Gurganus v. Gurganus (Lawyers Weekly No. 011-054-17, 14 pp.) (Douglas McCullough, J.) Appealed from Onslow County District Court (William Cameron III, J.) N.C. App.
Holding: Despite the defendant-husband’s claims that the plaintiff-wife made post-separation efforts to thwart his advancement in the military and that he made active efforts to advance his military career, these purported changed circumstances do not require an amendment to the trial court’s 2002 equitable distribution order, which divided defendant’s military pension using the fixed-percentage method.
We affirm summary judgment for plaintiff.
Even though neither party’s divorce-from-bed-and-board pleading alleged a separation date, since the record reflects that the parties had separated by the time defendant filed his equitable distribution counterclaim, the trial court had jurisdiction to order an equitable distribution.
In its equitable distribution order, the trial court used the fixed-percentage method from Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987), codified at G.S. § 50-20.1., to determine the portion of defendant’s military retirement benefits to allocate to plaintiff. The court used the formula (23 years/total years of defendant’s service) x 50 percent = percentage to be paid to plaintiff.
White v. White, 152 N.C. App. 588, 568 S.E.2d 283 (2002), aff’d per curiam, 357 N.C. 153, 579 S.E.2d 248 (2003), is distinguishable. In White, a plaintiff elected to receive disability benefits in place of retirement pay, thereby unilaterally diminishing the benefits to be received by the defendant. Here, instead, defendant attempts to modify plaintiff’s allocation of his military retirement benefits because those benefits have increased post-separation as a result of his continued military service, which was foreseeable at the time the court entered its 2002 judgment. White does not control in this case, and defendant is not entitled to an amendment of the equitable distribution order.
Under the terms of the 2002 judgment, since plaintiff’s share of defendant’s retirement pay is greater than the alimony ordered in the judgment, defendant is entitled to reduce the alimony he pays to zero. No further order is required.