ARTICLE 1. Divorce, Alimony, and Child Support, Generally.

Sec.

Editor's Note. - Session Laws 1985 (Reg. Sess., 1986), c. 993, which added Article 2 of this Chapter, designated the existing provisions of this Chapter as Article 1.

§ 50-1: Repealed by Session Laws 1971, c. 1185, s. 20.

§ 50-2. Bond for costs unnecessary.

It shall not be necessary for either party to a proceeding for divorce or alimony to give any undertaking to the other party to secure such costs as such other party may recover.

History

(1871-2, c. 193, s. 41; Code, s. 1294; Rev., s. 1558; C.S., s. 1656.)

Cross References. - As to prosecution bonds generally, see G.S. 1-109 et seq.

As to costs generally, see G.S. 6-21 and G.S. 7A-305 et seq.

Legal Periodicals. - For note on consent judgments in family law in light of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), see 6 Campbell L. Rev. 125 (1984).

CASE NOTES

As to liability of husband for own costs, see Broom v. Broom, 130 N.C. 562, 41 S.E. 673 (1902).

Applied in Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984).


§ 50-3. Venue; removal of action.

In all proceedings for divorce, the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides.

[In] any action brought under Chapter 50 for alimony or divorce filed in a county where the plaintiff resides but the defendant does not reside, where both parties are residents of the State of North Carolina, and where the plaintiff removes from the State and ceases to be a resident, the action may be removed upon motion of the defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the defendant resides. The judge, upon such motion, shall order the removal of the action, and the procedures of G.S. 1-87 shall be followed.

History

(1871-2, c. 193, s. 40; Code, s. 1289; Rev., s. 1559; 1915, c. 229, s. 1; C.S., s. 1657; 1977, 2nd Sess., c. 1223.)

Legal Periodicals. - On the general question of jurisdiction in divorce, see 1 N.C.L. Rev. 95 (1923).

For note on domicile of military personnel for purpose of divorce, see 31 N.C.L. Rev. 304 (1953).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).

For comment, "Conflicts of Law in Divorce Litigation: A Looking-Glass World?," see 10 Campbell L. Rev. 145 (1987).

CASE NOTES

Change in Common-Law Rule. - The common-law rule that the wife should bring her action for divorce in the domicile of her husband was changed by this section, as amended by Laws 1915, c. 229, making the summons returnable to the county in which either the plaintiff or defendant resides. Wood v. Wood, 181 N.C. 227, 106 S.E. 753 (1921).

Requirements to Invoke Statute. - There did not have to be a pending motion or trial date to invoke G.S. 50-3 because the statute required a transfer so that a motion in the cause might be resolved in a new county at some future point and did not require the underlying motion to be pending but only that there be an ongoing alimony proceeding that had not been finally resolved, which criteria were satisfied by indicating a motion to modify or terminate alimony would be filed in the future. Scheinert v. Scheinert, 260 N.C. App. 234, 818 S.E.2d 114 (2018).

Any Superior Court Has Jurisdiction If Either Party Is Domiciled in State. - In the absence of fraud, the superior court of any county in this State has jurisdiction over divorce action if either of the parties is domiciled in this State. Stokes v. Stokes, 260 N.C. 203, 132 S.E.2d 315 (1963).

But If Plaintiff Conceals Action and Whereabouts of Defendant, Jurisdiction Is Lacking. - If a plaintiff should fraudulently conceal his action for a divorce from the defendant and the whereabouts of the defendant from the court, jurisdiction would be lacking and a divorce obtained upon service of summons by publication would be a nullity. Stokes v. Stokes, 260 N.C. 203, 132 S.E.2d 315 (1963).

Venue Provisions of This Section Are Not Jurisdictional. - The provisions of this section that in divorce proceedings the summons shall be returnable to the court of the county in which either the plaintiff or the defendant resides are not jurisdictional; they relate only to venue. Stokes v. Stokes, 260 N.C. 203, 132 S.E.2d 315 (1963).

And May Be Waived. - The provisions of this section are not jurisdictional, but relate to venue, and they may be waived. Nelms v. Nelms, 250 N.C. 237, 108 S.E.2d 529 (1959).

The provision of this section that summons shall be returnable to the court of the county in which either plaintiff or defendant resides is not jurisdictional, but relates to venue, and may be waived; and if an action for divorce is instituted in any other county, it may be tried there, unless defendant before the time of answering expires demands in writing that trial be had in the proper county. Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391 (1946); 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).

But Removal Provisions Are Mandatory. - The language of this section, as amended by Session Laws 1977, 2nd Sess., c. 1223, which added the second paragraph, is mandatory. If the defendant makes a motion for change of venue, the judge shall grant it. Gardner v. Gardner, 43 N.C. App. 678, 260 S.E.2d 116 (1979), aff'd, 300 N.C. 715, 268 S.E.2d 468 (1980).

It was error to deny a husband's motion to change venue because (1) removal of all claims filed in the same action was required, and (2) all removal prerequisites were met. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).

When a trial court's equitable distribution order was vacated and the court's alimony order was remanded for reconsideration, this procedural posture did not exempt the case from the venue provisions of G.S. 50-3 because (1) the statute's mandatory provisions applied before or after judgment, and (2) remand proceedings should have occurred in a different county, since the venue statute was raised before those proceedings began. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).

And Apply Retroactively to Causes Which Have Accrued. - The retroactive application of this section to causes of action which accrued prior to the effective date of the statute is proper. No vested right is destroyed, nor does a question of construction arise, where a venue statute, by its own provisions, is declared to apply to transactions entered into prior to the passage of the statute. Gardner v. Gardner, 43 N.C. App. 678, 260 S.E.2d 116 (1979), aff'd, 300 N.C. 715, 268 S.E.2d 468 (1980).

But Not to Actions Settling Venue Before Effective Date. - The amendment of this section providing for removal of an action for divorce or alimony, upon motion of defendant, to the county in which defendant resides, where plaintiff has ceased to be a resident of this State, is mandatory and may be applied retroactively and even to actions pending on its effective date. However, the amendment would not be applicable to an action for divorce from bed and board where it became effective after the trial court made a decision settling the question of venue. Gardner v. Gardner, 43 N.C. App. 678, 260 S.E.2d 116 (1979), aff'd, 300 N.C. 715, 268 S.E.2d 468 (1980).

As Right to Venue as Adjudicated Is Substantial. - Although the question of venue is a procedural one, a right to venue established by statute is a substantial right. Its status is secure when finally adjudicated by a court of competent jurisdiction, and neither the courts nor the legislature can thereafter invalidate the right's exercise or annul the judgment which fixes its investiture. Gardner v. Gardner, 300 N.C. 715, 268 S.E.2d 468 (1980).

Contempt Venue. - It was error to hold a husband in civil contempt because (1) while venue was normally proper in the county in which the order allegedly violated was issued, the husband asserted the husband's statutory right to a change of venue, under G.S. 50-3, so all subsequent proceedings had to be held in the county with proper venue, and, (2) the trial court had to reconsider the court's alimony award before that award was enforceable by contempt. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).

Limitation on Retroactive Application of Section. - This statute may be applied retroactively only insofar as it does not impinge upon a right which is otherwise secured, established, and immune from further legal metamorphosis. Gardner v. Gardner, 300 N.C. 715, 268 S.E.2d 468 (1980).

Propriety of Motion to Remove. - This section is not jurisdictional and may be waived, and the failure therein must be taken advantage of by motion to remove the cause to the proper venue, and not by motion to dismiss. Davis v. Davis, 179 N.C. 185, 102 S.E. 270 (1920).

Failure to Make Motion as Waiver. - Any action brought in the wrong county may be removed instead of being dismissed, and a failure to make the motion for removal is a waiver of objection to the county in which it is brought. Denson v. Denson, 255 N.C. 703, 122 S.E.2d 507 (1961).

Insufficient Factfinding. - Insufficient findings supported an order to transfer an alimony proceeding because the court merely recited an allegation in an answer without making a finding that the allegation was a fact. Scheinert v. Scheinert, 260 N.C. App. 234, 818 S.E.2d 114 (2018).

Applied in Bass v. Bass, 43 N.C. App. 212, 258 S.E.2d 391 (1979).

Cited in Wood v. Wood, 181 N.C. 227, 106 S.E. 753 (1921); Batts v. United States, 120 F. Supp. 26 (E.D.N.C. 1954); Miller v. Miller, 38 N.C. App. 95, 247 S.E.2d 278 (1978); Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630 (1980); State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674 (2014).


§ 50-4. What marriages may be declared void on application of either party.

The district court, during a session of court, on application made as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in the Chapter entitled Marriage, or declared void by said Chapter, may declare such marriage void from the beginning, subject, nevertheless, to G.S. 51-3.

History

(1871-2, c. 193, s. 33; Code, s. 1283; Rev., s. 1560; C.S., s. 1658; 1945, c. 635; 1971, c. 1185, s. 21; 1973, c. 1; 1979, c. 525, s. 10.)

Cross References. - As to marriage generally, see G.S. 51-1 et seq.

As to void and voidable marriages, see G.S. 51-3.

Legal Periodicals. - For article, "No Exit: The Problem of Same-Sex Divorce," 90 N.C.L. Rev. 73 (2011).

For comment, "Avoiding Wonderland: Clarifying Marriage Requirements in North Carolina," see 35 Campbell L. Rev. 227 (2013).

CASE NOTES

Void and Voidable Marriages Compared. - A voidable marriage is valid for all civil purposes until it is annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Formal Decree When Marriage Is Absolutely Void. - Even though a marriage may be absolutely void, without being so declared, yet the court will formally decree its nullity, for the sake of the good order of society as well as for the quiet and relief of the party seeking the relief. Johnson v. Kincade, 37 N.C. 470 (1843); Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1889).

Marriage Induced by Duress. - A former marriage which has been decreed to be void because it was induced by duress was void ab initio, and hence did not afford ground for annulment of a later marriage between one of the parties and a third person, though such decree was rendered after the second marriage. Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912).

Test of Mental Capacity to Contract Marriage. - As to what constitutes mental capacity or incapacity to enter into a contract to marry, the general rule is that the test is the capacity of the person to understand the special nature of the contract of marriage and the duties and responsibilities which it entails, which is to be determined from the facts and circumstances of each case. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Test of Incompetency in Guardianship Matters Compared. - Tests judicially applied for a determination of incompetency in guardianship matters differ markedly from those applied for the determination of mental capacity to contract a marriage, for even though he may be under guardianship as an incompetent, a person may have in fact sufficient mental capacity to validly contract marriage. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Capacity to Marry as Affected by Guardianship. - Unlike other transactions, an insane person's capacity to marry is not necessarily affected by guardianship. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Mental capacity at the precise time when marriage is celebrated controls. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Prior adjudication of incompetency is not conclusive on the issue of later capacity to marry and does not bar a party from entering a contract to marry. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Marriage of Person Incapable of Contracting for Want of Understanding Voidable. - Under the common law as modified by G.S. 51-3 and this section, a marriage of a person incapable of contracting for want of understanding is not void, but voidable. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Void Ab Initio When So Declared. - Under the rule of the common law as modified by statute, the marriage of a person incapable of contracting for want of understanding is not void ipso facto, but if and when it is declared void in a legally constituted action, such marriage is void ab initio. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

The court has jurisdiction to declare marriages in proper cases void ab initio, but the marriage of a lunatic is not so ipso facto, and must be so declared by a decree of the court. Watters v. Watters, 168 N.C. 411, 84 S.E. 703 (1915). See also, State ex rel. Setzer v. Setzer, 97 N.C. 252, 1 S.E. 558 (1887).

Standing to Institute Action. - An action to declare void a marriage of a person incapable of contracting for want of understanding may be instituted in the lifetime of the parties thereto by a guardian for the alleged mentally incompetent person or by such mentally incompetent person if and when he or she becomes mentally competent to do so; and unless such marriage is followed by cohabitation and the birth of issue, such action may be instituted after the death of such mentally incompetent person by a person or persons whose legal rights depend upon whether such marriage is valid or void. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

A suit for nullity of marriage on the ground of insanity may be brought either in the name of the lunatic, by her guardian, or in the name of the guardian, though the former is, for some reasons, the preferable course. Crump v. Morgan, 38 N.C. 91, 40 Am. Dec. 447 (1843).

Burden of Persuasion as to Invalidity. - When the fact of marriage has been established by evidence, the burden of persuasion on the issue of invalidity is on the party asserting such. And even if a party's insanity is proved to be of such a chronic nature that it is presumed to continue, it does not shift the burden on the issue. Geitner ex rel. First Nat'l Bank v. Townsend, 67 N.C. App. 159, 312 S.E.2d 236, cert. denied, 310 N.C. 744, 315 S.E.2d 702 (1984).

Death of Party After Birth of Issue. - A marriage of a person incapable of contracting for want of understanding, when followed by cohabitation and the birth of issue, may not be declared void after the death of either of the parties. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

Subsequent Insanity Not Ground for Annulment. - Insanity afterwards afflicting a party to a contract of marriage is not a ground for annulment. Watters v. Watters, 168 N.C. 411, 84 S.E. 703 (1915).

Death of Party to Incestuous Marriage After Birth of Issue. - In Baity v. Cranfill, 91 N.C. 293 (1884), it was held that the authority conferred upon the court by this section was so limited by G.S. 51-3 as to deprive the court of the power to declare void the marriage of uncle and niece, "nearer of kin than first cousins, " after the husband's death, when their marriage was followed by cohabitation and the birth of issue. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).

License Issued upon Fraudulent Representations as to Age - How Voided. - Prior to the 1939 amendment to G.S. 51-2, which made parents proper parties plaintiff, where a register of deeds was induced by fraudulent representations to issue a license for the marriage of a female between the ages of 14 and 16 without conforming with G.S. 51-2 as to the written consent of her parent, the marriage was voidable only at the suit of the female, and the register of deeds could not maintain a suit to declare the marriage void; the register of deeds could at most maintain an action to revoke and cancel the license issued by him before the solemnization of the marriage. Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929).

Effect of 20 Years' Ratification. - Where a marriage is entered into by one under the legal age, but is followed by a cohabitation of 20 years, the parties acknowledging each other and being recognized as husband and wife, although such marriage in its inception was invalid, by reason of such ratification by the parties it would not be declared void. State v. Parker, 106 N.C. 711, 11 S.E. 517 (1890).

Suit by Nonresident. - Under this section, the courts of this State have jurisdiction of a suit to annul a marriage performed here, even though the plaintiff was a nonresident of this State at the time of commencement of the suit. Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864 (1929).

Procedure Similar to Divorce Action. - An action, under this section, to have a marriage declared void, so far as procedure is concerned, is an action for divorce. Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1889); Johnson v. Johnson, 141 N.C. 91, 53 S.E. 623 (1906).

In Johnson v. Kincade, 37 N.C. 470, (1843), the marriage of the parties was declared a nullity because of the mental incapacity of one of the parties at the time of the marriage. In that decision the court declared that the "plaintiff ought to be, and is divorced from the defendant." See Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1889); Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912).

Affidavit Not Necessary. - Action for annulment under this section would not be dismissed because of failure to make the affidavit formerly prescribed in G.S. 50-8 for actions for divorce or alimony. Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912).

Allowance of Alimony Pendente Lite. - While not technically actions for divorce, actions for annulment come under that heading, in a general way, in that alimony pendente lite may be allowed. Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912). See also, Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1889).

Effect of Annulment Decree. - A decree annulling a marriage is final and conclusive and not open to collateral impeachment, although it may be vacated or set aside for good cause on proper application. Its effect is to make the supposed or pretended marriage as if it had never existed, and hence it restores both parties to their former status and to all rights of property as before the marriage. Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912).

Legitimacy of Children of Annulled Marriage. - The children of a marriage which is subsequently annulled are made legitimate by G.S. 50-11. Taylor v. White, 160 N.C. 38, 75 S.E. 941 (1912). See also G.S. 50-11.1

Setting Aside Judgment - Adversary Proceeding. - If either party to an action to annul a marriage contract desires to move to set aside the judgment rendered, it must be done in an adversary proceeding after due notice is served upon the other party; notice to counsel of record in the original action is not sufficient. Johnson v. Johnson, 141 N.C. 91, 53 S.E. 623 (1906).

Counsel Cannot Represent Both Parties Jointly. - A proceeding to set aside a judgment in an action of annulment will be dismissed where the same counsel jointly makes the motion representing both parties to the action. Johnson v. Johnson, 141 N.C. 91, 53 S.E. 623 (1906).

Collateral Attack by Second Husband on Wife's Former Divorce Decree Not Authorized. - Where a divorce decree obtained by defendant wife from her former husband on the ground of separation for one year was in all respects regular on the face of the record, the divorce decree was not void but merely voidable even though there was proof that defendant and her former husband had not lived separate and apart for one year as of the time of the divorce; therefore, plaintiff husband had no standing collaterally to attack the divorce decree as to show that his subsequent marriage to defendant was void ab initio. Maxwell v. Woods, 47 N.C. App. 495, 267 S.E.2d 516, cert. denied, 301 N.C. 236, 283 S.E.2d 132 (1980).

Universal Life Church Marriage. - Trial court could consider the validity of a marriage performed by a Universal Life Church "minister" because a husband's prayer to find the marriage invalid sought, under G.S. 50-4, to declare a voidable marriage void. Duncan v. Duncan, 232 N.C. App. 369, 754 S.E.2d 451 (2014).

Applied in Dees v. McKenna, 261 N.C. 373, 134 S.E.2d 644 (1964); Fulton v. Vickery, 73 N.C. App. 382, 326 S.E.2d 354 (1985).

Cited in Armstrong v. Armstrong, 41 N.C. App. 168, 254 S.E.2d 209 (1979); Dobos v. Dobos, 111 N.C. App. 222, 431 S.E.2d 861 (1993).


§ 50-5: Repealed by Session Laws 1983, c. 613, s. 1.

Editor's Note. - Session Laws 1983, c. 613, s. 1, repealed this section, except for subdivision (6) thereof, which it recodified as G.S. 50-5.1.


§ 50-5.1. Grounds for absolute divorce in cases of incurable insanity.

In all cases where a husband and wife have lived separate and apart for three consecutive years, without cohabitation, and are still so living separate and apart by reason of the incurable insanity of one of them, the court may grant a decree of absolute divorce upon the petition of the sane spouse: Provided, if the insane spouse has been released on a trial basis to the custody of his or her respective spouse such shall not be considered as terminating the status of living "separate and apart" nor shall it be considered as constituting "cohabitation" for the purpose of this section nor shall it prevent the granting of a divorce as provided by this section. Provided further, the evidence shall show that the insane spouse is suffering from incurable insanity, and has been confined or examined for three consecutive years next preceding the bringing of the action in an institution for the care and treatment of the mentally disordered or, if not so confined, has been examined at least three years preceding the institution of the action for divorce and then found to be incurably insane as hereinafter provided. Provided further, that proof of incurable insanity be supported by the testimony of two reputable physicians, one of whom shall be a staff member or the superintendent of the institution where the insane spouse is confined, and one regularly practicing physician in the community wherein such husband and wife reside, who has no connection with the institution in which said insane spouse is confined; and provided further that a sworn statement signed by said staff member or said superintendent of the institution wherein the insane spouse is confined or was examined shall be admissible as evidence of the facts and opinions therein stated as to the mental status of said insane spouse and as to whether or not said insane spouse is suffering from incurable insanity, or the parties according to the laws governing depositions may take the deposition of said staff member or superintendent of the institution wherein the insane spouse is confined; and provided further that incurable insanity may be proved by the testimony of one or more licensed physicians who are members of the staff of one of this State's accredited four-year medical schools or a state-supported mental institution, supported by the testimony of one or more other physicians licensed by the State of North Carolina, that each of them examined the allegedly incurable insane spouse at least three years preceding the institution of the action for divorce and then determined that said spouse was suffering from incurable insanity and that one or more of them examined the allegedly insane spouse subsequent to the institution of the action and that in his or their opinion the said allegedly insane spouse was continuously incurably insane throughout the full period of three years prior to the institution of the said action.

In lieu of proof of incurable insanity and confinement for three consecutive years next preceding the bringing of the action in an institution for the care and treatment of the mentally disordered prescribed in the preceding paragraph, it shall be sufficient if the evidence shall show that the allegedly insane spouse was adjudicated to be insane more than three years preceding the institution of the action for divorce, that such insanity has continued without interruption since such adjudication and that such person has not been adjudicated to be sane since such adjudication of insanity; provided, further, proof of incurable insanity existing after the institution of the action for divorce shall be furnished by the testimony of two reputable, regularly practicing physicians, one of whom shall be a psychiatrist.

In lieu of proof of incurable insanity and confinement for three consecutive years next preceding the bringing of the action in an institution for the care and treatment of the mentally disordered, or the adjudication of insanity, as prescribed in the preceding paragraphs, it shall be sufficient if the evidence shall show that the insane spouse was examined by two or more members of the staff of one of this State's accredited four-year medical schools, both of whom are medical doctors, at least three years preceding the institution of the action for divorce with a determination at that time by said staff members that said spouse is suffering from incurable insanity, that such insanity has continued without interruption since such determination; provided, further, that sworn statements signed by the staff members of the accredited medical school who examined the insane spouse at least three years preceding the commencement of the action shall be admissible as evidence of the facts and opinions therein stated as to the mental status of said insane spouse as to whether or not said insane spouse was suffering from incurable insanity; provided, further, that proof of incurable insanity under this section existing after the institution of the action for divorce shall be furnished by the testimony of two reputable physicians, one of whom shall be a psychiatrist on the staff of one of the State's accredited four-year medical schools, and one a physician practicing regularly in the community wherein such insane person resides.

In all decrees granted under this subdivision in actions in which the insane defendant has insufficient income and property to provide for his or her own care and maintenance, the court shall require the plaintiff to provide for the care and maintenance of the insane defendant for the defendant's lifetime, based upon the standards set out in G.S. 50-16.5(a). The trial court will retain jurisdiction of the parties and the cause, from term to term, for the purpose of making such orders as equity may require to enforce the provisions of the decree requiring plaintiff to furnish the necessary funds for such care and maintenance.

Service of process shall be held upon the regular guardian for said defendant spouse, if any, and if no regular guardian, upon a duly appointed guardian ad litem and also upon the superintendent or physician in charge of the institution wherein the insane spouse is confined. Such guardian or guardian ad litem shall make an investigation of the circumstances and notify the next of kin of the insane spouse or the superintendent of the institution of the action and whenever practical confer with said next of kin before filing appropriate pleadings in behalf of the defendant.

In all actions brought under this subdivision, if the jury finds as a fact that the plaintiff has been guilty of such conduct as has conduced to the unsoundness of mind of the insane defendant, the relief prayed for shall be denied.

The plaintiff or defendant must have resided in this State for six months next preceding institution of any action under this section.

History

(1945, c. 755; 1949, c. 264, s. 5; 1953, c. 1087; 1955, c. 887, s. 15; 1963, c. 1173; 1971, c. 1173, ss. 1, 2; 1975, c. 771; 1977, c. 501, s. 1; 1983, c. 613, s. 1.)

Cross References. - As to the maintenance of actions for alimony, alimony pendente lite, and custody and support as in dependent actions during the pendency of an action for divorce, and vice versa, and the effect of a divorce on a pending action for alimony or alimony pendente lite, see G.S. 50-19.

Editor's Note. - This section was subdivision (6) of former G.S. 50-5. It has been recodified as G.S. 50-5.1 by Session Laws 1983, c. 613, s. 1.

Legal Periodicals. - For comment on the 1945 amendment to this section, which was formerly G.S. 50-5(6), see 23 N.C.L. Rev. 340 (1945).

For summary of the 1949 amendments to former G.S. 50-5 and G.S. 50-6 and G.S. 50-8, see 27 N.C.L. Rev. 453 (1949).

For comment on contingent fees in domestic relations actions, see 62 N.C.L. Rev. 381 (1984).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," see 63 N.C.L. Rev. 1317 (1985).

For article, "No Exit: The Problem of Same-Sex Divorce," 90 N.C.L. Rev. 73 (2011).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-5(6).

Purpose. - The purpose of former G.S. 50-5(6), as amended (recodified as this section) is to require that a person alleged to be incurably insane shall not have his or her marital status altered until such person has been committed to an institution for the care and treatment of the mentally disordered for a period of five (now three) successive years in order that it may be ascertained whether or not the inmate's insanity is incurable. Mere confinement for a period of five (now three) successive years in such an institution would fulfill the literal meaning of the statute but it would not be in compliance with its spirit or purpose. Mabry v. Mabry, 243 N.C. 126, 90 S.E.2d 221 (1955).

Exclusive Remedy. - The remedy provided in former G.S. 50-5(6) (recodified as this section) is exclusive. Lawson v. Bennett, 240 N.C. 52, 81 S.E.2d 162 (1954).

Section Not Ambiguous. - Former G.S. 50-5(6), recodified as this section, is not ambiguous. Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

The words "next preceding" in former G.S. 50-5(6) (recodified as this section) have been held to mean the time nearest to the bringing of the action. Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

It is not sufficient under former G.S. 50-5(6) (recodified as this section) that the insane spouse was confined to an institution for five (now three) consecutive years at some time prior to the commencement of the action; the statute requires that confinement must be for five (now three) consecutive years "next preceding" the bringing of the action, which means the time nearest the bringing of the action. Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

"Confined." - By the use of the word "confined" in former G.S. 50-5(6) (recodified as this section), the legislature did not contemplate such confinement as would require an inmate to be at all times under lock and key. Mabry v. Mabry, 243 N.C. 126, 90 S.E.2d 221 (1955); Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

Release on Probation. - In a proceeding by wife for divorce on the ground of husband's insanity, where doctors testified that the husband was incurably insane, the fact that the husband during the five-year (now three-year) period of confinement had been released on probation to his relatives on separate occasions, once for 10 days and once for six months, did not bar divorce of wife on the ground of insanity, since release on probation did not constitute such acts on the part of the hospital authorities as to terminate the period of confinement within the meaning of former G.S. 50-5(6) (recodified as this section). Mabry v. Mabry, 243 N.C. 126, 90 S.E.2d 221 (1955).

Periods of probation are permissible under former G.S. 50-5(6) (recodified as this section) and may be deemed not to have constituted an interruption of the confinement or a discharge from the hospital within the meaning of the statute. Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

Defendant's discharge under former G.S. 122-67 terminated his confinement and he was, therefore, not confined for five years (now three years) next preceding the institution of the action as required by former G.S. 50-5(6) (recodified as this section). Vaughan v. Vaughan, 4 N.C. App. 253, 166 S.E.2d 530 (1969).

Proof of Separation. - In a suit for divorce on the statutory ground of insanity, the insanity must be the reason for the separation of the parties, but no greater proof of separation and its continuance during the five-year (now three-year) period is required than in a proceeding for divorce based on a two-year (now one-year) separation period. Mabry v. Mabry, 243 N.C. 126, 90 S.E.2d 221 (1955).

Separation Occasioned by Mental Incompetency Other Than Incurable Insanity. - Separation occasioned by insanity is cause for divorce in North Carolina only in cases of incurable insanity. And in these cases the requirements of this section must be met. In all other instances of separation arising by reason of mental incompetency, such separation is not a ground for divorce. But to bar an action for divorce based on two (now one) years' separation under G.S. 50-6, the mental impairment must be to such extent that defendant does not understand what he or she is engaged in doing, and the nature and consequences of the act. Moody v. Moody, 253 N.C. 752, 117 S.E.2d 724 (1961).

Expert Testimony Insufficient. - Defendant's expert testimony did not satisfy the requirements of this section where only one of defendant's medical experts associated with a four-year North Carolina medical school made any determination of defendant's condition three years prior to the institution of the action for divorce. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Sufficient Evidence. - In action for divorce based on one year's separation, where defendant wife asserted incurable mental illness as a defense, although plaintiff offered no expert evidence concerning the diagnosis of defendant's condition, plaintiff's own testimony showed defendant's ability to perform usual daily tasks when her illness was controlled with medication; moreover, the testimony of defendant's treating psychiatrist and the person most familiar with her condition over an extended period of time corroborated certain of plaintiff's evidence. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Extent of Impairment. - To bar an action for divorce based on one year's separation, the mental impairment must be to such extent that defendant does not understand what he or she is engaged in doing and the nature and consequences of the act. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Burden of Persuasion. - To bar an action for divorce based on one year's separation, the defendant bears the burden of persuasion that he or she is incurably insane within the meaning and purpose of this section. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Cited in Melton ex rel. Madry v. Madry, 106 N.C. App. 83, 415 S.E.2d 72 (1992); Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471 (2006), cert. denied, 360 N.C. 536, 633 S.E.2d 826 (2006); Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010).

Opinions of Attorney General

Separation Prior to Onset of Incompetence. - The provisions of this section are not available to a plaintiff to obtain a divorce from an incompetent spouse where the separation occurred prior to the onset of the incompetence. See opinion of Attorney General to Mr. James Lee Knight, Clerk of Superior Court, Guilford County, 55 N.C.A.G. 82 (1986).

§ 50-6. Divorce after separation of one year on application of either party.

Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. A divorce under this section shall not be barred to either party by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination. Notwithstanding the provisions of G.S. 50-11, or of the common law, a divorce under this section shall not affect the rights of a dependent spouse with respect to alimony which have been asserted in the action or any other pending action.

Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.

History

(1931, c. 72; 1933, c. 163; 1937, c. 100, ss. 1, 2; 1943, c. 448, s. 3; 1949, c. 264, s. 3; 1965, c. 636, s. 2; 1977, c. 817, s. 1; 1977, 2nd Sess., c. 1190, s. 1; 1979, c. 709, s. 1; 1981, c. 182; 1983, c. 613, s. 2; c. 923, s. 217; 1987, c. 664, s. 2.)

Cross References. - For provision that in an action pursuant to this section, if either or both parties have sought and obtained marital counselling by a licensed physician, licensed psychologist, or certified marital family therapist, the person rendering such counselling shall not be competent to testify in the action concerning information acquired while rendering such counselling, see G.S. 8-53.6.

As to contents and verification of complaint, see G.S. 50-8.

As to the maintenance of actions for alimony, alimony pendente lite, and custody and support as independent actions during the pendency of an action for divorce, and vice versa, and the effect of a divorce on a pending action for alimony or alimony pendente lite, see G.S. 50-19.

Editor's Note. - Session Laws 1977, 2nd Sess., c. 1190, s. 2, provided: "In an action initiated after August 1, 1977, a judgment of divorce under G.S. 50-6, entered before the effective date of this act [June 11, 1978] and when there was no pending action for support or alimony, shall be valid even though the court did not make a determination that there was no such pending action or a determination that all claims for support or alimony had been fully and finally adjudicated."

Legal Periodicals. - For comment on the 1943 amendment to this section, see 21 N.C.L. Rev. 347 (1921).

As to effect of this section on former G.S. 50-5, see 9 N.C.L. Rev. 368 (1931).

For note on "living apart" where both parties live in the same house, see 18 N.C.L. Rev. 247 (1940).

For note discussing cases decided under this section, see 40 N.C.L. Rev. 808 (1962).

For note on early statutory and common law of divorce in North Carolina, see 41 N.C.L. Rev. 604 (1963).

For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For note discussing the application of the compulsory counterclaim provision of G.S. 1A-1, Rule 13 in divorce suits, see 57 N.C.L. Rev. 439 (1979).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For note on the effect of resumed marital relations on separation agreements, see 1 Campbell L. Rev. 131 (1979).

For article, "Mediation and Arbitration of Separation and Divorce Agreements," see 15 Wake Forest L. Rev. 467 (1979).

For comment on the enforceability of arbitration clauses in North Carolina separation agreements, see 15 Wake Forest L. Rev. 487 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For note on voiding separation agreements by isolated acts of sexual intercourse, see 16 Wake Forest L. Rev. 137 (1980).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For comment on contingent fees in domestic relations actions, see 62 N.C.L. Rev. 381 (1984).

For domestic relations note, "The Validity of Foreign Divorce Decrees in North Carolina," see 20 Wake Forest L. Rev. 765 (1984).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

For 1984 survey, "Equitable Distribution Without Consideration of Marital Fault," see 63 N.C.L. Rev. 1204 (1985).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," 63 N.C.L. Rev. 1317 (1985).

For note on post-separation sexual intercourse precluding enforcement of agreement requiring parties to live separate and apart, see 11 Campbell L. Rev. 73 (1988).

For article, "Bromhal v. Stott: Revisiting the Court's Role in Separation Agreements in the Context of Attorneys' Fees," see 74 N.C.L. Rev. 2151 (1996).

For article, "The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do," see 85 N.C.L. Rev. 1761 (2007).

For article, "Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina," 87 N.C.L. Rev. 1910 (2009).

For article, "No Exit: The Problem of Same-Sex Divorce," 90 N.C.L. Rev. 73 (2011).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

For article, "If Loving You is Wrong….Can First Amendment Protection Be Right? Alienation of Affection, Criminal Conversation, and the Right to Free Speech," see 38 N.C. Cent. L. Rev. 93 (2016).

CASE NOTES

I. IN GENERAL.

Constitutionality. - This section, as amended, is not unconstitutional on grounds that it violates equal protection by preserving a dependent spouse's right to alimony without at the same time preserving all other property rights incident to continuation of the marital status, as the equal protection clauses of the State and federal Constitutions prohibit denial of the equal protection of the laws to persons, not to rights. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979).

Abolition of the defense of recrimination in a divorce action based on a year's separation does not deprive a spouse who was married before such abolition of a vested property right under the due process clause of the federal Constitution or the "law of the land clause" of N.C. Const., Art. I, § 19. Nor does it deprive defendant husband of a vested property right as a tenant by the entirety without due process of law on grounds that it permits plaintiff wife to obtain a divorce from defendant and defeat defendant's right upon wife's death to become the sole owner of property held by the parties as tenants by the entirety. Sawyer v. Sawyer, 54 N.C. App. 141, 282 S.E.2d 527 (1981).

This section is an indication of this State's policy, as exhibited by legislation, that if the parties have lived separate and apart for one year, the marriage is no longer viable and is not worth saving. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

Purpose of Section. - This section was enacted in order to enable a husband and wife to terminate their marriage without the sensationalism and public airing of dirty linen which necessarily accompany a divorce based on fault. Harrington v. Harrington, 22 N.C. App. 419, 206 S.E.2d 742, rev'd on other grounds, 286 N.C. 260, 210 S.E.2d 190 (1974).

This section creates an independent cause of divorce. Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889 (1962); Gray v. Gray, 16 N.C. App. 730, 193 S.E.2d 492 (1972).

And Provides for "No Fault" Divorce. - As to divorces grounded on a one-year separation of the parties, this State is a "no fault" jurisdiction; that is, a showing that the parties have achieved the required periods of residency and separation is all that is necessary to obtain a divorce in this State under this section. Morris v. Morris, 45 N.C. App. 69, 262 S.E.2d 359 (1980).

Jurisdictional Requirements. - Under this section, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years (now one year), and (2) the plaintiff, husband or wife, shall have resided in this State for a period of one year (now six months). These two requirements are jurisdictional, and if either one or the other of these elements does not exist, the court would not have jurisdiction to try the action and any decree rendered would be void. Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227 (1950).

Under this section, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years (now one year); and (2) the plaintiff, husband or wife, shall have resided in this State for a period of six months. The jurisdictional requirement as to residence under this section is met by allegation and proof of residence within this State for a period of six months next preceding the commencement of the action. Denson v. Denson, 255 N.C. 703, 122 S.E.2d 507 (1961).

To obtain a divorce pursuant to this section, all that is required is proof that the parties have lived separate and apart for one year and that one of the parties has lived in this State for six months next preceding institution of the suit. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

Statute of Limitations Not Applicable to Actions for Absolute Divorce. - Balancing the reasons for having statutes of limitation against this State's public policy of endeavoring to maintain the marital state on the one hand and not denying divorce to parties who have demonstrated a ground for divorce on the other hand, the general, residuary statute of limitations, G.S. 1-56, should not be applied to actions for absolute divorce under this section. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

Accrual of Cause of Action. - Separation, as a ground for divorce, is a type of continuing offense. It begins on the date the parties physically separate with the requisite intention that the separation remain permanent, and the cause of action under this section accrues at the end of one year. However, the cause of action continues to accrue even after the one year period, so long as the parties remain "separate and apart" within the meaning of the statute. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

But, the cessation of sexual relations alone does not constitute separation. Lin v. Lin, 108 N.C. App. 772, 425 S.E.2d 9 (1993).

An interlocutory appeal to determine the date of separation for the purposes of equitable distribution was rightfully dismissed, as the parties had been separated for a period far in excess of one year and as the date of separation was irrelevant to the validity of the divorce. Stafford v. Stafford, 351 N.C. 94, 520 S.E.2d 785 (1999).

Proper Parties. - The only persons who may bring an action for absolute divorce are those persons who are lawfully married to one another. Where there are children born to a marriage, it is neither proper nor necessary for them to be made parties to an action for divorce between their parents. Likewise, the only necessary parties in an action to set aside an absolute divorce decree after one spouse's death are the surviving spouse and the personal representative of the deceased spouse. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163 (1979).

Required Findings. - The court erred in declaring the parties' divorce decree void where the divorce decree at issue was "in all respects regular on [its] face" and the defendant was properly served; the court's findings, required by this section, were found under the heading "Conclusions of Law" rather than under "Findings of Fact." Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242 (2001).

Applicability of G.S. 50-10. - The application to divorces under this section of the G.S. 50-10 requirement that the factual allegations supporting the divorce must be deemed denied requires a finding of the necessary facts. While it remains sound public policy not to allow the granting of such divorces on the pleadings, it would, nevertheless, appear that it would make good jurisprudential sense to clearly remove divorces under this section from the more cumbersome jury procedure and provide that all such cases be heard by the judge without a jury. Morris v. Morris, 45 N.C. App. 69, 262 S.E.2d 359 (1980).

Allegations and Proof Sufficient to Entitle Plaintiff to Divorce. - Where the complaint alleges, and there is evidence tending to show, that husband and wife, "have lived separate and apart for two years (now one year)" next immediately preceding the institution of the action, and that plaintiff "has resided in the State for a period of six months," nothing else appearing, the establishment of these allegations by proof would entitle plaintiff to a divorce. This section so provides. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945).

It is unnecessary to set out in the complaint the cause of the separation or to allege that it was without fault on the part of plaintiff or to aver that it was by mutual agreement of the parties. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945).

In order to be entitled to a divorce on the ground of separation, plaintiff must show the fact of marriage, that the parties have lived separate and apart for two years (now one year), and that plaintiff has been a resident of the State for one year (now six months). Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549 (1941).

Where, in an action under this section, the testimony adduced by plaintiff is sufficient to establish, at the commencement of the action, that the plaintiff and defendant were husband and wife, that both of them had resided in the State for a period of six months, and that they had lived separate and apart within the meaning of the statute for an uninterrupted period of two years (now one year), the trial judge rightly refused to nonsuit the action. Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951).

Complaint seeking an absolute divorce was not fatally defective in failing to allege that the parties lived separate and apart for one year with the intention by at least one of them that the separation be permanent, where it contained the allegations required by this section. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987).

Trial court's summary divorce judgment was not disturbed because it was uncontested that statutory residency and time requirements were met. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781 (2015), dismissed, 780 S.E.2d 757, 2015 N.C. LEXIS 1310 (2015), dismissed, 781 S.E.2d 293, 2015 N.C. LEXIS 1291 (2015).

Joinder of Grounds in Complaint. - Where the grounds are listed in the statutes for the same kind of divorce, the several grounds may be joined in one complaint, and the decree may be granted on any one of the grounds proved. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902 (1980).

Statement in Answer. - In an action under this section, it was held that the mere statement in the answer that the allegation in the complaint "that plaintiff and defendant have not lived together as man and wife since April 1, 1942, is not denied," was not an admission of a "separation." Moody v. Moody, 225 N.C. 89, 33 S.E.2d 491 (1945).

Stay Not Required. - A stay of plaintiff's action for absolute divorce was not required pending resolution of defendant's counterclaim for alimony in plaintiff's earlier action for divorce from bed and board, since defendant's claim for alimony, having been asserted in the prior action, would not be affected by an absolute divorce obtained by plaintiff in the action for absolute divorce. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979).

When Issues to Be Passed on by Jury. - In an action under this section, where the complaint alleged sufficient facts and defendant in her answer set up a divorce a mensa with alimony granted her on the grounds of abandonment, to which plaintiff replied without admission of wrongful or unlawful conduct on his part, a judgment for defendant on the pleadings was erroneous, as there were issues of fact raised to be tried by a jury. Lockhart v. Lockhart, 223 N.C. 123, 25 S.E.2d 465 (1943).

When Plaintiff May Not Voluntarily Dismiss Claim. - Where plaintiff seeks divorce upon the ground of one year's separation and defendant in his answer likewise prays for a divorce upon the same ground, defendant's prayer is in effect a counterclaim, and plaintiff therefore cannot voluntarily dismiss her claim without defendant's consent. The rationale for this rule is that it would be manifestly unjust to allow a plaintiff who comes into court upon solemn allegations which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, ex parte, the allegations after defendant has demanded the relief to which they entitle him. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Estoppel from Challenging Divorce Judgment. - Where husband filed for divorce and performed some of his obligations under separation agreement for several years, remarried in reliance on the divorce judgment, and did not object to the validity of the divorce decree or the agreement until he sought to defend his failure to comply with the judgment on grounds that it was void, he was estopped from questioning its validity and effect. Amick v. Amick, 80 N.C. App. 291, 341 S.E.2d 613 (1986).

Modification of Custody Order in Action Under This Section. - An order awarding the custody of minor children determines the present rights of the parties, but is not permanent in nature, and is subject to modification for subsequent change of circumstances affecting the welfare of the children; therefore, an order of the court, entered pursuant to former G.S. 50-16, awarding the custody of the children to the wife, did not preclude another judge of the superior court from awarding custody of the children to the husband in the wife's later action for absolute divorce under this section. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

Child Support Action Not Barred. - The inclusion in divorce judgment of a paragraph identifying plaintiff's former husband as the father of plaintiff's child operated only to identify the existence of a child born of the marriage and was not the subject of litigation; thus, collateral estoppel did not bar child support action against defendant. Guilford County ex rel. Child Support Enforcement Unit ex rel. Gardner v. Davis, 123 N.C. App. 527, 473 S.E.2d 640 (1996).

Evidence of Mental Impairment. - In action for divorce based on one year's separation where defendant wife asserted incurable mental illness as a defense, although plaintiff offered no expert evidence concerning the diagnosis of defendant's condition, plaintiff's own testimony showed defendant's ability to perform usual daily tasks when her illness was controlled with medication; moreover, the testimony of defendant's treating psychiatrist and the person most familiar with her condition over an extended period of time, corroborated certain of plaintiff's evidence. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Mental Impairment. - To bar an action for divorce based on one year's separation, the mental impairment must be to such extent that defendant does not understand what he or she is engaged in doing and the nature and consequences of the act. Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994).

Trial court properly excluded evidence of defendant's health and her prospects for obtaining medical insurance following divorce. Such evidence is not relevant to the trial court's determination to grant or deny a divorce pursuant to this section. Fletcher v. Fletcher, 104 N.C. App. 225, 408 S.E.2d 753 (1991).

Alimony. - When a husband was granted an absolute divorce on the grounds of separation for one year, and the wife did not file a counterclaim or separate claim for alimony before the trial court entered a judgment of absolute divorce, which did not preserve an alimony claim, a statement in the wife's answer that "the claims for alimony and equitable distribution pending this action are to be reserved" was insufficient to give the trial court jurisdiction, under G.S. 50-11, to consider the wife's amended answer and counterclaim for alimony, despite the husband's answer to that counterclaim, as subject matter jurisdiction could not be conferred by the parties' consent. Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471 (2006), cert. denied, 360 N.C. 536, 633 S.E.2d 826 (2006).

For cases decided under subdivisions (1) through (5) of former G.S. 50-5, which formerly set forth various grounds for divorce, see Wood v. Wood, 27 N.C. 674 (1845); Smith v. Morehead, 59 N.C. 360 (1863); Edwards v. Edwards, 61 N.C. 534 (1868); Barringer v. Barringer, 69 N.C. 179 (1873); Horne v. Horne, 72 N.C. 530, appeal dismissed, 72 N.C. 534 (1875); Long v. Long, 77 N.C. 304 (1877); McQueen v. McQueen, 82 N.C. 471 (1880); Webber v. Webber, 83 N.C. 280 (1880); Steel v. Steel, 104 N.C. 631, 10 S.E. 707 (1889); House v. House, 131 N.C. 140, 42 S.E. 546 (1902); Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97 (1908); Ellett v. Ellett, 157 N.C. 161, 72 S.E. 861 (1911); Cooke v. Cooke, 164 N.C. 272, 80 S.E. 178 (1913); Alexander v. Alexander, 165 N.C. 45, 80 S.E. 890 (1914); Bryant v. Bryant, 171 N.C. 746, 88 S.E. 147 (1916); Sanderson v. Sanderson, 178 N.C. 339, 100 S.E. 590 (1919); Brown v. Brown, 182 N.C. 42, 108 S.E. 380 (1921); Lee v. Lee, 182 N.C. 61, 108 S.E. 352 (1921); Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7 (1925); Nelson v. Nelson, 197 N.C. 465, 149 S.E. 585 (1929); Keys v. Tuten, 199 N.C. 368, 154 S.E. 631 (1930); Reeves v. Reeves, 203 N.C. 792, 167 S.E. 129 (1933); Smithdeal v. Smithdeal, 206 N.C. 397, 174 S.E. 118 (1934); Hyder v. Hyder, 210 N.C. 486, 187 S.E. 798 (1936); Burrowes v. Burrowes, 210 N.C. 788, 188 S.E. 648 (1936); Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5 (1939); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945); Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636 (1945); Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904 (1946); Welch v. Welch, 226 N.C. 541, 39 S.E.2d 457 (1946); Smith v. Smith, 226 N.C. 544, 39 S.E.2d 458 (1946); Norman v. Norman, 230 N.C. 61, 51 S.E.2d 927 (1949); Cunningham v. Cunningham, 234 N.C. 1, 65 S.E.2d 375 (1951); Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951); Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956); Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258 (1972); Owens v. Owens, 28 N.C. App. 713, 222 S.E.2d 704, cert. denied, 290 N.C. 95, 225 S.E.2d 324 (1976).

Applied in Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540 (1939); Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737 (1948); Deaton v. Deaton, 237 N.C. 487, 75 S.E.2d 398 (1953); O'Briant v. O'Briant, 239 N.C. 101, 79 S.E.2d 252 (1953); Whitener v. Whitener, 255 N.C. 731, 122 S.E.2d 705 (1961); Hutchins v. Hutchins, 260 N.C. 628, 133 S.E.2d 459 (1963); Richardson v. Richardson, 261 N.C. 521, 135 S.E.2d 532 (1964); Jones v. Jones, 261 N.C. 612, 135 S.E.2d 554 (1964); Ponder v. Ponder, 32 N.C. App. 150, 230 S.E.2d 786 (1977); Gerringer v. Gerringer, 42 N.C. App. 580, 257 S.E.2d 98 (1979); In re Hayes, 43 N.C. App. 515, 259 S.E.2d 327 (1979); Wilhelm v. Wilhelm, 43 N.C. App. 549, 259 S.E.2d 319 (1979); Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984); Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984).

Cited in Teasley v. Teasley, 205 N.C. 604, 172 S.E. 197 (1934); Smithdeal v. Smithdeal, 206 N.C. 397, 174 S.E. 118 (1934); Long v. Long, 206 N.C. 706, 175 S.E. 85 (1934); State v. Henderson, 207 N.C. 258, 176 S.E. 758 (1934); Campbell v. Campbell, 207 N.C. 859, 176 S.E. 250 (1934); Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328 (1935); Brown v. Brown, 213 N.C. 347, 196 S.E. 333 (1938); Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945); Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950); McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138 (1951); Livingston v. Livingston, 235 N.C. 515, 70 S.E.2d 480 (1952); Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956); Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614 (1956); Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958); Sears v. Sears, 253 N.C. 415, 117 S.E.2d 7 (1960); Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); Hamilton v. Hamilton, 296 N.C. 574, 251 S.E.2d 441 (1979); Wise v. Wise, 42 N.C. App. 5, 255 S.E.2d 570 (1979); O'Hara v. O'Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980); McCall v. Harris, 55 N.C. App. 390, 285 S.E.2d 335 (1982); Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984); Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984); Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110 (1987); Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996); Daniel v. Daniel, 132 N.C. App. 217, 510 S.E.2d 689 (1999); Coleman v. Coleman, 1 82 N.C. App. 25, 641 S.E.2d 332 (2007); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013); Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

II. SEPARATION.

Editor's Note. - Many of the cases below were decided prior to the 1987 amendment to this section, providing that isolated incidents of sexual intercourse shall not toll the statutory period for divorce predicated on one year separation. As to resumption of marital relations, see G.S. 52-10.2.

Parties Must Have Lived Separate and Apart for One Year. - The material aspect of this statute is the requirement that the parties have lived separate and apart for one year prior to institution of the suit. Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476 (1983).

The expression used in Byers v. Byers, 222 N.C. 298, 22 S.E.2d (1942), "that the bare fact of living separate and apart for the period of two years (now one year); standing alone, will not constitute a cause of action for divorce," should be viewed in the light of its setting, and construed accordingly. It was not intended as a delimitation of the statute. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943).

Separation Requirement Applies to Year Prior to Institution of Suit. - The requirement that parties live separate and apart for one year applies to the year prior to institution of the suit. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

The separation contemplated by this section is apparently unrestricted. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945).

Mutual Agreement to Separate Is Not Required. - A charge by the court to the jury that the living separate and apart means living separate and apart under mutual agreement only, was erroneous, entitling plaintiff to a new trial. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902 (1942), distinguishing Parker v. Parker, 210 N.C. 264, 186 S.E. 346 (1936), decided under prior wording of section. See 15 N.C.L. Rev. 348 (1937).

In order to be entitled to a divorce, a plaintiff need not show that a marital separation for the statutory period was by mutual agreement or under a decree of court. Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355 (1972).

Husband's physical separation from his wife for the statutory one-year period of G.S. 50-6 and his accompanying intention to end the marriage were sufficient to entitle him to an absolute divorce, even though the wife did not know of his intention to end the marriage until less than a year before the husband filed for divorce; there was no requirement under G.S. 50-6 that the remaining spouse have knowledge of the other party's intention to cease cohabitation. Smith v. Smith, 151 N.C. App. 130, 564 S.E.2d 591 (2002).

But Was Required Formerly. - Before the 1937 amendment, which struck out of this section the phrase "either under deed of separation or otherwise," it was held that while the applicant need not be the injured party, the statute did not authorize a divorce where the husband had separated himself from his wife, or the wife had separated herself from her husband, without cause and without agreement, express or implied. Lee v. Lee, 182 N.C. 61, 108 S.E. 352 (1921); Parker v. Parker, 210 N.C. 264, 186 S.E. 346 (1936); Hyder v. Hyder, 210 N.C. 486, 187 S.E. 798 (1936); Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768 (1936).

This section contains no requirement that separation of the parties be voluntary. Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974). But see Williams v. Williams, 224 N.C. 91, 29 S.E.2d 39 (1944), holding that the separation under this section must be voluntary in its inception, and Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945), holding that "separation" would not include an involuntary living apart, where there had been no previous separation, such as might arise from the incarceration or insanity of one of the parties.

But This Section Is Inapplicable Where Separation Is Due to Insanity of Defendant. - Divorce on the grounds of two years' (now one year's) separation under this section cannot be maintained when the separation is due to the insanity or mental incapacity of defendant spouse, the sole remedy in such instance being under former G.S. 50-5(6) (recodified as G.S. 50-5.1). Lawson v. Bennett, 240 N.C. 52, 81 S.E.2d 162 (1954); Moody v. Moody, 253 N.C. 752, 117 S.E.2d 724 (1961).

To bar an action for divorce based on two years' (now one year's) separation, the mental impairment must be to such an extent that defendant does not understand what he or she is engaged in doing and the nature and consequences of the act. Moody v. Moody, 253 N.C. 752, 117 S.E.2d 724 (1961).

"Judicial Separation" Included. - A legal separation for the requisite period of two years (now one year) is ground for divorce under this section. The separation here contemplated includes a "judicial separation" as well as one brought about by the act of the parties, or one of them. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444 (1943).

A separation by act of the parties, or one of them, or under order of court a mensa et thoro, suffices to meet the terms of this section. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945).

The effect of a judgment granting a divorce a mensa et thoro was to legalize the separation of the parties which theretofore had been caused by the husband's actions, and after two years (now one year) from the date of such judgment, the husband could proceed to an absolute divorce. Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964). See also, Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

The effect of a divorce a mensa et thoro obtained by the wife on the ground that her husband abandoned her, was to legalize their separation from the date of such judgment; and in such case the husband, after two years (now one year) from the date of such judgment, could proceed to an absolute divorce. Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525 (1962).

A judgment in an action instituted under former G.S. 50-16 decreeing that the husband had willfully abandoned the wife and awarding her support and maintenance constituted a judicial separation which, two years (now one year) thereafter, would permit the husband to obtain an absolute divorce. Rouse v. Rouse, 258 N.C. 520, 128 S.E.2d 865 (1963); Wilson v. Wilson, 260 N.C. 347, 132 S.E.2d 695 (1963).

The pendente lite order in the wife's action for divorce from bed and board legalized the separation between the husband and wife, since it provided not only for alimony pendente lite and child custody, but also that the wife have the sole use and peaceful and undisturbed possession of the residence, and such separation having continued for the requisite one year thereafter, the plaintiff-husband became entitled to a divorce. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976).

What Constitutes Legalized Separation. - Either an action for a divorce a mensa et thoro, an action for alimony without divorce under former G.S. 50-16, or a valid separation agreement may constitute a legalized separation which thereafter will permit either of the parties to obtain an absolute divorce on the ground of one year's separation. Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974).

Valid separation agreement legalizes separation from and after the date thereof. Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974).

To be valid a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968).

Until deed of separation is rescinded, defendant cannot attack legality of separation or obtain alimony from plaintiff. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968).

Effect of Resumption of Cohabitation upon Separation Agreement. - When separated spouses who have executed a separation agreement resume living together in the home which they occupied before the separation, they hold themselves out as man and wife in the ordinary acceptation of the descriptive phrase. Irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinds their separation agreement insofar as it had not been executed. Further, a subsequent separation will not revive the agreement. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

The same public policy which will not permit spouses to continue to live together in the same home, holding themselves out to the public as husband and wife, to sue each other for an absolute divorce on the ground of separation, or to base the period of separation required for a divorce on any time they live together, will also nullify a separation agreement if the parties resume marital cohabitation. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

The heart of a separation agreement is the parties' intention and agreement to live separate and apart forever, and when a husband and wife enter into a deed of separation the policy of the law is that they are to live separate. Therefore, they void the separation agreement if they reestablish a matrimonial home. In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).

Sexual intercourse between a husband and wife after the execution of separation agreement voids the contract. Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978). But see now G.S. 52-10.2

Where a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984).

Grounds for Attacking Deed of Separation. - A married woman may attack the certificate of her acknowledgment and privy examination respecting her execution of a deed of separation, inter alia, upon the grounds of her mental incapacity, infancy, or the fraud of the grantee. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968).

Effect of Decree Denying Alimony. - If a separation is legalized by an award of alimony without divorce, there is no sound reason why it should not also be legalized by a decree denying alimony based upon a finding of no dependency. In each case the court has considered and determined the respective rights and obligations of the separated parties insofar as support is concerned. In neither case is the court able to mend the broken marriage or to force the parties to live together if either persists in continuing to live apart. Cook v. Cook, 41 N.C. App. 156, 254 S.E.2d 261 (1979).

The separation of the parties became legalized by the entry of the judgment which denied defendant alimony and by entry of the order which awarded her possession of the house. The parties having lived separate and apart for more than one year after their separation thus became legalized, plaintiff was entitled to maintain an action for an absolute divorce under this section. The adjudication made in the prior action that plaintiff had originally wrongfully abandoned the defendant was not effective as a bar in the later action. Cook v. Cook, 41 N.C. App. 156, 254 S.E.2d 261 (1979).

Separation means cessation of cohabitation, and cohabitation means living together as man and wife, though not necessarily implying sexual relations. Cohabitation includes other marital responsibilities and duties. Dudley v. Dudley, 225 N.C. 83, 33 S.E.2d 489 (1945); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945); In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976); Tuttle v. Tuttle, 36 N.C. App. 635, 244 S.E.2d 447 (1978).

Physical Separation Must Be Accompanied by Intention to Cease Cohabitation. - A husband and wife live separate and apart for the prescribed period within the meaning of this section when, and only when, these two conditions concur: (1) They live separate and apart physically for an uninterrupted period of two years (now one year); and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951); Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525 (1962); Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355 (1972).

The bare fact of living separate and apart for the period of two years (now one year), standing alone, will not constitute a cause of action for divorce. There must be at least an intention on the part of one of the parties to cease cohabitation, which must be shown to have existed at the time alleged as the beginning of the separation period. It must appear that the separation is with that definite purpose on the part of at least one of the parties. The exigencies of life and the necessity of making a livelihood may sometimes require that the husband shall absent himself from the wife for long periods, a situation which was not contemplated by the law as a cause of divorce in fixing the period of separation. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902 (1942).

The words "separate and apart," as used in this section, mean that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976); Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476 (1983).

Trial court did not err in finding a husband and wife were not separated at the time of the wife's marital misconduct, as defined in G.S. 50-16.1A(3)(a), thereby precluding an award of alimony to the wife under G.S. 50-16.3A(a), because even though there was some physical separation of the parties after a choking incident involving the parties' son, neither party expressed to the other they wanted to separate and the husband continued to maintain all of his belongings at the marital residence; although the phrase "the date of separation" as used in G.S. 50-16.3A(a) was not defined, the phrase "separate and apart" as used in G.S. 50-6 meant there had to be a physical separation and an intention on the part of at least one of the parties to cease matrimonial cohabitation. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Evidence of Conjugal Relations Within Statutory Period Before Action. - Sexual relations between spouses separated for less than one year invalidates those obligations of the parties, pursuant to a separation agreement, that are contingent upon the requirement that the parties "live continuously separate and apart" for one year. Higgins v. Higgins, 86 N.C. App. 513, 358 S.E.2d 553 (1987), aff'd, 321 N.C. 482, 364 S.E.2d 426 (1988).

Evidence that within the statutory period before the institution of the divorce action defendant visited plaintiff at Army camp and plaintiff visited defendant on furloughs, and that at such times they cohabitated as man and wife, was sufficient to negative the conclusion that conjugal relations had ceased for the period prescribed by this section, and supported verdict in defendant's favor and judgment denying plaintiff's suit for divorce on the grounds of two years' (now one year's) separation. Mason v. Mason, 226 N.C. 740, 40 S.E.2d 204 (1946), decided prior to the 1987 amendment to this section.

The discontinuance of sexual relations is not in itself a living "separate and apart" within the meaning of the statute, and a divorce will be denied where it appears that, during the period relied upon, the parties had lived in the same house. Dudley v. Dudley, 33 S.E.2d 489 (1945).

Effect of Continuing Support of Spouse. - This section does not contemplate, as essential, a repudiation of all marital obligations, and the fact that the husband has supported the wife will not defeat his action. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902 (1942).

If a plaintiff in a divorce action on grounds of separation contributes to the support of his wife, solely in an attempt to fulfill the obligation imposed by statute, his conduct is not inconsistent with a legal separation; but if he makes such payments in recognition of his marital status and in discharge of his marital obligations, there is no living separate and apart within the meaning of the statute. Williams v. Williams, 224 N.C. 91, 29 S.E.2d 39 (1944).

When Requirements for Valid Separation Not Satisfied. - The law delineates two circumstances under which the law will hold spouses to have failed to satisfy the requirements of a valid separation: first, sexual activity between the parties, and, second, such association between the parties as to induce others to regard them as living together. Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393 (1980), decided prior to the 1987 amendment to this section.

Casual and isolated social acts between separated spouses do not as a matter of law create a holding out as man and wife. Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393 (1980).

Isolated or casual acts of sexual intercourse between separated spouses toll the statutory period required for divorce predicated on separation. Pitts v. Pitts, 54 N.C. App. 163, 282 S.E.2d 488 (1981), decided prior to the 1987 amendment to this section.

Question of Resumption of the Conjugal Relation After Separation Is for Jury. See Reynolds v. Reynolds, 210 N.C. 554, 187 S.E.2d 768 (1936).

Mutuality of Intent to Reconcile Is Essential Where Evidence Conflicts. - When the evidence is conflicting, the issue of the parties' mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984); Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, cert. denied, 314 N.C. 663, 335 S.E.2d 493 (1985).

Separation May Not Be Based on Evidence Showing Cohabitation. - For the purposes of obtaining a divorce under this section, separation may not be predicated upon evidence which shows that during the statutorily prescribed period the parties have cohabited as husband and wife. Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, cert. denied, 314 N.C. 663, 335 S.E.2d 493 (1985).

Husband's return to the marital home for a 10-day period, during which time he, inter alia, never had any sexual relations with his wife, was constantly looking for work, and did not otherwise represent himself to have resumed the marital relationship, did not constitute a resumption of marital cohabitation such as to invalidate the parties' separation agreement and bar divorce on the grounds of living separate and apart for one year. Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, cert. denied, 314 N.C. 663, 335 S.E.2d 493 (1985).

Resumption of the marital relation is not inherently secretive and spouses are competent to testify about it. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984).

"Inclination and Opportunity" Rule Inapplicable to Proof of Resumption of Marital Relations. - The "inclination and opportunity" concept allows a presumption of adulterous sexual intercourse if adulterous inclination and opportunity are shown. The rule applies only to cases of alleged adultery, because adultery is an illegal act which by its very nature is difficult to prove. Such justification of the rule for adultery cases is nonexistent for proof of resumption of marital relations between separated spouses, an act which is not against the law but which merely breaks a contract between the spouses. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984).

Complaint must state a date of separation to establish the general time frame for divorce based on a year's separation. Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476 (1983).

III. FAULT.

.

Either party may secure an absolute divorce under this section, even though the applicant is the party who commits the wrong, as granting divorces is exclusively statutory and this is an independent act of the General Assembly. Long v. Long, 206 N.C. 706, 175 S.E. 85 (1934); Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902 (1942).

Either party may bring an action for absolute divorce under this section, and the jury's finding that defendant did not abandon plaintiff without cause did not preclude judgment in plaintiff's favor. Campbell v. Campbell, 207 N.C. 859, 176 S.E. 250 (1934).

Plaintiff Need Not Establish That He Is Injured Party. - Where the husband sues the wife for an absolute divorce upon the ground of two years' (now one year's) separation under this section, he is not required to establish as a constituent element of his cause of action that he is the injured party. Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889 (1962); Overby v. Overby, 272 N.C. 636, 158 S.E.2d 799 (1968).

In an action for absolute divorce under this section, the plaintiff need not allege and prove that he or she is an injured party. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976).

Recrimination does not constitute a bar to plaintiff's action for divorce based on one year's separation. Smith v. Smith, 42 N.C. App. 246, 256 S.E.2d 282 (1979).

For case discussing the elimination of the defense of recrimination based on former G.S. 50-5 by Session Laws 1977, c. 817, s. 1, effective Aug. 1, 1977, and recrimination based on G.S. 50-7 by Session Laws 1977, 2nd Sess., c. 1190, s. 1, effective June 16, 1978, see Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630 (1980).

This section is a "no-fault" statute. Recriminatory defenses are not applicable. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

Where Action Is Brought After July 31, 1977. - The defense of recrimination cannot be asserted in actions for absolute divorce instituted in this State after July 31, 1977, even if the alleged adulterous acts on the part of the plaintiff occurred after the separation of the parties. Edwards v. Edwards, 43 N.C. App. 296, 259 S.E.2d 11 (1979).

Even If Acts Occurred Prior to July 31, 1977. - Recrimination cannot be asserted as a defense in actions for absolute divorce based on a year's separation brought after July 31, 1977. Therefore, since plaintiff's action was begun on August 30, 1978, the defense of recrimination in the form of abandonment would not be available to defendant, even though the alleged abandonment occurred prior to the effective date of the statute. Boone v. Boone, 44 N.C. App. 79, 259 S.E.2d 921 (1979).

But Recrimination Could Be Pleaded in Action Brought Prior to Amendment. - Where husband filed action for divorce pursuant to this section on June 1, 1976, elimination of recriminatory defenses based on G.S. 50-7 by Session Laws 1977, 2nd Sess., c. 1190, s. 1, effective June 16, 1978, would not be applied retroactively so as to bar wife from pleading such defenses. Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630 (1980).

Defense of Recrimination Prior to Amendment of Section. - For cases decided under the doctrine of recrimination, which allowed a defendant in a divorce action to set up as a defense in bar of plaintiff's action that plaintiff was guilty of misconduct which in itself would have been a ground for divorce, prior to elimination of the defense of recrimination by the amendments to this section by Session Laws 1977, c. 817, s. 1, and Session Laws 1977, 2nd Sess., c. 1190, s. 1, see Reynolds v. Reynolds, 208 N.C. 428, 181 S.E. 338 (1935); Hyder v. Hyder, 210 N.C. 486, 187 S.E. 798 (1936); Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943); Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471 (1943); Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945); Welch v. Welch, 226 N.C. 541, 39 S.E.2d 457 (1946); Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525 (1962); Edmisten v. Edmisten, 265 N.C. 488, 144 S.E.2d 404 (1965); Rupert v. Rupert, 15 N.C. App. 730, 190 S.E.2d 693, cert. denied, 282 N.C. 153, 191 S.E.2d 759 (1972); Gray v. Gray, 16 N.C. App. 730, 193 S.E.2d 492 (1972); Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974); Heilman v. Heilman, 24 N.C. App. 11, 210 S.E.2d 69 (1974).

For cases as to defense of abandonment under this section prior to elimination of defense of recrimination, see Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943); Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471 (1943); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952); McLean v. McLean, 237 N.C. 122, 74 S.E.2d 320 (1953); Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109 (1953); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957); Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373 (1962); Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525 (1962); Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889 (1962); O'Brien v. O'Brien, 266 N.C. 502, 146 S.E.2d 500 (1966); Campbell v. Campbell, 270 N.C. 298, 154 S.E.2d 101 (1967); Overby v. Overby, 272 N.C. 636, 158 S.E.2d 799 (1968); Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968); McLeod v. McLeod, 1 N.C. App. 396, 161 S.E.2d 635 (1968); Rupert v. Rupert, 15 N.C. App. 730, 190 S.E.2d 693, cert. denied, 282 N.C. 153, 191 S.E.2d 759 (1972); Harrington v. Harrington, 22 N.C. App. 419, 206 S.E.2d 742, rev'd on other grounds, 286 N.C. 260, 210 S.E.2d 190 (1974); Heilman v. Heilman, 24 N.C. App. 11, 210 S.E.2d 69 (1974).

IV. DOMICILE OR RESIDENCE.

.

The six months residency requirement means the six months next preceding commencement of the action. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, cert. denied, 317 N.C. 701, 347 S.E.2d 36 (1986).

Separate Domicile for Wife. - North Carolina divorce statutes recognize the legality of a separate domicile or residence for the wife. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492 (1969).

To establish a domicile, there must be a residence and the intention to make it a home or to live there indefinitely. Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572 (1947).

Plaintiff must be physically present in this State and have the intention of making his residence here a permanent abiding place in order to be domiciled here within the meaning of this section, making residence in this State for six months a jurisdictional prerequisite to the institution of an action for divorce on the grounds of two years' (now one year's) separation. Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572 (1947).

The fact that a person obtains an automobile license and ration cards in another state, giving such state as his residence, while competent on the question of domicile, is not conclusive. Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572 (1947).

Finding of Court as to Residence. - The finding of the court, supported by evidence, that plaintiff was physically present in this State for more than six months prior to instituting an action for divorce and that he regarded his residence here as a permanent home was sufficient to support a judgment denying defendant's motion in the cause to set aside the divorce decree on the ground of want of the jurisdictional requirement of domicile. Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572 (1947).

District court properly exercised jurisdiction over the subject matter of the parties' divorce action as in the State of North Carolina subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court's finding residence by one of the parties for the requisite length of time and verification of the pleadings. In the case at issue, the plaintiff husband sufficiently alleged that he was a citizen and resident of North Carolina for more than six months next preceding the institution of the action and had lived separate and apart from the wife for more than one year next preceding the institution of the action without resuming the marital relationship, with those district court findings being supported by the husband's verified complaint, which was treated as an affidavit. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653 (2008).

How Decree Attacked on Ground of Nonresidence. - The proper procedure to attack a divorce decree on the ground that plaintiff had not been a resident of the State for six months preceding the institution of the action is by motion in the cause. Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572 (1947).

Defect in Jurisdiction Held Insignificant Since Either Party Could Bring Proceeding. - Although the court improperly found jurisdiction over defendant, this error was insignificant, in that this section allows a divorce proceeding on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570 (1983).

Opinions of Attorney General

Incompetency Following Separation. - A plaintiff may pursue a divorce option under this section where, after the parties have separated, the defendant sustains injuries bringing into question his competency. G.S. 50-5.1 is not available in such a case. See opinion of Attorney General to Mr. James Lee Knight, Clerk of Superior Court, Guilford County, 55 N.C.A.G. 82 (1986).


§ 50-7. Grounds for divorce from bed and board.

The court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either party:

  1. Abandons his or her family.
  2. Maliciously turns the other out of doors.
  3. By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under G.S. 50B-1, et seq.
  4. Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.
  5. Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
  6. Commits adultery.

History

(1871-2, c. 193, s. 36; Code, s. 1286; Rev., s. 1562; C.S., s. 1660; 1967, c. 1152, s. 7; 1971, c. 1185, s. 22; 1979, c. 561, s. 5; 1985, c. 574, ss. 1, 2.)

Cross References. - For provision that in an action brought pursuant to this section, if either or both parties have sought and obtained marital counselling by a licensed physician, licensed psychologist, or certified marital family therapist, the person rendering such counselling shall not be competent to testify in the action concerning information acquired while rendering such counselling, see G.S. 8-53.6.

As to effect of divorce a mensa et thoro on right to administer spouse's estate, see G.S. 31A-1.

As to necessary allegations, see G.S. 50-8 and note.

As to resumption of marital relations, see G.S. 52-10.2.

Legal Periodicals. - For case law survey on alimony without divorce, see 41 N.C.L. Rev. 459 (1963).

For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For note discussing application of the compulsory counterclaim provision of G.S. 1A-1, Rule 13 in divorce suits, see 57 N.C.L. Rev. 459 (1979).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For note on separability of support and property provisions in ambiguous separation agreements, see 16 Wake Forest L. Rev. 152 (1980).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

For article, "The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do," see 85 N.C.L. Rev. 1761 (2007).

For article, "The Best Interests of the Child: Article & Empirical Study: it's the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Medication in High-Conflict Custody Cases," see 43 Wake Forest L. Rev. 505 (2008).

For article, "No Exit: The Problem of Same-Sex Divorce," 90 N.C.L. Rev. 73 (2011).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

CASE NOTES

I. IN GENERAL.

A divorce from bed and board is nothing more than a judicial separation, that is, an authorized separation of husband and wife. Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790 (1961); Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69 (1978).

Suit for divorce from bed and board is not exclusively a means for collection of alimony, but also a means of establishing a certain legal relationship. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Applicability of G.S. 50-10. - G.S. 50-10 applies to a divorce from bed and board under this section. Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790 (1961).

Finality. - A divorce from bed and board is a final order. There is no such thing as a divorce from bed and board pendente lite. Kale v. Kale, 25 N.C. App. 99, 212 S.E.2d 234, cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975).

No Action for "No Fault" Divorce from Bed and Board. - Where a husband and wife are living together and their children are in their joint custody and are being adequately supported by the supporting spouse, in the absence of allegations which would support an award of alimony or divorce, one spouse may not maintain an action to evict the other, get sole custody of the children, and obtain an order for child support; therefore, the trial court erred in denying defendant's motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted, since the complaint attempted to assert, and the court allowed, what appeared to be a "no fault" divorce from bed and board, and such an action does not lie in this State. Harper v. Harper, 50 N.C. App. 394, 273 S.E.2d 731 (1981).

No Requirement for Separation of Parties. - There is no requirement for a separation of the parties in the sense of one moving out of the home before an action can be instituted and prosecuted under this section for divorce from bed and board. Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69 (1978).

A wife may pursue an action for divorce from bed and board and alimony while her husband is staying in the same house with her. Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69 (1978).

Plaintiff Must Petition for Divorce a Mensa. - A decree of divorce a mensa will not be granted in an action where plaintiff petitioned for absolute divorce. Morris v. Morris, 75 N.C. 168 (1876).

Allegations in a cross action for divorce a mensa et thoro, set up by defendant wife in husband's action for divorce, were held sufficient. Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554 (1938).

It is not necessary for the plaintiff to establish all of the grounds for divorce a mensa et thoro alleged in her complaint in order to sustain her action. It is sufficient if she establishes the defendant's guilt of any of the acts that would constitute a cause of action for divorce from bed and board as enumerated in this section. Deaton v. Deaton, 234 N.C. 538, 67 S.E.2d 626 (1951); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

To obtain a divorce from bed and board the law requires that defendant establish only one of the grounds specified in this section. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967).

Failure to Establish Ground for Divorce. - Where in his stipulation to the existence of ground for awarding alimony defendant did not specify which ground, of the ten enumerated in former G.S. 50-16.2, existed to support an alimony award, plaintiff could not automatically assume that the ground stipulated was one of the five grounds also listed in this section. Thus, as she presented no evidence establishing one of the grounds in this section, plaintiff failed to meet her burden of proof as to this issue, and the trial court properly denied her request for a divorce from bed and board. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

Grounds Available to Husband as Well as Wife. - The grounds for divorce a mensa given by this section are available to the husband as well as to the wife, or as stated by the express language of the statute, to "the injured party." Brewer v. Brewer, 198 N.C. 669, 153 S.E. 163 (1930); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

Only the party injured is entitled to a divorce under this section. Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492 (1937). See also, Carnes v. Carnes, 204 N.C. 636, 169 S.E. 222 (1933); Lawrence v. Lawrence, 226 N.C. 624, 39 S.E.2d 807 (1946).

When the misconduct of the complaining party is calculated to and does reasonably induce the conduct of defendant relied upon in an action for divorce a mensa et thoro, he or she, as the case may be, will not be permitted to take advantage of his or her own wrong, and the decree of divorce will be denied. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943); Pressley v. Pressley, 261 N.C. 326, 134 S.E.2d 609 (1964).

Plaintiff Must Prove Unprovoked Misconduct by Defendant. - To establish the existence of a ground listed in this section, plaintiff must allege and prove acts of misconduct by defendant and show that this misconduct was not provoked by plaintiff's actions. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

Effect of Delay in Bringing Action. - An unreasonable delay by one party, after a probable knowledge of the criminal conduct of the other, will, if unaccounted for, preclude such party from obtaining a decree for a separation from bed and board. Whittington v. Whittington, 19 N.C. 64 (1836).

But a delay of seven years in filing a petition was sufficiently accounted for by allegations that at the happening of the matters relied upon for divorce, the petitioner was a nonresident of the State, and was at the time of suit a pauper. Schonwald v. Schonwald, 62 N.C. 215 (1867).

Evidence of Acts Occurring "More Than Ten Years Ago". - Where a wife sues her husband for divorce a mensa et thoro, under this section, it is not error to admit on the trial evidence of his misconduct occurring "more than ten years ago" when it is a part of the whole course of his dealings coming down to within six months of the beginning of the action. Page v. Page, 167 N.C. 346, 83 S.E. 625 (1914).

Condonation is an affirmative defense to be alleged and proved by the party relying upon it, and less may be sufficient to destroy condonation than to found an original suit. Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

Resumption of Marital Relations as Condonation. - Nothing else appearing, the resumption of marital relations after a separation imports a condonation of previous offenses. Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

Mere Forgiveness Does Not Establish Condonation. - Evidence merely of forgiveness by the plaintiff, in her action for divorce a mensa et thoro against her husband, is insufficient to establish condonation. Page v. Page, 167 N.C. 346, 83 S.E. 625 (1914); Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917).

Condonation is forgiveness upon condition, and the condition is that the party forgiven will abstain from like offenses afterwards. If the condition is violated, the original offense is revived. Lassiter v. Lassiter, 92 N.C. 129 (1885); Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

Repetition of the offense nullifies the previous condonation. Collier v. Collier, 16 N.C. 352 (1829); Gordon v. Gordon, 88 N.C. 45 (1883); Page v. Page, 167 N.C. 346, 83 S.E. 625 (1914).

Reconciliation Is Not a Defense to a Divorce from Bed and Board. - A divorce from bed and board is judicial separation. Reconciliation while the action is pending is not a defense to a divorce from bed and board, unlike other concepts such as condonation, that is, the forgiveness of a marital offense constituting a ground for divorce. Howell v. Tunstall, 64 N.C. App. 703, 308 S.E.2d 454 (1983).

But Resumption of Marital Relations Destroys Effect of Divorce. - If the parties reconcile and resume cohabitation as man and wife after a divorce from bed and board is granted, the effect of the divorce from bed and board is destroyed. No court action to end such divorce is necessary. Howell v. Tunstall, 64 N.C. App. 703, 308 S.E.2d 454 (1983).

A resumption of marital relations would invalidate a divorce a mensa et thoro. Rouse v. Rouse, 258 N.C. 520, 128 S.E.2d 865 (1963).

Findings of Fact Required. - In an action for divorce from bed and board under this section, the trial court should make adequate findings of facts (i.e. specific acts of misconduct) to support the conclusion of law that the noninjured party has (1) abandoned the family; (2) maliciously turned the other out of doors; (3) endangered the life of the other by cruel or barbarous treatment; (4) offered such indignities to the person of the other as to render his or her condition intolerable; or (5) become an excessive user of alcohol or drugs so that the other's life is burdensome. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

Judgment Invalid Without Finding of Grounds. - Where judgment of divorce from bed and board contained absolutely no finding of the existence of any of the grounds for divorce from bed and board cognizable under this section, the district court was without power or authority, and therefore without jurisdiction, to enter it. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).

Proceeding to set aside invalid divorce decree is not barred by death of one spouse where property rights are involved. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).

Alimony. - Where, in husband's action for divorce a vinculo, the wife sets up a cross action for divorce a mensa, the court has the power to make an order for the payment of alimony upon the jury's determination of the issues in favor of the wife. Norman v. Norman, 230 N.C. 61, 51 S.E.2d 927 (1949).

In an action for divorce, a verified answer and cross action setting forth a cause of action for divorce a mensa is sufficient to sustain an order allowing alimony pendente lite. Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737 (1948).

Every ground for divorce from bed and board also serves as a ground for alimony. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, cert. denied, 312 N.C. 495, 322 S.E.2d 558 (1984).

Applied in Albritton v. Albritton, 210 N.C. 111, 185 S.E. 762 (1936); Sumner v. Sumner, 227 N.C. 610, 44 S.E.2d 40 (1947); Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792 (1963); Adams v. Adams, 262 N.C. 556, 138 S.E.2d 204 (1964); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Blair v. Blair, 44 N.C. App. 605, 261 S.E.2d 301 (1980).

Cited in Brown v. Brown, 205 N.C. 64, 169 S.E. 818 (1933); Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444 (1943); Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946); Bateman v. Bateman, 232 N.C. 659, 61 S.E.2d 909 (1950); Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156 (1951); Livingston v. Livingston, 235 N.C. 515, 70 S.E.2d 480 (1952); Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865 (1952); Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109 (1953); Morgan v. Brooks, 241 N.C. 527, 85 S.E.2d 869 (1955); McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544 (1955); Rowland v. Rowland, 253 N.C. 328, 116 S.E.2d 795 (1960); Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889 (1962); Richardson v. Richardson, 4 N.C. App. 99, 165 S.E.2d 678 (1969); Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969); Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Cook v. Cook, 41 N.C. App. 156, 254 S.E.2d 261 (1979); State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209 (1988); Morrow v. Morrow, 94 N.C. App. 187, 379 S.E.2d 705 (1989); Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989); State v. Byrd, 185 N.C. App. 597, 649 S.E.2d 444 (2007); Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014); Norrell v. Keely, 238 N.C. App. 441, - S.E.2d - (2014).

II. ABANDONMENT.

What Is Abandonment. - One spouse abandons the other where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, aff'd, 301 N.C. 525, 272 S.E.2d 1 (1980); Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781 (1984).

Abandonment under this subdivision is not synonymous with the offense defined in G.S. 14-322. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

Abandonment under this subdivision is not synonymous with the criminal offense defined in G.S. 14-322. In a prosecution under G.S. 14-322, the State must establish (1) a willful abandonment and (2) a willful failure to provide adequate support. Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966).

There is a distinction between criminal abandonment and the matrimonial offense of desertion. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

It is not necessary that the husband should leave the State. Witty v. Barham, 147 N.C. 479, 61 S.E. 372 (1908).

Nor is it necessary for the husband himself to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him, which would constitute abandonment by the husband. Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919 (1946), holding evidence insufficient to show abandonment by husband; Somerset v. Somerset, 3 N.C. App. 473, 165 S.E.2d 33 (1969); Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

It is not necessary, to constitute abandonment of a wife by the husband, that he leave her, but he may constructively abandon her by treating her with such cruelty as to compel her to leave him. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

Continued and Persistent Cruelty or Neglect May Constitute Abandonment. - If a husband, by continued and persistent cruelty or neglect, forces his wife to leave his home, he may himself be guilty of abandonment. Somerset v. Somerset, 3 N.C. App. 473, 165 S.E.2d 33 (1969).

Sleeping in Separate Bedroom Is Not Abandonment. - A husband who has neither left the marital home nor withheld support cannot be found to have abandoned his wife merely by electing to sleep in a separate bedroom. Oakley v. Oakley, 54 N.C. App. 161, 282 S.E.2d 589 (1981).

Nor Is Separation by Mutual Agreement. - Abandonment or desertion, as a marital wrong committed by one spouse against the other, does not occur if the parties live apart by mutual agreement. Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975).

When the complaining spouse has consented to a separation which was not caused by the other's misconduct, the plaintiff cannot obtain a divorce or alimony on the basis of abandonment. Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975).

Unless Induced by Misconduct of One Spouse. - Where the agreement to separate is induced by the misconduct of one spouse, the other can still maintain the charge of voluntary abandonment. Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975).

The consent which will bar divorce on grounds of abandonment is a positive willingness on the part of the complainant - a consent not induced by the misconduct of the other spouse - to cease cohabitation. Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975).

Not Mere Acquiescence in the Inevitable. - Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary or affect the right to divorce or alimony. Nor, under such circumstances, is the innocent party obliged to protest or to exert physical force or other importunity to prevent the other party from leaving. Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975).

Abandonment imports willfulness and maliciously turning the spouse out of doors. Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909 (1946).

Plaintiff Must Prove That Abandonment Was Willful. - Where wife sues husband for a divorce from bed and board upon the ground of abandonment under this section, she must prove as an essential part of her case that her husband has willfully abandoned her. Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952).

When Abandonment Is Justified. - The Supreme Court, in applying the provisions of subdivision (1) of this section, has never undertaken to formulate any all-embracing definition or rule of general application respecting what conduct on the part of one spouse will justify the other in withdrawing from the marital relation, and each case must be determined in large measure upon its own particular circumstances. Ordinarily, however, the withdrawing spouse is not justified in leaving the other unless the conduct of the latter is such as would likely render it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect, and as would constitute ground in itself for divorce at least from bed and board. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923 (1952).

Plaintiff Must Prove Absence of Justification. - Where a spouse seeks to recover alimony on the grounds of abandonment, that spouse has the burden of proving each and every element of abandonment, including the absence of justification. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, aff'd, 301 N.C. 525, 272 S.E.2d 1 (1980).

The burden of proof upon a plaintiff alleging defendant's abandonment is not to negate every possible justification for defendant-husband's leaving, but rather to prove only the absence of conduct on her part which rendered it impossible for him to continue in the marriage. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, aff'd, 301 N.C. 525, 272 S.E.2d 1 (1980).

Withdrawal from Home May Be Abandonment Even If Support Is Paid. - A husband may be deemed to have abandoned his wife within the meaning of subdivision (1) of this section, and so be liable for alimony, notwithstanding the fact that, after cohabitation is brought to an end, he voluntarily provides her with adequate support. Whether his withdrawal from the home, followed by such support, constitutes an abandonment which is ground for suit by the wife for divorce from bed and board, and therefore ground for suit by her for alimony without divorce, depends upon whether his withdrawal from the home was justified by the conduct of the wife. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968), decided under former G.S. 50-16.

A wife is entitled to her husband's society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or may be mitigated by a liberal provision for her support, but if the cohabitation is brought to an end without justification and without the consent of the wife and without the intention of renewing it, the matrimonial offense of desertion is complete. Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

The husband's willful failure to provide adequate support for his wife may be evidence of his abandonment of her, but the mere fact that he provides adequate support for her does not in itself negative abandonment. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957); Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Defendant May Not Defeat Action by Making Voluntary Support Payments. - A defendant may not abandon his wife and defeat an action under this section by making voluntary payments which he may abandon at will. Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852 (1962); Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966).

Acts Held to Constitute Abandonment. - Where a husband drives his wife from his house, or obtains her removal by stratagem, or withholds support from her while there, he is deemed to have abandoned her. Setzer v. Setzer, 128 N.C. 170, 38 S.E. 731 (1901).

A husband who permitted and encouraged certain of his grown children to remain constantly at home in a drunken condition, and allowed them to curse, abuse, and harass his wife at all hours of the day and night, and who told his wife to get her things out of his house, was guilty of such cruel treatment toward his wife as to constitute an abandonment of her. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696 (1956).

Allegations that plaintiff was compelled to leave her husband because of his willful failure and refusal to provide her with support and that his failure was without provocation on her part were sufficient to state a cause of action for alimony without divorce on the ground of abandonment. Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968).

Plaintiff simply moved out of his adjacent apartment and stopped supporting his wife at the same time defendant's earnings ceased and she was entering hospital to undergo surgery; the parties lived together as husband and wife "in the usually accepted sense" until that time at which time plaintiff abandoned defendant. Lin v. Lin, 108 N.C. App. 772, 425 S.E.2d 9 (1993).

Finding of Constructive Abandonment Upheld. - Where the record portrayed defendant as a busy professional who became so completely immersed in his work that, by his conduct, he effectively abandoned his wife and children; additionally, the findings of fact pointed to a pattern of behavior by defendant over a 20-year period where plaintiff was left to her own devices without defendant's assistance in maintaining a family and rearing their children, and, although the court noted that at least 10 years earlier plaintiff wife had told defendant that she needed more of his time and attention and the situation improved somewhat thereafter, it improved only for a short time, these finding supported the court's conclusion that the husband had constructively abandoned his wife. Ellinwood v. Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162 (1989).

Instructions as to Burden of Proof Held Erroneous. - In an action for alimony without divorce on the ground of abandonment, an instruction that the wife had the burden of showing that the husband's separation from her was free of fault on her part and that she was blameless, was erroneous. Likewise, an instruction that plaintiff had the burden of proving that the defendant's separation was wrongful, without charging upon what phase or phases of the evidence defendant's separation would be wrongful, and without defining wrongful except in abstract terms, was insufficient. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923 (1952).

Lapse of seven years from time of separation did not bar a cross action for divorce a mensa on the ground of constructive abandonment, or application for alimony pendente lite, either by laches or any statute of limitation. Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737 (1948).

Prior Action Under This Section Held to Abate Action under G.S. 50-6. - The pendency of a prior action by the wife for a divorce from bed and board upon the ground of abandonment under this section abated a subsequent action by the husband for an absolute divorce upon the ground of two years' (now one year's) separation under G.S. 50-6. Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952).

Question of Custody. - Whether mother abandoned father within the meaning of subdivision (1) of this section was not controlling on the question of custody. Kenney v. Kenney, 15 N.C. App. 665, 190 S.E.2d 650 (1972).

III. MALICIOUSLY TURNING SPOUSE OUT.

.

Subdivision (2) Is an Instance of Abandonment Under Subdivision (1). - The ground for divorce a mensa given the wife under subdivision (2) of this section, because of being maliciously turned out of doors by her husband, is but an instance of wrongful abandonment provided by subdivision (1). Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918).

Adverse Ruling in Previous Action. - A denial of alimony in an independent action for alimony without divorce brought by the wife on grounds that her husband maliciously turned her out of doors would conclude her upon her crossbill setting up the same matter in an action thereafter brought by her husband against her for divorce a vinculo. Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918).

IV. CRUEL TREATMENT.

.

Necessary Allegations Under Subdivisions (3) and (4). - A wife, in alleging a cause of action for divorce from bed and board under subdivisions (3) and (4) of this section, must set out with particularity the wrongful acts of the husband upon which she relies and also that such acts were without adequate provocation on her part. Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420 (1955); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

Allegation of actual physical violence is not required under subdivision (3) of this section. Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904 (1946).

Cruelty and indignities, like other matrimonial offenses, may be condoned. Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

Revival of Cause After Condonation. - Much less cruelty or indignity is sufficient to revive a transaction occurring before the condonation, than to support an original suit for divorce. Lassiter v. Lassiter, 92 N.C. 130 (1885).

Acts Committed More Than 10 Years Before. - A divorce would not be granted for cruel and barbarous treatment where it appeared that the acts complained of were committed more than 10 years before the commencement of the action, and in the meanwhile the parties had continued to reside together. O'Connor v. O'Connor, 109 N.C. 139, 13 S.E. 887 (1891).

Illustrative Cases. - The communication of an infectious disease by the husband to the wife was not sufficient ground under subdivision (3) of this section. Long v. Long, 9 N.C. 189 (1822).

Whipping of wife held cause for divorce in Taylor v. Taylor, 76 N.C. 433 (1877).

For further illustrative cases, see also Griffith v. Griffith, 89 N.C. 113 (1883); Jackson v. Jackson, 11 S.E. 173 (1890).

V. INDIGNITIES.

.

Subdivision (4) Is Remedial. - It would seem that the legislature purposely omitted to specify the particular acts of indignity for which divorces may in all cases be obtained. The matter is left at large under general words, thus leaving the courts to deal with each particular case and to determine it upon its own peculiar circumstances, so as to carry into effect the purpose and remedial object of the statute. Taylor v. Taylor, 76 N.C. 433 (1877); Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911).

Nature of Indignities. - To entitle a wife to a divorce from bed and board under subdivision (4) of this section, the indignity offered by the husband must be such as may be expected to seriously annoy a woman of ordinary sense and temper, and must be repeated or continued so that it may appear to have been done willfully and intentionally or at least consciously by the husband to the annoyance of the wife. Miller v. Miller, 78 N.C. 102 (1878).

Facts in Each Case Are Determinative. - The acts of the husband which will render the wife's condition intolerable and her life burdensome so as to entitle her to a divorce a mensa are largely dependent on the facts in each particular case, including her station in life, temperament, state of health, habits and feelings. Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911).

Allegations and Proof. - Under subdivision (4) of this section plaintiff must set out with particularity the language and conduct on the part of defendant relied upon, and must allege and prove that such acts were without adequate provocation on her part. Lawrence v. Lawrence, 226 N.C. 624, 39 S.E.2d 807 (1946); Best v. Best, 228 N.C. 9, 44 S.E.2d 214 (1947); Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420 (1955); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957); Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964); Butler v. Butler, 1 N.C. App. 356, 161 S.E.2d 618 (1968).

As to necessary allegations and proof under subdivision (4) of this section, see also Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636 (1945).

Plaintiff's Innocence Must Be Shown - Generally. - The complaint must aver, and facts must be found upon which it can be seen, that the plaintiff did not by her own conduct contribute to the wrongs and abuses of which she complains. White v. White, 84 N.C. 340 (1881); Garsed v. Garsed, 170 N.C. 672, 87 S.E. 45 (1915).

In a cross-action under this section, the omission of an allegation that plaintiff's conduct was without provocation on defendant's part was fatal. Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636 (1945).

In North Carolina, a party relying on subdivision (4) must not have provoked the "indignities" of which he complains. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

Same - General Allegation Insufficient. - It is essential that the plaintiff specifically set forth in her complaint the circumstances under which the violence was committed, what her conduct was, and especially what she had done to provoke such conduct on the part of her husband. A general allegation that such conduct was "without cause or provocation on her part" is insufficient. Everton v. Everton, 50 N.C. 202 (1857); O'Connor v. O'Connor, 109 N.C. 139, 13 S.E. 887 (1891); Martin v. Martin, 130 N.C. 27, 40 S.E. 822 (1902).

Failure to Allege and Prove That Husband's Accusations of Infidelity Were False. - In an action for divorce a mensa et thoro and for subsistence, plaintiff alleged that defendant had repeatedly accused her of having sexual relations with her foster father and other men, and her evidence tended to show that all of the specific acts of abuse and misconduct complained of occurred in connection with this accusation. Plaintiff further alleged that she had been faithful and dutiful, and that defendant's acts of abuse and misconduct were without provocation or justification, but did not specifically allege or testify that the accusation was false. It was held that defendant's motion for judgment as of nonsuit should have been allowed, since even if the allegation denying provocation or justification was taken as denial of the charge of infidelity, plaintiff offered no testimony in support of such denial. Lawrence v. Lawrence, 226 N.C. 624, 39 S.E.2d 807 (1946).

Admissible Evidence of Indignities. - In plaintiff's action for divorce from bed and board, the trial court did not err in admitting into evidence testimony concerning defendant's use of pornographic material in the presence of the parties' minor children, defendant's refusal to provide educational support for one of the parties' adult children, and defendant's sexual advances upon the parties' daughter, since such evidence was relevant to show the circumstances surrounding plaintiff's claim that defendant's acts constituted such indignities to plaintiff's person that her condition was rendered intolerable and her life burdensome. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981).

Grant of Divorce Reversed Where Husband's Behavior Contributed to Wife's Criticism and Accusations. - In a divorce action under subdivision (4), the judge expressly concluded that the plaintiff-husband was not blameless and the judge's findings compelled the conclusion that the husband's conduct - rescue squad activities despite wife's suspicions of unfaithfulness, public name calling - so contributed to his wife's criticism and accusations and to the parties' repeated arguments that the grant of divorce had to be reversed. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

Illustrative Cases. - Husband's persistent charge of adultery against a virtuous wife, accompanied by a contemptuous declaration that she was no longer his wife and by abandonment of her bed, was such an indignity to wife's person as would entitle her to a partial divorce and to alimony. Everton v. Everton, 50 N.C. 202 (1857).

Where petitioner alleged that her husband had become jealous of her without cause, had shaken his fist in her face and threatened her, and had declared to her face and published to the neighborhood that the child with which she was pregnant was not his, that her condition from such treatment had become intolerable and her life burdensome, and that she had been compelled to quit his house and seek the protection of her father, it was held that she had set out enough to entitle her to alimony pendente lite. Erwin v. Erwin, 57 N.C. 82 (1858).

Where a drunken husband cursed his wife and drove her from his house, and by demonstrations of violence caused her to leave the bedside of a dying child and seek safety and protection at a distance of several miles, this was sufficient cause for divorce under subdivision (4) of this section. Scoggins v. Scoggins, 85 N.C. 348 (1881).

A divorce from bed and board will be granted the wife if it is shown that the husband made foul and injurious accusations, refused to bed with wife, and denied that she was his wife. Green v. Green, 131 N.C. 533, 42 S.E. 954 (1902).

When in an action by a wife for divorce a mensa there was evidence tending to show that plaintiff, in her married life, was free from blame and that defendant's conduct was a long course of neglect, cruelty, humiliation, and insult, repeated and persisted in, it was sufficient to bring the cause within the words of subdivision (4) of this section, that defendant had offered "such indignities to [wife's] person as to render her condition intolerable and her life burdensome." Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911).

Allegations that husband had been living in adultery, had repeatedly avowed his loss of affection for and his desire to be rid of his wife, had ejected her from his bed, and had finally ordered her from his home, saying that he never intended to live with her again, stated a cause of action. Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904 (1946).

In plaintiff's action for divorce from bed and board on the ground that defendant had inflicted such indignities upon her as to render her life burdensome, evidence was sufficient to enable the jury to find for plaintiff where it tended to show that at some time prior to 1969 defendant began sleeping and spending the majority of his time in the basement of the parties' home, isolated from plaintiff; that upon moving into the basement, defendant withdrew from active participation in the resolution of familial and household problems; that defendant viewed hardcore pornographic material in his basement and permitted his minor children to view such material; that during 1973 and 1974 defendant requested that plaintiff indulge him in various unnatural sexual desires; and that subsequent to 1975 defendant was absent from the parties' home every weekend and all holidays until September 24, 1976, when he left the home for good. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981).

As a ground for the divorce, the trial court did not err in finding that the wife subjected the husband to indignities that made the husband's life burdensome and the husband's condition intolerable under G.S. 50-7(4); there was evidence that the wife (1) was involved in an extramarital affair, (2) wrecked the marital home after being ordered to leave it, (3) twice had the husband removed after filing false domestic violence proceedings, (4) was physically violent to the husband, (5) left the husband on three occasions without telling the husband where she was going, and (6) did not return for three or four nights. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005).

VI. EXCESSIVE USE OF ALCOHOL OR DRUGS.

.

Allegations of Habitual Drunkenness. - Allegations in complaint that defendant had been an habitual drunkard during the prior three years were sufficient to state a cause of action for divorce from bed and board under subdivision (5) of this section. Best v. Best, 228 N.C. 9, 44 S.E.2d 214 (1947).


§ 50-8. Contents of complaint; verification; venue and service in action by nonresident; certain divorces validated.

In all actions for divorce the complaint shall be verified in accordance with the provisions of Rule 11 of the Rules of Civil Procedure and G.S. 1-148. The plaintiff shall set forth in his or her complaint that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint, and that the facts set forth therein as grounds for divorce, except in actions for divorce from bed and board, have existed to his or her knowledge for at least six months prior to the filing of the complaint: Provided, however, that if the cause for divorce is one-year separation, then it shall not be necessary to allege in the complaint that the grounds for divorce have existed for at least six months prior to the filing of the complaint; it being the purpose of this proviso to permit a divorce after such separation of one year without awaiting an additional six months for filing the complaint: Provided, further, that if the complainant is a nonresident of the State action shall be brought in the county of the defendant's residence, and summons served upon the defendant personally or service of summons accepted by the defendant personally in the manner provided in G.S. 1A-1, Rule 4(j)(1). Notwithstanding any other provision of this section, any suit or action for divorce heretofore instituted by a nonresident of this State in which the defendant was personally served with summons or in which the defendant personally accepted service of the summons and the case was tried and final judgment entered in a court of this State in a county other than the county of the defendant's residence, is hereby validated and declared to be legal and proper, the same as if the suit or action for divorce had been brought in the county of the defendant's residence.

In all divorce actions the complaint shall set forth the name and age of any minor child or children of the marriage, and in the event there are no minor children of the marriage, the complaint shall so state.

In all prior suits and actions for divorce heretofore instituted and tried in the courts of this State where the averments of fact required to be contained in the affidavit heretofore required by this section are or have been alleged and set forth in the complaint in said suits or actions and said complaints have been duly verified as required by Rule 11 of the Rules of Civil Procedure, said allegations so contained in said complaints shall be deemed to be, and are hereby made, a substantial compliance as to the allegations heretofore required by this section to be set forth in any affidavit; and all such suits or actions for divorce, as well as the judgments or decrees issued and entered as a result thereof, are hereby validated and declared to be legal and proper judgments and decrees of divorce.

In all suits and actions for divorce heretofore instituted and tried in this State on and subsequent to the 5th day of April, 1951, wherein the statements, averments, or allegations in the verification to the complaint in said suits or actions are not in accordance with the provisions of Rule 11 of the Rules of Civil Procedure and G.S. 1-148 or the requirements of this section as to verification of complaint or the allegations, statements or averments in the verification contain the language that the facts set forth in the complaint are true "to the best of affiant's knowledge and belief" instead of the language "that the same is true to his (or her) own knowledge" or similar variation in language, said allegations, statements and averments in said verifications as contained in or attached to said complaint shall be deemed to be, and are hereby made, a substantial compliance as to the allegations, averments or statements required by this section to be set forth in any such verifications; and all such suits or actions for divorce, as well as the judgments or decrees issued and entered as a result thereof, are hereby validated and declared to be legal and proper judgments and decrees of divorce.

History

(1868-9, c. 93, s. 46; 1869-70, c. 184; Code, s. 1287; Rev., s. 1563; 1907, c. 1008, s. 1; C.S., s. 1661; 1925, c. 93; 1933, c. 71, ss. 2, 3; 1943, c. 448, s. 1; 1947, c. 165; 1949, c. 264, s. 4; 1951, c. 590; 1955, c. 103; 1965, c. 636, s. 3; c. 751, s. 1; 1967, c. 50; c. 954, s. 3; 1969, c. 803; 1971, c. 415; 1973, c. 39; 1981, c. 599, s. 15; 1997-433, s. 4.3; 1998-17, s. 1; 2013-93, s. 1.)

Editor's Note. - Session Laws 1971, c. 1065 provided:

"Section 1. All divorces granted between January 1, 1969 and the date of the ratification of this act [July 21, 1971] are hereby validated as to the complaint being certified by the attorney rather than verified by the plaintiff.

"Sec. 2. It is the intent of the General Assembly to validate divorces which were based on complaints relying on G.S. 50-8 which, due to a typographical error, indicated that complaints for divorce should be certified rather than verified."

The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1.

Effect of Amendments. - Session Laws 2013-93, s. 1, effective June 12, 2013, deleted the former last sentence of the second paragraph which read: "In addition, when there are minor children of the marriage, the complaint shall state the social security number of the plaintiff and, if known, the social security number of the defendant.", and deleted the former last sentence of the last paragraph which read: "The judgment of divorce shall include, where there are minor children of the parties, the social security numbers of the parties."

Legal Periodicals. - For brief comment on the 1947 amendment, see 25 N.C.L. Rev. 412 (1947).

For brief comment on the 1951 amendment, see 29 N.C.L. Rev. 375 (1951).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

For comment, "Conflicts of Law in Divorce Litigation: A Looking-Glass World?," see 10 Campbell L. Rev. 145 (1987).

CASE NOTES

I. IN GENERAL.

No Conflict with G.S. 1A-1, Rule 13(a). - There is no conflict between the statutes dealing with procedure in divorce actions and G.S. 1A-1, Rule 13(a). Rather, G.S. 1A-1, Rule 13(a) superimposes an additional characteristic on certain kinds of counterclaims. Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978).

The statutes dealing specifically with divorce actions do not prescribe a procedure for counterclaims different from that prescribed in G.S. 1A-1, Rule 13(a). Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978).

Applied in Scoggins v. Scoggins, 85 N.C. 348 (1881); White v. White, 179 N.C. 592, 103 S.E. 216 (1920); Williams v. Williams, 180 N.C. 273, 104 S.E. 561 (1920); Clarke v. Clarke, 47 N.C. App. 249, 267 S.E.2d 361 (1980); Lynch v. Lynch, 302 N.C. 189, 274 S.E.2d 212 (1981); Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291 (1987).

Cited in Keys v. Tuten, 199 N.C. 368, 154 S.E. 631 (1930); Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596 (1946); Rowland v. Rowland, 253 N.C. 328, 116 S.E.2d 795 (1960); Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29 (1961); Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962); Butler v. Butler, 1 N.C. App. 356, 161 S.E.2d 618 (1968); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972); Smith v. Smith, 56 N.C. App. 812, 290 S.E.2d 390 (1982); Bryant v. Nationwide Mut. Fire. Ins. Co., 67 N.C. App. 616, 313 S.E.2d 803 (1984); In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993); Gaskill v. State ex rel. Cobey, 109 N.C. App. 656, 428 S.E.2d 474 (1993); State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); Hawkins v. Hawkins, 192 N.C. App. 248, 664 S.E.2d 616 (2008); State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674 (2014).

II. COMPLAINT.

Plaintiff Must Allege Material Facts Required by This Section. - To allege a cause of action for divorce, a plaintiff, in addition to one or more of the grounds for divorce, must allege the additional material facts now required by this section. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

Such Allegations Are Indispensable Constituent Elements of Cause of Action. - The legal effect of the 1951 amendment to this section is that the allegations required to be set forth in the complaint are now indispensable constituent elements of plaintiff's cause of action, and the facts so alleged must be established by the verdict of a jury. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

The allegations required by this section are indispensable constituent elements of a divorce action and must be established either by the verdict of a jury or by a judge, as the pertinent statute may permit. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983).

Which Must Be Found True. - All averments required by the statute must be both alleged in the complaint and found by the finder of fact to be true before a divorce judgment may be entered. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

Statement in General Terms. - The matters in the jurisdictional affidavit (now the complaint) in an action for divorce a mensa brought by the wife may be stated in general terms following the language of the statute. Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911); Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917).

Allegation of Six Months' Prior Knowledge - Generally. - The affidavit (now the complaint) must state that the action was not brought within six months from the time the plaintiff first acquired knowledge of the facts stated therein. Clark v. Clark, 133 N.C. 28, 45 S.E. 342 (1903). See also, O'Connor v. O'Connor, 109 N.C. 139, 13 S.E. 887 (1891); Green v. Green, 131 N.C. 533, 42 S.E. 954 (1902).

Six months' prior knowledge was formerly not required to be alleged in the complaint. Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97 (1908).

While, in an action for divorce a mensa, it is advisable that the pleading allege that the facts set forth therein as grounds for divorce had existed to complaint's knowledge for at least six months prior to the filing of the pleading in accordance with the language of the statute, where the wife's pleading in her cross-action for divorce a mensa alleged gross mistreatment of her by the husband, culminating in his locking her out of her home and ordering her away on a specified date more than six months prior to the filing of the pleading, with verification that the facts alleged therein were true to her own knowledge, her pleading would be held sufficient on this aspect. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

Same - When Unnecessary. - By Laws 1925, c. 93, this section was amended so that in cases where the cause for divorce is five years' (now one year's) separation, then the six months' prior knowledge need not be alleged. Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7 (1925); Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956). See also, Smithdeal v. Smithdeal, 206 N.C. 397, 174 S.E. 118 (1934).

Section Requires Complaint to Set Forth Certain Information as to Children. - This section requires that in all divorce actions the complaint shall set forth the name and age of any minor child or children of the marriage, and that in the event there are no minor children of the marriage, the complaint shall so state. Jones v. Jones, 20 N.C. App. 607, 202 S.E.2d 279, cert. denied, 285 N.C. 234, 204 S.E.2d 23 (1974).

Allegations of the names and ages of any children of a party seeking divorce in North Carolina are required by this section, in order that the court may protect the interests of such children if the parties have failed to do so. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

The obvious reason for this requirement is to bring to the attention of the court any minor children that might be affected by the divorce, to the end that the court will protect the interests of those children. Jones v. Jones, 20 N.C. App. 607, 202 S.E.2d 279, cert. denied, 285 N.C. 234, 204 S.E.2d 23 (1974); Cobb v. Cobb, 42 N.C. App. 373, 256 S.E.2d 722 (1979).

The reason for the requirement of this section for a pleading relating to minor children is not to establish jurisdiction. Cobb v. Cobb, 42 N.C. App. 373, 256 S.E.2d 722 (1979).

Answer Constituting Counterclaim. - Where the complaint in a suit for an absolute divorce alleged facts entitling either or both of the parties to the marriage to an absolute divorce, defendant's answer admitting these allegations, together with his prayer for an absolute divorce on the same grounds, was in effect a counterclaim seeking affirmative relief and arising out of the same transactions alleged in the complaint. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Proof Must Correspond to Allegations. - As the allegations in a petition for divorce are directed by statute to be sworn to, it is more emphatically required in such a case than in others that the allegations and proofs should correspond; otherwise the court cannot decree a divorce. Foy v. Foy, 35 N.C. 90 (1851); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945).

III. VERIFICATION.

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In a divorce action a verification is required as an essential part of the complaint. The want of a proper verification is a fatal defect and a cause for dismissal of the action. Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983).

Verification Must Be as Required. - In an application for alimony pendente lite the affidavit and petition must be verified as required by this section. Clark v. Clark, 133 N.C. 28, 45 S.E. 342 (1903). See also, Hopkins v. Hopkins, 132 N.C. 22, 43 S.E. 508 (1903).

Verification of a pleading stating that it was "sworn and subscribed to" was not sufficient. Martin v. Martin, 130 N.C. 27, 40 S.E. 822 (1902).

For case holding verification in substantial compliance with former G.S. 1-145 sufficient, see Bolin v. Bolin, 242 N.C. 642, 89 S.E.2d 303 (1955).

In Accordance with G.S. 1A-1, Rule 11. - This section requires that for a complaint for divorce to be valid, it must be verified in accordance with G.S. 1A-1, Rule 11, when it is filed. It is not sufficient to obtain verification before the complaint and summons are served on the defendant. Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983).

Verification of Answer Setting Up Cross-Action. - In husband's action for divorce a vinculo, wife's answer setting up a cross-action must be verified under this section, as a jurisdictional prerequisite, and when the answer is not so verified the granting of permanent alimony is erroneous. Silver v. Silver, 220 N.C. 191, 16 S.E.2d 834 (1941).

Verification of Counterclaim. - A decree of divorce was not improperly granted because of defective verification of defendant-husband's pleadings, where the counterclaim in which the divorce was prayed for was verified, although the original pleadings were not. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902 (1980).

An action for permanent alimony is a permissive counterclaim and is not required to be verified. Newsome v. Newsome, 43 N.C. App. 580, 259 S.E.2d 577 (1979).

As to waiver of verification of subsequent pleadings, see Calaway v. Harris, 229 N.C. 117, 47 S.E.2d 796 (1948).

Impeachment of Verification. - Such uncertainties as plaintiff expressed under cross-examination as to the exact nature of his act in verifying a complaint afforded an insufficient basis to warrant impeachment of his verification. Accordingly, the court erred in allowing defendant's motion to strike the verification and in dismissing plaintiff's complaint. Skinner v. Skinner, 28 N.C. App. 412, 222 S.E.2d 258, cert. denied, 289 N.C. 726, 224 S.E.2d 674 (1976).

Effect of False Swearing on Decree. - If a decree of divorce, regular in all respects on the face of the judgment roll, is obtained by false swearing, by way of pleading and of evidence, relating to the cause or ground for divorce, the decree is voidable but not void, and is immune from attack by either party to the divorce. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956).

In an action for annulment of a marriage entered into between plaintiff husband and defendant wife following a decree of divorce in favor of defendant against her former husband, plaintiff, who had been married to defendant for six years, could not attack the divorce decree by alleging false swearing of defendant in regard to the ground or cause for divorce. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956).

In an action for divorce the affidavit formerly required by this section in connection with the complaint was jurisdictional, and a complaint accompanied by a false statutory affidavit would be regarded as insufficient to empower the court to grant a decree of divorce; the correct procedure for relief against the decree would be by motion in the cause. Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945), wherein the plaintiff was held to have practiced imposition upon the court.

As to the affidavit formerly required by this section, see Holloman v. Holloman, 127 N.C. 15, 37 S.E. 68 (1900); Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296 (1901); Johnson v. Johnson, 141 N.C. 91, 53 S.E. 623 (1906); State v. Williams, 220 N.C. 445, 17 S.E.2d 769 (1941), rev'd on other grounds, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942).

IV. RESIDENCE AND DOMICILE.

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Jurisdiction in divorce actions is conferred by statute. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

And Is Founded on Domicile. - Judicial power to grant a divorce that is, jurisdiction strictly speaking, is founded on domicile. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

The domicile of one spouse within a state gives power to that state to dissolve a marriage wheresoever contracted. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

"Domicile" Defined. - That place is properly the domicile of a person where he has his true permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

"Residence" has been interpreted to mean the equivalent of "domicile." Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570 (1983).

Residence and Intent Must Be Shown. - To establish a domicile there must be a residence, and the intention to make it a home or to live there permanently or indefinitely. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

In order to establish a domicile, a party must make a showing of both actual residence in the new locality and the intent to remain there permanently. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570 (1983).

The residence requirement in this section is jurisdictional. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

The requirement that one of the parties to a divorce action shall have resided in this State for a specified period of time next preceding the commencement of the action is jurisdictional. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

Residency for Six Months Required. - In order to obtain a valid divorce in North Carolina, the plaintiff or defendant must have resided in this State for at least six months next preceding institution of the action for divorce. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

The period of residence in this section applies to an action for divorce from bed and board as well as to an action for absolute divorce. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

But the residency requirement of this section is not applicable in an action for alimony without divorce. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

A bona fide "residence," necessary under statutes in order to confer jurisdiction in divorce proceedings, is within the legal meaning of the word "domicile," that is, an abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492 (1969).

"Residence" means actual residence, and prior to the 1949 amendment, which allows suit to be brought where defendant has been a resident of the State for six months, a nonresident wife in suing for divorce could not avail herself of the maxim that "her domicile was that of her husband," where she had not actually satisfied the residence requirement. Schonwald v. Schonwald, 55 N.C. 367 (1856).

Separate Domicile for Wife. - North Carolina divorce statutes recognize the legality of a separate domicile, or residence, for the wife. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492 (1969).

There is no logical, legal or equitable reason for allowing wife, whose misconduct has brought about the separation, to insist upon the legal fiction that her domicile follows that of her husband, and thereby to defeat his action for divorce brought in the jurisdiction in which she actually resides. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492 (1969).

One need not be a citizen of the United States in order to establish residence or domicile within this State for purposes of divorce actions. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492 (1969).

Effect of Temporary Removal. - Where husband and wife establish a residence in this State, the wife, by leaving the State for a temporary purpose, without any intention of changing her residence, does not thereby lose her citizenship. Moore v. Moore, 130 N.C. 333, 41 S.E. 943 (1902).

The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur. Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713 (1961).

Naval officer was properly found to be domiciled in North Carolina where: (1) He had changed his voter registration from Pennsylvania to Guilford County, (2) He had filed a North Carolina income tax return for the year 1981, (3) He had changed his permanent address with the Navy to his father's address in Greensboro as of August 1, 1981, (4) He had opened a bank account in Greensboro in August, 1981 and had maintained it since that time, (5) He had changed the registration of his motor vehicle from Pennsylvania to North Carolina and had paid North Carolina property taxes, (6) He had resided at his parents' house whenever on leave from the Navy, and (7) He had severed all ties with the State of Pennsylvania. In short, plaintiff did everything possible to establish a residence in North Carolina. The transient nature of his career with the United States Navy prohibited him from doing anything further. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570 (1983).

Residency Established Via Verified Complaint. - District court properly exercised jurisdiction over the subject matter of the parties' divorce action as in the State of North Carolina subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court's finding residence by one of the parties for the requisite length of time and verification of the pleadings. In the case at issue, the plaintiff husband sufficiently alleged that he was a citizen and resident of North Carolina for more than six months next preceding the institution of the action and had lived separate and apart from the wife for more than one year next preceding the institution of the action without resuming the marital relationship, with those district court findings being supported by the husband's verified complaint, which was treated as an affidavit. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653 (2008).

Opinions of Attorney General

Not Advisable for Attorney to Act as Notary and Verify Client's Divorce Complaint. - It is not advisable for a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client. A divorce complaint which is not properly notarized is subject to dismissal. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C.A.G. 35 (1988).

When one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also appear, and they could be prohibited under former G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as "of counsel" to the individual partner on the face of the complaint or answer. Therefore, such practice should be avoided, and as an attorney/notary who acts in this fashion proceeds at his own risk. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C.A.G. 35 (1988).


§ 50-9. Effect of answer of summons by defendant.

In all cases upon an action for a divorce absolute, where judgment of divorce has heretofore been granted and where the plaintiff has caused to be served upon the defendant in person a legal summons, whether by verified complaint or unverified complaint, and such defendant answered such summons, and where the trial of said action was duly and legally had in all other respects and judgments rendered by a judge of the superior court upon issues answered by a judge and jury, in accordance with law, such judgments are hereby declared to have the same force and effect as any judgment upon an action for divorce otherwise had legally and regularly.

History

(1929, c. 290, s. 1; 1947, c. 393.)

CASE NOTES

Cited in Piguerra v. Piguerra, 54 N.C. App. 188, 282 S.E.2d 567 (1981).


§ 50-10. Material facts found by judge or jury in divorce or annulment proceedings; when notice of trial not required; procedure same as ordinary civil actions.

  1. Except as provided for in subsection (e) of this section, the material facts in every complaint asking for a divorce or for an annulment shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a judge or jury.
  2. Nothing herein shall require notice of trial to be given to a defendant who has not made an appearance in the action.
  3. The determination of whether there is to be a jury trial or a trial before the judge without a jury shall be made in accordance with G.S. 1A-1, Rules 38 and 39.
  4. The provisions of G.S. 1A-1, Rule 56, shall be applicable to actions for absolute divorce pursuant to G.S. 50-6, for the purpose of determining whether any genuine issue of material fact remains for trial by jury, but in the event the court determines that no genuine issue of material fact remains for trial by jury, the court must find the facts as provided herein. The court may enter a judgment of absolute divorce pursuant to the procedures set forth in G.S. 1A-1, Rule 56, finding all requisite facts from nontestimonial evidence presented by affidavit, verified motion or other verified pleading.
  5. The clerk of superior court, upon request of the plaintiff, may enter judgment in cases in which the plaintiff's only claim against the defendant is for absolute divorce, or absolute divorce and the resumption of a former name, and the defendant has been defaulted for failure to appear, the defendant has answered admitting the allegations of the complaint, or the defendant has filed a waiver of the right to answer, and the defendant is not an infant or incompetent person.

History

(1868-9, c. 93, s. 47; Code, s. 1288; Rev., s. 1564; C.S., s. 1662; 1963, c. 540, ss. 1, 2; 1965, c. 105; c. 636, s. 4; 1971, c. 17; 1973, cc. 2, 460; 1981, c. 12; 1983 (Reg. Sess., 1984), c. 1037, s. 4; 1985, c. 140; 1991, c. 568, s. 1; 2004-128, s. 6.)

Cross References. - As to competency of spouse as witness in civil actions, see G.S. 8-56.

Editor's Note. - Session Laws 1991, c. 568, s. 2 provides that any judgment of absolute divorce entered prior to October 1, 1991, on the basis of nontestimonial evidence pursuant to G.S. 1A-1, Rule 56, which is proper in all other respects, is valid and of full force and effect.

Legal Periodicals. - For case law survey on trial practice, see 43 N.C.L. Rev. 938 (1965).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - Some of the cases below were decided under the various versions of this section applicable at the time, and may not reflect all subsequent amendments.

Purpose of Section. - The object of this section was to prevent a judgment from being taken by default or by collusion, and to require the facts to be found by a jury. Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920); Cobb v. Cobb, 42 N.C. App. 373, 256 S.E.2d 722 (1979).

As to the purpose of this section, see also Moss v. Moss, 24 N.C. 55 (1841); Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933 (1914).

The procedure in a divorce action is not the same as the procedure in other civil actions, in that the material facts in the complaint are deemed denied, whether actually denied by pleading or not, and in that no judgment shall be given in favor of the plaintiff until such facts have been found by a jury (now a judge or jury). Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972).

Section Applies to Cross-Action. - This section is applicable to a defendant who files a cross-action and prays for a divorce therein from the plaintiff. Saunderson v. Saunderson, 195 N.C. 169, 141 S.E. 572 (1928).

Allegations in Counterclaim Deemed Denied in Divorce Case. - Despite the fact that the wife did not respond to allegations of marital misconduct and fault contained in the husband's counterclaim in the parties' divorce case, pursuant to G.S. 50-10(a), all of the allegations of the counterclaim were deemed denied. Phillips v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff'd, 362 N.C. 171, 655 S.E.2d 350 (2008).

Suits for Alimony Without Divorce. - Suits for alimony without divorce are within the analogy of divorce laws and within the purview of that portion of this section which controverts all material facts in every divorce action. Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973).

G.S. 50-16.8 changes the procedure to be followed in actions for alimony without divorce from the divorce procedure set forth in this section to the procedure applicable to other civil actions. Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972).

Presumption of Denial - Generally. - The provisions of this section that the allegations of the complaint in an action for divorce "are deemed to be denied" applies only to the trial upon the merits, since the facts must be found by a jury (now a judge or jury). Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893).

The denial by the statute of the plaintiff's allegations in an action for divorce presumes, as a matter of law, a meritorious defense, and does not require that this be found by the judge in passing upon a motion to set aside a judgment rendered in an action. Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920).

Same - In Cross-Action. - The defendant in an action for divorce a vinculo, may file a cross-action for the same relief, and where no reply has been filed by the plaintiff, and no evidence has been offered by him, an issue is raised by this section, and upon a verdict on the required issues, a judgment may be rendered upon the cross-action if the pleadings and the evidence are sufficient. Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7 (1925).

All the allegations of defendant's counterclaim wherein he sought a divorce from bed and board were deemed to be denied by the plaintiff, even though she failed to answer the counterclaim. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Same - Time for Answering Not Affected. - The provision of this section putting in a denial of the plaintiff's allegations in an action for divorce did not affect the defendant's right to 20 days after completion of the service of summons by publication in which to answer or demur, etc. Campbell v. Campbell, 179 N.C. 413, 102 S.E. 737 (1920).

Entry of Specific Denial by Defendant Not Prejudicial. - Since this section declares in effect that the material allegations of the complaint in a divorce action shall be deemed and treated as denied, it is inconsequential whether or not the defendant enters a denial, and the entry of a specific denial by the defendant, under discretionary leave of the court, cannot prejudice the plaintiff. Walker v. Walker, 238 N.C. 299, 77 S.E.2d 715 (1953).

Facts That Must Be Alleged Must Be Proved. - Under this section and G.S. 50-8, upon the basic principle that a plaintiff must prove what he must allege, a plaintiff is entitled to a judgment of divorce only if the issues submitted and answered in favor of the plaintiff establish, inter alia, (1) the requisite facts as to residence, and (2) that (except where the alleged cause for divorce is one year's separation) the facts set forth as grounds for divorce have existed to his or her knowledge for at least six months prior to the filing of the complaint. Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957).

The allegations required by G.S. 50-8 are indispensable constituent elements of a divorce action and must be established either by the verdict of a jury or by a judge, as the pertinent statute may permit. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

The statutory changes eliminating the necessity for the filing of an affidavit and allowing a judge in some cases to become the trier of facts in divorce actions do not change the fundamental precepts that jurisdiction over the subject matter of divorce is statutory and that all averments required by the statute must be both alleged in the complaint and found by the finder of fact to be true before a divorce judgment may be entered. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

A divorce will be granted only after the facts establishing a statutory ground for divorce have been pleaded and actually proved. Adair v. Adair, 62 N.C. App. 493, 303 S.E.2d 190, cert. denied, 309 N.C. 319, 307 S.E.2d 162 (1983).

Material Facts Must Be Found by Judge or Jury. - This section requires that, in a divorce action, the material facts as to the grounds for divorce must be found by a jury (now a judge or jury). Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703 (1961).

The material facts in every complaint asking for a divorce are deemed to be denied under the statute, and no judgment is allowed to be given in favor of the plaintiff in any such complaint until all the material facts have been found by a jury. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Required Findings. - The court erred in declaring the parties' divorce decree void where the divorce decree at issue was "in all respects regular on [its] face" and the defendant was properly served; the court's findings, required by this section, were found under the heading "Conclusions of Law" rather than under "Findings of Fact." Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242 (2001).

Failure to Raise Genuine Issue of Material Fact. - The wife's answer generally denying the allegations of the husband's complaint for an absolute divorce was insufficient to raise a genuine issue of material fact. Daniel v. Daniel, 132 N.C. App. 217, 510 S.E.2d 689 (1999).

Judgment Invalid Without Finding of Grounds. - Where judgment of divorce from bed and board contained absolutely no finding of the existence of any of the grounds for divorce from bed and board cognizable under G.S. 50-7, the district court was without power or authority, and therefore without jurisdiction, to enter it. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).

Order in Habeas Corpus Proceeding Is Not Res Judicata in Divorce Action. - It is patent that an order entered in a habeas corpus proceeding based on facts found by the trial judge is not res judicata in an action for divorce upon the ground of adultery. Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703 (1961).

Summary Judgment. - Under this section as it read prior to amendment in 1991, summary judgment could not be entered granting an absolute divorce in this State. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979).

In a case in which plaintiff, in her capacity as the personal representative of the estate of the decedent, sought to annul the decedent's marriage to defendant, arguing that the marriage was invalid because the officiant was not legally authorized to perform a wedding ceremony in North Carolina, the trial court erred in granting summary judgment to plaintiff because, under this statute, marriages in North Carolina could not be annulled at the summary judgment stage. Hill v. Durrett, - N.C. App. - , 826 S.E.2d 470 (2019).

Rendering of Default Judgment as Sanction in Annulment Action Improper. - Default judgment was incorrectly entered pursuant to G.S. 1A-1, N.C. R. Civ. P. 37, due to a purported wife's failure to comply with the trial court's discovery orders in an annulment proceeding because a judgment for annulment could not be entered by default under G.S. 50-10(a), which gave the trial court subject matter jurisdiction over the annulment action. Hawkins v. Hawkins, 192 N.C. App. 248, 664 S.E.2d 616 (2008).

Decree by Consent, Stipulation, or Admissions. - This section itself raises issues in a divorce action as to all material facts, regardless of whether the parties by their pleadings have raised any issue and even where all material facts are admitted. Thus, this section has the effect of prohibiting entry of a divorce decree by consent, stipulation, or admissions of the parties, and requires instead that all material facts be found, either by a jury where the right to a jury trial has been preserved as provided in G.S. 1A-1, Rules 38 and 39, or by the court where a jury trial has been waived. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979), decided prior to 1991 amendment.

Right to Jury Trial Preserved. - Where the defendant in apt time and manner demands a jury trial and does not thereafter waive but continues to assert her right to a jury trial, although it may seem futile for defendant to insist upon a trial by jury when, but for this section, no real issue exists, this section gives her the right to do so, and it would be error for the trial court to deny her the right to have the facts found in a trial by jury. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979).

1971 Amendment Did Not Nullify Right Conferred Prior to Amendment. - Where the last pleading was filed nearly six months prior to the 1971 amendment of this section, the amendment did not nullify the right to request a jury trial "prior to the call of the action for trial" conferred by this section at the time defendant filed the last pleading. Branch v. Branch, 282 N.C. 133, 191 S.E.2d 671 (1972).

The substance of the 1973 amendment is very similar to that of the 1971 amendment. Laws v. Laws, 22 N.C. App. 344, 206 S.E.2d 324 (1974).

The 1973 amendment did not alter the procedure for securing a jury trial in actions for absolute divorce after a one-year separation where an answer had been filed at least 10 days prior to the effective date of the amendment. Laws v. Laws, 22 N.C. App. 344, 206 S.E.2d 324 (1974).

Waiver of Jury Trial. - Defendant waived his right to trial by jury in an action for divorce on the ground of two years' (now one year's) separation when he failed to file a request therefor prior to the call of the action for trial, and the fact that defendant had alleged a cross-action for divorce for adultery did not affect this result when defendant withdrew his cross-action before the case was called. Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964), decided prior to the 1973 amendment.

In a suit for divorce on the grounds of separation, where defendant was personally served with summons, the judge, in the absence of a request for a jury trial filed prior to the call of the action for trial, had authority to hear the evidence, answer the issues, and render judgment thereon. This rule applied equally to contested and uncontested divorce actions. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764 (1966), decided prior to the 1973 amendment.

A party may waive the right to a jury trial in civil actions by failure to follow the statutory procedure to preserve such right. Laws v. Laws, 1 N.C. App. 243, 161 S.E.2d 40 (1968), decided prior to the 1973 amendment.

Question for Jury. - Where the facts in a divorce action were in dispute, the case was one for the jury. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945).

Evidence in divorce action held insufficient to carry case to jury. Moody v. Moody, 225 N.C. 89, 33 S.E.2d 491 (1945).

Instruction Not at Variance with Section. - In an action for absolute divorce, a charge in reference to the admissions of counsel that the evidence was sufficient to support an affirmative answer to the issues of marriage, separation and residence was not equivalent to a directed verdict and not at variance with the provisions of this section. Nelson v. Nelson, 197 N.C. 465, 149 S.E. 585 (1929).

Verdict of Jury. - In a proceeding for a divorce, the issues submitted and the verdict found should be as specific and certain as the facts alleged in the petition. Wood v. Wood, 27 N.C. 674 (1845).

As to validity of verdict by 11 jurors, see Hall v. Hall, 131 N.C. 185, 42 S.E. 562 (1902).

Proof of Adultery. - For cases as to incompetence of one spouse to prove adultery of the other, prior to deletion of this provision by Session Laws 1983 (Reg. Sess., 1984), c. 1037, see Toole v. Toole, 112 N.C. 152, 16 S.E. 912 (1893); Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933 (1914); Vickers v. Vickers, 188 N.C. 448, 124 S.E. 737 (1924); Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964), citing Perkins v. Perkins, 88 N.C. 41 (1883); Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969); Gordon v. Gordon, 7 N.C. App. 206, 171 S.E.2d 805 (1970); Phillips v. Phillips, 9 N.C. App. 438, 176 S.E.2d 379 (1970); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258 (1972); Bowen v. Bowen, 19 N.C. App. 710, 200 S.E.2d 214 (1973); Earles v. Earles, 26 N.C. App. 559, 216 S.E.2d 739, cert. denied, 288 N.C. 239, 217 S.E.2d 679 (1975); Traywick v. Traywick, 28 N.C. App. 291, 221 S.E.2d 85 (1976); VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978); Horner v. Horner, 47 N.C. App. 334, 267 S.E.2d 65, cert. denied, 301 N.C. 89, 273 S.E.2d 297 (1980); Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981); Spencer v. Spencer, 61 N.C. App. 535, 301 S.E.2d 411, cert. denied, 308 N.C. 678, 304 S.E.2d 757 (1983).

Applied in Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956); Biggs v. Biggs, 253 N.C. 10, 116 S.E.2d 178 (1960); Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525 (1962); Hinson v. Hinson, 17 N.C. App. 505, 195 S.E.2d 98 (1973); Miller v. Miller, 38 N.C. App. 95, 247 S.E.2d 278 (1978); Watts v. Watts, 44 N.C. App. 46, 260 S.E.2d 170 (1979); Morris v. Morris, 45 N.C. App. 69, 262 S.E.2d 359 (1980); Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984); Fulton v. Vickery, 73 N.C. App. 382, 326 S.E.2d 354 (1985).

Cited in State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948); Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962); Anthony v. Anthony, 8 N.C. App. 20, 173 S.E.2d 617 (1970); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972); Pettus v. Pettus, 62 N.C. App. 141, 302 S.E.2d 261 (1983); Bumgardner v. Bumgardner, 113 N.C. App. 314, 438 S.E.2d 471 (1994); McCall v. McCall, 138 N.C. App. 706, 531 S.E.2d 894 (2000); McCall v. McCall, 138 N.C. App. 706, 531 S.E.2d 894 (2000); Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661 (2013); Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347 (2015).

Opinions of Attorney General

Service of process upon defendant in divorce action by leaving copies with defendant's mother at defendant's address was sufficient service and sufficient for nonjury trial. See opinion of Attorney General to the Honorable John S. Gardner, District Court Judge, Sixteenth Judicial District, 41 N.C.A.G. 473 (1971), decided prior to the 1973 amendment.

Service of Process by Publication Does Not Prohibit Waiver of Right to Trial by Jury. - See opinion of Attorney General to Mr. Tom H. Matthews, 43 N.C.A.G. 48 (1973), decided prior to the 1973 amendment.

§ 50-11. Effects of absolute divorce.

  1. After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.
  2. No judgment of divorce shall cause any child in esse or begotten of the body of the wife during coverture to be treated as a child born out of wedlock.
  3. A divorce obtained pursuant to G.S. 50-5.1 or G.S. 50-6 shall not affect the rights of either spouse with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted. Furthermore, a judgment of absolute divorce shall not impair or destroy the right of a spouse to receive alimony or postseparation support or affect any other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the judgment of absolute divorce.
  4. A divorce obtained outside the State in an action in which jurisdiction over the person of the dependent spouse was not obtained shall not impair or destroy the right of the dependent spouse to alimony as provided by the laws of this State.
  5. An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce; except, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment in such a case if service of process upon the defendant was by publication pursuant to G.S. 1A-1, Rule 4 and the defendant failed to appear in the action for divorce.
  6. An absolute divorce by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property shall not destroy the right of a spouse to equitable distribution under G.S. 50-20 if an action or motion in the cause is filed within six months after the judgment of divorce is entered. The validity of such divorce may be attacked in the action for equitable distribution.

History

(1871-2, c. 193, s. 43; Code, s. 1295; Rev., s. 1569; 1919, c. 204; C.S., s. 1663; 1953, c. 1313; 1955, c. 872, s. 1; 1967, c. 1152, s. 3; 1981, c. 190; c. 815, s. 2; 1987, c. 844, s. 3; 1991, c. 569, s. 2; 1995, c. 319, s. 8; 1998-217, s. 7(a), (b); 2013-198, s. 24.)

Cross References. - As to procedures in actions for equitable distribution of property, see G.S. 50-21.

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " Effects of absolute divorce.

  1. After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.
  2. No judgment of divorce shall render illegitimate any child in esse, or begotten of the body of the wife during coverture.
  3. A divorce obtained pursuant to G.S. 50-5.1 or G.S. 50-6 shall not affect the rights of either spouse with respect to any action for alimony or alimony pendente lite pending at the time the judgment for divorce is granted. Furthermore, a judgment of absolute divorce shall not impair or destroy the right of a spouse to receive alimony or alimony pendente lite or affect any other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the judgment of absolute divorce.
  4. A divorce obtained outside the State in an action in which jurisdiction over the person of the dependent spouse was not obtained shall not impair or destroy the right of the dependent spouse to alimony as provided by the laws of this State.
  5. An absolute divorce obtained within this State shall destroy the right of a spouse to an equitable distribution of the marital property under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce; except, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment in such a case if service of process upon the defendant was by publication pursuant to G.S. 1A-1, Rule 4 and the defendant failed to appear in the action for divorce.
  6. An absolute divorce by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property shall not destroy the right of a spouse to an equitable distribution of marital property under G.S. 50-20 if an action or motion in the cause is filed within six months after the judgment of divorce is entered. The validity of such divorce may be attacked in the action for equitable distribution."

Effect of Amendments. - Session Laws 2013-198, s. 24, effective June 26, 2013, rewrote subsection (b), which formerly read: "No judgment of divorce shall render illegitimate any child in esse, or begotten of the body of the wife during coverture."

Legal Periodicals. - For note on permanent alimony incident to absolute divorce, see 31 N.C.L. Rev. 482 (1953).

For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For survey of 1976 case law on domestic relations, see 55 N.C.L. Rev. 1018 (1977).

For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For comment on the tax effects of equitable distribution upon divorce, see 18 Wake Forest L. Rev. 555 (1982).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

CASE NOTES

Editor's Note. - Some of the cases below were decided under the various versions of this section applicable at the time, and may not reflect all subsequent amendments.

Cessation of Right to Support. - This section is declarative of the common law in that one of the rights which determines and ceases after a judgment of absolute divorce is the right to support. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Power to Enter Alimony Order Ends upon Divorce. - When a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter an order for alimony. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967).

Wife's answer and counterclaim did not sufficiently preserve her claim for alimony, under G.S. 50-11(c), after an absolute divorce was granted, when she requested a certain monthly amount of alimony, because such a claim could arise on several alternative grounds requiring a trial court's consideration of at least 16 "relevant factors" in determining whether statutory grounds existed to award alimony, and if so whether such an award was equitable under G.S. 50-16.3A; so, under G.S. 1A-1-8(a)(1), an alimony pleading had to contain notice of the grounds upon which this relief was sought, and as the wife's answer did not state such grounds, it was insufficient. Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

Jurisdiction. - Where the parties invoked the jurisdiction of the district court to equitably distribute their marital property in the action for absolute divorce and equitable distribution of their marital property, the district court did not lose jurisdiction to equitably distribute the marital property because of its failure to enter a judgment in the equitable distribution case before the special proceeding seeking partition of the marital property was filed in the office of the clerk of superior court. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988).

Jurisdiction Over Child Support. - Where a North Carolina judgment of absolute divorce made no provision for child support, and there was thus no existing order, the Texas Attorney General's petition to establish a support obligation was properly classified as a petition to establish an order of support rather than a petition to modify an order of no support; thus, under the Uniform Interstate Family Support Act, the Texas trial court had the authority to adjudicate the father's child support obligation, and because the North Carolina tribunal had not acquired continuing, exclusive jurisdiction, the trial court erred in granting the father's plea to the jurisdiction. Office of the AG of Tex. v. Long, 401 S.W.3d 911 (May 21, 2013).

The words "or at the time of" in subsection (c) of this section were added to complement G.S. 50-16.8(b), which allows the questions of divorce and alimony to be determined in a single action. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Alimony May Be Awarded After Hearing on Remand. - If alimony is found to be appropriate after a hearing on remand, the ensuing judgment or decree awarding it will relate back to the time when the application for alimony should have been considered, which is "before or at the time of the rendering of the judgment for absolute divorce." McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Decree of Absolute Divorce on Counterclaim to Action for Alimony as Interlocutory Judgment. - A decree of absolute divorce upon a counterclaim to an action for alimony without divorce was not a final judgment as to the remainder of the claims to be adjudicated in the action. Instead, it was merely an interlocutory judgment, to become final upon a complete adjudication of all claims, rights and liabilities of the parties. It did not terminate or determine the remaining issues arising from the pleadings in the action. Therefore, the court could amend, modify or rescind it at anytime prior to final judgment. Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399 (1978), aff'd, 296 N.C. 574, 251 S.E.2d 441 (1979).

A judgment of absolute divorce upon a counterclaim to an action for alimony without divorce, rendered prior to final determination of all issues, was interlocutory and subject to the provisions of G.S. 1A-1, Rule 54(b), for purposes of determining its finality. Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399 (1978), aff'd, 296 N.C. 574, 251 S.E.2d 441 (1979).

Effect of Absolute Divorce on Prior Judgment for Alimony Without Divorce. - A judgment for absolute divorce awarded to the husband on the ground of two years' (now one year's) separation did not invalidate a judgment for alimony without divorce entered in favor of the wife before the action for absolute divorce was instituted. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

Subsection (e) merely requires an equitable distribution claim to be asserted at any time prior to judgment, and does not prohibit a claim asserted before a divorce action is filed. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Trial court erred in granting a husband's motion to dismiss a wife's motion for equitable distribution, pursuant to G.S. 50-20, in a divorce action where the wife filed the motion on the day before the judgment was signed by the judge and filed, at which point the judgment became final pursuant to G.S. 1A-1-58; therefore, G.S. 50-11(e) did not destroy the wife's right to seek equitable distribution as the motion was filed before an absolute divorce was granted. Santana v. Santana, 171 N.C. App. 432, 614 S.E.2d 438 (2005).

Equitable Distribution After Judgment of Absolute Divorce. - Under this section, a judgment of absolute divorce destroys the right to equitable distribution unless the right is asserted prior to judgment of absolute divorce. Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987).

If a person entitled to equitable distribution does not specifically apply for it by cross-action or by a separate action prior to the judgment of absolute divorce, the divorce judgment destroys that person's statutory right to equitable distribution. Lutz v. Lutz, 101 N.C. App. 298, 399 S.E.2d 385 (1991), cert. denied, 328 N.C. 732, 404 S.E.2d 871 (1991).

If alimony and equitable distribution claims are properly asserted, whether by the filing of an action or raising of counterclaims, and are not voluntarily dismissed pursuant to Rule 41(a)(1) until after judgment of absolute divorce is entered, a new action based on those claims may be filed within the one year period provided by the rule. Stegall v. Stegall, 336 N.C. 473, 444 S.E.2d 177 (1994).

Although subsection (e) requires that a claim for equitable distribution be brought prior to the granting of the divorce; where the trial court granted defendant relief from the judgment of absolute divorce and permitted defendant to file her answer, the effect was the same as if the judgment had never been entered, and defendant's right to equitable distribution was revived. Baker v. Baker, 115 N.C. App. 337, 444 S.E.2d 478 (1994).

Wife sufficiently preserved her claim to an equitable distribution of marital property under G.S. 50-11(e) when her answer to her husband's complaint for divorce requested and reserved a right to equitable distribution, because the remedy of equitable distribution in a divorce case only applied to marital assets, and G.S. 50-21(a) gave a party asserting a claim for such redress 90 days to provide specific information about the property claimed to be subject to equitable distribution; so, to constitute a valid equitable distribution claim, the wife's counterclaim for equitable distribution did not have to state that it applied to the parties' marital assets or property, and the husband was put on notice that the wife asked the court to equitably distribute the parties' marital and divisible property. Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

In proceedings in which a former husband was granted an absolute divorce, the former wife was not entitled to compel an equitable distribution affidavit from the former husband because the wife failed to properly file her equitable distribution claim pursuant to G.S. 50-21(a) as a separate action, cross-action, or motion in the cause within six months after the husband dismissed his own equitable distribution claim as required by G.S. 50-11(e) and (f); an oral motion by the wife for such a claim did not constitute the required motion. Webb v. Webb, 188 N.C. App. 621, 656 S.E.2d 334 (2008).

Wife could not appeal an order granting a husband's motion to vacate a judgment of absolute divorce to allow the husband to assert an equitable distribution claim because, inter alia, the wife did not show the order affected a substantial right as (1) the husband was not collaterally estopped, based on G.S. 50-11(e), from making an equitable distribution claim, since no such claim had been adjudicated, so the order did not expose the wife to the risk of an inconsistent equitable distribution judgment, and (2) the wife did not show any representations the wife had made about the wife's marital status amounted to a substantial right. Campbell v. Campbell, 237 N.C. App. 1, 764 S.E.2d 630 (2014).

Trial court erred in granting defendant wife's motion to be "relieved of the effect" of a divorce judgment solely to the extent that the judgment barred her claim for equitable distribution. Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987).

Authority for Equitable Distribution. - Where neither party made application or stated a claim for equitable distribution prior to the judgment of absolute divorce, the trial court lacked the authority to enter such a judgment. Stirewalt v. Stirewalt, 114 N.C. App. 107, 440 S.E.2d 854 (1994).

The superior court had no authority to partition marital property pursuant to the provisions of G.S. 46-1 et seq. where, as here, the jurisdiction of the district court has been properly invoked to equitably distribute such marital property. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628 (1988).

Effect on Pending Action for Alimony Without Divorce. - Where, pending wife's action for alimony without divorce, husband obtained decree of absolute divorce on the ground of separation for the statutory period under G.S. 50-6, it was held that the final judgment in her action would be rendered after absolute divorce, and that she therefore would not be entitled to permanent alimony in her action, since under the common law she would not be entitled to alimony after a divorce a vinculo, and that the saving provisions of this section would not be applicable. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955), decided prior to 1991 amendment.

Effect of Divorce Granted on Counterclaim to Pending Action for Alimony. - A decree of absolute divorce, granted to the defendant in a prior separate hearing on his counterclaim to an action for alimony without divorce, could not be pleaded as a bar to the judgment awarding alimony in the subsequent hearing on the plaintiff's claim which initiated the action. Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399 (1978), aff'd, 296 N.C. 574, 251 S.E.2d 441 (1979).

Effect on Alimony Pendente Lite. - A dependent spouse's action for alimony without divorce was properly dismissed and order awarding alimony pendente lite was properly terminated on motion of the supporting spouse where he had been granted an absolute divorce in an action instituted by him after the order for alimony pendente lite was entered. Smith v. Smith, 12 N.C. App. 378, 183 S.E.2d 283 (1971), decided prior to 1991 amendment.

Where a judgment awarding the wife alimony pendente lite, to be continued until the award of permanent alimony, was rendered before rendition of judgment for absolute divorce, the rights provided for the wife by the prior judgment could not be impaired or destroyed by the subsequently rendered decree of absolute divorce, and defendant remained liable to continue to make the payments under the alimony pendente lite order. Johnson v. Johnson, 17 N.C. App. 398, 194 S.E.2d 562 (1973).

Effect on Debts. - Debt incurred after separation of the parties was not subject to equitable distribution. Harrington v. Harrington, 110 N.C. App. 782, 431 S.E.2d 240 (1993).

Effect of Divorce Under Former Law. - For other cases dealing with the effect of an absolute divorce on the right to alimony, decided under this section as it stood before the 1953, 1955 and 1967 amendments, see Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28 (1897); Livingston v. Livingston, 235 N.C. 515, 70 S.E.2d 480 (1952); Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865 (1953); Merritt v. Merritt, 237 N.C. 271, 74 S.E.2d 529 (1953); Deaton v. Deaton, 237 N.C. 487, 75 S.E.2d 398 (1953).

