsequent separation was a promise or contract looking to the future
separation of a husband and wife and was void against public policy), aff’d per
curiam, 343 N.C. 299, 469 S.E.2d 553 (1996). See also In re Estate of Tucci, 94
N.C. App. 428, 380 S.E.2d 782 (1989) (recognizing that the state supreme court
in Motley established as public policy that married parties may not shirk their
spousal duties of support and alimony and yet live together as a married couple),
aff’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).]
e. For more on alimony provisions in separation agreements, see Spousal Agreements,
Bench Book, Vol. 1, Chapter 1.
2. Marital misconduct.
a. Illicit sexual behavior. [G.S.50-16.1A(3)a.]
i. A court shall not award alimony if it nds that the dependent spouse partici-
pated in an act of illicit sexual behavior during the marriage and before or on the
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date of separation. [G.S.50-16.3A(a). See Section III.A.4.b, above, for denition
of “illicit sexual behavior.”] Illicit sexual behavior is the only type of marital mis-
conduct that can bar a claim for alimony.
ii. If the court nds that both spouses participated in an act of illicit sexual behav-
ior during the marriage and before or on the date of separation, then the court
shall award or deny alimony in the discretion of the court after consideration of
all of the circumstances. [G.S.50-16.3A(a).]
iii. Any act of illicit sexual behavior by either party that has been condoned by the
other party shall not be considered by the court. [G.S.50-16.3A(a).]
(a) Condonation is the forgiveness of a marital oense constituting a ground
for divorce from bed and board on the condition that the marital miscon-
duct cease. [Malloy v.Malloy, 33 N.C. App. 56, 234 S.E.2d 199 (1977).]
(b) A spouse cannot condone an act of illicit sexual behavior if the party is not
aware of the activity until trial. [See Romulus v.Romulus, 215 N.C. App.
495, 715 S.E.2d 308 (2011) (arming trial court’s conclusion that plainti’s
illicit sexual behavior was uncondoned).]
(c) Ordinarily, as an armative defense, condonation must be alleged in defen-
dant’s pleadings. [Earp v.Earp, 52 N.C. App. 145, 277 S.E.2d 877 (1981).]
(d) However, a party may be entitled to raise the issue of condonation at trial,
even though the issue was not raised in the pleadings. [Earp v.Earp, 52
N.C. App. 145, 277 S.E.2d 877 (1981) (when plainti’s pleadings allege
cohabitation subsequent to defendant’s misconduct, plainti’s claim is
properly demurrable for condonation even absent such allegations in defen-
dant’s pleadings); Malloy v.Malloy, 33 N.C. App. 56, 234 S.E.2d 199 (1977)
(wife was entitled to present evidence of condonation of her alleged adul-
tery notwithstanding that pleadings contained no allegation of condonation
by husband).]
(e) Admitted resumption of cohabitation subsequent to alleged misconduct
by both parties supported pretrial ruling that each party had condoned
any and all misconduct of the other party prior to the date cohabitation
resumed. [Earp v.Earp, 52 N.C. App. 145, 277 S.E.2d 877 (1981). But see
Privette v.Privette, 30 N.C. App. 305, 227 S.E.2d 137 (1976) (nding no
condonation when the parties continued to live under the same roof but did
not have sexual intercourse).]
(f) When husband repeated indignities after the parties resumed cohabitation,
wife’s condonation was of no eect and her allegations of injury occurring
before reconciliation were revived. [Earp v.Earp, 52 N.C. App. 145, 277
S.E.2d 877 (1981) (repetition of the injury takes away the condonation).]
(g) Voluntary sexual intercourse by the innocent spouse, with knowledge or
reason to know that the other has committed adultery, usually operates as a
condonation of the oense. [Malloy v.Malloy, 33 N.C. App. 56, 234 S.E.2d
199 (1977).]
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(h) For more on condonation, see N.C.P.I.—C 815.71—Alimony—Issue of
Condonation and N.C.P.I.—C 815.72—Alimony—Issue of Condona-
tion—Violation of Condition.
iv. For recrimination and condonation, see Divorce and Annulment, Bench Book,
Vol. 1, Chapter 5.
v. Regarding proof of adultery and a spouse’s right to assert the privilege against
self-incrimination, see Section III.A.4.b.viii, above.
b. G.S.50-16.1A(3) sets out eight other types of marital misconduct that can be consid-
ered by the court when determining whether to award alimony and in determining
amount, duration, and manner of payment of alimony. [See Brannock v.Brannock,
135 N.C. App. 635, 523 S.E.2d 110 (1999) (noting that after the wholesale revision
of North Carolina alimony law pursuant to the 1995 amendments, as to those eight
types of misconduct, fault merely constitutes a factor to be considered in resolving
support eligibility and amount), review denied, appeal dismissed, 351 N.C. 351, 543
S.E.2d 123 (2000).] See Section III.A.4, above, for more on marital misconduct.
3. Statutes of limitation.
a. Statute of limitations for enforcement of an alimony judgment.
i. Statutes of limitation run between spouses as well as between strangers. [Lind-
sey v.Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977).]
ii. e ten-year statute of limitations for enforcement of judgments, G.S.1-47, bars
recovery of alimony that became due more than ten years before the enforce-
ment action was led. [Elliott v.Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d
819 (wife entitled to enforce a California alimony judgment against the North
Carolina estate of the supporting spouse for alimony payments accruing ten
years before the date the enforcement action commenced), cert. denied, 358
N.C. 731, 601 S.E.2d 530 (2004); Lindsey v.Lindsey, 34 N.C. App. 201, 237 S.E.2d
561 (1977) (statute of limitations barred periodic sums of alimony and child sup-
port that became due more than ten years before action was led).]
b. Statute of limitations for presentation of a claim against a decedent’s estate for
unpaid alimony.
i. If a claim is presented to and rejected by the personal representative of an estate,
the claimant must, within three months after written notice of such rejection,
commence an action to recover the claim or be forever barred. [G.S.28A-19-16.]
ii. To trigger the three-month statute of limitations in G.S.28A-19-16, there must
be a rejection of the claim and the rejection must be absolute and unequivo-
cal. [Elliott v.Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819 (rejection of
claim form accompanied by a letter inviting negotiations did not constitute an
unequivocal rejection, so wife’s claim for unpaid alimony was not barred by
G.S.28A-19-16), cert. denied, 358 N.C. 731, 601 S.E.2d 530 (2004).]
4. Defenses found not valid.
a. Laches.
i. e doctrine of laches is not applicable to actions for the continuing obligation
of spousal support. [Elliott v.Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819,
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cert. denied, 358 N.C. 731, 601 S.E.2d 530 (2004). See also Webber v.Webber, 32
N.C. App. 572, 232 S.E.2d 865 (1977) (wife not estopped from bringing sub-
sequent action in North Carolina for divorce, alimony, and child support after
agreeing that she would not contest divorce action led by husband in Georgia).]
G. Judgment or Order
1. If allowance also is made for children, the alimony award must be stated separately and
identied. [G.S.50-16.7(a); 50-13.4(e).]
2. Findings of fact generally.
a. In alimony cases where a trial court sits without a jury, the trial court must “nd the
facts specially and state separately its conclusions of law . . .” [G.S.1A-1, Rule 52(a);
Pierce v.Pierce, 188 N.C. App. 488, 655 S.E.2d 863 (2008). See also Crocker v.Crocker,
190 N.C. App. 165, 168, 660 S.E.2d 212, 214 (2008) (quoting Quick v.Quick, 305
N.C. 446, 451, 290 S.E.2d 653, 657 (1982)) (G.S.1A-1, Rule 52(a) requires in all non-
jury trials that the trial court nd specially “those material and ultimate facts from
which it can be determined whether the ndings are supported by the evidence and
whether they support the conclusions of law reached”).]
b. Except where there is a motion before the court for summary judgment, judgment
on the pleadings, or other motion for which the Rules of Civil Procedure do not
require specic ndings of fact, the court shall make a specic nding of fact on
each of the sixteen factors in G.S.50-16.3A(b) if evidence is oered on a factor.
[G.S.50-16.3A(c); Langdon v.Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007);
Cunningham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).]
c. While the court is not required to set out specic ndings as to each factor listed in
G.S.50-16.3A(b), it must provide sucient detail to satisfy a reviewing court that
it has considered “all relevant factors.” [Rhew v.Rhew, 138 N.C. App. 467, 470, 531
S.E.2d 471, 473 (2000).]
d. While the trial court can incorporate by reference ndings of fact made in a postsep-
aration support (PSS) order to support an alimony decision, the alimony order must
show that the court made its own independent ndings of fact in the alimony case
related to the factors in G.S.50-16.3A(b). [See Crocker v.Crocker, 190 N.C. App. 165,
660 S.E.2d 212 (2008) (Crocker I) (court of appeals refused to consider ndings of fact
resulting from the general incorporation of other documents led in the case, includ-
ing a PSS order, an equitable distribution (ED) consent judgment, a child custody and
support order, and various wage adavits and amended alimony adavits; the incor-
porated ndings did not demonstrate that the trial court had properly considered the
statutory factors for awarding alimony); cf. Crocker v.Crocker, 206 N.C. App. 596, 698
S.E.2d 768 (2010) (unpublished) (on remand, trial court did not violate Crocker I by
incorporating by reference its amended PSS order into its amended alimony order
when the trial court also made its own independent ndings of fact related to the
statutory factors in G.S.50-16.3A(a), even if the new ndings were taken verbatim
from prior child custody and child support orders entered in the case; what Crocker
I prohibits is the trial court’s incorporation by reference of a prior order in lieu of
making its own ndings of fact).]
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e. While the trial court is required to make a nding of fact on each of the factors set
out in G.S.50-16.3A(b) about which evidence is presented, the trial court has discre-
tion as to the weight assigned to each factor. [Robinson v.Robinson, 210 N.C. App.
319, 707 S.E.2d 785 (2011) (citing Hartsell v.Hartsell, 189 N.C. App. 65, 657 S.E.2d
724 (2008)) (court is not required to make ndings about the weight and credibility
it assigned to evidence before it); Friend-Novorska v.Novorska, 143 N.C. App. 387,
545 S.E.2d 788 (ndings of fact need not set forth the weight given to the factors in
G.S.50-16.3A(b)), aff ’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001). See also
Megremis v.Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006) (noting that the
trial court has discretion to determine the weight and credibility given to all evidence
presented during trial); cf. Kelly v.Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (2002)
(unpublished) (not paginated on Westlaw) (under former statute, trial court found
that parties’ reasonable expenses were “not pertinent” to its decision to deny ali-
mony; this express nding demonstrates that trial court failed to give any weight to
parties’ reasonable expenses, which was an abuse of discretion).]
f. A trial court’s ndings and conclusions in an order for PSS are not binding at the ali-
mony hearing. [Langdon v.Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007) (citing
Wells v.Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999)).] See Section II.E.4, above.
g. Findings must be more than mere recitations of the evidence. [Williamson
v.Williamson, 140 N.C. App. 362, 363–64, 536 S.E.2d 337, 338 (2000) (quoting
Montgomery v.Montgomery, 32 N.C. App. 154, 156–57, 231 S.E.2d 26, 28 (1977))
(pursuant to G.S.1A-1, Rule 52(a), ndings must be “specic ultimate facts . . . suf-
cient for [an] appellate court to determine that the judgment is adequately sup-
ported by competent evidence”); Greiner v.Greiner, 151 N.C. App. 747, 567 S.E.2d
465 (2002) (unpublished) (citing Williamson) (court’s nding as to plainti’s ability
to nd employment was decient when it was “merely a recitation of an evidentiary
fact” based on plainti’s testimony with no indication that the nding was “a nal
resulting eect reached through processes of legal or logical reasoning”); Solzsmon
v.Solzsmon, 150 N.C. App. 437, 563 S.E.2d 641 (2002) (unpublished) (quoting
Williamson, 140 N.C. App. at 364, 536 S.E.2d at 339) (many ndings were not ulti-
mate facts but rather were “mere recitations of the evidence” and did not reect the
“processes of logical reasoning” as indicated by language in the ndings stating that
plainti or defendant “testied” to certain facts).]
h. e court must make ndings of fact in support of all conclusions of law. [Quick
v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982) (conclusions must be based upon fac-
tual ndings suciently specic to indicate that the trial judge properly considered
the statutory factors for alimony and the applicable case law); Williamson v.William-
son, 217 N.C. App. 388, 719 S.E.2d 625 (2011) (citing Oakley v.Oakley, 165 N.C. App.
859, 599 S.E.2d 925 (2004)) (when the trial court sits without a jury, the standard
of review on appeal is whether there was competent evidence to support the trial
court’s ndings of fact and whether its conclusions of law were proper in light of such
facts).]
i. Findings of fact used to support conclusions of law must be supported by competent
evidence presented at trial. [See Alvarez v.Alvarez, 134 N.C. App. 321, 517 S.E.2d 420
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(1999) (reversing and remanding judgment when at least three ndings of fact were
not supported by evidence presented at trial).]
j. Actual ability to pay an award, though relevant to the court’s determination of fair-
ness to the parties, is not a factor requiring ndings of fact under G.S.50-16.3A(b).
[Swain v.Swain, 179 N.C. App. 795, 635 S.E.2d 504 (2006) (omission of a specic
nding of actual ability to pay was not error when the court clearly had considered
the supporting spouse’s actual ability to pay), review denied, 361 N.C. 437, 649 S.E.2d
897 (2007); Robinson v.Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011) (citing
Swain) (although actual ability to pay is relevant, a specic nding is not required
when it is clear that court considered spouse’s ability to pay). Cf. Fennell v.Fennell,
206 N.C. App. 329, 698 S.E.2d 557 (2010) (unpublished) (nding that defendant did
not have present ability to pay alimony but would after he reduced his debt load was
too general to allow appellate review; trial court did not identify monthly payments
that would terminate over the next year, nor the amount thereof, and failed to indi-
cate which, or how many, of defendant’s debts it expected to be satised).]
k. e ndings may be sucient under G.S.50-16.3A(b), setting out factors the court
is to consider when determining the amount, duration, and manner of payment, but
insucient under G.S.50-16.3A(c), requiring the court to set out the reasons for the
amount and duration of an award and the manner of payment. [Hudson v.Hudson,
193 N.C. App. 454, 667 S.E.2d 340 (2008) (unpublished) (ndings sucient to sup-
port amount awarded under G.S.50-16.3A(b) but remanded for further ndings as
to reasons for the duration of the award and the manner of payment); Baker v.Baker,
190 N.C. App. 822, 662 S.E.2d 37 (2008) (unpublished) (where trial court made
extensive ndings regarding the parties’ status and needs but failed to set forth its
reasons for the amount and duration of the award, remand necessary).]
3. Findings on specic factors in G.S.50-16.3A(b).
a. Marital misconduct of either spouse. [G.S.50-16.3A(b)(1).]
i. An award of alimony was reversed and remanded for further ndings of fact
when the order failed to specify the type of misconduct that had occurred.
[Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011) (appellate court
unable to determine whether evidence was sucient to support a nding of
marital misconduct without knowing which form of marital misconduct the trial
court believed occurred and the basic facts supporting that determination).]
ii. Findings were sucient when the court fully addressed the question of wife’s
misconduct even though there was no specic nding on abandonment.
[Cunningham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).]
b. Relative earnings and earning capacities of the spouses. [G.S.50-16.3A(b)(2).]
i. Findings as to supporting spouse’s earnings were insucient when there was
“abundant testimony in the record” concerning various sources of income;
ndings as to his earning capacity were inadequate where there was no nding
on whether defendant’s health problems would permit him to work again and
no nding on whether his corporate aairs could be arranged to increase his
income. [Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).]
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ii. Findings as to dependent spouse’s earnings and earning capacity were inade-
quate when there were no ndings as to whether she was employed and no nd-
ings at all concerning her earning capacity. [Quick v.Quick, 305 N.C. 446, 290
S.E.2d 653 (1982). But see Broughton v.Broughton, 58 N.C. App. 778, 294 S.E.2d
772 (a trial court does not have to consider in all cases the earning capacity of
the dependent spouse), review denied, 307 N.C. 269, 299 S.E.2d 214 (1982).]
iii. Findings about dependent spouse’s potential investment income and Social
Security benets did not address her earning capacity. [Honeycutt v.Honeycutt,
152 N.C. App. 673, 568 S.E.2d 260 (2002) (earning capacity typically refers to
earning capacity from working).]
iv. In an order denying supporting spouse’s motion to modify, ndings as to his
health were sucient, even though not detailed, when supporting spouse did
not show a decrease in his income, from worsening health or otherwise. [Kelly
v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013) (supporting spouse’s health
problems were potentially relevant because he contended they contributed
to a decrease in his income; while worsening health may result in a decline
in income, it is not automatic; nding that defendant’s income was not sub-
stantially lower than when alimony was originally ordered was supported by
evidence, so detailed ndings as to defendant’s health not required). Cf. Miller
v.Miller, 192 N.C. App. 275, 664 S.E.2d 665 (2008) (unpublished) (ndings
were decient when court (1) found that defendant’s health had declined since
entry of the prior order but made no ndings on whether defendant’s income
had been reduced because of his declining health, (2) found that defendant
had resigned from the military but made no ndings regarding what change in
income, if any, defendant would encounter post-retirement, and (3) found that
defendant had changed duty stations but made no ndings that his current sta-
tion in Germany caused his living expenses to increase or decrease).]
v. On remand, the court was directed to make ndings to explain its determina-
tion that the dependent spouse, previously employed as a school nurse, had a
“reasonable earning potential” of $1,500 a month as a nurse in a hospital setting
after completing a refresher course. [Walker v.Walker, 178 N.C. App. 235, 630
S.E.2d 743 (2006) (unpublished) (not paginated on Westlaw).]
vi. Finding of bad faith required to impute income.
(a) It was error to impute income to the dependent spouse based on a nding
that she “has the ability to earn at least minimum wage” without rst nd-
ing that she had depressed her income in bad faith. [Works v.Works, 217
N.C. App. 345, 347, 719 S.E.2d 218, 219 (2011) (citing 2 Lee’s North Caro-
lina Family Law §9.26 (5th ed. 1999)) (even though court made ndings on
wife’s limited recent work experience and her failure to complete training
needed for her brief pursuits in real estate and in a clerical setting, without
a nding of bad faith, ndings were not sucient to support trial court’s
decision to impute income to wife); Nicks v.Nicks, 774 S.E.2d 365 (N.C. Ct.
App. 2015) (citing Works) (trial court erred when it imputed income to vol-
untarily unemployed physician wife without nding that she had depressed
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her income in bad faith; wife left medical practice to care for child with
severe emotional problems).]
(b) Trial court erred in determining alimony based on husband’s earning
capacity when it omitted an essential nding, that the husband’s reduc-
tion in income was primarily motivated by a desire to avoid his reasonable
support obligations. [Spencer v.Spencer, 70 N.C. App. 159, 319 S.E.2d 636
(1984) (citing Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)) (nding
that husband had intentionally depressed his income was not sucient; the
record contained evidence that husband structured his salary payments to
reduce payment of income tax, rather than necessarily to avoid paying sup-
port; without the essential nding on intent, the trial court must determine
alimony based on the supporting spouse’s income, not his earning capacity;
case decided under prior law but same ndings required under new law).
See Section III.D.9.b.iii, above; see also Frey v.Best, 189 N.C. App. 622, 628,
659 S.E.2d 60, 67 (2008) (quoting Quick, 305 N.C. at 453, 290 S.E.2d at 658)
(court cannot impute income to a supporting spouse unless it nds that
supporting spouse was “deliberately depressing his . . . income or indulging
in excessive spending . . . [in] disregard of [his] marital obligation to provide
support”).]
(c) Order that used earning capacity to determine alimony without nding that
defendant was deliberately suppressing his income to avoid family responsi-
bilities was remanded for a specic nding on this issue. Trial court’s failure
to make the required nding was not cured by a separate postseparation
order, based on the same evidence, that contained such a nding. [Childers
v.Childers, 167 N.C. App. 370, 605 S.E.2d 266 (2004) (unpublished).]
vii. Finding of bad faith must be supported by the evidence.
(a) Evidence was insucient to support conclusion that husband’s change of
circumstances was voluntarily eected by him in disregard of his marital
and parental support obligations. [Wachacha v.Wachacha, 38 N.C. App.
504, 248 S.E.2d 375 (1978) (although husband voluntarily gave up job as a
recreation director to pursue a degree in recreation, he met his support and
alimony obligations from his income under the GI Bill; after husband failed
two courses and decided not to return to school, he accepted a construc-
tion job at a lower salary and sought modication of the support award;
remanded for rehearing on husband’s motion to modify support award).]
(b) e following unchallenged ndings of fact were “more than sucient”
to support the conclusion that defendant acted in bad faith: defendant
committed marital misconduct by abandoning plainti and their three
children; defendant, who had an earning capacity far greater than that of
plainti, intentionally shut down his brokerage business and understated
the business’s corporate income; defendant led falsied and inaccurate
tax returns and forged plainti’s signature on the returns; defendant pro-
vided support for his paramour and her children while refusing to provide
support to plainti and his children; and defendant engaged in voluntary
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unemployment or underemployment or hid income. [Juhnn v.Juhnn, 775
S.E.2d 310, 314 (N.C. Ct. App. 2015).]
(c) Finding that defendant appeared to be intentionally depressing his income
to avoid paying postseparation support (PSS) was supported by evidence
that defendant had not applied for any job between the date he was termi-
nated, November 2002, and the date of the hearing, March 2003, and that
his only eort to receive unemployment benets after severance pay ended
was an Internet search to determine the amount he would be entitled to if
he applied. [Childers v.Childers, 167 N.C. App. 370, 605 S.E.2d 266 (2004)
(unpublished) (defendant’s motion to terminate PSS denied).]
c. Amount and sources of earned and unearned income of both spouses.
[G.S.50-16.3A(b)(4).]
i. Findings as to income must be supported by evidence. [Glass v.Glass, 131 N.C.
App. 784, 509 S.E.2d 236 (1998) (error for court to nd that defendant would
replace lost business and restore earnings from commissions when no evidence
in record to support the nding).]
ii. Award of alimony vacated when trial court made no ndings with respect to
wife’s medical benets or potential income from her IRA, although evidence of
these additional sources of income was presented at the hearing. [Phillips v.Phil-
lips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff’d per curiam, 362 N.C. 171,
655 S.E.2d 350 (2008). See also Phillips v.Phillips, 206 N.C. App. 330, 698 S.E.2d
557 (2010) (unpublished) (after remand, award of alimony again vacated when
trial court made a nding as to only one of two IRA accounts of the wife and
found that wife had employer-paid health insurance but made no nding as to
the value of that benet).]
iii. Trial court directed on remand to make ndings about income of both par-
ties from retirement or other benets when court found that both parties had
individual retirement accounts, stock options, and nancial assets. [Crocker
v.Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008) (ndings limited to earned
income of the parties and wife’s health insurance benets were insucient).]
iv. A nding as to income that does not indicate how it was calculated is subject
to remand as insucient. [Vadala v.Vadala, 145 N.C. App. 478, 550 S.E.2d 536
(2001) (nding that set out wife’s gross and net monthly income was insucient
without information as to its calculation).]
v. Findings as to income must not be based on speculative future events.
[Friend-Novorska v.Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998) (court
cannot determine net income based on a spouse’s “desire” to purchase a new
house and car).]
d. e standard of living of the spouses established during the marriage.
[G.S.50-16.3A(b)(8).]
i. e point in evaluating the parties’ accustomed standard of living is to consider
the pooling of resources that marriage allows. [Rice v.Rice, 159 N.C. App. 487,
584 S.E.2d 317 (2003) (ndings regarding the separate “estates” of the parties
during the marriage did not equal a nding as to the parties’ standard of living).]
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ii. Detailed ndings about standard of living are not necessary so long as the
court can determine accustomed standard of living. [Morris v.Morris, 90 N.C.
App. 94, 367 S.E.2d 408 (1988) (other ndings sucient to determine standard
of living). See also Adams v.Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988)
(requirement satised by ndings regarding both spouse’s monthly income and
reasonable living expenses during the last year of marriage), superseded on other
grounds by statute as stated in Brannock v.Brannock, 135 N.C. App. 635, 523
S.E.2d 110 (1999).]
iii. No error when court failed to make ndings as to the standard of living to which
the parties were accustomed during the marriage when the court made ultimate
ndings as to the amount wife needed to pay her current expenses and antici-
pated needs. [Fitzgerald v.Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003)
(trial court made sucient ultimate ndings of fact to support its award of
alimony).]
iv. Findings as to standard of living were sucient even without ndings as to the
parties’ expenditures during the marriage. [Barrett v.Barrett, 140 N.C. App. 369,
536 S.E.2d 642 (2000) (citing Adams v.Adams, 92 N.C. App. 274, 374 S.E.2d 450
(1988)) (trial court’s “listing” of various bills regularly paid by husband, in addi-
tion to ndings about the parties’ respective incomes during the marriage, the
type of home in which they lived, and the types of family vacations they enjoyed,
were sucient for an overall portrayal of the parties’ accustomed standard of
living).]
v. Although the court did not make any specic ndings as to the amount of
marital expenditures, it listed various bills that defendant regularly paid prior to
separation, including utilities, cable and television, telephone, newspaper, pest
control, and yard service, which, with other ndings as to the parties’ respec-
tive incomes during the marriage, the type of home in which they lived, and
the types of family vacations they enjoyed, provided an overall portrayal of the
parties’ accustomed standard of living. [Brown v.Brown, 192 N.C. App. 734, 666
S.E.2d 217 (2008) (unpublished) (rejecting argument that court should not con-
sider marital home in making standard of living determination when parties had
lived there only two years before separating).]
vi. Trial court directed on remand to make ndings about the parties’ standard of
living when it failed to do so in original order. [Crocker v.Crocker, 190 N.C. App.
165, 660 S.E.2d 212 (2008).]
e. e relative assets and liabilities of the spouses and the relative debt service require-
ments of the spouses, including legal obligations of support. [G.S.50-16.3A(b)(10).]
i. e following ndings were sucient to satisfy the requirement in
G.S.50-16.3A(b)(10): that wife owned a condominium, had approximately
$20,000 in assets, and was paying $196 per month for storage and that husband
owned 50 percent of a commercial building, owned the marital home subject
to an equity line of credit, had approximately $18,000 in assets, and owed $300
per month to a former law partner. [Phillips v.Phillips, 185 N.C. App. 238, 647
S.E.2d 481 (2007), aff ’d per curiam, 362 N.C. 171, 655 S.E.2d 350 (2008).]
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ii. e trial court erred when it made no ndings as to the total value of either the
husband’s or wife’s estate or the liquidity or income-producing potential of those
estates. [Spencer v.Spencer, 70 N.C. App. 159, 319 S.E.2d 636 (1984) (rejecting
wife’s argument that since value of their estates was undisputed, no ndings
were required).]
iii. Trial court was directed on remand to make ndings about husband’s real estate
assets when it failed to do so in original order. [Crocker v.Crocker, 190 N.C. App.
165, 660 S.E.2d 212 (2008).]
f. e relative needs of the spouses. [G.S.50-16.3A(b)(13).]
i. e trial court can nd (1) that a party’s listed expenses are excessive and reduce
them or (2) that they are inadequate and increase them. [Pierce v.Pierce, 188
N.C. App. 488, 655 S.E.2d 863 (2008) (arming trial court’s ndings that some
shared family expenses listed by plainti were excessive and that some of her
individual expenses were inadequate).]
ii. Where the trial court made no ndings regarding the parties’ respective living
expenses since separating, other than a nding that “defendant . . . has had min-
imal expenses,” case was remanded for proper ndings. [Rhew v.Rhew, 138 N.C.
App. 467, 472, 531 S.E.2d 471, 474 (2000).]
iii. Finding as to husband’s reasonable needs and expenses based on his amended
nancial adavit upheld. [Megremis v.Megremis, 179 N.C. App. 174, 633 S.E.2d
117 (2006).]
iv. Trial court was directed on remand to make ndings about the relative needs
of the spouses when it failed to do so in original order. [Crocker v.Crocker, 190
N.C. App. 165, 660 S.E.2d 212 (2008).]
4. Findings required by G.S.50-16.3A(c).
a. e court shall set forth the reasons for its award or denial of alimony and, if
making an award, the reasons for its amount, duration, and manner of payment.
[G.S.50-16.3A(c); Crocker v.Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008)
(trial court was directed on remand to make ndings as to the amount of alimony
awarded, its duration, and the manner of payment when it failed to do so in original
order); Cunningham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005) (trial
court made sucient ndings as to amount and manner of payment but failed to
make ndings regarding the reasons for the duration of alimony ordered, which vio-
lated G.S.50-16.3A(c)); Greiner v.Greiner, 151 N.C. App. 747, 567 S.E.2d 465 (2002)
(unpublished) (trial court’s order was remanded for ndings of fact and conclusions
of law to support the denial of alimony).]
b. e requirement in G.S.50-16.3A(c) of specic ndings is mandatory, and it is a vital
part of the trial court’s order. [Vadala v.Vadala, 145 N.C. App. 478, 550 S.E.2d 536
(2001) (citing Rhew v.Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000)) (ndings of
fact must be suciently detailed to allow review). See also Williamson v.Williamson,
140 N.C. App. 362, 536 S.E.2d 337 (2000) (trial court erred in failing to explain the
amount of the award, why it was permanent, and why it was made payable directly to
the clerk of court).]
