253 N.C. App. 480
N.C. Ct. App.2017Background
- Daniel R. Orren filed for divorce on Aug. 17, 2009; Carolyn Orren counterclaimed for postseparation support and alimony.
- An equitable distribution order was entered in June 2012 after a hearing and consent agreement.
- A separate alimony order was drafted in Sept. 2012 but never filed due to a clerk/computer mishap; neither party notified the court for ~3 years.
- In Sept. 2015 the court reopened the alimony matter, took new evidence, and refused Daniel Orren’s request to assert a cohabitation defense at the alimony hearing.
- On Apr. 18, 2016 the trial court entered an alimony order awarding Carolyn alimony, attorneys’ fees, and a distributive award based on an early retirement incentive Daniel received after equitable distribution but before the alimony order; Daniel appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cohabitation is a defense to an initial alimony award | Orren argued he should be allowed to assert cohabitation as a defense to deny or reduce initial alimony | Court below (and implicitly Carolyn) treated cohabitation as not a defense to an initial award | Court of Appeals: cohabitation is a defense to an initial alimony claim; trial court misapprehended the law, so order vacated and remanded |
| Whether the trial court properly awarded a distributive award from post-ED retirement benefits | Orren argued the alimony order improperly altered the earlier equitable distribution by classifying/awarding the retirement incentive | Carolyn defended treating the unallocated retirement benefit as marital property for purposes of the alimony order | Court declined to decide on remand (vacated order) but cautioned alimony orders should not be used to amend prior equitable distribution; remand required to reconsider issues under correct law |
Key Cases Cited
- Williamson v. Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (holding cohabitation may be asserted as a defense to an initial alimony award)
- Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (trial court rulings made under a misapprehension of law require vacatur and remand)
- State v. Grundler, 249 N.C. 399, 106 S.E.2d 488 (same principle regarding vacatur for legal misapprehension)