Absolute Defense Under Prior Law. - An alimony claim made pursuant to G.S. 50-16.3A(a) and filed within one year of plaintiff's dismissal of her first claim (under repealed G.S. 50-16.6(a)) failed to qualify as "a new action based on the same claim" under Rule 41(a)(1) because the G.S. 50-16.3A(a) claim for alimony was distinct from that set out by the repealed section in that it deferred to the court's discretion on the decision of whether to award alimony where both the supporting and dependent spouse "each participated in an act of illicit sexual behavior," whereas the old section foreclosed a dependent spouse from recovering; to allow her to maintain this new action would have deprived the defendant/husband of a statutory absolute defense he had had under the old law. Brannock v. Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999).

South Carolina Divorce Action Did Not Destroy Right to Equitable Distribution Under This Section. - Where neither party to a divorce action in South Carolina requested an adjudication of their property rights it necessarily followed that under the South Carolina statute the court never acquired jurisdiction over their marital property and that the divorce judgment entered therein did not destroy plaintiff 's right to an equitable distribution of their marital property under this section. Cooper v. Cooper, 90 N.C. App. 665, 369 S.E.2d 630 (1988).

Asserting Claim to Property Was Not Notice of Equitable Distribution. - In divorce case, defendant's answer asserting a claim to an interest in a specific piece of property, or to proceeds in plaintiff's possession flowing from defendant's interest in that piece of property, was not sufficient to put plaintiff on notice that he was asserting a claim for equitable distribution under G.S. 50-20. Goodwin v. Zeydel, 96 N.C. App. 670, 387 S.E.2d 57 (1990).

Trial court had no authority to reaffirm divorce decree and reserve for future resolution the issue of equitable distribution where the trial court did not set aside the divorce but rather attempted to nullify the consequences of defendant's failure to assert her claim for equitable distribution prior to the entry of judgment of divorce. Even if the court had effectively set aside, briefly, the divorce decree itself and then immediately reinstated the divorce decree with a reservation of an equitable distribution claim, the reservation of the equitable distribution claim would have been a legal nullity because plaintiff voluntarily dismissed his equitable distribution claim and defendant did not, during the time the divorce was arguably set aside, file an answer, counterclaim, or separate action requesting equitable distribution. Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469 (1991).

Waiver of Equitable Distribution Induced by Misrepresentations of Other Party. - Defendant would be estopped from asserting the defense that plaintiff did not preserve her equitable distribution claim if plaintiff, in good faith, relied on the misrepresentations of the defendant in waiving her right to equitable distribution. Harroff v. Harroff, 100 N.C. App. 686, 398 S.E.2d 340 (1990), discretionary review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).

Divorce Decree Containing Provision Reserving Equitable Distribution Issue. - Where decree for absolute divorce contained a provision reserving the issue of equitable distribution for hearing at a later date, trial judge, with whom plaintiff thereafter filed a motion to dismiss defendant's claim for equitable distribution pursuant to subsection (e) of this section, had no authority to find error and reverse or vacate divorce judge's order reserving the issue. Stone v. Stone, 96 N.C. App. 633, 386 S.E.2d 602 (1989), cert. denied, 326 N.C. 805, 393 S.E.2d 906 (1990).

Rights Under Consent Judgment as Contractual. - Insofar as consent judgment imposed a duty of support on defendant-husband beyond that imposed by the common law or by statute, plaintiff-wife's rights did not arise out of the marriage, but out of contract. Haynes v. Haynes, 45 N.C. App. 376, 263 S.E.2d 783 (1980).

Consent Judgment Held Not Affected. - Where a consent judgment for alimony without divorce had been entered, a condition of which was that the wife would remain unmarried, the subsequent decreeing of a divorce a vinculo to the wife was not a violation of the terms of the consent judgment, and the judge had no authority to reduce the amount of alimony provided in the consent judgment upon that ground. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, aff'd, 194 N.C. 673, 140 S.E. 440 (1927), overruled on other grounds, Story v. Story, 221 N.C. 114, 19 S.E.2d 136 (1942).

Contractual Right to Continued Support Under Separation Agreement. - A separation agreement by which the husband agrees to support his wife even after a decree of divorce has been entered which, under this section, would otherwise terminate his obligation, is nonetheless valid. In such a case, the wife's right to continued support does not arise out of the marriage, but arises out of contract and survives the judgment of absolute divorce. Haynes v. Haynes, 45 N.C. App. 376, 263 S.E.2d 783 (1980).

Claim for Arrearages in Payment Under Predivorce Separation Agreement. - Plaintiff's claim for arrearages in payments under a predivorce separation agreement was based on a right arising out of contract, which survived a judgment of absolute divorce, and was not a right arising out of marriage which was terminated by a judgment of absolute divorce. McKnight v. McKnight, 25 N.C. App. 246, 212 S.E.2d 902, cert. denied, 287 N.C. 466, 215 S.E.2d 624 (1975).

Enforcement of Separation Agreement. - This section does not protect a mere separation agreement as an award of alimony, and such an agreement may not be enforced by imprisonment for contempt. Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946).

Award of Attorneys' Fees Where Plaintiff Is Unable to Defray Expenses. - An award under either G.S. 50-13.6 for "reasonable attorneys' fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit" or under subsection (c) of this section and G.S. 50-16.4, applying the doctrine of Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972), is appropriate upon a finding by the trial court in the exercise of its discretion that the plaintiff is unable to defray the expense of the suit. Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

Award of Counsel Fees for Services Rendered Subsequent to Absolute Divorce. - Unless the case falls within one of the two exceptions (now one exception) made by subsection (c) of this section, counsel fees may be awarded for services rendered to a dependent spouse subsequent to an absolute divorce in seeking to obtain or in resisting a motion for a revision of alimony or other rights provided under any judgment or decree of a court rendered before or at the time of the rendering of the judgment for absolute divorce. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

Under subsection (c) of this section, an award of counsel fees is allowed for services rendered to a dependent spouse subsequent to an absolute divorce in seeking to obtain or in resisting a motion for revision of alimony or other rights. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Counsel Fees for Enforcement of Subsistence Pendente Lite. - Since a wife's right to receive subsistence pendente lite is not destroyed by a judgment of absolute divorce, where her action for alimony without divorce is still pending, it would seem that the proviso in this section is broad enough to include counsel fees to the wife to enforce the payment to her of subsistence pendente lite in arrears, for without counsel her right to enforce such payments might be impaired or destroyed. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955).

Divorce Does Not Annul or Revoke Insurance Beneficiary Designation. - Neither this section, which provides that "all rights arising out of the marriage shall cease and determine," nor G.S. 31A-1, which bars rights to "any rights or interests in the property of the other spouse," discloses a legislative intent that divorce should annul or revoke the beneficiary designation in a garden-variety insurance certificate. DeVane v. Travelers Ins. Co., 8 N.C. App. 247, 174 S.E.2d 146 (1970).

Power of Alabama Court to Modify North Carolina Alimony Decree. - An Alabama court which had in personam jurisdiction over the parties could modify a North Carolina alimony decree, where the Alabama court in effect found that circumstances had changed since the entry of the North Carolina decree. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).

An Alabama court with in personam jurisdiction over the parties could not modify retroactively a North Carolina alimony judgment where there was no showing of any sudden emergency requiring such a reduction. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).

Claim for Equitable Distribution Properly Dismissed. - Trial court did not err in dismissing the wife's tardy claim for equitable distribution, either on the ground that the trial court had left the issue open or upon the ground that the husband was equitably estopped from relying on subsection (e) of this section, where, although the trial court specifically reserved the issue of equitable distribution for the future in its judgment of absolute divorce, the wife had not, and the husband had asserted a claim for equitable distribution for the future prior to the judgment of absolute divorce. Lutz v. Lutz, 101 N.C. App. 298, 399 S.E.2d 385 (1991), cert. denied, 328 N.C. 732, 404 S.E.2d 871 (1991).

Where an Alabama court which had in personam jurisdiction over the parties modified a North Carolina alimony decree, the dependent spouse's right to alimony was terminated as of the entry of the Alabama decree. There was no need to prolong the litigation by requiring the supporting spouse to commence a third proceeding in North Carolina to set aside the prior North Carolina judgment. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).

As to nonapplicability of 1953 and 1955 amendments to a 1951 judgment for absolute divorce, see Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955).

Former Bar Against Alimony for Spouse Obtaining Divorce on Ground of Separation. - As to the bar against a decree of alimony for the dependent spouse where this spouse both initiated an action for and obtained a divorce on the ground of the statutory separation period under subsection (c) of this section prior to its amendment by Session Laws 1981, c. 190, see Porter v. Citizens Bank, 249 N.C. 173, 105 S.E.2d 669 (1958); Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972); McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Modification of Alimony After Lump Sum Award Paid. - Where an ex-wife's motion to modify alimony was not filed until several years after the lump sum alimony award ordered by the trial court had been paid in full, the trial court's "modification" instead created a new award, which was forbidden by G.S. 50-11, and the wife was not entitled to a new alimony award. Cathey v. Cathey, 210 N.C. App. 230, 707 S.E.2d 638 (2011).

Power to Enter Alimony Order Ends Upon Divorce. - Party's filed counterclaim was sufficient to constitute an action pending when judgment of absolute divorce was entered, and a person had to apply specifically for the claim by cross-action or by a separate action, and the bare reservation by a trial court only preserved the claim for the party who had asserted the right prior to judgment of absolute divorce; while this applied to equitable distribution, there was no reason why alimony should not be treated the same for preservation purposes. Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471 (2006), cert. denied, 360 N.C. 536, 633 S.E.2d 826 (2006).

When a husband was granted an absolute divorce on the grounds of separation for one year, and the wife did not file a counterclaim or separate claim for alimony before the trial court entered a judgment of absolute divorce, which did not preserve an alimony claim, a statement in the wife's answer that "the claims for alimony and equitable distribution pending this action are to be reserved" was insufficient to give the trial court jurisdiction, under G.S. 50-11, to consider the wife's amended answer and counterclaim for alimony, despite the husband's answer to that counterclaim, as subject matter jurisdiction could not be conferred by the parties' consent. Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471 (2006), cert. denied, 360 N.C. 536, 633 S.E.2d 826 (2006).

Applied in Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228 (1960); Biggs v. Biggs, 253 N.C. 10, 116 S.E.2d 178 (1960); Sears v. Sears, 253 N.C. 415, 117 S.E.2d 7 (1960); Darden v. Darden, 20 N.C. App. 433, 201 S.E.2d 538 (1974); Sawyer v. Sawyer, 21 N.C. App. 293, 204 S.E.2d 224 (1974); Amaker v. Amaker, 28 N.C. App. 558, 221 S.E.2d 917 (1976); Webber v. Webber, 32 N.C. App. 572, 232 S.E.2d 865 (1977); Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978); Wise v. Wise, 42 N.C. App. 5, 255 S.E.2d 570 (1979); Lockamy v. Lockamy, 111 N.C. App. 260, 432 S.E.2d 176 (1993); Gilbert v. Gilbert, 111 N.C. App. 233, 431 S.E.2d 805 (1993).

Cited in In Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278 (1937); Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529 (1944); Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636 (1945); Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E.2d 469 (1958); Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373 (1962); Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852 (1962); O'Brien v. O'Brien, 266 N.C. 502, 146 S.E.2d 500 (1966); Becker v. Becker, 273 N.C. 65, 159 S.E.2d 569 (1968); Bailey v. Bailey, 26 N.C. App. 444, 216 S.E.2d 394 (1975); Hamilton v. Hamilton, 296 N.C. 574, 251 S.E.2d 441 (1979); Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980); O'Hara v. O'Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980); Payne v. Payne, 49 N.C. App. 132, 270 S.E.2d 546 (1980); McCall v. Harris, 55 N.C. App. 390, 285 S.E.2d 335 (1982); Robinson v. Robinson, 56 N.C. App. 737, 289 S.E.2d 612 (1982); Burmann v. Burmann, 64 N.C. App. 729, 308 S.E.2d 101 (1983); In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986); Lawson v. Lawson, 84 N.C. App. 51, 351 S.E.2d 794 (1987); Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110 (1987); Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013).


§ 50-11.1. Children born of voidable marriage legitimate.

A child born of voidable marriage or a bigamous marriage is legitimate notwithstanding the annulment of the marriage.

History

(1951, c. 893, s. 2.)

CASE NOTES

Child of Bigamous Marriage Entitled to Proceeds of Insurance Policy on Father. - Under this section, there can be no question but that a child born of a bigamous marriage is legitimate and as such is entitled to the proceeds of a policy of insurance issued to his deceased father pursuant to the Federal Employees' Group Life Insurance Act. Varker v. Metropolitan Life Ins. Co., 184 F. Supp. 159 (M.D.N.C. 1960).

Cited in Rehm v. Rehm, 2 N.C. App. 298, 163 S.E.2d 54 (1968).


§ 50-11.2. Judgment provisions pertaining to care, custody, tuition and maintenance of minor children.

Where the court has the requisite jurisdiction and upon proper pleadings and proper and due notice to all interested parties the judgment in a divorce action may contain such provisions respecting care, custody, tuition and maintenance of the minor children of the marriage as the court may adjudge; and from time to time such provisions may be modified upon due notice and hearing and a showing of a substantial change in condition; and if there be no minor children, the judgment may so state. The jurisdictional requirements of G.S. 50A-201, 50A-203, or 50A-204 shall apply in regard to a custody decree.

History

(1973, c. 927, s. 1; 1979, c. 110, s. 11; 1999-223, s. 10.)

Legal Periodicals. - For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

CASE NOTES

Jurisdiction. - Where a North Carolina judgment of absolute divorce made no provision for child support, and there was thus no existing order, the Texas Attorney General's petition to establish a support obligation was properly classified as a petition to establish an order of support rather than a petition to modify an order of no support; thus, under the Uniform Interstate Family Support Act, the Texas trial court had the authority to adjudicate the father's child support obligation, and because the North Carolina tribunal had not acquired continuing, exclusive jurisdiction, the trial court erred in granting the father's plea to the jurisdiction. Office of the AG of Tex. v. Long, 401 S.W.3d 911 (May 21, 2013).

Substantial Change in Condition. - A change in condition is substantial if the change would affect the best interests and welfare of the child. Carmichael v. Carmichael, 40 N.C. App. 277, 252 S.E.2d 257 (1979).

Effect of Separation Agreement. - While the marital and property rights of the parties under the provisions of a valid separation agreement cannot be ignored or set aside by the court without consent of the parties, such agreements are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560 (1976).

Where parties to a separation agreement agree upon the amount of the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable and that upon motion for an increase in such allowance, a court is not warranted in ordering an increase in the absence of any evidence of a change of conditions. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560 (1976).

Cited in Mohr v. Mohr, 155 N.C. App. 421, 573 S.E.2d 729 (2002).


§ 50-11.3. Certain judgments entered prior to January 1, 1981, validated.

Any judgment of divorce which has been entered prior to January 1, 1981, by a court of competent jurisdiction within the State of North Carolina without a conclusion of law that the plaintiff was entitled to an absolute divorce, but which is proper in all other respects, is hereby rendered valid and of full force and effect.

History

(1977, c. 320; 1981, c. 473.)

§ 50-11.4. Certain judgments of divorce validated.

Any judgment of divorce entered as a result of an action instituted prior to October 1, 1983, upon any grounds abolished by Chapter 613 of the 1983 Session Laws as amended by Section 217(O) of Chapter 923 of the 1983 Session Laws, which is proper in all other respects, is hereby rendered valid and of full force and effect.

History

(1985 (Reg. Sess., 1986), c. 952.)

§ 50-12. Resumption of maiden or premarriage surname.

  1. Any woman whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which she resides or where the divorce was granted setting forth her intention to do so, change her name to any of the following:
    1. Her maiden name; or
    2. The surname of a prior deceased husband; or
    3. The surname of a prior living husband if she has children who have that husband's surname.
  2. A man whose marriage is dissolved by decree of absolute divorce may, upon application to the clerk of court of the county in which he resides or where the divorce was granted setting forth his intention to do so, change the surname he took upon marriage to his premarriage surname.
  3. The application and fee required by subsection (e) of this section shall be presented to the clerk of the court of the county in which such divorced person resides or where the divorce was granted, and shall set forth the full name of the former spouse of the applicant, the name of the county and state in which the divorce was granted, and the term or session of court at which such divorce was granted, and shall be signed by the woman in her full maiden name, or by the man in his full premarriage surname. The clerks of court of the several counties of the State shall record and index such applications in such manner as shall be required by the Administrative Office of the Courts.
  4. If an applicant, since the divorce, has adopted one of the surnames listed in subsection (a) or (a1) of this section, the applicant's use and adoption of that name is validated.
  5. In the complaint, or counterclaim for divorce filed by any person in this State, the person may petition the court to adopt any surname as provided by this section, and the court is authorized to incorporate in the divorce decree an order authorizing the person to adopt that surname.
  6. For support of the General Court of Justice, a fee in the amount of ten dollars ($10.00) shall be assessed against each person requesting the resumption of maiden or premarriage surname in accordance with this section. Sums collected under this section shall be remitted to the State Treasurer.

History

(1937, c. 53; 1941, c. 9; 1951, c. 780; 1957, c. 394; 1971, c. 1185, s. 23; 1981, c. 494, ss. 1-4; 1985, c. 488; 1993 (Reg. Sess., 1994), c. 565, s. 1; 2005-38, s. 1; 2010-31, s. 15.9(a).)

Effect of Amendments. - Session Laws 2010-31, s. 15.9(a), effective October 1, 2010, and applicable to fees assessed or collected on or after that date, in the first sentence of subsection (b), inserted "and fee required by subsection (e) of this section" and substituted "shall be presented" for "shall be addressed"; and added subsection (e).

CASE NOTES

Wife Need Not Use Husband's Surname. - There is no statutory requirement in this State that a married woman use her husband's surname. In re Mohlman, 26 N.C. App. 220, 216 S.E.2d 147 (1975).

Section Merely Recognizes Possible Common-Law Change in Name. - This section does not imply a requirement that a married woman must assume her husband's surname. It merely recognizes that by her marriage the wife may have, through usage, effected a common-law change in her name, but it does not indicate that she was compelled to do so. In re Mohlman, 26 N.C. App. 220, 216 S.E.2d 147 (1975).

Woman Does Not by Marriage Give Up Right to Change Name. - Nothing in the law states that by marriage a woman gives up her right as a person to change her name as anyone else might change his or hers. In re Mohlman, 26 N.C. App. 220, 216 S.E.2d 147 (1975).

Opinions of Attorney General

Wife Must Have Filed Complaint or Counterclaim. - The court, in the divorce decree, may not grant authorization for the wife to resume her maiden name unless the wife filed complaint for divorce or a counterclaim (cross bill) for divorce. See opinion of Attorney General to the Honorable John H. Parker, District Court Judge, 10th Judicial District, 50 N.C.A.G. 16 (1980).

§ 50-13: Repealed by Session Laws 1967, c. 1153, s. 1.

Cross References. - As to actions or proceedings for custody of minor children, see G.S. 50-13.1 et seq.


§ 50-13.01. Purposes.

It is the policy of the State of North Carolina to:

  1. Encourage focused, good faith, and child-centered parenting agreements to reduce needless litigation over child custody matters and to promote the best interest of the child.
  2. Encourage parents to take responsibility for their child by setting the expectation that parenthood will be a significant and ongoing responsibility.
  3. Encourage programs and court practices that reflect the active and ongoing participation of both parents in the child's life and contact with both parents when such is in the child's best interest, regardless of the parents' present marital status, subject to laws regarding abuse, neglect, and dependency.
  4. Encourage both parents to share equitably in the rights and responsibilities of raising their child, even after dissolution of marriage or unwed relationship.
  5. Encourage each parent to establish and maintain a healthy relationship with the other parent when such is determined to be in the best interest of the child, taking into account mental illness, substance abuse, domestic violence, or any other factor the court deems appropriate.

History

(2015-278, s. 1.)

Editor's Note. - Session Laws 2015-278, s. 3, made this section effective October 20, 2015.

§ 50-13.1. Action or proceeding for custody of minor child.

  1. Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Any person whose actions resulted in a conviction under G.S. 14-27.21, G.S. 14-27.22, G.S. 14-27.23, or G.S. 14-27.24 and the conception of the minor child may not claim the right to custody of that minor child. Unless a contrary intent is clear, the word "custody" shall be deemed to include custody or visitation or both.
  2. Notwithstanding any other provision of law, any person instituting an action or proceeding for custody ex parte who has been convicted of a sexually violent offense as defined in G.S. 14-208.6(5) shall disclose the conviction in the pleadings.
  3. Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established pursuant to G.S. 7A-494, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation pursuant to subsection (c). Issues that arise in motions for contempt or for modifications as well as in other pleadings shall be set for mediation unless mediation is waived by the court. Alimony, child support, and other economic issues may not be referred for mediation pursuant to this section. The purposes of mediation under this section include the pursuit of the following goals:
    1. To reduce any acrimony that exists between the parties to a dispute involving custody or visitation of a minor child;
    2. The development of custody and visitation agreements that are in the child's best interest;
    3. To provide the parties with informed choices and, where possible, to give the parties the responsibility for making decisions about child custody and visitation;
    4. To provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and
    5. To reduce the relitigation of custody and visitation disputes.
  4. For good cause, on the motion of either party or on the court's own motion, the court may waive the mandatory setting under Article 39A of Chapter 7A of the General Statutes of a contested custody or visitation matter for mediation. Good cause may include, but is not limited to, the following: a showing of undue hardship to a party; an agreement between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child; allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological, psychiatric, or emotional problems. A showing by either party that the party resides more than fifty miles from the court may be considered good cause.
  5. Either party may move to have the mediation proceedings dismissed and the action heard in court due to the mediator's bias, undue familiarity with a party, or other prejudicial ground.
  6. Mediation proceeding shall be held in private and shall be confidential. Except as provided in this Article, all verbal or written communications from either or both parties to the mediator or between the parties in the presence of the mediator made in a proceeding pursuant to this section are absolutely privileged and inadmissible in court. The mediator may assess the needs and interests of the child, and may interview the child or others who are not parties to the proceedings when he or she thinks appropriate.
  7. Neither the mediator nor any party or other person involved in mediation sessions under this section shall be competent to testify to communications made during or in furtherance of such mediation sessions; provided, there is no privilege as to communications made in furtherance of a crime or fraud. Nothing in this subsection shall be construed as permitting an individual to obtain immunity from prosecution for criminal conduct or as excusing an individual from the reporting requirements of Article 3 of Chapter 7B of the General Statutes or G.S. 108A-102.
  8. Any agreement reached by the parties as a result of the mediation shall be reduced to writing, signed by each party, and submitted to the court as soon as practicable. Unless the court finds good reason not to, it shall incorporate the agreement in a court order and it shall become enforceable as a court order. If some or all of the issues as to custody or visitation are not resolved by mediation, the mediator shall report that fact to the court.
  9. If an agreement that results from mediation and is incorporated into a court order is referred to as a "parenting agreement" or called by some similar name, it shall nevertheless be deemed to be a custody order or child custody determination for purposes of Chapter 50A of the General Statutes, G.S. 14-320.1, G.S. 110-139.1, or other places where those terms appear.
  10. If the child whose custody is the subject of an action under this Chapter also is the subject of a juvenile abuse, neglect, or dependency proceeding pursuant to Subchapter 1 of Chapter 7B of the General Statutes, then the custody action under this Chapter is stayed as provided in G.S. 7B-200.

History

(1967, c. 1153, s. 2; 1989, c. 795, s. 15(b); 1998-202, s. 13(p); 2004-128, s. 10; 2005-320, s. 5; 2005-423, s. 4; 2007-462, s. 1; 2011-411, s 4; 2013-236, s. 13; 2015-181, s. 35.)

Local Modification. - Gaston: 1983, c. 761, s. 162; 1987 (Reg. Sess., 1988), c. 1036, s. 2; 1989, c. 547, s. 2; Mecklenburg: 1983, c. 761, s. 162; 1985, c. 698, s. 18(a); 1987, c. 524, s. 5; 1987, c. 703, s. 3; 1987 (Reg. Sess., 1988), c. 1036, s. 2; 1989, c. 547, s. 2.

Cross References. - As to jurisdiction of proceedings for child support and child custody, see G.S. 7A-244.

As to civil child-custody order, see G.S. 7B-911.

Editor's Note. - This section was amended by Session Laws 1989, c. 795, s. 15(b), in the coded bill drafting format provided by G.S. 120-20.1. Subsection (a) of this section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2015-181, s. 35, had substituted "G.S. 14-27.21, G.S. 14-27.22, G.S. 14-27.23, or G.S. 14-27.24" for "G.S. 14-27.2, G.S. 14-27.2A, or G.S. 14- 27.3" in subsection (a).

Effect of Amendments. - Session Laws 2005-423, s. 4, effective October 1, 2005, substituted "domestic violence between the parents in common" for "spouse abuse" in subsection (c).

Session Laws 2007-462, s. 1, effective October 1, 2007, and applicable to actions or proceedings filed on or after that date, added subsection (a1).

Session Laws 2013-236, s. 13, effective July 3, 2013, in subsection (a), inserted "G.S. 14-27.2A" and made a minor punctuation change.

Session Laws 2015-181, s. 35, effective December 1, 2015, substituted "G.S. 14-27.21, G.S. 14-27.22, G.S. 14-27.23, or G.S. 14-27.24" for "G.S. 14-27.2, G.S. 14-27.2A, or G.S. 14-27.3" in subsection (a). For applicability, see editor's note.

Legal Periodicals. - For caselaw survey on custody of children, see 41 N.C.L. Rev. 464 (1963); 44 N.C.L. Rev. 1000 (1966).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For article, "Equating a Stepparent's Rights and Liabilities Vis-A-Vis Custody, Visitation and Support upon Dissolution of the Marriage with Those of the Natural Parent - An Equitable Solution to a Growing Dilemma?," see 17 N.C. Cent. L.J. 1 (1988).

For comment, "An End to Settlement on the Courthouse Steps? Mediated Settlement Conferences in North Carolina Superior Courts," see 71 N.C.L. Rev. 1857 (1993).

For note, "Balancing the Welfare of Children with the Rights of Parents: Peterson v. Rogers and the Role of Religion in Custody Disputes", see 73 N.C.L. Rev. 1271 (1995).

For survey, "Why the Best Interests Standard Should Survive Petersen v. Rogers," see 73 N.C.L. Rev. 2451 (1995).

For comment, "Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina's Pre-Trial Process," 18 Campbell L. Rev. 281 (1996).

For article, "Re-Evaluating Grandparent Visitation in North Carolina in Light of Troxel v. Granville," see 23 Campbell L. Rev. 249 (2001).

For casenote: "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

For article, "When the Vow Breaks: An Analysis of the Impact of Intrinsic and Extrinsic Factors on Child Custody Resolution," see 41 Wake Forest L. Rev. 1297 (2006).

For article, "The Best Interests of the Child: Article & Empirical Study: Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce," see 43 Wake Forest L. Rev. 441 (2008).

For article, "The Best Interests of the Child: Article & Empirical Study: It's the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Medication in High-Conflict Custody Cases," see 43 Wake Forest L. Rev. 505 (2008).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

CASE NOTES

Legislative Intent. - By the enactment of G.S. 50-13.1 et seq., the legislature has sought to eliminate conflicting and inconsistent statutes which have caused pitfalls for litigants, and to bring all of the statutes relating to child custody and support together into one act. In re Holt, 1 N.C. App. 108, 160 S.E.2d 90 (1968); In re King, 3 N.C. App. 466, 165 S.E.2d 60 (1969); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).

Construction With Other Sections. - Subsection 7A-289.33(1) [see now G.S. 7B-1112(1)] is an exception to the general grant of standing to seek custody under subsection (a) of this section. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Trial court, in a custody case involving the son where reunification with a parent was the original goal and the county social services agency had obtained legal custody of him while awaiting a permanent disposition, did not enter a proper civil child-custody order pursuant to G.S. 7B-911. It made no findings of fact regarding its decision to transfer the son's juvenile case pursuant to "Chapter 50," G.S. 50-13.1, and to terminate its jurisdiction. In re J.B., 197 N.C. App. 497, 677 S.E.2d 532 (2009).

This and the following sections do not alter basic legal principles concerning custody. In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970).

Broad Application of Section. - Had the legislature intended this section to apply to only those custody disputes involved in a divorce or separation, it would have expressly so provided; therefore, the mere fact that it is found in the chapter of the General Statutes governing divorce and alimony is not sufficient to cause its application to be restricted to custody disputes involved in separation or divorce. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

Consideration of Prior Orders. - The trial court did not err in considering temporary custody orders and prior contempt orders in determining the issue of child custody. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

This Section and G.S. 48-9.1 Distinguished. - When this section and G.S. 48-9.1 are construed together, it is apparent that this section was intended as a broad statute, covering a myriad of situations in which custody disputes are involved, while G.S. 48-9.1 is a narrow statute, applicable only to custody of a minor child surrendered by its natural parents pursuant to G.S. 48-9(a)(1). Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

G.S. 48-9.1(1) as Exception to Grant of Standing in This Section. - G.S. 48-9.1(1) was intended as an exception to the general grant of standing to contest custody set forth in this section. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

Court Declined to exercise Jurisdiction in Custody Action While Adoption Proceeding Pending by Holding Custody Action in Abeyance. - Where an adoption proceeding was filed before the child's father filed an action for custody, in order to avoid unresolvable conflicts, the trial court had to decline to exercise its jurisdiction in the custody action while the adoption proceeding was pending by holding the custody action in abeyance. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486 (2013).

No Jurisdiction Over Custody. - Child custody action was not pending when a neglect proceeding was initiated because as the juvenile court obtained jurisdiction over the children, the juvenile court had continuing exclusive jurisdiction unless jurisdiction was terminated by order of the court; at the time the father filed the civil custody action, the trial court had no jurisdiction over the child custody action because of the already pending neglect proceeding. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019), cert. denied, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (N.C. 2020).

Subject Matter Jurisdiction. - Trial court erred in dismissing a father's action for custody of his son, as it did not lack subject matter jurisdiction due to a prior pending adoption proceeding involving the son; the "prior pending action" doctrine did not apply, as the parties were not the same in both actions and they did not request the same relief. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486 (2013).

Trial court properly dismissed a grandfather's complaint for custody of his maternal grandchild because it lacked subject matter jurisdiction to proceed due to a pre-existing child custody action between the child's paternal grandparents and the child's now-deceased mother, which did not abate for reasons of constitutional and statutory law and, and, while any relative could seek custody of a child, the grandfather did not file suit against an allegedly unfit parent, and as his complaint was more akin to a request to modify the custody order than it was an initial claim for custody, the proper procedure for the grandfather was to file a motion to intervene and a motion for custody in the grandparents' custody action. Rivera v. Matthews, 263 N.C. App. 652, 824 S.E.2d 164 (2019).

Rights of Parents. - Absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail. Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Rights of Parents Following Termination for Neglect. - Plaintiff did not have standing to seek custody of his biological children as an "other" person under subsection (a) of this section where his parental rights were previously terminated for neglect. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Rights of Presumed Parents. - Where there was no evidence another man had either been adjudicated the father of the child or acknowledged paternity, the marital presumption, that plaintiff was the natural father of the child, had not been rebutted and plaintiff thus had standing under this section to seek visitation rights with the child. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720 (1996).

Actions by Strangers. - This section was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers. Such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children. Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Standing of Other Persons to Bring Actions. - Where a third party and a child have an established relationship in the nature of parent-child relationship, the third party has standing as an "other person" under this subsection. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891 (1998), appeal dismissed, 349 N.C. 356, 517 S.E.2d 891 (1998).

Child's putative father had standing to seek the child's custody, under G.S. 50-13.1(a), before his paternity was proved, based on the trial court's findings that the child shared his last name, and he had visited the child for two years since the child's birth. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Former domestic partner's allegations that she was an "other person" who had standing to seek custody were sufficient under Ellison to support a trial court's denial of a biological mother's motion to dismiss the partner's petition for custody. The partner established standing under G.S. 50-13.1 by alleging that she and the mother: (1) jointly raised the child; (2) entered into a parenting agreement in which they each acknowledged that the partner was a de facto parent; (3) the partner had formed a psychological parenting relationship with the child; and (4) the child had lived all his life enjoying the equal participation of the mother and the partner in his emotional and financial care and support, guidance and decision-making. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008).

When a mother sued the adoptive parents of the mother's children for, inter alia, visitation with the children, the mother was not a qualified "other person," under G.S. 50-13.1, because, once the mother consented to the children's adoption by the adoptive parents, the mother was a legal stranger to the children who had no right to seek visitation with or custody of the children. Quets v. Needham, 198 N.C. App. 241, 682 S.E.2d 214 (2009).

Third-party caregivers lacked standing to seek custody of a two-year-old child under G.S. 50-13.4(a) because they only cared for the child and provided medical care for the child for two months, which was not a significant amount of time to establish a parent-child relationship with the child. Myers v. Baldwin, 205 N.C. App. 696, 698 S.E.2d 108 (2010).

Trial court properly dismissed a former partner's complaint seeking custody of a minor child for lack of standing where although the former partner had a parent-child relationship with the children during her relationship with the mother, that relationship ended when she evicted them from the residence, that fact defeated her standing as an other person under G.S. 50-13.1, and because she never alleged that either biological parent was unfit or had abandoned or neglected the children, she failed to overcome the presumption that they had superior rights. Chavez v. Wadlington, 261 N.C. App. 541, 821 S.E.2d 289 (2018), aff'd, 832 S.E.2d 692, 2019 N.C. LEXIS 912 (N.C. 2019).

Standing of Other Persons to Bring Actions. - Trial court properly considered an aunt and uncle's petition for custody of the aunt's and uncle's nephew, under G.S. 50-13.1(a), because (1) the aunt and uncle were the child's relatives, and (2) the child's mother acted in a manner inconsistent with the mother's paramount interest in the child's custody by placing the child with other parties and by acknowledging the mother's substance abuse problems. Yurek v. Shaffer, 198 N.C. App. 67, 678 S.E.2d 738 (2009).

Grandparents' Standing. - Grandparents had standing to seek custody under G.S. 50-13.1(a) when they filed their initial motion to intervene and, later, to enforce their visitation rights. Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father's death and the child had not been adopted by a stepparent or relative. Graham v. Jones, - N.C. App. - , 842 S.E.2d 153 (2020).

Conditions on Parental Visitation. - Trial court did not err in conditioning parent's visitation of minor children on the noncustodial parent's ability to control his obsessive compulsive behavior when with the children. Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661 (1993).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. - Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, - N.C. App. - , 843 S.E.2d 306 (2020).

Claim Not Precluded by Consent to Adoption. - Where petitioner signed a consent to the adoption of his children by their grandparents, the petitioner was rendered a stranger to the blood, but this in no way precluded his right to claim custody as an "other person" within the meaning of this section. In re Rooker, 43 N.C. App. 397, 258 S.E.2d 828 (1979).

Effect of Attempted Statutory Rape Conviction. - Although plaintiff pleaded guilty to attempted statutory rape, an act which resulted in the birth of a child, a trial court erred by dismissing plaintiff's action for visitation with the child because G.S. 50-13.1(a) precluded visitation for first-degree rape or second-degree rape convictions but not an attempted statutory rape conviction. Bobbitt v. Eizenga, 215 N.C. App. 378, 715 S.E.2d 613 (2011).

Best Interests of Child. - Subsection (a) of this section does not convey an absolute right upon every person who allegedly has an interest in the child to assert custody, but must operate to promote the best interests of the child in all custody determinations. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Regardless of the relationship between stepfather and child, the trial court erred when it granted stepfather visitation based on child's best interest without first determining if mother had acted inconsistently with her parental responsibilities. Seyboth v. Seyboth, 147 N.C. App. 63, 554 S.E.2d 378 (2001).

Order that deferred to a ch. 50 custody action but required agency to develop a permanency plan and the child's aunt to take specific steps to comply with it was not a final order; since the trial court also had a continuing G.S. 7B-907 (repealed, see now G.S. 7B-906.1) duty to consider evidence regarding the child's best interests, res judicata did not bar it from terminating the aunt's parental rights. In re C.E.L., 171 N.C. App. 468, 615 S.E.2d 427 (2005).

Conclusion of law that it was in a child's best interest to grant legal custody to the child's father was supported by the findings of fact because the father's fitness and ability to provide proper care to and supervision of the child and the mother's unfitness and inability to provide proper care for the child were uncontested as it was found: (1) that the father's visitation with the child had gone well; (2) that the child enjoyed a loving relationship with the father; (3) that the father was the child's biological father; (4) that the father had not abrogated his constitutional rights to parent the child; and (5) that, even though the father testified that he did not want to disrupt the child's situation by having the child live with him permanently, he also testified that he would take the child. In re H.S.F., 182 N.C. App. 739, 645 S.E.2d 383 (2007).

Sole custody award to a mother, subject to the father's visitation rights, was proper under G.S. 50-13.1 as it was in the children's best interests since the father had physically and emotionally abused the mother, and the mother continued to fear the father; the children were more closely bonded to the mother. O'Connor v. Zelinske, 193 N.C. App. 683, 668 S.E.2d 615 (2008).

Grandparents' Rights to Visitation Following Adoption and Termination. - The provisions of this section do not grant grandparents in a Chapter 7A proceeding standing to seek custody or visitation of a child who has been placed in the custody of the Department of Social Services after the child has been surrendered for adoption by one parent and the parental rights of the other parent have been terminated. Swing v. Garrison, 112 N.C. App. 818, 436 S.E.2d 895 (1993).

Grandparent Visitation Rights Survived Termination of Parental Rights. - Trial court erred in concluding a grandmother's visitation rights under a prior custody order did not survive termination of a mother's parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother's parental rights did not extinguish the grandmother's court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, - N.C. App. - , 826 S.E.2d 236 (2019).

Grandparents' Rights When Family Intact. - Reading subsection (a) in conjunction with G.S. 50-13.2(b1), 50-13.5(j), and 50-13.2A strongly suggests that the legislature did not intend "custody" and "visitation" to be interpreted as synonymous in the context of grandparents' rights. The three special statutes provide grandparents with the right to seek "visitation" only in certain clearly specified situations. Those situations do not include that of initiating suit against parents whose family is intact and where no custody proceeding is ongoing. McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995).

G.S. 50-13.1(a) does not grant plaintiffs the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact. McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995).

Grandparents do not have standing pursuant to subsection (a) to seek visitation with their grandchildren when the natural parents have legal custody of their children and are living with them as an intact family. Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996).

G.S. 50-13.5(j) makes it clear that grandparents have the right to file suit for custody or visitation during an ongoing proceeding, but it does not restrict their right to bring an initial custody suit pursuant to this section when there are allegations that the parent is unfit. Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258 (1996).

Subsection (a) grants grandparents the right to bring an initial suit for custody when there are allegations that the child's parents are unfit. Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258 (1996).

This statute is available for grandparents who seek visitation rights in two situations: (1) when the parents are unfit, have abandoned or neglected the child or have died; or (2) when by separation or divorce, custody is at issue between the parents; therefore, the statute was unavailable to a biological grandmother whose grandchildren had been adopted by their biological aunt. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226 (1998).

G.S. 50-13.1(a) did not provide a grandparent a right to sue for visitation with the children of the grandparent's deceased child, since the custody proceedings between the child and the children's surviving parent were terminated upon the child's death and the grandparent made no showing that the surviving parent was unfit. McDuffie v. Mitchell, 155 N.C. App. 587, 573 S.E.2d 606 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 368 (2003).

Grandparent Had No Rights to Proceed. - There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under this section, or G.S. 50-13.2(b1), G.S. 50-13.2A, or G.S. 50-13.5(j). Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214 (2000).

Disatisfaction with defendant mother's husband, their standard of living, and the couple's residence did not provide plaintiff grandmother and her husband with an adequate claim upon which court could justify removal of grandchild from mother's custody; plaintiff must allege facts which would support a finding that the defendant engaged in conduct inconsistent with her parental responsibility and/or constitutionally protected status. Penland v. Harris, 135 N.C. App. 359, 520 S.E.2d 105 (1999).

Grandparents, whose son was living separate and apart from his wife and children when he died in a highway accident, could not seek visitation with their grandchildren under this section because the children and their widowed mother constituted an "intact family." Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000).

The plaintiff/grandmother had no standing to seek visitation with her grandchildren under this section where the grandchildren, whose mother died in an automobile accident, and their father were an "intact family." Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559 (2000).

When grandparents initiate custody lawsuits under G.S. 50-13.1(a), those grandparents are not required to prove the grandchild is not living in an intact family in order to gain custody, instead, the grandparent must show that the parent is unfit or has taken action inconsistent with her parental status in order to gain custody of the child; the requirement to show unfitness if a grandparent initiates a custody dispute is consistent with a parent's constitutionally protected right to the care, custody, and control of the child and protects the parent's right to control with whom his child associates on a daily basis. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Intact family rule protects the parental right to determine with whom her children shall associate so a grandparent cannot initiate a lawsuit for visitation rights unless the child's family is already undergoing some strain on the family relationship, such as an adoption or an ongoing custody battle; accordingly, the grandparent's rights to the care, custody and control of the child are not constitutionally protected while the parent's rights are protected. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Under G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, and 50-13.5(j), a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative - the "intact family" rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child's family is not intact before the grandparent can intervene to request visitation with his grandchild - G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

As a grandmother failed to allege conduct sufficient to support a finding that the parents engaged in conduct inconsistent with their parental rights and responsibilities, she could not overcome the presumption that the parents had the superior right to the care, custody, and control of the child, and lacked standing to intervene. Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009).

Excluding Grandfather's Evidence in Support of Custody Motion Was Error. - The trial court erred in refusing to allow appellant paternal grandfather to offer evidence on the question of the best interest of the minor child in support of his motion for custody. In re O'Neal, 140 N.C. App. 254, 535 S.E.2d 620 (2000).

Award of Custody to Great Grandmother. - Termination of the aunt's parental rights and an award of permanent custody to the child's maternal great-grandmother was supported by substantial, competent evidence and affirmed, even though they had a pending ch. 50 custody action, where evidence at the G.S. 7B-907 (repealed, see now G.S. 7B-906.1) hearing indicated that the child's aunt, who had been awarded temporary custody, failed to: (1) comply with court orders, including drug testing; (2) make reasonable and timely progress towards permanency, including providing suitable living conditions; (3) prove that it was possible for the child to return to her home within six months; and (4) prove it was in the child's best interests to live with her. In re C.E.L., 171 N.C. App. 468, 615 S.E.2d 427 (2005).

Trial court properly applied G.S. 50-13.2's "best interests of the child" standard in awarding joint custody to a child's biological mother and her former domestic partner. The partner had standing to seek custody as an "other person" under G.S. 50-13.1(a), and there was clear and convincing evidence that the partner and the child established a significant bond. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008).

Nonretroactivity. - G.S. 50-13.1 through 50-13.8, relating to the custody and support of minor children, do not apply to litigation pending on October 1, l967, the effective date of the statutes. Speck v. Speck, 5 N.C. App. 296, 168 S.E.2d 672 (1969).

This and the following sections do not apply retroactively. Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E.2d 103 (1970).

Jurisdiction, Generally. - Where there is no question raised about the court having jurisdiction over a child, the matter of his custody is left open and this section applies. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

Continuing Nature of Jurisdiction. - The court in which a divorce action is brought acquires jurisdiction over the custody of the unemancipated children of the marriage, and such jurisdiction continues even after the divorce becomes final. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974).

Portion of Order Retaining Jurisdiction Interlocutory. - Trial court's order retaining jurisdiction to determine custody is not a final determination of issue involved; rather it determines where children's custody issue will be heard, which is preliminary to a final decree. The portion of the order retaining jurisdiction is interlocutory in nature. No substantial right of the defendant is affected which cannot be protected by the timely appeal from the trial court's ultimate disposition of the entire controversy on the merits. Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990).

District court had no right to assume custody jurisdiction of minor children upon its finding that they were "neglected" children, to the exclusion of the district court which had previously acquired such custody jurisdiction in a divorce and custody proceeding involving the children's parents. In re Greer, 26 N.C. App. 106, 215 S.E.2d 404, cert. denied, 287 N.C. 664, 216 S.E.2d 910 (1975).

Meaning of Word "Parents". - The word "parents" in former G.S. 50-13 and G.S. 49-1 and the word "parent" in G.S. 49-2 relate to the rights and duties of parents in respect to their children, and are in pari materia. Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592 (1955).

Family Units. - Unmarried parents living with their children have been accorded recognition as family units. Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996).

A single parent living with his or her child is an intact family. Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996).

"Minor Child" Under Prior Law. - Before the enactment of Chapter 48A, it was evident that the meaning of "minor child" within the purview of G.S. 50-13.1, et seq., contemplated the common-law age of majority, 21. Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972).

Nothing in this section limits custody proceedings to the parent of a legitimate child. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Civil Action to Obtain Custody of Illegitimate Child. - Under the 1949 amendment to former G.S. 50-13, either parent could institute a special proceeding to obtain custody of his or her child in cases not theretofore provided for by former G.S. 17-39, and this amendment authorized such proceeding by the mother of an illegitimate child to obtain its custody from her aunt, with whom she had entrusted the child, and thus restricted the jurisdiction of the juvenile court in such instances. In re Cranford, 231 N.C. 91, 56 S.E.2d 35 (1949). See also, Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592 (1955).

The putative father of an illegitimate child, even though his right to custody is not primary, has such an interest in the welfare of his child that he can bring a proceeding against the mother for its custody. Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965), decided under former G.S. 50-13.

Claim for Custody Held Not Frivolous. - Where there was no indication at trial that the grandparents in fact did not wish to obtain custody of the children or that their claim was made in bad faith, the fact that the grandparents had originally asked for visitation did not make their later claim for custody violative of G.S. 1A-1, Rule 11. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

Trial Court Erred in Failing to Honor the Order Requiring the Parties to Mediate Child Custody and Visitation. - Trial court erred in failing to honor the order requiring the parties to mediate child custody and visitation issues and in prematurely deciding those issues without allowing the parties to attempt an amicable compromise beneficial to them and the minor child; nothing in the record indicated contemplation of or compliance with G.S. 50-13.1, and the record was devoid of the materials and motions expressly required for compliance with the local rules established pursuant to G.S. 50-13.1 for the regulation of mediation of custody and visitation. Chillari v. Chillari, 159 N.C. App. 670, 583 S.E.2d 367 (2003).

Where grandmother was a good housekeeper and showed the ability to care for the children the trial court erred in denying and dismissing grandmother's petition for custody on the basis of its "serious concerns" about her parenting skills because of problems experienced by her daughter. Smith v. Alleghany County Dep't of Social Servs., 114 N.C. App. 727, 443 S.E.2d 101, cert. denied, 337 N.C. 696, 448 S.E.2d 533 (1994).

Relocation to Another State Held Proper. - Mother was properly permitted to relocate with the parties' three children to Minnesota under G.S. 50-13.1 as: (1) neither the father nor the mother had a support system in North Carolina; (2) the maternal grandmother could assist in supporting the children if the mother and the children moved back to Minnesota; (3) the mother had a job lined up in Minnesota; (4) the advantages of relocation to the children outweighed the disadvantages, and relocation was in the children's best interests; and (5) the father's visitation rights had to be subordinated to the children's best interests. O'Connor v. Zelinske, 193 N.C. App. 683, 668 S.E.2d 615 (2008).

Interlocutory Order Not Appealable. - Because an order was best characterized as a temporary child custody order under G.S. ch. 50 rather than as a disposition order under G.S. ch. 7B, and was set for review in approximately four months, it was an interlocutory order that did not affect any substantial right and was not appealable. In re N.T.S., 209 N.C. App. 731, 707 S.E.2d 651 (2011), review denied 365 N.C. 203, 710 S.E.2d 7, 2011 N.C. LEXIS 462 (N.C. 2011).

Dismissal Improper. - Dismissal of a wife's claims for child support and child custody for lack of subject matter jurisdiction was error as separation or initiation of a claim for divorce from bed and board was not a precondition for maintaining those claims under G.S. 50-13.1 and G.S. 50-13.5 Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011).

Guardianship Versus Custody. - When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt's subsequent guardianship petition made the custody action moot because, (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk's jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts' custody awards, so the clerk had jurisdiction to appoint the children's general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564 (2016).

As to effect of foreign adjudication of paternity, see Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977).

Modification of Custody Order. - Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019), cert. denied, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (N.C. 2020).

Applied in Mauney v. Mauney, 12 N.C. App. 269, 182 S.E.2d 861 (1971); In re Branch, 16 N.C. App. 413, 192 S.E.2d 43 (1972); In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984); McRoy v. Hodges, 160 N.C. App. 381, 585 S.E.2d 441 (2003); Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886 (2015).

Cited in Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969); Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282 (1973); Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975); Acker v. Barnes, 33 N.C. App. 750, 236 S.E.2d 715 (1977); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640 (1979); Neal v. Neal, 69 N.C. App. 766, 318 S.E.2d 255 (1984); Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986); In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988); In re Duncan, 112 N.C. App. 196, 435 S.E.2d 121 (1993); Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452 (1998); West v. Marko, 141 N.C. App. 688, 541 S.E.2d 226 (2001); David v. Ferguson, 153 N.C. App. 482, 571 S.E.2d 230 (2002); Mohr v. Mohr, 155 N.C. App. 421, 573 S.E.2d 729 (2002); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); Chillari v. Chillari, 159 N.C. App. 670, 583 S.E.2d 367 (2003); Gorsuch v. Dees, 173 N.C. App. 223, 618 S.E.2d 747 (2005); McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590 (2010); Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1 (2010); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011); Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013); Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014); Thomas v. Thomas, 2 33 N.C. App. 736, 757 S.E.2d 375 (2014); In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016); In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017).


§ 50-13.2. Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State; consideration of parent's military service.

  1. An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party. An order for custody must include written findings of fact that reflect the consideration of each of these factors and that support the determination of what is in the best interest of the child. Between the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
  2. An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions. Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence, in accordance with the provisions of G.S. 50B-3(a1)(1), (2), and (3). If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.
  3. An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.
  4. Any order for custody, including visitation, may, as a condition of such custody or visitation, require either or both parents, or any other person seeking custody or visitation, to abstain from consuming alcohol and may require submission to a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, to verify compliance with this condition of custody or visitation. Any order pursuant to this subsection shall include an order to the monitoring provider to report any violation of the order to the court and each party to the action. Failure to comply with this condition shall be grounds for civil or criminal contempt.
  5. An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court.
  6. If, within a reasonable time, one parent fails to consent to adoption pursuant to Chapter 48 of the General Statutes or parental rights have not been terminated, the consent of the other consenting parent shall not be effective in an action for custody of the child.
  7. An order for custody of a minor child may provide for visitation rights by electronic communication. In granting visitation by electronic communication, the court shall consider the following:
    1. Whether electronic communication is in the best interest of the minor child.
    2. Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
    3. Any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
  8. In a proceeding for custody of a minor child of a service member, a court may not consider a parent's past deployment or possible future deployment as the only basis in determining the best interest of the child. The court may consider any significant impact on the best interest of the child regarding the parent's past or possible future deployment.

The court may set guidelines for electronic communication, including the hours in which the communication may be made, the allocation of costs between the parents in implementing electronic communication with the child, and the furnishing of access information between parents necessary to facilitate electronic communication. Electronic communication with a minor child may be used to supplement visitation with the child. Electronic communication may not be used as a replacement or substitution for custody or visitation. The amount of time electronic communication is used shall not be a factor in calculating child support or be used to justify or support relocation by the custodial parent out of the immediate area or the State. Electronic communication between the minor child and the parent may be subject to supervision as ordered by the court. As used in this subsection, "electronic communication" means contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.

History

(1957, c. 545; 1967, c. 1153, s. 2; 1977, c. 501, s. 2; 1979, c. 967; 1981, c. 735, ss. 1, 2; 1985, c. 575, s. 3; 1987, c. 541, s. 2; c. 776; 1995 (Reg. Sess., 1996), c. 591, s. 5; 2004-186, s. 17.1; 2009-314, s. 1; 2012-146, s. 10; 2013-27, s. 1; 2015-278, s. 2; 2017-186, s. 2(pppp).)

OFFICIAL COMMENT TO SUBSECTION (F)

[ Editor's note. - This comment is the Official Comment to Section 107 of the Uniform Deployed Parents Custody and Visitation Act, which was the basis for subsection (f) as added by Session Laws 2013-27, s. 1. The Official Comment is printed here pursuant to the authority in Session Laws 2013-27, s. 5, for the Revisor of Statutes to cause the Official Comments to the Act to be printed. For other provisions of the Act, see Article 3 (Uniform Deployed Parents Custody and Visitation Act) of Chapter 50A of the General Statutes, G.S. 50A-350 et seq.]

[Section] 107 [subsection (f) of this section], in contrast to later articles of the Act [Uniform Deployed Parents Custody and Visitation Act], does not directly concern custody procedures in conjunction with a service member's deployment. Instead, it seeks to amend the state's general standard for child custody to guard against the possibility that courts will use past or possible future deployment as a negative factor in determining custody by service members without serious consideration of whether the child's best interest was or would be truly compromised by such deployment.

This section [subsection (f)], prohibits the court from using a parent's past deployment or possible future deployment itself as a negative factor in determining the best interests of the child. However, the significant effects on the child of the parent's past or possible future service may be considered. The term "significant" is meant to exclude the court's considering trivial impact of a parent's deployment, such as the need to enroll a child in a different school. Under this standard, the court may only consider impacts that are material or substantial. For example, the court may consider that the child has bonded closely with step-siblings while in a temporary custody arrangement during a deployment, or that the child does not adjust well to new situations and therefore will likely have difficulty relocating if a parent is deployed in the future.

Cross References. - As to procedure, etc., in actions for custody and support, see G.S. 50-13.5 and notes thereunder.

As to written findings or denial of visitation rights to parent, see G.S. 50-13.5(i).

As to custody and visitation rights of grandparents, see G.S. 50-13.5(j).

As to the maintenance of certain actions as independent actions, see G.S. 50-19.

As to Uniform Deployed Parents Custody and Visitation Act, see G.S. 50A-350 et seq.

Editor's Note. - Session Laws 2013-27, s. 4, provides: "Nothing in Article 3 of Chapter 50A of the General Statutes, enacted in Section 3 of this act, shall affect the validity of a temporary court order concerning custodial responsibility during deployment entered before the effective date of this act."

Session Laws 2013-27, s. 5, provides: "The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comment to the Uniform Deployed Parents Custody and Visitation Act as the Revisor may deem appropriate."

Effect of Amendments. - Session Laws 2009-314, s. 1, effective July 17, 2009, added subsection (e).

Session Laws 2012-146, s. 10, effective December 1, 2012, added subsection (b2). For applicability, see editor's note.

Session Laws 2013-27, s. 1, effective October 1, 2013, added "consideration of parent's military service" at the end of the section heading; and added subsection (f).

Session Laws 2015-278, s. 2, effective October 20, 2015, in subsection (a), deleted "and shall make findings accordingly" at the end of the second sentence, inserted "written" and substituted "that reflect the consideration of each of these factors and that" for "which" in the third sentence, and substituted "the parents" for "the mother and father" in the fourth sentence.

Session Laws 2017-186, s. 2(pppp), effective December 1, 2017, inserted "and Juvenile Justice" in the first sentence of subsection (b2).

Legal Periodicals. - For article, "Mediation-Arbitration: A Proposal for Private Resolution of Disputes Between Divorced or Separated Parents," see 1976 Duke L.J. 911.

For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article on rights and interest of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).

For article, "Custody of the Illegitimate Child," see 18 N.C. Cent. L.J. 18 (1989).

For article, "The Parental Rights of Unwed Fathers: A Developmental Perspective," see 20 N.C. Cent. L.J. 45 (1992).

For note, "Balancing the Welfare of Children with the Rights of Parents: Peterson v. Rogers and the Role of Religion in Custody Disputes", see 73 N.C.L. Rev. 1271 (1995).

For survey, "Why the Best Interests Standard Should Survive Petersen v. Rogers," see 73 N.C.L. Rev. 2451 (1995).

For note, "The Effect on the Child of a Custodial Parent's Involvement in an Intimate Same-Sex Relationship," see 10 Campbell L. Rev. 131 (1996).

For casenote: "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-13, which prior to its repeal in 1967 dealt with custody and maintenance of children in actions for divorce.

Applicability. - The plain language of G.S. 50-13.2(b) is referring to the party who is absent or has relocated with or without the children because of an act of domestic violence; therefore, a mother's claim that the trial court violated G.S. 50-13.2(b) failed because that language did not apply to the situation since the mother had not relocated due to an act of domestic violence, or, to the extent the language of the section could apply, it would apply to the father who had relocated to another country. Thus, the trial court was required not to weigh the father's absence or relocation against him in determining custody or visitation. Jordao v. Jordao, - N.C. App. - , - S.E.2d - (Oct. 6, 2020).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Jurisdiction. - When a divorce action is instituted, the court acquires jurisdiction over the children born to the marriage, and may hear and determine questions as to the custody and maintenance of the children both before and after final decree of divorce. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

Custody Proceedings Are Continuing. - There is no requirement that each successive custody hearing starts with a "clean slate" and that the court cannot rely on the record previously generated. To the contrary, custody proceedings generally are continuing in nature. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

A judgment awarding custody is based upon the conditions found to exist at the time it is entered. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

Simultaneous Adoption and Custody Actions. - Because the legislature has enunciated a public policy that every child should have a permanent plan of care, because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care and because the superior court has jurisdiction over adoptions, that court's jurisdiction supersedes that of the district court with regard to the custody of a child the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

In the absence of an order of consolidation when the same child is the subject of a simultaneous custody and adoption proceeding, both the superior and district courts do not have continuing jurisdiction to fully adjudicate the respective issues before them. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

The filing of an adoption petition in the superior court divests the district court of jurisdiction to adjudicate issues of custody with regard to a child who is the subject of an adoption petition. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

Recommendation of Guardian Ad Litem. - Pursuant to G.S. 7A-640 [see now G.S. 7B-901 and G.S. 7B-2501], the court may consider the recommendation of a guardian ad litem concerning the needs of a juvenile. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984).

Mother Not Entitled to Proceeds of Forfeited Bond. - A bond posted by father in custody dispute was deemed to be an appearance bond designed to guarantee his appearance before the court and as a penalty in the event of his failure to appear, and under N.C. Const., Art. IX, § 7 the county board of education was entitled to the clear proceeds of its forfeiture. Mussallam v. Mussallam, 321 N.C. 504, 364 S.E.2d 364, rehearing denied, 321 N.C. 116, 367 S.E.2d 915 (1988).

Provisions in Custody Orders. - Provisions directing the parties to cooperate with one another and to refrain from conduct that will be detrimental to the child are commonly included in custody orders. Watkins v. Watkins, 120 N.C. App. 475, 462 S.E.2d 687 (1995), appeal dismissed, 343 N.C. 128, 468 S.E.2d 795 (1996).

Order requiring a custodial mother to move back to the county in which the parties had resided before separating to live in the marital home was set aside because, while the court could find the relative benefits of the children living with the father in one county or the mother in another county when making a primary custody determination, the order was not a "related matter" the general assembly gave trial courts the authority to decide. Kanellos v. Kanellos, 251 N.C. App. 149, 795 S.E.2d 225 (2016).

Rights of Parents to Children's Records. - Trial court properly ordered that a mother share a child's school and medical records with the father, as G.S. 50-13.2(b) provided that each parent have equal access to the records of the minor child involving the health, education, and welfare of the child. Young v. Young, 169 N.C. App. 31, 609 S.E.2d 795 (2005).

Denial to a noncustodial mother of access to the medical, educational, and counseling records of the mother's child was in error because the court's findings of fact did not support a conclusion that it was in the best interest of the child to prevent the mother from accessing the records. While the mother's behavior at the child's school was disruptive, the findings did not indicate that the mother's behavior made third-party professionals sufficiently concerned about their own safety, or have any other negative effect on the child. Paynich v. Vestal, - N.C. App. - , 837 S.E.2d 433 (2020).

Collateral estoppel effect of findings in domestic violence protective order entered under G.S. 50B-1(a), finding that the mother was responsible for the incident, collaterally estopped the finding in the custody case that the father was responsible for the incident; when the protective order was not appealed the collateral legal consequences of that order became final, precluding reconsideration of the order in the custody action under G.S. 50-13.2. Doyle v. Doyle, 176 N.C. App. 547, 626 S.E.2d 845 (2006).

Trial court erred in a custody case in finding that the father had committed domestic violence because, in a prior domestic violence case, the court specifically found that the father had not committed domestic violence; G.S. 50-13.2(a) required the court in a custody case to consider domestic violence, but collateral estoppel prevented the court in the custody case from making findings which were contrary to the findings in the prior domestic violence action. Simms v. Simms, 195 N.C. App. 780, 673 S.E.2d 753 (2009).

Electronic Communication Not Equal to In-Person Visitation. - G.S. 50-13.2 provided that electronic communication may not be used as a replacement or substitution for custody or visitation and, thus, the plaintiff's contention that electronic communication was a form of visitation equal to that of in-person visitation was incorrect. Deanes v. Deanes, - N.C. App. - , 837 S.E.2d 404 (2020).

Applied in State v. Wrenn, 16 N.C. App. 411, 191 S.E.2d 913 (1972); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975); Stanback v. Stanback, 31 N.C. App. 174, 229 S.E.2d 693 (1976); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452 (1998); McDuffie v. Mitchell, 155 N.C. App. 587, 573 S.E.2d 606 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 368 (2003); In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008); Buck v. Greenlee, - F. Supp. 2d - (W.D.N.C. Sept. 30, 2011).

Cited in Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983); Prescott v. Prescott, 83 N.C. App. 254, 350 S.E.2d 116 (1986); Mussallam v. Mussallam, 321 N.C. 504, 364 S.E.2d 364 (1988); Ray v. Ray, 103 N.C. App. 790, 407 S.E.2d 592 (1991); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993); In re Duncan, 112 N.C. App. 196, 435 S.E.2d 121 (1993); Westneat v. Westneat, 113 N.C. App. 247, 437 S.E.2d 899 (1994); Vann v. Vann, 128 N.C. App. 516, 495 S.E.2d 370 (1998); Penland v. Harris, 135 N.C. App. 359, 520 S.E.2d 105 (1999); Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000); Mohr v. Mohr, 155 N.C. App. 421, 573 S.E.2d 729 (2002); Senner v. Senner, 161 N.C. App. 78, 587 S.E.2d 675 (2003); Faulkenberry v. Faulkenberry, 169 N.C. App. 428, 610 S.E.2d 237 (2005); Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009); Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1 (2010); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); Carpenter v. Carpenter, 225 N.C. App. 269, 737 S.E.2d 783 (2013); Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013); State v. Allah, 231 N.C. App. 88, 750 S.E.2d 903 (2013); Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014); In re J.D., 234 N.C. App. 342, 759 S.E.2d 375 (2014); In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017).

II. WELFARE OF CHILD.

The welfare of the child is the paramount consideration in custody matters. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Williams v. Williams, 18 N.C. App. 635, 197 S.E.2d 629 (1973); Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977).

The best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and neither of these rights should be permitted to jeopardize the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

Although at one time under the common law the father was generally entitled to the custody of minor children, the courts at the present time almost invariably adhere to the principle that the welfare or best interest of the child is the paramount consideration. This was the rule adhered to by North Carolina courts for many years, and is now prescribed by this section. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

The child's welfare is the principal consideration in determining custody matters. In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228 (1969).

The primary consideration in custody cases is the welfare of the child or children involved. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969).

An order for custody of a minor child cannot be affirmed without a clear indication that it rested on a determination of what would be in the child's best interest. That is the paramount consideration in custody cases. In re DiMatteo, 62 N.C. App. 571, 303 S.E.2d 84 (1983).

And the Polar Star by Which Court Is Guided. - The welfare of the child is the polar star by which the discretion of the court is to be guided. In re Lewis, 88 N.C. 31 (1883); Brake v. Brake, 228 N.C. 609, 46 S.E.2d 643 (1948); Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350 (1953); Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966); In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524 (1968); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, cert. denied, 281 N.C. 622, 190 S.E.2d 465 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, cert. denied, 283 N.C. 585, 196 S.E.2d 809 (1973); Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513 (1975); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

The welfare of the child is controlling in determining the right to custody of the child as between its divorced parents. Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884 (1949).

This section expresses the policy of the State that the best interest and welfare of the child is the paramount and controlling factor to guide the judge in determining the custody of a child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

As the Determining Factor. - The children of the marriage become the wards of the court, and their welfare is the determining factor in custody proceedings. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782 (1969).

The welfare of the children is the determining factor in custody proceedings, and an award of custody based on that factor will be upheld when supported by competent evidence. In re Poole, 8 N.C. App. 25, 173 S.E.2d 545 (1970).

And the Guiding Principle. - The guiding principle to be used by the court in a custody hearing is the welfare of the children involved. While this guiding principle is clear, decision in particular cases is often difficult, and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782 (1969); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981).

The trial court should primarily be concerned with the welfare of the child in deciding which party before it should be charged with the enormous responsibilities of custodianship of the child. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978).

In a custody proceeding, it is not the function of the court to punish or reward a parent by withholding or awarding custody of minor children; the function of the court in such a proceeding is to diligently seek to act for the best interests and welfare of the minor child. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1 (1969).

The best interest of the child is the overriding factor in custody determinations. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516 (1979).

Joint custody and any other custody award must include findings of fact which support such determination of child's best interests. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627 (1990).

Considered in Light of All Surrounding Circumstances. - The best interest of the child, in light of all the surrounding circumstances, is the paramount consideration which must guide the court in awarding custody of a minor child. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, cert. denied, 309 N.C. 460, 307 S.E.2d 362 (1983).

Tender Years Presumption Abolished. - Trial court erred in entering a custody order concerning the parties' child; the trial court improperly relied on the tender years presumption in granting custody to the mother, as that presumption had been abolished, and G.S. 50-13.2(a) required that the custody decision be based solely on the best interests of the child, and G.S. 8C-1, Rule 201(b) did not allow the trial court to take judicial notice of the assumptions underlying an abolished doctrine in order to resurrect the doctrine. Greer v. Greer, 175 N.C. App. 464, 624 S.E.2d 423 (2006).

Trial court did not apply tender years presumption in awarding a mother primary physical and legal custody of the parties' child because there was nothing in the record to suggest the trial court relied on a psychologist's affidavit or the mother's testimony regarding a "special bond" in awarding the mother custody, and, in fact, the trial court specifically noted the child was securely bonded to the father. Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299 (2012), review denied, 743 S.E.2d 191, 2013 N.C. LEXIS 552 (2013).

The trial judge is entrusted by this section with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child's physical, mental, emotional, moral and spiritual faculties. In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).

Any evidence of child abuse is of the utmost concern in determining whether the grant of custody to a particular party will best promote the interest and welfare of the child, and any evidence of such abuse must be resolved by the trial court in its findings of fact. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669 (1984).

Evidence of paternity may properly be considered in determining the best interests of the children. Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661 (1993).

A natural parent's constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

Acts of Domestic Violence Between Parties. - Trial court's best interests of the children determination under G.S. 50-13.2(a) was supported by its findings of fact, including its finding that the father had "body slammed" the mother 20 to 50 times during the marriage, and threatened to punch his brother-in-law in the nose. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901 (2008).

Although a mother voluntarily dismissed her domestic violence complaint at the time a memorandum of judgment was entered regarding custody, a trial court did not abuse its discretion in considering the claim when the father filed a motion for modification of custody, pursuant to G.S. 50-13.7, because "acts of domestic violence between the parties" was one of the factors the trial court was to consider, pursuant to G.S. 50-13.2(a), when making findings as to the best interests of the child. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

In a mother's suit for the issuance of a domestic violence protective order, it was error to deny an out of state father's motion to dismiss for lack of personal jurisdiction based on a theory, adopted in other states, distinguishing between "affirmative" and "prohibitive" orders because (1) that theory was not adopted, and (2) the father's substantial rights were implicated, as, inter alia, the issuance of such an order could affect the father's right to custody of the child. Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653 (2016).

III. RIGHT OF PARENTS TO CUSTODY.

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A. AS AGAINST THIRD PERSONS.

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Due Process. - If a natural parent's conduct has not been inconsistent with his or her constitutionally protected status, application of the "best interest of the child" standard in a custody dispute with a nonparent would offend the Due Process Clause. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

Conduct inconsistent with a parent's protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the "best interest of the child" test without offending the Due Process Clause. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

Child's biological mother voluntarily relinquished her paramount parental right to make decisions under the due process clause when she entered into a parenting agreement with her former domestic partner to hold herself, the partner, and the child out as a family unit. The voluntary relinquishment of rights was inconsistent with her paramount rights under the due process clause. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008).

Parents Have Legal Right to Custody of Their Children. - Parents, including the mother of an illegitimate child, have the legal right to have the custody of their children unless clear and cogent reasons exist for denying them this right. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interest and welfare of the children clearly require it. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580 (1972).

Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of the parties' minor children. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971); Vaughn v. Tyson, 14 N.C. App. 548, 188 S.E.2d 614 (1972).

Where mother abandons any claim she may have to the custody of her daughter, father alone has the natural and legal right to the custody of the child, unless for substantial and sufficient reasons the interest and welfare of the child require that he be denied that right. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910 (1969).

The mother of an illegitimate child is its natural guardian, and as such, has a legal right to its custody, care and control, if she is a suitable person, even though others may offer more material advantages in life for the child. But this rule is not absolute, and the custody of an illegitimate child may be taken from the mother and placed elsewhere when it clearly and manifestly appears that the best interests and welfare of the child demand it. Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370 (1954).

Absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail. Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Which Will Be Interfered with Only When Clearly Required. - Where one parent is dead, the surviving parent has a natural and legal right to custody and control of the parties' minor children. This right is not absolute, but it may be interfered with or denied only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457 (1983).

For Parent's Misconduct or Child's Welfare. - The law presumes that the best interests of a child will be served by committing it to the custody of a parent, when the parent is a suitable person; this presumption is not overcome merely by showing that some third person can give the child better care and greater comforts and protection than the parent. A parent's right to custody of a child may be forfeited only by misconduct or by other facts which substantially affect the child's welfare. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580 (1972).

But Child's Welfare Is the Paramount Consideration. - While the law presumes that the best interest of a child will be served by committing it to the custody of a parent, when the parent is a suitable person, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents, must be deferred or subordinated. Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504 (1983).

Parent's Love Must Yield to Child's Best Interests. - The child's welfare is the paramount consideration, and a parent's love must yield to another if, after judicial investigation, it is found that the best interest of the child is subserved thereby. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782 (1969).

The "paramount consideration" and "polar star" which have long governed and guided the discretion of the trial judges are the welfare and needs of the child, not the persons seeking his or her custody, and even parental love must yield to the promotion of those higher interests. In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).

The natural parent is presumed to be the appropriate custodian of his or her child, as opposed to third persons, and should not be deprived of custody merely because the child could be better cared for in a material sense. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978).

But This Presumption May Be Rebutted. - While it is presumed that it is in the child's best interest to be placed with a natural parent, this presumption may be rebutted by a circumstance which would substantially affect the child. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516 (1979).

The primary concern of the trial court in a custody matter, as mandated by subsection (a) of this section, is the welfare of the child, and this concern outweighs the presumption favoring the award of custody to a natural parent. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984).

The presumption in favor of the natural parents is rebuttable. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Although there is a rebuttable presumption in favor of a natural parent, it is not necessary to prove unfitness in order to overcome the presumption. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79 (1994).

A court must award custody based only upon the best interest and welfare of the child. A court must have discretion to determine the best interest of a child, and should not be restricted to awarding custody to a natural parent in the absence of a finding of unfitness. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79 (1994).

It is not necessary to prove a natural parent unfit in order to award custody to a third party. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79 (1994).

Custody May Be Granted to Third Person for Sufficient Reasons. - The welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third person for good and sufficient reasons. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910 (1969); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, cert. denied, 309 N.C. 460, 307 S.E.2d 362 (1983); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716 (1983).

A child's former care giver stated a claim as against the child's father for custody of the child, where the father's former companion alleged that the father had taken actions inconsistent with his protected status as a parent, including that the father had placed the child in his parents' care and that they could not properly care for the child's diabetes, resulting in hospitalization and potentially serious and permanent health consequences, and that the father had relinquished care of the child to others, including herself, on numerous occasions. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891 (1998), appeal dismissed, 349 N.C. 356, 517 S.E.2d 891 (1998).

Fitness of Parent. - Mother's convictions for driving while intoxicated and child's developmental problems were significant and relevant to issue of mother's fitness as a parent because they indicated her inability to care for the child adequately and to provide for the child's welfare; additionally, the facts that she had substance abuse problems, did not respect authority, was unable to recognize her child's developmental problems, and was incapable of caring for the child's welfare supported the conclusion that she was an unfit parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

The State failed to show that the father was unfit, as against the child's grandparents, to have custody of his child where he testified that if he were awarded custody of the child he would be willing to prohibit his brother, who was convicted for taking indecent liberties with a minor, from staying at his house and interacting with the child; where his own convictions were too remote to affect his fitness or were unrelated thereto; where he already had considerable experience in taking care of children; where his boss of 13 years and his volunteer supervisor, both described him as responsible, dependable, reliable and hardworking; and where he actively engaged in legal proceedings for approximately two years, evidencing a long-term commitment to attaining custody. Adams v. Tessener, 141 N.C. App. 64, 539 S.E.2d 324 (2000).

Parent Need Not Be Found Unfit. - Although there is a traditional preference for biological parents, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents must be deferred or subordinated, and the trial judge's discretion is such that he is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457 (1983).

The trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504 (1983); In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984).

While the fitness of a natural parent is of paramount significance in determining the best interests of the child in custody contests, it is not always determinative in itself. It is entirely possible that a natural parent may be a fit and proper person to care for the child, but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978).

Fitness and Actions of Parent in Relationship with Domestic Partner Relevant. - While a district court could have concluded that the fitness of a child's biological mother warranted that she have sole custody, the district court was not required to do so where evidence indicated that the mother had voluntarily relinquished her due process rights to solely make decisions in the child's life, intended that her former domestic partner become a de facto parent, and the partner had established a significant bond with the child. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008).

Temporary Relinquishment of Custody. - There are circumstances where the responsibility of a parent to act in the best interest of his or her child would require a temporary relinquishment of custody; however, to preserve the constitutional protection of parental interests in such a situation, the parent should notify the custodian upon relinquishment of custody that it is temporary and avoid conduct inconsistent with the protected parental interests. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

In making custody decisions between a parent and a grandparent or other third party, the court must balance two doctrines. The first, the "parental right" doctrine, holds that ordinarily and in the absence of particular circumstances, the custody of a child should be given to the parent in preference to the grandparent, if the parent is found to be fit to have custody and can supply a proper home. The second doctrine, the "best interests of the child" doctrine, holds that custody should be awarded in accordance with the best interests of the child regardless of the fitness of the parents. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, cert. denied, 309 N.C. 460, 307 S.E.2d 362 (1983).

To Whom Custody May Be Awarded. - If the mother and the father are both fit and proper persons to have custody of children, under ordinary circumstances the court would then proceed to determine whether the best interest, health and welfare of the children would be served by awarding custody to the mother or father. If not, then the court must deal with someone or an agency over whom the court has control. But an order awarding custody, in effect, to third persons who are not parties to the proceeding, not a public institution, and not bound by the court's order, must be reversed. Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833 (1970).

Award of Custody to Grandparents. - Where the custody of a minor child was awarded to the mother in a divorce proceeding, and subsequently, both parents, who were deemed proper and fit persons to have the custody of such child, moved out of the State, and the child was left by the mother with the child's maternal grandparents, residents of the State and highly proper persons to rear the child, upon petition of the father for custody of the child the court had authority under this section to order that the child continue in the custody of the grandparents. Walker v. Walker, 224 N.C. 751, 32 S.E.2d 318 (1944).

Where grandmother was a good housekeeper and showed the ability to care for the children the trial court erred in denying and dismissing grandmother's petition for custody on the basis of its "serious concerns" about her parenting skills because of problems experienced by her daughter. Smith v. Alleghany County Dep't of Social Servs., 114 N.C. App. 727, 443 S.E.2d 101, cert. denied, 337 N.C. 696, 448 S.E.2d 533 (1994).

Where there are unusual circumstances and the best interests of the child justify such action, the court may refuse to award custody to either the mother or father and instead award the custody of the child to its grandparents or others. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

For case affirming order transferring custody to paternal grandmother and awarding visitation rights to both mother and father, see Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Grandparents' Rights When Family Intact - Under G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j), a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative - the "intact family" rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child's family is not intact before the grandparent can intervene to request visitation with his grandchild - G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Socioeconomic status of paternal grandmother, who intervened in custody case, was irrelevant to issue of mother's fitness as a parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

It is only when the custody of a child is "in issue" or "being litigated" that the grandparents are entitled to relief pursuant to subsection (b1). Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996).

Domestic Partner Denied Custody, Parental Status, and Reinstatement of Visitation Schedule. - Trial court properly denied defendant's claims for joint custody, recognition of parental status, and reinstatement of the original visitation schedule because plaintiff, defendant's former domestic partner, did not engage in conduct inconsistent with plaintiff's constitutionally protected status as the legal parent and did not allow defendant to function as a parent. Estroff v. Chatterjee, 190 N.C. App. 61, 660 S.E.2d 73 (2008).

Award to Department of Social Services. - For case involving sexual abuse of daughters by father, in which children were adjudicated abused and neglected, and in which award of custody to the department of social services, with mother being given physical custody of one daughter and liberal visitation with the other daughter, who was placed with her grandmother, pending review in 60 days, was approved, see In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984).

Foster Parents Have No Standing to Bring Custody Action. - Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department's or agency's exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

But Custody May Be Awarded to Foster Parents. - Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

The case of Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981) does not prohibit the transfer of legal care, custody and control of a foster child to its foster parents. Oxendine stands for the proposition that foster parents have no standing to bring a custody action pursuant to G.S. 50-13.2 et seq. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Intervention by Foster Parents. - In proceeding brought by DSS in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child's foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986), distinguishing Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

It was improper for a trial court to apply a G.S. 50-13.2(a) best interest analysis to a domestic partner's application for joint custody without first determining that a natural parent's conduct was inconsistent with her constitutionally protected status as a parent. Heatzig v. MacLean, 191 N.C. App. 451, 664 S.E.2d 347 (2008), review denied, appeal dismissed, 362 N.C. 681, 670 S.E.2d 564 (2008).

Claim for Custody Held Not Frivolous. - Where there was no indication at trial that the grandparents in fact did not wish to obtain custody of the children or that their claim was made in bad faith, the fact that the grandparents had originally asked for visitation did not make their later claim for custody violative of G.S. 1A-1, Rule 11. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

Remand Where Custody Awarded to One Who Was Not a Party. - While the court, upon proper findings and conclusions, may award the custody of a minor child to any such person, agency or institution as will best promote the interest and welfare of the child, where the court awarded custody of the child to one who was not a party to the proceeding, the proceeding would be remanded with directions that the trial court issue the necessary notices and orders to make such individual a party to the action, to the end that the court would have effective jurisdiction over her person. In re Edwards, 25 N.C. App. 608, 214 S.E.2d 215 (1975).

Reversal of Award to Third Party. - Where in an initial custody determination, the trial court conducted the "best interest and welfare" analysis, and based solely on that analysis, awarded custody of the minor child to defendant (friend of mother who had cared for child since birth) rather than the plaintiff/father, the child's natural parent, the award of custody on this basis was error and must be reversed. Lambert v. Riddick, 120 N.C. App. 480, 462 S.E.2d 835 (1995).

B. AS BETWEEN PARENTS.

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Conviction of Abandonment Did Not Preclude Award of Custody. - The fact that father had been convicted of abandonment of his children and ordered to provide for their support did not preclude the court from finding, upon a hearing of a subsequent motion for the custody of the children in a divorce action, that father was a fit and suitable person to have custody of the children, when there was uncontradicted evidence upon the hearing that father had a good reputation in the community in which he lived. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

Effect of Prior Order of Incompetence. - In a controversy between husband and wife for custody of minor children of the marriage, it is error for the trial court to award custody to the husband on the sole ground that the wife has prior to that time been judged mentally incompetent. A prior court order which judicially declares a parent to be incompetent is not sufficient in and of itself to establish a parent's present unfitness to have a child or children; rather, this section requires a full, factual determination of all the circumstances in the case before a proper order may be entered by the court. Price v. Price, 42 N.C. App. 66, 255 S.E.2d 652 (1979).

Relevance of Evidence of Adultery. - The court committed prejudicial error in refusing to allow plaintiff to introduce evidence of defendant's adultery at a hearing on a custody motion. While evidence of adultery does not impel a finding of unfitness of the adulterous parent, it is relevant upon an inquiry of fitness of a person for the purpose of awarding custody of minor children to him or to her. Darden v. Darden, 20 N.C. App. 433, 201 S.E.2d 538 (1974); Hunt v. Hunt, 29 N.C. App. 380, 224 S.E.2d 270 (1976). See also, In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1 (1969).

Joint Legal Custody Appropriate. - In addition to findings regarding parties' financial status and what would best serve interests of children, court had before it plaintiff's admission that she indeed thought defendant to be fit and proper person as stated in her verified reply to defendant's answer and counterclaim. Thus, joint legal custody was appropriate. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627 (1990).

Joint Legal Authority. - Trial court erred in dividing decision-making responsibilities between the parties after awarding joint legal custody because the trial court had not made the necessary findings of fact to warrant a division of joint legal authority; the trial court's mere findings that the parties had a tumultuous relationship did not satisfy the required findings. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901 (2008).

The fact that mother's paramour had been living with mother and minor child since the parties' separation was insufficient, standing alone, to determine custody; the court must consider all the facts of the case and decide the issue in the best interests of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

Award Where Both Parents Are Found Fit - Generally. - When there has been a finding that both parents are fit and suitable to have custody, the judge's order is conclusive when supported by evidence. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, 55 N.C. App. 250, 285 S.E.2d 281 (1982).

Same - Award to Father. - When the court finds that both parties are fit and proper persons to have custody, and then adjudges that it is in the best interest of the child for the father to have custody, such holding will be upheld; but it must be supported by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

When the court finds that both parties are fit and proper persons to have custody of the children involved, and then finds that it is in the best interests of the children for the father to have custody of said children, such holding will be upheld when it is supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833 (1970).

Where the evidence was sufficient to support the court's finding that father was a suitable person to have custody of his son and that the best interests of the child would be served by awarding the child's custody to him, order awarding the custody to the father was proper, even though the evidence would also have supported a finding that the child's mother was a fit and suitable person and that the best interests of the child would be served by awarding custody to her. In re White, 262 N.C. 737, 138 S.E.2d 516 (1964).

Age of Parents. - All else being equal, a 55-year-old person has a shorter remaining life span than a 33-year-old person and the consideration of continuity and stability in the life of a child will logically lead a judge to consider the age of a parent. Consideration of all aspects of both parents' lives, including the potential for continuity and stability, is necessary to promote the governmental interest of granting custody on the best interests of the child. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17, rehearing denied, 337 N.C. 807, 449 S.E.2d 750 (1994).

A passing comment about a party's age, when determining a child's best interest in accordance with the statute, does not constitute an unconstitutional classification in violation of a party's equal protection rights. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17, rehearing denied, 337 N.C. 807, 449 S.E.2d 750 (1994).

Award to Father on Finding of Changed Circumstances. - Trial judge did not abuse his discretion by ruling that a material change in circumstances had occurred with the increased age of younger child, who had been awarded previously to the mother, since the child indicated clearly his desire to stay with his father, who also had custody of his elder brother. In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).

Where father failed to offer evidence of mother's adultery at divorce trial, but after the divorce moved for a change of custody on that ground, the trial court's reassignment of custody of the child to father due to a material change of circumstances since the date of the divorce was not erroneous merely because the crucial circumstances, e.g., the mother's adultery, existed before divorce. The child should not be placed in the custody of an unfit parent merely because the other parent failed to introduce evidence at the proper stage of the litigation. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974).

Award to Father on Condition That Physical Custody Be in Grandparents. - Where the court's conclusions that the mother was an unfit person to have custody of the children and that the father was a fit and suitable person to have their custody was supported by the findings, but neither the father nor the paternal grandparents had a suitable home for the children, and that the maternal grandparents, with whom the children were then living, had such a home, an order awarding the custody of the children to the father on condition that the physical custody of the children be vested in their maternal grandparents and that the father pay for their support would not be disturbed on appeal, the welfare of the children being the determinative factor in the award of custody. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

Award of Custody to Father Held Proper. - Trial court did not err in concluding that it would be in the best interest of minor child for her custody to be placed with defendant father where, pursuant to separation agreement, plaintiff mother gave defendant custody of the child and agreed to assist with medical and dental bills on behalf of the child; the child had lived with defendant at all times since her birth and lived solely with defendant since the parties' separation; plaintiff rarely visited the child following the parties' separation; and plaintiff admitted that defendant had done a good job of looking after the child since their separation. Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460 (1981).

Findings on Award of Custody to Mother Held Sufficient. - Findings that the parties had been married and divorced, that the wife was a person of good character, resident in this State, that the husband was financially responsible, and that the best interest of the minor child of the marriage would be promoted by awarding its custody to the wife were sufficient to sustain a decree awarding its custody to her and requiring the husband to make contributions for the support of the child. Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884 (1949).

Award to Mother Upheld. - Where the trial court found, upon supporting evidence, that the mother was now a stable, fit, and suitable custodian of her children, and that their best interests required that their custody be awarded to her, the Supreme Court would affirm the award of custody. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974).

Trial court did not abuse its discretion in modifying a custody order to grant joint legal custody to a mother and father with the mother having primary custody because there had been a substantial change in circumstances affecting the child and modification was in the child's best interests pursuant to G.S. 50-13.2(a); father had moved out of state with the child, had facilitated renewed contact with the child's maternal grandfather despite a court order prohibiting the contact, and the child had been harmed by a dog while in the father's care. Pass v. Beck, 210 N.C. App. 192, 708 S.E.2d 87 (2011).

Trial court properly entered an initial custody order awarding primary and legal custody of the parties' child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial's parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent's fitness as a parent, which was caused by the noncustodial's failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561 (2016).

Custody of Child Upheld Where Father Never Visited. - Where plaintiff mother had had de facto custody of five-year old child since his birth, and defendant, who had acknowledged paternity of the child when he was there, had not visited the child in a substantial length of time, nor had he requested visitation privileges or custody, formal award of custody to mother would be upheld. Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988).

Illegitimate Child. - As to the custody of an illegitimate child, see Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

By its plain language, G.S. 50-13.2(a) clearly abrogates the common-law presumption vesting custody of an illegitimate child in the child's mother. Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).

Illegitimate child's father who has acknowledged his paternity under G.S. 110-132(a) and whose conduct is consistent with his right to care for and control his child has a right to custody of his illegitimate child legally equal to that of the child's mother, and, pursuant to G.S. 50-13.2, if the best interest of the child is served by placing the child in the father's custody, he is to be awarded custody of that child. Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).

As the common-law rule that custody of an illegitimate child presumptively vested in the mother was abrogated by G.S. 50-13.2(a), the trial court properly applied the "best interest of the child" standard in awarding custody to the child's father, who had acknowledged his paternity under G.S. 110-132(a), paid child support without a court order, and provided that child with a stable and structured life. Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).

In applying the best interest of the child standard to award joint custody of an illegitimate child to the parents, district court applied the correct standard as between the parents, because the common law presumption in favor of awarding custody of the illegitimate child to the mother was abrogated by G.S. 50-13.2 and the case law. David v. Ferguson, 160 N.C. App. 89, 584 S.E.2d 102 (2003).

For case as to former preference that mother be given custody, see Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974).

IV. VISITATION RIGHTS.

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Court May Divide Custody Between Parents or Award General Custody Subject to Visitation Privileges. - The trial court has discretionary power either to divide custody between contending parents for alternating periods, or to award general custody to one parent, subject to visitation privileges in favor of the unsuccessful parent. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).

The standard by which the court is guided in visitation matters is the child's best interest. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

Burden of Proof. - Grandparents seeking visitation rights had the burden of proving that the award of visitation was in the best interest of the children; therefore, where trial judge reversed the burden, so that the mother had to prove that the visitation was bad for the children, the judge was in error. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

Findings as to Visitation. - To support an award of visitation rights, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the party is a fit person to visit the child and that such visitation rights are in the best interest of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978); In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

Where the trial judge specifically considered a child's best interests in determining custody and visitation in accordance with G.S. 50-13.2(a) and the evidence supported the trial court's findings, the trial court did not abuse its discretion by ordering visitation between the minor child and the father. Pass v. Beck, 156 N.C. App. 597, 577 S.E.2d 180 (2003), cert. denied, 357 N.C. 252, 582 S.E.2d 277 (2003).

Order for Professional Consultation Within Court's Discretion. - Where trial court found defendant's contact with his minor child had been minimal, although he was fit and proper to have visitation rights, consultation with plaintiff and defendant by a third-party professional could benefit the court in awarding specific visitation rights; therefore, there was no abuse of discretion in the court's ordering the consultation prior to its consideration of visitation rights. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

Visitation Rights to Parent Restricted. - Trial court properly entered an initial custody order awarding primary and legal custody of the parties' child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial's parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent's fitness as a parent, which was caused by the noncustodial's failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561 (2016).

When Visitation May Be Denied. - A parent's right of visitation with his or her child is a natural and legal right, and when awarding custody of a child to another, the court should not deny a parent's right of visitation at appropriate times unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

The grandmother did not have standing under this section to seek visitation with her grandchildren, where the children had been adopted by their biological aunt and her husband, and custody was not an issue. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226 (1998).

Determination of Visitation Rights May Not Be Delegated. - If the court finds that the parent has by conduct forfeited the right of visitation or if the court finds that the exercise of the right would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, his or her child; but the court may not delegate this authority to the custodian. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

Court Should Safeguard Visitation Rights by Provision in Order. - If the court does not find that a parent has by conduct forfeited the right of visitation and does not find that the exercise of the right would be detrimental to the best interest and welfare of the child, the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

Enforcement of Visitation Orders. - Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in this section, that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Receipt of Support May Not Be Conditioned on Visitation. - A trial judge does not have authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

District court was authorized to grant the father of an illegitimate child visitation privileges and to punish the mother for refusing to allow the father to visit his illegitimate child. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Grant of Visitation Rights to Homosexual Father. - The trial court did not err in granting a father who was homosexual unsupervised overnight visitation rights with his minor son. Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775 (1979).

Grandparents May Not Be Awarded Visitation Rights When Custody Is Not in Issue. - While subsection (b1) of this section authorizes the court to provide for the visitation rights of grandparents when the custody of minor children is being litigated, it does not authorize the court to enter such an order when the custody of the children is not in issue. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (1988).

This section and G.S. 50-13.5 and G.S. 50-13.2A must be read in conjunction with G.S. 50-13.1(a) so as to harmonize them and give effect to a consistent legislative policy. Under them, a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative. McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995).

Standing to Seek Grandparent Visitation. - Mother's motion to dismiss grandparents' motion for visitation was properly denied because, although the parents had entered into a consent judgment in the underlying child custody dispute, the custody of the child was still "in issue" and "being litigated" by the parents when the grandparents moved to intervene, and thus, under G.S. 50-13.2(b1), the grandparents had standing to intervene at the time; the resolution of the custody dispute between the parents did not wipe out the grandparents' claim. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775 (2009).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father's death and the child had not been adopted by a stepparent or relative. Graham v. Jones, - N.C. App. - , 842 S.E.2d 153 (2020).

Paternal grandparents had statutory standing to seek permanent visitation rights, notwithstanding that the father had died, as they had been allowed to intervene when custody between the father and the mother was in dispute. Alexander v. Alexander, - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Grandparent Had No Rights to Proceed. - There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S. 50-13.1(a), this section, G.S. 50-13.2A, or G.S. 50-13.5(j). Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214 (2000).

Grandparents Had Right to Intervene in Pending Custody Action. - In a child custody action, the order granting intervention to the maternal grandparents on ground there was a pending matter regarding future visitation before the court was proper; because the issue of the mother's visitation was still pending, the custody of the child was still "in issue" and was "being litigated" by the parents. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009).

Trial court erred in concluding a grandmother's visitation rights under a prior custody order did not survive termination of a mother's parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother's parental rights did not extinguish the grandmother's court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, - N.C. App. - , 826 S.E.2d 236 (2019).

Insufficient Findings to Support Order for Grandparent Visitation. - Remand of order granting grandparent visitation was necessary because the trial court made no explanation in its findings of fact as to why it determined that it was preferable to take the majority of the grandparents' vacation visitation time out of mother's custodial time; moreover, it was unclear that the trial court considered the possible interaction between the parents' consent judgment and its order awarding visitation to the grandparents. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775 (2009).

As parents with lawful custody of their children have the prerogative of determining with whom they shall associate. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (1988).

Electronic Video Communication. - In proceedings wherein a five-year-old child was adjudicated neglected, the trial court erred in denying the mother in-person visitation and permitting only electronic video communication, G.S. 50-13.2(e), because the court failed to find the mother forfeited her right to visitation or that visitation was not in the child's best interest, G.S. 7B-905(c). In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823 (2013).

Visitation Rights to Parent In Foreign Country. - Trial court, when it awarded one parent in North Carolina the primary physical care and custody of the parties' minor child, properly awarded visitation privileges to the other parent, who was a citizen and resident of Canada and a missionary in Malawi, because the court considered the factors relevant to the child's best interest, including the characteristics of the parties and the one parent's concerns about the possible dangers to the child if the child were to travel to Malawi. Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886 (2015).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. - Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, - N.C. App. - , 843 S.E.2d 306 (2020).

V. WISHES OF CHILD.

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Wishes of Child of Sufficient Age Are Entitled to Weight. - The wishes of a child of sufficient age to exercise discretion in choosing a custodian are entitled to considerable weight when the contest is between the parents, but are not controlling. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981).

A child may be a competent witness and ought to be examined in that character. Indeed, being the party mainly concerned, he has a right to make a statement to the court as to his feelings and wishes upon the matter. This ought to be allowed serious consideration by the court, in the exercise of its discretion. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1982).

In making the weighty choice of awarding custody, the judge may properly consider the preference or wishes of a child of suitable age and discretion. In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).

As to the courts' consideration of the wishes of a child of suitable age, see also In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984).

Because Child's Wishes Will Aid Determination of His Best Interests. - The child's wishes will be one factor considered by the court in determining his custody, usually not because of any legal right in the child to have his wishes granted, but because the consideration of such wishes will aid the court in making a custodial decree which is for the best interests and welfare of the child. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

But Such Wishes Are Not Controlling. - When a child has reached the age of discretion, the court may consider the preference or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view on the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be the child's best interests, regardless of the child's personal preference. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).

Although the preference of a child of discretion would seem to have its greatest weight when the controversy is between the parents and both are fit persons, the child's wishes are only entitled to consideration and are not controlling. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

Weight to Be Given Child's Testimony Is for the Court. - A child has a right to have his testimony heard. However, the weight to be attached to such testimony is within the discretion of the trial judge. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1982).

Lack of Findings as to Child's Preferences Insufficient to Upset Award. - Failure of the court to include a finding as to the preferences of the minor child is insufficient to upset its order of award of custody. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

Ten Year Old. - A child's preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a 10-year-old child in making his determination. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child's welfare. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

VI. DISCRETION OF TRIAL COURT.

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Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967).

The question of custody is one addressed to the trial court. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).

Trial Judge Is Vested with Broad Discretion. - The trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving custody of children. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977); Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 34 (1979); In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).

While the welfare of the child is always to be treated as the paramount consideration, wide discretionary power is necessarily vested in the trial court in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953); Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

The trial court has broad discretion in deciding child custody cases. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974).

The trial judge is vested with broad discretion in child custody cases. The "paramount consideration" which limits this discretion is the welfare and needs of the children. Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716 (1983).

The trial judge is vested with broad discretion in child custody cases, and that discretion must be exercised to serve the welfare and needs of the children. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

Judge's Decision Will Not Be Upset Absent Abuse. - The decision to award custody of a minor is vested in the discretion of the trial judge, who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524 (1968); In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, cert. denied, 281 N.C. 622, 190 S.E.2d 465 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, cert. denied, 283 N.C. 585, 196 S.E.2d 809 (1973); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616 (1979); Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457 (1983); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, cert. denied, 309 N.C. 460, 307 S.E.2d 362 (1983); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504 (1983).

Where trial judge enters a custody order that in his judgment is in the best interest of the child, the appellate division should not reverse that judgment and hold, as a matter of law, that the trial judge was obliged to have reached a different opinion, in the absence of a clear showing of abuse of discretion. Decisions in custody cases are never easy, and the trial judge has the opportunity to see the parties in person and to hear the witnesses. He can detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges. Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849 (1979).

If Supported by Competent Evidence. - The trial judge's decision as to custody will not be upset, in the absence of a clear abuse of discretion, if his findings are supported by competent evidence. Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 34 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457 (1983).

The question of custody is one addressed to the trial court, and the court's decision will be upheld if supported by competent evidence. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910 (1969); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

The trial judge is present where he can observe and hear the parties and their witnesses, and ordinarily his decision on custody will be upheld if supported by competent evidence. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1 (1969).

Instead of applying an inflexible rule, the court must consider all facts of the case and decide the issue in accordance with the best interests of the child. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974).

Discretion to Allow Grandparent's Visitation Rights. - Although the trial judge determined that the appellant-defendant would continue to have primary custody of the children, it was entirely within the trial judge's discretion to allow the grandparents' visitation rights based on the best interest of the children. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

Nature of Evidence. - An order for custody should be entered only after the most careful consideration, and only after the court has had the benefit of more reliable evidence than is usually afforded by affidavits. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969).

Discretion Not to Include A Provision. - Plaintiff provided no supporting guidance as to how or why the trial court was required to make certain findings and the issue was not addressed; moreover, as the trial court orally noted that it would not entertain a parenting-time right of first refusal as being in the best interests of the minor children, it was within the discretion of the trial court to not include such a provision, either to its granting or denial, in the child custody order. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347 (2015).

No Abuse in Child Custody Decision. - Trial court did not abuse its discretion in determining that relocation to California with the father was in the child's best interest, nor did it violate this section in its order after finding that the father had an immediately proximate support system to help him care for the child while the mother's support system was four hours away from the mother, who lived alone and was in the military since the mother's military status was not the only basis for the decision. Munoz v. Munoz, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

VII. FINDINGS OF FACT.

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Trial Court Must Make Findings of Fact. - To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981); Story v. Story, 57 N.C. App. 657, 291 S.E.2d 923 (1982).

The court erred in not permitting the parties to a "joint custody" agreement to present extrinsic evidence of the parties' understanding of the meaning of those terms and their intent at the time of the agreement before determining whether the plaintiff wife had breached the agreement by failing to take steps to help the son who had drug abuse problems, thereby excusing the defendant husband from paying alimony. Patterson v. Taylor, 140 N.C. App. 91, 535 S.E.2d 374 (2000).

Before awarding custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party will best promote the interest and welfare of the child. Findings of fact as to the characteristics of the competing parties must be made to support the necessary conclusion of law. These findings may concern physical, mental, or financial fitness or any other factors brought out in the evidence and relevant to the issue of the welfare of the child. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child; the conclusion of law determinative of the custody is not, therefore, that the person gaining custody is a fit and proper person to have custody, but which party will best promote the interest and welfare of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

Which Must Be More Than Mere Conclusory Statements. - A custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child, and custody orders are routinely vacated where the findings of fact consist of mere conclusory statements that the party being awarded custody is a fit and proper person to have custody and that it will be in the best interests of the child to award custody to that person. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669 (1984).

And Must Resolve Questions Raised by Evidence. - Findings bearing on the party's fitness to have care, custody and control of the child and findings as to the best interests of the child must resolve all questions raised by the evidence pertaining thereto. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

But the trial judge is not required to find all the facts shown by the evidence. It is sufficient if enough material facts are found to support the judgment. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

Findings of Fact Insufficient. - Without a finding of a substantial change of circumstances, a modification based solely on the ground that the defendant mother was over-protective was improper. Benedict v. Coe, 117 N.C. App. 369, 451 S.E.2d 320 (1994).

The trial court erred in amending the custody decree based on a finding of substantial change in circumstances where it found only that the proposed relocation of the mother after her remarriage would adversely affect the relationship between the father and his child but made no other findings about the effect of the proposed relocation on the child and on the child's best interests. Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000).

Trial court erred in entering a custody order which prohibited a father from owning or possessing firearms until the children were emancipated; the trial court failed to make required findings pursuant to G.S. 50-13.2(a) on whether the safety of the children was endangered by the father's possession of firearms. Martin v. Martin, 167 N.C. App. 365, 605 S.E.2d 203 (2004).

Findings Supported by the Evidence. - Trial court did not err in awarding primary physical custody of the children to the husband under G.S. 50-13.2(a); by placing the children in the husband's physical custody, the children remained in the home and community where they had been raised, the husband demonstrated his ability to care for the children, and some of the husband's extended family lived nearby and could help with the children. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005).

Court's findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982).

Only One Finding. - While a court had the power under G.S. 7B-903 to enter an order transferring the custody of a minor child from her father to her mother, there was no evidence in the record in a proceeding on the parties' cross-motions for contempt that supported the finding that transferring custody to the mother was in the child's best interests. The court made only one finding, that the child missed the two people in her life who had neglected her, which was not a basis for not allowing custody to remain with the father, the trial court had a right under G.S. 50-13.2(a) to consider, but did not consider, acts of domestic violence by the child's stepfather toward her mother when determining the child's best interests, and the trial court had no right to take custody away from the father simply because he was unmarried. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Failure to Make Findings Is Error. - It is error for the court granting a decree of divorce to award the custody of a child without findings of fact from which it could be determined that the order was adequately supported by competent evidence and was for the best interest of the child. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

Trial court erred in granting permanent custody of a child to the child's natural parent, who had extremely limited contact with the child before the other parent's death, because it was speculative to assess what the quality of their relationship would be after a four-month "get acquainted" period during which temporary custody had been granted to the child's grandparents. McRoy v. Hodges, 160 N.C. App. 381, 585 S.E.2d 441 (2003).

And Will Necessitate Remand. - When the trial court fails to find facts so that the reviewing court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, cert. denied, 295 N.C. 734, 248 S.E.2d 863 (1978); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

An order awarding custody of a child to the father, without any findings of fact other than a recital that the court had previously awarded custody to the father in a proceeding under former G.S. 17-39, was fatally defective, and the case would be remanded for detailed findings of fact. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

Court's Findings Are Conclusive If Supported by Evidence. - The findings of the trial court in regard to the custody of children are conclusive when supported by competent evidence. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135 (1970); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976).

Findings of fact by the trial court in a proceeding to determine the custody of a minor child ordinarily are conclusive when based on competent evidence. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).

In a hearing to determine the right to custody of the children of the marriage, the court's findings of fact are conclusive if supported by competent evidence. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

Findings Are Binding on the Appellate Courts. - The trial judge's findings of fact in custody orders are binding on the appellate courts if supported by competent evidence. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974).

Findings Will Not Be Disturbed Thereby. - The court's findings of fact as to the care and custody of children will not be disturbed when supported by competent evidence, even though the evidence be conflicting. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971).

The normal rule in regard to the custody of children is that where there is competent evidence to support a judge's finding of fact, a judgment supported by such findings will not be disturbed on appeal; however, the facts found must be adequate for the appellate court to determine that the judgment is substantiated by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171 (1981).

Even When Evidence Is Conflicting. - The findings of the trial judge regarding custody and support are conclusive when supported by competent evidence, even when the evidence is conflicting, the standard for disturbing the trial judge's decision on appeal being a clear showing of abuse of discretion. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Conclusory Statements Held Inadequate. - For a case setting forth a visitation order and holding that order to be conclusive and not supported by adequate findings of fact, see Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990).

But an order may contain extensive findings and still be fatally defective when not supported by the evidence. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Use of Fifth Amendment Privilege. - Father could not take advantage of the presumption that it is in the best interest of the child to be in the custody of his natural parent by introducing evidence of his fitness and then invoking his Fifth Amendment privilege against self-incrimination when questioned about his illegal drug activity. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433 (1996).

Where the father failed to make a showing of fitness and the court could not determine his fitness because of his assertion of the Fifth Amendment, the court acted properly in dismissing his claim for custody. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433 (1996).

Best Interests of the Child. - G.S. 50-13.2(a) and G.S. 7B-1110 both require a court to make findings of fact as to a child's best interests. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

No Abuse of Discretion. - Trial court acted within its discretion in awarding primary legal custody to defendant, as supported by its findings of fact; the findings included, in part, that plaintiff struck defendant in the face while defendant was pregnant, plaintiff hid a recording device in defendant's bedroom without her knowledge or consent, plaintiff sued both of defendant's parents, who provided the minor children with childcare, and defendant handled the majority of the minor children's educational and medical treatment issues. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347 (2015).

VIII. EFFECT OF VERDICTS, SEPARATION AGREEMENTS AND CONSENT JUDGMENTS.

.

Verdict in Divorce Action Is Not Controlling. - The verdict in a divorce action can be an important factor in the judge's consideration of an award of custody, but it is not legally controlling. It is merely one of the circumstances for him to consider, along with all other relevant factors. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967).

Findings and Conclusions Not Required for Child Consent Judgments. - While G.S. 1A-1, Rule 52 and this section mandate findings of fact and conclusions when a court adjudicates child custody, child consent judgments need not contain such findings of fact and conclusions of law, and consenting parties waive their right to have the court adjudicate the merits of the case. Buckingham v. Buckingham, 134 N.C. App. 82, 516 S.E.2d 869 (1999), cert. denied, 351 N.C. 100, 540 S.E.2d 353 (1999).

When a father filed a motion for modification of custody, a trial court did not abuse its discretion in looking back to the facts surrounding the best interests of the child, pursuant to G.S. 50-13.2(a), at the time the memorandum of judgment was entered to make appropriate findings to provide a base line before it could determine if there had been a material change in circumstances, pursuant to G.S. 50-13.7, because the mother and father had waived findings of fact and conclusions of law at the time the memorandum of judgment by consent was entered. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

Nor Are Separation Agreements and Consent Judgments Based Thereon. - Valid separation agreements, including consent judgments based on such agreements with respect to marital rights, are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).

While the marital and property rights of the parties under the provisions of a valid separation agreement cannot be ignored or set aside by the court without the consent of the parties, such agreements are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560 (1976).

And Court Is Not Precluded Thereby from Acting Under This Section. - A deed of separation between husband and wife containing an agreement for the custody of their minor child does not preclude the court, upon granting a decree for absolute divorce in a suit brought subsequent to the deed of separation, from awarding the custody of the child in accordance with this section. In re Albertson, 205 N.C. 742, 172 S.E. 411 (1934).

The fact that petitioner agreed when separation took place between herself and her husband that the custody of their child should remain with the father was not binding on the court. Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350 (1953).

As no agreement between spouses will deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of infants. The parties may bind themselves by separate agreement or by a consent judgment, but they cannot thus withdraw the children of the marriage from the protective custody of the court. State v. Duncan, 222 N.C. 11, 21 S.E.2d 822 (1942); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).

Provisions in a deed of separation for support of the minor children of the marriage, entered as a consent judgment by the court, cannot deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of the infants; therefore, judgment increasing the allowance for the minor children upon findings of a change of circumstances warranting such increase would be affirmed. Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721 (1957).

The child is not a party to a separation agreement, and the parents cannot contract away the jurisdiction of the court, which is always alert in the discharge of its duty towards its wards, the children of the State whose personal property interests require protection. State v. Duncan, 222 N.C. 11, 21 S.E.2d 822 (1942).

It is the court's duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974).

But provisions of a valid separation agreement, and a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).

A valid separation agreement cannot be ignored or set aside by the court without the consent of the parties. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

And Parties Are Bound Thereby Until Court Orders Otherwise. - Where judgment by confession purported to grant custody of child to one party, this judgment did not deprive the district court of jurisdiction to determine custody, but the parties, having agreed to it, were bound by its provisions until the court made some order for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247 (1982).

Presumption as to Amount Mutually Agreed upon in Separation Agreement. - Where parties to a separation agreement agree upon the amount of the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable, and upon motion for an increase in such allowance, a court is not warranted in ordering an increase in the absence of any evidence of a change of conditions. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560 (1976).

There is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon in a separation agreement is just and reasonable. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

Party to Separation Agreement Not Precluded from Bringing Action. - When a case is properly before it, the court has the duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

Where judgment by confession placed custody issue before the court so that it retained jurisdiction to determine custody, it was error not to abate the subsequent action for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247 (1982).

Effect of Custody Award on Consent Judgment. - Where a consent judgment in an action for a divorce a mensa operated as a gift to the wife of an estate in the husband's land, the fact that the court awarded custody of the children did not affect it. Morris v. Patterson, 180 N.C. 484, 105 S.E. 25 (1920).

Trial court did not abuse its discretion in awarding joint custody to both parties. Church v. Church, 119 N.C. App. 436, 458 S.E.2d 732 (1995).

Modification of Custody Order. - Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019), cert. denied, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (N.C. 2020).

§ 50-13.2A. Action for visitation of an adopted grandchild.

A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child. An order awarding visitation rights shall contain findings of fact which support the determination by the judge of the best interest of the child. Procedure, venue, and jurisdiction shall be as in an action for custody.

History

(1985, c. 575, s. 2.)

CASE NOTES

There is a reasonable basis for the classification elicited in this section, and therefore, the classification does not violate the equal protection guarantees of either the State or federal Constitutions. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

This section must be read in pari materia with G.S. 50-13.7(a), which therefore requires a showing of a substantial change of circumstances. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Trial court did not err in allowing grandparents to intervene in adoption proceeding pursuant to this section without holding a preliminary evidentiary hearing to determine whether a substantial relationship existed between the movants and grandchildren, where the trial judge addressed the issue of whether the grandparents had a right to intervene based on the pleadings before it, and without the necessity of a preliminary hearing the trial court made a preliminary determination that the grandparents had a right to intervene. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Grandparent Had No Right to Proceed. - There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S.G.S. 50-13.1(a), 50-13.2(b1), this section, or 50-13.5(j). Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214 (2000).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father's death and the child had not been adopted by a stepparent or relative. Graham v. Jones, - N.C. App. - , 842 S.E.2d 153 (2020).

Standing to Bring Action Based on Substantial Relationship. - The grandmother had standing under this section to seek visitation rights with her grandchildren, where the children were adopted by their biological aunt and her husband, and the grandmother had a substantial relationship with the children, in that she had helped raise them from birth and they had lived with her for eight months prior to the adoption. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226 (1998).

Evidence held sufficient to support the trial court's conclusion that grandparents had established a substantial relationship with their grandchildren. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Grandparents' Rights When Family Intact - Under G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, and 50-13.5(j), a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative - the "intact family" rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child's family is not intact before the grandparent can intervene to request visitation with his grandchild - G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Custody Must Be at Issue. - G.S. 50-13.2, G.S. 50-13.5, and this section must be read in conjunction with G.S. 50-13.1(a) so as to harmonize them and give effect to a consistent legislative policy. Under them, a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative. McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995).

There existed substantial change of circumstances when visitation rights of grandparents arbitrarily terminated by the natural mother when the grandparents had established a continuing substantial relationship with their grandchildren since the entry of earlier custody order, and based upon that, the court found sufficient facts to justify its conclusion that it was in the best interest of the grandchildren to maintain a continuing relationship with the grandparents through the granting of visitation privileges. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Where adoption of two grandchildren by stepfather not finalized until one month after the entry of the judgment awarding grandparents visitation, whatever rights he was to gain in becoming an adoptive parent had not vested at the time of the hearing, and therefore the adjudication of the issues before the court did not require his presence in the suit. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Trial court's findings of fact held to establish fitness of the grandparents and that the welfare of the children would be subserved by granting them visitation. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Applied in Buck v. Greenlee, - F. Supp. 2d - (W.D.N.C. Sept. 30, 2011).

Cited in Ray v. Ray, 103 N.C. App. 790, 407 S.E.2d 592 (1991); Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996); Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009); Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013).


§ 50-13.3. Enforcement of order for custody.

  1. An order providing for the custody of a minor child is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A, Contempt, of the General Statutes.
  2. Any court of this State having jurisdiction to make an award of custody of a minor child in an action or proceeding therefor, shall have the power of injunction in such action or proceeding as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65.
  3. Notwithstanding subsections (a) and (b) of this section, a warrant to take physical custody of a child issued by a court pursuant to G.S. 50A-311 is enforceable throughout this State.

Notwithstanding the provisions of G.S. 1-294, an order pertaining to child custody which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child custody until the appeal is decided, if justice requires.

History

(1967, c. 1153, s. 2; 1969, c. 895, s. 16; 1977, c. 711, s. 26; 1983, c. 530, s. 2; 2017-22, s. 1.)

Effect of Amendments. - Session Laws 2017-22, s. 1, added subsection (c). For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under subsection (a) of this section as it read prior to the 1977 amendment, which subsection formerly provided for punishment as for contempt of the "willful disobedience" of custody orders.

Jurisdiction. - Under North Carolina case law, matters of custody, which include visitation rights under this section, are pending until the death of one of the parties or until the child reaches the age of majority. The hands of the courts would be effectively tied if they had no jurisdiction to enforce the orders they enter. Beck v. Beck, 64 N.C. App. 89, 306 S.E.2d 580 (1983).

Case Law Not Overruled. - Adoption of the provision in the statute to allow a trial court to enforce custody orders pursuant to its contempt powers did not overrule certain case law; it simply created a new, specific, and limited right. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817 (2018), appeal dismissed, review denied, stay denied, 372 N.C. 359, 828 S.E.2d 164, 2019 N.C. LEXIS 580 (2019).

Only Willful Disobedience May Be Punished. - A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful, which imports knowledge and a stubborn resistance. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Trial Court Must Find Defendant Possessed Means to Comply. - In order to punish by contempt proceedings, the trial court must find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

One does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Finding as to Present Ability to Comply. - In a contempt proceeding for violation of a custody order, no specific finding was required of the trial court as to the defendant's present ability to comply with the order, although there was in fact plenary evidence introduced to justify such a finding. Lee v. Lee, 37 N.C. App. 371, 246 S.E.2d 49 (1978).

Where the court enters judgment as for civil contempt, the court must not only find failure to comply with the order, but must also find that the defendant presently possesses the means to comply. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Appealability of Contempt Order Where Punishment Is Withheld. - Plaintiff was entitled to appeal the order of the trial court finding that she was in contempt of child custody orders, even though the trial court withheld punishment and only made the findings a part of the record, since to withhold punishment without further limitation is to retain the right to impose it in the future. Under such circumstances, the order holding the plaintiff in contempt affected a substantial right and was therefore appealable. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

Review of Findings of Fact. - In proceedings for contempt, the facts found by the judge are not reviewable except for the purpose of passing upon their sufficiency to warrant the judgment. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

In contempt proceedings, the judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

Review in contempt proceedings is limited to whether there is competent evidence to support findings of fact and whether findings support conclusions of law. Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990).

In contempt proceedings, findings by the trial court with regard to whether a party willfully and without sufficient legal excuse or justification violated the terms of a custody order are conclusive on appeal when supported by competent evidence. Lee v. Lee, 37 N.C. App. 371, 246 S.E.2d 49 (1978).

Payment of Counsel Fees. - The court is vested with broad power when it is authorized to punish "as for contempt." This power includes the authority for a district court judge to require one whom he has found in willful contempt of court for failure to comply with a child support order entered pursuant to G.S. 50-13.1 et seq., to pay reasonable counsel fees to opposing counsel as a condition to being purged of contempt. Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Receipt of Support May Not Be Conditioned on Visitation. - A trial judge does not have authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Enforcement of Visitation Orders. - Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in this section, that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

No Authority to Modify Father's Visitation Rights. - The trial court was without authority to transform a show cause hearing on the matter of a wife's alleged contempt in failing to comply with a custody order, on its own motion and without notice to the wife, into a hearing on the issue of modification of the father's visitation rights as set forth in prior orders. Lee v. Lee, 37 N.C. App. 371, 246 S.E.2d 49 (1978).

Finding of Contempt Supported by Competent Evidence. - Where competent evidence supported trial court's findings of defendant's failure to comply with previous visitation order and of his present ability to comply with the order, these findings were conclusive on appeal and also supported conclusion of law that defendant was in contempt of visitation order. Walleshauser v. Walleshauser, 100 N.C. App. 594, 397 S.E.2d 371 (1990).

No Finding of Contempt as Actions in Violation of Visitation Order Were Justified. - Trial court's finding that the mother's actions, suspending the father's visitation over his objection and without court authority, did not amount to contempt was upheld, as there was evidence that the mother's failure to comply with the visitation order was justified after the father physically disciplined a child in an inappropriate way, the children were visibly shaken and upset by the incident, and there had been past allegations of domestic violence involving the father. Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013).

Violation of Order Pending Appeal. - While an appeal from an order providing for the custody of a minor child removes the cause from the trial court to the appellate court, and while pending the appeal the trial court is without jurisdiction to punish for contempt, the taking of an appeal does not authorize a violation of the custody order. If the custody order is upheld by the appellate court, the violation may be inquired into when the cause is remanded to the trial court. Sturdivant v. Sturdivant, 31 N.C. App. 341, 229 S.E.2d 318 (1976).

Applied in Morris v. Morris, 42 N.C. App. 222, 256 S.E.2d 302 (1979); Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983); Ruth v. Ruth, 158 N.C. App. 123, 579 S.E.2d 909 (2003).

Cited in Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206 (1969); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972); Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984); McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495 (1988); Rosero v. Blake, 150 N.C. App. 250, 563 S.E.2d 248, cert. granted, 356 N.C. 166, 568 S.E.2d 610 (2002); Romulus v. Romulus, 216 N.C. App. 28, 715 S.E.2d 889 (2011).


§ 50-13.4. Action for support of minor child.

  1. Any parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child as hereinafter provided.
  2. In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child. In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild's support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child's conception, the parents of both minor parents share primary liability for their grandchild's support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child's conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated. In the absence of pleading and proof that the circumstances otherwise warrant, any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the child's parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which agency may be responsible under law for such support.
  3. Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. Payments ordered for the support of a minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor's pay period.
    1. If the child is otherwise emancipated, payments shall terminate at that time;
    2. If the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.
    3. (See Editor's note for applicability) If the child is enrolled in a cooperative innovative high school program authorized under Part 9 of Article 16 of Chapter 115C of the General Statutes, then payments shall terminate when the child completes his or her fourth year of enrollment or when the child reaches the age of 18, whichever occurs later.
  4. Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations, including retroactive support obligations, of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. The purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support, if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.
  5. In non-IV-D cases, payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or any other proper person, agency, organization or institution, or to the State Child Support Collection and Disbursement Unit, for the benefit of the child. In IV-D cases, payments for the support of a minor child shall be ordered to be paid to the State Child Support Collection and Disbursement Unit for the benefit of the child.
  6. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110-136.5(c1) shall apply.
  7. Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which payment for the support of a minor child is ordered and alimony or postseparation support is also ordered, the order shall separately state and identify each allowance.
  8. In IV-D cases, the order for child support shall provide that the clerk shall transfer the case to another jurisdiction in this State if the IV-D agency requests the transfer on the basis that the obligor, the custodian of the child, and the child do not reside in the jurisdiction in which the order was issued. The IV-D agency shall provide notice of the transfer to the obligor by delivery of written notice in accordance with the notice requirements of Chapter 1A-1, Rule 5(b) of the Rules of Civil Procedure. The clerk shall transfer the case to the jurisdiction requested by the IV-D agency, which shall be a jurisdiction in which the obligor, the custodian of the child, or the child resides. Nothing in this subsection shall be construed to prevent a party from contesting the transfer.
  9. Remedies for enforcement of support of minor children shall be available as follows:
    1. The court may require the person ordered to make payments for the support of a minor child to secure the payments by means of a bond, mortgage or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment of wages, salary or other income due or to become due.
    2. If the court requires the transfer of real or personal property or an interest therein as provided in subsection (e) of this section as a part of an order for payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer title as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
    3. The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child-support payments as in other cases.
    4. The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child-support payments as in other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of the defendant. Additionally, in accordance with the provisions of G.S. 110-136, a continuing wage garnishment proceeding for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action through the filing of a petition.
    5. The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for child support as in other cases.
    6. Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in actions for child support as in other cases.
    7. A minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to voidable transactions.
    8. Except as provided in Article 15 of Chapter 44 of the General Statutes, a judgment for child support 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 affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments and may include provisions for periodic payments.
    9. An order for the periodic payments of child support or a child support judgment that provides for periodic payments is enforceable by proceedings for civil contempt, and disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
    10. The remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.
    11. The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.
  10. An individual who brings an action or motion in the cause for the support of a minor child, and the individual who defends the action, shall provide to the clerk of the court in which the action is brought or the order is issued, the individual's social security number.
  11. Child support orders initially entered or modified on and after October 1, 1998, shall contain the name of each of the parties, the date of birth of each party, and the court docket number. The Administrative Office of the Courts shall transmit to the Department of Health and Human Services, Child Support Enforcement Program, on a timely basis, the information required to be included on orders under this subsection and the social security number of each party as required under subsection (g) of this section.

The judge may order responsible parents in a IV-D establishment case to perform a job search, if the responsible parent is not incapacitated. This includes IV-D cases in which the responsible parent is a noncustodial mother or a noncustodial father whose affidavit of parentage has been filed with the court or when paternity is not at issue for the child. The court may further order the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607, as the court deems appropriate.

The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated or attained the age of 20.

If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments shall continue in the same total amount that was due under the terms of the previous court order or income withholding in effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until all arrearages and fees are satisfied or until further order of the court.

Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts. The Conference may modify the guidelines accordingly. The Conference shall give the Department of Health and Human Services, the Administrative Office of the Courts, and the general public an opportunity to provide the Conference with information relevant to the development and review of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of Health and Human Services and the Administrative Office of the Courts, which shall disseminate them to the public through local IV-D offices, clerks of court, and the media.

Notwithstanding the provisions of G.S. 1-294, an order for the payment of child support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child support until the appeal is decided, if justice requires.

History

(1967, c. 1153, s. 2; 1969, c. 895, s. 17; 1975, c. 814; 1977, c. 711, s. 26; 1979, c. 386, s. 10; 1981, c. 472; c. 613, ss. 1, 3; 1983, c. 54; c. 530, s. 1; 1985, c. 689, s. 17; 1985 (Reg. Sess., 1986), c. 1016; 1989, c. 529, ss. 1, 2; 1989 (Reg. Sess., 1990), c. 1067, s. 2; 1993, c. 335, s. 1; c. 517, s. 5; 1995, c. 319, s. 9; c. 518, s. 1; 1997-433, ss. 2.1(a), 2.2, 4.4, 7.1; 1997-443, ss. 11A.118(a), 11A.122; 1998-17, s. 1; 1998-176, s. 1; 1999-293, ss. 3, 4; 1999-456, s. 13; 2001-237, s. 1; 2003-288, s. 1; 2008-12, s. 1; 2012-20, s. 2; 2014-77, s. 8; 2014-115, s. 37; 2015-23, s. 2.)

Local Modification. - Person: 1967, c. 848, s. 2.

Cross References. - As to actions for custody and support, see also G.S. 50-13.5 and notes thereunder.

As to the maintenance of certain actions as independent actions, see G.S. 50-19.

For the North Carolina Child Support Guidelines, effective August 1, 1991, see the Annotated Rules of North Carolina.

As to liens on real and personal property of persons owing past due child support, see G.S. 44-86.

As to discharge of liens on property of persons owing past due child support, see G.S. 44-87.

As to legislation deleting the June 30, 1998 expiration date for all enactments and amendments by Session Laws 1997-443, see the editor's note under G.S. 44-86.

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " Action for support of minor child.

  1. Any parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child as hereinafter provided.
  2. In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child, and any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the child's parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which agency may be responsible under law for such support.
  3. Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.
    1. If the child is otherwise emancipated, payments shall terminate at that time;
    2. If the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.
  4. Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. Prior to May 1, 1990 these guidelines and criteria shall be reported to the General Assembly by the Administrative Office of the Courts by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support, if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.
  5. Payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or any other proper person, agency, organization or institution, or to the court, for the benefit of such child.
  6. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110-136.5(c1) shall apply.
  7. Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. In every case in which payment for the support of a minor child is ordered and alimony or alimony pendente lite is also ordered, the order shall separately state and identify each allowance.
  8. Remedies for enforcement of support of minor children shall be available as herein provided.
    1. The court may require the person ordered to make payments for the support of a minor child to secure the same by means of a bond, mortgage or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment of wages, salary or other income due or to become due.
    2. If the court requires the transfer of real or personal property or an interest therein as provided in subsection (e) as a part of an order for payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer title as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
    3. The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child-support payments as in other cases.
    4. The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child-support payments as in other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of the defendant. Additionally, in accordance with the provisions of G.S. 110-136, a continuing wage garnishment proceeding for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action through the filing of a petition.
    5. The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for child support as in other cases.
    6. Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in action for child support as in other cases.
    7. A minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor within the meaning of Article 3 of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
    8. A judgment for child support 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 affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.
    9. An order for the periodic payments of child support is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
    10. The remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.
    11. The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available."

The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1). However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated or attained the age of 20.

Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts. The Conference may modify the guidelines accordingly. The Conference shall give the Department of Human Resources, the Administrative Office of the Courts, and the general public an opportunity to provide the Conference with information relevant to the development and review of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of Human Resources and the Administrative Office of the Courts, which shall disseminate them to the public through local IV-D offices, clerks of court, and the media.

Until July 1, 1990, the advisory guidelines adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall operate as presumptive guidelines and the factors adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall constitute criteria for varying from the amount of support determined by the guidelines.

Notwithstanding the provisions of G.S. 1-294, an order for the payment of child support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child support until the appeal is decided, if justice requires.

Session Laws 2012-20, s. 3, made subdivision (c)(3) effective October 1, 2012, and applicable to actions or motions filed on or after that date.

Effect of Amendments. - Session Laws 2008-12, s. 1, effective October 1, 2008, deleted the last sentence in subsection (g), which read: "The child support order shall contain the social security number of the parties as evidenced in the support proceeding"; and, in subsection (h), deleted "the social security number of each party," following "date of birth of each party" in the first sentence, and added "and the social security number of each party as required under subsection (g) of this section" at the end of the second sentence.

Session Laws 2012-20, s. 2, effective October 1, 2012, added subdivision (c)(3). For applicability, see editor's note.

Session Laws 2014-77, s. 8, effective July 22, 2014, substituted "computation of child support obligations, including retroactive support obligations" for "computation of child support obligations" near the beginning of the first paragraph of subsection (c1).

Session Laws 2014-115, s. 37, effective August 11, 2014, in subsection (c1), deleted the former second sentence of the first paragraph and deleted the former last paragraph, which dealt with pre-1990 reporting and guidelines, respectively.

Session Laws 2015-23, s. 1, effective October 1, 2015, in subsection (f), substituted "voidable transactions" for "fraudulent conveyances" in subdivision (f)(7), and made minor stylistic changes. For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1972 case law on child support and pre-Chapter 48A consent judgments, see 51 N.C.L. Rev. 1091 (1973).

For survey of 1976 case law on domestic relations, see 55 N.C.L. Rev. 1018 (1977).

For note on the remedy of garnishment in child support, see 56 N.C.L. Rev. 169 (1978).

For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For comment discussing the status of the presumption of purchase money resulting trust for wives in light of Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982), see 61 N.C.L. Rev. 576 (1983).

For note, "Plott v. Plott: Use of a Formula to Determine Parental Child Support Obligations - A Continuation of Inconsistent and Inequitable Decisions?," see 64 N.C.L. Rev. 1378 (1986).

For note on child support provisions as a limit on the doctrine of necessaries, in light of Alamance County Hosp. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986), see 65 N.C.L. Rev. 1308 (1987).

For note, "Legislating Responsibility: North Carolina's New Child Support Enforcement Acts," see 65 N.C.L. Rev. 1354 (1987).

For article, "Using Hindsight to Change Child Support Obligations: A Survey of Retroactive Modification and Reimbursement of Child Support in North Carolina," see 10 Campbell L. Rev. 111 (1987).

For article, "Equating a Stepparent's Rights and Liabilities Vis-A-Vis Custody, Visitation and Support upon Dissolution of the Marriage with Those of the Natural Parent - An Equitable Solution to a Growing Dilemma?," see 17 N.C. Cent. L.J. 1 (1988).

For comment, "The Seventeen Percent Solution: Formula Guidelines for Determining Child Support Awards Arrive in North Carolina," see 18 N.C. Cent. L.J. 209 (1989).

For note, "Hendricks v. Sanks: One Small Step for the Continued Parental Support of Disabled Children Beyond the Age of Majority in North Carolina," see 80 N.C.L. Rev. 2094 (2002).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

CASE NOTES

I. IN GENERAL.

Editor's Note. - A number of the cases cited below were decided under former G.S. 50-13, which dealt with custody and maintenance of children in actions for divorce, and former G.S. 50-16, which dealt with actions for alimony without divorce.

State Policy. - It is the policy of this State that both parents have a duty to support their minor children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, cert. denied, 329 N.C. 499, 407 S.E.2d 538 (1991).

Public Policy. - The public policy of this State encourages settlement agreements and supports the inclusion of a provision for the recovery of attorney's fees in settlement agreements. Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219 (1995).

History of Section. - For discussion of the history of this section, see Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

Provisions in Chapter 110 Prevail over This Chapter. - The legislature did not intend for this chapter to control all actions for child support. Reading this chapter together with Chapter 110, the more specific provisions of Chapter 110 dealing with the procedure for determining and enforcing support obligations of a father who voluntarily acknowledges paternity prevails over any conflicting procedure in this chapter for determining and enforcing custody and support of minor children. Wake County ex rel. Horton v. Ryles, 112 N.C. App. 754, 437 S.E.2d 404 (1993).

Subsection (a) does not specify that it requires judicial determination of custody before its provision can be utilized by a person or agency bringing an action for support. Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Support Exemption. - G.S. 105-149 has been repealed in apparent effort by General Assembly to bring North Carolina's personal income tax laws into conformity with the 1984 revisions of federal tax statutes. Under federal law, custodial parent, not parent paying primary support, is entitled to claim support exemption for child under circumstances such as are present here. However, federal law also provides that custodial parent may waive right to claim exemption. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Trial court may order custodial parent to waive right to claim federal and State tax exemptions. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Court order assigning federal and State tax dependency exemptions to payor of child support for all income tax purposes was valid. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Mentally Retarded Children - North Carolina trial court properly exercised jurisdiction over a father's action seeking modification of a New Jersey trial court's order requiring the father to pay child support for a mentally retarded child who was born in 1964, after the child and her mother moved to North Carolina and the father moved to Maryland, and the trial court's judgment that the father's request for an order terminating his obligation to pay child support had to be granted, pursuant to G.S. 50-13.4(c), was affirmed on appeal. Lombardi v. Lombardi, 157 N.C. App. 540, 579 S.E.2d 419 (2003).

The Child Support Guidelines should not be used to determine the support obligation of a stepparent, secondarily liable for a child's needs. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994).

Support and Counsel Fees Pendente Lite on Husband's Denial of Paternity. - Where, upon wife's motion in the cause to require defendant to provide support for the minor child of the marriage, made after decree of absolute divorce, husband filed an affidavit denying paternity, and at his instance the issue was transferred to the civil issue docket, the trial court had the discretionary power to order defendant to provide for support of the child and counsel fees pendente lite. Winfield v. Winfield, 228 N.C. 256, 45 S.E.2d 259 (1947).

The requirement that a voluntary assumption of support be reduced to writing, imposed on those who are secondarily liable under subsection (b) of this section, does not apply to parents of unemancipated minors who have had a child, for they are primarily liable for support of the infant. Whitman v. Kiger, 139 N.C. App. 44, 533 S.E.2d 807 (2000), aff'd, 353 N.C. 360, 543 S.E.2d 476 (2001).

Modification Of Foreign Order. - Pursuant to the Uniform Interstate Family Support Act, Va. Code Ann. § 20-88.66, the trial court did not err in registering a 1997 North Carolina (N.C.) child support order, which applied the duration term set forth in a 1994 New York (N.Y.) child support order because the 1994 N.Y. order was not modified and remained in full force and effect through the 1997 N.C. order's saving language; the 1997 N.C. order provided that all provisions of previous orders not modified therein would remain in full force and effect. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714 (2012).

Applied in Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969); Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970); Williams v. Williams, 12 N.C. App. 170, 182 S.E.2d 667 (1971); Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Carter v. Carter, 13 N.C. App. 648, 186 S.E.2d 684 (1972); Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Brady v. Brady, 24 N.C. App. 663, 211 S.E.2d 823 (1975); Tidwell v. Booker, 27 N.C. App. 435, 219 S.E.2d 648 (1975); Amaker v. Amaker, 28 N.C. App. 558, 221 S.E.2d 917 (1976); County of Stanislaus v. Ross, 41 N.C. App. 518, 255 S.E.2d 229 (1979); Williams v. Williams, 42 N.C. App. 163, 256 S.E.2d 401 (1979); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Gordon v. Gordon, 46 N.C. App. 495, 265 S.E.2d 425 (1980); Lane v. Aetna Cas. & Sur. Co., 48 N.C. App. 634, 269 S.E.2d 711 (1980); In re Register, 303 N.C. 149, 277 S.E.2d 356 (1981); Hardee v. Hardee, 59 N.C. App. 465, 297 S.E.2d 606 (1982); Wolfe v. Wolfe, 64 N.C. App. 249, 307 S.E.2d 400 (1983); Champion v. Champion, 64 N.C. App. 606, 307 S.E.2d 827 (1983); Rustad v. Rustad, 68 N.C. App. 58, 314 S.E.2d 275 (1984); Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786 (1984); Wilkes County ex rel. Child Support Enforcement Agency ex rel Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984); Bennett v. Bennett, 71 N.C. App. 424, 322 S.E.2d 439 (1984); Toney v. Toney, 72 N.C. App. 30, 323 S.E.2d 434 (1984); Massey v. Massey, 71 N.C. App. 753, 323 S.E.2d 451 (1984); Appelbe v. Appelbe, 75 N.C. App. 197, 330 S.E.2d 57 (1985); State ex rel. Pender County Child Support Enforcement Agency ex rel Crews v. Parker, 319 N.C. 354, 354 S.E.2d 501 (1987); Koufman v. Koufman, 97 N.C. App. 227, 388 S.E.2d 207 (1990); Hall v. Hall, 107 N.C. App. 298, 419 S.E.2d 371 (1992); Rose v. Rose, 108 N.C. App. 90, 422 S.E.2d 446 (1992); Thomas v. Thomas, 134 N.C. App. 591, 518 S.E.2d 513 (1999); Leary v. Leary, 152 N.C. App. 438, 567 S.E.2d 834 (2002); Holland v. Holland, 169 N.C. App. 564, 610 S.E.2d 231 (2005); Guilford County ex rel. Holt v. Puckett, 191 N.C. App. 693, 664 S.E.2d 362 (2008); New Hanover Child Support Enforcement ex rel. Dillon v. Rains, 193 N.C. App. 208, 666 S.E.2d 800 (2008).

Cited in Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206 (1969); Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971); Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424 (1971); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972); Koob v. Koob, 16 N.C. App. 326, 192 S.E.2d 40 (1972); Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973); Stanback v. Stanback, 31 N.C. App. 174, 229 S.E.2d 693 (1976); Roberson v. Roberson, 40 N.C. App. 193, 252 S.E.2d 237 (1979); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979); Oxendine v. Catawba County Dep't of Social Servs., 49 N.C. App. 571, 272 S.E.2d 417 (1980); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546 (1981); Harper v. Harper, 50 N.C. App. 394, 273 S.E.2d 731 (1981); Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981); Wilkes County ex rel. Child Support Enforcement Agency ex rel Nations v. Gentry, 63 N.C. App. 432, 305 S.E.2d 207 (1983); State v. Caudill, 68 N.C. App. 268, 314 S.E.2d 592 (1984); Miller v. Kite, 69 N.C. App. 679, 318 S.E.2d 102 (1984); Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865 (1984); Rice v. Rice, 81 N.C. App. 247, 344 S.E.2d 41 (1986); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404 (1986); North Carolina Baptist Hosps. v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987); Smith v. Davis, 88 N.C. App. 557, 364 S.E.2d 156 (1988); Williams v. Williams, 97 N.C. App. 118, 387 S.E.2d 217 (1990); In re Roberson, 97 N.C. App. 277, 387 S.E.2d 668 (1990); McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14 (1993); Fitch v. Fitch, 115 N.C. App. 722, 446 S.E.2d 138 (1994); Allen v. Piedmond Transp. Servs., Inc., 116 N.C. App. 234, 447 S.E.2d 835 (1994); Moyer v. Moyer, 122 N.C. App. 723, 471 S.E.2d 676 (1996); Taylor v. Taylor, 128 N.C. App. 180, 493 S.E.2d 819 (1997); Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998); Vann v. Vann, 128 N.C. App. 516, 495 S.E.2d 370 (1998); Willard v. Willard, 130 N.C. App. 144, 502 S.E.2d 395 (1998); Brewer v. Brewer, 139 N.C. App. 222, 533 S.E.2d 541 (2000); In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779; Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002); McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003); Carson v. Carson, 199 N.C. App. 101, 680 S.E.2d 885 (2009); Moore v. Onafowora, 208 N.C. App. 674, 703 S.E.2d 744 (2010); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011); Romulus v. Romulus, 216 N.C. App. 28, 715 S.E.2d 889 (2011); Clements v. Clements, 219 N.C. App. 581, 725 S.E.2d 373 (2012); Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299 (2012), review denied, 743 S.E.2d 191, 2013 N.C. LEXIS 552 (2013); In re A.D.N., 231 N.C. App. 54, 752 S.E.2d 201 (2013), review denied, 755 S.E.2d 626, 2014 N.C. LEXIS 232 (2014); Zurosky v. Shaffer, 236 N.C. App. 219, 763 S.E.2d 755 (2014).

II. INSTITUTION OF ACTION.

Judicial Determination of Custody. - Subsection (a) does not specify that it requires judicial determination of custody before its provisions can be utilized by person or agency bringing action for support. Thus, where mother in her proceeding for modification of support order also requested a formal adjudication of custody, which request was granted, plaintiff met the custody requirements of subsection (a). Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988).

Custodial Parent as Real Party in Interest. - If the custodial parent provides support which the other parent is legally obligated to provide, then the custodial parent is a real party in interest in an action to recover the support so provided. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, cert. denied, 296 N.C. 106, 249 S.E.2d 804 (1978).

Although plaintiff alleged that he was the father of the child, he did not allege that he had custody, therefore under the provisions of this section, only a parent who has custody of a minor child may bring an action for its support. Becton v. George, 90 N.C. App. 607, 369 S.E.2d 366 (1988).

Required Notice Deemed Waived. - Where both parties introduced evidence on the reasonable needs of the children and the relative ability of each parent to pay support for the children, the defendant's failure to give proper notice of his request that a hearing be conducted regarding these issues was waived and the trial court was required to find facts and enter conclusions on this evidence. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991); Rose v. Rose, 108 N.C. App. 90, 422 S.E.2d 446 (1992).

Notice for Hearing. - This section does not identify any time restrictions for making the request for a hearing described in subsection (c). However, to effectuate the purpose of this section, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by G.S. 50-13.5(d)(1). Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

There is no limitation as to time within which actions for the support of legitimate children must be commenced. County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E.2d 816 (1980).

Motion in Cause. - Plaintiff-husband, as a parent seeking custody, could seek to have his child support obligation determined through a motion in the cause in the divorce action. He was not precluded from doing so by the fact that the court had not previously entered orders in that action relating to child support. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

Discovery Held Overbroad. - For a case in which it was held that plaintiff's discovery request in a child-support case was overbroad and should have been limited by the trial court, see Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

Prayer for Increase in Support Actually Action Under this Section. - Although plaintiff's complaint prayed for an increase in child support based upon a substantial change in circumstances, plaintiff's action was in fact brought pursuant to subsection (a) of this section because the amount sought to be increased was paid pursuant to a non-judicial separation agreement; plaintiff was actually asking the Court to enter an original award of child support. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

III. LIABILITY FOR SUPPORT.

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Subsection (b) imposes primary liability upon both father and mother to support a minor child. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Subsection (b) of this section, as amended in 1981, does not diminish a father's responsibilities. Rather, it enlarges a mother's responsibilities by making both parents primarily liable for the support of their children. Alamance County Hosp. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986).

Equal Duty of Support Is Rule Rather Than Exception. - Today, the equal duty of both parents to support their children is the rule rather than the exception is virtually all states. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Both parents have equal support duties under the law, absent pleading and proof that circumstances otherwise warrant. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Support for minor children is an obligation shared by both parents according to their relative abilities to provide support and the reasonable needs and estate of the child. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

But Equal Financial Contributions Are Not Necessarily Required. - Subsection (b) of this section provides that both mothers and fathers share primary liability for the support of their minor children, thus imposing an equal legal duty on the parent of each gender. However, subsection (b) neither mandates equal financial contributions nor requires any contribution from either party where it is proved that the circumstances otherwise warrant. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Equal legal duty to support does not impose an equal financial contribution by both parties. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Equal duty to support does not necessarily mean that the amount of child support is to be automatically divided equally between the parties. Rather, the amount of each parent's obligation varies in accordance with their respective financial resources. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Equal Financial Contributions Not Imposed Where Unfair or Burdensome. - The parental obligation for child support is not primarily an obligation of the father but is one shared by both parents. This equal duty to support, however, does not impose upon both parties an equal financial contribution when such an allocation would be unfair or place too great a burden on a party. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Discretion of Court as to Amount and Source of Support. - The trial court has considerable discretion in determining whether and in what amounts the party from whom support is sought may be ordered to provide it. Therefore, the trial court has a duty to exercise an informed and considered discretion with respect to the support obligation of the parties. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Amount of Each Party's Contribution Determined on Case-by-Case Basis. - The amount of each party's contribution to child support is generally determined by the judge on a case-by-case basis. The judge must evaluate the circumstances of each family and also consider certain statutory requirements in fixing the amount of child support. Subsection (c) of this section mandates that the trial judge consider the certain factors in setting child support amounts. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Relative Ability to Pay May Be Considered. - Although Session Laws 1981, c. 613 had the effect of changing the previous rule that the mother was only secondarily liable for child support, in all other relevant respects involving the relative ability or inability of the mother and father to provide such support, the relevant statutory provisions remained unchanged. Therefore, other circumstances may properly be considered, including the relative ability of the parties to pay. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

It was apparent from the record that the trial court considered both the existence and structure of appellee's trust fund and appellant's income as an ophthalmologist in making its determination that appellant should contribute one-half of child's necessary and actual expenses. It concluded that a father in an established ophthalmologic practice, and who had a 1991 income of at least $88,000 was able to contribute half of his child's support. Munn v. Munn, 112 N.C. App. 151, 435 S.E.2d 74 (1993).

Consideration of Ability to Pay - Procedure. - Defendant's contention that summary judgment was improper because he was financially unable to make the child support payments called for in the agreement would be relevant only to future payments and could be considered only after the defendant had filed a motion in the cause for the trial court to set an amount of child support which differs from that in the separation agreement. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, cert. denied, 329 N.C. 499, 407 S.E.2d 538 (1991).

Voluntary Unemployment. - Trial court order finding that mother was obligated to pay child support to her ex-husband for their three minor children who resided with the ex-husband, which was based on a deviation from the North Carolina Child Support Guidelines, was error; although the deviation was supported by the evidence in that the mother was voluntarily unemployed and had cash reserves to meet her financial obligations of the children, the amount awarded was not supported by any evidence. Roberts v. McAllister, 174 N.C. App. 369, 621 S.E.2d 191 (2005), appeal dismissed, - N.C. - , 629 S.E.2d 608 (2006).

Determination of Relative Ability. - The relative ability of the parties to contribute under subsections (b) and (c) of this section cannot depend solely on the determination of monthly available income after expenses. Rather, it must be reflective of all the relevant circumstances, including the relative hardship to each parent in contributing to the reasonable needs of the child. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Stepparent in Loco Parentis. - If an individual assumes the status of in loco parentis, he is secondarily liable to the child's natural parents for the support of that child, and if the needs of the child exceed the ability of the child's natural parents to meet those needs, then and only then is the individual in loco parentis secondarily responsible for the deficiency. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994).