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c. Findings of fact required to support the amount, duration, and manner of payment
of an alimony award are sucient if ndings have been made on the ultimate facts at
issue in the case and the ndings of fact show the trial court properly applied the law
in the case. [Friend-Novorska v.Novorska, 143 N.C. App. 387, 545 S.E.2d 788, aff ’d
per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
d. One way to demonstrate that ndings of fact are inadequate under G.S.50-16.3A(c)
is to show that the trial court failed to make a nding as to a particular factor upon
which a party oered evidence. [See Langdon v.Langdon, 183 N.C. App. 471, 644
S.E.2d 600 (2007).]
e. Amount of the award.
i. Amount must be supported by ndings suciently specic to indicate that
the trial judge properly considered the statutory factors set out in the relevant
statute (now G.S.50-16.3A(b)). [Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653
(1982); Ellinwood v.Ellinwood, 94 N.C. App. 682, 318 S.E.2d 162 (1989) (citing
Quick).] See Section III.D.9, above, setting out the statutory factors.
ii. Court must explain why it concluded that a dependent spouse was entitled
to a specic amount of alimony. [Hartsell v.Hartsell, 189 N.C. App. 65, 657
S.E.2d 724 (2008) (trial court found only that plainti had the ability to pay
a certain amount but made no ndings regarding the basis for that amount);
Davis v.Davis, 233 N.C. App. 598, 758 S.E.2d 902 (2014) (unpublished) (not
paginated on Westlaw) (citing Hartsell) (trial court’s reference to the “respective
estates, earnings, conditions and accustomed standard of living of the parties” in
its nding that $1,000 is “a reasonable sum of monthly alimony” did not provide
proper insight into the trial court’s reasoning as to the amount awarded; nor did
trial court state a rationale for the amount and manner of payment of its alterna-
tive alimony award, a one-time payment of $400,000 in lieu of $1,000/month for
twenty years).]
iii. Case was remanded when trial court failed to provide any reasoning for
an award of alimony in the amount of $1,500 per month. [Williamson
v.Williamson, 140 N.C. App. 362, 536 S.E.2d 337 (2000).]
iv. After remand for explanation of amount ordered, award armed on second
appeal when ndings added on remand, in conjunction with previous nd-
ings, showed that amount of alimony was based on wife’s reasonable monthly
expenses and husband’s gross monthly income, after deductions for taxes, child
support, and personal living expenses. [Ritchie v.Ritchie, 228 N.C. App. 282, 748
S.E.2d 774 (2013) (unpublished).]
f. Duration of the award.
i. Order awarding alimony for eighteen years was upheld when it was supported
with “numerous and thorough ndings of fact and conclusions of law.” [Juhnn
v.Juhnn, 775 S.E.2d 310, 315 (N.C. Ct. App. 2015) (ndings included those that
supported decision to impute income to defendant based on his bad faith and
fact that defendant had engaged in marital misconduct, was always the sole
means of support for the family, and had a greater earning capacity than plain-
ti; that plainti was absent from the workplace for more than sixteen years
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while she raised their children, lacked English language skills, education, and
training, which made her functionally unemployable and unable to meet her
reasonable economic needs; plainti had to borrow money from, or rely on, her
sisters for housing, food, and other assistance; and was in debt with no prospect
of working her way out of it).]
ii. Order that failed to include ndings explaining why alimony was to continue
until terminated by one of the statutory events in G.S.50-16.9(b) (death of either
spouse, remarriage, or cohabitation) was remanded for proper ndings. [Lucas
v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011); Collins v.Collins, 778 S.E.2d
854 (N.C. Ct. App. 2015) (order which provided that alimony terminated upon
death of either party or upon dependent spouse’s remarriage or cohabitation
reversed and remanded for ndings required by G.S. 50-16.3A(c)).]
iii. Case remanded when trial court failed to explain why the alimony award was
permanent. [Williamson v.Williamson, 140 N.C. App. 362, 536 S.E.2d 337
(2000).]
iv. It was error to limit an alimony award to thirty months’ duration without
explaining why. [Friend-Novorska v.Norvorska, 131 N.C. App. 867, 509 S.E.2d
460 (1998); Works v.Works, 217 N.C. App. 345, 719 S.E.2d 218 (2011) (error
to order alimony for eighty-four months without setting forth reasons for that
duration).]
v. Alimony order was remanded for ndings on the duration of the alimony award
when court failed to make any such ndings. [Cunningham v.Cunningham,
171 N.C. App. 550, 615 S.E.2d 675 (2005) (ndings sucient as to amount and
method of payment).]
vi. Alimony order was remanded for ndings as to the reasons for making the
duration of the alimony continuous until the wife died, remarried, or cohabited.
[Fitzgerald v.Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003) (ndings su-
cient as to amount of alimony); Hartsell v.Hartsell, 189 N.C. App. 65, 657 S.E.2d
724 (2008) (trial court erred by not including ndings to explain its rationale for
ordering alimony until the death or remarriage of dependent spouse).]
vii. Alimony order was remanded when trial court ordered alimony for sixteen
years with no explanation as to the duration ordered other than to note that the
parties were married sixteen years. [Crocker v.Crocker, 206 N.C. App. 596, 698
S.E.2d 768 (2010) (unpublished); Davis v.Davis, 233 N.C. App. 598, 758 S.E.2d
902 (2014) (unpublished) (citing Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d
270 (2011)) (matter remanded for specic nding explaining the court’s reason-
ing behind an award of alimony for twenty years).]
viii. On remand for explanation of duration of nearly fteen years, award armed
when ndings added on remand, in conjunction with previous ndings, showed
that alimony was to continue until children reached majority so that custodial
parent could maintain relatively low-wage employment at children’s private
school, which had the benet of free tuition and allowed mother to be primary
caretaker on a teacher’s salary. [Ritchie v.Ritchie, 228 N.C. App. 282, 748 S.E.2d
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774 (2013) (unpublished) (trial court within its discretion when deciding ali-
mony to consider caregiving obligations of the children’s primary caregiver).]
g. Manner of payment.
i. Alimony order was remanded for ndings as to why payment was to be made
directly to the clerk of superior court. [Fitzgerald v.Fitzgerald, 161 N.C. App.
414, 588 S.E.2d 517 (2003) (citing Williamson v.Williamson, 140 N.C. App. 362,
536 S.E.2d 337 (2000)).]
5. Findings required by G.S.50-16.3A(a).
a. To award alimony the court must nd that:
i. One spouse is a dependent spouse;
ii. e other spouse is a supporting spouse; and
iii. An award of alimony is equitable after considering all relevant factors.
b. Dependency.
i. Court must nd that spouse is either actually substantially dependent on the
other spouse or is substantially in need of maintenance and support from the
other spouse. [G.S.50-16.1A(2); Rhew v.Rhew, 138 N.C. App. 467, 470, 531
S.E.2d 471, 473 (2000) (if court nds that spouse is not actually dependent, trial
court must consider “second test” of whether spouse is substantially in need).]
See Section III.A.2, above, for denition of dependent spouse.
ii. Findings as to dependency must resolve issues raised by the evidence. [Taylor
v.Taylor, 219 N.C. App. 402, 722 S.E.2d 211 (2012) (unpublished) (case was
remanded for trial court to address evidence that spoke to substantially in need
prong of dependency analysis, specically, husband’s ability to continue to pro-
vide for his needs after parties’ business, from which husband derived income
at time of the hearing, was awarded to wife in equitable distribution, possible
termination of husband’s income from disability insurance upon turning age 65,
and husband’s access to other sources of income).]
iii. Actually substantially dependent.
(a) Finding that spouse is actually substantially dependent requires nding that
spouse seeking alimony is without means for providing accustomed stan-
dard of living. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980);
Caldwell v.Caldwell, 86 N.C. App. 225, 356 S.E.2d 821 (citing Williams),
cert. denied, 320 N.C. 791, 361 S.E.2d 72 (1987).] See Section III.A.2.k,
above.
(b) Finding that spouse is actually substantially dependent requires supporting
ndings of the parties’ incomes and expenses and the standard of living
of the family unit. [Crocker v.Crocker, 190 N.C. App. 165, 660 S.E.2d 212
(2008) (citing Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980))
(nding of fact as to the parties’ incomes insucient to show husband was
actually substantially dependent).]
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iv. Substantially in need of maintenance and support.
(a) Finding that spouse is substantially in need of maintenance and support
requires that the court follow additional guidelines and make supporting
ndings about:
(1) Standard of living as a family unit before separation;
(2) Present earnings, prospective earning capacity, and any other condi-
tion, such as health of parties, at time of hearing;
(3) Whether spouse seeking alimony has need for nancial contribution
from other party in order to maintain accustomed standard of living,
considering reasonable expenses;
(4) Total value of estate of both parties;
(5) Fault, length of marriage, contribution of each spouse to nancial sta-
tus of marriage; and
(6) Any other relevant facts of the particular case. [Williams v.Williams,
299 N.C. 174, 261 S.E.2d 849 (1980); Crocker v.Crocker, 190 N.C. App.
165, 660 S.E.2d 212 (2008) (citing Williams); Hunt v.Hunt, 112 N.C.
App. 722, 436 S.E.2d 856 (1993) (citing Williams).]
(b) Findings insucient to show husband substantially in need of maintenance
and support where no ndings made as to standard of living of the par-
ties, the husband’s need for nancial contribution, or the parties’ estates.
[Crocker v.Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008). See also
Solzsmon v.Solzsmon, 150 N.C. App. 437, 563 S.E.2d 641 (2002) (unpub-
lished) (when trial court found only that defendant husband engaged in
marital misconduct on the three grounds alleged by plainti wife, and then
listed the parties’ current incomes and expenses, ndings insucient to
nd plainti a dependent spouse and defendant a supporting spouse).]
(c) e trial court’s ndings describing the real property owned by each of the
parties, as well as their personal savings, satised the requirement to con-
sider the parties’ estates. [Phillips v.Phillips, 185 N.C. App. 238, 647 S.E.2d
481 (2007), aff’d per curiam, 362 N.C. 171, 655 S.E.2d 350 (2008).]
c. Supporting spouse.
i. Just because one spouse is dependent does not automatically mean the other is
supporting. [Williams v.Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Barrett
v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000) (citing Williams). Cf. Hunt
v.Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993) (failing to conclude that plain-
ti was the dependent spouse, after nding defendant to be a supporting spouse,
was not fatal because it “naturally follows” that a spouse who has a supporting
spouse is a dependent spouse; noting, however, that the better practice would be
to enter such a conclusion).]
ii. When there are no ndings with respect to the parties’ accustomed standard
of living prior to separation, the contribution of each party to the marriage’s
nancial status, or the value of the parties’ relative estates, the trial court’s nd-
ings cannot support a conclusion that plainti is the dependent spouse or that
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defendant is the supporting spouse. [Greenleaf v.Greenleaf, 163 N.C. App. 610,
594 S.E.2d 257 (2004) (unpublished) (court had made ndings as to the relative
income and expenses of the parties).]
d. Equity of the award after consideration of all relevant factors.
i. e list of factors shall not be construed as exhaustive, since the overriding prin-
ciple in cases determining the correctness of alimony is “fairness to all parties.”
[Marks v.Marks, 316 N.C. 447, 460, 342 S.E.2d 859, 867 (1986) (quoting Beall
v.Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976)); Pierce v.Pierce, 188 N.C.
App. 488, 655 S.E.2d 863 (2008) (quoting Marks); Harris v.Harris, 188 N.C. App.
477, 656 S.E.2d 316 (2008) (citing Fink v.Fink, 120 N.C. App. 412, 462 S.E.2d 844
(1995)) (trial court’s determination that an increase in alimony was fair was not
an abuse of discretion).]
ii. An alimony award must be “fair” and “just” to all parties. [Quick v.Quick, 305
N.C. 446, 453, 290 S.E.2d 653, 658 (1982) (quoting Beall v.Beall, 290 N.C. 669,
674, 228 S.E.2d 407, 410 (1976)); Swain v.Swain, 179 N.C. App. 795, 799, 635
S.E.2d 504, 507 (2006) (quoting Quick, 305 N.C. at 453, 290 S.E.2d at 658),
review denied, 361 N.C. 437, 649 S.E.2d 897 (2007).]
iii. An alimony order that requires the supporting spouse to exhaust her entire
income and apply her accumulated capital to its satisfaction imposes too great a
burden and is unfair. [Beall v.Beall, 290 N.C. 669, 228 S.E.2d 407 (1976) (calling
payments ordered by trial court unrealistic and beyond defendant’s ability to
pay).]
iv. An alimony order may be fair even though it requires a supporting spouse to pay
a large part of his monthly income as alimony when the supporting spouse has
a substantial estate and the estate of the dependent spouse is less substantial.
[Swain v.Swain, 179 N.C. App. 795, 635 S.E.2d 504 (2006) (order that required
supporting spouse to pay essentially his entire monthly income as alimony was
fair, considering that his estate was substantially larger than dependent spouse’s
estate and that the award required both parties to deplete their estates to some
extent to meet their living expenses), review denied, 361 N.C. 437, 649 S.E.2d
897 (2007).]
v. An alimony order may be fair even though it leaves the supporting spouse with
a monthly shortfall when the supporting spouse receives other substantial
nancial benets. [Walker v.Walker, 143 N.C. App. 414, 546 S.E.2d 625 (2001)
(alimony payments that left defendant with a monthly shortfall were fair when
defendant received other nancial benets from his solely-owned company,
such as health insurance, use of a vehicle, and reimbursed living expenses).]
vi. A trial court’s determination that alimony was equitable can be inferred from
its ndings on at least nine of the factors set out in G.S.50-16.3A(b), even when
the court’s order “failed to include . . . the magic words that ‘an award of alimony
would be equitable.’ ” [Fennell v.Fennell, 206 N.C. App. 329, 698 S.E.2d 557
(2010) (unpublished) (not paginated on Westlaw).]
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6. Findings on remand.
a. When an appellate court vacates a portion of an order, the trial court, upon remand,
is free to reconsider the evidence before it and to enter new and/or additional nd-
ings of fact based on the evidence, even if it takes no new evidence on remand, except
that the court is bound on remand by any portions of the order armed upon appeal.
[Friend-Novorska v.Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (where portion of
order nding wife to be a dependent spouse and husband to be a supporting spouse
was armed, trial court on remand was bound by those ndings but could make new
ndings regarding contribution needed to meet wife’s monthly expenses, since that
portion of order was vacated), aff ’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
7. Conclusions of law.
a. e court must make conclusions of law that:
i. A party seeking alimony is a dependent spouse and that the other spouse is a
supporting spouse;
ii. An award of alimony is equitable after considering all relevant factors;
iii. e supporting spouse is able to pay the designated amount; and
iv. e amount is fair and just to all parties. [G.S.50-16.3A(a) (rst two factors);
Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982) (citing Williams v.Williams,
299 N.C. 174, 261 S.E.2d 849 (1980)) (last two factors).]
b. Unless the supporting spouse is “deliberately depressing his or her income or indulg-
ing in excessive spending [in] disregard of the marital obligation to provide support
for the dependent spouse, the ability of the supporting spouse to pay is ordinarily
determined by his or her income at the time the award is made.” [Quick v.Quick, 305
N.C. 446, 453, 290 S.E.2d 653, 658 (1982); Frey v.Best, 189 N.C. App. 622, 628–29,
659 S.E.2d 60, 67 (2008) (quoting Quick, 305 N.C. at 453, 290 S.E.2d at 658); Whedon
v.Whedon, 58 N.C. App. 524, 294 S.E.2d 29 (citing Beall v.Beall, 290 N.C. 669, 228
S.E.2d 407 (1976)), review denied, 306 N.C. 752, 295 S.E.2d 764 (1982).]
8. Delay in entry of the order.
a. Defendant supporting spouse failed to show prejudice from a twenty-month delay
in the entry of the alimony order. Defendant argued that delayed entry of the order
caused him to be subject to substantial arrearages, but the appellate court found that
the arrearages arose from defendant’s failure to pay postseparation support pursuant
to an order in eect while the alimony claim was pending. Defendant also failed to
show prejudice from the loss of trial court materials during the delay, as the appellate
court found the record on appeal sucient to permit a satisfactory review. [Juhnn v.
Juhnn, 775 S.E.2d 310 (N.C. Ct. App. 2015).]
H. Forms of Payment
1. Applicable statutes.
a. e court may order alimony to be paid by lump sum, periodic payments, income
withholding, transfer of title or possession of personal property or any interest
therein, or a security interest in or possession of real property. [G.S.50-16.1A(1);
50-16.7(a).]
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b. e court also may order the transfer of title to real property solely owned by the
obligor in payment of lump sum alimony or postseparation support (PSS) or in pay-
ment of arrearages of alimony or PSS as long as the net value of the interest in the
property being transferred does not exceed the amount of the arrearage being satis-
ed. [G.S.50-16.7(a).]
c. If the court orders a supporting spouse to transfer title to real or personal property
under G.S.50-16.7(a) and the supporting spouse fails to execute the necessary doc-
uments, the court may enter an order transferring title to the property pursuant to
G.S.1A-1, Rule 70 and G.S.1-228 or directing another person to execute the docu-
ments required to transfer title. [G.S.50-16.7(c).] For an example of language deemed
sucient to transfer title from one spouse to another pursuant to Rule 70, see Ellis
v.Ellis, 68 N.C. App. 634, 315 S.E.2d 526 (1984).
2. e court may order the supporting spouse to transfer title to or possession of real or per-
sonal property but is not required to do so. [Spillers v.Spillers, 25 N.C. App. 261, 264, 212
S.E.2d 676, 679 (1975) (noting that while G.S.50-16.7(a) authorizes the trial court to order
the transfer of certain property, the statute “ in no way renders it mandatory or incumbent
upon the trial court to order any transfer of property” as part of alimony).]
a. e court may order alimony to be paid by:
i. Granting possession of real property to the dependent spouse. [G.S.50-16.7(a);
50-17. See Yearwood v.Yearwood, 287 N.C. 254, 214 S.E.2d 95 (1975) (arming,
as part of award of alimony pendente lite to wife, exclusive possession of the
home and order requiring husband to make monthly mortgage payments; strik-
ing, however, language that attempted to award wife “the equity accruing” from
husband’s monthly payments on the mortgage).]
ii. Transferring title to real property (located anywhere within North Carolina or in
another state) solely owned by the supporting spouse in payment of lump sum
alimony or postseparation support (PSS) or in payment of arrearages of alimony
or PSS so long as the net value of the property does not exceed the amount of
the arrearages. [G.S.50-16.7(a).] e court does not have the power to order
the sale of entirety property to procure funds to pay alimony or attorney fees.
[Porter v.Citizens Bank, 251 N.C. 573, 111 S.E.2d 904 (1960).]
iii. Transferring title or possession of personal property. [G.S.50-16.7(a).]
b. When the court awards real property to the dependent spouse as part of the alimony
award:
i. e court has power to issue a writ of possession when the court determines it
is necessary, but the court is not required to do so. [G.S.50-17; Porter v.Citizens
Bank, 251 N.C. 573, 111 S.E.2d 904 (1960) (court may issue a writ of possession
under G.S.50-17 giving wife possession of entirety property so that she may
apply any rents and prots to payment of alimony and attorney fees as xed by
the court); Clark v.Clark, 301 N.C. 123, 134 n.3, 271 S.E.2d 58, 67 n.3 (1980)
(court not required to issue a writ of possession, as there was no automatic right
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to possession of the house; possession was not an inherent aspect of wife’s stan-
dard of living).]
ii. e court may direct the supporting spouse to make mortgage, tax, and insur-
ance payments on the house. [Whedon v.Whedon, 58 N.C. App. 524, 294 S.E.2d
29, review denied, 306 N.C. 752, 295 S.E.2d 764 (1982).]
c. For transfer of property in the enforcement context, see Section III.K.5.d, below.
3. e court may order a supporting spouse to provide health insurance for a dependent
spouse as a form of “support and maintenance” if proper ndings have been made. [Lucas
v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011).]
a. An order requiring a party to maintain health insurance on the other party must
include proper ndings. [Lucas v.Lucas, 209 N.C. App. 492, 501, 706 S.E.2d 270, 277
(2011) (order requiring supporting spouse to “continue to maintain health insurance
coverage on the Plainti” was remanded for ndings when it failed to set out the rea-
son that plainti needed continued coverage, defendant’s ability to maintain plainti
on his policy after the divorce, what should occur if defendant is unable to maintain
plainti on his policy, the cost of maintaining plainti on the policy or of providing
alternativecoverage, whether plainti would be able to obtain coverage if not cov-
ered under defendant’s plan, what type of coverage would need to be provided, and
whether defendant could aord to provide alternative coverage); Myers v.Myers, 177
N.C. App. 462, 628 S.E.2d 867 (2006) (unpublished) (not paginated on Westlaw)
(nding and conclusion that defendant “has the nancial resources to maintain the
Plainti on his health insurance policy” was decient in that it failed to mention the
monetary cost of such a policy, as well as the reasons for why defendant should main-
tain his ex-wife on his health insurance policy).]
b. For another case upholding an order to provide insurance, see Brown v.Brown, 192
N.C. App. 734, 666 S.E.2d 217 (2008) (unpublished) (order requiring defendant to
provide health insurance upheld upon ndings that plainti was unable to pay for
the insurance, that defendant had provided insurance during marriage, and that the
temporary policy purchased by plainti was not as comprehensive as that oered
through defendant’s employer).]
c. For a case discussing health insurance in the context of a property settlement, see
Michael v.Michael, 198 N.C. App. 703, 681 S.E.2d 866 (2009) (unpublished).
4. e court may order the supporting spouse to secure the payment of postseparation sup-
port or alimony by:
a. A bond, mortgage, deed of trust, or any other means ordinarily used to secure an
obligation to pay money or transfer property or
b. Executing an assignment of wages, salary, or other income due or to become due.
[G.S.50-16.7(b); 50-16.7(l1) (authorizing income withholding for current or delin-
quent payments of alimony or postseparation support); Parker v.Parker, 13 N.C.
App. 616, 186 S.E.2d 607 (1972) (noting in dicta that requiring a bond was an appro-
priate method of enforcing the alimony order where defendant resided out of state
and had no attorney of record); Weaver v.Weaver, 88 N.C. App. 634, 364 S.E.2d 706
(creation of trust to secure payment of alimony and child support was proper exer-
cise of discretion), review denied, 322 N.C. 330, 368 S.E.2d 875 (1988).]
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c. For execution of a mortgage, deed of trust, or security interest in the enforcement
context, see Section III.K.5.b, below.
5. Assignment of wages, salary, or other income due or to become due.
a. e court may order a supporting spouse’s military retirement pay assigned to a
dependent spouse under 10 U.S.C. §1408, the Uniform Services Former Spouses’
Protection Act. [Faught v.Faught, 67 N.C. App. 37, 312 S.E.2d 504, review denied, 311
N.C. 304, 317 S.E.2d 680 (1984).]
b. Employee Retirement Income Security Act (ERISA) and Social Security Act
anti-alienation provisions do not preclude assignment of retirement and Social Secu-
rity benets to a spouse as alimony. [Evans v.Evans, 111 N.C. App. 792, 434 S.E.2d
856, review denied, 335 N.C. 554, 439 S.E.2d 144 (1993); 29 U.S.C. §1056(d)(3)(A)
(ERISA anti-alienation provisions not applicable to alimony provisions in a qualied
domestic relation order); 42 U.S.C. §659(a) (allowing Social Security benets to be
subject to legal process for a claim of alimony).]
c. For assignment of wages, salary, or other income due or to become due in the
enforcement context, see Section III.K.5.c, below.
6. Specic payment options upheld.
a. A trial court may direct that payments for alimony and alimony pendente lite be
made to a third party. [Sloan v.Sloan, 151 N.C. App. 399, 566 S.E.2d 97 (2002) (order
requiring husband to pay alimony pendente lite directly to a lien holder was upheld).]
b. No abuse of discretion when defendant was required to pay his alimony obligation
through an automatic bank draft. [Honeycutt v.Honeycutt, 188 N.C. App. 164, 654
S.E.2d 834 (2008) (unpublished).]
I. Termination of an Order for Alimony
1. Court-ordered alimony terminates upon the death of either the supporting or the
dependent spouse and upon the remarriage or cohabitation of the dependent spouse.
[G.S.50-16.9(b), amended by S.L. 1995-319, §§7 and 12, applicable to actions led on or
after Oct. 1, 1995.] Alimony provided for in a separation agreement approved by the court
and incorporated into a divorce decree or other order is court-ordered alimony. [Walters
v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983) (applicable to judgments entered on or
after Jan. 11, 1983) (a separation agreement approved by the court is treated as a court-
ordered judgment); Fucito v.Francis, 175 N.C. App. 144, 148, 622 S.E.2d 660, 663 (2005)
(for practical purposes, in Walters, the court fashioned a “one-size ts all” rule applicable
to incorporated settlement agreements in the area of domestic law, holding that when
parties present their separation agreement to the court for approval, the agreement will
no longer be considered a contract between the parties, but rather a court-ordered
judgment).]
2. Only “true alimony” terminates upon the happening of one of the events listed in Section
III.I.1, immediately above. If payments required by consent order or incorporated agree-
ment actually are property settlement rather than “alimony,” the payments will not ter-
minate except as expressly provided in the consent judgment or incorporated agreement.
[Marks v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986).]
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a. Whether payments to a party in a consent order are “true alimony,” subject to termi-
nation, or are payments exchanged for property settlement provisions.
i. Support provisions exchanged for property settlement provisions are a nonmod-
iable division of property and are not alimony. [Underwood v.Underwood, 365
N.C. 235, 717 S.E.2d 361 (2011) (citing Marks v.Marks, 316 N.C. 447, 342 S.E.2d
859 (1986)) (under Marks, such provisions, even if contained in a court-ordered
consent judgment, are not alimony but instead are part of an integrated property
settlement not modiable by the courts).]
ii. Merely labeling support payments as “alimony” does not make them alimony
for purposes of G.S.50-16.9(b). [Underwood v.Underwood, 365 N.C. 235, 717
S.E.2d 361 (2011) (citing Marks v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986),
and White v.White, 296 N.C. 661, 252 S.E.2d 698 (1979)).]
iii. When a consent order methodically enumerated stipulations and ndings that
established the essential elements of an alimony award, contained support pro-
visions that complied with the statutory denition of “alimony” and which were
listed separately from the order’s property provisions, and frequently used the
term “alimony,” the support provisions in the order were alimony, which the trial
court properly terminated pursuant to G.S.50-16.9(b) upon wife’s cohabitation.
[Underwood v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011) (consent order
“unambiguously” demonstrated the parties’ intent that payments to wife were
alimony).]
iv. A provision in the consent order that provided that support payments to wife
were given in reciprocal consideration for the agreement of the parties as to
equitable distribution and property settlement did not prevent the payments
from being treated as alimony subject to termination under G.S.50-16.9(b)
upon cohabitation, even though the consent judgment provided that payments
terminated upon wife’s death or remarriage and did not speak to cohabitation.
[Underwood v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011) (parties cannot,
by including a reciprocal consideration provision in their agreement, immunize
alimony payments from modication or termination under applicable statutes).]
v. See Spousal Agreements, Bench Book, Vol. 1, Chapter 1 for discussion of the
dierence between property settlement agreements and separation agreements
and for a discussion of integrated agreements.
3. Events that terminate true alimony.
a. Death of either the supporting or the dependent spouse.
i. Court-ordered support obligations terminate upon the death of either the sup-
porting or the dependent spouse. [G.S.50-16.9(b).]
ii. Trial court’s failure to include a provision in its order that alimony termi-
nated upon the supporting spouse’s death was “without consequence” since
G.S.50-16.9(b) so provided. [Webb v.Webb, 207 N.C. App. 526, 700 S.E.2d 248
(2010) (unpublished), review denied, 365 N.C. 211, 709 S.E.2d 924 (2011).]
iii. A contractual support obligation may be enforced after the death of a spouse.
[See White v.Graham, 72 N.C. App. 436, 325 S.E.2d 497 (1985) (noting that the
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death of husband did not terminate his obligation in an unincorporated separa-
tion agreement to support wife while she obtained a college degree, which his
estate could satisfactorily perform).]
iv. e estate of the dependent spouse can recover alimony that was due and pay-
able at the time of the dependent spouse’s death. [Briggs v.Briggs, 215 N.C. 78,
1 S.E.2d 118 (1939) (nding that wife’s administrator could recover payments
of alimony that had matured and were due at the time of her death). See also
Mazzocone v.Drumond, 42 N.C. App. 493, 256 S.E.2d 843 (action to enforce a
Pennsylvania money judgment for alimony arrearages did not abate upon death
of wife; action to collect a debt survives the death of the plainti), cert. denied,
298 N.C. 298, 259 S.E.2d 300 (1979).]
v. Payments that are part of a complete property settlement rather than alimony
do not terminate upon a spouse’s death. [2 Lee’s North Carolina Family Law
§9.86 (5th ed. 1999) (death has no eect on the right to future payments of an
award of property; the estate of the spouse has a claim for any portion of a prop-
erty award that remains unpaid).] See Spousal Agreements, Bench Book, Vol. 1,
Chapter 1 for discussion of the dierences between property settlement agree-
ments and separation agreements.
vi. Court-ordered support payments that are part of an integrated separation
agreement should not terminate upon the death of the dependent spouse. [2
Lee’s North Carolina Family Law §9.86 (5th ed. 1999).] See Spousal Agreements,
Bench Book, Vol. 1, Chapter 1 for discussion of integrated agreements.
vii. An alimony award cannot be made binding on the heirs of the supporting party.
[Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006) (statutory language
that an alimony award terminates upon the death of either party bars such a
provision and makes it of no eect).]
b. Remarriage of the dependent spouse.
i. Court-ordered support obligations terminate upon remarriage of the depen-
dent spouse. [G.S.50-16.9(b); Garner v.Garner, 88 N.C. App. 472, 363 S.E.2d
670 (1988) (construing unambiguous incorporated agreement that was silent
on eect of remarriage, alimony payments terminated pursuant to statute upon
wife’s remarriage). See also Potts v.Tutterow, 340 N.C. 97, 455 S.E.2d 156 (1995)
(when alimony is being paid in periodic payments, payments not yet due and
payable on the date of remarriage are terminated by the dependent spouse’s
remarriage).]
ii. An alimony award that has vested (i.e., is due but not yet paid) prior to the
dependent spouse’s remarriage survives the remarriage, whether lump sum
or by periodic payment. [Potts v.Tutterow, 114 N.C. App. 360, 442 S.E.2d 90
(1994), aff’d per curiam, 340 N.C. 97, 455 S.E.2d 156 (1995).]
iii. Accrued support arrearages that are unpaid at the time of remarriage may still
be recovered from the supporting spouse. [Potts v.Tutterow, 340 N.C. 97, 455
S.E.2d 156 (1995).]
iv. Court-ordered support payments that are part of an integrated separation
agreement are not true alimony and do not terminate as a matter of law upon
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remarriage of the dependent spouse. [Lemons v Lemons, 112 N.C. App. 110, 434
S.E.2d 638 (1993), review denied, 335 N.C. 556, 441 S.E.2d 117 (1994); Hayes
v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990) (citing Marks v.Marks, 316
N.C. 447, 342 S.E.2d 859 (1986)).] See Section III.I.2, above, and Spousal Agree-
ments, Bench Book, Vol. 1, Chapter 1.
v. Payments that are part of a complete property settlement rather than alimony
do not terminate upon the dependent spouse’s remarriage. [Allison v.Allison,
51 N.C. App. 622, 277 S.E.2d 551 (periodic payments to wife that were part of a
property settlement in which wife released rights to jointly held property did not
terminate upon wife’s remarriage), review denied, 303 N.C. 543, 281 S.E.2d 660
(1981); Michael v.Michael, 198 N.C. App. 703, 681 S.E.2d 866 (2009) (unpub-
lished) (when plain language of an incorporated separation agreement clearly
stated in the section of the agreement entitled “Property Settlement” that hus-
band’s monthly payments were intended to be part of the property settlement
and not alimony or other spousal support, and when parties specically waived
alimony in the agreement, payments were part of a property settlement and
did not terminate on wife’s remarriage).] See Spousal Agreements, Bench Book,
Vol. 1, Chapter 1 for discussion of the dierences between property settlement
agreements and separation agreements.
c. Cohabitation by the dependent spouse.
i. Law applicable to actions led before Oct. 1, 1995, and to actions not subject to
G.S.50-16.9(b).
(a) Under the law in eect before Oct. 1, 1995, in the absence of a specic
agreement between the parties, a trial court had no authority to include a
provision in its alimony award that alimony could automatically terminate
upon a spouse’s cohabitation with someone of the opposite sex. [Bookholt
v.Bookholt, 136 N.C. App. 247, 523 S.E.2d 729 (1999) (automatic termina-
tion of alimony for cohabitation under G.S.50-16.9(b) only applicable to
actions led on or after Oct. 1, 1995).]
(b) Under this earlier law, a party was relieved of obligations under an unincor-
porated separation agreement based on the other party’s cohabitation only
if the separation agreement so provided. [Sethness v.Sethness, 62 N.C. App.
676, 303 S.E.2d 424 (1983) (the agreement here did not make cohabitation
by wife a breach of the agreement or grounds for termination of husband’s
support obligation).]
(c) Upon sucient showing of wife’s cohabitation, husband’s alimony obliga-
tion terminated pursuant to an incorporated separation agreement that
provided alimony terminated on cohabitation. [Rehm v.Rehm, 104 N.C.
