Domestic Relations – Alimony – First Impression – Prior Statutes – Term Award – No Modification – Military Pension

Cathey v. Cathey. (Lawyers Weekly No. 11-07-0205, 9 pp.) (Ann Marie Calabria, J.) Appealed from Cumberland County District Court. (Laura A. Devan, J.) N.C. App. Click here for the full text of the opinion.

Holding: The Veterans’ Administration has increased an ex-husband’s disability benefits while simultaneously decreasing his pension payments. Even though his ex-wife expected to receive $500 per month as her equitable distribution share of the husband’s pension, and she is instead receiving $125 per month, the trial court had no authority to modify a 1994 order awarding the wife 42 months of alimony.

We reverse the trial court’s order requiring the husband to pay the wife $300 per month in alimony.

Under G.S. § 50-16.9, an award of lump-sum alimony for a specified period was subject to modification and termination prior to its payment in full, if the modification or termination occurred prior to the vesting of the last payment.

However, the motion to modify alimony in the instant case was not filed until several years after the lump-sum alimony award ordered by the trial court had been paid in full. Our courts have never directly addressed the question of whether, under the previous alimony statutes, modification of a lump-sum award would be permissible under these circumstances.

Under G.S. § 50-11 (1994), it was beyond the power of a trial court to enter an order awarding alimony after a judgment of absolute divorce, unless an alimony action was pending at the time of the absolute divorce judgment. This was true even if the financial circumstances of the dependent spouse deteriorated significantly after the absolute divorce judgment.

There is no mechanism in the previous alimony statutes which would have allowed alimony to be reinstated after termination under any circumstances. Reinstatement of previously terminated alimony would be the equivalent of ordering a new alimony award, which is impermissible under G.S. § 50-11 (1994).

The prior alimony statutes provided no additional right to alimony or other protection for the dependent spouse whose alimony either never existed or ceased to exist, even if they were to later suffer an unexpected change of financial circumstances. While defendant’s plight is unfortunate and sympathetic, she is still similarly situated to these other types of dependent spouses. As a result, there is nothing in the previous alimony statutes which would provide her with the right to be awarded additional alimony in the instant case.

Under our previous alimony statutes, the right to modify a lump sum alimony award that was ordered to be paid over a fixed term is limited to the time period during which the alimony is actually ordered. Modification, pursuant to G.S. § 50-16.9 (1994), can occur “at any time” before the award has been vested and satisfied.

However, after the supporting spouse fulfills his obligation as ordered by the trial court, the original alimony award ceases to exist, and there is no longer an alimony award for the trial court to later modify.

After plaintiff paid the full amount ordered by the trial court, the alimony award was terminated by the express language of the trial court’s order and thus ceased to exist. The trial court’s “modification” of this non-existent award instead created a new award, which is forbidden by G.S. § 50-11 (1994). Thus, the trial court’s order attempting to modify defendant’s previously terminated alimony award was invalid.

Reversed.