By signing a separation agreement in which he agreed to pay child support to plaintiff, stepparent voluntarily and in writing extended his status of in loco parentis and gave the court the authority to order that support be paid. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994).

Child's Needs and Hardship to Each Parent Must Be Considered. - Enforcement of each parent's statutory duty to contribute child support depends on the urgency of the needs of the child and the relative hardship to each parent in contributing to these needs. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Children with Property of Their Own. - There is nothing in the statute to suggest any legislative intent to change the firmly established rule that the supporting parent who can do so remains obligated to support his or her minor children, even though they may have property of their own. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984).

Although trial court found as a fact that each child had an estate in excess of $300,000.00, the separate incomes and estates of children did not diminish or relieve the obligation of the defendant father to support his children, even though former husband's income was about $37,000.00. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

Education Needs of Child. - Although public funding may have been available for special education needs of child, but was not sought by custodial parent, court did not err in requiring noncustodial parent to pay costs of child's educational expenses in proportion to parent's gross income. Sikes v. Sikes, 98 N.C. App. 610, 391 S.E.2d 855 (1990), aff'd, 330 N.C. 595, 411 S.E.2d 588 (1992).

Mother had to continue paying child support under subdivision (c)(2) of this section for her son who had turned 18 where, although he would not be able to receive a standard high school diploma because he had Down's Syndrome, his teacher and school counselor showed that his attendance at the school was in his best interests, that he would continue to benefit in the future from the curriculum, and that he was making satisfactory academic progress toward a non-traditional graduation. Hendricks v. Sanks, 143 N.C. App. 544, 545 S.E.2d 779 (2001).

Apportionment of Costs Is Not Required Where One Parent Is Unable to Assist in Support. - Although apportionment of the costs of a child's support between his father and mother according to their respective means and responsibilities is statutorily authorized, it is not required where the mother is financially unable to assist the father with the support of their son. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

Support of Child Legitimated Under G.S. 49-12. - Where the reputed father of a child marries the child's mother after its birth, under G.S. 49-12 such child is deemed legitimate just as if it had been born in lawful wedlock, and such child is a minor child of the marriage; thus, the father may be required to furnish support for such child upon motion made either before or after decree of divorce. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950).

Primary Liability of Father Under Former Provisions. - For cases as to father's primary liability and mother's secondary liability to support their children, prior to the amendment by Session Laws 1981, c. 613, see Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502 (1900); Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490 (1914); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976); Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977); Coble v. Coble, 44 N.C. App. 327, 261 S.E.2d 34 (1979), rev'd on other grounds, 300 N.C. 708, 268 S.E.2d 185 (1980); Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981); In re Register, 303 N.C. 149, 277 S.E.2d 356 (1981).

As to mother's standing formerly to bring claim for loss of child's services and medical expenses, based upon her formerly secondary support obligation, prior to the amendment by Session Laws 1981, c. 613, see Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981).

Father's Reduction in Payments as Evidence He Had Not Met Obligations. - Where judge found that mother provided no evidence that she was entitled to payment of back child support, the evidence did not support the judge's finding; there was evidence that father had not met his child support obligations where father testified that in 1985, he reduced the amount of the payments due to a decrease in salary. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580 (1989).

Equitable Estoppel Did Not Bar Claim for Past Support. - Even assuming that on some set of facts equitable estoppel might properly bar a claim for child support arrears, it was inapplicable where husband, seeking to rely on equitable estoppel, could not show that, in good faith reliance on the conduct of his ex-wife, he had changed his position for the worse; the only change made in his position was the retention to his benefit of money owed for the support of his children. Griffin v. Griffin, 96 N.C. App. 324, 385 S.E.2d 526 (1989).

Applicability of Doctrine of "Necessaries". - Although the normal vehicle today for enforcing the obligation of support is undoubtedly the payment of court-ordered support pursuant to statute, the common law provided another vehicle through the so-called doctrine of "necessaries." North Carolina accepts this process for enforcing a parent's obligation to support minor children. Alamance County Hosp. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986).

Support Obligation of Noncustodial Parent. - Under new child Support Guidelines an adjustment in support obligation of noncustodial parent is reduced only when each parent has child for more than 33 percent of year. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Right of Third Party to Recover for "Necessaries" Furnished to Child. - Because a child's right to support continues unimpaired despite the divorce of his or her parents, the right of a third party provider of goods or services to claim against the noncustodial parent also continues, unimpaired by contracts or judicial decrees or orders affecting the relations between the parents. Alamance County Hosp. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986).

The payment of court-ordered child support does not bar a third party from seeking reimbursement directly from a noncustodial parent for "necessaries" provided to that parent's minor child. However, because the third party provider's right to recover against the parent is based upon the child's right to support, the third party provider must still show that the services or goods provided were legal "necessaries" and that the parent against whom relief is sought has failed or refused to provide them. In this context, any payment a noncustodial parent has made for the support of his or her child would be a factor for the trial judge to consider in deciding whether the parent has in fact met the obligation to support that child. Alamance County Hosp. v. Neighbors, 315 N.C. 362, 338 S.E.2d 87 (1986).

Non-Biological Parents. - The court will not impose the burden of child support on a non-biological parent who has not voluntarily assumed such an obligation. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997).

Persons Standing in Loco Parentis. - Although support of a child ordinarily is a parental obligation, other persons standing in loco parentis may also acquire a duty to support the child; thus, in a case where custodial father and child had believed him to be the father of the child, the duty of support should have accompanied the right to custody. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

Parents of Unemancipated Minors Primarily Responsible for Grandchildren's Support. - The statutory language of this section, coupled with the legislative intent, imposes primary responsibility for an infant born to unemancipated minors on the minors' parents (i.e. the infant's grandparents). Whitman v. Kiger, 139 N.C. App. 44, 533 S.E.2d 807 (2000), aff'd, 353 N.C. 360, 543 S.E.2d 476 (2001).

IV. AMOUNT OF SUPPORT.

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A. IN GENERAL.

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History and Purpose of Guidelines. - As of July 1, 1991, the State adopted guidelines based on income-sharing approach for determining child support. These guidelines were promulgated by Conference of Chief District Judges in accordance with subsection (c1) of this section. Income-sharing formulas ignore problem of attempting to determine cost of raising a child and are based instead on assumption that each parent will contribute all of his or her income to one fund. Then the formulas provide method for equitably dividing income among family members. Income-sharing formulas seeking to equalize financial burden of divorce so that all family members experience about same proportional reduction in standard of living after divorce. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Constitutionality of Guidelines. - Child Support Guidelines (2002) did not violate substantive due process; the State had a compelling interest in regulating child support obligations, and through establishing a rebuttable presumption with regard to the guidelines under G.S. 50-13.4(c), the act was narrowly drawn. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1 (2007), review denied, 362 N.C. 238, 659 S.E.2d 741 (2008), cert. denied, - U.S. - , 129 S. Ct. 144, 172 L. Ed. 2d 39 (2008).

Effective Date of Guidelines. - At time support order was entered in June, 1989, the Guidelines in subsection (c1) of this section were only advisory in nature. The Guidelines became presumptive as of October 1, 1989. New presumptive guidelines became effective July 1, 1990. Therefore, at the time, (June 1989) order was entered, trial judge was neither required to follow nor refer to advisory guidelines in order. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Use of Guidelines to Determine Support Proper. - Where parents' combined gross income was $11,980, below the $20,000 per month threshold, the trial court was permitted to use the child support guidelines and require the husband to continue paying $1,521 per month in child support. Francis v. Francis, 169 N.C. App. 442, 612 S.E.2d 141 (2005).

The amount of a parent's child support obligation is determined by application of the Child Support Guidelines. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998).

Guidelines Are Not Mandatory But Advisory. - An examination and interpretation of subsection (c1) as written clearly indicates that the guidelines prescribed by the Conference of Chief District Court Judges are not mandatory and binding but rather advisory in nature. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441 (1988), decided prior to later amendments to subsection (c1).

Deviation From Guidelines. - According to the statute, the trial court has the discretion to deviate from the presumptive guidelines in only two situations: (1) when application does not meet or exceeds the reasonable needs of the child; or (2) when application would be unjust or inappropriate. Guilford County ex rel. Child Support Enforcement Agency ex rel. Easter v. Easter, 120 N.C. App. 260, 461 S.E.2d 798 (1995), modified, 344 N.C. 166, 473 S.E.2d 6 (1996).

A trial court may deviate from the Guidelines when it finds, by the greater weight of the evidence, application of the Guidelines: (1) would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support; or (2) would be otherwise unjust or inappropriate. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998).

Although the trial court properly considered the father's settlement trust to be non-recurring income when making its child support order, the case was remanded because the trial court failed to make specific findings regarding the reasonable needs of the child when it deviated from the North Carolina Child Support Guidelines. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005).

North Carolina Child Support Guidelines were inapplicable because the combined monthly adjusted gross income of the parents exceeded $20,000; thus, the trial court was required to make a case-by-case determination. Consequently, the trial court was not bound by the Guidelines in determining the father's child support obligations. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006).

In considering a father's motion to modify child support, the trial court did not err in deviating only slightly from the guidelines; the guidelines were constitutional, and the slight deviation was not manifestly unsupported by reason. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1 (2007), review denied, 362 N.C. 238, 659 S.E.2d 741 (2008), cert. denied, - U.S. - , 129 S. Ct. 144, 172 L. Ed. 2d 39 (2008).

Trial court did not abuse its discretion in declining to deviate from the North Carolina Child Support Guidelines because it made findings regarding both the needs of the child and each parent's relative ability to provide support and did not find application of the Guidelines would be unjust or inappropriate. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Trial Court's Methodology Proper. - Even if the father had assigned error to the methodology employed by the trial court, there was no error in the trial court's determination process under circumstances in which both parties maintained full-time employment and earned average monthly incomes in excess of $10,000; the trial court's findings of fact included an updated analysis of the child's total reasonable needs while in the mother's care, the mother's pro rata share of the parties' gross income, and the mother's pro rata share of the child's reasonable needs while in her custody. Pascoe v. Pascoe, 183 N.C. App. 648, 645 S.E.2d 156 (2007).

Trial court did not abuse its discretion by determining that it would not base the child support calculation on the estates of the parties because they were essentially equal, and neither party would be required to deplete his or her accounts and properties to support the child. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

The child support guidelines were held inapplicable and child support was determined by assessing the particular facts of the case where a father's monthly income was $15,181; the denial of a father's motion to reduce child support was affirmed where the trial court acknowledged the father's income decrease, considered the father's family related expenses and support obligations, and determined, based on the father's net income of over $5,000 per month, that a reduction in child support from the original amount of $2,500 was unwarranted. Trevillian v. Trevillian, 164 N.C. App. 223, 595 S.E.2d 206 (2004).

Deviation from Guidelines Improper. - Trial court's findings that mother's live-in boyfriend earned $16.61 per hour and worked forty hours a week was insufficient to support the decision to deviate from the Child Support Guidelines. State ex rel. Carteret Child Support Enforcement Office ex rel. Horne v. Horne, 127 N.C. App. 387, 489 S.E.2d 431 (1997).

Automatic Support Increases. - Provision in judgment by confession ordering automatic child support increases based upon the C.P.I. was void where it did not contain the requirements for a valid annual adjustment formula in Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981). Snipes v. Snipes, 118 N.C. App. 189, 454 S.E.2d 864 (1995).

The determination of child support must be done in such way as to result in fairness to all parties. Walker v. Walker, 38 N.C. App. 226, 247 S.E.2d 615 (1978); Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 63, 326 S.E.2d 863 (1985).

Ultimate Objective. - While it is the legal obligation of the father (now father and mother) to provide for the support of his minor children, and while the welfare of the child is a primary consideration in matters of custody and maintenance, yet common sense and common justice dictate that the ultimate object in such matters is to secure support commensurate with the needs of the child and the ability of the father to meet the needs. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542 (1976).

No precise formula exists to assist the court in determining a fair support award, and the uniqueness of each divorce renders a precedent almost valueless. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Request for Variance from Child Support Guidelines. - G.S. 50-13.4 does not identify any time restrictions for making the request for a hearing. However, to effectuate the purpose of that statute, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

In deviating from child support guidelines, the trial court was required to make findings of fact as to the criteria that justified varying from the guidelines and the basis of the amount ordered; the court committed error because its findings were insufficient to meet this requirement. Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911 (1993).

Failure to follow the presumptive child-support guidelines prescribed pursuant to subsection (c1) required that a support order be reversed; the guidelines were not mentioned in the order and the order did not make reference to any of the factors used to vary a support payment from the presumptive amounts. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

In child support action, trial court must first determine primary liability for minor child's support under subsection (b). The court then determines the actual amount of support necessary to meet the minor child's reasonable needs pursuant to subsection (c). McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495 (1988).

Deviation from Guidelines in Special Needs Case. - The trial court erred in simply halving the mother's child support obligation when she was no longer liable for the support of one of the two children; the court was required to hold a hearing and make findings of fact when it deviated from the Child Support Guidelines, and, considering the second child's special needs, an amount higher than one-half of the original total might have been more appropriate. Hendricks v. Sanks, 143 N.C. App. 544, 545 S.E.2d 779 (2001).

Where 11 U.S.C.S. § 1325(b)(2) required that child support payments be reasonably necessary to be expended for a child and where G.S. 50-13.4(c) also provided that child support payments must be in such an amount as to meet the reasonable needs of a child, the court assumed that the child support payments made to a Chapter 13 debtor were determined in accordance with state law and that the full amount of the payment was reasonably necessary for the support of the children where there had been no contention to the contrary. In re Parker, - Bankr. - (Bankr. M.D.N.C. Apr. 28, 2009).

Estimate of Child Support in Error. - In setting the child support amount, the trial court erred in estimating the children's reasonable needs by comparing them to the reasonable needs of the father where the estimate was based on speculation, and was especially inappropriate given the finding that the children lived primarily with the mother. Lasecki v. Lasecki, 246 N.C. App. 518, 786 S.E.2d 286 (2016).

Ability to Pay and Needs of Child Must Be Considered. - Ordinarily, in entering a judgment for the support of a minor child, the ability to pay, as well as the needs of such child, will be taken into consideration. Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721 (1957); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700 (1963).

In providing for the support of minor children, the ability of the father (or mother) to pay, as well as the needs of the children, must be taken into consideration by the court. Martin v. Martin, 263 N.C. 86, 138 S.E.2d 801 (1964).

In determining the amount of support, the court must take into consideration the needs of the children and the ability of the defendant to pay during the time for which reimbursement is sought. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977).

An order for child support must be based not only on the needs of the child, but also on the ability of the father (or mother) to meet the needs. Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240 (1979).

In order to be fair and just, the court entering an order for child support must consider not only the needs of the child, but also the abilities of the parents to provide support. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985).

An order for child support must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child and (2) the relative ability of the parties to provide that amount. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

Computing the amount of child support is normally an exercise of sound judicial discretion, requiring the judge to review all of the evidence before him. Absent a clear abuse of discretion, a judge's determination of what is a proper amount of support will not be disturbed on appeal. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

The trial court's findings lacked the necessary specificity to justify its deviation from child support guidelines, where it failed to make any findings regarding the child's reasonable needs, including his education, maintenance, or accustomed standard of living. State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591 (1998).

Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

Trial court did not err in referencing a father's income when dismissing the father's complaint for child support because that information was relevant to the father's claim for child support. Durham Cty. v. Adams, 258 N.C. App. 395, 812 S.E.2d 885 (2018), review denied, 814 S.E.2d 106, 2018 N.C. LEXIS 472 (2018).

When Ability to Pay Determined. - A party's ability to pay child support is determined by the party's ability to pay at the time the award is made or modified. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

As Basis of Order for Child Support. - An order for child support under this section must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child, and (2) the relative ability of the parties to provide that amount. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980); In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981); Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982); In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982); Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205 (1983); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, cert. denied, 309 N.C. 460, 307 S.E.2d 362 (1983); Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983).

Along with Other Relevant Facts. - A court, when entering an order for support, should take into account the needs of the child, the resources of the parties and any other facts relevant to the case. McCall v. McCall, 61 N.C. App. 312, 300 S.E.2d 591 (1983).

Using disposable income (net income after expenses) is a way to fairly reflect the parties relative ability to contribute proportionately to support of the child. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900 (1991).

With Reference to the Special Circumstances of the Parties. - What amount is reasonable for a child's support is to be determined with reference to the special circumstances of the particular parties. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

Judge's consideration of the factors contained in subsection (c) of this section is not guided by any magic formula. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Vacation of Support Order Absent Evidence as to Parent's Ability to Pay and Child's Needs. - An order for child support will necessarily be vacated where there is no evidence offered as to a party's ability to pay or where there is no evidence as to the child's needs and expenses. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669 (1984).

Parent's Circumstances Must Be Evaluated. - The amount of each parent's contribution to the support of the child is based upon the trial court's evaluation of each parent's circumstances, including a determination of certain factors mandated by subsection (c) of this section. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Alimony and Child Support Considered Together. - Trial court reasonably could have concluded that the wife's alimony award needed to be increased because the wife's reasonable expenses had increased after the husband was no longer obligated to pay child support because the parties, minor child had turned 18-years-old. The original alimony award calculated the wife's reasonable expenses by attributing some of those expenses to the minor child, but the wife's reasonable expenses increased when the minor child attained the age of majority and those expenses were no longer attributed to the minor child. Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008).

"Cost Sharing" Formula Improper. - Use of any cost-sharing formula by a trial judge is now improper in North Carolina. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

"Cost-sharing" approach to child support awards embodied in the Franks formula criticized by North Carolina Court of Appeals when applied to case arising before July 1, 1990, effective date of this section. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Under this section and G.S. 50-13.7, party's ability to pay child support is ordinarily determined by party's actual income at time the support award is made or modified. However, if there is a finding by the trial court that the party was acting in bad faith by deliberately depressing his or her income or otherwise disregarding the obligation to pay child support, then the party's capacity to earn may be the basis for the award. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Interest in Corporations or Partnerships and Nontaxable Income Relevant. - The value and nature of defendant's interest in any partnerships or corporations and the terms of any trust of which he might be the beneficiary, as well as the amount of income, including non-taxable, deferred or declined income, flowing therefrom, would all bear relevance to child support proceeding. Shaw v. Cameron, 125 N.C. App. 522, 481 S.E.2d 365 (1997).

Encumbered Cash Reserve Funds of Corporation. - The trial court's exclusion of plaintiff's corporation's encumbered cash reserve funds in its calculation of child support was prejudicial error. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998).

Exclusive Ownership or Control of Estate Irrelevant. - Any judgment rendered against defendant setting an amount of child support would be dependent in significant part upon the amount of his income and the nature of his estate, whether exclusively owned or controlled by defendant, or jointly with others. Shaw v. Cameron, 125 N.C. App. 522, 481 S.E.2d 365 (1997).

Estate and Earnings of Both Husband and Wife Must Be Considered. - The court must consider not only the needs of the wife and children, but also the estate and earnings of both husband and wife. Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978); Walker v. Tucker, 69 N.C. App. 607, 317 S.E.2d 923 (1984).

Order which contained no findings of fact regarding plaintiff's earnings or employment status was not supported by sufficient findings of fact. Smith v. Smith, 103 N.C. App. 488, 405 S.E.2d 912 (1991).

Ordinarily, Present Earnings Should Be Basis for Award. - In determining the ability of the father (or mother) to support the child, the court ordinarily should examine the father's (or mother's) present earnings, rather than select the earnings for a single year in the past and use that as the basis for an award. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542 (1976).

If father (or mother) is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award for child support should be based on the amount which defendant is earning when the award is made. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542 (1976).

Ordinarily, father's (or mother's) ability to pay is determined by his income at the time the award is made if father (or mother) is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980).

The general rule is that the ability of a party to pay child support is determined by that person's income at the time the award is made. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

The ability of the supporting spouse to pay is ordinarily determined by his or her income at the time the award is made. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

But capacity to earn may be the basis of an award if it is based upon a proper finding that father (or mother) is deliberately depressing his income or indulging himself in excessive spending because of a disregard of his obligation to provide reasonable support for his spouse and children. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976).

A person's capacity to earn income may be made the basis of an award if there is a finding that the party deliberately depressed his or her income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

Under this section and G.S. 50-13.7, father's (or mother's) ability to pay child support is normally determined by his actual income at the time the award is made or modified. If, however, there is a finding that father (or mother) is deliberately depressing his income or otherwise acting in deliberate disregard of his obligation to provide reasonable support for his child, his capacity to earn may be made the basis of the award. Under these circumstances, his motion to reduce the amount of child support will be denied. Goodhouse v. DeFravio, 57 N.C. App. 124, 290 S.E.2d 751 (1982).

When the trial court makes a finding that a party deliberately depressed his or her income, then the party's capacity to earn or his potential income may be used to determine the child support obligation. McDonald v. Taylor, 106 N.C. App. 18, 415 S.E.2d 81 (1992).

Where plaintiff took early retirement at age 51, with a 3 year old daughter to support, chose to remain unemployed, despite having many skills, and there was testimony that plaintiff could earn at least $20,000 without decreasing his retirement benefits, the trial court properly based child support award on plaintiff's potential income. Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113 (1998).

Trial court erred in modifying a father's child support obligation downward under G.S. 50-13.7(a) despite evidence that he voluntarily quit his $172,000 job as an engineer to follow Jesus Christ and become a minister of a fledgling church without giving consideration to how he would meet his child support obligation. Andrews v. Andrews, 217 N.C. App. 154, 719 S.E.2d 128 (2011), review denied 365 N.C. 561, 722 S.E.2d 595, 2012 N.C. LEXIS 148 (2012).

Finding Where Award Is Based on Capacity to Earn. - To base an award for child support on capacity to earn rather than actual earnings, there should be a finding based on evidence that father (or mother) is failing to exercise his capacity to earn because of a disregard of his obligation to provide reasonable support for his spouse and children. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542 (1976); Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, cert. denied, 303 N.C. 182, 280 S.E.2d 454, appeal dismissed, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981).

Only where there are findings, based on competent evidence, to support a conclusion that the supporting spouse or parent is deliberately depressing his or her income to avoid family responsibilities can the "earning capacity" rule be applied. Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980); Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

A party's capacity to earn income may become the basis of an award if it is found that the party deliberately depressed its income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

When calculating the child support obligation owed by a parent, a showing of bad faith income depression by the parent is a mandatory prerequisite for imputing income to that parent. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997).

Must Be Sufficient Evidence of Proscribed Intent. - A trial court's conclusion underlying imposition of the earnings capacity rule must be based upon evidence that the actions which reduced the party's income were not taken in good faith. There must be sufficient evidence of the proscribed intent. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Consideration of Spouse's Capacity to Earn Held Error. - Trial court could not consider father's capacity to earn in computing his income where the evidence indicated that he lost his job due to no fault of his own, and the court's order contained no findings that he had deliberately stopped working to avoid his support obligations. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

Support Should Not Have Been Based on Earning Capacity. - Where there was no evidence that defendant was engaging in any tactics to avoid paying child support, defendant had purchased a substantial amount of farm equipment for use in his farming operation, and he had experienced a net loss from farming for the last three years but had made a profit from this business in the past, the evidence pointed to a genuine effort by defendant to engage in his chosen profession and to support his family as well; therefore, the case was remanded so the court could make a determination based upon defendant's present earnings instead of his earning capacity. Cameron v. Cameron, 94 N.C. App. 168, 380 S.E.2d 121 (1989).

Wrongful Inclusion of Future Personal Expenditures. - Where trial court includes personal expenditures not yet made by party with no concrete plans to make such an expenditure, award entered cannot possibly reflect the relative abilities of parties to pay support at that time. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627 (1990).

Determination of trial court not necessary to make finding of bad faith in reduction of income where the party seeking support modification was the custodial parent was not supported by current case law, nor was the trial court correct in concluding that when a custodial parent sought a change of child support based upon a reduction in income, that custodial parent had to request the court to make a finding of fact as to his or her "good faith." Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Father's cost-free housing was properly considered to be a form of gross-income, and thus, recurring income for purposes of making a child support award. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005).

The inclusion of a gift when calculating a defendant's income for child support purposes was an error, where there was no evidence on the part of defendant's parents that such a gift would be reoccurring. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816 (1987).

But Gift Rent and Vehicle Payments by Mother's Father Should Have Been Included in Support Obligation. - Trial court erred in failing to include the mother's gift income as attributable income in calculating a father's child support obligation; the payment of the mother's vehicle and rent payments by her father totaled $1,890, which should have been included in calculating income in the child support order. State v. Williams, 179 N.C. App. 838, 635 S.E.2d 495 (2006).

Non-interest Bearing Demand Note Not by Itself a Gift. - The fact that no demand had been made on a non-interest bearing demand note from defendant's parents did not render it a gift, and the trial court's finding that the transaction was a gift was erroneous. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816 (1987).

Third-party contributions may be used to support a deviation from North Carolina Child Support Guidelines, even where third parties are under no legal obligation to make such payments. Guilford County ex rel. Child Support Enforcement Agency ex rel. Easter v. Easter, 344 N.C. 166, 473 S.E.2d 6 (1996).

Personal injury settlement, paid on a one-time, non-recurring basis met the definition of "non-recurring income" and thus, was properly considered by the trial court when making a child support award. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005).

Settlement Payouts Non-Recurring Income. - Trial court did not abuse its discretion in ordering a father to make a lump sum child support payment under the North Carolina Child Support Guidelines because settlement payouts to the father constituted non-recurring income subject to application of the Guidelines. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Earnings of Child. - In a case involving child support payments, the trial court erred in refusing to admit the children's tax returns into evidence, the only information concerning the estate and earnings of the children. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816 (1987).

Education and Insurance Expenses. - Defendant's argument that provisions to pay for higher education and to provide life and health insurance were not in the nature of child support was not without merit. Smith v. Smith, 121 N.C. App. 334, 465 S.E.2d 52 (1996).

Trial court's order requiring a father to obtain health insurance for his child did not violate G.S. 50-13.4(c1), even though the father did not have access to employer-provided health insurance, because the father did not claim he lacked access to "other group health insurance" and if a parent had access to "other group health insurance," such insurance was considered "reasonably-priced" as a matter of law. Reams v. Riggan, 224 N.C. App. 78, 735 S.E.2d 407 (2012).

Extraordinary Expenses. - Trial court did not abuse its discretion in entering a child support order that required a father to pay a certain percentage of the minor child's tuition, daycare expenses, and costs for summer camp because Child Support Guidelines, N.C. Ann. R. specifically allowed for extraordinary expenses for private school tuition and camp fees and the trial court was entitled to consider expenses for child care in its support determination pursuant to G.S. 50-13.4(c); the trial court ordered each party to pay a percentage of the expenses based on the party's share of the combined gross incomes pursuant to the Guidelines. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

Disability Checks Received on Behalf of Child. - Trial court properly refused to consider a disability check received by disabled defendant on child's behalf as defendant's income in figuring his obligation, but erred in allowing defendant to receive the money for his own use. Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999).

Adoption Assistance Payments. - Adoption assistance payments received by the parties were resources for the parties' adopted children, and thus could not be set off against the father's child support obligation. Gaston County v. Miller, 168 N.C. App. 577, 608 S.E.2d 101 (2005).

Medical insurance premiums paid by a parent on behalf of a child are actual expenditures which must be considered in computing retroactive child support. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992).

Failure of the trial court to treat a portion of mother's premiums as an actual expenditure for the purposes of calculating retroactive support was not error, because there was no evidence in the record to support a finding on the portion of the premiums for the joint policy attributable only to coverage of the child. In the absence of such evidence, the trial court would only be speculating as to the child's share of the cost, and this it could not do. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992).

Consideration of Health Insurance Coverage Erroneous. - According to former subdivision (c1)(6) of this section, the trial court was not allowed to vary the presumptive amount of child support based upon the "provision of health insurance coverage;" therefore, by varying the presumptive guideline amount because of the defendant's maintenance of health insurance on the plaintiff and the children, the trial court acted in violation of this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

Reconsideration of Alimony or Child Support After Equitable Distribution. - G.S. 50-20 (f) obviously contemplates that child support order may precede equitable distribution order. No child support order is ever final and delaying child support order in lengthy case until after equitable distribution issue was decided would have prolonged an already long-pending case. Trial court's decision to enter child support order prior to determination of equitable distribution issue was under the statute. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Effective Date of Permanent Award. - Plaintiff contended the trial court erred in its award of child support because the permanent award should have been made effective from January 2011, rather than from January 2013, but it was well-established that a trial court had not abused its discretion where, based on the evidence before it, the trial court chose not to modify the effective date of a permanent award. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347 (2015).

Amount of Award Is Within Trial Court's Discretion. - Once an award is found to be justified, the amount lies within the trial court's discretion and will not be disturbed absent manifest abuse. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984).

Amount Should Be Fair and Not Confiscatory. - An order for the maintenance of a child should be in an amount that is fair and not confiscatory in light of the parent's earning ability. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983), modified on other grounds, 313 N.C. 63, 326 S.E.2d 863 (1985). See also, Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).

Allowance Should Be Made for Parent's Living Expenses. - In determining the amount of an order for the support of children, a reasonable allowance should be made for the living expenses of their father (or mother) in the light of his earnings. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).

Dividing Parent's Income by Number of Dependents Is Disapproved. - Fixing the amount of support for minor children by dividing the income of their father (or mother) by the number of people dependent upon him for support is not approved. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).

Conduct of Parties May Be Considered. - In addition to the factors enumerated in subsection (c) of this section, the trial court may consider the conduct of the parties, the equities of the given case, and any other relevant facts in determining child support. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

This section clearly allows the trial court to consider other facts of the particular case in arriving at the amount of defendant's share of support in an action for reimbursement. Thus, while the defendant's ability to pay and his earning capacity are factors to be considered, they are not controlling. The court may also consider the conduct of the parties and the equities of the case. Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, cert. denied, 303 N.C. 182, 280 S.E.2d 454, appeal dismissed, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981).

Improper Use of Earning Capacity Rule - Trial court erred in modifying a father's child support obligation pursuant to G.S. 50-13.4; the trial court found that while the father reduced his income, he did not act in bad faith, and a finding of bad faith was required to apply the earning capacity rule under N.C. Child Support Guidelines, 2003 Ann. R. N.C. 33, 35. Cook v. Cook, 159 N.C. App. 657, 583 S.E.2d 696 (2003).

Findings and Conclusions of Law Required. - In setting amounts for child support, where the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon, and to direct the entry of the appropriate judgment. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982).

Trial court erred in failing to make findings regarding the reasonable needs of a child for support, or regarding its refusal to award support for the time between the filing of suit for support and the entry of the support order. State ex rel. Gillikin v. McGuire, 174 N.C. App. 347, 620 S.E.2d 899 (2005).

Findings Must Indicate Consideration of Needs and Earnings. - Conclusions of law must be based upon factual findings specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, and accustomed standard of living of both the child and the parents. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982).

Findings as to Child's Past and Present Expenses Required. - In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child's actual past expenditures and present reasonable expenses. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

Minor child's hospitalization and its resulting costs constituted a substantial change in circumstances. Thus case was remanded to take into account the parties' abilities to provide support for the minor child's medical expenses and to enter an order modifying the support order. Lawrence v. Nantz, 115 N.C. App. 478, 445 S.E.2d 87 (1994).

Award Where Father Has Substantial Income. - In an action for child support, the court, in making its award, should keep in mind that children of a man of substantial income are entitled to live accordingly. McLeod v. McLeod, 43 N.C. App. 66, 258 S.E.2d 75, cert. denied, 298 N.C. 807, 261 S.E.2d 920 (1979).

Credit for Voluntary Expenditures. - As to granting of credit towards payment of court-ordered child support for voluntary expenditures, see Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977).

The trial court has a wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded. The better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983).

Expenses During Visitation. - Credit is not likely to be appropriate for frivolous expenses or for expenses incurred in entertaining or feeding the child during visitation periods. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983).

Whether credit is allowed for time spent in visitation with the noncustodial parent depends on the facts of the particular case and is a matter within the court's discretion, as the fact that a child spends a certain amount of time with one parent does not necessarily mean that his reasonable and necessary living expenses are incurred proportionally. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

Trial court's use of one-third of mother's total fixed expenses to establish reasonable needs of child was neither unfair nor impermissible where the expense figures in mother's affidavit of financial status included expenses only for herself and the child, as she had not remarried, and furthermore, where the trial court not only found that mother's living expenses were reasonable, but also reduced several of the figures on the affidavit before making that finding, and where, with the exception of the amount of scheduled visitation, father presented no evidence on which the court could have based other findings regarding the child's expenses and needs. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

Parties Cannot Consent to Improperly Based Order. - The parties, by their consent, cannot enable a trial judge to enter an order not based upon consideration of the several factors listed in subsection (c) of this section and G.S. 50-16.5(a). Williamson v. Williamson, 20 N.C. App. 669, 202 S.E.2d 489 (1974).

Method of Payment Is Within Discretion of Court. - In utilizing the provision in subsection (e) of this section that payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein as the court may order, the trial court is vested with broad discretion, and is not limited to ordering any one of the designated methods of payment. In keeping with the court's powers, an order under this section will be upheld barring an abuse of that discretion. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).

Trial court did not abuse its discretion in making its award of lump sum and ongoing monthly child support payments because there was no evidence as to the actual impact on the father's future income from the lump sum payments; once the actual impact on the father's income was realized, it could well support a new motion to modify the father's child support obligation. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Trial court's creation of a trust consisting of certain real and personal property owned by the parties in order to secure payment of alimony and child support was a proper exercise of its discretion in applying the provisions of subsection (e) of this section and G.S. 50-16.7(a) and (c) and would be affirmed. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).

Amount Not Excessive. - Where defendant earned one hundred thirty-two dollars ($132.00) a week and had monthly expenses in the amount of fifty-two dollars ($52.00), the court's order for defendant to pay one hundred dollars ($100.00) per month in child support was not an abuse of discretion; defendant had been paying plaintiff one hundred dollars ($100.00) per week voluntarily for several months prior to the hearing, had testified that he would continue to do so, and the court had made extensive findings regarding the child's needs, the parents' estates and earnings, etc. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

Yearly support payment of $37,871.89 held not excessive where payor earned about $200,000.00 per year and where family enjoyed very high standard of living prior to dissolution of marriage and where court found, based on payor's testimony, that payor could pay any amount court might order up to and including $71,318.04. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Improper Reduction of Child Support Payments. - Reducing child support payments by subtracting amount of money calculated to represent what custodial parent saves in expenses while the child is visiting with noncustodial parent was improper. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

Consideration of Shared Custody Justified. - Fact that defendant had sole custody of one of the children and furnished the child's sole support, while defendant contributed to the support of the two children in plaintiff's custody, clearly justified the trial court's consideration of the shared custody factor; trial court was not required to make findings as to how or why this custody arrangement rendered guidelines adopted pursuant to subsection (c1) inapplicable where the guidelines provided for support payments to be based upon the noncustodial parent's gross income. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441 (1988).

Imputed Income. - Because there was no evidence that defendant, who worked for a school system as a psychologist, intentionally depressed his income or otherwise engaged in bad faith, the trial court erred by imputing income to defendant for four weeks during the school district summer recess. Ellis v. Ellis, 126 N.C. App. 362, 485 S.E.2d 82 (1997).

Trial court erred in calculating a father's child support obligation under G.S. 50-13.4(c) by imputing to the father income based solely on a statement of income made to a bankruptcy court 18 months earlier under circumstances in which the trial court's order was devoid of findings that the father was deliberately depressing his income or indulging in excessive spending to avoid support. State v. Williams, 179 N.C. App. 838, 635 S.E.2d 495 (2006).

Trial court's determination that a husband, who worked as a school teacher, could continue to earn a minimum amount each month from a grading business was reasonably based on the court's findings of fact regarding the husband's actual earnings during the year prior to the hearing. Hartsell v. Hartsell, 189 N.C. App. 65, 657 S.E.2d 724 (2008).

Trial court erred by imputing minimum wage to a wife and a husband when it found that neither party acted in bad faith or suppressed his or her respective income to avoid or lessen child support obligations because the trial court's findings of fact were insufficient to support its conclusions of law; the North Carolina Child Support Guidelines, Child Support Guidelines, G.S. 50-51, do not authorize choosing a method of imputing income based upon the degree of bad faith found by the trial court. Ludlam v. Miller, 225 N.C. App. 350, 739 S.E.2d 555 (2013).

Trial court's determination that it was appropriate to impute income to the father should be upheld, but the order had to be remanded for findings detailing how the trial court arrived at the amount of income to be imputed to the father. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014).

Sufficient Findings by the Court. - In spite of trial court's failure to make finding as to husband's net income, court's findings regarding gross income of husband and wife along with wife's net income and children's expenses was sufficient to satisfy requirement under this section that court give due regard to parties' estates, earnings, conditions and standard of living in setting child support. Sikes v. Sikes, 98 N.C. App. 610, 391 S.E.2d 855 (1990), aff'd, 330 N.C. 595, 411 S.E.2d 588 (1992).

Trial court's findings supported its decision to use prior years' income from a business in the calculation of gross income for the determinations of alimony and child support because the trial court questioned whether the husband's reported income accurately represented his income from the business; the trial court found that the husband's reported income was not credible. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

In that the trial court's findings of fact regarding the parties' monthly gross income were supported by the evidence at trial, the trial court did not abuse the court's discretion in the court's determination of the appropriate child support obligation; the mother's paystubs plainly disclosed her pay raise, bonus, and stock award, and they supported the mother's testimony and ultimately allowed the trial court to make sufficient findings to resolve the issue of her monthly gross income. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Income of Business in which Defendant Held Controlling Interest. - Court neither abused its discretion nor imputed income to defendant when it allocated to him the amount of income earned by the business in which he held 51% and controlled disbursement of corporate funds. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708 (1999).

Use of Accrual Figures. - Use of accrual figures in the trial court's calculations was reflective of an appropriate level of gross income available to the defendant and not manifestly unsupported by reason. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708 (1999).

Financial Affidavits. - On appeal from a motion to modify child support, the court would not consider information outside a father's financial affidavit, i.e., expert testimony, to determine his expenses for the children; the father had sworn to the truthfulness and completeness of his affidavit, and the parties' affidavits were competent evidence on which the trial court was allowed to rely in determining the expenses of the parties' children. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1 (2007), review denied, 362 N.C. 238, 659 S.E.2d 741 (2008), cert. denied, - U.S. - , 129 S. Ct. 144, 172 L. Ed. 2d 39 (2008).

Father showed no abuse of discretion in the trial court's findings of his expenses or allocation of those expenses to him because the trial court found the father's ability to pay child support based upon all of his expenses based upon his affidavit; a reduction of the father's individual expenses would increase his ability to pay, and it would also increase the child's individual expenses. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Court's findings were insufficient to support awarding no support under subsection (c) since the court failed to determine what were the reasonable needs of the minor child for health, education, and maintenance. McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495 (1988).

In an action seeking an increase in child support over the amount set forth in separation agreement, order which contained no specific findings with respect to the actual past or present expenses incurred for the support of the children was insufficient to support the court's conclusion that the reasonable needs of the children amounted to $2,800.00 per month. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

Where the trial court made no findings whatsoever with respect to the parties' "estates, earnings, conditions, [and] accustomed standard of living" for the year 1984, its award of retroactive child support would be vacated since it was not based on sufficient findings pertaining to the year 1984. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

Trial court erred in ruling it had no authority to modify the income tax deduction provision of the parties' separation agreement as they requested a recalculation of child support, obliging the trial court to apply the entirety of the guidelines, including not only the worksheets, but also the commentary. Ticconi v. Ticconi, 161 N.C. App. 730, 589 S.E.2d 371 (2003).

Refusal to Consider Reduction in Income. - Trial court erred in concluding that reduction in income of father, the custodial parent, due to leaving employment to return to school, could not be considered on motion to increase plaintiff's child support obligations. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Remand to Allow Court to Make Findings. - Appellate court remanded case to allow trial court to make findings concerning the reasonable needs of child, the relative ability of the parents to support the child, and a determination of whether a variation from the Guidelines was appropriate on these grounds. Brooker v. Brooker, 133 N.C. App. 285, 515 S.E.2d 234 (1999).

Mother admitted that clearly, the trial court did not use all of the expenses listed in the parties' financial affidavits; without more explanation, it was impossible to determine on appeal where the figures used by the trial court came from at all. Moreover, although the trial court's child support order did contain certain historical costs associated with the children, it included no findings as to the individual costs and expenses the trial court expected to be associated with each child in the future, and, while the trial court did make findings regarding the parents' particular estates, earnings, conditions, and accustomed standard of living, those were insufficient to remedy the absence of findings explaining the reasonable needs of the children; accordingly, the case was remanded for further findings of fact regarding the amount of child support awarded. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006).

Findings Unsupported by Evidence. - Judge erred by ordering mother to pay four hundred eighty dollars ($480.00) per month in child support; the figures of five hundred dollars ($500.00) and four hundred eighty dollars ($480.00) were not supported by any evidence in the record on appeal and, despite the absence of mother's financial records, the judge could have determined the child's reasonable needs through evidence offered by father; however, the figures the judge arrived at were unsupported by father's testimony, and were not supported by any of the previous orders entered in the case. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580 (1989).

Reduction of Income on Return to School. - Trial court erred in concluding reduction in income of father, custodial parent, due to leaving employment to return to school, could not be considered on motion to increase plaintiff's child support obligations. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Accustomed Standard of Living. - Because the trial court unequivocally disregarded the principle that the accustomed standard of living is a factor to be considered and, instead based alimony on the standard of living the parties maintained after the divorce there was prejudicial error. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998).

Father demonstrated no abuse of discretion in the trial court's consideration of the conditions or accustomed standard of living of the parties or child because the trial court's findings demonstrated that it took "due regard" of the conditions and accustomed standard of living of the child and parents; the father did not make any arguments regarding any dispute about the child's standard of living. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Change in Circumstances Not Shown. - Because the trial court found that defendant voluntarily quit his job, willfully and intentionally depressed his income, and failed to meet his burden of proof in showing a substantial change of circumstances, the court entered a judgment against defendant denying his motion to reduce child support by reason of substantial change of circumstances. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

Factors Properly Considered. - In its calculation of child support, the trial court relied on the financial affidavits of both parties to determine each party's average monthly shared expenses, and defendant incurred significantly higher monthly expenses than plaintiff due to defendant having to pay the mortgages and maintenance on the marital home and vacation home; it was appropriate for the trial court to consider defendant's increased expenses relating to the two homes in determining child support, and plaintiff's contention that the trial court erred in not making an even 50/50 allocation as to child support was without merit. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347 (2015).

Father did not demonstrate any abuse of discretion in the trial court's child support calculations because the father's total fixed household expenses would be the same, whether a portion was attributed to the child or not, and in determining his ability to pay child support, the trial court gave him credit for 100 percent of his expenses for both of his residences; the trial court's findings clearly demonstrated how the child support was calculated, and they were supported by the evidence. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Trial court did not its discretion in the calculation of a father's child support obligation because the child support order was properly based upon the actual custodial schedule stated in the permanent custody order. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

B. EFFECT OF SEPARATION AGREEMENTS, CONSENT JUDGMENTS AND ARBITRATION AWARDS.

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Separation Agreements Are Not Binding on the Court. - Valid separation agreements, including consent judgments with respect to marital rights based on such agreements, are not final and binding as to the amount to be provided for the support and education of minor children. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966), decided under former G.S. 50-13.

Valid separation agreements relating to marital and property rights of the parties are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Perry v. Perry, 33 N.C. App. 139, 234 S.E.2d 449, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

And Cannot Deprive the Court of Its Authority. - Separation agreement dealing with the custody and the support of the children of the parties cannot deprive the court of its inherent as well as statutory authority to protect the interests of and provide for the welfare of minors. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616 (1976).

While the court cannot relieve parent of any contractual obligation he assumed to support his child in excess of what the law would require, it can, in the exercise of its inherent and statutory authority to provide for the welfare of minors, order payment of an amount either larger or smaller than that provided for in separation agreement. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

Arbitration Awards Also Remain Reviewable and Modifiable. - Just as parents cannot by agreement deprive the courts of their duty to promote the best interests of their children, they cannot do so by arbitration. Hence those provisions of an arbitration award concerning custody and child support, like those provisions in a separation agreement, will remain reviewable and modifiable by the court. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Court Retains Jurisdiction Despite Support Provisions of Separation Agreement or Arbitration Award. - While the amount of child support agreed on by the parties to a separation agreement is presumed, in the absence of evidence to the contrary, to be just and reasonable, it remains within the authority of the courts pursuant to this Chapter to order payments for support in such amounts as will meet the reasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, and accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The same reasoning applies to an arbitration award concerning child support. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

But Separation Agreements and Consent Judgments Cannot Be Ignored. - Provisions of a valid separation agreement, including a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966), decided under former G.S. 50-13.

A valid separation agreement cannot be ignored or set aside by the court without the consent of the parties. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

Level of Support in Separation Agreement Is Only One Factor in Decision. - When a trial court is called upon for the first time to determine the appropriate level of child support payments agreed upon in separation agreements, the "presumption" of reasonableness of the agreed upon level of support in such cases is one of evidence only; that is, the agreed upon level of support constitutes some evidence of the appropriate level of support, but that this evidence must be weighed and considered by the trial court together with all other relevant and competent evidence bearing upon the statutory factors set out in subsection (c) of this section; in other words, the trial court is writing upon a clean slate, and the previously agreed upon level of support is but one factor to be considered. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441 (1988).

When Agreement May Be Modified. - A separation agreement is a contract between the parties, and the court is without power to modify it except (1) to provide for adequate support for minor children, and (2) with the mutual consent of the parties thereto where rights of third parties have not intervened. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616 (1976).

Amount Set by Agreement Is Presumptively Just and Reasonable. - Where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

It was not an abuse of discretion to decline to reduce a father's child support obligation for a prior period because (1) the obligation arose from an unincorporated separation agreement, and (2) contractual damages for the father's failure to pay support could not be reduced. Lasecki v. Lasecki, 257 N.C. App. 24, 809 S.E.2d 296 (2017).

And May Not Be Changed Absent Change in Conditions. - Where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616 (1976).

Trial court impermissibly modified a child support order by computing increases in the father's salary and applying those increases to payments over an 18-year period because the trial court failed to find a substantial change of circumstances as required under G.S. 50-13.7(a) (2009); the incorporated agreement provided automatic annual increases in child support based on the father's salary and failed to consider the needs of the children or other factors contained in G.S. 50-13.4(c). Wilson v. Wilson, 214 N.C. App. 541, 714 S.E.2d 793 (2011).

Or Absent Need for Increase. - Where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. Upon motion, a trial court may not order an increase in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on grounds that the father's income has increased so that he is able to pay a larger amount. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982).

Child Referred to in Consent Judgment Is Under Protective Custody of Court. - Even though an order requiring father to make payments for the support of his child was entered by consent of the parents, the child was under the protective custody of the court. Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370 (1957), rev'd on other grounds, 248 N.C. 298, 103 S.E.2d 400 (1958).

The effect of an order setting a lesser amount of child support than that provided for by separation agreement is not to deprive the custodial parent of her contractual right to recover the sums provided for in the agreement, but to limit her contempt remedy to the sums provided for by the court order. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

Right of Party to Separation Agreement to Bring Action. - When a case is properly before it, the court has the duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, cert. denied, 298 N.C. 305, 259 S.E.2d 918 (1979).

The existence of a valid separation agreement relating to child support or custody does not prevent one of the parties from instituting an action for a judicial determination of those same matters. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

As to effect of reconciliation and resumption of cohabitation on a separation agreement, see Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, cert. denied, 300 N.C. 556, 270 S.E.2d 107 (1980).

No Obligation to Support Child Past Majority Despite Disability. - Where mother's testimony offered at the hearing showed that son was 18 years old, had graduated from high school, had a part-time job, and was attempting to raise money to go to college, and mother further testified that son was not a normal 18 year old since he was involved in a wreck, trial court was without authority to order father to pay child support arrearages of five hundred dollars ($500.00); the evidence showed that pursuant to subdivision (c)(2) of this section, defendant was relieved of any obligation to support his son after his graduation from high school on June 5, 1988, and even if mother's evidence was sufficient to show that son was physically or mentally incapable of self-support, there was no longer a statutory obligation for parents to support their disabled adult children. State v. Benfield, 95 N.C. App. 451, 382 S.E.2d 776 (1989).

Obligation to Pay Is Independent of Compliance with Unrelated Provisions in Agreement. - The duty of a parent to pay child support as agreed to in a separation agreement will not be excused because the other parent does not comply with other provisions of the separation agreement unrelated to the financial support of the children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, cert. denied, 329 N.C. 499, 407 S.E.2d 538 (1991).

Defendant's obligation to pay child support as provided in the separation agreement is not dependent upon plaintiff's compliance with visitation, nonharassment, or noncohabitation provisions in the same agreement. To hold otherwise would punish the children for the misbehavior of a parent. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, cert. denied, 329 N.C. 499, 407 S.E.2d 538 (1991).

V. TERMINATION OF OBLIGATION.

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A. IN GENERAL.

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When Legal Obligation to Support Child Ends. - The statutes concerning child support all use the term "minor," "minor child" or "minor children," never referring to age 21. Therefore, in substituting the new meaning of "minor" provided by Chapter 48A into the statutes, the legal obligation to support one's child ends at age 18, absent a showing that the child is insolvent, unmarried and physically or mentally incapable of earning a livelihood as contemplated by G.S. 50-13.8. Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972).

In the absence of an enforceable contract otherwise obligating a parent, North Carolina courts have no authority to order child support for a child who has attained the age of majority, unless the child has not completed secondary schooling, or, pursuant to G.S. 50-13.8, the child is mentally or physically incapable of self-support. Bridges v. Bridges, 85 N.C. App. 524, 355 S.E.2d 230 (1987); Pieper v. Pieper, 90 N.C. App. 405, 368 S.E.2d 422, aff'd, Ellinwood v. Ellinwood, 88 N.C. App. 119, 362 S.E.2d 584 (1987).

Effect of One of Several Children Reaching Age 18. - While child support obligations ordered by a court terminate upon the child reaching age 18, unless the child is otherwise emancipated prior to reaching age 18 or the trial court in its discretion continues to enforce the payment obligation after the child reaches age 18 and while the child is in primary or secondary school, when one of two or more minor children for whom support is ordered reaches age 18, and when the support ordered to be paid is not allocated as to each individual child, the supporting parent has no authority to unilaterally modify the amount of the child support payment. The supporting parent must apply to the trial court for modification. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Cases holding that where one of two minor children reaches the age of 18, a trial court may retroactively modify child support arrearages when equitable considerations exist which would create an injustice if modification is not allowed were decided before G.S. 50-13.10 became effective on October 1, 1987. Under this statute, if the supporting party is not disabled or incapacitated, a past due, vested child support payment is subject to divestment only as provided by law, and if, but only if, a written motion is filed and due notice is given to all parties before the payment is due. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Support Improperly Terminated. - Where father unilaterally terminated child support payments after his son reached the age of 18 and had failed to make satisfactory progress towards graduation from high school, the support payments were improperly terminated. Leak v. Leak, 129 N.C. App. 142, 497 S.E.2d 702 (1998), cert. denied, 348 N.C. 498, 510 S.E.2d 385 (1998).

"Minor Child" under Prior Law. - Before the enactment of Chapter 48A, it was evident that the meaning of "minor child" within the purview of the custody and support statutes contemplated the common-law age of majority, age 21. Shoaf v. Shoaf, 14 N.C. App. 231, 188 S.E.2d 19, rev'd on other grounds, 282 N.C. 287, 192 S.E.2d 299 (1972).

Emancipation Decree Required. - In a question of first impression, the appellate court held that, when the child of divorced parents left the custodial parent's home to live on his own, but was not decreed by a court to be legally emancipated, the non-custodial parent's obligation to pay child support did not automatically terminate, because Article 35 of the Juvenile Code precluded the appellate court from accepting common law methods of emancipation for the purposes of terminating child support payments; thus, the father's child support obligations could not have automatically terminated absent a decree of emancipation. Morris v. Powell, - N.C. App. - , 840 S.E.2d 223 (2020).

B. EFFECT OF SEPARATION AGREEMENT, CONSENT JUDGMENT, ETC.

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A parent may contract to support his or her children past the age of majority, and the court has power to enforce such a contract just as it would any other. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131 (1980).

But Court Cannot Enlarge on Such Obligation. - Since the duty to support after the age of majority arises in contract, the court may not enlarge upon the obligation agreed to by the parties. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131 (1980).

Any attempt by the court to enlarge upon the obligation arising under contract by extending the duty of support beyond the age of majority would be void for lack of subject matter jurisdiction. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131 (1980).

Consent Judgment Providing for Support Until Majority. - A father's legal liability for the support of his son born on January 13, 1953, by reason of a consent judgment dated June 11, 1970, providing that payments for child support should continue until such time as said minor child reached his majority or was otherwise emancipated, would not continue until his son became 21 years of age. Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972).

Support for Full-Time Student. - It was error for a trial court to terminate support solely on the finding that a child was not a "full-time" student based on language in a separation agreement, without consideration of G.S. 50-13.4; the child likely attended school regularly and made satisfactory progress towards graduation since he received a diploma in 2013. Moreover, the trial court also should have considered its discretion to terminate support when the child turned 18, but prior to his high school graduation. Malone v. Hutchinson-Malone, 246 N.C. App. 544, 784 S.E.2d 206 (2016).

VI. SEPARATE IDENTIFICATION OF ALLOWANCES.

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Allowances to Be Separated. - The allowances to be separated in the order, as required by subsection (e) of this section, are the support payments for the minor child or children and the amounts ordered for alimony or alimony pendente lite. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

Court Need Not Designate Amounts for Each Child. - Subsection (e) of this section does not require the trial court to designate the amount of support payments for each child, although such designation may prove helpful to simplify any future adjustments or modifications. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971).

Failure to Identify Purpose of Support as Health, Education and Maintenance Is Not Error. - The better practice is for the court's order to relate that the payment ordered under this section is the amount necessary to meet the reasonable needs of the child for health, education, and maintenance, but the failure of the court to do so does not constitute reversible error. Andrews v. Andrews, 12 N.C. App. 410, 183 S.E.2d 843 (1971); Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, cert. denied, 295 N.C. 261, 245 S.E.2d 778 (1978).

Failure to Separate Allowances Held Error. - The trial court erred in failing to separately state and identify the allowances for alimony pendente lite and child support as required by subsection (e) of this section. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

VII. FINDINGS AND CONCLUSIONS.

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Judge Must Make Findings of Fact and Conclusions of Law. - In setting amounts for child support, where the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982); Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

The requirements for findings of fact applicable to orders for alimony are also applicable to the determination of reasonable and adequate child support. Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985).

The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment, and the legal conclusions which underlie it, represent a correct application of the law. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

Effective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order's rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

Remand for Further Findings. - The findings of fact in a case for child support, were insufficient to determine whether the trial court gave due regard to the estates of the parties and the case must be remanded for further findings on this matter, even though there was ample evidence contained in the record about the estates of both parties. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816 (1987).

Case was remanded for additional fact-finding where the district court failed to identify the presumptive amount of support due under the Guidelines and where there was no analysis of the reasonable needs of the two minor children, other than a finding that plaintiff's child care costs for one of the children was reasonable. Rowan County DSS v. Brooks, 135 N.C. App. 776, 522 S.E.2d 590 (1999).

Trial court erred by failing to explain in its findings of fact why it did not award child support from the time of the filing of the paternity and child support complaint; judgment was reversed and case was remanded to trial court for further findings. State v. Hinton, 147 N.C. App. 700, 556 S.E.2d 634 (2001).

Trial court was required to conduct a hearing when the trial court neither made findings related to the needs of the children at the time of a modification hearing nor concluded whether the presumption of reasonableness in a separation agreement was rebutted. Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd, 359 N.C. 65, 602 S.E.2d 360 (2004).

A case involving a motion to modify child support under G.S. 50-13.7, was remanded for further findings of fact because, in entering an order deviating from the North Carolina Child Support Guidelines, the trial court did not make sufficient findings of fact regarding the reasonable needs of the children; the order only made findings regarding health insurance and the fact that the children did not need private schooling. Beamer v. Beamer, 169 N.C. App. 594, 610 S.E.2d 220 (2005).

Case was remanded for an order addressing the validity of a mother's request for a deviation from the child support guidelines because the trial court failed to make specific findings regarding the ability of each parent to provide support and the accustomed standard of the living of the children; given the absence of findings of fact, the court of appeals had no way to evaluate the correctness of the trial court's ruling that the guidelines would meet the reasonable needs of the children. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30 (2014).

Trial court's failure to make findings of fact addressing the relative ability of the parents to provide support and the expenses that are needed to meet the children's needs requires a reviewing court to remand the relevant case to the trial court for the entry of a new order containing additional findings of fact. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30 (2014).

In the absence of sufficient factual findings addressing the issue of a mother's ability to pay for children's education at a private school, the court of appeals could not determine whether the trial court abused its discretion by requiring her to pay for the cost of the education; the trial court, despite the existence of a request for a deviation from the child support guidelines, did not make any findings addressing the issue of the parties' relative abilities to pay the cost. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30 (2014).

Trial court had to revisit its calculations of gross income and net income used to determine child support and alimony because it had to make additional findings to support its determination of a husband's business income, which was used to calculate gross income and determine child support; the trial court also had to make additional findings to account for the husband's mandatory retirement deduction and his reasonable health insurance expenses in the calculation of his net income. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Miscalculation of $736 for the month of December 2016 did not require reversal and remand to the trial court because $736 was less than 2 percent of the total arrears of $52,659, and the parties would likely each incur more than $736 in attorney fees in a remand for the trial court to make that small change to the arrears ordered; the de minimis error did not warrant reversal. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Contents of Findings. - There are no set guidelines as to what the findings of fact concerning the needs of the minor children must contain. The appellate courts of this State require only that the findings be based on competent evidence as to what the needs of the children are, and that such findings sustain the conclusion that the support payments ordered are in such amount as to meet the reasonable needs of the child. Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205 (1983).

Adequate findings supported an order requiring a husband to pay children's private school tuition because (1) findings mandated by the Child Support Guidelines were not required, as the Child Support Guidelines did not apply, and (2) it was found that private school was part of the children's accustomed standard of living, the parties were able to pay the tuition, and the parties had agreed to privately educate the children. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Findings supported not treating payments from a father's parents as income because (1) the father testified the payments were loans, and (2) no express, separate, findings were required. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Findings did not support including payments from a mother's fiance as the mother's income because evidence indicating the payments were the fiance's share of household expenses was unresolved. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Trial court could find an investment account was a mother's property because the record supported finding income from the account either belonged to the mother or was given to the mother to use for the mother's benefit, as the account was in the mother's name, the mother paid taxes on the account's dividend income, and nothing showed the mother was unable to use the income from that account. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Trial court's findings supported denying a mother's request for child therapy expenses because there was some evidence the mother's conduct necessitated the expenses. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Findings crediting a father for a mother's car payments were insufficient because it was not found that an injustice would otherwise exist. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Trial judge must make conclusions of law based on factual findings specific enough to show the appellate courts that the judge took due regard of the parties' estates; there is no requirement the trial court's findings use "magic words" such as "estates" or "accustomed standard of living" where the findings demonstrate that it did consider the evidence as to these factors in setting the child support obligation. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Findings Must Be Specific. - Where the trial court sits without a jury, the judge is required to make factual findings specific enough to indicate to the appellate court that due regard was taken of the factors enumerated in this section. Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205 (1983).

In orders of child support, the court should make findings of specific facts (e.g. incomes, estates) to support a conclusion as to the relative abilities of the parties to provide support. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

Without findings relating to the parties' reasonable expenses, there is no basis for a determination as to the parties' relative abilities to provide the support necessary to meet the reasonable needs of the children. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child's actual past expenditures and present reasonable expenses. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

Case would be remanded for additional findings regarding the income or loss, if any, of one of defendant's businesses where the trial court's order failed to reflect its treatment of these figures. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708 (1999).

Findings Must Cover Factors in Subsection (c). - The trial court must hear evidence on each of the factors listed in subsection (c) of this section and substantiate its conclusions of law by making findings of specific facts on each of the listed factors. Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983).

Conclusions of law must be based upon factual findings specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, and accustomed standard of living of both the child and the parents. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982); Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983); In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985); Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

To support an award of payment for support, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the support payments ordered are in such amount as to meet the reasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular care. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977); Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240 (1979); Grimes v. Grimes, 78 N.C. App. 208, 336 S.E.2d 664 (1985).

The trial court must make specific findings on each of the factors specified in subsection (c) of this section. In addition, the case law may require certain findings, as when the award is based on earning capacity rather than present income. Once the trial court has made such findings, they are conclusive if supported by any evidence, even if there is evidence contra. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984).

The trial judge must at least make findings sufficiently specific to indicate proper consideration of each of the factors established by subsection (c) of this section for a determination of child support. Spencer v. Spencer, 70 N.C. App. 159, 319 S.E.2d 636 (1984).

Orders for child support must be based upon the interplay of the trial court's conclusions of law as to the amount of support necessary to meet the reasonable needs of the child and the relative abilities of the parents to provide that amount. These conclusions must, in turn, be based upon factual findings sufficiently specific to indicate to the appellate court that the trial court took due regard of the estates, earnings, conditions and accustomed standard of living of both child and parents. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985).

To comply with subsection (c) of this section, the order for child support must be premised upon the interplay of the trial court's conclusions of law as to the amount of support necessary to meet the reasonable needs of the child and the relative ability of the parties to provide that amount. To support these conclusions of law, the court must also make specific findings of fact so that an appellate court can ascertain whether the judge below gave due regard to the facts of the particular case. Such findings are necessary to an appellate court's determination of whether the judge's order is sufficiently supported by competent evidence. Where the record discloses sufficient evidence to support the findings, it is not the Supreme Court's task to determine de novo the weight and credibility to be given the evidence contained in the record on appeal. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).

Conclusions must be based upon factual findings sufficiently specific to indicate that the trial court took "due regard" of the factors enumerated in the statute. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

The trial court must hear evidence and make findings of fact on the parents' income, estates and present reasonable expenses to determine the parties' relative ability to pay. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

To comply with subsection (c), the trial court is required to make findings of fact with respect to the factors listed in the statute. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

Fact that the record contains evidence from which the necessary findings could have been made does not have the effect of absolving the trial court from the obligation to actually make the required findings concerning the needs of the children and the parties' relative abilities to pay in a case in which a deviation from the guidelines has been requested. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30 (2014).

Trial court's findings of fact and conclusions of law demonstrated "due regard" to the factors required by subsection (c), and thus, it did not abuse its discretion in the calculation of a father's child support obligation; the trial court did not abuse its discretion in determining it would not consider a bonus the mother received, and both parties' estates were approximately the same, neither was taking distributions from investments, and neither would be required to deplete his or her assets. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Giving "due regard" to the estates of the parties does not require detailed findings as to the value of each individual asset but requires only that the trial court consider the evidence and make sufficient findings addressing its determination regarding the estates to allow appellate review. Kleoudis v. Kleoudis, - N.C. App. - , 843 S.E.2d 277 (2020).

Findings must be based upon competent evidence, and it is not enough that there may be evidence, in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

Actual Past Expenditures Must Be Found. - To determine the amount of support necessary to meet the reasonable needs of the child for health, education and maintenance, the court must make findings of specific facts as to what actual past expenditures have been. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

To determine the amount of support necessary to meet the reasonable needs of the child for health, education and maintenance (which are conclusions of law), the court must make findings of specific facts as to what actual past expenditures have been. Where past expenditures are below subsistence, due regard, of course, must be given to meeting the reasonable needs of the child. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child's actual past expenditures and present reasonable expenses. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986); Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

Conclusion as to Reasonableness of Personal Expenses. - In a child support case, the trial court should be satisfied that personal expenses itemized in the parties' balance sheets are reasonable under all the circumstances before making a determination of need or liability, and though absence of a specific conclusion as to reasonableness will not necessarily be held for error, the better practice is for the order to contain such a conclusion. Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980).

The determination of what portion of claimed expenses is reasonable, and what portion is unreasonable, in arriving at an amount necessary to meet the reasonable needs of the child, requires an exercise of judgment and is therefore not a question of fact but a conclusion of law. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Error to Order Support Absent Appropriate Findings. - Where the court does not make appropriate findings based on competent evidence as to what are the reasonable needs of the children for health, education and maintenance, it is error to direct payments for their support. Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976); Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240 (1979).

In a child support action, where the trial court failed to make findings as to the actual needs of the parties' minor child or the expenses of the parties, its order directing child support payments was erroneous. Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460 (1981).

Appellate court reversed the trial court's judgment ordering a father who was in college to pay $95 per month in child support because the trial court based its order on the father's earning capacity but did not find that the father was deliberately suppressing his income to avoid family responsibilities. State v. Williams, 163 N.C. App. 353, 593 S.E.2d 123 (2004).

Without findings relating to the parties' reasonable expenses, there is no basis for a determination as to the relative abilities of the parents to provide the support necessary to meet the reasonable needs of the children. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Where child support for defendant's five children by three different mothers, set pursuant to the guidelines, amounted to 66% of his gross income, the trial court's duty was to determine whether this support exceeded the reasonable needs of each child, whether it was unjust or inappropriate, and whether defendant had "sufficient income to maintain a minimum standard of living based on the 1997 federal poverty level for one person." Buncombe County ex rel. Blair v. Jackson, 138 N.C. App. 284, 531 S.E.2d 240 (2000).

Award of Reimbursement for Past Support. - The trial court must make specific factual findings to support not only an award of future support but also to support an award of reimbursement for past support of the child. Buff v. Carter, 76 N.C. App. 145, 331 S.E.2d 705 (1985).

Findings as to Suppression of Income. - The trial court erred in awarding child support based upon each party's "earning capacity" without any findings as to whether either party deliberately suppressed his or her income to avoid his or her support obligation. Bowers v. Bowers, 141 N.C. App. 729, 541 S.E.2d 508 (2001).

Finding as to Income of Supporting Spouse. - Although a proper finding pertaining to the income of the supporting spouse must be based on present, as opposed to past, income, there is no rule that requires a specific finding as to the income of the supporting spouse on the precise date of the hearing. Patton v. Patton, 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).

Findings calculating a father's business income sufficiently relied on a year's first eight months because predicting the final quarter's income was too speculative. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Proper Findings Not Made for Deviation from Guidelines. - Trial court failed to make proper findings when it deviated from the child support guidelines; while the trial court made findings regarding the parties' average monthly incomes, health insurance costs for the child, and work related child care costs for the child, nothing addressed the needs of the child or the parties' ability to pay, and the order failed to meet statutory and case law requirements. Sarno v. Sarno, 255 N.C. App. 543, 804 S.E.2d 819 (2017).

Findings Held Insufficient. - Where the trial did not make an assessment of the child's needs, and found that plaintiff 's expenses exceeded her income and that her unwieldy credit card obligations were caused by defendant's failure to pay $220 in support to her in a timely manner when she had custody of both children, the findings of fact were insufficient to support the conclusion that plaintiff should not be required to support her minor children; defendant's $220 delinquency in child support payments did not mean that plaintiff 's expenses were reasonable, and the trial judge made no findings upon which to conclude that defendant had the ability to support both children. Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428 (1988).

Appellate court would remand case where the trial court failed to make findings as to what the child support amount would be under the applicable Guidelines, as to the child's reasonable needs, and as to whether the greater weight of the evidence established that application of the presumptive Guidelines amount would be "unjust or inappropriate." Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999).

Trial court's finding that a husband was not under any other child support obligation pursuant to a court order or other written obligation flew in the face of the uncontroverted evidence presented at trial by both parties that was under a district court order to provide child support payments for a child born from his subsequent marriage; thus, the trial court's finding was not supported by competent evidence in the record, was not sufficient to establish that the trial court took due regard of defendant's estates, earnings, conditions and other facts of the particular case as required under G.S. 50-13.4(c), and the child support order was reversed. Zaliagiris v. Zaliagiris, 164 N.C. App. 602, 596 S.E.2d 285 (2004), cert. denied, 359 N.C. 643, 617 S.E.2d 662 (2005).

Adequate findings did not support a prospective child support order because the trial court did not consider the inheritance of the wife to whom custody was awarded. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Findings calculating a mother's capital gains income were insufficient because the findings did not support using the mother's past capital gains to find current capital gains. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Findings calculating a mother's dividend income were insufficient because it was unknown if income from assets that were previously sold were used. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223 (2018).

Trial court's use of a father's historical income to calculate prospective child support in the form of arrears dating back to the filing of the mother's motion to modify child support was in error because the trial court made no finding to support the use of that method; the trial court made no findings providing a rationale for using the father's income for each individual year, rather than using his current income to calculate child support owed back to the filing of the mother's motion. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

VIII. APPELLATE REVIEW.

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Standard for reviewing child support orders resembles that for reviewing awards of custody, in that the amount of child support allowed by the trial judge will be disturbed only when there is an abuse of discretion. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669 (1984).

No Appellate Jurisdiction to Hear Appeal of Interlocutory Support Order. - Appellate court had no jurisdiction to hear an appeal of a denial of child support modification because: (1) an order continuing an existing order until legally interdependent custody issues could be heard was interlocutory, as, without knowing the custody arrangement, a trial court could not find which child support worksheet to use, or whether to deviate from the guidelines; (2) the order did not resolve the custody issue; and (3) allowing an appeal would lead to an unnecessary appeal. Gray v. Peele, 235 N.C. App. 554, 761 S.E.2d 739 (2014).

Support Award Will Not Be Disturbed Absent Abuse of Discretion. - The amount of child support awarded is in the discretion of the trial judge and will be disturbed only on a showing of abuse of that discretion. Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700 (1963); Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539 (1969); Sawyer v. Sawyer, 21 N.C. App. 293, 204 S.E.2d 224, cert. denied, 285 N.C. 591, 205 S.E.2d 723 (1974); Gibson v. Gibson, 24 N.C. App. 520, 211 S.E.2d 522 (1975); Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, aff'd, 35 N.C. App. 650, 242 S.E.2d 180 (1977); Minges v. Minges, 53 N.C. App. 507, 281 S.E.2d 88 (1981); Peters v. Elmore, 59 N.C. App. 404, 297 S.E.2d 154 (1982), cert. denied, 307 N.C. 577, 299 S.E.2d 651 (1983); Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51 (1983); Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

The trial court's consideration of the factors contained in subsection (c) of this section is an exercise in sound judicial discretion, and if its findings are supported by competent evidence in the record, its determination as to the proper amount of support will not be disturbed on appeal. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Even If Evidence Is Conflicting. - An order for child support is a question of fairness to all parties involved. It will not be disturbed on appeal absent an abuse of discretion by the trial judge, even if there is conflicting evidence. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983).

In determining the amount of alimony and child support to be awarded, the trial judge must follow the requirements of this section. The amount is a reasonable subsistence, to be determined by the trial judge in the exercise of a judicial discretion from the evidence before him. His determination is reviewable, but it will not be disturbed in the absence of a clear abuse of discretion. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976).

Finding of Ability to Pay Is Conclusive When Supported by Evidence. - The trial court's discretion as to the amount of child support awarded is not absolute and unreviewable. The order must be based not only on the needs of the child, but also on the ability of the father to meet the needs. But where there is a finding of ability to pay, supported in the record by competent evidence, that finding will be conclusive. Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, aff'd, 35 N.C. App. 650, 242 S.E.2d 180 (1977).

Findings Regarding Standard of Living And Reasonableness of Expenses. - Without findings regarding the child's or parties' accustomed standard of living and the reasonableness of the expenses in light of that standard of living, the court of appeals cannot determine whether the trial court considered the standard of living factor and whether the trial court's finding of reasonable needs is supported by the evidence. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30 (2014).

Remand for Further Findings. - Where the trial judge found that the reasonable expenses of child were "in excess of $500," while the child's mother claimed that the child's expenses were $855.16, and found the reasonable living expenses of the child's father to be $800, rejecting his claimed figure of $1,196.80, lack of findings as to what claimed expenses of the child or the father the court considered unreasonable would require the appellate court to vacate the order and remand the cause for further findings. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Failure to Assign Error to Trial Court's Findings. - Trial court's consideration of a child's needs, the mother's share of those needs, and the father's contribution to those needs was found to have been reasonable and adequate under circumstances in which the father did not assign error to the trial court's findings; the trial court's finding that the amount in the parties' agreement was inadequate and thus did not influence the trial court's decision, or the trial court's total calculated reasonable expenses. Pascoe v. Pascoe, 183 N.C. App. 648, 645 S.E.2d 156 (2007).

Presumption Allowing Modification. - The presumption, created in a 1994 revision, allowing modification of a child support order which is at least three years old, when there is a disparity of 15% or more between the amount of support payable under the original order and the amount owed based on the parties' current income and expenses, is within the scope of the legislative mandate to ensure adequate child support awards over time. Garrison v. Connor, 122 N.C. App. 702, 471 S.E.2d 644 (1996).

Stay Properly Denied. - Trial court did not err in denying the father's motion to stay execution and enforcement of the child support order, as, under G.S. 50-13.4, such orders were enforceable by proceedings for civil contempt during the pendency of an appeal and not subject to setting bond under G.S. 1-289(a1). Smith v. Smith, 247 N.C. App. 166, 785 S.E.2d 434 (2016).

IX. REMEDIES.

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A. IN GENERAL.

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Court Has Broad Discretion Under Subsection (e). - The court is not limited to ordering one method of payment, to the exclusion of the others provided in subsection (e) of this section. The legislature's use of the disjunctive and the phrase "as the court may order" shows that the court is to have broad discretion in providing for payment of child support orders. Moore v. Moore, 35 N.C. App. 748, 242 S.E.2d 642 (1978).

Court's Remedies Have Been Expanded. - The broad language of this statute suggests that the legislature intended to expand, not limit, the trial court's remedies in enforcing payment of child support. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478 (1991).

The enforcement provisions under subsection (f) of this section are not mutually exclusive. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478 (1991).

Nor Are the Payment Provisions. - The methods of payment listed in this section are not mutually exclusive. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

The trial court has broad discretion under subsection (e) of this section in providing for payment of child support. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478 (1991).

Creation of Savings Account for Use of Children. - In an action for child support, the court was without the power to, in effect, attempt to create a savings account for the use of the children after they reached the age of 18. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878 (1978).

Trial court erred in directing payment of child support to a custodial account for the child's benefit because that would result in surplus funds being directed to the child upon emancipation, and instead, the funds should have been directed to the benefit of the minor child no differently than in any other child support award; the error in creating a custodial account was not harmless because the purpose of the statute was to provide support for the child prior to emancipation, not after. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Receipt of Support May Not Be Conditioned on Visitation. - A trial judge does not have authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Child Support May Not Be Offset by Equitable Distribution Judgment or Other Obligations. - Defendant was not entitled to a "credit" against his future child support payments for the $12,435.50 he paid over and above his court-ordered obligation or for the $500.00 plaintiff owed him as a result of an equitable distribution judgment; child support obligations may not be offset by other obligations. Brinkley v. Brinkley, 135 N.C. App. 608, 522 S.E.2d 90 (1999).

Court Had No Authority to Order Payment of Social Security Benefits Directly to Mother. - A North Carolina district court had no authority to order the Social Security Administration and defendant father, a representative payee receiving Social Security disability payments for the benefit of his children, to pay those benefits directly to plaintiff mother. Brevard v. Brevard, 74 N.C. App. 484, 328 S.E.2d 789 (1985).

Defendant did not waive his right to support by failing to schedule notice of a hearing on the issue prior to child's emancipation; trial court was incorrect in its presumption that because the issue of custody had become moot, it could not address the issue of support. Freeman v. Freeman, 103 N.C. App. 801, 407 S.E.2d 262 (1991).

B. SECURITY.

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Nonresident Defendant May Be Required to Post Bond. - Under subsection (f)(1) of this section and G.S. 50-16.7(b), the court properly required supporting spouse to post a security bond to secure his compliance with a judgment requiring him to make monthly payments for the support of his wife and children, where the court found that defendant no longer resided within the State and that he had no attorney of record in the case. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607 (1972).

C. AWARD OF PROPERTY.

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Award of Home. - The award of the homeplace does not constitute a writ of possession within the meaning of G.S. 50-17, and the trial judge may award exclusive possession of the homeplace, even though it is owned by the entirety, as a part of the support under this section. Arnold v. Arnold, 30 N.C. App. 683, 228 S.E.2d 48 (1976); Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663 (1979).

The General Assembly has made statutory provisions in subdivision (f)(2) of this section for awarding possession of a home as a part of child support. This is true without regard to whether the parties are divorced. To the extent that the General Assembly's will, as expressed in this section, conflicts with the common-law principle that the husband is entitled to exclusive possession of entirety property, the common law has been abrogated and supplanted. Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, cert. denied, 295 N.C. 261, 245 S.E.2d 778 (1978).

Award of Personal Property Does Not Require Valuation Of Property. - Because the statute requiring valuation of real property transferred for payment of child support arrearages does not require the trial court to determine the value of personal property applied towards child support arrearages, the father did not offer any support for his contention that such a transfer of personal property was analogous to a transfer of real property, and the father consented to transfer the vehicle to the mother, the trial court did not err by transferring the vehicle to the mother without making a specific finding as to its value. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014).

D. ATTACHMENT AND GARNISHMENT.

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For case upholding garnishment of father's income from alleged "spendthrift" trust created in another jurisdiction and administered by a trustee bank in this State to satisfy judgment of mother against father for alimony, child support and counsel fees, see Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539 (1969).

It was not error for trial court to enter order to withhold plaintiff's wages to collect child support arrearages that had been reduced to judgment. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478 (1991).

E. RECOVERY OF PAST DUE PAYMENTS.

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The sole limitation on a party's right to reimbursement for documented past support expenditures is imposed by G.S. 1-52(2), which limits recovery to those expenditures incurred within three years before the date the action for support is filed. Freeman v. Freeman, 103 N.C. App. 801, 407 S.E.2d 262 (1991).

Effect of Subdivision (f)(8). - The portion of subdivision (f)(8) of this section following the semicolon does not constitute an election of remedies. Nor it is true that once arrearages are reduced to judgment the party attempting to collect the judgment is limited to the execution procedures provided by G.S. 1-302. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478 (1991).

Reduction to Judgment. - A parent having custody of a minor child may institute an action for the support of such child, and once an order for support has been obtained, the past due payments may be reduced to judgment by motion in the cause. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, cert. denied, 296 N.C. 106, 249 S.E.2d 804 (1978).

Arrearages Judgment Reduced Past Due Payments Judgment and Included Periodic Payments Provision. - As the arrearages judgment reduced the past due payments to a judgment and included a periodic payments provision, it complied with the statute allowing for this particular type of remedy for the enforcement of child support obligations, and the judgment, including its provision concerning period payments towards arrearages was not void and should not have been set aside. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621 (2013).

After Child Reaches Majority. - The fact that a child becomes 18 years of age does not prevent the parent having custody from having the past due payments which accrued while the child was a minor reduced to judgment. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, cert. denied, 296 N.C. 106, 249 S.E.2d 804 (1978).

Notice. - The defendant in an action for unpaid child support could not complain of inadequate notice of the plaintiff's motion to reduce to judgment support payments alleged to be in arrears where the defendant's attorney of record was properly served with notice. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, cert. denied, 296 N.C. 106, 249 S.E.2d 804 (1978).

Authority of Judge. - Arrearages judgment was a new judgment entered after the mother initiated an action seeking an amount owed from a prior judgment, and when entering this judgment, the judge had both jurisdiction and the statutory authority to reduce the arrearages to a judgment and to make provisions for period payments towards the arrearages; thus, the judgment was not void and could not be set aside. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621 (2013).

Court cannot agree with the conclusion that the statute is vague and did not authorize periodic payments towards the father's child support arrearages. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621 (2013).

F. RETROACTIVE SUPPORT AND REIMBURSEMENT.

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Retroactive Distinguished from Prospective. - Child support awarded prior to the time a party files a complaint is properly classified as retroactive child support and is determined by considering reasonably necessary expenditures made on behalf of the child by the party seeking retroactive child support and the defendant's ability to pay during the period in the past for which reimbursement is sought; child support awarded from the time a party files a complaint for child support to the date of trial is not "retroactive child support," but is in the nature of prospective child support representing that period from the time a complaint seeking child support is filed to the date of trial. Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442 (1995), rev'd on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996).

Although prospective child support based upon the presumptive guidelines requires no factual findings regarding the child's reasonable needs or the supporting parent's ability to pay, the trial court must set out specific findings of fact in a reimbursement award for retroactive support. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Trial court's award of child support was not retroactive in nature because prior consent order was not intended as a final determination on the issue of child support; thus, under G.S. 50-13.4(c), the trial court properly followed the guidelines in awarding prospective child support. Cole v. Cole, 149 N.C. App. 427, 562 S.E.2d 11 (2002).

Claim for Retroactive Child Support. - Not only may an action be brought to collect child support payments in arrears, but a claim for retroactive child support may be brought under this section. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

Retroactive child support is based solely on amount actually expended for support of minor children during time period in question. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

"Emergency Situation" Must Be Shown. - Child support reimbursement, or child support governing a period prior to a motion to increase an existing child support order, would constitute retroactive child support and would not be based on the presumptive guidelines. Therefore, a child support payment order may not be retroactively increased without evidence of some emergency situation that required the expenditure of sums in excess of the amount of child support paid. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Reasonable Necessity and Ability to Pay Must Be Considered. - When a trial court is faced with calculating a retroactive child support award, it must consider, among other things, whether what was actually expended was "reasonably necessary" for the child's support and the defendant's ability to pay during the time for which reimbursement is sought. Buff v. Carter, 76 N.C. App. 145, 331 S.E.2d 705 (1985).

Retroactive Support for Private Schooling Denied. - Award of additional retroactive child support for private schooling was denied where the trial court's limited findings failed to set forth the existence of a "sudden emergency" so unusual or extraordinary as to require plaintiff to expend sums in excess of defendant's existing support obligation, and the court's order contained no findings reflective of defendant's ability to pay during the period the emergency expenses were allegedly incurred. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Measure of Liability for Reimbursement of Support Funds Expended. - Where there was no evidence or finding as to the actual amount expended by plaintiff for the support of the children for which she was entitled to reimbursement from defendant, what the defendant "should have paid" was not the measure of his liability to plaintiff. The measure of defendant's liability to plaintiff was the amount actually expended by plaintiff which represented the defendant's share of support. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977); Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

No Reimbursement for Share of Support Paid by Court Order. - In an action by a mother for child support, mother was not entitled to be reimbursed for sums expended by her for the support of the children which represented her share of support as determined by the trial judge, considering the relative ability of the parties to provide support. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977).

Mother's Homemaking Services Considered. - In determining father's share of the reasonable actual expenditures made by mother during the period for which retroactive child support is sought, the trial court must consider her child care and homemaking services rendered during this period. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992).

Mother Not Entitled to Compensation for Support by Others. - In an action by a mother for child support, she was not entitled to be compensated for support for the children which was provided by others. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977).

Extent of Recovery for Past Expenditures. - Assuming adequate proof of the expenditures under subsection (c) of this section, the plaintiff-mother could recover reimbursement for her past support expenditures (1) to the extent she paid the father's share of such expenditures, and (2) to the extent the expenditures occurred three years or less before August 8, 1986, the date she filed her claim for child support. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

Error Where Court Used Guidelines Instead of Actual Expenditures. - Where, although the trial court made a finding on mother's actual expenditures during the period for which retroactive support was sought, the court instead based the retroactive support award on the guidelines in effect at the time the expenses were incurred by mother, this was error requiring reversal of the order of retroactive support. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992).

Proof of Actual Expenditures. - Trial court's award of retroactive child support had to be reversed and remanded for findings on the mother's actual expenditures for the children during the relevant time period. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014).

The trial court was under no obligation to render findings of fact where it did not deviate from the presumptive guidelines, but rather adjusted the guideline amounts to account, prospectively, for the extraordinary expense of private schooling. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Where the trial court abused its discretion in calculating plaintiff's income and in failing to value plaintiff's estate, and erred in using the "retroactive child support" test for calculating prospective child support, case would be remanded. Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442 (1995), rev'd on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996).

Evidence Held Sufficient to Support Award. - Where trial court specifically found that prior to filing action plaintiff expended at least four hundred dollars ($400.00) per month for the support of the parties' child and that defendant had the capacity to pay one-half of this amount toward the child's support during this time, the findings were supported by the evidence and were binding on appeal; the trial court correctly awarded plaintiff reimbursement for past child support. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

After the father had been found to be in contempt due to his failure to pay child support, the trial court made sufficient findings of fact to support an award of attorney's fees to the mother under G.S. 50-13.6, despite the fact that there was no finding that the mother was an interested party with insufficient means to defray the cost of the litigation; under G.S. 50-13.4(c), the children's ability to pay attorney's fees was at issue, not the mother's, and the mother was an interested party under G.S. 50-13.6, as she provided the financial support in the absence of the husband. Belcher v. Averette, 152 N.C. App. 452, 568 S.E.2d 630 (2002).

G. CONTEMPT.

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Editor's Note. - Some of the cases cited below were decided under subdivision (f)(9) of this section as it read prior to amendment in 1977. Prior to such amendment, subdivision (f)(9) provided for punishment as for contempt of the "willful disobedience" of an order for the payment of child support.

Agreement of Parties Incorporated in Judgment Is Enforceable by Contempt Proceedings. - Where, in wife's action for alimony and child support, the parties agreed to the terms of a judgment providing that husband would make specified monthly support payments, and the judgment entered by the court ordered husband to make the payments which he had agreed to make, husband's obligation to make the support payments could be enforced by contempt proceedings. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607 (1972).

Willfulness Is Required Under Subdivision (f)(9). - The element of willfulness is required for a finding of civil contempt under subdivision (f)(9) of this section and G.S. 5A-21. Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981); Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

Trial court did not err in not holding the father in contempt as he did not intend to willfully violate the child support order because he was under the mistaken apprehension that he could simply stop paying after his son ceased living with the mother. Morris v. Powell, - N.C. App. - , 840 S.E.2d 223 (2020).

Priority of G.S. 50-13.4(f)(8)-(9) over G.S. Ch. 5A. - Because G.S. 50-13.4(f)(8)-(9) is more specific than the generalized contempt allowances set forth in G.S. ch. 5A, G.S. 50-13.4(f)(8)-(9) must control. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39 (2005), cert. denied, 360 N.C. 60, 621 S.E.2d 175 (2005).

And Only Willful Disobedience May Be Punished. - A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful, which imports knowledge and a stubborn resistance. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

To constitute willful disobedience there must be an ability to comply with the court order and a deliberate and intentional failure to do so. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554 (1974).

One does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Ability to Pay or to Take Measures to Do So Required. - Although an order for child support is enforceable by civil contempt proceedings, a supporting party cannot be held in contempt unless the party willfully failed to comply with the support order. A finding of willful failure to comply with the order requires evidence of the present ability to pay or to take reasonable measures to comply. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Contempt for Violation Based on Willfulness Upheld. - Trial court acted correctly when it exercised jurisdiction under this section and found defendant/husband in civil contempt, where he made a calculated and deliberate decision to pay a lower amount of child support than it had previously ordered. Burnett v. Wheeler, 133 N.C. App. 316, 515 S.E.2d 480 (1999).

Trial Court Must Make Particular Findings of Ability to Pay. - In order to hold a parent in contempt for failure to pay child support in accordance with a decree, the failure must be willful. In order to find the failure willful, there must be particular findings of the ability to pay during the period of delinquency. Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977).

In order to punish by contempt proceedings, the trial court must find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

There must be a specific finding of fact, supported by competent evidence, to the effect that defendant possesses the means to comply with the court order, before he can be incarcerated for contempt until compliance. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554 (1974); Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d 734, cert. denied, 288 N.C. 240, 217 S.E.2d 679 (1975).

A defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554 (1974).

Defendant's voluntary purging of assets in bankruptcy was considered a deliberate divestment of assets; therefore, failure to comply with a child support order was willful and punishable by contempt proceedings. Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

Past contempt cannot be ignored by the court even if at the exact time of the contempt hearing the defendant does not have the means to comply with the order for child support. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554 (1974).

Contempt Decree Set Aside for Lack of Findings. - Where the lower court had not found as a fact that defendant possessed the means to comply with the orders for payment of subsistence pendente lite at any time during the period when he was in default in such payments, the findings that defendant's failure to make the payments of subsistence was deliberate and willful was not supported by the record, and the decree committing him to imprisonment for contempt would be set aside. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Child Support Arrears. - Although defendant's child support obligation terminated because her son turned 18 and was no longer in school, the arrears owed to the county remained in force, as defendant made no child support payments before her son turned 18 and the court found the purpose of the order would be served by her compliance; her challenge to be held in civil contempt failed. Cumberland Cty. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 822 S.E.2d 305 (2018).

When order reducing child support arrears to a money judgment does not provide for periodic payments although the lower court's prior judgment reduced the father's child support arrearage to a money judgment, it did not provide for periodic payments so his failure to satisfy the arrearage was enforceable by execution under G.S. 1-302, and not civil contempt under G.S. 50-13.4(f)(8)-(9), so the lower court's judgment holding him in contempt was beyond its jurisdiction and was vacated. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39 (2005), cert. denied, 360 N.C. 60, 621 S.E.2d 175 (2005).

When order reducing child support arrears to a money judgment does not provide for periodic payments or other deadline for payment, it is not enforceable by contempt, and the trial court does not have jurisdiction to enter an order finding a defendant in contempt. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39 (2005), cert. denied, 360 N.C. 60, 621 S.E.2d 175 (2005).

Failure to Pay College Expenses. - Trial court properly found father in civil contempt where he willfully failed to pay his daughters college expenses as he had contracted to do. Ross v. Voiers, 127 N.C. App. 415, 490 S.E.2d 244 (1997), cert. denied, 347 N.C. 402, 496 S.E.2d 387 (1997).

Defendant Not in Contempt. - Defendant was not in civil contempt of court in deducting from child support payments made to plaintiff amounts representing voluntary expenditures for needs of the parties' children while they were visiting him. Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981).

Review of Facts Found in Contempt Proceedings. - In proceedings for contempt, the facts found by the judge are not reviewable, except for the purpose of passing upon their sufficiency to warrant the judgment. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Payment of Counsel Fees. - The court is vested with broad power when it is authorized to punish "as for contempt." This power includes the authority for a district court judge to require one whom he has found in willful contempt of court for failure to comply with a child support order to pay reasonable counsel fees to opposing counsel as a condition to being purged of contempt. Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970).

Attorney Fees Included In Child Support Award. - Trial court had subject matter jurisdiction to enforce attorney fee awards included in a child support award during the pendency of defendant's appeal of a child support award pursuant to G.S. 50-13.4(f)(9). Moreover, where defendant made no attempt to post an undertaking or supersedeas bond to stay civil contempt proceedings on the attorney fee awards pursuant to G.S. 1-289, defendant was subject to civil contempt proceedings pending his appeal. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 467 (2019).

Indefinite Jail Term. - When a defendant has the present means to comply with a court order and deliberately refuses to comply, there is a present and continuing contempt, and the court may commit such defendant to jail for an indefinite term, that is, until he complies with the order. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554 (1974); Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d 734, cert. denied, 288 N.C. 240, 217 S.E.2d 679 (1975).

Effect of Dismissal of Contempt Action Without Explanation. - A dismissal of a contempt action, without explanation, at most signified that the supporting party was not in contempt as of that date and did not cancel the accrued child support debt; it merely forced the custodial parent or an authorized party to pursue one of the alternate remedies listed in subsection (f) to enforce the debt. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

As to effect of reconciliation and resumption of cohabitation on a separation agreement, see Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, cert. denied, 300 N.C. 556, 270 S.E.2d 107 (1980).

Failure to Identify Purpose of Support as Health, Education and Maintenance Is Not Error. - The better practice is for the court's order to relate that the payment ordered under this section is the amount necessary to meet the reasonable needs of the child for health, education, and maintenance, but the failure of the court to do so does not constitute reversible error. Andrews v. Andrews, 12 N.C. App. 410, 183 S.E.2d 843 (1971); Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, cert. denied, 295 N.C. 261, 245 S.E.2d 778 (1978).

Appeal Did Not Divest Trial Court of Enforcement Jurisdiction. - Notice of appeal from a trial court order requiring a husband to make payments pursuant to a child support order did not divest the trial court of jurisdiction to make an enforcement order finding the husband in contempt based on the exception to the divestment of the trial court's jurisdiction found in G.S.50-13.4(f)(9). Guerrier v. Guerrier, 155 N.C. App. 154, 574 S.E.2d 69 (2002).

Opinions of Attorney General

Medical Child Support Enforcement Provisions. - The medical child support enforcement provisions of House Bill 1563, 1993 (Reg. Sess., 1994), N.C. Session Laws c. 644, are inapplicable to the North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan (now State Health Plan for Teachers and State Employees) and the governmental entities whose employees and retirees, along with their dependents, are eligible for coverage under the Plan or its HMO option. Medical child support orders nonetheless may be enforced directly against State employees and retirees who fail to enroll, or maintain coverage for, their eligible dependent children under the State Health Plan in accordance with the provisions of G.S. 50-13.9, 50-13.11 and subsection (f) of this section. See opinion of Attorney General to Patricia Crawford, Associate General Counsel, University of North Carolina at Chapel Hill, - N.C.A.G. - (August 10, 1995).


§ 50-13.5. Procedure in actions for custody or support of minor children.

  1. Procedure. - The procedure in actions for custody and support of minor children shall be as in civil actions, except as provided in this section and in G.S. 50-19. In this G.S. 50-13.5 the words "custody and support" shall be deemed to include custody or support, or both.
  2. Type of Action. - An action brought under the provisions of this section may be maintained as follows:
    1. As a civil action.
    2. Repealed by Session Laws 1979, c. 110, s. 12.
    3. Joined with an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.
    4. As a cross action in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.
    5. By motion in the cause in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.
    6. Upon the court's own motion in an action for annulment, or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.
    7. In any of the foregoing the judge may issue an order requiring that the body of the minor child be brought before him.
  3. Jurisdiction in Actions or Proceedings for Child Support and Child Custody. -
    1. The jurisdiction of the courts of this State to enter orders providing for the support of a minor child shall be as in actions or proceedings for the payment of money or the transfer of property.
    2. The courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child under the provisions of G.S. 50A-201, 50A-202, and 50A-204.
    3. to (6) Repealed by Session Laws 1979, c. 110, s. 12.
  4. Service of Process; Notice; Interlocutory Orders. -
    1. Service of process in civil actions for the custody of minor children shall be as in other civil actions. Motions for support of a minor child in a pending action may be made on 10 days notice to the other parties and compliance with G.S. 50-13.5(e). Motions for custody of a minor child in a pending action may be made on 10 days notice to the other parties and after compliance with G.S. 50A-205.
    2. If the circumstances of the case render it appropriate, upon gaining jurisdiction of the minor child the court may enter orders for the temporary custody and support of the child, pending the service of process or notice as herein provided.
    3. A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. A temporary custody order that requires a law enforcement officer to take physical custody of a minor child shall be accompanied by a warrant to take physical custody of a minor child as set forth in G.S. 50A-311.
  5. Notice to Additional Persons in Support Actions and Proceedings; Intervention. -
    1. The parents of the minor child whose addresses are reasonably ascertainable; any person, agency, organization or institution having actual care, control, or custody of a minor child; and any person, agency, organization or institution required by court order to provide for the support of a minor child, either in whole or in part, not named as parties and served with process in an action or proceeding for the support of such child, shall be given notice by the party raising the issue of support.
    2. The notice herein required shall be in the manner provided by the Rules of Civil Procedure for the service of notices in actions. Such notice shall advise the person to be notified of the name of the child, the names of the parties to the action or proceeding, the court in which the action or proceeding was instituted, and the date thereof.
    3. In the discretion of the court, failure of such service of notice shall not affect the validity of any order or judgment entered in such action or proceeding.
    4. Any person required to be given notice as herein provided may intervene in an action or proceeding for support of a minor child by filing in apt time notice of appearance or other appropriate pleadings.
  6. Venue. - An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action. If an action or proceeding for the custody and support of a minor child has been instituted and an action for annulment or for divorce, either absolute or from bed and board, or for alimony without divorce is subsequently instituted in the same or another county, the court having jurisdiction of the prior action or proceeding may, in its discretion direct that the action or proceeding for custody and support of a minor child be consolidated with such subsequent action, and in the event consolidation is ordered, shall determine in which court such consolidated action or proceeding shall be heard.
  7. Custody and Support Irrespective of Parents' Rights Inter Partes. - Orders for custody and support of minor children may be entered when the matter is before the court as provided by this section, irrespective of the rights of the wife and the husband as between themselves in an action for annulment or an action for divorce, either absolute or from bed and board, or an action for alimony without divorce.
  8. Court Having Jurisdiction. - When a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court, and may be heard at any time.
  9. District Court; Denial of Parental Visitation Right; Written Finding of Fact. - In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.
  10. Custody and Visitation Rights of Grandparents. - In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.

History

(1858-9, c. 53, s. 2; 1871-2, c. 193, ss. 39, 46; Code, ss. 1292, 1296, 1570, 1662; Rev., ss. 1567, 1570, 1854; 1919, c. 24; C.S., ss. 1664, 1667, 2242; 1921, c. 13; 1923, c. 52; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1951, c. 893, s. 3; 1953, cc. 813, 925; 1955, cc. 814, 1189; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1971, c. 1185, s. 24; 1973, c. 751; 1979, c. 110, s. 12; c. 563; c. 709, s. 3; 1981, c. 735, s. 3; 1983, c. 587; 1985, c. 575, s. 4; 1987 (Reg. Sess., 1988), c. 893, s. 3.1; 1999-223, ss. 11, 12; 2017-22, s. 2.)

Cross References. - As to actions for custody, see also G.S. 50-13.1 through 50-13.3 and notes thereunder.

As to actions for support, see also G.S. 50-13.4 and notes thereunder.

As to maintenance of certain actions as independent actions, see G.S. 50-19.

For the Uniform Child Custody Jurisdiction Act, see G.S. 50A-1 et seq.

Effect of Amendments. - Session Laws 2017-22, s. 2, added the last sentence of subdivision (d)(3). For effective date and applicability, see editor's note.

Legal Periodicals. - For note on jurisdictional and full faith and credit requirements of custody awards of minor children, see 30 N.C.L. Rev. 282 (1952).

For note on the domicile rule in custody proceedings, see 35 N.C.L. Rev. 83 (1956).

For note on voluntary nonsuit in custody action, see 44 N.C.L. Rev. 1138 (1966).

For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For survey of 1972 case law on child support and pre-Chapter 48A consent judgments, see 51 N.C.L. Rev. 1091 (1973).

For survey of 1976 case law on domestic relations, see 55 N.C.L. Rev. 1018 (1977).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, "Equating a Stepparent's Rights and Liabilities vis-a-vis Custody, Visitation and Support upon Dissolution of the Marriage with Those of the Natural Parent - An Equitable Solution to a Growing Dilemma?," see 17 N.C. Cent. L.J. 1 (1988).

For an article on recent developments in third-party custody proceedings after Petersen v. Rogers and Price v. Howard, see 76 N.C.L. Rev. 2145 (1998).

CASE NOTES

I. IN GENERAL.

Editor's Note. - A number of the cases cited below were decided under former G.S. 50-13, which dealt with custody and maintenance of children in actions for divorce, former G.S. 50-16, which dealt with custody and support of children in proceedings for alimony without divorce, and former G.S. 17-39 and former G.S. 17-39.1, which dealt with habeas corpus for custody of children.

Legislature apparently intended to provide the maximum range of choice among procedures for determination of child custody and support. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721 (1985).

Remarriage Does Not Reduce Choice of Procedures. - The statutory scheme of this section provides for an election of procedures in actions for custody or support; there is no reason why the remarriage of the parties should reduce the choices available. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721 (1985).

Effect of Defendant's Petition for Custody on Plaintiff's Right to Voluntary Nonsuit. - Where wife instituted action for divorce and husband filed his petition in the cause praying the court for a determination of his custodial rights with respect to the child, thus seeking affirmative relief of a substantial nature, it was not within the power of the clerk to divest the court of its jurisdiction by allowing wife to submit to a voluntary nonsuit during the course of the hearings and while the issue of custody was in fieri before the presiding judge. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957).

Ex Parte Order Improper. - Judge was censured for misconduct under circumstances in which the judge entered an ex parte order striking an earlier order that had been entered by a different district court judge, which had found a party in contempt for failure to pay child support, regardless of the judge's claim that his actions were allowed by G.S. 50-13.5. In re Royster, 361 N.C. 560, 648 S.E.2d 837 (2007).

Change in Circumstances. - Where parent was found to be a fit and proper parent, and in a later order found to be an unfit parent, the finding of unfitness constituted a change in circumstances. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

Burden of Proof. - Even if privity was not a requirement of collateral estoppel, the trial court erroneously applied the doctrine because of the different burdens of proof used in custody and neglect hearings, and the trial court erred in applying the doctrine to bar the mother's questions, as the neglect hearing was held pursuant to a different burden of proof; the error made it impossible for the mother to effectively contest the allegations made in the petition under the higher, clear and convincing evidence standard, and the matter was reversed. In re K.A., 233 N.C. App. 119, 756 S.E.2d 837 (2014).

Applied in Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969); Bonavia v. Torreso, 7 N.C. App. 21, 171 S.E.2d 108 (1969); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Williams v. Williams, 12 N.C. App. 170, 182 S.E.2d 667 (1971); Snyder v. Snyder, 18 N.C. App. 658, 197 S.E.2d 802 (1973); Roberts v. Roberts, 25 N.C. App. 198, 212 S.E.2d 410 (1975); Benson v. Benson, 39 N.C. App. 254, 249 S.E.2d 877 (1978); Francis v. Durham County Dep't of Social Servs., 41 N.C. App. 444, 255 S.E.2d 263 (1979); Rhoney v. Sigmon, 43 N.C. App. 11, 257 S.E.2d 691 (1979); Misero v. Misero, 43 N.C. App. 523, 259 S.E.2d 346 (1979); Lynch v. Lynch, 302 N.C. 189, 274 S.E.2d 212 (1981); Miller v. Kite, 69 N.C. App. 679, 318 S.E.2d 102 (1984); Glesner v. Dembrosky, 73 N.C. App. 594, 327 S.E.2d 60 (1985); Buck v. Greenlee, - F. Supp. 2d - (W.D.N.C. Sept. 30, 2011).

Cited in Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970); Texas v. Rhoades, 7 N.C. App. 388, 172 S.E.2d 235 (1970); In re Hopper, 11 N.C. App. 611, 182 S.E.2d 228 (1971); Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Holbrook v. Holbrook, 38 N.C. App. 308, 247 S.E.2d 926 (1978); McGinnis v. McGinnis, 44 N.C. App. 381, 261 S.E.2d 491 (1980); Oxendine v. Catawba County Dep't of Social Servs., 49 N.C. App. 571, 272 S.E.2d 417 (1980); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19 (1986); Shingledecker v. Shingledecker, 103 N.C. App. 783, 407 S.E.2d 589 (1991); Ray v. Ray, 103 N.C. App. 790, 407 S.E.2d 592 (1991); Brooks v. Brooks, 107 N.C. App. 44, 418 S.E.2d 534 (1992); Dobos v. Dobos, 111 N.C. App. 222, 431 S.E.2d 861 (1993); Wake County ex rel. Horton v. Ryles, 112 N.C. App. 754, 437 S.E.2d 404 (1993); McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995); Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996); Ross v. Voiers, 127 N.C. App. 415, 490 S.E.2d 244 (1997), cert. denied, 347 N.C. 402, 496 S.E.2d 387 (1997); Penland v. Harris, 135 N.C. App. 359, 520 S.E.2d 105 (1999); Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000); Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004); McDuffie v. Mitchell, 155 N.C. App. 587, 573 S.E.2d 606 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 368 (2003); Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536 (2007); Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009); Head v. Mosier, 197 N.C. App. 328, 677 S.E.2d 191 (2009); McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590 (2010); Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013); Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013); In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017); Catawba Cty. v. Loggins, 370 N.C. 83, 804 S.E.2d 474 (2017).

II. TYPE OF ACTION.

Editor's Note. - Most of the cases cited below were decided prior to the enactment of G.S. 50-19, authorizing the maintenance of certain actions as independent actions.

Justice to all parties is best served when one judge is able to see the controversy whole. In re King, 3 N.C. App. 466, 165 S.E.2d 60 (1969).

Joinder in Action for Alimony Without Divorce Is Permissible. - It is permissible under subdivision (b)(3) of this section for the wife (spouse) to join an action for custody and support of the minor children of the parties in her action for alimony without divorce. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970).

As an Additional Method of Determining Issues as to Children. - The 1953 amendment of former G.S. 50-16, granting jurisdiction to determine custody in an action for alimony without divorce, created an additional method whereby the matter of custody may be determined. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

The 1955 amendment to former G.S. 50-16, which provided that custody orders were authorized "in the same manner as such orders are entered by the court in an action for divorce," bolstered the decision in Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962), which held that that section created an additional method whereby all questions relating to custody and child support were brought into and determined in the suit for alimony without divorce, in one action. In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967).

Prior to 1953, custody of children could not be determined in a proceeding for alimony without divorce. Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148 (1964).

Counterclaims. - There is no conflict between the statutes dealing with procedure in divorce actions and G.S. 1A-1, Rule 13(a). Rather G.S. 1A-1, Rule 13(a) superimposes an additional characteristic on certain kinds of counterclaims. Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978). But see now G.S. 50-19.

Divorce action is pending for purposes of determining custody and support until the death of one of the parties or until the youngest child born of the marriage reaches maturity, whichever event occurs first. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721 (1985).

Remedy of Plaintiff in Divorce Suit Is by Motion in the Cause. - Where a wife institutes suit for divorce, her remedy to require the defendant to provide support for a minor child of the marriage is by motion in the cause, which may be filed either before or after final judgment. Winfield v. Winfield, 228 N.C. 256, 45 S.E.2d 259 (1947).

Plaintiff-husband, as a parent seeking custody, could seek to have his child support obligation determined through a motion in the cause in the divorce action. He was not precluded from doing so by the fact that the court had not previously entered orders in that action relating to child support. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).

Modification of Order on Motion of Court or Party. - Upon motion of a party, or upon its own motion after due notice, the court may conduct a hearing to determine whether the decree should be modified. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974).

Foster Parents May Not Bring Custody Action. - Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department's or agency's exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Intervention by Foster Parents. - In proceeding brought by DSS in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child's foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986), distinguishing Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981), and upholding award of custody to foster parents.

Guardianship Versus Custody. - When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt's subsequent guardianship petition made the custody action moot because, (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk's jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts' custody awards, so the clerk had jurisdiction to appoint the children's general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564 (2016).

III. JURISDICTION AND VENUE.
A. IN GENERAL.

For cases involving the bringing of habeas corpus proceedings in custody disputes, prior to the amendment by Session Laws 1979, c. 110, s. 12, see Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183 (1948); Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71 (1956); Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792 (1963); In re Skipper, 261 N.C. 592, 135 S.E.2d 671 (1964); In re Macon, 267 N.C. 248, 147 S.E.2d 909 (1966); Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); In re King, 3 N.C. App. 466, 165 S.E.2d 60 (1969); In re Wright, 8 N.C. App. 330, 174 S.E.2d 27 (1970).

Editor's Note. - Most of the cases cited below were decided prior to the enactment of G.S. 50-19, authorizing the maintenance of certain actions as independent actions, and prior to the enactment of the Uniform Child Custody Jurisdiction Act, former G.S. 50A-1 et seq., or the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq.

Venue Provision. - Subdivision (f) of this section, enacted in 1967, is the venue provision for a child support action. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

The jurisdiction of the court to protect infants is broad, comprehensive, and plenary. Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974).

Action to Determine Support Is in Personam. - Under subdivision (c)(1) of this section an action to determine the matter of support is in personam in nature. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).

An action for child support is an action in personam and is governed by jurisdictional rules as in actions for the payment of money or the transfer of property. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607 (1989).

While Award of Custody Is in Rem. - The awarding of the custody of the children in an action for divorce is in rem. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798 (1948); Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228 (1955).

Divorce Action Gives Court Jurisdiction of Custody. - In divorce actions, whether for the dissolution of the marriage or from bed and board, the court in which the action is brought acquires jurisdiction over the custody of the unemancipated children of the parties. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

When Jurisdiction Is Obtained Over Defendant. - Upon the institution of a divorce action, the court is vested with jurisdiction of the children of the marriage for the purpose of entering orders respecting their care and custody. But the action is not instituted, within the meaning of this rule, until and unless the court acquires jurisdiction of the person of the defendant, and jurisdiction is subject to the fundamental requirement of notice and opportunity to be heard. If both parents are in court and subject to its jurisdiction, an order may be entered, in proper instances, binding the parties and enforceable through the court's coercive jurisdiction. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798 (1948).

And Consent Judgment Therein Does Not Divest Court of Jurisdiction as to Custody of Child. - Upon the institution of an action for divorce from bed and board, the court acquires jurisdiction of the minor children of the parties, which is not divested by a consent judgment on the issue of divorce entered in the cause with approval of the court, especially where such consent judgment expressly provides that either party may thereafter make a motion in the cause for the custody of the children, the court having the power in an action for divorce, either absolute or from bed and board, before or after final judgment, to enter orders respecting the care and custody of the children under this section. Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144 (1934).

Where consent judgment in a suit a mensa et thoro has been entered in the action, without providing for the children, upon motion in the original cause the court has the power to make such further orders as it deems proper requiring the father (or mother) to provide for the support of his children, whether born before or after the rendition of the consent judgment. Sanders v. Sanders, 167 N.C. 317, 83 S.E. 489 (1914).

Actions Constituting General Appearance Subject Defendant to Jurisdiction. - By submitting information to the court relevant to the merits in action for child custody and support, defendant made a general appearance prior to his assertions of lack of personal jurisdiction where defendant sought affirmative relief from the court; submission of the documents was inconsistent with defendant's later claim of lack of personal jurisdiction. Bullard v. Bader, 117 N.C. App. 299, 450 S.E.2d 757 (1994).

Remarriage of parties to each other does not divest court of its continuing jurisdiction over the minor child acquired in action for divorce. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721 (1985).

Previous Action Pending. - Husband's motion as to child custody and child support was properly dismissed where the wife's previously commenced action with respect to the custody and support of the children was pending at the time the husband filed his motion. Basinger v. Basinger, 80 N.C. App. 554, 342 S.E.2d 549 (1986).

Child Becomes Ward of Court. - In a custody case, the court acquires jurisdiction of the child as well as the parent, and the child thus becomes a ward of the court. Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962).

Presence of Child. - For cases as to the effect of the child's presence in this State on the issue of jurisdiction, prior to the enactment of G.S. 50A-1 et seq., see Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798 (1948); Allman v. Register, 233 N.C. 531, 64 S.E.2d 861 (1951); Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228 (1955); Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71 (1956); Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96, vacated on other grounds, 356 U.S. 604, 78 S. Ct. 963, 2 L. Ed. 2d 1008 (1957); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E.2d 103 (1970); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972); Spence v. Durham, 16 N.C. App. 372, 191 S.E.2d 908 (1972), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974); Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974); Taylor v. Taylor, 20 N.C. App. 188, 201 S.E.2d 43 (1973); MacKenzie v. MacKenzie, 21 N.C. App. 403, 204 S.E.2d 561 (1974); Swanson v. Swanson, 22 N.C. App. 152, 205 S.E.2d 738 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513 (1975); Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305 (1977); Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819 (1978); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616 (1979).

In a grandmother's action seeking custody of her grandchildren, the trial court erred in changing venue because either the county where the complaint alleged that the children resided or the county where they were physically present could have proper venue; basing venue on the physical presence of the children would seem entirely appropriate, particularly where a grandparent is seeking to protect grandchildren whose parents have disappeared. Zetino-Cruz v. Benitez-Zetino, 249 N.C. App. 218, 791 S.E.2d 100 (2016).

Jurisdiction Vests Exclusively in Divorce Court. - The court in which a suit for divorce is pending has exclusive jurisdiction as to the care or custody of the children of the marriage, before and after the decree of divorce has been entered. In re Blake, 184 N.C. 278, 114 S.E. 294 (1922); Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148 (1964).

When a divorce action is instituted, jurisdiction over the custody of the children born of the marriage vests exclusively in the court before whom the divorce action is pending and becomes a concomitant part of the subject matter of the court's jurisdiction in the divorce action. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957); In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967).

Jurisdiction over the custody of the children born of the marriage rests exclusively in the court before whom the divorce action is pending, and no order for the custody of the children may be entered in a later action by one of the parties for subsistence without divorce. Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641 (1949), aff'd, 232 N.C. 95, 59 S.E.2d 363 (1950).

Where plaintiff instituted his action for divorce from bed and board in the superior court, and specifically prayed "that the court determine the proper custody for the aforesaid minor child of the plaintiff and defendant," that court became vested in his suit with exclusive jurisdiction to enter orders respecting the care, custody and maintenance of the child. Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792 (1963).

Jurisdiction of the matters relating to custody having been invoked in an action for divorce, the court in which the divorce action was pending would have exclusive jurisdiction over the question of custody. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

Jurisdiction Continues After Entry of Decree. - The court in which the suit for divorce is pending has exclusive jurisdiction of proceedings for custody and child support, and once they are commenced, maintains it after the divorce decree is entered. Bass v. Bass, 43 N.C. App. 212, 258 S.E.2d 391 (1979).

Jurisdiction of courts in custody and visitation cases is continuous. A decree determines only the present rights with respect to such custody and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the child. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

The jurisdiction of the court over the custody of unemancipated children of the parties in a divorce action continues even after divorce. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Where Custody and Support Have Been Brought to Issue. - Where custody and support are brought to issue by the pleadings, the court retains continuing jurisdiction over these matters even when the issues are not determined by the judgment. Thus, where the issues of custody and support were raised in plaintiff wife's complaint and ruled on by the trial judge, the court retained jurisdiction to entertain and rule on defendant husband's motion in the cause for custody and support of the children. Jackson v. Jackson, 68 N.C. App. 499, 315 S.E.2d 90 (1984).

Until Death of a Party or Children's Attainment of Age of Majority. - A divorce action is pending for purposes of determining custody and support until the death of one of the parties or until the youngest child born of the marriage reaches the age of majority, whichever event shall first occur. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972); Morris v. Morris, 42 N.C. App. 222, 256 S.E.2d 302 (1979).

But Custody Jurisdiction of Court Where Action for Alimony Without Divorce Is Pending Is Not Lost. - The general rule that exclusive custody jurisdiction is vested in the divorce court is subject to the exception that a court before which an action for alimony without divorce is pending does not lose its custody jurisdiction to the court of another county in which an action for divorce is subsequently filed. In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967).

Institution of a divorce action did not oust the jurisdiction of another court, previously acquired in an action for alimony without divorce, to determine the rights of custody of the children of the marriage. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

Divorce Court May Hear and Determine Questions of Custody and Support. - Upon institution of a divorce action the court acquires jurisdiction over any child born of the marriage, and may hear and determine questions both as to the custody and as to the maintenance of such child either before or after final decree of divorce. Story v. Story, 221 N.C. 114, 19 S.E.2d 136 (1942).

After the filing of a complaint in any action for divorce, whether from the bonds of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper. Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700 (1963).

And May Grant Custody to Either Parent. - The court has jurisdiction to enter an order granting custody to either of the children's parents, both of whom are subject to the court's jurisdiction. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).

Even Though Such Questions Were Not Raised or Determined in Final Judgment. - A court in which a divorce action was tried has jurisdiction to determine custody and support of children of the marriage, even though no custody or support questions were raised prior to, or determined in, the final judgment of divorce. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).

Issue of Custody and Support Remains in Fieri. - If the custody and support has been brought to issue or determined in the previously instituted action between the parents, there could be no final judgment in that case, because the issue of custody and support remains in fieri until the children have become emancipated. Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190 (1971); Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E.2d 215 (1976); Bass v. Bass, 43 N.C. App. 212, 258 S.E.2d 391 (1979).

Jurisdiction to Modify Custody Decree. - Once a court in this State properly asserts jurisdiction to determine the rights of the parties to custody of a minor child, that court retains jurisdiction to modify its custody decree upon a showing of a substantial change of circumstances. Lynch v. Lynch, 303 N.C. 367, 279 S.E.2d 840 (1981).

Subsection (f) of this section does not affect the situation where custody and support have already been determined and one of the parties seeks a modification. In such a case, the court first obtaining jurisdiction retains jurisdiction to the exclusion of all other courts and is the only proper court in which to bring an action for the modification of an order establishing custody and support. Tate v. Tate, 9 N.C. App. 681, 177 S.E.2d 455 (1970).

A party cannot seek modification of a child support order in a court other than that in which it was entered where there has been no change of venue by the court. Broyhill v. Broyhill, 81 N.C. App. 147, 343 S.E.2d 605 (1986).

Uniform Interstate Family Support Act. - Where a North Carolina judgment of absolute divorce made no provision for child support, and there was thus no existing order, the Texas Attorney General's petition to establish a support obligation was properly classified as a petition to establish an order of support rather than a petition to modify an order of no support; thus, under the Uniform Interstate Family Support Act, the Texas trial court had the authority to adjudicate the father's child support obligation, and because the North Carolina tribunal had not acquired continuing, exclusive jurisdiction, the trial court erred in granting the father's plea to the jurisdiction. Office of the AG of Tex. v. Long, 401 S.W.3d 911 (May 21, 2013).

Independent Action in Another Court Where Custody and Support Not Determined - After Final Judgment. - The first proviso of subsection (f) of this section, when read in conjunction with the first sentence of subsection (f) and in conjunction with subsection (b), makes it clear that after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined, the custody and support issue may be determined in an independent action in another court. Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E.2d 215 (1976).

The custody and support issue may be determined in an independent action in another court after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined. In re Holt, 1 N.C. App. 108, 160 S.E.2d 90 (1968); Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190 (1971).

Subsections (b) and (f) of this section, when considered together, permit questions of custody and support to be determined in independent actions, rather than only through a motion in the cause, where a divorce judgment has been entered without a determination of custody and support in that judgment. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711 (1972).

Same - Before Final Judgment. - When a divorce action has been filed in one county, and there has not been a final judgment in that action, the courts of another county are, by virtue of the first proviso in subsection (f) of this section, without jurisdiction to entertain an independent action for custody of the minor children of the parties. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E.2d 923 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Jurisdiction to Award Custody of Child After Denial of Divorce. - After plaintiff's suit for divorce from bed and board and defendant's cross action for alimony without divorce had both been denied, the judge had jurisdiction and power to enter the portion of the judgment awarding custody of the minor son of the parties to defendant and providing for his maintenance and support. Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792 (1963).

Added Parties May Be Subjected to Jurisdiction to Same Extent as Original Parties. - In an action to determine custody of a child, an order which was entered in the Court of Appeals making the paternal grandparents parties, pursuant to their motion, subjected them to the jurisdiction of the Court of Appeals and of the trial court to the same extent as if they had been original parties plaintiff. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Failure to Raise Issue of Venue. - Because a mother and father, defendants, never appeared or filed an answer, they made no objection to venue and, thus, they waived it. Zetino-Cruz v. Benitez-Zetino, 249 N.C. App. 218, 791 S.E.2d 100 (2016).

Failure to Raise Issue of Child Support. - Defendant's mere mentioning of "a Separation Agreement dated June 5, 1981" in his 1982 divorce complaint was insufficient to raise the issue of child support. Defendant's divorce complaint did not ask the divorce court to review the question of child support and the divorce judgment did not even allude to the parties' separation agreement; therefore, defendant's contention that his prior divorce action placed the question of child support at issue with the results that (i) the original divorce court retained jurisdiction over that question and (ii) the present independent action by his wife should have been dismissed under a theory of abatement, was rejected. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal dismissed, 331 N.C. 286, 417 S.E.2d 254 (1992).

Effect of Subsequent Divorce in Another State. - Where the children of the marriage were residents of this State and the parents were personally before the court, the courts of this State had jurisdiction in the wife's action for subsistence under former G.S. 50-16 to award the custody of the children to the wife and decree the amount defendant should contribute for their support, and to punish defendant as for contempt for willful failure to comply with its order, notwithstanding the fact that the husband obtained a decree of divorce in another state after the entry of the order for support. Whitford v. Whitford, 261 N.C. 353, 134 S.E.2d 635 (1964).

Judge Held Without Jurisdiction to Hear Matter Outside District. - Upon application for the custody of the children of the marriage after decree of divorce, the resident judge entered a temporary order awarding custody to the father, and issued an order to defendant wife to appear outside the county and outside the district to show cause why the temporary order should not be made permanent. It was held that the judge was without jurisdiction to hear the matter outside the district, and an order issued upon the hearing of the order to show cause was void ab initio. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949).

Jurisdiction over Petition Filed by DSS. - The district court had jurisdiction over the subject matter of petition filed, signed and verified by county division of social services, which alleged that child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Transfer of Venue. - For the convenience of witnesses and parties and because it may be in the best interests of justice and the parties, the court of original venue may, in its discretion, transfer the venue of an ongoing action for custody or support to a more appropriate county. Broyhill v. Broyhill, 81 N.C. App. 147, 343 S.E.2d 605 (1986).

Standing to Intervene. - As a grandmother failed to allege conduct sufficient to support a finding that the parents engaged in conduct inconsistent with their parental rights and responsibilities, she could not overcome the presumption that the parents had the superior right to the care, custody, and control of the child, and lacked standing to intervene. Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009).

Dismissal Improper. - Dismissal of a wife's claims for child support and child custody for lack of subject matter jurisdiction was error as separation or initiation of a claim for divorce from bed and board was not a precondition for maintaining those claims under G.S. 50-13.1 and G.S. 50-13.5 Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011).

B. FULL FAITH AND CREDIT.

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Generally. - For cases as to full faith and credit accorded the custody decrees of other states, prior to the enactment of G.S. 50A-1 et seq., see In re Marlowe, 268 N.C. 197, 150 S.E.2d 204 (1966); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); In re Kluttz, 7 N.C. App. 383, 172 S.E.2d 95 (1970); Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513 (1975); Johnston v. Johnston, 29 N.C. App. 345, 224 S.E.2d 276 (1976).

Nature of Inquiry as to Full Faith and Credit. - In a proceeding to determine whether a custody judgment is entitled to full faith and credit, the court's inquiry is first confined to whether the judgment sought to be enforced was a final judgment rendered by a court with competent jurisdiction. If the court determines that the foreign judgment was final and was rendered by a court with proper jurisdiction, then the judgment is entitled to full faith and credit, and the court never reaches the merits of the custody action, unless one of the parties asserts that the judgment should be modified due to a substantial change in circumstances. Lynch v. Lynch, 303 N.C. 367, 279 S.E.2d 840 (1981).

When a court asserts jurisdiction to enforce a custody judgment of another state and no showing of a substantial change of circumstances is made, its jurisdiction terminates upon a final judgment awarding full faith and credit to the sister state's decree. Lynch v. Lynch, 303 N.C. 367, 279 S.E.2d 840 (1981).

A temporary custody judgment is not entitled to full faith and credit and has no effect on defendant's ability to seek full faith and credit of a final custody judgment subsequently rendered in another state. Lynch v. Lynch, 303 N.C. 367, 279 S.E.2d 840 (1981).

Indiana Order for Child Support Given Full Faith and Credit. - Although there was no jurisdictional rule requiring the trial court to dismiss plaintiff father's North Carolina action seeking definition of his child support obligations simply because defendant mother had filed an action in Indiana, where, when plaintiff's motion came on for hearing, the Indiana court had already entered an order on the issue of child support, that order was entitled to full faith and credit in this State as long as plaintiff was not denied due process of law in the Indiana court's assertion of jurisdiction over him. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607 (1989).

C. RESIDENCE AND DOMICILE.

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Findings of the court as to the residence of the parties are conclusive when supported by any competent evidence. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E.2d 923 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Domicile of Husband Not Necessarily Domicile of Wife and Children. - Where the husband in his divorce action alleged that he had notified his wife that he would no longer live with her as husband and wife, he could not assert the fictional unity of persons for the purpose of maintaining that his domicile was the domicile of his wife and children. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798 (1948).

IV. NOTICE.

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Purpose of Subdivision (d)(1). - Subdivision (d)(1) of this section is designed to give the parties to a custody action adequate notice in order to insure a fair hearing. Clayton v. Clayton, 54 N.C. App. 612, 284 S.E.2d 125 (1981).

Five Day (now 10 Day) Notice of Custody Hearing Not Absolute Right. - Ordinarily a parent is entitled to at least five days' (now 10 days') notice (an intervening Saturday or Sunday excluded) of a hearing involving the custody of a child, but this is not an absolute right and is subject to the rule relating to waiver of notice and to the rule that a new trial will not be granted for mere technical error which could not have affected the result, but only for error which is prejudicial, amounting to the denial of a substantial right. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

A party entitled to notice of a motion may waive such notice. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

And ordinarily does this by attending the hearing of the motion and participating in it. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Notice of Motion for Custody Served on Counsel of Record. - A court which acquired jurisdiction of husband in a divorce proceeding before he left the State had jurisdiction to hear motion for custody filed after divorce decree where notice of motion was served on husband's counsel of record. Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71 (1956).

Request for Variance for Child Support Guidelines. - G.S. 50-13.4 does not identify any time restrictions for making the request for a hearing. However, to effectuate the purpose of that statute, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

Absent a timely and proper request for a variance of the guidelines, support set consistent with the guidelines was conclusively presumed to be in such amount as to meet the reasonable needs of the child for health, education, and maintenance. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736 (1991).

Because the trial court elected to deny a father's motion requesting a deviation from the North Carolina Child Support Guidelines in its discretion, rather than dismiss it as untimely, the court of appeals did not need to address the timeliness of the motion. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Trial court's temporary custody order in an action filed by the child's putative father was not valid because the child's presumed father was not given notice, even though, under G.S. 50-13.5(e)(3), in the discretion of the court, failure of service of notice would not affect the validity of an order; that provision only applied to orders entered with respect to support actions. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Adequacy of Notice. - Trial court's judgment to modify a child custody award and award sole custody of the minor children to the mother was affirmed because the father admitted that he was on actual notice that a motion to modify custody was set to be heard, but was continued to some date in the future in order to accommodate his need to find new counsel. In addition, he had actual notice of the scheduled court date for the hearing days prior to leaving for a planned vacation, but chose to proceed with the trip rather than attend the hearing; therefore, he had adequate notice of the hearing and an opportunity to be heard. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298 (2004).

No Notice. - Where there was no motion for custody before the trial court, there was no notice of a motion for custody as required by subdivision (d)(1) of this section. Jones v. Jones, 109 N.C. App. 293, 426 S.E.2d 468 (1993).

Notice Held Sufficient. - Mother had received adequate notice that the hearing would include changes to the visitation schedule since the father had moved the court for an order finding and holder the mother in contempt for her disobedience and failure to comply with the provision of prior orders entered in the case. Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87 (2004).

V. HEARING.

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Time-tested methods for assuring an adequate and fair hearing must be applied in child custody proceedings. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969).

The question of custody is one addressed to the trial court. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).

And Not to a Jury. - Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967).

No Right to Jury Trial on Custody and Support Issues. - Pursuant to subsection (h) of this section, a supporting spouse is not entitled to a jury trial on the matter of custody and support of minor children. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

In a wife's action for alimony without divorce and for custody and support of the children, a trial court properly removed the case from the trial docket when the wife abandoned her claim to alimony, and the defendant was not entitled to a jury trial on the issue of abandonment of his children. Ferguson v. Ferguson, 9 N.C. App. 453, 176 S.E.2d 358 (1970).

Jury to Determine Question of Fact. - Whether a child was a "minor child of the marriage" within the purview of former G.S. 50-13 could be a question of fact rather than an issue of fact, and the trial court could call a jury to its aid to hear the evidence and determine the question. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950).

An award of permanent custody may not be based upon affidavits. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982).

And Affidavits Are Not Admissible to Establish Material Facts in Custody Proceedings. - The question to be determined in child custody hearings is certainly as important as any presented in the usual contract or tort litigation. Affidavits are not, as a rule, admissible in the trial of contract and tort cases as independent evidence to establish facts material to the issues being tried, and there is no more justification for resort to inferior evidence in child custody proceedings than in such other litigations. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969).

But a party to a child custody proceeding must object when affidavits are offered or ask permission to cross-examine, or else his silence will be deemed to give consent. By implication, if timely objection is made, affidavits should not be received, at least not without affording an opportunity for cross-examination. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969).

VI. TEMPORARY CUSTODY AND SUPPORT.

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Court Has Inherent Authority to Make Temporary Orders. - A court having jurisdiction of children located within this State has the inherent authority to protect those children and to make such temporary orders as their best interests may require. MacKenzie v. MacKenzie, 21 N.C. App. 403, 204 S.E.2d 561 (1974).

Subdivisions (c)(2) and (d)(2) give the courts jurisdiction to enter temporary custody and support orders for minor children. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982).

Under subdivision (d)(2) of this section, in appropriate cases the court may enter orders for the temporary custody of a child pending the service of process. Zajicek v. Zajicek, 12 N.C. App. 563, 183 S.E.2d 850 (1971); Broaddus v. Broaddus, 45 N.C. App. 666, 263 S.E.2d 842 (1980). See also, Lynch v. Lynch, 45 N.C. App. 391, 264 S.E.2d 114 (1980), aff'd in part and rev'd in part, 302 N.C. 189, 274 S.E.2d 212 (1981), modified on rehearing, 303 N.C. 367, 279 S.E.2d 840 (1981).

Once one of the bases for jurisdiction listed in G.S. 50A-3(a) has been established, the court may enter an ex parte order for temporary custody prior to service of process or notice, if the circumstances of the case render it appropriate. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631 (1985).

Emergency Order Not Warranted. - When defendant filed a motion for emergency custody on the day that plaintiff's five-week summer visitation was to begin, alleging the parties' child was exposed to a substantial risk of bodily injury or sexual abuse, and an immediate order curtailing plaintiff's visitation was necessary pursuant to G.S. 50-13.5(d)(3), trial court did not err in imposing G.S. 1A-1-11(a) sanctions against defendant because defendant presented no evidence to substantiate the allegations of sexual abuse and had filed the motion for the improper purpose of blocking plaintiff's scheduled summer visitation. Lamm v. Lamm, 210 N.C. App. 181, 707 S.E.2d 685 (2011).

Temporary Orders May Be Entered Ex Parte. - Temporary orders under subdivision (c)(2) and (d)(2) of this section may be entered ex parte and prior to service of process or notice. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982); Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452 (1998).

Affidavits may be used as a basis for temporary orders under subdivision (c)(2) and (d)(2) of this section. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982).

If the circumstances of a particular case so require, the court may enter an order for temporary custody, even pending service of process or notice under subsection (d)(1) of this section, and the use of affidavits as a basis for filing necessary facts for such purpose may be appropriate. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969).

There may be occasions when there is considerable urgency for a temporary order for the custody of a child. In such instances, the judge may reach a decision on the basis of affidavits and other evidence produced at a preliminary hearing. The persons who have signed the affidavit are, of course, not present and there is no opportunity to cross-examine them, but this is said not to be objectionable, because the ultimate right of examination will be afforded the parties at the trial of the cause. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Temporary Order Not Rendered Null and Void by Entry Prior to Service. - Clearly, under subdivision (e)(3) of this section, the fact that defendant was not served prior to the court's entry of a temporary order would not thereby render such order null and void. Broaddus v. Broaddus, 45 N.C. App. 666, 263 S.E.2d 842 (1980).

Temporary Custody Order Did Not Become Permanent Order. - Trial court erred in determining a June 2010 temporary custody order had, by operation of time, become a permanent custody order because the temporary order did not determine the issue of visitation, and a permanent custody hearing was set in less than twelve months from the entry of the temporary order; the father would not have been entitled to any visitation with the children if the temporary order had become the permanent order. Woodring v. Woodring, - N.C. App. - , 742 S.E.2d 295 (2013).

Order Was Temporary. - Order granting a father visitation was temporary because it did not determine all the issues a hearing was set within a reasonable time, and the temporary order did not, therefore, become a final order by operation of time. Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013).

VII. VISITATION RIGHTS.

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A. IN GENERAL.

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Visitation rights should not be permitted to jeopardize a child's welfare. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

While a noncustodial parent has a right to reasonable visitation, that right is limited to avoid jeopardizing the child's welfare. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

The award of visitation rights is a judicial function which may not be delegated to the custodial parent. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444 (1985).

Order giving custodial parent exclusive control over visitation will not be sustained. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444 (1985).

Duty of Court to Include Visitation Provision. - Once the parties failed to agree, it was the duty of the trial judge to safeguard defendant's right to visitation by including a provision in its order specifying visitation periods. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444 (1985).

Trial court is not required to make specific findings to support a visitation schedule whenever a party contends the frequency of visitation is not reasonable. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Receipt of Support May Not Be Conditioned on Visitation. - A trial judge does not have authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Enforcement of Visitation Orders. - Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in G.S. 50-13.3, that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Modification of Visitation Order. - Because the trial court's visitation order was a permanent order, the trial court erred by failing to mention its latest permanent order and purporting to modify that older order; Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013).

B. DENIAL OF PARENTS' RIGHTS.

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Presumption In Custody Disputes Between Two Parents. - North Carolina Supreme Court also expressly overrules Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003), and any other Court of Appeals decisions purporting to apply the Petersen v. Rogers presumption in custody disputes between two parents. Routten v. Routten, 374 N.C. 571, 843 S.E.2d 154 (2020), cert. denied, 141 S. Ct. 958, 2020 U.S. LEXIS 5995, 208 L. Ed. 2d 495 (U.S. 2020).

Abandonment as Ground to Deny Visitation Rights. - The general rule is that abandonment, by itself, does not constitute sufficient ground to deny visitation rights completely, and this rule is in accord with the principle adopted by the courts that the purpose of denying custody or visitation rights is not to punish the noncustodial parent. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822 (1980).

Contingent Termination of Visitation. - Where the trial judge had ample evidence before him to justify a conclusion that mother had purposefully engaged in a course of conduct designed to alienate the child's affections for his father, and that these actions were detrimental to the child's welfare, he did not abuse his discretion in fashioning an order directing termination of mother's visitation privilege, pending a court hearing, applicable only on the happening of a certain condition (a repetition of that course of conduct), designed to prevent further harm to the child from this type of behavior. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

Temporary Suspension of Visitation Rights. - Trial court did not abuse its discretion in a child custody matter, in which primary physical custody of the parties' children was awarded to the father, by temporarily suspending the mother's visitation with the children pending their completion of a reunification program designed to repair the children's relationship with the father, which the trial court found had been damaged by the mother's alienating behaviors. Sneed v. Sneed, 261 N.C. App. 448, 820 S.E.2d 536 (2018).

Conditions on Parental Visitation. - Trial court erred in granting a father the exclusive authority to decide when, where, and if the mother had visitation and to decide under whose supervision the mother had visitation because giving the father the exclusive control over the mother's visitation could result in a complete denial of the mother's right, G.S. 50-13.5(i), and delegated a judicial function to the father. Woodring v. Woodring, - N.C. App. - , 742 S.E.2d 295 (2013).

Restrictions on Visitation Rights. - Trial court did not err in making its visitation determinations based upon its inability to determine the noncustodial parent's fitness as a parent, mainly because of the parent's refusal to testify regarding the child pornography allegations. The court stated in its order that it would revisit the issue of visitation once the parent obtained a psychological evaluation and a parenting assessment, and once the court obtained the results of forensic evaluation of the material recovered from the parent's computer. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561 (2016).

Findings Required Where Severe Restrictions Are Placed on Visitation Rights. - Where severe restrictions are placed on a parent's visitation rights with his child, there should be some finding of fact, supported by competent evidence in the record, warranting such restrictions. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822 (1980).

Where hostilities exist between estranged parents, it may be difficult for the noncustodial parent to maintain a relationship with his or her child when required to exercise visitation only in the presence of the other parent or a member of the other parent's family who may share such hostilities. There are, of course, circumstances warranting such restrictions, but if they are imposed, they must be based on appropriate factual findings. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822 (1980).

When severe restrictions are placed on the right of visitation, this section requires the trial judge to make findings of fact supported by competent evidence which warrant the restrictions. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981).

Subsection (i) of this section requires specific findings of fact to justify certain visitation restrictions. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984).

Because the parameters placed on a mother's visitation with the mother's child were not the severe restrictions that effectively denied the right of reasonable visitation, the trial court did not err by entering the court's visitation order without finding that the mother was an unfit person to have reasonable visitation. Evidence supported the finding that the mother's behavior had caused the child stress and been deleterious to the child's well-being so that it was in the best interest of the child that the mother was supervised for extended visits. Paynich v. Vestal, - N.C. App. - , 837 S.E.2d 433 (2020).

When Finding of Unfitness Is Not Necessary. - Trial court may grant full custody to one parent and deny visitation to the other parent, so long as the trial court has entered a written finding of fact that such a custody award is in the best interests of the children, without the need to have determined that the parent who has been denied visitation is a person deemed by the trial court to be unfit to spend time with the children. Routten v. Routten, 374 N.C. 571, 843 S.E.2d 154 (2020), cert. denied, 141 S. Ct. 958, 2020 U.S. LEXIS 5995, 208 L. Ed. 2d 495 (U.S. 2020).

Trial court denied visitation by defendant with the children without a determination that she was unfit; as there was no dispute that the trial court found that visitation with defendant would not be in the best interests of the children, this was a proper standard to apply in resolving the custody and visitation matters. Routten v. Routten, 374 N.C. 571, 843 S.E.2d 154 (2020), cert. denied, 141 S. Ct. 958, 2020 U.S. LEXIS 5995, 208 L. Ed. 2d 495 (U.S. 2020).

Statute identifies two different circumstances in which a parent can be denied visitation, and the disjunctive term "or" in G.S. 50-13.5(i) establishes that either of the circumstances is sufficient to justify the trial judge's decision to deny visitation; in a dispute between two parents, if the trial court determines that visitation with one parent is not in a child's best interests, then the trial court is authorized to deny visitation without a requirement to find the parent in question is unfit. Routten v. Routten, 374 N.C. 571, 843 S.E.2d 154 (2020), cert. denied, 141 S. Ct. 958, 2020 U.S. LEXIS 5995, 208 L. Ed. 2d 495 (U.S. 2020).

In a dispute between two parents with equal parental rights, the trial court must apply the best interest of the child standard to determine custody and visitation questions, and if the court determines that one parent should not be awarded reasonable visitation, the court shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child. Routten v. Routten, 374 N.C. 571, 843 S.E.2d 154 (2020), cert. denied, 141 S. Ct. 958, 2020 U.S. LEXIS 5995, 208 L. Ed. 2d 495 (U.S. 2020).

Visitation Rights Eliminated. - Trial court properly granted sole custody of a child to the mother and eliminated a father's visitation privileges because the findings of fact supported its conclusion that the father could have no direct contact with the child; the trial court did not abuse its discretion in allowing the mother not to inform the father of her and the child's address because the father threatened to kill her, failed to engage in therapy and to benefit from a domestic violence program, and was violent with her. Huml v. Huml, - N.C. App. - , 826 S.E.2d 532 (2019).

Trial court did not abuse its discretion by eliminating a father's access to information because the restriction was based on the specific facts of the case, and the trial court described its rationale in detail; the order was exceptionally detailed, well-organized, and thorough because the trial court noted the factual basis for the restrictions even to obtaining information from third parties and made detailed findings regarding the father's failure to follow the requirements of prior orders. Huml v. Huml, - N.C. App. - , 826 S.E.2d 532 (2019).

Trial court properly granted sole custody of a child to the mother and eliminated a father's visitation privileges because the father consistently refused to take advantage of any opportunity to allow him to resume visitation; the father repeatedly failed to participate in counseling as ordered, to take medication as prescribed, to comply with orders regarding public visitation and with the rules governing supervised visitation, and to protect the child from exposure to domestic violence. Huml v. Huml, - N.C. App. - , 826 S.E.2d 532 (2019).

Findings of Fact. - Trial court properly granted sole custody of a child to the mother and eliminated a father's visitation privileges because its findings of fact were sufficient; the trial court did not find that any inappropriate sexual contact or behavior actually happened but was concerned about the possibility of inappropriate sexual behavior; however, the evidence was not sufficient for the trial court to make a finding it had occurred or had not occurred. Huml v. Huml, - N.C. App. - , 826 S.E.2d 532 (2019).

Findings Held Sufficient. - Finding of trial court that defendant had previously taken minor child to Texas under a false pretense and had subsequently refused to return him to North Carolina was a sufficient and appropriate factual finding to support the court's limitation as to the location of visitation (in North Carolina at plaintiff 's home.) Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444 (1985).

Judge did not err by imposing excessive restrictions on mother's visitations with her son; evidence supported the judge's finding that mother's demonstrations of anger and hostility in the presence of the child and her frustration of the relationship between the child and father necessitated, for the child's best interest, the restrictions the judge imposed on the visitation. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580 (1989).

Trial court erred in suspending a father's visitation because the trial court failed to make written findings of fact regarding the fitness of the father or the best interests of the children, as required by G.S. 50-13.5(i). Maxwell v. Maxwell, 212 N.C. App. 614, 713 S.E.2d 489 (2011).

Trial court found that it would not be in the children's best interests to have any visitation with the father because he confessed that he had engaged in inappropriate sexual behavior with one of his minor daughters; he entered pleas of guilty to five counts of indecent liberties with that minor daughter; and he engaged in grooming behaviors with his other two daughters and inappropriately touched them. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014).

Findings Held Insufficient. - The trial court's findings in a child custody proceeding that respondent mother had abandoned her child and that it would not be in the best interests of the child for him to be carried back and forth between North Carolina, home of the father, and New Jersey, home of the mother, were insufficient to support the trial court's order restricting respondent's visiting privileges, which were limited to one weekend a month, to occasions only when petitioner father or his designated representative was present. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822 (1980).

No competent evidence showed that the father had engaged in any conduct that warranted forfeiture of his visitation rights or that the exercise of his visitation rights would be detrimental to the child's best interest, and the court's factual finding that the motel room where the father lived was an unfit environment for visitation did not support supervised visitation. Hinkle v. Hartsell, 131 N.C. App. 833, 509 S.E.2d 455 (1998).

Where the court merely recited the testimony of witnesses and did not make the required findings of fact, further findings of fact and a determination of the father's parental fitness was needed if he was to be denied all contact with his daughter. Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003).

C. GRANDPARENTS' RIGHTS.

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Standing to Seek Grandparent Visitation. - Paternal grandparents had statutory standing to seek permanent visitation rights, notwithstanding that the father had died, as they had been allowed to intervene when custody between the father and the mother was in dispute. Alexander v. Alexander, - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Modification of Grandparents' Visitation Rights. - Before an order providing visitation for grandparents of a minor child may be modified, the party seeking modification must show changed circumstances and an abuse of discretion by the trial judge. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

Grandparents' Right to Seek Visitation Terminated Upon Death of Daughter/Non-Custodial Parent. - The trial court's jurisdiction over the issues of visitation and custody regarding plaintiff's grandchildren terminated upon the death of plaintiff's daughter, where the son-in-law had exclusive custody. Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559 (2000).

Visitation Rights Survived Termination of Parental Rights. - Trial court erred in concluding a grandmother's visitation rights under a prior custody order did not survive termination of a mother's parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother's parental rights did not extinguish the grandmother's court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, - N.C. App. - , 826 S.E.2d 236 (2019).

Right to File Suit. - Subsection (j) of this section makes it clear that grandparents have the right to file suit for custody or visitation during an ongoing proceeding, but it does not restrict their right to bring an initial custody suit pursuant to G.S. 50-13.1 when there are allegations that the parent is unfit. Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258 (1996).

The grandmother did not have standing under this section to seek visitation rights with her grandchildren, where the children had been adopted by their biological aunt and her husband, and there was no custody dispute. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226 (1998).

There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, or under this section. Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214 (2000).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father's death and the child had not been adopted by a stepparent or relative. Graham v. Jones, - N.C. App. - , 842 S.E.2d 153 (2020).

Grandparents' Rights When Family Intact - Under G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, and 50-13.5(j), a grandparent's right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative - the "intact family" rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child's family is not intact before the grandparent can intervene to request visitation with his grandchild - G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children's family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Lack of Intact Family Was Not Alleged So Grandparent Could Have Standing to Intervene for Visitation - Under G.S. 50-13.5(j), a grandparent was required to, and did not, allege that the wife and the child were not an "intact family" or that the underlying custody controversy had become active; therefore, his complaint did not allege facts to support his claim, so he lacked standing to intervene to gain visitation, and the grant of the motion to dismiss his claim for visitation was appropriate. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).