App. 490, 409 S.E.2d 723 (1991).]
ii. In actions led on or after Oct. 1, 1995, court-ordered support obligations ter-
minate upon cohabitation of the dependent spouse. [G.S.50-16.9(b), amended
by S.L. 1995-319, §§7 and 12, applicable to actions led on or after Oct. 1, 1995.]
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iii. A consent order was an “order of a court” for the purposes of G.S.50-16.9(b)
when adopted by the trial court as its order. [Underwood v.Underwood, 365
N.C. 235, 717 S.E.2d 361 (2011) (neither party argued otherwise).]
iv. Cohabitation is:
(a) e act of two adults dwelling together continuously and habitually in a
private heterosexual relationship, even if not solemnized by marriage, or in
a private homosexual relationship and
(b) Is evidenced by the voluntary mutual assumption of those marital rights,
duties, and obligations that are usually manifested by married people,
and that include, but are not necessarily dependent on, sexual relations.
[G.S.50-16.9(b) (applicable to actions led on or after Oct. 1, 1995).]
(1) To determine whether a couple has voluntarily assumed the rights,
duties, and obligations of married people, the trial court must consider
the totality of the circumstances. [Setzler v. Setzler, 781 S.E.2d 64 (N.C.
Ct. App. 2015) (citing Smallwood v.Smallwood, 227 N.C. App. 319, 742
S.E.2d 814 (2013).]
v. Policy underlying termination of support upon cohabitation.
(a) e rst sentence of G.S.50-16.9(b) “reects the goal of terminating ali-
mony [when the dependent spouse is] in a relationship that probably
has an economic impact.” e goal of the second sentence of the statute
is “to terminate postseparation support and alimony when the relation-
ship has an economic eect and when someone is acting in bad faith to
avoid termination.” [Smallwood v.Smallwood, 227 N.C. App. 319, 322,
323, 742 S.E.2d 814, 817, 818 (2013) (quoting 2 Lee’s North Carolina Fam-
ily Law §9.85 at 493–94, (5th ed. 1999) (quoting Craddock v.Craddock,
188 N.C. App. 806, 810, 656 S.E.2d 716, 719 (2008))); Setzler v. Setzler,
781 S.E.2d 64 (N.C. Ct. App. 2015) (citing Smallwood, 742 S.E.2d at 818.]
Note, however, that in Bird v.Bird, 363 N.C. 774, 688 S.E.2d 420 (2010),
determining that evidence of cohabitation was sucient to overcome
wife’s motion for summary judgment on husband’s motion to terminate
alimony, the North Carolina Supreme Court did not mention “the eco-
nomic impact of the relationship.” For more on Setzler and Bird, see Cheryl
Howell, Alimony: Cohabitation Is About Money After All, UNC S.
G’: O C S B (May 27, 2016), http://civil.sog.unc.edu/
alimony-cohabitation-is-all-about-money-after-all.
(b) “[T]he primary legislative policy in making cohabitation, not just remar-
riage, grounds for termination of alimony was to evaluate the economic
impact of a relationship on the dependent spouse and, consequently, avoid
bad faith receipts of alimony.” [Setzler v. Setzler, 781 S.E.2d 64, 70 (N.C. Ct.
App. 2015).]
vi. Two methods have been used to determine whether parties have cohabitated:
(a) When there is objective evidence that is not conicting that the parties
have or have not held themselves out as man and wife, the court does not
consider the subjective intent of the parties. [Smallwood v.Smallwood, 227
N.C. App. 319, 742 S.E.2d 814 (2013) (trial court not required to make a
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nding on issue of subjective intent when ndings as to objective evidence
were sucient to support conclusion of no cohabitation).]
(b) When the objective evidence on cohabitation is conicting, the parties are
entitled to present evidence regarding subjective intent. [Bird v.Bird, 363
N.C. 774, 688 S.E.2d 420 (2010) (adopting approach of the court of appeals
in Oakley v.Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004)) (Oakley
analysis addressed the voluntary assumption of marital rights and duties
under G.S.50-16.9 by considering the law applicable to resumption of the
maritalrelationship and considering the totality of the circumstances);
Craddock v.Craddock, 188 N.C. App. 806, 656 S.E.2d 716 (2008) (noting
the two tests set out in Oakley and applying the second); Russo v.Russo,
217 N.C. App. 400, 720 S.E.2d 28 (2011) (unpublished) (not paginated on
Westlaw) (“objective evidence” as used in Oakley and Bird does not place
a limit on the source of the evidence that a trial may consider but directs
the trial court to look at overt actions and behaviors rather than the parties’
expressions of subjective intent regarding cohabitation).]
vii. Procedural issues.
(a) A supporting spouse cannot automatically cease paying support due to the
dependent spouse’s cohabitation or remarriage without a court order. e
supporting spouse must rst le a motion with the trial court, notify the
dependent spouse, and obtain a court order terminating support as of a
date certain. [Williamson v.Williamson, 142 N.C. App. 702, 543 S.E.2d 897
(2001) (trial court terminated obligation as of date cohabitation was found
to exist). See also Bookholt v.Bookholt, 136 N.C. App. 247, 523 S.E.2d 729
(1999) (G.S.50-16.9(b) provides that cohabitation automatically terminates
alimony), superseded on other grounds by statute as stated in William-
son. But see also 2 Lee’s North Carolina Family Law §9.85 (5th ed. 1999)
(alimony should not terminate earlier than date on which motion seeking
termination was led).]
(b) A motion to terminate alimony based on cohabitation should be made pur-
suant to G.S.50-16.9, not G.S.1A-1, Rule 60(b)(1). [Oakley v.Oakley, 165
N.C. App. 859, 599 S.E.2d 925 (2004) (incorporated separation agreement).]
viii. Cohabitation can be a defense in an initial action for alimony. [Williamson
v.Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001) (wife awarded post-
separation support but was denied alimony based on her cohabitation; court
rejected wife’s argument that G.S.50-16.9, which terminates alimony upon
cohabitation, applies only to modication of an existing order for alimony; order
nding that husband not obligated for alimony or postseparation support pay-
ments from the time wife’s cohabitation began was armed).]
ix. Cases nding no cohabitation.
(a) While defendant and boyfriend had a monogamous sexual relationship
and spent almost every night together at boyfriend’s residence, they did
not assume the rights and duties of married couples when they maintained
separate homes, neither kept clothes or other personal items at the other’s
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house, amounts provided to defendant or paid on her behalf by boyfriend
were repaid by defendant from equitable distribution proceeds, and neither
represented that they were married. Additionally, there was a reasonable
inference arising from the parties’ planned marriage, which would termi-
nate four of the ve years of alimony defendant was to receive, that defen-
dant’s cohabitation was not motivated by a desire to continue receiving
alimony. [Setzler v. Setzler, 781 S.E.2d 64 (N.C. Ct. App. 2015).]
(b) While plainti and boyfriend engaged in some domestic activities, they
did not assume marital rights and duties extending beyond those found in
an intimate friendship in that they did not incur joint nancial obligations,
share a home, combine nances, pool resources, or consistently merge
their families. [Smallwood v.Smallwood, 227 N.C. App. 319, 742 S.E.2d 814
(2013).]
(c) No cohabitation by wife when evidence did not show activities beyond a
sexual relationship with a boyfriend and their occasional trips and dates.
[Oakley v.Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004) (objective
evidence on cohabitation not conicting, so subjective intent of parties not
examined).]
(d) No cohabitation by wife when evidence did not show that wife and third
party lived together “continuously and habitually” and “engaged in volun-
tary mutual assumption of those marital rights, duties and obligations usu-
ally manifested by married people.” ird party’s overnight visitswere “spo-
radic,” and except for a period of less than a month when third party helped
wife with her son, third party did not move his belongings into wife’s home
or contribute nancially to wife’s living expenses and throughout period
at issue maintained a separate residence. [Faulkenbury v.Faulkenbury,
195 N.C. App. 459, 673 S.E.2d 168 (2009) (unpublished) (not paginated on
Westlaw) (objective evidence on cohabitation not conicting, so subjective
intent of parties not examined), review denied, 363 N.C. 801, 690 S.E.2d 535
(2010).]
(e) Parties did not dwell together continuously or habitually when they had
a mostly exclusive sexual relationship for fteen months, boyfriend never
moved in with wife and instead lived with his parents, he stayed overnight
at wife’s house infrequently except for two-month period when he stayed
two to three nights per week, he called before going to wife’s house, did not
have keys to wife’s house or car, and did not receive mail at wife’s house.
[Russo v.Russo, 217 N.C. App. 400, 720 S.E.2d 28 (2011) (unpublished).]
(f) Parties did not voluntarily assume rights, duties, and obligations of mar-
ried persons when boyfriend did minor maintenance on wife’s home and
car, wife had occasional interaction with boyfriend’s children and parents,
parties did not share nancial obligations or exchange gifts, and did not
purchase items for each other without reimbursement. [Russo v.Russo, 217
N.C. App. 400, 720 S.E.2d 28 (2011) (unpublished).]
(g) No cohabitation by wife when ndings primarily revealed that boyfriend
assisted in some ways with wife’s children, boyfriend and wife had a dating
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and sexual relationship, the two had dinners together when boyfriend was
in town, and spent time together shopping, attending church, and traveling;
and further that boyfriend maintained his own “lived in” residence and did
not keep toiletries or clothing in wife’s home, did not receive mail there,
and did not pay household expenses; and nally that wife and boyfriend did
not maintain nancial accounts together. [Shaw v.Shaw, 182 N.C. App. 347,
641 S.E.2d 867 (2007) (unpublished) (not paginated on Westlaw) (facts
did not show a mutual assumption of marital rights, duties, and obligations
usually manifested by married persons).]
x. Summary judgment improper when evidence on cohabitation is conicting.
(a) Adavit of husband’s private investigator stated that it “appeared as though
no one lived” in third party’s residence and that third party had been
observed spending eleven consecutive nights in wife’s residence; there was
some evidence that wife and third party had voluntarily assumed some
degree of marital rights, duties, and obligations by sharing in chores and
participating in typical family activities like going out to dinner with wife’s
children and walking wife’s dog, and unloading vehicle when she returned
from trips. But adavit of third party denied that he ever cohabitated with
wife, wife also denied cohabitation, and evidence showed a genuine dispute
regarding the subjective intent of wife and third party with respect to their
relationship. [Bird v.Bird, 363 N.C. 774, 783, 688 S.E.2d 420, 425 (2010)
(evidence of cohabitation sucient to overcome wife’s motion for summary
judgment on husband’s motion to terminate alimony).]
(b) Conicting evidence was presented on number of nights per week third
party stayed overnight at wife’s residence, whether third party perma-
nently kept his clothes at wife’s residence, and the extent to which third
party used wife’s residence as the base for his appraisal business. [Craddock
v.Craddock, 188 N.C. App. 806, 656 S.E.2d 716 (2008) (summary judgment
reversed).]
xi. When unincorporated separation agreement is involved.
(a) While cohabitation will result in the termination of a support order entered
by a court, either as the result of a contested hearing or by a consent order,
cohabitation will not terminate a support obligation arising from an unin-
corporated separation agreement unless so specied in the contract. [See
Jones v.Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001) (where parties were
subject to a court-ordered consent judgment and an earlier unincorpo-
rated separation agreement, the provision in the consent order for alimony
terminated upon the wife’s cohabitation pursuant to G.S.50-16.9 but her
cohabitation did not terminate the contractual support provision in the
agreement).]
(b) Whether a spouse’s contractual obligation to pay alimony was dependent
on the other spouse’s compliance with provisions in the same agreement
addressing visitation, nonharassment, or noncohabitation was a factual
issue to be resolved by determining the intent of the parties when they
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signed the agreement. [Nisbet v.Nisbet, 102 N.C. App. 232, 402 S.E.2d 151
(unincorporated agreement was silent on the question of whether provi-
sions were dependent; trial court erred in granting summary judgment on
wife’s claim for alimony arrearages), review denied, 329 N.C. 499, 407 S.E.2d
538 (1991).]
d. Except as noted in Section III.I.3.d.vii, below, reconciliation between parties who
remain married terminates an obligation to pay alimony. [O’Hara v.O’Hara, 46 N.C.
App. 819, 266 S.E.2d 59 (1980) (resumption of the marital relationship voided an
award of permanent alimony entered in an action for alimony without divorce). See
also Schultz v.Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992) (citing O’Hara)
(resumption of the marital relationship voids the executory portions of an order or
separation agreement; duty to pay alimony pursuant to a consent judgment entered
after separation ended upon resumption of marital relations), review denied, 333
N.C. 347, 426 S.E.2d 710 (1993).]
i. Reconciliation is to be determined in accordance with G.S.52-10.2.
[G.S.50-16.9(a).]
ii. “Resumption of marital relations” is dened as the voluntary renewal of the
husband and wife relationship, as shown by the totality of the circumstances.
[G.S.52-10.2.]
iii. Isolated instances of sexual intercourse between the parties do not constitute
resumption of marital relations. [G.S.52-10.2.]
iv. Two methods have been used to determine whether the parties have reconciled:
(a) When there is substantial objective indicia of cohabitation, the trial court
may nd that the parties have reconciled as a matter of law.
(b) When the objective evidence on reconciliation is conicting, the subjective
mutual intent of the parties is considered. [Schultz v.Schultz, 107 N.C. App.
366, 420 S.E.2d 186 (1992), review denied, 333 N.C. 347, 426 S.E.2d 710
(1993).]
v. Four hours on each of six evenings spent together in the former marital home
eating dinner and visiting with the parties’ children in combination with three
or four “isolated acts” of sexual intercourse did not constitute resumption of
marital relations under G.S.52-10.2. [Fletcher v.Fletcher, 123 N.C. App. 744,
474 S.E.2d 802 (1996) (wife never “moved” back into or resumed cohabitation
in the marital home but instead maintained her separate residence; time period
involved was brief; no evidence that parties shared chores or household respon-
sibilities, that they accompanied each other to public places or held themselves
out as husband and wife, or indicated to others that their problems had been
resolved or that they desired to terminate their separation), review denied, 345
N.C. 640, 483 S.E.2d 706 (1997).]
vi. Parties resumed marital relations as a matter of law under G.S.52-10.2 where
undisputed evidence showed they lived together for four months, had sexual
relations, led a joint tax return, and held themselves out as husband and wife.
[Schultz v.Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992) (because facts were
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undisputed, trial court should not have examined mutual intent of the parties),
review denied, 333 N.C. 347, 426 S.E.2d 710 (1993).]
vii. EXCEPTION: For contracts entered into on or after June 19, 2013, spouses who
are separated but contemplating reconciliation may provide for support rights
or for the waiver of support rights that will apply upon the occasion of any
future separation. [G.S.52-10(a1).] is statute does not authorize agreements
regarding support rights and obligations while the parties live together as hus-
band and wife. [See In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989)
(recognizing that the state supreme court in Motley v.Motley, 255 N.C. 190, 120
S.E.2d 422 (1961), established as public policy that married parties may not shirk
their spousal duties of support and alimony and yet live together as a married
couple), aff’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).] A provision in a
contract between a husband and wife made, with or without a valuable consider-
ation, during a period of separation waiving, releasing, or establishing rights and
obligations to postseparation support, alimony, or spousal support shall remain
valid following a period of reconciliation and subsequent separation if the con-
tract is in writing, the provision waiving the rights or obligations is clearly stated
in the contract, and the contract was acknowledged by both parties before a
certifying ocer. [G.S.52-10(a1), added by S.L. 2013-140, §1, eective June 19,
2013.]
viii. See Spousal Agreements, Bench Book, Vol. 1, Chapter 1 for eect of reconcilia-
tion on obligations in a separation agreement.
J. Modication of an Order for Alimony
1. Generally.
a. An order for alimony, whether contested or entered by consent, may be modied or
vacated at any time, upon a motion in the cause and a showing of changed circum-
stances by either party or anyone interested. [G.S.50-16.9(a).]
b. Once a North Carolina court enters an alimony order, North Carolina retains
continuing, exclusive jurisdiction to modify the order. [G.S. 52C-2-211(a), added by
S.L. 2015-117, §1, eective June 24, 2015.]
c. A North Carolina court may not modify an alimony order issued by another state or
foreign country if that state or country has continuing, exclusive jurisdiction pursu-
ant to its own law. [G.S. 52C-2-211(b).]
d. Payments required by a consent judgment or incorporated agreement may not be
modied if they are not “true” alimony. See Section III.I, above, for a discussion of
termination of alimony, and Spousal Agreements, Bench Book, Vol. 1, Chapter 1.
e. e 1995 amendments to the alimony statutes do not apply to motions seeking to
modify support orders entered before Oct. 1, 1995. [S.L. 1995-319, §12.] However,
former G.S.50-16.9(a) also provided that “an order for alimony or alimony pendente
lite, whether contested or entered by consent, may be modied or vacated at any
time, upon a motion in the cause and a showing of changed circumstances by either
party or anyone interested.”
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f. It is unclear whether alimony can be modied if the motion to modify is led after
the term of alimony originally ordered has expired.
i. Under the alimony statute before amendment in 1995, an award of lump sum
alimony for a specied period, or a xed-term alimony award, was subject to
modication and termination prior to payment in full only if the modication
or termination occurred before vesting of the last payment. [Cathey v.Cathey,
210 N.C. App. 230, 707 S.E.2d 638 (2011) (citing Potts v.Tutterow, 114 N.C.
App. 360, 442 S.E.2d 90 (1994)) (because the pre-1995 alimony statute did not
expressly authorize periodic payments for a set period of time, an award of ali-
mony for forty-two months was considered a lump sum payment of support).]
ii. Because the payment was considered lump sum alimony under the pre-1995
alimony statute, once paid in full, an award of alimony for a specied period, or
a xed-term alimony award, was not subject to modication. In other words,
after the supporting spouse satised his court-ordered obligation, the original
alimony award ceased to exist, and there was no longer an alimony award for the
trial court to later modify. [Cathey v.Cathey, 210 N.C. App. 230, 707 S.E.2d 638
(2011) (1994 order awarding alimony for forty-two months not subject to mod-
ication pursuant to a motion led in 2008, the 1994 award having been paid in
full).]
iii. ere is no case law on whether the same is true under the statute as amended
in 1995. e post-1995 statute expressly authorizes alimony for a limited
duration. [See G.S.50-16.7(a), authorizing periodic payments of alimony, and
G.S. 50-16.3A, requiring the court to set forth reasons for duration ordered;
Kowalick v.Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998) (modication
never results in loss of dependent status).]
g. e trial court’s jurisdiction is limited to the specic issues properly raised by a party
or interested person.
i. It was error for trial court to modify child support and custody when only ques-
tion before court was alimony. [Smith v.Smith, 15 N.C. App. 180, 189 S.E.2d 525
(1972).]
ii. Court erred by addressing alimony when only motion before it was for modi-
cation of child support. [Van Nynatten v.Van Nynatten, 113 N.C. App. 142, 438
S.E.2d 417 (1993).]
h. A court does not have to nd a substantial change of circumstances before awarding
alimony in an amount dierent from the postseparation support order. [Langdon
v.Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007).]
i. Even when the moving party has shown changed circumstances, the trial court is
not required to modify an alimony award but has discretion to do so. [Honeycutt
v.Honeycutt, 152 N.C. App. 673, 568 S.E.2d 260 (2002) (citing Kowalick v.Kowalick,
129 N.C. App. 781, 501 S.E.2d 671 (1998)).]
j. Although G.S.50-16.3A(b) sets forth sixteen factors to be considered in the estab-
lishment of alimony, a trial court need not address each of these upon a motion for
modication. e trial court need address only those that are relevant to the motion
to modify. [Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013).]
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k. A trial court may NOT reconsider issue of dependency at modication hearing.
[Cunningham v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997) (amount can be
modied or alimony terminated but dependency is conclusively established by rst
order); Honeycutt v.Honeycutt, 152 N.C. App. 673, 568 S.E.2d 260 (2002) (citing
Kowalick v.Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998)) (even if amount of
alimony is reduced to zero, modication does not result in loss of dependent spouse
status).]
l. However, if receiving spouse is no longer dependent at time of hearing on motion to
modify, power to modify includes power to terminate alimony obligation altogether.
[Marks v.Marks, 316 N.C. 447, 461, 342 S.E.2d 859, 867 (1986) (ndings fully sup-
ported trial judge’s conclusion that “plainti is no longer a dependent spouse,” which
supported the order terminating defendant’s alimony obligation); Cathey v.Cathey,
210 N.C. App. 230, 233, 707 S.E.2d 638, 640 (2011) (quoting Sayland v.Sayland, 267
N.C. 378, 383, 148 S.E.2d 218, 222 (1966)) (power to modify “includes the power to
terminate ‘absolutely’ ”); Frey v.Best, 189 N.C. App. 622, 625, 659 S.E.2d 60, 65 (2008)
(quoting Self v.Self, 93 N.C. App. 323, 325, 377 S.E.2d 800, 801 (1989)) (“power to
modify [under G.S.50-16.9(a)] includes the power to terminate alimony altogether”).]
m. Upon motion and required showing, a court may make modication eective as
of date petition to modify is led or any date thereafter. [Hill v.Hill, 335 N.C. 140,
435 S.E.2d 766 (1993) (order modifying alimony from the date the matter was rst
noticed for hearing was not a retroactive modication).]
n. Procedure when entering a new alimony order.
i. On the rst remand of the case, the trial court erred by entering a lump sum
award covering the period between the date of divorce (November 1997) and
the hearing on remand (February 2003) without considering husband’s motion
alleging a change of circumstances since the original hearing (May 1998). [Rhew
v.Felton, 178 N.C. App. 475, 631 S.E.2d 859 (lump sum award vacated), review
denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006).]
ii. On the second remand of the case, the trial court was instructed to:
(a) Allow husband to present evidence of a substantial change of circum-
stances between the time of the original hearing (May 1998) and the rst
hearing on remand (February 2003), to redetermine the amount of alimony
and husband’s ability to pay during that period, and to enter an appropriate
award, depending on whether husband met his burden on changed circum-
stances, and
(b) Consider any motions for modication for the period from the rst hearing
on remand (February 2003) until the time the case was again heard on
remand. [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d 859 (unique facts of
the case called for the unusual procedure), review denied, appeal dismissed,
360 N.C. 648, 636 S.E.2d 810 (2006).]
2. Changed circumstances.
a. “. . . [N]ot any change of circumstances will be sucient to order modication of
an alimony award; rather, the phrase is used as a term of art to mean a substantial
change in conditions, upon which the moving party bears the burden of proving that
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the present award is either inadequate or unduly burdensome.” [Britt v.Britt, 49 N.C.
App. 463, 470, 271 S.E.2d 921, 926 (1980) (emphasis in original); Dodson v.Dodson,
190 N.C. App. 412, 660 S.E.2d 93 (2008) (citing Britt).]
b. “As a general rule, the changed circumstances necessary for modication of an ali-
mony order must relate to the nancial needs of the dependent spouse or the sup-
porting spouse’s ability to pay.” [Rowe v.Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846
(1982); Parsons v.Parsons, 231 N.C. App. 397, 399, 752 S.E.2d 530, 532–33 (2013),
Cunningham v.Cunningham, 345 N.C. 430, 436, 480 S.E.2d 403, 406 (1997), and
Pierce v.Pierce, 188 N.C. App. 488, 495, 655 S.E.2d 863, 867 (2008) (Parsons, Cun-
ningham, and Pierce quoting language from Rowe set out above); Kelly v.Kelly, 228
N.C. App. 600, 612, 747 S.E.2d 268, 279 (2013) (quoting Britt v.Britt, 49 N.C. App.
463, 470–71, 271 S.E.2d 921, 926 (1980)) (change sucient to modify alimony “must
bear on the nancial needs of the dependent spouse or the ability of the supporting
spouse to pay, rather than post-marital conduct of either party.”).]
c. Party requesting modication of the award has the burden of proving a change in
circumstances by a preponderance of the evidence. [Marks v.Marks, 316 N.C. 447,
342 S.E.2d 859 (1986).]
i. e decision about modication must be based on comparison of facts exist-
ing at time of original order and at time when modication is sought. [Marks
v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986) (present overall circumstances
of the parties must be compared with the circumstances existing at the time of
the original award in order to determine if there has been a substantial change);
Dodson v.Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008) (modication should
be founded upon a comparison of the present overall circumstances of the
parties with circumstances existing at time of original alimony award). See also
Harris v.Harris, 188 N.C. App. 477, 481, 656 S.E.2d 316, 318 (2008) (quoting
Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982)), and Sloan v.Sloan,
151 N.C. App. 399, 406, 566 S.E.2d 97, 102 (2002) (quoting Rowe, 305 N.C. at
187, 287 S.E.2d at 846 ) (“[t]o determine whether a change of circumstances .
. . has occurred, it is necessary to refer to the circumstances or factors used in
the original” alimony determination); Medlin v.Medlin, 64 N.C. App. 600, 307
S.E.2d 591 (1983) (citing Britt v.Britt, 49 N.C. App. 463, 474, 271 S.E.2d 921,
928 (1980)) (extant overall circumstances of the parties must be compared with
those at the time of the award to determine whether substantial change has
occurred).] For the procedure used when a private agreement is involved, which
may not contain ndings as to the original circumstances, see Section III.J.5.b,
below.
d. In deciding whether there has been a change of circumstances, the court should
consider the same factors used to make the initial alimony award. [Rowe v.Rowe,
305 N.C. 177, 287 S.E.2d 840 (1982); Cunningham v.Cunningham, 345 N.C. 430,
480 S.E.2d 403 (1997) (citing Rowe); Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268
(2013) (citing Rowe and Pierce v.Pierce, 188 N.C. App. 488, 655 S.E.2d 863 (2008));
Pierce (citing Rowe); Kowalick v.Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671,
674 (1998) (quoting Cunningham, 345 N.C. at 435, 480 S.E.2d at 406) (only those
changed circumstances that relate to the “factors used in the original determination
of the amount of alimony awarded” are relevant).]
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e. A change in circumstances warranting modication would not ordinarily be a change
that was contemplated by the original agreement and for which a provision was made
therein for appropriate adjustment. [Cunningham v.Cunningham, 345 N.C. 430,
480 S.E.2d 403 (1997) (citing Britt v.Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980))
(where separation agreement provided an automatic adjustment provision for uctu-
ations in supporting spouse’s income, reduction in his income did not warrant mod-
ication absent a showing that the change hindered his ability to pay alimony). See
also Hightower v.Hightower, 85 N.C. App. 333, 354 S.E.2d 743 (amount of alimony
was clearly calculated on assumption that dependent spouse would secure a mini-
mum wage job; that she did so did not justify modication), cert. denied, 320 N.C.
792, 361 S.E.2d 76 (1987); Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013)
(uctuations in supporting spouse’s income “occurred historically” and were known
at time alimony order was entered; determination that defendant’s income had not
substantially decreased, even though it had decreased in the two most recent years,
was not an abuse of discretion).]
f. Modication may be warranted when a foreseeable change is coupled with an
unforeseeable change. [See Harris v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008)
(modication allowed based on termination of child support payments upon child
reaching majority, which was foreseeable, and on doubling of wife’s living expenses,
which was not necessarily foreseeable when original award was entered).]
g. If the supporting spouse diverts assets or voluntarily reduces income for the purpose
of avoiding the payment of alimony, the court should consider imputing income on a
motion to modify. [Britt v.Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).] For more
on imputing income, see Section III.D.9.b.iii, above.
h. Changes relating to supporting spouse.
i. Change of income of supporting spouse is not sucient to establish substantial
change in circumstances. [Frey v.Best, 189 N.C. App. 622, 659 S.E.2d 60 (2008)
(inquiry is how a change in income aects a supporting spouse’s ability to pay,
or a dependent spouse’s need for, support); Harris v.Harris, 188 N.C. App.
477, 656 S.E.2d 316 (2008) (citing Britt v.Britt, 49 N.C. App. 463, 271 S.E.2d
921 (1980)) (reduction in supporting spouse’s salary or income does not auto-
matically entitle supporting spouse to a reduction in alimony or maintenance);
Medlin v.Medlin, 64 N.C. App. 600, 307 S.E.2d 591 (1983) (citing Britt); Britt
(general view is that uctuations in income alone do not comprise changed cir-
cumstances requiring modication); Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d
268 (2013) (nding that supporting spouse’s income from law practice, which
normally uctuated, had not substantially decreased since alimony was ordered
was not an abuse of discretion based on trial court’s comparison of the average
yearly income for the six-year period prior to entry of alimony order ($380,000)
and the six-year period after its entry ($618,000), even though average for most
recent two years was $220,500; key was that supporting spouse’s ability to pay
had not changed; he had made monthly alimony payments in full and generally
on time and had made substantial discretionary purchases and investments
since entry of order).]
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ii. A substantial reduction in income that the court nds to be based on a party’s
bad faith will not warrant modication. [Wolf v.Wolf, 151 N.C. App. 523, 566
S.E.2d 516 (2002) (trial court did not err when it refused to modify a husband’s
postseparation support payments based on a substantial reduction in his income
when it found that he had in bad faith disregarded his marital obligations; hus-
band’s unemployment was voluntary because his actions at work irritated and
embarrassed his employer, resulting in an “entirely predictable” termination);
Engelhard v.Engelhard, 209 N.C. App. 750, 709 S.E.2d 602 (2011) (unpublished)
(motion to modify alimony properly denied when defendant changed jobs in bad
faith to suppress his income).]
iii. Remarriage of supporting spouse and voluntary assumption of additional obliga-
tions do not constitute a sucient showing of changed circumstances. [Sayland
v.Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966) (stating rule but vacating judg-
ment that denied motion to modify brought by husband, who had remarried,
on other grounds); Barham v.Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997)
(citing Sayland) (act of supporting spouse in pledging cash reserves of his Sub-
chapter S corporation to a bank, thus precluding those funds from being income
to him, placed the burden of his voluntarily-assumed business investment on the
dependent spouse, which she should not be made to bear), aff’d per curiam, 347
N.C. 570, 494 S.E.2d 763 (1998).]
iv. A supporting spouse’s nancial irresponsibility is not a basis to reduce his ali-
mony obligation. Harris v.Harris, 258 N.C. 121, 128 S.E.2d 123 (1962) (a nd-
ing that the defendant was a spendthrift whose expenditures had exceeded his
income every year for a number of years did not warrant reduction in alimony),
superseded on other grounds by statute as stated in Wells v.Wells, 132 N.C. App.
401, 512 S.E.2d 468 (1999).]
v. A supporting spouse’s discharge in bankruptcy can constitute a change in cir-
cumstances warranting modication of an alimony award. [Sloan v.Sloan, 151
N.C. App. 399, 566 S.E.2d 97 (2002) (husband’s continued use of an equity line
of credit and his subsequent discharge of the line of credit debt constituted a
substantial change).]
vi. Modication of alimony armed based on fact that defendant’s situation had
improved so that he was now able to pay plainti’s entire monthly shortfall,
while plainti’s overall nancial situation had worsened; even though her
expenses had decreased, plainti still had a considerable shortfall between
income and expenses, her credit card debt had increased, and she had exhausted
funds received in equitable distribution to pay monthly expenses. [Pierce
v.Pierce, 188 N.C. App. 488, 655 S.E.2d 863 (2008).]
i. Changes relating to dependent spouse.
i. Change in income of dependent spouse alone was not a sucient change in cir-
cumstances to warrant modication. [Frey v.Best, 189 N.C. App. 622, 659 S.E.2d
60 (2008) (increase in wife’s income from $200/month to $3,788/month not suf-
cient by itself to warrant modication); Cunningham v.Cunningham, 345 N.C.
