Gurganus v. GurganusÂ
252 N.C. App. 1
| N.C. Ct. App. | 2017Background
- Mary and Charles Gurganus married in 1978; Mary filed for divorce from bed and board and related relief in March 2001.
- Temporary support order (nunc pro tunc 27 Apr 2001) required Charles to pay $3,500/month post-separation support.
- Final judgment (nunc pro tunc 10 Sep 2001, entered 5 Apr 2002) granted a divorce from bed and board, awarded Mary alimony ($2,500/month), unequal equitable distribution including a fixed-percentage share of Charles’s military retirement, and addressed SBP coverage (further clarified by a consent order 8 Apr 2003 and a clerical correction 8 Aug 2003).
- Charles retired from the military and in July 2014 moved to modify or terminate: (1) alimony because Mary would receive a portion of his military retirement, (2) the fixed-percentage award of retirement benefits (challenging use of the Seifert/fixed-percentage method), and (3) assignment of SBP premiums to Mary; he later alleged post-separation conduct and career advancement justified modification.
- The trial court granted Mary summary judgment on all three claims (3 Sep 2015). Charles appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction to enter equitable distribution without an explicit separation date in initial pleadings | Mary: pleadings and later findings established separation date (≈22 Mar 2001); jurisdiction exists under §50-21(a) | Charles: no separation date alleged in pleadings, so trial court lacked jurisdiction to adjudicate equitable distribution | Court: jurisdiction existed because separation was established in the record before adjudication; pleadings requesting equitable distribution were sufficient. |
| Whether fixed-percentage (Seifert) division of military retirement can be modified due to post-separation career advancement and alleged spouse interference | Mary: Seifert/fixed-percentage is a valid method; finality favored; no legal basis to reopen or alter the award | Charles: fixed-percentage can produce unfair results when retirement grows post-separation; requests modification to avoid manifest unfairness based on his post-separation promotions and alleged impediments by Mary | Court: Seifert formula applies; White is distinguishable (White dealt with a unilateral election that reduced the pay stream); no legal basis to replace the fixed-percentage method here; affirmed the original allocation. |
| Reduction/termination of alimony given plaintiff's receipt of retirement share and SBP premium assignment | Mary: judgment already provides how alimony is reduced when she receives retirement payments; SBP allocation stands per earlier orders | Charles: seeks termination/reduction of alimony and reassignment of SBP premium expense | Court: Decretal language allowed defendant to reduce alimony by the actual retirement sum received by Mary; because her retirement share exceeds alimony, alimony effectively reduced to zero under the judgment without further order; SBP responsibility remains as ordered. |
Key Cases Cited
- Seifert v. Seifert, 319 N.C. 367 (establishes permissible fixed-percentage and present-value methods for dividing pension/retirement benefits in equitable distribution)
- White v. White, 152 N.C. App. 588 (modification permitted where a party’s post-judgment election unilaterally diminished the other party’s intended share of retirement benefits; distinguished in this case)
- Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577 (subject-matter jurisdiction may be raised at any time)
- McKoy v. McKoy, 202 N.C. App. 509 (questions of subject-matter jurisdiction reviewed de novo)