Single Parent and One Child Can Be Intact Family - Single parent and her child can constitute an "intact family" for the purposes of the intact family rule. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003).


§ 50-13.6. Counsel fees in actions for custody and support of minor children.

In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding; provided however, should the court find as a fact that the supporting party has initiated a frivolous action or proceeding the court may order payment of reasonable attorney's fees to an interested party as deemed appropriate under the circumstances.

History

(1967, c. 1153, s. 2; 1973, c. 323.)

Legal Periodicals. - For survey of 1976 case law on domestic relations, see 55 N.C.L. Rev. 1018 (1977).

For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

For article, "Using Hindsight to Change Child Support Obligations: A Survey of Retroactive Modification and Reimbursement of Child Support in North Carolina," see 10 Campbell L. Rev. 111 (1987).

CASE NOTES

I. IN GENERAL.

Notice and Due Process Considerations. - Although this section and G.S. 50-16.4 provide for attorney's fees in both modification of child support actions and alimony actions, this authority does not override a party's basic constitutional rights to notice and due process considerations. Spencer v. Spencer, 133 N.C. App. 38, 514 S.E.2d 283 (1999).

This section applies to a proceeding to compel the future support of the child. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

And not to a proceeding to compel reimbursement for past payments made by a person secondarily liable for such child's support. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

The legislature set different standards in actions for support and in actions for custody and support in enacting this section. Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996).

This section does not require a determination that one spouse is a dependent spouse and the other a supporting spouse. Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996).

Attorneys' fees are not recoverable in an action for equitable distribution, so that, in a combined action, the fees awarded must be attributable to work by the attorneys on the divorce, alimony and child support actions. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986); Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891 (1987).

Settlement Agreement May Provide for Recovery of Attorney's Fees. - The public policy of this State encourages settlement agreements and supports the inclusion of a provision for the recovery of attorney's fees in settlement agreements. Bromhal v. Stott, 341 N.C. 702, 462 S.E.2d 219 (1995).

Applicability in Action Involving Illegitimate Child. - This section does not apply to civil actions to establish paternity under G.S. 49-14, but would authorize an award of reasonable attorneys' fees for custody and support actions involving an illegitimate child whose paternity has been determined. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), modified on other grounds, 315 N.C. 523, 340 S.E.2d 408 (1986).

Attorneys' fees incurred in prosecuting paternity actions may not be awarded under this section, but may only be assessed as costs under G.S. 6-21(10). Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

G.S. 50-13.6 did not apply to a civil action to establish paternity under G.S. 49-14. Guilford County ex rel. Holt v. Puckett, 191 N.C. App. 693, 664 S.E.2d 362 (2008).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. - Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, - N.C. App. - , 843 S.E.2d 306 (2020).

Contingent Fee Agreements Not Enforceable. - A contract for the payment of a fee to an attorney contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony and/or property awarded is void as against public policy. Such a contract is unenforceable exclusively by virtue of the fact that it violates the public policy of this State. Thompson v. Thompson, 70 N.C. App. 147, 319 S.E.2d 315 (1984), rev'd on other grounds, 313 N.C. 313, 328 S.E.2d 288 (1985).

A trial court has no discretion to award statutory legal fees for services rendered in a child custody and support action pursuant to a contingent fee contract, which is void as against public policy. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, cert. denied, 318 N.C. 414, 349 S.E.2d 593 (1986).

Contingent fee provision in contract between mother seeking child support and attorneys, whose stated purpose was to recover a lump sum award, from which a percentage attorneys' fee would be derived, permeated the entire agreement, as it was the essence of the contract; therefore, the entire contract was void as against public policy. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, cert. denied, 318 N.C. 414, 349 S.E.2d 593 (1986).

But Fees May Be Awarded for Services after Withdrawal of Contract. - Statutory legal fees for services rendered in a child custody and support action may be awarded for the period beginning after illegal contingent fee contract is withdrawn. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, cert. denied, 318 N.C. 414, 349 S.E.2d 593 (1986).

Trial judge is permitted to exercise considerable discretion in allowing or disallowing attorneys' fees in child custody or support cases. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971); Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

The amount awarded as counsel fees also comes within the discretion of the trial judge and will not be disturbed in the absence of an abuse of discretion. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

When the statutory requirements for a custody suit or a custody and support suit have been met, the amount of attorneys' fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980); Patton v. Patton, 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).

In a custody and support action, once the statutory requirements of this section have been met, whether to award attorney's fees and in what amounts is within the sound discretion of the trial judge and is only reviewable based on an abuse of discretion. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900 (1991).

The amount of the award of attorneys' fees is within the discretion of the trial judge and will not be reversed in the absence of an abuse of discretion. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825 (1986).

Court's discretion in disallowing attorneys' fees is limited only by the abuse of discretion rule. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

As to the effect of this section and other statutes on the court's discretion, see Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Binding Effect of Trial Court's Determination Absent Abuse. - The trial court's determination of attorneys' fees is binding on the appellate courts in the absence of abuse of discretion. Wyche v. Wyche, 29 N.C. App. 685, 225 S.E.2d 626, cert. denied, 290 N.C. 668, 228 S.E.2d 459 (1976); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983).

Reviewable Question of Law in Custody and Custody and Support Suits. - Whether the requirements of this section for a custody suit or a custody and support suit have been met is a question of law reviewable on appeal. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980); Patton v. Patton, 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); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

Proof Required to Support Award in Custody and Custody and Support Suits. - In a custody suit or a custody and support suit, the trial judge, pursuant to the first sentence in this section, has the discretion to award attorneys' fees to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. The facts required by the statute must be alleged and proved to support an order for attorneys' fees. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

Trial court found sufficient facts to support an award of attorney's fees to the mother under G.S. 50-13.6 in the father's action seeking child support; because the trial court considered both child custody and child support issues, it was not required to make an additional finding of fact regarding a refusal to provide child support in order to award the mother attorney's fees. Burr v. Burr, 153 N.C. App. 504, 570 S.E.2d 222 (2002).

Award of counsel fees is appropriate whenever it is shown that the spouse is, in fact, dependent, is entitled to the relief demanded, and is without sufficient means whereon to subsist during the prosecution and defray the necessary expenses thereof. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

Award Proper in Case of Frivolous Action. - Evidence of the father's lack of contact with the child after the parties separated was sufficient to support the district court's conclusion that the father's action for custody of the child was frivolous; therefore, the award of attorney's fees to the mother was proper. Doan v. Doan, 156 N.C. App. 570, 577 S.E.2d 146 (2003).

Financial Circumstances. - Trial court erred in awarding attorney fees to a father because it could have misapprehended its ability to consider the financial circumstances of the mother; the order was remanded for the trial court to reconsider its discretionary award, and in exercising its discretion, the trial court could decline to consider the mother's financial situation in light of all of the circumstances of the case or it could consider her financial situation and compare it to the father's situation. Schneider v. Schneider, 256 N.C. App. 228, 807 S.E.2d 165 (2017).

Trial court is not required to consider the financial circumstances of the party ordered to pay attorney fees, but the trial court is allowed, in its discretion, to consider the financial circumstances of the party ordered to pay and to compare the financial situations of the parties. Schneider v. Schneider, 256 N.C. App. 228, 807 S.E.2d 165 (2017).

Consideration of Estate. - Trial court, in ruling on a motion for attorney's fees in a child custody and support action, may determine that a party has sufficient means to defray the cost of the action without considering the estate of the other party. Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996).

Requirement of Insufficient Means. - Before attorneys' fees may be awarded in an alimony case to the dependent spouse under G.S. 50-16.3 and G.S. 50-16.4, and before attorneys' fees may be awarded to the interested party in a custody, support, or custody and support suit under this section, that person must have insufficient means to defray the expense of the suit; that is, he or she must be unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980); Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Sufficient Allegations of Insufficient Means. - Allegations that plaintiff was the dependent spouse and that she had insufficient means to support the children during the pendency of the suit were sufficient to support an award of counsel fees under this section. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663 (1979).

Required Facts Must Be Found and Proved. - Before attorneys' fees can be taxed under this section, the facts required by the section, that movant (1) is acting in good faith, and (2) has insufficient means to defray the expenses of the suit, must be both alleged and proved. Allen v. Allen, 65 N.C. App. 86, 308 S.E.2d 656 (1983), cert. denied, 310 N.C. 475, 312 S.E.2d 881 (1984).

An order for attorneys' fees pursuant to this section in an action for child custody or support, or both, must be supported by findings, required by the statute, that the party seeking the award is (1) an interested party acting in good faith and (2) has insufficient means to defray the expense of the suit. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825 (1986).

Before awarding attorneys' fees, the trial court must make specific findings of fact concerning: (1) The ability of the movants to defray the cost of the suit, i.e., that the movants are unable to employ adequate counsel in order to proceed as a litigant to meet the other litigants in the suit; (2) the good faith of the movants in proceeding in the suit; (3) the lawyer's skill; (4) the lawyer's hourly rate; and (5) the nature and scope of the legal services rendered. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, cert. denied, 318 N.C. 415, 349 S.E.2d 590 (1986).

In order to be awarded attorneys' fees in an action for divorce, alimony, custody and child support, a spouse must be found to be a dependent spouse in addition to being found to be unable to defray the expense of the suit. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

In order to award attorneys' fees in an action involving only child support, the trial court must find as fact that (1) the interested party (a) acted in good faith and (b) has insufficient means to defray the expenses of the action and further, that (2) the supporting party refused to provide adequate support under the circumstances existing at the time of the institution of the action or proceeding. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

An award of attorney's fees to the father was not supported by sufficient factual findings, where the trial court concluded that the father did not have sufficient assets with which to pay his attorney's fees and that the mother did have the means to pay, but there were no findings as to father's monthly income or expenses, and no explicit finding that he acted in good faith in instituting a civil contempt action. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

Trial court did not err in awarding attorney's fees to plaintiff for previous appeal where they were not mentioned in remand instruction because trial court made necessary findings required by statute; plaintiff's motion for modification of custody and support was filed in good faith, defendant was paying inadequate amount of child support, defendant had refused to mediate issue, and plaintiff had insufficient means to defray expense of suit. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356 (2013), review denied, 753 S.E.2d 678, 2014 N.C. LEXIS 46 (2014), review dismissed, as moot, 753 S.E.2d 679, 2014 N.C. LEXIS 50 (2014).

Trial court failed to make any findings in its order as to whether plaintiff had acted in good faith and whether defendant refused to provide adequate child support, and the findings of fact, without more, were insufficient to support an award of attorney fees to plaintiff; the trial court failed to make sufficient findings of fact upon which a determination of the requisite reasonableness could be based, and the trial court also failed to make findings regarding the nature and scope of the legal services rendered to support its award. Davignon v. Davignon, 245 N.C. App. 358, 782 S.E.2d 391 (2016).

Reasonableness as Key Factor. - Reasonableness, not arbitrary classification of attorney activity, is the key factor under all the attorneys' fees statutes. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).

Order Must Contain Factual Findings. - A proper order under this section must contain factual findings upon which a determination of the reasonableness of the counsel fees might be based, e.g., findings as to the nature and scope of the legal services rendered, and the time and skill required. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985); Patton v. Patton, 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).

The trial court made insufficient findings relative to its award of attorneys' fees where it failed to take into account the plaintiff's liquid estate of $88,000 and focused instead on her negative disposable income and where it failed to determine whether she was an interested party acting in good faith, required for actions involving child support. Bookholt v. Bookholt, 136 N.C. App. 247, 523 S.E.2d 729 (1999).

In a father's appeal from a child custody and support order, although the trial court denied a mother's request for attorneys' fees under G.S. 50-13.6, it made no findings relating to that denial, such as whether the mother acted in good faith or whether she had insufficient means to defray the expense of the suit. Consequently, the case was remanded for entry of proper factual findings to support the trial court's decision regarding the mother's request for attorneys' fees. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006).

In a custody dispute, a trial court abused its discretion in awarding a father reasonable attorney's fees, G.S. 50-13.6, because the trial court failed to make findings of fact supported by evidence that the father did not have sufficient means to employ counsel and the mother had sufficient disposable income to pay the father's attorney's fees; although information regarding the father's gross income and employment was present in the record in the father's testimony, there were no findings in the trial court's order which detailed the information. Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299 (2012), review denied, 743 S.E.2d 191, 2013 N.C. LEXIS 552 (2013).

Although the trial court was not required to find that the father had resources available in order to award attorney's fees to the mother, the trial court erred in awarding attorney's fees to the mother without determining whether the mother had insufficient means to defray the cost of counsel. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014).

Trail court's order awarding attorney fees to the father failed to make any findings regarding the reasonableness of the attorney fees, as it did not make any findings as to nature and scope of the legal services rendered, the sill and time required, the attorney's hourly rate, or its reasonableness in comparison with that of other lawyers. Lueallen v. Lueallen, 249 N.C. App. 292, 790 S.E.2d 690 (2016).

Trial court's award of attorney's fees to a mother was vacated because the trial court failed to make any of the requisite findings necessary to award attorney's fees. Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700 (2017).

Findings of Fact Must Support Reasonableness of Fees. - G.S. 50-16.4 and this section permit the entering of a proper order for reasonable counsel fees for the benefit of a dependent spouse, but only where the record contains findings of fact, such as the nature and scope of the legal services rendered and the skill and time required, upon which a determination of the requisite reasonableness could be based. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

The trial court erred in failing to make findings of fact as to the reasonableness of the attorneys' fees incurred by the plaintiff after requesting and receiving a detailed affidavit from the plaintiff's counsel setting forth the nature and scope of the legal services. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663 (1979).

To support an award of attorneys' fees, the trial court should make findings as to the lawyer's skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

As this section requires that awards of attorneys' fees be reasonable, cases construing the statute have in effect annexed a fifth requirement concerning reasonableness onto the express statutory ones; namely, that the record must contain findings of fact upon which a determination of the requisite reasonableness can be based, for example, findings pertaining to the nature and scope of the legal services rendered and the skill and time required. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

Because this section allows for an award of reasonable attorneys' fees, cases construing the statute have in effect annexed an additional requirement concerning reasonableness onto the express statutory ones. Thus, the record must contain additional findings of fact upon which a determination of the requisite reasonableness can be based, such as findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorneys' hourly rate, and its reasonableness in comparison with that of other lawyers. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825 (1986).

An order awarding counsel fees in a child support or alimony action must contain a finding or findings upon which a determination of the reasonableness of the award can be based, such as the nature and scope of the legal services rendered, the time and skill required, and the attorney's hourly rate in comparison to the customary charges of attorneys practicing in that general area. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).

Partial listing of legal expenses is an insufficient finding of fact as to the reasonable worth of attorneys' fees. Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, aff'd, 35 N.C. App. 650, 242 S.E.2d 180 (1977).

Fees Where Increase in Support Not Warranted. - The court would abuse its discretion if, after determining that an increase in the award of child support was not warranted under the circumstances, it nevertheless proceeded to award attorneys' fees to plaintiff. Walker v. Tucker, 69 N.C. App. 607, 317 S.E.2d 923 (1984).

Merit Bonus. - While the quality of services rendered is properly considered in awarding fees, as well as the nature of the services required, and hence the scope and complexity of the case, there is no North Carolina authority for an award of a "merit bonus." Even assuming such bonuses are allowed, as under federal practice, that should occur only in the rare case where the applicant specifically shows superior quality representation and exceptional success. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).

Remand for Lack of Evidence as to Reasonableness. - Where an award of counsel's fees was based on attorney's affidavit stating the number of hours spent on the case, but there was no evidence before the trial court as to the nature and scope of the legal services and the skill and time required, the award was not sufficiently based, and would be vacated and remanded. Rickenbaker v. Rickenbaker, 21 N.C. App. 276, 204 S.E.2d 198 (1974).

Order awarding attorneys' fees which failed to satisfy requirement of findings as to the lawyer's skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent was insufficient and case would be remanded for appropriate findings as to attorneys' fees. Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985).

Where trial judge made no finding of good faith by plaintiff and no indication of what portion of attorney fees was attributable to custody and support aspects of case, award of attorneys' fees would be vacated and the case remanded for further proceedings on that issue. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).

Findings supported plaintiff's good faith and that plaintiff had insufficient means to defray the expense of this heavily litigated child custody dispute, and while the trial court also made extensive findings concerning the nature of the legal services rendered, the trial court failed to make the findings of fact necessary for a determination regarding what amount of fees were reasonably incurred as the result of litigation by the grandparents as intervenors, requiring remand. Sullivan v. Woody, - N.C. App. - , 843 S.E.2d 306 (2020).

Multiple awards of counsel fees in the same domestic action are, in the proper circumstances, within the court's discretion to allow. Patton v. Patton, 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).

Legitimate work by counsel in precursory activity is allowable within an attorneys' fee award in connection with a domestic case. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825 (1986).

Unreasonable Depletion of Separate Estate Not Intended. - It would be contrary to the intent of the legislature to require one seeking an award of attorneys' fees to meet the expenses of litigation through the unreasonable depletion of her separate estate, where her separate estate is smaller than that of the other party. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825 (1986).

Findings Held Insufficient. - Factual findings on award of attorneys' fees were deficient as to child support where there was no finding that the supporting spouse refused to provide adequate support under the circumstances existing at the time the action was initiated, and as to both alimony and child support, where there were no factual findings upon which a determination of the reasonableness of the award could be based, other than the trial court's statement that the time expended was "reasonably necessary." Patton v. Patton, 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).

Award of Fees Not Proper. - Since the merits of custody modification case were not considered, an award of attorney fees under G.S. 50-13.6 was not permitted. Hausle v. Hausle, 226 N.C. App. 241, 739 S.E.2d 203 (2013).

In a child support case, a mother was not awarded attorney's fees because she had the means to defray the cost of the litigation; moreover, the father did not refuse to provide support which was adequate under the circumstances. The record indicated that the father complied with the terms of an agreement directing him to make child support payments; in fact, he voluntarily made support payments in excess of what he was required to pay. Hinshaw v. Kuntz, 234 N.C. App. 502, 760 S.E.2d 296 (2014).

Trial court erred by awarding the wife attorney fees for the modification of child support because the husband was still paying his full obligation at the time of the institution of both motions to modify child support and by awarding fees without specifying the basis. Hill v. Hill, 261 N.C. App. 600, 821 S.E.2d 210 (2018).

Award of Fees Held Error. - The trial court erred in requiring plaintiff father to pay counsel fees of defendant mother for a hearing upon defendant's motion for an increase in the amount of child support payments made by plaintiff, where there was no showing or finding that at the time of the hearing defendant was a dependent spouse. Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972), decided prior to the 1973 amendment to this section.

Where the trial court failed to make a finding of fact with respect to the wife's ability to defray the expense of the suit, as required by this section, the court abused its discretion in ordering plaintiff husband to pay attorneys' fees. Nolan v. Nolan, 20 N.C. App. 550, 202 S.E.2d 344, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974); Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663 (1979).

The trial court could not order defendant to pay plaintiff's attorney for the time spent in representing her on a contempt citation stemming from her violation of defendant's court-ordered visitation rights. Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980).

For additional case in which award of fees was held error, see Norton v. Norton, 76 N.C. App. 213, 332 S.E.2d 724 (1985).

Findings were inadequate to support an award for payment of attorneys' fees where trial court failed to make specific findings of fact required by statute and case law and instead found only that plaintiff did not have the ability to defray the costs and expenses to employ adequate representation, that the attorney had provided valuable services, and that the attorney expended in excess of five hours representing plaintiff. Cameron v. Cameron, 94 N.C. App. 168, 380 S.E.2d 121 (1989).

Where plaintiff introduced affidavits of her legal expenses but trial court made no findings on all the factors required under this section, award of attorneys' fees was vacated. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

While attorney fees were proper for a prospective child support claim and for a claim for recovery reasonable and necessary medical expenses, they were erroneously imposed for a retroactive child support claim, which was not warranted by applicable law. Carson v. Carson, 199 N.C. App. 101, 680 S.E.2d 885 (2009).

Reversal of Fee Award Where Increase in Support Reversed. - Where that part of order increasing child support payments was reversed, the award of attorneys' fees also had to be reversed. Mullen v. Mullen, 79 N.C. App. 627, 339 S.E.2d 838 (1986).

Where both of plaintiff's attorneys, who represented her in the custody and support hearings, submitted detailed affidavits of their experience, time, and preparation of the case, the trial judge properly found that an attorneys' fee of $80.00 per hour for 75 and 10 hours of time respectively was a reasonable amount to award for time spent on the issue of support only. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900 (1991).

Trial Court Erred in Considering Relative Estates of Parties. - Where the evidence failed to show that defendant did not have ample income to defry the expenses of the action and would have been required to deplete her estate to pay expenses, the trial court erred in considering the relative estates of the parties in assessing the defendant's ability to employ "adequate" counsel. Van Every v. McGuire, 125 N.C. App. 578, 481 S.E.2d 377 (1997), aff'd, 348 N.C. 58, 497 S.E.2d 689 (1998).

Award of Fees Appropriate. - The trial court did not err in requiring father to pay reasonable attorneys' fees of mother in a habeas corpus proceeding to determine the custody of their minor children, where custody of the children had been awarded to mother by both North Carolina and South Carolina courts, and father's failure to return the children to mother in South Carolina after a visit in this State forced mother to come to this State to secure their return, and father was not providing support for the children as he had been ordered. In re Hopper, 11 N.C. App. 611, 182 S.E.2d 228, cert. denied, 279 N.C. 727, 184 S.E.2d 884 (1971).

Where district court found that defendant acted in good faith and could not defray the expenses of lawsuit without impoverishing herself, and the plaintiff had not furnished adequate support for several months, the findings were sufficient to support award of attorney's fees. Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113 (1998).

Where father unilaterally terminated child support payments after his son reached the age of 18 and failed to make satisfactory progress towards graduation from high school, the support payments were improperly terminated and father was properly ordered to pay the mother's attorney's fees. Leak v. Leak, 129 N.C. App. 142, 497 S.E.2d 702 (1998), cert. denied, 348 N.C. 498, 510 S.E.2d 385 (1998).

Attorney fees were properly awarded to the father in a child custody case, where the trial court made factual findings as to the parties' financial resources, that the father was an interested party acting in good faith, and as to father's attorney's skill, rates, and rendition of services. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).

Trial court did not err in awarding attorney's fees to plaintiff's counsel where defendant had substantial assets, retirement and investment accounts, a home, an aircraft, a boat and a business, and plaintiff had a $41,000 income plus $2,000 in modest bank accounts. Burnett v. Wheeler, 133 N.C. App. 316, 515 S.E.2d 480 (1999).

Trial court could order the husband to pay the wife's attorney's fees incurred in seeking to have the husband held in contempt, even though he could not be held in civil contempt due to obeying the trial court's orders prior to the contempt hearing, where the trial court found: (1) the wife was acting in good faith; (2) she had insufficient means to pay her attorney's fees; and (3) the attorney's fees were reasonable. Reynolds v. Reynolds, 147 N.C. App. 566, 557 S.E.2d 126 (2001), cert. denied, 355 N.C. 493, 563 S.E.2d 567 (2002).

There was sufficient evidence to support the trial court's finding of the wife's inability to defray the cost of litigation in a divorce proceeding as she had been paying all of the uninsured medical expenses for the past two years and had outstanding balances on those expenses at the time of the hearing. Leary v. Leary, 152 N.C. App. 438, 567 S.E.2d 834 (2002).

In an action by a mother to modify a father's child support pursuant to G.S. 50-13.7(a), the trial court properly granted attorney's fees to the mother pursuant to G.S. 50-13.6, because the trial court specifically found as a fact that the mother was a party acting in good faith to obtain reasonable support for her daughter, that the mother lacked sufficient means to pay her attorney fees, and that the father refused to provide support which was reasonable under the circumstances. Mason v. Erwin, 157 N.C. App. 284, 579 S.E.2d 120 (2003).

Order that the father pay attorneys' fees was proper because the action involved both child custody and child support, and the trial court based its calculation on an extensive discussion with the mother's counsel as well as careful consideration of the attorneys' affidavit stating the number of hours he worked on the custody and support claims. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005).

Attorney's fee award in favor of the mother in a child custody and support action was proper because, inter alia, the affidavit and detailed billing records submitted in support of the request, along with the husband's stipulation as to reasonableness of counsel's hourly rate, supported the award. Attorney fee award was not used as punishment but was based upon mother's insufficient means to defray expense of suit. Kuttner v. Kuttner, 193 N.C. App. 158, 666 S.E.2d 883 (2008).

Trial court did not abuse its discretion in ordering the father to pay $40,000 of the maternal grandparents' attorneys' fee, where the fees were sought because of the father's failure to cooperate with the grandparents regarding visitation, the father did not object to the evidence offered at trial, and the trial court found that the father had the ability to pay those fees. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009).

Trial court properly awarded a wife attorneys' fees under G.S. 50-13.6 following husband's unsuccessful, frivolous motion for contempt alleging that the wife had failed to give notice of the weeks she intended to have visitation over the summer. Additionally, fees were appropriate because the wife proceeded in good faith and did not have sufficient means to defray the costs. Wiggins v. Bright, 198 N.C. App. 692, 679 S.E.2d 874 (2009).

Entire amount of an arrearage claim and the attorney's fees owed to dependent former spouse were domestic support obligations as defined in 11 U.S.C.S. § 101(14A), and thus were allowable under 11 U.S.C.S. § 502(b)(5), and entitled to first priority status, under 11 U.S.C. § 507(a)(1)(A). The attorney's fees had been awarded under G.S. 50-13.6, and the arrearage was allowed under 11 U.S.C.S. § 1322(b)(5). In re Peterson, - Bankr. - (Bankr. E.D.N.C. Nov. 29, 2012).

Trial court properly awarded attorney's fees to a former wife under the statute because its findings that the wife's actions were filed in good faith and that she had insufficient means to defray the costs of her action were supported by the wife's affidavits; the attorney's fees provision in the separation agreement did not apply because there was no determination of a breach of the agreement or order for specific performance. Hennessey v. Duckworth, 231 N.C. App. 17, 752 S.E.2d 194 (2013).

Wife was properly awarded attorney fees related to her successful child custody claim. Comstock v. Comstock, 240 N.C. App. 304, 771 S.E.2d 602 (2015).

Former wife was entitled to attorney's fees because (1) the former wife filed a custody action in good faith, despite the former wife's parental deficiencies, and (2) the former wife had insufficient means to defray suit costs, given the former wife's income and lack of personal assets. Setzler v. Setzler, 244 N.C. App. 465, 781 S.E.2d 64 (2015).

Father was properly ordered to pay a mother's attorney's fees because the trial court made statutorily required findings as well as findings of the reasonableness of the award. Summerville v. Summerville, 259 N.C. App. 228, 814 S.E.2d 887 (2018).

Order requiring a husband to pay a wife's attorney's fees was not an abuse of discretion because (1) the court properly relied on pleadings and the court record, including uncontested custody and support orders and a motion to continue, (2) disparity of financial resources was not a required consideration, and (3) detailed findings supported the conclusion that the wife was a dependent spouse with insufficient means to defray litigation costs. Beasley v. Beasley, 259 N.C. App. 735, 816 S.E.2d 866 (2018).

Award of attorney's fees to a mother was appropriate because, although the parties settled their custody dispute by consent order in a manner more favorable to the father than to what the mother sought, the mother acted in good faith in defending against the father's child custody and child support claims and in pursuing counterclaims. Moreover, because the father's monthly income was several times more than the mother's income, and the mother had recently declared bankruptcy, the mother had insufficient means to defray the expense of the suit. Conklin v. Conklin, 264 N.C. App. 142, 825 S.E.2d 678 (2019).

Award Within Discretion of Trial Court. - Award of appellate attorney's fees in matters of child custody and support, as well as alimony, is within discretion of trial court; this holding applies to any appeal of child custody or support order, whether order is interlocutory or final. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356 (2013), review denied, 753 S.E.2d 678, 2014 N.C. LEXIS 46 (2014), review dismissed, as moot, 753 S.E.2d 679, 2014 N.C. LEXIS 50 (2014).

Denial of Fees Upheld. - Respondent in a child custody proceeding was not entitled to an award of counsel fees or to have court costs taxed against petitioner father, where respondent introduced no evidence with respect to her dependent status or inability to defray the expense of the suit, and where she was not the party for whom judgment had been given. In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, cert. denied, 283 N.C. 585, 196 S.E.2d 809 (1973).

Where defendant complied with all orders that directed him to make child support payments, and when necessary defendant voluntarily made payments for the support of the parties' children, it was not an abuse of discretion for the trial court to deny plaintiff's motion for an award of attorneys' fees. Prescott v. Prescott, 83 N.C. App. 254, 350 S.E.2d 116 (1986).

Disallowance of Fees As Matter of Law Held Improper. - The trial court, in its discretion, was fully authorized to disallow attorneys' fees for defendant's counsel, but to disallow such fees as a matter of law was error. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Entitlement to Legal Representation Not Limited to Trial Level. - There is nothing in our statutory or case law to suggest that a dependent spouse in this State is entitled to meet the supporting spouse on equal footing, in terms of adequate and suitable legal representation, at the trial level only. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

Award of attorneys' 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. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

Award of Fees by Appellate Court. - Neither this section nor any other statute authorizes an appellate court to make an award of attorneys' fees. Tilley v. Tilley, 30 N.C. App. 581, 227 S.E.2d 640 (1976).

Distinction Between Taxing Fees as Costs and Ordering Payment. - As to the difference between including attorney fees in the costs taxed against a party to a lawsuit and in ordering the payment of attorneys' fees, see Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).

A request for attorneys' fees may be properly raised by a motion in the cause subsequent to the determination of the main custody action. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, cert. denied, 318 N.C. 415, 349 S.E.2d 590 (1986).

Time for Motion. - Where intervenors' motion for attorneys' fees was made approximately four months after the trial court had entered order awarding custody to the intervenors, and approximately four months after county division of social services had filed its notice of appeal to that order, the trial court lacked jurisdiction to consider the intervenors' motion. However, following resolution of the appeal of the custody order, the trial court could consider intervenors' motion for attorneys' fees. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, cert. denied, 318 N.C. 415, 349 S.E.2d 590 (1986).

Reservation of Issue of Fees when Judgment Rendered. - Since the trial court expressly reserved the issue of attorney's fees at the time it rendered judgment as to the custody matters before it, it retained the authority to consider the issue since attorney's fees were within the court's "oral announcements." Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661 (1993).

Review of Attorney's Fees on Appeal. - While whether the statutory requirements have been met is a question of law, reviewable on appeal, the amount of attorneys' fees is within the sound discretion of the trial judge and is only reviewable for an abuse of discretion. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985).

The findings required by this section must be supported by competent evidence and are fully reviewable on appeal. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

The trial court committed error in failing to make adequate findings of fact to support its denial of attorney's fees. Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911 (1993).

Judicial Notice of Rates of Local Attorneys. - Denial of a mother's motion for attorney fees was error because, contrary to the trial court's finding, it was not barred from taking judicial notice of customary rates of local attorneys under G.S. 8C-1-201(b); trial court's belief that it lacked authority to apply judicial notice was instrumental in its decision. Simpson v. Simpson, 209 N.C. App. 320, 703 S.E.2d 890 (2011).

Applied in Williams v. Williams, 12 N.C. App. 170, 182 S.E.2d 667 (1971); Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282 (1973); Sawyer v. Sawyer, 21 N.C. App. 293, 204 S.E.2d 224 (1974); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975); Tidwell v. Booker, 27 N.C. App. 435, 219 S.E.2d 648 (1975); Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542 (1976); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976); Lindsey v. Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979); Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205 (1983); Darden v. Darden, 66 N.C. App. 432, 311 S.E.2d 600 (1984); Forbes v. Forbes, 72 N.C. App. 684, 325 S.E.2d 272 (1985); Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990); Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176 (1992).

Cited in Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970); Andrews v. Andrews, 12 N.C. App. 410, 183 S.E.2d 843 (1971); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971); Winters v. Winters, 11 N.C. App. 595, 181 S.E.2d 604 (1971); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640 (1979); Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986); In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986); Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988); McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495 (1988); Glatz v. Glatz, 98 N.C. App. 324, 390 S.E.2d 763 (1990); Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990); Van Every v. McGuire, 125 N.C. App. 578, 481 S.E.2d 377 (1997), aff'd, 348 N.C. 58, 497 S.E.2d 689 (1998); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999); Eakes v. Eakes, 194 N.C. App. 303, 669 S.E.2d 891 (2008); Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011); Brown's Builders Supply, Inc. v. Johnson, 240 N.C. App. 8, 769 S.E.2d 653 (2015); Savage v. Zelent, 243 N.C. App. 535, 777 S.E.2d 801 (2015); Williams v. Chaney, 250 N.C. App. 476, 792 S.E.2d 207 (2016).

II. ACTIONS FOR SUPPORT ONLY.

Second Sentence of Section Is Limited to Support Actions. - The General Assembly, having limited the second sentence to support actions, apparently did not intend the requirement to apply to custody or custody and support actions. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975).

Finding Under Second Sentence Is Required Only in Support Actions. - The duty to make the required finding under the second sentence of this section is imposed only in a support action. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975).

And Not in Custody or Custody and Support Actions. - The requirement of a finding that the party ordered to pay support has refused to provide support applies only in support actions and not in custody or custody and support actions. Arnold v. Arnold, 30 N.C. App. 683, 228 S.E.2d 48 (1976). See also, Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977).

Where cause was heard upon plaintiff's motion for an increase in child support payments and upon defendant's motion for a modification of the child custody order, the trial court's award of attorney fees did not have to be supported by a finding that defendant, the party ordered to furnish support, had refused to provide support which was adequate at the time of the institution of the action. Fellows v. Fellows, 27 N.C. App. 407, 219 S.E.2d 285 (1975).

This section requires, in a child support action, a finding that defendant refused to provide support. In an action for custody and support, findings of fact are not required to sustain an award for counsel fees. Walker v. Walker, 38 N.C. App. 226, 247 S.E.2d 615 (1978).

Findings Required in Action for Support. - A finding of fact supported by competent evidence must be made on the issue of whether the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding, in addition to meeting the requirements of "good faith" and "insufficient means," before attorneys' fees may be awarded in a support suit. This issue is a question of law, reviewable on appeal. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

Before a court can award attorneys' fees to an interested party under this section in a motion in the cause proceeding for a modification of child support, the court must make the following three findings of fact: (1) the party is acting in good faith; (2) the party has insufficient means to defray the expenses of the suit; and (3) the party ordered to pay support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding. Quick v. Quick, 67 N.C. App. 528, 313 S.E.2d 233 (1984).

The text of this section sets out four requirements to support an award of attorneys' fees, namely: (1) that the party awarded fees be an interested party; (2) that that party be acting in good faith; (3) that that party have insufficient means to defray the expense of the suit; and (4) that the party ordered to furnish support have refused to provide adequate support under the circumstances existing at the time the action was instituted. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984).

Where the action is one for custody or custody and support, the first sentence of this section applies, and the court may award attorneys' fees to an interested party if it finds (1) that the party acted in good faith and (2) that the party lacks the means to defray the expense of the suit. Where the action is solely one for support, attorneys' fees may be awarded provided the court finds, in addition, that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of institution of the action or proceeding. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99 (1984).

In actions for support only, the court may award reasonable attorneys' fees to a party if it finds: (1) that the party is acting in good faith; (2) that the party has insufficient means to defray the costs of the action; and (3) that the party ordered to pay support had not provided adequate support under the circumstances existing at the time of the institution of the action or proceeding. Plott v. Plott, 72 N.C. App. 82, 327 S.E.2d 273 (1985).

To award attorneys' fees in a child support action, the trial court must find as fact that: (1) The interested party (a) acted in good faith and (b) has insufficient means to defray the expenses of the action; and (2) the supporting party refused to provide adequate support "under the circumstances existing at the time of the institution of the action or proceeding." Moreover, the required findings of fact must in turn be supported by competent evidence, such as that of the parties' incomes, estates and debts. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Where trial court's order was devoid of any statutorily required findings of fact, the award of attorneys' fees could not stand. Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

Case would be remanded where trial court failed to make specific findings that: (1) the mother was acting in good faith; (2) the mother's means were insufficient to defray the expenses of the suit; and (3) the father refused to provide the child support which was adequate under the circumstances existing at the time of the action. Thomas v. Thomas, 134 N.C. App. 591, 518 S.E.2d 513 (1999).

After the father had been found to be in contempt due to his failure to pay child support, the trial court made sufficient findings of fact to support an award of attorney's fees to the mother under G.S. 50-13.6, despite the fact that there was no finding that the mother was an interested party with insufficient means to defray the cost of the litigation; under G.S. 50-13.4(c), the children's ability to pay attorney's fees was at issue, not the mother's, and the mother was an interested party under G.S. 50-13.6, as she provided the financial support in the absence of the husband. Belcher v. Averette, 152 N.C. App. 452, 568 S.E.2d 630 (2002).

In a child support and alimony modification case, there was no dispute that the husband had stayed current with his child support payments, and had in fact overpaid; therefore, although the amount of child support was modified, the wife was not entitled to attorney's fees under this section. Parsons v. Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013).

Mother appeared to have met the statutory requirements but the trial court made no findings on the factors, and thus, the court of appeals could not review the denial of attorney fees; the father refused to provide support adequate under the circumstances existing at the time of institution of the action, and the trial court's findings had address each of the four statutory factors on remand. Crews v. Paysour, 261 N.C. App. 557, 821 S.E.2d 469 (2018).

Comparison of Parties' Estates. - Plaintiff requested the court to consider and compare the parties' estates when reviewing the trial court's award of attorney's fees, but case law held that the statute did not require the trial court to compare the relative estates of the parties. Sarno v. Sarno, 255 N.C. App. 543, 804 S.E.2d 819 (2017).

Insufficient Means to Defray Expense of Suit. - Trial court erred in awarding attorney fees to a mother following a child custody dispute because, although she testified she would soon be leaving her university position in the following months, the trial court was required to calculate her earnings as they existed at the time of the hearing, not as they would allegedly stand in the future, and, had the trial court correctly calculated the mother's monthly earnings from employment, the amount would have exceeded her monthly expenses, and the court could not have properly determined whether the mother had "insufficient means" to defray the costs of the suit. Sherrill v. Sherrill, - N.C. App. - , 846 S.E.2d 336 (2020).

Plaintiff's contention that proceeding was solely one for support was without merit, where plaintiff's modification motion initially put the issue of custody before the court, even though the issue of custody was quickly settled by agreement. Theokas v. Theokas, 97 N.C. App. 626, 389 S.E.2d 278, cert. denied, 327 N.C. 437, 395 S.E.2d 697 (1990).

Court estimates of time required and attorney's hourly rate are not sufficient. - Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Award Upheld. - Trial court order requiring mother to pay $2,500 to the father of the parties' three minor children was proper because the three children resided with the father, along with his new wife and three other children, the father had inadequate monthly income, and the attorneys' fees were reasonable. The fees were found to have been increased as a result of the mother's failure to contribute a reasonable sum to the support of the children after being asked to do so. Roberts v. McAllister, 174 N.C. App. 369, 621 S.E.2d 191 (2005), appeal dismissed, - N.C. - , 629 S.E.2d 608 (2006).

Trial court's order for fees met the statutory requirements, as it found that defendant was an interested party acting in good faith and had insufficient means to defray the expense of the suit; in the findings, the trial court noted defendant's gross income, how he had borne all of the expenses associated with the child while in his primary care, and his attorney filed an affidavit, outlining costs and fees incurred by defendant in the action. Sarno v. Sarno, 255 N.C. App. 543, 804 S.E.2d 819 (2017).

Trial court's decision to award attorney's fees for defendant's response to the petition for writ of mandamus was not manifestly unsupported by reason; although the petition might have been moot, it could not be said that defendant's filing was wholly unnecessary, and it was in the discretion of the trial court to award fees for this filing. Sarno v. Sarno, 255 N.C. App. 543, 804 S.E.2d 819 (2017).

Trial court did not abuse its discretion in ordering attorneys' fees because there was evidence to support its determination as to the reasonableness and amount of attorneys' fees; the mother's counsel presented evidence of supplemental attorney's fees and expenses in connection with the matter, and the trial court found the amount reasonable. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

Original award of attorneys' fees was not unreasonable and did not otherwise constitute an abuse of discretion because the trial court noted that the mother had the means and ability to defray a large portion of the expenses of the suit, and the award would be both just and within the father's ability to pay. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

§ 50-13.7. Modification of order for child support or custody.

  1. An order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested subject to the limitations of G.S. 50-13.10. Subject to G.S. 50A-201, 50A-202, and 50A-204, an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.
  2. When an order for support of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support that modifies or supersedes the order for support, subject to the limitations of G.S. 50-13.10. Subject to G.S. 50A-201, 50A-202, and 50A-204, when an order for custody of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and a showing of changed circumstances, enter a new order for custody that modifies or supersedes the order for custody.

History

(1858-9, c. 53; 1868-9, c. 116, s. 36; 1871-2, c. 193, s. 46; Code, ss. 1296, 1570, 1661; Rev., ss. 1570, 1853; C.S., ss. 1664, 2241; 1929, c. 270, s. 1; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1953, c. 813; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1979, c. 110, s. 13; 1981, c. 682, s. 12; 1987, c. 739, s. 3; 1999-223, s. 13; 2007-175, s. 1; 2021-88, s. 6.)

Cross References. - As to the vesting of past due child support payments, see G.S. 50-13.10.

As to distribution by court of marital property upon divorce, see G.S. 50-20.

For the Uniform Child Custody Jurisdiction Act, see G.S. 50A-1 et seq.

Editor's Note. - Subsection (a), as amended by Session Laws 2007-175, s. 1, effective October 1, 2007, is applicable to custody or visitation actions instituted on or after that date.

G.S. 50-13.7A, referred to in subsection (a), was repealed by Session Laws 2013-27, s. 2, effective October 1, 2013. For present provisions pertaining to consideration of a parent's military service, see G.S. 50-13.2(f) and G.S. 50A-350 et seq., the Uniform Deployed Parents Custody and Visitation Act.

Effect of Amendments. - Session Laws 2007-175, s. 1, effective October 1, 2007, and applicable to custody or visitation actions instituted on or after that date, inserted "Except as otherwise provided in G.S. 50-13.7A" at the beginning of subsection (a).

Session Laws 2021-88, s. 6, effective July 22, 2021, in subsection (a), substituted "An order” for "Except as otherwise provided in G.S. 50-13.7A, an order” and deleted "the provisions of” preceding "G.S. 50A-201”; and in subsection (b), substituted "that modifies” for "which modifies” two times, and "the order” for "such order” two times, and deleted "the provisions of” preceding "G.S. 50A-201.”

Legal Periodicals. - For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For survey of 1972 case law on child support and pre-Chapter 48A consent judgments, see 51 N.C.L. Rev. 1091 (1973).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1982 family law, see 61 N.C.L. Rev. 1155 (1983).

For note, "Miller v. Kite, 313 N.C. 474, 329 S.E.2d 663 (1985): Should Domestic Disputes Require the Maximum of Minimum Contacts?," see 64 N.C.L. Rev. 825 (1986).

For note, "The Effect on the Child of a Custodial Parent's Involvement in an Intimate Same-Sex Relationship," see 10 Campbell L. Rev. 131 (1996).

For comment, "Contractual Modification of Past Due and Future Child Support Payments," see 19 Campbell L. Rev. 189 (1996).

For comment, "Out of Step: Why Pulliam v. Smith Should Be Overruled to Hold All North Carolina Parents - Gay and Straight - to the Same Custody Standard," see 87 N.C.L. Rev. 257 (2008).

CASE NOTES

I. IN GENERAL.

Editor's Note. - A number of the cases cited below were decided under former G.S. 17-39.1, which dealt with determining custody of children in habeas corpus proceedings, former G.S. 50-13, which dealt with custody and maintenance of children in divorce proceedings, and former G.S. 50-16, which dealt with custody and support of children in actions for alimony without divorce.

Some of the cases below were decided prior to enactment of G.S. 50-13.10, relating to the vesting of past due child support payments.

G.S. 50-13.2A must be read in pari materia with subsection (a), which therefore requires a showing of a substantial change of circumstances. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

No Voluntary Dismissal of Final Order Permitted. - Under Rule 41(a) and existing case law, parties may not voluntarily dismiss a final custody and child support order. Massey v. Massey, 121 N.C. App. 263, 465 S.E.2d 313 (1996).

Use of Word "May". - Where defendant contended that the use of the word "may" in this statute authorizes the trial court in the exercise of its discretion to refuse to exercise its jurisdiction, he misconstrued the statute. The word "may" authorizes the trial judge to enter an order of modification upon a showing of changed circumstances. Morris v. Morris, 91 N.C. App. 432, 371 S.E.2d 756 (1988).

There is no requirement that each successive custody hearing start with a "clean slate" and that the court not rely on the record previously generated. To the contrary, custody proceedings generally are continuing in nature. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Noncustodial parent is not entitled as a matter of law to a credit against accrued arrearage in child support for expenses incurred while the child was with the noncustodial parent. Each case must be decided upon it own facts, and the guiding principle is whether an injustice would exist if a credit is not given. Simmons v. Simmons, 74 N.C. App. 725, 329 S.E.2d 723 (1985). And see now G.S. 50-13.10

Decision to allow, or disallow, a credit to the noncustodial parent against accrued arrearage in child support expenses incurred while the child was with the noncustodial parent is a matter within the discretion of the trial judge. Simmons v. Simmons, 74 N.C. App. 725, 329 S.E.2d 723 (1985).

Custody orders are never permanent, but rather are always subject to revision based upon changes in circumstances pursuant to G.S. 50-13.7(a). Heatzig v. MacLean, 191 N.C. App. 451, 664 S.E.2d 347 (2008), review denied, appeal dismissed, 362 N.C. 681, 670 S.E.2d 564 (2008).

Applied in Ferguson v. Ferguson, 9 N.C. App. 453, 176 S.E.2d 358 (1970); Paschall v. Paschall, 26 N.C. App. 491, 216 S.E.2d 415 (1975); Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978); Pritchard v. Pritchard, 45 N.C. App. 189, 262 S.E.2d 836 (1980); In re Register, 303 N.C. 149, 277 S.E.2d 356 (1981); Harris v. Harris, 56 N.C. App. 122, 286 S.E.2d 859 (1982); Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540 (1983); O'Neal v. Wynn, 64 N.C. App. 149, 306 S.E.2d 822 (1983); Cartrette v. Cartrette, 73 N.C. App. 169, 325 S.E.2d 671 (1985); Glesner v. Dembrosky, 73 N.C. App. 594, 327 S.E.2d 60 (1985); Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985); Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987); Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991); Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994); Shipman v. Shipman, 155 N.C. App. 523, 573 S.E.2d 755 (2002), aff'd, 357 N.C. 471, 586 S.E.2d 250 (2003); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011).

Cited in In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971); Moore v. Moore, 14 N.C. App. 165, 187 S.E.2d 371 (1972); Carmichael v. Carmichael, 40 N.C. App. 277, 252 S.E.2d 257 (1979); County of Stanislaus v. Ross, 41 N.C. App. 518, 255 S.E.2d 229 (1979); Williams v. Richardson, 53 N.C. App. 663, 281 S.E.2d 777 (1981); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716 (1983); Mather v. Mather, 70 N.C. App. 106, 318 S.E.2d 548 (1984); Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985); Graham v. Graham, 77 N.C. App. 422, 335 S.E.2d 210 (1985); Griffin v. Griffin, 81 N.C. App. 665, 344 S.E.2d 828 (1986); Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249 (1988); Dobos v. Dobos, 111 N.C. App. 222, 431 S.E.2d 861 (1993); Jones v. Jones, 109 N.C. App. 293, 426 S.E.2d 468 (1993); Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995); Garrison v. Connor, 122 N.C. App. 702, 471 S.E.2d 644 (1996); Kelly v. Otte, 123 N.C. App. 585, 474 S.E.2d 131 (1996); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999); Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559 (2000); In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779; King v. King, 144 N.C. App. 391, 547 S.E.2d 846 (2001); Mohr v. Mohr, 155 N.C. App. 421, 573 S.E.2d 729 (2002); Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd, 359 N.C. 65, 602 S.E.2d 360 (2004); Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005); New Hanover Child Support Enforcement ex rel. Dillon v. Rains, 193 N.C. App. 208, 666 S.E.2d 800 (2008); Hibshman v. Hibshman, 212 N.C. App. 113, 710 S.E.2d 438 (2011); Ludlam v. Miller, 225 N.C. App. 350, 739 S.E.2d 555 (2013); Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013); Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886 (2015); Guilford Cnty. ex rel. St. Peter v. Lyon, 247 N.C. App. 74, 785 S.E.2d 131 (2016); In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017).

II. MODIFICATION, GENERALLY.

Editor's Note. - Some of the cases below were decided prior to enactment of G.S. 50-13.10, relating to the vesting of past due child support payments.

This section gives North Carolina courts subject matter jurisdiction to modify child support orders entered by another state. Morris v. Morris, 91 N.C. App. 432, 371 S.E.2d 756 (1988).

Jurisdiction To Modify Custody Order. - Trial court had subject-matter jurisdiction under G.S. 50A-203(2) to modify a Michigan custody order because North Carolina was the children's "home state" at the time the custody action was initiated, G.S. 50A-102(7), and neither the children nor the mother or father continued to reside in Michigan Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019), cert. denied, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (N.C. 2020).

Statutory Compliance Required. - Since there is a statutory procedure for modifying a custody determination, a party seeking modification of a custody decree must comply with its provisions. Bivens v. Cottle (Westlake), 120 N.C. App. 467, 462 S.E.2d 829 (1995), appeal dismissed, 346 N.C. 270, 485 S.E.2d 296 (1997).

Trial Court May Not Sua Sponte Modify Child Support. - It was error to order a father to pay all children's uninsured medical expenses because neither party asked the court to reevaluate a prior apportionment of such expenses, nor were the expenses subsumed in a prior child support order before the court, since the expenses were separately dealt with, so the trial court had no authority to modify previously agreed support on the court's own motion. Moore v. Moore, 237 N.C. App. 455, 768 S.E.2d 4 (2014).

Trial court's sua sponte child support modification was vacated because (1) such modifications were generally prohibited, and (2) there was no showing of acts sufficient to satisfy the statutory purpose. Summerville v. Summerville, 259 N.C. App. 228, 814 S.E.2d 887 (2018).

A court is without authority to sua sponte modify an existing support order. Royall v. Sawyer, 120 N.C. App. 880, 463 S.E.2d 578 (1995).

Trial court's order allowing partial payment of support obligation at contempt proceeding did not constitute a modification, such modification of child support being only allowed "upon motion in the cause and a showing of changed circumstances by either party." Bogan v. Bogan, 134 N.C. App. 176, 516 S.E.2d 641 (1999).

Court does not have the authority to sua sponte modify an existing support order, and modification of a support order cannot occur until the threshold issue of substantial change in circumstances has been shown. Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002).

The welfare of the children in controversies involving custody is the polar star by which the courts must be guided in awarding custody. Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975); Dean v. Dean, 32 N.C. App. 482, 232 S.E.2d 470 (1977).

And the Determinative Factor. - The welfare of the child, not the frustration of the court order, is the determinative factor. Gordon v. Gordon, 46 N.C. App. 495, 265 S.E.2d 425 (1980).

And Is the Ultimate Object in Securing Child Support. - The welfare of the child is the "polar star" in the matters of custody and maintenance, yet common sense and common justice dictate that the ultimate object in such matters is to secure support commensurate with the needs of the child and the ability of the father to meet the needs. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

The ultimate object in setting awards of child support is to secure support commensurate with the needs of the children and the ability of the father to meet the needs. Gibson v. Gibson, 24 N.C. App. 520, 211 S.E.2d 522 (1975).

The welfare of the child is always open to inquiry by the court, and upon the showing of a change of circumstances the order of custody may be modified. In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 513 (1972).

Best Interests of the Child. - When a father filed a motion for modification of custody, a trial court did not abuse its discretion in looking back to the facts surrounding the best interests of the child, pursuant to G.S. 50-13.2(a), at the time the memorandum of judgment was entered to make appropriate findings to provide a base line before it could determine if there had been a material change in circumstances, pursuant to G.S. 50-13.7, because the mother and father had waived findings of fact and conclusions of law at the time the memorandum of judgment by consent was entered. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

Father's appeal was timely because, while the trial court orally rendered an order modifying child custody at the conclusion of the hearing and entered the order, the record did not contain a certificate to evidence when the father was served with the order or anything indicating when he received actual notice that it had been entered, and the order, although denominated a "temporary order," was in fact a permanent order that was immediately appealable, and a "best interests of the child" standard was properly applied in modifying a prior temporary custody order since it left certain issues to be determined at a later date. Brown v. Swarn, 257 N.C. App. 418, 810 S.E.2d 237 (2018).

"Best Interests of Child" Standard Applied to Temporary Order. - Trial court properly applied the "best interests of the child" standard in declining to modify a child custody award because the initial custody order was not final where it left open a parent's visitation periods and was subject to regular review to ensure the parent's increased participation pending recovery from a traumatic brain injury. Simmons v. Arriola, 160 N.C. App. 671, 586 S.E.2d 809 (2003).

Trial court's order which ordered that plaintiff mother retain physical custody of the child during the school year and that defendant father have physical custody during the summer months was affirmed because there was competent evidence to support the trial court's finding that the child custody matter did not lie dormant after the May 26, 2006 consent order was entered and this finding supported the trial court's conclusion that the May 26, 2006 consent order remained a temporary order. Therefore, the trial court did not err in utilizing the best interest of the child standard to establish child custody rather than reviewing the evidence for a substantial change in circumstances. Miller v. Miller, 201 N.C. App. 577, 686 S.E.2d 909 (2009).

The control and custody of minor children cannot be determined finally. Changed conditions will always justify inquiry by the courts into the interest and welfare of the children, and decrees may be entered as often as the facts justify. In re Herring, 268 N.C. 434, 150 S.E.2d 775 (1966); In re Bowen, 7 N.C. App. 236, 172 S.E.2d 62 (1970).

Neither agreements nor adjudications for the custody or support of a minor child are ever final. McLeod v. McLeod, 266 N.C. 144, 146 S.E.2d 65 (1966).

As children develop, their needs change, and these needs must be supplied by the parent, whose ability to supply them may change. For these reasons orders in custody proceedings are not final. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

A judgment awarding custody is based upon conditions found to exist at the time it is entered. The judgment is subject to such change as is necessary to make it conform to changed conditions when they occur. In re Bowen, 7 N.C. App. 236, 172 S.E.2d 62 (1970); Owen v. Owen, 31 N.C. App. 230, 229 S.E.2d 49 (1976).

And Is Temporary in Nature. - All custody orders are from their very nature temporary and founded upon conditions and circumstances existing at the time of the hearing. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Although they provide guidance, prior custody orders are not binding in subsequent proceedings. Custody orders are not permanent, but remain freely modifiable upon appropriate evidence of changed circumstances. Williams v. Williams, 91 N.C. App. 469, 372 S.E.2d 310 (1988).

Decrees with respect to custody and support are subject to further orders of the court. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962); Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

And May Be Altered upon a Change in Circumstances. - Decrees entered by North Carolina courts in child custody and support matters are impermanent in character and are res judicata of the issue only so long as the facts and circumstances remain the same as when the decree was rendered. The decree is subject to alteration upon a change of circumstances affecting the welfare of the child. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Tate v. Tate, 9 N.C. App. 681, 177 S.E.2d 455 (1970); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

A decree for the support of a minor child is subject to alteration upon a change of circumstances affecting the welfare of the child. Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721 (1957); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).

It is elementary that court decrees in child custody and support matters are not permanent in character and may be modified by the court in the future if subsequent events and the welfare of the child require. In re Rose, 9 N.C. App. 413, 176 S.E.2d 249 (1970).

An order awarding the custody of minor children determines the present rights of the parties, but is not permanent in nature, and is subject to modification for a subsequent change of circumstances affecting the welfare of the children. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963); In re Bowen, 7 N.C. App. 236, 172 S.E.2d 62 (1970); Owen v. Owen, 31 N.C. App. 230, 229 S.E.2d 49 (1976).

The entry of an order in a custody matter does not finally determine the rights of parties as to the custody, care and control of a child, and thus when a substantial change of condition affecting the child's welfare is properly established, the court may modify a prior custody decree. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123 (1979).

On a hearing in a custody suit, the judgment is not intended to be a final determination of the rights of the parties touching the care and control of the child; thus, on a change of conditions, properly established, the question may be further heard and determined. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

The purpose of a child support proceeding is to determine the nature and extent of the support required. The initial determination is subject to modification or vacation at any time upon motion and a showing of changed circumstances. The support issue thus may be before the court on numerous occasions during a child's minority. Leach v. Alford, 63 N.C. App. 118, 304 S.E.2d 265 (1983).

Since the ruling in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) that recognized the constitutionally - protected paramount right of parents to custody, the ruling has been interpreted to apply only to an initial custody determination, and not to motions for change of custody based on changed circumstances. Speaks v. Fanek, 122 N.C. App. 389, 470 S.E.2d 82 (1996).

As May Agreements on Such Matters. - Decrees entered by courts in child custody and support matters, or written agreements with respect to such matters, are impermanent in character and are subject to alteration by the court upon a change of circumstances affecting the welfare of the child. Williams v. Williams, 18 N.C. App. 635, 197 S.E.2d 629 (1973).

While the provisions of a valid separation agreement relating to marital and property rights of the parties cannot be set aside by the court without the consent of the parties, no agreement between husband and wife can serve to deprive the courts of their inherent authority to protect the interests of and provide for the welfare of minor children. Hershey v. Hershey, 57 N.C. App. 692, 292 S.E.2d 141 (1982).

Change in Circumstances Is Threshold Issue. - Modification of a support order cannot occur until the threshold issue of substantial change in circumstances has been shown. Davis v. Risley, 104 N.C. App. 798, 411 S.E.2d 171 (1991).

Trial court applied an incorrect standard in granting a father's motion to modify a child custody order since the order from another state was a permanent custody order, and rather than first determining whether a substantial change in circumstances had occurred as required by G.S. 50-13.7(b), the trial court proceeded straight into a best interests analysis. Hatcher v. Matthews, 248 N.C. App. 491, 789 S.E.2d 499 (2016).

Party Required to Demonstrate Substantially Changed Circumstances. - Under this section, a party is required to demonstrate substantially changed circumstances affecting the welfare of the child in order to be granted a modification of an existing custody order. The word custody under the statute also includes visitation. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900 (1991).

No agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. The parties may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw the children of the marriage from the protective custody of the court. Voss v. Summerfield, 77 N.C. App. 839, 336 S.E.2d 144 (1985).

Retroactive Increase Requires "Emergency Situation". - Child support reimbursement or child support governing a period prior to a motion to increase an existing child support order would constitute retroactive child support and would not be based on the presumptive guidelines. Therefore, a child support payment order may not be retroactively increased without evidence of some emergency situation that required the expenditure of sums in excess of the amount of child support paid. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Separation Agreement Incorporated into Consent Judgment Is Modifiable. - Where a separation agreement is adopted by incorporation into a consent judgment, the terms thereof are subject to modification by the court upon a showing of changed circumstances. Mann v. Mann, 57 N.C. App. 587, 291 S.E.2d 794 (1982).

Deference Due Agreement. - On motion filed by defendant to modify consent order to provide for child support, the defendant, as movant, will have the burden of showing a "substantial change of circumstances affecting the welfare of the child." Deference due the agreement gives rise to the presumption, in the absence of evidence to the contrary, that the amount agreed upon is just and reasonable. Voss v. Summerfield, 77 N.C. App. 839, 336 S.E.2d 144 (1985).

Burden in Seeking Modification of Separation Agreement Not Incorporated in Order. - When a motion is made to modify the child support provisions of a separation agreement which has not previously been incorporated into an order or judgment of the court, the moving party's only burden is to show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing, and he is not required to show a change in circumstances. Should the evidence establish, giving due regard to the factors contained in G.S. 50-13.4(b) and (c), that such amount substantially exceeds the amount agreed upon in the separation agreement, such evidence would necessarily rebut the presumption of reasonableness of the amount of child support established in the agreement and establish the need for an increase. However, absent such a showing, the agreement of the parties will be deemed to be reasonable. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986).

Mother did not establish that she relied to her detriment on the parties' agreement to reduce child support; since the support order was not judicially modified, the separation agreement remained in full force and effect. Baker v. Showalter, 151 N.C. App. 546, 566 S.E.2d 172 (2002).

Effect of Reconciliation on Support Provisions of Separation Agreement. - A separation agreement is terminated for every purpose, insofar as it remains executory, when the parties resume the marital relationship. Among the executory purposes for which a separation agreement is terminated is the payment of child support. But while the courts have held that reconciliation voids alimony provisions, whether in a separation agreement or a court order, this principle has not been applied to void, as a matter of law, a judgment ordering payment of child support. Walker v. Walker, 59 N.C. App. 485, 297 S.E.2d 125 (1982).

Defendant may, upon a proper showing, be entitled to relief from those payments which, under a judgment, fell due during a period of reconciliation. Walker v. Walker, 59 N.C. App. 485, 297 S.E.2d 125 (1982).

Relitigation of Paternity Not Basis for Modifying Support Agreement. - While a voluntary support agreement may, upon motion and a showing of changed circumstances, be modified or vacated at any time, it cannot be modified or vacated on the basis of relitigation, in a proceeding related solely to the order for support, of the paternity issue. That issue is res judicata and shall not be reconsidered by the court in such a proceeding. Beaufort County v. Hopkins, 62 N.C. App. 321, 302 S.E.2d 662 (1983).

Arbitration Award Remains Reviewable and Modifiable. - While there exists no prohibition to the parties settling the issues of custody and child support by arbitration, the provisions of an award for custody or child support will always be reviewable and modifiable by the courts, as parents cannot by agreement deprive the court of its inherent and statutory authority to protect the interests of their children, and further, a court order pertaining to custody or support of a minor child does not finally determine the rights of the parties as to these matters. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Because all awards or orders concerning child support or custody are reviewable and modifiable, any arbitration concerning these issues is not binding. Cyclone Roofing Co. v. David M. LaFave Co., 312 N.C. 224, 321 S.E.2d 872 (1984).

Temporary resumption of marital relationship does not require court to void support order on motion pursuant to G.S. 1A-1, Rule 60(b)(4). Walker v. Walker, 59 N.C. App. 485, 297 S.E.2d 125 (1982).

Custody Provisions in a Divorce Decree Are Subject to Modification. - The provision of a final decree of divorce awarding the custody of the minor children of the marriage is subject to modification for subsequent change of condition as often as the facts justify. In re Marlowe, 268 N.C. 197, 150 S.E.2d 204 (1966).

A decree awarding custody of the child of the marriage as between its divorced parents is determinative of the present rights of the parties, but is not permanent, and may be later modified by the court upon a change of conditions. Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884 (1949); Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).

As Are Support Provisions Therein. - The court has jurisdiction to modify an order for the support of a child of the marriage entered in the husband's action for absolute divorce and may do so upon the wife's motion in the cause made subsequent to the rendition of the decree of absolute divorce. Story v. Story, 221 N.C. 114, 19 S.E.2d 136 (1942).

While the rule in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983) did not apply to a divorce judgment entered prior thereto, the language used by the court in absolute divorce judgment, incorporating separation agreement into the judgment, was sufficient under the law as it existed prior to Walters to evidence the court's intent to make the parties' separation agreement its own determination of their respective rights and obligations. Thus, when the court adopted the parties' agreement as to child support as its own determination of the amount of child support to be paid by defendant, this order of support became modifiable in the same manner as any other child support order. Holthusen v. Holthusen, 79 N.C. App. 618, 339 S.E.2d 823 (1986).

Modification of Payments Accrued After Motion Filed. - Any child support payments which accrued after the filing of mother's motion for an increase based on changed circumstances could be subject to modification as provided by law. Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352, cert. denied, 337 N.C. 694, 448 S.E.2d 527 (1994).

Modification Where Consent Judgment in Divorce Action Determined Custody. - Where custody was awarded by court order by the adoption of a consent judgment relative to child custody by the court in its findings of fact and conclusions of law, custody being awarded to defendant as part of the divorce judgment, not merely by agreement of the parties, any subsequent modification must be made in accordance with subsection (a) of this section. Barnes v. Barnes, 55 N.C. App. 670, 286 S.E.2d 586 (1982).

When child support agreement was incorporated into parties divorce judgment it became an order of court that was modifiable only as other judgments involving child custody and support are modifiable. Tyndall v. Tyndall, 80 N.C. App. 722, 343 S.E.2d 284, cert. denied, 318 N.C. 420, 349 S.E.2d 606 (1986), upholding trial court's refusal to disregard the terms of judgment and make a new, independent determination where no grounds for modifying the judgment were presented.

Modification of Support Provisions in Order of Alimony Without Divorce. - An order of alimony without divorce and child support is temporary in nature, and if future circumstances justify a change, defendant is at liberty to seek relief in the trial court by motion in the cause. Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970).

In wife's action for alimony without divorce and for child support, the Court of Appeals would not disturb an order of the trial court requiring husband to make substantial payments to wife for alimony and for support of the minor children, notwithstanding husband's contention that he anticipates a substantial decrease in earning, since the order was temporary in nature and is subject to modification upon change of circumstances. Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970).

Modification of Order Transferring Child Custody. - An order which transferred child custody from the plaintiff to the defendant was a final order under G.S. 1A-1, Rule 60(b), but the order could be changed subsequently upon a proper showing of change of circumstances under this section. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819 (1978).

Order May Not Be Vacated by Stipulation. - Where an order of the trial court awarding plaintiff permanent custody and obligating defendant to pay permanent child support was rendered, nothing in Rule 41 granted authority to the parties, without action by the trial court, to vacate by stipulation the order previously entered in the action. Massey v. Massey, 121 N.C. App. 263, 465 S.E.2d 313 (1996).

As to the weight to be accorded the wishes of a child who has reached the age of discretion in choosing a custodian, see Elmore v. Elmore, 4 N.C. App. 192, 166 S.E.2d 506 (1969); In re Harrell, 11 N.C. App. 351, 181 S.E.2d 188 (1971); In re Williamson, 32 N.C. App. 616, 233 S.E.2d 677 (1977); Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978); Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123 (1979).

The trial court must determine the present reasonable needs of the child before ordering a modification in child support. Mullen v. Mullen, 79 N.C. App. 627, 339 S.E.2d 838 (1986); Smith v. Smith, 89 N.C. App. 232, 365 S.E.2d 688 (1988).

To properly determine child's present reasonable needs, trial court must hear evidence and make findings of specific fact on the actual past expenditures for the minor child, the present reasonable expenses of the minor child, and the parties' relative abilities to pay. Mullen v. Mullen, 79 N.C. App. 627, 339 S.E.2d 838 (1986); Smith v. Smith, 89 N.C. App. 232, 365 S.E.2d 688 (1988).

Determination of Relative Ability to Pay. - Evidence of, and findings of fact on, the parties' income, estates, and present reasonable expenses are necessary to determine their relative abilities to pay. Mullen v. Mullen, 79 N.C. App. 627, 339 S.E.2d 838 (1986).

Inclusion of Estimated Expenses for Items That Custodial Parent Cannot Currently Afford Not Improper. - In support modification proceedings it was not improper for the court to include in its findings estimated expenses for certain items that plaintiff could not currently afford; simply because a custodial parent is unable to afford a certain item or expense is no reason to disqualify that item as a reasonable need of the child. Findings of fact as to actual past expenditures are meant to aid the trial court in determining the reasonable needs of the children, not to hamper the court's ability to assess the children's reasonable needs. Smith v. Smith, 89 N.C. App. 232, 365 S.E.2d 688 (1988).

An order providing for temporary child support is not an appealable final order, whereas an order providing for permanent child support until emancipation is an appealable final order even though permanent child support orders may be modified upon a showing of change of circumstances. Banner v. Hatcher, 124 N.C. App. 439, 477 S.E.2d 249 (1996).

Modification of Support Provisions Upheld. - Where, in a decree of divorce, father was ordered to pay a certain sum monthly for the support of his infant daughter, and by its first order the court retained the cause subject to the right of either party at any time to apply for a modification of the order, and pursuant to this provision the court later, upon father's insolvency, made the sums assessed a charge on plaintiff's homestead and personal property exemptions when allotted, the modification was authorized by statute as well as by the order of the courts. Walker v. Walker, 204 N.C. 210, 167 S.E. 818 (1933).

In the modification of an order for child support, there was no error where the trial court found sufficient facts to justify an increase in the child support payments, and these findings were supported by competent evidence in the record. Gibson v. Gibson, 24 N.C. App. 520, 211 S.E.2d 522 (1975).

Modification of Custody and Support Provisions Upheld - Trial court's judgment transferring custody of a child from his mother to his father and ordering the mother to pay child support was supported by evidence which showed that the mother moved frequently, had no home of her own, moved in with her boyfriend, and actively attempted to prevent the father from visiting his child, and that the father was about to remarry and could provide a stable home for the child. Shipman v. Shipman, 357 N.C. 471, 586 S.E.2d 250 (2003).

Modification of Custody and Support Provisions Erroneous. - The trial court errs in modifying a previous order as to custody of and support of children in the absence of a motion for modification and absent any showing of changed circumstances. Smith v. Smith, 15 N.C. App. 180, 189 S.E.2d 525 (1972).

In the absence of any evidence and finding of any change in circumstances, it was error for the trial court to order an increase in the amount of child support. Childers v. Childers, 19 N.C. App. 220, 198 S.E.2d 485 (1973).

Trial court's findings held insufficient to justify an increase in support payment of $500.00 for two children, as specified in separation agreement, to payment of $800.00 for one child following older child's attaining of her majority. Rice v. Rice, 81 N.C. App. 247, 344 S.E.2d 41, cert. denied, 317 N.C. 706, 347 S.E.2d 439 (1986).

Where there was no evidence that defendant, who worked for a school system as a psychologist, intentionally depressed his income or otherwise engaged in bad faith, the trial court erred by imputing income to defendant for four weeks during the school district summer recess. Ellis v. Ellis, 126 N.C. App. 362, 485 S.E.2d 82 (1997).

Father did not show sufficient changed circumstances to warrant modification of either the support or custody order of his three children, even though mother no longer retained custody of the oldest daughter, as the welfare of the children at the time the contest came on for hearing was the controlling consideration and, based on their welfare, modification in his favor was not warranted. Davis v. Davis, (N.C. App. Aug. 7, 2001).

Evidence of Child-Oriented Expenses in Modification Hearings. - In seeking a modification of child support, the moving party must present evidence of child-oriented expenses, including the amount of those expenses at the time of the original support hearing. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Modification of Custody Order Erroneous. - Where the trial court correctly found that no change in circumstances affecting minor's welfare had been shown, its order requiring plaintiff/mother to give defendant/father final decision-making authority as to child's schooling, extracurricular activities, and travel constituted a wrongful modification of prior custody order. Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999).

Where there was no written order signed before the wife filed her motion to modify custody, and the written order granting joint custody was eventually entered on the same day that the trial court heard the motion to modify, an appellate court reversed the order modifying custody because there was nothing to modify since there was no order when the mother filed her motion to modify; even if it were proper for the trial court to hear the motion, it was impossible for there to have been a change in circumstances between the time the order was entered and the time it was modified on the same day, and in deciding whether a change of circumstances had occurred, the trial court should not have considered the events that transpired between the time it announced its joint custody decision and the date of the entry of the order. Carland v. Branch, 164 N.C. App. 403, 595 S.E.2d 742 (2004).

Where although father, the custodial parent, presented some evidence of present and future expenses, he presented no evidence of child-oriented expenses at the time of the prior hearing, the trial court did not have all of the evidence necessary to establish a change of circumstances and did not err in refusing to modify plaintiff 's child support. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Trial court erred by purporting to modify a June 2010 custody order because the June order was a temporary order and the trial court did not consider the July 2011 permanent order when considering the modification. Woodring v. Woodring, - N.C. App. - , 742 S.E.2d 295 (2013).

Trial court erred by using findings of fact that were res judicata in purporting to modify a June 2010 custody order because the June order was a temporary order, the modification order contained findings since the entry of the temporary order, but a permanent order was entered in July 2011, and the only facts that were not res judicata for a determination of a substantial change in circumstances were facts that occurred after the July 2011 hearing or prior facts that were not disclosed to the court. Woodring v. Woodring, - N.C. App. - , 742 S.E.2d 295 (2013).

For case involving refusal to modify custody decree where child was actually in custody of another married couple, see Fearrington v. Fearrington, 251 N.C. 694, 111 S.E.2d 850 (1960).

For case affirming order transferring custody to paternal grandmother and awarding visitation rights to both mother and father, see Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Parent can obligate himself to support a child after emancipation and past majority, and his contract will be enforceable, it being beyond the inherent power of the court to modify same absent the consent of the parties. Hershey v. Hershey, 57 N.C. App. 692, 292 S.E.2d 141 (1982).

Modification When One of Several Children Reaches Age 18. - While child support obligations ordered by a court terminate upon the child reaching age 18, unless the child is otherwise emancipated prior to reaching age 18 or the trial court in its discretion continues to enforce the payment obligation after the child reaches age 18 and while the child is in primary or secondary school, when one of two or more minor children for whom support is ordered reaches age 18, and when the support ordered to be paid is not allocated as to each individual child, the supporting parent has no authority to unilaterally modify the amount of the child support payment. The supporting parent must apply to the trial court for modification. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Cases holding that where one of two minor children reaches the age of 18, a trial court may retroactively modify child support arrearages when equitable considerations exist which would create an injustice if modification is not allowed, were decided before G.S. 50-13.10 became effective on October 1, 1987. Under this statute, if the supporting party is not disabled or incapacitated, a past due, vested child support payment is subject to divestment only as provided by law, and if, but only if, a written motion is filed, and due notice is given to all parties before the payment is due. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Continuing Obligation to Support Illegitimate Child. - G.S. 49-7, read together with this section, clearly contemplates a continuing obligation on the part of the parents of an illegitimate child to provide support, including when necessary the modification or increase of payments ordered to satisfy this obligation. Having been conclusively determined a "responsible parent," as that term is defined in G.S. 110-129, the father of an illegitimate child must necessarily remain liable for the future support of his minor child. Wilkes County ex rel. Child Support Enforcement ex rel. Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984).

Substantial Decrease in Parent's Income Not Shown. - Although a substantial decrease in the non-custodial parent's income can support a modification without a showing of a change in the needs of the child, the decrease in defendant's income of $500 a year was not substantial in this case. Wiggs v. Wiggs, 128 N.C. App. 512, 495 S.E.2d 401 (1998).

Unilateral Reduction of Payments. - The father was properly held in contempt, despite his claim that the evidence did not show that he had the means to comply with the trial court's purge order, where he unilaterally reduced his child support payments after suffering a substantial reduction in income. Chused v. Chused, 131 N.C. App. 668, 508 S.E.2d 559 (1998).

III. CHANGE IN CIRCUMSTANCES.

Editor's Note. - Some of the cases below were decided prior to enactment of G.S. 50-13.10, relating to the vesting of past due child support payments.

A change in circumstances must be shown in order to modify an order relating to custody, support or alimony. Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963); Elmore v. Elmore, 4 N.C. App. 192, 166 S.E.2d 506 (1969); In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84 (1969); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); Rabon v. Ledbetter, 9 N.C. App. 376, 176 S.E.2d 372 (1970); McDowell v. McDowell, 13 N.C. App. 643, 186 S.E.2d 621 (1972); Kenney v. Kenney, 15 N.C. App. 665, 190 S.E.2d 650 (1972); Register v. Register, 18 N.C. App. 333, 196 S.E.2d 550 (1973); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975).

Where a provision for a reduction in support payments was omitted from the original order, that order could not thereafter be modified by inserting such provision without a showing and finding of change in circumstances. Rabon v. Ledbetter, 9 N.C. App. 376, 176 S.E.2d 372 (1970).

When the parties have entered into a consent order providing for the custody and support of their children, any modification of that order must be based upon a showing of a substantial change in circumstances affecting the welfare of the child. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

Where a Virginia court which had issued a divorce decree denied modification of the original child support order, and the former spouse and minor children were living in North Carolina, U.S. Const., Art. IV, § 1 required the Virginia order denying modification to be given full faith and credit in North Carolina subject to changed circumstances under this section. Morris v. Morris, 91 N.C. App. 432, 371 S.E.2d 756 (1988).

A Georgia divorce judgment precluded a North Carolina court from making any findings as to child support without a showing of a change in circumstances. Shores v. Shores, 91 N.C. App. 435, 371 S.E.2d 747 (1988).

Trial court erred in modifying an existing support decree from the State of Georgia when there were no findings of fact or conclusions of law showing a change of circumstances to support such a conclusion. Shores v. Shores, 91 N.C. App. 435, 371 S.E.2d 747 (1988).

Without evidence of any change of circumstances affecting the welfare of the child or an increase in need, an increase for support based solely on the ground that the support payor's income has increased is improper. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

There are no exceptions in North Carolina law to the requirement that a change in circumstances be shown before a custody decree may be modified. Bivens v. Cottle (Westlake), 120 N.C. App. 467, 462 S.E.2d 829 (1995), appeal dismissed, 346 N.C. 270, 485 S.E.2d 296 (1997).

Because a trial court could not, on the one hand, conclude there was not a substantial change of circumstances, and at the same time change the existing consent order, and the parties' incomes had to be considered to properly evaluate the mother's motion to modify child support, the modification of custody and support was reversed and remanded. Lewis v. Lewis, 181 N.C. App. 114, 638 S.E.2d 628 (2007).

In a custody case, trial court erred in granting intervener caretaker's motion to intervene and motion for custody because it did not contain any grounds for modification of the prior custody order and did not allege a substantial change in circumstances as required under G.S. 50-13.7(a). Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1 (2010).

A party seeking modification of child custody has the burden of showing changed circumstances only where an order for permanent custody already exists. Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452 (1998).

A change in circumstances may be shown in any of several ways: an increase or decrease in the child's needs; a substantial and involuntary decrease in the income of the non-custodial parent; a voluntary decrease in income of either supporting parent; and, if the support order is at least three years old, proof of a disparity of fifteen percent or more between the original order and the amount under the Child Support Guidelines. Wiggs v. Wiggs, 128 N.C. App. 512, 495 S.E.2d 401 (1998).

Or a Separation Agreement. - Where parties to a separation agreement agree upon the amount of the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable, and that upon motion for an increase in such allowance, a court is not warranted in ordering an increase in the absence of any evidence of a change of conditions. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560 (1976); Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982); Hershey v. Hershey, 57 N.C. App. 692, 292 S.E.2d 141 (1982).

Modification of a child support order involves a two-step process: 1) the court must first determine a substantial change of circumstances has taken place; and 2) only then does it proceed to apply the guidelines to calculate the applicable amount of support. McGee v. McGee, 118 N.C. App. 19, 453 S.E.2d 531 (1995).

Meaning of "Changed Circumstances". - "Changed circumstances," as used in this section, means such a change as affects the welfare of the child. In re Harrell, 11 N.C. App. 351, 181 S.E.2d 188 (1971); Hensley v. Hensley, 21 N.C. App. 306, 204 S.E.2d 228 (1974); Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, cert. denied, 298 N.C. 568, 261 S.E.2d 122 (1979); O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277, cert. denied as to additional issues, 312 N.C. 623, 323 S.E.2d 923 (1984); Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

Although a court must make findings concerning the party's ability to pay, the changed circumstances with which the courts are concerned are those relating to child-oriented expenses. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

The changed circumstances with which the courts are concerned are those which relate to child-oriented expenses. Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

The court erred in concluding that a finding of change in child-oriented expenses is a threshold requirement that must be satisfied before a court can modify a support order because of a change in the supporting party's circumstances, where the defendant presented evidence of a decreased income that could support a modification based on changed circumstances. Padilla v. Lusth, 118 N.C. App. 709, 457 S.E.2d 319 (1995).

The trial court was not required to find adverse changes in circumstances, but properly modified custody based on special needs child's best interests, where (1) reformed father's lifestyle would be better suited to providing the boy with the proper structure and educational opportunities he needed; (2) defendant/mother's job would require her to be away from the child in the evenings, leaving him in the care of others; (3) mother's home schooling of him would not meet his social and educational needs; (4) since father enrolled the child in the local public schools during the trial custody period, the boy had exhibited "phenomenal" improvement with respect to his stuttering and motor tics due to the specialized speech therapy he received; (5) father lived in a spacious new home where the boy had his own bedroom and bathroom; and (6) mother lived in an overcrowded rental home in which the boy shared a bathroom with four other people. Metz v. Metz, 138 N.C. App. 538, 530 S.E.2d 79 (2000).

Change of Circumstances in Conclusion of Law. - A substantial change of circumstances is unequivocally a conclusion of law, meaning that a change has occurred among the parties, and that change has affected the welfare of the children involved. Garrett v. Garrett, 121 N.C. App. 192, 464 S.E.2d 716 (1995).

Change Must Be Substantial. - There must generally be a substantial change of circumstances before an order of custody is changed. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); Todd v. Todd, 18 N.C. App. 458, 197 S.E.2d 1 (1973).

Before the court will modify a custody order, it must be shown that the circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305 (1977); Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978); Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980); Gordon v. Gordon, 46 N.C. App. 495, 265 S.E.2d 425 (1980); O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277 (1984), rev'd on other grounds, 313 N.C. 432, 329 S.E.2d 370 (1985).

Reduction of the monthly child support award was error because the trial court did not make a finding pursuant to G.S. 50-13.7(a) that there had been a substantial change in circumstances affecting the welfare of the husband and wife's three minor children. A reduction could not be based on the fact that the husband remarried and had a child born to the new marriage, as the remarriage and obligation of also supporting a new child was a voluntary undertaking on the husband's part. Frey v. Best, 189 N.C. App. 622, 659 S.E.2d 60 (2008).

The moving party has the burden of showing a substantial change of circumstances affecting the welfare of the child. Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305 (1977); Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979); Barnes v. Barnes, 55 N.C. App. 670, 286 S.E.2d 586 (1982); Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985).

When plaintiff moved that original order be vacated and either modified or eliminated, he assumed the burden of showing that circumstances had changed between the time of the order and the time of the hearing upon his motion. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); In re Harrell, 11 N.C. App. 351, 181 S.E.2d 188 (1971); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

The original decree ordering the payment of money is an adjudication of the court as to what was reasonable and proper at the time it was made. The burden of proving, by a preponderance of the evidence, that a material change in the circumstances has occurred is upon the party requesting the modification. Allen v. Allen, 7 N.C. App. 555, 173 S.E.2d 10 (1970).

The party seeking to have custody order vacated has the burden of showing that circumstances have changed. Hensley v. Hensley, 21 N.C. App. 306, 204 S.E.2d 228 (1974); Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); King v. Allen, 25 N.C. App. 90, 212 S.E.2d 396, cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616 (1979); Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980); Gordon v. Gordon, 46 N.C. App. 495, 265 S.E.2d 425 (1980); Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982); Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

A finding of change in child-oriented expenses is not a threshold requirement that must be satisfied before a court can modify a support order because of a change in the supporting party's circumstances. Padilla v. Lusth, 118 N.C. App. 709, 457 S.E.2d 319 (1995).

Interference with Visitation. - Because the welfare of the child is the paramount concern in custody cases, interference with visitation of the noncustodial parent which has a negative impact on the welfare of the child can constitute a substantial change of circumstances sufficient to warrant a change of custody. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986).

Communication Between Parents. - There was insufficient evidence to support trial court's findings of a substantial change in circumstances justifying a modification of a child custody order based on findings that subsequent to the parents' failed efforts to reunite, communication between them had been unsuccessful, issues relating to domestic violence had not been effectively resolved and had resulted in emotional trauma to the child, and that the parents' failure to communicate regarding issues with the minor child had jeopardized the success of the joint custodial arrangement of the previous order; instead, a review of the record showed ample evidence that although the parents had disagreements and verbal disputes, they had developed ways to communicate regarding the welfare of their son, communicated about the child's health, and that upon request by the mother, the father had delivered medicine to the child's pre-school and had cared for the child at unscheduled times. Ford v. Wright, 170 N.C. App. 89, 611 S.E.2d 456 (2005).

Removal of Parent to Another Residence. - A finding that mother "is now residing in Mecklenburg County, North Carolina" is not a finding of a substantial change of circumstances that will support the modification of a child custody order. Harrington v. Harrington, 16 N.C. App. 628, 192 S.E.2d 638 (1972).

Where a parent changes his residence, the effect on the welfare of the child must be shown in order for the court to modify a custody decree based on change of circumstances. Gordon v. Gordon, 46 N.C. App. 495, 265 S.E.2d 425 (1980); Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

While it is true that a parent's change of residence does not of itself amount to a substantial change of circumstances, the effects of such a move on the welfare of the child may well amount to a change of circumstances requiring modification of the original custody order. O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277 (1984), rev'd on other grounds, 313 N.C. 432, 329 S.E.2d 370 (1985).

Relocation After Remarriage. - The trial court erred in amending the custody decree based on a finding of substantial change in circumstances where it found only that the proposed relocation of mother after her remarriage would adversely affect the relationship between father and his child, but made no other findings about the effect of the proposed relocation on the child and on the child's best interests. Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000).

Removal of Child to Another Jurisdiction. - Before an order of custody is changed, more must be shown than mere removal of child from a jurisdiction which may enter an adverse decision to the removing parent. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969).

Although it is not so as a matter of law, it will be a rare case where the child will not be adversely affected when a relocation of the custodial parent and child requires substantial alteration of a successful custody-visitation arrangement in which both parents have substantial contact with the child. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

Trial court considered the impact of a father's relocation on the children's welfare because it found that the father took a job in another state after he lost his job in North Carolina and that the father planned to relocate his family to the other state since his prospects for future employment in his position were good, and his monthly salary allowed the father to support the children financially. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Change in Custody Between Parents. - A change in custody from the father to the mother was a changed circumstance supporting modification of the mother's child support obligation. Kowalick v. Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998).

Trial court did not err in modifying a father's support obligation because the significant change in the parties' custodial arrangement alone was sufficient to warrant modification of the existing support order; there was a significant difference in the amount of time that the children were able to spend with the father once the children had all moved to North Carolina. Hart v. Hart, - N.C. App. - , 836 S.E.2d 244 (2019).

Adverse Effect on Child as Factor to Support Modification. - An adverse effect on a child as the result of a change in circumstances is an acceptable factor for the courts to consider and will support a modification of a prior custody order, but showing an adverse effect is not necessary for modification. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).

Where parties crossed out a cohabitation provision on the face of their separation memorandum, the trial court only partially discharged its duty in finding that a change of circumstances occurred when husband began cohabiting with his girlfriend because it failed to determine whether plaintiff's wife had met her burden of showing the effect, if any, such change had upon the welfare of the children. Browning v. Helff, 136 N.C. App. 420, 524 S.E.2d 95 (2000).

Because the trial court carefully laid out in sequential order the facts regarding the father's relationship with a married woman, resulting in him resigning from his job, and culminating in his separation from his wife who provided at least 50 percent of the minor child's care, including helping the child with his homework, and then found that the child's grades had suffered as a result, it provided a nexus between the substantial change in circumstances and the affect on the child's welfare to overrule the father's motion to dismiss the mother's custody modification action; moreover, when balanced against the mother's attainment of both a stable living environment and a vast improvement in health after suffering from a brain tumor, the trial court's custody modification order in favor of the mother was upheld. Karger v. Wood, 174 N.C. App. 703, 622 S.E.2d 197 (2005).

Parties' allegations would be sufficient to allege a substantial change in circumstances to permit the trial court to consider a modification of child custody because a father's motion in the cause alleged that the mother had relapsed and had allegedly been observed to be highly intoxicated around the child during custody exchanges; the mother filed a response to the motion containing her own rebuttal and allegations. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019), cert. denied, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (N.C. 2020).

Father Met Burden of Showing Adverse Effect of Relocation. - Father met his burden of showing that the proposed relocation of mother and child to California likely would adversely affect the welfare of the child, and thus the "best interest" question was properly before the trial court. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

Decree Is Res Judicata Only as to Facts Then Existing and Before Court. - To modify a custody order, a court must find a change in circumstances. However, when facts pertinent to the custody issue existed at the time of the custody decree but were not disclosed to the court, the prior decree is res judicata only to the facts that were before the court, and other pertinent facts may be considered in subsequent custody determinations. Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

Speculation as to Future Detrimental Change Insufficient. - A court cannot modify a custody order based on speculation or conjecture that a detrimental change may take place sometime in the future. Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

In a custody matter, it was error to order that a father's therapist's lack of concerns about the father's mental health or ability to care for the children would constitute a change in circumstances, for modification purposes, because this predetermined such a change. Cox v. Cox, 238 N.C. App. 22, 768 S.E.2d 308 (2014).

Evidence of Husband's Suitability Did Not Negate Suitability of Former Wife. - The former husband's evidence that he was a suitable parent for custody did not negate the former wife's standing as a suitable parent for custody and did not represent a change of circumstances. Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

Proof Required Absent Evidence of Change in Either Party's Fitness. - Where there is no evidence that the fitness or unfitness of either party has changed, the trial court may not modify a prior order unless sufficient change of circumstances adversely affecting the welfare of the child is shown. Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

Increase in Father's Income. - The court is not warranted in ordering an increase of child support in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on the ground that the father's income has increased so that he is able to pay a larger amount. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982). See also, Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

Trial court erred in finding that a mother could not seek an increase in child support from a father; G.S. 50-13.7(a) provided that child support orders were modifiable at any time, so a provision of the divorce order which stated that the father's support obligation was not modifiable was void. Young v. Young, 169 N.C. App. 31, 609 S.E.2d 795 (2005).

Decrease in Father's Income. - Where father's income had decreased from $24,000.00 per month to $2083.33 per month, he had been voluntarily terminated, he had continuously sought employment since being terminated, but those efforts had been impaired due to criminal non-support actions instituted both in Florida and in North Carolina, and his estate had been "substantially depleted,"; although the court failed to use sequentially the words "substantial involuntary reduction" in income, its findings indisputably reflected precisely that. McGee v. McGee, 118 N.C. App. 19, 453 S.E.2d 531 (1995).

Trial court erred in modifying original child-support order, where most of its findings of fact were insufficient to support the modification, and the sole valid finding was an increase in father's annual income. Thomas v. Thomas, 134 N.C. App. 591, 518 S.E.2d 513 (1999).

Because the changes in circumstances necessary to support a modification should be determined from the date of the most recent child support order which addressed the obligation in question, and an allegation of a change to the parties' income, without more, was not sufficient to support a motion to modify child support; thus, the ex-husband's motion to modify child support was properly dismissed. Devaney v. Miller, 191 N.C. App. 208, 662 S.E.2d 672 (2008).

Trial court did not err in denying a father's motion for a downward modification of child support under G.S. 50-13.7(a) because the trial court found that the father had incurred no additional cost in covering the child on his wife's health insurance policy, and no documentation about the insurance was included in the record on appeal; the trial court found that the father's insurance coverage of the child was unnecessary because the mother had been providing coverage for the child on her policy. Orange County ex rel. Pattison v. Hamilton, 213 N.C. App. 205, 714 S.E.2d 184 (2011).

Although a father was entitled to the presumption of a substantial change in circumstances, in accordance with Child Support Guidelines, N.C. Ann. R. 41 and 46, the trial court did not abuse its discretion in not modifying the amount of child support, pursuant to G.S. 50-13.7(a), because the presumption was rebutted by evidence the father intentionally left his job, thereby voluntarily depressing his income. Johnston County v. Bugge, 218 N.C. App. 438, 722 S.E.2d 512 (2012).

Ability to Pay. - Where there was no evidence that the needs of defendant's minor children had changed; however, there was evidence that defendant's ability to pay his support payments had decreased, the decision of the trial court denying motion for reduction of support was remanded to the district court. Pittman v. Pittman, 114 N.C. App. 808, 443 S.E.2d 96 (1994).

A party's ability to pay child support is determined by the party's ability to pay at the time the award is made or modified. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

Involuntary Decrease in Income. - A significant involuntary decrease in a child support obligor's income satisfies the necessary showing even in the absence of any change affecting the child's needs. Hammill v. Cusack, 118 N.C. App. 82, 453 S.E.2d 539 (1995).

Voluntary Decrease in Income. - Father was not entitled to reduction in child and post-separation support payments under G.S. 50-13.7 and G.S. 50-16.9 despite being fired from job; evidence indicated that the father's unemployment was voluntary and that the father disregarded marital and parental obligations, as the father was fired for engaging in several incidents of intentional misconduct. Wolf v. Wolf, 151 N.C. App. 523, 566 S.E.2d 516 (2002).

Trial court erred in modifying a father's child support obligation downward under G.S. 50-13.7(a) despite evidence that he voluntarily quit his $ 172,000 job as an engineer to follow Jesus Christ and become a minister of a fledgling church without giving consideration to how he would meet his child support obligation. Andrews v. Andrews, 217 N.C. App. 154, 719 S.E.2d 128 (2011), review denied 365 N.C. 561, 722 S.E.2d 595, 2012 N.C. LEXIS 148 (2012).

Earning Capacity. - The father's earning capacity could not be used in determining his child support obligation, where the father was involuntarily terminated from his former job, and no evidence was presented that he acted in bad faith by deliberately depressing his income. Chused v. Chused, 131 N.C. App. 668, 508 S.E.2d 559 (1998).

Imposition of Earnings Capacity Rule. - Under G.S. 50-13.4 and this section, a husband's ability to pay child support is normally determined by his actual income at the time the award is made or modified. If, however, there is a finding that the husband is deliberately depressing his income or otherwise acting in deliberate disregard of his obligation to provide reasonable support for his child, his capacity to earn may be made the basis of the award. Under these circumstances, his motion to reduce the amount of child support will be denied. Goodhouse v. DeFravio, 57 N.C. App. 124, 290 S.E.2d 751 (1982); Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312 (1988).

A court may refuse to modify a support and/or alimony award on the grounds that husband has failed to exercise his reasonable capacity to earn because of a disregard of his marital and parental obligations to provide reasonable support for his wife and minor child. Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

The determination that a husband's change in circumstances has been voluntarily effected by him in disregard of his marital and parental obligations justifying imposition of the earnings capacity rule is a conclusion of law based on the factual findings in the particular case. Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

A party's capacity to earn income may become the basis of an award if it is found that the party deliberately depressed its income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

Trial court properly increased a father's child support obligation pursuant to G.S. 50-13.7(a), as the trial court made sufficient findings of fact to support its conclusion that the father retired and voluntarily reduced his income in deliberate disregard of his obligations, based on the fact that the father retired shortly after his wife won a large lottery award, and the trial court therefore properly imputed income to the father pursuant to Child Support Guidelines, N.C. Ann. R. (2003) 33, 35, at the level of the father's earnings prior to his retirement. Mason v. Erwin, 157 N.C. App. 284, 579 S.E.2d 120 (2003).

Where trial court made no findings as to self-employed father's present earnings, nor as to his reduction of income in bad faith that would support application of the earnings capacity rule, and made no findings as to a substantial change in his income compared to the findings in the previous order, the trial court's conclusion and order increasing his child support under the guidelines for self-employed individuals was not supported by the findings. Ford v. Wright, 170 N.C. App. 89, 611 S.E.2d 456 (2005).

A person's capacity to earn income may be made the basis of an award if there is a finding that the party deliberately depressed his or her income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

Consideration of Spouse's Capacity to Earn Held Error. - Trial court could not consider father's capacity to earn in computing his income where the evidence indicated that he lost his job due to no fault of his own, and the court's order contained no findings that he had deliberately stopped working to avoid his support obligations. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

The court's conclusion underlying imposition of the earnings capacity rule must be based on evidence that tends to show that husband's actions resulting in the reduction of his income were not taken in good faith. Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

Voluntary Expenses. - Fact that defendant had voluntarily assumed the responsibility of supporting his emancipated son was not a factor to be considered in determining a change of circumstances sufficient to support a reduction in support of his minor children. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293 (1982).

It was error for the trial court to reduce the amount of child support payments required of defendant by one-third where defendant's showing of changed circumstances related almost exclusively to additional expenses to which defendant had obligated himself, including sending a child who had reached the age of majority to college, the expenses of a new home and family, and additional travel and telephone expenses incident to visiting his children from out-of-state, and where defendant made no showing with respect to changed circumstances affecting the remaining minor children and made no showing that the expenses relating to the children's maintenance and support decreased by one-third when one of the children reached majority. Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

The fact that defendant voluntarily assumed the financial burden to send his eldest child to a high-tuition, out-of-state university did not justify consideration of this factor in lowering child support payments. Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979).

The trial court did not err in denying the husband credit for the purchase of two automobiles for his children, considering his history of delinquent payments and the lack of the wife's consent to these voluntary expenditures. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Waiver of Credit for Child's Receipt of Earnings. - There was no evidence that the husband ever objected to his unemancipated child's receipt of earnings. His right to credit for those earnings was therefore waived. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Inability to Claim Children as Dependents for Tax Purposes. - The husband was not entitled to credit for his inability to claim his children as dependents for income tax purposes. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Rehabilitation from Alcoholism. - In case in which custody of child was taken from the mother because of the mother's problem with alcohol, the district court's subsequent finding that the mother had made substantial progress in rehabilitation from alcoholism and that her accomplishments constituted a material change of circumstances affecting the welfare of the child were upheld. Perdue v. Perdue, 76 N.C. App. 600, 334 S.E.2d 86 (1985).

Inappropriate Conduct by Custodial Parent. - A change in custody from the father to the mother was justified, where the father lived with a homosexual partner and engaged in homosexual relationships and activities, including physical lovemaking, which was witnessed by the children; the father kept admittedly improper sexual material in the home; and the father's partner took the children out of the home without their father's knowledge of their whereabouts. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).

Remarriage. - Remarriage in and of itself is not a sufficient change of circumstance to justify modification of a child custody order. Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, cert. denied, 298 N.C. 568, 261 S.E.2d 122 (1979).

Remarriage without a finding of fact indicating the effect of remarriage on a child is not a sufficient change of circumstances to justify modification of a child custody order. Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985).

Consideration of Needs of Father's Second Family. - In determining a father's ability to meet the required payments for the support of his children, some reasonable allowance must be made for his living expenses and for the fact that he has a second family. However, the needs of children of his first marriage cannot be made subservient to the needs of his second family. Beasley v. Beasley, 37 N.C. App. 255, 245 S.E.2d 820 (1978), aff'd, 296 N.C. 580, 251 S.E.2d 433 (1979).

Court erred in reducing a father's child support obligation for one child on the ground that he had a newborn child in his home; the fact that the father had a newborn child to care for did not constitute a significant and material change of circumstances. State ex rel. Cross v. Saunders, 168 N.C. App. 235, 607 S.E.2d 309 (2005).

Attainment of Majority by One of Several Children. - Where plaintiff agreed to support his children by the payment of a certain amount per month until the youngest reached 18, the fact that the oldest child had reached 18 was not a change in circumstances, and the court erred in ordering a reduction of payment by reason of the fact that the oldest child had reached 18. Hershey v. Hershey, 57 N.C. App. 692, 292 S.E.2d 141 (1982).

Where a person having custody under a prior order has become unfit or is no longer able or suited to retain custody, such a consideration is of utmost importance in inquiring into the matter of custody, but it is not alone determinative. In re Bowen, 7 N.C. App. 236, 172 S.E.2d 62 (1970).

If the parent who was awarded custody of children were subsequently to become unfit, it would be possible for the trial court, upon proper findings, to grant custody to a fit person. Where there is no evidence that the fitness or unfitness of either party has changed, the trial court may not modify a prior order awarding custody unless some other sufficient change of condition is shown. In re Poole, 8 N.C. App. 25, 173 S.E.2d 545 (1970).

Finding of Unfitness. - Where parent was found to be a fit and proper parent, and in a later order found to be an unfit parent, the finding of unfitness constituted a change in circumstances. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

Where Person Denied Custody Under Prior Order Due to Unfitness Becomes Fit. - Where at the time of the first hearing the poor health and emotional instability of the mother rendered her unsuitable to have custody of the two oldest children of the parties, but subsequently this changed, the court was entitled, in view of these changed circumstances, to inquire again into the matter of custody and to determine whether the welfare of the children would be better served by placing them in the custody of their mother. Kenney v. Kenney, 15 N.C. App. 665, 190 S.E.2d 650 (1972).

Father's Interference With Mother's Relationship With Children - Trial court properly granted a mother's motion, pursuant to G.S. 50-13.7, to modify a custody order and granted primary custody of the parties' two children to the mother; the trial court properly found a substantial change in circumstances based on the father's interference with the mother's relationship with the children, the trial court had jurisdiction pursuant to G.S. 50A-202(a), and the trial court properly denied the father's motions pursuant to G.S. 1A-1, Rule 59 and G.S. 1A-1, Rule 60 to stay the order and for a new trial. Senner v. Senner, 161 N.C. App. 78, 587 S.E.2d 675 (2003).

Arbitrary termination of visitation rights of grandparents by mother constituted a substantial change of circumstances where the grandparents had established a continuing substantial relationship with their grandchildren since the entry of earlier custody order, and the court found sufficient facts to justify its conclusion that it was in the best interest of the grandchildren to maintain a continuing relationship with the grandparents through the granting of visitation privileges. Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14, cert. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).

Parent Denied Custody Despite Doctor's Recommendation. - Although doctor recommended that custody should continue with mother, it was not an abuse of discretion for judge to order a change of custody of the child from mother to father where doctor testified that the child had severe emotional problems requiring "substantial immediate change", that the visitation schedule be limited, and that one parent (mother) exercise more control; the judge agreed with doctor that the child's problems needed immediate remedy; however, he believed that father was the parent to exercise more control. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580 (1989).

Bearing of Illegitimate Child. - Where wife who had left this State after she had been awarded custody of children later returned with an illegitimate child, there was a change of circumstances affecting the welfare of the children, which empowered the court to alter or modify the custody order if it was deemed necessary to do so to further the welfare of the children. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

Whether the birth of a child out of wedlock constitutes a substantial change of circumstances affecting the welfare of the child sufficient to justify a change in custody is to be determined by examining the facts of each case. Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985), holding that under the circumstances the trial court found insufficient changes to justify a change in custody.

Minor child's hospitalization and its resulting costs constituted a substantial change in circumstances. Thus case was remanded to take into account the parties' abilities to provide support for the minor child's medical expenses and to enter an order modifying the support order. Lawrence v. Nantz, 115 N.C. App. 478, 445 S.E.2d 87 (1994).

Date from which to measure change in circumstances. - As a husband did not allege any change in circumstances under G.S. 50-13.7(a) after the date the separation agreement was incorporated into the final divorce decree, the date of the final divorce decree was the proper date from which to measure a change in circumstances in concluding that there had been no change in circumstances. Smart v. State, 198 N.C. App. 161, 678 S.E.2d 720 (2009).

Change in Circumstances Shown. - In light of a prior instance of sexual abuse of children by one of mother's boyfriends and the court's express previous instruction that she not "bring dates to the same residence with the children," mother's admission that she allowed boyfriend to live in her home for several weeks and continued to see him, along with psychologist's testimony as to a deterioration in the children's behavior corresponding with boyfriend's involvement with their mother, involved a substantial change of circumstances. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

The court's finding that father had improved, after finding him totally uninvolved at the time of the prior order, represented a changed circumstance justifying some modification at least with respect to the father. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

The court's findings as to child's poor health and conduct when with defendant mother, and as to her improved state when with plaintiff father, supported by competent evidence as to the child's conduct, habits, health, schedule, treatment, and response at different times, justified changing the joint custody arrangement that was in force, for these findings indicated changed circumstances that were affecting the welfare of the child. Teague v. Teague, 84 N.C. App. 545, 353 S.E.2d 242 (1987).

The trial court did not err in transferring custody of the minor child to defendant where the financial strain caused by plaintiff 's loss of her job and the birth of two additional children within two years out of wedlock clearly constitutes a substantial change of circumstances. White v. White, 90 N.C. App. 553, 369 S.E.2d 92 (1988).

The court's effective determination of a "substantial involuntary reduction" in father's income was adequate to support its conclusion that there had been a change of circumstances sufficient to warrant modification of previous child support order; thus the court did not err in failing to make findings concerning the actual past expenditures of the minor children prior to reaching its change of circumstances decision. McGee v. McGee, 118 N.C. App. 19, 453 S.E.2d 531 (1995).

In child custody action, findings supported trial court's conclusion that there had been a substantial change of circumstances since the order where father had consistently attempted to thwart efforts by the defendant to maintain and develop a mother-child relationship with child, where father threatened to stop or disallow visitation by the mother with the child, and where mother's home life and family situation changed and improved since the order. Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989).

Evidence about child's psychological state supported judge's finding of a substantial change of circumstances and the change of custody of the child from the mother to the father where doctor testified that the disappearance of child's emotional equilibrium occurred during a period when the predominate parental influence upon him was mother and that a possible cause of the child's problems was his mother's hostility which centered around the child's visitations with father, visitations which were often interfered with by mother. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580 (1989).

Court properly modified support order to reflect changed circumstances where child's needs and related expenses had greatly increased. Brooker v. Brooker, 133 N.C. App. 285, 515 S.E.2d 234 (1999).

Order modifying custody was affirmed where trial court found, inter alia, that the mother's new fiancee was a convicted child abuser. McConnell v. McConnell, 151 N.C. App. 622, 566 S.E.2d 801 (2002).

Modification of a child custody order was in the child's best interest where the mother, although able to provide for the child, exposed the child to emotional harm and caused the deterioration of the child's relationship with his father. Jordan v. Jordan, 162 N.C. App. 112, 592 S.E.2d 1 (2004).

Modification of a child custody order was in the child's best interest where the trial court's findings were adequately supported by the evidence. Both parties testified that the mother allowed the child to view electronic mail messages that were sent by the father to the mother and the father also presented evidence that he had not been able to place telephone calls to the child as part of his visitation schedule. Jordan v. Jordan, 162 N.C. App. 112, 592 S.E.2d 1 (2004).

Modification of prior custody order was upheld where the mother's remarriage exposed the children to alcohol abuse, violent behavior, illegal drugs, and risk of physical harm, thus supporting the trial court's decision that there was a material and substantial change in circumstances and that modification would be of material benefit and in the children's best interest. Dreyer v. Smith, 163 N.C. App. 155, 592 S.E.2d 594 (2004).

Trial court's order increasing the husband's child support obligation was based on a material and substantial increase in both parties' incomes, living costs, and an increase in the costs of the needs and extra-curricular activities of the children. Meehan v. Lawrance, 166 N.C. App. 369, 602 S.E.2d 21 (2004).

Prior custody order was properly modified for a substantial change in circumstances under G.S. 50-13.7(a) as the trial court properly considered events after the prior custody order in finding that: (1) a mother had given birth to the child's sibling; (2) the mother had separated from her husband; (3) the child was in first grade; (4) the child had been diagnosed with and had treatment recommended for ADHD; and (5) the child needed ADHD medication and a father was willing to provide it. Lang v. Lang, 197 N.C. App. 746, 678 S.E.2d 395 (2009).

Trial court did not err in modifying a custody order because its unchallenged findings supported the conclusion that a father met his burden of showing that a change in circumstances actually had occurred and that the changes had affected the welfare of the children; the evidence revealed material changes in the circumstances, with respect to the parties' comparative stability as well as other considerations, between the time of the hearing resulting in the custody order and the modification proceedings. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Father was entitled to modification of a child custody order vesting primary custody of the children with the mother based on a substantial change of circumstances, where the mother had engaged in a course of conduct demonstrating hostility toward the father in front of the children, the mother lived over an hour from the children's school and often failed to get the children to school on time or at all, and the mother was emotionally unstable and volatile. Stephens v. Stephens, 213 N.C. App. 495, 715 S.E.2d 168 (2011).

Trial court did not abuse its discretion in modifying a father's monthly child support obligation because there had been a substantial change in circumstances since the initial child support order; the father had settled his workers' compensation and third-party claim, resulting in two large distributions and cessation of his monthly workers' compensation benefits, the child's expenses for day care and health insurance, and the child's expenses for day care and health insurance had increased. Simms v. Bolger, - N.C. App. - , 826 S.E.2d 522 (2019).

In a case in which the father had been traveling out of town frequently for his work, his travel schedule was irregular, and he and the mother had serious difficulties in communicating and making arrangements for changes in the child's schedule, to the child's detriment, the father's motion to modify custody was improperly dismissed for failure to state a claim upon which relief could be granted because the father's motion to modify alleged at least one substantial change of circumstances as the father was no longer required to travel and was available and able to care for the minor child on an equal basis with the mother. Stern v. Stern, - N.C. App. - , 826 S.E.2d 490 (2019).

Trial court did not err by modifying the custody order because its conclusion of law that there had been a substantial change in circumstances was supported by findings of fact, which were in turn based on competent evidence. The substantial change in circumstances presented by the father justified the trial court's decision to enter the modification order, including his new job, his new home, the child beginning first grade, the father marrying his girlfriend, and the child's close relationships with the girlfriend and her stepbrother. Fecteau v. Spierer, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Showing of Changed Circumstances Held Insufficient. - Where there was no finding of the plaintiff's original child-oriented expenses and no finding that the needs of the children had increased other than the unsupported finding that the children were older and thus their needs had substantially increased, there was not a sufficient showing of a "change in circumstances" within the meaning of this section. Waller v. Waller, 20 N.C. App. 710, 202 S.E.2d 791 (1974).

In a case where the sole finding of fact regarding a change of circumstances was a general finding that the child was older and that inflation had occurred, this, standing alone, was inadequate to support an order of increased support payments. Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891 (1987).

In a child custody order modifying the rights of defendant, the evidence was insufficient to show a substantial change in circumstances since the only change was defendant's new job enabling him to keep child with him at work and plaintiff's plans to marry, her increased income and that she no longer lived with her mother. Hinton v. Hinton, 87 N.C. App. 676, 362 S.E.2d 287 (1987).

Findings of fact found by the trial court held supported by the evidence and clearly and more than amply supported the court's conclusion that defendant had failed to show a substantial change of circumstances that would warrant a modification of consent judgment providing for alimony and child support. Outlaw v. Outlaw, 89 N.C. App. 538, 366 S.E.2d 247 (1988).

In an action to modify child support provisions of a separation agreement which has not previously been incorporated into an order or judgment of the court, the court is called upon, for the first time, to make a determination that the reasonable needs of the children are provided for in accordance with the abilities of those responsible for the children's support. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

Where the trial court found that defendant voluntarily quit his job, willfully and intentionally depressed his income, and failed to meet his burden of proof in showing a substantial change of circumstances, the court entered a judgment against defendant denying his motion to reduce child support by reason of substantial change of circumstances. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217 (1995).

As a substantial change in child's circumstances that was not present before the entry of the original child custody order was not shown, and the father's relocation to Hawaii was not a substantial change in circumstances affecting the child's welfare requiring that the joint custody order be amended allowing the father to move the child to Hawaii, trial court improperly modified the custody order, and the appellate court would vacate and remand the case to the trial court. Carlton v. Carlton, 145 N.C. App. 252, 549 S.E.2d 916 (2001), cert. denied, 536 U.S. 944, 122 S. Ct. 2630, 153 L. Ed. 2d 811 (2002).

Trial court did not abuse its discretion by finding that there had not been a change in circumstances affecting the welfare of a husband and wife's child because the mother spanked the child, the child expressed a desire to live with the husband, and the child had lived with the husband for four months, and the court's judgment denying the husband's motion for a change of custody was affirmed. Scott v. Scott, 157 N.C. App. 382, 579 S.E.2d 431 (2003).

There was insufficient evidence to support trial court's findings of a substantial change in circumstances justifying a modification of a child custody order based on findings that the parents' failure to communicate regarding issues with the minor child had resulted in trauma to the child and jeopardized the success of the joint custodial arrangement of the previous order; other than the mother's testimony regarding the child's normal reaction to a parental disagreement, no testimony was offered which supported a finding of emotional harm; indeed, the trial court made a specific finding of fact as to the current condition of the minor child, stating that he was very smart, very inquisitive and very happy, and daycare workers, grandparents, individuals who knew the parties, and both parents supported the trial court's finding as to the child's condition. Ford v. Wright, 170 N.C. App. 89, 611 S.E.2d 456 (2005).

There was insufficient evidence to support trial court's findings of a substantial change in circumstances justifying a modification of a child custody order based on findings that issues relating to domestic violence had not been effectively resolved; the trial court's findings reflected no substantial changes in the parties' communication difficulties from the prior order, the trial court had already considered the parties' past domestic troubles and communication difficulties in the prior custody order, and without findings of additional changes in circumstances or conditions, modification of the prior custody order was in error. Ford v. Wright, 170 N.C. App. 89, 611 S.E.2d 456 (2005).

Where an initial custody order awarded custody of a child to the paternal grandmother, the mother's motion to modify custody was properly denied under G.S. 50-13.7(a) because: (1) the "substantial change in circumstances" standard was properly applied to the motion to modify since the initial custody order was not on appeal; and (2) the mother did not present evidence that the mother's substantial change in circumstances affected the child. Warner v. Brickhouse, 189 N.C. App. 445, 658 S.E.2d 313 (2008).

Trial court properly granted a directed verdict pursuant to N.C. R. Civ. P. 58 to a former wife, and dismissed the former husband's motion for modification of his child support obligation pursuant to G.S. 50-13.7(a), as the evidence supported the finding that the husband did not show a substantial material change in circumstances; the evidence supported the determination that the husband's motivation in not looking for employment in good faith was to avoid child support obligations. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012).

With respect to a former husband's motion for modification of his child support obligation pursuant to G.S. 50-13.7(a), the trial court properly denied review of evidence regarding the former wife's failure to submit a financial affidavit or other information to determine whether a change had occurred, as her financial status had no bearing on the husband's ability to meet his support obligations due to his unemployment. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012).

With respect to a former husband's motion for modification of his child support obligation pursuant to G.S. 50-13.7(a), even if his income was reduced by more than 15 percent due to his unemployment, the presumption in the Child Support Guidelines that a change in circumstances occurred did not apply, as three years had not passed since the initial support order. Young v. Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012).

Trial court erred in modifying visitation and ordering the father to attend anger management classes because, while the father might have disciplined a child in an inappropriate manner, the father's inappropriate discipline did not affect the welfare of the children, and there was no finding of a substantial change in circumstances. Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013).

Failure to Find Change in Circumstances. - Trial court impermissibly modified a child support order by computing increases in the father's salary and applying those increases to payments over an 18-year period because the trial court failed to find a substantial change of circumstances as required under G.S. 50-13.7(a) the incorporated agreement provided automatic annual increases in child support based on the father's salary and failed to consider the needs of the children or other factors contained in G.S. 50-13.4(c). Wilson v. Wilson, 214 N.C. App. 541, 714 S.E.2d 793 (2011).

Reduction of Custodial Parent's Income on Return to School. - Trial court erred in concluding reduction in income of father, custodial parent, due to leaving employment to return to school could not be considered on motion to increase wife's child support obligations. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Plaintiff who quit her job to attend college could claim a voluntary reduction in income as a change of circumstance. Schroader v. Schroader, 120 N.C. App. 790, 463 S.E.2d 790 (1995).

Interim Child Support Order. - An interim child support order is temporary and is subject to retroactive modification; the requisite showing of changed circumstances is not applicable until there is a final determination of child support based upon the merits of the case. Miller v. Miller, 153 N.C. App. 40, 568 S.E.2d 914 (2002).

Showing of Substantial Change Not Necessary for Modification Where Prior Order Was Temporary. - Where trial court's prior order regarding custody and visitation was not, by its own language, permanent, the father was not required to show a substantial change in circumstances before the trial court modified its prior order to grant the father unsupervised visits. Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87 (2004).

Trial court's joint physical custody order did not err for a failure to find a change in circumstances, when the order differed from a prior temporary order, because such a finding was not required. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Trail Court Erred By Using Findings Of Fact That Were Res Judicata. - Trial court erred by using findings of fact that were res judicata to support a conclusion of law that there had been a substantial change of circumstances and to modify custody because the findings contained information that was disclosed to the trial court on or before the hearing; Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013).

IV. VISITATION RIGHTS.

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Custody Encompasses Visitation Rights. - Visitation privileges are but a lesser degree of custody. Thus, the word "custody," as used in this section, was intended to encompass visitation rights as well as general custody. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

Jurisdiction of courts in custody and thus, visitation, cases is continuous. A decree determines only the present rights with respect to such custody and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the child. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

Receipt of Support May Not Be Conditioned on Visitation. - A trial judge does not have authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342 (1986).

An agreement by the parties that the court may change visitation privileges in a custody order without any showing of changed conditions does not relieve the court of its duty to determine whether changed circumstances affecting the welfare of the child justify a modification. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

Trial court properly refused to consider issue of visitation rights on plaintiff's motion to set aside a child custody order, where such consideration would be a modification of the prior order's grant of exclusive custody to defendant, since the court may modify custody or visitation only upon a showing of changed circumstances and on adequate motion in the cause, and plaintiff's motion was inadequate for this purpose. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819 (1978).

Pervasive Interference with Visitation Rights Warranted Change in Custody. - Where the trial court made findings detailing a mother's pervasive interference with the father's visitation rights, as well as violent actions by the mother and her family at the father in the presence of the child, and these actions prevented the father from developing a relationship with his daughter resulting in an adverse effect on the welfare of the minor child, a change of custody was warranted. Hicks v. Alford, 156 N.C. App. 384, 576 S.E.2d 410 (2003).

Modification of Visitation Order. - Because the trial court's visitation order was a permanent order, the trial court erred by failing to mention its latest permanent order and purporting to modify that older order. Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013).

Contempt Order Did Not Improperly Modify Custody. - Trial court did not improperly modify custody or impose improper purge conditions because its contempt order identified what a father could and could not do regarding visitation times in order to purge himself of the civil contempt and insure his compliance with the previous court orders regarding the exchange time for weekend visitations; permanent joint legal custody and secondary physical custody remained with the father both before and after the contempt order. Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700 (2017).

Modification of Grandparents' Visitation Rights. - Before an order providing visitation for grandparents of a minor child may be modified, the party seeking modification must show changed circumstances and an abuse of discretion by the trial judge. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259 (1983).

Failure to State Findings on Issue of Visitation. - Where there is no finding by the trial court that ordered visitations are in the children's best interest, the case must be remanded for proper findings and conclusions on the issue. Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).

Best Interest of the Child Standard Proper as Visitation Order was Temporary. - Because of the outstanding issues and the order's specification that a further review hearing would be held in a period of time reasonably brief under the circumstances, the order was not a permanent order with respect to visitation; further, because the trial court correctly determined that the order was a temporary order with respect to visitation, it also properly applied a "best interests of the child" standard rather than requiring that the father demonstrate a change of circumstances. Lamond v. Mahoney, 159 N.C. App. 400, 583 S.E.2d 656 (2003).

V. FINDINGS AND DISCRETION OF TRIAL COURT.

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When Capacity to Pay May Be Basis for Award. - Under G.S. 50-13.4 and this section, a party's ability to pay child support is ordinarily determined by the party's actual income at time support award is made or modified. However, if there is a finding by the trial court that the party was acting in bad faith by deliberately depressing his or her income or otherwise disregarding the obligation to pay child support, then the party's capacity to earn may be the basis for the award. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Trial Court Required to Make Specific Findings. - It is not sufficient that there may be evidence in the record sufficient to support findings that could have been made; the trial court is required to make specific findings of fact with respect to factors listed in the statute. Such findings are required in order for the appellate court to determine whether the trial court gave "due regard" to the factors listed. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399 (1991).

Because the juvenile was already the subject of a custody order, the trial court was required to enter an order with findings and conclusions that supported modification of that order, yet no findings or conclusions were made, plus the trial court failed to find that there was not a need for continued State intervention, and remand was required. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).

Modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977); Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978); Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979); Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, cert. denied, 298 N.C. 568, 261 S.E.2d 122 (1979); Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

As Must an Increase in Child Support. - The court is not warranted in ordering an increase of child support in the absence of findings of fact supported by competent evidence to show a substantial change of condition affecting the welfare of the children. Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979).

Findings Held Unsupported. - It was error to order continued counseling on reunifying a child with the child's mother because the trial court's findings of fact did not support the order, as (1) the court found prior reunification efforts caused the child intense psychological stress and that more reunification counseling would re-traumatize the child, and (2) uncontested findings uniformly showed the mother made no improvements in years of prior counseling attempts and that the mother-son relationship had deteriorated further due to the mother's attitude, behavior, and general unwillingness to accept responsibility for the state of the mother's relationship with the child. Williams v. Chaney, 254 N.C. App. 593, 802 S.E.2d 756 (2017).

To properly determine a child's present reasonable needs, the trial court must hear evidence and make findings of specific fact on the actual past expenditures for the minor child, the present reasonable expenses of the minor child, and the parties' relative abilities to pay. Norton v. Norton, 76 N.C. App. 213, 332 S.E.2d 724 (1985).

Findings as to Child's Best Interests. - In making the best interest decision, the trial court is vested with broad discretion and can be reversed only upon a showing of abuse of discretion. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

In exercising its discretion in determining the best interest of the child in a relocation case, factors appropriately considered by the trial court include but are not limited to: the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

Although a mother voluntarily dismissed her domestic violence complaint at the time a memorandum of judgment was entered regarding custody, a trial court did not abuse its discretion in considering the claim when the father filed a motion for modification of custody, pursuant to G.S. 50-13.7, because "acts of domestic violence between the parties" was one of the factors the trial court was to consider, pursuant to G.S. 50-13.2(a), when making findings as to the best interests of the child. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

Insufficient Findings as to Child's Best Interests. - Trial court's conclusion for a father to be granted primary physical custody and the mother to be granted secondary physical custody was remanded because the findings of fact did not explain why it was in the best interests of the children for the father to be granted primary physical custody; the custody order merely recognized the existence of disputes and identified evidence from both parties that could bear upon those disputes without resolving the disputes. Hinson v. Hinson, - N.C. App. - , 836 S.E.2d 309 (2019).

Findings as to Relative Abilities of Parties. - The court must make findings as to the relative abilities of the parties to provide support before the court can order a change in the amount of support payments. Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980).

Findings as to Past Expenditures. - The court must make findings of specific facts as to actual past expenditures in order to determine the amount of support necessary to meet the reasonable needs of the child for health, education, and maintenance. Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979); Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980); Walker v. Tucker, 69 N.C. App. 607, 317 S.E.2d 923 (1984).

Finding That Father Is Fit. - That the father is a fit person to have sole or joint custody of the children, by itself, is no basis for modifying the order previously entered. Ratley v. Ratley, 99 N.C. App. 219, 392 S.E.2d 653 (1990).

Evaluation of Parties' Fitness. - The trial court, in deciding cases involving the custody of children, may be called upon to evaluate the emotional stability and fitness of the parties. In making such an evaluation, the court, sitting as the trier of fact, may exercise its own reason and common sense, and use the knowledge acquired by its observation and experience in everyday life. O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277 (1984), rev'd on other grounds, 313 N.C. 432, 329 S.E.2d 370 (1985).

Finding of Failure to Prove Change. - While the court must make findings of fact to support its order, it is not required to make findings in addition to a finding that the moving party has failed to prove a change in circumstances sufficient to warrant modification of the custody order. Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980).

Conclusive Effect of Court's Finding. - A court's findings of fact in modifying a child custody order are conclusive on appeal if supported by competent evidence. In re Bowen, 7 N.C. App. 236, 172 S.E.2d 62 (1970); Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429 (1980).

The trial judge's findings of fact in custody orders are binding on the appellate courts if supported by competent evidence. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Hassell v. Means, 42 N.C. App. 524, 257 S.E.2d 123, cert. denied, 298 N.C. 568, 261 S.E.2d 122 (1979).

A finding by the district court that there has been no sufficient change of circumstances to justify modification of a custody order is conclusive and binding on the Court of Appeals if supported by competent evidence. Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305 (1977). See also, In re Harrell, 11 N.C. App. 351, 181 S.E.2d 188 (1971).

Wide Discretion Is Vested in the Trial Judge. - Custody cases often involve difficult decisions; however, it is necessary that the trial judge be given wide discretion in making his determination, for the trial judge has the opportunity to see the parties in person and to hear the witnesses. Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975).

The trial judge, having the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving the custody of children. O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277 (1984), rev'd on other grounds, 313 N.C. 432, 329 S.E.2d 370 (1985).

Judge's Decision Will Not Be Upset Absent Abuse. - In determining child custody wide discretion is necessarily vested in the trial judge who has the opportunity to see the parties and hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 513 (1972).

In determining matters of child custody, the trial court is vested with wide discretion, and his decision should not be upset absent a clear showing of an abuse of discretion. Hensley v. Hensley, 21 N.C. App. 306, 204 S.E.2d 228 (1974).

What represents the welfare of the child is frequently a difficult determination and the trial court is in the best position to observe the parties and evaluate the evidence. Therefore, the judgment of the trial court will not be disturbed on appeal if the evidence supports the findings of fact and those findings form a valid basis for the conclusions of law and order. Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985).

If Evidence Supports Findings of Fact and Conclusions of Law. - Because the trial court has the opportunity to observe all the parties and evaluate evidence which sometimes appears differently in cold print, if the evidence supports the findings of fact by the trial court and those findings of fact form a valid basis for the conclusions of law, the judgment entered will not be disturbed on appeal. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337 (1974).

Even If There Is Evidence to the Contrary. - The scope of appellate review of a trial court's judgment awarding custody of children is well settled: The court's findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence to the contrary, or even though some incompetent evidence may have been admitted. In re Williamson, 32 N.C. App. 616, 233 S.E.2d 677 (1977); O'Briant v. O'Briant, 70 N.C. App. 360, 320 S.E.2d 277 (1984), rev'd on other grounds, 313 N.C. 432, 329 S.E.2d 370 (1985).

The court's findings in modifying a custody decree are conclusive if supported by competent evidence, even if there is evidence contra or incompetent evidence in the record. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994); Vuncannon v. Vuncannon, 82 N.C. App. 255, 346 S.E.2d 274 (1986).

But the trial court may not sua sponte enter an order modifying a previously entered custody decree. Kennedy v. Kennedy, 107 N.C. App. 695, 421 S.E.2d 795 (1992).

Good Faith Finding Required. - Determination of the trial court that it was not necessary to make a finding of bad faith in reduction of income where the party seeking support modification was the custodial parent was not supported by current case law, nor was the trial court correct in concluding that when a custodial parent sought a change of child support based upon a reduction in income, that custodial parent had to request the court to make a finding of fact as to his or her good faith. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Must Be Sufficient Evidence of Proscribed Intent. - A trial court's conclusion underlying imposition of the earnings capacity rule must be based upon evidence that the actions which reduced the party's income were not taken in good faith. There must be sufficient evidence of the proscribed intent. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11 (1988).

Error to Reduce Arrearage Absent Findings or Evidence. - Without the requisite, specific findings or evidence in the record on the child's needs and expenses, or on the relative abilities of the parties to provide support, the trial court erred in reducing the child support arrearage. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Modification Improper Without Sufficient Findings of Fact. - Without a finding of a substantial change of circumstances, a modification based solely on the ground that the defendant mother was over-protective was improper. Benedict v. Coe, 117 N.C. App. 369, 451 S.E.2d 320 (1994).

Court's Discretion To Permit Relocation. - Although most relocations will present both advantages and disadvantages for the child, when the disadvantages are outweighed by the advantages, as determined and weighed by the trial court, the trial court is well within its discretion to permit the relocation. Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992).

Findings Held Sufficient. - Trial court did not err in modifying a Michigan custody order because the trial court's findings demonstrated that it considered factors beyond the parties' relative incomes and standards of living in determining whether there had been a substantial change in circumstances affecting the children's welfare; the trial court addressed the level of involvement of the mother and father in the children's education and extra-curricular activities, the mother's lack of full participation in the children's activities, the mother's missing four or five visits per year with her children, the father's disciplining the children by taking away their privileges, and the mother's not disciplining them. Crenshaw v. Williams, 211 N.C. App. 136, 710 S.E.2d 227 (2011).

Findings Held Insufficient. - In an action seeking an increase in child support over the amount set forth in separation agreement, the order which contained no specific findings with respect to the actual past or present expenses incurred for the support of the children was insufficient to support the court's conclusion that the reasonable needs of the children amounted to $2,800.00 per month. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602 (1988).

Where the factors listed by the trial court as dispositive on the substantial change of circumstance requirement were oriented toward parental fitness, not adverse alterations of the children's welfare, and were bare observations of plaintiff's or defendant's actions, not examples of how those actions adversely impacted the children, the findings, without more, did not meet the standard required to show circumstances must be so changed that the welfare of the child would be adversely affected unless the custody provision was modified. Garrett v. Garrett, 121 N.C. App. 192, 464 S.E.2d 716 (1995).

Award of additional retroactive child support for private schooling was denied where the trial court's limited findings failed to set forth the existence of a "sudden emergency" so unusual or extraordinary as to require plaintiff to expend sums in excess of defendant's existing support obligation, and the court's order contained no findings reflective of defendant's ability to pay during the period the emergency expenses were allegedly incurred. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

While the record indicated that there may have been evidence to support the visitation decree, the trial court's sparse findings of fact did not support it; the findings, standing alone, were not sufficient to support the extension of physical, telephonic, and electronic visitation. Lamond v. Mahoney, 159 N.C. App. 400, 583 S.E.2d 656 (2003).

A case involving a motion to modify child support under G.S. 50-13.7, was remanded for further findings of fact because, in entering an order deviating from the North Carolina Child Support Guidelines, the trial court did not make sufficient findings of fact regarding the reasonable needs of the children; the order only made findings regarding health insurance and the fact that the children did not need private schooling. Beamer v. Beamer, 169 N.C. App. 594, 610 S.E.2d 220 (2005).

When a father sought a modification of child support, remand was required because without a specific finding as to the father's income at the time of the hearing, the issue of whether his income had been involuntarily decreased could not be resolved. Armstrong v. Droessler, 177 N.C. App. 673, 630 S.E.2d 19 (2006).

Trial court impermissibly modified child custody without finding a substantial change in circumstances; despite re-captioning the contempt order as one modifying custody, the trial court denied both parties an opportunity to submit evidence or present arguments regarding custody modification. In addition, the trial court made no findings of fact or conclusion of law regarding a substantial change in circumstances affecting the welfare of the minor child, only a best interest conclusion. Jackson v. Jackson, 192 N.C. App. 455, 665 S.E.2d 545 (2008).

VI. JURISDICTION.

Editor's Note. - Some of the cases cited below were decided prior to enactment of the Uniform Child Custody Jurisdiction Act, former G.S. 50A-1 et seq., and prior to enactment of the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq.

First Court to Acquire Jurisdiction Retains Jurisdiction. - Except as provided in G.S. 50-13.5(f), the ordinary rule of civil procedure applies to this section, namely, that the first court to acquire jurisdiction of a cause retains jurisdiction, to the exclusion of other courts. Thus, if a judgment involving the custody and the support of a minor child has been entered in this State, the judge trying a subsequent action for absolute divorce may not interfere with the earlier judgment. Only the court of this State which entered the earlier judgment for custody and support of the minor child may modify or vacate it, upon a motion in the cause and a showing of a change of circumstances. Tate v. Tate, 9 N.C. App. 681, 177 S.E.2d 455 (1970).

G.S. 50-13.5(f) contemplates only the institution of an action for custody and support. It does not affect the situation where custody and support have already been determined and one of the parties seeks a modification of the order establishing custody and support. In such a case, the court first obtaining jurisdiction retains jurisdiction to the exclusion of all other courts and is the only proper court to bring an action for the modification of an order establishing custody and support. Tate v. Tate, 9 N.C. App. 681, 177 S.E.2d 455 (1970).

Filing of a motion in a cause in which the court has not acquired jurisdiction does not serve to confer jurisdiction under this section. Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E.2d 103 (1970).

Failure to File Motion Did Not Divest Court of Jurisdiction. - Mother's failure to file a motion to modify the father's child support obligation did not divest the trial court of jurisdiction to modify the Voluntary Support Agreement and Order under this section, as the trial court was not divested of its continuing jurisdiction and the provision requiring such a motion was directory, not mandatory. Catawba Cty. v. Loggins, 370 N.C. 83, 804 S.E.2d 474 (2017).

What Plaintiff Must Show to Obtain Modification of Another State's Order. - In order to invoke the aid of subsection (b) of this section, governing the entry of a new order for child custody or support modifying or superseding an order entered by a court of another state, a plaintiff must show (1) jurisdiction and (2) changed circumstances. Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E.2d 103 (1970).

For cases as to full faith and credit accorded to out-of-state decrees, decided prior to enactment of the Uniform Child Custody Jurisdiction Act, G.S. 50A-1 et seq., see Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371 (1958); In re Marlowe, 268 N.C. 197, 150 S.E.2d 204 (1966); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); In re Kluttz, 7 N.C. App. 383, 172 S.E.2d 95 (1970).

Presence of Child. - For cases as to the effect of the presence of the child in this State on the jurisdiction of the courts of this State, decided prior to enactment of the Uniform Child Custody Jurisdiction Act, G.S. 50A-1 et seq., see Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140 (1969); Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473 (1974); Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975).

North Carolina Court Had Authority to Modify Florida Order. - While a Florida order granted custody to the grandmother pursuant to a procedure not found in North Carolina, once the trial court in North Carolina obtained jurisdiction, it had authority to modify the Florida order pursuant to the statute, based upon findings of substantial change in circumstances and that modification would be in the child's best interest; the terms of the Florida order had to be considered, along with what transpired after. Quevedo-Woolf v. Overholser, 261 N.C. App. 387, 820 S.E.2d 817 (2018), appeal dismissed, review denied, stay denied, 372 N.C. 359, 828 S.E.2d 164, 2019 N.C. LEXIS 580 (2019).

VII. PROCEDURE.

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This section provides the procedural mechanism permitting modification. Goodhouse v. DeFravio, 57 N.C. App. 124, 290 S.E.2d 751 (1982).

Reduction of Support Without Notice and Hearing Unconstitutional. - In an action seeking enforcement of the provisions of a separation agreement relating to child support, reduction of the child support payments without a proper proceeding and notice and opportunity to be heard deprived plaintiff of her constitutional rights under the due process provisions of the State and federal constitutions. Mann v. Mann, 57 N.C. App. 587, 291 S.E.2d 794 (1982).

Reliance on Previous Adjudication Order Sufficient. - Trial court's finding of fact and conclusions of law that, based on a previous adjudication order, the order granting the father exclusive custody of the children was in the best interests of the children was sufficient to support the modification pursuant to G.S. 50-13.7. In re A.S., 182 N.C. App. 139, 641 S.E.2d 400 (2007).

Valid Custody Order May Not Be Collaterally Modified. - A valid order awarding custody of the child of the marriage is conclusive upon the parties and may not be modified collaterally by a petition praying that the child's custody be awarded to petitioner during a certain period. Robbins v. Robbins, 266 N.C. 635, 146 S.E.2d 671 (1966).

A child support order may be modified or vacated only after an equitable distribution. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Modification of child support would be vacated and remanded where it was part of an equitable distribution judgment and thus appeared to have been decided and entered at the same time as the equitable distribution, rather than after the equitable distribution as required by subsection (f) of G.S. 50-20. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Proceeding Where Divorce Was Awarded Outside State. - When the parents were divorced outside this State, either parent may have the question of custody as between them determined in a special proceeding. In re Sauls, 270 N.C. 180, 154 S.E.2d 327 (1967). See also G.S. 50A-1 et seq.

Standing of County in Modification Action. - Where plaintiff mother, who received public assistance under the Aid to Families with Dependent Children Program, assigned to county her right to receive any support on behalf of her children, the county, by virtue of the assignment pursuant to G.S. 110-137, had an interest in the order for the support of plaintiff's children. Therefore, under subsection (a) of this section, the county had standing to make a motion in an action between plaintiff mother and defendant father to modify a child support order to require that the support be paid to the county. Cox v. Cox, 44 N.C. App. 339, 260 S.E.2d 812 (1979).

Premature Request for Modification. - Plaintiff's request that trial court alter provisions in incorporated separation agreement for modification of child support payments and payments for wife's separate maintenance after July, 1990, was properly denied as premature where the date in question had not yet occurred. Theokas v. Theokas, 97 N.C. App. 626, 389 S.E.2d 278 (1990).

Proper procedure to follow when a supported child reaches majority is to apply to the trial court for relief under this section. Tilley v. Tilley, 30 N.C. App. 581, 227 S.E.2d 640 (1976).

A husband had no authority to unilaterally attempt his own modification of child support payments upon one of his children reaching the age of 18, and being no longer a "minor" under G.S. 48A-2, even though the support order directed the husband to pay support for "his two minor children. . . ." The proper procedure for the husband to follow would have been to apply to the trial court for relief pursuant to this section. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985).

Procedure and Contents of Order for Retrospective Increase. - An order for retrospective increase of an existing child support order must set out a conclusion of law that there was a substantial and material change in circumstances affecting the welfare of the child occasioned by a sudden emergency so as to warrant such an increase. The court's conclusion of law must be sustained by specific factual findings based upon competent evidence, reflecting the actual amount disbursed by a party within three years or less of the date of filing of the current motion, towards reasonably necessary expenditures made on behalf of the child. The findings also must reflect the ability to pay of the parent subject to the motion during the period for which increased support is sought. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).

Court Not Required to Weigh Children's Needs Against Obligor's Ability to Pay Absent Request by Obligor. - Grant of motion to modify obligor's child support was proper, because, inter alia, there had been a substantial change in circumstances in that it had been more than three years since the calculation of the obligor's child support obligation and the current obligations calculation was greater than 15 % of the prior obligation calculation, and trial court made findings concerning the obligor's earning capacity, but was not required to weigh the children's needs against the obligor's ability to pay the amount of support where the obligor did not request a deviation requiring the trial court to make such findings. Head v. Mosier, 197 N.C. App. 328, 677 S.E.2d 191 (2009).

Arbitration. - While, in the absence of court proceedings, parties may settle their disputes by arbitration, once the issues are brought into court, the court may not delegate its duty to resolve those issues to arbitration. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Where the only issue before the trial court was the custody of plaintiff's and defendant's son and there was no motion to modify the child support, the trial court was without authority to issue an order modifying an earlier consent order setting child support. Royall v. Sawyer, 120 N.C. App. 880, 463 S.E.2d 578 (1995).

Attorney's Fees - In an action by a mother to modify a father's child support pursuant to G.S. 50-13.7(a), the trial court properly granted attorney's fees to the mother pursuant to G.S. 50-13.6, because the trial court specifically found as a fact that the mother was a party acting in good faith to obtain reasonable support for her daughter, that the mother lacked sufficient means to pay her attorney fees, and that the father refused to provide support which was reasonable under the circumstances. Mason v. Erwin, 157 N.C. App. 284, 579 S.E.2d 120 (2003).

Waiver of Issue on Appeal. - Because a mother asserted inconsistent legal positions on whether a substantial change of circumstances affecting the welfare of the children had occurred before the trial court and the court of appeals, she waived that argument on appeal; the trial court did not err in concluding that a substantial change of circumstances affecting the welfare of the children had occurred. Hinson v. Hinson, - N.C. App. - , 836 S.E.2d 309 (2019).

Appeal. - Where an initial custody order awarded custody of a child to the paternal grandmother and the mother's motion to modify custody was denied, the appellate court could not consider the mother's challenge to the initial custody order because the mother's notice of appeal from the denial of the motion to modify made no reference to the initial order and did not properly present the underlying judgment for review. Warner v. Brickhouse, 189 N.C. App. 445, 658 S.E.2d 313 (2008).

Appellate Jurisdiction. - Appellate court had no jurisdiction to hear an appeal of a denial of child support modification because: (1) an order continuing an existing order until legally interdependent custody issues could be heard was interlocutory, as, without knowing the custody arrangement, a trial court could not find which child support worksheet to use, or whether to deviate from the guidelines; (2) the order did not resolve the custody issue; and (3) allowing an appeal would lead to an unnecessary appeal. Gray v. Peele, 235 N.C. App. 554, 761 S.E.2d 739 (2014).


§ 50-13.7A: Repealed by Session Laws 2013-27, s. 2, effective October 1, 2013.

History

(2007-175, s. 2; repealed by 2013-27, s. 2 effective October 1, 2013.)

Editor's Note. - Former G.S. 50-13.7A pertained to custody and visitation upon military temporary duty, deployment, or mobilization. For present similar provisions pertaining to the Uniform Deployed Parents Custody and Visitation Act, see G.S. 50A-350 et seq.


§ 50-13.8. Custody of persons incapable of self-support upon reaching majority.

For the purposes of custody, the rights of a person who is mentally or physically incapable of self-support upon reaching his majority shall be the same as a minor child for so long as he remains mentally or physically incapable of self-support.

History

(1967, c. 1153, s. 2; 1971, c. 218, s. 3; 1973, c. 476, s. 133; 1979, c. 838, s. 29; 1989, c. 210.)

Legal Periodicals. - For survey of 1972 caselaw on child support and pre-Chapter 48A consent judgments, see 51 N.C.L. Rev. 1091 (1973).

CASE NOTES

Termination of Obligation to Support. - Since the enactment of Chapter 48A in 1971, the decisions of the court and the Supreme Court have concluded that the father's legal obligation to support his child ceases when the child reaches the age of 18, provided that it is not shown that the child is insolvent, unmarried, and physically or mentally incapable of earning a livelihood. Nolan v. Nolan, 20 N.C. App. 550, 202 S.E.2d 344, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974).

In the absence of an enforceable contract otherwise obligating a parent, North Carolina courts have no authority to order child support for a child who has attained the age of majority, unless the child has not completed secondary schooling, or, pursuant to this section, the child is mentally or physically incapable of self-support. Bridges v. Bridges, 85 N.C. App. 524, 355 S.E.2d 230 (1987).

Continuance of Obligation. - Ordinarily the law presumes that when a child reaches the age of 21 years (now 18 years) he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates. But where this presumption is rebutted by the fact of mental or physical incapacity, it no longer obtains, and the obligation of the father continues. Speck v. Speck, 5 N.C. App. 296, 168 S.E.2d 672 (1969).

Father Held Not Obligated to Support Mentally Retarded Son Beyond Twentieth Birthday. - Where petitioner mother moved the court to require respondent father to continue to pay child support for their mentally retarded son beyond his twentieth birthday and court ordered respondent to pay $600.00 per month continuing ongoing child support without regard to the child's chronological age in light of the plain and definite meaning of the section, the trial court erred and respondent was not obligated to support his son beyond his twentieth birthday. Yates v. Dowless, 93 N.C. App. 787, 379 S.E.2d 79, aff'd, 325 N.C. 703, 386 S.E.2d 200 (1989).

Defendant's Obligation Abrogated by Amendment of Section. - Where defendant's obligation, set out in a consent judgment, to continue supporting his disabled child beyond her minority had been abrogated by the 1979 amendment of this section, which eliminated the requirement compelling parents to continue supporting their disabled children beyond their minority, and he had not contracted to continue the payments apart from that obligation, an order requiring defendant to continue supporting the child had no legal basis. Jackson v. Jackson, 102 N.C. App. 574, 402 S.E.2d 869 (1991).

Failure of Action for Support for College Education to State Claim for Relief. - A daughter, over 18 years of age, who graduated from high school and who brought an action against her father to obtain support for her college education, failed to state a claim for relief, since North Carolina courts do not have authority to order child support for children who have reached their majority. Appelbe v. Appelbe, 75 N.C. App. 197, 330 S.E.2d 57, cert. denied, 314 N.C. 662, 336 S.E.2d 399 (1985).

Custody of Incompetent Adult. - Trial court lacked jurisdiction to determine custody of a daughter who had been adjudicated an incompetent adult under N.C. Gen. Stat. Chapter 35A because the clerk of superior court exercised its jurisdiction under Chapter 35A, to the exclusion of the trial court under G.S. 50-13.8 and retained jurisdiction to resolve the dispute regarding custody; the district court has concurrent jurisdiction with the clerk of superior court with respect to custody of disabled adult children. McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590 (2010).

District court has concurrent jurisdiction with the clerk of superior court with respect to custody of disabled adult children because the district court obtains jurisdiction under G.S. 50-13.8 to determine custody only when the disabled adult child at issue has not been declared incompetent and had a guardian appointed; while the superior court clerk retains jurisdiction over all guardianship matters under N.C. Gen. Stat. Chapter 35A, obviously not all disabled adult children are declared incompetent and provided guardians, and in those instances, G.S. 50-13.8 fills the gap, authorizing the district court to determine custody. McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590 (2010).