430, 480 S.E.2d 403 (1997) (increase in wife’s income from part-time work from
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about $2,400 a year to approximately $7,000 at the time of modication hear-
ing not sucient). See also Dodson v.Dodson, 190 N.C. App. 412, 660 S.E.2d 93
(2008) (court must consider how increase in wife’s imputed income from $600/
month to actual income of $1,725/month aects her need for support and must
make ndings as to her reasonable current nancial needs and expenses and the
ratio of those needs and expenses to her income).]
ii. at the dependent spouse has acquired a substantial amount of property, or
that the property has increased in value, after entry of a decree for alimony
or maintenance is an important consideration in determining modication.
[Sayland v.Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966) (stating rule but vacat-
ing judgment that denied motion to modify on other grounds); Cunningham
v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997) (citing Sayland).]
iii. A substantial change in the dependent spouse’s needs may warrant modication
of an alimony award. [Sayland v.Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966)
(when dependent spouse was adjudged incompetent and committed to facility
after alimony was awarded, which alimony was more than three times the cost
of her care, denial of supporting spouse’s motion to be relieved of further sup-
port obligations was vacated and matter was remanded).]
iv. A dependent spouse is not required to reduce her living expenses during the life
of an alimony order, even if there may be the potential to do so. [Kelly v.Kelly,
228 N.C. App. 600, 747 S.E.2d 268 (2013) (noting there is no case law arma-
tively requiring a dependent spouse to reduce living expenses over time; in
this case, evidence supported ndings that dependent spouse’s needs had not
decreased substantially, her expenses had increased slightly, and supporting
spouse’s ability to pay had not changed).]
v. Change in wife’s nancial need, coupled with loss of child support income after
child reached majority and the resulting substantial increase in her housing
and related expenses, sucient to warrant a modication of alimony. [Harris
v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008) (wife’s reasonable housing
and related expenses increased signicantly upon cessation of child support
because they were originally calculated with half of those expenses attributable
to the minor child and paid by child support); Clark v.Clark, 231 N.C. App.
514, 753 S.E.2d 743 (2013) (unpublished) (not paginated on Westlaw) (citing
Harris) (in appropriate circumstances, a trial court may consider the fact that
the dependent spouse’s expenses will increase when a child for whom support
is being paid reaches majority; trial court did not increase wife’s alimony but
husband objected to a nding by that court which the appellate court, after con-
sidering related ndings, characterized as a “general nding” that wife’s nancial
situation would become more challenging after both children reached majority
and that expressed the trial court’s “general awareness” that the parties’ eco-
nomic circumstances and nancial obligations were in a transitional period after
one child had reached majority; no error in including a nding that acknowl-
edged that termination of child support payments would increase wife’s nancial
burden; no prejudice to supporting party when trial court retained jurisdiction
and directed that matter be brought back before it for review when younger
child reached majority).]
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3. Amount of new award.
a. Modied amount must be based upon the standard of living of the parties during
the marriage and not on the standard of living subsequent to entry of the original
alimony order. [Barham v.Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff ’d per
curiam, 347 N.C. 570, 494 S.E.2d 763 (1998).]
b. In deciding amount of new award, where a party’s new spouse shares responsibil-
ity for that party’s expenses and needs, it is proper for the trial court to consider
income received by the new spouse in weighing the party’s necessary and reasonable
expenses and debts against his nancial ability to pay. [Harris v.Harris, 188 N.C.
App. 477, 656 S.E.2d 316 (2008) (citing Broughton v.Broughton, 58 N.C. App. 778,
294 S.E.2d 772 (1982)) (trial court properly restricted its consideration to the extent
that defendant-husband’s present wife’s income reduced his reasonable expenses and
increased his ability to pay).]
4. Findings of fact.
a. Findings must show basis for amount of new award. [G.S.50-16.8 (postseparation
support) and 50-16.3A(c) (alimony).]
b. e trial court is required to nd specic ultimate facts to support its judgment that
there has been a material and substantial change in circumstances to support a mod-
ication of an alimony order, and the facts found must be sucient for the appel-
late court to determine that the judgment is adequately supported by competent
evidence. [Frey v.Best, 189 N.C. App. 622, 659 S.E.2d 60 (2008) (citing Montgomery
v.Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977)); Kelly v.Kelly, 228 N.C. App.
600, 747 S.E.2d 268 (2013) (rejecting supporting spouse’s argument that a “bare
bones” three-page order was insucient when trial court found the ultimate facts
raised by the motion to modify and the ndings were supported by the evidence;
moreover, given that 2004 alimony order set out detailed information as to the par-
ties’ assets and debts, nding that supporting spouse’s assets and debts were “similar”
in 2011 was sucient without listing the assets and debts in detail).]
c. e trial court must make ndings as to any of the factors in G.S.50-16.3A(b) that
have changed since entry of the alimony award that is being considered for modi-
cation, except that there is no need to make a nding as to the eighth factor, “[t]he
standard of living of the spouses established during the marriage.” [Swain v.Swain,
179 N.C. App. 795, 635 S.E.2d 504 (2006) (noting that the standard of living that the
couple enjoyed while married will not change due to circumstances occurring after
divorce and entry of an alimony award), review denied, 361 N.C. 437, 649 S.E.2d 897
(2007); Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013) (no need for the trial
court to address each of the sixteen factors in G.S.50-16.3A(b); rather, trial court
need address only those factors relevant to the motion to modify).]
d. A modifying court is not limited to only those ndings of fact made by the court that
entered the original alimony order, nor is it prohibited from making additional and
independent ndings of fact as to, in this case, the parties’ health and nancial needs
existing at the time of the original alimony order based on evidence presented at the
modication hearing. [Self v.Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).]
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e. Where court in original alimony order considered the relative assets and liabilities
of the spouses, trial court in modication proceeding was required to consider and
make ndings as to that factor. [Harris v.Harris, 188 N.C. App. 477, 656 S.E.2d 316
(2008).]
f. Even though evidence showed that supporting spouse’s law practice had changed in
the eight years since alimony order was entered, trial court needed to make detailed
ndings about the changes only to the extent they substantially reduced supporting
spouse’s income and ability to pay. [Kelly v.Kelly, 228 N.C. App. 600, 747 S.E.2d 268
(2013).]
g. Where trial court failed to make any ndings regarding wife’s current reasonable
nancial needs and expenses and the ratio of those needs and expenses to her
income, its conclusion that there had been a substantial change of circumstances
was not supported by ndings of fact. [Self v.Self, 93 N.C. App. 323, 377 S.E.2d 800
(1989); Dodson v.Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008), and Frey v.Best,
189 N.C. App. 622, 659 S.E.2d 60 (2008) (both Dodson and Frey citing Self) (both
cases nding that failure to make ndings regarding the dependent spouse’s reason-
able current nancial needs and expenses and the ratio of those needs and expenses
to that spouse’s income constituted error).]
h. Matter remanded when ndings did not make clear whether the increase in taxable
income generated by wife’s investments was less than, equal to, or more than neces-
sary to support herself, while maintaining her accustomed standard of living, without
depleting her estate. [Cunningham v.Cunningham, 345 N.C. 430, 480 S.E.2d 403
(1997).]
5. Modiability of consent orders and incorporated separation agreements.
a. Once a separation agreement between the parties is incorporated into a court order,
the agreement is treated as a court order for purposes of modication. [Cunningham
v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997) (citing Walters v.Walters, 307
N.C. 381, 298 S.E.2d 338 (1983)); Frey v.Best, 189 N.C. App. 622, 659 S.E.2d 60
(2008) (citing Cunningham).]
b. Because alimony orders originating from a private agreement between the par-
ties may contain few, if any, ndings of fact as to the factors in G.S.50-16.3A(b),
to determine whether there has been a change of circumstances sucient to jus-
tify modication may require the trial court to make ndings of fact as to what the
original circumstances or factors were in addition to what the current circumstances
or factors are. [Cunningham v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997);
Miller v.Miller, 192 N.C. App. 275, 664 S.E.2d 665 (2008) (unpublished) (citing
Cunningham).] If the consent order to be modied does not contain ndings of
fact, the trial court must take evidence and make ndings about the circumstances
existing at the time the initial order was entered for order to have a “base line” to
determine whether there has been a substantial change warranting modication.
[Balawejder v.Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011) (consent cus-
tody order was at issue).]
c. While true alimony payments in incorporated agreements are subject to modi-
cation, payments made pursuant to an integrated property settlement may not be
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modied, even if the agreement is incorporated into a court order. [Marks v.Marks,
316 N.C. 447, 342 S.E.2d 859 (1986).]
d. See Spousal Agreements, Bench Book, Vol. 1, Chapter 1 for more on the modication
of alimony provisions contained in a separation or property settlement agreement.
6. Modiability of unincorporated separation agreements.
a. Alimony provisions of a separation agreement that has not been incorporated into
a court order cannot be modied by the court, absent the consent of both parties.
[DeGree v. DeGree, 72 N.C. App. 668, 325 S.E.2d 36, review denied, 313 N.C. 598,
330 S.E.2d 607 (1985); Condellone v. Condellone, 129 N.C. App. 675, 501 S.E.2d 690
(unincorporated agreement could not be modied under G.S. Chapter 50 based upon
changed circumstances), review denied, 349 N.C. 354, 517 S.E.2d 889 (1998). See also
G.S. 50-16.9(a) (emphasis added) (stating that only “[a]n order of a court of this State
for alimony or post separation support . . . may be modied or vacated”).]
7. Modiability of a foreign support order.
a. Statutes potentially applicable to modication.
i. When an order for alimony has been entered by a court of another jurisdiction,
a court of this state, upon gaining jurisdiction over the person of both parties in
a civil action instituted for that purpose, and upon a showing of changed cir-
cumstances, may enter a new order for alimony which modies or supersedes
such order for alimony to the extent that it could have been so modied in the
jurisdiction where granted. [G.S.50-16.9(c).]
ii. A court of this state issuing a spousal support order retains continuing,
exclusive jurisdiction to modify that order throughout the life of the order.
[G.S. 52C-2-211(a), added by S.L. 2015-117, §1, eective June 24, 2015.]
iii. A tribunal of this state may not modify a spousal support order issued by a
tribunal of another state or a foreign country having continuing, exclusive
jurisdiction over that order under the law of that state or foreign country.
[G.S.52C-2-211(b), added by S.L. 2015-117, §1, eective June 24, 2015.]
b. e Uniform Interstate Family Support Act (UIFSA) provisions, G.S.52C-2-205(f)
and 52C-2- 206(c) control and prohibit modication of a spousal support order by a
nonissuing state tribunal. [Hook v.Hook, 170 N.C. App. 138, 611 S.E.2d 869 (reject-
ing husband’s argument that G.S.50-16.9(c) authorizes a North Carolina court to
modify a New Jersey alimony order, holding instead that G.S.52C-2-205(f) and
52C-2- 206(c) control over any conict created by G.S.50- 16.9(c)), review denied,
359 N.C. 631, 616 S.E.2d 234 (2005).] Note that G.S. 52C-2-205(f) and 52C-2-206(c)
have been recodied as G.S. 52C-2-211(b).
i. e other state or foreign country retains continuing, exclusive jurisdiction over
a spousal support order throughout the existence of the support obligation as
long as the law of the state or foreign country provides for the state’s or foreign
country’s continuing, exclusive jurisdiction. [See G.S.52C-2-211(b).] is is so
even when neither party resides in the other (or issuing) state. [Hook v.Hook,
170 N.C. App. 138, 611 S.E.2d 869, review denied, 359 N.C. 631, 616 S.E.2d 234
(2005).]
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ii. is is dierent from the UIFSA provisions on child support orders. [See Hook
v.Hook, 170 N.C. App. 138, 611 S.E.2d 869 (recognizing that although UIFSA
provides that a state loses continuing, exclusive jurisdiction over a child support
order when the obligor and obligee no longer reside in that state, there is no
parallel exception for spousal support orders), review denied, 359 N.C. 631, 616
S.E.2d 234 (2005).]
c. When the issuing state has continuing, exclusive jurisdiction over a registered foreign
support order, the jurisdiction of a responding state is limited to the ministerial func-
tion of enforcing the registered order. [Hook v.Hook, 170 N.C. App. 138, 611 S.E.2d
869, review denied, 359 N.C. 631, 616 S.E.2d 234 (2005).]
d. A money judgment for alimony arrearages entered by a court of another state is enti-
tled to full faith and credit and is not subject to modication. [Barber v.Barber, 323
U.S. 77, 65 S. Ct. 137 (1944) (North Carolina judgment for alimony arrearages was
a “nal judgment” entitled to full faith and credit in Tennessee, though North Caro-
lina statutes provided that alimony order could be modied or vacated at any time);
McGinnis v.McGinnis, 44 N.C. App. 381, 261 S.E.2d 491 (1980) (judgment of another
state may be collaterally attacked only for lack of jurisdiction, fraud in the procure-
ment, or because it is against public policy).]
K. Enforcement of an Order for Alimony
1. Generally.
a. Divorce actions awarding alimony always remain open for motions in the cause for
enforcement of the alimony order. [Barber v.Barber, 216 N.C. 232, 4 S.E.2d 447
(1939); Miller v.Miller, 98 N.C. App. 221, 390 S.E.2d 352 (citing Barber), review
denied, appeal dismissed, 327 N.C. 637, 399 S.E.2d 124 (1990).]
b. A plainti seeking enforcement of an alimony order may serve the supporting spouse
with notice of the motion for enforcement, but a new summons is not required.
[Barber v.Barber, 216 N.C. 232, 4 S.E.2d 447 (1939); Miller v.Miller, 98 N.C. App.
221, 390 S.E.2d 352 (citing Barber), review denied, appeal dismissed, 327 N.C. 637,
399 S.E.2d 124 (1990).]
c. G.S.50-16.7(d)–(k) provide specic remedies applicable to both alimony and post-
separation support. G.S.50-16.7(j) provides that an alimony order is enforceable
by civil contempt and that its disobedience may be punished by criminal contempt.
However, G.S.50-16.7(l) also provides that the “specic enumeration of remedies
in this section shall not constitute a bar to remedies otherwise available.” NOTE:
Former G.S.50-16.7 (amended by S.L. 1995-319, §5 but applicable to all motions to
modify support orders entered before Oct. 1, 1995) contains the same list of reme-
dies available for the enforcement of support orders.
2. Contempt generally.
a. For more on civil or criminal contempt generally, and for a checklist for use when
nding a party in either civil or criminal contempt, see Contempt of Court, Bench
Book, Vol. 2, Chapter 4.
b. For an online module on contempt, see Michael Crowell, Contempt of Court (UNC
School of Government, Nov.2010), https://sog.adobeconnect.com/p30019876/.
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c. Generally.
i. e nature of the proceeding does not determine whether contempt is civil or
criminal. Both civil and criminal contempt are available in both civil and crimi-
nal proceedings.
(a) A defendant may be charged criminally but be in civil contempt. [See State
v.Mauney, 106 N.C. App. 26, 415 S.E.2d 208 (1992) (defendant charged
with criminal nonsupport found in civil contempt for failing to comply with
an order for blood testing).]
(b) A person may be held in criminal contempt for willfully failing to comply
with an order entered in a civil proceeding. [See G.S.50-13.4(f)(9) (child
support); 50-13.3(a) (custody); 50-16.7(j) (alimony).]
ii. Although an obligor may be cited for both civil and criminal contempt for failing
to pay court-ordered alimony, she may not be held in both civil and criminal
contempt with respect to a particular failure to pay court-ordered alimony. [See
G.S.5A-12(d), 5A-21(c), and 5A-23(g).].
iii. A trial court may determine the amount of an alimony arrearage and order pay-
ment without rst nding the supporting spouse in contempt. [Swain v.Swain,
179 N.C. App. 795, 801, 635 S.E.2d 504, 508 (2006) (calling the argument that
a court may enforce an alimony arrearage by ordering its payment only after
nding contempt “decidedly untrue”), review denied, 361 N.C. 437, 649 S.E.2d
897 (2007).]
d. Distinction between civil and criminal contempt.
i. Importance of distinction. Distinguishing between civil and criminal contempt
is important because whether the proceeding is for civil or criminal contempt
determines in large part:
(a) e procedures that must be followed by the court;
(b) e legal rights accorded to the alleged contemnor;
(c) e elements that must be proved to establish contempt;
(d) e burden of proof;
(e) e available sanctions and remedies; and
(f) e appellate procedure. [John L. Saxon, Using Contempt to Enforce Child
Support Orders, Special Series No. 17 (UNC School of Government, Feb.
2004); Reynolds v.Reynolds, 356 N.C. 287, 569 S.E.2d 645 (2002), rev’g per
curiam for reasons stated in dissenting opinion in 147 N.C. App. 566, 557
S.E.2d 126 (2001) (John, J., dissenting).] For examples of the dierent proce-
dures and rights, see Contempt of Court, Bench Book, Vol. 2, Chapter 4.
ii. Civil contempt.
(a) Civil contempt is a civil remedy used exclusively to enforce compliance
with court orders. [Ocial Commentary, G.S.5A-21; Reynolds v.Reynolds,
356 N.C. 287, 569 S.E.2d 645 (2002), rev’g per curiam for reasons stated in
dissenting opinion in 147 N.C. App. 566, 557 S.E.2d 126 (2001) (John, J.,
dissenting); Shippen v.Shippen, 204 N.C. App. 188, 693 S.E.2d 240 (2010)
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(citing Scott v.Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003)) (purpose
of civil contempt is not to punish, but rather to coerce the defendant to
comply with an order of the court); Bishop v.Bishop, 90 N.C. App. 499, 369
S.E.2d 106 (1988) (civil contempt is remedial in nature; its purpose is to
compel an obligor to comply with a court order).]
(b) e length of time that a defendant can be imprisoned for civil contempt is
not limited by law, since the defendant can obtain his release immediately
upon complying with the court’s order. [Jolly v.Wright, 300 N.C. 83, 92,
265 S.E.2d 135, 142 (1980) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir.
1902)) (defendant, by virtue of his ability to comply with the court order,
carries “the keys of (his) prison in (his) own pockets”), overruled on other
grounds by McBride v.McBride, 334 N.C. 124, 431 S.E.2d 14 (1993); Brower
v.Brower, 70 N.C. App. 131, 318 S.E.2d 542 (1984) (citing Jolly); Ocial
Commentary, G.S.5A-21, stating that “[i]n most cases, a person in civil
contempt may be held for so long as his civil contempt continues; he holds
the keys to his own jail by virtue of his ability to comply”.]
iii. Criminal contempt.
(a) Criminal contempt is punitive in purpose, and the contemnor “cannot undo
or remedy what has been done” nor “shorten the term by promising not
to repeat the oense.” [Reynolds v.Reynolds, 356 N.C. 287, 569 S.E.2d 645
(2002), rev’g per curiam for reasons stated in dissenting opinion in 147 N.C.
App. 566, 577, 557 S.E.2d 126, 133 (2001) (John, J., dissenting) (quoting
Gompers v.Buck’s Stove & Range Co., 221 U.S. 418, 442, 31 S. Ct. 492, 498
(1911)).]
(b) Criminal contempt is administered as punishment for acts already commit-
ted that have impeded the administration of justice in some way. e pun-
ishment that courts can impose, either a ne or imprisonment, is circum-
scribed by law. [Mauney v.Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966);
Brower v.Brower, 70 N.C. App. 131, 318 S.E.2d 542 (1984) (citing Mauney).]
iv. Appeal.
(a) Appeals in district court civil contempt matters are directly to the court of
appeals pursuant to G.S.5A-24. See Section III.K.3.g, below, for more on
appeal of a civil contempt order.
(b) District court orders adjudicating criminal contempt are appealable to the
superior court for hearing de novo. [G.S.5A-17(a); 15A-1431(b).] Upon
appeal in a case imposing connement for criminal contempt, a bail hear-
ing must be held within a reasonable time after imposition of the conne-
ment, with the contemnor being retained in custody no more than twen-
ty-four hours from the time of imposition of connement without a bail
determination being made by a superior court judge. If a superior court
judge has not acted within twenty-four hours of the imposition of con-
nement, any judicial ocial shall hold a bail hearing. [G.S.5A-17(b), (c),
added by S.L. 2013-303, §1, eective Dec. 1, 2013, and applicable to con-
nement imposed on or after that date.]
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v. Standard of proof.
(a) e facts upon which the determination of criminal contempt is based
must be established beyond a reasonable doubt. [G.S.5A-15(f).]
(b) G.S.Chapter 5A does not clearly specify the standard of proof in civil
contempt proceedings. In contempt proceedings pursuant to G.S.5A-23(a)
(order or notice issued by a judicial ocial), and in contempt proceedings
pursuant to G.S.5A-23(a1) (motion and adavit of an aggrieved party), a
court should not nd a person in civil contempt unless there is sucient
proof of contempt. Standard of proof is probably preponderance of the
evidence.
3. Civil contempt.
a. A supporting spouse may be held in civil contempt for failure to comply with an ali-
mony order if:
i. e order remains in force;
ii. e purpose of the order may still be served by the supporting spouse’s compli-
ance with the order;
iii. e supporting spouse’s failure to comply with the order is willful; and
iv. e supporting spouse has the present ability to comply with the order (in whole
or in part) or to take reasonable measures that would enable her to comply
with the order (in whole or in part). [G.S.5A-21(a); Oakley v.Oakley, 165 N.C.
App. 859, 599 S.E.2d 925 (2004); Thompson v.Thompson, 223 N.C. App. 515,
519, 735 S.E.2d 214, 217 (2012) (citing McMiller v.McMiller, 77 N.C. App. 808,
336 S.E.2d 134 (1985)) (reversing contempt portion of an order when the trial
court failed to make ndings regarding subsections (1) and (2) of G.S.5A-21(a);
additionally, nding that “Defendant has had the ability and means to pay the
Post Separation Support previously ordered, or at least a substantial portion of
that amount” was insucient because it spoke to past ability to pay and was not
a nding about defendant’s present ability to pay).]
b. Order remains in force.
i. If the alimony award is vacated, the supporting spouse cannot be held in con-
tempt for violating it. [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d 859 (when
appellate court vacated the lump sum alimony award, it vacated the order nd-
ing plainti in contempt), review denied, appeal dismissed, 360 N.C. 648, 636
S.E.2d 810 (2006).]
c. Present ability to comply.
i. e present ability to comply includes not only the present means to comply, but
also the ability to take reasonable measures to comply. [G.S.5A-21(a)(3); Hart-
sell v.Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990), aff’d per curiam, 328
N.C. 729, 403 S.E.2d 307 (1991). See also Shumaker v.Shumaker, 137 N.C. App.
72, 527 S.E.2d 55 (2000) (trial court found that defendant, sole owner of a body
repair shop, was also a certied mechanic but made no eort to supplement his
income with mechanic work).]
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ii. e court must determine a party’s ability to comply during two periods of time.
A trial court must nd that the party:
(a) Possessed the means to comply during the period the party was in default
[Mauney v.Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966) (requiring a nd-
ing that defendant possessed the means to comply with alimony and child
support orders during the period when he was in default).] and
(b) Has the present means to comply with the purge conditions set out in the
order. [Shippen v.Shippen, 204 N.C. App. 188, 191, 693 S.E.2d 240, 244
(2010) (quoting McMiller v.McMiller, 77 N.C. App. 808, 809, 336 S.E.2d
134, 135 (1985)) (“[t]o justify conditioning defendant’s release from jail for
civil contempt upon payment of a large lump sum of arrearages, the district
court must nd as fact that defendant has the present ability to pay those
arrearages”); Gordon v.Gordon, 233 N.C. App. 477, 481, 757 S.E.2d 351, 354
(2014) (emphasis in original) (citing Hartsell v.Hartsell, 99 N.C. App. 380,
393 S.E.2d 570 (1990)) (ndings taken as a whole showed that court consid-
ered husband’s present ability to comply with an order requiring him to pay
alimony arrearages, even though contempt order stated that husband “had
the present ability to comply” with the order; rejecting husband’s argument
that trial court’s use of “had” was fatal to its judgment).] For more cases on
this point, see Contempt of Court, Bench Book, Vol. 2, Chapter 4.
iii. Plainti husband had the ability to pay $20,000 of unpaid alimony within sixty
days of entry of order nding him in contempt, even though there was no nd-
ing as to the cash available to him as of that date or as of the date of the hearing.
Plainti had sixty days to pay, plainti’s personal debts and expenses were paid
by his business, a closely held corporation, and plainti could take reasonable
measures to comply by using a portion of his $15,000 monthly income to pay the
amount ordered, by accessing cash from lines of credit associated with credit
cards, and by ceasing to voluntarily make monthly mortgage and rent payments
for his adult children and mother. [Gordon v.Gordon, 233 N.C. App. 477, 757
S.E.2d 351 (2014).]
iv. Defendant had the ability to pay $10,000 toward his alimony arrearages when,
at the time of the hearing, he had a $2,000 cashier’s check, a boat, and a car that
could readily be converted to cash, and at least $6,200 from his 401(k) plan.
[Tucker v.Tucker, 197 N.C. App. 592, 679 S.E.2d 141 (2009) (payment of $10,000
in alimony arrearages required for defendant to purge himself of contempt).]
v. Defendant ordered to pay attorney fees in alimony order was properly found
in contempt when he failed to make a required installment payment of $7,000.
Defendant held stock solely in his name valued in excess of $30,000 which, had
defendant sold it, could have been used to pay the required installment as well as
the entire amount owed on the debt. [Hudson v.Hudson, 193 N.C. App. 454, 667
S.E.2d 340 (2008) (unpublished).]
vi. Where defendant did not take a salary after receipt of a garnishment notice from
the IRS in connection with his temporary alimony obligation, defendant had the
ability to pay, so the failure to pay was willful. [Sloan v.Sloan, 151 N.C. App. 399,
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566 S.E.2d 97 (2002) (evidence that defendant’s closely held business paid his
medical bills and his mortgage supported court’s ndings on ability to pay and
willfulness); Gordon v.Gordon, 233 N.C. App. 477, 757 S.E.2d 351 (2014) (citing
Foy v.Foy, 69 N.C. App. 213, 316 S.E.2d 315 (1984)) (trial court may consider
how a contemnor pays his expenses; here, expenditures by husband’s closely
held corporation for his personal expenses and debts related directly to his abil-
ity to pay alimony arrearages).]
vii. A contempt order must include a denite date by which a defendant may purge
the contempt. [Spears v. Spears, 784 S.E.2d 485 (N.C. Ct. App. 2016) (contempt
order vacated as impermissibly vague when it did not set an ending date for
defendant’s alimony purge payments); Lueallen v. Lueallen, 790 S.E.2d 690 (N.C.
Ct. App. 2016) (contempt order requiring purge payments to be applied to child
support arrears was impermissibly vague when ending date for the payments
was uncertain).]
viii. Contempt order was reversed when no nding had been made as to husband’s
present ability to comply with the alimony obligations in an incorporated sepa-
ration agreement. [Oakley v.Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004)
(trial court’s only nding of fact addressed husband’s failure to pay alimony as
willful). But see Shumaker v.Shumaker, 137 N.C. App. 72, 527 S.E.2d 55 (2000)
(order sucient if it is implicit in the court’s ndings that the delinquent obli-
gor both possessed the means to comply and willfully refused to do so; explicit
ndings as to ability to pay preferable but not absolutely essential if ndings
otherwise indicate contempt is warranted); Patton v.Patton, 88 N.C. App. 715,
364 S.E.2d 700 (1988) (citing Daugherty v.Daughterty, 62 N.C. App. 318, 302
S.E.2d 664 (1983)) (if the evidence plainly shows that the supporting spouse was
capable of complying with the alimony order, the absence of a specic nding on
ability to pay is immaterial); Medlin v.Medlin, 64 N.C. App. 600, 307 S.E.2d 591
(1983) (citing Daugherty) (while an explicit nding of present ability to comply
would have been preferable, contempt order nevertheless was upheld where it
was implicit from the ndings made that plainti had the ability to comply).] For
other cases nding a general nding of present ability to comply sucient, see
Contempt of Court, Bench Book, Vol. 2, Chapter 4.
d. Willful failure to pay.
i. Willfulness is, in the context of civil contempt, an ability to comply with the
court order and a deliberate and intentional failure to do so. [Clark v.Gragg,
171 N.C. App. 120, 614 S.E.2d 356 (2005) (child support case). See also Mauney
v.Mauney, 268 N.C. 254, 268, 150 S.E.2d 391, 393 (1966) (the “willfulness”
necessary to nd a party in civil contempt requires “knowledge and a stubborn
resistance”); Shippen v.Shippen, 204 N.C. App. 188, 693 S.E.2d 240 (2010) (citing
Forte v.Forte, 65 N.C. App. 615, 309 S.E.2d 729 (1983)) (willfulness involves
more than deliberation or conscious choice; it imports a bad faith disregard for
authority and the law).]
ii. A party who has the ability to pay court-ordered support when a support order
is entered but later becomes unable to pay after voluntarily taking on addi-
tional nancial obligations or divesting assets or reducing income, engages in
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willful conduct and may be held in civil contempt. [See Shippen v.Shippen, 204
N.C. App. 188, 693 S.E.2d 240 (2010) (citing Faught v.Faught, 67 N.C. App. 37,
312 S.E.2d 504, review denied, 311 N.C. 304, 317 S.E.2d 680 (1984)) (reviewing
well-established line of cases so providing; father, (1) who admitted that he was
physically and mentally able to be employed, who was in fact employed full-
time when the support order was entered, but who voluntarily quit his job after
entry of the support order to become a member of a religious community that
prohibited its members from earning outside income and (2) who testied that
he would not take outside employment under any circumstances, willfully failed
to pay support and was properly held in civil contempt); cf. Spears v. Spears, 784
S.E.2d 485, 497 (N.C. Ct. App. 2016) (trial court found defendant in contempt
of alimony order for a six-month period based on a nding that defendant could
have paid “more” or taken reasonable measures to enable him to “pay more”
toward his court-ordered obligation, even if he could not have paid in full, and
further found that defendant showed “disregard for his familial and legal obli-
gations” by quickly remarrying and having four additional children; court of
appeals found that defendant’s exercise of his fundamental right to marry and
procreate, in this particular situation, did not demonstrate disregard of obliga-
tions to his family).]
e. Sanctions for civil contempt.
i. Imprisonment is the only authorized sanction for civil contempt.
[G.S.5A-21(b).]
ii. A person who is found in civil contempt is not subject to the imposition of a
ne. [G.S. 5A-21(d), added by S.L. 2015-210, § 1, eective Oct. 1, 2105, and
applicable to civil contempt orders entered on or after that date.] e 2015
amendment to G.S. 5A-21 changed the result in Tyll v.Berry, 234 N.C. App.
96, 758 S.E.2d 411, review denied, appeal dismissed, 367 N.C. 532, 762 S.E.2d
207 (2014) (a ne is a “statutorily permitted” sanction for civil contempt
proceedings).]
iii. A person who is incarcerated for civil contempt may be imprisoned as long as
the civil contempt continues, subject to the limitations set out in G.S.5A-21(b1)
and (b2). [G.S.5A-21(b).]
iv. ere is no limitation on the term of imprisonment when a person is held
in civil contempt for failing to pay court-ordered child support or for failing
to comply with a court order that does not involve the payment of money.