Cited in Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348 (1972); Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486 (2013).


§ 50-13.9. Procedure to insure payment of child support.

  1. Upon its own motion or upon motion of either party, the court may order at any time that support payments be made to the State Child Support Collection and Disbursement Unit for remittance to the party entitled to receive the payments. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110-136.5(c1) apply.
  2. After entry of an order by the court under subsection (a) of this section, the State Child Support Collection and Disbursement Unit shall transmit child support payments that are made to it to the custodial parent or other party entitled to receive them, unless a court order requires otherwise.
  3. In a IV-D case:
    1. The designated child support enforcement agency shall have the sole responsibility and authority for monitoring the obligor's compliance with all child support orders in the case and for initiating any enforcement procedures that it considers appropriate.
    2. The clerk of court shall maintain all official records in the case.
    3. The designated child support enforcement agency shall maintain any other records needed to monitor the obligor's compliance with or to enforce the child support orders in the case, including records showing the amount of each payment of child support received from or on behalf of the obligor, along with the dates on which each payment was received. In any action establishing, enforcing, or modifying a child support order, the payment records maintained by the designated child support agency shall be admissible evidence, and the court shall permit the designated representative to authenticate those records.
  4. In a non-IV-D case:
    1. Repealed by Session Laws 2005, ch. 389, s. 1.
    2. The clerk of court shall maintain all official records and all case data concerning child support matters previously enforced by the clerk of court.
    3. Repealed by Session Laws 2005, ch. 389, s. 1.
  5. In a IV-D case, the parties affected by the order shall inform the designated child support enforcement agency of any change of address or other condition that may affect the administration of the order. The court may provide in the order that a party failing to inform the court or, as appropriate, the designated child support enforcement agency, of a change of address within a reasonable period of time may be held in civil contempt.
  6. Upon affidavit of an obligee, the clerk or a district court judge may order the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both. The order shall require the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both, and shall order the obligor to bring to the hearing records and information relating to the obligor's employment, the obligor's licensing privileges, and the amount and sources of the obligor's disposable income. The order shall state:
    1. That the obligor is under a court order to provide child support, the name of each child for whose benefit support is due, and information sufficient to identify the order;
    2. That the obligor is delinquent and the amount of overdue support;
    3. That the court may order the revocation of some or all of the obligor's licensing privileges if the obligor is delinquent in an amount equal to the support due for one month;
    4. That the court may order income withholding if the obligor is delinquent in an amount equal to the support due for one month;
    5. That income withholding, if implemented, will apply to the obligor's current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110-136.10;
    6. That failure to bring to the hearing records and information relating to his employment and the amount and sources of his disposable income will be grounds for contempt;
    7. That if income withholding is not an available or appropriate remedy, the court may determine whether the obligor is in contempt or whether any other enforcement remedy is appropriate.
  7. ,  (f) Repealed by Session Laws 2005-389, s. 1.
  8. Nothing in this section shall preclude the independent initiation by a party of proceedings for civil contempt or for income withholding.

The order may be signed by the clerk or a district court judge, and shall be served on the obligor pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure. On motion of the person to whom support is owed in a non-IV-D case, with the approval of the district court judge, if the district court judge finds it is in the best interest of the child, no order shall be issued.

History

(1983, c. 677, s. 1; 1985 (Reg. Sess., 1986), c. 949, ss. 3-6; 1989, c. 479; 1993, c. 517, s. 6; c. 553, s. 67.1; 1995, c. 444, s. 1; c. 538, s. 1.2; 1997-443, s. 11A.118(a); 1999-293, ss. 11-14; 2001-237, s. 7; 2005-389, s. 1; 2006-264, s. 97.)

Effect of Amendments. - Session Laws 2005-389, s. 1, as amended by Session Laws 2006-264, s. 97, effective January 1, 2007, rewrote subsection (b2); deleted the former first sentence of subsection (c), which read: "In a non-IV-D case, the parties affected by the order shall inform the clerk of court of any change of address or of other condition that may affect the administration of the order."; rewrote subsection (d); deleted former subsection (e), which read: "The clerk of court shall maintain and make available to the district court judge a list of attorneys who are willing to undertake representation, pursuant to this section, of persons to whom child support is owed. No attorney shall be placed on such list without his permission"; and deleted former subsection (f), which related to exceptions to requirements for notification of judge in all enforcement hearings.

CASE NOTES

Contempt. - Orders finding a father in contempt for a failure to pay child support were vacated because (1) an agency presented no evidence other than the amount of child support arrears or past public assistance owed, while the father presented substantial evidence of an inability to pay, including the father's medical condition and minimal living expenses and lack of income, (2) the orders' findings did not support a conclusion that the father willfully refused to pay or had the ability to pay civil contempt purge payments, (3) nothing showed the father was working at the time of trial, nor was this found, and (4) the trial court did not address how much, if any, regular income the father had or the father's subsistence living expenses. Cty. of Durham ex rel. Wilson v. Burnette, 262 N.C. App. 17, 821 S.E.2d 840 (2018), aff'd, 824 S.E.2d 397, 2019 N.C. LEXIS 209 (2019).

Failure to Notify of Change in Address. - Mailing of a notice of registration to a father's last known address by first-class mail was sufficient to notify the father of a foreign child support order because the notice of filing and the certificate of mailing for the registration order indicated that SCDSS complied with the requirements of S.C. Code Ann. § 20-7-1140(A), and the father failed to establish at the contempt hearing that he ever updated his address with the North Carolina Department of Social Services (NCDSS) as required by both court order and State statute, G.S. 50-13.9(c); the father never notified SCDSS of any changes in his address as he was statutorily required to do under S.C. Code Ann. § 63-17-450 by virtue of the child support order, he openly acknowledged at his contempt hearing that he was aware of and was in arrearages on two child support obligations, and notwithstanding his acknowledgment of the two child support cases, the father failed to properly notify either SCDSS or NCDSS of his change in address. S.C. Dep't of Soc. Servs. v. Johnson, 386 S.C. 426, 688 S.E.2d 588 (Dec. 30, 2009).


§ 50-13.10. Past due child support vested; not subject to retroactive modification; entitled to full faith and credit.

  1. Each past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason, in this State or any other state, except that a child support obligation may be modified as otherwise provided by law, and a vested past due payment is to that extent subject to divestment, if, but only if, a written motion is filed, and due notice is given to all parties either:
    1. Before the payment is due or
    2. If the moving party is precluded by physical disability, mental incapacity, indigency, misrepresentation of another party, or other compelling reason from filing a motion before the payment is due, then promptly after the moving party is no longer so precluded.
  2. A past due child support payment which is vested pursuant to G.S. 50-13.10(a) is entitled, as a judgment, to full faith and credit in this State and any other state, with the full force, effect, and attributes of a judgment of this State, except that no arrearage shall be entered on the judgment docket of the clerk of superior court or become a lien on real estate, nor shall execution issue thereon, except as provided in G.S. 50-13.4(f)(8) and (10).
  3. As used in this section, "child support payment" includes all payments required by court or administrative order in civil actions and expedited process proceedings under this Chapter, by court order in proceedings under Chapter 49 of the General Statutes, and by agreements entered into and approved by the court under G.S. 110-132 or G.S. 110-133.
  4. For purposes of this section, a child support payment or the relevant portion thereof, is not past due, and no arrearage accrues:
    1. From and after the date of the death of the minor child for whose support the payment, or relevant portion, is made;
    2. From and after the date of the death of the supporting party;
    3. During any period when the child is living with the supporting party pursuant to a valid court order or to an express or implied written or oral agreement transferring primary custody to the supporting party;
    4. During any period when the supporting party is incarcerated, is not on work release, and has no resources with which to make the payment.
  5. When a child support payment that is to be made to the State Child Support Collection and Disbursement Unit is not received by the Unit when due, the payment is not a past due child support payment for purposes of this section, and no arrearage accrues, if the payment is actually made to and received on time by the party entitled to receive it and that receipt is evidenced by a canceled check, money order, or contemporaneously executed and dated written receipt. Nothing in this section shall affect the duties of the clerks or the IV-D agency under this Chapter or Chapter 110 of the General Statutes with respect to payments not received by the Unit on time, but the court, in any action to enforce such a payment, may enter an order directing the clerk or the IV-D agency to enter the payment on the clerk's or IV-D agency's records as having been made on time, if the court finds that the payment was in fact received by the party entitled to receive it as provided in this subsection.

History

(1987, c. 739, s. 4; 1999-293, s. 15.)

Cross References. - As to liens on real and personal property of persons owing past due child support, see G.S. 44-86.

As to discharge of liens on property of persons owing past due child support, see G.S. 44-87.

As to legislation deleting the June 30, 1998 expiration date for all enactments and amendments by Session Laws 1997-433, see the editor's note under G.S. 44-86.

Legal Periodicals. - For article, "Using Hindsight to Change Child Support Obligations: A Survey of Retroactive Modification and Reimbursement of Child Support in North Carolina," see 10 Campbell L. Rev. 111 (1987).

CASE NOTES

Modification When One of Several Children Reaches Age 18. - While child support obligations ordered by a court terminate upon the child reaching age 18, unless the child is otherwise emancipated prior to reaching age 18 or the trial court in its discretion continues to enforce the payment obligation after the child reaches age 18 and while the child is in primary or secondary school, when one of two or more minor children for whom support is ordered reaches age 18, and when the support ordered to be paid is not allocated as to each individual child, the supporting parent has no authority to unilaterally modify the amount of the child support payment. The supporting parent must apply to the trial court for modification. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Cases holding that where one of two minor children reaches the age of 18, a trial court may retroactively modify child support arrearages when equitable considerations exist which would create an injustice if modification is not allowed, were decided before this section became effective on October 1, 1987. Under this statute, if the supporting party is not disabled or incapacitated as provided by subdivision (a)(2), a past due, vested child support payment is subject to divestment only as provided by law, and if, but only if, a written motion is filed, and due notice is given to all parties before the payment is due. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991).

Retroactive Modification of Support Payments. - Child support payments may not be reduced retroactively so as to grant relief from arrearages, absent a compelling reason. Van Nynatten v. Van Nynatten, 113 N.C. App. 142, 438 S.E.2d 417 (1993).

It was error to reduce a parent's child support arrearage by an amount that represented past public assistance paid before the parent knew about the child because that reason did not meet any of the statutory conditions for retroactive reduction. Orange County ex rel. Harris v. Keyes, 158 N.C. App. 530, 581 S.E.2d 142 (2003).

Expenses Already Incurred. - The General Assembly did not intend to equate retroactive payments with expenses already incurred. Thus, this section was not applicable and did not require plaintiff to file a motion to modify the support order before the minor child was hospitalized and had incurred medical expenses. Lawrence v. Nantz, 115 N.C. App. 478, 445 S.E.2d 87 (1994).

Oral agreement to modify child support payments would not justify noncompliance with the statute, and an obligor parent would still be required to apply to the court before altering his payments. Van Nynatten v. Van Nynatten, 113 N.C. App. 142, 438 S.E.2d 417 (1993).

Equitable Estoppel Did Not Bar Claim for Past Support. - Even assuming that on some set of facts equitable estoppel might properly bar a claim for child support arrears, it was inapplicable where husband, seeking to rely on equitable estoppel could not show that, in good faith reliance on the conduct of his ex-wife, he had changed his position for the worse; the only change made in his position was the retention to his benefit of money owed for the support of his children. Griffin v. Griffin, 96 N.C. App. 324, 385 S.E.2d 526 (1989).

Mother did not establish that she relied to her detriment on the parties' agreement to reduce child support; since the support order was not judicially modified, the separation agreement remained in full force and effect. Baker v. Showalter, 151 N.C. App. 546, 566 S.E.2d 172 (2002).

Full Faith and Credit - Where the only issue was arrearages, a North Carolina trial court erred in failing to give full faith and credit to an Oregon child support order; the trial court's duty was to enforce the Oregon order until a subsequent North Carolina order was entered, and then to enforce a father's child support arrearages under both orders. New Hanover County ex rel. Mannthey v. Kilbourne, 157 N.C. App. 239, 578 S.E.2d 610 (2003).

Where defendant made no motion for modification of a foreign support order, the North Carolina trial court was without authority to modify, in any way for any reason, past due child support payments; and defendant was not entitled to credit for any sums given directly to the child outside of the foreign support order. Pieper v. Pieper, 108 N.C. App. 722, 425 S.E.2d 435 (1993).

Modification Not Retroactive. - Where plaintiff filed her motion to modify the child support payments on March 27, 1991 and the trial court entered an order on February 18, 1993 increasing defendant's child support obligation from $800 per month to $1,230 per month effective April 1, 1991, the trial court noted that on the date this order was entered, the effective date of the time the payments were to begin had passed and ordered defendant to pay $9,890 to the Clerk of Superior Court representing the increase in child support payments for the months of April, 1991 through February, 1993; because April, 1991 was subsequent to the March 27, 1991 filing of the plaintiff's motion, the trial court's order was not a retroactive modification. Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352, cert. denied, 337 N.C. 694, 448 S.E.2d 527 (1994).

Evidence of Emergency Situation. - A child support payment may not be retroactively increased without evidence of some emergency situation that required the expenditure of sums in excess of the amount of child support paid. Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352, cert. denied, 337 N.C. 694, 448 S.E.2d 527 (1994).

Modification on Amount Accrued After Filing. - A trial court has the discretion to make a modification of a child support order effective from the date a petition to modify is filed as to support obligations that accrue after such date. Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352, cert. denied, 337 N.C. 694, 448 S.E.2d 527 (1994).

Interest may be awarded on child support accruing on the date the complaint is filed. Taylor v. Taylor, 128 N.C. App. 180, 493 S.E.2d 819 (1997).

Arrearage Payment Improper. - Trial court abused its discretion by ordering the father to pay $24,400 arrears at the rate of $100 per month where it failed to consider the purpose of child support, the welfare of the minor children, and the father's ability to pay. Moreover, the father's voluntary payments were not a proper factor for consideration, and there was no basis in the law for punishing the mother for waiting for a year and two months to file a motion to force the father to do what he was legally obligated to do. Dillingham v. Ramsey, - N.C. App. - , 837 S.E.2d 129 (2019).

Applied in Williams v. Williams, 105 N.C. App. 615, 414 S.E.2d 80 (1992); Transylvania County Dep't of Social Servs. v. Connolly, 115 N.C. App. 34, 443 S.E.2d 892 (1994).

Cited in Tate v. Tate, 95 N.C. App. 774, 384 S.E.2d 48 (1989); Sikes v. Sikes, 330 N.C. 595, 411 S.E.2d 588 (1992); Snipes v. Snipes, 118 N.C. App. 189, 454 S.E.2d 864 (1995); Kelly v. Otte, 123 N.C. App. 585, 474 S.E.2d 131 (1996); Chused v. Chused, 131 N.C. App. 668, 508 S.E.2d 559 (1998); Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (2000).


§ 50-13.11. Orders and agreements regarding medical support and health insurance coverage for minor children.

  1. The court may order a parent of a minor child or other responsible party to provide medical support for the child, or the parties may enter into a written agreement regarding medical support for the child. An order or agreement for medical support for the child may require one or both parties to pay the medical, hospital, dental, or other health care related expenses.
  2. The court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance is available at a reasonable cost. If health insurance is not presently available at a reasonable cost, the court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance becomes available at a reasonable cost. As used in this subsection, health insurance for the benefit of the child is considered reasonable in cost if the coverage for the child is available at a cost to the parent that does not exceed five percent (5%) of the parent's gross income. In applying this standard, the cost is the cost of (i) adding the child to the parent's existing coverage, (ii) child-only coverage, or (iii) if new coverage must be obtained, the difference between the cost of self-only and family coverage. The court may require one or both parties to maintain dental insurance.
  3. The party ordered or under agreement to provide health insurance shall provide written notice of any change in the applicable insurance coverage to the other party.
  4. The employer or insurer of the party required to provide health, hospital, and dental insurance shall release to the other party, upon written request, any information on a minor child's insurance coverage that the employer or insurer may release to the party required to provide health, hospital, and dental insurance.
  5. When a court order or agreement for health insurance is in effect, the signature of either party shall be valid authorization to the insurer to process an insurance claim on behalf of a minor child.
  6. If the party who is required to provide health insurance fails to maintain the insurance coverage for the minor child, the party shall be liable for any health, hospital, or dental expenses incurred from the date of the court order or agreement that would have been covered by insurance if it had been in force.
  7. When a noncustodial parent ordered to provide health insurance changes employment and health insurance coverage is available through the new employer, the obligee shall notify the new employer of the noncustodial parent's obligation to provide health insurance for the child. Upon receipt of notice from the obligee, the new employer shall enroll the child in the employer's health insurance plan.

History

(1989 (Reg. Sess., 1990), c. 1067, s. 1; 1991, c. 419, s. 2; c. 761, s. 42; 1997-433, s. 3.1; 1998-17, s. 1; 2003-288, s. 3.2; 2015-220, s. 1.)

Effect of Amendments. - Session Laws 2015-220, s. 1, effective August 18, 2015, rewrote the third sentence and added the present fourth sentence of subsection (a1). For applicability, see editor's note.

CASE NOTES

The trial court committed reversible error in ordering the defendant to carry health insurance for his five minor children by three different mothers without first determining its availability at a reasonable cost. The trial court has no discretion outside this section to order a parent to provide health insurance, not even under G.S. 50-13.11(a) in the guise of "medical support." Buncombe County ex rel. Blair v. Jackson, 138 N.C. App. 284, 531 S.E.2d 240 (2000).

Cited in Lawrence v. Nantz, 115 N.C. App. 478, 445 S.E.2d 87 (1994).

Opinions of Attorney General

Medical Child Support Provisions. - The medical child support enforcement provisions of House Bill 1563, 1993 (Reg. Sess., 1994), N.C. Session Laws c. 644, are inapplicable to the North Carolina Teachers' and State Employees' Comprehensive Major Medical Plan (now State Health Plan for Teachers and State Employees) and the governmental entities whose employees and retirees, along with their dependents, are eligible for coverage under the Plan or its HMO option. Medical child support orders nonetheless may be enforced directly against State employees and retirees who fail to enroll, or maintain coverage for, their eligible dependent children under the State Health Plan in accordance with the provisions of G.S. 50-13.4(f), 50-13.9 and this section. See opinion of Attorney General to Patricia Crawford, Associate General Counsel, University of North Carolina at Chapel Hill, - N.C.A.G. - (August 10, 1995).


§ 50-13.12. Forfeiture of licensing privileges for failure to pay child support or for failure to comply with subpoena issued pursuant to child support or paternity establishment proceedings.

  1. As used in this section, the term:
    1. "Licensing board" means a department, division, agency, officer, board, or other unit of state government that issues hunting, fishing, trapping, drivers, or occupational licenses or licensing privileges.
    2. "Licensing privilege" means the privilege of an individual to be authorized to engage in an activity as evidenced by hunting, fishing, or trapping licenses, regular and commercial drivers licenses, and occupational, professional, and business licenses.
    3. "Obligee" means the individual or agency to whom a duty of support is owed or the individual's legal representative.
    4. "Obligor" means the individual who owes a duty to make child support payments under a court order.
    5. "Occupational license" means a license, certificate, permit, registration, or any other authorization issued by a licensing board that allows an obligor to engage in an occupation or profession.
  2. Upon a finding by the district court judge that the obligor is willfully delinquent in child support payments equal to at least one month's child support, or upon a finding that a person has willfully failed to comply with a subpoena issued pursuant to a child support or paternity establishment proceeding, and upon findings as to any specific licensing privileges held by the obligor or held by the person subject to the subpoena, the court may revoke some or all of such privileges until the obligor shall have paid the delinquent amount in full, or, as applicable, until the person subject to the subpoena has complied with the subpoena. The court may stay any such revocation pertaining to the obligor upon conditions requiring the obligor to make full payment of the delinquency over time. Any such stay shall further be conditioned upon the obligor's maintenance of current child support. The court may stay the revocation pertaining to the person subject to the subpoena upon a finding that the person has complied with or is no longer subject to the subpoena. Upon an order revoking such privileges of an obligor that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the obligor is delinquent in child support payments and that the obligor's licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the obligor is no longer delinquent in child support payments. Upon an order revoking such privileges of a person subject to the subpoena that does not stay the revocation, the clerk of superior court shall notify the appropriate licensing board that the person has failed to comply with the subpoena issued pursuant to a child support or paternity establishment proceeding and that the person's licensing privileges are revoked until such time as the licensing board receives proof of certification by the clerk that the person is in compliance with or no longer subject to the subpoena.
  3. An obligor may file a request with the clerk of superior court for certification that the obligor is no longer delinquent in child support payments upon submission of proof satisfactory to the clerk that the obligor has paid the delinquent amount in full. A person whose licensing privileges have been revoked under subsection (b) of this section because of a willful failure to comply with a subpoena may file a request with the clerk of superior court for certification that the person has met the requirements of or is no longer subject to the subpoena. The clerk shall provide a form to be used for a request for certification. If the clerk finds that the obligor has met the requirements for reinstatement under this subsection, then the clerk shall certify that the obligor is no longer delinquent and shall provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. If the clerk finds that the person whose licensing privileges have been revoked under subsection (b) of this section for failure to comply with a subpoena has complied with or is no longer subject to the subpoena, then the clerk shall certify that the person has met the requirements of or is no longer subject to the subpoena and shall provide a copy of the certification to the person. Upon request of the person, the clerk shall mail a copy of the certification to the appropriate licensing board.
  4. If licensing privileges are revoked under this section, the obligor may petition the district court for a reinstatement of such privileges. The court may order the privileges reinstated conditioned upon full payment of the delinquency over time. Any order allowing license reinstatement shall additionally require the obligor's maintenance of current child support. If the licensing privileges of a person other than the obligor are revoked under this section for failure to comply with a subpoena, the person may petition the district court for reinstatement of the privileges. The court may order the privileges reinstated if the person has complied with or is no longer subject to the subpoena that was the basis for revocation. Upon reinstatement under this subsection, the clerk of superior court shall certify that the obligor is no longer delinquent and provide a copy of the certification to the obligor. Upon request of the obligor, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon reinstatement of the person whose licensing privileges were revoked based on failure to comply with a subpoena, the clerk of superior court shall certify that the person has complied with or is no longer subject to the subpoena. Upon request of the person whose licensing privileges are reinstated, the clerk shall mail a copy of the certification to the appropriate licensing board.
  5. An obligor or other person whose licensing privileges are reinstated under this section may provide a copy of the certification set forth in either subsection (c) or (d) to each licensing agency to which the obligor or other person applies for reinstatement of licensing privileges. Upon request of the obligor or other person, the clerk shall mail a copy of the certification to the appropriate licensing board. Upon receipt of a copy of the certification, the licensing board shall reinstate the license.
  6. Upon receipt of notification by the clerk that an obligor's or other person's licensing privileges are revoked pursuant to this section, the board shall note the revocation on its records and take all necessary steps to implement and enforce the revocation. These steps shall not include the board's independent revocation process pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act, which process is replaced by the court process prescribed by this section. The revocation pertaining to an obligor shall remain in full force and effect until the board receives certification under this section that the obligor is no longer delinquent in child support payments. The revocation pertaining to the person whose licensing privileges were revoked on the basis of failure to comply with a subpoena shall remain in full force and effect until the board receives certification of reinstatement under subsection (d) of this section.

History

(1995, c. 538, ss. 1, 1.1; 1997-433, s. 5.3; 1998-17, s. 1.)

§ 50-13.13. Motion or claim for relief from child support order based on finding of nonpaternity.

  1. Notwithstanding G.S. 1A-1, Rule 60 of the North Carolina Rules of Civil Procedure, or any other provision of law, an individual who, as the father of a child, is required to pay child support under an order that was entered by a North Carolina court pursuant to Chapter 49, 50, 52C, or 110 of the General Statutes, or under an agreement between the parties pursuant to G.S. 52-10.1 or otherwise, and that is subject to modification by a North Carolina court under applicable law may file a motion or claim seeking relief from a child support order as provided in this section.
  2. A motion or claim for relief under this section shall be filed as a motion or claim in the cause in the pending child support action, or as an independent civil action, and shall be filed within one year of the date the moving party knew or reasonably should have known that he was not the father of the child. The motion or claim shall be verified by the moving party and shall state all of the following:
    1. The basis, with particularity, on which the moving party believes that he is not the child's father.
    2. The moving party has not acknowledged paternity of the child or acknowledged paternity without knowing that he was not the child's biological father.
    3. The moving party has not adopted the child, has not legitimated the child pursuant to G.S. 49-10, 49-12, or 49-12.1, or is not the child's legal father pursuant to G.S. 49A-1.
    4. The moving party did not act to prevent the child's biological father from asserting his paternal rights regarding the child.
  3. The court may appoint a guardian ad litem pursuant to G.S. 1A-1, Rule 17, to represent the interest of the child in connection with a proceeding under this section.
  4. Notwithstanding G.S. 8-50.1(b1), the court shall, upon motion or claim of a party in a proceeding under this section, order the moving party, the child's mother, and the child to submit to genetic paternity testing if the court finds that there is good cause to believe that the moving party is not the child's father and that the moving party may be entitled to relief under this section. If genetic paternity testing is ordered, the provisions of G.S. 8-50.1(b1) shall govern the admissibility and weight of the genetic test results. The moving party shall pay the costs of genetic testing. If a party fails to comply with an order for genetic testing without good cause, the court may hold the party in civil or criminal contempt or impose appropriate sanctions under G.S. 1A-1, Rule 37, of the North Carolina Rules of Civil Procedure, or both. Nothing in this subsection shall be construed to require additional genetic paternity testing if paternity has been set aside pursuant to G.S. 49-14 or G.S. 110-132.
  5. The moving party's child support obligation shall be suspended while the motion or claim is pending before the court if the support is being paid on behalf of the child to the State, or any other assignee of child support, where the child is in the custody of the State or other assignee, or where the moving party is an obligor in a IV-D case as defined in G.S. 110-129(7).
  6. The court may grant relief from a child support order under this section if paternity has been set aside pursuant to G.S. 49-14 or G.S. 110-132, or if the moving party proves by clear and convincing evidence, and the court, sitting without a jury, finds both of the following:
    1. The results of a valid genetic test establish that the moving party is not the child's biological father.
    2. The moving party either (i) has not acknowledged paternity of the child or (ii) acknowledged paternity without knowing that he was not the child's biological father. For purposes of this section, 'acknowledging paternity' means that the moving party has done any of the following:
      1. Publicly acknowledged the child as his own and supported the child while married to the child's mother.
      2. Acknowledged paternity in a sworn written statement, including an affidavit of parentage executed under G.S. 110-132(a) or G.S. 130A-101(f).
      3. Executed a consent order, a voluntary support agreement under G.S. 110-132 or G.S. 110-133, or any other legal agreement to pay child support as the child's father.
      4. Admitted paternity in open court or in any pleading.
  7. If the court determines that the moving party has not satisfied the requirements of this section, the court shall deny the motion or claim, and all orders regarding the child's paternity, support, or custody shall remain enforceable and in effect until modified as otherwise provided by law. If the court finds that the moving party did not act in good faith in filing a motion or claim pursuant to this section, the court shall award reasonable attorneys' fees to the prevailing party. The court shall make findings of fact and conclusions of law to support its award of attorneys' fees under this subsection.
  8. If the court determines that the moving party has satisfied the requirements of this section, the court shall enter an order, including written findings of fact and conclusions of law, terminating the moving party's child support obligation regarding the child. The court may tax as costs to the mother of the child the expenses of genetic testing.
  9. Any servicemember who is deployed on military orders, and is subject to the protections of the Servicemembers Civil Relief Act, shall have the period for filing a motion pursuant to subsection (b) of this section tolled during the servicemember's deployment. If the period remaining allowed for the filing of the motion following the servicemember's redeployment is less than 30 days, then the servicemember shall have 30 days for filing the motion.

The moving party's child support obligation shall not be suspended while the motion or claim is pending before the court if the support is being paid to the mother of the child.

Any unpaid support due prior to the filing of the motion or claim is due and owing. If the court finds that the mother of the child used fraud, duress, or misrepresentation, resulting in the belief on the part of the moving party that he was the father of the child, the court may order the mother of the child to reimburse any child support amounts paid and received by the mother after the filing of the motion or claim. The moving party has no right to reimbursement of past child support paid on behalf of the child to the State, or any other assignee of child support, where the child is in the custody of the State or other assignee, or where the moving party is an obligor in a IV-D case as defined in G.S. 110-129(7).

If the child was born in North Carolina and the moving party is named as the father on the child's birth certificate, the court shall order the clerk of superior court to notify the State Registrar of the court's order pursuant to G.S. 130A-118(b)(2). If relief is granted under this subsection, a party may, to the extent otherwise provided by law, apply for modification of or relief from any judgment or order involving the moving party's paternity of the child.

History

(2011-328, s. 3.)

Cross References. - As to civil actions to establish paternity and motion to set aside paternity, see G.S. 49-14.

As to affidavit of parentage and motion to set aside affidavit of parentage, see G.S. 110-132.

Editor's Note. - Session Laws 2011-328, s. 4, provides: "This act becomes effective January 1, 2012, and applies to motions or claims for relief filed on or after that date. Notwithstanding the provision in Section 3 of this act [which enacted G.S. 50-13.13] requiring motions or claims to be filed within one year of discovery that the moving party is not the father, any person who would otherwise be eligible to file a motion or claim may file a motion or claim pursuant to this act prior to January 1, 2013."


§§ 50-14, 50-15: Repealed by Session Laws 1967, c. 1152, s. 1.

§ 50-16: Repealed by Session Laws 1967, c. 1152, s. 1; c. 1153, s. 1.

Cross References. - As to action or proceeding for custody of minor child, see G.S. 50-13.1 et seq.


§ 50-16.1: Repealed by Session Laws 1995, c. 319, s. 1.

Cross References. - For present definitions applicable to this Chapter, see G.S. 50-16.1A.

Legal Periodicals. - For article "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For note on enforcement of separation agreements by specific performance, see 16 Wake Forest L. Rev. 117 (1980).

For note on separability of support and property provisions in ambiguous separation agreements, see 16 Wake Forest L. Rev. 152 (1980).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For note, "Discarding the Dual Consent Judgment Approach in Family Law in Light of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983)," see 20 Wake Forest L. Rev. 297 (1984).

For note, "Alimony Modification and Cohabitation in North Carolina," see 63 N.C.L. Rev. 794 (1985).

For 1984 survey, "Equitable Distribution Without Consideration of Marital Fault," see 63 N.C.L. Rev. 1204 (1985).

For note, "The Contingent Fee Contract in Domestic Relations Cases," see 7 Campbell L. Rev. 427 (1985).

For comment, "Alimony Reform for North Carolina," see 18 N.C. Cent. L.J. 87 (1989).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

For note, "Kuder v. Schroeder: The North Carolina Court of Appeals Holds That a Professional Education Is Not Within the Spousal Duty of Support," see 72 N.C.L. Rev. 1784 (1994).

For survey, "Termination of Lump Sum Alimony upon the Remarriage of a Dependent Spouse: Potts v. Tutterow," see 73 N.C.L. Rev. 2432 (1995).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-16, which dealt with actions for alimony without divorce and some of the cases cited below were decided under former G.S. 50-16.1.

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982). See also, Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Jurisdiction Depends on Statute. - Jurisdiction over the subject matter of divorce or an action for alimony without divorce is given only by statute. Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596 (1946).

As to surrender of marital rights under this section by a properly drawn separation agreement, see Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, rev'd on other grounds, 284 N.C. 407, 200 S.E.2d 622 (1973).

Status of Spouses Presents Mixed Questions of Law and Fact. - Determination of what constitutes a "dependent spouse" and what constitutes a "supporting spouse" requires an application of principles of statutory law to facts and involves mixed questions of law and fact. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

To Be Determined by Trial Judge. - The issues of who is a "dependent spouse" and who is a "supporting spouse," within the meaning of this section, should be decided by the trial judge. Bennett v. Bennett, 24 N.C. App. 680, 211 S.E.2d 835 (1975).

Defendant was not entitled to a jury trial on the issue of supporting and dependent spouse status, since issues of who is a dependent spouse and who is a supporting spouse are mixed questions of law and fact which can best be determined by the trial judge when he sets the amount of permanent alimony. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 734, 280 S.E.2d 449 (1981).

A supporting spouse is by definition married to a dependent spouse. Therefore, a determination that one spouse is a supporting spouse is a determination that the other is a dependent spouse and vice versa. Galloway v. Galloway, 40 N.C. App. 366, 253 S.E.2d 41 (1979).

Father was not entitled to accounting from mother for sums paid for child support pursuant to consent judgment. Glenn v. Glenn, 53 N.C. App. 515, 281 S.E.2d 83, cert. denied, 304 N.C. 390, 285 S.E.2d 832 (1981).

Procedure Where Grounds for Alimony Are Asserted Simultaneously as Grounds for Divorce. - While it is true that the determination of dependency properly rests with the trial judge, and not with the jury, where the grounds asserted for alimony are asserted simultaneously as grounds for divorce, the right to alimony depends on the legal entitlement to divorce, regardless of financial dependency. The ordinary and correct procedure in such cases, therefore, is to allow the jury to render its verdict on the "fault" issues of divorce, and then and only then to move to a bench hearing on dependency and the proper amount, if any, of alimony. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Consent Judgment Awarding Medical Expenses. - With the consent of the parties, the trial court, which has general jurisdiction of all domestic matters, could properly enter consent judgment, providing for payment of wife's medical payments, even though it contained a provision which was outside of the pleadings. Davis v. Davis, 78 N.C. App. 464, 337 S.E.2d 190 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 893 (1986).

Under consent judgment in which the court found as a fact that there were no claims for support or alimony pending between the parties and ordered plaintiff to pay all necessary and reasonable medical expenses incurred by defendant, parties did not intend for medical expenses to constitute alimony payments; thus, the trial court erred in entering judgment ex meru motu declaring portions of consent judgment null and void and unenforceable ab initio and in striking them. Davis v. Davis, 78 N.C. App. 464, 337 S.E.2d 190 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 893 (1986).

Applied in In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1 (1969); Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970); Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627 (1971); Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348 (1972); Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Therrell v. Therrell, 19 N.C. App. 321, 198 S.E.2d 776 (1973); Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405 (1977); Love v. Love, 41 N.C. App. 308, 254 S.E.2d 642 (1979); Fogleman v. Fogleman, 41 N.C. App. 597, 255 S.E.2d 269 (1979); Robbins v. Robbins, 43 N.C. App. 488, 259 S.E.2d 353 (1979); Harris v. Harris, 58 N.C. App. 314, 394 S.E.2d 602 (1982); Gray v. Snyder, 704 F.2d 709 (4th Cir. 1983); Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781 (1984); Gilbert v. Gilbert, 71 N.C. App. 160, 321 S.E.2d 455 (1984); Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988); Cunningham v. Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997).

Cited in Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969); Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971); McConnell v. McConnell, 11 N.C. App. 193, 180 S.E.2d 465 (1971); Hill v. Hill, 13 N.C. App. 641, 186 S.E.2d 665 (1972); Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132 (1973); Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282 (1973); Orren v. Orren, 25 N.C. App. 106, 212 S.E.2d 394 (1975); Privette v. Privette, 30 N.C. App. 305, 227 S.E.2d 137 (1976); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620 (1977); Elmwood v. Elmwood, 295 N.C. 168, 244 S.E.2d 668 (1978); Davis v. Davis, 35 N.C. App. 111, 240 S.E.2d 488 (1978); Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978); Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399 (1978); Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978); Cavendish v. Cavendish, 38 N.C. App. 577, 248 S.E.2d 340 (1978); Williams v. Williams, 42 N.C. App. 163, 256 S.E.2d 401 (1979); Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979); Hamilton v. Hamilton, 296 N.C. 574, 251 S.E.2d 441 (1979); Jones v. Jones, 42 N.C. App. 467, 256 S.E.2d 474 (1979); Southern v. Southern, 43 N.C. App. 159, 258 S.E.2d 422 (1979); Wilhelm v. Wilhelm, 43 N.C. App. 549, 259 S.E.2d 319 (1979); Newsome v. Newsome, 43 N.C. App. 580, 259 S.E.2d 577 (1979); Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981); Allison v. Allison, 51 N.C. App. 622, 277 S.E.2d 551 (1981); Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981); Walters v. Walters, 54 N.C. App. 545, 284 S.E.2d 151 (1981); Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981); Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Henderson v. Henderson, 307 N.C. 401, 298 S.E.2d 345 (1983); Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985); Michael v. Michael, 77 N.C. App. 841, 336 S.E.2d 414 (1985); North Carolina Baptist Hosps. v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987); Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706 (1988); Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988); Rudisill v. Rudisill, 102 N.C. App. 280, 401 S.E.2d 818 (1991); Caldwell v. Caldwell, 103 N.C. App. 380, 405 S.E.2d 588 (1991); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993); Rogers v. Rogers, 111 N.C. App. 606, 432 S.E.2d 907 (1993); Wyatt v. Hollifield, 114 N.C. App. 352, 442 S.E.2d 149 (1994); Potts v. Tutterow, 114 N.C. App. 360, 442 S.E.2d 90 (1994), aff'd, 340 N.C. 97, 455 S.E.2d 156, reh'g denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

II. ALIMONY.

As to meaning of "alimony," see Rogers v. Vines, 28 N.C. 293 (1846); Taylor v. Taylor, 93 N.C. 418 (1885).

Subdivision (1) Contemplates "Permanent Alimony". - While the word "permanent" is not included in the definition of "alimony" in subdivision (1) of this section, the definition obviously contemplates what is commonly referred to as "permanent alimony." Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).

Intent to Include Lump Sum Awards. - The legislature clearly intended to include lump sum awards as well as periodic support in the statutory definition of alimony. McCall v. Harris, 55 N.C. App. 390, 285 S.E.2d 335, cert. denied, 305 N.C. 301, 290 S.E.2d 703 (1982).

Trial judge may award alimony in a lump payment or monthly payments. Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971).

Or May Combine Forms of Payment. - The fact that a trial judge used a combination of both a lump sum payment and a continuing monthly payment for alimony does not constitute an abuse of discretion. Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971).

An award of alimony for specified period only is indubitably alimony in gross or "lump sum alimony." Whitesell v. Whitesell, 59 N.C. App. 552, 297 S.E.2d 172 (1982), cert. denied, 307 N.C. 583, 299 S.E.2d 653 (1983).

Award of Alimony Upheld. - Where the record revealed sufficient substantial evidence to permit a jury to find (1) that plaintiff was a "supporting spouse" and defendant was a "dependent spouse" as defined in this section, and (2) that plaintiff had abandoned defendant and willfully failed to provide her with necessary subsistence according to his means and conditions, so as to render her condition intolerable and her life burdensome, these permissible findings would support an award of alimony. Garner v. Garner, 10 N.C. App. 286, 178 S.E.2d 94 (1970).

As to the purpose and effect of former G.S. 50-16, relating to alimony without divorce and custody of the children of the parties, see McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833 (1941); Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332 (1945); Reece v. Reece, 232 N.C. 95, 59 S.E.2d 363 (1950); Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156 (1951); Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226 (1952); Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955); Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966); Myers v. Myers, 270 N.C. 263, 154 S.E.2d 84 (1967).

III. ALIMONY PENDENTE LITE.

.

The right of a wife to subsistence pending trial and to attorneys' fees was derived from the common law. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Purpose of Pendente Lite Awards. - The remedy of subsistence and counsel fees pendente lite is intended to enable the wife to maintain herself according to her station in life and employ counsel to meet her husband at trial upon substantially equal terms. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Amount of subsistence and counsel fees pendente lite is within the discretion of the court, but this discretion is limited by the factual conditions. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Pendente Lite Order Cannot Set Up Savings Account. - A pendente lite order is intended to go no further than provide subsistence and counsel fees pending the litigation. It cannot set up a savings account in favor of the plaintiff. Such is not the purpose and it cannot be made the effect of an order. Yearwood v. Yearwood, 287 N.C. 254, 214 S.E.2d 95 (1975).

IV. DEPENDENT SPOUSE.

.

Construction With Other Sections. - Whether a spouse is substantially in need of maintenance and support as defined by former G.S. 50-16.1(3) is determined by construing this statute in pari material with the terms of former G.S. 50-16.5 which prescribed factors for the trial court to consider in determining the amount of alimony. Fink v. Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995).

To be entitled to alimony, alimony pendente lite, or counsel fees, spouse must be a dependent spouse. Little v. Little, 18 N.C. App. 311, 196 S.E.2d 562 (1973).

This section keys all awards, in the nature of permanent alimony and alimony pendente lite, to a spouse who is a dependent spouse within the meaning of subdivision (3). Hinton v. Hinton, 17 N.C. App. 715, 195 S.E.2d 319 (1973).

To be entitled to alimony, a spouse must not only have one of the grounds set forth in G.S. 50-16.2, he or she must also be a "dependent spouse." Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

For a discussion of the legislative intent as to judicial determinations of dependency under subdivision (3) of this section in light of G.S. 59-16.5, see Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).

"Dependent Spouse" Need Not Be Unable to Exist Without Other Spouse. - In order to be a "dependent spouse" for the purpose of receiving alimony pendente lite, one does not have to be unable to exist without the aid of the other spouse. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

But Must Be Unable to Maintain Accustomed Standard of Living. - The legislative intent in the use of the phrase "actually substantially dependent" in subdivision (4) of this section is clear. This term implies that the spouse seeking alimony must have actual dependence on the other in order to maintain standard of living in the manner to which that spouse had become accustomed during the last several years prior to separation. Thus, to qualify as a "dependent spouse" under subdivision (3) of this section, one must be actually without the means of providing for his or her accustomed standard of living. Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Knott v. Knott, 52 N.C. App. 543, 279 S.E.2d 72 (1981).

The term "accustomed standard of living of the parties" in G.S. 50-16.5(a) completes the contemplated legislative meaning of "maintenance and support" in subdivision (3) of this section. The latter phrase clearly means more than a level of mere economic survival. Plainly it contemplates the economic standard established by the marital partnership for the family unit during the years in which the marital contract was intact. It anticipates that alimony, to the extent it can possibly do so, shall sustain that standard of living for the dependent spouse to which the parties together became accustomed. Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Knott v. Knott, 52 N.C. App. 543, 279 S.E.2d 72 (1981).

When One Is a Dependent Spouse. - The dependency of the spouse asserting the claim may be established by proof that such spouse is either (a) actually substantially dependent upon the other spouse for his or her maintenance and support, or (b) substantially in need of maintenance and support from the other spouse. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972); Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973); Loflin v. Loflin, 25 N.C. App. 103, 212 S.E.2d 403 (1975).

Determination that one is a "dependent spouse" within the meaning of subdivision (3) of this section is a consequence of two or more related propositions taken as premises, one being the fact that the relationship of spouse exists, and the other consisting of at least the finding that one of the two alternatives in subdivision (3) is a fact. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Presson v. Presson, 13 N.C. App. 81, 185 S.E.2d 17 (1971); Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

To find that one is a dependent spouse the trial court must make findings of fact sufficient to show (1) that a marital relationship between the parties exists; (2) either (a) that the spouse is actually substantially dependent upon the other spouse for his or her maintenance and support, or (b) that the spouse is substantially in need of maintenance and support from the other spouse; and (3) that the supporting spouse is capable of making the payments required. Little v. Little, 18 N.C. App. 311, 196 S.E.2d 562 (1973).

In determining whether one qualifies as a dependent spouse under subdivision (3) of this section, as well as in determining the amount of alimony to be awarded, the courts must consider the factors enumerated in G.S. 50-16.5, the section for determining the amount of alimony. These factors include the estates, earnings, earning capacity, condition, and accustomed standard of living of the parties, and other facts of the particular case. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

To properly find a spouse dependent the court need only find that the spouse's reasonable monthly expenses exceed her monthly income and that the party has no other means with which to meet those expenses. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Lack of Capacity or Reasonable Opportunity May Render Spouse Dependent. - A wife is actually substantially dependent upon her husband for her maintenance and support or in substantial need of support by him if she is incapable of adequately providing for herself or is capable of adequately providing for herself but does not have a reasonable opportunity to do so. Galloway v. Galloway, 40 N.C. App. 366, 253 S.E.2d 41 (1979).

Where the trial court in an action for alimony pendente lite and permanent alimony found that plaintiff wife had been gainfully employed prior to her marriage to defendant and was "able-bodied, intelligent and capable to find employment," this finding was not sufficient to support the trial court's conclusion that plaintiff was not a dependent spouse within the meaning of subdivision (3) of this section, as it did not include a finding that the plaintiff had a reasonable opportunity but did not adequately support herself. Galloway v. Galloway, 40 N.C. App. 366, 253 S.E.2d 41 (1979).

Accustomed Standard of Living Is Determinative. - It is not necessary that a spouse be reduced to penury to be considered dependent; the accustomed standard of living is the proper measure. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

For a spouse to be "actually substantially dependent", he or she must have actual dependence on the other in order to maintain the standard of living to which he or she became accustomed during the last several years prior to the spouses' separation. To determine whether such actual dependence exists, the trial court must evaluate the parties' incomes and expenses measured by the standard of living of the family as a unit. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

"Actually substantially dependent" means that the spouse seeking alimony must be actually dependent upon the other in order to maintain a standard of living in the manner to which that spouse had become accustomed during the last several years prior to separation. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986); Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

A spouse is "actually substantially dependent" if he or she is without the means to provide for his or her accustomed standard of living. Phillips v. Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986).

The term "actually substantially dependent," as used in the first portion of the definition in subdivision (3), means that the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation; thus to qualify as a dependent spouse under that portion of subdivision (3), the spouse seeking alimony must be actually without means for providing for his or her accustomed standard of living. Caldwell v. Caldwell, 82 N.C. App. 225, 356 S.E.2d 821, cert. denied, 320 N.C. 791, 361 S.E.2d 72 (1987).

Absent Actual Dependence, Issue Is Substantial Need of Maintenance. - If the court determines that one spouse is not actually dependent on the other for such support, the court must then determine if one spouse is "substantially in need of maintenance and support" from the other, i.e., whether one spouse would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other. In doing so, the court must determine and consider the following: (1) The standard of living, socially and economically, to which the parties as a family unit became accustomed during the several years prior to their separation; (2) the present earnings, prospective earning capacity, and any other condition, such as health, of each spouse at the time of the hearing; (3) whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the parties' accustomed standard of living, taking into consideration the spouse's reasonable expenses in light of that standard of living; and (4) the financial worth or "estate" of both spouses. The court must also consider fault and other facts of the particular case such as the length of the marriage and the contribution made by each spouse to the financial status of the family over the years. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Even if a spouse is not actually substantially dependent, he or she is nevertheless a dependent spouse under the second part of the definition of subdivision (3) of this section if, considering the parties' earnings, earning capacity, estates, and other factors, the spouse seeking alimony demonstrates the need for financial contribution from the other spouse to maintain his or her accustomed standard of living. Phillips v. Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986).

The test of being "substantially in need" refers to something less than being "actually substantially dependent." The analysis under this test is much more extensive and requires detailed and specific findings by the trial court. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

And Even Spouse Who Is Not "Actually Substantially Dependent" May Be Substantially in Need. - Even where a spouse is not "actually substantially dependent," the spouse may be a dependent spouse under the second part of subdivision (3) of this section if he or she is substantially in need of maintenance and support, the meaning of which is determined by construing this statute in pari materia with the terms of G.S. 50-16.5. Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

The phrase "substantially in need of" requires the spouse seeking alimony to establish that he or she would be unable to maintain his or her accustomed standard of living (established prior to separation) without financial contribution from the other. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Maintenance of Accustomed Standard of Living by Borrowing. - The fact that a spouse can maintain his or her accustomed standard of living, by whatever means, pending the outcome of alimony litigation, does not determine the dependent spouse-supporting spouse issue. A finding that a spouse was forced to borrow substantial funds in order to maintain her accustomed standard of living would ordinarily lead to the conclusion that she was a dependent spouse. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Whether Spouse Is "Dependent" or "Supporting" Must Be Based on Findings. - The conclusions made by the court as to whether a spouse is "dependent" or "supporting" must be based on findings of fact sufficiently specific to indicate that the court properly considered the factors. In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated and the case remanded for necessary findings. It is not enough that there is evidence in the record from which such findings could have been made because it is for the trial court, and not the appellate court, to determine what facts are established by the evidence. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Findings that plaintiff wife worked and had a separate income did not preclude the trial court from determining that plaintiff was a dependent spouse and that defendant was a supporting spouse, where there was plenary evidence to show that wife was substantially dependent upon defendant and in substantial need of his support. Radford v. Radford, 7 N.C. App. 569, 172 S.E.2d 897 (1970).

A finding that the wife is unemployed and that she has no income is not sufficient, where the sparse record does not foreclose the possibilities suggested in subdivision (3) of this section that the wife may be dependent upon and supported by someone other than her husband or that she may not need any support at all. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Burden of proving dependency is upon the spouse asserting the claim for alimony or alimony pendente lite. Loflin v. Loflin, 25 N.C. App. 103, 212 S.E.2d 403 (1975).

This section looks first to the ability of the spouses to maintain the standard of living to which they have become accustomed during the last years of the marriage. The burden on the applicant for alimony is to show the accustomed standard of living and lack of means to maintain that standard. Only then does the ability of the other spouse to pay become significant. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

The trial court must evaluate the parties' income and expenses measured by the standard of living of the family as a unit in order to determine if a spouse is "actually substantially dependent." Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

Discretion of Trial Court. - Once a trial court determines that a spouse is dependent and is entitled to alimony, its award will not be disturbed on appeal absent a showing of abuse of discretion. Phillips v. Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986).

Spouse Not Dependent. - Where there was no showing that plaintiff had a substantial need for support from defendant or to maintain plaintiff's accustomed station in life, she was in no sense a dependent spouse within the meaning of subdivision (3) of this section. Lemons v. Lemons, 22 N.C. App. 303, 206 S.E.2d 327 (1974).

Trial court's conclusion that plaintiff wife was the "dependent spouse" entitled to support was not supported by findings of fact where the court found that defendant husband's income was "very significantly lower than same [had] been in the past" and also that plaintiff was "unable to continue to maintain her accustomed station in life," but there was no finding or evidence that defendant deliberately depress his income in an effort to avoid his obligations, and it was apparent that the trial court disregarded defendant's own inability to maintain the station in life to which he was formerly accustomed in its determination of dependency. Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980).

Findings of fact supported by competent evidence of record fully supported the trial judge's conclusion that plaintiff was no longer a "dependent spouse", which conclusion supported his order terminating defendant's spousal support obligations, as only a "dependent spouse" is entitled to alimony. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986).

Where the uncontradicted evidence disclosed that the year before the parties separated, the plaintiff had an income of $18,339.97 and the defendant had an income of $20,475.11, and the year they separated, the plaintiff's income was $19,301.46 and the defendant's income was $24,447.26, and that during the last year that they lived together, they maintained separate bank accounts and divided household expenses, evidence did not support the ultimate finding that the plaintiff was substantially and materially dependent upon the defendant for her support and maintenance, and the trial court erred in awarding the plaintiff alimony. Caldwell v. Caldwell, 82 N.C. App. 225, 356 S.E.2d 821, cert. denied, 320 N.C. 791, 361 S.E.2d 72 (1987).

Trial court did not err by finding wife's pleadings were insufficient on their face and dismissing her action for alimony pendente lite; plaintiff asserted in her complaint that she was a "dependent spouse," but the only support she offered for this conclusion was evidence of her husband's salary and she did not present any evidence that she needed assistance to subsist during the prosecution or defense of the suit. Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989), cert. denied, 326 N.C. 50, 389 S.E.2d 94 (1990).

Spouse Held Dependent. - Where defendant had not been regularly employed for 18 or 19 years prior to the separation and was completely supported by her husband, and her time was devoted to housework and rearing her children, it was clear from this evidence that plaintiff was a dependent spouse within the purview of subdivision (3) of this section. Hudson v. Hudson, 21 N.C. App. 412, 204 S.E.2d 697 (1974).

Where the evidence was not such as to require the court to find that defendant was capable of earning far greater income than she currently earned and showed that for the last five years of the parties' marriage defendant had earned insufficient income to meet her reasonable needs, there was sufficient evidence to support the court's conclusion that defendant was a dependent spouse, and the court's findings that plaintiff 's net monthly income was $1,753 and that his reasonable expenses were $1,242 were sufficient to support the conclusion that plaintiff was a supporting spouse. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Where plaintiff's budget of $2800 per month was both reasonable and commensurate with the standard of living which the couple maintained prior to the date of the separation, plaintiff had no income producing assets, but earned a net income of $1353 per month, and defendant's gross income was nearly four times that of plaintiff, these findings supported trial court's determination that plaintiff was a dependent spouse and that defendant was a supporting spouse. Ellinwood v. Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162 (1989).

Ex-Spouse Not Dependent. - Bankruptcy court denied a debtor's homestead claim to properly jointly owned with his ex-wife because, while the ex-wife was defined in the separation agreement as a dependent spouse, neither the debtor nor an actual dependent of the debtor resided at the subject property inasmuch as the ex-wife was not actually substantially dependent on the debtor, and the policy behind the homestead exemption would not be realized if the court were bound by findings of dependency made for different purposes at times other than the petition date. In re Suggs, - Bankr. - (Bankr. E.D.N.C. July 25, 2019).

V. SUPPORTING SPOUSE.

.

"Supporting Spouse" Defined. - A "supporting spouse" is a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A spouse meets the definition if he or she qualifies under either test, which essentially is the same as that applied for "dependent spouse." The primary issue is not the supporting spouse's ability to pay, but whether the spouse seeking alimony is a dependent spouse. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Determination that one is a "supporting spouse" within the meaning of subdivision (4) of this section is a consequence of two or more related propositions taken as premises, one being that the relationship of spouse exists, and the other consisting of the finding that one of the three (now two) alternatives in subdivision (4) is a fact. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

As to the former presumption in subdivision (4) of this section, prior to its amendment in 1981, that the husband was the "supporting spouse," see Rayle v. Rayle, 20 N.C. App. 594, 202 S.E.2d 286 (1974).


§ 50-16.1A. Definitions.

As used in this Chapter, unless the context clearly requires otherwise, the following definitions apply:

  1. "Alimony" means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
  2. "Dependent spouse" means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.
  3. "Marital misconduct" means any of the following acts that occur during the marriage and prior to or on the date of separation:
    1. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse;
    2. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
    3. Abandonment of the other spouse;
    4. Malicious turning out-of-doors of the other spouse;
    5. Cruel or barbarous treatment endangering the life of the other spouse;
    6. Indignities rendering the condition of the other spouse intolerable and life burdensome;
    7. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
    8. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
    9. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
  4. through (3d) Reserved for future codification purposes.
  5. "Payor" means any payor, including any federal, State, or local governmental unit, of disposable income to an obligor. When the payor is an employer, payor means employer as defined under 20 U.S.C. § 203(d) of the Fair Labor Standards Act.
  6. "Postseparation support" means spousal support to be paid until the earlier of any of the following:
    1. The date specified in the order for postseparation support.
    2. The entry of an order awarding or denying alimony.
    3. The dismissal of the alimony claim.
    4. The 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.
    5. Termination of postseparation support as provided in G.S. 50-16.9(b).
  7. "Supporting spouse" means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.

Postseparation support may be ordered in an action for divorce, whether absolute or from bed and board, for annulment, or for alimony without divorce. However, if postseparation support is ordered at the time of the entry of a judgment of absolute divorce, a claim for alimony must be pending at the time of the entry of the judgment of divorce.

History

(1995, c. 319, s. 2; 1998-176, s. 8; 2005-177, s. 1; 2015-181, s. 20.)

Editor's Note. - Prior to the year 1872 there was no statute regulating the question of alimony without divorce, but in this State it was held that this relief in proper cases could be granted by courts of equity. See Crews v. Crews, 175 N.C. 168, 95 S.E. 149 (1918). By Laws 1872, c. 193, the legislature provided for this relief, but in that act there was no provision whereby the wife could obtain alimony during the determination of the issues involved in her suit. See Hodges v. Hodges, 82 N.C. 122 (1880). In 1919, an amendment was added whereby the wife might apply for an allowance for her subsistence during the pendency of her main action. See Laws 1919, c. 24.

Session Laws 1995, c. 319, which repealed former G.S. 50-16.1 and enacted this section in its place, in s. 12 provides that the act applies to civil motions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

Former G.S. 50-16.1, prior to its repeal by Session Laws 1995, c. 319, read as follows: " Definitions.

"As used in the statutes relating to alimony and alimony pendente lite unless the context otherwise requires, the term:

(1) 'Alimony' means payment for the support and maintenance of a spouse, either in lump sum or on a continuing basis, ordered in an action for divorce, whether absolute or from bed and board, or an action for alimony without divorce.

(2) 'Alimony pendente lite' means alimony ordered to be paid pending the final 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.

(3) 'Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.

(4) 'Supporting spouse' means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support."

Session Laws 1998-176, s. 1 added subdivision (4a), which was redesignated as subdivision (3e) at the direction of the Revisor of Statutes.

Subdivision (4), as amended by Session Laws 2005-177, s. 1, effective October 1, 2005, is applicable to all postseparation support orders issued on or after that date.

Effect of Amendments. - Session Laws 2015-181, s. 20, effective December 1, 2015, substituted "G.S. 14-27.20(4)" for "G.S. 14-27.1(4)" in subdivision (3)(a). For applicability, see editor's note.

Legal Periodicals. - For article, "Giving Credit Where Credit is Due: North Carolina Recognizes Custodial Obligations as a Factor in Determining Alimony Entitlements," see 74 N.C.L. Rev. 2128 (1996).

For an article on the 1995 amendments to North Carolina alimony statutes, see 76 N.C.L. Rev. 2017 (1998).

For article, "When the Vow Breaks: An Analysis of the Impact of Intrinsic and Extrinsic Factors on Child Custody Resolution," see 41 Wake Forest L. Rev. 1297 (2006).

For article, "The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder To Do," see 85 N.C.L. Rev. 1761 (2007).

CASE NOTES

Postseparation support, like alimony pendente lite, is intended to be only temporary and ceases when an award of alimony is either allowed or denied by the trial court. Wells v. Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).

Termination of Postseparation Support. - Although the General Assembly may have intended postseparation support to be a temporary measure, the statutory definition of postseparation support provides for only three possible termination dates, the death of either spouse or the remarriage of the receiving spouse. Marsh v. Marsh, 136 N.C. App. 663, 525 S.E.2d 476 (2000).

Postseparation Support After Divorce. - Postseparation support may continue despite a judgment of divorce if the postseparation support order does not specify a termination date and there is no court order awarding or denying alimony. Marsh v. Marsh, 136 N.C. App. 663, 525 S.E.2d 476 (2000).

Trial court did not err in refusing to award the wife post-separation support pursuant to G.S. 50-16.1A(4) as a result of the wife's misconduct pursuant to G.S. 50-16.2A(d); the trial court's finding of subjection of the husband to indignities pursuant to G.S. 50-16.1A(3)(f) was sufficient, as it found that, while the husband was a supporting spouse, the wife forceably removed the husband from the house on two occasions under false domestic violence complaints and engaged in other improper behavior. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005).

Postseparation Support Replaced Alimony Pendente Lite. - Postseparation support (PSS) effectively replaced alimony pendente lite and must in general operate under the same principle that entitlement findings by the trial court during a PSS hearing are not final and binding at subsequent proceedings, since to treat PSS otherwise would deter many dependent spouses from seeking needed support for fear they would be bound by a ruling based on incomplete evidence. Wells v. Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).

Postseparation Support. - Postseparation support is only intended to be temporary and ceases when an award of alimony is either allowed or denied by the trial court, and therefore is interlocutory and not appealable. Rowe v. Rowe, 131 N.C. App. 409, 507 S.E.2d 317 (1998).

Trial court was not required to find a change of circumstances in entering an alimony order in a divorce case because at the time of the hearing, the only order in effect was a postseparation support order; the alimony award thus did not "modify" a prior alimony order, but rather terminated an existing temporary postseparation support. Langdon v. Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007).

Because the trial court failed to make factual findings as to the parties' financial needs, accustomed standard of living, separate and marital debt obligations, and the expenses reasonably necessary to support each of them, its post-separation support and alimony awards to the husband under G.S. 50-16.3A(a), (b), and (c) were reversed. Crocker v. Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008).

Trial court erred in its calculation of a wife's income because it calculated her average net income even though there was no evidence in the record to suggest that she was depressing her income; if the trial included post-separation support (PSS) the wife received from the husband, that would also constitute error, because (PSS), which eventually terminated upon the occurrence of specified events, was not permanent income. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Dependent Spouse. - Where the trial court found that the ex-husband had a net monthly income of approximately $5,400 and reasonable monthly expenses in the amount of $4,200, yielding a surplus of $1,200, and the ex-wife's reasonable needs exceeded her income by $1,400, there was no abuse of discretion in finding the ex-wife was a dependent spouse and the ex-husband was a supporting spouse and awarding the ex-wife $1,200 per month in alimony. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

Evidence supported the finding that the wife was a dependent spouse and the husband was a supporting spouse pursuant to G.S. 50-16.1A, where the findings of fact demonstrated that, during the marriage and at the time of the hearing, the wife had an income-expenses deficit of $627.00 per month and the husband had an income-expense surplus. Helms v. Helms, 191 N.C. App. 19, 661 S.E.2d 906 (2008), review denied, 362 N.C. 681, 670 S.E.2d 233 (2008).

Trial court erred in granting a wife's motion to dismiss a husband's alimony claim on the grounds that he failed to reply to the wife's counterclaims because the allegations set forth in the wife's counterclaims, and reiterated in a finding of fact in the trial court's order, were merely denials in affirmative form of the allegations of the complaint, and the trial court erred in deeming admitted the allegations in the wife's counterclaim that the husband was not a dependent spouse and that he was not a supporting spouse; a plaintiff is not required to re-allege those allegations in a complaint that have been "denied in the affirmative" by way of a counterclaim by a defendant. Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

Trial court did not err by determining a wife was not a "dependent spouse" for purposes of alimony, G.S. 50-16.1A(2) and G.S. 50-16.3A(a), because there was a surplus left to the wife each month, after deducting all of the wife's expenses from her net monthly income; the wife's "change in lifestyles" argument in support of alimony was rejected because the wife's previous standard of living was "artificially inflated" by a massive infusion of debt. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

It was not error to find a wife was a dependent spouse and a husband was a supporting spouse, for post-separation support, because the court sufficiently found the parties' incomes and marital living standard. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Trial court erred in concluding that a wife was not a dependent spouse because it failed to determine which, if any, of the wife's expenditures were reasonable in light of her accustomed standard of living during the parties' marriage and to engage in the necessary comparison of those reasonable expenses to a correct calculation of her income. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Since the trial court heard both the alimony claim and the equitable distribution claims simultaneously, it had to determine the final equitable distribution prior to determining alimony; presuming the record supported the wife's contention that the husband was a supporting spouse, the trial court had to determine whether the husband was a supporting spouse if it concludes on remand that the wife was a dependent spouse. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Date of Separation. - Trial court did not err in finding a husband and wife were not separated at the time of the wife's marital misconduct, as defined in G.S. 50-16.1A(3)(a), thereby precluding an award of alimony to the wife under G.S. 50-16.3A(a), because even though there was some physical separation of the parties after a choking incident involving the parties' son, neither party expressed to the other they wanted to separate and the husband continued to maintain all of his belongings at the marital residence; although the phrase "the date of separation" as used in G.S. 50-16.3A(a) was not defined, the phrase "separate and apart" as used in G.S. 50-6 meant there had to be a physical separation and an intention on the part of at least one of the parties to cease matrimonial cohabitation. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Finding of Marital Misconduct as Related to Alimony. - Where trial court specifically found, while addressing the alimony issue, that despite the marital misconduct of the wife, she should be given credit for her career sacrifices that no doubt helped the husband succeed in his military goals, the trial court thereby fully addressed the question of the wife's misconduct as it related to alimony. Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).

Even though a husband admitted to marital misconduct, in the form of breaking his wife's arm, and physically and verbally abusing the parties' minor children, a trial court properly determined the wife was not entitled to alimony under G.S. 50-16.3A(a) because the wife had engaged in uncondoned illicit sexual behavior with another man, G.S. 50-16.1A(3)(a), including sexual intercourse or sexual acts, as defined in G.S. 14-27.1(4). Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

If a wife had to show a lack of adequate provocation for a husband's indignities, for alimony purposes, any failure to satisfy this requirement did not warrant reversal of an alimony award because (1) the husband did not raise the issue below, (2) the husband did not show provocation, and (3) the trial court's findings demonstrated that the wife did not provoke the husband's abuse. Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

Competent evidence showed a husband subjected a wife to indignities because a guardian ad litem report, to which the husband did not object for alimony purposes, demonstrated such indignities. Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

Trial court properly denied a wife's request for post-separation support based on marital misconduct because the wife abandoned the husband by discontinuing the marital cohabitation without just cause or excuse, leaving the marital home, depositing the husband's belongings at their son's house, and telling the husband that she had found someone else and did not want him anymore, and the husband's failure to object did not constitute consent. Sorey v. Sorey, 233 N.C. App. 682, 757 S.E.2d 518 (2014).

Husband's motion to dismiss a wife's claim that he had engaged in "marital misconduct" was not properly presented by his appeal; where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case proceeds to judgment on the merits, the unsuccessful movant cannot on an appeal from the final judgment seek review of the denial of the motion to dismiss. Gilmartin v. Gilmartin, 263 N.C. App. 104, 822 S.E.2d 771 (2018), review denied, 372 N.C. 291, 826 S.E.2d 702, 2019 N.C. LEXIS 404 (2019).

Evidence supported the trial court's findings of fact regarding indignities, and it properly did not make any findings regarding condonation of the indignities because the husband did not present any evidence that the wife ever had sufficient knowledge of his actions to condone them; when the wife became aware of husband's actions she objected and asked him to stop, but he continued his behavior surreptitiously. Gilmartin v. Gilmartin, 263 N.C. App. 104, 822 S.E.2d 771 (2018), review denied, 372 N.C. 291, 826 S.E.2d 702, 2019 N.C. LEXIS 404 (2019).

Sufficiency of Findings by the Trial Court. - Reversal and remand of a trial court's order was appropriate because the court had to enter additional findings concerning the parties' expenses as the court's alimony order did not include any findings as to the wife's expenses. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Insurance. - Since a trial court may order a supporting spouse to make homeowner's and automobile insurance payments on behalf of a dependent spouse, even though such payments are not explicitly authorized under G.S. 50-16.1A(a) or G.S. 50-16.3A(a), a court may also order a supporting spouse to pay for health insurance for a dependent spouse. Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011).

Description of Property Met Requirements. - Trial court's findings included a description of the real property owned by the parties and their personal savings; contrary to the husband's claim, the findings met the requirements of G.S. 50-16.1A(2). Phillips v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff'd, 362 N.C. 171, 655 S.E.2d 350 (2008).

Payments Were Alimony. - Ex-husband's payments to ex-wife were "alimony" where the ex-wife was in substantial need of maintenance and support from the ex-husband and the support consisted of monthly payments. Underwood v. Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011).

Applied in Vadala v. Vadala, 145 N.C. App. 478, 550 S.E.2d 536 (2001); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011).

Cited in Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996); Hanley v. Hanley, 128 N.C. App. 54, 493 S.E.2d 337 (1997); Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998); Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000); Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008); Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (Jan. 29, 2010); Quesinberry v. Quesinberry, 210 N.C. App. 578, 709 S.E.2d 367 (2011); Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015); Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).


§ 50-16.2: Repealed by Session Laws 1995, c. 319, s. 1.

Cross References. - As to alimony generally, see G.S. 50-16.3A.

Editor's Note. - Session Laws 1995, c. 319, which repealed this section, in section 12 provides that the act applies to civil motions filed on or after that date, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995. This section, prior to the repeal by S.L. 1995, c. 319, read as follows: " Grounds for alimony.

"A dependent spouse is entitled to an order for alimony when:

  1. The supporting spouse has committed adultery.
  2. There has been an involuntary separation of the spouses in consequence of a criminal act committed by the supporting spouse prior to the proceeding in which alimony is sought, and the spouses have lived separate and apart for one year, and the plaintiff or defendant in the proceeding has resided in this State for six months.
  3. The supporting spouse has engaged in an unnatural or abnormal sex act with a person of the same sex or of a different sex or with a beast.
  4. The supporting spouse abandons the dependent spouse.
  5. The supporting spouse maliciously turns the dependent spouse out of doors.
  6. The supporting spouse by cruel or barbarous treatment endangers the life of the dependent spouse.
  7. The supporting spouse offers such indignities to the person of the dependent spouse as to render his or her condition intolerable and life burdensome.
  8. The supporting spouse is a spendthrift.
  9. The supporting spouse is an excessive user of alcohol or drugs so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome.
  10. The supporting spouse willfully fails to provide the dependent spouse with necessary subsistence according to his or her means and condition so as to render the condition of the dependent spouse intolerable and the life of the dependent spouse burdensome."

Legal Periodicals. - For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For note discussing the application of the compulsory counterclaim provision of G.S. 1A-1, Rule 13 in divorce suits, see 57 N.C.L. Rev. 439 (1979).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, "Divisibility of Advanced Degrees in North Carolina - An Examination and Proposal," see 15 N.C. Cent. L.J. 1 (1984).

For note, "Alimony Modification and Cohabitation in North Carolina," see 63 N.C.L. Rev. 794 (1985).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

For 1984 survey, "Equitable Distribution Without Consideration of Marital Fault," see 63 N.C.L. Rev. 1204 (1985).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," see 63 N.C.L. Rev. 1317 (1985).

For comment, "Alimony Reform for North Carolina," see 18 N.C. Cent. L.J. 87 (1989).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

For article, "Maintenance, Alimony, and the Rehabilitation of Family Care," see 71 N.C.L. Rev. 721 (1993).

For note, "Kuder v. Schroeder: The North Carolina Court of Appeals Holds That a Professional Education Is Not Within the Spousal Duty of Support," see 72 N.C.L. Rev. 1784 (1994).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-14, which dealt with alimony in actions for divorce a mensa et thoro, and former G.S. 50-16, which dealt with actions for alimony without divorce.

G.S. 50-16.1 through 50-16.10 in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982). See also, Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Lack of Grounds. - The plain and definite meaning of G.S. 50-16.11 is that when a jury or trial judge finds that none of the grounds on which a spouse alleges entitlement to permanent alimony pursuant to G.S. 50-15.2 exists, the trial court, in its discretion, may order recoupment of any alimony pendente lite paid by the supporting spouse. Wyatt v. Hollifield, 114 N.C. App. 352, 442 S.E.2d 149 (1994).

Purpose of Alimony. - Alimony is not awarded as a punishment for a broken marriage, but for demonstrated need. Lemons v. Lemons, 22 N.C. App. 303, 206 S.E.2d 327 (1974).

Effect of Voluntary Dismissal with Prejudice. - Defendant wife's voluntary dismissal with prejudice of her suit for permanent alimony based on adultery and abandonment amounted to a concession that none of the grounds entitling her to permanent alimony existed and resulted in a final judgment on the merits with res judicata implications; the case would therefor be remanded for a hearing to consider whether husband should recoup the alimony pendente lite paid. Riviere v. Riviere, 134 N.C. App. 302, 517 S.E.2d 673 (1999).

Every ground for divorce from bed and board also serves as a ground for alimony. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, cert. denied, 312 N.C. 495, 322 S.E.2d 558 (1984).

Procedure Where Grounds for Alimony Are Asserted Simultaneously as Grounds for Divorce. - While it is true that the determination of dependency properly rests with the trial judge, and not with the jury, where the grounds asserted for alimony are asserted simultaneously as grounds for divorce, the right to alimony depends on the legal entitlement to divorce, regardless of financial dependency. The ordinary and correct procedure in such cases, therefore, is to allow the jury to render its verdict on the "fault" issues of divorce, and then and only then to move to a bench hearing on dependency and the proper amount, if any, of alimony. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Equitable Distribution Decided Before Permanent Alimony. - When both permanent alimony and equitable distribution are requested, the equitable distribution should be decided first. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Identification of Support Payments. - Whether support payments are in fact alimony does not depend on whether order refers to it as "alimony" but instead on whether support payments constitute "reciprocal consideration" for property settlement provision of order. Hayes v. Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990).

An alimony award should follow equitable distribution, duly taking into account the division of the marital property and the resulting estates of the parties. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Only a dependent spouse is entitled to alimony or alimony pendente lite. Galloway v. Galloway, 40 N.C. App. 366, 253 S.E.2d 41 (1979).

To be entitled to alimony, a spouse must not only have one of the grounds set forth in this section, he or she must also be a "dependent spouse." Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Only Dependent Spouse Is Entitled to Alimony or Alimony Pendente Lite. - Only a dependent spouse is entitled to alimony in North Carolina. Fink v. Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995).

The statutory policy behind the requirement that only a "dependent spouse" is entitled to alimony is to protect a nonsupporting spouse from serious economic harm by making payments to a spouse who does not need support. Fact that defendant husband agreed to pay monthly alimony was proof that he needed no further protection. Cox v. Cox, 36 N.C. App. 573, 245 S.E.2d 94 (1978).

For a spouse to be "actually substantially dependent" upon the other spouse, he or she must have actual dependence on the other in order to maintain the standard of living to which he or she became accustomed during the last several years prior to the spouses' separation. To determine whether such actual dependence exists, the trial court must evaluate the parties' incomes and expenses measured by the standard of living of the family as a unit. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Conclusions as to "Dependent" or "Supporting" Status Must Be Based on Findings. - The conclusions made by the court as to whether a spouse is "dependent" or "supporting" must be based on findings of fact sufficiently specific to indicate that the court properly considered the factors. In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated and the case remanded for necessary findings. It is not enough that there is evidence in the record from which such findings could have been made because it is for the trial court, and not the appellate court, to determine what facts are established by the evidence. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Absent Actual Dependence, Issue Is Substantial Need of Maintenance. - If the court determines that one spouse is not actually dependent on the other for such support, the court must then determine if one spouse is "substantially in need of maintenance and support" from the other, i.e., whether one spouse would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other. In doing so, the court must determine and consider the following: (1) The standard of living, socially and economically, to which the parties as a family unit became accustomed during the several years prior to their separation; (2) the present earnings, prospective earning capacity, and any other condition, such as health, of each spouse at the time of the hearing; (3) whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the parties' accustomed standard of living, taking into consideration the spouse's reasonable expenses in light of that standard of living; and (4) the financial worth or "estate" of both spouses. The court must also consider fault and other facts of the particular case such as the length of the marriage and the contribution made by each spouse to the financial status of the family over the years. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Effect of Consent Judgment on Dependency Requirement. - A finding of dependency is not required where judgments ordering payment of alimony are entered by consent. Allison v. Allison, 51 N.C. App. 622, 277 S.E.2d 551, appeal dismissed and cert. denied, 303 N.C. 543, 281 S.E.2d 660 (1981).

"Supporting Spouse" Defined. - A "supporting spouse" is a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A spouse meets the definition if he or she qualifies under either test, which essentially is the same as that applied for "dependent spouse." The primary issue is not the supporting spouse's ability to pay, but whether the spouse seeking alimony is a dependent spouse. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Enforcement of Duty of Support. - The law imposes a continuing legal duty upon a husband to support his wife. Such duty is enforceable in a variety of ways: through criminal sanctions imposed for willful abandonment coupled with nonsupport, and through civil decrees granting alimony, alimony pendente lite, or alimony without divorce on the basis of misconduct or failure to support. Gray v. Snyder, 704 F.2d 709 (4th Cir. 1983).

Attempt to Limit Duty of Support. - Husband's duty of support is considered to be so fraught with a public interest that any contractual undertaking between a husband and wife who are living together and not contemplating imminent separation, which purports to quantify or limit that duty is void as against public policy under North Carolina law. Gray v. Snyder, 704 F.2d 709 (4th Cir. 1983).

An order of alimony without divorce and child support is temporary in nature, and if future circumstances justify a change, defendant is at liberty to seek relief in the trial court by motion in the cause. Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970).

In a wife's action for alimony without divorce and for child support, the Court of Appeals will not disturb an order of the trial court requiring the husband to make substantial payments to the wife for alimony and for support of the minor children, notwithstanding the husband's contention that he anticipates a substantial decrease in earning, since the order is temporary in nature and is subject to modification upon change of circumstances. Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970).

Effect of Reconciliation or Death of Party. - Alimony is in its nature a provision for a wife (now spouse) separated from her husband (spouse) and it cannot continue after reconciliation or the death of either party. Rogers v. Vines, 28 N.C. 293 (1846).

Defenses to Alimony. - In defense to a claim for alimony, the supporting spouse may claim that the dependent spouse has committed any of the acts set forth in this section. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

The affirmative defense of condonation must be carried by the defendant. Privette v. Privette, 30 N.C. App. 305, 227 S.E.2d 137 (1976).

Noneconomic Marital Fault Irrelevant to Equitable Distribution. - While noneconomic marital fault is relevant to alimony, it is irrelevant to the equitable distribution of marital property. This distinction is recognized by G.S. 50-20(f). Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985).

Fault Was Considered Only for Spousal Dependency. - As it was clear that the trial court only considered fault for purposes of dependency, and because it concluded that the wife was not a dependent spouse, the trial court did not need to reach the issue of fault under G.S. 50-16.2(1) (1995) (repealed). Rice v. Rice, 159 N.C. App. 487, 584 S.E.2d 317 (2003).

Findings Which Support an Award of Alimony. - Where the record reveals sufficient substantial evidence to permit a jury to find (1) that plaintiff is a "supporting spouse" and defendant is a "dependent spouse" as defined in G.S. 50-16.1, and (2) that plaintiff has abandoned defendant and has willfully failed to provide her with necessary subsistence according to his means and condition, so as to render her condition intolerable and her life burdensome, these permissible findings would support an award of alimony. Garner v. Garner, 10 N.C. App. 286, 178 S.E.2d 94 (1970).

In suits for alimony, the order granting alimony must contain one of the 10 grounds for alimony listed in this section as a conclusion of law. Findings of fact to support that conclusion must be made, and usually the finding or findings of fact necessary will involve the actions of the supporting spouse. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

Post-Separation Failure to Provide Necessary Subsistence. - Absent a valid separation agreement waiving all alimony rights under G.S. 50-16.6(b), post-separation failure to provide a dependent-spouse with necessary subsistence gives rise to an action for alimony. Brown v. Brown, 104 N.C. App. 547, 410 S.E.2d 223 (1991), cert. denied, 331 N.C. 383, 417 S.E.2d 789 (1992).

Accustomed Standard of Living Determinative. - It is not necessary that a spouse be reduced to penury to be considered dependent; the accustomed standard of living is the proper measure. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Accustomed Standard of Living Required. - Pursuant to G.S. 50-16.2(1) (1995) (repealed) regarding alimony, the trial court failed to make any findings with respect to the accustomed standard of living during the marriage and, instead, simply made findings regarding the separate "estates" of the parties during the marriage; as the point in evaluating the parties' accustomed standard of living was to consider the pooling of resources that marriage allowed, the trial court's findings were insufficient. Rice v. Rice, 159 N.C. App. 487, 584 S.E.2d 317 (2003).

Burden on Applicant for Alimony. - This section looks first to the ability of the spouses to maintain the standard of living to which they have become accustomed during the last years of the marriage. The burden on the applicant for alimony is to show the accustomed standard of living and lack of means to maintain that standard. Only then does the ability of the other spouse to pay become significant. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

The issues raised by the pleadings must be passed upon by a jury before permanent alimony may be awarded. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968), decided under former G.S. 50-16.

For case in which evidence was held sufficient to support a judgment for wife, see Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156 (1951).

For case in which nonsuit was held proper for failure of evidence to support allegations of complaint, see Crouse v. Crouse, 236 N.C. 763, 73 S.E.2d 922 (1953).

Termination of Spousal Support Obligation. - Findings of fact supported by competent evidence of record fully supported the trial judge's conclusion that plaintiff was no longer a "dependent spouse", which conclusion supported his order terminating defendant's spousal support obligations, as only a "dependent spouse" is entitled to alimony. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986).

Applied in Taylor v. Taylor, 9 N.C. App. 260, 175 S.E.2d 604 (1970); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972); Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973); Medlin v. Medlin, 17 N.C. App. 582, 195 S.E.2d 65 (1973); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975); Fogleman v. Fogleman, 41 N.C. App. 597, 255 S.E.2d 269 (1979); Jones v. Jones, 42 N.C. App. 467, 256 S.E.2d 474 (1979); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Odom v. Odom, 47 N.C. App. 486, 267 S.E.2d 420 (1980); Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243 (1981); Condie v. Condie, 51 N.C. App. 522, 277 S.E.2d 122 (1981); Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984); Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996).

Cited in Richardson v. Richardson, 4 N.C. App. 99, 165 S.E.2d 678 (1969); Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Reid v. Reid, 29 N.C. App. 754, 225 S.E.2d 649 (1976); Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494 (1978); Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978); Hamilton v. Hamilton, 296 N.C. 574, 251 S.E.2d 441 (1979); Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979); Knott v. Knott, 52 N.C. App. 543, 279 S.E.2d 72 (1981); Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981); Walters v. Walters, 54 N.C. App. 545, 284 S.E.2d 151 (1981); Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985); Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985); Phillips v. Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986); Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848 (1987); Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989); Rogers v. Rogers, 111 N.C. App. 606, 432 S.E.2d 907 (1993); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993); Cunningham v. Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997).

II. ADULTERY.

To determine whether the dependent spouse was entitled to alimony and, if so, in what amount, the trial judge was required to weigh evidence of adultery by the supporting spouse as well as evidence of indignities offered by both the supporting and the dependent spouse. Baker v. Baker, 102 N.C. App. 792, 404 S.E.2d 20 (1991).

Section Does Not Distinguish Between Pre-Separation and Post-Separation Adultery. - Until the State grants them an absolute divorce, a couple, though separated from each other, continues to be wife and husband; therefore, this section, which sets down the fault grounds for alimony, does not distinguish between pre-separation and post-separation adultery. Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988).

As to allegation of adultery in defendant's answer and cross-action, see Anthony v. Anthony, 8 N.C. App. 20, 173 S.E.2d 617 (1970).

As to evidence of adultery, see VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978), decided prior to the amendment of G.S. 8-56 and G.S. 50-10 by Session Laws 1983 (Reg. Sess., 1984), c. 1037.

Revival of Adultery After Condonation. - An allegation of adultery cannot be held fatally defective on the ground that it sets forth facts amounting to condonation when the complaint also alleges acts of misconduct committed by defendant after the reconciliation, which revive the old grounds. Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909 (1946).

Sexual Intercourse with Third Party During Period of Separation Is Adultery. - Voluntary sexual intercourse by a spouse with a third party during the period of separation required by G.S. 50-6 is adultery as contemplated by this section, and is a ground for alimony. Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988).

III. ABANDONMENT.

.

This section does not define abandonment. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971).

What Is "Abandonment". - One spouse abandons the other, within the meaning of this section, where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Bowen v. Bowen, 19 N.C. App. 710, 200 S.E.2d 214 (1973); Murray v. Murray, 37 N.C. App. 406, 246 S.E.2d 52 (1978), aff'd, 296 N.C. 405, 250 S.E.2d 276 (1979); Robbins v. Robbins, 43 N.C. App. 488, 259 S.E.2d 353 (1979); Tan v. Tan, 49 N.C. App. 516, 272 S.E.2d 11 (1980), cert. denied, 302 N.C. 402, 279 S.E.2d 356 (1981); Patton v. Patton, 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).

An action under this section for permanent alimony based on abandonment involves the withdrawal of the supporting spouse from the house and from cohabitation with the dependent spouse. Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509 (1976).

Abandonment is a legal conclusion which must be based upon factual findings supported by competent evidence. Patton v. Patton, 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).

The burden of proof as to each of the elements of abandonment is on the party seeking alimony. Patton v. Patton, 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).

Three Distinct Elements Must Be Proven. - It has been held that one spouse abandons the other, within the meaning of this statute, where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. This definition establishes three distinct elements which must be proven by the dependent spouse to entitle her to alimony on the basis of abandonment. Murray v. Murray, 37 N.C. App. 406, 246 S.E.2d 52 (1978), aff'd, 296 N.C. 405, 250 S.E.2d 276 (1979).

Case-by-Case Determination. - Since there is no all-inclusive definition as to what will justify abandonment, each case must be determined in large measure upon its own circumstances. Tan v. Tan, 49 N.C. App. 516, 272 S.E.2d 11 (1980), cert. denied, 302 N.C. 402, 279 S.E.2d 356 (1981).

"Constructive Abandonment". - One spouse may abandon the other without physically leaving the home. In that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. The constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a willful failure, as by a willful failure to provide adequate support. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971).

There is no willful failure, and thus no constructive abandonment, where the defect of which the departing spouse complains is due to the illness or physical disability of the remaining spouse and his or her consequent inability to act. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971).

Constructive abandonment may be shown by mental or physical cruelty or willful failure of the defaulting spouse to fulfill obligations of the marriage. Ellinwood v. Ellinwood, 88 N.C. App. 119, 362 S.E.2d 584 (1987).

Proof of constructive abandonment may not be based on evidence of actions after the parties separated. Ellinwood v. Ellinwood, 88 N.C. App. 119, 362 S.E.2d 584 (1987).

Abandonment Requires That Separation Be Done Willfully. - A contention that abandonment imports willfulness is an exercise in semantics. To the contrary, abandonment requires that the separation or withdrawal be done willfully and without just cause or provocation. Mode v. Mode, 8 N.C. App. 209, 174 S.E.2d 30 (1970).

The causes leading to the abandonment are relevant and proper subjects for inquiry in an action for alimony without divorce based upon the husband's abandonment. Mode v. Mode, 8 N.C. App. 209, 174 S.E.2d 30 (1970).

When Spouse Is Justified in Leaving. - Ordinarily the withdrawing spouse is not justified in leaving the other unless the conduct of the latter is such as would likely render it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect. Patton v. Patton, 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).

Maintenance of Nuisance May Be Adequate Provocation for Subsequent Abandonment. - The maintenance of numbers of dogs and cats, constituting a nuisance to the plaintiff, may be adequate provocation on the part of the defendant for the subsequent abandonment of the defendant by the plaintiff. Therrell v. Therrell, 19 N.C. App. 321, 198 S.E.2d 776 (1973).

Providing of Support Does Not Negative Abandonment. - The husband's willful failure to provide adequate support for his wife may be evidence of his abandonment of her, but the mere fact that he provides adequate support for her does not in itself negative abandonment as that term is used in G.S. 50-7(1). Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966) (decided under former G.S. 50-16); Bowen v. Bowen, 19 N.C. App. 710, 200 S.E.2d 214 (1973).

A wife is entitled to her husband's society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or may be mitigated by a liberal provision for her support, but if the cohabitation is brought to an end without justification, without the consent of the wife and without the intention of renewing it, the matrimonial offense of desertion is complete. Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966), decided under former G.S. 50-16.

A husband may be deemed to have abandoned his wife within the meaning of G.S. 50-7(1), and thus be liable for alimony, notwithstanding the fact that, after cohabitation is brought to an end, he voluntarily provides her with adequate support. Whether his withdrawal from the home, followed by such support, constitutes an abandonment which is ground for suit by the wife for divorce from bed and board, and therefore ground for suit by her for alimony without divorce, depends upon whether his withdrawal from the home was justified by the conduct of the wife. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968), decided under former G.S. 50-16.

Voluntary abandonment of husband by wife without legal justification will not entitle her to alimony in her suit for divorce from bed and board. McManus v. McManus, 191 N.C. 740, 133 S.E. 9 (1926).

A wife who has abandoned her husband without just cause or who, by her wrongful conduct, has forced him to leave home, has no right to alimony. Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964).

Husband May Prove as Defense That Wife Separated Herself from Him. - In an action by a wife for alimony without divorce, this section does not preclude the husband, who has left the home, from proving as a defense that it was actually the wife who separated herself from him though she did not leave the home. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971).

Where the pleadings place in issue the crucial question of whether the husband has separated himself from the wife, there is nothing in the language or meaning of the statute which precludes the husband from proving as a defense that in point of fact and in legal contemplation it was the wife who separated herself from the husband. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923 (1953).

Where in his answer defendant alleged that he separated himself from his wife at her bidding after an altercation to avoid continual abuse, nagging and assaults by plaintiff, and that he had provided plaintiff and their children with a furnished house, paid bills for necessaries and given them cash weekly, and had theretofore furnished them with necessary subsistence in accordance with his means in life, the answer raised issues of fact determinative of the right to the relief sought, which issues had to be submitted to the jury, and the granting of plaintiff's motion for judgment on the pleadings was error. Masten v. Masten, 216 N.C. 24, 3 S.E.2d 274 (1939).

Consent to Departure Not Shown. - Where the evidence at most disclosed a marital relationship that was sometimes rocky and a sexual relationship which, in the husband's estimation, left something to be desired, and the trial court's findings, based upon competent evidence, were that throughout the marriage the wife was a capable homemaker and good mother, that the couple enjoyed recreational activities with family and mutual friends, and that when problems arose in the relationship, the wife sought counseling for the couple, the wife met her burden of proof for lack of justification for the husband's departure; and the fact that the wife had, in effect, given husband an ultimatum to either faithfully commit to the marriage or to "make a clean break" did not mean that as a legal matter she consented to the termination of their cohabitation. Patton v. Patton, 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).

Cruelty Causing Wife to Leave Home. - When the husband by cruel treatment renders the life of the wife intolerable or puts her in such fear for her safety that she is compelled to leave the home, the abandonment is his, and is sufficient ground for alimony without divorce. Eggleston v. Eggleston, 228 N.C. 668, 47 S.E.2d 243 (1948).

A wife may establish a right to alimony by a showing that she was compelled to leave home in fear of her safety as a result of defendant's assaults and cruel treatment. Gaskins v. Gaskins, 273 N.C. 133, 159 S.E.2d 318 (1968).

Plaintiff May Rely on Cumulative Effect of Many Years of Mistreatment. - In an action for alimony without divorce, the plaintiff has the right to rely on the cumulative effect of many years of mistreatment by the husband, and her testimony cannot be limited to events which occurred immediately prior to the alleged abandonment. Mode v. Mode, 8 N.C. App. 209, 174 S.E.2d 30 (1970).

Allegations on Ground of Abandonment. - The plaintiff in an action for alimony without divorce on the ground of abandonment is not required to allege the acts and conduct relied upon as the basis of the action with that degree of particularity as is required when the cause of action is based on such indignities to the person as to render her condition intolerable and her life burdensome. Richardson v. Richardson, 4 N.C. App. 99, 165 S.E.2d 678 (1969).

Where a complaint otherwise contained sufficient allegations to support a cause on grounds of abandonment, the fact that the action for alimony without divorce on complaint referred to the repealed G.S. 50-16 rather than to G.S. 50-16.1 was not fatal. Richardson v. Richardson, 4 N.C. App. 99, 165 S.E.2d 678 (1969).

An action for alimony on the ground of abandonment is 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).

Findings of Trial Court Held Insufficient on Question of Abandonment. - The findings and conclusions of the trial court were held insufficient to resolve the question raised by the defendant as to whether the plaintiff did in fact abandon the defendant, either actually or constructively, and would therefore be vacated and remanded for more detailed findings and conclusions with respect to the defendant's claim for alimony. Soares v. Soares, 86 N.C. App. 369, 357 S.E.2d 418 (1987).

IV. INDIGNITIES TO THE PERSON.

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The fundamental characteristic of indignities is that it must consist of a course of conduct or continued treatment which renders the condition of the injured party intolerable and life burdensome. The indignities must be repeated and persisted in over a period of time. Traywick v. Traywick, 28 N.C. App. 291, 221 S.E.2d 85 (1976).

What Constitutes Indignities Depends upon Circumstances. - The acts of a husband which will constitute such indignities to the person of his wife as to render her condition intolerable and her life burdensome largely depend upon the facts and circumstances in each particular case. And such facts and circumstances are for the jury to pass upon, unaffected by any temporary order entered for subsistence and attorneys' fees. Barwick v. Barwick, 228 N.C. 109, 44 S.E.2d 597 (1947).

In cases involving alimony without divorce on the grounds that the supporting spouse has offered such indignities to the dependent spouse as to render his or her condition intolerable and his or her life burdensome, the Supreme Court has not set an undeviating rule as to what constitutes such indignities, but leaves it to the courts to deal with each particular case and to determine it upon its own peculiar circumstances. Presson v. Presson, 12 N.C. App. 109, 182 S.E.2d 614 (1971).

While husband often neglected his wife while participating in rescue squad activities, and on occasion called her names in public, thus contributing to his wife's suspicions and irritation, his conduct was not such as to cause her condition to become intolerable and her life burdensome. Furthermore, the husband did not abandon his wife, but left the marital residence for "just cause" (wife's criticism and accusations). Therefore, the wife was not entitled to alimony as a matter of law. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

If the wife is compelled to leave the home of the husband because he offers such indignities to her person as to render her condition intolerable and her life burdensome, his acts constitute in law an abandonment of the wife by the husband, and allegations to this effect are sufficient to state a cause of action for alimony without divorce. Barwick v. Barwick, 228 N.C. 109, 44 S.E.2d 597 (1947).

A wife is not always entitled to alimony when her husband "threatens" her, however mildly, on several occasions. Traywick v. Traywick, 28 N.C. App. 291, 221 S.E.2d 85 (1976).

Sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief under subdivision (7) of this section. Privette v. Privette, 30 N.C. App. 305, 227 S.E.2d 137 (1976).

Complaint Merely Alleging Cruelty and Indignities Fails to Give Fair Notice. - Where the complaint merely alleges that the defendant treated the plaintiff cruelly and offered indignities to her person but does not refer to any transactions, occurrences or series of transactions or occurrences intended to be proved, nor mention any specific act of cruelty or indignity committed by the defendant, the alleged cruelty and alleged indignities may consist of nothing more than occasional nagging of the plaintiff or pounding on a table. Such a complaint does not give defendant fair notice of plaintiff's claim. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

V. EXCESSIVE USE OF DRUGS OR ALCOHOL.

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Habitual Drunkenness. - Allegations in a complaint that defendant had been an habitual drunkard during the prior three years were sufficient to state a cause of action for alimony without divorce under the term "shall be a drunkard" within the meaning of former G.S. 50-16. Best v. Best, 228 N.C. 9, 44 S.E.2d 214 (1947).

VI. WILLFUL FAILURE TO PROVIDE.

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Proof of Husband's Earning Capacity. - In an action by a wife for relief in the form of alimony under subdivision (10) of this section, proof of the husband's earnings and his earning capacity was clearly relevant to a determination of "necessary subsistence according to his . . . means and conditions," and the trial court erred in ordering all such evidence to be excluded. VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978).

VII. SPENDTHRIFT.

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A spendthrift is a person who spends money profusely and improvidently. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Refusal to Submit Issue Held Error. - In an action filed by the plaintiff, asking, inter alia, for a divorce from bed and board from the defendant, in which the defendant properly raised the issue of spendthrift and offered 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).


§ 50-16.2A. Postseparation support.

  1. In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.
  2. In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons.
  3. Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.
  4. At a hearing on postseparation support, the judge shall consider 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. When the judge considers these acts 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 postseparation support.
  5. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation.

History

(1995, c. 319, s. 2.)

Editor's Note. - Session Laws 1995, c. 319, s. 12, provides that this section is effective October 1, 1995, is applicable to civil actions filed on or after that date, and is not applicable to pending litigation or future motions in the cause seeking to modify orders or judgments in effect on that date.

Legal Periodicals. - For article, "Giving Credit Where Credit is Due: North Carolina Recognizes Custodial Obligations as a Factor in Determining Alimony Entitlements," see 74 N.C.L. Rev. 2128 (1996).

CASE NOTES

Separation Required for Claim of Postseparation Support. - Trial court correctly dismissed a wife's claim for spousal support based on lack of subject matter jurisdiction because, in order to maintain a claim for postseparation support under G.S. 50-16.2A, the parties had to be separated, and the record showed that the parties were still married and living in the marital residence with their minor children. Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011).

Income Calculation. - Although a trial court, in determining alimony, properly considered a wife's present employment income, in accordance with G.S. 50-16.2A(b), and not the wife's expected decrease in pay, the trial court erroneously included the wife's tax refund in the calculation of her regular income. Williamson v. Williamson, 217 N.C. App. 388, 719 S.E.2d 625 (2011).

Summary judgment was appropriate where a premarital agreement signed by the parties irrefutably barred the wife's claims for postseparation support, alimony and equitable distribution; the language in the subject agreement - drafted by the wife's attorney - was sufficiently "express" to constitute a valid and enforceable waiver of the wife's claims for postseparation support pursuant to G.S. 50-16.2A and alimony pursuant to G.S. 50-16.3A. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209 (2000).

Order of Post-Separation Support Was Interlocutory. - Because an order of postseparation support was interlocutory, the court dismissed defendant's appeal from the order. Thompson v. Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012).

Misconduct Found. - Trial court did not err in refusing to award the wife post-separation support pursuant to G.S. 50-16.1A(4) as a result of the wife's misconduct pursuant to G.S. 50-16.2A(d); the trial court's finding of subjection of the husband to indignities pursuant to G.S. 50-16.1A(3)(f) was sufficient, as it found that, while the husband was a supporting spouse, the wife forceably removed the husband from the house on two occasions under false domestic violence complaints and engaged in other improper behavior. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005).

Findings of Fact Lacking. - Because the trial court failed to make factual findings as to the parties' financial needs, accustomed standard of living, separate and marital debt obligations, and the expenses reasonably necessary to support each of them, its post-separation support and alimony awards to the husband under G.S. 50-16.3A(a), (b), and (c) were reversed. Crocker v. Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008).

Trial court erred in denying a wife's request for postseparation support because the court made no factual findings supporting the court's reasons. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Trial court erred in denying a wife's request for postseparation support because the court made no factual findings supporting the court's reasons. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Order Supported by Evidence. - Order of postseparation support was supported by evidence that the husband's income from interest, dividends, capital gains, and partnerships averaged $622,136 per year. Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006).

It was not error to find a wife was a dependent spouse and a husband was a supporting spouse, for post-separation support, because the court sufficiently found the parties' incomes and marital living standard. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Contempt. - Findings of fact and conclusion of law in a civil contempt order were insufficient. The trial court had failed to make findings regarding G.S. 5A-21(a)(1) and (2); there were no findings regarding defendant's present ability to pay postseparation support; and the statement that the support order was interlocutory was not a conclusion of law. Thompson v. Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012).

When the trial court ordered defendant to either pay plaintiff $400 or serve thirty days in jail for willfully refusing to pay postseparation support to plaintiff, the action was for defendant's failure to comply with the trial court's previous order, and it was evident that the trial court was exercising its contempt power to provide a remedy for an injured suitor and to coerce compliance with an order. Therefore, this was a contempt order, and it was civil contempt. Thompson v. Thompson, 223 N.C. App. 515, 735 S.E.2d 214 (2012).

Support Denied When Spouse Discontinued Cohabitation Without Just Cause. - Trial court properly denied a wife's request for post-separation support based on marital misconduct because the wife abandoned the husband by discontinuing the marital cohabitation without just cause or excuse, leaving the marital home, depositing the husband's belongings at their son's house, and telling the husband that she had found someone else and did not want him anymore, and the husband's failure to object did not constitute consent. Sorey v. Sorey, 233 N.C. App. 682, 757 S.E.2d 518 (2014).

Abuse of Discretion. - Former husband failed to show that a trial court abused its discretion by including the husband's Federal Employees Retirement Savings benefits in its post-separation support order and later distributing a portion of those benefits to the wife. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Cited in Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998); Langdon v. Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007).


§ 50-16.3: Repealed by Session Laws 1995, c. 319, s. 1.

Cross References. - As to postseparation support, see G.S. 50-16.2A.

Editor's Note. - It was formerly held that alimony pendente lite could not be awarded in the absence of a statute conferring this power. Wilson v. Wilson, 19 N.C. 377 (1837); Reeves v. Reeves, 82 N.C. 348 (1880). In 1852, the legislature passed an act authorizing the courts, upon a petition for divorce and alimony, to decree the petitioner a sum sufficient for her support during the pendency of the suit. See Everton v. Everton, 50 N.C. 202 (1857). In Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918), the court overruled the former doctrine mentioned above, and stated that the courts possessed the right to grant alimony pendente lite by virtue of the common law, the practice having come down from the English ecclesiastical courts.

The effect of this holding was to make the statute remedial in its nature, affirmative in its terms and cumulative in its effect, not abrogating the common law existent on the subject nor withdrawing from the court any powers already possessed in administering its principles. Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918), overruling Reeves v. Reeves, 82 N.C. 348 (1880), on this point.

Session Laws 1995, c. 319, which repealed this section, in section 12 provides that the act applies to civil motions filed on or after that date, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995. This section, prior to the repeal by Session Laws 1995, c. 319, read as follows: " Grounds for alimony pendente lite.

"(a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when:

  1. It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and
  2. It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.

(b) The determination of the amount and the payment of alimony pendente lite shall be in the same manner as alimony, except that the same shall be limited to the pendency of the suit in which the application is made."

Legal Periodicals. - As to basis of award of alimony pendente lite in North Carolina, see 39 N.C.L. Rev. 189 (1961).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For 1984 survey, "Estoppel and Foreign Divorce," see 63 N.C.L. Rev. 1189 (1985).

For note, "The Contingent Fee Contract in Domestic Relations Cases," see 7 Campbell L. Rev. 427 (1985).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-15 and 50-16, which dealt with alimony pendente lite in actions for divorce and in actions for alimony without divorce, respectively.

Constitutionality. - Defendant's contention that the provisions of former G.S. 50-16 empowering the court to allow subsistence and counsel fees pendente lite to plaintiff in her action for alimony without divorce were unconstitutional as depriving him of a property right without trial by jury was untenable, since he was under the duty to support plaintiff until the adjudication of issues relieving him of that duty, and since such allowance by the court did not form any part of the ultimate relief sought nor affect the final rights of the parties. Peele v. Peele, 216 N.C. 298, 4 S.E.2d 616 (1939).

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Right to Alimony Pending Trial Is Grounded on Common Law. - The right of a defendant wife to an allowance for her subsistence pending trial and for counsel fees in a suit for absolute divorce by her husband was not derived from former G.S. 50-15 or 50-16, but was grounded on the common law. Branon v. Branon, 247 N.C. 77, 100 S.E.2d 209 (1957).

Common-Law Principle Not Abrogated. - Former G.S. 50-15 did not abrogate the principle on which alimony was allowed at common law. Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384 (1949).

Allowance as a Legal Right. - Generally, excluding statutory grounds for denial, allowance of support to an indigent wife (dependent spouse) while prosecuting a meritorious suit against her husband (supporting spouse) under this section is so strongly entrenched in practice as to be considered an established legal right. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745 (1946); Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955); Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46 (1967).

Purpose of alimony pendente lite is to give a dependent spouse immediate support and allow her to maintain her action. Giving supporting spouse credit for equitable distribution purposes for various payments made as part of alimony pendente lite would defeat the purpose of alimony pendente lite by penalizing the dependent spouse in the final distribution of the marital assets. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408 (1988).

When the wife (dependent spouse) is the defendant she has a right to claim alimony pendente lite. Webber v. Webber, 79 N.C. 572 (1878); Barker v. Barker, 136 N.C. 316, 48 S.E. 733 (1904).

Since the decision to the contrary in Reeves v. Reeves, 82 N.C. 348 (1980), is expressly abrogated in Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918), the wife (dependent spouse) may be allowed alimony pending the action and counsel fees in a suit against her for divorce, even though she seeks no affirmative relief and merely endeavors to defeat her husband's (supporting spouse's) case. It follows, therefore, that in an action by the husband for an absolute divorce, the wife may deny the validity of the cause of action alleged by the husband, or plead an affirmative defense to it, and obtain upon a proper showing in either event allowances from the estate or earnings of the husband for her support during the pendency of the action and for counsel fees for her attorneys. Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109 (1953).

When the husband (supporting spouse) sues the wife (dependent spouse) for an absolute divorce, the wife may plead a cause of action for divorce from bed and board as a cross-action, and obtain upon a proper showing allowances from the estate or earnings of her husband for her support during the pendency of the action and for counsel fees for her attorneys. Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109 (1953).

And this is true although she may be concluded by the judgment against her in her former and independent action for divorce a mensa under the provisions of the statute. Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918).

Lapse of seven years from the time of the separation does not bar a cross-action for divorce a mensa on the ground of constructive abandonment or application for alimony pendente lite, either by laches or any statute of limitation. Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737 (1948).

Purpose of support pendente lite is to provide for the reasonable and proper support of the wife (dependent spouse) in an emergency situation, pending the final determination of her rights. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Dixon v. Dixon, 6 N.C. App. 623, 170 S.E.2d 561 (1969).

The purpose of alimony pendente lite is to provide the dependent spouse with reasonable living expenses during the pendency of litigation. Roberts v. Roberts, 30 N.C. App. 242, 226 S.E.2d 400 (1976).

The purpose of temporary alimony is to enable the dependent spouse to maintain herself according to her accustomed station in life pending the final determination of the issues. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

So That She May Maintain Her Action. - The granting of alimony pendente lite is given by statute for the very purpose that the wife (dependent spouse) have immediate support and be able to maintain her action. It is a matter of urgency. Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964); Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968).

And to Place Her on a More Equal Footing. - The purpose of the speedy proceedings for alimony pendente lite is to give the dependent spouse subsistence and counsel fees pending trial of the action on its merits. This result places the dependent spouse on a more nearly equal footing with the supporting spouse for purposes of preparing for and prosecuting the dependent spouse's claim. Black v. Black, 30 N.C. App. 403, 226 S.E.2d 858, appeal dismissed, 290 N.C. 775, 229 S.E.2d 31 (1976).

The remedy established for the subsistence of the wife (dependent spouse) pending the trial and final determination of the issues involved and for her counsel fees is intended to enable her to maintain herself according to her station in life and to have sufficient funds to employ adequate counsel to meet her husband (supporting spouse) at the trial upon substantially equal terms. Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226 (1952); Myers v. Myers, 270 N.C. 263, 154 S.E.2d 84 (1967); Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968); Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971); Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

While Affording Some Protection to Supporting Spouse. - The purpose of former G.S. 50-15 was to afford the wife (dependent spouse) present pecuniary relief pending the progress of the action, and to afford the husband (supporting spouse) some measure of protection in a motion so important, which was made and to be determined before the merits of the controversy were ascertained and the rights of the parties settled regularly by final judgment. Morris v. Morris, 89 N.C. 109 (1883).

Purpose Is Not to Determine Rights. - The purpose of a hearing for alimony pendente lite is to give the dependent spouse reasonable subsistence pending trial and without delay. It is not to determine property rights or finally determine what alimony the dependent spouse may receive if she wins her case on the merits. Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961); Kohler v. Kohler, 21 N.C. App. 339, 204 S.E.2d 177 (1974).

Nor to Establish Savings Account for Dependent Spouse. - The purpose of alimony pendente lite is to provide for the reasonable support of the dependent spouse pending final determination of her rights, and not to establish a savings account for her. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

A pendente lite order is intended to go no further than provide subsistence and counsel fees pending the litigation. It cannot set up a savings account in favor of the plaintiff. Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79 (1960); Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

Section Does Not Involve an Accounting. - The provision for temporary subsistence pending trial on the merits does not involve an accounting between husband and wife. Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961).

Question of the alleged ownership of assets by an infant is beyond the scope of a hearing for alimony pendente lite. Kohler v. Kohler, 21 N.C. App. 339, 204 S.E.2d 177 (1974).

Order Does Not Determine Final or Ultimate Rights of the Parties. - Order granting or denying subsistence pendente lite, with or without counsel fees, whether or not containing findings of fact, is not a final determination of and does not affect the final rights of the parties. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

When the facts are investigated and findings are made as a guide to the court in making temporary allowances, they do not affect the ultimate rights of the parties at the final hearing. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962).

The final merits of the action are not before the trial judge upon a pendente lite hearing. Therefore, upon a pendente lite hearing, the trial judge may not determine the ultimate property rights of the parties. Black v. Black, 30 N.C. App. 403, 226 S.E.2d 858, appeal dismissed, 290 N.C. 775, 229 S.E.2d 31 (1976).

Determination of rights to a joint savings account is a matter for final hearing on all the merits, and not for hearing on alimony pendente lite. Roberts v. Roberts, 30 N.C. App. 242, 226 S.E.2d 400 (1976).

No Present Right to Disbursement of Eminent Domain Deposit for Land Owned by Entirety. - A wife separated from her husband and seeking alimony pendente lite had no present right to disbursement of money deposited by the State Highway Commission (now Board of Transportation) as a credit against just compensation for land owned by the wife and her husband as tenants by entirety. North Carolina State Hwy. Comm'n v. Myers, 270 N.C. 258, 154 S.E.2d 87 (1967).

It was error to order defendant to pay monthly premiums on two life insurance policies in which the child was named as primary beneficiary, because such payments provided nothing to meet the immediate needs of the child pending hearing of the case on its merits. Davis v. Davis, 11 N.C. App. 115, 180 S.E.2d 374 (1971).

Allowance for Children. - Where in passing upon a motion of plaintiff in her action for divorce a mensa for alimony, etc., pendente lite, if the trial judge has found facts sufficient upon the evidence, he may award the custody of the minor children, who have been removed by the defendant from the State, to the plaintiff, with an additional allowance for them from the time they may be placed in her custody. Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917).

Effect of Reconciliation and Resumption of Marital Relations. - Where an order for alimony pendente lite has been rendered, but subsequent thereto there is a reconciliation and a resumption of marital relations in the home, the necessity for alimony ceases, and a judge has no power to reactivate the order for alimony pendente lite. However, the original cause is still pending and upon a subsequent separation and need for subsistence for the wife, the courts are open for whatever relief may be justified by the situation then existing. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953).

An order requiring defendant to pay alimony pendente lite to plaintiff was voided when the parties subsequently resumed the marital relationship. O'Hara v. O'Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980).

Final Order Terminates Order for Subsistence Pendente Lite. - Ordinarily, a final order for alimony without divorce terminates an order for subsistence pendente lite. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962).

A final order in a case for alimony without divorce terminates an order for alimony pendente lite. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

Ordinarily, the award of permanent alimony terminates an order for subsistence pendente lite or counsel fees. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

But Relief Ordered at Previous Hearing May Be Continued as Permanent Alimony. - When the court on the final hearing finds facts based on the defendant's admissions and his testimony given at the hearing, the court may determine that the relief sought by plaintiff and ordered at a previous hearing should be continued as permanent alimony, subject to the further orders of the court. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962).

Specific Performance of Alimony Provisions of Separation Agreement. - The trial court had authority under G.S. 1A-1, Rule 65 to grant specific performance of the alimony provisions of a separation agreement in order to preserve the status quo pending final determination of the merits of an action on the agreement. Gibson v. Gibson, 49 N.C. App. 156, 270 S.E.2d 600 (1980).

Recovery of Attorneys' Fees When Alimony Modification Is Sought After Absolute Divorce. - G.S. 50-16.4 is applicable any time a dependent spouse can show that she has the grounds for alimony pendente lite, even though the proceeding was not brought for that purpose. That any time includes times subsequent to the determination of the issues in her favor at the trial of her cause on the merits. Thus, if she meets the three requirements of G.S. 50-16.3(a) for alimony pendente lite, she can recover her attorneys' fees even though she sought alimony modification subsequent to absolute divorce. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Applied in Williams v. Williams, 12 N.C. App. 170, 182 S.E.2d 667 (1971); Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971); Medlin v. Medlin, 17 N.C. App. 582, 195 S.E.2d 65 (1973); Little v. Little, 18 N.C. App. 311, 196 S.E.2d 562 (1973); Robinson v. Robinson, 26 N.C. App. 178, 215 S.E.2d 179 (1975); Hill v. Hill, 27 N.C. App. 423, 219 S.E.2d 273 (1975); Davis v. Davis, 35 N.C. App. 111, 240 S.E.2d 488 (1978); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Blair v. Blair, 44 N.C. App. 605, 261 S.E.2d 301 (1980).

Cited in Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33 (1970); Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970); Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970); Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970); Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975); Bridges v. Bridges, 29 N.C. App. 209, 223 S.E.2d 845 (1976); Wilhelm v. Wilhelm, 43 N.C. App. 549, 259 S.E.2d 319 (1979); Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985); Benfield v. Pilot Life Ins. Co., 82 N.C. App. 293, 346 S.E.2d 283 (1986); Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891 (1987); Evans v. Evans, 111 N.C. App. 792, 434 S.E.2d 856 (1993).

II. PREREQUISITES.

Prerequisites for Obtaining Alimony Pendente Lite. - In order to obtain alimony pendente lite, the applicant must be (1) a dependent spouse, (2) entitled to the relief demanded in the action, and (3) without sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. Hogue v. Hogue, 20 N.C. App. 583, 202 S.E.2d 327 (1974); Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405 (1977); Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

This section establishes the requirements for an award of alimony pendente lite. In the first place, the applicant must be a dependent spouse. Once it is established that the applicant is a dependent spouse it must appear that such spouse: (1) Prima facie, is entitled to the relief demanded in the action, i.e., absolute divorce, divorce from bed and board, annulment, or alimony without divorce; and (2) Does not have sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. Cabe v. Cabe, 20 N.C. App. 273, 201 S.E.2d 203 (1973).

To obtain alimony pendente lite, the dependent spouse must show, among other things, that he or she is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and that he or she has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. Fore v. Fore, 15 N.C. App. 226, 189 S.E.2d 520 (1972); Simmons v. Simmons, 22 N.C. App. 68, 205 S.E.2d 582 (1974).

In order for a spouse to be entitled to alimony pendente lite under this section, the trial court must make findings of fact to show three requirements: (1) the existence of a marital relationship; (2) that the spouse is either (a) actually or substantially dependent upon the other spouse for maintenance and support, or (b) is substantially in need of maintenance and support from the other spouse; and (3) that the supporting spouse is capable of making the required payments. Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976); Robbins v. Robbins, 43 N.C. App. 488, 259 S.E.2d 353 (1979).

Prerequisites for Award of Counsel Fees. - The clear and unambiguous language of this section and G.S. 50-16.4 provides as prerequisites for determination of an award of counsel fees the following: (1) The spouse is entitled to the relief demanded; (2) The spouse is a dependent spouse; and (3) The dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Therrell v. Therrell, 19 N.C. App. 521, 199 S.E.2d 164 (1973); Townson v. Townson, 26 N.C. App. 75, 214 S.E.2d 444 (1975); Knott v. Knott, 52 N.C. App. 543, 279 S.E.2d 72 (1981); Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985).

Before attorneys' fees may be awarded to the dependent spouse in an alimony case under this section and G.S. 50-16.4 and before attorneys' fees may be awarded to the interested party in a custody, support, or custody and support suit under G.S. 50-13.6, that person must have insufficient means to defray the expense of the suit; that is, he or she must be unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

As to allowance of attorneys' fees, see also Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

Both Grounds Stated in Subsection (a) Must Exist. - The two subdivisions of subsection (a) of this section are connected by the word "and", and it is therefore mandatory that the grounds stated in both of these subdivisions shall be found to exist before an award of alimony pendente lite may be made. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627 (1971); Presson v. Presson, 13 N.C. App. 81, 185 S.E.2d 17 (1971); Whitney v. Whitney, 15 N.C. App. 151, 189 S.E.2d 629 (1972); Hogue v. Hogue, 20 N.C. App. 583, 202 S.E.2d 327 (1974).

Wife who was not entitled to alimony, was not entitled to attorneys' fees for the prosecution of her claim for alimony pendente lite. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

Only a dependent spouse is entitled to alimony or alimony pendente lite. Galloway v. Galloway, 40 N.C. App. 366, 253 S.E.2d 41 (1979).

Income of Dependent Spouse Must Be Insufficient for Support and Expenses of Suit. - A married woman (dependent spouse) is entitled to alimony pendente lite from husband's (supporting spouse's) estate when the income from her separate estate is not sufficient for her support and to defray the necessary expenses in prosecuting her suit. Miller v. Miller, 75 N.C. 70 (1876).

Spouse with Ample Means Is Not Entitled to Allowance. - The right of alimony pendente lite is predicated upon the justice of affording the wife (dependent spouse) sufficient means to cope with her husband (supporting spouse) in presenting their case before the court, and a finding, supported by evidence, that wife has earnings and means of support equal to that of her husband sustains the court's order denying her motion for alimony pendente lite. Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549 (1941).

Where wife (spouse) has a monthly income substantially larger than her husband's (spouse's), the requirements of subsection (a)(2) of this section are not made to appear, and it is error to award alimony pendente lite and counsel fees pendente lite. Davis v. Davis, 11 N.C. App. 115, 180 S.E.2d 374 (1971).

But mere fact that wife (dependent spouse) has property or means of her own does not prohibit an award of alimony pendente lite. Strother v. Strother, 29 N.C. App. 223, 223 S.E.2d 838 (1976); Robbins v. Robbins, 43 N.C. App. 488, 259 S.E.2d 353 (1979).

Nor Relieve Supporting Spouse of Duty. - The fact that the wife has separate property of her own does not relieve the husband of his duty to maintain for his wife the standard of living to which she has become accustomed. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

The clear and unambiguous language of this section and G.S. 50-16.4 require that to receive attorneys' fees in an alimony case it must be determined that (1) the spouse is entitled to the relief demanded; (2) the spouse is a dependent spouse; and (3) the dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof. All three of these determinations must be made in order to support an award of attorneys' fees. Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980).

No Allowance Where Dependent Spouse Has No Case. - Discretion in allowance of support to a wife (dependent spouse), while suing her husband (supporting spouse) is confined to consideration of necessities of the wife on the one hand and the means of the husband on the other, but to warrant such allowance the court is expected to look into the merits of the action and would not be justified in allowing subsistence and counsel fees where the plaintiff, in law, has no case. Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46 (1967).

Court Must Look to Merits to Determine If Case for Relief Has Been Made. - In order to warrant the allowance of alimony pendente lite, the court must look to the merits of the action to determine if the petitioning party in law has made out a case entitling her to the relief demanded. Therrell v. Therrell, 19 N.C. App. 321, 198 S.E.2d 776 (1973).

In passing on a motion for alimony pendente lite the judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964).

Complaint Must Allege Facts Constituting Cause of Action. - Alimony pendente lite and counsel fees should not be awarded unless the plaintiff alleges in her complaint facts sufficient to constitute a good cause of action. Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283 (1951).

But Kind of Divorce Warranted by Petition Is Immaterial. - Upon an application for alimony pendente lite, it is unnecessary to decide whether the petition warrants a divorce a vinculo or only a divorce a mensa et thoro. Little v. Little, 63 N.C. 22 (1868).

Burden upon Dependent Spouse. - Upon the application of a dependent spouse for alimony pendente lite, the burden is upon her to establish (1) that she is entitled to relief in her action and, (2) that she does not have sufficient means whereon to subsist during the prosecution of her claim or to defray the necessary expenses thereof. In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 513 (1972).

Each case presents different circumstances, and the burden is upon the applicant for alimony, or alimony pendente lite, to offer evidence to establish need. Cabe v. Cabe, 20 N.C. App. 273, 201 S.E.2d 203 (1973).

Mere Institution of Suit Is Not Enough. - A wife (dependent spouse) is not entitled to an order for support pendente lite merely because she has instituted an action and alleged grounds for divorce or alimony. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

Nor Is Mere Separation. - Former G.S. 50-15 did not authorize the judge, in passing on a motion for alimony pendente lite, to award a wife (dependent spouse) subsistence and counsel fees merely because she and her husband (supporting spouse) had separated. Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964).

Dependent Spouse Must Show Lack of Provocation. - As a prerequisite to any allowance to a wife (dependent spouse), she must show that she did not by her own conduct provoke the wrongs and abuses of which she complains. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

But it need not be found as a fact that the plaintiff was a faithful, dutiful and obedient wife (spouse). Lassiter v. Lassiter, 92 N.C. 129 (1885).

Wrongful Abandonment by Dependent Spouse. - Former G.S. 50-16 did not contemplate that a wife who wrongfully abandoned and separated herself from her husband should be awarded subsistence and counsel fees. Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158 (1927); Reece v. Reece, 232 N.C. 95, 59 S.E.2d 363 (1950); Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

In a wife's (dependent spouse's) action for an allowance pendente lite the husband (supporting spouse) is not precluded from asserting and proving as a defense to his wife's action and motion that she has separated herself from him or abandoned him. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

Separation by Mutual Agreement. - The court properly denied a wife's motion for an interim award of alimony pendente lite and counsel fees in her suit for alimony without divorce, where there were findings that (1) the plaintiff and her husband had separated by mutual agreement, (2) the husband did not abandon the wife, and (3) the husband was guilty of no misconduct that would support an award of alimony. Harper v. Harper, 9 N.C. App. 341, 176 S.E.2d 48 (1970).

Effect of Separation Agreement. - The existence of a separation agreement was not a bar to an award of alimony pendente lite under former G.S. 50-16. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).

Under former G.S. 50-16 the reasonableness of a separation agreement did not have to be determined before the court could award temporary allowances. Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332 (1945); Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964).

Where in proceedings by wife to secure her subsistence and reasonable counsel fees under this section it was alleged that a separation agreement was procured by fraud, sufficiently pleaded, objection that the validity of the separation contract had to be determined first in an independent action was untenable, as former G.S. 50-16 expressly provided that alimony could be granted "pending the trial and final determination of the issues." Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171 (1929).

The cases of Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332 (1945) and Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171 (1929), holding that in an action for alimony without divorce the validity or reasonableness of a separation agreement need not be determined before the court can award temporary allowances, although decided under former G.S. 50-16, relating to actions for alimony without divorce, were equally applicable to a motion for temporary alimony under former G.S. 50-15, pending the trial of an action for divorce from bed and board. Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964).

Adultery. - Under former G.S. 50-16, there was no defense limiting the power of the trial court to award subsistence pendente lite except the defense of the wife's adultery. Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332 (1945); Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964). See also, Branon v. Branon, 247 N.C. 77, 100 S.E.2d 209 (1957).

Validity of Marriage. - Under Session Laws 1919, c. 24, it was not required that an issue involving the validity of the marriage be first determined before wife could sustain her civil action against her husband for an allowance for reasonable subsistence and counsel fees pending trial and final determination of the issue relating to the validity of the marriage. Barbee v. Barbee, 187 N.C. 538, 122 S.E. 177 (1924).

Pleadings Held Insufficient. - Trial court did not err by finding wife's pleadings were insufficient on their face and dismissing her action for alimony and alimony pendente lite; plaintiff asserted in her complaint that she was a "dependent spouse," but the only support she offered for this conclusion was evidence of her husband's salary and she did not present any evidence that she needed assistance to subsist during the prosecution or defense of the suit. Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989), cert. denied, 326 N.C. 50, 389 S.E.2d 94 (1990).

Order for Temporary Alimony Held Error. - Trial court erred in ordering husband to pay wife temporary alimony and counsel fees retroactively from Dec. 21, 1987, the date of the entry of the order, to Aug. 1, 1984, approximately one month after the date the parties separated; wife's failure to claim alimony pendente lite and counsel fees at the time the parties separated demonstrated a total lack of need for an order of temporary alimony and counsel fees and the record vividly disclosed that wife was able to support herself and employ counsel to protect her interest during the pendency of the action. Haywood v. Haywood, 95 N.C. App. 426, 382 S.E.2d 798, cert. denied, 325 N.C. 706, 388 S.E.2d 454 (1989).

Award Upheld. - In an action by a wife for a divorce a mensa, where acts of cruelty were alleged as the ground of separation, and an estimate was made of the value of the defendant's estate, it was held that there was sufficient evidence to decree alimony and fix the amount. Pain v. Pain, 80 N.C. 322 (1879).

Allegations were held sufficient where acts were alleged which were well calculated to make wife's condition intolerable and her life burdensome and the bill set forth an estimate of the amount of the defendant's property. Gaylord v. Gaylord, 57 N.C. 74 (1858).

Where the complaint of wife seeking a divorce alleged facts which, if believed, entitled her to the relief demanded, and it was supplemented by an affidavit that the husband was trying to dispose of his property and had offered his land for sale with the avowed purpose of leaving the State, and that the children were small and needed the mother's care, it was proper to grant an order for alimony pendente lite, and it was also competent for the court to award to the mother the custody of the younger children. Scroggins v. Scroggins, 80 N.C. 319 (1879).

Where the allegations in the complaint were not controverted, it was sufficient if the judge found that no answer was filed and adjudged alimony to be paid. Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893).

Where, in husband's action for divorce on ground of adultery, wife filed an answer denying the charges and set up a cross-action for divorce from bed and board, the finding by the court that the wife denied the charge of adultery under oath, that the court did not find that she was guilty of adultery, that the husband had abandoned her and that she was financially unable to defray the necessary and proper expenses of the action and was without means of support, and that the husband was financially able to make the payments ordered, was sufficient to support the court's order of alimony pendente lite. Covington v. Covington, 215 N.C. 569, 2 S.E.2d 558 (1939).

Plaintiff was entitled to an order for subsistence pendente lite where the facts found by the judge showed that the defendant abandoned his wife, without any fault or provocation on her part, and without providing for her any maintenance and support. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696 (1956).

Award Held Improper. - Where the finding that plaintiff wife was a "dependent spouse" amounted to a mere conclusion unsupported by a finding of fact, and where there were no findings upon which to conclude that wife was entitled to the relief demanded under subsection (a)(1) of this section, the trial court erred in ordering alimony pendente lite and counsel fees. Kornegay v. Kornegay, 15 N.C. App. 751, 190 S.E.2d 646 (1972).

III. DISCRETION AND FINDINGS OF TRIAL COURT.

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Amount of Subsistence and Counsel Fees Is in Trial Court's Discretion. - The amount allowed for subsistence pendente lite and counsel fees is within the discretion of the trial court, and the court's decision is not reviewable except in case of abuse of discretion or error of law. Phillips v. Phillips, 223 N.C. 276, 223 N.C. 279, 25 S.E.2d 848 (1943); Cunningham v. Cunningham, 234 N.C. 1, 65 S.E.2d 375 (1951); Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960); Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589 (1965); Miller v. Miller, 270 N.C. 140, 153 S.E.2d 854 (1967); Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968); Harper v. Harper, 9 N.C. App. 341, 176 S.E.2d 48 (1970); Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971); Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Strother v. Strother, 29 N.C. App. 223, 223 S.E.2d 838 (1976).

The amount of the allowance to plaintiff for subsistence pendente lite and counsel fees is a matter for the trial judge. He has full power to act without the intervention of the jury, and his discretion in this respect is not reviewable, except in case of an abuse of discretion. Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226 (1952); Rowland v. Rowland, 253 N.C. 328, 116 S.E.2d 795 (1960); Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961); Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961).

Where attorneys' fees may be properly awarded, the amount of the award rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

But This Discretion Is Not Absolute and Unreviewable. - The allowance of support and counsel fees pendente lite in a suit for divorce or alimony without divorce is not an absolute discretion to be exercised at the pleasure of the court and unreviewable, but is to be exercised within certain limits and with respect to factual conditions. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745 (1946); Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46 (1967); Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968); Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971). But see, Tiedemann v. Tiedemann, 204 N.C. 682, 169 S.E. 422 (1933).

Discretion in making allowances pendente lite is confined to consideration of the necessities of the wife on the one hand, and the means of the husband on the other. Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968).

Mixed Questions of Law and Fact. - Determination of what constitutes a "dependent spouse" and what constitutes a "supporting spouse" requires an application of principles of statutory law to facts and therefore involves mixed questions of law and fact. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Trial Judge Must Look into the Merits. - In considering a motion for alimony pendente lite, the court may not exercise an absolute and unreviewable discretion based solely upon the allegations of the complaint and the plaintiff's evidence offered in support thereof, while refusing to hear the evidence of the defendant. The judge is expected to look into the merits of the action and determine, in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283 (1951); Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964).

And Consider a Number of Factors. - While the amount of alimony pendente lite to be awarded rests within the sound discretion of the trial judge, the judge must take into consideration a number of factors, including the accustomed standard of living of the parties and the estate of earnings of each party. Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

The facts required by the statutes must be alleged and proved to support an order for subsistence pendente lite. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291 (1975); Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405 (1977).

And the Court Must Make Findings of Fact and Conclusions of Law Thereon. - In suits for alimony pendente lite, the grounds listed under this section are conclusions of law necessary to justify an order granting such alimony. The court, therefore, must conclude as a matter of law that the party seeking alimony pendente lite (1) is the dependent spouse, (2) is a party in an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce and, (3) from all the evidence presented pursuant to G.S. 50-16.8(f), (a) is entitled to the relief demanded in the action, and (b) is shown to lack sufficient means whereon to subsist during the prosecution or defense of the suit. Specific facts which support such a conclusion must be found. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

This section requires the trial judge to conclude as a matter of law that the spouse seeking alimony pendente lite is the dependent spouse within the meaning of G.S. 50-16.1(3); that such spouse is a party in an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce; that such spouse is entitled to the relief demanded; and that such spouse is shown to lack sufficient means whereon to subsist during the course of the litigation. Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

It is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Travis v. Travis, 27 N.C. App. 575, 219 S.E.2d 512 (1975).

Evidentiary or Subsidiary Facts Need Not Be Found. - In an action for alimony pendente lite the trial court is not required to find evidentiary or subsidiary facts. The court need only find the ultimate facts in issue. Orren v. Orren, 25 N.C. App. 106, 212 S.E.2d 394 (1975).

But Findings of Ultimate Facts Must Be Made. - In making findings of fact under subsection (f) of G.S. 50-16.8 it is not necessary that the trial judge make detailed findings as to each allegation and evidentiary fact presented. It is necessary that he find the ultimate facts sufficient to establish that the dependent spouse is entitled to an award of alimony pendente lite under the provisions of subsection (a) of this section. Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969); Robbins v. Robbins, 43 N.C. App. 488, 259 S.E.2d 353 (1979).

The judge must find ultimate facts sufficient to establish that the dependent spouse is entitled to an award of alimony pendente lite under the provisions of subsection (a) of this section. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Finding on Right to Relief Is Essential. - It is essential that a sufficient finding be made that the dependent spouse is entitled to the relief sought. Whitney v. Whitney, 15 N.C. App. 151, 189 S.E.2d 629 (1972); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

Dependency Must Be Found. - Absent a finding of fact in the order of alimony pendente lite that the plaintiff was a dependent spouse, alimony pendente lite may not be awarded. Musten v. Musten, 36 N.C. App. 618, 244 S.E.2d 699 (1978).

As Must Financial Need. - While it is not necessary in awarding alimony pendente lite on the basis of dependency for the trial judge to find that the wife (dependent spouse) would be unable to exist without support, it is necessary that the trial judge find facts which establish that she is substantially in need of maintenance and support. Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

In order to recover counsel fees, this section requires a finding that plaintiff is unable to defray the expense of prosecuting the suit. Davis v. Davis, 62 N.C. App. 573, 302 S.E.2d 886 (1983).

Due regard must also be given to the ability of the supporting spouse to pay. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

Lack of Findings as to Dependent Spouse's Means Is Reversible Error. - Failure to make specific findings as to the sufficiency of dependent spouse's means of subsistence during the prosecution of her action and of defraying the necessary expenses thereof constitutes reversible error. Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627 (1971).

Findings of Fact Necessary for Award of Attorneys' Fees. - In order to award attorneys' fees in alimony cases the trial court must make findings of fact showing that fees are allowable and that the amount awarded is reasonable. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

Where the order appealed from is deficient in findings to establish that plaintiff is entitled to alimony pendente lite pursuant to this section, the award of counsel fees under G.S. 50-16.4 is also unsupported and must be reversed. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Where the findings of fact are insufficient to support an award for alimony pendent lite, they are likewise insufficient to support an award of counsel fees. Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

Trial judge is not required to make negative findings justifying denial of an application by dependent spouse for alimony pendente lite. In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 512 (1972).

Findings in alimony pendente lite motion are solely for purpose of that motion and are not competent evidence on the final hearing of the same issues. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

IV. AMOUNT.

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Determination of Amount Is Made in Same Manner as Alimony. - The determination of the amount and the payment of alimony pendente lite is to be made in the same manner as alimony, except that alimony pendente lite shall be limited to the pendency of the suit in which the application is made. Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969).

The amount of alimony pendente lite is to be determined in the discretion of the trial judge in the same manner as the amount of alimony is determined. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970).

Award Should Be Based on Supporting Spouse's Earnings. - If the husband (supporting spouse) is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which he is earning when the award is made. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

But Amount of Allowance Is Not Necessarily Dependent upon Earnings. - The granting of a support allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who is able-bodied and capable of earning may be ordered to pay subsistence. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

When Award Will Be Based on Capacity to Earn. - To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband (supporting spouse) was failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife (dependent spouse). Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960); Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

An award of alimony pendente lite may not be based on the earning capacity of the supporting spouse in the absence of a finding that the defendant is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support. Gobble v. Gobble, 35 N.C. App. 765, 242 S.E.2d 516 (1978).

Allowance When Supporting Spouse Denies Having Property. - Where the husband (supporting spouse) denies having any property, but admits that he is an able-bodied man, the court may order an allowance without inquiry into the value of his property. Muse v. Muse, 84 N.C. 35 (1881).

Consideration of Dependent Spouse's Station in Life. - In determining the need for maintenance and support, the court will give due consideration to the plaintiff's accustomed station in life. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867 (1979).

Allowance of Reasonable Amount. - In an action for alimony without divorce, upon issuance of summons and the filing of a verified complaint setting forth facts sufficient to entitle the complainant to the relief sought, the judge has power to require the payment by the husband of a reasonable amount for the wife's subsistence and counsel fees pendente lite. Perkins v. Perkins, 232 N.C. 91, 59 S.E.2d 356 (1950).

Award Upheld. - Award of $400.00 per month for support and maintenance pendente lite upheld. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 321 N.C. 330, 368 S.E.2d 875 (1988).

V. REVIEW ON APPEAL.

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Appeal as a Matter of Right. - An order requiring payment of alimony pendente lite and counsel fees affects a substantial right from which an appeal lies as a matter of right. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Scope of Review. - Proper exercise of the trial judge's authority in granting alimony, alimony pendente lite, or counsel fees is a question of law, reviewable on appeal. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

Reviewable Question of Law in Award of Attorneys' Fees. - The facts required by this section and G.S. 50-16.4 must be alleged and proved to support an order for attorneys' fees. Whether these requirements have been met is a question of law that is reviewable on appeal. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

Order denying alimony pendente lite and attorneys' fees is an interlocutory decree from which an immediate appeal does not lie. Wilson v. Wilson, 90 N.C. App. 144, 367 S.E.2d 363 (1988).

Denial of Attorneys' Fees Held Interlocutory. - Denial of attorneys' fees under G.S. 50-16.4 was not a final order of the trial court, where at the time appellant's motion was filed there had been no determination that his client, defendant, was entitled to alimony pendente lite under this section, so that appellant was not yet entitled to attorneys' fees under G.S. 50-16.4, and as appellant could appeal the denial of his motion after final judgment, or could bring a separate lawsuit to collect his fees, no substantial right of appellant was affected by the Court of Appeals' failure to entertain an interlocutory appeal on this issue. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181 (1988).

Weight of Evidence is for Trier of Facts. - While the sufficiency of the findings of fact to support the award is reviewable on appeal, the weight to be accorded the evidence is solely for the trier of the facts. Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

Conclusive Effect of Findings. - If the findings of fact are supported by competent evidence, they are conclusive on appeal, even though the evidence would support contrary findings. Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

Effect of Appeal. - When an order arising from a domestic case is appealed, the cause is taken out of the jurisdiction of the trial court and put into the jurisdiction of the appellate court. Pending the appeal, the trial judge is functus officio and is without authority to act in the matter. Traywick v. Traywick, 31 N.C. App. 363, 229 S.E.2d 220 (1976).

Remand on Appeal. - The district court had jurisdiction to entertain a motion in the cause and to adjudge defendant guilty of contempt for failure to comply with order for alimony pendente lite after the judgment on the merits had been reversed on other grounds, new trial had been ordered and the case had been certified back to the trial court by the Court of Appeals. Traywick v. Traywick, 31 N.C. App. 363, 229 S.E.2d 220 (1976).


§ 50-16.3A. Alimony.

  1. Entitlement. - In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section. If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
  2. Amount and Duration. - The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
    1. The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
    2. The relative earnings and earning capacities of the spouses;
    3. The ages and the physical, mental, and emotional conditions of the spouses;
    4. The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
    5. The duration of the marriage;
    6. The contribution by one spouse to the education, training, or increased earning power of the other spouse;
    7. The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
    8. The standard of living of the spouses established during the marriage;
    9. The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
    10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
    11. The property brought to the marriage by either spouse;
    12. The contribution of a spouse as homemaker;
    13. The relative needs of the spouses;
    14. The federal, State, and local tax ramifications of the alimony award;
    15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
    16. The 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 of the parties' marital or divisible property.
  3. Findings of Fact. - The 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. 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 special findings of fact, the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.
  4. In the claim for alimony, either spouse may request a jury trial on the issue of marital misconduct as defined in G.S. 50-16.1A. If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct.

The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.

History

(1995, c. 319, s. 2; c. 509, s. 135.2(b); 1998-176, s. 11.)

Editor's Note. - Session Laws 1995, c. 319, s. 12, provides that this section is effective October 1, 1995, is applicable to civil actions filed on or after that date, and is not applicable to pending litigation or future motions in the cause seeking to modify orders or judgments in effect on that date.

Legal Periodicals. - For article, "Giving Credit Where Credit is Due: North Carolina Recognizes Custodial Obligations as a Factor in Determining Alimony Entitlements," see 74 N.C.L. Rev. 2128 (1996).

For article, "The Best Interests of the Child: Article & Empirical Study: Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce," see 43 Wake Forest L. Rev. 441 (2008).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

For article, "If Loving You is Wrong….Can First Amendment Protection Be Right? Alienation of Affection, Criminal Conversation, and the Right to Free Speech," see 38 N.C. Cent. L. Rev. 93 (2016).

For article, "Adultery, Infidelity, and Consensual Non-Monogamy,” see 55 Wake Forest L. Rev. 147 (2020).

CASE NOTES

Pleadings. - Trial court erred in granting a wife's motion to dismiss a husband's alimony claim on the grounds that he failed to reply to the wife's counterclaims because the allegations set forth in the wife's counterclaims, and reiterated in a finding of fact in the trial court's order, were merely denials in affirmative form of the allegations of the complaint, and the trial court erred in deeming admitted the allegations in the wife's counterclaim that the husband was not a dependent spouse and that he was not a supporting spouse; a plaintiff is not required to re-allege those allegations in a complaint that have been "denied in the affirmative" by way of a counterclaim by a defendant. Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

Because there was no counterclaim for alimony in a wife's answer to a husband's complaint, but there were three specific counterclaims that incorporated by reference and re-alleged those portions of the answer that related to alimony, the wife did assert counterclaims to which a reply would generally be required; however, a plaintiff's failure to file a reply re-asserting allegations already made in the complaint in response to averments in a defendant's counterclaim, which do no more than present denials in affirmative form of the allegations of the complaint, does not amount to an admission pursuant to G.S. 1A-1, N.C. R. Civ. P. 8(d). Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

"Dependent Spouse." - Trial court did not err by determining a wife was not a "dependent spouse" for purposes of alimony, G.S. 50-16.1A(2) and G.S. 50-16.3A(a), because there was a surplus left to the wife each month, after deducting all of the wife's expenses from her net monthly income; the wife's "change in lifestyles" argument in support of alimony was rejected because the wife's previous standard of living was "artificially inflated" by a massive infusion of debt. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

"New Action" Under Rule 41(a)(1). - An alimony claim made pursuant to subsection (a) of this section and filed within one year of plaintiff's dismissal of her first claim (under repealed G.S. 50-16.6(a)) failed to qualify as "a new action based on the same claim" under G.S. 1A-1, Rule 41(a)(1), because the claim for alimony under this section was distinct from that set out by the repealed section in that it deferred to the court's discretion the decision of whether to award alimony where both the supporting and dependent spouse "each participated in an act of illicit sexual behavior," whereas the old section foreclosed a dependent spouse from recovering. Brannock v. Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999).

Severance pay is properly includable in a spouse's income for the purposes of determining the amount and duration of an alimony award. Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998).

Amounts Paid Into Investments May Be Classified as Expenses. - The trial court did not abuse its discretion by characterizing the funds reflecting a marital pattern of savings as a reasonable expense where defendant was still employed and had a comfortable and significantly higher income than plaintiff, who was not working, but the trial court's inclusion of this investment income amount as an expense for the plaintiff but not for the defendant did constitute an abuse of discretion. Bryant v. Bryant, 139 N.C. App. 615, 534 S.E.2d 230 (2000), cert. denied, 353 N.C. 261, 546 S.E.2d 91 (2000).

Amounts paid into savings accounts by the parties from their respective incomes are includable as income for the purpose of determining alimony. Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998).

It was error to award, as a component of alimony, a sum to enable a wife to accumulate savings because (1) this was not the purpose of alimony, and (2) a sum the parties contributed to savings on a monthly basis during the marriage was not found, and (3) the court did not factor in the savings as a monthly expense of the wife in calculating the wife's reasonable monthly expenses. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Consideration of Wife's Investment Portfolio Proper. - Trial court had the authority to evaluate wife's investment portfolio under G.S. 50-16.3A(b)(15) in determining the amount and duration of alimony. Francis v. Francis, 169 N.C. App. 442, 612 S.E.2d 141 (2005).

Accustomed Standard of Living. - Certainly, there is no requirement that one spouse enjoy the same lifestyle as the other spouse's current lifestyle, but the trial court must consider the accustomed standard of living developed during the marriage in determining one spouse's reasonable need for support. Myers v. Myers, - N.C. App. - , 837 S.E.2d 443 (2020).

Findings of Fact. - The findings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case; however, the findings of fact need not set forth the weight given to the factors in subsection (b) by the trial court when determining the appropriate amount, duration, and manner of payment, as the weight given the factors is within the sound discretion of the trial court. Friend-Novorska v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (2001), aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001).

Remand was required where a trial court, while making sufficient ultimate findings of fact to support an award of permanent alimony, failed to state findings of fact as to the reasoning for the duration of the award and the manner of payment. Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003).

While the trial court's findings were sufficiently specific to indicate that the trial judge properly considered each of the statutory factors, the alimony award was improper because the trial court made no findings with respect to the wife's medical benefits or potential income from her IRA, as required by G.S. 50-16.3A(b)(4) although evidence of the sources of income was presented at the hearing; without such findings, it was not known where the trial court properly considered the factor. Phillips v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff'd, 362 N.C. 171, 655 S.E.2d 350 (2008).

Trial court's findings of fact were more than sufficient to demonstrate the court's consideration of the statutory factors under G.S. 50-16.3A because the court considered: (1) the duration of the parties' marriage; (2) the status of the parties' minor children; (3) the parties' ages and education levels; (4) the parties' relative incomes and earning capacities; (5) the parties' expenses, debts, and financial obligations; (6) the parties' standard of living; and (7) the marital misconduct of one of the parties. Hartsell v. Hartsell, 189 N.C. App. 65, 657 S.E.2d 724 (2008).

Because the trial court failed to make factual findings as to the parties' financial needs, accustomed standard of living, separate and marital debt obligations, and the expenses reasonably necessary to support each of them, its post-separation support and alimony awards to the husband under G.S. 50-16.3A(a), (b), and (c) were reversed. Crocker v. Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008).

Sufficient findings supported a trial court's award of retroactive alimony to a former wife because the court's findings regarding the amount, duration, and manner of payment were set out in its February 2012 order, while an April 2012 order simply awarded the wife alimony for a time period that was inadvertently omitted from the February order, and reading the two orders together supported the entirety of the award; the statute authorized the trial court to award retroactive alimony. Smallwood v. Smallwood, 227 N.C. App. 319, 742 S.E.2d 814 (2013).

In its order awarding alimony, the trial court made findings of fact addressing all 16 statutory factors before concluding that the wife was entitled to an award of alimony lasting for two years; the trial court stated that it considered the wife's affair and resulting disrespect for and mistreatment of the marriage in reaching its alimony decision, and this finding was sufficient to explain the trial court's reasoning in awarding alimony for only two years, plus the trial court made other findings that could also support its decision, which was affirmed. Ellis v. Ellis, 238 N.C. App. 239, 767 S.E.2d 413 (2014).

Alimony award erred because the trial court's findings of fact were limited to the parties' incomes and expenses in various prior years, instead of considering all competent evidence of all statutory factors. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Trial court acted within its discretion in calculating a husband's total reasonable needs and expenses based on the record evidence because its specific findings as to the total expenses were attached and incorporated by reference as an exhibit, which detailed and confirmed the total expenses. Burger v. Burger, 249 N.C. App. 1, 790 S.E.2d 683 (2016).

Reversal and remand of a trial court's order was appropriate because the court had to enter additional findings concerning the parties' expenses as the court's alimony order did not include any findings as to the wife's expenses. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Finding of fact was simply a comparison of the relative assets and liabilities of the spouses as required the statute, and as there was competent evidence to support the finding, the husband's challenge was overruled. Rea v. Rea, 262 N.C. App. 421, 822 S.E.2d 426 (2018).

Due to the incomplete transcript, the court of appeals could review the sufficiency of the evidence, because the order on appeal had findings of fact on some of the alimony factors, the court of appeals assumed they were supported by the evidence; since findings for a particular factor were only required if evidence was presented on that factor, the court of appeals also had to assume the trial court made findings addressing all of the factors for which evidence was presented. Gilmartin v. Gilmartin, 263 N.C. App. 104, 822 S.E.2d 771 (2018), review denied, 372 N.C. 291, 826 S.E.2d 702, 2019 N.C. LEXIS 404 (2019).

Because the trial court did not set forth its reasons for the amount and duration of its alimony award, the matter was remanded for further findings. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Trial court had to revisit its calculations of gross income and net income used to determine child support and alimony because it had to make additional findings to support its determination of a husband's business income, which was used to calculate gross income and determine child support; the trial court also had to make additional findings to account for the husband's mandatory retirement deduction and his reasonable health insurance expenses in the calculation of his net income. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Findings of fact were sufficient to meet statutory requirements; the trial court found defendant was not dependent on plaintiff for maintenance as she had substantial unearned income in the form of the life insurance proceeds, and the trial court relied on the same findings the court used to distribute property as the court required consideration of similar factors. The trial court did not simply disqualify defendant from receiving alimony based solely on her ability to support herself through estate depletion. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

It was unclear how the trial court reached the court's amount of prospective alimony, and even based on the trial court's findings, it appeared the wife had greater reasonable needs than $ 1,200.00 per month and the husband had the ability to pay substantially more; the only issue was the wife's reasonable needs based upon the accustomed standard of living established during the marriage, and the order of prospective alimony was vacated and remanded for additional findings. Myers v. Myers, - N.C. App. - , 837 S.E.2d 443 (2020).

Actual findings by the trial court were insufficiently detailed or specific where, other than the parties' contributions to retirement and stock, the trial court made no findings regarding the parties' standard of living during the marriage and the parties' respective living expenses since the separation. Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000).

Trial Court Must Determine Equitable Distribution Prior to Determining Alimony. - Since the trial court heard both the alimony claim and the equitable distribution claims simultaneously, it had to determine the final equitable distribution prior to determining alimony; on remand, the trial court had to first determine the equitable distribution matters prior to considering the alimony issues since the distribution could potentially change the financial circumstances of the parties including the need for or ability to pay alimony. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Calculating Income. - There was no evidence to support the trial court's conclusion that the husband would pick up additional business to offset established income losses of some $80,000 per year; thus, the court incorrectly determined the husband's income for alimony purposes. Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998).

Trial court erred in its calculation of a wife's income because it calculated her average net income even though there was no evidence in the record to suggest that she was depressing her income; if the trial court imputed income to the wife on the basis of earning capacity, its calculation of her income would constitute error, and if it included post-separation support (PSS) the wife received from the husband, that would also constitute error, because (PSS) was not permanent income. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Trial court properly determined a wife's income in accordance with the record evidence because the wife had consistently received bonuses for the past four years; the wife based her most recent financial affidavit in part on her gross monthly income, but she admitted that her bonus for that year totaled around $ 41,000. Burger v. Burger, 249 N.C. App. 1, 790 S.E.2d 683 (2016).

Husband's ability to pay alimony was not sufficiently found because, rather than finding the husband's current income, the court based an alimony award on an average of the husband's income in two prior years. Green v. Green, 255 N.C. App. 719, 806 S.E.2d 45 (2017), review denied, 371 N.C. 485, 818 S.E.2d 273 (2018).

Because personal expenses were included as business deductions and accounted for in the business tax returns used to determine a husband's income from a business, the trial court did not err in excluding them from the living expenses; including the personal expenses as separate living expenses after they were considered in determining income from the business would result in "double dipping." Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Trial court abused its discretion in failing to factor a husband's law enforcement officer (LEO) retirement into net income calculations and in believing it was voluntary because the LEO was a mandatory deduction from the husband's income, making that portion of his income unavailable to him to pay towards alimony; the trial court should have accounted for the mandatory deduction it its calculation of the husband's net income. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Because a deduction for a husband's law enforcement officer retirement was mandatory, and those funds were not available to the husband to pay alimony, the trial court's failure to account for the mandatory deduction was not supported by reason and amounted to an abuse of discretion; at the very least, the trial court had to make further findings setting forth the reasons why the retirement was not factored into its calculations. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Trial court's findings supported its decision to use prior years' income from a business in the calculation of gross income for the determinations of alimony and child support because the trial court questioned whether the husband's reported income accurately represented his income from the business; the trial court found that the husband's reported income was not credible. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Imputing Income. - Trial court erred in imputing income to a stay-at-home wife who was unemployed without making a finding that the wife had depressed her income in bad faith as required by G.S. 50-16.3A(c). Findings that the wife had failed to seek employment since 2009 and to obtain any additional training to help her find employment were insufficient. Works v. Works, 217 N.C. App. 345, 719 S.E.2d 218 (2011).

Trial court did not err in its award of alimony because its findings regarding the parties' income and expenses were supported by competent evidence; the trial court did not err in imputing minimum wage income to the husband, who had no eyesight in one eye, because he would have a difficult time finding a job. Burger v. Burger, 249 N.C. App. 1, 790 S.E.2d 683 (2016).

The amount of alimony pendente lite 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).

Intent to Support With Alimony. - Consent order demonstrated that the parties intended to support the ex-wife with alimony payments, where the ex-wife was a dependent spouse, the ex-husband a supporting spouse with the ability to pay the amounts set forth in the order, and the award was fair and equitable. Underwood v. Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011).

Findings as to Duration of Alimony Award. - Where an action was filed on 16 July 1993, pre-dating this section, and where the prior applicable version of the alimony provisions contained no requirement that there be findings relative to the duration of any alimony award, the trial court did not err in mandating a lifetime award and making no other findings relative to the duration of the award. Bookholt v. Bookholt, 136 N.C. App. 247, 523 S.E.2d 729 (1999).

While the trial court made sufficient findings regarding the reasons for the amount and manner of payment, the trial court failed to make findings concerning the reasons for the duration of the alimony payments; therefore, the court remanded the alimony order for further findings of fact concerning the duration of the alimony award. Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).

Trial court erred in failing to specify the duration of the alimony award. Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006).

Alimony award had to be vacated because, inter alia, competing factors were not weighed in finding the award's duration. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Trial court erred in ordering an alimony award to be permanent because the court did not make findings of fact to support the court's conclusion as required by the statute and precedents. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Trial court did not err in ordering the ex-husband to pay alimony for 120 months because the order included detailed findings of fact regarding the factors in this statute, including that the parties had been married for over 20 years, that the ex-wife only had a high school education, and the wife had serious medical problems which prevented her from maintaining employment. Klaver v. Klaver, - N.C. App. - , - S.E.2d - (Feb. 17, 2021).

Findings on Marital Misconduct. - The trial court properly considered postseparation expenditures by the wife for clothing totalling $23,520, but such evidence did not require a finding of marital misconduct by the wife, where the court found that both parties spent excessively. Glass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998).

The trial court was required to make specific findings as to the existence of marital misconduct, where the wife presented evidence that the husband communicated with other women during the marriage, met with one of them in an apartment, and hugged and kissed another. Friend-Novorska v. Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998).

Trial judge held that plaintiff wife's conduct constituted marital misconduct without just cause or excuse, and that the wife caused defendant husband to suffer indignities so that an award of alimony would not be equitable pursuant to G.S. 50-16.3A. The judgment was reversed and remanded where the appellate court found the trial court simply adopted the husband's testimony without making independent findings of fact adequate to support its conclusions of law. Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 555 S.E.2d 326 (2001).

Where the evidence of the post-separation sexual intercourse between defendant and plaintiff's husband corroborated the pre-separation relationship between these parties, the trial court properly denied defendant's motion for JNOV regarding plaintiff's alienation of affection claim. Pharr v. Beck, 147 N.C. App. 268, 554 S.E.2d 851 (2001), overruled in part by McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006) But see Johnson v. Peare, 148 N.C. App. 199, 557 S.E.2d 189 (2001), as to criminal conversation case.

Even though a husband admitted to marital misconduct, in the form of breaking his wife's arm, and physically and verbally abusing the parties' minor children, a trial court properly determined the wife was not entitled to alimony under G.S. 50-16.3A(a) because the wife had engaged in uncondoned illicit sexual behavior with another man, G.S. 50-16.1A(3)(a), including sexual intercourse or sexual acts, as defined in G.S. 14-27.1(4). Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Competent evidence showed a husband subjected a wife to indignities because a guardian ad litem report, to which the husband did not object for alimony purposes, demonstrated such indignities. Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

Statute clearly bars alimony for a dependent spouse who has engaged in uncondoned marital misconduct, and the wife's contention that the trial court could not consider her marital misconduct in determining her award of alimony because the husband condoned the misconduct and sought to salvage his marriage was rejected; there is nothing in the statute to indicate that the trial court cannot consider a spouse's condoned marital misconduct in calculating its award of alimony to the dependent spouse, as the trial court can consider acts of condoned marital misconduct as part of its determination of an award of alimony. Ellis v. Ellis, 238 N.C. App. 239, 767 S.E.2d 413 (2014).

Trial court did not err in finding that defendant acted in bad faith regarding his income, as the unchallenged findings of fact, including in part that he filed falsified and inaccurate tax returns for two years and he intentionally shut down his brokerage business and understated his business's income, supported the trial court's conclusion and made the imputation of income to defendant appropriate. Juhnn v. Juhnn, 242 N.C. App. 58, 775 S.E.2d 310 (2015).

Alimony order was reversed because, inter alia, the court wrongly held prior findings bound the court, including unnecessary findings as to divorce and marital fault findings. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781 (2015), dismissed, 780 S.E.2d 757, 2015 N.C. LEXIS 1310 (2015), dismissed, 781 S.E.2d 293, 2015 N.C. LEXIS 1291 (2015).

Alimony order was reversed because, inter alia, the court wrongly took judicial notice of salaries in the wife's profession in order to find the wife's earning capacity, as this was a contested issue. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781 (2015), dismissed, 780 S.E.2d 757, 2015 N.C. LEXIS 1310 (2015), dismissed, 781 S.E.2d 293, 2015 N.C. LEXIS 1291 (2015).

Although the husband's overnight stays with another woman at the hotel were shortly after the parties separated, under the statute, nothing prevented a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage; therefore, there was competent evidence to support the finding of fact in this regard. Rea v. Rea, 262 N.C. App. 421, 822 S.E.2d 426 (2018).

Remand Where Court Made Unsupported Findings. - Trial court correctly considered relevant factors, including wife's constructive abandonment of husband, in denying her claim for permanent alimony; nevertheless, case would be remanded because the record revealed that the trial court made at least three findings of fact which were not supported by the evidence. Alvarez v. Alvarez, 134 N.C. App. 321, 517 S.E.2d 420 (1999).

Case was remanded for further findings of fact because the trial court did not provide the basis for the amount and duration of the alimony award pursuant to G.S. 50-16.3A(b). Hartsell v. Hartsell, 189 N.C. App. 65, 657 S.E.2d 724 (2008).

Alimony award had to be remanded because the award was based on a wife's income five to seven years before the order was entered, so insufficient facts regarding whether the wife lacked sufficient actual and current income to maintain the wife's standard of living established during the marriage supported a conclusion that the wife was a dependent spouse. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Trial court erred by speculating about the results of the pending equitable distribution between the parties where no evidence was presented as to the likely outcome of the equitable distribution. Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000).

Failure to State Grounds in Pleading. - Wife did not sufficiently plead her claim for alimony when her counterclaim for this relief only requested a certain monthly amount of alimony because she did not specify the grounds upon which she based her alimony claim, so her husband was not put on notice of such grounds and could not defend against them, as required by G.S.1A-1-8(a)(1). Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

Date of Separation. - Trial court did not err in finding a husband and wife were not separated at the time of the wife's marital misconduct, as defined in G.S. 50-16.1A(3)(a), thereby precluding an award of alimony to the wife under G.S. 50-16.3A(a), because even though there was some physical separation of the parties after a choking incident involving the parties' son, neither party expressed to the other they wanted to separate and the husband continued to maintain all of his belongings at the marital residence; although the phrase "the date of separation" as used in G.S. 50-16.3A(a) was not defined, the phrase "separate and apart" as used in G.S. 50-6 meant there had to be a physical separation and an intention on the part of at least one of the parties to cease matrimonial cohabitation. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Cohabitation Defense. - Trial court, which awarded defendant alimony, acted under a misapprehension of the law when it rejected plaintiff's request to assert a cohabitation defense. Because the trial court acted under a misapprehension of the law, its alimony order was subject to vacation. Orren v. Orren, 253 N.C. App. 480, 800 S.E.2d 472 (2017).

Summary judgment was appropriate where a premarital agreement signed by the parties irrefutably barred the wife's claims for postseparation support, alimony and equitable distribution; the language in the subject agreement - drafted by the wife's attorney - was sufficiently "express" to constitute a valid and enforceable waiver of the wife's claims for postseparation support pursuant to G.S. 50-16.2A and alimony pursuant to G.S. 50-16.3A. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209 (2000).

Standard of Living of the Spouses Established During the Marriage. - Former G.S. 50-16.5 clearly stated that the trial court is to consider the parties' "accustomed standard of living," not the potential standard of living; therefore, a trial court properly concluded that divorcing parties' standard of living did not substantially increase when the husband became a partner in his accounting firm, resulting in a net increase in salary of approximately $240.00 a month, a change from $6,487.52 to $6,732.73. (Decided under former G.S. 50-16.5.) Kelly v. Kelly, 167 N.C. App. 437, 606 S.E.2d 364 (2004).

Raised Standard of Living. - Because it was unclear what amount each child used for his or her own needs, and what amount was used to supplement plaintiff's needs, which also hinged on a determination of the change in standard of living, the matter was remanded for the court to determine if the dependent spouse had raised her standard of living, and whether the contributions by the adult children should be a means of supporting that increase. Dodson v. Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008).

Reasonable Expenses. - Husband and eife established a lifestyle of caring for foster children; this economic choice was certainly worth at least the same consideration as golf and vacations, and the trial court did not abuse its discretion by including these expenses in the wife's needs. Rea v. Rea, 262 N.C. App. 421, 822 S.E.2d 426 (2018).

Increase in Spouse's Needs. - In a former wife's action to modify alimony and child support under G.S. 50-16.9 and G.S. 50-16.3A(b), her affidavit demonstrating that her total reasonable monthly expenses had increased 24 percent since the prior order, to $7,474 per month, was itself sufficient evidence of the change in circumstances, without requiring additional supporting evidence. Parsons v. Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013).

Relative Financial Need And Reasonable Expenses. - Trial court must consider the relative needs of the spouses, and the term "relative" is an adjective describing needs of the spouses; the term "relative" is used simply to direct a comparison of the expenses of the husband and the wife, and the court saw no reason the "relative financial need" of the wife had to differ from her "reasonable expenses." The trial court's calculation of the wife's need for alimony was clear. Rea v. Rea, 262 N.C. App. 421, 822 S.E.2d 426 (2018).

Amount of Monthly Alimony Awarded. - Trial court did not abuse its discretion in determining the amount of the monthly alimony awarded to a dependent spouse because the court considered the relevant statutory factors, including the parties'; pattern of savings and retirement contributions as it pertained to the parties'; accustomed standard of living during the marriage. The court also did not abuse its discretion in reducing the dependent spouse's monthly expenses because the court considered the relevant factors when calculating the spouse's reasonable monthly needs and expenses. Putnam v. Putnam, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

Alimony Award Upheld. - An alimony award to the plaintiff wife of $600 per month for 30 months was upheld where (1) the wife received an unequal distribution of the marital property in her favor; (2) she was able to re-allocate her resources to meet her reasonable needs without depleting her separate estate; (3) both of the parties had selected careers and been educated for their career plans prior to their marriage; (4) the parties lived beyond their means during the last four years of their marriage; (5) subsequent to the parties' separation, the husband provided support to the wife which enabled her to obtain a full-time position at a university and to complete her training in order to meet her reasonable economic needs; and (6) certain expenses would have to be cut and re-allocated by both parties in order to live within their means which was not the case during the last few years of their marriage. Friend-Novorska v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (2001), aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001).

The trial court did not abuse its discretion in awarding alimony in the amount of $1,800.00 per month to plaintiff based in part on its consideration of defendant's financial benefits, such as health insurance, vehicle and reimbursed expenses received through his company. Walker v. Walker, 143 N.C. App. 414, 546 S.E.2d 625 (2001).

Because a husband's estate was substantially larger than a wife's estate, it would have been unfair to require the wife to further deplete her estate while allowing the husband to maintain his; because a modified alimony award required both parties to deplete their estates to meet their living expenses, award was fair to both parties. 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).

Trial court was not required to find a change of circumstances in entering an alimony order in a divorce case because at the time of the hearing, the only order in effect was a postseparation support order, and the alimony award thus did not "modify" a prior alimony order, but rather terminated an existing temporary postseparation support; because the wife failed to assign error to any of the trial court's findings of fact, they were binding on appeal, and absent a showing that the trial court failed to make any finding as to a particular factor, the wife failed to demonstrate that the trial court's findings of fact were inadequate. Langdon v. Langdon, 183 N.C. App. 471, 644 S.E.2d 600 (2007).

Trial court's alimony award to a wife was not an abuse of discretion because the husband's marital misconduct was shown, but the award had to be reconsidered in light of the required reconsideration of a related equitable distribution award. Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

Trial court did not err in awarding plaintiff 18 years of alimony, given in part that defendant engaged in martial misconduct, was always the sole means of support from the family and had a greater earning capacity than plaintiff, deliberately underreported his income and filed false tax returns, and plaintiff was a dependent spouse in need of alimony and was functionally unemployable. Juhnn v. Juhnn, 242 N.C. App. 58, 775 S.E.2d 310 (2015).

Trial court did not abuse its discretion in considering a wife's current net monthly income in determining the alimony award because based on the evidence presented and consideration of the statutory factors, the trial court awarded the husband $ 1,750 per month in alimony; the wife's current net monthly income was $ 10,230, and her total monthly reasonable financial needs and expenses were $ 8,240. Burger v. Burger, 249 N.C. App. 1, 790 S.E.2d 683 (2016).

Former husband failed to show that the husband was prejudiced by the trial court's inclusion in its alimony order of social security benefits received by the husband on behalf of the parties' minor child. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Trial court's alimony award was affirmed because it made findings of fact regarding many of the factors; the trial court concluded that the award of alimony was equitable considering all relevant factors, and the relevant factors supported alimony in the amount designated and for the designated duration. Gilmartin v. Gilmartin, 263 N.C. App. 104, 822 S.E.2d 771 (2018), review denied, 372 N.C. 291, 826 S.E.2d 702, 2019 N.C. LEXIS 404 (2019).

Husband's motion to dismiss a wife's claim that he had engaged in "marital misconduct" was not properly presented by his appeal; where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case proceeds to judgment on the merits, the unsuccessful movant cannot on an appeal from the final judgment seek review of the denial of the motion to dismiss. Gilmartin v. Gilmartin, 263 N.C. App. 104, 822 S.E.2d 771 (2018), review denied, 372 N.C. 291, 826 S.E.2d 702, 2019 N.C. LEXIS 404 (2019).

Failure to Consider Change in Circumstances. - While it made sufficient findings to support its determinations that the ex-wife was a dependent spouse, because the trial court abused its discretion by not considering alleged changes of circumstances occurring after the first hearing before entering a lump sum retroactive alimony award, the appellate court had to vacate the lump sum award. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

Where the trial court found that the ex-husband had a net monthly income of approximately $5,400 and reasonable monthly expenses in the amount of $4,200, yielding a surplus of $1,200, and the ex-wife's reasonable needs exceeded her income by $1,400, there was no abuse of discretion in finding the ex-wife was a dependent spouse and the ex-husband was a supporting spouse and awarding the ex-wife $1,200 per month in alimony. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

Trial court did not simply recite that it had considered this list of factors; it made findings of fact regarding the relevant factors and properly set the duration of the alimony; there was no abuse of discretion in the trial court granting 10.5 years of alimony. Rea v. Rea, 262 N.C. App. 421, 822 S.E.2d 426 (2018).

Modification. - Under former G.S. 50-16.5 (1987), in determining whether a change in circumstances had occurred for purposes of a motion to terminate alimony, a trial court was not allowed to reconsider a spouse's dependent spouse status, as that was adjudicated at initial alimony hearing; alimony could have been reduced to zero, but that did not result in loss of dependent spouse status. Honeycutt v. Honeycutt, 152 N.C. App. 673, 568 S.E.2d 260 (2002).

Insurance. - Since a trial court may order a supporting spouse to make homeowner's and automobile insurance payments on behalf of a dependent spouse, even though such payments are not explicitly authorized under G.S. 50-16.1A(a) or G.S. 50-16.3A(a), a court may also order a supporting spouse to pay for health insurance for a dependent spouse. Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011).

Trial court abused its discretion in not accounting for a husband's portion of health insurance premium in calculating his net income because it should have considered the husband's portion of the health insurance premium as a reasonable living expense, just as it did with the wife's health insurance expense. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788 (2019).

Bankruptcy. - Even if a trial court erred by failing to find that a wife was a dependent spouse, the wife was still not entitled to an award of alimony, G.S. 50-16.3A(a), because the husband was in bankruptcy and unable to make alimony payments; thus, the wife lacked the "ability to collect" any sums that were awarded in alimony. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

Trial court did not abuse its discretion by making reductions to husband's monthly expenses because it found that he could reasonably lower his monthly living expenses by almost $1,500 by reducing his $134 telephone bill to $100, canceling his $55 cable television subscription, reducing his $650 food expense to $400.00, reducing his $100 clothing expense to $50, stopping his $60 allowance to the children since he would be paying child support, reducing his $207 gift and special occasion expense to $104, reducing his vacation and recreation expense from $450 to $100, and reducing his $60 grooming and hygiene expense to $20; additionally, the trial court found that the husband's $150 furniture payment would soon end and his $400 credit card payments were a duplication of other expenses. Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).

Failure to Consider Earning Capacity Not Erroneous. - Trial court properly declined to consider the husband's earning capacity when ruling on the wife's request for alimony because there was no evidence that the husband, a doctor, was intentionally depressing the husband's income or in any way acting in bad faith; the trial court found that the husband's reduction in income was attributable to the fact that the husband's patients were not happy with the husband's services and were choosing other doctors. Megremis v. Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006).

Depletion of Husband's Estate Proper. - Trial court did not err in modifying the husband's alimony obligation back to the date of his motion to modify alimony based upon depletion of his estate because it correctly considered the comparison of the estates of the parties, nor did it abuse its discretion by basing the alimony award on a combination of the husband's estate and his current income recognizing that his estate would be depleted to maintain the alimony obligation during his time of unemployment, even in the absence of bad faith or imputation of income for purposes of alimony. Hill v. Hill, 261 N.C. App. 600, 821 S.E.2d 210 (2018).

Reduction of Voluntary Retirement Contributions. - Trial court did not abuse its discretion by determining that the ex-husband would have to reduce his voluntary retirement contributions to provide alimony sufficient to meet the ex-wife's basic needs as the wife had substantial medical issues and could not work, while the husband was in good health and earned a substantial income. Klaver v. Klaver, - N.C. App. - , - S.E.2d - (Feb. 17, 2021).

Tax Ramifications Not Considered. - Alimony award had to be vacated because, inter alia, tax ramifications were not considered. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Change of Circumstances Not Shown. - Alimony was properly not modified because upon review of the relevant factors, a substantial change in circumstances was not shown with respect to the husband's income, or as to both parties' expenses or other relevant factors. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013).

Delay In Entering Order. - Defendant did not cite any substantive case law in support of his argument that the trial court violated his constitutional rights in delaying entering its order for alimony, plus he did not show how the delayed order prejudiced him, which in fact prejudiced plaintiff. Juhnn v. Juhnn, 242 N.C. App. 58, 775 S.E.2d 310 (2015).

Applied in Vadala v. Vadala, 145 N.C. App. 478, 550 S.E.2d 536 (2001); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Quesinberry v. Quesinberry, 210 N.C. App. 578, 709 S.E.2d 367 (2011); Miller v. Miller, 243 N.C. App. 526, 778 S.E.2d 451 (2015).

Cited in Williamson v. Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001); Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002), cert. denied, 356 N.C. 675, 577 S.E.2d 630 (2003); McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006); Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008); Helms v. Helms, 191 N.C. App. 19, 661 S.E.2d 906 (2008), review denied, 362 N.C. 681, 670 S.E.2d 233 (2008); Simon v. Simon, 231 N.C. App. 76, 753 S.E.2d 475 (2013); Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).


§ 50-16.4. Counsel fees in actions for alimony, postseparation support.

At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony.

History

(1967, c. 1152, s. 2; 1995, c. 319, s. 3; 2010-14, s. 1.)

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " Counsel fees in actions for alimony.

"At any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony."

Effect of Amendments. - Session Laws 2010-14 s. 1, effective October 1, 2010, and applicable to fees for services rendered on or after that date, deleted "for the benefit of such spouse" following "counsel fees."

Legal Periodicals. - For comment on contingent fees in domestic relations actions, see 62 N.C.L. Rev. 381 (1984).

For note, "The Contingent Fee Contract in Domestic Relations Cases," see 7 Campbell L. Rev. 427 (1985).

For note, "A Public Goods Approach to Calculating Reasonable Fees under Attorney Fee Shifting Statutes," see 1989 Duke L.J. 438.

For article, "Reginald Heber Smith and Justice and the Poor in the 21st Century,” see 40 Campbell L. Rev. 73 (2018).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-15 and G.S. 50-16 which dealt with alimony pendente lite in divorce actions and subsistence and counsel fees pending actions for alimony without divorce, respectively.

Former G.S. 50-16.1 through 50-16.10 in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Right Derived from Common Law. - The right of a wife (dependent spouse) to subsistence pending trial and to attorneys' fees was derived from the common law. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Apart from statute, there is no duty upon husband (supporting spouse), before or after separation, to furnish wife (dependent spouse) with legal counsel, whether he or another be the adverse party to her controversy. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

Notice and Due Process Considerations. - Although this section and G.S. 50-13.6 provide for attorney's fees in both modification of child support actions and alimony actions, this authority does not override a party's basic constitutional rights to notice and due process considerations. Spencer v. Spencer, 133 N.C. App. 38, 514 S.E.2d 283 (1999).

Purpose. - The purpose of the allowance for attorneys' fees is to put the wife (dependent spouse) on substantially even terms with the husband (supporting spouse) in the litigation. Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961); Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961); Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963); Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

The remedy of subsistence and counsel fees pendente lite is intended to enable the wife to maintain herself according to her station in life and to employ counsel to meet her husband at trial upon substantially equal terms. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

The purpose of the allowance of counsel fees pendente lite is to enable the wife (dependent spouse), as litigant, to meet the husband (supporting spouse), as litigant, on substantially even terms by making it possible for her to employ adequate counsel. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

No Fees Awarded For Pro Bono Counsel. - Where the wife received pro bono counsel during the alimony proceedings, she was not entitled to an award of counsel fees under G.S. 50-16.4, as counsel fees referred only to fees paid by the wife to counsel for services rendered, and no such payment was made; the purpose of the statute was to even the playing field for a dependent spouse seeking alimony, and since pro bono services were rendered there were no costs to shift. Patronelli v. Patronelli, 175 N.C. App. 320, 623 S.E.2d 322 (2006).

Appellate court did not err in affirming the trial court's ruling that denied the wife's request for an award of attorney fees in a divorce case where the wife was represented on a pro bono basis by her counsel through the Volunteer Lawyers Program; an award of attorney fees, under the plain language of the relevant statute, would have to benefit and such an award under the circumstances could not do so because she was not obligated to pay counsel fees. Patronelli v. Patronelli, 360 N.C. 628, 636 S.E.2d 559 (2006).

Contingent Fee Agreements Are Not Enforceable. - A contract for the payment of a fee to an attorney contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony and/or property awarded is void as against public policy. Such a contract is unenforceable exclusively by virtue of the fact that it violates the public policy of this State. Thompson v. Thompson, 70 N.C. App. 147, 319 S.E.2d 315 (1984), rev'd on other grounds, 313 N.C. 313, 328 S.E.2d 288 (1985).

Contingent-fee contract in which fee was contingent with respect to both divorce and equitable distribution actions was void as against public policy, even though the uncontested divorce involved relatively minimal time compared with the time the attorney spent on the equitable distribution claim; and the attorney could not recover either under the contract itself or in quantum meruit for services rendered pursuant to the contract. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Contingent-Fee Contract in Equitable Distribution Must Be Separated from Fee Agreement for Divorce. - If an attorney represents a client in both a divorce proceeding and an equitable distribution proceeding, and the client wishes to have a contingent-fee contract in the equitable distribution proceeding, the parties must execute a separate agreement to provide for a fee in the divorce action that is not contingent upon the securing of the divorce. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Award of "Expenses" Is Not Authorized. - This section provides only for the award of "reasonable counsel fees," making no mention of "expenses." Williams v. Williams, 42 N.C. App. 163, 256 S.E.2d 401 (1979), aff'd, 299 N.C. 174, 261 S.E.2d 849 (1980).

Counsel fees are not allowable in all alimony cases, only those that come within the ambit of this section and G.S. 50-16.3. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

Section Is Not Restricted to Proceedings for Alimony Pendente Lite. - While the language of this section could be improved upon, its effect is not to restrict the award of counsel fees to alimony pendente lite proceedings and actions of the court pursuant thereto. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

Spouse awarded alimony pendante lite does not lose her right to attorney's fees for services rendered in a pendente lite proceeding in the event the recipient's permanent alimony claim is denied. Wyatt v. Hollifield, 114 N.C. App. 352, 442 S.E.2d 149 (1994).

Award of counsel fees is appropriate whenever it is shown that the spouse is, in fact, dependent, is entitled to the relief demanded, and is without sufficient means whereon to subsist during the prosecution and to defray the necessary expenses thereof. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

A trial court is authorized to award attorneys' fees to a party who has shown that she is entitled to the relief demanded, is a dependent spouse, and lacks sufficient means upon which to live during the prosecution of the suit and to defray her necessary legal expenses. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

To recover attorneys' fees pursuant to this section in an action for alimony, the spouse must be entitled to the relief demanded, must be a dependent spouse, and must have insufficient means to subsist during the prosecution of the suit and to defray the expenses thereof. Caldwell v. Caldwell, 82 N.C. App. 225, 356 S.E.2d 821, cert. denied, 320 N.C. 791, 361 S.E.2d 72 (1987).

The requirements which a spouse must meet before a request for attorneys' fees pendente lite can be granted are as follows: (1) the party requesting the award must be a "dependent spouse" as defined in former G.S. 50-16.1(3); (2) the party must be entitled to alimony pendente lite; and (3) the court must find that the dependent spouse is without sufficient means to subsist during the prosecution or defense of the suit and to defray the attendant expenses thereof. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).

"At anytime" includes times subsequent to determination of the issues in favor of the dependent spouse at the trial of her cause on its merits. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

Anytime a dependent spouse can show grounds for alimony pendente lite under G.S. 50-16.3, the court can award attorneys' fees; "anytime" includes time subsequent to the determination of the issues in the dependent spouse's favor at the trial of his or her cause on the merits. Evans v. Evans, 111 N.C. App. 792, 434 S.E.2d 856, cert. denied, 335 N.C. 554, 439 S.E.2d 144 (1993).

Fees Allowable for Precursory Activity. - All litigation inevitably involves certain precursory activity. The term "litigant" is not intended to exclude legitimate work by counsel in such precursory activity from those services for which fees are allowable. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

Entitlement to Representation Is Not Limited to Trial Level. - There is nothing in our statutory or case law to suggest that a dependent spouse in this State is entitled to meet the supporting spouse on equal footing, in terms of adequate and suitable legal representation, at the trial level only. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981).

And an award of attorneys' 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. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787 (1981); Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985).

Recovery of Fees After Denial of Alimony Pendente Lite. - There was no merit to defendant's contention that, because plaintiff's claim for alimony pendente lite was denied, plaintiff was precluded from recovering attorneys' fees in the subsequent action for permanent alimony. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981).

Recovery of Attorneys' Fees When Modification of Alimony Is Sought After Absolute Divorce. - This section is applicable any time a dependent spouse can show that she has grounds for alimony pendente lite, even though the proceeding was not brought for that purpose. That any time includes times subsequent to the determination of the issues in her favor at the trial of her cause on the merits. Thus, if she meets the three requirements of G.S. 50-16.3(a) for alimony pendente lite, she can recover her attorneys' fees even though she sought alimony modification subsequent to absolute divorce. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Prerequisites to Award of Attorneys' Fees. - The clear and unambiguous language of this section and G.S. 50-16.3 provides as prerequisites for determination of an award of counsel fees that (1) The spouse must be entitled to the relief demanded; (2) The spouse must be a dependent spouse; and (3) The dependent spouse must not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291 (1975); Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980); Knott v. Knott, 52 N.C. App. 543, 279 S.E.2d 72 (1981); Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781 (1984); Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985); Patton v. Patton, 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).

Any time a dependent spouse can show that she has the grounds for alimony pendente lite, i.e., that (1) she is entitled to the relief demanded in her action or cross-action for divorce from bed and board or alimony without divorce, and (2) she does not have sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof, the court is authorized to award fees to her counsel. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

As a prerequisite to an award of attorneys' fees, the party seeking the award must be a dependent spouse, must be entitled to the relief sought, and must have insufficient means to defray the necessary expense in prosecuting her claim. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Dependent Spouse Must Have Insufficient Means. - Before attorneys' fees may be awarded in an alimony case to the dependent spouse under this section and G.S. 50-16.3, that person must have insufficient means to defray the expense of the suit; that is, he or she must be unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

Lacking sufficient means to defray the expenses of the suit means that the dependent spouse is not able as litigant to meet the supporting spouse as litigant on substantially even terms because the dependent spouse is financially unable to employ adequate counsel. Patton v. Patton, 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).

And a Showing of Need Must Be Made. - In order for dependent spouse to be awarded counsel fees, she must show that she needs such counsel fees to enable her, as a litigant, to meet her husband on substantially even terms by making it possible for her to employ adequate counsel. Quick v. Quick, 53 N.C. App. 248, 280 S.E.2d 482 (1981), rev'd on other grounds, 305 N.C. 446, 290 S.E.2d 653 (1982).

Adultery Does Not Bar Allowance of Counsel Fees. - A plea of adultery, found by the court to be true, does not preclude the court from allowing the wife (dependent spouse) reasonable counsel fees for the prosecution or defense of an action for divorce. Bolin v. Bolin, 242 N.C. 642, 89 S.E.2d 303 (1955). See G.S. 50-16.6

Multiple awards of counsel fees in the same domestic action are, in the proper circumstances, within the court's discretion to allow. Patton v. Patton, 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).

Award Upheld. - Uncontradicted evidence that in 1983 the defendant's net monthly income was $228 and that for the first six months of 1984 the defendant earned only $3,490 was sufficient evidence to support the court's finding that the defendant had insufficient means to sustain the financial burden of alimony. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985), upholding award of $400.00

Award Within Discretion of Trial Court. - Award of appellate attorney's fees in matters of child custody and support, as well as alimony, is within discretion of trial court; this holding applies to any appeal of child custody or support order, whether order is interlocutory or final. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356 (2013), review denied, 753 S.E.2d 678, 2014 N.C. LEXIS 46 (2014), review dismissed, as moot, 753 S.E.2d 679, 2014 N.C. LEXIS 50 (2014).

Award Held Improper. - Where the finding that plaintiff-wife was a dependent spouse amounted to a mere conclusion unsupported by a finding of fact, and where there were no findings upon which to conclude that she was entitled to the relief demanded under G.S. 50-16.3(a)(1), the trial court erred in ordering alimony pendente lite and counsel fees. Kornegay v. Kornegay, 15 N.C. App. 751, 190 S.E.2d 646 (1972).

Trial court erred in awarding attorneys' fees to wife, where the evidence showed that she had assets of over $490,000, debts of $37,876, and a total gross monthly income of $1477 (plus $1684 in alimony), with monthly expenses of $2500, and that husband had assets of $901,338.29, debts of $338,095.46, a gross monthly income of $8696.32, and monthly living expenses of $2861.11. Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

Award Properly Denied. - Court properly denied wife's motion for an interim award of alimony pendente lite and counsel fees in her suit for alimony without divorce, where there were findings that (1) the plaintiff and her husband had separated by mutual agreement, (2) the husband did not abandon the wife, and (3) the husband was guilty of no misconduct that would support an award of alimony. Harper v. Harper, 9 N.C. App. 341, 176 S.E.2d 48 (1970).

Defendant was found not to be dependent, was not entitled to alimony, and also had sufficient means to bear the cost of litigation using the life insurance proceeds; therefore, the trial court's denial of defendant's request for attorney's fees was proper. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

Wife who was not entitled to alimony was not entitled to alimony attorneys' fees for the prosecution of her claim for alimony pendente lite. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

Denial of Fees to Defend Against Husband's Divorce Action Not Error. - The court did not err in not granting the wife's attorneys' fees to defend against her husband's action for divorce from bed and board, as the judge may award such fees when statute allows, and there is no statute giving the judge authority to award fees in this circumstance. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287 (1985).

A child of divorced parents was not entitled to an allowance of counsel fees and suit money pendente lite in her action against her father to force him to provide for her support, as former G.S. 50-15 and G.S. 50-16 applied only to actions instituted by the wife, and such right did not exist at common law. Green v. Green, 210 N.C. 147, 185 S.E. 651 (1936).

Effect of Abandonment of Suit. - The fact that after the institution of an action for alimony without divorce the client abandons the suit instituted in this State and institutes a suit for divorce in another state, and that counsel employed here are permitted to withdraw, since no further services could be performed by them, does not affect such counsels' right to an order allowing them counsel fees out of the property of defendant for the services performed in this State in good faith. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949).

In an action for alimony and counsel fees pendente lite and for alimony without divorce, plaintiff, on the day set for hearing of the motion for alimony and counsel fees pendente lite, filed "certificate and affidavit" stating that there had been a reconciliation between plaintiff and defendant and that plaintiff "withdraws and renounces the complaint" and "takes a voluntary nonsuit . . . and prays the court to dismiss" the action as of nonsuit. Plaintiff's attorneys filed petition for counsel fees against defendant, and defendant's attorney filed plaintiff's "certificate and affidavit" as an affidavit in support of defendant's resistance to judgment allowing counsel fees against him. After the petition was filed and after the court had announced its intention of allowing same, judgment as of nonsuit was tendered and signed by the court. It was held that at the time the petition for counsel fees was filed, the complaint was still a part of the record and the action was still pending, and the petition amounted to a motion to have the court act upon the prayer as made by plaintiff in her complaint, and the action of the court in allowing counsel fees to plaintiff's attorneys against defendant was affirmed. McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833 (1941).

Effect of Motion for Involuntary Dismissal at Mid-Trial. - The trial court is not required to make a ruling on the merits of a party's request for attorneys' fees when presented with a motion for an involuntary dismissal at mid-trial. Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985).

Award of permanent alimony ordinarily terminates an order for subsistence pendente lite or counsel fees. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

Court May Enter Second Order Allowing Additional Counsel Fees. - The fact that an order allowing counsel fees has been entered in an action for alimony without divorce does not preclude the court from thereafter entering a second order allowing additional counsel fees for subsequent services. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949).

Under proper circumstances the court, in its sound discretion, may in an action for alimony without divorce enter a second order allowing additional counsel fees. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955).

Amount of Additional Counsel Fees Held Not Unreasonable. - On an appeal from an order allowing additional counsel fees in an action for alimony without divorce, the amount was held not so unreasonable as to constitute an abuse of discretion. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949).

For case upholding garnishment of income from alleged "Spendthrift trust" administered in this State, see Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539 (1969).

Applied in Williams v. Williams, 12 N.C. App. 170, 182 S.E.2d 667 (1971); Collins v. Collins, 18 N.C. App. 45, 196 S.E.2d 282 (1973); Little v. Little, 18 N.C. App. 311, 196 S.E.2d 562 (1973); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975); Taylor v. Taylor, 26 N.C. App. 592, 216 S.E.2d 737 (1975); Hill v. Hill, 27 N.C. App. 423, 219 S.E.2d 273 (1975); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197 (1976); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640 (1979); Winborne v. Winborne, 298 N.C. 305, 259 S.E.2d 918 (1979); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979); Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980); Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006); Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011).

Cited in Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513 (1970); Fonvielle v. Fonvielle, 8 N.C. App. 337, 174 S.E.2d 67 (1970); Simmons v. Simmons, 22 N.C. App. 68, 205 S.E.2d 582 (1974); Sauls v. Sauls, 288 N.C. 387, 218 S.E.2d 338 (1975); Blair v. Blair, 44 N.C. App. 605, 261 S.E.2d 301 (1980); Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985); Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011); Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011); Hausle v. Hausle, 226 N.C. App. 241, 739 S.E.2d 203 (2013); Savage v. Zelent, 243 N.C. App. 535, 777 S.E.2d 801 (2015).

II. AMOUNT OF FEES.

Amount Discretionary. - Under the statute, the trial court's decision to award attorneys' fees is clearly discretionary rather than mandatory; here, the trial court made specific findings of fact that the wife was not entitled to attorneys' fees because she failed to act in good faith during the litigation, and as such, the trial court acted within its discretion when it denied her claim for attorneys' fees. Ellis v. Ellis, 238 N.C. App. 239, 767 S.E.2d 413 (2014).

Amount of Attorneys' Fees Is Within Discretion of Trial Court. - While the right to alimony involves a question of law, the amount of alimony and counsel fees is a matter of judicial discretion. Schonwald v. Schonwald, 62 N.C. 215 (1867); Barker v. Barker, 136 N.C. 316, 48 S.E. 733 (1904).

Decision Not Reviewable Absent Abuse or Error of Law. - Subsistence and counsel fees pendente lite are within the discretion of the court, and its decision is not reviewable except for abuse of discretion or for error of law. Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589 (1965); Harper v. Harper, 9 N.C. App. 341, 176 S.E.2d 48 (1970); Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

If attorneys' fees may be properly awarded, the amount of the award rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980); Stickel v. Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982).

But Facts Required by Statute Must Be Alleged and Proved. - There is some language in Supreme Court decisions which leaves the impression that the allowance of counsel fees and subsistence pendente lite lies solely within the discretion of the trial judge, and that such allowance is reviewable only upon a showing of an abuse of the judge's discretion. The correct rule is that the facts required by the statutes must be alleged and proved to support an order for subsistence pendente lite. Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291 (1975).

Reasonableness Is Key Factor. - Reasonableness, not arbitrary classification of attorney activity, is the key factor under all the attorneys' fees statutes. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).

Although the dependent spouse was not entitled to receive attorney's fees for the portions of the case relating to equitable distribution and divorce, the supporting spouse was required to pay $35,000 of her $64,830 in attorneys fees, which were reasonable fees for 244.8 hours of service based on $300 per hour. Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).

Amount Awarded Must Be Reasonable. - This section requires that the amount of counsel fees shall be reasonable, and the reasonable amount is to be determined by the trial judge in the exercise of his discretion. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970).

Determination of what are reasonable counsel fees is within the discretion of the trial judge. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

Court's Discretion Is Limited by Factual Conditions. - The amount of subsistence and counsel fees pendente lite is within the discretion of the court, but this discretion is limited by the factual conditions. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Elements to Be Considered. - In determining a pendente lite allowance of attorneys' fees, the nature and worth of the services, the magnitude of the task imposed, reasonable consideration for the defendant's condition and financial circumstances, and many other considerations are involved. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967).

When allowable, the amount of attorneys' fees in an action for alimony without divorce is within the sound discretion of the court below and is unappealable except for abuse of that discretion. The statute itself, however, contains some guides to the exercise of that discretion, and practice has developed others. Within the rule of reasonableness the court must consider, along with other things, the condition and circumstances of the defendant. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949).

In making its determination of the proper amount of counsel fees which are to be awarded a dependent spouse as litigant or appellant, the trial court is under an obligation to conduct a broad inquiry, considering as relevant factors the nature and worth of the services rendered, the magnitude of the task imposed upon counsel, and reasonable consideration for the parties' respective conditions and financial circumstances. Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985).

Once attorneys' fees are authorized, a trial court must consider several factors in determining the amount of the award, including but not limited to each party's estate and ability to defray legal costs, the nature and scope of the legal services rendered the dependent spouse, and the skill, time, and labor expended during such representation. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

Award of attorneys' fees must not be in excess of defendant's net income. Davidson v. Davidson, 189 N.C. 625, 127 S.E. 682 (1925). See Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555 (1940).

Award Vacated. - Because the trial court's order denying alimony was vacated, and the case was remanded for additional findings as to whether a wife was entitled to alimony, that portion of the order denying the wife's claim for attorneys' fees was also vacated. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Merit Bonus. - While the quality of services rendered is properly considered in awarding fees, as well as the nature of the services required, and hence the scope and complexity of the case, there is no North Carolina authority for an award of a "merit bonus." Even assuming such bonuses are allowed, as under federal practice, that should occur only in the rare case where the applicant specifically shows superior quality representation and exceptional success. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).

III. FINDINGS.

.

The trial court must set out findings of fact upon which the award of attorneys' fees is made. Self v. Self, 37 N.C. App. 199, 245 S.E.2d 541, cert. denied, 295 N.C. 648, 248 S.E.2d 253 (1978); Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Upon Which Determination of Reasonableness Could Be Based. - This section and G.S. 50-13.6 permit the entering of a proper order for reasonable counsel fees for the benefit of a dependent spouse, but only where the record contains findings of fact, such as the nature and scope of the legal services rendered and the skill and time required, upon which a determination of the requisite reasonableness could be based. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

A proper order awarding counsel fees in a child support or alimony action must contain a finding or findings upon which a determination of the reasonableness of the award can be based, such as the nature and scope of the legal services rendered and the time and skill required. Patton v. Patton, 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).

An order awarding counsel fees in a child support or alimony action must contain a finding or findings upon which a determination of the reasonableness of the award can be based, such as the nature and scope of the legal services rendered, the time and skill required, and the attorney's hourly rate in comparison to the customary charges of attorneys practicing in that general area. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 321 N.C. 330, 368 S.E.2d 875 (1988).

Findings Must Meet Test of former G.S. 50-16.3. - No order for reasonable counsel fees for the benefit of a dependent spouse may be entered on findings which fail to meet the test of former G.S. 50-16.3. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Whenever an order is deficient in findings to establish that a dependent spouse is entitled to alimony pendente lite pursuant to G.S. 50-16.3, an award of counsel fees under this section is also unsupported. Presson v. Presson, 13 N.C. App. 81, 185 S.E.2d 17 (1971).

Since because of the clear statutory mandate, a spouse who is not entitled to alimony pendente lite is not entitled to an award of counsel fees. Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

Findings Must Show Inability to Defray Expenses of Suit. - In order to recover counsel fees, this section requires a finding that plaintiff is unable to defray the expense of prosecuting the suit. Davis v. Davis, 62 N.C. App. 573, 302 S.E.2d 886 (1983).

And Must Show That Fees Are Allowable and Award Is Reasonable. - In order to award attorneys' fees in alimony cases, the trial court must make findings of fact showing that fees are allowable and that the amount awarded is reasonable. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

In Combined Actions Findings Should Not Reflect Fees Attributable to Equitable Distribution. - In a combined action for alimony, child support, and equitable distribution, findings should reflect that the fees awarded are attributable to work only on the alimony and/or child support actions. Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891 (1987).

Absence of Sufficient Findings Is Reversible Error. - The trial court errs in ordering defendant to pay fees to plaintiff's attorneys where the court does not make sufficient findings as to plaintiff being a dependent spouse and defendant being the supporting spouse. Smith v. Smith, 15 N.C. App. 180, 189 S.E.2d 525 (1972), aff'd, 17 N.C. App. 416, 194 S.E.2d 568 (1973).

The lack of any evidence as to reasonable attorneys' fees and the absence of any findings by the trial judge based upon such evidence as to the reasonable worth of attorneys' fees are grounds for reversal of a judgment awarding attorneys' fees. Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971).

An award of attorneys' fees cannot be upheld where the court failed to make findings of fact upon which a determination of the reasonableness of the fees could be based, such as the nature and scope of the legal services rendered and the skill and time required. Brown v. Brown, 47 N.C. App. 323, 267 S.E.2d 345 (1980).

Awards Held Erroneous for Lack of Findings. - The court erred in awarding plaintiff counsel fees pendente lite where no findings were made that plaintiff was entitled to the relief demanded, was a dependent spouse and had insufficient means whereon to subsist during prosecution of the suit and to defray the necessary expenses thereof. Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291 (1975).

The court erred in awarding counsel fees to the wife in a child support action where the court made no findings as to the wife's ability to pay or the reasonableness of the fees. Horner v. Horner, 47 N.C. App. 334, 267 S.E.2d 65, cert. denied, 301 N.C. 89, 273 S.E.2d 297 (1980).

Factual findings on award of attorneys' fees were deficient as to child support where there was no finding that the supporting spouse refused to provide adequate support under circumstances existing at the time the action was initiated, and as to both alimony and child support, where there were no factual findings upon which a determination of the reasonableness of the award could be based, other than the trial court's statement that the time expended was "reasonably necessary." Patton v. Patton, 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).

Because the trial court made no findings with regard to the wife's ability to subsist during prosecution of the suit or her ability to defray the necessary expenses of suit, its award of attorney fees in favor of the wife was improper. 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).

Remand for Findings. - Order awarding attorneys' fees which failed to satisfy requirement of findings as to the lawyer's skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent was insufficient and case would be remanded for appropriate findings as to attorneys' fees. Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985).

The portion of an award denying attorney fees to the plaintiff wife was reversed and the matter was remanded where the trial court concluded that she was a dependent spouse, but did not make any findings regarding whether she was without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses. Friend-Novorska v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (2001), aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001).

Recital that appellee's attorney rendered valuable services not sufficient to support court's conclusion that appellee is entitled to recover $2,500.00 in attorneys' fees. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408 (1988).

Court's Findings Supported Denial of Attorney's Fees. - Trial court's findings that (1) a wife's income had increased from the date of separation until the date of the action, (2) the wife continued to live at the marital residence while the husband voluntarily paid at least half of the monthly mortgage payments, (3) the husband paid the wife monthly post-separation support, and (4) the husband had previously paid $2,000 towards the wife's attorney's fees supported its conclusion of law that the wife was able to subsist and defray the necessary expenses related to prosecuting the action and the denial of the wife's motion for attorney's fees. Friend-Novorska v. Novorska, 163 N.C. App. 776, 594 S.E.2d 409 (2004).

Findings Supported. - Order requiring a husband to pay a wife's attorney's fees was not an abuse of discretion because (1) the court properly relied on pleadings and the court record, including uncontested custody and support orders and a motion to continue, (2) disparity of financial resources was not a required consideration, and (3) detailed findings supported the conclusion that the wife was a dependent spouse with insufficient means to defray litigation costs. Beasley v. Beasley, 259 N.C. App. 735, 816 S.E.2d 866 (2018).

IV. REVIEW ON APPEAL.

.

Appeal as a Matter of Right. - An order requiring payment of alimony pendente lite and counsel fees affects a substantial right from which an appeal lies as a matter of right. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

Scope of Review. - Proper exercise of the trial judge's authority in granting alimony, alimony pendente lite, or counsel fees is a question of law, reviewable on appeal. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

The facts required by this section and G.S. 50-16.3 must be alleged and proved to support an order for attorneys' fees. Whether these requirements have been met is a question of law that is reviewable on appeal. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

When an award of counsel fees is made, whether the statutory requirements have been met is a question of law, reviewable on appeal. Patton v. Patton, 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).

When the statutory requirements have been met, the amount of an award of attorneys' fees is reviewable only for an abuse of discretion. Patton v. Patton, 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).

Fees Upheld. - Since the trial court found that the ex-wife was without sufficient means whereon to subsist during the prosecution of the action and to defray the necessary expenses of the action, the unchallenged findings were sufficient to support the ex-wife's entitlement to attorney fees. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

Fees Reversed. - Although the wife would be required to deplete her estate to some extent in order to pay attorney's fees, and her estate was significantly smaller than the husband's, it was not unreasonable to expect her to pay $40,000 out of her $1.5 million estate to employ adequate counsel, and the trial court erred in awarding $40,000 in fees. Parsons v. Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013).

Order awarding attorney fees to a wife who was awarded alimony was reversed because the order was predicated upon a determination that the wife was a dependent spouse entitled to alimony, but the alimony award was reversed. Collins v. Collins, 243 N.C. App. 696, 778 S.E.2d 854 (2015).

Denial of Attorneys' Fees Held Interlocutory. - Denial of attorneys' fees under this section was not a final order of the trial court, where at the time appellant's motion was filed there had been no determination that his client, defendant, was entitled to alimony pendente lite under G.S. 50-16.3, so that appellant was not yet entitled to attorneys' fees under this section, and as appellant could appeal the denial of his motion after final judgment, or could bring a separate lawsuit to collect fees, no substantial right of appellant was affected by the Court of Appeals' failure to entertain an interlocutory appeal on this issue. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181 (1988).


§ 50-16.5: Repealed by Session Laws 1995, c. 319, s. 1.

Cross References. - As to alimony generally, see G.S. 50-16.3A.

Editor's Note. - Session Laws 1995, c. 319, which repealed this section, in section 12 provides that the act applies to civil motions filed on or after that date, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the repeal by Session Laws 1995, c. 319, read as follows: " Determination of amount of alimony.

"(a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.

(b) Except as provided in G.S. 50-16.6 in case of adultery, the fact that the dependent spouse has committed an act or acts which would be grounds for alimony if such spouse were the supporting spouse shall be grounds for disallowance of alimony or reduction in the amount of alimony when pleaded in defense by the supporting spouse."

Legal Periodicals. - For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For note, "Alimony Modification and Cohabitation in North Carolina," see 63 N.C.L. Rev. 794 (1985).

For 1984 survey, "Equitable Distribution Without Consideration of Marital Fault," see 63 N.C.L. Rev. 1204 (1985).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," see 63 N.C.L. Rev. 1317 (1985).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-15, which dealt with alimony pendente lite in divorce actions, and former G.S. 50-16, which dealt with actions for alimony without divorce.

G.S. 50-16.1 through 50-16.10 to Be Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Construction With Other Provisions. - Whether a spouse is substantially in need of maintenance and support as defined by former G.S. 50-16.1(3) is determined by construing this statute in pari material with the terms of former G.S. 50-16.5 which prescribed factors for the trial court to consider in determining the amount of alimony. Fink v. Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995).

Change of Circumstances Required by G.S. 50-16.9 Refers to This Section. - The change of circumstances required by G.S. 50-16.9 for modification of an alimony order refers to those circumstances listed in this section. Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981), rev'd on other grounds, 305 N.C. 177, 287 S.E.2d 840 (1982).

The purpose of the award is to provide for the reasonable support of the wife, not to punish the husband or to divide his estate. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Taylor v. Taylor, 26 N.C. App. 592, 216 S.E.2d 737 (1975).

The remedy established for the subsistence of the wife pending final determination of the issues involved and for her counsel fees is intended to enable her to maintain herself according to her station in life and to have sufficient funds to employ adequate counsel to meet her husband at the trial upon substantially equal terms. Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972); Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

For a discussion of legislative intent as to judicial determinations of dependency under G.S. 50-16.1(3) in light of this section, see Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).

The issues of who is a dependent spouse and who is a supporting spouse present mixed questions of law and fact which can best be determined by the trial judge when he sets the amount of permanent alimony. Clarke v. Clarke, 47 N.C. App. 249, 267 S.E.2d 361 (1980).

Determination of Dependency Under This Section and G.S. 50-16.1. - Even where a spouse is not "actually substantially dependent," the spouse may be a dependent spouse under the second part of G.S. 50-16.1(3) if he or she is substantially in need of maintenance and support, the meaning of which is determined by constructing G.S. 50-16.1 in pari materia with this section. Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

Guidelines for determining whether a spouse is "dependent" or "supporting" must be based upon factual findings sufficiently specific to indicate that the trial judge properly considered the statutory factors and the rules which evolved from case law. Otherwise, an appellate court cannot review the amount of alimony awarded to determine whether the trial judge abused his discretion. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

Right to Subsistence Dates from Wrongful Separation. - Plaintiff is entitled to subsistence in keeping with defendant-husband's means and ability and standard of living, not only from the time she instituted her action, but from the time her husband wrongfully separated himself from her. Stickel v. Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982).

Lump Sum Award Permissible. - Alimony awarded as periodic payments for a specified period of time is defined as a lump sum alimony award and is permissible. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

"Gross income," as used in a separation agreement under which husband agreed that after three years he would pay alimony in an amount equivalent to 30% of his gross income, included the gain realized from the sale of property. Heater v. Heater, 62 N.C. App. 587, 302 S.E.2d 891 (1983).

Reduction of Alimony. - The amount of alimony to be awarded lies in the sound discretion of the trial judge. In the absence of abuse of that discretion, the award will not be disturbed. The same should be true for reduced alimony. Self v. Self, 37 N.C. App. 199, 245 S.E.2d 541, cert. denied, 295 N.C. 648, 248 S.E.2d 253 (1978); Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985).

Where reduced alimony is appropriate the court need not set out the amount of the reduction in its judgment. Self v. Self, 37 N.C. App. 199, 245 S.E.2d 541, cert. denied, 295 N.C. 648, 248 S.E.2d 253 (1978).

An order directing husband to make specified payments for support of wife until birth of their child, which expired at the birth of the child without provision for any payments thereafter, although made within the discretion of the court, would be vacated and the cause would be remanded, since the court's discretion was not exercised with respect to the controlling factual conditions. Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46 (1967).

Termination of Spousal Support Obligation. - Findings of fact supported by competent evidence of record fully supported the trial judge's conclusion that plaintiff was no longer a "dependent spouse", which conclusion supported his order terminating defendant's spousal support obligations, as only a "dependent spouse" is entitled to alimony. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986).

Applied in Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969); Little v. Little, 18 N.C. App. 311, 196 S.E.2d 562 (1973); Yearwood v. Yearwood, 287 N.C. 254, 214 S.E.2d 95 (1975); Shoaf v. Shoaf, 25 N.C. App. 311, 212 S.E.2d 672 (1975); Robinson v. Robinson, 26 N.C. App. 178, 215 S.E.2d 179 (1975); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243 (1981); Harris v. Harris, 58 N.C. App. 314, 293 S.E.2d 602 (1982); Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984); Gilbert v. Gilbert, 71 N.C. App. 160, 321 S.E.2d 455 (1984).

Cited in Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33 (1970); Blair v. Blair, 44 N.C. App. 605, 261 S.E.2d 301 (1980); Spencer v. Spencer, 61 N.C. App. 535, 301 S.E.2d 411 (1983); Whedon v. Whedon, 68 N.C. App. 191, 314 S.E.2d 794 (1984); Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781 (1984); Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809 (1986); Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986); Harris v. Maready, 84 N.C. App. 607, 353 S.E.2d 656 (1987); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993); Cunningham v. Cunningham, 121 N.C. App. 771, 468 S.E.2d 466 (1996), rev'd on other grounds, 345 N.C. 430, 480 S.E.2d 403 (1997).

II. BASIS OF AWARD.

The question of the correct amount of alimony and child support is a question of fairness to all parties. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

The appropriate amount is essentially a question of fairness and justice to all parties. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

To determine whether the dependent spouse was entitled to alimony and, if so, in what amount, the trial judge was required to weigh evidence of adultery by the supporting spouse as well as evidence of indignities offered by both the supporting and the dependent spouse. Baker v. Baker, 102 N.C. App. 792, 404 S.E.2d 20 (1991).

Factors in This Section to Be Considered in Determining Dependency. - In determining whether one qualifies as a dependent spouse under G.S. 50-16.1(3) as well as in determining the amount of alimony to be awarded, the courts must consider the factors enumerated in this section for determining the amount of alimony. These factors include the estates, earnings, earning capacity, condition, and accustomed standard of living of the parties, and other facts of the particular case. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

The term "accustomed standard of living of the parties" in subsection (a) of this section completes the contemplated legislative meaning of "maintenance and support" in G.S. 50-16.1(3). The latter phrase clearly means more than a level of mere economic survival. Plainly it contemplates the economic standard established by the marital partnership for the family unit during the years in which the marital contract was intact. It anticipates that alimony, to the extent it can possibly do so, shall sustain that standard of living for the dependent spouse to which the parties together became accustomed. Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).

The term "estates" in subsection (a) refers to the financial worth of each spouse. Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988).

Findings of Fact. - In the case of both alimony and alimony pendente lite, the order concerning the amount must be supported by a conclusion of law that such amount is necessary under the circumstances. This conclusion of law, in turn, must be supported by specific findings of fact as to the estates, earnings, earning capacity, condition, and accustomed standard of living of the parties, as well as other relevant factors. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978).

The trial judge must at least make findings sufficiently specific to indicate proper consideration of each of the factors established by subsection (a) of this section for a determination of an alimony award. Spencer v. Spencer, 70 N.C. App. 159, 319 S.E.2d 636 (1984); Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

In determining the amount of alimony to be awarded, the trial judge must comply with G.S. 1A-1, Rule 52, i.e., he must find facts specially, state separately the conclusions of law resulting from the facts so found, and direct entry of appropriate judgment; all the evidentiary facts need not be recited, but G.S. 1A-1, Rule 52 requires specific findings of ultimate facts established by the evidence which determine the issues involved and are essential to support the conclusions of law. Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985).

To make a valid order for alimony, the trial court must make detailed findings concerning the following: (1) The estates of the parties; (2) the earnings of the parties; (3) the earning capacity of the parties; (4) the condition of the parties; and (5) the accustomed standard of living of the parties. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Former husband's motion to modify alimony was properly denied because the trial court's finding that his income had not substantially decreased was supported by evidence that his income went through normal variations and fluctuations and that his average annual income was more than his average income during the time period prior to the alimony order. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013).

The requirement for detailed findings is not a mere formality or an empty ritual; it must be done. Skamarak v. Skamarak, 81 N.C. App. 125, 343 S.E.2d 559 (1986).

Failure of the trial court to make any findings as to the parties' expenses, accustomed standard of living, or plaintiff's financial obligations in awarding alimony constituted reversible error. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

Conclusions of Law. - This section requires a conclusion of law that "circumstances render necessary" a designated amount of alimony, while case law requires conclusions of law that the supporting spouse is able to pay the designated amount and that the amount is fair and just to all parties. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Davis v. Davis, 62 N.C. App. 573, 302 S.E.2d 886 (1983).

In determining the needs of a dependent spouse, all of the circumstances of the parties should be taken into consideration, including the property, earnings, earning capacity, condition and accustomed standard of living of the parties. Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972). See also, Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

An order awarding alimony payments to a dependent spouse and support payments to a minor child must be founded upon proper consideration of the estates, earnings, earning capacity, conditions, accustomed standard of living of the parties or child, and other facts of the particular case. Williamson v. Williamson, 20 N.C. App. 669, 202 S.E.2d 489 (1974).

The trial court should take into consideration all the circumstances of the parties, including the property, earnings, earning capacity, financial needs and accustomed standard of living of the parties. Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

An award of alimony should be based on the estate, earnings, income, obligations and expenses of the parties at the time the award is made. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

Custodial Spouse's Caregiving Obligations. - While North Carolina's alimony statute does not contain express language which specifically allows consideration of the custodial spouse's caregiving obligations to the minor children, this consideration is nonetheless consistent with the " 'overriding principle' " of " 'fairness' " which guides the determination of alimony, as well as the statutory provision contemplating regard of "other facts of the particular case." Fink v. Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995).

The trial court may consider the custodial parent's attendant care giving and monetary obligations to a minor child in considering a request for alimony modification. Kowalick v. Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998).

Needs and Capacity Must Be Considered. - While the court must consider the needs of the spouse seeking alimony in the context of the family unit's accustomed standard of living, it also must determine that the supporting spouse has the financial capacity to provide the support needed therefor. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

Parties' Assertions Need Not Be Taken at Face Value. - Determination of what constitutes 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 offered by the litigants themselves. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

Ordinarily husband's (supporting spouse's) ability to pay is determined by his income at the time the award is made if the husband is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976).

If husband (supporting spouse) is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which he is earning when the award is made. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

The award should be based on the amount which defendant is earning when alimony is sought and the award made, if the husband (supporting spouse) is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960); Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Unless the court finds that a supporting spouse is deliberately depressing his income in disregard of his marital obligation to provide reasonable support, and applies the "capacity to earn"rule, a supporting spouse's ability to pay alimony is ordinarily determined by his income at the time the award is made. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

But the granting of an allowance and the amount thereof does not necessarily depend upon earnings of the husband (supporting spouse). Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961); Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961).

And one who has no income, but is able-bodied and capable of earning, may be ordered to pay subsistence. Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961); Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961); Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968).

The granting of a support allowance and the amount thereof does not necessarily depend upon the earnings of the husband (supporting spouse), and one who is able-bodied and capable of earning may be ordered to pay subsistence. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

Capacity to earn may be the basis of an award if it is based upon a proper finding that the husband (supporting spouse) is deliberately depressing his income or indulging himself in excessive spending because of a disregard of his marital obligation to provide reasonable support for wife (dependent spouse) and children. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that husband (supporting spouse) is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for wife (dependent spouse) and children. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

While an award of alimony may be based upon the supporting spouse's ability to earn as distinguished from his actual income, the rule seems to be applied only when it appears from the record that there has been a deliberate attempt on the part of the supporting spouse to avoid financial 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 business; by intentionally depressing income to an artificial low; or by intentionally leaving employment to go into another business. Bowes v. Bowes, 287 N.C. 163, 214 S.E.2d 40 (1975).

Unless the supporting spouse is deliberately depressing his or her income or indulging in excessive spending because of a 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. If the supporting spouse is deliberately depressing income or engaged in excessive spending, then capacity to earn, instead of actual income, may be the basis of the award. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

The court must consider the estate and earnings of both husband and wife in arriving at the sum which is just and proper for the husband (supporting spouse) to pay the wife (dependent spouse), either as temporary or permanent alimony; it is a question of fairness and justice to both. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978).

The primary purpose for considering the parties' estates is to assist the court in determining the parties' earnings and earning capacities. Ordinarily, the parties will not be required to deplete their estates to pay alimony or to meet personal expenses. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Standard of Living Determinations. - Although the court did not make any detailed findings as to the couple's accustomed standard of living, where the findings which it made allowed the court to determine the couple's accustomed standard of living, a specific finding regarding the standard of living was not necessary. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408 (1988).

Judge's findings as to husband's monthly gross income and his reasonable living expenses, coupled with the findings as to wife's monthly income and her expenses during the last year of the marriage, satisfied the requirement of this section for findings regarding the couple's accustomed standard of living. Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988).

Dependent Spouse Need Not Be Impoverished Before an Award Can Be Made. - The law does not require that a dependent spouse should be impoverished Before the court can make an award of alimony pendente lite. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

The financial ability of the husband (supporting spouse) to pay is a major factor in the determination of the amount of subsistence to be awarded. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

Duty of Support Does Not Depend on Dependent Spouse's Means or Ability to Support Herself. - The duty of support resting on the husband (supporting spouse) does not depend on the adequacy or inadequacy of the wife's (dependent spouse's) means or on the ability or inability of the wife to support herself by her own labor or out of her own separate property. The fact that the wife has property or means of her own does not relieve the husband of his duty to furnish her reasonable support according to his ability. Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228 (1960); Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

The fact that the wife has property of her own does not relieve the husband of the duty to support her following his unjustified abandonment of her. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

Alimony pendente lite is measured, among other things, by the needs of the dependent spouse and the ability of the supporting spouse. The mere fact that the wife has property or means of her own does not prohibit an award of alimony pendente lite. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

But the earnings and means of the wife (dependent spouse) are matters to be considered by the judge in determining the amount of alimony. Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228 (1960); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

Court may take into account that a dependent spouse has property, although its value may not be precisely known, in considering the estates of both parties. Quick v. Quick, 53 N.C. App. 248, 280 S.E.2d 482 (1981), rev'd on other grounds, 305 N.C. 446, 290 S.E.2d 653 (1982).

As Is Her Earning Capacity. - It is proper for the trial judge to consider plaintiff's "earning capacity" in determining whether she could continue to maintain the standard of living enjoyed by her during her marriage. Spillers v. Spillers, 25 N.C. App. 261, 212 S.E.2d 676 (1975).

But a Finding on Dependent Spouse's Earning Capacity Is Not Always Required. - This section specifies the earning capacity of the parties as one of the factors the court should consider in determining the amount of alimony, but the court is not required in all cases to make findings of fact on the question of the dependent spouse's earning capacity. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978); Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Finding on Earning Capacities Not Required Where Evidence Is Insufficient. - Although the spouses' earning capacities is a factor for the court to consider under this section, there is no requirement that the court make a specific finding of fact where there is not sufficient evidence of the parties' earning capacities. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Where husband (supporting spouse) has substantial income as compared to the limited income of wife (dependent spouse), the court is required by subsection (a) of this section to award the wife such alimony as will allow her to live as the wife of a man of plaintiff's income is entitled to live. McLeod v. McLeod, 43 N.C. App. 66, 258 S.E.2d 75, cert. denied, 298 N.C. 807, 261 S.E.2d 920 (1979).

Finding on Income of Supporting Spouse. - Although a proper finding pertaining to the income of the supporting spouse must be based on present, as opposed to past, income, there is no rule that requires a specific finding as to the income of the supporting spouse on the precise date of the hearing. Patton v. Patton, 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).

Determination of Gross Income Was Proper. - There was no error where judge determined husband's monthly gross income from February 1986 through January 1987 by subtracting the expenses of husband's business from its deposits and dividing the sum by 12; the figures pertaining to deposits and expenses were furnished by husband's own testimony and by his own exhibits, and the judge also made a finding as to husband's indebtedness in areas unrelated to his business. Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988).

Finding on Contributions to Marriage. - Where although the court did not make a specific finding of fact concerning what each party had contributed to the financial status of the marital unit, it was clear from its findings of fact that the court considered this evidence, the lack of a specific finding on this matter did not constitute reversible error. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Dependent Spouse of Wealthy Man Is Entitled to Live as Such. - When the evidence shows a substantial estate in the supporting spouse, and the dependent spouse is entitled to alimony, subsection (a) of this section requires the court to enter an order for alimony which will enable the dependent spouse to live as the wife of a man with such an estate is entitled to live. Quick v. Quick, 53 N.C. App. 248, 280 S.E.2d 482 (1981), rev'd on other grounds, 305 N.C. 446, 290 S.E.2d 653 (1982).

The wife of a wealthy man who has abandoned her without justification should be awarded an amount somewhat commensurate with the normal standard of living of the wife of a man of like financial resources. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

Trial court's finding in an alimony action that all of the items in a budget submitted by defendant wife were not "needed or necessary" items did not show that the court applied an improper standard in determining the amount of alimony for the wife of a wealthy man, since it was clear that the court considered what expenses were necessary to maintain the standard of living of a woman who was married to a man of substantial means rather than what was necessary to maintain bare subsistence. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Income tax consequences are among factors properly considered in awarding alimony under subsection (a) of this section, and they should be given appropriate importance in determining the amount of alimony required to meet the reasonable needs of the dependent spouse. Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

While it is true that the express language of subsection (a) of this section does not include the income tax consequences of an award of alimony as a factor to be weighed in the balance in determining the proper amount of the award, such would be a proper consideration in making that determination. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Tax Consequences Cannot Be Disregarded. - Consideration of the tax consequences is not preeminent in determining an alimony award, since it is but one consideration among the many to be weighed by the trial court. However, to disregard the effect of taxation on such an award would be to flirt with an unrealistic, and potentially unjust, result. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848 (1987).

Supporting Spouse May Be Required to Provide for Furnishing of Residence. - The court has authority to require defendant husband (supporting spouse) to provide for the furnishing of the residence where plaintiff and two children reside, but the court should fix a definite dollar amount for defendant husband to expend for this purpose. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

And He May Be Ordered to Pay Debts of Parties. - The trial court has authority to order that defendant husband (supporting spouse) pay all debts of the parties as of the date of the order, such payment being associated with defendant's duty to support his wife (dependent spouse). Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969), overruled on other grounds, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

Contributions Only Increasing Wife's Estate for Next of Kin Not Contemplated. - The legislature did not contemplate that "reasonable subsistence," as used in former G.S. 50-16, should include contributions by a husband which tended only to increase an estate for his estranged wife to pass on to her next of kin. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

A spouse cannot be reduced to poverty in order to comply with an alimony decree. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

Change in Financial Need or Dependency. - On a motion to modify or terminate an order of alimony, it is appropriate for the trial court to consider whether the dependent spouse's financial need or dependency has changed, as it relates to the factors listed in this section. Cunningham v. Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997).

Conclusion Not Supported by Findings. - The trial court's conclusion that plaintiff-wife was the dependent spouse entitled to support was not supported by the findings of fact where the court found that defendant husband's income "is very significantly lower than same has been in the past" and that "plaintiff is unable to continue to maintain her accustomed station in life"; there was no finding or evidence that defendant deliberately depressed his income in an effort to avoid his obligations; and it was apparent that the trial court disregarded defendant's own inability to maintain the station in life to which he was formerly accustomed in its determination of dependency. Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980).

A conclusion of law that there has been a substantial change of circumstances based only on income is inadequate and in error. Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).

Findings Held Insufficient to Support Award. - Where the trial court made certain findings as to the estate, income and expenses of plaintiff, but failed to make sufficient findings as to the estate, earnings, income and expenses of defendant, the trial court did not find sufficient facts to support its award of alimony. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, aff'd, 288 N.C. 71, 215 S.E.2d 782 (1975).

The trial court's failure to make any findings regarding plaintiff's reasonable current financial needs and expenses and the ratio of those needs and expenses to her income constituted error. Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).

Modifying Court May Make Independent and Additional Findings. - Modification of an alimony award requires consideration of this section's standards, but this mandate does not limit a modifying court to only those findings of fact made by the court which entered the original alimony order or that the modifying court cannot make additional and independent findings of fact under this section as to the parties' health and financial needs existing at the time of the original alimony order based on evidence presented at the modification hearing. Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).

Alimony Held Excessive. - Alimony payments of $230.00 every four weeks, which was slightly more than three times the cost of the wife's actual subsistence in a State mental hospital at a cost of $75.00 a month, even including the cost of guardianship, exceeded "reasonable subsistence." Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

Parties Cannot Consent to Improperly Based Order. - The parties, by their consent, cannot enable a trial judge to enter an order not based upon consideration of the several factors listed in G.S. 50-13.4(c) and subsection (a) of this section. Williamson v. Williamson, 20 N.C. App. 669, 202 S.E.2d 489 (1974).

Lists of estimated expenses are admissible to illustrate a plaintiff's testimony as to the amount of her expenses. Stickel v. Stickel, 58 N.C. App. 645, 294 S.E.2d 321 (1982).

Evidence of Financial Status of Corporation Controlled by Supporting Spouse. - In an action seeking permanent alimony, evidence of the financial status of a corporation in which defendant supporting spouse owned more than 96% of the stock was relevant and competent in determining the size of his estate for the purpose of setting the amount of alimony to which plaintiff was entitled. Quick v. Quick, 53 N.C. App. 248, 280 S.E.2d 482 (1981), rev'd on other grounds, 305 N.C. 446, 290 S.E.2d 653 (1982).

Failure to Separate Out Business Expenses. - "Alimony" means payment for the support and maintenance of a spouse; it does not mean payment for the support and maintenance of a spouse's business ventures. Therefore, the court erred in failing to determine and to consider the extent to which defendant's business expenses as an artist duplicated her personal expenses. Beaman v. Beaman, 77 N.C. App. 717, 336 S.E.2d 129 (1985).

Principal on equitable distribution note from husband to wife was properly included in calculating the assets owned by wife, rather than her monthly income. Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991).

Admission by Supporting Spouse. - Testimony of husband testified that he was an able-bodied man and had the ability to provide ample support set at rest his ability to support his wife at the same level that she had become accustomed to during the marriage, since proof is not required for that which has been judicially admitted. Ahern v. Ahern, 63 N.C. App. 728, 306 S.E.2d 140 (1983).

Pleading Held Insufficient. - Trial court did not err by finding wife's pleadings were insufficient on their face and dismissing her action for alimony and alimony pendente lite; plaintiff asserted in her complaint that she was a "dependent spouse," but the only support she offered for this conclusion was evidence of her husband's salary and she did not present any evidence that she needed assistance to subsist during the prosecution or defense of the suit. Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989), cert. denied, 326 N.C. 50, 389 S.E.2d 94 (1990).

III. DISCRETION OF TRIAL COURT.

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Alimony and Alimony Pendente Lite to Be Determined in Same Manner. - The amount of alimony pendente lite is to be determined in the discretion of the trial judge in the same manner as the amount of alimony is determined. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970).

The amount of the allowance is a matter for the trial judge. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

The amount allowed for the reasonable subsistence, cost and attorneys' fees to the wife in her proceedings against her husband under former G.S. 50-16 was within the sound discretion of the judge hearing the same and having jurisdiction thereof. Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895); Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922); Best v. Best, 228 N.C. 9, 44 S.E.2d 214 (1947); Barwick v. Barwick, 228 N.C. 109, 44 S.E.2d 597 (1947).

The amount of alimony allowable pendente lite is a matter of sound judicial discretion, having regard to the condition and circumstances of the parties and the current earnings of the husband. Martin v. Martin, 263 N.C. 86, 138 S.E.2d 801 (1964).

The amount of alimony to be awarded is a reasonable subsistence, which must be determined by the trial judge from the evidence before him. Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985).

And Determination of the Amount Is Within His Discretion. - The trial judge must follow the requirements of the section in determining the amount of alimony to be awarded, but the determination of such amount lies within his sound discretion. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Clark v. Clark, 44 N.C. App. 649, 262 S.E.2d 659, aff'd in part and rev'd in part, 301 N.C. 123, 271 S.E.2d 58 (1980).

The trial judge's determination of the amount of alimony is not absolute and unreviewable, but it will not be disturbed absent a clear abuse of discretion. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Ingle v. Ingle, 42 N.C. App. 365, 256 S.E.2d 532 (1979); Watts v. Watts, 44 N.C. App. 46, 260 S.E.2d 170 (1979).

The amount of alimony to be awarded is in the discretion of the court, but this is not an absolute discretion and unreviewable. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968).

But Court's Discretion Will Not Be Disturbed Absent Abuse. - The amount to be awarded for alimony is within the discretion of the trial court and the court's discretion will not be disturbed in the absence of an abuse of such discretion. Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917); Hennis v. Hennis, 180 N.C. 606, 105 S.E. 274 (1920); Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962); Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539 (1969); Dixon v. Dixon, 6 N.C. App. 623, 170 S.E.2d 561 (1969); Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970); Gibson v. Gibson, 24 N.C. App. 520, 211 S.E.2d 522 (1975); Spillers v. Spillers, 25 N.C. App. 261, 212 S.E.2d 676 (1975); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978); Ingle v. Ingle, 42 N.C. App. 365, 256 S.E.2d 532 (1979); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984).

A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980); Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, cert. denied, 306 N.C. 752, 295 S.E.2d 764 (1982).

Statutory Requirements Must Be Followed. - In determining the amount of alimony and child support to be awarded, the trial judge must follow the requirements of this section. The amount is a reasonable subsistence, to be determined by the trial judge in the exercise of a judicial discretion from the evidence before him. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

The amount to be awarded is a question of fairness to the parties, and, so long as the court has properly taken into consideration the factors enumerated by statute, the award will not be disturbed absent an abuse of discretion. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E.2d 867, cert. denied, 297 N.C. 299, 254 S.E.2d 917 (1979); Cornelison v. Cornelison, 47 N.C. App. 91, 266 S.E.2d 707 (1980).

While the factors which are delineated in this section must be considered by the judge in determining the amount of alimony to be awarded in a given case, his determination of the proper amount may not be disturbed on appeal absent a clear showing of abuse of discretion. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980); Payne v. Payne, 49 N.C. App. 132, 270 S.E.2d 546 (1980).

Proper Exercise of Discretion Is Question of Law. - Proper exercise of the trial judge's authority in granting alimony, alimony pendente lite, or counsel fees is a question of law, reviewable on appeal. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

When Discretion Properly Applied. - Discretion is properly applied in those instances where, upon deliberation and with firmness, a judge deems its use necessary to the proper execution of justice. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Conclusion Not Disturbed on Appeal Where Supported, Despite Contradictions. - Although plaintiff's testimony on cross-examination tended to contradict her assertion that her illness was incapacitating, the trial court considered this evidence and concluded that the plaintiff's medical condition prevented her from undertaking any meaningful employment and that she was unable to work and earn income to defray her own expenses; this conclusion was supported by the testimony of the plaintiff, and despite contradictions, it would not be disturbed on appeal. Brandt v. Brandt, 92 N.C. App. 438, 374 S.E.2d 663 (1988), aff'd, 325 N.C. 429, 383 S.E.2d 656 (1989).

Failure to Make Adequate Findings. - Where trial court failed to make findings about the parties' estates and accustomed standard of living, the case was remanded for additional findings of fact regarding the award of alimony. Ellinwood v. Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162 (1989).

IV. ACTS WHICH WOULD SUPPORT DIVORCE.

.

Effect of Dependent Spouse's Conduct on Right to Alimony. - The legislature has seen fit to leave the question of whether indignities committed by a wife (dependent spouse) prior to separation should absolutely bar her right to alimony arising out of her husband's (supporting spouse's) adultery, or merely reduce the amount, for resolution by the trial judge in the exercise of his discretion on a case-by-case basis. Self v. Self, 37 N.C. App. 199, 245 S.E.2d 541, cert. denied, 295 N.C. 648, 248 S.E.2d 253 (1978).

Subsection (b) of this section makes it clear that the trial court may, in its discretion, award some permanent alimony to a dependent spouse even when the jury finds that the dependent spouse has committed acts which would support the granting of a divorce from bed and board in favor of the supporting spouse. Cavendish v. Cavendish, 38 N.C. App. 577, 248 S.E.2d 340 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 33 (1979).


§ 50-16.6. When alimony, postseparation support, counsel fees not payable.

  1. Repealed by Session Laws 1995, c. 319, s. 4.
  2. Alimony, postseparation support, and counsel fees may be barred by an express provision of a valid separation agreement, premarital agreement, or marital contract made pursuant to G.S. 52-10(a1) so long as the agreement is performed.

History

(1871-2, c. 193, s. 39; Code, s. 1292; Rev., s. 1567; 1919, c. 24; C.S., s. 1667; 1921, c. 123; 1923, c. 52; 1951, c. 893, s. 3; 1953, c. 925; 1955, cc. 814, 1189; 1967, c. 1152, s. 2; 1995, c. 319, s. 4; c. 509, s. 135.3(f); 2013-140, s. 2.)

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " When alimony not payable.

"(a) Alimony or alimony pendente lite shall not be payable when adultery is pleaded in bar of demand for alimony or alimony pendente lite, made in an action or cross action, and the issue of adultery is found against the spouse seeking alimony, but this shall not be a bar to reasonable counsel fees.

"(b) Alimony, alimony pendente lite, and counsel fees may be barred by an express provision of a valid separation agreement so long as the agreement is performed."

Effect of Amendments. - Session Laws 2013-140, s. 2, effective June 19, 2013, substituted "agreement, premarital agreement, or marital contract made pursuant to G.S. 52-10(a1)" for "agreement or premarital agreement" in subsection (b).

Legal Periodicals. - For article, "Proposed Reforms in North Carolina Divorce Law," see 8 N.C. Cent. L.J. 35 (1976).

For article dealing with marriage contracts as related to North Carolina law, see 13 Wake Forest L. Rev. 85 (1977).

For comment on the enforceability of arbitration clauses in North Carolina separation agreements, see 15 Wake Forest L. Rev. 487 (1979).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For survey of 1982 law relating to family law, see 61 N.C.L. Rev. 1155 (1983).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," see 63 N.C.L. Rev. 1317 (1985).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-14, which dealt with alimony in actions for divorce a mensa et thoro, former G.S. 50-15, which dealt with alimony pendente lite in divorce actions, and former G.S. 50-16, which dealt with actions for alimony without divorce.

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Consent Judgment Awarding Medical Expenses. - Under consent judgment in which the court found as a fact that there were no claims for support or alimony pending between the parties and ordered plaintiff to pay all necessary and reasonable medical expenses incurred by defendant, the parties did not intend for medical expenses to constitute alimony payments; thus, the trial court erred in entering judgment ex meru motu declaring portions of consent judgment null and void and unenforceable ab initio and in striking them. Davis v. Davis, 78 N.C. App. 464, 337 S.E.2d 190 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 893 (1986).

Applied in Owens v. Owens, 28 N.C. App. 713, 222 S.E.2d 704 (1976); Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978); Harris v. Harris, 58 N.C. App. 314, 293 S.E.2d 602 (1982); Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996).

Cited in Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258 (1972); Sturgill v. Sturgill, 49 N.C. App. 580, 272 S.E.2d 423 (1980); Crutchley v. Crutchley, 53 N.C. App. 732, 281 S.E.2d 744 (1981); Wells v. Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).

II. ADULTERY.

Editor's Note. - The cases annotated below were decided under former subsection (a), which provided that alimony or alimony pendente lite would not be payable when adultery was pleaded in bar of the demand and the issue found against the spouse seeking alimony, but this would not bar reasonable counsel fees.

Subsection (a) is similar in language and import to prior law. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

Court Must Make Findings If Adultery Is Pleaded. - When adultery is pleaded in bar of a demand for alimony or alimony pendente lite, an award or allowance of alimony pendente lite will not be sustained in the absence of a finding of fact on the issue of adultery in favor of the party seeking such an award. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

In a wife's action for alimony without divorce in which defendant's answer sets up the defense of adultery, it is error for the court to order temporary alimony to plaintiff without finding the facts with respect to the plea of adultery. Williams v. Williams, 230 N.C. 660, 55 S.E.2d 195 (1949).

Evidence of Adultery. - While authority for blood-grouping tests is limited to an issue of paternity, in a case in which the issue is raised the results of the tests, if they exclude defendant as the father of a child admittedly born during the subsistence of the marriage, would also be evidence of adultery. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Effect of Post-Divorce Sexual Activity. - This section is not an expression of legislative intent that post-divorce indiscriminate sexual activity by a former wife should bar her right to continue to receive alimony from her former husband. Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494, cert. denied, 295 N.C. 648, 248 S.E.2d 249 (1978).

There is no statute that allows the court to modify an award of alimony solely because of post-marital fornication. Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494, cert. denied, 295 N.C. 648, 248 S.E.2d 249 (1978).

III. SEPARATION AGREEMENTS.

.

What Constitutes "Separation Agreement". - To be a "separation agreement," there must be an agreement to separate or to live separately and apart. Robuck v. Robuck, 20 N.C. App. 374, 201 S.E.2d 557 (1974).

"Gross income," as used in a separation agreement under which the husband agreed that after three years he would pay alimony in an amount equivalent to 30% of his gross income, included the gain realized from the sale of property. Heater v. Heater, 62 N.C. App. 587, 302 S.E.2d 891 (1983).

The jurisdiction of the court is not barred by a prior separation agreement between the parties. Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46 (1967), decided under former G.S. 50-16.

But Unimpeached Deed of Separation May Bar Alimony. - A wife who, in a valid deed of separation, has released her husband from his support obligation is remitted to her rights under the agreement, and as long as the deed of separation stands unimpeached, the court is without power to award her alimony and counsel fees. Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964).

Wife sought a divorce a mensa and alimony, notwithstanding the provisions of a valid separation agreement which the husband had "fully performed," could not, after her husband had performed his part of the contract, obtain an award of alimony. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).

A deed of separation, approved by a consent judgment, could be pleaded as complete bar to the wife's application for alimony pendente lite and for reasonable counsel fees, as provided by former G.S. 50-15. Brown v. Brown, 205 N.C. 64, 169 S.E. 818 (1933).

However, resumption of marital relations rescinds deed of separation. Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964).

Agreement Did Not Waive Alimony Rights. - Defendant's execution of a separation agreement which stated that it was executed with "the express understanding" and "in full satisfaction of all obligations" did not constitute an express waiver of her alimony rights within the meaning of G.S. 52-10.1 or this section where the preamble to the agreement referred to G.S. 50-20, an equitable distribution statute, thus excluding issues of spousal support. Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312 (1999).

Discontinuance of Payments Under Separation Agreement. - Where, by an agreement for a separation between husband and wife, the former agreed to pay a certain monthly allowance, and the husband, after paying several installments, discontinued the payments, he could not set up the agreement in bar of her action for support under this section, even though he discontinued the payments because she demanded that the allowance be increased. Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895).

Election to Seek Alimony Rather Than Damages for Breach of Contract to Support. - When a wife, in an action for alimony without divorce, elects to seek alimony rather than damages for the breach of the contract to support her, she is only entitled to such an award as would be proper if no contract had been signed. If there has been a partial performance, she must account for the net benefits, if any, which she may have received. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).

Attempt to Set Aside Settlement. - The eminence, experience, and character of counsel who represented the plaintiff in procuring a property settlement would bear directly on plaintiff's subsequent attempt to set it aside as fraudulent. Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603 (1965), decided under former G.S. 50-16.

Suit Held Not Barred by Separation Agreement. - Jurisdiction of the court invoked under former G.S. 50-16 was not barred by separation agreement pleaded, where wife sued for alimony and support without divorce on grounds of specific acts of cruelty by husband and declared intention to sue for divorce in two years. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745 (1946).

Setting Out Separation Agreement in Record on Appeal. - Where defendant resisted his wife's application for alimony without divorce under former G.S. 50-16, upon the ground that there was still in effect a valid contract of separation which they had both executed, and appealed from an adverse decision of the trial judge hearing the matter, the record on appeal should have set out the written contract of separation so that the Supreme Court could determine whether it was reasonable, just and fair to the wife, and whether in taking her acknowledgment the officer had properly certified that it was not unreasonable or injurious to her, as the statutes then required. Moore v. Moore, 185 N.C. 332, 117 S.E. 12 (1923).

Post-Separation Failure to Provide Necessary Subsistence. - Absent a valid separation agreement waiving all alimony rights under subsection (b) of this section, post-separation failure to provide a dependent-spouse with necessary subsistence gives rise to an action for alimony. Brown v. Brown, 104 N.C. App. 547, 410 S.E.2d 223 (1991), cert. denied, 331 N.C. 383, 417 S.E.2d 789 (1992).

Summary judgment was appropriate where a premarital agreement signed by the parties irrefutably barred the wife's claims for postseparation support, alimony and equitable distribution; the language in the subject agreement - drafted by the wife's attorney - was sufficiently "express" to constitute a valid and enforceable waiver of the wife's claims for postseparation support pursuant to G.S. 50-16.2A and alimony pursuant to G.S. 50-16.3A. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209 (2000).


§ 50-16.7. How alimony and postseparation support paid; enforcement of decree.

  1. Alimony or postseparation support shall be paid by lump sum payment, periodic payments, income withholding, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of lump-sum payments of alimony or postseparation support or in payment of arrearages of alimony or postseparation support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which either alimony or postseparation support is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.
  2. The court may require the supporting spouse to secure the payment of alimony or postseparation support so ordered by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due.
  3. If the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or postseparation support as provided in subsection (a) or for the securing thereof, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
  4. The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases.
  5. The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 and Article 9 of Chapter 110 of the General Statutes, shall be available in actions for alimony or postseparation support as in other cases, and for such purposes the dependent spouse shall be deemed a creditor of the supporting spouse.
  6. The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for alimony or postseparation support as in other cases.
  7. Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in actions for alimony or postseparation support as in other cases.
  8. A dependent spouse for whose benefit an order for the payment of alimony or postseparation support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to voidable transactions.
  9. A judgment for alimony or postseparation support obtained in an action therefor 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 affected; but past-due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.
  10. Any order for the payment of alimony or postseparation support is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
  11. The remedies provided by Chapter 1 of the General Statutes Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for alimony and postseparation support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.
  12. The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.
  13. The dependent spouse may apply to the court for an order of income withholding for current or delinquent payments of alimony or postseparation support or for any portion of the payments. If the court orders income withholding, a notice of obligation to withhold shall be served on the payor as required by G.S. 1A-1, Rule 4, Rules of Civil Procedure. Copies of the notice shall be filed with the clerk of court and served upon the supporting spouse by first-class mail.

Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.

History

(1967, c. 1152, s. 2; 1969, c. 541, s. 5; c. 895, s. 18; 1977, c. 711, s. 26; 1985, c. 482, s. 1; c. 689, s. 18; 1995 c. 319, s. 5; 1998-176, ss. 2, 3; 1999-456, s. 14; 2015-23, s. 3.)

Local Modification. - Person: 1967, c. 848, s. 2.

Cross References. - As for garnishment of government employee benefits, see 42 U.S.C. 659 and 10 U.S.C. 1408.

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " How alimony and alimony pendente lite paid; enforcement of decree.

"(a) Alimony or alimony pendente lite shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. In every case in which either alimony or alimony pendente lite is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.

"(b) The court may require the supporting spouse to secure the payment of alimony or alimony pendente lite so ordered by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due.

"(c) If the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or alimony pendente lite as provided in subsection (a) or for the securing thereof, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.

"(d) The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for alimony or alimony pendente lite as in other cases.

"(e) The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in actions for alimony or alimony pendente lite as in other cases, and for such purposes the dependent spouse shall be deemed a creditor of the supporting spouse.

"(f) The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A-1, Rule 65, shall be available in actions for alimony or alimony pendente lite as in other cases.

"(g) Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in actions for alimony or alimony pendente lite as in other cases.

"(h) A dependent spouse for whose benefit an order for the payment of alimony or alimony pendente lite has been entered shall be a creditor within the meaning of Article 3 of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.

"(i) A judgment for alimony or alimony pendente lite obtained in an action therefor 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 affected; but past-due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.

"(j) Any order for the payment of alimony or alimony pendente lite is enforceable by proceedings for civil contempt, and its disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.

"Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.

"(k) The remedies provided by Chapter 1 of the General Statutes Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for alimony and alimony pendente lite as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.

"( l ) The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available."

Effect of Amendments. - Session Laws 2015-23, s. 1, effective October 1, 2015, substituted "voidable transactions" for "fraudulent conveyances" in subsection (h). For effective date and applicability, see editor's note.

Legal Periodicals. - For note on the remedy of garnishment in child support, see 56 N.C.L. Rev. 169 (1978).

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

For comment on tenancy by the entirety in North Carolina, see 59 N.C.L. Rev. 997 (1980).

For note on equitable distribution of property upon divorce, see 11 N.C. Cent. L.J. 156 (1980).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For note on consent judgments in family law in light of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), see 6 Campbell L. Rev. 125 (1984).

For survey, "Termination of Lump Sum Alimony upon the Remarriage of a Dependent Spouse: Potts v. Tutterow," see 73 N.C.L. Rev. 2432 (1995).

For article, "Can't Live With 'Em Can't Live Without 'Em: An Analysis of the Trial Court's Authority to Hear and Decide Child-Related Claims in North Carolina Post-Baumann," see 34 Campbell L. Rev. 449 (2012).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-15, which dealt with alimony pendente lite in divorce actions, and former G.S. 50-16, which dealt with alimony without divorce.

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Support May Be Compelled by Judicial Decree. - Wife (dependent spouse) may compel performance by judicial decree where husband (supporting spouse) separates himself from his wife and fails to support her, and husband cannot, by merely providing support for his wife until he gets beyond the jurisdiction of the court, deprive his wife of the right of compelling him by judicial decree to support her. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).

The trial judge can award alimony in a lump payment or monthly payments. Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971); Whitesell v. Whitesell, 59 N.C. App. 552, 297 S.E.2d 172 (1982), cert. denied, 307 N.C. 583, 299 S.E.2d 653 (1983).

Or May Combine Forms of Payment. - The fact that a trial judge used a combination of both a lump sum payment and a continuing monthly payment for alimony did not constitute an abuse of discretion. Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428 (1971).

Limit of Court's Authority. - When a court awards alimony pendente lite, it has authority to cause the husband (supporting spouse) to secure so much of his estate as may be necessary to comply with its order. Such order as may be necessary for the protection of the wife (dependent spouse) is the limit of the court's authority. It cannot penalize defendant unless and until he refuses to comply with the court's direction. Harris v. Harris, 257 N.C. 416, 126 S.E.2d 83 (1962).

The court has no power to order a lump sum payment either to punish the supporting spouse or to divide his estate. Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980).

The trial court had no power to order defendant husband to make a lump sum payment of $50,000.00 to plaintiff wife where it was apparent that the effect of the court's order would be to force defendant to liquidate, either by sale or mortgage, his only remaining assets having any substantial value, not for the purpose of paying for the maintenance and support of defendant, but in order to effect a division of his estate with her. Taylor v. Taylor, 46 N.C. App. 438, 265 S.E.2d 626 (1980).

Trial court's creation of a trust consisting of certain real and personal property owned by the parties in order to secure the payment of alimony and child support was a proper exercise of its discretion in applying the provisions of G.S. 50-13.4(e) and of subsections (a) and (c) of this section, and would be affirmed. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, cert. denied, 322 N.C. 330, 368 S.E.2d 875 (1988).

Corpus of Estate May Be Assigned to Secure Allowance. - The court is authorized to assign the corpus of the husband's (supporting spouse's) property to secure the allowance, and therefore it is immaterial to defendant whether the home place is taken and rents and profits therefrom used to provide a suitable residence for the wife (dependent spouse) and children or whether they are granted the right of occupancy of the home place, and it being found that such arrangement is most feasible and appropriate, the order will not be disturbed. Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555 (1940).

The husband's "estate," from which the court may secure its order allowing a reasonable subsistence, etc., to the wife (dependent spouse) in her proceedings for alimony without divorce, includes within its meaning income from permanent property, tangible or intangible, or from the husband's (supporting spouse's) earnings. Crews v. Crews, 175 N.C. 168, 95 S.E. 149 (1918); Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922).

Alimony Pendente Lite May Be Decreed a Lien. - Where alimony pendente lite has been regularly granted to the wife in her action for divorce against her nonresident husband, who has abandoned her, the court may decree it a lien upon his lands described in the complaint and situated here, and order the sale thereof for its payment; and it is not necessary that the defendant should have had notice of the wife's application therefor. Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502 (1900); White v. White, 179 N.C. 592, 103 S.E. 216 (1920).

Nonresident Defendant May Be Required to Post Bond. - Under G.S. 50-13.4(f)(1) and subsection (b) of this section, the court properly required the supporting spouse to post a security bond to secure his compliance with a judgment requiring him to make monthly payments for support of his wife and children, where the court found that defendant no longer resided within the State and that he had no attorney of record in the case. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607 (1972).

The security interest to which this section refers is an interest in real estate which secures the payment of an obligation. Taylor v. Taylor, 26 N.C. App. 592, 216 S.E.2d 737 (1975).

Imposition of Trust Where Supporting Spouse Has Only Defeasible Fee in Part of Land. - Where the judge, in proceedings for an allowance of reasonable subsistence, has impressed a trust upon the husband's (supporting spouse's) land for the enforcement of the decree, the fact that in a part of the land he has only a defeasible fee cannot prejudice him, and his exception on that ground cannot be sustained. Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922).

Receiver May Collect Income and Sell Realty to Pay Alimony. - In a wife's (dependent spouse's) action for alimony without divorce, a receiver appointed therein to take possession of the husband's (supporting spouse's) property within the State may collect the income from the husband's realty for the purpose of paying alimony awarded the wife in the action and may sell the husband's real estate if necessary to pay the alimony decreed. Lambeth v. Lambeth, 249 N.C. 315, 106 S.E.2d 491 (1959).

Non-Income-Producing Realty May Be Sold and Proceeds Invested. - A judge has the power to order the sale of a husband's (supporting spouse's) non-income-producing real estate for the purpose of investing the proceeds derived from such sale in legal investments as provided in Article 6 of Chapter 53, so as to produce an income sufficient to enable the receiver appointed to enforce payment of alimony decreed to pay the expenses of the receivership and alimony awarded the plaintiff wife (dependent spouse). Lambeth v. Lambeth, 249 N.C. 315, 106 S.E.2d 491 (1959).

Rents and Profits in Estate by Entireties Are Chargeable. - Where husband and wife own land by entireties, the rents and profits of the husband (supporting spouse) therein may be charged with the support of the wife (dependent spouse) and the minor children of the marriage upon his abandonment of her, in an action for alimony without divorce, and for her counsel fees by Laws 1921, c. 123, in these proceedings; and to enforce an order allowing her alimony and attorneys' fees, according to the statutes, a writ of possession may issue, to apply thereto the rents and profits as they shall accrue and become personalty; and an order for the sale of land conveying the fee simple title for the purpose of paying the allowance is erroneous. Holton v. Holton, 186 N.C. 355, 119 S.E. 751 (1923); Porter v. Citizens Bank, 251 N.C. 573, 111 S.E.2d 904 (1960).

But Sale of Such Estate May Not Be Ordered. - The court does not have the power to order the sale of land held as tenants by the entireties to procure funds to pay alimony to the wife (dependent spouse) or to pay her counsel fees. Porter v. Citizens Bank, 251 N.C. 573, 111 S.E.2d 904 (1960).

Although the rents and profits therefrom and the actual possession thereof may be made available for the support of the wife (dependent spouse), the court does not have the power to order the sale of land owned by husband and wife as tenants by the entirety in order to procure funds to pay alimony to the wife or to pay her counsel fees. Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973).

The court may allow plaintiff possession of the home owned by the parties as tenants by the entireties in fixing alimony pendente lite under this section. Sellars v. Sellars, 240 N.C. 475, 82 S.E.2d 330 (1954).

Possession of Real or Personal Property as Alimony. - There is no requirement that alimony be denominated as such for it to be a valid award of alimony. Furthermore, possession of real or personal property, including the marital home, is one form of alimony provided by statute. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, cert. denied, 312 N.C. 495, 322 S.E.2d 558 (1984).

Transfer of Title or Possession of Real Property. - While the court has authority to order a transfer of title or possession of real property under subsection (a) of this section and G.S. 50-17, these sections do not require it to do so. Clark v. Clark, 44 N.C. App. 649, 262 S.E.2d 659, aff'd, 301 N.C. 123, 271 S.E.2d 58 (1980).

While a trial court has the authority to order payment of alimony by possession of real property under subsection (a) of this section, as well as the power to issue a writ of possession when necessary under G.S. 50-17, the pertinent statutory provisions do not require it to do so. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

This section in no way renders it mandatory or incumbent upon the trial court to order any transfer of property as part of alimony. Spillers v. Spillers, 25 N.C. App. 261, 212 S.E.2d 676 (1975).

This section does not authorize the court to direct that alimony be paid by the transfer of title to real estate. Taylor v. Taylor, 26 N.C. App. 592, 216 S.E.2d 737 (1975).

Subsections (b) and (c) of this section do not enlarge the authority given the trial judge in subsection (a). Rather, these subsections enable the court to order a transfer of title to real property to secure an award of alimony made under subsection (a). Thus, the trial judge may order the transfer of title to real property, but only if it is necessary to insure the payment of alimony. Gilbert v. Gilbert, 71 N.C. App. 160, 321 S.E.2d 455 (1984).

Power to Transfer Personalty Dependent on Alimony Power. - Although subsection (a) of this section clearly vests the court with power to order a transfer of personalty, that power does not exist independently of the court's power to order alimony for the dependent spouse. This section contemplates such transfers only in terms of satisfaction of the obligation to support. Where the court was not ordering a transfer of property as payment of alimony, the statute was, therefore, inapplicable. Clark v. Clark, 44 N.C. App. 649, 262 S.E.2d 659, aff'd, 301 N.C. 123, 271 S.E.2d 58 (1980).

Court order requiring defendant to secure payment of temporary alimony by means of deed of trust did not give to plaintiff fixed or permanent interest as cestui que trust, or any right to the entire proceeds of foreclosure sale under deed of trust; the order simply provided a means of securing payment of alimony, and the court was not required to find a change of circumstances as a basis for ordering the payment of a part of the proceeds of foreclosure sale to satisfy a judgment lien against defendant or to pay the fee of defendant's attorney. Johnson v. Johnson, 25 N.C. App. 448, 213 S.E.2d 427 (1975).

No Present Right to Disbursement of Eminent Domain Deposit for Land Owned by Entirety. - A wife separated from her husband and seeking alimony pendente lite had no present right to disbursement of money deposited by the State Highway Commission (now Board of Transportation) as a credit against just compensation for land owned by the wife and her husband as tenants by entirety. North Carolina State Hwy. Comm'n v. Myers, 270 N.C. 258, 154 S.E.2d 87 (1967), decided under former G.S. 50-16.

Validity and Enforceability of Consent Judgment. - In an action for alimony without divorce, a judgment, entered by consent of the parties, which orders defendant to make alimony payments to his wife (dependent spouse), is valid and is enforceable against the husband (supporting spouse) by attachment for contempt, notwithstanding the absence of allegations or findings that the separation was caused by the misconduct of the husband. Whitesides v. Whitesides, 271 N.C. 560, 157 S.E.2d 82 (1967).

Where consent judgment ordered that plaintiff pay alimony in a certain amount per month and that if either party willfully failed to comply with and perform the terms and conditions of the separation agreement, the court could hold the breaching party in contempt of court, and the divorce decree ordered that the consent judgment should remain in effect according to the respective terms and conditions and applicable law, the judgment was actually an adjudication by the court which was enforceable by contempt and subject to modification upon a change of conditions, rather than a contract approved by the court which could not be modified absent a consent of the parties. Britt v. Britt, 36 N.C. App. 705, 245 S.E.2d 381 (1978).

Effect of Consent Judgment. - Where the parties to an action for alimony without divorce entered into a consent judgment, approved by the court, providing for the payment to the wife of a certain sum monthly and making such sums a lien upon the husband's real estate, and the husband failed to make payments in accordance with the judgment and the wife brought a separate action alleging abandonment, it was held that plaintiff's rights were remitted to the prior judgment. Turner v. Turner, 205 N.C. 198, 170 S.E. 646 (1933).

Trial judge's authority to incorporate a deed of separation into a judgment does not depend on the validity of deed of separation. Wells v. Wells, 92 N.C. App. 226, 373 S.E.2d 879 (1988), cert. denied, 324 N.C. 342, 378 S.E.2d 810 (1989).

Divorce Actions Awarding Alimony Remain Open for Enforcement. - Divorce actions in which alimony is awarded are not ended merely by the rendition of judgment. Such actions are always open for motions in the cause for the enforcement of the order for alimony. Miller v. Miller, 98 N.C. App. 221, 390 S.E.2d 352 (1990), cert. denied, 327 N.C. 637, 399 S.E.2d 124 (1990).

Alimony and Child Support Considered Together. - Although alimony and child support were normally subjects to be considered separately, there might be circumstances that would warrant considering them together. Such was true in the wife's case where she sought and the trial court granted an increase in alimony because the original award attributed only half of some reasonable expenses to the wife because some expenses were attributed to the minor child, and those reasonable expenses increased for the wife after the minor child turned 18-years-old and the child support award was terminated. Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008).

Service of Notice of Motion for Enforcement on Defendant's Attorney. - Plaintiff seeking enforcement of an order for alimony need not serve defendant with a new summons. Simply serving him with notice of the motion for enforcement is sufficient. Unless otherwise ordered by the court, G.S. 1A-1, Rule 5(b) allows service of notice of written motions by service on defendant's attorney of record. Miller v. Miller, 98 N.C. App. 221, 390 S.E.2d 352, cert. denied, 327 N.C. 637, 399 S.E.2d 124 (1990).

Service of defendant's attorney of record in divorce case in 1976 with copies of motion for assignment of wages and show cause order of 1988 was proper, despite defendant's contention that attorney was hired only to protect defendant's interest in the dissolution of his marriage in 1976. Miller v. Miller, 98 N.C. App. 221, 390 S.E.2d 352, cert. denied, 327 N.C. 637, 399 S.E.2d 124 (1990).

Divorce Decree Does Not Affect Prior Order for Alimony. - A decree of absolute divorce on the ground of separation as provided in G.S. 50-6 would not affect a prior order for alimony without divorce rendered under former G.S. 50-16. Howell v. Howell, 206 N.C. 672, 174 S.E. 921 (1934).

A judgment for absolute divorce does not invalidate a judgment for alimony without divorce entered before the action for absolute divorce was instituted. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

A decree of absolute divorce will neither impair husband's (supporting spouse's) liability for alimony under a former judgment for permanent alimony under former G.S. 50-16, nor affect the power of the court to enforce it by contempt proceedings or otherwise. Wilson v. Wilson, 260 N.C. 347, 132 S.E.2d 695 (1963).

A judgment for subsistence survives a judgment of absolute divorce obtained by defendant. Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489 (1944).

But where a pendente lite order was effective only "pending the trial of this action," it was superseded by rendition of the final judgment. Clarke v. Clarke, 47 N.C. App. 249, 267 S.E.2d 361 (1980).

Amount Due Under Prior Orders May Be Determined upon Motion. - The wife (dependent spouse) may have the amount of alimony due under prior orders determined by the court upon motion in the cause. Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940).

An action is not ended by the rendition of a judgment, but is still pending until the judgment is satisfied for the purpose of motions affecting the judgment but not the merits of the original controversy, especially judgments allowing alimony with or without divorce, and where the defendant makes a general appearance in the original action for subsistence without divorce in which judgment is duly rendered for plaintiff, the court acquires jurisdiction over defendant by the proper service of notice of plaintiff's subsequent petition to recover past due installments, and defendant may not challenge the court's jurisdiction to hear plaintiff's motion and petition for such recovery by special appearance. Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447 (1939).

Where the obligor under a judgment awarding alimony and child support is in arrears in the periodic payment of the alimony and child support, the court may, upon motion in the cause, judicially determine the amount then properly due and enter its final judgment for the total then properly due, and execution may issue thereon. Lindsey v. Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977).

Attachment Will Lie. - An attachment against the husband's (supporting spouse's) land will lie in favor of the wife (dependent spouse) abandoned by him, for a reasonable subsistence or allowance adjudged by the court, under the implied contract that he support and maintain her, under the statute declaring and enforcing it and under the order of court; and attachment of the husband's land is a basis for the publication of summons. Walton v. Walton, 178 N.C. 73, 100 S.E. 176 (1919).

A proper order for reasonable subsistence and counsel fees pendente lite may be enforced against a nonresident or absconding husband (supporting spouse) by attachment against his property without notice, and in such case the court may also appoint a receiver to collect the income from the husband's property. Perkins v. Perkins, 232 N.C. 91, 59 S.E.2d 356 (1950).

Writ of Possession. - To enforce an order allowing alimony and counsel fees pursuant to the provisions of this section, the court may issue a writ of possession pursuant to the provisions of G.S. 50-17, giving the wife (dependent spouse) possession of property held by her and her husband (supporting spouse) as tenants by the entireties, in order that she may apply the rents and profits therefrom, as they shall accrue and become personalty, to the payment of alimony and counsel fees as fixed by the court. Porter v. Citizens Bank, 251 N.C. 573, 111 S.E.2d 904 (1960).

Priority of Claim. - The wife's (dependent spouse's) inchoate right to alimony makes her a creditor of her husband (supporting spouse) and is enforceable by attachment, in case of her abandonment, which puts everyone on notice of her claim and her priority over other creditors of her husband. Walton v. Walton, 178 N.C. 73, 100 S.E. 176 (1919).

Where the wife (dependent spouse) has obtained an order for support from her husband (supporting spouse), which has been declared a lien on his property under this section, in order for her to intervene in an action in another jurisdiction and claim priority over an attachment therein issued, it is necessary that she should show some valid service of process or waiver by her husband in an appropriate civil action against him. In this case it was questioned whether the lien of the wife would in any event prevail as against the lien of a valid attachment first levied in another court of equal concurrent jurisdiction. Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882 (1921).

An order was entered in a divorce cause to the effect that if a deed of trust on property held by the husband and wife by the entireties was foreclosed, the husband's share of the surplus should be secured for the payment of the alimony awarded. The deed of trust was foreclosed and the trustee voluntarily paid in the office of the clerk the surplus realized in the sale. In an action on account instituted by a creditor of the husband prior to the sale, a warrant of attachment was issued and the husband's share in the surplus attached on the date it was put in the hands of the clerk. It was held that there having been no attachment of the funds in the divorce action, nor the surplus placed in custodia legis in that action, and the orders issued therein not constituting a lien in futuro upon such funds, the lien of the attaching creditor was superior to the rights of the wife therein. Porter v. Citizens Bank, 251 N.C. 573, 111 S.E.2d 904 (1960).

Unless Decree Constitutes Lien, Arrears Must Be Reduced to Judgment Before Execution. - A decree for periodic payments of alimony and support, in the absence of a provision in the decree itself which constitutes it a specific lien upon the property of the obligor, is not enforceable by execution until the arrears are reduced to judgment by a judicial determination of the amount then due. This is so because the decree for alimony and support may be modified as circumstances may justify. Lindsey v. Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977).

Income from Trust Administered in State Is Subject to Execution. - In a wife's (dependent spouse's) action for divorce from bed and board and for permanent alimony, the husband's (supporting spouse's) income from a trust created in another jurisdiction and administered by a trustee bank in this State is subject to execution to satisfy the judgment of the wife against the husband for alimony, child support and counsel fees. Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539 (1969).

Homestead and Personal Property Exemptions. - The allowance made under this section is not such a "debt" as will give the husband the right to claim his homestead or personal property exemptions. Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922). See also, Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555 (1940).

Garnishment of Wages. - Garnishment of defendant's wages for payment of alimony was not improper since defendant's future earnings were not garnished and since defendant was not entitled to a 60-day exemption because he could not show that his earnings were necessary for the use of a family supported wholly or partly by his labor. Sturgill v. Sturgill, 49 N.C. App. 580, 272 S.E.2d 423 (1980).

Military Retirement Pay May Not Be Assigned to Enforce Payment. - An assignment of defendant's military retirement pay pursuant to court-ordered specific performance of a separation agreement conflicts with the federal law and would threaten grave harm to clear and substantial federal interests. Harris v. Harris, 58 N.C. App. 175, 292 S.E.2d 775, rev'd on other grounds, 307 N.C. 684, 300 S.E.2d 369 (1983).

Estoppel to Challenge Divorce Judgment. - Where husband filed for divorce and performed some of his obligations under separation agreement for several years, remarried in reliance on the divorce judgment, and did not object to the validity of the divorce decree or the agreement until he sought to defend his failure to comply with the judgment on grounds that it was void, he was estopped from questioning its validity and effect. Amick v. Amick, 80 N.C. App. 291, 341 S.E.2d 613 (1986).

Vested or Accrued Payments. - If under subsection (a), the court has ordered alimony in a single lump sum payment and this lump sum has not been paid, such alimony has vested or accrued and similarly, if under subsection (a), the court has ordered alimony in periodic payments and payments have come due but have not been paid, these payments have also vested or accrued; in either case, the dependent spouse's remarriage would not terminate the ordered amounts that had vested or accrued by virtue of being "due and payable." Potts v. Tutterow, 340 N.C. 97, 455 S.E.2d 156, rehearing denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Effect of Remarriage on Periodic Payment Plan. - Where trial court delineated alimony payable by husband to wife as a "lump sum" or as a "fixed amount," and the payment methodology was not in a single payment but instead was in periodic payments, wife's remarriage terminated the monthly alimony obligations not yet due and payable, as they had not vested prior to remarriage. Potts v. Tutterow, 340 N.C. 97, 455 S.E.2d 156, rehearing denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Applied in Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969); Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521 (1970); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Yearwood v. Yearwood, 287 N.C. 254, 214 S.E.2d 95 (1975); Amaker v. Amaker, 28 N.C. App. 558, 221 S.E.2d 917 (1976); Love v. Love, 41 N.C. App. 308, 254 S.E.2d 642 (1979); Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980); Wade v. Wade, 63 N.C. App. 189, 303 S.E.2d 634 (1983).

Cited in Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206 (1969); Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971); Hinton v. Hinton, 17 N.C. App. 715, 195 S.E.2d 319 (1973); Bridges v. Bridges, 29 N.C. App. 209, 223 S.E.2d 845 (1976); Conrad v. Conrad, 35 N.C. App. 114, 239 S.E.2d 862 (1978); Harper v. Harper, 50 N.C. App. 394, 273 S.E.2d 731 (1981); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Summerlin v. Summerlin, 26 Bankr. 875 (Bankr. E.D.N.C. 1983); Phillips v. Phillips, 83 N.C. App. 228, 349 S.E.2d 397 (1986); Romulus v. Romulus, 216 N.C. App. 28, 715 S.E.2d 889 (2011).

II. CONTEMPT.

Duty to provide support is not a debt in the legal sense of the word, but an obligation imposed by law, and penal sanctions are provided by this section for its willful neglect or abandonment. Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414 (1945).

And a judgment ordering payment of alimony may be enforced by contempt. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).

An order to pay alimony may be enforced by imprisonment for contempt. Pain v. Pain, 80 N.C. 322 (1879); Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893).

A district court judge may hold a party to a proceeding before him in civil contempt for failure to comply with court orders issued pursuant to a confession of judgment regarding payment of alimony which was entered in the superior court prior to the establishment of a district court for the district in which the order was entered. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).

With Willful Failure Punishable by Imprisonment. - A willful failure of husband (supporting spouse) to comply with court's order to pay to the wife (dependent spouse) the amount fixed by order of the court, having due regard to the situation of the parties, the ability of the husband to pay, and the needs of the wife is a contempt, and can be punished as such by imprisonment, and is not within the constitutional inhibition against imprisonment for debt. Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).

Trial Court Has Jurisdiction to Enforce Alimony Order During Appeal. - Trial court did not lack authority to enter contempt order and initial show cause order against defendant where defendant had appealed original order for periodic alimony payments; appeal did not remove jurisdiction of trial court under G.S. 1-294 since this section dictates that trial court has jurisdiction to enforce alimony order during appeal. Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989).

Agreement of Parties Incorporated in Judgment Is Enforceable by Contempt Proceedings. - Where, in wife's action for alimony and child support, the parties agreed to the terms of a judgment providing that husband would make specified monthly support payments, and the judgment entered by the court ordered the husband to make the payments which he had agreed to make, the husband's obligation to make the support payments could be enforced by contempt proceedings. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607 (1972).

Property settlement provisions of a separation agreement incorporated by reference in a divorce decree are enforceable by contempt proceedings. Cobb v. Cobb, 54 N.C. App. 230, 282 S.E.2d 591 (1981), cert. denied and appeal dismissed, 304 N.C. 724, 288 S.E.2d 809 (1982).

Contempt in Failure to Comply with Consent Judgment. - Under a consent judgment entered in an action by a husband against his wife where no pleadings were filed, providing for certain money payments in lieu of alimony by the husband to the wife and that it should be more than a simple judgment for debt and as binding upon plaintiff as if rendered under this section, and also providing that, upon proper cause shown, it would subject husband to such penalties as the court might require in case of contempt of its orders, the court could commit the plaintiff upon his failure to make the payments required. Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576 (1942).

Although a judgment may be entered by consent, based on a written agreement, if such judgment orders and decrees that the husband shall pay certain sums as alimony for the support of his wife, a willful refusal to make the payments as directed therein will subject the husband in a proper proceeding to attachment for contempt. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961).

Punishment by Contempt Requires "Willful" Disobedience. - Failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

And "willful" imports knowledge and a stubborn resistance. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

One does not act "willfully" in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

The trial court must find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Where the court enters judgment as for civil contempt, the court must find not only failure to comply with the order but that the defendant presently possesses the means to comply. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Where the lower court had not found as a fact that defendant possessed the means to comply with the orders for payment of subsistence pendente lite at any time during the period when he was in default in such payments, the finding that defendant's failure to make the payments of subsistence was deliberate and willful was not supported by the record, and the decree committing him to imprisonment for contempt would be set aside. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

An order for a defendant's arrest for willful contempt of an earlier court order requiring him to make alimony payments would be remanded where there was no evidence to support a finding that defendant presently possessed the means to comply with the alimony order. Earnhardt v. Earnhardt, 9 N.C. App. 213, 175 S.E.2d 744 (1970).

Evidence of Willful Noncompliance with Order. - The mere fact that a defendant ordered to pay a certain sum monthly for the necessary subsistence of his wife and child has a right to move at any time for modification of the order does not support the conclusion that defendant's failure to comply with the order is willful. Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455 (1940).

Findings Required to Support Judgment for Contempt. - In contempt proceedings for willful failure to comply with an order of court, it is required that the court find facts supporting the conclusion of willfulness, and findings of fact that defendant had been ordered to pay a certain sum monthly for the necessary subsistence of his wife and child, and that defendant had failed to comply with the order, without findings as to the property possessed by defendant or his earning capacity, will not support a judgment attaching defendant for contempt. Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455 (1940).

Facts Found in Contempt Proceedings Not Reviewable Except upon Their Sufficiency. - In proceedings for contempt, the facts found by the judge are not reviewable except for the purpose of passing upon their sufficiency to warrant the judgment. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

Husband Held in Contempt. - For case in which defendant was held in contempt for disobedience of the court's order for him to pay certain weekly sums to his wife under former G.S. 50-16, see Little v. Little, 203 N.C. 694, 166 S.E. 809 (1932).

Imprisonment Erroneous. - Where the trial judge found that the party was a healthy and able-bodied man for his age, and further found that he could pay at least a portion of the alimony, it was error to imprison him until he should pay the whole amount. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).

As to habeas corpus after commitment for contempt, see In re Adams, 218 N.C. 379, 11 S.E.2d 163 (1940).


§ 50-16.8. Procedure in actions for postseparation support.

When an application is made for postseparation support, the court may base its award on a verified pleading, affidavit, or other competent evidence. The 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.

History

(1871-2, c. 193, ss. 37, 38, 39; 1883, c. 67; Code, ss. 1290, 1291, 1292; Rev., ss. 1565, 1566, 1567; 1919, c. 24; C.S., ss. 1665, 1666, 1667; 1921, c. 123; 1923, c. 52; 1951, c. 893, s. 3; 1953, c. 925; 1955, cc. 814, 1189; 1961, c. 80; 1967, c. 1152, s. 2; 1971, c. 1185, s. 25; 1979, c. 709, s. 4; 1995, c. 319, s. 6.)

Cross References. - As to court having jurisdiction over alimony proceedings, see G.S. 7A-244.

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " Procedure in actions for alimony and alimony pendente lite.

"(a) The procedure in actions for alimony and actions for alimony pendente lite shall be as in other civil actions except as provided in this section and in G.S. 50-19.

"(b) Payment of alimony may be ordered:

  1. Upon application of the dependent spouse in an action by such spouse for divorce, either absolute or from bed and board; or
  2. Upon application of the dependent spouse in a separate action instituted for the purpose of securing an order for alimony without divorce; or
  3. Upon application of the dependent spouse as a cross action in a suit for divorce, whether absolute or from bed and board, or a proceeding for alimony without divorce, instituted by the other spouse.

"(c) A cross action for divorce, either absolute or from bed and board, shall be allowable in an action for alimony without divorce.

"(d) Payment of alimony pendente lite may be ordered:

(1) Upon application of the dependent spouse in an action by such spouse for absolute divorce, divorce from bed and board, annulment, or for alimony without divorce; or

(2) Upon application of the dependent spouse as a cross action in a suit for divorce, whether absolute or from bed and board, annulment, or for alimony without divorce, instituted by the other spouse.

"(e) No order for alimony pendente lite shall be made unless the supporting spouse shall have had five days' notice thereof; but if the supporting spouse shall have abandoned the dependent spouse and left the State, or shall be in parts unknown, or is about to remove or dispose of his or her property for the purpose of defeating the claim of the dependent spouse, no notice is necessary.

"(f) When an application is made for alimony pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented.

"(g) When a district court having jurisdiction of the matter shall have been established, application for alimony pendente lite shall be made to such district court, and may be heard without a jury by a judge of said court at any time.

"(h) In any case where a claim is made for alimony without divorce, when there is a minor child, the pleading shall set forth the name and age of each such child; and if there be no minor child, the pleading shall so state."

Legal Periodicals. - For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For note discussing arbitration of domestic cases, see 4 Campbell L. Rev. 203 (1981).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-15, which dealt with alimony pendente lite and counsel fees in actions for divorce, and former G.S. 50-16, which dealt with actions for alimony without divorce.

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Enforcement of Duty of Support. - The law imposes a continuing legal duty upon a husband (supporting spouse) to support his wife (dependent spouse). Such duty is enforceable in a variety of ways: through criminal sanctions imposed for willful abandonment coupled with nonsupport, and through civil decrees granting alimony, alimony pendente lite, or alimony without divorce on the basis of misconduct or failure to support. Gray v. Snyder, 704 F.2d 709 (4th Cir. 1983).

Contractual Limitation on Duty of Support. - Duty of support is considered to be so fraught with a public interest that any contractual undertaking between a husband and wife living together and not contemplating imminent separation which purports to quantify or limit the duty is, under North Carolina law, void as against public policy. Gray v. Snyder, 704 F.2d 709 (4th Cir. 1983).

Jurisdiction over Alimony Proceedings. - The district court has jurisdiction over alimony proceedings and, indeed, the legislature has decreed that it is the only "proper" division for such a proceeding. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970). See G.S. 7A-244.

Alimony Without Divorce and Alimony Pendente Lite Are Separate Remedies. - Former G.S. 50-16 provided two remedies, one for alimony without divorce, and another for subsistence and counsel fees pending trial and final disposition of the issues involved. Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12 (1966); Myers v. Myers, 270 N.C. 263, 154 S.E.2d 84 (1967).

A party suing for divorce from bed and board may, but is not required to, apply for alimony. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

A party may seek permanent alimony upon filing for a divorce from bed and board. Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996).

Procedure Where Grounds for Alimony Are Asserted Simultaneously as Grounds for Divorce. - While it is true that the determination of dependency properly rests with the trial judge, and not with the jury, where the grounds asserted for alimony are asserted simultaneously as grounds for divorce, the right to alimony depends on the legal entitlement to divorce, regardless of financial dependency. The ordinary and correct procedure in such cases, therefore, is to allow the jury to render its verdict on the "fault" issues of divorce, and then and only then to move to a bench hearing on dependency and the proper amount, if any, of alimony. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

The term "application," as used in this section, means a motion in the cause, the procedure for which is governed by the North Carolina Rules of Civil Procedure, G.S. 1A-1. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

The legislature intended the word "application," as used in subsections (b) and (d) of this section and in G.S. 1A-1, Rule 7(b)(1), to have reference to the same kind of procedure. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Application for Alimony or Alimony Pendente Lite in Divorce Action Need Not Be Contained in Pleadings. - Nothing in this section indicates that an application for either alimony or alimony pendente lite must be contained in the pleadings or an amendment thereto in an action for absolute divorce. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Burden on Applicant for Alimony. - This section looks first to the ability of the spouses to maintain the standard of living to which they have become accustomed during the last years of the marriage. The burden on the applicant for alimony is to show the accustomed standard of living and lack of means to maintain that standard. Only then does the ability of the other spouse to pay become significant. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Application Properly Served on Defendant's Attorney. - Where motion for alimony did not specify a date for a hearing, but was served, by depositing it in the mail, properly addressed to defendant's attorney, at least five days before an already scheduled hearing, plaintiff properly proceeded to apply for alimony. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Counterclaims. - The statutes dealing specifically with divorce actions do not prescribe a procedure for counterclaims different from that prescribed in G.S. 1A-1, Rule 13(a). Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978).

There is no conflict between the statutes dealing with procedure in divorce actions and G.S. 1A-1, Rule 13(a). Rather G.S. 1A-1, Rule 13(a) superimposes an additional characteristic on certain kinds of counterclaims. Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978).

Improper venue, in an action for alimony pendente lite and alimony without divorce, 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).

Court Lacked Authority to Rule While Change of Venue Motion Was Pending. - When supporting spouse in apt time made a proper motion for change of venue under G.S. 1A-1, Rule 12(b)(3), it became a matter of right, and the district court was without authority to proceed further in the cause until the motion to remove had been determined. Since the court lacked authority to make any ruling on the merits while the motion to change venue was pending, it was error to enter an order granting alimony pendente lite and counsel fees. Little v. Little, 12 N.C. App. 353, 183 S.E.2d 278 (1971).

"Supporting Spouse" Defined. - A "supporting spouse" is a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A spouse meets the definition if he or she qualifies under either test, which essentially is the same as that applied for "dependent spouse." The primary issue is not the supporting spouse's ability to pay, but whether the spouse seeking alimony is a dependent spouse. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Determination of what constitutes a "dependent spouse" and what constitutes a "supporting spouse" requires an application of principles of statutory law to facts and therefore involves mixed questions of law and fact. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971). See G.S. 50-16.1

Accustomed Standard of Living Determinative. - It is not necessary that a spouse be reduced to penury to be considered dependent; the accustomed standard of living is the proper measure. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427 (1984).

Vacation of Consent Judgments Without Making Specific Findings Held Error. - While a consent order for alimony or alimony pendente lite may be modified or vacated at any time upon motion and a showing of changed circumstances, where defendant husband offered some evidence of changed circumstances but the trial court failed to comply with the statutory mandate as to the making of specific findings, and erroneously ruled that consent judgments were invalid for failure of the court to make a finding of dependency, the cause would be remanded for a de novo hearing. Cox v. Cox, 36 N.C. App. 573, 245 S.E.2d 94 (1978).

Judgment as Judicial Separation for Purpose of G.S. 50-6. - A judgment in an action instituted under former G.S. 50-16 decreeing that the husband had willfully abandoned the wife and awarding her support and maintenance constituted a judicial separation which, two years (now one year) thereafter, would permit the husband to obtain an absolute divorce. Rouse v. Rouse, 258 N.C. 520, 128 S.E.2d 865 (1963).

Action for Divorce Not Defeated by Order for Support. - An order for support, either pendente lite or for alimony without divorce, without more, would not perforce defeat an action for divorce under G.S. 50-6. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943).

Binding Arbitration Available. - Since the parties may settle spousal support by agreement, there exists no prohibition to their entering into binding arbitration under former G.S. 1-567.1 through 1-567.20 to settle the issue of spousal support. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

But Not by Court Order. - Binding arbitration is not available in this State by court order in a civil action for alimony, custody and child support. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Court May Not Delegate Duties to Arbitration. - While, in the absence of court proceedings, parties may settle their disputes by arbitration, once the issues are brought into court, the court may not delegate its duty to resolve those issues to arbitration. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Advantages of Binding Arbitration for Dependent Spouse. - In light of the fact that the right of a dependent spouse to support and maintenance is a property right which can be released by contract, the advantages to binding and nonmodifiable arbitration outweigh its disadvantages. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Effect of G.S. 14-322. - G.S. 14-322, requiring the State to show the husband's willful abandonment of his wife, etc., beyond a reasonable doubt, does not deprive the wife of her civil remedies. State v. Falkner, 182 N.C. 793, 108 S.E. 756 (1921).

Determining Proper Amount of Counsel Fees. - The trial court is under an obligation to conduct a broad inquiry in making its determination of the proper amount of counsel fees which are to be awarded a dependent spouse as litigant, considering as relevant factors the nature and worth of the services rendered, the magnitude of the task imposed upon counsel, and reasonable consideration for the parties' respective conditions and financial circumstances. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

It would be contrary to what the court perceives to be the intent of the legislature to require a dependent spouse to meet the expenses of litigation through the unreasonable depletion of her separate estate where her separate estate is considerably smaller than that of the supporting spouse. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Findings of Fact Lacking. - Trial court erred in denying a wife's request for postseparation support because the court made no factual findings supporting the court's reasons. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Appellate Review. - The granting or denial of a motion for temporary alimony (pendente lite) is within the discretion of the trial judge and as such is normally not reviewable on appeal. However, the same may not be said about a dismissal of an action for alimony without divorce. Holcomb v. Holcomb, 7 N.C. App. 329, 172 S.E.2d 212 (1970).

Applied in Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969); Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970); Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833 (1970); Briggs v. Briggs, 21 N.C. App. 674, 205 S.E.2d 547 (1974); Simmons v. Simmons, 22 N.C. App. 68, 205 S.E.2d 582 (1974); Yearwood v. Yearwood, 287 N.C. 254, 214 S.E.2d 95 (1975); Guy v. Guy, 27 N.C. App. 343, 219 S.E.2d 291 (1975); Hill v. Hill, 27 N.C. App. 423, 219 S.E.2d 273 (1975); Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193 (1976); Harris v. Harris, 58 N.C. App. 314, 293 S.E.2d 602 (1982); Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985).

Cited in Harper v. Harper, 9 N.C. App. 341, 176 S.E.2d 48 (1970); Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627 (1971); Howell v. Howell, 19 N.C. App. 260, 198 S.E.2d 462 (1973); Therrell v. Therrell, 19 N.C. App. 321, 198 S.E.2d 776 (1973); Hogue v. Hogue, 20 N.C. App. 583, 202 S.E.2d 327 (1974); Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Blake v. Blake, 34 N.C. App. 160, 237 S.E.2d 310 (1977); Davis v. Davis, 35 N.C. App. 111, 240 S.E.2d 488 (1978); Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466 (1978); Hamilton v. Hamilton, 36 N.C. App. 755, 245 S.E.2d 399 (1978); Benson v. Benson, 39 N.C. App. 254, 249 S.E.2d 877 (1978); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Wyatt v. Hollifield, 114 N.C. App. 352, 442 S.E.2d 149 (1994); Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006); Sorey v. Sorey, 233 N.C. App. 682, 757 S.E.2d 518 (2014).

II. ALIMONY WITHOUT DIVORCE.

Suits for alimony without divorce are within the analogy of divorce laws. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

Procedure in Actions for Alimony Without Divorce. - This section changes the procedure to be followed in actions for alimony without divorce from the divorce procedure set forth in G.S. 50-10 to the procedure applicable to other civil actions. Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972).

Upon application for a postseparation support award, the trial court might grant or deny awards based upon paper filings at abbreviated hearings conducted early in the litigation process and prior to significant discovery. Wells v. Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).

Inapplicability of Residency Requirement. - The residency requirement of G.S. 50-8 is not applicable in an action for alimony without divorce. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), overruled on other grounds, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

Residence is a condition to the maintenance of an action for divorce, but this was not true of an action brought under former G.S. 50-16. Harris v. Harris, 257 N.C. 416, 126 S.E.2d 83 (1962).

Venue of Suit for Alimony Without Divorce - County of Wife's Residence. - Suits for alimony without divorce are within the analogy of divorce laws, and where a wife was forced by her husband's conduct to leave his residence, she could bring an action for alimony without divorce in the county where she resided, notwithstanding the provision of former G.S. 50-16 that "the wife may institute an action in the superior court of the county in which the cause of action arose." Rector v. Rector, 186 N.C. 618, 120 S.E. 195 (1923).

A wife who was forced by her husband to leave his home and take refuge elsewhere could acquire a separate domicile, and could sue him for alimony without divorce in the county of her residence, and the husband was not entitled to removal to the county of his residence as a matter of right under the provisions of former G.S. 50-16 and G.S. 1-82 and 50-3. Miller v. Miller, 205 N.C. 753, 172 S.E. 493 (1934).

Same - County Where Parties Were Living at Time of Abandonment. - The wife may institute action for alimony without divorce in the county in which the parties were living at the time of the husband's alleged abandonment. Robbins v. Robbins, 262 N.C. 749, 138 S.E.2d 632 (1964).

Plaintiff, though she and defendant were both domiciled in South Carolina, was allowed to maintain an action under former G.S. 50-16 in a county in North Carolina where defendant had large properties, including a farm and house in which the parties were living when defendant abandoned plaintiff. Harris v. Harris, 257 N.C. 416, 126 S.E.2d 83 (1962).

Same - Action by Nonresident. - Intent of plaintiff, a nonresident, to establish a residence in the future in Madison County did not authorize a trial of the suit in that county, but the proper place for trial was in Haywood County, where defendant was a resident. Burrell v. Burrell, 243 N.C. 24, 89 S.E.2d 732 (1955).

Action for Alimony Not Abated by Prior Action of Husband for Absolute Divorce. - The prior institution of an action by the husband for an absolute divorce does not abate the wife's subsequent action for alimony without divorce, nor deprive the court of power to award her alimony and counsel fees pendente lite therein. Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641 (1949).

The pendency of the husband's action for absolute divorce under G.S. 50-6 is not ground for abatement of the wife's subsequent action for alimony without divorce. Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17 (1957), commented on in 36 N.C.L. Rev. 203 (1958).

If an action for absolute divorce is instituted and the wife is the defendant therein, she is not estopped from bringing an action for alimony without divorce during the pendency of such action. Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857 (1962).

Action for Alimony Barred by Verdict in Divorce Action. - The doctrine of res judicata applies to divorce actions as well as other civil cases, and hence the fact that the wife has the alternate remedy of independent action or a cross-action to secure alimony without divorce does not authorize her to bring an independent action based upon abandonment when the issue of abandonment has theretofore been determined adversely to her by verdict of the jury in the husband's action for divorce on the grounds of separation. Garner v. Garner, 268 N.C. 664, 151 S.E.2d 553 (1966).

Effect of Prior Divorce in Another State. - No action will lie for alimony without divorce where it appears that the court of a state having jurisdiction over the parties has declared them not husband and wife. Bidwell v. Bidwell, 139 N.C. 402, 52 S.E. 55 (1905).

Complaint Praying for Subsistence and Other Relief as Action for Alimony Without Divorce. - Where a complaint alleges certain acts of misconduct constituting bases for divorce, both absolute and from bed and board, with prayer for relief demanding subsistence for the plaintiff and the minor child of the marriage and for such other relief as may be just and proper, without prayer for divorce, the cause is an action for alimony without divorce. Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909 (1946).

Cross-Action for Alimony Without Divorce. - A wife may assert a cause of action for alimony without divorce as a cross-action in the husband's suit for divorce. Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478 (1963).

The 1955 amendment to former G.S. 50-16 gave a wife the right to set up a cross-action for alimony without divorce in the husband's suit for divorce, either absolute or from bed and board, without disturbing the right of the wife to bring an independent action under the statute for alimony without divorce, the alternative procedure being permissive but not mandatory. Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17 (1957).

Former G.S. 50-16, as it stood before the 1955 amendment, could not be used by the wife as the basis of a cross-action in a suit for divorce instituted by the husband. Silver v. Silver, 220 N.C. 191, 16 S.E.2d 834 (1941); Shore v. Shore, 220 N.C. 802, 18 S.E.2d 353 (1942). See also, Ericson v. Ericson, 226 N.C. 474, 38 S.E.2d 517 (1946).

Notice of Intended Cross-Action Does Not Preclude Taking of Voluntary Nonsuit. - Plaintiff, in an action for absolute divorce, is entitled as a matter of right to take a voluntary nonsuit upon paying costs and alimony pendente lite to the date of motion, notwithstanding he has had notice of defendant's intention to file a cross-action for alimony without divorce, and where the nonsuit has been taken, no action is pending in which defendant may amend her answer to assert such cross-action. Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478 (1963).

Requirements of Complaint. - The complaint in an action for alimony without divorce must allege facts sufficient to constitute a good cause of action under the provision of the statute for the court to allow wife (dependent spouse) from the estate or earnings of her husband (supporting spouse) a reasonable support and counsel fees, and when the wife alleges only that she has left her husband because he failed to fulfill his promise to supply certain conveniences, this is insufficient. McManus v. McManus, 191 N.C. 740, 133 S.E. 9 (1926).

The plaintiff, in an action for alimony without divorce on the ground of abandonment, is not required to allege the acts and conduct relied upon as the basis of the action with that degree of particularity as is required when the cause of action is based on such indignities to the person of plaintiff as to render her condition intolerable and life burdensome. Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79 (1960).

In an action for alimony without divorce, allegations that the husband had been abusive and violent toward plaintiff and that she had been made to fear for her safety were insufficient, it being necessary that plaintiff allege specific acts of misconduct on the part of the husband so that the court could determine whether his conduct was in fact such as constituted cause for divorce from bed and board, and that plaintiff also specify what, if anything, she did or said at the time, in order that the court could determine whether she provoked the difficulty. Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420 (1955).

The essential elements required to be alleged in an action for alimony without divorce are (1) separation of the husband (supporting spouse) from the wife (dependent spouse), and (2) his failure to provide her with necessary subsistence according to his means and condition in life. Trull v. Trull, 229 N.C. 196, 49 S.E.2d 225 (1948); Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228 (1960).

In an action for alimony without divorce, it suffices for wife (dependent spouse) to allege and prove (1) the existence of a valid marriage between the parties, and (2) that the husband (supporting spouse) has separated himself from the wife and failed to provide her (and the children of the marriage) with necessary subsistence according to his means, or, instead of the latter, that the husband is a drunkard or spendthrift. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923 (1953).

A wife's complaint states a cause of action for alimony without divorce under the statute if it alleges separation without providing subsistence, or alleges that the husband (supporting spouse) is a drunkard or spendthrift or is guilty of any misconduct or acts that would be or constitute cause for divorce either absolute or from bed and board. Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852 (1962).

To state a cause of action for alimony without divorce it is necessary to allege: (1) the marriage, (2) the separation of the husband (supporting spouse) from the wife (dependent spouse) and his failure to provide the wife and children of the marriage reasonable subsistence, i.e., abandonment, or some conduct on the part of the husband constituting cause for divorce, either absolute or from bed and board, and (3) want of provocation on the part of the wife. Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148 (1964).

Allegation That Acts of Husband Were Without Provocation - In General. - An allegation in an action for alimony without divorce that the separation of defendant from plaintiff wife was without fault or misconduct on her part was a sufficient allegation that husband's acts were without provocation on her part. Trull v. Trull, 229 N.C. 196, 49 S.E.2d 225 (1948).

In an action for alimony without divorce, as in an action for divorce a mensa et thoro by the wife (dependent spouse), she must not only set out with some particularity the acts of cruelty upon the part of the husband (supporting spouse), but she must also aver, and consequently offer proof, that such acts were without adequate provocation on her part. The omission of such allegations is fatal. Howell v. Howell, 223 N.C. 62, 25 S.E.2d 169 (1943); Best v. Best, 228 N.C. 9, 44 S.E.2d 214 (1947); Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420 (1955).

In an action by the wife (dependent spouse) for alimony without divorce on the ground of mistreatment constituting constructive abandonment, the absence of an allegation that defendant's misconduct was without adequate provocation is fatal. Barker v. Barker, 232 N.C. 495, 61 S.E.2d 360 (1950).

Same - Where Adultery Is Charged. - Where a complaint alleges adultery and also sets forth acts of misconduct constituting a basis for divorce from bed and board, the failure of the complaint to allege that the misconduct was without adequate provocation is not fatal, since such allegation is not necessary in an action for absolute divorce on the ground of adultery, and this ground, independently, is sufficient to sustain the action for alimony without divorce. Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909 (1946).

Allegations Held Sufficient. - Allegations in an action for alimony without divorce to the effect that defendant constantly mistreated plaintiff and offered such indignities to her person as to endanger her health and safety and forced her to separate herself from defendant, that defendant drank excessively and failed to provide for her support, and that plaintiff had at all times been a dutiful wife, were sufficient to state a cause of action for alimony without divorce, and defendant's demurrer thereto was properly overruled. Bateman v. Bateman, 232 N.C. 659, 61 S.E.2d 909 (1950).

Allegation that defendant had become an habitual drunkard constituted a ground for divorce from bed and board, and hence was sufficient to support an action for alimony without divorce even though other insufficient allegations also appeared in the complaint. Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325 (1956).

For case in which allegations were held sufficient, see also Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420 (1955).

Allegations Deemed Denied. - G.S. 50-10 applies to actions for alimony without divorce, and all allegations of the complaint are deemed denied whether actually denied by pleadings or not. Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790 (1961).

Where plaintiff did not reply and expressly deny defendant's allegations of adultery, but these allegations did not relate to a counterclaim, they were taken as controverted. Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793 (1962).