[G.S.5A-21(b).]
v. A person found in civil contempt for failure to pay money other than child
support (such as alimony) may not be imprisoned for more than 90 days for the
same act of disobedience or refusal to comply with a court order but may be
recommitted for successive 90-day periods, with the total period of imprison-
ment not to exceed 12 months. [G.S.5A-21(b2).]
vi. When contempt is not purged within 90 days by a person imprisoned for civil
contempt for the failure to pay money other than child support, the court must
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conduct a de novo hearing before recommitting the person for a successive
90-day term. [G.S.5A-21(b2).]
vii. e 12-month maximum period of imprisonment includes the initial period of
imprisonment and any additional period of imprisonment. [G.S.5A-21(b2).]
f. When civil contempt should not be used.
i. Civil contempt may not be used to enforce a support order unless the support-
ing spouse has the present ability to pay at least part of the support that he
owes and, despite his present ability to do so, stubbornly, recalcitrantly, deliber-
ately, willfully, or intentionally refuses to pay support to the extent he is able to
do so. [See G.S.5A-21(a).]
ii. Civil contempt may not be the most appropriate remedy to enforce an alimony
order if the supporting spouse has identiable income or property from which
support can be paid and other remedies (for example, income withholding,
execution of judgment or liens, etc.) can be used to enforce the order against
the supporting spouse’s income or property. [See Section III.K.5.k, below, on
income withholding, Section III.K.5.j, below, on execution, and Section III.K.5.i,
below, on liens.]
iii. Alimony provisions in an unincorporated separation agreement may not be
enforced through civil contempt. [See Jones v.Jones, 144 N.C. App. 595, 601, 548
S.E.2d 565, 569 (2001) (citing Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338
(1983)) and stating that “[w]here a separation agreement is neither submitted,
by one or both parties thereto, to the trial court for its approval, nor speci-
cally incorporated into a court order or judgment, the separation agreement
is preserved as a contract and remains enforceable and modiable only under
traditional contract principles”).] Note, however, that an order requiring a party
to specically perform her obligations under an unincorporated separation
agreement is enforceable by contempt. [Gen. Motors Acceptance Corp. v.Wright,
154 N.C. App. 672, 573 S.E.2d 226 (2002) (citing McDowell v.McDowell, 55 N.C.
App. 261, 284 S.E.2d 695 (1981)) (if a party to an unincorporated separation
agreement does not perform her obligations under the agreement, the other
party may obtain a decree of specic performance of the separation agreement,
which is enforceable through contempt proceedings).] See Spousal Agreements,
Bench Book, Vol. 1, Chapter 1 and Contempt of Court, Bench Book, Vol. 2,
Chapter 4.
iv. For more instances when civil contempt is not available, see Contempt of Court,
Bench Book, Vol. 2, Chapter 4.
g. Appeal of a civil contempt order.
i. To whom directed.
(a) An aggrieved party may appeal the district court’s order in a civil con-
tempt proceeding to the court of appeals by ling a notice of appeal within
thirty days after the order is entered. [N.C. R. A. P. 3(c); G.S.5A-24 and
7A-27(b)(2).]
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(b) A motion to stay an obligor’s incarceration under a civil contempt order
must be directed initially to the district court. [N.C. R. A. P. 8(a).]
ii. Contempt order as interlocutory.
(a) Appeal of a contempt order aects a substantial right and is immediately
appealable. [Thompson v.Thompson, 223 N.C. App. 515, 735 S.E.2d 214
(2012) (citing Guerrier v.Guerrier, 155 N.C. App. 154, 574 S.E.2d 69 (2002))
(appeal allowed of order nding defendant in civil contempt for failing to
pay postseparation support (PSS), but appeal of PSS order itself was inter-
locutory and not appealable, even after defendant found in contempt of it);
Hamilton v.Johnson, 228 N.C. App. 372, 747 S.E.2d 158 (2013) (appeal of
contempt order for failure to comply with a temporary child support order
aected a substantial right).]
iii. Standard of review on appeal.
(a) e standard of review for contempt proceedings is limited to determining
whether there is competent evidence to support the trial court’s ndings of
fact and whether the ndings support the conclusions of law. [Thompson
v.Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012); Oakley v.Oakley,
165 N.C. App. 859, 599 S.E.2d 925 (2004); Sloan v.Sloan, 151 N.C. App.
399, 566 S.E.2d 97 (2002).]
(b) In a contempt proceeding, the facts found by the judge are not reviewable
by an appellate court except for the purpose of passing upon their su-
ciency to warrant the judgment. [Gordon v.Gordon, 233 N.C. App. 477, 757
S.E.2d 351 (2014) (citing Tucker v.Tucker, 197 N.C. App. 592, 679 S.E.2d
141 (2009)); Wolf v.Wolf, 151 N.C. App. 523, 566 S.E.2d 516 (2002) (citing
Green v.Green, 130 N.C. 578, 41 S.E. 784 (1902)).]
h. Contempt after appeal of alimony order led.
i. Pursuant to G.S. 1-294, when an appeal is perfected, the trial court is divested of
jurisdiction “upon the judgment appealed from, or upon the matter embraced
therein, unless otherwise provided by the Rules of Appellate Procedure.”
[G.S.1-294, amended by S.L. 2015-25, §2, eective May 21, 2015. See Guerrier
v.Guerrier, 155 N.C. App. 154, 159 n.4, 574 S.E.2d 69, 72 n.4 (2002) (noting in
dicta that appeal of an order nding father in contempt of an equitable distri-
bution (ED) judgment for removing funds from children’s investment accounts
left the trial court without jurisdiction to address issues in an enforcement order
such as reimbursement of the funds removed or removal of father as custodian
of the accounts; enforcement order was vacated on other grounds, but court
noted that unlike child support, child custody, and alimony, no statute provides
that an ED order remains enforceable pending appeal).]
ii. Notwithstanding G.S.1-294 or 1-289, an order for the periodic payment of
alimony may be enforced through civil contempt pending an appeal of the order.
[G.S.50-16.7(j). See Cox v.Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989) (read-
ing G.S.1-294 and 50-16.7(j) together, the trial court had jurisdiction to issue
a show cause order and subsequent criminal contempt order for defendant’s
failure to appear at the hearing on the show cause order).]
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iii. G.S.50-16.7(j) does not appear to allow an action to recover postseparation
arrearages after an alimony award has been appealed. [See Harris v.Harris,
173 N.C. App. 232, 617 S.E.2d 723 (2005) (unpublished) (without considering
the application of G.S.50-16.7(j), appeal from an order awarding wife alimony
divested the trial court of jurisdiction to consider wife’s motion for civil con-
tempt for failure to pay postseparation support (PSS) because alimony award
“aected” PSS as that term is used G.S. 1-294).]
iv. When the trial court enters an order of contempt while the alimony order is on
appeal, the appellate court in which the appeal is pending may, upon motion
of the supporting spouse, stay any order for civil contempt entered for alimony
until the appeal is decided, if justice requires. [G.S.50-16.7(j); N.C. R. A. P.
23.]
i. For more on civil contempt, including procedure, fundamentals of an order and
ndings, right to and appointment of an attorney in civil contempt proceedings, and
award of attorney fees, see Contempt of Court, Bench Book, Vol. 2, Chapter 4. For
contempt in the context of child support, see Enforcement of Child Support Orders,
Bench Book, Vol. 1, Chapter 3, Part 4.
j. Award of attorney fees in contempt proceeding to enforce alimony.
i. Attorney fees have been allowed in a contempt proceeding involving alimony.
[See Shumaker v.Shumaker, 137 N.C. App. 72, 527 S.E.2d 55 (2000) (upholding
an award of fees when a defendant was in contempt for failing to comply with a
temporary alimony order); Martin v.Martin, 202 N.C. App. 372, 690 S.E.2d 767
(2010) (unpublished) (upholding order nding defendant in civil contempt for
failure to pay alimony as ordered and requiring defendant to pay plainti’s attor-
ney fees incident to the contempt proceeding); Hudson v.Hudson, 193 N.C. App.
454, 667 S.E.2d 340 (2008) (unpublished) (defendant properly found in civil
contempt for his failure to comply with an alimony order that required payment
of attorney fees).] But see Blackburn v.Bugg, 723 S.E.2d 585 (N.C. Ct. App. 2012)
(unpublished) (reversing an award of attorney fees against a defendant found in
civil contempt for failure to pay alimony as ordered in a prior proceeding enforc-
ing the parties’ premarital agreement; appellate court stated that attorney fees
generally are not allowed in civil contempt proceedings except in the context of
contempt proceedings to enforce child support or ED orders; without express
statutory authority to support the trial court’s award of fees and when neither
recognized exception applied, award of attorney fees was vacated).] For more on
attorney fees in contempt proceedings generally, see Contempt of Court, Bench
Book, Vol. 2, Chapter 4.
4. Criminal contempt.
a. G.S.5A-11(a) sets out the exclusive grounds for criminal contempt. e ground most
relevant when enforcing an order for alimony is G.S.5A-11(a)(3), which provides that
the willful disobedience of, resistance to, or interference with a court’s lawful process,
order, directive, instruction, or its execution is a criminal contempt.
b. Direct vs. indirect criminal contempt.
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i. Willful failure to pay support as required by court order constitutes indirect
criminal contempt, rather than direct criminal contempt. [See G.S.5A-13(a)
(direct criminal contempt is committed within the sight or hearing of a judicial
ocial and in, or in immediate proximity to, the courtroom; any other criminal
contempt is indirect criminal contempt pursuant to G.S. 5A-13(b)).]
ii. e court therefore must follow the plenary procedures applicable to indirect
criminal contempt under G.S.5A-15, rather than the summary procedures
applicable to direct criminal contempt under G.S.5A-14, when faced with a will-
ful failure to pay court-ordered alimony. [See G.S.5A-15.]
iii. Defendant’s failure to appear personally at a show cause hearing for failure to
pay alimony was classied as indirect criminal contempt. [Cox v.Cox, 92 N.C.
App. 702, 376 S.E.2d 13 (1989) (nding of contempt vacated when defendant
was not provided a hearing pursuant to G.S.5A-13(b) and 5A-15 and because
facts were not established beyond a reasonable doubt).]
iv. For more on indirect and direct contempt, and summary and plenary proceed-
ings, see Contempt of Court, Bench Book, Vol. 2, Chapter 4.
c. Willfullness required by G.S.5A-11.
i. “Willfulness” in G.S.5A-11 means an act “done deliberately and purposefully
in violation of law, and without authority, justication, or excuse.” e term has
also been dened as “more than deliberation or conscious choice; it also imports
a bad faith disregard for authority and the law.” [State v.Phair, 193 N.C. App.
591, 594, 668 S.E.2d 110, 112 (2008) (quoting State v.Chriscoe, 85 N.C. App. 155,
158, 354 S.E.2d 289, 291 (1987), and Forte v.Forte, 65 N.C. App. 615, 616, 309
S.E.2d 729, 730 (1983), respectively)).]
ii. e word “willful” when used in a criminal statute means that the act was “done
deliberately and purposefully in violation of law, and without authority, justi-
cation or excuse.” [State v.Chriscoe, 85 N.C. App. 155, 158, 354 S.E.2d 289, 291
(1987); State v.Evans, 193 N.C. App. 455, 667 S.E.2d 340 (2008) (unpublished)
(citing Chriscoe).]
iii. A failure to pay may be willful if a spouse voluntarily takes on additional nan-
cial obligations or divests himself of assets or income after entry of alimony
order. [Faught v.Faught, 67 N.C. App. 37, 312 S.E.2d 504 (defendant in criminal
contempt for willful failure to pay when, after the original alimony award, he
obligated himself to pay for automobiles for himself, his adult daughter, and his
new wife, as well as other obligations for his new family), review denied, 311
N.C. 304, 317 S.E.2d 680 (1984).]
d. Procedure.
i. e judge is the trier of facts at the criminal contempt hearing. [G.S.5A-15(d).]
ere is no constitutional right to a jury trial for criminal contempt. [Blue Jeans
Corp. v.Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969)
(no constitutional right to a jury trial when the prescribed punishment is impris-
onment for less than 6 months or a ne of less than $500; punishment for crimi-
nal contempt at the time was a ne of $250, imprisonment for 30 days, or both).
See also Bloom v.Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968) (criminal contempt
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conviction in a nonjury trial could not be sustained when a 24-month prison
sentence was imposed). But cf. Int’l Union, United Mine Workers v.Bagwell, 512
U.S. 821, 114 S. Ct. 2552 (1994) (serious noncompensatory contempt nes were
criminal and constitutionally could not be imposed absent a jury trial).]
ii. e person charged with criminal contempt may not be compelled to be a
witness against herself. [G.S.5A-15(e).] us, a person who asserts the privilege
upon a reasonable belief that her answer could be used against her in a criminal
prosecution cannot be held in criminal contempt for the refusal to answer. [See
In re Jones, 116 N.C. App. 695, 449 S.E.2d 221 (1994).]
iii. For more on the procedure in a criminal contempt proceeding generally, and
when the supporting spouse fails to appear as required by a show cause order,
see Enforcement of Child Support Orders, Bench Book, Vol. 1, Chapter 3, Part 4.
iv. A supporting spouse has the right to be represented by counsel in criminal
contempt proceedings. [See Enforcement of Child Support Orders, Bench Book,
Vol.1, Chapter 3, Part 4.]
e. Punishment that may be imposed for criminal contempt.
i. A supporting spouse who is found in criminal contempt is subject to censure,
a ne not to exceed $500, imprisonment for a denite and xed term not to
exceed 30 days, or any combination of the three, subject to certain exceptions
set out in the statute. [G.S.5A-12(a).]
ii. An order sentencing a defendant to six consecutive 30-day terms of impris-
onment based on six ndings of direct criminal contempt has been armed
in a case of rst impression. [State v. Burrow, 789 S.E.2d 923 (N.C. Ct. App.
2016) (neither G.S. 5A-12 nor any other statute in G.S. Chapter 5A prohibits
consecutive sentences for multiple ndings of contempt; a criminal contempt
adjudication is not a misdemeanor for which consecutive sentences may not
be imposed).] Note that stacked sentences that exceed 180 days could trig-
ger a defendant’s Sixth Amendment right to a jury trial as discussed in Jamie
Markham, Consecutive Sentences for Criminal Contempt, UNC S. G’:
N.C. C. L. B (Aug. 11, 2016), https://nccriminallaw.sog.unc.edu/
consecutive-sentences-criminal-contempt.
iii. For more, including the punishment for a person in contempt for failure to
pay child support, see Contempt of Court, Bench Book, Vol. 2, Chapter 4 and
Enforcement of Child Support Orders, Bench Book, Vol. 1, Chapter 3, Part 4.
5. Remedies other than contempt.
a. Arrest and bail. [G.S.1-410(5) (arrest); 1-420 et seq. (bail).]
i. Arrest and bail is available in actions for alimony or postseparation support to
the same extent as in other cases. [G.S.50-16.7(d).]
ii. Arrest and bail under G.S.Chapter 1, Article 34 is a prejudgment remedy.
iii. A defendant in an alimony action may not be arrested and held for bail under
G.S.Chapter 1, Article 34 unless the court nds, based on an adavit led by
the plainti, that the defendant has removed or disposed of her property, or is
about to do so, with the intent of defrauding a dependent spouse who claims
alimony, and the plainti posts an adequate, written undertaking, with sucient
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surety, to pay damages incurred by the defendant if the order for arrest is
vacated. [See G.S.1-410(5), 1-411, 1-412, 1-417.]
iv. An indigent defendant who is arrested under G.S.Chapter 1, Article 34 is enti-
tled to a court-appointed attorney. [See G.S.1-413; 7A-451(a)(7).]
v. A defendant who is arrested under G.S.Chapter 1, Article 34 may be released by
posting bail as provided under G.S.1-420 or by making a deposit in lieu of bail
under G.S.1-426.
b. Execution of a mortgage, deed of trust, or security interest.
i. e court may, at the time it enters an alimony or postseparation support (PSS)
order or upon motion in a proceeding to enforce such orders, require the sup-
porting spouse to execute a mortgage, deed of trust, or security interest with
respect to real or personal property owned by the supporting spouse to secure
the supporting spouse’s future payment of alimony or PSS. [G.S.50-16.7(b).]
ii. If the supporting spouse fails to execute a mortgage or deed of trust as required
by the court, the court may enter an order transferring title to the property pur-
suant to G.S.1A-1, Rule 70 and G.S.1-228 or directing another person to exe-
cute the documents required to transfer title. [G.S.50-16.7(c).] G.S. 1A-1, Rule
70 allows a court in an order to “direct” another to execute on behalf of the party
who failed to act, but the order must be written, signed, and led to be eective.
[Dabbondanza v. Hansley, 791 S.E.2d 116 (N.C. Ct. App. 2016).]
iii. A mortgage, deed of trust, or security interest in property required under
G.S.50-16.7(b) must be led, recorded, and perfected in accordance with other
applicable law. It may then be enforced by the dependent spouse, upon the sup-
porting spouse’s default in paying court-ordered alimony or PSS, in accordance
with the terms of the mortgage, deed of trust, or security interest and other
applicable law without further order of the court in the support action.
iv. For this remedy as a form of payment used to facilitate collection of support, see
Section III.H.4, above.
c. Assignment of wages, salary, or other income due or to become due.
i. e court may order the supporting spouse to secure the payment of alimony
or postseparation support by requiring an assignment of wages, salary, or other
income due or to become due. [G.S.50-16.7(b).]
ii. Under 10 U.S.C. §1408(d), the Uniform Services Former Spouses’ Protection
Act, a supporting spouse’s military retirement pay may be assigned to a depen-
dent spouse under a valid court order. [Faught v.Faught, 67 N.C. App. 37, 312
S.E.2d 504, review denied, 311 N.C. 304, 317 S.E.2d 680 (1984).]
iii. For this remedy as a form of payment used to facilitate collection of support, see
Section III.H.5, above.
d. Transfer of property.
i. A court may order the supporting spouse to transfer title to real property
(located anywhere within North Carolina or in another state) in payment of
arrearages of alimony or postseparation support as long as the net value of the
property does not exceed the amount of the arrearage. [G.S.50-16.7(a).]
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ii. A court may order a supporting spouse to pay alimony by transferring title or
possession of personal property. [G.S.50-16.7(a).]
iii. If the court orders a supporting spouse to transfer title to real or personal prop-
erty under G.S.50-16.7(a) and the supporting spouse fails to execute the neces-
sary documents, the court may enter an order transferring title to the property
pursuant to G.S.1A-1, Rule 70 and G.S.1-228 or directing another person to
execute the documents required to transfer title. [G.S.50-16.7(c).] G.S. 1A-1,
Rule 70 allows a court in an order to “direct” another to execute on behalf of the
party who failed to act, but the order must be written, signed, and led to be
eective. [Dabbondanza v. Hansley, 791 S.E.2d 116 (N.C. Ct. App. 2016).]
iv. For this remedy as a form of payment used to facilitate collection of support, see
Section III.H.2, above.
e. Attachment and garnishment. [G.S.1-440.1 et seq. and 110-128 et. seq.]
i. Attachment and garnishment are available as remedies in alimony and postsep-
aration support actions to the same extent as in other cases. [G.S.50-16.7(e);
1-440.2.]
ii. For purposes of attachment and garnishment, the dependent spouse is deemed a
creditor of the supporting spouse. [G.S.50-16.7(e).]
iii. Attachment and garnishment are ancillary proceedings, not independent civil
actions. [G.S.1-440.1(a) (attachment ancillary to the pending principal action);
1-440.21(a) (garnishment ancillary to attachment).]
iv. Attachment and garnishment under G.S.Chapter 1, Article 35 are prejudg-
ment remedies; they cannot be used after an alimony order has been entered
to collect past due support owed under the order. [See G.S.1-440.1, 1-440.6(b),
1-440.22(a)(2); cf. Holt v.Holt, 41 N.C. App. 344, 255 S.E.2d 407 (1979) (where
wife obtained an order of attachment against husband’s North Carolina real
property after entry of divorce decree in Missouri).]
v. For more on attachment, see Enforcement of Child Support Orders, Bench Book,
Vol. 1, Chapter 3, Part 4 and J B A A, N C-
C S C P M Vol. 1, Pt. III (Civil
Procedures), ch. 34 (Attachments) (UNC School of Government, 2012).
f. Injunction. [G.S.1-494 and 1A-1, Rule 65.]
i. A district court judge may issue an injunction in an action for alimony or post-
separation support (PSS). [G.S.50-16.7(f ).]
ii. A temporary restraining order or preliminary injunction must be issued in
accordance with the requirements set forth in G.S.1A-1, Rule 65 and G.S.Chap-
ter 1, Article 37.
iii. A judge may issue a preliminary injunction in an alimony case when, during the
pendency of the action, it appears by adavit that the supporting spouse threat-
ens to, or is about to, remove or dispose of her property with intent to defraud
the dependent spouse. [G.S.1-485(3); Hinnant v.Hinnant, 258 N.C. 509, 128
S.E.2d 900 (1963) (injunction armed based on defendant’s threats to remove
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his property from the state); Spencer v.Spencer, 70 N.C. App. 159, 319 S.E.2d
636 (1984) (trial court injunction against disposition of certain marital assets).]
iv. An injunction against disposition of certain marital assets contained in an
order for PSS should not be incorporated by reference in the order for perma-
nent alimony. e court must enter a new order setting out in reasonable detail
the actions enjoined. [See Spencer v.Spencer, 70 N.C. App. 159, 319 S.E.2d 636
(1984).]
g. Appointment of receivers.
i. A receiver may be appointed in an action for alimony or postseparation support
to the same extent as in other cases. [G.S.50-16.7(g); 1-502.]
ii. A district court judge may appoint a receiver to take possession of a supporting
spouse’s property or income when necessary to enforce a court-ordered support
obligation. [See G.S.1-502; Lambeth v.Lambeth, 249 N.C. 315, 106 S.E.2d 491
(1959) (court was authorized to order the sale of husband’s nonincome-pro-
ducing real estate and the investment of the proceeds thereof so that sucient
income would be generated for the receiver to pay certain expenses and alimony
awarded to the plainti wife).]
iii. For more on receivers, see Enforcement of Child Support Orders, Bench Book,
Vol. 1, Chapter 3, Part 4.
h. Setting aside a voidable transaction.
i. A district court may enforce an order for alimony or postseparation support
pursuant to the Uniform Voidable Transactions Act (G.S.Chapter 39, Article
3A). [G.S.50-16.7(h).]
ii. e dependent spouse shall be a creditor within the meaning of the Uniform
Voidable Transactions Act (G.S.39-23.1 et. seq.). [G.S.50-16.7(h).]
iii. For more on setting aside voidable transactions, see Enforcement of Child Sup-
port Orders, Bench Book, Vol. 1, Chapter 3, Part 4.
i. Lien against real property.
i. Judgment for postseparation support or alimony shall not be a lien against real
property unless the judgment expressly so provides, sets out the amount of
the lien in a sum certain, and adequately describes the real property aected.
[G.S.50-16.7(i).]
ii. Past due periodic payments may, by motion in the cause or by separate action,
be reduced to judgment which shall be a lien the same as other judgments.
[G.S.50-16.7(i); Lindsey v.Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977).]
iii. Past due periodic payments may be reduced to judgment without nding that a
supporting spouse’s failure to pay was willful, i.e., that he possessed the means
to comply with the support order during period of default. [Bogan v.Bogan,
134 N.C. App. 176, 516 S.E.2d 641 (1999) (trial court may reduce child support
arrearage to judgment without nding that the obligor willfully failed to pay the
support owed). But see Wade v.Wade, 63 N.C. App. 189, 303 S.E.2d 634 (1983)
(holding that in actions for judgments on a sum certain under G.S. 50-16.7(i),
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and in actions for civil contempt, the moving party must show, and the court
must nd as fact, that a supporting spouse’s failure to pay was willful).]
j. Execution on a judgment for alimony or postseparation support (PSS), execution
sales and supplemental proceedings.
i. e remedies in G.S.1-302 et seq. (execution), 1-339.41 et seq. (execution
sales), and G.S.1-352 et seq. (supplemental proceedings) are available to
enforce judgments for alimony and PSS to the same extent as in other cases.
[G.S.50-16.7(k).]
ii. When the supporting spouse under a judgment for alimony is in arrears, the
court may, upon motion in the cause, judicially determine the amount then due
and enter nal judgment therefor, and execution may issue. [Lindsey v.Lindsey,
34 N.C. App. 201, 237 S.E.2d 561 (1977) (decree for periodic payment of ali-
mony, in the absence of a provision in the decree itself stating that it constitutes
a specic lien upon the property of the obligor, is not enforceable by execution
until the arrearages are reduced to judgment). Cf. Quick v.Quick, 305 N.C. 446,
290 S.E.2d 653 (1982) (orders for periodic payment of alimony and child sup-
port are money judgments within the meaning of G.S.1-289 and, therefore, are
subject to execution); Romulus v.Romulus, 216 N.C. App. 28, 715 S.E.2d 889
(2011) (citing Quick) (state supreme court in Quick recognized that judgments
directing the payment of alimony or child support are “judgments directing the
payment of money” under G.S.1-289).] For eect of an appeal of the underlying
order on the execution process, see Section III.K.5.j.v, below.
iii. e statute of limitations in G.S.1-306, providing that execution cannot issue on
a judgment requiring the payment of money more than ten years from the date
the judgment was entered, does not apply to a judgment directing the payment
of alimony. [G.S.1-306.] For the statute of limitations applicable to alimony
judgments, see Section III.F.3, above.
iv. Alimony is not subject to a debtor’s exemptions.
(a) e amount payable as support is not a debt exempt from execution under
G.S.Chapter 1C, Article 16. [G.S.50-16.7(k); 1C-1601(e)(9) (the personal
exemptions provided a debtor in Article 16 do not apply to execution on a
judgment for alimony); Barber v.Barber, 217 N.C. 422, 8 S.E.2d 204 (1940)
(homestead exemption cannot be used to defeat an allowance of alimony).]
(b) Husband’s retirement account was not exempt from execution by wife seek-
ing to enforce alimony order. [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d
859 (pursuant to G.S.1C-1601(e)(9), the exemption for retirement accounts
does not apply to claims for alimony), review denied, appeal dismissed, 360
N.C. 648, 636 S.E.2d 810 (2006). See also 29 U.S.C. §§1056(d)(1), (3)(A),
excepting qualied domestic relations orders.]
v. Eect of an appeal of the alimony order on execution.
(a) An order for the payment of alimony is a judgment directing the payment
of money under G.S.1-289. [Romulus v.Romulus, 216 N.C. App. 28,
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715 S.E.2d 889 (2011) (citing Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653
(1982)).]
(b) A judgment directing the payment of money is subject to execution even
while the judgment is on appeal, unless the party against whom the exe-
cution will issue posts a bond to stay execution pursuant to G.S.1-289.
[G.S.1-289(a); Romulus v.Romulus, 216 N.C. App. 28, 715 S.E.2d 889
(2011) (citing Quick v.Quick, 305 N.C. 446, 290 S.E.2d 653 (1982), and
Joyner v.Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962)) (orders for the pay-
ment of alimony or child support, as judgments under G.S.1-289, may
be enforced by execution during an appeal, unless stay or supersedeas is
ordered).]
(c) However, as to the amount for which execution may issue after notice of
appeal of the underlying order, when alimony is payable over time the trial
court does not have jurisdiction during the pendency of the appeal (1)
to determine the amount of periodic payments that have come due and
remain unpaid since notice of appeal was given and (2) to reduce that sum
to a judgment enforceable by execution. [Romulus v.Romulus, 216 N.C.
App. 28, 715 S.E.2d 889 (2011) (citing Carpenter v.Carpenter, 25 N.C. App.
307, 212 S.E.2d 915 (1975)) (treating past due distributive award payments
and past due alimony payments the same for purposes of G.S.1-289);
Carpenter (husband’s appeal of an order entered in June 1974 nding him
in arrears of provisions in a separation agreement for support of his wife
and children divested the trial court of jurisdiction to determine in an order
entered in November 1974 the amounts owed by husband).] us, while
an alimony order is “theoretically” enforceable by execution during appeal
when the appealing spouse does not post an execution bond, a trial court
may not reduce to judgment, and execution may not issue for, amounts that
come due during the appeal, making contempt a “more satisfactory answer”
during appeal. [See Romulus v.Romulus, 216 N.C. App. 28, 38, 715 S.E.2d
889, 895 (2011) (discussing execution for payments due under a distributive
award payable over time).]
vi. For more on execution, including execution against personal property of the
supporting spouse, execution against personal property of the supporting
spouse in the hands of a third party, or execution against real property of the
supporting spouse, see Enforcement of Child Support Orders, Bench Book, Vol.
1, Chapter 3, Part 4.
vii. For more on execution and proceedings supplemental to execution, see
B A, C S C P M,
at Vol. 1, Pt. III (Civil Procedures), ch. 38 (Execution), ch. 36 (Proceedings
Supplemental to Execution).
k. Income withholding
i. A dependent spouse may apply to the court for an order of income withholding
for current or delinquent payments of alimony or PSS. [G.S.50-16.7(l1).]
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l. Other.
i. e remedy of criminal nonsupport is available pursuant to G.S.14-322(d).
ii. A child support collection agency can, under certain circumstances, pursue
collection of spousal support in conjunction with the collection of child support
pursuant to G.S.110-130.2.
iii. For enforcement of alimony provisions contained in a spousal agreement, see
Spousal Agreements, Bench Book, Vol. 1, Chapter 1.
L. Enforcement of Foreign Support Orders
1. For orders registered in North Carolina before Jan. 1, 1996, see the Uniform Reciprocal
Enforcement of Support Act (URESA), G.S.52A-1 through 52A-32; Blake v.Blake, 34
N.C. App. 160, 237 S.E.2d 310 (1977). URESA was repealed eective Jan. 1, 1996. [S.L.
1995-538, §§7(a),8; see Enforcement of Child Support Orders, Bench Book, Vol. 1, Chap-
ter 3, Part 4.]
2. For orders registered in North Carolina on or after Jan. 1, 1996, the Uniform Interstate
Family Support Act (UIFSA), G.S.Chapter 52C, provides for the enforcement of spousal
support orders, regardless of when the order was entered. [G.S.52C-1-101(21), amended
by S.L. 2015-117, §1, eective June 24, 2015 (denition of “support order” includes a
judgment, decree, order, decision, or directive, whether temporary, nal, or subject to
modication, issued in a state or a foreign country for the benet of a spouse or a former
spouse providing for monetary support, health care, arrearages, retroactive support, or
reimbursement for nancial assistance provided to an individual obligee in place of child
support); Foreman v.Foreman, 144 N.C. App. 582, 550 S.E.2d 792 (North Carolina trial
court had jurisdiction under UIFSA to award payments accrued under a British spousal
support order prior to the eective date of UIFSA when order was registered after Jan. 1,
1996), review denied, 354 N.C. 68, 553 S.E.2d 38 (2001).]
a. An order does not have to use the term “alimony” to be a “support order” under
G.S.52C-1-101(21). [Marshall v.Marshall, 233 N.C. App. 238, 757 S.E.2d 319 (2014)
(unpublished) (not paginated on Westlaw) (order that referred to twelve monthly
payments by defendant to his former spouse as “structured payments” rather than
“alimony” constituted “monetary support”).]
i. A foreign support order is a support order, as dened in G.S. 52C-1-101(21) set
out in Section III.L.2, above, of a court, administrative agency, or quasi-judicial
entity of a foreign country which is authorized to establish, enforce, or modify
support orders. [G.S. 52C-1-101(3b, 3c).]
3. UIFSA establishes a procedural mechanism through which an obligee who resides in
another state or in a foreign country may use the North Carolina courts to enforce a
support order issued by a court of another state or a foreign support order against an
obligor who resides in North Carolina. [See Hook v.Hook, 170 N.C. App. 138, 611 S.E.2d
869, review denied, 359 N.C. 631, 616 S.E.2d 234 (2005); G.S.52C-6-603, amended by S.L.