Indefinite Allegations in Answer. - Vague and indefinite allegations of infidelity on the part of a wife made by a husband in his answer to her complaint in a proceeding for support and maintenance would not be allowed to affect the question of the husband's liability in such proceedings. Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895).

Parties May Waive Jury Trial. - Issues of fact in an action for alimony without divorce may be determined by the judge if a jury trial is waived by failure to make timely demand pursuant to G.S. 1A-1, Rule 38(b), since this section changes the procedure to be followed in actions for alimony without divorce from the divorce procedure set forth in G.S. 50-10 to the procedure applicable to other civil actions. Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

Judge May Not Determine Facts upon Evidence Introduced at Another Trial. - The trial judge may not pass upon the issuable facts in proceedings for alimony without divorce upon evidence introduced before him theretofore upon a trial of the husband for criminal abandonment, etc., of which he was acquitted, when the witnesses are present and ready to testify. Crews v. Crews, 175 N.C. 168, 95 S.E. 149 (1918), distinguishing Cooper v. Southern R.R., 170 N.C. 490, 87 S.E. 322 (1915).

The only material facts at issue in the action for alimony without divorce are the questions of the existence of the marriage relation and whether the husband abandoned the wife. Skittletharpe v. Skittletharpe, 130 N.C. 72, 40 S.E. 851 (1902); Hooper v. Hooper, 164 N.C. 1, 80 S.E. 64 (1913).

Finding of Facts by Judge. - In a wife's application for alimony without divorce, it was not required by former G.S. 50-16 that the judge hearing the matter should find the facts as a basis for his judgment, as was required in proceedings for alimony pendente lite under former G.S. 50-15, although it was necessary that wife allege sufficient facts to constitute a good cause of action thereunder. Price v. Price, 188 N.C. 640, 125 S.E. 264 (1924); Vincent v. Vincent, 193 N.C. 492, 137 S.E. 426 (1927).

Attack on Consent Judgment by Infant's Guardians. - Where the court in proceedings for alimony without divorce approves a consent judgment providing for the support and subsistence of the defendant's wife and child, the validity of such consent judgment may be later attacked by the child's authorized guardians on the ground of irregularity and that it is not binding on the minor. In re Reynolds, 206 N.C. 276, 173 S.E. 789 (1934).

III. ALIMONY PENDENTE LITE.

.

An application for alimony pendente lite may be made by motion in the cause. Reeves v. Reeves, 82 N.C. 348 (1880), overruled on other grounds, Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918).

The resident judge of the district has the jurisdiction to hear and determine the motion for reasonable subsistence and counsel fees pendente lite in an action for alimony without divorce. Herndon v. Herndon, 248 N.C. 248, 102 S.E.2d 862 (1958).

Where Motion May Be Heard. - Insofar as alimony pendente lite and counsel fees for plaintiff are concerned, a hearing could be held on proper notice anywhere in the judicial district. Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962).

A motion for alimony pendente lite may be heard anywhere in the judicial district. Moore v. Moore, 130 N.C. 333, 41 S.E. 943 (1902).

As may a motion to reduce alimony. Moore v. Moore, 131 N.C. 371, 42 S.E. 822 (1902).

But a resident judge holding court in another district cannot hear a motion to reduce alimony pendente lite in a suit pending in the district in which he resides. Moore v. Moore, 131 N.C. 371, 42 S.E. 822 (1902).

Motion May Be Heard Out of Term. - In an action for alimony without divorce, a motion for alimony pendente lite may be heard out of term, after five days' notice to the husband. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

Alimony pendente lite may be allowed before the return term if the complaint has been filed. Moore v. Moore, 130 N.C. 333, 41 S.E. 943 (1902).

Effect of Suit for Divorce Instituted After Suit for Alimony. - Where, after the wife instituted a suit for alimony without divorce, in which action the question of the custody of the minor child of the marriage was not raised, the husband instituted suit for absolute divorce, it was held that the 1953 amendment to former G.S. 50-16 did not affect the jurisdictional power of the court to award subsistence for the mother and child pendente lite in her action. Barnwell v. Barnwell, 241 N.C. 565, 85 S.E.2d 916 (1955).

Necessity for Notice to Defendant. - An order entered in action for alimony without divorce requiring defendant to pay subsistence and counsel fees pendente lite is void when the order is entered without notice to defendant. Barnwell v. Barnwell, 241 N.C. 565, 85 S.E.2d 916 (1955).

An order allowing alimony pendente lite without notice is void. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962).

The provision in former G.S. 50-15 requiring five days' notice applied only when the motion was heard out of term; and parties were fixed with notice of all motions or orders made during the term of the court. Coor v. Smith, 107 N.C. 430, 11 S.E. 1089 (1890); Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893); Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917).

An order of court continuing the motion for alimony to a future term of court made in the presence of counsel for both parties was sufficient notice, under former G.S. 50-15, of such motion. Lea v. Lea, 104 N.C. 603, 10 S.E. 488 (1889).

When Notice Dispensed with. - An affidavit of the wife that husband had left the State the day after the filing of the complaint and that she had good reason to believe that he had left to defeat her claim for alimony, having been selling his property for several months with that purpose in view, dispensed with the necessity of notice. Barker v. Barker, 136 N.C. 316, 48 S.E. 733 (1904).

Where the supporting spouse abandons the dependent spouse and leaves the State, notice of hearing on motion for alimony pendente lite is not required, nor is service on the supporting spouse's counsel of record required. Fungaroli v. Fungaroli, 40 N.C. App. 397, 252 S.E.2d 849 (1979), cert. denied and appeal dismissed, 446 U.S. 930, 100 S. Ct. 2144, 64 L. Ed. 2d 783 (1980).

Specification of Time of Hearing. - The fact that a notice of a motion for alimony pendente lite, duly served upon the defendant, did not specify the time of hearing, did not invalidate the order allowing the same, it having been heard at a time of court at which the cause stood regularly for trial. Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334 (1893).

Whether the wife is entitled to alimony pendente lite is a question of law, upon the facts found, and is reviewable on appeal by either party. Morris v. Morris, 89 N.C. 109 (1883); Moore v. Moore, 130 N.C. 333, 41 S.E. 943 (1902); Barker v. Barker, 136 N.C. 316, 48 S.E. 733 (1904).

Jury Trial Not Required. - In respect of allowances for alimony and counsel fees pendente lite, the allowances pendente lite form no part of the ultimate relief sought and do not affect the final rights of the parties, and the power of the judge to make them is constitutionally exercised without the intervention of the jury. Davis v. Davis, 269 N.C. 120, 152 S.E.2d 306 (1967).

Pursuant to subsection (g) of this section, a supporting spouse is not entitled to a jury trial on the matter of alimony pendente lite. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

Power of Court to Require Disclosure of Information. - The court has jurisdiction of the parties and has plenary power and authority to require the disclosure of any information which is within their knowledge or is available to them bearing upon a temporary allowance. It is not necessary that the parties agree as to what the husband's income is. The findings of the court will not be disturbed if based on competent evidence. Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961).

Right of Defendant to Offer Evidence. - Where it affirmatively appeared that defendant was not permitted to offer evidence which was pertinent to the allegations of the complaint, exception thereto would be sustained. Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964).

Discretion of Judge as to Form of Evidence. - The words "may be heard in or out of term, orally or upon affidavit, or either or both" in former G.S. 50-16 gave the judge hearing the motion for alimony pendente lite the discretion to decide in what form he should receive the evidence in his efforts to ascertain the truth. Miller v. Miller, 270 N.C. 140, 153 S.E.2d 854 (1967).

Judge Must Pass on Truth or Falsity of Evidence. - When the issue has been raised as to whether the husband has separated himself from the wife, it is not sufficient that the judge merely examine the evidence or testimony to see whether there is any evidence to support plaintiff's charges or allegations which would operate as a prima facie showing. He must, by application of his sound judgment, pass upon its truth or falsity and find according to his conviction. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

And Must Make Findings of Fact. - The provision of G.S. 1A-1, Rule 52(a)(2) that the trial judge is not required to make findings of fact unless requested to do so by a party does not abrogate the specific requirement of subsection (f) of this section that the trial judge shall make findings of fact upon an application for alimony pendente lite, since the Rules of Civil Procedure are of general application and do not abrogate the requirements of a statute of more specificity. Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33 (1970).

G.S. 1A-1, Rule 52 does not apply in awarding alimony pendente lite. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

While the precise factual findings which must be made under subsection (f) of this section will vary depending upon the pleadings, evidence and circumstances of each case, the trial judge must make sufficient findings of the controverted material facts at issue to show that the award of alimony pendente lite is justified and appropriate. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971); Presson v. Presson, 13 N.C. App. 81, 185 S.E.2d 17 (1971).

But Detailed Findings Are Not Required. - In making findings of fact under subsection (f) of this section, it is not necessary that the trial judge make detailed findings as to each allegation and evidentiary fact presented. It is only necessary that he find the ultimate facts sufficient to establish that the dependent spouse is entitled to an award of alimony pendente lite under the provisions of G.S. 50-16.3(a). Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87 (1969).

In making findings of fact, it is not necessary that the trial judge make detailed findings as to each allegation and evidentiary fact presented. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Findings Must Show That Award Is Justified. - The Court of Appeals does not interpret subsection (f) of this section to require the trial judge to make findings as to each allegation and evidentiary fact presented. However, it is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case. Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33 (1970); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972); Newsome v. Newsome, 22 N.C. App. 651, 207 S.E.2d 355 (1974).

It is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

And the judge must find ultimate facts sufficient to establish that the dependent spouse is entitled to an award of alimony pendente lite under the provisions of G.S. 50-16.3(a). Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

As Well as Specific Factual Findings as to Ultimate Facts. - Specific factual findings as to each ultimate fact at issue upon which the rights of the litigants are predicated must be found. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

As to what are evidentiary facts and what are ultimate facts, see Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Finding of Fact as Narrative Statement of Ultimate Fact. - A finding of fact in an alimony pendente lite matter is a narrative statement by the trial judge of the ultimate fact at issue and need not include the evidentiary or subsidiary facts required to prove the ultimate facts. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

Findings that the defendant left the home on July 21, 1970, had abandoned the plaintiff, and had failed to provide adequate support for her were a narrative statement of some of the ultimate facts at issue, and were not conclusions. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

The ultimate facts at issue in proceedings often differ, and thus a necessary finding of facts in one case may not be necessary in another case. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

The findings of fact in any given case should be "tailor-made" to settle the matters at issue between the parties. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Present Requirement for Findings of Fact Is Departure from Previous Practice. - The present statutory requirement for findings of fact by the trial judge in pendente lite awards of alimony is a departure from the practice as it existed prior to October 1, 1967. Hatcher v. Hatcher, 7 N.C. App. 562, 173 S.E.2d 33 (1970); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

The requirement of subsection (f) of this section that facts be found to support an award of alimony is a new one imposed by Session Laws 1967, c. 1153, s. 2. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).

The statutory requirement for findings of fact changes the prior rule that no findings of fact were necessary in alimony pendente lite matters unless adultery was charged against the wife. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972).

The distinction between the "finding of facts" and the "stating of conclusions" by the trial judge after he has heard the evidence in an alimony pendente lite matter is somewhat analogous to the distinction between a witness testifying as to a "fact" and stating his "opinion." Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Facts are the basis for conclusions, and to call a "conclusion" a "finding of fact" does not make it one. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971).

Facts found in an alimony pendente lite case must be determinative of all questions at issue. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

A failure to make a proper finding of fact in a matter at issue will result in prejudicial error, especially where the evidence is conflicting. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138 (1971); Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

Award of permanent alimony ordinarily terminates an order for subsistence pendente lite or counsel fees. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Where a pendente lite order by its express language was effective only "pending the trial of this action," it was in all respects superseded by the rendition of the final judgment. Clarke v. Clarke, 47 N.C. App. 249, 267 S.E.2d 361 (1980).

Stay of Execution Pending Appeal. - Where alimony pendente lite is allowed, and the husband (supporting spouse) appeals from such order, an injunction should be granted to stay execution against the property of the husband pending the appeal. Barker v. Barker, 136 N.C. 316, 48 S.E. 733 (1904).


§ 50-16.9. Modification of order.

  1. An order of a court of this State for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. This section shall not apply to orders entered by consent before October 1, 1967.
  2. If a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate. Postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse.
  3. When an order for alimony has been entered by a court of another jurisdiction, a court of this State may, upon gaining jurisdiction over the person of both parties in a civil action instituted for that purpose, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes such order for alimony to the extent that it could have been so modified in the jurisdiction where granted.

Any motion to modify or terminate alimony or postseparation support based on a resumption of marital relations between parties who remain married to each other shall be determined pursuant to G.S. 52-10.2.

As used in this subsection, cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. Nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes.

History

(1871-2, c. 193, ss. 38, 39; 1883, c. 67; Code, ss. 1291, 1292; Rev., ss. 1566, 1567; 1919, c. 24; C.S., ss. 1666, 1667; 1921, c. 123; 1923, c. 52; 1951, c. 893, s. 3; 1953, c. 925; 1955, cc. 814, 1189; 1961, c. 80; 1967, c. 1152, s. 2; 1987, c. 664, s. 3; 1995, c. 319, s. 7.)

Cross References. - As to distribution by court of marital property upon divorce, see G.S. 50-20.

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319 read as follows: " Modification of order.

"(a) An order of a court of this State for alimony or alimony pendente lite, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. This section shall not apply to orders entered by consent before October 1, 1967.

"Any motion to modify or terminate alimony or alimony pendente lite based on a resumption of marital relations between parties who remain married to each other shall be determined pursuant to G.S. 52-10.2.

"(b) If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate.

"(c) When an order for alimony has been entered by a court of another jurisdiction, a court of this State may, upon gaining jurisdiction over the person of both parties in a civil action instituted for that purpose, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes such order for alimony to the extent that it could have been so modified in the jurisdiction where granted."

Legal Periodicals. - For a survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

For note on reinstatement of alimony under a prior divorce decree after annulment of remarriage, see 14 Wake Forest L. Rev. 273 (1978).

For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For note on specific performance of separation agreements, see 58 N.C.L. Rev. 867 (1980).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For note on separability of support and property provisions in ambiguous separation agreements, see 16 Wake Forest L. Rev. 152 (1980).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For note on consent judgments in family law in light of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), see 6 Campbell L. Rev. 125 (1984).

For note, "Discarding the Dual Consent Judgment Approach in Family Law in Light of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983)," see 20 Wake Forest L. Rev. 297 (1984).

For note, "Alimony Modification and Cohabitation in North Carolina," see 63 N.C.L. Rev. (1985).

For survey, "Termination of Lump Sum Alimony upon the Remarriage of a Dependent Spouse: Potts v. Tutterow," see 73 N.C.L. Rev. 2432 (1995).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former G.S. 50-14, which dealt with alimony in actions for divorce a mensa et thoro, former G.S. 50-15, which dealt with alimony pendente lite in divorce actions, and former G.S. 50-16, which dealt with actions for alimony without divorce.

Former G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Jurisdiction Under Long-Arm Statute. - This section provides only that an alimony order entered by a court of another jurisdiction may be modified by a court of this State "upon gaining jurisdiction over the person of both parties"; therefore, statutory jurisdiction arises, if at all, under G.S. 1-75.4, the North Carolina "long-arm" statute. Schofield v. Schofield, 78 N.C. App. 657, 338 S.E.2d 132 (1986).

Money payments are "things of value" within the meaning of G.S. 1-75.4(5)d, the long-arm statute; thus, in an action brought by resident husband against nonresident wife to have alimony obligation reduced or terminated, statutory jurisdiction existed. However, under the circumstances, defendant did not have sufficient minimum contacts with North Carolina and her motion to dismiss for lack of personal jurisdiction was improperly denied. Schofield v. Schofield, 78 N.C. App. 657, 338 S.E.2d 132 (1986).

Alimony Award Held Fair to Both Wife and Husband. - Because a husband's estate was substantially larger than a wife's estate, it would have been unfair to require the wife to further deplete her estate while allowing the husband to maintain his; because a modified alimony award required both parties to deplete their estates to meet their living expenses, award was fair to both parties. 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).

An order for payment of alimony is not a final judgment, since it may be modified upon application of either party; thus, an action for alimony would continue to be "pending" in the court of proper jurisdiction, which is now the district court. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2 (1970).

A final judgment could not be entered under former G.S. 50-16, as the necessity of such provisions for the wife and children would cease if the parties resumed the marriage relation, and could not properly be continued if the husband procured a divorce for the fault of the wife. Skittletharpe v. Skittletharpe, 130 N.C. 72, 40 S.E. 851 (1902); Hooper v. Hooper, 164 N.C. 1, 80 S.E. 64 (1913); Crews v. Crews, 175 N.C. 168, 95 S.E. 149 (1918).

An order entered under former G.S. 50-16 was not a final determination and did not affect the final rights of the parties. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963).

And the allowance is subject to modification from time to time. Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220 (1961).

The court may reopen and amend prior orders awarding subsistence to wife and children. Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555 (1940).

Where, within the exercise of his sound discretion, the judge having jurisdiction has allowed the wife a reasonable subsistence, attorneys' fees, etc., in her proceedings for alimony without divorce, the order of allowance may be thereafter modified or vacated as the statute provides upon application to the proper jurisdiction for the circumstances to be inquired into and the merits of the case determined. Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922).

Modification of Alimony Improper Where Motion Only Sought Modification of Child Support. - Where, the only motion before the trial court was one for modification of child support, not alimony, and at no point in the proceedings did either party move for modification of the alimony payments, order modifying alimony agreement would be reversed. Van Nynatten v. Van Nynatten, 113 N.C. App. 142, 438 S.E.2d 417 (1993).

Upon a Showing of Changed Conditions. - An order for support is not final, and may be modified or set aside on a showing of changed conditions. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943).

An order for the payment of alimony is res judicata between the parties, but is not a final judgment, since the court has the power, upon application of either party, to modify the order for changed conditions of the parties. Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204 (1940).

An award of subsistence for defendant and the children born of the marriage, decreed by a court in conjunction with a divorce a mensa et thoro, before the commencement of a proceeding by the wife for a divorce a vincula under the provisions of G.S. 50-6, which she obtained, can be increased in amount by the court in its discretion, on her motion in the action when and where subsistence was awarded, when changed circumstances of the parties reasonably require it. Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399 (1955).

A court may vacate or modify its prior award of either permanent or temporary alimony upon a showing of changed circumstances. Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85 (1978).

Although there is no requirement that the alimony be modified, upon a showing of changed circumstance, the trial court should consider, in its discretion, whether to modify the original decree of alimony. Cunningham v. Cunningham, 121 N.C. App. 771, 468 S.E.2d 466 (1996), rev'd on other grounds, 345 N.C. 430, 480 S.E.2d 403 (1997).

Changed Circumstances Relating to Factors in Original Determination of Alimony. - Only those changed circumstances that relate to the factors used in the original determination of the amount of alimony awarded are relevant to a request for modification. Kowalick v. Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998).

Modification Referable to Date Petition Filed. - Orders which modify alimony or support payments effective as of the date of the petition, or subsequent thereto, but prior to the date of the order of modification, are not subject to the criticism that they have retroactive effect which destroys vested rights. This is true because the modification and the whole proceeding in which it is made are referable to the date of the filing of the petition and any change effective as of that date cannot be said to be retroactive. Hill v. Hill, 335 N.C. 140, 435 S.E.2d 766 (1993).

Trial court did not err in modifying the husband's alimony obligation back to the date of his motion to modify alimony based upon depletion of his estate because it correctly considered the comparison of the estates of the parties, nor did it abuse its discretion by basing the alimony award on a combination of the husband's estate and his current income recognizing that his estate would be depleted to maintain the alimony obligation during his time of unemployment, even in the absence of bad faith or imputation of income for purposes of alimony. Hill v. Hill, 261 N.C. App. 600, 821 S.E.2d 210 (2018).

Improper Finding That Wife Had Cohabited - Trial court erred in finding that a husband did not breach a separation agreement; trial court improperly found that the wife had cohabited pursuant to the terms of G.S. 50-16.9(b), because the trial court failed to make adequate findings of fact as required by G.S. 1A-1, Rule 52(a)(1); therefore, the trial court erred in finding that the husband was no longer obligated to pay alimony. Long v. Long, 160 N.C. App. 664, 588 S.E.2d 1 (2003).

Findings on Subjective Intent. - Trial court did not err by failing to make findings regarding the subjective intent of a former wife and the man she was dating because the trial court's findings addressing the "objective evidence" were sufficient to support the conclusion that cohabitation did not occur, Smallwood v. Smallwood, 227 N.C. App. 319, 742 S.E.2d 814 (2013).

Effect on Alimony of Contract Regarding Cohabitation. - Although the statute provides for termination of court-ordered alimony upon cohabitation by the dependent spouse, parties are free to enter into a contract providing otherwise. Bradshaw v. Bradshaw, 264 N.C. App. 669, 826 S.E.2d 779 (2019).

Support Payments Not Part of Integrated Agreement. - The opinion in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983) did not change the law in North Carolina that property settlement provisions of a separation agreement included in a consent decree are beyond the power of the judge to modify without the consent of both parties, nor did it change the law in North Carolina which prohibits the modification of support provisions of an integrated property settlement agreement; however, since support payments not part of an integrated agreement are modifiable by law, Walters would allow such support provisions to be modified if included in a court-ordered decree at the request of the parties. Hayes v. Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990).

But a New Order for Alimony After Final Divorce Is Not Authorized. - Although an order granting alimony may be modified, when a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter a new order for alimony. Baugh v. Baugh, 44 N.C. App. 50, 260 S.E.2d 161 (1979).

Order for subsistence pendente lite may be modified at any time before the trial on application of either party. Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963).

Material Change Not Required for Modification of Order for Alimony Pendente Lite. - An order for subsistence pendente lite may be modified at any time before trial on application of either party without a finding of a material change of condition. Snuggs v. Snuggs, 260 N.C. 533, 133 S.E.2d 174 (1963).

Either Party May Apply for Modification of Award of Alimony Pendente Lite. - The amounts allowed for reasonable subsistence and counsel fees upon application for alimony pendente lite are determined by the trial court in its discretion and are not reviewable, although either party may apply for a modification before trial. Tiedemann v. Tiedemann, 204 N.C. 682, 169 S.E. 422 (1933).

Alimony regularly ordered to be paid a wife pendente lite may be increased or reduced in amount by the court from time to time, but that which she has already received in the course and practice of the courts may not be ordered to be given up by her. White v. White, 179 N.C. 592, 103 S.E. 216 (1920).

Power to Modify Includes Power to Terminate Award. - The power to modify includes, in a proper case, power to terminate the award absolutely. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

This power to modify includes the power to terminate alimony altogether. Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).

Survival of Lump Sum Award. - A lump sum alimony award that has vested prior to the dependent spouse's remarriage survives the remarriage. Potts v. Tutterow, 114 N.C. App. 360, 442 S.E.2d 90 (1994), aff'd, 340 N.C. 97, 455 S.E.2d 156, reh'g denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Lump Sum's Failure to Vest. - Lump sum award did not vest prior to the defendant's remarriage where defendant was only entitled to semi-monthly payments and if plaintiff failed to make one of the payments, defendant could only execute on that amount. Potts v. Tutterow, 114 N.C. App. 360, 442 S.E.2d 90 (1994), aff'd, 340 N.C. 97, 455 S.E.2d 156, reh'g denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Change of Dependent Spouse Status Not Contemplated. - Although dependent spouse status is not properly reconsidered on a motion for modification and a change in circumstances could result in a reduction of alimony to zero, such modification does not result in the loss of dependent spouse status. Kowalick v. Kowalick, 129 N.C. App. 781, 501 S.E.2d 671 (1998).

This section does not contemplate that the jury should pass on requests for reductions in alimony because of changed circumstances; the motion is addressed to the trial judge. Shankle v. Shankle, 26 N.C. App. 565, 216 S.E.2d 915, cert. denied, 288 N.C. 394, 218 S.E.2d 467 (1975).

Judgment Presumed Correct. - The presumption is in favor of the correctness of the judgment of the lower court and the burden is upon appellant to show error. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

When the evidence is not in the record, it will be presumed that there was sufficient evidence to support the findings of fact necessary to support the judgment. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

As to basing of award on capacity to earn in certain circumstances, see Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971); Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

Contempt Hearing May Not Be Transformed to Modification Hearing Without Notice. - The court, on its own motion and without notice to plaintiff, cannot transform a hearing for defendant to show cause why he should not be held in contempt for willful failure to comply with a court order to pay alimony and support into a hearing for modification of such order. Conrad v. Conrad, 35 N.C. App. 114, 239 S.E.2d 862 (1978).

Trial court's suspension of support payments without proper motion by defendant and without notice in a hearing for defendant to show cause why he should not be held in contempt for failure to pay support deprived plaintiff of her property rights without due process as required by the U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19. Conrad v. Conrad, 35 N.C. App. 114, 239 S.E.2d 862 (1978).

Court order requiring defendant to secure payment of temporary alimony by means of a deed of trust did not give plaintiff fixed or permanent interest as cestui que trust, or any right to the entire proceeds of foreclosure sale under deed of trust; the order simply provided a means of securing payment of alimony, and the court was not required to find a change of circumstances as a basis for ordering the payment of a part of the proceeds of foreclosure sale to satisfy a judgment lien against defendant or to pay the fee of defendant's attorney. Johnson v. Johnson, 25 N.C. App. 448, 213 S.E.2d 427 (1975).

Section Does Not Expressly Authorize Award of Counsel Fees. - This section contains no express statutory authorization for an order directing payment of counsel fees for services rendered subsequent to an absolute divorce of the parties. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

But Such Fees May Be Awarded Subsequent to Absolute Divorce. - Unless the case falls within one of the two exceptions made by G.S. 50-11(c), counsel fees may be awarded for services rendered to a dependent spouse subsequent to an absolute divorce in seeking to obtain or in resisting a motion for a revision of alimony or other rights provided under any judgment or decree of a court rendered before or at the time of the rendering of the judgment for absolute divorce. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

And Such Award Is Discretionary. - Whether any award of counsel fees for services subsequent to an absolute divorce should be made in a particular case, and the amount of such an award, must remain within the sound discretion of the trial court. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

Showing Necessary to Obtain Attorneys' Fees. - To be entitled to attorney fees it must be shown that they were necessary to enable the dependent spouse to litigate on substantially even terms by making it possible for her to employ counsel. The dependent spouse must be unable to defray the necessary expenses of the litigation. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

In order to obtain an award of counsel fees in a proceeding seeking a modification of alimony subsequent to divorce, the party seeking the fees must show: (1) That he or she is a dependent spouse; (2) that he or she is entitled to the relief demanded based upon all the evidence; and (3) that he or she has insufficient means to defray the expenses of the proceeding. Cecil v. Cecil, 74 N.C. App. 455, 328 S.E.2d 899 (1985).

Award of Counsel Fees Held Proper. - The former husband, by his own action in seeking to terminate his obligation to make further payments to plaintiff, forced the plaintiff to incur expenses for attorneys' fees simply to preserve rights which were already hers as result of a decree originally entered prior to the divorce. The trial court had authority, in its sound discretion, to order defendant to pay plaintiff's reasonable counsel fees. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

Award of Attorneys' Fees Held Improper. - Attorneys' fees can properly be awarded in custody and child support cases upon adequate findings that the moving party acted in good faith and has insufficient means to defray the expense of the suit; thus, in an action for child support, custody and alimony, where the court found that plaintiff did not have sufficient income and assets with which to pay her attorney, but made no finding as to plaintiff's good faith in bringing the action, the award of attorneys' fees could not stand. Voshell v. Voshell, 68 N.C. App. 733, 315 S.E.2d 763 (1984).

New Motion After Failure of Original. - Where a motion to reduce alimony pendente lite has been disallowed, another motion for the same purpose should not be heard unless a different state of facts is shown and a receipt exhibited for a reasonable proportion of the allowance made at the former hearing. Moore v. Moore, 131 N.C. 371, 42 S.E. 822 (1902).

Appeal of order terminating dependent spouse's right to receive temporary alimony was not premature, as the question of plaintiff's continued entitlement to the previously ordered alimony pendente lite until such time as her prayer for permanent alimony could be heard affected a "substantial right" of the dependent spouse. Brown v. Brown, 85 N.C. App. 602, 355 S.E.2d 525, cert. denied, 320 N.C. 511, 358 S.E.2d 516 (1987).

The trial court's failure to make any findings regarding plaintiff's reasonable current financial needs and expenses and the ratio of those needs and expenses to her income constituted error. Self v. Self, 93 N.C. App. 323, 377 S.E.2d 800 (1989).

Evidentiary Hearing Required. - Where a separation agreement did not contain explicit, unequivocal provisions on integration or nonintegration, an evidentiary hearing was required to determine the intent of the parties regarding whether the agreement was separable or integrated. Hayes v. Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990).

For a case discussing modification of separation agreements prior to the decision in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), which was expressly made prospective only and applies to judgments entered on or after 11 January 1983, see Rogers v. Rogers, 111 N.C. App. 606, 432 S.E.2d 907 (1993).

Applied in Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417 (1971); Downey v. Downey, 29 N.C. App. 375, 224 S.E.2d 255 (1976); Lindsey v. Lindsey, 34 N.C. App. 201, 237 S.E.2d 561 (1977); Rowe v. Rowe, 74 N.C. App. 54, 327 S.E.2d 624 (1985); Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998); Dodson v. Dodson, 190 N.C. App. 412, 660 S.E.2d 93 (2008).

Cited in Dunn v. Dunn, 1 N.C. App. 532, 162 S.E.2d 73 (1968); Smith v. Smith, 17 N.C. App. 416, 194 S.E.2d 568 (1973); Bowen v. Bowen, 19 N.C. App. 710, 200 S.E.2d 214 (1973); Bailey v. Bailey, 26 N.C. App. 444, 216 S.E.2d 394 (1975); Bugher v. Bugher, 34 N.C. App. 601, 239 S.E.2d 303 (1977); Russ v. Russ, 43 N.C. App. 74, 257 S.E.2d 676 (1979); Markham v. Markham, 53 N.C. App. 18, 279 S.E.2d 905 (1981); Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29 (1982); Ratton v. Ratton, 73 N.C. App. 642, 327 S.E.2d 1 (1985); Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985); Graham v. Graham, 77 N.C. App. 422, 335 S.E.2d 210 (1985); Rice v. Rice, 81 N.C. App. 247, 344 S.E.2d 41 (1986); Hayes v. Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990); Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000); Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011); Cathey v. Cathey, 210 N.C. App. 230, 707 S.E.2d 638 (2011); Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431 (2011); Gandhi v. Gandhi, 244 N.C. App. 208, 779 S.E.2d 185 (2015); Orren v. Orren, 253 N.C. App. 480, 800 S.E.2d 472 (2017).

II. CHANGE OF CIRCUMSTANCES.

A change in circumstances must be shown in order to modify an order relating to custody, support or alimony. Elmore v. Elmore, 4 N.C. App. 192, 166 S.E.2d 506 (1969); McDowell v. McDowell, 13 N.C. App. 643, 186 S.E.2d 621 (1972).

A court is not warranted in modifying or changing a prior valid order absent a showing of a change in conditions. Vandooren v. Vandooren, 27 N.C. App. 279, 218 S.E.2d 715 (1975).

A change of condition and circumstances must be established before an order for the support of children and permanent alimony can be modified. Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342 (1963).

Termination of Consent Order for Alimony Justified. - Defendant husband was entitled to have his alimony payments terminated pursuant to G.S. 50-16.9(b), as trial court order directing that he continue to pay alimony was a consent order rather than an order of specific performance of his and plaintiff wife's separation agreement, and thus, allowed for termination because parties agreed that statutory grounds for termination of alimony, that plaintiff was cohabiting with another man, existed, regardless of the separation agreement provisions. Jones v. Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001).

Party moving for modification of an award of alimony has the burden of showing a change of circumstances. Gill v. Gill, 29 N.C. App. 20, 222 S.E.2d 754 (1976).

The burden of proving, by a preponderance of the evidence, that a material change in the circumstances has occurred is upon the party requesting the modification. Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972).

Upon a motion for modification of an award of alimony and support pendente lite, the movant had the burden of going forward with the evidence to show a change of circumstances. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971); McDowell v. McDowell, 13 N.C. App. 643, 186 S.E.2d 621 (1972).

A finding of a change of circumstances does not necessarily require or justify modification of the previous order. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E.2d 144 (1971).

Relevant Circumstances Listed in G.S. 50-16.5. - The change of circumstances required by this section for modification of an alimony order involve those circumstances listed in G.S. 50-16.5. Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981), rev'd on other grounds, 305 N.C. 177, 287 S.E.2d 840 (1982).

To determine whether a change of circumstances under this section has occurred, it is necessary to refer to the circumstances or factors used in the original determination of the amount of alimony awarded under G.S. 50-16.5. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

Change Must Relate to Financial Needs or Ability to Pay. - As a general rule, the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

Trial court properly modified an alimony judgment pursuant to G.S. 50-16.9(a) because the court made findings of fact demonstrating that there had been a substantial change of circumstances warranting a modification of alimony based upon: (1) the former husband's financial situation having improved so that he was then able to pay the former wife's entire monthly financial shortfall; and (2) the wife's overall financial situation had, in fact, worsened. Pierce v. Pierce, 188 N.C. App. 488, 655 S.E.2d 863 (2008).

Post-Marital Conduct Is Not a Changed Circumstance. - The "changed circumstances" under this section must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay. The term has no relevance to the post-marital conduct of either party. Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494, cert. denied, 295 N.C. 648, 248 S.E.2d 249 (1978); Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).

There is no statute that allows the court to modify an award of alimony solely because of post-marital fornication. Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494, cert. denied, 295 N.C. 648, 248 S.E.2d 249 (1978).

Any Considerable Change in Health or Financial Condition Warrants Change of Decree. - Any considerable change in the health or financial condition of the parties will warrant an application for change or modification of an alimony decree. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

But payment of alimony may not be avoided merely because it has become burdensome, or because the husband has remarried and voluntarily assumed additional obligations. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

Reduction in Husband's Salary or Income. - The fact that the husband's salary or income has been reduced substantially does not automatically entitle him to a reduction in alimony or maintenance. If the husband is able to make the payments as originally ordered, notwithstanding the reduction in his income, and the other facts of the case make it proper to continue the payments, the court may refuse to modify the decree. Medlin v. Medlin, 64 N.C. App. 600, 307 S.E.2d 591 (1983).

Increase in Wife's Needs or Decrease in Estate. - An increase in the wife's needs, or a decrease in her separate estate, may warrant an increase in alimony. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

On a motion to modify or terminate an order of alimony, it is appropriate for the trial court to consider whether the dependent spouse's financial need, that is, dependency, as it relates to the factors in G.S. 50-16.5, has changed. Cunningham v. Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997).

Trial court could determine that the wife's circumstances had changed substantially when the wife and husband's minor child turned 18-years-old, and grant the wife's motion for an increase in alimony, because the original alimony award attributed some expenses to the minor child, and the wife was forced to take on those expenses when the minor child turned 18-years-old. At the same time, the trial court could determine that the husband was not entitled to decrease the husband's alimony payment, as the husband was still able to make the original alimony payments ordered despite a decrease in income. Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316 (2008).

In a former wife's action to modify alimony and child support under G.S. 50-16.9 and G.S.50-16.3A(b), her affidavit demonstrating that her total reasonable monthly expenses had increased 24 percent since the prior order, to $7,474 per month, was itself sufficient evidence of the change in circumstances, without requiring additional supporting evidence. Parsons v. Parsons, 231 N.C. App. 397, 752 S.E.2d 530 (2013).

Decrease in Wife's Needs. - A decrease in the wife's needs is a change in condition which may be properly considered in passing upon a husband's motion to reduce her allowance. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

Acquisition of Property or Increase in Its Value. - The fact that the wife has acquired a substantial amount of property, or that her property has increased in value, after entry of a decree for alimony or maintenance, is an important consideration in determining whether and to what extent the decree should be modified. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966).

An increase in the dependent spouse's income would entitle the supporting spouse to petition for modification of the alimony order under this section. Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981), rev'd on other grounds, 305 N.C. 177, 287 S.E.2d 840 (1982).

As to wife's income, see also Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Effect of Change in Income. - A modification should be founded upon a change in the overall circumstances of the parties. A change in income alone says nothing about the total circumstances of a party. The significant inquiry is how that change in income affects a supporting spouse's ability to pay or a dependent spouse's need for support. Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981), rev'd on other grounds, 305 N.C. 177, 287 S.E.2d 840 (1982).

A conclusion as a matter of law that changed circumstances exist, based only on the parties' incomes, is erroneous and must be reversed. Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).

Increase in wife's income alone did not warrant the modification of the original alimony order that reduced the husband's monthly alimony payments to $0. Pursuant to G.S. 50-16.9(a), the trial court was obligated to make findings of fact showing changes in circumstances regarding the wife's reasonable current needs and the husband's ability to pay. Frey v. Best, 189 N.C. App. 622, 659 S.E.2d 60 (2008).

Failure to Exercise Capacity to Earn. - A court may refuse to modify a support and/or alimony award on the grounds that the husband has failed to exercise his reasonable capacity to earn because of a disregard of his marital and parental obligations to provide reasonable support for his wife and minor child. Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

The determination that a husband's change in circumstances has been voluntarily effected by him in disregard of his marital and parental obligations justifying imposition of the earnings capacity rule is a conclusion of law based on the factual findings in the particular case. Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978).

Father was not entitled to reduction in child and post-separation support payments under G.S. 50-13.7 and G.S. 50-16.9 despite being fired from job; evidence indicated that the father's unemployment was voluntary and that the father disregarded marital and parental obligations, as the father was fired for engaging in several incidents of intentional misconduct. Wolf v. Wolf, 151 N.C. App. 523, 566 S.E.2d 516 (2002).

Change Must Be Substantial. - Not any change of circumstances will be sufficient to order modification 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 the present award is either inadequate or unduly burdensome. Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).

The change in circumstances must be substantial, with a final decision based on a comparison of the facts existing at the time of the original order and the time when the modification is sought. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Determining Whether Substantial Change Occurred. - The 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. Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).

Changed circumstances do not have to be pled with specificity. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

Sufficiency of Allegations. - Allegations in a motion for modification to the effect that the then-current alimony payments were inadequate were sufficient to withstand defendant's motion to dismiss. Specific allegations as to the basis of such inadequacy were not required. White v. White, 37 N.C. App. 471, 246 S.E.2d 591 (1978), aff'd, 296 N.C. 661, 252 S.E.2d 698 (1979).

Plaintiff's allegation in a motion for increased support that the payments she was receiving were totally inadequate under current circumstances was sufficient to withstand a motion to dismiss under G.S. 1A-1, Rule 12(b)(6). White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

Fact Issues Remained as to Cohabitation. - There were fact issues as to whether a wife had cohabitated under G.S. 50-16.9(b) as the wife's alleged paramour admitted that he spent the night at wife's house several times, that he and the wife had driven each other's vehicles, and that he had moved furniture into the wife's house; a private investigator observed that the paramour had spent at least 11 consecutive nights with the wife, that the paramour had walked the wife's dog, parked in the wife's garage, carried groceries into the wife's house, and let workmen into and out of the wife's house, and that the paramour's house appeared uninhabited. Bird v. Bird, 193 N.C. App. 123, 668 S.E.2d 39 (2008), aff'd, 363 N.C. 774, 688 S.E.2d 420 (2010).

Cohabitation Not Found. - Trial court did not err in determining a former wife and the man she was dating were not cohabiting because while the former wife and the man had engaged in some domestic activities, there was no assumption of marital rights and duties extending beyond those found in an intimate friendship; the former husband's alimony obligation was $4,000 per month. Smallwood v. Smallwood, 227 N.C. App. 319, 742 S.E.2d 814 (2013).

Former wife did not engage in cohabitation because, while the former wife had an habitual and monogamous relationship with another man that benefitted the former wife economically, the former wife and the other man did not voluntarily and mutually assume those marital rights, duties, and obligations usually manifested by married people, as (1) the former wife and other man kept separate residences, (2) the other man kept no clothes or personal items at the former wife's home, (3) the former wife and other man did not tell anyone the former wife and other man were married, (4) the former wife repaid the other man for financial help, and (5) the former wife's motive in not marrying the other man was not a bad faith attempt to avoid alimony termination. Setzler v. Setzler, 244 N.C. App. 465, 781 S.E.2d 64 (2015).

Trial court could not automatically terminate alimony upon cohabitation where action was filed before the provisions of this section were applicable. Bookholt v. Bookholt, 136 N.C. App. 247, 523 S.E.2d 729 (1999).

Mere discovery of dependent spouse's adultery held not sufficient for a finding of "changed circumstances" necessary for a modification of an order of alimony pendente lite under subsection (a) of this section, where the adultery occurred before the parties' separation and before plaintiff filed her complaint for divorce, and where the pleadings revealed that defendant suspected his wife's adultery and alleged adultery as a bar to plaintiff's claim for permanent alimony under G.S. 50-16.6(a) and entered into a consent judgment agreeing to pay her alimony pendente lite. Brown v. Brown, 85 N.C. App. 602, 355 S.E.2d 525, cert. denied, 320 N.C. 511, 358 S.E.2d 516 (1987).

Fulfillment of Assumptions in Original Order. - Where in the original order, the court clearly calculated the amount of alimony on the assumption that plaintiff would be able to secure a job paying at least minimum wage, the fact that plaintiff subsequently did so did not substantially alter the relative positions of the parties. Hightower v. Hightower, 85 N.C. App. 333, 354 S.E.2d 743, cert. denied, 320 N.C. 792, 361 S.E.2d 76 (1987).

Where neither party moving for a modification of an award of alimony presented evidence as to the circumstances of the parties on which the original award of alimony was based, and no finding was made as to such circumstances, it could not be determined if there was a change of circumstances, and defendant's motion to reduce the amount of the award would be denied. Gill v. Gill, 29 N.C. App. 20, 222 S.E.2d 754 (1976).

Refusal to Reduce Alimony Upheld. - Where although plaintiff ex-wife, at time of hearing, made $22,788.00 per year, she had a debt of $20,000.00, much of which was attributable to defendant's failure to make past alimony payments, the trial court did not err in failing to reduce defendant ex-husband's alimony payments to her. Patton v. Patton, 88 N.C. App. 715, 364 S.E.2d 700 (1988).

No Change of Circumstances from Sale of Business. - Trial court erred by including proceeds from the sale of a husband's business assets as increased income and a substantial change of circumstances to support a modification to agreed upon alimony and child support because there was no evidence and finding that the sale of the business assets resulted in actual income to the husband; the fact that the purchase price was paid to the husband did not convert the payment and receipt of proceeds from sale of a distributed sole asset into income. Shirey v. Shirey, - N.C. App. - , 833 S.E.2d 820 (2019), review denied, 853 S.E.2d 159, 2021 N.C. LEXIS 88 (N.C. 2021).

Change of Circumstances Not Shown. - Findings of fact found by the trial court held supported by the evidence and clearly and more than amply supported the court's conclusion that defendant had failed to show a substantial change of circumstances that would warrant a modification of consent judgment providing for alimony and child support. Outlaw v. Outlaw, 89 N.C. App. 538, 366 S.E.2d 247 (1988).

Former husband's motion to modify alimony was properly denied because the evidence supported the finding that he had continued meeting his financial obligations and had made substantial discretionary purchases and investments, as he made his alimony payments in full and in a timely manner, and an increase in his expenses was based on voluntary choices and expenditures. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013).

Alimony was properly not modified because upon review of the relevant factors, a substantial change in circumstances was not shown with respect to the husband's income, or as to both parties' expenses or other relevant factors. Kelly v. Kelly, 228 N.C. App. 600, 747 S.E.2d 268 (2013).

Dependent Spouse Status. - In determining whether a change in circumstances had occurred for purposes of a motion to terminate alimony, a trial court was not allowed to reconsider a spouse's dependent spouse status, as that was adjudicated at initial alimony hearing; alimony could have been reduced to zero, but that did not result in loss of dependent spouse status. Honeycutt v. Honeycutt, 152 N.C. App. 673, 568 S.E.2d 260 (2002).

Remand from Appellate Court. - If, on remand from the appeal of an alimony award, the ex-husband were not afforded the chance to present new evidence of changed circumstances, the ex-husband would be deprived of the statutory right to move for a modification of alimony based upon a change of circumstances for the five-year period from the initial order until the hearing on the prior remand. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

Evidence Sufficient to Show Voluntary Assumption of Marital Rights, Duties, and Obligations, Which Could be Sufficient to Show Cohabitation. - Summary judgment under G.S. 1A-1, Rule 56(e) was not proper with regard to an ex-husband's motion to terminate an alimony order pursuant to G.S. 50-16.9 because the forecast of the evidence was sufficient to show the voluntary assumption of marital rights, duties, and obligations by a man and an ex-wife, which could be sufficient to establish cohabitation. Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (Jan. 29, 2010).

III. SEPARATION AGREEMENTS, CONSENT JUDGMENTS, ETC.

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Editor's Note. - Many of the cases cited below were decided prior to rendition of the opinion in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), cited below.

Legislative Intent. - The legislative intent, as expressed in this section, is that the public policy of North Carolina shall be in favor of modification of alimony provisions contained in consent judgments and the analogous area of incorporated separation agreements. Acosta v. Clark, 70 N.C. App. 111, 318 S.E.2d 551 (1984).

Separation agreements that have not been incorporated into a court order cannot be modified by the court except with the consent of the parties. Voshell v. Voshell, 68 N.C. App. 733, 315 S.E.2d 763 (1984).

Two Types of Consent Judgments No Longer Distinguished. - Two separate forms of consent judgments within domestic relations law, i.e., court approved contracts and court ordered consent judgments resulting from adoption of separation agreements, will no longer be recognized. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

All Separation Agreements Approved by Court Are Modifiable. - Whenever the parties bring their separation agreements before the court for the court's approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

But This Rule Applies Only to Judgments After January 11, 1983. - Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), which announced the new rule that every court approved separation agreement is to be considered as part of a court ordered judgment and is thus modifiable and enforceable by the contempt powers of the court, applies only to judgments that were entered after January 11, 1983. Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732 (1984), modified on other grounds, 313 N.C. 169, 326 S.E.2d 259 (1985); Cecil v. Cecil, 74 N.C. App. 455, 328 S.E.2d 899 (1985).

The parties can avoid the burdens of a court judgment by not submitting their agreement to the court. By not coming to court, the parties preserve their agreement as a contract, to be enforced and modified under traditional contract principles. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

Options of Parties. - Consenting parties may still elect any of the options available to them prior to this opinion. For example, the parties may keep the property settlement provision aspects of their separation agreement out of court and in contract, while presenting their provision for alimony to the court for approval. The result of such action would be that the alimony provision is enforceable and modifiable as a court order while the property settlement provisions would be enforceable and modifiable under traditional contract methods. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

The power of the court to enforce its judgment is no less and no greater for a court-adopted consent judgment than for a judgment resulting from a jury verdict in a hotly contested adversary proceeding. Henderson v. Henderson, 307 N.C. 401, 298 S.E.2d 345 (1983).

Once a separation agreement is incorporated into a court order, it loses its character as a contract and becomes a court order, which must then be enforced through the contempt powers of the court. Pitts v. Broyhill, 88 N.C. App. 651, 364 S.E.2d 738 (1988).

Nature of Award Is Determinative. - Whether a decree or award made pursuant to an agreement or arrangement between the parties is subject to modification may depend upon whether it is in effect an award of alimony or support or an adjustment and settlement of property rights. White v. White, 37 N.C. App. 471, 246 S.E.2d 591 (1978), aff'd, 296 N.C. 661, 252 S.E.2d 698 (1979).

Intent That Payments Were Alimony. - Ex-husband was entitled to termination of his alimony obligation under G.S. 50-16.9(b), because the ex-wife was cohabitating and the consent order showed that parties intended to support ex-wife alimony payments; ex-wife was dependent spouse, ex-husband supporting spouse with ability to pay amounts in order, and the award was fair and equitable. Underwood v. Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011).

Agreement as to Alimony Is Binding. - Parties to a divorce may enter into a valid agreement settling the question of alimony, and unless the court then orders alimony to be paid, the terms of the agreement are binding and can only be modified by the consent of both parties. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Provisions of a valid arbitration award concerning alimony may by agreement be made binding on the parties and nonmodifiable by the courts, although provisions of the award concerning custody and child support continue to be within the court's jurisdiction and are modifiable pursuant to G.S. 50-13.7. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982).

Award Binding Heirs Violated Statute. - Order making post separation award binding on husband's heirs violated G.S. 50-16.9(b). Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006).

And Consent Judgment Settling All Rights of Parties May Not Be Modified. - A judgment which purports to be a complete settlement of all property and marital rights between the parties and which does not award alimony within the accepted definition of that term is not subject to modification even though it adjudges that the wife recover a specific money judgment. This is a consent judgment in its technical sense. Britt v. Britt, 36 N.C. App. 705, 245 S.E.2d 381 (1978).

If the support provision and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties. Britt v. Britt, 36 N.C. App. 705, 245 S.E.2d 381 (1978).

If a divorce decree or a consent judgment merely approves and sanctions the support payments which the parties have agreed in a separation agreement will be paid to a spouse, then the separation agreement is simply a contract approved by the court. It cannot be modified by order of the court. Cecil v. Cecil, 59 N.C. App. 208, 296 S.E.2d 329 (1982), cert. denied, 307 N.C. 468, 299 S.E.2d 220 (1983).

But Consent Order for Alimony May Be Modified. - Under subsection (a) of this section, the spouse may obtain a modification of the order for permanent alimony upon a showing of changed circumstances, even though the order was by consent. Seaborn v. Seaborn, 32 N.C. App. 556, 233 S.E.2d 67 (1977); Bowes v. Bowes, 43 N.C. App. 586, 259 S.E.2d 389 (1979).

Where Court Adopts Parties' Agreement as Its Own. - Where a court adopts the agreement of the parties as its own determination of the rights of the parties and orders the husband to pay alimony, the consent judgment is a decree of the court and is modifiable and enforceable by contempt. Jones v. Jones, 42 N.C. App. 467, 256 S.E.2d 474 (1979).

A court-adopted consent judgment in a domestic setting has been variously characterized as a species of contract which has been superseded by the court's adoption of the agreement between the parties as its own determination of their respective rights and obligations. Once the court adopts the agreement of the parties and sets it forth as a judgment of the court with appropriate ordering language and the signature of the court, the contractual character of the agreement is subsumed into the court-ordered judgment. At that point the court and the parties are no longer dealing with a mere contract between the parties. That is not to say that such a contract may not eventually result in a judgment of the court which would be enforceable by contempt. Henderson v. Henderson, 307 N.C. 401, 298 S.E.2d 345 (1983).

For a court to have power to modify a consent judgment, the first requirement of this section, as with case law, is that the judgment consented to be an order of a court. The second essential requirement is that the order be one to pay alimony. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

Where the court incorporates by reference a separation agreement into a consent judgment, making the agreement a part of the judgment and ordering compliance with its terms, the agreement merges into the consent judgment and is superseded by the court's decree, any language to the contrary notwithstanding. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986), decided under the law as it existed prior to Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338, reh'g denied, 307 N.C. 703, 301 S.E.2d 397 (1983).

Unless Reciprocity Would Thereby Be Destroyed. - If the court adopts the separation agreement as its own determination of the rights and obligations of the parties and orders the support payments to be made, the separation agreement becomes a decree of the court. The support payments may then be modified upon a showing of a change in circumstances, unless the support provision and the other provisions of the separation agreement constitute reciprocal consideration for each other so that the agreement would be destroyed by a modification of the support provision. Cecil v. Cecil, 59 N.C. App. 208, 296 S.E.2d 329 (1982), cert. denied, 307 N.C. 468, 299 S.E.2d 220 (1983).

Even though denominated as such, provisions in a consent order for periodic support payments to a dependent spouse may not be alimony within the meaning of this section and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982); Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732 (1984), modified on other grounds, 313 N.C. 169, 326 S.E.2d 259 (1985).

Even though denominated as such, support payment provisions may not be alimony, and thus modifiable, if those provisions and other provisions for a property division between the parties constitute a complete settlement of all property and marital rights between the parties. Furthermore, where those provisions constitute a reciprocal consideration, so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties. Walters v. Walters, 54 N.C. App. 545, 284 S.E.2d 151 (1981), rev'd on other grounds, 307 N.C. 381, 298 S.E.2d 338 (1983); Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981).

Where provisions for alimony payments were included in one subsection of an eleven-part section of a separation agreement, in which section the parties detailed a "division and settlement of marital rights and remaining properties," the provisions for alimony payments to plaintiff wife and the other property distributions as provided by the separation agreement were clearly reciprocal and therefore not separable or modifiable. Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732 (1984), modified on other grounds, 313 N.C. 169, 326 S.E.2d 259 (1985).

Support Provisions Merged into Consent Order so as to Preclude Modification. - Evidence held to support court's findings and conclusion that the support provisions in a separation agreement merged into a consent order and made a decree of the court were not separable but were reciprocal with the property settlement provisions, so as to preclude modification. Cecil v. Cecil, 74 N.C. App. 455, 328 S.E.2d 899 (1985), decided under the law obtaining prior to the decision in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

Separable Provisions in Consent Judgment. - An agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case. However, if the support provision and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties. Jones v. Jones, 42 N.C. App. 467, 256 S.E.2d 474 (1979).

An agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case. Britt v. Britt, 36 N.C. App. 705, 245 S.E.2d 381 (1978).

In North Carolina (1) an agreement for division of property rights, and (2) an order for the payment of alimony, within the accepted definition of that term, may be included as separable provisions in a consent judgment. In such a case, the alimony provision is subject to modification where it has been ordered by the district court. However, if the support provision and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties. White v. White, 37 N.C. App. 471, 246 S.E.2d 591 (1978), aff'd, 296 N.C. 661, 252 S.E.2d 698 (1979).

Where plaintiff failed to present any evidence to the district court which would tend to rebut the presumption of separability of provisions, the deed of separation incorporated into a 1974 consent judgment between the parties would not be deemed an integrated property settlement which could not be modified by the trial court. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986), decided under the law as it existed prior to Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338, rehearing denied, 307 N.C. 703, 301 S.E.2d 397 (1983).

How Separability Determined. - While an agreement for the division of property rights and an order for the payment of alimony may be included as separate provisions in a consent judgment, the fact that both provisions are included in the judgment is, standing alone, inconclusive of the issue of separability. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

Recitals in a consent judgment and the judgment of divorce to the effect that all matters in controversy arising from the pleadings had been agreed upon were not determinable upon the question as to whether the support provision of the consent decree was separable, and therefore modifiable, or instead constituted consideration for a property settlement. White v. White, 37 N.C. App. 471, 246 S.E.2d 591 (1978), aff'd, 296 N.C. 661, 252 S.E.2d 698 (1979).

In determining whether a provision in a consent judgment is for alimony alone and thus severable from the remaining provisions and terminable upon the wife's remarriage, or whether the provision for alimony and the provisions for division of property constitute reciprocal consideration so that they are not separable and may not be changed without the consent of both parties, a consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties. Allison v. Allison, 51 N.C. App. 622, 277 S.E.2d 551, appeal dismissed and cert. denied, 303 N.C. 543, 281 S.E.2d 660 (1981).

Where a consent judgment is ambiguous, the intentions of the parties must be determined from evidence of the facts and circumstances surrounding its entry, just as the intentions of the parties to an ambiguous written contract must be determined from the surrounding circumstances. Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981).

Where the intention of the parties regarding the reciprocity of agreements in a consent order is not evident from a reading thereof, evidence of the negotiations and contemporaneous property settlement agreements of the parties is admissible to clarify the uncertainty created when the nonmodification provision of the order appears to be void as a matter of law under this section. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

Burden of Proof on Separability. - In cases in which the question of whether provisions in a consent judgment or separation agreement are separable is not adequately addressed in the document itself, there is a presumption that provisions in a separation agreement or consent judgment made a part of the court's order are separable and that provisions for support payments therein are subject to modification upon an appropriate showing of changed circumstances. The effect of this presumption is to place the burden of proof on the issue of separability on the party opposing modification. The policies underlying the presumption require that this burden be discharged only by a preponderance of the evidence. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

For purposes of determining whether a consent judgment may be modified under this section, there is a presumption that the provisions for property division and support payments are separable. The burden of proof rests on the party opposing modification to show that the provisions are not separable. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

Consent Order Purporting to Waive Applicability of Section. - In accord with this section, a consent order containing a proviso purporting to waive the applicability of this section may be modified unless defendant can show that it was an integral part of the property settlement. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

By enacting this section, the legislature has clearly expressed that it is the public policy of this State that consent orders to pay alimony are modifiable. In the usual case a proviso in an order purporting to waive applicability of this section would be contrary to this policy and, therefore, without force and effect. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

In a consent judgment, the word "alimony" and the provision that plaintiff's support payments to defendant would continue "until the defendant remarries or dies," is evidence, albeit inconclusive, of the parties' intention to treat the support provisions as alimony. Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981).

Language in a consent judgment finding plaintiff a "dependent" spouse and defendant a "supporting" spouse are indicative of the payment and receipt of alimony and the absence of this language supports an interpretation that the payment provisions are not alimony. Walters v. Walters, 54 N.C. App. 545, 284 S.E.2d 151 (1981), rev'd on other grounds, 307 N.C. 381, 298 S.E.2d 338 (1983); Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981).

Language in the preamble to a consent judgment that "the parties had settled their differences" is subject to the interpretation that the agreement was considered a complete settlement by the parties. Barr v. Barr, 55 N.C. App. 217, 284 S.E.2d 762 (1981).

Lump Sum Payment Pursuant to Negotiated Settlement. - The trial court did not have authority to reduce an executed lump sum payment and order a refund of a portion thereof, where the lump sum payment represented not only child support, but also constituted a negotiated settlement of all matters of dispute between the parties, including the effect of foreseeable changes in those matters, and there were no compelling equitable circumstances justifying a refund. Reavis v. Reavis, 82 N.C. App. 77, 345 S.E.2d 460 (1986).

Periodic Support Payments as Consideration for Property Division. - Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of this section and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979); Jones v. Jones, 42 N.C. App. 467, 256 S.E.2d 474 (1979).

Right to Present Evidence on Issue of Separability. - On wife's motion for increase in alimony payments, where consent order entered into between husband and wife contained support provisions and property settlement provisions, an evidentiary hearing was required to determine the intent of the parties regarding whether the provisions of the agreement were separable or integrated, and it was error for the trial court to refuse to allow husband to present evidence on this issue. Lemons v. Lemons, 103 N.C. App. 492, 406 S.E.2d 8 (1991), decided under law in effect in 1978 at time of consent decree.

Summary Judgment Inappropriate in Light of Conflicting Evidence as to Wife's Cohabitation. - In a former wife's suit against her former husband for breach of a separation agreement in which the husband raised cohabitation as an affirmative defense, it was error to grant the wife summary judgment in light of the conflicting evidence as to her cohabitation with a male friend. This conflicting evidence, which included evidence of how often the friend stayed overnight at the wife's residence, whether he permanently kept his clothes there, and to what extent he used the wife's residence as his base of operations for his business, required evaluation of subjective intent, which was inappropriate for summary judgment. Craddock v. Craddock, 188 N.C. App. 806, 656 S.E.2d 716 (2008).

Vacation of Consent Judgments Without Making Specific Findings Held Error. - While a consent order for alimony or alimony pendente lite may be modified or vacated at any time upon motion and a showing of changed circumstances, where defendant husband offered some evidence of changed circumstances but the trial court failed to comply with the statutory mandate as to the making of specific findings, and erroneously ruled that consent judgments were invalid for failure of the court to make a finding of dependency, the cause would be remanded for a de novo hearing. Cox v. Cox, 36 N.C. App. 573, 245 S.E.2d 94 (1978).

The eminence, experience and character of counsel who represented the plaintiff in procuring a property settlement would bear directly on her subsequent attempt to set it aside as fraudulent. Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603 (1965).

Surrender of Right to Enforce Agreement as Consideration for New Agreement. - Contractual surrender of plaintiff's right to bring an action to enforce portion of separation agreement which was incorporated in divorce decree was sufficient legal detriment to constitute consideration under a new agreement. Pitts v. Broyhill, 88 N.C. App. 651, 364 S.E.2d 738 (1988).

Husband's motion under G.S. 1A-1, N.C. R. Civ. P. 60(b)(6) was improper where he sought to vacate the alimony provision of his separation agreement with his wife, which had been incorporated into the parties' divorce decree; the motion should have been filed under G.S. 50-16.9. Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004).

Termination of Alimony Based on Cohabitation. - Trial court did not err in denying the husband's motion for summary judgment arguing that the wife's cohabitation was a bar to the enforcement of the alimony provision of the parties' separation and property settlement agreement and arguing that the agreement was void as against public policy because the parties' agreement provided for termination only upon the husband's death, the wife's remarriage, or the wife's death, but not upon her cohabitation with another individual; this statute only reflected the public policy regarding court ordered alimony or postseparation support; and this statute was not intended to interfere with the freedom of the parties to agree to terms for alimony that was purely contractual, and not court ordered. Patterson v. Patterson, 242 N.C. App. 114, 774 S.E.2d 860 (2015).

Motion to Modify Due to Cohabitation Properly Denied. - Husband's motion seeking to vacate the alimony provision in his separation agreement with his wife, which had been incorporated into the parties' divorce decree, was properly denied as the wife was not cohabitating; she and her boyfriend had sexual relations and went on trips and dates, but there was no evidence that they had assumed the marital rights, duties, and obligations that were usually manifested by married people. Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004).

Trial court did not err in failing to determine that a wife was cohabiting with a man because the court found no evidence of joint financial obligations of a home, combining finances, pooling of resources, consistent merging of families, or dwelling together continuously and habitually. Crews v. Crews, 264 N.C. App. 152, 826 S.E.2d 194 (2019).

IV. REMARRIAGE OF DEPENDENT SPOUSE.

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Construction With Other Sections. - Cases applying G.S. 52-10.1 and G.S. 52-10.2 are instructive in determining what constitutes marital rights, duties, and obligations under G.S. 50-16.9. Oakley v. Oakley, 165 N.C. App. 859, 599 S.E.2d 925 (2004).

Vested Periodic Payments. - Where trial court delineated alimony payable by husband to wife as a "lump sum" or as a "fixed amount," and the payment methodology was not in a single payment but instead was in periodic payments, wife's remarriage terminated the monthly alimony obligations not yet due and payable, as they had not vested prior to remarriage. Potts v. Tutterow, 340 N.C. 97, 455 S.E.2d 156, rehearing denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Obligation Ceases upon Remarriage of Dependent Spouse. - Defendant's obligation to make payments pursuant to a consent judgment with plaintiff which designated such payments as alimony ceased as a matter of law pursuant to this section when the plaintiff remarried. Martin v. Martin, 26 N.C. App. 506, 26 S.E.2d 456 (1975).

Whether the alimony award is in the form of a "lump sum" or "periodic payments" is irrelevant since subsection (b) clearly provides that the supporting spouse's obligation to pay any alimony is terminated by the dependant spouse's remarriage and does not distinguish between the method of payment. Potts v. Tutterow, 114 N.C. App. 360, 442 S.E.2d 90 (1994), aff'd, 340 N.C. 97, 455 S.E.2d 156, reh'g denied, 340 N.C. 364, 458 S.E.2d 189 (1995).

Obligation Held to Terminate. - Where in consent judgment incorporating parties' deed of separation and property settlement, $400.00 per month payment was twice denominated "alimony," while there was no reference whatsoever to the distribution of stock, vehicles, and other property, the $400.00 payment was alimony, and defendant's obligation to make such payments terminated upon plaintiff's remarriage in accordance with the mandate of subsection (b) of this section. Garner v. Garner, 88 N.C. App. 472, 363 S.E.2d 670 (1988).

Terminating Alimony on the Basis of Cohabitation. - This section affirmatively states that cohabitation automatically terminates any alimony obligation, but the supporting spouse must first file a motion with the trial court, notify the dependant spouse, and obtain a court order authorizing termination of payments as of a date certain. Williamson v. Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001).

V. MODIFICATION OF FOREIGN JUDGMENTS AND MODIFICATION BY FOREIGN COURTS.

.

Statute Invalid to the Extent it Conflicts with UIFSA. - Since the Uniform Interstate Family Support Act (UIFSA), G.S. 52C-1-100 et seq. is a more specific and more recent statute than G.S. 50-16.9(c), any conflict between UIFSA and G.S. 50-16.9(c) must be resolved in accordance with the provisions of UIFSA. Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

G.S. 52C-2-205 and G.S. 52C-2-206 of the Uniform Interstate Family Support Act, G.S. 52C-1-100 et seq., which prohibit a responding state from modifying spousal support orders issued in another state, control over any conflict created by G.S. 50-16.9(c). Hook v. Hook, 170 N.C. App. 138, 611 S.E.2d 869 (2005).

North Carolina law applies prospectively from the date of registration under the former Uniform Reciprocal Enforcement of Support Act, G.S. 52A-1 et seq. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988), aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

But Not Retroactively. - Registration is a ministerial duty of the clerk, not exercising any power over the obligor's person or property. Such registration cannot lawfully transform foreign alimony orders that are modifiable as to past-due installments in the jurisdiction of rendition into North Carolina orders subject to North Carolina law retrospectively. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Alimony orders registered pursuant to former G.S. 52A-26, et seq., retain, for their lifespan prior to registration, their foreign identity, and the laws of the foreign jurisdiction apply in any subsequent enforcement proceeding. This means that at any enforcement proceeding under former G.S. 52A-30 the obligor may apply, just as at a civil action instituted under subsection (c) of this section, for a new order modifying or superseding the foreign order "to the extent that it could have been so modified in the jurisdiction where granted." Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

An obligee may not strip an obligor of rights and defenses otherwise available by the simple expedient of litigating under Chapter 52A, the Uniform Reciprocal Enforcement of Support Act, rather than under subsection (c) of this section. Allsup v. Allsup, 88 N.C. App. 533, 363 S.E.2d 883, aff'd, 323 N.C. 603, 374 S.E.2d 237 (1988).

Refusal to Hear Evidence for Modification Held Error. - In an action to recover past due alimony payments under a foreign judgment, the trial judge erred in refusing to hear evidence offered by the defendant of changed circumstances as it related to possible modification of future payments. Thompson v. Thompson, 34 N.C. App. 51, 237 S.E.2d 282 (1977).

Modification of a Texas judgment to provide for payment of one-half of retirement pay to plaintiff was not necessary, since retirement pay and the division thereof is not alimony in Texas but under certain circumstances is community property. Brown v. Brown, 21 N.C. App. 435, 204 S.E.2d 534 (1974).

A money judgment for arrears of alimony, not by its terms conditional and on which execution was directed to issue, was not subject to modification or recall, and hence was entitled to full faith and credit. Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82 (1944).

Seeking Relief as to Future Payments under Foreign Alimony Decree. - There is no impediment to a defendant's seeking relief as to future alimony payments in an action by a plaintiff for recovery of payments accrued under a foreign alimony decree. However, it is advisable that he should do so by counterclaim specifically alleging a change of circumstances and specifically seeking relief only as to future payments. Thompson v. Thompson, 34 N.C. App. 51, 237 S.E.2d 282 (1977).

Power of Alabama Court to Modify North Carolina Alimony Decree. - An Alabama court which had in personam jurisdiction over the parties could modify a North Carolina alimony decree, where the Alabama court in effect found that circumstances had changed since the entry of the North Carolina decree. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).

An Alabama court with in personam jurisdiction over the parties could not modify retroactively a North Carolina alimony judgment where there was no showing of any sudden emergency requiring such a reduction. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).

Where an Alabama court which had in personam jurisdiction over the parties modified a North Carolina alimony decree, the dependent spouse's right to alimony was terminated as of the entry of the Alabama decree. There was no need to prolong the litigation by requiring the supporting spouse to commence a third proceeding in North Carolina to set aside the prior North Carolina judgment. Vincent v. Vincent, 38 N.C. App. 580, 248 S.E.2d 410 (1978).


§ 50-16.10. Alimony without action.

Alimony without action may be allowed by confession of judgment under G.S. 1A-1, Rule 68.1.

History

(1967, c. 1152, s. 2; 1985, c. 689, s. 19.)

CASE NOTES

G.S. 50-16.1 through 50-16.10 Construed in Pari Materia. - The statutes codified as G.S. 50-16.1 through 50-16.10 all deal with the same subject matter, alimony, and are to be construed in pari materia. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982).

G.S. 50-16.9 does not list factors to help in the modification decision, but the alimony statutes, G.S. 50-16.1 through 50-16.10, have been read in pari materia because they deal with the same subject matter. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Cited in Richardson v. Richardson, 4 N.C. App. 99, 165 S.E.2d 678 (1969).


§ 50-16.11: Repealed by Session Laws 1995, c. 319, s. 1.

Editor's Note. - Session Laws 1995, c. 319, which repealed this section, in section 12 provides that this act applies to civil actions filed on or after that date, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the repeal by Session Laws 1995, c. 319, read as follows:

" Judgment that a supporting spouse is not liable for alimony.

"If a final judgment is entered in any action denying alimony because none of the grounds specified in G.S. 50-16.2 exists, upon motion by the supporting spouse, the court shall enter a judgment against the spouse to whom the payments were made for the amount of all alimony paid by the supporting spouse to that spouse pending a final disposition of the case. In addition, upon motion by the supporting spouse, if a final judgment is entered in any action denying alimony because none of the grounds specified in G.S. 50-16.2 exists, the court may enter a judgment against the spouse to whom the payments were made for the amount of alimony pendente lite paid by the supporting spouse to that spouse pending a final disposition of the case. When there has been judgment entered granting permanent alimony, after a prior denial of alimony pendente lite upon the same allegations, the court may enter judgment against the supporting spouse and in favor of the dependent spouse in an amount equal to the monthly permanent alimony awarded multiplied by the number of months between entry of the prior order denying alimony pendente lite and entering of the final judgment.

"A judgment awarded against a dependent spouse under this section may not be satisfied by setting off any award of child support to the dependent spouse."

CASE NOTES

Plain Meaning. - The plain and definite meaning of this section is that when a jury or trial judge finds that none of the grounds on which a spouse alleges entitlement to permanent alimony pursuant to G.S. 50-15.2 exists, the trial court, in its discretion, may order recoupment of any alimony pendente lite paid by the supporting spouse. Wyatt v. Hollifield, 114 N.C. App. 352, 442 S.E.2d 149 (1994).


§ 50-17. Alimony in real estate, writ of possession issued.

In all cases in which the court grants alimony by the assignment of real estate, the court has power to issue a writ of possession when necessary in the judgment of the court to do so.

History

(1868-9, c. 123, s. 1; Code, s. 1293; Rev., s. 1568; C.S., s. 1668.)

CASE NOTES

The court has the power to grant the possession of real estate as a part of alimony. Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E.2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E.2d 634 (1978).

But Ordering Payment of Alimony by Possession of Real Property Is Not Required. - While a trial court has the authority to order payment of alimony by possession of real property under G.S. 50-16.7(a), as well as the power to issue a writ of possession when necessary under this section, the pertinent statutory provisions do not require it to do so. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Statutes Do Not Require Transfer of Title or Possession. - While the court has authority to order a transfer of title or possession of real property under G.S. 50-16.7(a) and this section, these sections do not require it to do so. Clark v. Clark, 44 N.C. App. 649, 262 S.E.2d 659, rev'd on other grounds, 301 N.C. 123, 271 S.E.2d 58 (1980).

Award of Homeplace as Part of Support. - The award of the homeplace does not constitute a writ of possession within the meaning of this section, and the trial judge may award exclusive possession of the homeplace, even though it is owned by the entirety, as a part of the support under G.S. 50-13.4. Arnold v. Arnold, 30 N.C. App. 683, 228 S.E.2d 48 (1976).

Reversion of Title. - Where alimony is allotted to the wife (dependent spouse) in specific property of the husband (supporting spouse), the title to such property remains in him, and will revert at the death of the wife or upon a reconciliation. Taylor v. Taylor, 93 N.C. 418 (1885).

Cited in Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29 (1982).


§ 50-18. Residence of military personnel; payment of defendant's travel expenses by plaintiff.

In any action instituted and prosecuted under this Chapter, allegation and proof that the plaintiff or the defendant has resided or been stationed at a United States Army, Navy, Marine Corps, Coast Guard, or Air Force installation or reservation or any other location pursuant to military duty within this State for a period of six months next preceding the institution of the action shall constitute compliance with the residence requirements set forth in this Chapter; provided that personal service is had upon the defendant or service is accepted by the defendant, within or without the State as by law provided.

Upon request of the defendant or attorney for the defendant, the court may order the plaintiff to pay necessary travel expenses from defendant's home to the site of the court in order that the defendant may appear in person to defend said action.

History

(1959, c. 1058; 2011-183, s. 39.)

Effect of Amendments. - Session Laws 2011-183, s. 39, effective June 20, 2011, substituted "Army, Navy, Marine Corps, Coast Guard, or Air Force" for "army, navy, marine corps, coast guard or air force" in the first paragraph.

Legal Periodicals. - For note concerning residence requirement for servicemen, see 40 N.C.L. Rev. 343 (1962).

For comment, "Conflicts of Law in Divorce Litigation: A Looking-Glass World?," see 10 Campbell L. Rev. 145 (1987).

CASE NOTES

This section is an expression of policy by the General Assembly that a serviceman stationed on a military reservation in the State is capable of establishing his domicile in North Carolina. The statute removes the barriers which might prevent a serviceman so situated from establishing a legal residence in this State where he actually has the present intention of changing his domicile to this State. Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29 (1961).


§ 50-19. Maintenance of certain actions as independent actions permissible.

  1. Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action for divorce under the provisions of G.S. 50-5.1 or G.S. 50-6 that is filed as an independent, separate action may be prosecuted during the pendency of an action for:
    1. Alimony;
    2. Postseparation support;
    3. Custody and support of minor children;
    4. Custody and support of a person incapable of self-support upon reaching majority; or
    5. Divorce pursuant to G.S. 50-5.1 or G.S. 50-6.
  2. Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action described in subdivision (a)(1) through (a)(5) of this section that is filed as an independent, separate action may be prosecuted during the pendency of an action for divorce under G.S. 50-5.1 or G.S. 50-6.
  3. Repealed by Session Laws 1991, c. 569, s. 1.
    1. Alimony;
    2. Alimony pendente lite;
    3. Custody and support of minor children;
    4. Custody and support of a person incapable of self-support upon reaching majority; or
    5. Divorce pursuant to G.S. 50-5.1 or G.S. 50-6.

History

(1979, c. 709, s. 2; 1985, c. 689, s. 20; 1991, c. 569, s. 1; 1995, c. 319, s. 10.)

Editor's Note. - Session Laws 1995, c. 319, which amended this section, in s. 12 provides that this act applies to civil actions filed on or after October 1, 1995, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.

This section, prior to the amendment by Session Laws 1995, c. 319, read as follows: " Maintenance of certain actions as independent actions permissible.

"(a) Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action for divorce under the provisions of G.S. 50-5.1 or G.S. 50-6 that is filed as an independent, separate action may be prosecuted during the pendency of an action for:

"(b) Notwithstanding the provisions of G.S. 1A-1, Rule 13(a), any action described in subdivision (a)(1) through (a)(5) of this section that is filed as an independent, separate action may be prosecuted during the pendency of an action for divorce under G.S. 50-5.1 or G.S. 50-6.

"(c) Repealed by Session Laws 1991, c. 569, s. 1, effective October 1, 1991."

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1982 law on civil procedure, see 61 N.C.L. Rev. 991 (1983).

CASE NOTES

Effect on Legal Consequences of Prior Supreme Court Decision. - The enactment of this section, providing that an action for divorce could be maintained during the pendency of an action for alimony notwithstanding the provisions of G.S. 1A-1, Rule 13(a), did not apply to affect the legal consequences of a prior Supreme Court decision determining the law of the case. Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630 (1980).

Applied in Arney v. Arney, 71 N.C. App. 218, 321 S.E.2d 472 (1984).

Cited in Banner v. Banner, 86 N.C. App. 397, 358 S.E.2d 110 (1987).


§ 50-19.1. Maintenance of certain appeals allowed.

Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for absolute divorce, divorce from bed and board, the validity of a premarital agreement as defined by G.S. 52B-2(1), child custody, child support, alimony, or equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the other pending claims in the same action. 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 this section. An appeal from an order or judgment under this section shall not deprive the trial court of jurisdiction over any other claims pending in the same action.

History

(2013-411, s. 2; 2018-86, s. 1.)

Editor's Note. - Session Laws 2018-86, s. 3, made the insertion of "the validity of a premarital agreement as defined by G.S. 52B-2(1)" in the first sentence of this section by Session Laws 2018-86, s. 1, effective June 25, 2018, and applicable to appeals filed on or after that date.

Effect of Amendments. - Session Laws 2018-86, s. 1, inserted "the validity of a premarital agreement as defined by G.S. 52B-2(1)" in the first sentence. For effective date and applicability, see editor's note.

CASE NOTES

Interlocutory Appeals. - While G.S. 50-19.1 restricts interlocutory family law appeals to those claims listed in that section, an avenue for appeal nevertheless exists because, based on precedent allowing interlocutory appeals in family law cases based on a "substantial right," the traditional "substantial right" exception may also apply to other interlocutory orders entered in a family law case but that do not appear listed in the statute. Beasley v. Beasley, 259 N.C. App. 735, 816 S.E.2d 866 (2018).

Appellate court lacked jurisdiction to consider a wife's appeal of the trial court's order of absolute divorce because the order was interlocutory inasmuch as the equitable distribution claim and motion for establishment of child support were still pending before the trial court, the trial court not certify the matter for appellate review, the wife did not show a deprivation of a substantial right, the order on appeal does not fall within the types of orders set forth by statute, and the wife did not request a suspension of the Rules. Bezzek v. Bezzek, 264 N.C. App. 1, 824 S.E.2d 865 (2019).

Trial court erred in concluding that it no jurisdiction to consider a chapter IV-D child support claim because of a pending chapter 50 custody appeal as it relied upon an unpublished case, mistakenly relied upon G.S. 1-294, judicial efficiency did not trump the children's needs, and G.S. 50-19.1 specifically allowed a child support claim to proceed while a custody claim was on appeal. Watauga Cty. v. Shell, - N.C. App. - , 826 S.E.2d 739 (2019).

Order to Relocate. - Mother could appeal a trial court's interlocutory order requiring the mother and the parties' children to move back to the county where the parties resided before separating because the order was a permanent or "final" order as to child custody, as the order resolved all issues related to child custody, provided for joint custody, with primary physical custody to the mother, and ordered visitation. Kanellos v. Kanellos, 251 N.C. App. 149, 795 S.E.2d 225 (2016).

Final Custody Order Under Uniform Deployed Parents Custody And Visitation Act. - Order on appeal was a final order addressing all issues raised under the Uniform Deployed Parents Custody and Visitation Act, and those issues were independent of the underlying custody claims, so it was otherwise a final order, but for the other pending claims in the same action, and the appellate court had jurisdiction to review it. Roybal v. Raulli, - N.C. App. - , 832 S.E.2d 202 (2019).

Attorney's Fees. - Order to pay a wife's attorney's fees was reviewable, despite pending other issues and the issue's absence from the list in G.S. 50-19.1 because (1) interlocutory review of an issue affecting a substantial right was allowed, and (2) the order completely disposed of the issue and ordered payment of a not insubstantial sum. Beasley v. Beasley, 259 N.C. App. 735, 816 S.E.2d 866 (2018).

Applied in Lueallen v. Lueallen, 249 N.C. App. 292, 790 S.E.2d 690 (2016).

Cited in Gray v. Peele, 235 N.C. App. 554, 761 S.E.2d 739 (2014); Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).


§ 50-20. Distribution by court of marital and divisible property.

  1. Upon application of a party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section.
  2. For purposes of this section:
    1. "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses' Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.
    2. "Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.
    3. "Distributive award" means payments that are payable either in a lump sum or over a period of time in fixed amounts, but shall not include alimony payments or other similar payments for support and maintenance which are treated as ordinary income to the recipient under the Internal Revenue Code.
    4. "Divisible property" means all real and personal property as set forth below:
      1. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.
      2. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.
      3. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.
      4. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.
  3. There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection:
    1. The income, property, and liabilities of each party at the time the division of property is to become effective.
    2. Any obligation for support arising out of a prior marriage.
    3. The duration of the marriage and the age and physical and mental health of both parties.
    4. The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
    5. The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
    6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
    7. Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
    8. Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
    9. The liquid or nonliquid character of all marital property and divisible property.
    10. The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
    11. The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor.
    12. Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
    13. In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
      1. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
      2. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.
      3. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
      4. The surviving spouse's right to claim an "elective share" pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.
    14. Any other factor which the court finds to be just and proper.
  4. Notwithstanding any other provision of law, a second or subsequent spouse acquires no interest in the marital property and divisible property of his or her spouse from a former marriage until a final determination of equitable distribution is made in the marital property and divisible property of the spouse's former marriage.
  5. Before, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
  6. Subject to the presumption of subsection (c) of this section that an equal division is equitable, it shall be presumed in every action that an in-kind distribution of marital or divisible property is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division in-kind. In any action in which the presumption is rebutted, the court in lieu of in-kind distribution shall provide for a distributive award in order to achieve equity between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital or divisible property. The court may provide that any distributive award payable over a period of time be secured by a lien on specific property.
  7. The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.
  8. If the court orders the transfer of real or personal property or an interest therein, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.
  9. If either party claims that any real property is marital property or divisible property, that party may cause a notice of lis pendens to be recorded pursuant to Article 11 of Chapter 1 of the General Statutes. Any person whose conveyance or encumbrance is recorded or whose interest is obtained by descent, prior to the filing of the lis pendens, shall take the real property free of any claim resulting from the equitable distribution proceeding. The court may cancel the notice of lis pendens upon substitution of a bond with surety in an amount determined by the court to be sufficient provided the court finds that the claim of the spouse against property subject to the notice of lis pendens can be satisfied by money damages.
  10. Upon filing an action or motion in the cause requesting an equitable distribution or alleging that an equitable distribution will be requested when it is timely to do so, a party may seek injunctive relief pursuant to G.S. 1A-1, Rule 65 and Chapter 1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property, divisible property, or separate property of the party seeking relief. The court, in lieu of granting an injunction, may require a bond or other assurance of sufficient amount to protect the interest of the other spouse in the property. Upon application by the owner of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may enter an order for reasonable counsel fees and costs of court incurred to regain its possession, but such fees shall not exceed the fair market value of the separate property at the time it was removed.
  11. Unless good cause is shown that there should not be an interim distribution, the court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between the parties. The partial distribution may provide for a distributive award and may also provide for a distribution of marital property, marital debt, divisible property, or divisible debt. Any such orders entered shall be taken into consideration at trial and proper credit given.
  12. In any order for the distribution of property made pursuant to this section, the court shall make written findings of fact that support the determination that the marital property and divisible property has been equitably divided.
  13. The rights of the parties to an equitable distribution of marital property and divisible property are a species of common ownership, the rights of the respective parties vesting at the time of the parties' separation.
    1. A claim for equitable distribution, whether an action is filed or not, survives the death of a spouse so long as the parties are living separate and apart at the time of death. (l) (1)  A claim for equitable distribution, whether an action is filed or not, survives the death of a spouse so long as the parties are living separate and apart at the time of death.
    2. The provisions of Article 19 of Chapter 28A of the General Statutes shall be applicable to a claim for equitable distribution against the estate of the deceased spouse.
    3. Any claim for equitable distribution against the surviving spouse made by the estate of the deceased spouse must be filed with the district court within one year of the date of death of the deceased spouse or be forever barred.

Hearings held pursuant to this subsection may be held at sessions arranged by the chief district court judge pursuant to G.S. 7A-146 and, if held at such sessions, shall not be subject to the reporting requirements of G.S. 7A-198.

History

(1981, c. 815, s. 1; 1983, c. 309; c. 640, ss. 1, 2; c. 758, ss. 1-4; 1985, c. 31, ss. 1-3; c. 143; c. 660, ss. 1-3; 1987, c. 663; c. 844, s. 2; 1991, c. 635, ss. 1, 1.1; 1991 (Reg. Sess., 1992), c. 960, s. 1; 1995, c. 240, s. 1; c. 245, s. 2; 1997-212, ss. 2-5; 1997-302, s. 1; 1998-217, s. 7(c); 2001-364, ss. 2, 3; 2002-159, s. 33; 2003-168, ss. 1, 2; 2005-353, s. 1; 2011-284, s. 51; 2013-103, s. 1.)

Cross References. - As to claims for equitable distribution against decedent's estate, see G.S. 28A-19-19.

Effect of Amendments. - Session Laws 2011-284, s. 51, effective June 24, 2011, deleted "bequest" preceding "devise" in the first sentence of subdivision (b)(2).

Session Laws 2013-103, s. 1, effective October 1, 2013, in subdivision (b)(1), added the next to the last sentence, and at the beginning of the last sentence substituted "Either" for "This"; and, at the beginning of subdivision (b)(4)(d), substituted "Passive increases and passive" for "Increases and".

Legal Periodicals. - For comment on resulting trusts in entireties property when the wife furnishes purchase money, see 17 Wake Forest L. Rev. 415 (1981).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For comment on the tax effects of equitable distribution upon divorce, see 18 Wake Forest L. Rev. 555 (1982).

For comment on this section, see 18 Wake Forest L. Rev. 735 (1982).

For note on Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982), see 18 Wake Forest L. Rev. 780 (1982).

For analysis of North Carolina's equitable distribution of property statute, see 61 N.C.L. Rev. 247 (1983).

For survey of 1982 family law, see 61 N.C.L. Rev. 1155 (1983).

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

For comment on contingent fees in domestic relations actions, see 62 N.C.L. Rev. 381 (1984).

For article, "The Professional Degree as Marital Property Under North Carolina's Equitable Distribution Statute," see 6 Campbell L. Rev. 101 (1984).

For article, "Divisibility of Advanced Degrees in North Carolina - An Examination and Proposal," see 15 N.C. Cent. L.J. 1 (1984).

For comment, "Time Sharing: The North Carolina General Assembly's Response to Ownership of Time Share Contracts," see 15 N.C. Cent. L.J. 56 (1984).

For note, "The Validity of Foreign Divorce Decrees in North Carolina," see 20 Wake Forest L. Rev. 765 (1984).

For 1984 survey, "Property Settlement or Separation Agreement: Perpetuating the Confusion," see 63 N.C.L. Rev. 1166 (1985).

For 1984 survey, "Equitable Distribution Without Consideration of Marital Fault," see 63 N.C.L. Rev. 1204 (1985).

For 1984 survey, "The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina," see 63 N.C.L. Rev. 1317 (1985).

For note, "The Contingent Fee Contract in Domestic Relations Cases," see 7 Campbell L. Rev. 427 (1985).

For comment, "The Wedding Veil or the Corporate Veil?: Appreciation of Close Corporation Stock Under North Carolina's Equitable Distribution Law," see 15 N.C. Cent. L.J., 213 (1985).

For note on contractual agreements as a means of avoiding equitable distribution, in light of Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984), see 21 Wake Forest L. Rev. 213 (1985).

For note, "North Carolina's Equitable Distribution Statute: Recent Developments," see 64 N.C.L. Rev. 1395 (1986).

For note, "Branch Banking & Trust Co. v. Wright - Creditors' Rights to Entireties Property Awarded to Nondebtor Spouse Upon Divorce," see 64 N.C.L. Rev. 1471 (1986).

For article, "The Partnership Ideal: The Development of Equitable Distribution in North Carolina," see 65 N.C.L. Rev. 195 (1987).

For 1987 note on equitable distribution law as it relates to personal injury awards in divorce actions, see 65 N.C.L. Rev. 1332 (1987).

For note on the continued prohibition of contingency fees in divorce actions, see 65 N.C.L. Rev. 1378 (1987).

For article, "The Equitable Distribution of Professional Degrees upon Divorce in North Carolina," see 10 Campbell L. Rev. 69 (1987).

For note, the valuation of a professional practice in equitable distribution, in light of 75 N.C. App. 414, 331 S.E.2d 266, disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985), see 22 Wake Forest L. Rev. 327 (1987).

For note relating to revocation of the marital presumption and adoption of the analytic approach to the classification of personal injury settlements, in light of Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986), see 22 Wake Forest L. Rev. 931 (1987).

For note on separation agreements, see 66 N.C.L. Rev. 1254 (1988).

For note on post-separation sexual intercourse precluding enforcement of agreement requiring parties to live separate and apart, see 11 Campbell L. Rev. 73 (1988).

For article, "Increases in Separate Property and the Evolving Marital Partnership," see 24 Wake Forest L. Rev. 239 (1989).

For note, "McLean v. McLean: North Carolina Adopts the Gift Presumption in Equitable Distribution," see 68 N.C. L. Rev. 1269 (1990).

For article, "Semantics as Jurisprudence: The Elevation of Form Over Substance in the Treatment of Separation Agreements in North Carolina," see 69 N.C.L. Rev. 319 (1991).

For note, "Post-Separation Failure to Support a Dependent Spouse as a Sole Ground for Alimony Despite the Absence of Marital Misconduct Before Separation - Brown v. Brown," see 15 Campbell L. Rev. 333 (1993).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For note, "Kuder v. Schroeder: The North Carolina Court of Appeals Holds That a Professional Education Is Not Within the Spousal Duty of Support," see 72 N.C.L. Rev. 1784 (1994).

For note, "Family Law - Equitable Distribution - Brown v. Brown, 112 N.C. App. 15, 434 S.E.2d 873 (1993)," see 72 N.C.L. Rev. 1801 (1994).

For note, "The Diploma Dilemma: An Inequitable Result Under North Carolina's Equitable Distribution Statute - Kuder v. Schroeder," see 17 Campbell L. Rev. 361 (1995).

For survey, "Termination of Lump Sum Alimony upon the Remarriage of a Dependent Spouse: Potts v. Tutterow," see 73 N.C.L. Rev. 2432 (1995).

For article, "Giving Credit Where Credit is Due: North Carolina Recognizes Custodial Obligations as a Factor in Determining Alimony Entitlements," see 74 N.C.L. Rev. 2128 (1996).

For article, "A Spouse's Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?," see 18 Campbell L. Rev. 203 (1996).

For 1997 legislative survey, see 20 Campbell L. Rev. 459.

For an article on the creation of a new category of property - divisible property - in divorce law, see 76 N.C.L. Rev. 2017 (1998).

For note, "O'Brien v. O'Brien: The Changing Nature of Property Under the Equitable Distribution Laws in North Carolina," see 77 N.C. L. Rev. 2280 (1999).

For recent development, "Death and the Partnership Principle: Interpreting Recent Abatement Amendments to North Carolina's Equitable Distribution Act," see 80 N.C.L. Rev. 1089 (2002).

For article, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization," see 45 Wake Forest L. Rev. 579 (2010).

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - This section is not unconstitutionally vague. Ellis v. Ellis, 68 N.C. App. 634, 315 S.E.2d 526 (1984).

Legislative Intent. - In enacting the equitable distribution statute, the General Assembly intended to avoid taxable events which would chill the use of equitable distribution. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

The legislature did not intend the Equitable Distribution Act to apply solely to property acquired on or after the effective date of the act or its amendments. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Only married persons are afforded the protections of this statute; therefore, the Court of Appeals would not expand the legislature's clear definition of marital property to include property acquired prior to marriage. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

No Right to Jury Trial in Equitable Distribution Action. - No right to bring an action for equitable distribution of marital property existed prior to the adoption of the equitable distribution statutes, this section and G.S. 50-21, and the language of the statutes themselves create no new right to trial by jury; therefore, there is no right to trial by jury for such an action under the Constitution of North Carolina. Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989).

This section sets forth reasonably clear guidelines and definitions for courts to interpret and administer it uniformly and in accordance with the legislative intent. Ellis v. Ellis, 68 N.C. App. 634, 315 S.E.2d 526 (1984).

Same Rules to Apply to Both Spouses. - With the enactment of this section the legislature indicated its view that the same rules should apply to both spouses in determining ownership of property. Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982).

This section is a remedial statute enacted to ensure a fairer distribution of marital assets than under common-law rules. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

Separate Trials for Divorce and Distribution. - The trial court's order granting the plaintiff's motion for separate trials of his claim for absolute divorce and the defendant's claim for equitable distribution of the marital property did not constitute an abuse of discretion, nor did it prejudice the defendant's substantial rights. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987).

G.S. 52-4 is not inconsistent with or repugnant to this section. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

G.S. 52-4 governs legal interests in property during an ongoing marriage, while this section governs its disposition after divorce. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

Trial judge is required to conduct a three-stage analysis in order to equitably distribute the marital assets. He must first ascertain, upon appropriate findings of fact, what is marital property; then determine the net market value of the marital property as of the date of separation; and finally, make an equitable distribution between the parties. Willis v. Willis, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

In applying our equitable distribution statutes, the trial court must follow a three-step procedure: (1) classification, (2) evaluation and (3) distribution. Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd, 319 N.C. 367, 354 S.E.2d 506 (1987).

Trial court erred as a matter of law in rejecting a wife's claim for equitable distribution where it simply took the parties at their word that each would pay certain debts, without actually classifying, valuing, and distributing the debts as required under G.S. 50-20(a), and it had improperly based its determination that equitable distribution was not warranted on the wife's failure to negotiate a settlement with the husband's counsel. Eason v. Taylor, 245 N.C. App. 16, 784 S.E.2d 200 (2016).

Equal division of marital property is favored by public policy behind the Equitable Distribution Act. Weaver v. Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (1985), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

One policy underlying the Equitable Distribution Act is to wind up the marriage and distribute the marital property fairly with as much certainty and finality as possible. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Public policy of this State is that equitable distribution of property shall follow a decree of absolute divorce. Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984).

But Written Agreement Between the Parties Is an Alternative. - It is North Carolina's public policy that an equitable distribution of property shall follow a decree of absolute divorce. However, a resort to the equitable distribution law is not the only recognized way for married people to dispose of their marital property. An alternative is in G.S. 50-20(d). Case v. Case, 73 N.C. App. 76, 325 S.E.2d 661, cert. denied, 313 N.C. 597, 330 S.E.2d 606 (1985). See also, Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984).

Purpose of Section. - This section is designed to divide property equitably, based upon the relative positions of the parties at the time of the divorce, rather than on what they may have intended when the property was acquired. Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982).

This section's primary focus is to devise a procedure for equitably distributing "marital," as opposed to "separate," property upon dissolution of the marriage. Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982).

This section reflects a trend nationwide towards recognizing marriage as a partnership, a shared enterprise to which both spouses make valuable contributions, albeit often in different ways. Loeb v. Loeb, 72 N.C. App. 205, 324 S.E.2d 33 (1985), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Equitable distribution reflects the idea that marriage is a partnership enterprise to which both spouses make vital contributions and which entitles the homemaker spouse to a share of the property acquired during the relationship. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

A spouse's vested right to equitable distribution of marital property does not create a property right in marital property, nor does separation create a lien on specific marital property in favor of the spouse. Hearndon v. Hearndon, 132 N.C. App. 98, 510 S.E.2d 183 (1999).

Effect of Section. - This section was enacted in recognition of marriage as a partnership, economic and otherwise, to which both parties contribute, either directly or indirectly. By enacting this section, the Legislature granted courts the power to consider factors other than legal title in distributing the marital assets upon the dissolution of the marriage, thereby permitting the courts to make an equitable distribution which effects a return to each party of that which he or she contributed to the marriage. Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984).

Section Is Applicable Only to Divorce Actions Filed on or After October 1, 1981. - The Equitable Distribution Act was enacted in 1981 and made applicable only when the action for an absolute divorce is filed on or after October 1, 1981. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

As to history and purposes of the Equitable Distribution Act, see White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

For a case applying subsection (c) prior to its amendment, effective October 1, 1991, in upholding equitable distribution, see Munn v. Munn, 112 N.C. App. 151, 435 S.E.2d 74 (1993).

Jurisdiction Must Meet Minimum Contacts Standard. - In an equitable distribution action, the court is exercising jurisdiction over the interests of persons in property and not over a status of the parties. Exercise of this jurisdiction must meet the minimum contacts standard. Carroll v. Carroll, 88 N.C. App. 453, 363 S.E.2d 872 (1988).

Personalty in State Is Not Sufficient to Confer Jurisdiction. - The fact that there exists some personal property in North Carolina in which a nonresident defendant may have an interest because of the equitable distribution statute is not alone sufficient to establish jurisdiction over defendant or his property. Carroll v. Carroll, 88 N.C. App. 453, 363 S.E.2d 872 (1988).

Jurisdiction Not Shown. - Where defendant had not lived in North Carolina during any part of the parties' marriage, although certain property of the parties was located in North Carolina, and there was no indication of any action by defendant purposefully directed towards this State, the trial court lacked jurisdiction over defendant and his property for equitable distribution purposes and therefore could not properly determine the equitable distribution claim. Carroll v. Carroll, 88 N.C. App. 453, 363 S.E.2d 872 (1988).

Jurisdiction of Bankruptcy Court. - A claim for equitable distribution is a claim against property of the estate and therefore within the jurisdiction of the bankruptcy court. Perlow v. Perlow, 128 Bankr. 412 (E.D.N.C. 1991).

An equitable distribution action can be a "claim" under the bankruptcy code. Hearndon v. Hearndon, 132 N.C. App. 98, 510 S.E.2d 183 (1999).

Rights in Bankruptcy. - Wife, separated from her debtor husband, was entitled to relief from the automatic stay, 11 U.S.C.S. § 362, to liquidate her right to an equitable distribution against debtor because she held an unsecured claim against debtor's bankruptcy estate, the matter was one controlled by state law, and relief would not unduly delay the administration of debtor's estate. In re Linville, - Bankr. - (Bankr. M.D.N.C. Feb. 1, 2005).

Right to Equitable Distribution Must Be Asserted Before Final Divorce. - Under G.S. 50-11, a judgment of absolute divorce destroys the right to equitable distribution unless the right is asserted prior to judgment of absolute divorce. Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987).

Where death ends all chance for divorce, any equitable distribution action then pending must abate; the 1995 amendment to G.S. 50-21 did not change the relationship between equitable distribution and divorce. Instead, the amendment continued the legislative trend for equitable distribution to occur at any time prior to or after an absolute divorce. Brown v. Brown, 353 N.C. 220, 539 S.E.2d 621 (2000), decided prior to the 2001 amendment clarifying that an action for equitable distribution does not abate upon the death of a party.

Heirs of wife's deceased husband were necessary parties to equitable distribution action in which husband's administrator had been substituted as defendant, and they were properly added as parties defendant. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Rights of Creditors Without Notice. - Legislative intent is that rights of creditors without notice be protected in the equitable distribution of real property. Branch Banking & Trust Co. v. Wright, 74 N.C. App. 550, 328 S.E.2d 840 (1985).

The trial court did not abuse its discretion in denying defendant's motion for a compulsory reference in an equitable distribution proceeding. Vick v. Vick, 80 N.C. App. 697, 343 S.E.2d 245, cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986).

Trial court erred in granting defendant wife's motion to be "relieved of the effect" of a divorce judgment solely to the extent that the judgment barred her claim for equitable distribution. Howell v. Howell, 321 N.C. 87, 361 S.E.2d 585 (1987).

Claim to Property Was Not Notice of Equitable Distribution Claim. - In divorce case, defendant's answer asserting a claim to an interest in a specific piece of property, or to proceeds in plaintiff's possession flowing from defendant's interest in that piece of property, was not sufficient to put plaintiff on notice that he was asserting a claim for equitable distribution under this section. Goodwin v. Zeydel, 96 N.C. App. 670, 387 S.E.2d 57 (1990).

Attorneys' fees are not recoverable from the other spouse in an action for equitable distribution, so that, in a combined action, the fees awarded must be attributable to work by the attorneys on the divorce, alimony and child support actions. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Actions for Breach of Fiduciary Duty, Unjust Enrichment, and Marital Destruction Are Not Maintainable Against Former Spouse. - A spouse or former spouse may not maintain actions against the other spouse for breach of fiduciary duty, unjust enrichment, and intentional marital destruction, all pertaining to the marital relationship and its dissolution either in an equitable distribution proceeding, or other proceedings. Smith v. Smith, 113 N.C. App. 410, 438 S.E.2d 457, cert. denied, 336 N.C. 74, 445 S.E.2d 37 (1994).

Power of Court Upon Finding of Contempt. - Upon a finding of contempt, in situations where original order requires transfer of property (including intangible property such as that represented by stock certificates), the trial court has authority to order contemnor to transfer said property as a condition of purging contempt, but does not have authority to require contemnor to pay compensatory damages incurred as a result of his noncompliance with original order. Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990).

But the contempt power of the district court includes the authority to require one to pay attorneys' fees in order to purge himself from a previous order of contempt for failing and refusing to comply with an equitable distribution order. Conrad v. Conrad, 82 N.C. App. 758, 348 S.E.2d 349 (1986).

Equitable Distribution Claim Was Properly Extinguished by Parties' Reconciliation. - Although they had been separated and filed for divorced, an equitable distribution claim was properly extinguished by operation of G.S. 50-20(l) (1) because the parties' reconciliation was established since the wife provided the husband with medical care at a hospital and at his home prior to his death, they told friends that they had reconciled, and they behaved as if they were reconciled, including sharing a marital bed. Casella v. Alden, 200 N.C. App. 24, 682 S.E.2d 455 (2009).

Use of Term "Divisible" Harmless Error. - Although the parties separated prior to October 2002, such that any post-separation, debt-reduction payments should technically not have been characterized as divisible property, the use of that term was harmless error. Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

Applied in Dixon v. Dixon, 62 N.C. App. 744, 303 S.E.2d 606 (1983); Crumbley v. Crumbley, 70 N.C. App. 143, 318 S.E.2d 525 (1984); Brown v. Brown, 72 N.C. App. 332, 324 S.E.2d 287 (1985); Phillips v. Phillips, 73 N.C. App. 68, 326 S.E.2d 57 (1985); Dusenberry v. Dusenberry, 73 N.C. App. 177, 326 S.E.2d 65 (1985); Appelbe v. Appelbe, 76 N.C. App. 391, 333 S.E.2d 312 (1985); Hill v. Hill, 94 N.C. App. 474, 380 S.E.2d 540 (1989); Swilling v. Swilling, 99 N.C. App. 551, 393 S.E.2d 303 (1990); Christensen v. Christensen, 107 N.C. App. 431, 420 S.E.2d 469 (1992); Albritton v. Albritton, 109 N.C. App. 36, 426 S.E.2d 80 (1993); Wilkins v. Wilkins, 111 N.C. App. 541, 432 S.E.2d 891 (1993); Leighow v. Leighow, 120 N.C. App. 619, 463 S.E.2d 290 (1995); Becker v. Becker, 127 N.C. App. 409, 489 S.E.2d 909 (1997); Atkinson v. Chandler, 130 N.C. App. 561, 504 S.E.2d 94 (1998); Kroh v. Kroh, 154 N.C. App. 198, 571 S.E.2d 643 (2002); Roberts v. Roberts, 173 N.C. App. 354, 618 S.E.2d 761 (2005); Burgess v. Burgess, 205 N.C. App. 325, 698 S.E.2d 666 (2010); Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011).

Cited in Diggs v. Diggs, 116 N.C. App. 95, 446 S.E.2d 873, cert. denied, 338 N.C. 515, 452 S.E.2d 809 (1994); Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982); Burmann v. Burmann, 64 N.C. App. 729, 308 S.E.2d 101 (1983); Myers v. Myers, 61 N.C. App. 748, 301 S.E.2d 522 (1983); Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476 (1983); Cator v. Cator, 70 N.C. App. 719, 321 S.E.2d 36 (1984); Williams v. Williams, 72 N.C. App. 184, 323 S.E.2d 463 (1984); Blount v. Blount, 72 N.C. App. 193, 323 S.E.2d 738 (1984); McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985); Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985); Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855 (1986); Basinger v. Basinger, 80 N.C. App. 554, 342 S.E.2d 549 (1986); North Carolina Baptist Hosps. v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987); Collar v. Collar, 86 N.C. App. 109, 356 S.E.2d 405 (1987); Lefler v. Lefler, 91 N.C. App. 286, 371 S.E.2d 287 (1988); Lee v. Lee, 93 N.C. App. 504, 378 S.E.2d 554 (1989); Shook v. Shook, 95 N.C. App. 578, 383 S.E.2d 405 (1989); Lowry v. Lowry, 99 N.C. App. 246, 393 S.E.2d 141 (1990); Hartsell v. Hartsell, 99 N.C. App. 380, 393 S.E.2d 570 (1990); State v. Morris, 103 N.C. App. 246, 405 S.E.2d 351 (1991); Lemons v. Lemons, 103 N.C. App. 492, 406 S.E.2d 8 (1991); Smith v. Smith, 104 N.C. App. 788, 411 S.E.2d 197 (1991); Topper v. Topper, 105 N.C. App. 239, 412 S.E.2d 173 (1992); Sonek v. Sonek, 105 N.C. App. 247, 412 S.E.2d 917 (1992); Halverson v. Halverson, 151 Bankr. 358 (M.D.N.C. 1993); Broome v. Broome, 112 N.C. App. 823, 436 S.E.2d 918 (1993); Gilbert v. Gilbert, 111 N.C. App. 233, 431 S.E.2d 805 (1993); King v. King, 112 N.C. App. 92, 434 S.E.2d 669 (1993); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993); King v. King, 114 N.C. App. 454, 442 S.E.2d 154 (1994); Stanley v. Stanley, 118 N.C. App. 311, 454 S.E.2d 701 (1995); Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995); Forsyth Mem. Hosp. v. Chisholm, 342 N.C. 616, 467 S.E.2d 88 (1996); Holterman v. Holterman, 127 N.C. App. 109, 488 S.E.2d 265 (1997); Weatherford v. Keenan, 128 N.C. App. 178, 493 S.E.2d 812 (1997); Vann v. Vann, 128 N.C. App. 516, 495 S.E.2d 370 (1998); Inman v. Inman, 134 N.C. App. 719, 518 S.E.2d 777 (1999); Torres v. McClain, 140 N.C. App. 238, 535 S.E.2d 623 (2000); Huntley v. Huntley, 140 N.C. App. 749, 538 S.E.2d 239 (2000); Friend-Novorska v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788 (2001), aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001); Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004); McKyer v. McKyer, 179 N.C. App. 132, 632 S.E.2d 828 (2006), review denied, 361 N.C. 356, 646 S.E.2d 115 (2007); Johnson v. Johnson, 208 N.C. App. 118, 701 S.E.2d 722 (2010); McKoy v. McKoy, 214 N.C. App. 551, 714 S.E.2d 832 (2011); Underwood v. Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011); Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863 (2013); United States v. 998 Cotton St., - F. Supp. 2d - (M.D.N.C. Mar. 22, 2013); State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543,
2013 N.C. LEXIS 814 (2013); Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 752 S.E.2d 661 (2013); Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015); Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014); Baldelli v. Baldelli, 249 N.C. App. 603, 791 S.E.2d 687 (2016); In re Estate of Sharpe, 258 N.C. App. 601, 814 S.E.2d 595 (2018).

II. MARITAL AND SEPARATE PROPERTY.
A. IN GENERAL.

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Classification as Marital Property by Stipulation of Parties. - Husband's deferred compensation plan was marital property, notwithstanding that the deferred compensation plan had not vested, where the parties had stipulated in a pre-trial order that the deferred compensation plan was marital property. Hamby v. Hamby, 143 N.C. App. 635, 547 S.E.2d 110 (2001), cert. denied, 354 N.C. 69, 553 S.E.2d 39 (2001).

North Carolina recognizes the dual nature of property acquired with both marital and separate assets. This approach has generally been referred to as the source of funds theory. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

Property can have a dual nature, and can be classified as part separate and part marital. This approach takes into account the active appreciation of separate property which often results from contributions made by one or both spouses. Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986).

Under G.S. 50-20(a), when a trial court classified property involved in a divorce as either marital property or separate property, property could have a dual nature and be classified as part separate and part marital, and where property was dual in nature, the court applied a "source of funds" approach to distinguish between marital and separate contributions to the property, and the marital and separate estates were each entitled to an interest in the property in the ratio its contribution bore to the total investment in the property. Goldston v. Goldston, 159 N.C. App. 180, 582 S.E.2d 685 (2003).

Dual Nature of Property Shown. - Defendant's interest in financial corporation was of a dual nature, having both a marital property and a separate property component. Smith v. Smith, 111 N.C. App. 460, 433 S.E.2d 196, petition denied as to additional issues, 335 N.C. 177, 438 S.E.2d 202 (1993), rev'd on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).

Dual Nature of Home Not Shown. - Trial court erred in concluding that the home purchased by the parties was only partly marital property, where the wife met her burden of showing that the home was marital property, by showing that it was acquired by the couple during the marriage, and was owned by them on the date of separation, and no evidence supported the trial court's conclusion that the husband had no intention of making a gift of his separate funds to acquire the home; however, the husband was entitled to have the gift of his separate property to the marital estate considered as a distributional factor. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Three-Step Analysis of Equitable Distribution. - A trial judge is required to conduct a three-step analysis when making an equitable distribution of the marital assets. These steps are: (1) To determine which property is marital property, (2) to calculate the net value of the property, fair market value less encumbrances, and (3) to distribute the property in an equitable manner. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

The requirements that the trial court (1) classify and value all property of the parties, both separate and marital, (2) consider the separate property in making a distribution of the marital property, and (3) distribute the marital property necessarily exist only when evidence is presented to the trial court which supports the claimed classification, valuation and distribution. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

There may be both marital and separate ownership interests in the same property. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Both legal and equitable interest in real and personal property are subject to distribution under this section. Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61 (1996), review denied, 343 N.C. 517, 472 S.E.2d 26 (1996).

"Source of Funds" Rule as to When Property Is Acquired. - The Court of Appeals has adopted the source of funds rule, by which property is "acquired" as it is paid for, so that it may include both marital and separate ownership interests. Under the source of funds rule acquisition is an ongoing process. It does not depend upon inception of title, but upon monetary or other contributions made by one or both of the parties. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Under the source of the funds theory, when both the marital and separate estates contribute assets towards the acquisition of property, each estate is entitled to an interest in the property in the ratio which its contribution bears to the total investment in the property. Thus, both the separate and marital estates receive a proportionate and fair return on their investments. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

The courts have adopted a source of funds approach to distinguish marital and separate contributions to a single asset. Under the source of funds approach, each party retains as separate property the amount he contributed to purchase the property plus passive appreciation in value. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

In applying the source of funds rule, the financial or other contributions by the marital and separate estates toward the acquisition of property must be identified and accounted for. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

The trial court erred in using a source of funds approach to determine what portion of a tract of land was marital property as opposed to separate property; the source of funds analysis is not applicable until the donor spouse has rebutted the gift presumption by clear, cogent and convincing evidence. Lawrence v. Lawrence, 100 N.C. App. 1, 394 S.E.2d 267 (1990).

"Source of Funds" Rule Is Applicable Even When Property Is Converted After Separation. - North Carolina has adopted the "source of funds" rule to determine whether and to what extent an asset is part of the marital estate. Even when property is converted after the date of separation, this rule continues to apply, and the dispositive question in determining if an asset is a marital asset remains whether the source of funds therefor were marital funds. Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63 (1985); Freeman v. Freeman, 107 N.C. App. 644, 421 S.E.2d 623 (1992).

Only after determining the nature of the asset received by one spouse after separation, yet claimed by the other to be "marital property," may a classification be made of that asset as between "marital" or "separate" property. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

Premarital Contributions. - Premarital contributions are relevant in an equitable distribution proceeding, to the extent those contributions constitute separate property, entitling the contributing spouse to credit when property of mixed marital and separate character is distributed. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

For the purpose of classification of property, the marital estate is frozen as of the date of separation. While its components clearly may increase in value after separation and before distribution, no new property may be added to the marital estate after the date of separation. Becker v. Becker, 88 N.C. App. 606, 364 S.E.2d 175 (1988).

Debt, as well as assets, must be classified as marital or separate property; if the debt is classified as marital, the court must value the debt and distribute it pursuant to subsection (c). Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987); Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

Medical debts incurred for the benefit of defendant's child were not for the joint benefit of the parties and thus were not marital debts. Crisp v. Crisp, 126 N.C. App. 625, 486 S.E.2d 485 (1997), cert. granted, 347 N.C. 264, 493 S.E.2d 744 (1997), aff'd in part, cert. dismissed in part, 347 N.C. 659, 496 S.E.2d 379 (1998).

Reduction in Separate Debt Using Marital Assets. - A reduction in the separate debt of a party to a marriage, caused by the expenditure of marital funds, is, in the absence of an agreement to repay the marital estate, neither an asset nor a debt of the marital estate and such a reduction is properly considered as a distributional factor within the context of subdivision (c)(12). Adams v. Adams, 115 N.C. App. 168, 443 S.E.2d 780 (1994).

Debt incurred after the separation of the parties was not subject to equitable distribution. Harrington v. Harrington, 110 N.C. App. 782, 431 S.E.2d 240 (1993).

The burden of proof is on the party seeking to classify a debt as marital. If the debt is classified as separate, the court must value it and then, pursuant to subdivision (c)(1), consider it in making a distribution. Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987).

The burden of proof is on the party claiming that property is marital property to show by a preponderance of the evidence that the property: (1) was acquired by either spouse or both spouses; (2) during the marriage; (3) before the date of the separation of the parties; and (4) is presently owned. Caudill v. Caudill, 131 N.C. App. 854, 509 S.E.2d 246 (1998).

Loan Payments as Distributions. - Lawnmower was purchased post-separation in the husband's name and the limited liability company (LLC) made the loan payments, and while it might appear that some part of the mower would qualify as divisible property, there was no evidence of depreciation or the amount still owed; the trial court did not err in treating the loan payments on the mower as distributions to the Husband from the LLC from which he made the loan payments. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Showing That Property Is Separate. - A spouse may challenge a claim that property is marital by showing by a preponderance of the evidence that the property: (1) was acquired by the spouse by bequest, devise, descent, or gift from a third party during the course of the marriage; or (2) was acquired by gift from the other spouse during the course of the marriage and the intent that it be separate property was stated in the conveyance; or (3) was acquired in exchange for separate property and no contrary intention that it be marital property was stated in the conveyance. Caudill v. Caudill, 131 N.C. App. 854, 509 S.E.2d 246 (1998).

Classification of Increases in Value to Separate Property - Burden of Proof. - Plaintiff, as the party claiming the increases in value to separate property to be marital, had the burden of showing by the preponderance of the evidence that the increases in value were marital property. Plaintiff met her burden by showing that all the increases in value were acquired by either or both spouses, were acquired during the course of the marriage, were acquired before the date of separation, and were presently owned. Accordingly, the burden shifted to the defendant to show by the preponderance of the evidence that the acquired increases in value to the properties were his separate property. Ciobanu v. Ciobanu, 104 N.C. App. 461, 409 S.E.2d 749 (1991).

If the party claiming the property to be separate and the party claiming the property to be marital both meet their burdens, then under the statutory scheme of N.C.G.S. subdivisions (b)(1) and (2) of this section, the property is excepted from the definition of marital property and is, therefore, separate property. This allocation of the burdens of proof is consistent with the General Assembly's recent amendment to subsection (b)(1) establishing a rebuttable presumption that property acquired between the dates of marriage and separation is marital property. Ciobanu v. Ciobanu, 104 N.C. App. 461, 409 S.E.2d 749 (1991).

Marital Property Despite No Financial Contribution by One Spouse. - Although one spouse did not make any direct financial contributions to various property from the spouse's own income or separate funds during the marriage, the other spouse's income during the marriage was marital property, and the other spouse's direct financial contributions from the other spouse's income during the marriage were marital contributions. Clark v. Dyer, 236 N.C. App. 9, 762 S.E.2d 838 (2014).

Property acquired after separation of the parties is specifically excepted from the definition of marital property contained in subdivision (b)(1) of this section. However, property acquired in exchange for marital funds is considered marital property to the extent of the contribution even after separation. Peak v. Peak, 82 N.C. App. 700, 348 S.E.2d 353 (1986), decided under this section as it read in 1983.

Use of Marital Property to Acquire Separate Property After Separation. - The fact that marital property was used to acquire other property after the date of the parties' separation did not cause it to lose its marital character. The characterization of property as separate or marital depends not on whether it was acquired after the date of separation, but on whether the source of funds for its purchase was marital property or separate property. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Home, which the parties had contracted to purchase before their separation, but which the husband, after separation, had purchased using marital funds and a mortgage that he obtained in his own name, was properly considered marital property under G.S. 50-20(b)(1), because the home was acquired in exchange for marital property since the initial downpayment was made from marital funds and additional equity was made using funds obtained from the sale of the parties' old residence. Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009).

Acquisition of Entireties Property in Exchange for Separate Property. - When property titled by the entireties is acquired in exchange for separate property, the conveyance itself indicates the "contrary intention" to preserving separate property required by the statute. Furthermore, when separate property is used as consideration to acquire entireties property, a gift of separate property to the marital estate is presumed, which is rebuttable by clear, cogent, and convincing evidence. Manes v. Harrison-Manes, 79 N.C. App. 170, 338 S.E.2d 815 (1986).

When property titled by the entireties is acquired in exchange for separate property, the conveyance itself indicates the "contrary intention" to preserving separate property required by the statute. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Presumption of gift of property to which title is taken by the entirety is limited to real property acquired by both spouses, as tenants by the entirety, in exchange for the separate property of one of them. The presumption does not extend to jointly held personal property which is acquired in exchange for the separate property of one spouse, as to do so would seem to defeat the legislative intent of subdivision (b)(2) of this section. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

House Built with Marital Funds on Property Acquired Prior to Marriage. - By treating a house and lot as separate property solely because the house, built with marital funds, was built on land acquired by defendant prior to the marriage, the court erred in classifying the property. Classification must be according to the statutory definitions of separate property and marital property. Cable v. Cable, 76 N.C. App. 134, 331 S.E.2d 765, cert. denied, 315 N.C. 182, 337 S.E.2d 856 (1985).

Additions, etc., to Wife's Real Property Made During Marriage. - That part of the real property (i.e., house and water-front area) consisting of the unimproved property owned by the wife prior to marriage should have been characterized as separate, and that part of the property consisting of the additions, alterations and repairs provided during marriage should have been considered marital in nature and the marital estate was entitled to proportionate return of its investment. Lawrence v. Lawrence, 75 N.C. App. 592, 331 S.E.2d 186, cert. denied, 314 N.C. 541, 335 S.E.2d 18 (1985).

Findings Required as to Debts Incurred During Marriage. - Where trial court failed to make adequate findings regarding the actual use of proceeds from a debt husband and wife incurred jointly, the findings were inadequate to determine whether the debt was marital or separate property; therefore, the case was remanded for further factual findings on the issue. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179 (1989).

Marital Investment of Mortgage Payments. - Where marital home was purchased by wife before the marriage and remained in her name only, and the marital estate invested $9,900 into the home by way of mortgage payments during the marriage, while the separate estate vested an amount not disclosed in the record, the trial judge should have divided the equity based on the proportion invested by the marital and separate estates, so as to determine what percentage of the total investment in the property was marital and what was separate, and then award each estate a proportionate return on its investment. Willis v. Willis, 85 N.C. App. 708, 355 S.E.2d 828, rev'd on other grounds, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

Home Equity Derived from Wife's Contribution. - Where wife's contribution to marital residence was a gift, and there was no statement of her intent that it be separate property, the proportion of the home equity derived from her contribution was marital property. Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985), cert. denied, 316 N.C. 376, 344 S.E.2d 1 (1986).

Effect of Dissolution of Tenancy by Entirety. - Although conveyances from wife to husband dissolved tenancy by the entirety in the parcels of land and vested title thereto solely in the husband, as provided by G.S. 39-13.3(c), husband nevertheless acquired title to the property thereunder, not by gift, but during the course of the marriage and before the parties separated, and property so acquired is ipso facto marital property. Thus, contrary to the husband's contention, dissolving of the tenancy by entirety did not remove the property involved from the ambit of the Equitable Distribution Act, and the trial judge did not err in finding and concluding otherwise. Beroth v. Beroth, 87 N.C. App. 93, 359 S.E.2d 512, cert. denied, 321 N.C. 296, 362 S.E.2d 778 (1987), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Fact that both names were on note, standing alone, was not sufficient to show an intent to make a gift to the marital estate. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Findings Needed to Determine Portion of Spouse's Inheritance Constituting Marital Property. - In order to determine what part of a spouse's inherited interest in a corporation constituted marital property, the trial court would be required to make findings as to: (1) the value of plaintiff's minority interest at the time of inheritance; (2) the value of plaintiff's controlling interest at the date of separation; (3) the difference between the two; and (4) the proportion of that difference that were due to active appreciation, i.e., attributable to funds, talent, or labor that were assets of the marital community. The resulting amount would be marital property subject to equitable distribution. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Property Acquired While Parties Cohabited Out-of-Wedlock. - It was error for the trial judge to classify as marital property any interest in property acquired before the parties were married but while they lived together. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

The interests acquired by the parties in a parcel of real property that they purchased together, but as unmarried persons before they were married, were their respective separate property; however, any increases in equity and any debt incurred during the marriage were marital property. Glaspy v. Glaspy, 143 N.C. App. 435, 545 S.E.2d 782 (2001).

Property Purchased in Anticipation of Marriage. - The sole fact that property was purchased in anticipation of marriage is not, in and of itself, sufficient to establish donative intent. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852 (1988).

Even though a tax refund was not actually paid until the parties separated, Court did not err in treating it as divisible marital property because it was attributable to activities of both parties in the course of their involvement with a family business. Allen v. Allen, 168 N.C. App. 368, 607 S.E.2d 331 (2005).

Term "acquired" has a dynamic meaning, thus adopting the source of funds theory which recognizes that because property is acquired over time, it may have a dual nature and must therefore be designated according to whether the funds used for acquisition were marital or separate. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852 (1988).

Property Acquired During Marriage Prior to Effective Date of Equitable Distribution. - The fact that husband acquired property during marriage but prior to the effective date of the Equitable Distribution Act does not mean that he also acquired a vested right in the law governing the disposition of property upon divorce which was in effect either at the time the property was acquired or at the time of his marriage. There is no such thing as a vested right in the continuation of an existing law. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Classification of property must be supported by the evidence and by appropriate findings of fact. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Availability of Equitable Remedies Does Not Affect Classification of Property. - The potential availability of equitable remedies - such as constructive trust, resulting trust, recovery in quantum meruit or quasi-contract - does not transform property acquired before marriage into marital property subject to equitable distribution under this section. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Awards or settlements arising from a personal injury claim frequently are composed of many elements of recovery, some of which represent compensation for injury to, or loss of, marital property and some of which represent compensation for injury to separate property of the injured spouse. Personal injury recoveries may also include compensation for injury to the separate property of the non-injured spouse, such as the right of consortium, where such injuries have been properly alleged and proved. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

Proceeds representing a settlement recovered by a spouse upon a claim for his or her personal injuries sustained during the marriage of the parties may constitute marital property subject to distribution upon dissolution of the marriage, depending on the purpose for which they were received. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

Any part of an award compensating a non-injured spouse for loss of consortium is the separate property of the non-injured spouse. Lilly v. Lilly, 107 N.C. App. 484, 420 S.E.2d 492 (1992).

Although, based on his evidence, husband technically met his burden of proving that insurance proceeds from wife's personal injury settlement were marital property, the characterization of a spouse's personal injury settlement as marital or separate property depends on what the award was intended to replace. Lilly v. Lilly, 107 N.C. App. 484, 420 S.E.2d 492 (1992).

To the extent that an award replaces medical expenses, lost wages, or loss of earning capacity sustained during the marriage, it is marital property subject to equitable distribution. To the extent that the award replaces such economic loss occurring after separation, it is the separate property of the injured spouse. However, if the party claiming that the award is marital, i.e., the noninjured spouse, shows by a preponderance of the evidence that the award was acquired by the injured spouse during the marriage and before separation, then the entire award will be marital property unless the other party proves by a preponderance that the award, or some portion of it, was to compensate for economic loss occurring after the date of separation and is therefore separate property. Freeman v. Freeman, 107 N.C. App. 644, 421 S.E.2d 623 (1992).

Wife was entitled to a claim against one-half of any monies which represented reimbursement for husband's lost wages prior to the parties' separation and those reimbursing him for medical expenses incurred prior to separation. Taylor v. Taylor, 92 N.C. App. 413, 374 S.E.2d 644 (1988).

Personal injury award is composed of three potential elements of damages: (1) Those compensating the injured spouse for pain and suffering, disability, disfigurement, or lost limbs; (2) those compensating for lost wages, lost earning capacity, and medical and hospital expenses; and (3) those compensating the non-injured spouse for loss of services or loss of consortium. The portion of an award representing compensation for non-economic loss, i.e., personal suffering and disability, is the separate property of the injured spouse; the portion of an award representing compensation for economic loss, i.e., lost wages, loss of earning capacity during the marriage, and medical and hospital expenses paid out of marital funds, is marital property. Dunlap v. Dunlap, 85 N.C. App. 324, 354 S.E.2d 734 (1987).

Gift From a Third Party. - A gift received by a spouse from a third party is the separate property of the receiving spouse. Friend-Novorska v. Novorska, 131 N.C. App. 508, 507 S.E.2d 900 (1998).

Husband's Income from Contingent Fee Case. - Husband's income as an attorney from a contingent fee case was wrongly classified because (1) the income was classified as both deferred compensation and divisible income, (2) the income was not deferred compensation, as, at separation, the husband and the husband's law firm were not certain to receive anything from the case, and (3) the income was not divisible property, as the husband had no pre-separation right to income, and the husband was not a party to the contingent fee contract. Green v. Green, 255 N.C. App. 719, 806 S.E.2d 45 (2017), review denied, 371 N.C. 485, 818 S.E.2d 273 (2018).

Distinction Between Active and Passive Appreciation. - There is a distinction between active and passive appreciation of separate property, in that active appreciation refers to financial or managerial contributions of one of the spouses to the separate property during the marriage, while passive appreciation refers to enhancement of the value of separate property due solely to inflation, changing economic conditions or other such circumstances beyond the control of either spouse. O'Brien v. O'Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998).

Trial court properly classified and valued a husband's interest in a partnership with his father at 50% because the entire appreciation in value of the inherited shares was clearly identified for the trial court, the portion of the appreciation attributable to the active efforts of the parties was property "acquired" during the marriage and was presumably marital in nature, and the active efforts of the husband's father contributed to the increase in the value of husband's interest during the marriage. Blair v. Blair, 260 N.C. App. 474, 818 S.E.2d 413 (2018).

Test for Active Increase. - If either or both of the spouses perform substantial services during the marriage which result in an increase in the value of an investment account, that increase is to be characterized as an active increase and classified as a marital asset. O'Brien v. O'Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998).

Workers' compensation awards are classified as either marital or separate property depending on what the award was intended to replace. Freeman v. Freeman, 107 N.C. App. 644, 421 S.E.2d 623 (1992).

The trial court erred in determining that the plaintiff converted certain marital funds to her own use during the marriage and in treating the allegedly converted funds as part of the marital estate in making its equitable distribution order, as defendant did not prove that any of this money was used to purchase assets that were owned by either of the parties on the date of separation. Lawrence v. Lawrence, 100 N.C. App. 1, 394 S.E.2d 267 (1990).

Refusal to Consider Evidence of Husband's Conversion of Property After Separation Held Error. - The trial court erred in refusing to consider evidence concerning the husband's conversion of property (i.e., shares of stock) after the parties' separation. The ruling was error regardless of whether the property was originally obtained with marital or separate funds. Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63 (1985).

Court to Determine What Is Marital Property. - Subsection (a) of this section makes it incumbent upon the court to determine what is marital property. Thomas v. Thomas, 102 N.C. App. 127, 401 S.E.2d 367 (1991).

"Use and Possession" of Marital Asset. - It is plain on the face of this section that the provision for transfer of "the use and possession" of a marital asset contemplates the transfer of an asset in kind; transferring the "use and possession" means that the spouse receiving the transfer is entitled to hold the asset pending a final equitable distribution award and use it as it was meant to be used. Brown v. Brown, 112 N.C. App. 15, 434 S.E.2d 873 (1993).

B. MARITAL PROPERTY GENERALLY.

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This section mandates a complete listing of marital property, and an order that fails to do so is fatally defective. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985); Cornelius v. Cornelius, 87 N.C. App. 269, 360 S.E.2d 703 (1987).

"Acquired" as Used in Subdivision (b)(1). - A dynamic rather than static interpretation of the term "acquired" as used in subdivision (b)(1) will best serve to prevent inequity. Acquisition must be recognized as the ongoing process of making payment for property or contributing to the marital estate rather than being fixed on the date that legal title to property is obtained. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

"Vested" as Used in Subdivision (b)(1). - Vesting occurs when an employee has completed the minimum terms of employment necessary to be entitled to receive retirement pay at some point in the future. Milam v. Milam, 92 N.C. App. 105, 373 S.E.2d 459 (1988), cert. denied, 324 N.C. 247, 377 S.E.2d 755 (1989).

"Presently owned" defined. - "Presently owned" under subsection (b)(1) refers to the date of separation, not the date of trial. Wornom v. Wornom, 126 N.C. App. 461, 485 S.E.2d 856 (1997).

Trial court found that the husband removed from the marital home $ 350,000 in cash and checks, which were marital funds, and it was irrelevant whether the cash and checks were actually in the parties' safe on the date of separation as there was no evidence that the cash or checks were ever owned by anyone other than the parties; the cash and checks were presently owned, as per the statute. Sauls v. Sauls, 236 N.C. App. 371, 763 S.E.2d 328 (2014).

Distributing a limited liability company (LLC) to a husband erred because no party owned the LLC or a trust that owned the LLC, so the LLC was not G.S. 50-20(b)(1) marital property. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Distributing a limited liability company (LLC) to a husband erred because no party owned the LLC or a trust that owned the LLC, so the LLC was not G.S. 50-20(b)(1) marital property. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

The legislature's decision not to provide by statute for a marital property presumption was deliberate. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

Assets to Be Classified According to Proof. - Under our statutory scheme, without the aid of any presumption, assets, the classification of which is disputed, must be labeled for equitable distribution purposes either as "marital" or "separate," depending upon the proof presented to the trial court of the nature of those assets. Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986).

Where plaintiff failed to meet his burden of proving that liability was marital, he could not later claim error in the trial court's classification of the debt. Tucker v. Miller, 113 N.C. App. 785, 440 S.E.2d 315 (1994).

Although a former husband contended that the presumption that the wife intended for a property to be a gift to the marriage was to be rebutted by the greater weight of the evidence, the presumption by statute was to be rebutted by the greater weight of the evidence. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Failure to Classify Assets. - Trial court reversibly erred when it failed to determine what was the marital property and divisible property before distributing assets and debts. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

Evidence of Valuable Consideration Rather Than Donative Intent. - Mobile home park was properly classified as marital property in an equitable distribution order under G.S. 50-20(b)(1) because both parties operated the park during the marriage and there was no credible documentation of the donative intent of the former husband's father to contradict a general warranty deed showing valuable consideration given for the property. Joyce v. Joyce, 180 N.C. App. 647, 637 S.E.2d 908 (2006).

Joint Account. - Absent clear and convincing evidence to the contrary, creation of a spousal joint account should as a matter of law imply consent by each spouse to the use by the other of funds from the account for purposes of sustaining the family or enhancing its standard of living. Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819 (1986).

Trial court did not err in classifying a checking account held in a former husband's name only as marital property because the former wife presented evidence that the bank account in question was opened five days before the parties separated, and the husband failed to rebut, by the greater weight of the evidence, the presumption that the checking account was marital property; Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

Trial court did not err in classifying funds in bank accounts on the date of the parties' separation as marital property because one spouse need not have personally contributed financially to the bank accounts during the marriage to create a marital interest as the other spouse's earnings and efforts during the marriage created the marital interest. Clark v. Dyer, 236 N.C. App. 9, 762 S.E.2d 838 (2014).

It was no error to find a wife did not rebut a presumption that a gift from a husband's father and other relatives was marital property instead of the wife's separate property because (1) the gift was transferred into the husband's and wife's joint account, and (2) competent evidence supported the finding. Rui Dong Zhu v. Lingling Deng, 250 N.C. App. 803, 794 S.E.2d 808 (2016).

Investment Accounts. - Investment accounts were marital and not separate property under G.S. 50-20(b)(1-2) because when a husband requested the husband's wife's name be added to the accounts, during their marriage the husband did not state in the conveyance that the husband intended for the accounts to remain separate property. Langston v. Richardson, 206 N.C. App. 216, 696 S.E.2d 867 (2010), dismissed and review denied 365 N.C. 191, 707 S.E.2d 231, 2011 N.C. LEXIS 252 (2011).

Although a husband argued an arbitrator erred in concluding the appreciation in the balance of an investment account contained no separate property, as defined in G.S. 50-20(b)(2), there was no evident mistake in the arbitrator's decision to not classify a rollover from a separate brokerage account into the investment account during the marriage as separate property because there were several transfers in the brokerage account during the marriage and trading activity occurred in the investment account after the transfer; the husband was not entitled to vacate the arbitrator's award under the Family Law Arbitration Act, G.S. 50-54(a)(8). Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Although a husband argued an arbitrator erred in conferring the status of marital property, as defined in G.S. 50-20(b)(1), upon the appreciation in the balance of an investment account, the husband was not entitled to vacate the arbitrator's order, pursuant to the Family Law Arbitration Act, G.S. 50-54(a)(8), because the balance increase, which occurred between the date of marriage and the date of separation, was the result of the husband's substantial activity; the husband testified he met with the broker every month or two and authorized every trade, and the evidence reflected frequent trading activity during the time of marriage and the date of separation. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Funds in qualified tuition program. - Trial court had to treat funds in qualified tuition program accounts as marital property because the funds were not gifts to the parties' children as the children had no control over the funds while the parties did. Berens v. Berens, 260 N.C. App. 467, 818 S.E.2d 155 (2018).

Distributions from Corporation. - Trial court erred by failing to classify and distribute as marital property the post-separation, non-salary distributions made from a corporation to the former wife, because the retained earnings of a Subchapter S corporation, upon distribution to shareholders, were marital property. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

It was error to find a wife earned income as a Subchapter S corporation officer because the sums at issue were undistributed retained corporate earnings. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Distributions from Limited Liability Company. - Trial court should have classified post-separation distributions to the husband as divisible property; the limited liability company (LLC) was taxed as a partnership, and the two distributions were treated on the LLC's taxes as withdrawals of partnership capital, and thus the distributions were part of the capital of the LLC and belonged to the LLC. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Limited Liability Company. - Because a limited liability company (LLC) was organized during the marriage and still operating on the date of separation, any business interest in the LLC was marital property Chafin v. Chafin, 250 N.C. App. 19, 791 S.E.2d 693 (2016), review denied, 795 S.E.2d 219, 2017 N.C. LEXIS 40 (2017).

Spouse's Partial Interest In Business Was Marital Property. - Wife met her burden of showing that the husband's one-third interest in a business was marital, as it was acquired during the marriage and owned on the date of separation, and to the extent there was any evidence as to the appreciation of the husband's interest during the marriage, it was active, not passive; the husband failed to show that any portion of the increase in value was separate property. Porter v. Porter, 252 N.C. App. 321, 798 S.E.2d 400 (2017).

Separate Property Not "Transmuted" into Marital Property. - Insurance settlement, originally the separate property of wife, was not transmuted into marital property as a result of wife's having deposited it into the parties' joint checking account. Lilly v. Lilly, 107 N.C. App. 484, 420 S.E.2d 492 (1992).

Entireties Property Presumed to Be Gift to Marital Estate. - A presumption of a gift to the marital estate of entireties property is consistent with a public policy to further the intent of both parties as evidenced by their mutual agreement. When one party titles property jointly it is reasonable that the other party expects it to be an addition to marital property. To protect those expectations the property should be classified as marital unless the donor's contrary intent was clearly brought to the attention of the donee. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Trial court did not err in finding that the entire parcel was marital property as the only relevant evidence that the husband offered to rebut the marital gift presumption was his own testimony. Thus, the husband did not demonstrate that he did not intend to make his interest in the parcel a gift to the marital estate. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

While there was evidence that plaintiff's grandmother intended checks written to plaintiff and the checks written to defendant husband only as a gift to plaintiff, where the record was void of any evidence concerning plaintiff's intent when placing those checks into property titled in the entireties, the trial court erred by finding that plaintiff did not intend to make a gift to the marital estate. Upon remand, the trial court could consider the individual contributions of separate property if it viewed those contributions as an appropriate factor under subdivision (c)(12). Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987).

Property Held As Tenancy By the Entireties After Party's Death. - Trial court's order declaring an ex-wife as the owner of three parcels of property held with a decedent as tenancy by the entireties was reversed as an equitable distribution proceeding was pending at the time of the decedent's death and title to the parcels was not acquired in a manner prescribed by G.S. 50-20(b)(2); the parcels were marital property, subject to the equitable distribution action, which did not abate upon the death of the decedent. Estate of Nelson v. Nelson, 179 N.C. App. 166, 633 S.E.2d 124 (2006), aff'd, 361 N.C. 346, - S.E.2d - (2007).

Presumption May Be Overcome by Clear, Cogent and Convincing Evidence. - Under common law, a deed conveying real estate to a husband and wife creates an estate by the entireties. However, title is not absolutely controlling under the Equitable Distribution Act. Joint title merely creates a rebuttable presumption of marital property, which may be overcome by clear, cogent, and convincing evidence of the third party donor's contrary intent. Loeb v. Loeb, 72 N.C. App. 205, 324 S.E.2d 33 (1985), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Where a spouse furnishing consideration from separate property causes property to be conveyed to the other spouse in the form of tenancy by the entireties, a presumption of a gift of separate property to the marital estate arises, which is rebuttable by clear, cogent, and convincing evidence. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985); McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, Garris v. Garris, 92 N.C. App. 467, 374 S.E.2d 638 (1988).

Presumption That Gifts Between Spouses Are Marital Property. - Provision of subdivision (b)(2) of this section that "property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance" has been interpreted as creating a presumption that gifts between spouses are marital property. Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985), cert. denied, 316 N.C. 376, 344 S.E.2d 1 (1986).

Presumption of Use for Marital Purposes Overcome. - Findings, along with plaintiff's testimony that he was unaware that defendant was converting funds, and defendant's acknowledgment that she could not account for $150,000 she spent were sufficient to overcome the presumption that the withdrawal of funds was with plaintiff's consent and for marital purposes. Wornom v. Wornom, 126 N.C. App. 461, 485 S.E.2d 856 (1997).

Property Held to be Marital as it Was Not Traceable to Funds from Separate Property. - Competent evidence supported the trial court's finding that the brokerage account was marital property, as the funds stemmed from deposits made during the marriage and the husband was unable to trace the funds back to the funds he inherited from his mother. Comstock v. Comstock, 240 N.C. App. 304, 771 S.E.2d 602 (2015).

In order for property to be considered marital property it must be acquired before date of separation and must be owned at date of separation. Foster v. Foster, 90 N.C. App. 265, 368 S.E.2d 26 (1988), cert. denied, 324 N.C. 245, 376 S.E.2d 739 (1989).

Marital property is valued as of the date of the parties' separation. This valuation date is used to determine the equitable distributive share of each party. However, where there is evidence of active or passive appreciation of the marital assets after that date, the court must consider such appreciation as a factor under subdivision (c)(11a) or (12), respectively. Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385, cert. denied, 323 N.C. 174, 373 S.E.2d 111 (1988).

The trial court must make a written finding of the passive or active character of post-separation appreciation and in that context the trial court is not required to quantify the post-separation increase on each marital asset as active or passive but must make ultimate findings of fact regarding the character of the total post-separation appreciation. Smith v. Smith, 336 N.C. 575, 444 S.E.2d 420 (1994).

Requiring trial courts to make ultimate findings of fact as to whether post-separation appreciation is active or passive will effectuate meaningful appellate review by informing appellate judges as to how distributional factors were used. Smith v. Smith, 336 N.C. 575, 444 S.E.2d 420 (1994).

Passive Appreciation in Investment Account. - Any appreciation of an investment account established with the wife's separate funds was purely passive appreciation, and thus, appreciation was the wife's separate property, where the spouses merely met with an investment advisor and chose among investment alternatives. O'Brien v. O'Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998).

It was error not to classify, value, or distribute the passive appreciation of a husband's investment account because (1) the appreciation was marital property, and (2) the husband showed no prejudice from a delay between the end of trial and the entry of judgment. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

It was error not to classify, value, or distribute the passive appreciation of a husband's investment account because (1) the appreciation was marital property, and (2) the husband showed no prejudice from a delay between the end of trial and the entry of judgment. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

Passive Appreciation in Value of Home. - Where a home, which the parties had contracted to purchase before their separation, but which the husband, after separation, had purchased using marital funds and a mortgage that he obtained in his own name, was properly considered marital property, the appreciation in the value of the home was also properly considered marital property under G.S. 50-20(b)(4)(a), because the parties stipulated, and the record established, that the post-separation appreciation was the result of market forces alone. Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009).

Trial court erred in finding that no evidence was presented concerning the value of the marital home as of the date of distribution given the wife's testimony and in failing to make any findings based on the competent evidence that was presented. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

Increase in Value of Separate Property Due to Active Appreciation Is Marital Property. - Subdivision (b)(2) of this section refers only to passive appreciation of separate property, such as that due to inflation, and not to active appreciation resulting from the contributions, monetary or otherwise, by one or both spouses. The increase in the value of separate property due to active appreciation, which otherwise would have augmented the marital estate, is marital property. Lawrence v. Lawrence, 75 N.C. App. 592, 331 S.E.2d 186, cert. denied, 314 N.C. 541, 335 S.E.2d 18 (1985).

While an inherited interest in a closely-held corporation qualifies as separate property under the statute, any increase in its value due to active appreciation is marital property. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

An increase in value of separate property due to active appreciation, which otherwise would have augmented the marital estate, is marital property. Thus the marital partnership shares in increases in the value of property it has proportionately "acquired" in its own right. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Active appreciation of the value of separate property due to contributions of either spouse during marriage is nonetheless marital property, and therefore, is subject to equitable distribution. Rogers v. Rogers, 90 N.C. App. 408, 368 S.E.2d 412, cert. denied, 323 N.C. 366, 373 S.E.2d 548 (1988).

The post-separation appreciation of marital property must be treated as a distributional factor under subdivision (c)(11a) or (c)(12). Mrozek v. Mrozek, 129 N.C. App. 43, 496 S.E.2d 836 (1998).

Payments Decreasing Marital Debt and Related Financing Charges and Interest. - Since the husband's payments decreased financing charges and interest related to marital debt, those payments, to the extent made after the amendment to G.S. 50-20(b)(4)(d), constituted divisible property. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

When a spouse uses separate property in the acquisition of property titled by the entireties, a gift to the marital estate is presumed; this presumption is rebuttable only by clear, cogent and convincing evidence that a gift was not intended. McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 (1988).

Bonus Payments. - A bonus based upon work performed during the marriage is not necessarily marital property. The bonus must also be vested. Edwards v. Edwards, 110 N.C. App. 1, 428 S.E.2d 834, cert. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).

Vested Stock Options. - Stock options granted an employee by his or her employer which are exercisable upon the date of separation or which may not be cancelled, and which may, therefore, be said to be vested as of the date of separation, are marital property. Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Unvested Entitlement to Stock. - Where the wife entered into an employment agreement with the employer just prior to the parties' separation under which the wife was entitled to receive 10,000 shares of the employer's stock, which was eventually exchanged with the stock of a corporation that later purchased the employer, the proceeds from the sale of the corporation's stock were properly classified as divisible under G.S. 50-20(b)(4)(b), or in the alternative, marital under G.S. 50-20(b)(1); marital property under G.S. 50-20(b)(1) included both vested and nonvested stock options, and although the wife's shares of stock did not vest until after the date of separation, the wife's employment agreement, executed prior to the separation, created the wife's right to the shares. Ubertaccio v. Ubertaccio, 161 N.C. App. 352, 588 S.E.2d 905 (2003), aff'd, 359 N.C. 175, 604 S.E.2d 912 (2004).

With regard to failure of trial court to equally divide the marital debts, subdivision (c)(11a) was not controlling where the payment of the marital debts in question was ordered as a part of the award of alimony pendente lite. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408 (1988).