2015-117, §1, eective June 24, 2015.]
4. A support order issued in another state or in a foreign country registered for enforcement
pursuant to G.S.52C-6-602 is enforceable in North Carolina in the same manner and is
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subject to the same procedures as an order entered by a tribunal of this state.
[G.S.52C-6-603(b), amended by S.L. 2015-117, §1, eective June 24, 2015; Marshall
v.Marshall, 233 N.C. App. 238,757 S.E.2d 319 (2014) (unpublished) (emphasis in origi-
nal) (not paginated on Westlaw) (once a foreign support order is registered and conrmed
in North Carolina, it becomes “an order of our State’s courts, explicitly enforceable as
such”).] See Section III.K, above, on enforcement.
5. Registration does not give North Carolina jurisdiction to modify a support order entered
in another state. [G.S. 52C-2-211(b), added by S.L. 2015-117, §1, eective June 24, 2015
(a tribunal of this state may not modify a spousal support order issued by a tribunal of
another state or a foreign country having continuing, exclusive jurisdiction over that
order under the law of that state or foreign country); G.S.52C-6-603(c), amended by S.L.
2015-117, §1, eective June 24, 2015 (a tribunal of this state shall recognize and enforce,
but may not modify, a registered support order if the issuing tribunal had jurisdiction).
See Hook v.Hook, 170 N.C. App. 138, 611 S.E.2d 869 (denying request for modication
and noting that unless the responding state has “continuing, exclusive jurisdiction” over
a registered foreign support order, its jurisdiction is limited to the ministerial function of
enforcing the registered order), review denied, 359 N.C. 631, 616 S.E.2d 234 (2005).]
6. Except as otherwise provided in G.S. 52C-6-604(d), the law of the issuing state or foreign
country governs the nature, extent, amount, and duration of current payments under a
registered support order, the computation and payment of arrearages and accrual of inter-
est on the arrearages under the support order, and the existence and satisfaction of other
obligations under the support order. [G.S.52C-6-604(a), amended by S.L. 2015-117, §1,
eective June 24, 2015. See also G.S.52C-6-604(b), amended by S.L. 2015-117, §1, eec-
tive June 24, 2015 (in a proceeding for arrearages under a registered support order, the
statute of limitations of the issuing state or foreign country, or of North Carolina, which-
ever is longer, applies).]
7. While an order is registered when led pursuant to G.S.52C-6-603(a), the nonregistering
party can contest the validity or enforcement of the registered order by complying with
the procedure set out in G.S.52C-6-606 (party seeking to contest must request a hear-
ing within twenty days of notice of registration, unless the registered order is under G.S.
52C-7-707). [G.S.52C-6-606(a), 52C-6-605(b), both amended by S.L. 2015-117, §1, eec-
tive June 24, 2015.]
8. Conrmation of a registered support order—either by the nonregistering party’s failure
to contest registration within the time allowed by G.S.52C-6-605(b) or as the result of
a court order entered following a contest of the registration—precludes the assertion
of any defense to enforcement that could have been asserted at the time of registration.
[G.S.52C-6-608, amended by S.L. 2015-117, §1, eective June 24, 2015.]
9. A trial court has authority to enforce by contempt all paragraphs and provisions in a
foreign support order registered and conrmed in North Carolina, not just those related
to support. [Marshall v.Marshall, 233 N.C. App. 238, 757 S.E.2d 319 (2014) (unpub-
lished) (trial court properly found defendant in contempt of provisions requiring support
payments to wife, as well as provisions in the order restraining defendant from harassing
her).]
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10. Other statutes relating to judgments for alimony issued by courts of foreign countries.
a. North Carolina Uniform Foreign-Country Money Judgments Recognition Act. [G.S.
1C-1850 et seq.]
i. A foreign-country judgment is a judgment of a court of a foreign country. [G.S.
1C-1851(2).] A foreign country is a government other than the United States, a state,
district, commonwealth, territory, or insular possession of the United States, or any
other government with regard to which the decision in this state as to whether to
recognize a judgment of that government’s courts is initially subject to determination
under the Full Faith and Credit Clause of the U.S. Constitution. [G.S. 1C-1851(1).]
is act does not apply to recognition of sister-state judgments. [Ocial Comment,
G.S. 1C-1851.]
ii. A foreign-country judgment for alimony may not be recognized in North Carolina
pursuant to the North Carolina Uniform Foreign-Country Money Judgments Recog-
nition Act. [G.S.1C-1852(b)(3), added by S.L. 2009-325, §2, eective Oct. 1, 2009,
and applicable to all actions commenced on or after that date in which the issue of
recognition of a foreign-country judgment is raised (excluding from recognition
judgments for alimony, support, or maintenance in matrimonial or family matters).]
For a case recognizing a foreign-country money judgment for attorney fees and
expenses awarded to plainti at the conclusion in his favor of an action for support
under the Family Law (Scotland) Act, see Savage v. Zelent, 777 S.E.2d 801 (N.C. Ct.
App.), review denied, 782 S.E.2d 898 (N.C. 2016) (rejecting defendant’s assertion
that attorney fees awarded in a family law matter are in fact a judgment for support
or alimony not subject to recognition under G.S. 1C-1852; even though the Scottish
judgment for attorney fees arose from defendant’s unsuccessful claim for mainte-
nance, the judgment itself was for attorney fees, which may be recognized in North
Carolina).]
iii. is act does not prevent the recognition under principles of comity or otherwise of
a foreign-country judgment to which this act does not apply. [G.S.1C-1852(d).]
b. Uniform Enforcement of Foreign Judgments Act. [G.S. 1C-1701 et seq.]
i. A foreign judgment under this act means any judgment, decree, or order of a court
of the United States or a court of any other state which is entitled to full faith and
credit in this state, except a “child support order,” as dened in G.S. 52C-1-101
(e Uniform Interstate Family Support Act); a “custody decree,” as dened in G.S.
50A-102 (e Uniform Child-Custody Jurisdiction and Enforcement Act); or a
domestic violence protective order, as provided in G.S. 50B-4(d). [G.S. 1C-1702(1).]
ii. Not being excluded by G.S. 1C-1702(1), a money judgment of a sister state for ali-
mony may be enforced in North Carolina pursuant to the Uniform Enforcement of
Foreign Judgments Act.
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IV. Eect of Bankruptcy
Important Note: Except as noted, this section describes provisions of the federal bankruptcy law eective
Oct. 17, 2005.
A. Bankruptcy Reform Legislation
1. On Apr. 20, 2005, the federal Bankruptcy Abuse Prevention and Consumer Protection Act
of 2005 [Pub. L. No. 109-8, 119 Stat. 23 (2005) (hereinafter the Bankruptcy Reform Act).]
was signed into law. It amended certain provisions of the Bankruptcy Code. e amend-
ments relating to family law were eective Oct. 17, 2005, and apply to bankruptcy cases
commenced on or after that date.
2. For an overview of the Bankruptcy Reform Act in the area of family law, see
John L. Saxon, Impact of the New Bankruptcy Reform Act on Family Law in
North Carolina, F. L. B. No. 20 (UNC School of Government, June 2005)
(hereinafter 2005 Saxon Bulletin).
3. e provisions of the Bankruptcy Code in eect before passage of the Bankruptcy Reform
Act relating to alimony and other family law matters continue to apply in bankruptcy
cases led before Oct. 17, 2005, and pending on or after that date.
4. Additionally, provisions of the Bankruptcy Code in eect before passage of the Bank-
ruptcy Reform Act that were not amended or repealed continue to apply in bankruptcy
cases that are led on or after Oct. 17, 2005.
5. For the eect of bankruptcy in an equitable distribution proceeding, see Equitable Distri-
bution Overview and Procedure, Bench Book, Vol. 1, Chapter 6, Part 1.
6. For the eect of bankruptcy in child support enforcement proceedings, see Enforcement of
Child Support Orders, Bench Book, Vol. 1, Chapter 3, Part 4.
7. For the eect of bankruptcy on provisions in spousal agreements, see Spousal Agreements,
Bench Book, Vol. 1, Chapter 1.
B. Denitions
1. Domestic support obligation.
a. A “domestic support obligation” is a debt that:
i. Accrues before, on, or after the date of the order for relief in the bankruptcy
case, including interest that accrues on that debt as provided under applicable
nonbankruptcy law notwithstanding any other provision of Title 11 of the U.S.
Code; [11 U.S.C. §101(14A).]
ii. Is owed to or recoverable by the debtor’s spouse, former spouse, or child, the
child’s parent, legal guardian, or responsible relative, or a governmental unit; [11
U.S.C. §101(14A)(A).]
iii. Is in the nature of alimony, maintenance, or support (including assistance pro-
vided by a governmental unit) for a debtor’s spouse, former spouse, or child, or
for the child’s parent; [11 U.S.C. §101(14A)(B).]
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iv. Has been established or is subject to establishment before, on, or after the date
of the order for relief by a court order, divorce decree, separation agreement,
property settlement agreement, or a determination by a governmental unit in
accordance with applicable nonbankruptcy law; [11 U.S.C. §101(14A)(C).] and
v. Has not been assigned to a nongovernmental entity, unless the assignment is
voluntary and for the purpose of collecting the debt. [11 U.S.C. §101(14A)(D).]
2. Debts arising from a separation or divorce other than those that qualify as domestic
support obligations.
a. 11 U.S.C. §523(a)(15) identies a second type of divorce-related debt, that is, a debt
to a spouse, former spouse, or child of the debtor that is not a domestic support
obligation and is incurred by the debtor in the course of a divorce or separation or in
connection with a separation agreement, divorce decree, or other order of a court of
record.
b. Debts under 11 U.S.C. §523(a)(15) commonly are referred to as being in the form of
a property settlement, while debts under §523(a)(5) commonly are referred to as ali-
mony or support. [See In re Zeitchik, 369 B.R. 900 (Bankr. E.D.N.C. 2007) (not subject
to the Bankruptcy Reform Act).] A §523(a)(15) debt is generally referred to herein as
“a divorce-related debt that that does not qualify as a domestic support obligation” or
as “a divorce-related debt that is not a domestic support obligation”.
c. Whether debts are classied under §523(a)(5) as domestic support obligations
(DSOs) or under §523(a)(15) as divorce-related debts that do not qualify as DSOs is
signicant because DSOs generally receive preferential treatment under the Bank-
ruptcy Code. [See 2005 Saxon Bulletin and Sections IV.D and E, below.]
d. e following qualied as domestic support obligations (DSOs).
i. Debtor’s court-ordered obligation in Georgia divorce decree to pay 70 percent of
a home equity line of credit secured by the parties’ marital home and an award
of attorney fees to the nondebtor spouse were DSOs. [In re Baker, No. 12-01090-
8-SWH, 2012 WL 6186683 (Bankr. E.D.N.C. Dec. 12, 2012) (obligation to pay
equity line was a DSO, given nature of the obligation, fact that parties had a
dependent adult child living with wife in marital home, the disparity in earn-
ing power between the spouses, and the inadequacy of other support; fact that
obligation provided shelter for wife and son, a necessity of life, strongly weighed
in favor of nding a DSO; award of fees was Georgia state court judge’s attempt
to balance the nancial needs of the parties, which is sucient basis for nding
it in the nature of support, even if a portion of the fees was unrelated to wife’s
support).]
ii. Award by state court to wife of the marital percentage of 42.775 percent of
debtor husband’s Weyerhauser pension benets was a DSO and was nondis-
chargeable in husband’s Chapter 13 proceeding. [In re Bowen, No. 09-06106-
RDD, 2010 WL 1855871 (Bankr. E.D.N.C. May 7, 2010) (classication of award
as a DSO based on state court orders that made specic ndings that wife was
unable to meet her needs without husband’s assistance; that described at great
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length the disparity of the parties’ income and the wife’s nancial condition; that
provided for monthly payments, as opposed to a lump sum, which were to assist
with wife’s basic living expenses; and that specically found that wife “is, and
was through the marriage, actually and substantially dependent” on husband).]
iii. Chapter 13 debtor husband’s obligation to pay certain marital debts from pro-
ceeds from sale of marital residence, pursuant to provision in marital separation
agreement that such payments would be in lieu of alimony or spousal support,
was intended by parties to serve as support for wife and was in nature of non-
dischargeable “domestic support obligation,” payable on a priority basis. [In re
Deberry, 429 B.R. 532 (Bankr. M.D.N.C. 2010) (the division of other debts, con-
sisting of credit cards and loans, was in the nature of a property settlement). Cf.
In re Wood, No. 11-06583-8-JRL, 2012 WL 14270 (Bankr. E.D.N.C. Jan. 4, 2012)
(where parties’ agreement provided for debtor husband to be primarily liable
for mortgage debts and provided that each spouse forever gave up the right to
spousal support, the agreement did not create a DSO).]
e. e following did not qualify as domestic support obligations (DSOs).
i. Language in an incorporated separation agreement that specically assigned
certain marital debt to each party for payment and waived child support and
spousal support was an equitable division of property and was not a DSO. [In re
Ludwig, 502 B.R. 466 (Bankr. W.D. Va. 2013).]
ii. An award of $10,020 for wife’s one-half share of the equity in the marital res-
idence that was depleted postseparation, and an award of $12,973 represent-
ing one-half of the insurance funds received for the loss of marital assets in a
re, were not DSOs but were part of equitable distribution. [In re Mobley, No.
08-50255, 2009 WL 3754251 (Bankr. M.D.N.C. Nov.4, 2009).]
iii. Wife’s payment of a home equity line of credit, which Chapter 13 debtor hus-
band in a separation agreement had agreed to pay and to hold his former spouse
harmless thereon, was not a DSO. Rather, the hold-harmless agreement was
part of the parties’ property settlement and, as such, was allowed as a general
unsecured claim. [In re Siegel, 414 B.R. 79 (Bankr. E.D.N.C. 2009). See also In
re Sewell, No. 07-00777-5-ATS, 2008 WL 8130029, *3 (Bankr. E.D.N.C. Jan.
3, 2008) (Chapter 13 debtor husband’s agreement to reimburse wife for her
payment of an equity line of credit was not a DSO, even though separation
agreement provided that in the event of bankruptcy by either party, “all provi-
sions contained herein, whether enumerated as support or property, shall be
considered as in the nature of support for spouse and shall not be discharged in
bankruptcy”); cf. In re Johnson, 397 B.R. 289 (Bankr. M.D.N.C. 2008) (Chapter 13
debtor husband’s obligation in a separation agreement to pay a home equity line
of credit and to hold wife harmless thereon was found to be a DSO; obligation
that enables one’s family to maintain shelter is in the nature of support, and an
agreement to indemnify and hold the former spouse harmless on that debt is a
nondischargeable DSO).]
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3. Property of the bankruptcy estate.
a. Chapter 7 bankruptcy case.
i. In a Chapter 7 bankruptcy case, the bankruptcy estate generally includes prop-
erty that the debtor owned at the time he led for bankruptcy (as well as cer-
tain property previously owned by the debtor) and excludes most, but not all,
income and property acquired by the debtor after he led for bankruptcy. [See
11 U.S.C. §541.]
ii. Property of the estate does not include property that the debtor is allowed to
keep as exempt from bankruptcy. [See 11 U.S.C. §522 on exemptions.] For other
property that is not included as property of the estate, including but not limited
to funds placed in education individual retirement accounts, 529 college savings
plans, and amounts withheld or placed in certain pension or retirement plans,
see 11 U.S.C. §541(b).
b. In a Chapter 13 bankruptcy case, property of the estate includes the property
included in the estate of a Chapter 7 debtor, described above, as well as property
(including wages and income) acquired by the debtor after she les for bankruptcy.
[See 11 U.S.C. §1306(a); In re Gellington, 363 B.R. 497 (Bankr. N.D. Tex. 2007) (when
the debtor’s postconrmation wages are provided for in, and used to fund, his Chap-
ter 13 plan, they are considered property of the estate).]
C. Automatic Stay
1. When a debtor les a bankruptcy petition, federal law automatically and immediately
imposes a stay precluding the debtor’s creditors (including spouses and former spouses)
and others (including state courts) from taking certain actions against the debtor, the
debtor’s property, or property of the bankruptcy estate. [See 11 U.S.C. §362(a).]
a. e automatic stay applies to:
i. Any act to collect, assess, or recover a claim against the debtor that arose before
the debtor led for bankruptcy. [11 U.S.C. §362(a)(6).]
ii. e seto of any prebankruptcy debt owed to the debtor against any claim
against the debtor (regardless of whether the claim against the debtor arose
before or after the debtor’s bankruptcy). [11 U.S.C. §362(a)(7).]
iii. e commencement or continuation of any legal proceeding to recover a
claim against the debtor that arose before the debtor’s bankruptcy. [11 U.S.C.
§362(a)(1).] is provision stays:
(a) e commencement or continuation of a civil contempt proceeding against
a debtor for failure to pay a prepetition domestic support obligation, even
if the proceeding does not involve property of the bankruptcy estate.
[2005 Saxon Bulletin.]
(b) A proceeding to attach or garnish a debtor’s bank account or other property
to collect a prepetition domestic support obligation. [2005 Saxon Bulletin.]
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iv. e enforcement against the debtor or against property of the estate of a judg-
ment obtained before the debtor’s bankruptcy. [11 U.S.C. §362(a)(2).] is
provision stays:
(a) e issuance or execution of a writ of execution or the commencement
or continuation of supplemental proceedings to enforce a judgment for a
prepetition domestic support obligation. [2005 Saxon Bulletin.]
(b) e commencement of a civil contempt proceeding against a debtor
for failure to pay a postpetition domestic support obligation unless the
support will be paid from property that is not property of the estate.
[2005 Saxon Bulletin.]
v. Any act to create, perfect, or enforce any lien against property of the estate. [11
U.S.C. §362(a)(4).] is provision stays:
(a) e enforcement or collection of a postpetition domestic support obliga-
tion through the creation, perfection, or enforcement of a lien on property
of the estate. [2005 Saxon Bulletin.]
vi. Any act to create, perfect, or enforce against property of the debtor any lien to
the extent the lien secures a claim that arose before the commencement of the
case. [11 U.S.C. §362(a)(5).] is provision stays:
(a) e creation, perfection, or enforcement of a lien against the debtor’s prop-
erty or property of the estate that secures a prepetition domestic support
obligation. [2005 Saxon Bulletin.]
b. Any action taken in violation of the automatic stay is void, and a creditor who will-
fully violates the automatic stay may be liable for actual damages, including costs and
attorney fees, and, in appropriate circumstances, may recover punitive damages. [11
U.S.C. §362(k); In re Gruntz, 202 F.3d 1074, 1082 n.6 (9th Cir. 2000) (because judicial
proceedings in violation of the stay are void ab initio, the bankruptcy court is not
obligated to extend full faith and credit to such judgments).]
2. Actions to which the automatic stay is not applicable or that do not violate the automatic
stay. e automatic stay does not apply to:
a. “[T]he commencement or continuation of a civil action or proceeding . . . for the
establishment or modication of an order for [a] domestic support obligation[.]” [11
U.S.C. §362(b)(2)(A)(ii).]
i. Relief from the stay is not needed to seek an order in state court establishing or
modifying the amount of the debtor’s permanent spousal support obligation. [11
U.S.C. §362 (b)(2)(A)(ii).]
ii. Orders for alimony and equitable distribution entered eleven days after the
debtor husband led his Chapter 13 petition did not violate the automatic stay,
as the orders established a domestic support obligation to wife based on debtor
husband’s Weyerhaeuser pension benets. [In re Bowen, No. 09-06106-RDD,
2010 WL 1855871 (Bankr. E.D.N.C. May 7, 2010).]
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b. e collection of a domestic support obligation (DSO) from property that is not
property of the bankruptcy estate. [11 U.S.C. §362(b)(2)(B); In re Hilton, No.
05-53796, 2006 WL 4458699 (Bankr. M.D.N.C. Feb. 21, 2006) (automatic stay does
not apply to the collection of debts for alimony, maintenance, or support from prop-
erty that is not property of the bankruptcy estate). See Section IV.B.3, above, for de-
nition of property of the estate.] Conversely, the collection of a DSO from property of
the bankruptcy estate is subject to the automatic stay.
i. Since debtor husband’s Weyerhaeuser pension benets were not property of the
estate under the Bankruptcy Code, the automatic stay did not stay wife from
seeking to have a qualied domestic relations order entered by the state court.
[In re Bowen, No. 09-06106-RDD, 2010 WL 1855871 (Bankr. E.D.N.C. May 7,
2010).]
c. e continuation or commencement of income withholding against property of
the bankruptcy estate or property of the debtor for payment of a domestic support
obligation (DSO) under a judicial or administrative order or statute. [11 U.S.C.
§362(b)(2)(C).] is authorizes income withholding against a debtor’s postpetition
wages for current and past due spousal support after a debtor les a Chapter 13
bankruptcy case. [2005 Saxon Bulletin.]
i. is exception is broader than the exception in 11 U.S.C. §362(b)(2)(B), set out
above, in that it allows for withholding of income that is property of the estate
and, therefore, includes postpetition property such as the postpetition earnings
of a Chapter 13 debtor. [In re Miller, 501 B.R. 266, 279 n.15 (Bankr. E.D. Pa.
2013) (calling the revision by the Bankrtupcy Reform Act of this provision to
allow withholding from property of the estate “signicant” but noting in foot-
note 15 a division regarding the scope of this exception to the automatic stay;
some courts have construed the exception broadly to allow “virtually any cred-
itor action to enforce a DSO,” including eectuating withholding through con-
tempt, while other courts have construed the provision more narrowly, allowing
only actions to withhold income in order to collect on a DSO).]
ii. e state of Florida’s continued collection through wage garnishment of a prep-
etition DSO did not violate the automatic stay. [In re Fort, 412 B.R. 840 (Bankr.
W.D. Va. 2009) (however, Florida’s post-conrmation continuation of a wage
deduction order, in excess of the amount provided in the debtor’s conrmed
plan, violated 11 U.S.C. §1327(a), which makes the provisions in a conrmed
plan binding upon each creditor).]
d. e collection or enforcement of a domestic support obligation through the
inter ception of a tax refund in accordance with federal and state law. [11 U.S.C.
§362(b)(2)(F).] A child support agency is authorized to attach a debtor’s state or
federal tax refund to enforce a debtor’s spousal support obligation. [2005 Saxon
Bulletin.]
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e. e commencement or continuation of a criminal action or proceeding against the
debtor. [11 U.S.C. §362(b)(1); for cases decided under this section, see Enforcement
of Child Support Orders, Bench Book, Vol. 1, Chapter 3, Part 4.]
3. Duration of the stay.
a. e automatic stay against actions against the debtor or the debtor’s property
remains in eect until:
i. e bankruptcy court grants relief from the stay for cause; [11 U.S.C. §362(d)(1).]
ii. e debtor’s bankruptcy case is closed or dismissed; [11 U.S.C. §362(c)(2).] or
iii. e debtor is denied or granted a discharge (usually about sixty days after the
creditors meeting in a Chapter 7 case or, in a Chapter 13 case, after the debtor
completes his Chapter 13 plan, generally within three to ve years of the debtor’s
bankruptcy). [11 U.S.C. §362(c)(2).]
b. e automatic stay against actions against property of the bankruptcy estate remains
in eect until the bankruptcy court grants relief from the stay or the property is
no longer property of the bankruptcy estate. [See 11 U.S.C. §362(c)(1); see Section
IV.B.3, above, for denition of property of the estate.]
c. e duration of the stay is limited in cases where the debtor has multiple lings. [See
11 U.S.C. §362(c)(3).]
4. Eect of conrmation of a Chapter 13 plan on the automatic stay.
a. A debtor’s Chapter 13 plan generally (but not always) provides that property of the
bankruptcy estate becomes the debtor’s property upon conrmation of the plan,
except to the extent necessary to fund the plan. [See 11 U.S.C. §1327(b).]
b. When the property of the bankruptcy estate becomes the debtor’s property following
conrmation of the debtor’s Chapter 13 plan, it is no longer subject to the automatic
stay as it applies to property of the bankruptcy estate but remains subject to the auto-
matic stay under 11 U.S.C. §362(a)(5) and, notwithstanding 11 U.S.C. §362(b)(2)(B),
is held by the debtor free and clear of the interest of a support creditor to the extent
that the support claim is provided for in the debtor’s Chapter 13 plan. [See 11 U.S.C.
§1327(c); In re McGrahan, 459 B.R. 869, 874 (B.A.P. 1st Cir. 2011) (upon conrma-
tion, “a creditor’s rights and interests are dened within the boundaries of the plan,
and proceedings that are inconsistent with the conrmed plan are improper, even if
they fall within an exception to the automatic stay”).]
5. Relief from the stay.
a. A North Carolina district court lacks jurisdiction to grant relief from the automatic
stay. Only the federal bankruptcy court can grant relief from the automatic stay. [See
11 U.S.C. §362(d); see Section IV.C.6, below, for state court’s authority to determine
applicability of the automatic stay to a state court proceeding.]
b. A dependent spouse may le a motion with the federal bankruptcy court seeking
relief from the automatic stay. [See F. R. B. P. 4001(a).]
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c. A motion for relief from the automatic stay is automatically granted thirty days after
the motion is led, unless the bankruptcy court, after hearing, orders that it be con-
tinued. [11 U.S.C §362(e).]
d. A supporting spouse generally may stipulate to relief from the automatic stay for
enforcement of spousal support if it is approved by the bankruptcy court on the debt-
or’s motion after notice to creditors. [F. R. B. P. 4001(d).]
e. A bankruptcy court may grant relief from the stay to allow the nondebtor spouse to
le a motion in a North Carolina district court seeking classication under 11 U.S.C.
§523(a)(5) or 523(a)(15) of the debtor’s obligation in a divorce decree to pay the
mortgages on the marital residence and to pay the nondebtor spouse’s attorney fees.
[See In re Smith, Case No. 07-01509-8-JRL (E.D.N.C. Sept. 13, 2007).]
6. A state district court judge may determine whether a matter pending before the court is
stayed by a party’s bankruptcy.
a. If a supporting spouse asserts the automatic stay as a defense in a support enforce-
ment proceeding in state court, the district court judge in the pending support action
may determine whether enforcement of the support order violates the automatic stay,
and the state court’s decision regarding the applicability of the automatic stay is res
judicata in the pending bankruptcy case. [See In re Singleton, 230 B.R. 533 (B.A.P. 6th
Cir. 1999) (stating that the debtor confused jurisdiction to grant relief from the stay
under 11 U.S.C. §362(d), over which the bankruptcy court has exclusive jurisdiction,
with jurisdiction to determine whether the stay applies in the rst place, which a
nonbankruptcy court may determine).]
b. In In re Singleton, 230 B.R. 533 (B.A.P. 6th Cir. 1999), the state court determined
that the debtor’s personal Chapter 13 bankruptcy did not stay the foreclosure sale of
property owned by the debtor’s corporation, a decision which the Bankruptcy Appel-
late Panel determined was within the jurisdiction of the state court.
D. Status, Priority, and Payment of Support Claims
1. Priority of domestic support obligations.
a. An allowed unsecured claim for a domestic support obligation, including one
assigned to a government agency or owed directly to a governmental unit, is enti-
tled to payment as a rst priority claim. [11 U.S.C. §507(a)(1); In re Smith, Case No.
07-01509-8-JRL (E.D.N.C. Sept. 13, 2007) (under §507(a)(1), a domestic support
obligation is elevated ahead of all administrative costs, including attorney fees).]
b. A divorce-related debt that does not qualify as a domestic support obligation is
a general unsecured claim with no priority. [11 U.S.C. §507(a) (no priority for
§523(a)(15) debt in the general priority provision). See also In re Bornemann, No.
07-cv-528-JPG, 2008 WL 818314 (S.D. Ill. Mar. 21, 2008) (noting that a debt that
results from a property settlement is a general unsecured claim with no priority).]
c. Language in an incorporated separation agreement that specically assigned certain
marital debt to each party for payment and waived child support and spousal support
was an equitable division of property and was not a domestic support obligation enti-
tled to priority. [In re Ludwig, 502 B.R. 466 (Bankr. W.D. Va. 2013).]
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d. Language in a judgment that awarded debtor wife the marital business in exchange
for $104,500 payable to husband at the rate of $800/month was part of an equitable
distribution award, not a domestic support obligation entitled to priority. e 2009
judgment, which provided only for the distribution of marital property, stated that
it “resolves all claims by either party for equitable distribution;” the judgment did
not, by its terms, address any debt in the nature of alimony, maintenance, or support;
the court found that this unambiguously indicated that the judgment was a distrib-
utive award intended to be a marital property settlement and, thus, was a general
unsecured claim not entitled to priority. [In re Clark, 441 B.R. 752 (Bankr. M.D.N.C.
2011).]
2. Treatment of domestic support obligations (DSOs) in a Chapter 13 plan.
a. Prebankruptcy DSOs (arrearages).
i. With two exceptions, a Chapter 13 plan must provide for full payment of all
claims entitled to priority under 11 U.S.C. §507, which includes prebankruptcy
domestic support obligations. [11 U.S.C. §507(a)(1); 11 U.S.C. §1322(a)(2).] Full
payment is required unless:
(a) e claim holder consents to dierent treatment [11 U.S.C. §1322(a)(2).] or
(b) e unsecured claim for a DSO has been assigned to a government agency
(other than a voluntary assignment for collection purposes only) and the
debtor’s plan commits all of the debtor’s disposable income to plan pay-
ments required for the ve-year period allowed to complete the plan. [11
U.S.C. §1322(a)(4); 11 U.S.C. §507(a)(1)(B).]
ii. A Chapter 13 plan may provide for payment of secured or unsecured prebank-
ruptcy spousal support arrearages through the bankruptcy trustee, regardless of
whether the claim is entitled to priority under 11 U.S.C. §507(a).
iii. To the extent that a debtor’s Chapter 13 plan provides for payment of prebank-
ruptcy spousal support arrearages, no action may be taken in state court to
enforce the arrearage against the debtor’s income or property following conr-
mation of the Chapter 13 plan. [See 11 U.S.C. §1327(c).]
b. Postbankruptcy domestic support obligations (current support obligations).
i. In a Chapter 13 case, spousal payments that become due after a debtor les for
bankruptcy must be paid “outside” the debtor’s Chapter 13 plan rather than
through the bankruptcy trustee.
ii. A nondebtor spouse, however, may object to conrmation of the debtor’s Chap-
ter 13 plan if the debtor’s disposable income is insucient to pay the debtor’s
current support obligation plus the debtor’s necessary living expenses and
payments under the Chapter 13 plan. [See 11 U.S.C. §1325(a)(6); In re Dorf, 219
B.R. 498 (Bankr. N.D. Ill. (1998) (debtor’s Chapter 13 plan not feasible when,
after paying for personal needs, funds were sucient to pay only the prebank-
ruptcy support arrearage, leaving nothing to make the postbankruptcy monthly
spousal support obligation).]
c. Safeguards to ensure payment of pre- and postbankruptcy domestic support obliga-
tions (DSOs).
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i. A Chapter 13 plan may not be conrmed if the debtor has not paid all DSOs that
have accrued after the ling of the petition, if the debtor is required to do so by a
judicial or administrative order or by statute. [11 U.S.C. §1325(a)(8).]
ii. A Chapter 13 case may be dismissed if the debtor fails to pay any DSOs that
have accrued after the ling of the petition. [11 U.S.C. §1307(c)(11).]
iii. A court may refuse to grant a discharge if the debtor has failed to pay all pre-
bankruptcy and postbankruptcy DSOs in accordance with a judicial or adminis-
trative order and, with respect to prebankruptcy DSOs, in accordance with the
Chapter 13 plan. [11 U.S.C. §1328(a).]
3. Jurisdiction to determine amount, status, and priority of a claim.
a. If the debtor or trustee les an objection to the dependent spouse’s claim for support,
the bankruptcy court has jurisdiction to determine the amount, status, and priority
of the claim. [See 11 U.S.C. §502(b); F. R. B. P. 3007.]
b. A prior decision by a state court determining the validity of a support claim or the
amount of support arrearages owed by a spouse who les for bankruptcy is res
judicata and may not be collaterally attacked by the debtor spouse in the pending
bankruptcy case. [See In re Sullivan, 122 B.R. 720 (Bankr. D. Minn. 1991) (res judi-
cata precluded Chapter 7 debtor from contesting the existence, validity, and amount
of debt arising from default judgment of $20,000 for unlawful battery); see also In re
Audre, Inc., 202 B.R. 490 (Bankr. S.D. Cal. 1996) (federal district court lacks jurisdic-
tion to review nal determinations of state court decisions), aff’d, 216 B.R. 19 (B.A.P.
9th Cir. 1997).]
c. A bankruptcy court may abstain from determining the amount of a support claim in
the pending bankruptcy case and allow a state court to determine the amount of the
arrearage. [28 U.S.C. §1334(c). See In re Kriss, 217 B.R. 147 (Bankr. S.D.N.Y. 1998)
(listing seven factors used to determine whether to remand matter to state court),
and In re Franklin, 179 B.R. 913 (Bankr. E.D. Cal. 1995) (balancing twelve factors
when considering discretionary abstention).]
E. Dischargeability of Support and Other Divorce-Related Claims
1. Procedure and jurisdiction to determine the dischargeability of a claim.
a. e debtor or any creditor may le an adversary proceeding in bankruptcy court at
any time to determine the dischargeability of a support claim. [F. R. B. P.
4007(a) and (b).]
b. If an adversary proceeding regarding the dischargeability of a support claim has not
been led and decided by the bankruptcy court, a state court has concurrent juris-
diction with the federal bankruptcy court to determine the dischargeability of the
support claim, and its decision regarding dischargeability is res judicata. [See In re
McGregor, 233 B.R. 406 (Bankr. S.D. Ohio 1999) (nding that a state court has juris-
diction to decide that a debt is nondischargeable for the debtor’s failure to list the
creditor in its schedules); see also In re Franklin, 179 B.R. 913 (Bankr. E.D. Cal. 1995)
(discussing “poorly understood” question regarding the concurrent jurisdiction of
state and federal courts to determine whether particular debts are discharged in a
bankruptcy case).]
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c. A debtor has the right to remove a case involving the dischargeability of a support
claim from state court to the federal bankruptcy court. [28 U.S.C. §§1334(b) and
1452(a).]
2. Discharge in a Chapter 7 case commenced on or after Oct. 17, 2005.
a. A debt for a domestic support obligation is nondischargeable in a Chapter 7 case. [11
U.S.C. §523(a)(5); 2005 Saxon Bulletin.]
b. A divorce-related debt that is not a domestic support obligation is nondischargeable
in a Chapter 7 case. [11 U.S.C. §727(b); 11 U.S.C. §523(a)(15); 2005 Saxon Bulletin.]
c. us, in Chapter 7 cases commenced on or after Oct. 17, 2005, distinctions between
a domestic support obligation , governed by 11 U.S.C. §523(a)(5), and other types of
divorce-related debts, governed by 11 U.S.C. §523(15), are immaterial, as both types
of debts are nondischargeable. [In re Johnson, 397 B.R. 289 (Bankr. M.D.N.C. 2008)
(citing In re Douglas, 369 B.R. 462 (Bankr. E.D. Ark. 2007)).]
d. ere was no violation of husband’s bankruptcy discharge in a Chapter 7 case when
husband was ordered to pay as alimony a home equity line of credit, even though
husband’s obligation on the line of credit had been discharged. [Sloan v.Sloan, 151
N.C. App. 399, 566 S.E.2d 97 (2002) (order for payment of the debt was an order for
the payment of alimony, for which the court had subject matter jurisdiction, and not
an order to pay a discharged debt).]
3. Discharge in a Chapter 13 case commenced on or after Oct. 17, 2005.
a. A debt for a domestic support obligation is nondischargeable in a Chapter 13 case.
[11 U.S.C. §523(a)(5); 11U.S.C. §1328(a)(2); In re Hutchens, 480 B.R. 374 (Bankr.
M.D. Fla. 2012) (a Chapter 13 discharge has no impact on unpaid back child support
and alimony arrearages and does not discharge those debts).]
b. A divorce-related debt that is not a domestic support obligation (DSO) is discharge-
able in a Chapter 13 case. [11 U.S.C. §1328(a)(2) (no exception for §523(a)(15)
debt); In re Hutchens, 480 B.R. 374, 386 (Bankr. M.D. Fla. 2012) (noting that “the
law is now well-settled that a claim for a property settlement arising from divorce
proceedings can . . . be discharged in a Chapter 13 case if a debtor makes all the
required payments under a plan and receives a full compliance discharge under [11
U.S.C.] §1328(a)”.] us, a Chapter 13 debtor will be discharged from a §523(a)(15)
divorce-related debt that was not paid in full under the plan provided the debtor
made all payments required by the Chapter 13 plan. A full compliance discharge
does not mean that the creditor spouse’s divorce-related debt that is not a DSO was
paid in full. [See In re Siegel, 414 B.R. 79 (Bankr. E.D.N.C. 2009) (Chapter 13 debtor’s
obligation to indemnify and hold his former spouse harmless with respect to the
parties’ home equity line of credit debt was not a DSO entitled to priority; rather, the
hold-harmless agreement was part of the parties’ property settlement and, as such,
was not a priority claim that had to be paid in full).] A full compliance discharge
means that the debtor spouse made all payments required under the plan and any
balance due the creditor spouse after completion of the plan is discharged.
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c. Since a divorce-related debt that is not a domestic support obligation (DSO) is dis-
chargeable in a Chapter 13 case under 11 U.S.C. § 1328(a), the end result is that a
debtor who receives a discharge under § 1328(a) may discharge a debt that cannot be
discharged in a Chapter 7 case. us, whether a debt is determined to be a DSO or a
divorce-related debt that is not a DSO is important in a Chapter 13 case.
d. EXCEPTION: A divorce-related debt that is not a domestic support obligation (DSO)
is not discharged in a Chapter 13 case when the debtor applies for and is granted a
discharge pursuant to 11 U.S.C. §1328(b), referred to sometimes as a hardship or
best eorts discharge. [11 U.S.C. §523(a).]
i. In some cases a debtor is unable to complete the payments required by a Chap-
ter 13 plan. If the debtor’s failure to complete all plan payments is due to cir-
cumstances for which the debtor should not justly be held accountable, unse-
cured creditors received at least the amount that they would have received in a
Chapter 7 proceeding and modication of the debtor’s Chapter 13 plan is not
practicable, the bankruptcy court may grant the debtor a discharge under 11
U.S.C. §1328(b). [11 U.S.C. § 1328(b).]
ii. e discharge the debtor receives pursuant to 11 U.S.C. §1328(b) is more lim-
ited than a full-compliance discharge under 11 U.S.C. § 1328(a) and does not
discharge a divorce-related debt that does not qualify as a DSO. [See 11 U.S.C.
§1328(c) (a discharge under § 1328(b) does not discharge any debt specied
in 11 U.S.C. § 523(a)); In re Hutchens, 480 B.R. 374, 386 n.11 (Bankr. M.D. Fla.
2012) (under a §1328(b) discharge, “none of the debts incurred in the course of
a divorce proceeding would be dischargeable, including a property division.”).]
e. An attempt by the parties to avoid the eect in a Chapter 13 case of a discharge has
been found invalid. [See In re Wood, No. 11-06583-8-JRL, 2012 WL 14270, *2 (Bankr.
E.D.N.C. Jan. 4, 2012) (the following provision in parties’ marital property agreement
was found to be an invalid prepetition waiver of discharge: “[t]o the extent of any
obligation contained herein is discharged in bankruptcy and the non-bankrupt party
is held liable for said debt, the non-bankrupt party shall have the right to petition a
court of competent jurisdiction for spousal support in an amount sucient to cover
any amounts so discharged”).]
V. Attorney Fees
A. Attorney Fees
1. Authorization and entitlement.
a. A court may, upon application of a dependent spouse, enter an order for reasonable
attorney fees at any time that a dependent spouse would be entitled to alimony
or postseparation support. [G.S.50-16.4, amended by S.L. 2010-14, §1, eective
Oct. 1, 2010, and applicable to fees for services rendered on or after that date; G.S.
6-21(4) (allowing reasonable attorney fees in the discretion of the court in alimony
actions, as determined and provided for in accordance with G.S. 50-16.4).]
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b. Attorney fees are to be paid and secured by the supporting spouse in the same
manner as alimony. [G.S.50-16.4.] See Section III.H, above, on the various forms of
payment.
c. e “guiding principle behind the allowance of attorney fees is to enable the depen-
dent spouse, as litigant, to meet the supporting spouse, as litigant, on substantially
even terms by making it possible for the dependent spouse to employ adequate and
suitable legal representation.” [Clark v.Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67
(1980).]
d. Before granting an award of attorney fees, the trial court must determine, as a matter
of law, that the spouse seeking the award:
i. Would be entitled to alimony pursuant to G.S. 50-16.3A or to postseparation
support pursuant to G.S. 50-16.2A,
ii. Is dependent, and
iii. Is without sucient means to subsist during the prosecution of the suit and
to defray the necessary expenses. [G.S.50-16.4 (rst two ndings); Clark
v.Clark, 301 N.C. 123, 271 S.E.2d 58 (1980); Swain v.Swain, 179 N.C. App.
795, 635 S.E.2d 504 (2006) (citing Rickert v.Rickert, 282 N.C. 373, 193 S.E.2d
79 (1972)) (modication action), review denied, 361 N.C. 437, 649 S.E.2d 897
(2007); Francis v.Francis, 169 N.C. App. 442, 612 S.E.2d 141 (citing Clark)
(initial award of alimony), review denied, 359 N.C. 631, 616 S.E.2d 233 (2005);
Friend-Novorska v.Novorska, 163 N.C. App. 776, 594 S.E.2d 409 (2004) (Swain,
Francis, Friend-Novorska all post-1995 cases citing pre-1995 requirements for
award of attorney fees). Cf. Clark v.Clark, 231 N.C. App. 514, 753 S.E.2d 743
(2013) (unpublished) (appellate court noting that G.S.50-16.4 does not require
a nding that plainti be unable to pay attorney fees, beyond its undisputed
nding that she is a dependent spouse).]
e. e party requesting attorney fees must provide proper support for the claim. [Wil-
liamson v.Williamson, 217 N.C. App. 388, 392, 719 S.E.2d 625, 628 (2011) (citing
Spencer v.Spencer, 133 N.C. App. 38, 514 S.E.2d 283 (1999)) (claim for fees properly
dismissed when defendant did not submit “any attorney fees adavit or any evidence
to support her claim that she is entitled to an award of attorney fees”).]
f. A trial court can award fees when the dependent spouse’s attorney is providing pro
bono services. [See S.L. 2010-14, §1, eective Oct. 1, 2010, and applicable to fees
for services rendered on or after that date, deleting requirement in G.S. 50-16.4
that award of attorney fees be for the benet of the dependent spouse.] e amend-
ment changed the result in Patronelli v.Patronelli, 360 N.C. 628, 636 S.E.2d 559
(2006) (dependent spouse’s request for fees was denied, as any fees ordered paid to
dependent spouse’s pro bono attorney would not have been for dependent spouse’s
benet).]
g. Before amendment in 1995, G.S.50-16.4 provided that “[a]t any time that a depen-
dent spouse would be entitled to alimony pendente lite . . ., the court may . . . enter an
order for reasonable counsel fees for the benet of [the dependent] spouse . . . .” [See
editor’s note to G.S.50-16.4; former G.S.50-16.4 applies to motions to modify orders
or judgments in eect on Oct. 1, 1995.]
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i. Former G.S.50-16.4 was construed to allow attorney fees “any time a depen-
dent spouse could show that she has the grounds for alimony pendente lite, even
though the proceeding was not brought for that purpose.” [Broughton v.Brough-
ton, 58 N.C. App. 778, 783, 294 S.E.2d 772, 777 (emphasis in original) (citing
Upchurch v.Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977)) (if defendant
could meet the requirements for alimony pendente lite, she could recover attor-
ney fees even though she sought modication of alimony), review denied, 307
N.C. 269, 299 S.E.2d 214 (1982).]
ii. Under former G.S.50-16.4, even if alimony pendente lite was denied, a court
could award attorney fees in the subsequent action for permanent alimony.
[Vandiver v.Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, review denied, 302
N.C. 634, 280 S.E.2d 449 (1981). See also Evans v.Evans, 111 N.C. App. 792,
434 S.E.2d 856 (former spouse does not lose right to attorney fees because
divorce decree was entered before order awarding fees, making her no longer a
“spouse”), review denied, 335 N.C. 554, 439 S.E.2d 144 (1993).]
iii. Except for the former requirement that an award of fees be for the benet of
the dependent spouse, current G.S.50-16.4 is worded much like the statute was
written at the time of Broughton v.Broughton, 58 N.C. App. 778, 294 S.E.2d 772,
review denied, 307 N.C. 269, 299 S.E.2d 214 (1982), and Vandiver v.Vandiver,
50 N.C. App. 319, 274 S.E.2d 243, review denied, 302 N.C. 634, 280 S.E.2d 449
(1981), in that it states that fees may be awarded “at any time” that a dependent
spouse would be entitled to alimony or postseparation support.
2. Discretion as to award and amount.
a. e allowance of alimony does not require the allowance of attorney fees. [See Kelly
v.Kelly, 167 N.C. App. 437, 606 S.E.2d 364 (2004) (citing Rickert v.Rickert, 282 N.C.
373, 193 S.E.2d 79 (1972)) (applying pre-1995 statute) (order that awarded alimony
to a dependent spouse and disallowed her request for attorney fees was upheld, with
the appellate court noting the wide latitude the trial court is aorded in determining
whether to award such fees and further noting that nothing in the statute requires the
trial court to grant a motion for attorney fees); Williams v.Williams, 299 N.C. 174,
261 S.E.2d 849 (1980) (allowing alimony but denying request for attorney fees based
on wife’s sizeable estate).]
b. When properly awarded, the amount of the fees awarded is within the sound dis-
cretion of the trial judge. [Clark v.Clark, 301 N.C. 123, 271 S.E.2d 58 (1980) (citing
Hudson v.Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980)); Francis v.Francis, 169 N.C.
App. 442, 612 S.E.2d 141 (citing Clark), review denied, 359 N.C. 631, 616 S.E.2d 233
(2005); Friend-Novorska v.Novorska, 143 N.C. App. 387, 545 S.E.2d 788, aff ’d per
curiam, 354 N.C. 564, 556 S.E.2d 294 (2001); Patton v.Patton, 78 N.C. App. 247, 337
S.E.2d 607 (1985) (if a party establishes entitlement to attorney fees in a given case,
the trial court has discretion to award a reasonable fee after consideration of the
nature and scope of the legal services rendered and the time and skill required), rev’d
in part on other grounds, 318 N.C. 404, 348 S.E.2d 593 (1986).]
3. Types of proceedings in which fees awarded.
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a. Attorney fees are available in actions for modication of alimony as well as in actions
to establish an initial alimony obligation, assuming satisfaction of statutory crite-
ria. [See G.S.50-16.4; Parsons v.Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013)
(alimony modication action); Shumaker v.Shumaker, 137 N.C. App. 72, 527 S.E.2d
55 (2000) (contempt proceeding; see Section III.K, above).]
4. When award of fees may be properly made.
a. Pursuant to G.S.50-16.4, a court may, upon application of a dependent spouse, enter
an order for reasonable attorney fees at any time that a dependent spouse would be
entitled to alimony or postseparation support.
i. e court of appeals has construed “at any time” in G.S. 50-16.4 to include
“times subsequent to the determination of the issues [in the dependent spouse’s]
favor at the trial of her cause on its merits.” Upchurch v.Upchurch, 34 N.C. App.
658, 665–65, 239 S.E.2d 701, 705 (1977), review denied, 307 N.C. 269, 299 S.E.2d
214 (1982); Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013) (noting that
the trial court could have determined attorney fees issue contemporaneously with
plainti’s claim for alimony); Whedon v.Whedon, 313 N.C. 200, 328 S.E.2d 437
(1985) (a district court judge may hear an application for attorney fees without a
jury at any time on an adavit, veried pleadings, or other proof) (decided
under prior law); 2 Lee’s North Carolina Family Law §9.94 (5th ed. 1999).]
b. e court of appeals has noted that no case has imposed a time limitation for the
ling of a motion for attorney fees in a child custody and child support action pur-
suant to G.S.50-13.6, except that a proper notice of appeal divests the trial court
of jurisdiction to enter an order for fees while the appeal is pending. [Bramblett
v.Bramblett, 218 N.C. App. 454, 721 S.E.2d 763 (2012) (unpublished) (order award-
ing attorney fees upheld against claim that request was not timely when it was not
included in complaint and was asserted more than a year after complaint led;
motion for fees was led after conclusion of hearing on child custody and support,
and trial court heard and ruled on motion before entry of an order in the custody
and support action and prior to any appeal); Balawejder v.Balawejder, 216 N.C. App.
301, 721 S.E.2d 679 (2011) (when a custody order is appealed, the trial court loses
jurisdiction to consider a request for attorney fees arising out of the custody case).]
But see Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013), in Sections VI.A.1.a
and VI.D.4.b, below.
c. For more on the eect of an appeal of the alimony order on the trial court’s jurisdic-
tion to enter an order for attorney fees, see Section VI.D, below.
5. Whether party must be successful in underlying action.
a. G.S.50-16.4 requires that a dependent spouse be entitled to alimony pursuant to
G.S.50-16.3A or to postseparation support pursuant to G.S.50-16.2A before a court
may award fees.
b. It appears that the court may award attorney fees even if the court decides not to
award postseparation support or alimony, as long as the spouse establishes facts that
would allow an award of postseparation support. [See Rickert v.Rickert, 282 N.C. 373,
379, 193 S.E.2d 79, 83 (1972) (stating that “[a]llowance of counsel fees does not
[r]equire allowance of subsistence pendente lite”); 2 Lee’s North Carolina Family Law
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§9.89 (5th ed. 1999) (stating that the dependent spouse does not have to be the pre-
vailing party in the action to be entitled to either postseparation support or alimony);
Clark v.Clark, 231 N.C. App. 514, 753 S.E.2d 743 (2013) (unpublished) (plainti was
entitled to attorney fees arising from her motion to increase alimony, even though
motion was denied, when defendant did not dispute that plainti was entitled to ali-
mony; G.S.50-16.4 does not require that dependent spouse be the “prevailing party”
in litigation, rejecting husband’s argument that because wife did not prevail on her
motion to increase alimony, she was not entitled to attorney fees associated with that
motion; appellate court noted, however, that wife prevailed on her claim for child
support arrearages).]
c. However, some cases have denied attorney fees when alimony was not awarded or
have recognized as the general rule that denial of alimony results in denial of fees.
[See Romulus v.Romulus, 215 N.C. App. 495, 527, 715 S.E.2d 308, 329 (2011) (plain-
ti conceded that if appellate court upheld denial of her claim for alimony, it should
uphold denial of her claim for attorney fees; when denial of alimony upheld, appellate
court stated there “was no basis for the trial court to award her attorney fees”); see
also Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011) (noting that a claim for
attorney fees under G.S. §50-16.4 is contingent upon the claimant prevailing on the
alimony claim).]
6. Insucient means to defray litigation expenses.
a. A party has insucient means to defray the expenses of a suit when he is unable to
employ adequate counsel in order to proceed as a litigant to meet the other spouse
as a litigant in the suit. [Belcher v. Averette, 152 N.C. App. 452, 568 S.E.2d 630 (2002)
(child support case).]
b. In making the determination of insucient means, a trial court should generally rely
on the dependent spouse’s disposable income and estate. [Rhew v.Felton, 178 N.C.
App. 475, 631 S.E.2d 859 (citing Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d
642 (2000)) (unchallenged ndings that dependent spouse had borrowed substan-
tial monies from family members to pay her legal expenses, had limited funds in
her bank and savings accounts, and had been forced to sell her home and therefore
owned no real property were sucient, with other ndings, to entitle her to attorney
fees), review denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006); Barrett
(in determining whether a spouse has insucient means, trial court should focus on
the disposable income and expenses of the dependent spouse, although a compari-
son of the two estates sometimes may be appropriate; court not required to consider
amount of cash that wife received in equitable distribution when husband failed to
show that wife still had the money and that it thus could be applied to defray her
litigation expenses). See also Bookholt v.Bookholt, 136 N.C. App. 247, 523 S.E.2d 729
(1999) (noting that a trial judge is not required to compare the separate estates of
both parties but may do so under appropriate circumstances), superseded on other
grounds by statute as stated in Williamson v.Williamson, 142 N.C. App. 702, 543
S.E.2d 897 (2001); Clark v.Clark, 231 N.C. App. 514, 753 S.E.2d 743 (2013) (unpub-
lished) (undisputed nding that plainti was a dependent spouse, along with exten-
sive ndings regarding plainti’s income and expenses, including a nding that she
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was unable to meet her ongoing expenses, supported nding that plainti was unable
to pay attorney fees).]
c. In some cases, a dependent spouse’s sizeable estate has precluded a nding of insu-
cient means or has resulted in a partial award of fees.
i. In reversing fee award, appellate court determined it was reasonable to require
wife to pay $40,000 in attorney fees from an estate worth $1.5 million, which
included a $400,000 investment account. [Parsons v.Parsons, 231 N.C. App. 397,
752 S.E.2d 530 (2013) (even though husband’s estate was signicantly larger than
wife’s, court rejected wife’s argument that denial of the award would require that
she deplete her estate).]
ii. Where wife’s estate had a net worth of $761,975, record established that an
award of attorney fees was not necessary to enable her, as litigant, to meet
defendant, as litigant, on substantially even terms. [Williams v.Williams, 299
N.C. 174, 261 S.E.2d 849 (1980) (in this case the separate estate of the dependent
spouse was almost equal to that of the supporting spouse).]
iii. Wife had sucient means to defray the expense of an alimony and child support
suit when she had a net estate of $665,652, a net income of $9,192 in 1977, as
well as other assets and interests. [Hudson v.Hudson, 299 N.C. 465, 263 S.E.2d
719 (1980).]
iv. Partial award of fees to dependent spouse upheld for time spent by her attorney
to draft nal order. Partial award of fees based on fact that dependent spouse
received permanent alimony of $6,699 a month, $43,236 in retroactive alimony,
and an equal distribution in the equitable distribution proceeding. [Larkin
v.Larkin, 165 N.C. App. 390, 598 S.E.2d 651 (2004), aff ’d per curiam as modi-
fied, 359 N.C. 316, 608 S.E.2d 754 (2005).]
d. In other cases, a dependent spouse with a sizeable estate has been found to have
insucient means when other factors were taken into consideration.
i. at wife had $75,000 remaining from a cash distributive award and had
received or would receive $600,000 from husband’s retirement accounts did
not preclude nding that wife had insucient means when wife had monthly
income-expense decit of $8,000 and defendant was $91,000 in arrears in post-
separation support. [Webb v.Webb, 207 N.C. App. 526, 700 S.E.2d 248 (2010)
(unpublished), review denied, 365 N.C. 211, 709 S.E.2d 924 (2011).]
ii. Even though wife received a cash distributive award of $69,265 and the marital
home from equitable distribution proceeding, evidence that home was in fore-
closure at the time of trial, that distributive award was being paid in monthly
payments, that defendant was in arrears in child support, and that wife did not
have substantial stock and bond holdings or income supported nding that wife
lacked sucient means. [Walker v.Walker, 143 N.C. App. 414, 546 S.E.2d 625
(2001).]
iii. Recognizing that wife with an estate of $87,000 was “an individual of some
means by contemporary standards,” a fee award to wife of only $500 was vacated
when husband’s net worth was $650,000 and the small award would require wife
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to deplete her separate estate to meet the expenses of litigation. [Clark v.Clark,
301 N.C. 123, 137, 271 S.E.2d 58, 68 (1980).]
iv. While the presence of a substantial separate estate does not automatically negate
the dependent spouse’s right to attorney fees, the trial court must nd that the
use of the dependent spouse’s separate estate to pay litigation expenses would
amount to an unreasonable depletion of that estate before it awards a depen-
dent spouse attorney fees. [Bookholt v.Bookholt, 136 N.C. App. 247, 523 S.E.2d
729 (1999) (citing Chused v.Chused, 131 N.C. App. 668, 508 S.E.2d 559 (1998))
(where trial judge made no such nding, matter remanded), superseded on other
grounds by statute as stated in Williamson v.Williamson, 142 N.C. App. 702,
543 S.E.2d 897 (2001).]
e. Findings regarding insucient means to defray expenses.
i. Where the trial court did not make any ndings regarding whether wife was
without sucient means to subsist during the prosecution of the suit and to
defray the necessary expenses, the order denying fees was reversed and the mat-
ter was remanded. [Friend-Novorska v.Novorska, 143 N.C. App. 387, 545 S.E.2d
788, aff’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
ii. e trial court made sucient ndings of fact to conclude that wife had su-
cient means to defray the costs of litigation when court found that wife’s income
had increased substantially since the date of separation and the time of trial, that
she retained the marital residence while the husband paid half of the mortgage
payments in addition to postseparation support, that wife received an unequal
distribution in her favor of the marital property, and that husband had previ-
ously paid $2,000 toward wife’s attorney fees. [Friend-Novorska v.Novorska, 163
N.C. App. 776, 594 S.E.2d 409 (2004).]
iii. Findings demonstrated that wife did not have sucient means when main asset
wife received in equitable distribution, the marital residence, was in foreclosure
at time of alimony trial, wife’s distributive award was being paid in monthly
installments, husband was in arrears in child support and had paid no post-
separation support, and, most signicantly, wife did not have substantial other
assets, such as stocks and bonds. [Walker v.Walker, 143 N.C. App. 414, 546
S.E.2d 625 (2001).]
iv. Findings that wife had negative disposable income and a separate savings
account of only $600 were sucient, without more, to demonstrate that she had
insucient funds to defray the costs of litigation. [Barrett v.Barrett, 140 N.C.
App. 369, 536 S.E.2d 642 (2000).]
v. Findings were sucient to show wife’s insucient means when wife had bor-
rowed substantial monies from family members to pay her legal expenses, she
had limited funds in her bank and savings accounts, and she was forced to sell
her home and therefore owned no real property. [Rhew v.Felton, 178 N.C. App.
475, 631 S.E.2d 859, review denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d
810 (2006).]
7. Reasonableness of fees awarded.
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a. An order awarding attorney fees “must contain ndings as to the basis of the award,
including the nature and scope of the legal services, the skill and time required, and
the relationship between the fees customary in such a case and those requested.”
[Rhew v.Felton, 178 N.C. App. 475, 486, 631 S.E.2d 859, 867 (quoting Holder
v.Holder, 87 N.C. App. 578, 584, 361 S.E.2d 891, 894 (1987)), review denied, appeal
dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006). See also Squires v.Squires, 178 N.C.
App. 251, 631 S.E.2d 156 (2006) (citing Williamson v.Williamson, 140 N.C. App. 362,
536 S.E.2d 337 (2000)) (noting that ndings as to nature and scope of legal services
rendered and skill and time required will be basis for determination of reasonable-
ness of fees).]
b. An award in an alimony case that included time billed by a rm paralegal has been
upheld as reasonable. [Hunt v.Hunt, 233 N.C. App. 785, 759 S.E.2d 712 (unpub-
lished), review denied, 367 N.C. 524, 762 S.E.2d 443 (2014).]
c. Findings as to reasonableness of fees.
i. Court must make ndings of fact upon which determination of the reason-
ableness of the award may be based. [Weaver v.Weaver, 88 N.C. App. 634, 364
S.E.2d 706 (citing Fungaroli v.Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787
(1981)), review denied, 322 N.C. 330, 368 S.E.2d 875 (1988).]
ii. Court should conduct broad inquiry, considering as relevant factors the nature
and scope of services rendered, skill and time required, magnitude of task
imposed on attorney, and reasonable consideration for parties’ respective condi-
tions and nancial circumstances. [Whedon v.Whedon, 313 N.C. 200, 328 S.E.2d
437 (1985); Owensby v.Owensby, 312 N.C. 473, 322 S.E.2d 772 (1984). See also
Cunningham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005) (appel-
late court required ndings on nature and scope of the legal services rendered,
skill and time required, the attorney’s hourly rate, and its reasonableness in com-
parison with that of other lawyers); Williamson v.Williamson, 140 N.C. App.
362, 536 S.E.2d 337 (2000) (citing Owensby) (matter remanded for additional
ndings when court failed to make ndings as to the nature and scope of legal
services rendered and skill and time required).]
iii. Findings insucient when court failed to nd how many hours of labor were
actually expended by defendant’s attorneys, the customary charge for similar
services, or whether the charge by defendant’s attorney was in line with the cus-
tomary fee and failed to state how it adjudged the diculty of the legal questions
or the adequacy of the representation. [Owensby v.Owensby, 312 N.C. 473, 322
S.E.2d 772 (1984).]
iv. Findings that amount of fees awarded is reasonable or that attorney provided
“valuable legal services” were insucient to support awards in the following
cases: Bowes v.Bowes, 43 N.C. App. 586, 590, 259 S.E.2d 389, 393 (1979) (no
ndings of fact, just a conclusion that $750 was a “reasonable attorney . . . fee
under the circumstances of this case”), review denied, 299 N.C. 120, 262 S.E.2d 5
(1980); Coleman v.Coleman, 74 N.C. App. 494, 498, 328 S.E.2d 871, 874 (1985)
(only a nding and a conclusion that plainti’s attorney provided her with
“valuable legal services” in the prosecution of this action; case remanded
for “appropriate” ndings); Hunt v.Hunt, 233 N.C. App. 785, 759 S.E.2d 712
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(unpublished) (not paginated on Westlaw) (citing Coleman) (a nding that it
was “Plainti’s attorney’s opinion” that the reasonable value of her services was
$3,100 was not sucient, as the trial court, not the attorney, is to decide the rea-
sonableness of the fees), review denied, 367 N.C. 524, 762 S.E.2d 443 (2014).
v. Findings supporting the award of alimony, plus two ndings that detailed the
reasonable fees that wife incurred for the alimony portion of the litigation, were
sucient to support an award of fees. [Squires v.Squires, 178 N.C. App. 251, 631
S.E.2d 156 (2006).]
8. Other ndings.
a. Findings are required when the court awards attorney fees and also when it denies
fees.
i. e trial court must set out the ndings of fact upon which an award of fees is
made. [Swain v.Swain, 179 N.C. App. 795, 635 S.E.2d 504 (2006) (in alimony
modication case, fee award was vacated where court made no ndings with
regard to wife’s ability to subsist during prosecution of the suit or her ability to
defray the necessary expenses of suit), review denied, 361 N.C. 437, 649 S.E.2d
897 (2007).]
ii. Denial of fees must be supported by ndings. [Friend-Novorska v.Novorska, 143
N.C. App. 387, 545 S.E.2d 788 (in alimony action, portion of order denying fees
was reversed where court did not make any ndings regarding whether wife was
without sucient means to subsist during prosecution of the suit and to defray
the necessary expenses), aff’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
b. Findings in combined actions.
i. Since attorney fees are not recoverable in an action for equitable distribution
(ED), in a combined action, the ndings of fact must reect that the attorney
fees awarded are attributable only to the alimony or child custody and support
claims. [Robinson v.Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011) (in
a combined action for ED, alimony, and child support, ndings should have
reected that the fees awarded were attributable only to the alimony and/or
child support actions); Cunningham v.Cunningham, 171 N.C. App. 550, 615
S.E.2d 675 (2005) (citing Holder v.Holder, 87 N.C. App. 578, 361 S.E.2d 891
(1987)); Squires v.Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006) (in com-
bined action, attorney fees awarded must be attributable to work by the attor-
neys on the divorce, alimony, and child support actions and not for the ED
action; ndings sucient to support award of fees for alimony portion of action
for ED and alimony).]
ii. Order upheld that excluded attorney fees for the ED portion of a case and
directed husband to pay a portion of the approximately 75 percent of wife’s
attorney fees that were attributable to the custody, child support, and alimony
portions of the case, even though the fee adavits did not label every charge as
being attributable to a particular issue. [Cunningham v.Cunningham, 171 N.C.
App. 550, 615 S.E.2d 675 (2005) (since services were adequately described, the
trial court could compare the time spent on each issue at trial and the evidence
presented with the line-item services on the fee adavits to rationally determine
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proper apportionment of fees). See also Clark v.Clark, 231 N.C. App. 514, 753
S.E.2d 743 (2013) (unpublished) (when plainti was entitled to attorney fees
related to her motions to increase alimony and for payment of child support
arrearages, both of which are authorized by statute, the trial court was not
required to set out amount of fees incurred as to each issue).]
9. Award of attorney fees pursuant to provisions in a separation agreement or marital
contract.
a. Attorney fees may be barred by an express provision in a valid separation agreement,
premarital agreement, or marital contract made pursuant to G.S.52-10(a1), so long
as the agreement is performed. [G.S.50-16.6(b), amended by S.L. 2013-140, §2,
eective June 19, 2013 (amendment added reference to G.S.52-10(a1)).]
b. Attorney fees may be authorized by an agreement between the parties.
i. e North Carolina Supreme Court has interpreted G.S. 52-10.1 to authorize
a married couple to include a provision for attorney fees in a separation agree-
ment. [Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219 (1995) (holding that
provisions within separation agreements requiring the payment of attorney fees
upon a breach by one of the parties are not inconsistent with public policy and
are legal, valid, and binding under G.S. 52-10.1).]
ii. e trial court properly awarded attorney fees in an action for specic
performance of an alimony provision in a separation agreement when the
parties had specically and voluntarily contracted for indemnication of such
fees. [Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530 (agreement
provided that if a party failed to perform an obligation under the agreement,
causing the other party to incur expenses, including reasonable attorney fees, to
enforce the obligation the defaulting party must indemnify and hold the other
harmless from any such expense), review denied, 329 N.C. 787, 408 S.E.2d 518
(1991).]
iii. Attorney fees were not allowed for research on the enforceability of an alimony
escalation provision that the trial court found contrary to public policy. [Jackson
v.Penton, 206 N.C. App. 761, 699 S.E.2d 141 (2010) (unpublished) (not pagi-
nated on Westlaw) (incorporated separation agreement provided that “Husband
(defendant) shall pay to Wife (plainti) any and all reasonable attorney’s fees
incurred in enforcing this [alimony] obligation;” court found fees awarded to
enforce a provision that was not enforceable were not reasonable).]
c. Findings when award of fees is based on provision in a separation agreement and not
on G.S.50-16.4.
i. e ndings of fact and conclusions of law required by G.S.50-16.4 to support
an award of attorney fees have not been required when the award was based on
a provision in a separation agreement and not on the statute. [Jackson v.Penton,
206 N.C. App.761, 699 S.E.2d 141 (2010) (unpublished) (provision in incorpo-
rated separation agreement is set out in Section V.A.9.b.iii, above).]
d. For more on attorney fees provisions in a separation agreement, see Spousal Agree-
ments, Bench Book, Vol. 1, Chapter 1.
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10. Standard of review on appeal of an award of fees.
a. Whether the requirements for an award of fees have been met is a question of law
that is reviewable on appeal. [Clark v.Clark, 301 N.C. 123, 271 S.E.2d 58 (1980)
(reversing an award of fees); Walker v.Walker, 143 N.C. App. 414, 546 S.E.2d 625
(2001) (citing Clark) (upholding partial award of fees).]
11. Award of fees for services performed on appeal and prior to ling of action.
a. Services performed on appeal.
i. An award of attorney fees for services performed on appeal should ordinarily
be granted, provided the general statutory requirements for such an award are
duly met, especially where the appeal is taken by the supporting spouse. [Fun-
garoli v.Fungaroli, 53 N.C. App. 270, 273, 280 S.E.2d 787, 790 (1981) (husband
had taken three appeals concerning alimony and custody award to wife, the
last of which challenged the trial court’s award of fees to wife incurred, in part,
for representation by her attorney in the North Carolina Court of Appeals,
the North Carolina Supreme Court, and the U.S. Supreme Court; after citing
G.S.50-13.6, allowing award of attorney fees in child support and custody cases,
and G.S.50-16.4, allowing award of attorney fees in alimony cases, the court
noted that “there is nothing in our statutory or case law that would suggest that
a dependent spouse in North Carolina is entitled to meet the supporting spouse
on equal footing, in terms of adequate and suitable legal representation, at the
trial level only”); Whedon v.Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985) (citing
Fungaroli); Martin v.Martin, 207 N.C. App. 121, 698 S.E.2d 491 (2010) (citing
Fungaroli) (attorney fees are available for an appeal of an alimony modica-
tion order when the supporting spouse is the appellant if the requirements of
G.S.50-16.4 are met); McKinney v.McKinney, 228 N.C. App. 300, 745 S.E.2d 356
(2013) (citing Fungaroli) (award of appellate attorney fees in child support, child
custody, and alimony matters is within the discretion of the trial court), review
denied, 367 N.C. 288, 753 S.E.2d 678, review dismissed, 367 N.C. 288, 753 S.E.2d
679 (2014).]
b. Services performed prior to ling of action.
i. Attorney fees have been awarded in an alimony action for work by a dependent
spouse’s attorneys prior to the ling of pleadings. [Whedon v.Whedon, 58 N.C.
App. 524, 294 S.E.2d 29 (noting that all litigation inevitably involves certain pre-
cursory activity), review denied, 306 N.C. 752, 295 S.E.2d 764 (1982).]
12. G.S.50-16.4 does not authorize payment of expenses.
a. G.S.50-16.4 does not authorize a court to award expert witness fees. [Martin
v.Martin, 207 N.C. App. 121, 698 S.E.2d 491 (2010) (trial court erred when it
ordered supporting spouse to pay dependent spouse’s expert witness fees for expert
not subpoenaed to appear at trial); Williams v.Williams, 42 N.C. App.163, 256 S.E.2d
401 (reversing award of $2,500 to wife for reasonable expenses of prosecuting ali-
mony action; G.S.50-16.4 provides only for the award of “reasonable counsel fees”
and makes no mention of “expenses”), aff ’d, 299 N.C. 174, 261 S.E.2d 849 (1980).]
Note that Lassiter v. N.C. Baptist Hospitals, Inc., 368 N.C. 367, 778 S.E.2d 68 (2015),
overruled earlier case law holding that expert witness fees could be assessed only
when the witness is under subpoena.
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VI. Appeal
A. Right to Take an Immediate Appeal
1. A nal order may be appealed as a matter of right to the court of appeals. [G.S.7A-27(b)
(2), added by S.L. 2013-411, §1, eective Aug. 23, 2013; 1-277(a).] A nal judgment is one
that disposes of the cause as to all the parties, leaving nothing to be judicially determined
between them in the trial court. [Hausle v.Hausle, 226 N.C. App. 241, 739 S.E.2d 203
(2013); Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013) (nal judgment generally
is one that ends the litigation on the merits).]
a. An alimony order was nal and immediately appealable as of right pursuant to
G.S.1-277(a), even though it reserved the issue of attorney fees. Attorney fees and
costs are collateral issues and not part of the parties’ substantive claims. [Duncan
v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013) (citing Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 202–03, 108 S. Ct. 1717, 1722 (1988)) (announcing a bright-
line rule applicable to any civil case disposing of the parties’ substantive claims but
leaving open the issue of attorney fees and costs); Lucas v.Lucas, 209 N.C. App. 492,
706 S.E.2d 270 (2011) (citing Bumpers v.Cmty. Bank of N. Va., 364 N.C. 195, 695
S.E.2d 442 (2010)) (alimony and equitable distribution judgment nal for purposes of
appeal, even if a claim for attorney fees under G.S.50-16.4 remained pending; claim
for attorney fees under G.S.50-16.4 is not a substantive issue or part of the merits
of an alimony claim under G.S.50-16.3A). See also Ray Haluch Gravel Co. v.Cent.
Pension Fund, 571 U.S. ___, 134 S. Ct. 773 (2014) (holding, for federal appellate
jurisdictional purposes, that whether a claim for attorney fees is based on a statute,
a contract, or both, a pending claim for fees and costs does not prevent, as a general
rule, the merits judgment from becoming “nal” for purposes of appeal).]
b. But when an alimony order is appealed, the trial court loses jurisdiction to consider
a request for attorney fees arising from the alimony case. [Balawejder v.Balawejder,
216 N.C. App. 301, 721 S.E.2d 679 (2011) (appeal from an order for custody and child
support); In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, review denied, 318 N.C.
415, 349 S.E.2d 590 (1986); Condie v.Condie, 51 N.C. App. 522, 277 S.E.2d 122 (1981)
(trial judge lacked authority to enter an order awarding attorney fees after appeal
of the alimony order was led in the court of appeals).] But see Duncan v.Duncan,
366 N.C. 544, 742 S.E.2d 799 (2013), in Section VI.A.1.a, immediately above, and in
Section VI.D.4.b, below.
2. Generally there is no right of immediate appeal of an interlocutory order. An interlocu-
tory order is one made during the pendency of an action that does not dispose of the case
but leaves it for further action by the trial court in order to settle and determine the entire
controversy. [Hausle v.Hausle, 226 N.C. App. 241, 739 S.E.2d 203 (2013).]
3. Immediate appeal of an interlocutory order generally is allowed in two instances:
a. When the order aects a substantial right. [G.S.7A-27(b)(3)a., added by S.L.
2013-411, §1, eective Aug. 23, 2013; 1-277(a).]
i. A substantial right is one that “will clearly be lost or irremediably adversely
aected if the order is not reviewable before nal judgment.” [Peters v.Peters,
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232 N.C. App. 444, 448, 754 S.E.2d 437, 440 (2014) (quoting Turner v. Norfolk S.
Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000)).]
ii. e court of appeals has taken a restrictive view of the substantial right excep-
tion in the context of equitable distribution or alimony matters and has previ-
ously recognized that interlocutory appeals which challenge only the nancial
repercussions of a separation or divorce generally have not been held to aect a
substantial right. [Duncan v. Duncan, 193 N.C. App. 752, 671 S.E.2d 71 (2008)
(unpublished) (citing Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259
(2001)).]
b. In cases involving multiple parties or claims, when the order is nal as to some but
not all of the claims or parties and the trial judge certies the order for immediate
appeal by including in the order that “there is no just reason for delay.” [G.S.1A-1,
Rule 54(b); Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013) (certication
under Rule 54(b) permits an interlocutory appeal from orders that are nal as to a
specic portion of the case but which do not dispose of all claims as to all parties).]
i. Appeal of an alimony order that was interlocutory when led because of pend-
ing child support and equitable distribution (ED) claims was no longer interloc-
utory when those claims had been resolved by the time the appeal was heard.
[Crowley v.Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (granting defendant’s
motion to amend the record on appeal to reect entry of a judgment resolving
claims for ED, child support, and attorney fees), review denied, 364 N.C. 749,
700 S.E.2d 749 (2010).]
4. Note also that the court of appeals has discretion to treat an appeal as a petition for cer-
tiorari to review an interlocutory appeal. [N.C. R. A. P. 21(a)(1).]
5. However, for appeals taken on or after Aug. 23, 2013, G.S.7A-27 was amended to
allow for an immediate appeal when the order determines a claim prosecuted under
G.S.50-19.1. [G.S.7A-27(b)(3)e., added by S.L. 2013-411, §1, eective Aug. 23, 2013.]
G.S.50-19.1 provides:
a. Notwithstanding any other pending claims led in the same action, a party may
appeal from an order or judgment adjudicating a claim for absolute divorce, divorce
from bed and board, child custody, child support, alimony, or equitable distribu-
tion if the order or judgment would otherwise be a nal order or judgment within
the meaning of G.S.1A-1, Rule 54(b), but for the other pending claims in the same
action.
b. A party does not forfeit the right to appeal under this section if the party fails to
immediately appeal from an order or judgment described in [G.S.50-19.1].
c. An appeal from an order or judgment under G.S.50-19.1 shall not deprive the trial
court of jurisdiction over any other claims pending in the same action. [G.S.50-19.1,
added by S.L. 2013-411, §2, eective Aug. 23, 2013.]
6. Before the eective date of G.S.50-19.1, nal judgments of equitable distribution, ali-
mony, child support, custody, divorce, and divorce from bed and board could not be
appealed if other claims remained pending in the case, unless the trial judge certied that
there is no just reason for delay pursuant to G.S.1A-1, Rule 54(b).
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B. Treatment of Findings of Fact and Conclusions of Law by an Appellate Court
1. Where trial is by judge and not by jury, ndings of fact supported by competent evidence
are binding on the appellate courts, even if the evidence would support a contrary nding.
[In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991). See also Dodson v.Dodson,
190 N.C. App. 412, 660 S.E.2d 93 (2008) (citing Hartsell v.Hartsell, 99 N.C. App. 380, 393
S.E.2d 570 (1990)) (review of trial court’s ndings is limited to whether there is compe-
tent evidence to support the ndings and whether the ndings support the conclusions of
law).]
2. Findings unchallenged on appeal are presumed correct and are binding on the court of
appeals. [Bodie v.Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012) (quoting Lange v.Lange,
167 N.C. App. 426, 430, 605 S.E.2d 732, 735 (2004)).]
3. A nding in an alimony or postseparation support (PSS) order that is not appealed may
not be reviewed in an appeal from an order modifying an award to the dependent spouse.
[Harris v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008) (where court determined in a
PSS order that wife’s voluntary tithes to church were reasonable expenses, which husband
did not appeal, husband could not have appellate court review that nding on appeal from
an order modifying an alimony award to wife).]
C. Standard of Review
1. When the trial court sits without a jury, the standard of review on appeal is whether there
was competent evidence to support the trial court’s ndings of fact and whether its con-
clusions of law were proper in light of such facts. [Bodie v.Bodie, 221 N.C. App. 29, 727
S.E.2d 11 (2012) (quoting Williamson v.Williamson, 217 N.C. App. 388, 719 S.E.2d 625
(2011)); Smallwood v.Smallwood, 227 N.C. App. 319, 327, 742 S.E.2d 814, 820 (2013)
(citing Holloway v.Holloway, 221 N.C. App. 156, 164, 726 S.E.2d 198, 204 (2012)) (in
matters without a jury, appellate review is “strictly limited” to determining whether the
record contains competent evidence to support the trial court’s ndings of fact and
whether those ndings, in turn, support the trial court’s conclusions of law).]
2. Standard of review in appeal of the following matters is de novo:
a. A trial court’s conclusions of law. [Smallwood v.Smallwood, 227 N.C. App. 319, 742
S.E.2d 814 (2013) (citing Casella v.Alden, 200 N.C. App. 24, 682 S.E.2d 455 (2009)).]
b. Entitlement to attorney fees. [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d 859
(citing Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000)), review denied,
appeal dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006). See also Francis v.Francis,
169 N.C. App. 442, 612 S.E.2d 141 (citing Clark v.Clark, 301 N.C. 123, 271 S.E.2d 58
(1980)) (whether the requirements for an award of attorney fees have been met is a
question of law that is reviewable on appeal), review denied, 359 N.C. 631, 616 S.E.2d
233 (2005).]
3. An appellate court reviews for abuse of discretion a trial court’s decision regarding:
a. e manner of payment of an alimony award. [Rhew v.Felton, 178 N.C. App. 475, 631
S.E.2d 859, review denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006).]
b. e amount of an alimony award. [Sayland v.Sayland, 267 N.C. 378, 148 S.E.2d 218
(1966); Collins v.Collins, 778 S.E.2d 854 (N.C. Ct. App. 2015) (citing Quick v.Quick,
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305 N.C. 446, 290 S.E.2d 653 (1982)); Robinson v.Robinson, 210 N.C. App. 319, 707
S.E.2d 785 (2011) (citing Fitzgerald v.Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517
(2003)); Harris v.Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008); Rhew v.Felton,
178 N.C. App. 475, 631 S.E.2d 859, review denied, appeal dismissed, 360 N.C. 648,
636 S.E.2d 810 (2006). See also Alvarez v.Alvarez, 134 N.C. App. 321, 517 S.E.2d 420
(1999) (citing Quick) (when considering the amount of alimony, appellate court must
review whether the trial judge followed the requirements of the applicable statutes).]
c. e duration of alimony. [Robinson v.Robinson, 210 N.C. App. 319, 707 S.E.2d 785
(2011) (citing Fitzgerald v.Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003)).]
d. e amount of a modied alimony award. [Swain v.Swain, 179 N.C. App. 795, 635
S.E.2d 504 (2006), review denied, 361 N.C. 437, 649 S.E.2d 897 (2007).]
e. What constitutes the reasonable needs and expenses of a party in an alimony action.
[Parsons v.Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013) (citing Megremis
v.Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006)); Cunningham v.Cunningham,
171 N.C. App. 550, 615 S.E.2d 675 (2005) (citing Whedon v.Whedon, 58 N.C. App.
524, 294 S.E.2d 29 (1982)).]
f. Weight given to factors in G.S.50-16.3A(b). [Friend-Novorska v.Novorska, 143 N.C.
App. 387, 545 S.E.2d 788, aff ’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
g. e amount awarded as attorney fees. [Rhew v.Felton, 178 N.C. App. 475, 631 S.E.2d
859, review denied, appeal dismissed, 360 N.C. 648, 636 S.E.2d 810 (2006); Cunning-
ham v.Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005); Friend-Novorska
v.Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (citing Owensby v.Owensby, 312 N.C.
473, 322 S.E.2d 772 (1984)), aff ’d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).]
h. A decision to deny relief under G.S.1A-1, Rule 60(b). [Macher v.Macher, 188 N.C.
App. 537, 656 S.E.2d 282, aff ’d per curiam, 362 N.C. 505, 666 S.E.2d 750 (2008); Sloan
v.Sloan, 151 N.C. App. 399, 566 S.E.2d 97 (2002).]
i. e standard used by appellate courts to review a decision whether to award alimony
is not clear.
i. In the following cases, whether a party is entitled to alimony has been reviewed
de novo. [Barrett v.Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000); Carpenter
v.Carpenter, 781 S.E.2d 828 (N.C. Ct. App. 2016), Romulus v.Romulus, 215 N.C.
App. 495, 715 S.E.2d 308 (2011), Helms v.Helms, 191 N.C. App. 19, 661 S.E.2d
906, review denied, 362 N.C. 681, 670 S.E.2d 233 (2008), Rhew v.Felton, 178 N.C.
App. 475, 631 S.E.2d 859, review denied, appeal dismissed, 360 N.C. 648, 636
S.E.2d 810 (2006), and Webb v.Webb, 207 N.C. App. 526, 700 S.E.2d 248 (2010)
(unpublished), review denied, 365 N.C. 211, 709 S.E.2d 924 (2011) (Carpenter,
Romulus, Helms, Rhew, and Webb citing Barrett); Collins v.Collins, 778 S.E.2d
854 (N.C. Ct. App. 2015) (entitlement to alimony is a question of law that is
reviewed de novo).]
ii. In other cases, whether a party is entitled to alimony has been reviewed for a
manifest abuse of discretion. [Alvarez v.Alvarez, 134 N.C. App. 321, 517 S.E.2d
420 (1999); Megremis v.Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006),
and Slight v.Slight, 200 N.C. App. 321, 683 S.E.2d 467 (2009) (unpublished)
(Megremis and Slight citing Alvarez).]
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D. Eect of an Appeal on Jurisdiction
1. Pursuant to G.S.1-294, when an appeal is perfected, the trial court is divested of juris-
diction “upon the judgment appealed from, or upon the matter embraced therein, unless
otherwise provided by the Rules of Appellate Procedure.” [G.S.1-294, amended by S.L.
2015-25, § 2, eective May 21, 2015.]
2. e court below may proceed upon any other matter included in the action and not
aected by the judgment appealed from. [G.S. 1-294, amended by S.L. 2015-25, § 2, eec-
tive May 21, 2015.] us, pursuant to G.S. 1-294, a trial court has jurisdiction to enter an
order on matters other than postseparation support and alimony while an order for those
matters is on appeal.
3. G.S.50-16.7(j) provides that an alimony order is enforceable by civil contempt and that its
disobedience may be punished by criminal contempt. us, notwithstanding the provi-
sions of G.S.1-294, orders for postseparation support and alimony are enforceable in the
trial court by civil contempt pending appeal. [G.S.50-16.7(j).] See Sections II.H and III.K,
above, for more on contempt.
4. When request for attorney fees is pending when alimony order is appealed.
a. After an alimony order is appealed, the trial court lacks jurisdiction to consider a
request for attorney fees arising from the alimony case. [Balawejder v.Balawejder,
216 N.C. App. 301, 721 S.E.2d 679 (2011) (citing McClure v.Cty. of Jackson, 185
N.C. App. 462, 648 S.E.2d 546 (2007)) (stating rule in context of appeal from order
for custody); Webb v.Webb, 196 N.C. App. 770, 677 S.E.2d 462 (trial court ordered
permanent alimony to wife and found that she was entitled to attorney fees but did
not decide amount thereof; appeal of uncertied order was interlocutory and did
not aect a substantial right; rejecting defendant’s argument that order was nal for
appeal purposes despite pending claim for attorney fees), stay denied, 687 S.E.2d 485
(N.C. 2009); Condie v.Condie, 51 N.C. App. 522, 277 S.E.2d 122 (1981) (trial judge
lacked authority to enter an order awarding attorney fees after appeal of the alimony
order was led in the court of appeals; order for attorney fees entered after appeal
of alimony order was vacated); Phillips v.Phillips, 206 N.C. App. 330, 698 S.E.2d 557
(2010) (unpublished) (citing McClure) (order awarding fees, entered two months
after notice of appeal from alimony order, void for want of jurisdiction).]
b. However, the North Carolina Supreme Court has held that an alimony order was
nal and immediately appealable as of right pursuant to G.S.l-277(a), even though
it reserved the issue of attorney fees, reasoning that attorney fees and costs are
collateral issues and not part of the parties’ substantive claims. [Duncan v.Duncan,
366 N.C. 544, 742 S.E.2d 799 (2013) (citing Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 108 S. Ct. 1717 (1988)) (announcing a bright-line rule applicable to any
civil case disposing of the parties’ substantive claims but leaving open the issue of
attorney fees and costs); Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011)
(citing Bumpers v.Cmty. Bank of N. Va., 364 N.C. 195, 695 S.E.2d 442 (2010)) (ali-
mony and equitable distribution judgment nal for purposes of appeal, even if a
claim for attorney fees under G.S.50-16.4 remained pending; claim for attorney fees
under G.S.50-16.4 is not a substantive issue or part of the merits of an alimony claim
under G.S.50-16.3A).] Because Duncan identied attorney fees as a “collateral issue”
2–146 Chapter 2: Postseparation Support and Alimony
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separate from the parties’ substantive claims, court of appeals opinions holding that
trial courts lose jurisdiction to determine attorney fees while the alimony order is on
appeal because the fee issue is aected by alimony may be called into question.
c. e attorney fee issue may be addressed by the trial court after the appeal is resolved.
[In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411 (holding that a request for attorney
fees may be raised by a motion in the cause subsequent to the determination of the
main custody action; if the matter is on appeal, the trial court can properly consider
the motion for attorney fees upon resolution of the appeal), review denied, 318 N.C.
415, 349 S.E.2d 590 (1986).] Alternatively, the trial court could defer entry of the
written judgment until after a ruling is made on the issue of attorney fees and incor-
porate all of its rulings into a single, written judgment, from which appeal could be
taken. [McClure v.Cty. of Jackson, 185 N.C. App. 462, 648 S.E.2d 546 (2007) (suggest-
ing procedure).]
5. For a more thorough discussion of the court’s jurisdiction to enter an award of fees after
appeal of the main action, see Child Support Liability and Amount, Bench Book, Vol. 1,
Chapter 3, Part 2, Section I.I.6.
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CHECKLIST
Findings for Postseparation Support (PSS)
❏
1. Personal and subject matter jurisdiction
❏
Service of process
❏
Residence of parties (minimum contacts required for nonresident defendant)
❏
PSS requested in an action for divorce, whether absolute or from bed and board,
for annulment, or for alimony without divorce
❏
PSS requested before entry of divorce
❏
2. Date of marriage and date of separation
❏
3. Findings on the nancial needs of the parties, determined by consideration of each of the
following, about which evidence is presented:
❏
Present actual income of both parties from any source
❏
The accustomed standard of living during the marriage
❏
The income-earning abilities of each party
❏
The debt-service obligations of each party
❏
The legal obligation of either party to support other persons
❏
The expenses reasonably necessary to support each of the parties
❏
4. Preseparation marital misconduct
❏
Only considered if the party from whom support is sought oers evidence rst concerning
misconduct of spouse seeking support
❏
If evidence is presented, nding that court considered the evidence, whether oered by
dependent or supporting spouse
❏
5. Based on ndings above, that party
❏
Seeking support is a dependent spouse who
❏
Is actually substantially dependent or
❏
Is substantially in need of support
❏
Who is to pay support is a supporting spouse
❏
6. Based on all ndings above, resources of dependent spouse are not adequate to meet her
reasonable needs and the supporting spouse has the ability to pay
❏
7. If PSS awarded
❏
Reasons for award
❏
Amount of award and reasons for amount
❏
Eective date of award
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❏
Duration of award and reasons for duration
❏
Manner of payment and reasons for that manner
❏
Date award will terminate (if no date specied, award will terminate
as provided in G.S. 50-16.1A(4))
❏
8. If PSS denied, reasons for denial
❏
9. Other issues:
❏
If imputing income, must nd party acted in deliberate bad faith disregard of support
obligation and support amount imputed with ndings of past work history and income
earning opportunities available to the party. If no work history, impute minimum wage.
❏
Modication: Must nd substantial change of circumstances occurring since entry of existing
order, relating to ability of supporting spouse to pay or relating to the nancial needs of the
dependent spouse. If nd substantial change, then proceed to ndings above.
❏
REMEMBER: If PSS order was issued in another state or a foreign country with continuing,
exclusive jurisdiction over that order under the law of that state or foreign country, UIFSA
prohibits modication by any tribunal other than the tribunal that issued the order.
❏
Attorney fees. For ndings necessary to support award of attorney fees, see discussion in
Postseparation Support and Alimony, Bench Book, Vol. 1, Chapter 2, Section V.
2-150 CHECKLIST | Findings for Postseparation Support (PSS)
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CHECKLIST
Findings for Alimony
❏
1. Personal and subject matter jurisdiction
❏
Service of process
❏
Residence of parties (minimum contacts required for nonresident defendant)
❏
Alimony requested in an action for divorce, whether absolute or from bed and board,
for annulment, or for alimony without divorce
❏
Alimony requested before entry of divorce
❏
2. Date of marriage and date of separation
❏
3. Date of divorce judgment, if any
❏
4. Findings on each of the following about which evidence is presented:
❏
Marital misconduct of either party (see paragraph 8, below)
❏
The present actual income of both parties
❏
The accustomed standard of living during the marriage
❏
The earnings and income earning capacities of each party
❏
Assets and liabilities of each party and the debt service obligations of each party
❏
The ages and the physical, mental and emotional conditions of each spouse
❏
The length of the marriage
❏
The contribution of either party to the education, training or increased earning
capacity of the other
❏
The extent to which the earning power, expenses, or nancial obligations of one party
will be aected by reason of serving as the custodian of a minor child
❏
The relative education of the spouses and the time necessary to acquire sucient education
or training to enable the spouse seeking alimony to nd employment to meet his or her
reasonable economic needs
❏
The property brought to the marriage by either party
❏
The contributions of one party as a homemaker
❏
The tax ramications of an alimony award
❏
The fact that income received by either party was previously considered by the court in
determining the value of marital or divisible property in equitable distribution
❏
The relative needs of the parties
❏
The legal obligation of either party to support other persons
❏
Any other factor relating to the economic circumstances of the parties that
the court nds to be just and proper
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❏
5. Based on ndings above, that party
❏
Seeking support is a dependent spouse
❏
Who is actually substantially dependent or
❏
Who is substantially in need of support
❏
To pay support is a supporting spouse
❏
6. Based on all factors listed above, award of alimony is equitable under the circumstances
❏
7. If alimony awarded
❏
Reasons for award
❏
Amount of award and reasons for amount
❏
Eective date of award
❏
Duration of award and reasons for duration
❏
Manner of payment and reasons for that manner
❏
If award also made for child support, alimony award separately stated and identied
❏
While specic nding on ability to pay not required, must be clear that court considered
supporting spouse’s ability to pay.
❏
8. Marital misconduct
❏
All misconduct occurring after separation, only if oered to corroborate evidence of
misconduct occurring on or before separation
❏
All marital misconduct occurring on or before the date of separation
❏
Illicit sexual behavior before the date of separation:
❏
By dependent spouse only (bars alimony altogether)
❏
By supporting spouse only (requires alimony of some amount and duration)
❏
By both parties (a factor for court to consider)
❏
See Postseparation Support and Alimony, Bench Book, Vol. 1, Chapter 2, Section III.G.3.a
for ndings to support marital misconduct generally. For more on illicit sexual behavior,
on abandonment, and on indignities, see “marital misconduct” generally, Postseparation
Support and Alimony, Bench Book, Vol. 1, Chapter 2, Section III.A.4.
❏
9. If alimony denied, reasons for denial
❏
10. Other issues:
❏
If imputing income, must nd party acted in deliberate bad faith disregard of support
obligation and support amount imputed with ndings of past work history and income
earning opportunities available to that party. If no work history, impute minimum wage.
❏
Modication: Must nd substantial change of circumstances occurring since entry of existing
order, relating to ability of supporting spouse to pay or relating to the nancial needs of the
dependent spouse.
❏
If substantial change found, then proceed to all other ndings listed above. Reconsideration
of dependency is not allowed. Consider same factors used to make initial award when setting
new award.
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❏
REMEMBER: If alimony order was issued by a tribunal in another state or a foreign country
having continuing, exclusive jurisdiction over that order under the law of that state or foreign
country, UIFSA prohibits modication by any tribunal other than the tribunal that issued the
order.
❏
Attorney fees. For ndings necessary to support award of attorney fees, see discussion in
Postseparation Support and Alimony, Bench Book, Vol. 1, Chapter 2, Section V.
CHECKLIST | Findings for Alimony 2-153
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