Active Appreciation in Nonowned Real Property. - Where marital funds were expended to make improvements upon the couple's nonowned dwelling, the improvements were an asset acquired by the parties during marriage; consequently, plaintiff was entitled to an equitable share in the insurance proceeds realized upon destruction of the premises. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

Improvements on Nonowned Property. - Parties had a marital property interest in premises owned by defendant's parents arising from the improvements in the property accomplished by the parties during their marriage. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

When a third party holds legal title to property which is claimed to be marital property, that third party is a necessary party to the equitable distribution proceeding, with their participation limited to the issue of the ownership of that property. Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61 (1996), review denied, 343 N.C. 517, 472 S.E.2d 26 (1996).

It was error to include houses titled in the name of the parties' minor child in the marital estate because (1) a guardian ad litem had not been appointed to represent the child's adverse property interests, and (2) it was not found by clear and convincing evidence that the houses were subject to a constructive trust created during the marriage. Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

Taxes on Maritally Owned Property. - A debt incurred during marriage for the joint benefit of husband and wife is a marital debt, and taxes on maritally owned property is such a debt. Bowman v. Bowman, 96 N.C. App. 253, 385 S.E.2d 155 (1989).

Insurance proceeds intended as exclusive recompense for a spouse's lost wages and medical expenses are part of the marital estate subject to distribution. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985).

Life Insurance Proceeds from Death of Ex-Husband. - Defendant executed a life insurance policy on her ex-husband prior to her marriage to plaintiff, but defendant paid the insurance premiums in part with money she received from plaintiff, such that the insurance premiums were paid in part with marital funds; because defendant received the proceeds before separating from plaintiff, the trial court did not err in concluding the proceeds were marital property. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

Wife's Checking Account Used to Pay Insurance Premiums. - Trial court's finding that the wife's checking account was marital, and thus the funds used to pay the last life insurance premium for defendant's ex-husband were marital, was not an abuse of discretion; defendant presented no evidence showing any of the money in the account was acquired by devise, descent, or gift, such that it would constitute separate property, and she also presented no evidence showing any premarital funds still existed in the account after eight years. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

Wife was entitled to a proportionate return on the $5,000 in marital funds which she contributed toward purchase of property. Peak v. Peak, 82 N.C. App. 700, 348 S.E.2d 353 (1986), remanding for findings to determine the reasonableness of the court's award.

The trial court properly classified the parties' residence as marital property, where the parties' residence was titled in their names as entireties property, and the defendant did not come forward with clear, cogent, and convincing evidence to rebut the presumption created by the property being titled as entireties property. Thompson v. Thompson, 93 N.C. App. 229, 377 S.E.2d 767 (1989).

Since in an equitable distribution proceeding, only marital property is subject to distribution by the court, the trial court was without authority to appoint the spouses as trustees of an educational fund belonging to the parties' two children; further, the condition that the funds would be distributed to the children only after they complete four years of college is a creation of the court and one for which the trial court had no authority. Lawrence v. Lawrence, 100 N.C. App. 1, 394 S.E.2d 267 (1990).

Property Subject to Bankruptcy Proceedings. - When a pending claim for equitable distribution concerns property whose status as marital is foreseeably a matter of some dispute, a former spouse cannot sit on her rights in bankruptcy, only to surface later and lay claim to that property after it had already been subjected to possible liquidation, attachment, or other manner of disposal. Walston v. Walston, 190 Bankr. 66 (E.D.N.C. 1995).

Term "marital property" under G.S. 50-20 is used to determine asset distribution in a divorce and has no application in the context of bankruptcy exceptions. In re Evans, 2009 Bankr. LEXIS 3268 (Bankr. M.D.N.C. Oct. 8, 2009).

Leased Car. - The trial court did not err in failing to classify, value, and distribute a leased Porsche as a marital asset, where after the separation date, defendant returned the car to the leasing company and received no money in return because he had no equity in it. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Goodwill of Corporation. - The trial court erred in concluding that the goodwill of the corporation was an asset unique to plaintiff and in finding 100% of the goodwill to be a marital asset. Using the uncontested value of the goodwill, the trial court should include that value as part of the valuation of the corporation, calculate the portion of the corporation that is marital at 80%, and distribute accordingly. Tucker v. Miller, 113 N.C. App. 785, 440 S.E.2d 315 (1994).

Post-separation appreciation of a marital asset is not marital property and therefore cannot be distributed by the trial court. Such appreciation is a distributional factor which the court must consider in resolving what division of the marital property would be equitable. Fox v. Fox, 114 N.C. App. 125, 441 S.E.2d 613 (1994).

A marital debt is one incurred, during the marriage and before the date of separation, by either or both spouses for the joint benefit of the parties. Huguelet v. Huguelet, 113 N.C. App. 533, 439 S.E.2d 208, cert. denied, 336 N.C. 605, 447 S.E.2d 392 (1994).

Any debt incurred by one or both of the spouses after the date of separation to pay off a marital debt which exists on the date of separation is properly classified as a marital debt. Huguelet v. Huguelet, 113 N.C. App. 533, 439 S.E.2d 208, cert. denied, 336 N.C. 605, 447 S.E.2d 392 (1994).

Separate debt cannot be distributed; however, the trial court should consider such debt as a factor in deciding what constitutes an equitable division of the marital property. Fox v. Fox, 114 N.C. App. 125, 441 S.E.2d 613 (1994).

Sufficient evidence supported the finding that a 2012 tax debt was marital where the parties had not separated until 2013. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

Sufficient evidence supported the finding that a credit card debt was marital where the husband testified that the balance of the credit card was $8,895.84 as of a statement date of January 20, 2013, and the parties' date of separation was January 5, 2013. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

Trial court properly classified a refinanced mortgage as marital debt where although it was in the husband's name and was incurred after the couple separated, the wife previously acknowledged that because she was under financial strain before the property was listed for sale, the parties refinanced the property to get a lower rate and pay off other marital debt, and the wife's name was left off the refinanced mortgage because her credit score was lower. Sluder v. Sluder, - N.C. App. - , 826 S.E.2d 242 (2019), review denied, 372 N.C. 705, 830 S.E.2d 838, 2019 N.C. LEXIS 737 (2019).

Federal Income Tax Debt. - From approximately 2010 to 2016, plaintiff was the sole wage earner of the family, and during that time, the parties' accrued federal income tax debt totaling $ 62,783.96, including failure-to-pay penalties; competent evidence supported the finding that the federal income taxes owed from 2010 to 2015 were marital, as was a portion of plaintiff's 2016 tax debt, which was otherwise separate. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

Loan Repayment on Real Property Was All Marital Property. - In equitably distributing parties' real property, on remand, trial court's failure to classify all of a loan repayment as marital was error because the payoff was made during the marriage and the husband failed to establish what portion, if any, of the loan reduction was made prior to the marriage. Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

Federal Tax Lien Properly Classified as Marital Debt. - A federal tax lien on a masonry business started by the husband after the parties' marriage was properly determined to be a marital debt since the business profits were for the joint benefit of the parties as husband and wife during the marriage. Glaspy v. Glaspy, 143 N.C. App. 435, 545 S.E.2d 782 (2001).

Payment of Marital Debt. - Trial court erred in failing to find that a former husband's payments on an equity line of credit were divisible property; as the value of the debt at separation exceeded the original pre-marital debt, some portion of the increase in the debt occurred during the marriage. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

Payments on Marital Home. - Trial court properly found that a former husband's post-separation payments on the marital home were not divisible property because they were in the nature of an award of support to the former wife. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

Marital Property in Bankruptcy Proceedings. - Where a bankruptcy trustee objected to the use by a wife of her wild card exemption for property owned by her husband, a claim for equitable distribution was, under G.S. 50-20(b), a species of common ownership that vested at the time of the parties' separation; this vested right, however, did not create a property right in the marital property. In re Horstman, 276 B.R. 80 (Bankr. E.D.N.C. 2002).

C. SEPARATE PROPERTY GENERALLY.

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Legislative Intent. - Subsection (b) expresses a clear legislative intent that separate property brought into the marriage or acquired by a spouse during the marriage be returned to that spouse, if possible, upon dissolution of the marriage. Friend-Novorska v. Novorska, 131 N.C. App. 508, 507 S.E.2d 900 (1998).

There is no requirement that spouse who owns separate property declare the intention that the property remain separate, or that the property for which separate property is exchanged be separate. Lewis v. Lewis, 98 N.C. App. 138, 389 S.E.2d 638, cert. denied, 327 N.C. 637, 399 S.E.2d 124 (1990).

Separate property remains separate property when it is exchanged for other separate property unless the conveyance states a contrary intention. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Property acquired in exchange for separate property is separate property, as is income derived from separate property and as are increases in the value of separate property. Caudill v. Caudill, 131 N.C. App. 854, 509 S.E.2d 246 (1998).

Separate property is not subject to equitable distribution. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

And Must Be Returned to Spouse Who Owns It. - Separate property brought into the marriage or acquired by a spouse during the marriage must be returned to that spouse, if possible, upon dissolution of the marriage. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

Separate Property Remained Separate Absent a Clear Expression of Intent to Give it to the Marital Estate. - When a husband moved a house he had owned prior to the parties' marriage onto a lot owned by the parties as tenants by the entirety, and the lot and house were sold, it was error for a trial court to classify all of the proceeds from that sale as marital property because, under G.S. 50-20(b)(2), the separate property remained separate absent a clear expression of the husband's intent to give the property to the marital estate, and there were no findings indicating such an intent, so the trial court had to determine how much of the proceeds were attributable to the husband's separate house, and how much were attributable to the lot. Goldston v. Goldston, 159 N.C. App. 180, 582 S.E.2d 685 (2003).

Effect of Title. - Where land or personalty is purchased with the "separate property" of either spouse, it remains the "separate property" of that spouse, regardless of how the title is made. Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982).

Appreciation. - it is not necessary to determine whether post-separation appreciation of a marital asset caused by the activities of a spouse should be treated as the separate property of that spouse where the spouse was paid a fee from marital assets to perform the very services causing the post-separation appreciation to occur, and here, the wife was bound by the manner in which these distributions to the husband were treated on the company tax returns; the husband performed post-separation activities that resulted in part of the appreciation, and the findings supported the treatment of this appreciation as the husband's separate property. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Passive Appreciation in Separate Property's Value Is Separate Property. - Subdivision (b)(2) of this section, which classifies an increase in value of separate property as separate property, refers only to an increase due to passive appreciation, which does not deplete the marital state. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

Increases in value of separate property remain separate property only to the extent that the increases are passive, as opposed to active appreciation resulting from the contributions of the parties during the marriage. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

No Active Appreciation In Value of Medical License. - Where plaintiff was unable to show an increase in the value of defendant's medical license and the evidence tended to show that marital efforts led to the acquisition of the separate property rather than to an active increase in its value, the trial court did not err in refusing to value the active appreciation. Conway v. Conway, 131 N.C. App. 609, 508 S.E.2d 812 (1998).

No Difference Between Passive and Active Increases in Evaluating Contributions. - For the purposes of evaluating contributions to the marital economy for equitable distribution, there is no difference between "passive" increases in separate property (interest, inflation) and "active" increases brought about by the labor of third parties for whom neither spouse has responsibility. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Wife's Contribution to Husband's Separate Property. - Fact that wife's contributions to husband's separate property, a beach condominium, consisted of those functions which a homemaker performs did not disentitle her from having the appreciation in the property's value classified as marital property. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Courts have consistently recognized the interest acquired by the nontitled spouse in separately-owned property which increases in value due to the personal efforts of the nontitled spouse. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

There is no rule of law which even intimates that a nontitled spouse should be penalized and not allowed a return on his or her investment because the efforts expended were characteristic of those which a caring and loving spouse would have performed in any event. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Annuity and Bank Account. - As to annuity and bank account acquired in exchange for separate property of husband, there was no error in the trial court's conclusion that the property remained the separate property of husband, where although husband added wife's name to the bank account and annuity, the record disclosed no evidence of any intention that the funds would not remain his separate property. Manes v. Harrison-Manes, 79 N.C. App. 170, 338 S.E.2d 815 (1986).

Social Security Disability Benefits. - The defendant's Social Security disability benefits should not have been valued within the marital estate and distributed as part of the marital estate. Cooper v. Cooper, 143 N.C. App. 322, 545 S.E.2d 775 (2001).

Spouse's Disability Benefits. - Where a spouse's disability benefits replaced the spouse's post-separation loss of earning capacity, the benefits were properly classified as separate marital property and was not includable in the property distribution. Finkel v. Finkel, 162 N.C. App. 344, 590 S.E.2d 472 (2004), cert. denied, 358 N.C. 234, 595 S.E.2d 150 (2004).

Insurance Proceeds. - There were no vested rights under the homeowner's insurance policy on the marital residence, as the parties' policy lapsed subsequent to their separation, and defendant took out a new policy on the marital residence in her sole name and it was only after separation that the rights under the policy vested after a tornado damaged the residence; because the premiums on the policy were paid with defendant's assets, the proceeds from the policy were the separate property of defendant, and the trial court erred by concluding otherwise. Robbins v. Robbins, 240 N.C. App. 386, 770 S.E.2d 723 (2015).

Separate Property Used to Pay Mortgage. - Separate property in the sum of $8,983.37 acquired by wife from her mother, which was used to help pay the mortgage on the family residence held as tenants by the entirety, became marital property upon such use. Draughon v. Draughon, 82 N.C. App. 738, 347 S.E.2d 871 (1986), cert. denied, 319 N.C. 103, 353 S.E.2d 107 (1987).

Competent evidence supported the trial court's finding that a parcel of real property was a wife's separate property, even though the parcel was acquired during the parties' marriage, because the wife used her separate property to borrow funds to purchase the parcel, the title was placed only in the wife's name, and the rental income from the parcel was used to pay the mortgage and other expenses. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Competent evidence supported the trial court's finding that a parcel of real property was a wife's separate property because the wife acquired the property prior to marriage, made the mortgage payments on that property using the rental income generated from the property, and an increase in value of the property was derived through the wife's maintenance and rental of the property to third parties. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Where mortgage payments made after separation consisted entirely of defendant's separate property, it would appear that defendant should be credited with at least the amount by which he decreased the principal owed in the marital home. Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987).

Despite fact that the plaintiff and the defendant shared custody of the children by alternating their presence in the marital home during the couple's separation, the court erred in failing to credit plaintiff with paying the entire mortgage debt on the marital property as of the date of separation. Hendricks v. Hendricks, 96 N.C. App. 462, 386 S.E.2d 84 (1989), cert. denied, 326 N.C. 264, 389 S.E.2d 113 (1990).

The entireties conveyance itself sufficiently indicated the "contrary intention" under this section to preserving separate property. Thompson v. Thompson, 93 N.C. App. 229, 377 S.E.2d 767 (1989).

Separate Property Exchanged for Property Owned as Tenants by the Entireties. - Husband was presumed to have made gift of separate property to marital estate where separate property was exchanged for residential lot which was owned by parties as tenants by the entireties without reservation of interest. Haywood v. Haywood, 106 N.C. App. 91, 415 S.E.2d 565, cert. denied, 331 N.C. 553, 418 S.E.2d 665 (1992), cert. denied, 331 N.C. 553, 418 S.E.2d 666 (1992).

House Bought with Proceeds of Separate Property. - The proceeds from the subsequent sale during marriage of a boat which husband had built before the marriage belonged to him, as the source of those funds, the boat, was his; when the monies were then used to construct husband's and wife's house, the house became the separate property of the husband, absent evidence that the home was taken by the entireties, or that husband made a gift of the house to his wife. Lewis v. Lewis, 98 N.C. App. 138, 389 S.E.2d 638, cert. denied, 327 N.C. 637, 399 S.E.2d 124 (1990).

Storage of Separate Property in Joint Safety Deposit Box. - Gold coins that were acquired in exchange for the plaintiff's separate property were the plaintiff's separate property. That the plaintiff stored the coins in a joint safety deposit box was not an express contrary intention in the conveyance that the coins be considered to be marital property. Haywood v. Haywood, 106 N.C. App. 91, 415 S.E.2d 565, cert. denied, 331 N.C. 553, 418 S.E.2d 665 (1992), cert. denied, 331 N.C. 553, 418 S.E.2d 666 (1992).

Where a $17,000 BMW was paid with $10,000 given to the husband by his grandmother and deposited by him in a joint bank account, and there was no evidence of any donative intent, absent the deposit, $10,000 of the BMW purchase price should be considered the husband's separate property. Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852 (1988).

Where an automobile was purchased prior to marriage with a $7,000 down payment by husband, and was titled to both husband and wife, and they both made payments out of separate funds before marriage, and wife continued to make payments during separation, the automobile should not have been included as marital property in divorce proceedings but instead should have been apportioned pro rata to each estate (husband's separate, wife's separate, and marital). Tiryakian v. Tiryakian, 91 N.C. App. 128, 370 S.E.2d 852 (1988).

Trial court did not err in classifying husband's various aircraft, and related income, as his separate property, under G.S. 50-20(b)(2), because it was all traceable to an airplane the husband purchased prior to the parties' marriage. Fountain v. Fountain, 148 N.C. App. 329, 559 S.E.2d 25 (2002).

Trial Court Erred in Classifying Husband's Settlement Fees as Separate Property. - Husband's right, as partner of the law firm, to a share in the settlement fees was secured and established prior to the date of separation and could not be canceled; thus, pursuant to former G.S. 50-20(b)(1), it was error to classify the husband's portion of the settlement fee as the husband's separate property. Rice v. Rice, 159 N.C. App. 487, 584 S.E.2d 317 (2003).

Nonvested Stock Options. - Stock options granted to an employee by his or her employer which are not exercisable as of the date of separation and which may be lost as a result of events occurring thereafter are not vested, and should be treated as the separate property of the spouse for whom they may, depending upon circumstances, vest at some time in the future. Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Money in Separate Account. - In divorce proceeding, where defendant argued that because her father gave money to her, and she deposited it in an account which was solely in her name, that the account should be classified as her separate property, however, the only evidence which was presented indicating donative intent as to this gift was defendant's testimony that "well, my daddy wants me to have this and I'm going to keep it separate," defendant did not meet the burden of showing by a preponderance of the evidence that the account met the definition of separate property. Johnson v. Johnson, 114 N.C. App. 589, 442 S.E.2d 533 (1994).

Husband's Corporation Was Separate Property. - Pursuant to G.S. 50-20(a), a district court could not order a corporation to make monthly payments to a wife to repay the home equity line of credit that her husband took out to support the corporation after it found that the corporation was the husband's separate property; an equitable lien or another lawsuit was the proper method for obtaining such relief. Mugno v. Mugno, 205 N.C. App. 273, 695 S.E.2d 495 (2010).

Inherited Funds Deposited in Joint Account. - Funds deposited into a joint account were the separate property of the husband, where the funds were inherited from the husband's mother even though he stated he intended to use part of the inheritance for marital purposes. Friend-Novorska v. Novorska, 131 N.C. App. 508, 507 S.E.2d 900 (1998).

Transmutation Doctrine Rejected. - The doctrine of transmutation is not recognized in this State, so that the mere commingling of marital funds with separate funds alone does not automatically transmute the separate property into marital property. O'Brien v. O'Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998).

Gifts. - Trial court did not err in classifying a luxury watch as a wife's separate property because the watch was given to the wife by her employer, the wife presented evidence that her employer was generous and often gave gifts to employees, and the husband presented no evidence demonstrating the watch was intended as a form of compensation. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Gifts to Spouse. - In equitable distribution cases, gifts to a spouse from the other spouse may be classified as separate property under subsection (b)(2). Milner v. Littlejohn, 126 N.C. App. 184, 484 S.E.2d 453 (1997).

The party seeking to show its separate nature must show by the preponderance of the evidence that the gift was given with such and intention. Milner v. Littlejohn, 126 N.C. App. 184, 484 S.E.2d 453 (1997).

Checks from the wife's aunt made out to the husband were the wife's separate property, where in attempting to distribute her property to her beneficiaries to avoid inheritance taxes, the aunt sent two $10,000 checks to the husband but noted in a letter her intention that the checks were gifts for the wife. O'Brien v. O'Brien, 131 N.C. App. 411, 508 S.E.2d 300 (1998).

In a divorce, gifts from the a husband's father were properly considered to be marital property, under G.S. 50-20(b)(1) and (2), because: (1) the evidence showed the gifts, even if given to the husband alone, were commingled with marital funds; and (2) the husband did not trace where the gifts were located at the time of separation. Power v. Power, 236 N.C. App. 581, 763 S.E.2d 565 (2014).

Ex-Wife's Life Insurance Proceeds Was Gift And Husband's Separate Property. - Trial court did not err in classifying life insurance proceeds as a gift and husband's separate property; his former wife owned and paid for the life insurance policy until her death, and husband being the sole beneficiary of the policy supported the trial court's conclusion that former wife did not intend to make a gift of the proceeds to the marriage or to current wife. Richter v. Richter, - N.C. App. - , 845 S.E.2d 99 (2020).

Trial court's treatment of the husband's separate property interest in the medical practice as a distributional practice was not an abuse of discretion. White v. Davis, 163 N.C. App. 21, 592 S.E.2d 265 (2004).

Effect of Stipulation Regarding One Account Did Not Extend to Other Assets. - Stipulation regarding a life insurance proceeds account did not require the trial court to classify all disputed assets as the husband's separate property and did not prevent the wife's challenge to the trial court's classification the house, the individual retirement account, and an annuity account, despite funds from the life insurance proceeds account being used during the marriage to acquire those assets; the stipulation only applied to the life insurance proceeds account. Richter v. Richter, - N.C. App. - , 845 S.E.2d 99 (2020).

Separate Debt. - It was error to classify part of a debt as a husband's separate debt because a certificate of satisfaction showed the debt was paid. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Enforcement. - Superior court erred in dismissing an ex-wife's complaint - arising from an equitable distribution award ordered (ED Order) by the district court against her ex-husband, prior to his death - as untimely because, while the claim was not time-barred, the wife's claim for a declaratory judgment was directly related to enforcement of the ED Order, was not a claim against the estate, and had to be enforced in the district court, which had exclusive jurisdiction over the enforcement of its equitable distribution order. Smith v. Rodgers, 263 N.C. App. 662, 824 S.E.2d 155 (2019).

D. PROFESSIONAL AND BUSINESS LICENSES.

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Valuation of Professional Practice and Goodwill Generally. - In ordering an equitable distribution of marital property, a court should make specific findings regarding the value of a spouse's professional practice and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuations are based, preferably noting the valuation method or methods on which it relied. The court may appoint an additional expert witness under G.S. 8C-1, Rule 706, if needed. On appeal, if it appears that the trial court reasonably approximated the net value of the practice and its goodwill, if any, based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Where trial court established a net value for husband's landscaping business equal to the net value of the tangible assets of that business, and it could not be determined from the court's findings what method the court used in determining that the business had no goodwill and whether that determination was based on a sound method of valuation, the cause would be remanded for further findings as to the value of plaintiff's business. Draughon v. Draughon, 82 N.C. App. 738, 347 S.E.2d 871 (1986), cert. denied, 319 N.C. 103, 353 S.E.2d 107 (1987).

Criteria for valuation of a professional association set out in Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985), are factors for the court to consider in valuing a professional interest, and are not criteria for admissibility of the expert's opinion. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Goodwill is an asset which must be valued and considered in determining the value of a professional practice for purposes of equitable distribution. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Trial court's recognition of the existence of corporation's goodwill, but failure to determine its value, was error. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

Method of Valuation. - Any legitimate method of valuation that measures the present value of goodwill by taking into account past results, and not the post-marital efforts of the professional spouse, is a proper method of valuing the goodwill of a professional practice. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Factors listed in Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985), as relevant in valuing goodwill, namely, age, health, reputation of the practitioner, nature of the practice, length of time in existence, profitability, and comparative professional success, are helpful, though not exclusive or absolute. McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 (1988).

When a professional practice has not been established for a sufficient period to determine goodwill based on comparable past earnings, the capitalization of excess earnings method of valuing goodwill should be used, which is based in part on the amount by which the earnings of the professional spouse exceed that which would have been earned by a person with similar education, experience, and skill as an employee in the same general locale. Conway v. Conway, 131 N.C. App. 609, 508 S.E.2d 812 (1998).

License to Practice Dentistry. - It was error for the trial court to fail to find that a spouse's license to practice dentistry was separate property. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

In an equitable distribution action, the dental license of a practicing dentist was separate property, which the trial court should have considered as one of the factors affecting equitable distribution. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Medical License and Interest in Medical Clinic. - The trial court did not commit error in concluding as a matter of law that the husband's medical license, including any increases or additions thereto, whether active or passive, as well as his interest in a medical clinic, constituted his separate property. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209 (2000).

Value of Spouse's Law Practice. - On remand to determine the value of spouse's law practice, the trial court was directed to consider the following components of the association as enumerated in Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985): (a) its fixed assets including cash, furniture, equipment, and other supplies; (b) its other assets including accounts receivable and the value of work in progress; (c) its goodwill, if any; and (d) its liabilities. McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 (1988).

Appointment of Expert to Appraise Dental Practice. - In an equitable distribution action, the trial court has the authority under G.S. 8C-1, Rule 706 to appoint an expert witness to appraise the goodwill and other value of a dental practice. Dorton v. Dorton, 77 N.C. App. 677, 336 S.E.2d 415 (1985).

Criteria for admissibility of an expert opinion as to the value of a professional association set out in Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985), are factors for the court to consider in valuing the professional interest, and are not criteria for admissibility of the expert's opinion. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff 'd, Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645 (1969).

Valuation Held Unsupported. - The trial court's valuation of a spouse's professional association, based on "available evidence including the tangible assets and net income" of the practice, did not appear to be based on a sound method of valuation, nor was it supported by the evidence, and for this reason the equitable distribution order was vacated and remanded for a new hearing. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

E. PENSION AND RETIREMENT BENEFITS.

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Editor's Note. - Some of the cases below were decided prior to the amendments to this section by Session Laws 1987, c. 663, and all were decided prior to the amendment by Session Laws 1991 (Reg. Sess., 1992), c. 960.

As to distributive award of benefits, see also analysis line III. C., Distributive Awards.

Constitutionality of Reclassifying Pension as Marital Property. - Claim that husband's rights to due process and equal protection were violated because the Equitable Distribution Act was applied retroactively and in a way which took his property without compensation was meritless. Husband's expectation of a continuance of existing law relating to pension payments did not amount to a vested right. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

The 1987 amendment did not change the portion of the section permitting retirement benefits to be made payable "[a]s a prorated portion of benefits." In both versions of the section, the award is based on the benefits vested at the time of separation and must include any "growth" or "gains and losses" arising out of the vested benefits. Neither version permits an award based on contributions after the date of separation. Workman v. Workman, 106 N.C. App. 562, 418 S.E.2d 269 (1992).

Applicability of Amendment Making Vested Pension Rights Marital Property. - The 1983 amendment to this section which reclassified vested pension and retirement rights as marital property is applicable only to actions for absolute divorce filed on or after August 1, 1983. Morton v. Morton, 76 N.C. App. 295, 332 S.E.2d 736, cert. denied and appeal dismissed, 314 N.C. 667, 337 S.E.2d 582 (1985); Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985), cert. denied, 316 N.C. 376, 344 S.E.2d 1 (1986).

Where an action for divorce is filed before August 1, 1983, all pension and retirement rights are considered separate property for purposes of equitable distribution. Where a divorce action is filed on or after August 1, 1983, vested pension and retirement rights are considered marital property, and the expectation of nonvested rights are considered separate property. Johnson v. Johnson, 74 N.C. App. 593, 328 S.E.2d 876 (1985).

The amendment of this section to include military pensions as marital property, made effective August 1, 1983, is presumed to apply prospectively only. Morris v. Morris, 79 N.C. App. 386, 339 S.E.2d 424, cert. denied, 316 N.C. 733, 345 S.E.2d 390 (1986).

In an action instituted on July 29, 1983, only three days prior to August 1, 1983, when amendment to subdivision (b)(1) of this section took effect making vested pension or retirement rights marital property, the trial court's consideration, under the "catchall" provision of subdivision (c)(12), of the timing of the action in deciding whether an equal distribution of the marital property would be equitable was essentially a superfluous restatement of its finding under subdivision (c)(5) as it then read, requiring the court to consider pension or retirement rights, and was not error. Peak v. Peak, 82 N.C. App. 700, 348 S.E.2d 353 (1986).

Defendant, an enlisted man, was not guaranteed the right to receive retirement benefits because defendant had served only 17 years in the military; therefore, defendant did not have a vested right to retirement benefits at the time the parties separated. George v. George, 115 N.C. App. 387, 444 S.E.2d 449 (1994).

Application of Equitable Distribution Held Not Retroactive When Pension Benefits Had Accrued Prior to Adoption. - Although the defendant's right to his pension benefits had accrued fully prior to the adoption of the Equitable Distribution Act and the August 1, 1983 amendment to G.S. 50-20 subjecting his pension to equitable distribution, the act and amendment did not affect his property interests until the plaintiffs claim for equitable distribution was filed on May 14, 1984, well after both the act and the amendment became effective. This was not a retroactive application of the act or of the amendment. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

1982 Agreement Held to Bar Share in Spouse's Military Pension. - Separation agreement entered into on August 2, 1982, which contained no reference to defendant-husband's military pension, but specifically provided that each party was forever barred from any or all rights or claims not therein reserved which arose out of the marital relation and that each party released and relinquished all claims or interest in and to all property of the other, whether then owned or subsequently acquired, barred an award to plaintiff wife under the Equitable Distribution Act of a share in defendant-husband's military pension; the subsequent amendment of the act effective August 1, 1983, to include military pensions as marital property, did not permit plaintiff-wife to avoid the release provisions of the agreement. Morris v. Morris, 79 N.C. App. 386, 339 S.E.2d 424, cert. denied, 316 N.C. 733, 345 S.E.2d 390 (1986).

Interest in Military Pension Not Dischargeable in Bankruptcy. - Marital property interests in a debtor's military pension are not dischargeable in bankruptcy. Walston v. Walston, 190 Bankr. 66 (E.D.N.C. 1995).

In the absence of an agreement of the parties, there are two methods for dividing retirement benefits: (1) award the pension to the employee-spouse and award other marital property of offsetting value to the other spouse under subdivision (b)(3)d, or (2) of this section divide the pension benefits if and when paid, under subdivision (b)(3)c of this section. The first method is known as the present value method, or the immediate offset method, while the second method is known as the fixed percentage method, or the deferred distribution method. Bishop v. Bishop, 113 N.C. App. 725, 440 S.E.2d 591 (1994).

Disability payments must be classified as the retiree's separate property and, as such, treated as a distributional factor. Bishop v. Bishop, 113 N.C. App. 725, 440 S.E.2d 591 (1994).

The amount of plaintiff's "disability retirement benefits" clearly attributable to his physical disability was plaintiff's separate property, under this section. Johnson v. Johnson, 117 N.C. App. 410, 450 S.E.2d 923 (1994).

In a divorce case, the trial court had authority to order that plaintiff pay defendant part of what plaintiff would have received had he taken retirement pay instead of electing to take Combat-Related Special Compensation disability benefits. The order did not require plaintiff to compensate defendant from his disability pay or classify the disability pay as marital property; although plaintiff had to compensate defendant according to the terms of the order, the funds could come from any source that plaintiff chose. Hillard v. Hillard, 223 N.C. App. 20, 733 S.E.2d 176 (2012).

Wife's Contributions as Homemaker to Husband's Vested Interest in Pension Plan. - In light of the subsequent recognition that vested pension and retirement rights should be considered marital property in the 1983 amendment to subsection (b)(1), fairness required that wife's contributions as a homemaker to the acquisition of at least husband's vested interests in the pension and profit sharing plans of his professional association should have been considered by the court under subsection (c)(12) in determining an equitable division of the marital property. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, cert. denied, 314 N.C. 543, 335 S.E.2d 316 (1985).

Because of the substantial disparity between the value of the pension benefits and the other assets of the parties, it was determined to be equitable to award fifty-five percent (55%) of the portion of the defendant's pension benefits that were accumulated during the marriage to the plaintiff, as provided for in subsection (b)(3)(c). Barlow v. Barlow, 116 N.C. App. 257, 447 S.E.2d 464 (1994).

The increased component of a retirement annuity, offered to a spouse only after separation and for which the spouse was not eligible without additional service after the date of separation, is separate property for purposes of equitable distribution, since the increase vested only after the date of separation, and since the incentive increase in pension benefits was compensation for the loss of future earnings. Boger v. Boger, 103 N.C. App. 340, 405 S.E.2d 591 (1991).

Gains on Retirement Benefits After Separation. - The trial court did not err by failing to account for and distribute gains which accrued on the parties' retirement benefits after the date of separation. Harvey v. Harvey, 112 N.C. App. 788, 437 S.E.2d 397 (1993).

Methods of Evaluation and Distribution. - For case discussing the relative advantages and disadvantages of the present discounted value method and the deferred distribution method in evaluating and distributing pension and retirement benefits, see Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd, 319 N.C. 367, 354 S.E.2d 506 (1987).

Distribution of Pension Was Not Restricted to Proportionally Equal Division. - Pursuant to former G.S. 50-20(b)(3), the trial court had various distributive choices that did not restrict it to a proportionally equal division of the pension itself as advocated by the wife. Rice v. Rice, 159 N.C. App. 487, 584 S.E.2d 317 (2003).

Prescribed valuation method under this section can be expressed as a fraction. The numerator of the fraction is the total period of time the marriage existed (up to the date of separation) simultaneously with the employment which earned the vested pension or retirement rights; the denominator is the total amount of time the employee spouse is employed in the job which earned the vested pension or retirement rights. This statutorily prescribed fraction automatically provides the method by which to value the pension or retirement pay, as marital property, as of the date of separation, by requiring the numerator to be the amount of time up to the date of separation that the employment which earns the retirement pay exists simultaneously with the marriage period. Lewis v. Lewis, 83 N.C. App. 438, 350 S.E.2d 587 (1986).

Division of Retirement Pay Upheld. - Where at the time the parties separated defendant had been in the Marine Corps during the marriage for 21 years, and at the time of the equitable distribution hearing defendant had been in the Marine Corps for 30 years and thus had achieved the maximum amount of retirement pay permitted regardless of the number of years served, the trial court properly calculated the amount of military retirement pay attributable to the marriage as 21/30 or seventy percent (70%), and having determined that an equal division was equitable, properly awarded the wife one-half of this seventy percent (70%), or thirty-five percent (35%), of the defendant's gross military retirement pay, while limiting this award to fifty percent (50%) of the defendant's disposable retired or retainer pay, consistent with the requirement of this section. Lewis v. Lewis, 83 N.C. App. 438, 350 S.E.2d 587 (1986) (decided prior to 1992 amendment).

Trial court properly awarded nonemployee spouse joint and survivor annuity benefits and pre-retirement benefits. Workman v. Workman, 106 N.C. App. 562, 418 S.E.2d 269 (1992).

Because the trial court had not previously addressed the issues of retirement included in the separation agreement entered into by the parties pursuant to G.S. 50-20(d), the trial court had the authority to enter its subsequent order awarding the ex-wife a portion of the ex-husband's military retirement pay; additionally, the appellate court concluded that the retirement provision of the separation agreement was not so overly broad or vague as to prevent the trial court from awarding the wife a portion of the husband's retirement pay. Brenenstuhl v. Brenenstuhl, 169 N.C. App. 433, 610 S.E.2d 301 (2005).

G.S. 135-9 and this section do not mandate entry of a Qualified Domestic Relations Order to assign a retirement plan; therefore, the plain language of a property settlement agreement incorporated into a consent order served to secure ex-wife's 20% interest in her ex-husband's state university retirement plan. Patterson v. Patterson, 137 N.C. App. 653, 529 S.E.2d 484 (2000).

Date-of-Separation Value for 401(k) Account. - The trial court erred in assigning a marital estate value to the 401(k) account other than its value on the date of separation. Cooper v. Cooper, 143 N.C. App. 322, 545 S.E.2d 775 (2001).

Calculation of Pension Value. - Under subsection (b)(3) the value of defendant's pension must be calculated as of the date of separation and years of service after the date of separation are not to be included in the valuation. Surrette v. Surrette, 114 N.C. App. 368, 442 S.E.2d 123 (1994).

Deferral of Distribution of Pension Benefits Held Error. - The trial court erred and abused its discretion when, after properly choosing in its discretion to use the present value evaluation method of husband's pension, it impermissibly postponed or deferred payment to wife instead of ordering immediate payment. Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd, 319 N.C. 367, 354 S.E.2d 506 (1987).

Court erred in deferring, until actual receipt, payments calculated under present valuation method of evaluating pension and retirement benefits. This, in effect, operated as a double reduction: plaintiff received a discounted value for immediate distribution, but nevertheless was required to wait to receive payment until, if and when, the defendant reached retirement and began receiving benefits. Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987).

But Deferral Possible Under Fixed Percentage Method. - Under the fixed percentage method of evaluating pension and retirement benefits, deferral of payment is possible without unfairly reducing the value of the award. The present value of the pension or retirement benefits is not considered in determining the percentage to which the nonemployee spouse is entitled. Moreover, because the nonemployee spouse receives a percentage of the benefits actually paid to the employee spouse, the nonemployee spouse shares in any growth in the benefits. Yet, the formula gives the nonemployee spouse a percentage only of those benefits attributable to the period of the marriage, and that spouse does not share in benefits based on contributions made after the date of separation. Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987).

Fifty-percent Cap Under Fixed Percentage Formula. - Use of the fixed percentage formula prohibits nonemployee spouse from receiving more than 50% of the retirement benefits. Workman v. Workman, 106 N.C. App. 562, 418 S.E.2d 269 (1992).

In-Kind Distribution, Anticipating Future Benefits, Allowed. - If the marital estate contains adequate property other than pension and retirement benefits, an in-kind or monetary distribution of these assets may be made which takes into account the anticipated pension and retirement benefits. This is impermissible only when the value of the pension or retirement benefits is so disproportionate in relation to other marital property that an immediate distribution would be inappropriate. Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987).

Benefits of amended pension plan which listed the vesting date prior to the date of separation were properly classified as marital property, and the court was also correct in valuing the pension at its net value, by subtracting the taxes which defendant had paid thereon. Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385, cert. denied, 323 N.C. 174, 373 S.E.2d 111 (1988).

Social Security Retirement Benefits Cannot Be Disbursed In Equitable Distribution Award. - Where at separation husband had received monthly Social Security retirement benefits of six hundred seventy-nine dollars ($679.00) and trial court awarded wife four-ninths of husband's Social Security, trial court erred in its award of Social Security benefits to wife since Social Security benefits cannot be disbursed in equitable distribution award. Cruise v. Cruise, 92 N.C. App. 586, 374 S.E.2d 882 (1989).

Court improperly used the withdrawal value of a pension plan as valuation method where the pension plan did not allow early withdrawal of accumulated monies. Stiller v. Stiller, 98 N.C. App. 80, 389 S.E.2d 619 (1990).

If the retirement account is distributed to one spouse, it is equitable to distribute other marital assets to the other spouse to offset the value of the pension, unless such a large distribution of immediate assets would be inequitable. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

The trial court erred by failing to classify a husband's retirement account as either marital or separate property where the husband's partnership agreement provided for vesting and both the husband's and the wife's experts testified about the value of the retirement interest. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Trial court erred in a divorce proceeding by classifying a wife's civil service retirement system pension as separate property; the General Assembly had indicated through the plain language of G.S. 50- 20(b)(1) that all pensions were to have been classified as marital property. Rowland v. Rowland, 175 N.C. App. 237, 623 S.E.2d 287 (2005).

Burden of Proof for Classification and Valuation. - It was the ex-wife who sought to have the ex-husband's pension classified as marital property, who had the burden of showing it was marital property, and of presenting evidence to support a valuation. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

Burden Was on Husband to Show What Portion of His Pension Was Separate Property. - When a trial court classified a husband's pension plan solely as marital property, even though a portion of the plan's value was earned prior to the marriage, this was not error, as the husband did not meet his burden of showing what portion of the pension was separate property. Embler v. Embler, 159 N.C. App. 186, 582 S.E.2d 628 (2003).

Failure to Rebut Presumption Spouse was Entitled to Half of 401K - Wife was entitled to half the husband's 401(k) retirement account because the husband failed to rebut the presumption that the wife was entitled to half of the account and failed to meet the burden of showing what portion of the account was separate property. Helms v. Helms, 191 N.C. App. 19, 661 S.E.2d 906 (2008), review denied, 362 N.C. 681, 670 S.E.2d 233 (2008).

Trial Court Properly Adopted Methodology Wife's Expert Used to Determine Life Expectancy. - Trial court properly applied step two of Bishop when adopting the methodology the wife's expert used to determine life expectancy because the expert performed precisely the calculations mandated by Bishop on a year-by-year basis until there would be no further life expectancy; the trial court's finding of fact setting out that methodology was sufficient to comply with Bishop. Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

III. DISTRIBUTION OF PROPERTY.

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A. IN GENERAL.

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Only Marital Property Distributed. - Under subsection (c), only marital property is subject to distribution. Rogers v. Rogers, 90 N.C. App. 408, 368 S.E.2d 412, cert. denied, 323 N.C. 366, 373 S.E.2d 548 (1988).

Pursuant to G.S. 50-20(a), once the trial court found that the vehicle was separate property, that property was not subject to distribution, and the trial court erred in specifying that the car was the property of the couple's oldest child. The trial court had no authority to distribute separate property. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Wife should not have been given monthly payments from a business in which the husband owned stock because under the North Carolina Equitable Distribution Act, G.S. 50-20, the court could only distribute marital and divisible property, not separate property. Mugno v. Mugno, - N.C. App. - , 693 S.E.2d 276 (June 1, 2010).

In equitably distributing parties' real property, on remand, the trial court erred in classifying certain post-separation payments that the wife made on a loan that was procured following separation as divisible property because they were not used to pay off marital debt but rather, were received by the wife at closing. Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

Separate Property Not Subject to Distribution. - There is no distinction to be made between "considering" and "distributing" a party's separate property in making a distribution of marital property or debt where the effect of the resulting order is to divest a party of property rights she acquired before marriage; the intent to avoid directly affecting a party's rights in separate property can be inferred from the text of the statute, and trial courts are not permitted to disturb rights in separate property in making equitable distribution award orders. Crowell v. Crowell, 372 N.C. 362, 831 S.E.2d 248 (2019).

Only considerations which are just and proper within the meaning of subdivision (c)(12) of this section are those related to the marital economy. Burnett v. Burnett, 122 N.C. App. 712, 471 S.E.2d 649 (1996).

Both legal and equitable interests are subject to distribution as marital property. Upchurch v. Upchurch, 128 N.C. App. 461, 495 S.E.2d 738 (1998), cert. denied, 348 N.C. 291, 501 S.E.2d 925 (1998).

Statute Does Not Create a Substantive Property Right in Marital Property. - Claimant spouse's assertion of the "innocent owner" defense provided by 18 U.S.C.S. § 983(d) in her claim to a camper, failed because the spouse could not establish that the camper was owned as tenants by the entirety, and although the spouse asserted that she was an owner of the camper because it was martial property under the North Carolina equitable distribution statute, North Carolina law was clear that the equitable distribution statue did not create a substantive property right in marital property. United States v. 1999 Starcraft Camper Trailer, - F. Supp. 2d - (M.D.N.C. Oct. 10, 2006).

Subsection (c) of this section establishes a presumption of equal division of the marital property. White v. White, 64 N.C. App. 432, 308 S.E.2d 68 (1983); Smith v. Smith, 71 N.C. App. 242, 322 S.E.2d 393 (1984), modified and aff'd, 314 N.C. 80, 331 S.E.2d 682 (1985).

And Equal Division Is Mandatory Absent Determination That It Would Not Be Equitable. - This section is a legislative enactment of public policy so strongly favoring the equal division of marital property that an equal division is made mandatory unless the court determines that an equal division is not equitable. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985); Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985); Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Equal division of marital property is mandatory unless the trial court determines that equal is not equitable. Coleman v. Coleman, 89 N.C. App. 107, 365 S.E.2d 178 (1988).

Equal division of the marital property mandatory, unless the court determines in the exercise of its discretion that such a distribution is inequitable. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Account Part Separate Property and Part Marital Property. - Trial court properly distributed a portion of an account as a husband's separate property and another portion of the account as marital property because its findings of fact supported its conclusion of law that the account was part separate property and part marital property; the husband routinely contributed marital funds to the account that were co-mingled with his separate funds. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Right to Equitable Distribution Revived. - Although G.S. 50-11(e) requires that a claim for equitable distribution be brought prior to the granting of the divorce; where the trial court granted defendant relief from the judgment of absolute divorce and permitted defendant to file her answer, the effect was the same as if the judgment had never been entered, and defendant's right to equitable distribution was revived. Baker v. Baker, 115 N.C. App. 337, 444 S.E.2d 478 (1994).

Where an executrix appealed the trial court's order, which dismissed the decedent's claims for divorce and equitable distribution against the decedent's wife, the trial court improperly dismissed the executrix's equitable distribution claim on basis that the claim abated upon the decedent's death; as there was no final determination of the claim, it was still pending on the effective date of G.S. 50-20(l), which caused the statute to apply retroactively to the executrix's claim. Bowen v. Mabry, 154 N.C. App. 734, 572 S.E.2d 809 (2002).

Lack of Jurisdiction to Order Distribution of North Carolina Uniform Transfers to Minors Act Account. - Trial court lacked jurisdiction to order the distribution of a Uniform Transfers to Minors Act account a husband managed for the parties' child because the child was not joined as a party to the action prior to adjudicating the ownership of the account, which was determined to be marital property; whether the account could be classified and distributed as marital property could only be determined if the child, who owned the legal title to the property, was made a party to the action. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Separation Agreement. - Trial court's equitable distribution order was vacated and remanded because the trial court erred by ordering equitable distribution of the property in contravention of the express terms of the now-court-ordered Separation Agreement and Property Settlement; the Agreement made the parties' intent clear that the provisions regarding ownership of property acquired after husband and wife entered into the 1988 Agreement were to remain unaffected by any later reconciliation and resumption of the marital relationship. Porter v. Porter, 217 N.C. App. 629, 720 S.E.2d 778 (2011).

The trial court did not abuse its discretion in ordering an unequal division of the marital property in favor of the defendant where the trial court concluded that because the defendant had physical custody of the two minor children born of the marriage she had a need to occupy the marital residence and because the plaintiff had an income approximately twice the defendant's income an unequal division in favor of the defendant was equitable. Barlowe v. Barlowe, 113 N.C. App. 797, 440 S.E.2d 279 (1994), aff'd, 339 N.C. 732, 453 S.E.2d 865 (1995).

When evidence is presented from which a reasonable finder of fact could determine that an equal division would be inequitable, the trial court is required to consider the factors set forth in subsection (c), but guided always by the public policy expressed in the act favoring an equal division. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Burden of Proving That Equal Division Is Not Equitable. - A party desiring an unequal division of marital property bears the burden of producing evidence concerning one or more of the twelve factors in the statute and the burden of proving by a preponderance of the evidence that an equal division would not be equitable. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985); Patton v. Patton, 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).

Subsection (c) of this section requires an equal division unless the trial court, in its discretion, determines that an equal division would not be equitable. The party seeking a greater than equal share bears the burden of proving that an unequal division would be equitable with respect to the 12 factors listed under subsection (c). Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985), cert. denied, 316 N.C. 376, 344 S.E.2d 1 (1986).

The burden is on the party seeking an unequal division of marital assets to prove by a preponderance of the evidence that an equal division is not equitable. Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Where the trial court has accepted an expert's methodology, a party desiring to challenge the methodology must produce other testimony challenging that methodology and set out the prejudicial error which resulted from its use. Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39, cert. denied, 338 N.C. 669, 453 S.E.2d 181 (1994).

Failure in Burden to Present Evidence. - Where the party claiming a debt to be marital has failed in his burden to present evidence from which the trial court can classify, value and distribute the property, that party cannot on appeal claim error when the trial court fails to classify the property as marital and distribute it. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

Because defendant did not seek to set aside her stipulations and present evidence to the trial court as to the value of the property at the date of distribution, defendant was bound by her stipulations. Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39, cert. denied, 338 N.C. 669, 453 S.E.2d 181 (1994).

Trial Judge Must Consider Distributional Factors. - Where the trial court's valuation of the marital home on the date of separation, the trial judge did not properly consider the post-separation appreciation as a distributional factor under subdivision (c)(11a) or (12). The trial judge must consider those distributional factors raised by the evidence of post-separation appreciation under subdivisions (c)(11a) and (12). Truesdale v. Truesdale, 89 N.C. App. 445, 366 S.E.2d 512 (1988).

Trial court erred in making no findings regarding the G.S. 50-20(c) factors and instead concluded only that an equal distribution of the property was equitable. The husband offered evidence in support of his request for an unequal distribution and the trial court was required to make findings of fact under G.S. 50-20(c) regarding any of the factors for which evidence was introduced at trial. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Task of a trial court when faced with an action under this section is to equitably distribute the marital property between the litigants. This is evident from the language and the title of the Act. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

Procedure to Be Followed. - In an action for equitable distribution, first the court must classify property as either marital or separate, as defined in subdivisions (b)(1) and (b)(2) of this section. Next it must divide the marital property equally, unless it determines that an equal division is not equitable. McLeod v. McLeod, 74 N.C. App. 144, 327 S.E.2d 910, cert. denied, 314 N.C. 331, 333 S.E.2d 488 (1985).

In applying the Equitable Distribution Statute, the trial judge must follow a three step procedure, i.e., (i) classification, (ii) evaluation and (iii) distribution. Cable v. Cable, 76 N.C. App. 134, 331 S.E.2d 765, cert. denied, 315 N.C. 182, 337 S.E.2d 856 (1985).

Under subsection (c) of this section, equitable distribution applies only to the net value of marital property. This requires the trial court to first ascertain what is marital property, then to find the net value of that property, and finally to make a distribution based upon the equitable goals of the statute and the various factors specified therein. Turner v. Turner, 64 N.C. App. 342, 307 S.E.2d 407 (1983); Lawrence v. Lawrence, 75 N.C. App. 592, 331 S.E.2d 186, cert. denied, 314 N.C. 541, 335 S.E.2d 18 (1985).

To equitably distribute property, it is necessary to identify the property owned, evaluate it and order its distribution. Capps v. Capps, 69 N.C. App. 755, 318 S.E.2d 346 (1984).

In equitably distributing parties' real property, on remand, the trial court properly treated the lot and house as a single asset and made no findings regarding the values or amounts of appreciation in the value of the lot or house separately, as such a method was supported by existing precedent. Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

In equitably distributing parties' real property, on remand, the trial court properly calculated the marital and separate portions of the property because it was based on the source of funds that had been contributed by the parties towards it, Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

Court Must Weigh Factors and Balance Evidence. - When evidence tending to show that an equal division of marital property would not be equitable is admitted, the trial court must exercise its discretion in assigning the weight each factor should receive in any given case. It must then make an equitable division of the marital property by balancing the evidence presented by the parties in light of the legislative policy which favors equal division. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

Court Not Required to Read Distribution Proposal in Open Court. - Where record established facts from which it reasonably appeared that the parties understood the terms of a proposed distribution of marital property, including the fact that both parties were represented by counsel, that the parties had participated in an equitable distribution hearing, that the major asset was the marital home encumbered by a deed of trust and unpaid tax lien, and that the parties indicated that they either read or understood the terms of the proposed distribution, the trial court was not required to read to the parties in open court the terms of the proposed distribution of marital property. Watson v. Watson, 118 N.C. App. 534, 455 S.E.2d 866 (1995).

If a court divided the property equally after referring to this section and considering the factors and evidence, any improper reliance upon the statute could only result in harmless error, as the property was in fact divided equally. Eubanks v. Eubanks, 109 N.C. App. 127, 425 S.E.2d 742 (1993).

Guide as to Which Party Gets What Specific Property. - Once property has been properly designated marital property and valued, and the court has decided in what proportions its value should be divided, there appears to be no other guide than the discretion and good conscience of the trial judge in determining which party gets what specific property. An exception might arise with regard to the marital home or in cases of property of great sentimental value. Andrews v. Andrews, 79 N.C. 228, 338 S.E.2d 809, cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986).

Pleadings. - Since there is no specific requirement in this section regarding the correct manner in which to plead a claim for equitable distribution, where defendant joined in plaintiff's prayer for equitable distribution in his answer, the defendant's answer was, in effect, a counterclaim. Rabon v. Rabon, 102 N.C. App. 452, 402 S.E.2d 461 (1991).

Wife sufficiently preserved her claim to an equitable distribution of marital property under G.S. 50-11(e) when her answer to her husband's complaint for divorce requested and reserved a right to equitable distribution, because the remedy of equitable distribution in a divorce case only applied to marital assets, and G.S. 50-21(a) gave a party asserting a claim for such redress 90 days to provide specific information about the property claimed to be subject to equitable distribution; so, to constitute a valid equitable distribution claim, the wife's counterclaim for equitable distribution did not have to state that it applied to the parties' marital assets or property, and the husband was put on notice that the wife asked the court to equitably distribute the parties' marital and divisible property. Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

Distribution of Articles Having No Net Value Not Required. - The Equitable Distribution Act requires the distribution of marital assets according to their "net value." It does not require the distribution of articles that have no net value. McManus v. McManus, 76 N.C. App. 588, 334 S.E.2d 270 (1985).

Distribution of LLC. - It is undisputed that neither party made any equity contributions to effect the acquisition of the company from the husband's parents; notwithstanding, the trial court's application of the factors and the findings it made supported the distribution of the company to the husband in the equitable distribution order. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Distribution of Limited Liability Company Property. - Trial court did not err in distributing limited liability company (LLC) property without assigning a value to the LLC interest because it was the trial court's decision to itemize the assets separately from the interest in the LLC; by virtue of the LLC interest, the husband was entitled to a distribution of the remaining assets after dissolution and during the winding up of the LLC's affairs, and the trial court's findings ultimately reflected a reasonable estimate of the parties' interest. Chafin v. Chafin, 250 N.C. App. 19, 791 S.E.2d 693 (2016), review denied, 795 S.E.2d 219, 2017 N.C. LEXIS 40 (2017).

Deed of Trust Executed Without Wife's Consent Attached to Husband's Interest. - When defendants were divorced, the tenancy by the entirety in which their marital home was held became a tenancy in common, and the lien of deed of trust executed by husband without wife's consent attached to defendant husband's one-half undivided interest in the property. Thus when the marital home was distributed pursuant to this section, defendant wife took title in fee simple absolute, subject to plaintiff bank's deed of trust on defendant husband's one-half undivided interest. Branch Banking & Trust Co. v. Wright, 74 N.C. App. 550, 328 S.E.2d 840 (1985).

Equitable distribution judgment held incomplete and erroneous in several respects, i.e., failure to identify, classify, value and distribute various bank accounts and household property, failure to find net value of marital estate, failure to make findings pursuant to subsection (c) of this section, failure to properly divide and distribute three tracts of marital real estate, and failure to make conclusions of law. Carr v. Carr, 92 N.C. App. 378, 374 S.E.2d 426 (1988).

Defendant Entitled to Have Court Consider Post-Separation Appreciation. - Although defendant was entitled to have the trial court consider the post-separation appreciation of marital property and the effect the appreciation had on the parties, defendant was not necessarily entitled to a distribution of this post-separation appreciation. Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39, cert. denied, 338 N.C. 669, 453 S.E.2d 181 (1994).

Rental Income. - Trial court had classified the rental income generated by the marital home during the separation as divisible property where it determined that the husband's mortgage payments and costs associated with the refinance more than offset any divisible credit that might be due to the wife by virtue of rental income received by the husband. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

Post-Separation Rental Income. - Rental income received from marital property between the date of separation and the date of the equitable distribution action may not be added to the marital estate. Rather than distributing the sums representing the income received from marital property, the trial court must consider the existence of this income, determine to whose benefit the income has accrued, and then consider that benefit when determining whether an equal or unequal distribution of the marital estate would be equitable. Chandler v. Chandler, 108 N.C. App. 66, 422 S.E.2d 587 (1992).

Award of Rental Value of Marital Residence for Post Separation Period. - Trial court did not err in denying the application by the defendant for judgment against the plaintiff for one-half of the fair rental value of the residence of the parties from the time of the separation of the parties through the date of the hearing. Black v. Black, 94 N.C. App. 220, 379 S.E.2d 879 (1989).

Post-Separation Appreciation of a Marital Asset Cannot Be Distributed. - Post-separation appreciation of a marital asset, whether passive appreciation or appreciation due to the efforts of an individual spouse, is not marital property and cannot be distributed by the trial court. Gum v. Gum, 107 N.C. App. 734, 421 S.E.2d 788 (1992).

But Should Be Considered as a Distributional Factor. - An increase in the value of a marital asset which occurs after separation of the parties but before the date of the equitable distribution trial should be considered pursuant to subdivisions (c)(11a) or (c)(12) as a distributional factor by the court in its determination of what constitutes an equitable distribution of the marital estate. Chandler v. Chandler, 108 N.C. App. 66, 422 S.E.2d 587 (1992).

Failure to File For Equitable Distribution Because of Misrepresentation. - If plaintiff did not file a claim for equitable distribution before the entry of the divorce judgment due to misrepresentations made by defendant, the trial court is not barred from making an equitable distribution. Where defendant's misrepresentation caused the plaintiff to forego pleading for equitable distribution prior to divorce, the defendant shall be equitably estopped from pleading G.S. 50-11(e) as a bar to plaintiff's claim for an equitable distribution of the marital property. Harroff v. Harroff, 100 N.C. App. 686, 398 S.E.2d 340 (1990), discretionary review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).

Death Subsequent to Claim for Equitable Distribution. - Ex-wife's death, which came subsequent to her divorce from plaintiff and which followed the institution of the claim for equitable distribution, did not abate her estate's action for equitable distribution. Tucker v. Miller, 113 N.C. App. 785, 440 S.E.2d 315 (1994).

Plaintiff's actions in dissuading his brother from seeking criminal charges against defendant did not affect the marital economy and therefore was not a proper distributional factor under subdivision (c)(12). Wornom v. Wornom, 126 N.C. App. 461, 485 S.E.2d 856 (1997).

Voluntary Dismissal of Claim. - Where at the time the plaintiff filed his voluntary dismissal of his claim for equitable distribution, the defendant had filed no pleadings, plaintiff was free to enter his voluntary dismissal of his equitable distribution claim without any notice to the defendant or the defendant's consent. Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469 (1991).

As a warehouse was marital property, payments a husband made toward debts against the warehouse after the parties separated was divisible property; crediting the husband with those payments in an equitable distribution order was in accordance with G.S. 50-20(c) and was not an abuse of discretion. Stovall v. Stovall, 205 N.C. App. 405, 698 S.E.2d 680 (2010).

Credit Not Allowed. - Defendant was not entitled to a credit for debts incurred by defendant for paying a house cleaning bill, grocery bills, a clothing bill, a telephone bill, dry cleaning bills, etc., which debts were incurred after separation. Edwards v. Edwards, 110 N.C. App. 1, 428 S.E.2d 834, cert. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).

Trial court did not err by ruling that defendant was not entitled to credit for expenses for utilities and routine maintenance of the marital residence, as he continued to occupy the residence after the parties separated and he did not advance any argument that it would be fair for plaintiff to bear responsibility for his living expenses. Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016).

Credit for Debt Payment Properly Given Through Credit to Support Arrearage. - Trial court properly considered the husband's postseparation payments made towards the marital debt and gave him credit for those payments through a credit to his postseparation support arrearage, and properly found that, as a result of this credit, there was no divisible property related to the husband's interest payments. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

Unequal Division Upheld. - Where at the time the division of property was to become effective wife had no earnings and was receiving no monies other than those in the form of child support, food stamps, and Aid to Families with Dependent Children (AFDC), whereas husband had earnings of at least five to six thousand dollars a year, this evidence supported the court's finding that there was a disparity in the parties' income within the meaning of subdivision (c)(1) of this section and tended to show that an equal division of the marital property would not be equitable, and the Court of Appeals could not say that the trial court abused its discretion in ordering an unequal division in favor of wife, particularly in light of wife's poor health. Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985).

Findings of the court that an equal distribution would not be equitable, relying on child custody, household services, and difficulty of evaluation factors, supported the court's discretionary decision to make an unequal distribution. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Although none of the equitable distribution cases suggest that a spouse should take out of the marriage exactly that which was brought into it, plus at least one half of the marital estate, defendant who was awarded just that had no reason to complain. Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986).

Defendant mother's custody of children, children's residency in family home for most of their lives, their attendance at nearby schools, and defendant's need to occupy the marital residence (i.e., her lower income) were all factors supporting trial court's disproportionate award in equitable distribution proceeding. Hendricks v. Hendricks, 96 N.C. App. 462, 386 S.E.2d 84 (1989), cert. denied, 326 N.C. 264, 389 S.E.2d 113 (1990).

Where the trial court found the presence of a number of distributional factors, including appellee's payment of property taxes, interest, insurance, and repairs on marital property over a period of three years, the trial court did not err in ordering an unequal distribution of marital property. Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992).

Trial court's findings were sufficient to support its finding of an unequal division where the plaintiff established five grounds, including the parties disparate income and future earning capacity, present and future pension benefits, the liquidity of the marital assets and tax consequences to each party, and plaintiff's mortgage payments. Mrozek v. Mrozek, 129 N.C. App. 43, 496 S.E.2d 836 (1998).

Trial court did not abuse its discretion by ordering an unequal distribution of the marital property and the ordered division did not result in an obvious miscarriage of justice. Davis v. Sineath, 129 N.C. App. 353, 498 S.E.2d 629 (1998).

Trial court did not err in awarding an unequal division of divisible property because the fact that a former husband's pension, when received, would constitute taxable income was not a tax consequence resulting from the ordered equitable distribution; as for the evidence that the former wife would not be taxed on any gain received upon a sale of the marital home, because there was no evidence that any such sale would be necessary or was imminent, the evidence presented merely a speculative tax consequence as to which the trial court could not make a finding of fact. Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

After thorough review of the trial court's order and the 89 findings of fact, including those specific findings related to the unequal division of marital property, the trial court properly considered and balanced the factors upon which evidence was presented supporting an unequal division. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Where the district court's jurisdiction over equitable distribution was not invoked prior to a judgment for absolute divorce, the superior court was not precluded from exercising jurisdiction over the former husband's action for contribution pursuant to § n/ 23-5-116. Sparks v. Peacock, 129 N.C. App. 640, 500 S.E.2d 116 (1998).

Appellate Review. - In an equitable distribution of marital property, a trial court's discretion in determining the equitable distribution of marital property will not be upset on appeal absent a clear abuse of discretion; in order to reverse a trial court's equitable distribution judgment on appeal, it must be found that it was unsupported by the evidence. Urciolo v. Urciolo, 166 N.C. App. 504, 601 S.E.2d 905 (2004).

Order Contained "Ultimate" and "Evidentiary" Findings. - Equitable distribution order appropriately contained both "ultimate" and "evidentiary" findings necessary for the appellate court to review whether the property was equitably divided. Comstock v. Comstock, 240 N.C. App. 304, 771 S.E.2d 602 (2015).

Insufficient Findings to Support Award. - In an equitable distribution of the marital property case, a distribution award to a wife in the amount of $25,000 was reversed where the trial court failed to make any findings as to whether the presumption of an in-kind distribution had been rebutted and whether the husband had sufficient liquid assets to pay the distributive award. Urciolo v. Urciolo, 166 N.C. App. 504, 601 S.E.2d 905 (2004).

Although it did not order an in-kind distribution of the parcel of land, the trial court erred because it made no findings of fact or conclusions of law regarding the in-kind presumption and whether it was rebutted, pursuant to G.S. 50-20(e). Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Remand of an equitable distribution of property was necessary because (1) the trial court misapplied the burdens of proof as to the classification of credit union accounts; (2) the trial court had to determine whether one spouse met that spouse's burden of proving that the accounts constituted separate property; and (3) the trial court had to make new findings of fact addressing the value of property owned separately by one spouse and identify the statutory basis for its findings regarding the other spouse's use of separate property to buy or fund marital assets. Finney v. Finney, 225 N.C. App. 13, 736 S.E.2d 639 (2013).

Trial court failed to properly distribute a passive loss of value of the parties' one-half interests in two properties because the court did not distribute the loss in accordance with the court's earlier findings. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Trial court failed to properly distribute the proceeds of the sale of two marital parcels because the parties only had a half interest in the parcels, but the court distributed the total proceeds. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Findings Supported. - Regarding payments towards the loan obligation of the parties' adult daughter, the trial court's finding on this issue was supported by the evidence; plaintiff testified that she did not regard the loan as a marital responsibility, and the trial court was the sole judge of the weight and credibility of the evidence. Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016).

Motion To Dismiss Based On Exclusive Jurisdiction Provisions of G.S. 7A-244 Properly Denied. - Trial court correctly denied a motion to dismiss a Forsyth County action based on the exclusive jurisdiction provisions of G.S. 7A-244 because a former husband was not barred from asserting compensatory and punitive damage claims against his former wife, a trustee, and a family trust relating to converted Social Security checks and debts separately and apart from an Alamance County domestic case since the claims asserted in the Forsyth County action related to property allegedly accumulated and debts allegedly incurred after the date the husband and wife separated; the extent to which the wife and trustee utilized impermissibly obtained funds to obtain clear title to and then fraudulently transferred the unencumbered former marital residence to the trust had little, if anything, to do with claims between the husband and wife as to the value of that asset and the extent to which and manner in which it was subject to distribution between the parties pursuant to the Equitable Distribution Act, G.S. 50-20 Jessee v. Jessee, 212 N.C. App. 426, 713 S.E.2d 28 (2011).

B. FACTORS TO BE CONSIDERED.

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Single Factor May Support Unequal Distribution. - A finding that a single factor supported an unequal distribution, if supported by the evidence, would be within the court's discretion and upheld on appeal. Andrews v. Andrews, 79 N.C. App. 228, 338 S.E.2d 809, cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988); Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988).

Findings as to the parties' incomes, liabilities or health and other factors must be made and considered, when evidence concerning them is introduced, in determining whether marital property has been equitably divided. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

If, at an equitable distribution hearing, evidence concerning the income and health of the parties tends to show that an equal division of the marital property is inequitable, the trial court must make findings of fact as to these factors. Taylor v. Taylor, 92 N.C. App. 413, 374 S.E.2d 644 (1988).

Trial court's equitable distribution order was proper as the trial court made several specific findings of fact related to the equitable distribution factors listed in G.S. 50-20(c), including listing the parties' income, properties, and liabilities, including their current medical practices, pursuant to G.S. 50-20(c)(1). Peltzer v. Peltzer, 222 N.C. App. 784, 732 S.E.2d 357 (2012), review denied, 735 S.E.2d 186, 2012 N.C. LEXIS 1036 (2012).

Substantial Income Findings Properly Considered. - Court made findings required by G.S. 50-20 when it found, inter alia, that the husband had substantial income, and that the husband's age and health problems did not prevent the husband from earning income. Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006).

Timing of Professional Career. - The trial court property considered the brief amount of time which elapsed between the opening of defendant's medical practice and the termination of the marriage in determining the extent of plaintiff's contribution to defendant's career potential and development. Conway v. Conway, 131 N.C. App. 609, 508 S.E.2d 812 (1998).

Separate Property to Be Considered in Determining Division of Marital Property. - In determining an equitable division of the marital property, the court must consider the separate property owned by each party at the time the property division is to become effective. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

A spouse's contribution of his separate property to acquire property titled in the entireties, and classified as marital, qualifies as a distributional factor under subsection (c). Collins v. Collins, 125 N.C. App. 113, 479 S.E.2d 240 (1997).

A spouse's contribution of his separate property to the marital estate is a distributional factor under subdivision (c)(12). Collins v. Collins, 125 N.C. App. 113, 479 S.E.2d 240 (1997).

Considering Source of Property Held by the Entireties is Error. - The trial court could not award to the husband the entire interest in a tree farm on the ground that the source of the interest was the husband's mother as the mother gave an equal interest to the husband and wife, and the parties thereafter titled their separate interests as a tenancy by the entireties. Daetwyler v. Daetwyler, 130 N.C. App. 246, 502 S.E.2d 662 (1998), aff'd, 350 N.C. 375, 514 S.E.2d 89 (1999).

Court Authorized to Consider Parties' Future Prospects. - The factors listed under subsection (c) of this section indicate that the Legislature intended to grant the trial court the authority to consider the future prospects of the parties, as well as their status at the time of the hearing, in determining whether an equal division of marital assets would be equitable. Harris v. Harris, 84 N.C. App. 353, 352 S.E.2d 869 (1987).

Future Events Not Considered in Determining Marital Property Value. - While trial court had authority on remand to reassess the date of separation value of a logging company, the trial court erred in its consideration of estimated expenses associated with the possible future sale of the logging company since the sale of the logging company was a hypothetical future event uncertain in both occurrence and amount. Crowder v. Crowder, 147 N.C. App. 677, 556 S.E.2d 639 (2001).

The future value of timber, which is planted but will not mature until some years in the future, should not be considered for the purposes of equitable distribution. Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992).

No Evidence of Value Presented. - Trial court erred in distributing the passive gains and losses from a wife's savings plan because no evidence was presented on the plan's current value, and no evidence was presented on any passive changes in the plan's value. Burger v. Burger, 249 N.C. App. 1, 790 S.E.2d 683 (2016).

Trial court's unequal distribution of marital property erred because the court (1) made classification and valuation errors, (2) did not find the total value of the net marital estate, (3) erred in finding a 401K plan and a home's equity, which were not valued, were liquid assets, and (4) used an unknown balance on a home equity line of credit and unknown home equity to find an unequal distribution of marital property was equitable. Watson v. Watson, 261 N.C. App. 94, 819 S.E.2d 595 (2018).

Increase in Value of Marital Property. - Trial court did not err in considering, as a distributional factor, that the value of the marital property had increased from the date of the separation to the date of the trial and that such increase inured to the benefit of the defendant husband. Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991).

While the trial court made findings with respect to the value of the real property as of the date of separation, it made no findings with respect to the value of the tracts as of the date of distribution, notwithstanding some evidence that the values had changed and thus failed to identify and determine the value of the divisible property from the date of separation to the date of distribution and hence could not properly and equitably distribute the divisible property. Edwards v. Edwards, 152 N.C. App. 185, 566 S.E.2d 847 (2002), cert. denied, 356 U.S. 611, 356 N.C. 611, 574 S.E.2d 679 (2002).

Although finding that a home, which the parties had contracted to purchase before their separation, but which the husband, after separation, had purchased using marital funds and a mortgage that he obtained in his own name, was properly considered marital property, and that the appreciation in the value of the home was also properly considered marital property, the trial court did not ignore the husband's preservation efforts, but properly considered them under G.S. 50-20(c)(11a) in its equitable distribution order. Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009).

In equitably distributing parties' real property, on remand, it was improper to allow the wife's post-separation payments to increase her ownership interest in the property itself after the date of separation because it allowed her a greater share of the post-separation appreciation in the property. Ross v. Ross, 230 N.C. App. 28, 749 S.E.2d 84 (2013).

Post-separation appreciation, only refers to that which accumulates to the date of the order for equitable distribution, not in the future. If the rule allowed otherwise, parties would attempt to project the future value of any number of items of marital property, and the equitable distribution trial would become overwhelmingly complicated. Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992).

Increase in Value of Stock. - Where it was established by the court's findings of fact that defendant's stock had no value when parties separated and that its increase in value was largely due to his efforts, award of the post-separation increase therein to defendant was authorized by G.S. 50-20(c)(11a) and (12). Nye v. Nye, 100 N.C. App. 326, 396 S.E.2d 91 (1990).

Diminution of Value of Retirement Accounts. - Trial court did not err in not classifying diminution in value of retirement accounts as divisible property under G.S. 50-20(b)(4)a because of the wife's actions in selling stocks, moving the money to a different firm, and purchasing and trading with the resulting funds; diminution in value was not simply attributable to market forces. Cheek v. Cheek, 211 N.C. App. 183, 712 S.E.2d 301 (2011).

Consideration of Penalties Caused by Distribution of Thrift Plan. - Evidence was sufficient to require the trial court to make appropriate findings concerning husband's thrift plan before ordering the husband to make a lump sum distributive award from the plan where such a withdrawal would result in the loss of employer contributions or harsh tax consequences. Shaw v. Shaw, 117 N.C. App. 552, 451 S.E.2d 648 (1995).

Spouse's Earning Potential to Be Considered. - The trial court properly considered the defendant husband's earning potential as a factor leading to its determination that an equal division would be inequitable. Harris v. Harris, 84 N.C. App. 353, 352 S.E.2d 869 (1987).

Loan Eligibility of Spouse. - Defendant's VA loan eligibility did not constitute distributable property for purposes of equitable distribution. Jones v. Jones, 121 N.C. App. 523, 466 S.E.2d 342 (1996).

Subdivision (c)(1) of this section requires the court to consider all debts of the parties, whether a debt is one for which the parties are legally, jointly liable or one for which only one party is legally, individually liable. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Marital Debt. - Regardless of who is legally obligated for the debt, for the purposes of an equitable distribution, a marital debt is defined as a debt incurred during the marriage for the joint benefit of the parties. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987); Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987).

The mere fact that a judgment was entered against both spouses is not alone evidence sufficient to require classification of the debt as marital. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

Pursuant to equitable distribution statute, the trial court is required to classify, value and distribute, if marital, the debts of the parties to the marriage. The party claiming the debt to be marital has the burden of proving the value of the debt on the date of separation and that it was incurred during the marriage for the joint benefit of the husband and wife. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

Distribution of Marital Debts. - The court has the discretion, when determining what constitutes an equitable distribution of the marital assets, to also apportion or distribute the marital debts in an equitable manner. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

When the court distributes debts, the court must make findings to show it considered all debts of the parties and to identify those which comprise marital debts. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Under this section, the court had the discretion to assign one-half of the marital debts to each party and to then award defendant additional funds sufficient to pay plaintiff's one-half share of the debt. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Since the assets and obligations of a husband and wife are reciprocally related, there can be no complete and equitable distribution of their property without also considering and distributing their debt. Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987).

Credit for Decreasing Marital Debt. - The court must credit a former spouse with at least the amount by which he decreased the principal owed on marital debt by using his separate funds. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Attorneys' Fees as Debt. - Pursuant to G.S. 50-20(c)(1), a trial court properly considered attorneys' fees owed by a wife as part of her overall debt. Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009).

Marital Residence. - While paragraph (4) of subsection (c) of this section requires the court to consider the custodial parent's need to occupy the marital residence, it does not require that a party must be a custodial parent in order to be awarded ownership of the marital residence. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Trial court's equitable distribution order erred because the order was internally inconsistent as to a marital home when the court found the home was separate property but found the home's equity was marital property without making necessary findings. Watson v. Watson, 261 N.C. App. 94, 819 S.E.2d 595 (2018).

Need of spouse to occupy the marital residence, unless it involves a spouse with custody of children, does not relate to the economic condition of the marriage and is not properly considered as a distributional factor under subdivision (c)(12) of this section. Burnett v. Burnett, 122 N.C. App. 712, 471 S.E.2d 649 (1996).

A trial court is not foreclosed from considering the post-separation use of the marital residence in reaching its decision as to whether an equal distribution is equitable. Becker v. Becker, 88 N.C. App. 606, 364 S.E.2d 175 (1988).

A party's exclusive use of marital residence subsequent to date of separation is a relevant distributional factor. Burnett v. Burnett, 122 N.C. App. 712, 471 S.E.2d 649 (1996).

Payment by One of Spouses on Marital Home Mortgage. - Payment by one of the spouses, after the date of separation, on a marital home mortgage is a factor appropriately considered by the trial court pursuant to subdivisions (c)(11a) and (c)(12) in determining what division of marital property is equitable. However, trial court correctly refused to credit husband with any mortgage payments he made after the separation of the parties where they had stipulated that an equal division of property was equitable. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

The trial court did not err by failing to credit plaintiff with reducing mortgage on marital home and paying for taxes and insurance, where the court found that plaintiff made mortgage payments on the property since the date of separation, paid property taxes on the residence for one year, and paid homeowner's insurance premiums for three years, and also considered these facts as a distributional factor. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Trial court properly considered defendant's post-separation payments toward mortgages as a distributional factor under subdivision (c)(11a) rather than crediting defendant for those payments. Edwards v. Edwards, 110 N.C. App. 1, 428 S.E.2d 834, cert. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).

There was no error in an unequal distribution of marital property given one of the former spouse's post-separation mortgage payments, which benefited the other spouse, who was awarded the marital home. Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003).

Wife was not given a "double credit" for post-separation mortgage payments, when the court distributed the property to the wife in addition to granting the wife a credit for the payments, because (1) the court put the parties on equal footing as to this debt and asset, and (2) the court permissibly took the increase in the value of the property into consideration in determining equitable distribution. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Post-Separation Payments for Upkeep on Property Awarded to Spouse Making Payments. - To accommodate post-separation payments for the benefit or use of marital property, the trial court may treat post-separation payments as distributional factors, or provide direct credits for the benefit of the spouse making the payments; it was not an abuse of discretion to deny credits requested for the upkeep of marital property ultimately awarded to the spouse making the payments. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Payment by One of Spouses on Marital Home Mortgage. - It was not an abuse of discretion for the trial court to treat the husband's post-separation mortgage and other debt payments as distributional factors, under G.S. 50-20(c)(11a), (12), rather than giving the husband a dollar-for-dollar credit for them. Hay v. Hay, 148 N.C. App. 649, 559 S.E.2d 268 (2002).

Appreciation in the value of the marital home resulting from the husband's post-separation mortgage payments was not divisible property, as defined by G.S. 50-20(b)(4)a, because it resulted from the activities of one spouse. Hay v. Hay, 148 N.C. App. 649, 559 S.E.2d 268 (2002).

Consideration of Post-Separation Support Prohibited. - Trial court properly determined equitable distribution because it did not consider the income a husband paid to a wife in excess of his court-ordered obligation to pay post-separation support in its equitable distribution award; the trial court was prohibited from giving the wife any credit for the post-separation support the husband was ordered to pay her, and it gave no consideration to that amount. Miller v. Miller, 243 N.C. App. 526, 778 S.E.2d 451 (2015).

Trial court is prohibited from considering post-separation payments made pursuant to an alimony order under the statute but is not prohibited from considering post-separation payments made outside of a court-ordered spouse's support obligation. Miller v. Miller, 243 N.C. App. 526, 778 S.E.2d 451 (2015).

Waiver of Child Support. - In the absence of a separation agreement, nothing in the statute requires the trial court to take a waiver of child support into account in calculating an equitable distribution. To the contrary, the determination of child support is to be made separately from that of equitable distribution. Wieneck-Adams v. Adams, 104 N.C. App. 621, 410 S.E.2d 525 (1991), aff'd, 331 N.C. 688, 417 S.E.2d 449 (1992).

Custody is not an appropriate consideration within this section. The only factors considered "just and proper" within the meaning of the section are those relating to the source, availability, and use by a wife and husband of economic resources during the course of their marriage. Gum v. Gum, 107 N.C. App. 734, 421 S.E.2d 788 (1992).

Need of Custodial Parent as Justification for Unequal Distribution. - Under the facts, the need of the parent with custody of the child of the marriage to occupy the marital residence and to use or own household effects alone justified the unequal distribution of marital property, without requiring the trial judge to simply recite the other factors. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Obligation to Care for Child. - The trial court erred by considering plaintiff's separate obligation to care for child as a distributional factor. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997).

Distributional Factors Did Not Include Obligation for the Wife's Child as the Husband Was Not Her Father. - Distributional factor found by the trial court did not address the husband's child support obligations but instead recognized his voluntary assumption of responsibilities and was therefore, properly considered under the catch-all provision of G.S. 50-20(c)(12) because the husband was not the father of the wife's daughter and had no legal obligation to care for the daughter. Rice v. Rice, 159 N.C. App. 487, 584 S.E.2d 317 (2003).

Distributional Factors Do Not Control Classification of Property Under G.S. 50-20(b). - Trial court must follow three distinct analytical steps in making an equitable distribution award; it is only after the property has been classified as marital or separate property that the trial court applies the distributional factors found in G.S. 50-20(c) to effect an equitable distribution of marital property and while G.S. 50-20(c) contains a number of factors the trial court may consider, G.S. 50-20(c) does not manifest any intent that a distributional factor control the classification of property under subsection (b). Estate of Nelson v. Nelson, 179 N.C. App. 166, 633 S.E.2d 124 (2006), aff'd, 361 N.C. 346, - S.E.2d - (2007).

Value of Contributions by Nonstudent Spouse. - The Legislature gave no guidance on the issue of how to value the direct and indirect contributions of the nonstudent spouse under paragraph (7) of subdivision (c) of this section; thus, as with any statutory factor under subsection (c), it is a matter of discretion what weight the court assigns a particular factor in any given case. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Professional Licenses. - As this section expressly provides that professional licenses are separate property, professional licenses are not subject to valuation and distribution; nevertheless, the Legislature recognized the need to consider the contributions of one spouse that enhance the career of the other when determining what constitutes an equitable result. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Subdivision (c)(12) Is Limited to Considerations Relevant to Marital Economy. - Only items affecting the marital economy are considered under the first eleven factors of subsection (c). Thus, under subdivision (c)(12), the only other considerations which are "just and proper" within the theory of equitable distributions as expressed by subdivisions (c)(1) to (c)(11) are those which are relevant to the marital economy. Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985).

The only factors which may properly be considered under the catchall provision of subdivision (c)(12) of this section are those factors which are relevant to the marital economy. Marital economy relates to the source, availability and use by the wife and husband of economic resources during the course of the marriage. Johnson v. Johnson, 78 N.C. App. 787, 338 S.E.2d 567 (1986).

Wife's cosmetic surgeries and choice to reside in another state during the marriage were inappropriate distribution factors considered by the trial court in making its equitable distribution under G.S. 50-20(c). Fountain v. Fountain, 148 N.C. App. 329, 559 S.E.2d 25 (2002).

The trial court failed to consider defendant's contributions to the marital estate as a distributional factor under subdivision (c)(12) of this section. Minter v. Minter, 111 N.C. App. 321, 432 S.E.2d 720, cert. denied, 335 N.C. 176, 438 S.E.2d 201 (1993).

Consideration of Post-Separation Income. - Where post-separation income is not a result of either party's action, the income can be considered as "any other distributional factor" under subdivision (c)(12). Chandler v. Chandler, 108 N.C. App. 66, 422 S.E.2d 587 (1992).

Monies Paid by Husband to Wife After Separation Were Advances. - Trial court correctly treated the $45,457 paid to wife as a distributional factor under subdivision (c)(11) or (12) of this section. Interspousal gifts under subdivision (b)(2) of this section do not become the separate property of the recipient spouse unless the donor expresses the intention to make a gift. This rule is applicable to an even greater extent after the parties have separated. As a matter of public policy, if trial courts are not allowed to consider such payments as distributional factors, then the spouse with possession of marital property during the period between separation and the order of equitable distribution may seek to hold this marital property exclusively. Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992).

When Fault May Be Considered. - The general rule is that marital fault or misconduct of the parties which is not related to the economic condition of the marriage is not germane to a division of marital property and should not be considered. However, fault which is related to the economic condition of the marriage may be considered. Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819 (1986).

Fault or misconduct which dissipates or reduces marital property for nonmarital purposes is just and proper to consider under subdivision (c)(12) of this section. Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819 (1986).

Misconduct during the marriage which dissipates or reduces the value of marital assets for nonmarital purposes may properly be considered under this section, because it is consonant with the essential philosophy of equitable distribution. Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985); Coleman v. Coleman, 89 N.C. App. 107, 365 S.E.2d 178 (1988).

Marital fault or misconduct which does not adversely affect the value of marital assets is not a just and proper factor within the meaning of subdivision (c)(12). Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985); Dusenberry v. Dusenberry, 314 N.C. 608, 335 S.E.2d 892 (1985); Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985), cert. denied, 316 N.C. 376, 344 S.E.2d 1 (1986).

Fault is not a relevant or appropriate consideration in determining an equitable distribution of marital property. Hinton v. Hinton, 70 N.C. App. 665, 321 S.E.2d 161 (1984).

Sanctions for Marital Misconduct That Has No Economic Impact on Marital Estate. - Marital misconduct that has no resulting economic impact on the marital estate may nonetheless have other consequences; for instance, the spouse can be sanctioned for the willful obstruction of an equitable distribution proceeding, directed to pay for costs incurred for the return of the other spouse's separate property, or be subject to an inspection for the purpose of inventory and valuation. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Removal of Spouse's Separate Property. - The trial court properly considered evidence that the defendant wife removed or disposed of the plaintiff husband's separate property as a non-statutory distributional factor where (1) the wife entered the dwelling of the husband after separation and removed approximately $4,000 worth of property, including all the furniture in the house with the exception of a bed, chair, and kitchen table, (2) she then entered the home again at a later date and removed such items as food, guns, a leather coat, frozen meats, and personal items of the plaintiff, and (3) she even hauled off their 1971 Chevy pickup truck and sold it for $400. Glaspy v. Glaspy, 143 N.C. App. 435, 545 S.E.2d 782 (2001).

Removal of Property Awarded to Spouse Who Removed It. - Wife's removal of truckloads of marital property from the marital home immediately pursuant to the parties' separation constituted marital misconduct, but the trial court erred in considering this as a distributional factor; as the property removed was awarded to the wife, there was no economic effect on the marital estate. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Misconduct During Litigation May Not Be Considered. - The court may not punish a plaintiff by considering his misconduct during litigation as a factor under subdivision (c)(12). Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

Failure to comply with discovery orders, or misconducting oneself during the course of litigation may not be considered as a factor in determining the distribution of marital property. Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988).

When the failure to assist in the compilation and valuation of marital property during litigation causes one party to incur additional expenses, the court may consider such a purely financial consideration in making its distributive award. This is equivalent to the proper consideration of marital misconduct which is related to the economic condition of the marriage as a factor in making the distributive award. Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988).

Parties' Premarital Relationship. - Recitation in the findings of the extramarital nature of the parties' premarital relationship suggested that the trial judge may have improperly considered fault in making the distribution; however, where the husband did not assert, nor was there anything to indicate that he was prejudiced by, this consideration, the error, if any, was harmless. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Meaning of "Income". - The legislature used the word "income" in subdivision (c)(1) of this section to convey its natural and ordinary meaning. Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985).

Food Stamps Are Not Income. - Based on 7 U.S.C. § 2017(b), which provides that the value of food stamp allotment provided to an eligible household shall not be considered income or resources for any purpose under any federal, state or local laws, the value of food stamps received by a party may not be considered as income under subdivision (c)(1) of this section. Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985).

Child Support and AFDC Are Not Income. - Since the amounts received by a spouse in the form of child support and Aid to Families with Dependent Children (AFDC) are for the benefit and support of the parties' children, they are not income within the meaning of subdivision (c)(1) of this section. Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985).

Working Outside Home and Participating in Child-Rearing and Homekeeping. - Under subdivision (c)(12) of this section, it is within the trial court's equitable powers to consider that one spouse worked outside the home and participated in child-rearing and homekeeping, while the other spouse only participated in child-rearing and homekeeping. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Consideration of Unvalued Inheritance and Fact of Appraisal Held Error. - Where there was no evidence to support the value of the inheritance the husband received from his mother, it was error for the trial court to consider as a distributional factor under subdivision (c)(1) of this section that the husband had received an inheritance of "significant value" from his mother's estate; furthermore, since the party claiming property to be marital has the burden of presenting evidence on the value of such property, it was error to consider as a distributional factor that the party with the burden of proof had the property appraised and the appraiser testified as to the value of the property. Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991).

Estate Plans of a Spouse's Parents. - It was within the trial court's discretion to consider the husband's parents' estate plans in making its equitable distribution determination. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Insurance Proceeds. - Given that not all findings of fact were supported and insurance proceeds for the marital residence were incorrectly classified as marital instead of separate, the unequal distribution was reversed; on remand the trial court was to reconsider the distributional factors, including whether plaintiff was required to reimburse defendant for the separate property, as plaintiff was awarded the marital residence, and the fact that defendant did use the funds for repairs to the martial residence might be a distributional factor in her favor. Robbins v. Robbins, 240 N.C. App. 386, 770 S.E.2d 723 (2015).

Bound by tax returns. - Trial court erred in classifying the post-separation distributions from a partnership between a husband and his father to the husband because the parties were bound by the characterization of the distributions on the partnership's income tax returns. Blair v. Blair, 260 N.C. App. 474, 818 S.E.2d 413 (2018).

Commingled Account. - Because it is undisputed that plaintiff was entitled to half of defendant's retirement benefits, defendant's retirement fund consisted of a commingled account that included funds belonging to plaintiff. Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016).

Decrease in Separate Property Through Activities Which Increased Marital Estate. - Where the marital estate was increased due to activities which decreased the value of wife's separate property, this decrease in separate property through depreciation related to the economy of the marriage; thus, the court properly considered this depreciation under subdivision (c)(12) when dividing the marital property. Johnson v. Johnson, 78 N.C. App. 787, 338 S.E.2d 567 (1986).

Passive Appreciation and Depreciation. - Husband did not show a trial court erroneously classified "active increases" in marital debt as divisible property for post-separation payments because (1) the husband did not identify any erroneously classified divisible property, and (2) the only property classified and distributed as divisible was by passive decreases. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Disregarding Family Corporation Held Error. - Action of the trial court in equitable distribution action in disregarding the corporate entity of a family corporation on the grounds that the corporation was a "sham," and in distributing the assets of the corporation as marital property, but holding defendant personally liable for $23,000 worth of notes and deeds of trust which she had executed, apparently in the name of the corporation, after the parties separated, constituted reversible error, where several of the reasons cited by the trial court for disregarding the corporate entity were unsupported by the evidence or were irrelevant. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Disregarding Parties' Stipulation Was Error. - Because the parties had stipulated that the townhome was the wife's separate property and that its value was $186,000.00, the trial court erred by classifying a portion of it as marital and attempting to value it based only upon the balance of a marital debt as of the date of separation. Clemons v. Clemons, 265 N.C. App. 113, 828 S.E.2d 501 (2019).

Trial court did not err in forbidding either party from receiving a commission or broker's fee on the sale of the marital home (the order being directed primarily at defendant, a licensed real estate broker), since if the parties could sell the home by themselves, without paying a real estate commission, then the net proceeds of the sale would be greater and there would be more marital property for equitable distribution. This was an equitable factor that the trial court could consider. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

In case involving equitable distribution, trial court is required to consider liabilities of each party, whether the debts are joint or individual. Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385, cert. denied, 323 N.C. 174, 373 S.E.2d 111 (1988).

Attribution of husband's payment of $3,000 debt accumulated by wife and minor children for necessities after date of separation to husband's continuing obligation to support his minor children did not constitute an improper use of child support to inflate the income of either party in violation of subsection (f) of this section, but, rather, was a determination that the debt was incurred to purchase necessities after the parties' separation. Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Failure of Court to Find Distributional Factors. - In determining an appropriate distribution of the marital property, the trial court erred by failing to consider the following factors: (1) evidence that the husband paid homeowner's insurance premiums on the marital home between the date of separation and the date of the trial should have been considered as a distributional factor under subdivision (c)(11a); (2) evidence that the husband was primarily responsible for maintaining and preserving the marital property between the date of separation and the date of trial also should have been considered as a distributional factor under subdivision (c)(11a); and (3) evidence that the wife earned a larger income than the husband should have been considered by the trial court as a distributional factor under subdivision (c)(1). Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991).

It was error for a trial court to order an equitable distribution of divorcing parties' marital property under G.S. 50-20(b)(2) or (4) because the court did not make written findings supporting its determination, it did not indicate whether an equal division was an equitable division, and it could not be determined whether the court had properly valued, classified, and distributed the property. Davis v. Davis, 360 N.C. 518, 631 S.E.2d 114 (2006).

Although the weight given to any factor is in the trial court's discretion, the trial court did not make findings on all of the distributional factors upon which evidence was presented; for example, the trial court earlier found that defendant suffered from severe anxiety, clinical depression, multiple seizures and short-term memory loss, but the trial court did not make any findings of fact regarding the factor of the physical and mental health of both parties, and on remand, the trial court was to make findings of fact upon all of the factors upon which evidence was presented. Robbins v. Robbins, 240 N.C. App. 386, 770 S.E.2d 723 (2015).

Defendant did not introduce evidence establishing the amount of the post-separation payments made from his separate funds, and thus the trial court did not err by making no findings specifically valuing or distributing these payments, and the distribution was affirmed. Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016).

Trial court's unequal distribution in favor of a husband was vacated, and the case was remanded, because its findings that the husband rebutted the presumption favoring an equal distribution of marital property did not comply with the statute; the court of appeals was unable to discern how much weight the trial court gave to the factor of the wife's income and earning capacity. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Trial court's equitable distribution order erred because (1) nothing supported the court's valuation of a vehicle, as the sum used to pay off the vehicle loan years earlier was no evidence of value, and (2) the court did not value a 401K plan found to be marital property. Watson v. Watson, 261 N.C. App. 94, 819 S.E.2d 595 (2018).

Findings Not Required. - Given that defendant agreed at the trial level that an equal division of the marital estate would be equitable, the trial court was not required to make findings demonstrating its consideration of the distributional factors. Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016).

Statutory Factors Did Not Have to Be Considered. - Trial court did not err by determining reimbursement to a wife was equitable, even though the G.S. 50-20(c) factors were not considered, as the post-separation mortgage payments made by the wife while the husband was in exclusive possession of the marital home were not "divisible property," and the trial court was not required by G.S. 50-20(c) to consider the statutory factors; the trial court was only required to make a "reasoned decision." Cooke v. Cooke, 185 N.C. App. 101, 647 S.E.2d 662 (2007), review denied, 362 N.C. 175, 657 S.E.2d 888 (2008).

In a divorce, it was not error to fail to consider an equitable distribution's tax consequences, under G.S. 50-20(c)(11), because no evidence of such consequences was presented before the close of evidence. Power v. Power, 236 N.C. App. 581, 763 S.E.2d 565 (2014).

Trial Court Properly Considered Wife's Post-Separation Illicit Drug use in Rendering Award. - Pursuant to G.S. 50-20(c)(1), a trial court properly considered a wife's post-separation illicit drug use in rendering its award. Brackney v. Brackney, 199 N.C. App. 375, 682 S.E.2d 401 (2009).

Unequal Distribution. - Trial court erred in making an unequal distribution of marital property to the former wife because its finding as to amount of her income, to the extent it was not based on evidence of the parties' incomes at the time of distribution, was not supported by the evidence. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

C. DISTRIBUTIVE AWARDS.

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Subdivision (b)(3) of this section authorizes the court to make distributive awards for periods of not more than six years after the date on which the marriage ceases, except upon a showing by the payor spouse that legal or business impediments, or some overriding social policy, prevent completion of the distribution within the six-year period. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

As Does Subsection (e). - Subsection (e) of this section clearly recognizes that the court may make a distributive award, payable over an extended period. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

But a court's authority to make distributive awards is limited, and a court may not enter a distributive award that will be treated as ordinary income under the Internal Revenue Code. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Findings on Ability to Pay Distributive Award Required. - On the record it could not be determined how the trial court evaluated the husband's ability to pay the monthly payment on the distributive award, and on remand it was possible that the monthly amount might be revised if the interest rate or term of payment was revised; additional findings regarding the husband's ability to pay were required. Porter v. Porter, 252 N.C. App. 321, 798 S.E.2d 400 (2017).

Distributive awards for periods longer than six years, if necessary, should be crafted to assure completion of payment as promptly as possible. This will serve both statutory goals: Affording the recipient's share nonrecognition treatment under the Internal Revenue Code, and fairly wrapping up the marital affairs as quickly and certainly as possible. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Inability to Pay Award With Six Years. - Burden was upon the husband to make a showing that legal or business impediments, or some overriding social policy, prevented completion of the distribution within the six-year period, but he made no showing and no argument regarding how the distributive payments should be done or over what time period; both parties agreed that the husband would be unable to pay the distributive award immediately or even within six years, so an extended payment schedule was necessary, and remand was required. Porter v. Porter, 252 N.C. App. 321, 798 S.E.2d 400 (2017).

Seven Year Payment Schedule Held Erroneous. - Where the court's decision to award the marital residence to the plaintiff wife resulted in property having a net value of $78,978.00 being distributed to her, while property passing to the defendant husband had a net value of only $13,140.63, the distributive award of $23,706.82 which the court ordered the wife to pay to the husband was within the authority vested in the court by subdivision (e) of this section; however, where the payment of the distributive award would not become due for more than seven years after the termination of the marriage, and the trial court made no findings which would permit completion of the payment of the distributive award beyond six years from the date the parties' marriage was terminated, that portion of the order providing for the distributive award would be vacated and the case remanded for further proceedings. Harris v. Harris, 84 N.C. App. 353, 352 S.E.2d 869 (1987).

18.3 Year Payment Schedule Held Erroneous. - Where payor husband made no showing of legal or business impediments to an earlier distribution, the 18.3 year payment schedule of distributive award to wife was erroneous as a matter of law and would be vacated. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Trial court erred in failing to make findings concerning the possible financial and tax consequences to a husband of paying a distributive award to the wife within 90 days, as such findings were required under G.S. 50-20(c); the trial court also should have considered the husband's liabilities along with his income. Robertson v. Robertson, 167 N.C. App. 567, 605 S.E.2d 667 (2004).

Where escrow balance was not included in the trial court's net valuation of the marital home or otherwise considered in the order, the trial court erred by failing to properly distribute this asset. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997).

The trial court did not abuse its discretion in ordering an unequal distribution of the marital estate in favor of the defendant/husband, the effect of which was that he received $100,000 more than he would have received under an equal division and resulted in a split between the couple of their four Hallmark stores, nor was it error for the court to consider certain post-separation payments made by him, taxes incurred as a result of the forced sale of a residence, financial losses, and the allocation of associated debts as distributional factors. Khajanchi v. Khajanchi, 140 N.C. App. 552, 537 S.E.2d 845 (2000).

Real Property. - While a hunting land and lodge had the potential to be a money-making business, neither party had the financial ability to "buy-out" the other party's share by paying a sizeable distributive award, thus, while economically desirable to keep the land and hunting lodge together, such a division was not possible, and the real estate had to be substantially split in order to achieve an equitable distribution. Edwards v. Edwards, 152 N.C. App. 185, 566 S.E.2d 847 (2002), cert. denied, 356 U.S. 611, 356 N.C. 611, 574 S.E.2d 679 (2002).

Judgment creditor could execute on a husband's interest in certain real property, despite a judge's oral directive directing a clerk to transfer the interest to the husband's former wife, because the oral directive was ineffective as no judgment was entered. Dabbondanza v. Hansley, 249 N.C. App. 18, 791 S.E.2d 116 (2016).

When a trial court issued an oral directive to a clerk to transfer a husband's interest in certain real property, which was purportedly sufficient in and of itself to transfer the husband's interest, the directive did not extinguish a judgment creditor's lien against the interest because the directive was never recorded. Dabbondanza v. Hansley, 249 N.C. App. 18, 791 S.E.2d 116 (2016).

Reimbursement of Post-Separation Payments. - While the trial court erred in categorizing a wife's post-separation payments of a mortgage while a husband was in exclusive possession of the martial home as a distribution of divisible property, as the payments pre-dated the amendment to G.S. 50-20(b)(4)(d) and were not divisible property, the error did not require remand as the trial court had authority to reimburse the wife for her post-separation mortgage payments. Cooke v. Cooke, 185 N.C. App. 101, 647 S.E.2d 662 (2007), review denied, 362 N.C. 175, 657 S.E.2d 888 (2008).

Direct Deposit of Paycheck Into Parties' Joint Account. - Wife testified that prior to separation, she stopped direct deposit of her paycheck into the parties' joint account. However, the wife also testified that she continued to deposit a portion of her paycheck into the joint account to help pay household bills; therefore, the trial court did not err by not assigning value to the husband's allegation that the wife converted marital funds. Petty v. Petty, 199 N.C. App. 192, 680 S.E.2d 894 (2009), review denied and dismissed 363 N.C. 806, 691 S.E.2d 16 (2010), cert. denied 561 U.S. 1030, L. Ed. 2d 1100 (U.S. 2010).

Distributive Award is a Sum Certain and Does Not Include Gains and/or Losses. - Retirement account award has to include gains and losses on the prorated portion of the benefit vested at the date of separation; however, a distributive award is a sum certain and does not include gains and/or losses. Harris v. Harris, 162 N.C. App. 511, 591 S.E.2d 560 (2004).

Distributive award that the trial court entered in favor of an ex-wife after her former husband died was not part of the husband's estate, and the trial court properly ordered the husband's personal representative to pay the award before she paid claims against the estate. Painter-Jamieson v. Painter, 163 N.C. App. 527, 594 S.E.2d 217 (2004).

Although it was likely that a distributive award in lieu of in-kind distribution was proper in light of the far greater involvement of one spouse than the other in a family-owned business, the trial court would have to provide more detailed findings to support its decision against in-kind distribution; the order already adequately identified sources of payment for such an award where it referenced both the proceeds of a refinancing of the former marital home and income received from the family business. Allen v. Allen, 168 N.C. App. 368, 607 S.E.2d 331 (2005).

Distribution of Diminution in Value to Party Not Receiving Asset. - Since the trial court conducted the proper analysis under this section and its conclusions were supported by findings that were, in turn, supported by competent evidence, the trial court did not abuse its discretion by distributing the diminution in value of a home to the wife despite the fact that the husband received the asset. Zurosky v. Shaffer, 236 N.C. App. 219, 763 S.E.2d 755 (2014).

North Carolina law did not permit a trial court to consider a party's future inheritance under the will of a person not yet deceased as a distributional factor for purposes of equitable distribution. As such, the trial court abused its discretion by basing a portion of its award on evidence that the husband would possibly inherit the property as set out in his father's will; therefore, because the appellate court was unable to ascertain the extent to which the trial court based its award on the husband's future inheritance, the appellate court reversed and remanded the order for entry of a new order in accordance with the opinion. Petty v. Petty, 199 N.C. App. 192, 680 S.E.2d 894 (2009), review denied and dismissed 363 N.C. 806, 691 S.E.2d 16 (2010), cert. denied 561 U.S. 1030, L. Ed. 2d 1100 (U.S. 2010).

Motion for Equitable Distribution Filed Before Divorce Was Absolute Was Valid. - Trial court erred in granting a husband's motion to dismiss a wife's motion for equitable distribution, pursuant to G.S. 50-20, in a divorce action where the wife filed the motion on the day before the judgment was signed by the judge and filed, at which point the judgment became final pursuant to G.S. 1A-1-58; therefore, G.S. 50-11(e) did not destroy the wife's right to seek equitable distribution as the motion was filed before an absolute divorce was granted. Santana v. Santana, 171 N.C. App. 432, 614 S.E.2d 438 (2005).

Trial Court Has No Jurisdiction After Notice Of Appeal. - Trial court erred in entering an order permitting a wife to pursue a judgment against a husband pending appeal of an equitable distribution order for the distributive payments that were past due because it did not have subject matter jurisdiction to enter the order; although an equitable distribution distributive award is theoretically a judgment directing the payment of money, which is enforceable during the pendency of an appeal unless the appealing spouse posts a bond pursuant to G.S. 1-289, the trial court does not have jurisdiction after notice of appeal to determine the amount of periodic payments which have come due and remain unpaid during the pendency of the appeal and to reduce that sum to an enforceable judgment. Romulus v. Romulus, 216 N.C. App. 28, 715 S.E.2d 889 (2011).

Clarification on Distributive Award Required. - On remand, the trial court was to clarify that the husband had to pay the distributive award of $ 348,050.00 and further that he was to pay a certain amount in monthly payments for a fixed period of time with interest, but he was free to pay the balance sooner and avoid the payment of additional interest. Porter v. Porter, 252 N.C. App. 321, 798 S.E.2d 400 (2017).

Distributive Award Proper. - Contrary to the husband's argument, the trial court's order distributing several business holdings to the wife in a divorce case and in ordering the wife to pay a distributive award of $220,542 was proper despite the husband's claim that the wife did not possess any business experience or acumen; the record revealed that the business interests distributed to the wife did not require the active operation or management by the wife. Five businesses should have been distributed to one person in order to maximize the value of the companies. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

Distributive award in favor of a former wife was appropriate under G.S. 50-20(c) because the record showed that the trial court considered the husband's ability to pay the award, particularly as previously received retirement funds were more than the distributive award. Plummer v. Plummer, 198 N.C. App. 538, 680 S.E.2d 746 (2009).

Wife presented evidence that diamond and ruby earrings were appraised at $400.00 and the cameo ring's value was approximately $100.00, and there was evidence presented that the wife possessed the jewelry a few months before the parties separated, but did not take the jewelry with her after they separated. Therefore, the trial court's findings of value regarding the jewelry and assigning that value to defendant during distribution of the property was supported by the evidence. Petty v. Petty, 199 N.C. App. 192, 680 S.E.2d 894 (2009), review denied and dismissed 363 N.C. 806, 691 S.E.2d 16 (2010), cert. denied 561 U.S. 1030, L. Ed. 2d 1100 (U.S. 2010).

Both the husband and the wife testified that the wife endorsed income tax refund checks prior to their separation, and the funds were deposited into the bank account. Therefore, the trial court's finding was supported by the evidence and the trial court did not abuse its discretion by distributing the funds held in the bank account to the husband. Petty v. Petty, 199 N.C. App. 192, 680 S.E.2d 894 (2009), review denied and dismissed 363 N.C. 806, 691 S.E.2d 16 (2010), cert. denied 561 U.S. 1030, L. Ed. 2d 1100 (U.S. 2010).

Trial court ordered an in-kind distribution of the marital funds, and the husband did not rebut the presumption that an in-kind distribution of the cash and checks would be equitable, and thus the trial court was not required to consider the distributive award factors, including whether the husband had sufficient assets to pay the award; as he was ordered to pay a certain amount of the proceeds in his possession, the same liquidity concerns raised with distributive awards were not present in this case. Sauls v. Sauls, 236 N.C. App. 371, 763 S.E.2d 328 (2014).

Wife's distributive award did not err because the court made sufficient findings to indicate the court's basis for entering a distributive award and did not abuse the court's discretion by ordering a distributive award based on the distributional factors the court considered. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Trial court did not improperly fail to consider a husband's post-separation payments on a marital home because the payments did not exceed the reasonable rental value of the home, in which the husband lived, which the husband did not pay. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Trial court did not improperly fail to consider a husband's post-separation payments of country club dues because the payments were of no value to the wife. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Former husband failed to show that a trial court in distributing the husband's Federal Employees Retirement Savings benefits abused its discretion by distributing the present value of the survivor's benefit to the wife, and the present value of the retirement benefit to the husband, or by failing to consider the alimony implications of its distribution of marital assets. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Trial court did not abuse the court's discretion in ordering defendant to make a distributive award of $ 120,000; defendant had obvious liquid assets from which to make a distributive award, consisting primarily of life insurance proceeds from the death of the defendant's ex-husband, the trial court found there was $ 841,784.00 remaining in the account as of the parties' date of separation, and given defendant's expenses, it was reasonable for the trial court to conclude that there was at least $ 200,000 remaining. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

Separate Property Improperly Distributed. - Trial court ordered plaintiff to liquidate certain real properties to pay down the distributive award; because this unquestionably disturbed plaintiff's rights in her separate property, the trial court's actions amounted to an impermissible distribution of that property, but this finding was not intended to limit the trial court's civil contempt power should she fail to comply with the order, at which time all of her assets could be taken into account. Crowell v. Crowell, 372 N.C. 362, 831 S.E.2d 248 (2019).

IV. VALUATION OF PROPERTY.

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Subsection (a) of this section effectively provides for the "freezing" of the marital estate as of the date of the parties' separation, and marital assets, distributed thereafter, are valued as of that date; attempts by one or both spouses to deplete the marital estate or dispose of marital property after the date of separation but before distribution may be considered by the court when making the division, and any conversion of marital property for individual purposes may be charged against the acting spouse's share. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987).

Net Value Used to Determine Equitable Distribution. - In determining what distribution of the property is equitable, the court must use the net value of the property rather than its fair market value. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

Net value, rather than fair market value, is the proper measure for valuing marital property for equitable distribution. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985).

The division of marital property is to be accomplished by using the net value of the property, i.e., its market value, if any, less the amount of any encumbrance serving to offset or reduce market value. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Date of Separation to Be Used in Valuing Property. - The trial court did not err in failing to consider the current fair market value of all marital assets. Subsection (b) of this section provides that for purposes of equitable distribution, marital property shall be valued as of the date of the separation of the parties. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Since the trial court was required by G.S. 50-21(b) to find the value of the IRA as of the date of separation, the court did not err by doing so. The husband's evidence was more properly considered as a distributional factor under G.S. 50-20(c). Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

For the test for determining the date of separation under the equitable distribution statutes, see Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Burden of Proof. - It was the wife's burden of proof to value companies to have the property classified as marital or divisible property, and she failed to meet her burden, and the trial court did not abuse its discretion in granting the husband's motion in limine to prohibit the introduction of evidence regarding these assets; the trial court did account for these assets in its unequal division. Montague v. Montague, 238 N.C. App. 61, 767 S.E.2d 71 (2014).

Appreciation Is Factor to Be Considered. - Post-separation appreciation of marital property itself is neither marital nor separate property. Such appreciation must instead be treated as a distributional factor under subdivision (c)(11a) or (12). Truesdale v. Truesdale, 89 N.C. App. 445, 366 S.E.2d 512 (1988).

Where there is evidence of active or passive appreciation of marital assets after the date of separation, the court must consider the appreciation of the assets as a factor under subdivisions (c)(11a) or (12) of this section. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Diminution in Value of Marital Property. - Trial court found both parties at fault in the diminution in value of the marital residence due to failure to maintain and repair it; the trial court therefore erred in failing to divide the diminution in value between the parties. Robertson v. Robertson, 167 N.C. App. 567, 605 S.E.2d 667 (2004).

Arbitrator's finding that the diminution in value of a husband's vehicle was properly within the definition of divisible property, pursuant to G.S. 50-20(b)(4), was not an evident miscalculation or mistake under the Family Law Arbitration Act, G.S. 50-55, because the basis for the vehicle's decrease in value could not be attributed to the actions of one spouse and occurred after the date of separation; the arbitrator made the uncontested finding that the post-separation decrease in the value of the vehicle was $13,000. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Failure to Classify Corporation's Loss in Value as Divisible Property was Error. - Trial court's failure in a divorce case to classify a corporation's loss in value as divisible property was error because, although the husband was the sole stockholder of the corporation, the trial court specifically stated that it was impossible to determine what portion of the loss was due to the husband's postseparation management and what part was due to forces beyond his control; thus, the G.S. 50-20(b)(4)(a) presumption was unrebutted. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

When Separation Held to Occur. - Where at all times prior to December 26, 1983, the relationship between plaintiff and defendant was of such a character as to give the appearance that they were husband and wife living together and that they held themselves out to be such, their separation, as that term is defined by case law, did not occur until December 26, 1983. Hall v. Hall, 88 N.C. App. 297, 363 S.E.2d 189 (1987).

Meaning of "Net Value". - The term "net value" is to be given its ordinary and commonly understood interpretation: i.e., market value, if any, less the amount of any encumbrance serving to offset or reduce market value. Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984); Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266 (1985); Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986).

Meaning of "Equity". - Equity is net value of property, i.e., its present value minus the outstanding mortgage. Willis v. Willis, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

Meaning of "Presently Owned." - The term "presently owned" under subdivision (b)(1) refers to the date of separation. Wornom v. Wornom, 126 N.C. App. 461, 485 S.E.2d 856 (1997).

Failure of judge to value marital property as of date of separation was error prejudicial to wife. By looking only to funds in husband's account at time of equitable distribution hearing, rather than at time of separation, judge failed to properly trace marital property. Account in question was established by husband after separation and before hearing, and funds deposited to account came from three sources, two of which were part marital and part separate and one of which was wholly marital. Willis v. Willis, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

The trial court erred in considering post-separation events in determining the value of the marital corporation where the case arose prior to the 1997 amendments to the Equitable Distribution Act; events which occurred following the date of separation were to be considered only as distributional factors under this section while events which occurred prior to the separation - for example, the wife's freezing the equity line which, for all practical purposes, destroyed the relationship between the marital corporation and its major client - could be considered in valuation of the property. Offerman v. Offerman, 137 N.C. App. 289, 527 S.E.2d 684 (2000).

Trial Court Is Required to Value Property Stipulated to Be Marital. - When parties to an equitable distribution action make a valid stipulation that certain property is to be classified as marital property, the trial court is nonetheless required to value and distribute that property. Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987).

Property Must Be Valued Before It Is Distributed. - Subsection (c) of this section requires the trial court to determine what is marital property, then to find the net value of the property, and finally to make an equitable distribution of that property; thus, where the court made some findings and conclusions regarding marital property, but did not place a value on the marital home, its order that the marital home be sold for not less than $140,000 was at least premature, as the court had not placed a value upon the marital property. Soares v. Soares, 86 N.C. App. 369, 357 S.E.2d 418 (1987).

No Requirement to Assign Monetary Value to Medical License. - Having classified the husband's medical license as separate property and considered it as having "very substantial value" in making equitable distribution, the trial court did not err in refusing to assign it a monetary value. Conway v. Conway, 131 N.C. App. 609, 508 S.E.2d 812 (1998).

This section does not require the trial court to place a monetary value on any distributional factor; this would be an unnecessary burden upon the trial court. Gum v. Gum, 107 N.C. App. 734, 421 S.E.2d 788 (1992).

No Credit for Payments on Marital Home. - Once the residence was distributed to the ex-wife in the interim distribution order, any payments she made on the home were to her benefit, and she did not need to be credited with them; the trial court did not abuse its discretion in assigning a value to the marital residence and declining to assign a value to the ex-wife's post-interim distribution payments. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

Dual Classification and Valuation. - Although evidence supported judge's dual classification of marital home, in that the home was acquired in part by separate estate and in part by marital estate, judge erred by assigning a combined marital and separate property value when he distributed property. Trial judge must divide the equity based on the proportion invested by marital and separate estates. Willis v. Willis, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

Mortgage payments are acquisitive, not appreciative. Active/passive distinction concerning appreciation has no utility when property has dual classification (i.e., was acquired in part with separate property and in part with marital property). Each estate, marital and separate, is entitled to a proportionate return on its investment whether appreciation is active or passive. Willis v. Willis, 86 N.C. App. 546, 358 S.E.2d 571 (1987).

Valuation of Property After Separation Held Proper. - There was no error when the trial court based its distribution of the marital property on evidence of values of the marital property assigned after the date of the parties' separation, where although plaintiff and defendant were separated on December 24, 1984, the court valued the parties' pensions as of December 31, 1984, defendant failed to demonstrate that either of the parties made any additional contributions, or that any additional interest had accrued to the retirement plans during the seven day interval between the parties' date of separation and the date of valuation. Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988).

Items Charged on Credit Card. - Court erred in its equitable distribution judgment by including the gross fair-market value of those marital properties which had an outstanding credit card balance and then failing to credit plaintiff for the debt; however, since plaintiff was awarded all of the items charged on the credit card in the property division award, the error was not prejudicial. Hendricks v. Hendricks, 96 N.C. App. 462, 386 S.E.2d 84 (1989), cert. denied, 326 N.C. 264, 389 S.E.2d 113 (1990).

Value of Truck and Lease of Truck. - Trial court did not commit error in assigning a value to, and including as marital property of the parties, both the net fair market value of the truck, and the net present fair market value of a lease of truck; the truck and the lease were two separate items of property and, therefore, the trial judge properly valued the truck and the lease as separate assets. Black v. Black, 94 N.C. App. 220, 379 S.E.2d 879 (1989).

Value of Growing Timber. - Trial judge correctly included the actual value of the land and timber at the date of separation. Because neither party presented evidence of appreciation, if any, between the time of separation and the order for equitable distribution, the trial judge was not required to find the presence of this distributional factor. Cobb v. Cobb, 107 N.C. App. 382, 420 S.E.2d 212 (1992).

For a thorough consideration of valuation and distribution of a considerable marital estate, see Smith v. Smith, 111 N.C. App. 460, 433 S.E.2d 196, petition denied as to additional issues, 335 N.C. 177, 438 S.E.2d 202 (1993), rev'd on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994).

Insufficient Evidence to Reach Value of Retirement Account. - Without the amount of the monthly pension as of the date of separation, the case law computation could not be completed, and the trial court correctly found that it lacked sufficient evidence to attempt to value the ex-husband's retirement; this flaw could not be corrected with a post-trial memorandum that relied on websites and other materials not before the trial court as competent evidence, because clever arguments cannot atone for a fatal deficiency in the evidence presented to the trial court. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

Incompetent Evidence of Valuation. - Defendant's assertion that he would receive a certain amount a month, "give or take," if he retired in the next few years was not a competent statement of valuation or of an earliest retirement age. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

Trial court's revised equitable distribution on remand was not an abuse of discretion because it was not an abuse of discretion to find a wife's testimony on the value of a marital residence not credible, or not to value and distribute an increase in the home's value between separation and distribution, as no appraiser opined as to this divisible property's value on the date of distribution, and the wife's value estimates were speculative. Lund v. Lund, 252 N.C. App. 306, 798 S.E.2d 424 (2017).

Valuation Upheld. - Trial court's valuation of a 1995 Harley-Davidson motorcycle was upheld on appeal where the husband never objected to the fair market value that the trial court placed on the machine, and the trial court had made sufficient findings of fact that showed the motorcycle had a net equity value of $1,952.00. Urciolo v. Urciolo, 166 N.C. App. 504, 601 S.E.2d 905 (2004).

Trial court's finding pursuant to G.S. 50-21(b) that the pickup truck had a value on the date of separation of $4,860.00 was supported by competent evidence. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Trial court did not err in valuing the real property portion of the marital property between a former husband and former wife because the only evidence the husband used to contradict the trial court's findings on the valuation of the land was his own testimony, which consisted of unsupported statements; those bald, self-serving statements did not constitute a basis for concluding that the trial court abused its discretion in the valuation. Troutman v. Troutman, 193 N.C. App. 395, 667 S.E.2d 506 (2008).

Valuation of two residential properties was appropriate under G.S. 50-20(c) because it was based on record evidence concerning the tax values, the outstanding tax bills, and the outstanding mortgages. Plummer v. Plummer, 198 N.C. App. 538, 680 S.E.2d 746 (2009).

Trial court did not err in determining that an increase in a husband's dental practice after the date of the parties' separation was divisible property, pursuant to G.S. 50-20(b)(4)(a), because the trial court could not determine the cause of the post-separation increase in value and the husband failed to present evidence to rebut the statutory presumption that post-separation appreciation to marital property was divisible; there was no dispute the dental practice prior to the date of separation was marital property. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Trial court properly valued the separate, marital, and divisible components of a wife's three investment accounts because the wife's testimony that the value of the accounts declined over the course of the two years prior to trial served as competent evidence in support of a loss in value of the accounts, and the trial court properly characterized the loss as divisible. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Trial court properly valued a wife's 401(k) account and the divisible property associated with the account because if the trial court transposed the first two digits of the account value in arriving at its valuation, as the husband argued, any such error would have increased the marital component of the account, thereby benefiting the husband, and as such, the husband could not show prejudice; the wife's testimony as to the loss associated with the account was credible. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Trial court properly considered the valuation of pension and retirement accounts because a husband's counsel did not object when a wife's counsel brought the issue forward. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Trial court's classification and valuation of vehicles were supported by competent evidence because the wife listed the make, model, year, and value for each of the nine vehicles claimed to be marital property, and she testified that she valued each of the vehicles by consulting the National Automobile Dealers Association. Chafin v. Chafin, 250 N.C. App. 19, 791 S.E.2d 693 (2016), review denied, 795 S.E.2d 219, 2017 N.C. LEXIS 40 (2017).

Valuation Held Erroneous. - Evidence held insufficient to support trial court's valuation of marital home for purposes of equitable distribution of the marital property. Coleman v. Coleman, 89 N.C. App. 107, 365 S.E.2d 178 (1988).

Appellate court was unable to determine whether a trial court in a dissolution of marriage proceeding properly found that equal distribution was inequitable in the case because, without the benefit of proper classification, valuation, and listing of all the property owned by the parties, the court could not discern whether the trial court's method of distribution was unreasonable or arbitrary; furthermore, because of the number and degree of errors the trial court committed, the appellate court concluded that a new trial was required. Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 606 S.E.2d 164 (2004).

Trial court erred in valuing four undeveloped lots based upon their respective listing prices, which had no bearing upon the fair market value of the property since they had been for sale for years with no buyers. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

In finding the net value of the marital residence to be zero, the trial court erred by not only subtracting the value of the encumbrances from its fair market value, but by also deducting the expenses of sale; consideration of those expenses went beyond what is permitted. Hill v. Hill, 229 N.C. App. 511, 748 S.E.2d 352 (2013).

Trial court erred in classifying and valuing a husband's IRA because the husband's pension rollover IRA was funded entirely from the husband's defined pension, requiring application of the coverture fraction to derive the marital and separate components of the account, rather than the methodology presented by the wife's expert upon which the trial court relied. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Trial court's valuation of a parcel of marital real property erred because a wife's testimony did not express an opinion as to the parcel's value as of the date of separation. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Trial court erred in it's valuation of a husband's 401(k) account erred because the valuation contained a mathematical error. Hill v. Hill, 244 N.C. App. 219, 781 S.E.2d 29 (2015).

Offer to Purchase or Sell as Evidence of Value. - While mere offers to purchase or sell are not generally competent as evidence of value, where the offer constitutes an admission against interest, operating against the landowner's or offeror's contended value, the rule has been relaxed. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

For case upholding the valuation and award of the stock of a minority shareholder in a closely-held corporation in equitable distribution proceedings, see Hartman v. Hartman, 82 N.C. App. 167, 346 S.E.2d 196 (1986), aff'd, 319 N.C. 397, 354 S.E.2d 239 (1987).

Legal Malpractice Claim Failed as Client Did Not Value Marital Estate. - Client's legal malpractice action failed as even assuming an attorney negligently failed to advise the client or to value the client's estate properly under G.S. 50-20(e) and G.S. 50-21(b), the client made no forecast of the value of the marital estate as of the date of separation and therefore as to the value of the client's equitable distribution claim; thus, the client failed to show that any negligence by the attorney proximately caused damage to the client. Young v. Gum, 185 N.C. App. 642, 649 S.E.2d 469 (2007), review denied, 362 N.C. 374, 662 S.E.2d 552 (2008), review dismissed, as moot, 362 N.C. 374, 662 S.E.2d 665 (2008).

Valuation of Partnership Interest. - When considering the value of a spouse's interest in a business partnership, the task of the appellate court on review is to determine whether the approach used by the trial court reasonably approximates the net value of the partnership interest. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

The withdrawal formula for valuing a partnership interest is presumptively correct, though it may be attacked if not reasonably representative of the value of the defendant's interest. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

In valuing husband's interest in a business partnership, the trial court did not err by using a withdrawal formula, as opposed to a book value approach. Nor did it err by using the withdrawal formula found in the partnership agreement. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Where there was no evidence that defendant had actually withdrawn his partnership interest, or that the distribution ordered by the court would require him to do so, but the court deducted from the value of defendant's partnership interest the amount of income tax defendant would have owed had he withdrawn his partnership interest, it was improper for the court to consider such hypothetical and speculative tax consequences in valuing defendant's partnership interest. Harvey v. Harvey, 112 N.C. App. 788, 437 S.E.2d 397 (1993).

Downward adjustment in value of stock awarded to the spouse who had generally not managed the couple's investments to reflect loss in value between the date of separation and entry of equitable distribution was not improper where there was no showing that the loss in value had anything to do with actions or failures to act on the part of the manager spouse. Allen v. Allen, 168 N.C. App. 368, 607 S.E.2d 331 (2005).

Debts. - Trial court erred by failing to consider defendant's obligation on notes created to establish accounting firm and erred by finding defendant earned $120,000 a year without sufficient evidence. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997).

With respect to the increased amount paid as a result of the wife's $7,500.00 post-separation draw on the line of credit, the draw and the resulting finance charges and interest were not marital debt (or divisible property) and, therefore, the trial court had no authority to distribute that debt. The trial court was directed on remand to take into account the husband's payment of finance charges incurred for the wife's separate debt. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Classification of a husband's post-separation payment toward a mortgage on marital property as divisible property was proper because all post-separation payments of a marital debt were classified as divisible property pursuant to G.S. 50-20(b)(4)(d). McNeely v. McNeely, 195 N.C. App. 705, 673 S.E.2d 778 (2009).

Parties' pre-trial stipulations and the testimony of the parties as to the amount of the debt were sufficient to support the findings of fact, and the ex-wife could not complain of a lack of evidence on appeal when she stipulated to the debt and did not present the evidence she claimed was lacking. Johnson v. Johnson, 230 N.C. App. 280, 750 S.E.2d 25 (2013).

V. AGREEMENTS.

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This section did not purport to change the general validity of separation agreements or to modify existing agreements. McArthur v. McArthur, 68 N.C. App. 484, 315 S.E.2d 344 (1984).

Bankruptcy's Impact on Settlement Agreement. - In an ex-wife's adversary proceeding against her debtor ex-husband, the wife was unable to have debts owed to her by the husband pursuant to the parties' divorce settlement agreement ruled non-dischargeable, because under 11 U.S.C.S. § 523(a)(15), the phrase "incurred by the debtor in the course of a divorce or separation" required the incurrence of a new debt in the course of the divorce, which was created generally by a hold harmless or indemnification provision in the domestic order or agreement, and their agreement contained no such clause; further, under G.S. 50-20(c)(1), a right of indemnification was not automatic, so without such a provision the wife's claim failed. In re Thomas, - Bankr. - (Bankr. E.D.N.C. June 28, 2019).

Subsection (d) was enacted to insure against fraud and overreaching on the part of one of the spouses. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).

Effect of Subsection (d). - By the enactment of subsection (d) of this section, the General Assembly manifested a clear intent to change the former rule which required the actual separation of the parties to a marriage in order for a property settlement to be effective between spouses. Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984).

The public policy of the State, as expressed by subsection (d) of this section, permits spouses to execute a property settlement at any time, regardless of whether they separate immediately thereafter or not. Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984).

Trial court did not err by allowing equitable distribution of property acquired during the parties' marriage as the parties' prenuptial agreement did not waive their claims to equitable distribution, G.S. 50-20(d); based on the former husband's stated intentions regarding the creation of the agreement, his discussions with an attorney, and the actual language of the agreement, the trial court could properly find that the agreement constituted a "free trader" agreement that did not waive the parties' rights to equitable distribution. McIntyre v. McIntyre, 188 N.C. App. 26, 654 S.E.2d 798 (2008), aff'd, 362 N.C. 503, 666 S.E.2d 749 (2008).

Subsection (d) did not reverse a prior public policy against agreements releasing spousal property rights; by incorporating G.S. 52-10, it instead mandated, among other things, that the policy favoring property settlements continue so that a prior settlement of spousal property rights would also constitute a plea in bar to the equitable distribution of "marital" property under G.S. 50-20. Small v. Small, 93 N.C. App. 614, 379 S.E.2d 273, cert. denied, 325 N.C. 273, 384 S.E.2d 519 (1989).

Interpretation of Settlement Agreement. - District court erred by interpreting a property settlement agreement via a declaratory judgment action brought by an ex-husband against his ex-wife because the proper remedy with regard to interpreting the agreement, which had been incorporated into a consent judgment of divorce, was a contempt proceeding and not an independent declaratory judgment action; as a result, the district court lacked subject matter jurisdiction of the matter and the order interpreting the agreement, which was in favor of the ex-husband, was vacated on appeal. Fucito v. Francis, 175 N.C. App. 144, 622 S.E.2d 660 (2005).

Separation Agreement Fully Disposing of Property Rights. - If a court finds that a separation agreement fully disposes of the parties' rights arising out of the marriage, the court may not set aside the separation agreement and property settlement, absent fraud or misrepresentation. A separation agreement and property settlement entered into by the parties which fully disposes of the property rights arising out of a marriage acts as a bar to equitable distribution. Rabon v. Rabon, 102 N.C. App. 452, 402 S.E.2d 461 (1991).

Release of Rights Did Not Violate Public Policy. - Wife's release of property rights under 1980 Post-Nuptial Contract did not violate public policy simply because it was executed prior to the adoption of subsection (d) of this section. Small v. Small, 93 N.C. App. 614, 379 S.E.2d 273, cert. denied, 325 N.C. 273, 384 S.E.2d 519 (1989).

Right to Cancel Separation Agreement. - In enacting subsection (d) of this section, the General Assembly did not intend that a written separation agreement, once entered into, would be forever binding or forever a bar to an equitable distribution action. Rather, the parties to separation agreements must still be able to cancel their agreements, and the indicia of the intent to cancel as developed in the common law must also still be intact. Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682 (1985).

When Separation Agreement Is Valid. - To be valid, a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).

Failure of husband and wife to separate until 31 days after the execution of a separation and property settlement agreement did not render the post-separation support and alimony provisions null and void. Newland v. Newland, 129 N.C. App. 418, 498 S.E.2d 855 (1998).

Transactions Between Spouses Must Be Fair and Reasonable. - The relationship between a husband and a wife is the most confidential of all relationships, and transactions between them, to be valid, must be fair and reasonable. A separation agreement must have been entered into without coercion. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990), cert. denied, 328 N.C. 274, 400 S.E.2d 461 (1991).

When examining whether both parties freely entered into separation agreement, trial courts should use considerable care because contracts between husbands and wives are special agreements. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990), cert. denied, 328 N.C. 274, 400 S.E.2d 461 (1991).

Railroad Retirement Benefits Under a Separation Agreement. - Trial court properly granted summary judgment in favor of ex-wife in her suit to enforce a separation agreement, and did not err in entering an order awarding the ex-wife 29.5 percent of the ex-husband's divisible railroad retirement benefits. Gilmore v. Garner, 157 N.C. App. 664, 580 S.E.2d 15 (2003).

Fraud Need Not Be Shown, Where Settlement Is Unfair Due to Other's Overreaching. - Courts have thrown cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably. To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if settlement is manifestly unfair to spouse because of other's overreaching. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990), cert. denied, 328 N.C. 274, 400 S.E.2d 461 (1991).

Unless both parties legally consent to rescinding the agreement, the court is without the power to discard valid contracts between the parties and to order equitable distribution. Rabon v. Rabon, 102 N.C. App. 452, 402 S.E.2d 461 (1991).

Existence of Confidential Relationship After One Spouse Has Left Home. - A confidential relationship, and a fiduciary duty, between husband and wife can exist even after one spouse has left the home. Where such a relationship exists, there is a duty to disclose all material facts relevant to a separation agreement, and failure to do so constitutes fraud. Harroff v. Harroff, 100 N.C. App. 686, 398 S.E.2d 340 (1990), discretionary review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).

Same - After Involvement of Attorney. - The involvement of an attorney does not automatically end the confidential relationship of husband and wife. Where one spouse alleges and offers evidence that the confidential relationship still existed and that the attorneys' role was merely to record the agreement the spouses negotiated, it is a question of fact as to whether the confidential relationship has been terminated. Harroff v. Harroff, 100 N.C. App. 686, 398 S.E.2d 340 (1990), discretionary review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).

Stipulations as to Division of Marital Property Must Be Scrutinized. - The same scrutiny which is applied to separation agreements must also be applied to stipulations entered into by a husband and a wife regarding the distribution of their marital property. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).

Distribution Agreement Should Be Written, Executed, and Acknowledged. - Any agreement entered into by the parties regarding the distribution of their marital property should be reduced to writing, duly executed and acknowledged. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).

Without the signature of both the husband and the wife, an agreement may not conform to the requirements of subsection (d) of this section. Collar v. Collar, 86 N.C. App. 105, 356 S.E.2d 407 (1987).

Judgment which effectuated a distribution of the parties' marital property pursuant to an agreement that was not signed by both husband and wife was a court-ordered equitable distribution granted before absolute divorce, and as such was expressly prohibited by G.S. 50-21(a). Collar v. Collar, 86 N.C. App. 105, 356 S.E.2d 407 (1987).

Otherwise, Record Must Show Understanding of and Agreement with Terms. - If oral stipulations between spouses regarding the distribution of their marital property are not reduced to writing, it must affirmatively appear in the record that the trial court made contemporaneous inquiries of the parties at the time the stipulations were entered into. It should appear that the court read the terms of the stipulations to the parties, and that the parties understood the legal effects of their agreement and the terms of the agreement and agreed to abide by those terms of their own free will. McIntosh v. McIntosh, 74 N.C. App. 554, 328 S.E.2d 600 (1985).

Although plaintiff claimed the parties stipulated for trial that certain land would be classified as marital property, the record showed no evidence of stipulation; therefore, as the property was a gift to defendant from his mother, trial court's classification of the land as marital property was error. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

Where there was no evidence of a written agreement nor any affirmative assurance that the parties were in agreement concerning the division of personal property, the trial court's reliance on the parties' oral agreement or existing division of personal property was error and all marital personal property should have been included in the equitable distribution. Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891 (1987).

Handwritten agreement which was not acknowledged before a certifying officer as defined in G.S. 52-10(b) was not binding upon the court and the court was free to distribute the property. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

Handwritten Agreement Superseded by Later Agreement Incorporated in Judgment. - Trial court did not err in refusing to enforce a 1986 handwritten agreement between the parties which concerned the distribution of marital assets and which provided that defendant would pay plaintiff $15,000 upon her remarriage or upon her sale of a specific parcel of marital property. The language in the judgment clearly indicated that property settlement agreement of 1988, which was incorporated into the judgment, was a full and final settlement of the distribution of marital property which superseded any and all prior agreements between the parties. Rosania v. Rosania, 108 N.C. App. 58, 422 S.E.2d 348 (1992).

Separation Agreement as Bar to Equitable Distribution. - A separation agreement which contained no specific references to any real property, but only to personal property, nevertheless fully disposed of the parties' property rights arising out of the marriage and thus acted as a bar to equitable distribution. Hartman v. Hartman, 80 N.C. App. 452, 343 S.E.2d 11 (1986).

In view of separation agreement between the parties, which provided for (1) division of property, (2) effect of reconciliation on the property settlement, (3) mutual release of all personal and real property claims that the parties might have against each other or might acquire under any statute of distribution, right of election or otherwise, and (4) joint custody and support of the parties' two children, and which the court found valid, the trial court erred in ordering that further proceedings might be held to accomplish an equitable distribution of marital property which had allegedly not been taken account of. Rice v. Rice, 81 N.C. App. 247, 344 S.E.2d 41, cert. denied, 317 N.C. 706, 347 S.E.2d 439 (1986).

Valid marital agreements releasing all spousal property rights will bar claims for equitable distribution - even if those settlements were executed prior to the adoption of equitable distribution under this section. Morrison v. Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991).

Separation agreement which released each spouse from the common law rights incident to marriage (dower, curtesy, inheritance, descent, and distribution), as well as "all other rights arising out of the marital relationship in and to any and all property," fully disposed of the parties' property rights arising out of the marriage and thus acted as a bar to equitable distribution. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987).

Equitable Distribution Barred Where Separation Agreement Dividing Property Has Been Executed. - If parties who had entered into a 1963 separation agreement divided and conveyed property prior to resuming their marital relationship, then the provisions of the separation agreement concerning that property were "executed," and an equitable distribution suit to divide that property upon the parties' again separating in 1982 would be barred, unless the evidence showed an intent to cancel those provisions of the separation agreement. Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682 (1985).

Premarital agreements that exhibit a clear intention on the part of the parties to dispose of their property upon dissolution of their marriage through the provisions of their premarital agreement rather than through equitable distribution are expressly allowed; the ability to control the disposition of property upon the dissolution of a marriage appears to be the primary purpose of most, if not all, premarital agreements. Harllee v. Harllee, 151 N.C. App. 40, 565 S.E.2d 678 (2002).

But Not by Executory Promises. - Wife's promise in 1963 separation agreement that she would make no future claims to husband's future property required future performance and therefore was executory, and where the parties became reconciled and lived again as husband and wife between 1963 and 1982, then this promise was void as to property acquired after they resumed the marital relationship. A suit for equitable distribution of this property was therefore proper. Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682 (1985).

Separation agreement is terminated insofar as it remains executory on resumption of marital relation. This rule has not been superseded by subsection (d). Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, cert. denied, 314 N.C. 663, 335 S.E.2d 493 (1985).

Condition in Separation Agreement Not Met. - Condition in separation agreement that if the parties lived continuously separate and apart for a full year, then in that event, wife would transfer her interest in residence and lot to husband as part of property settlement was not met where the evidence showed that on a number of occasions during the year the parties had had sexual relations. Higgins v. Higgins, 321 N.C. 482, 364 S.E.2d 426, rehearing denied, 322 N.C. 116, 367 S.E.2d 911 (1988), decided prior to § 52-10.2

Misapplication of Stipulations in Agreement. - A trial court abused its discretion in misapplying a $5000 credit, where the parties agreed (1) that certain property would be divided unequally, and (2) that the husband would receive less personal property but would receive the $5000 credit. The trial court applied the credit but in effect ignored the remainder of the stipulation by including property against which the credit was to be an offset when it divided the marital estate equally. Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

Property Settlement Not Negotiated as Reciprocal Consideration. - If a property settlement is negotiated as "reciprocal consideration" for a separation agreement, the agreements are deemed integrated and the resumption of marital relations will terminate the executory provisions of the property settlement agreement. If not in reciprocal consideration, the provisions of the property settlement are deemed separate and the resumption of marital relations will not affect either the executed or executory provisions of the property settlement agreement. Morrison v. Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991).

The absence of a divorce decree did not cancel buy-sell agreement which provided that wife could purchase husband's equity in property "within one year of the date of the entry of an order of divorce"; that if she did not exercise her right of purchase within that time, he could purchase her equity for the same amount within 90 days after "the termination of the one-year period as is hereinabove set forth"; and that if neither bought the equity of the other, the property would be listed for sale with a licensed real estate broker and upon it being sold, the net proceeds would be equally divided. Riley v. Riley, 86 N.C. App. 636, 359 S.E.2d 252, cert. denied, 321 N.C. 121, 361 S.E.2d 596 (1987).

Tenancy by Entirety Not Destroyed by Separation Agreement. - Despite contention of creditor of husband that separation agreement executed by husband and wife destroyed tenancy by the entirety and vested a property interest in husband against which creditor was entitled to levy, where husband and wife were not divorced until over 8 months following the conveyance of the marital property to husband's parents, the property remained entirety property at the time of the conveyance and could not be the subject of a conveyance in defraud of husband's individual creditors. The trial court erred in ordering that creditor was entitled to receive the proceeds of the sale of this property. Dealer Supply Co. v. Greene, 108 N.C. App. 31, 422 S.E.2d 350 (1992), cert. denied, 333 N.C. 343, 426 S.E.2d 704 (1993).

Effect of Reconciliation on Property Settlements. - A single act of sexual intercourse between a husband and wife constitutes a reconciliation and terminates alimony obligations. However, property settlements may be executed before, during or after marriage and are not necessarily terminated by reconciliation. Love v. Mewborn, 79 N.C. App. 465, 339 S.E.2d 487, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Obligation to Make Money Payments Held Not Terminated on Renewal of Sexual Relations. - The trial court's finding of fact that property settlement and alimony payments were mutually dependent supported its conclusion that the husband's obligation to make money payments denominated as "alimony" did not terminate upon renewal of sexual relations. Love v. Mewborn, 79 N.C. App. 465, 339 S.E.2d 487, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Reconciliation Provision Did Not Violate Public Policy. - Reconciliation provision of the parties' settlement agreement did not violate North Carolina's public policy as applied to the property settlement provisions of the agreement; both parties waived any rights to equitable distribution in the agreement, so the trial court erred by concluding that the wife's equitable distribution claim was not affected by the agreement. Bradshaw v. Bradshaw, 264 N.C. App. 669, 826 S.E.2d 779 (2019).

A premarital agreement concerning alimony is void as against public policy. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.

Invalidity of alimony provision in a premarital agreement did not affect the property provisions of the agreement. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.

Lack of Acknowledgment in Premarital Agreement. - The validity of a premarital agreement is not affected by the lack of acknowledgment. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.

Stipulation That Equal Division of Marital Property Is Equitable. - Where the parties stipulate that an equal division of the marital property is equitable, it is not only unnecessary but improper for the trial court to consider, in making that distribution, any of the distributional factors set forth in subsection (c) of this section. Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990).

Error in Conclusion That Agreement Was Sufficiently Identical to Act. - Trial court erred in concluding that premarital agreement was sufficiently identical to the Equitable Distribution Act to allow the trial court to distribute the property according to the Act despite the premarital agreement, where the Act did not exist at the time of the agreement's execution, and the parties could not have intended that the Act govern their property division. Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989), cert. denied, 326 N.C. 482, 392 S.E.2d 90 (1990), decided under law in effect prior to enactment of Chapter 52B.

Attacking Consent Judgment. - A consent judgment incorporates the bargained agreement of the parties. Such a judgment can only be attacked on limited grounds. The party attacking the judgment must properly allege and prove that consent was not in fact given, or that it was obtained by mutual mistake or fraud. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334 (1990).

Contract Principles Apply to Consent Judgments. - A contract may be avoided based on mutual mistake where the mistake is common to both parties and because of it each has done what neither intended. A unilateral mistake, unaccompanied by fraud, imposition, or like circumstances, is not sufficient to avoid a contract. These contract principles apply to consent judgments. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334 (1990).

Consent Judgment Held Enforceable. - Where the agreement, in the form of a consent judgment, was altered many times by both parties, both of whom had attorneys, it should have been enforced as written. Stevenson v. Stevenson, 100 N.C. App. 750, 398 S.E.2d 334 (1990).

Consent Order Precluded Consideration of Appreciation in Value of Property. - Trial court did not err in failing to classify, value, and distribute the increase in value of the parties' condominium in a divorce case from the date of separation to the date of distribution under circumstances in which a consent order entered into by the parties stated that it was a "final" distribution and provided a value of a condominium for purposes of equitable distribution; the consent order precluded further valuation and precluded any consideration of the appreciation of the condominium as divisible property. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

Consent Order Precluded Distribution of Interest Earned on Proceeds of Sale of Marital Home. - Trial court properly refused to classify, value, and distribute the interest earned on the proceeds from the sale of the parties' former marital residence under circumstances in which the parties' consent order provided a specific formula by which the net proceeds were to be distributed to the wife; once distributed, the property and the proceeds from its sale became wife's separate property. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

Right to Present Evidence on Issue of Separability. - On wife's motion for increase in alimony payments, where consent order entered into between husband and wife contained support provisions and property settlement provisions, an evidentiary hearing was required to determine the intent of the parties regarding whether the provisions of the agreement were separable or integrated, and it was error for the trial court to refuse to allow husband to present evidence on this issue. Lemons v. Lemons, 103 N.C. App. 492, 406 S.E.2d 8 (1991), decided under law in effect in 1978 at time of consent decree.

Summary Judgment Held Improper. - Summary judgment was improper where there was a genuine issue of material fact as to whether defendant disclosed all material facts pertaining to separation agreement. Harroff v. Harroff, 100 N.C. App. 686, 398 S.E.2d 340 (1990), discretionary review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).

Plaintiff's affidavit stated she was forced to sign separation agreement under duress and coercion, and defendant denied allegation; therefore, taking plaintiff 's affidavit as true, there was a genuine issue of material fact on question of duress and coercion concerning the separation agreement, and grant of summary judgment was error. Stegall v. Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990), cert. denied, 328 N.C. 274, 400 S.E.2d 461 (1991).

Award of 401(k) Plan. - Trial court's judgment and orders awarding defendant post-separation gains and losses on her portion of 401(k) plan held consistent with both the parties' agreement and the law of this State. Allen v. Allen, 118 N.C. App. 455, 455 S.E.2d 440 (1995).

Consent Order Was Not A Conveyance. - Dismissal of assignee's motion to subject real estate to execution sale was reversed as the assignee's judgment lien attached to a husband's undivided interest in property formerly held as a tenancy by the entirety upon the date of his divorce, when the property was converted by law to a tenancy in common, and when he conveyed his interest to his former wife, she took title subject to the judgment lien; a consent order providing for a future transfer of the property was not a conveyance as it provided for a future transfer of the property, did not provide a legal description or state the location of the property, and was not filed with the register of deeds. Martin v. Roberts, 177 N.C. App. 415, 628 S.E.2d 812 (2006).

Failure to Consider Property Agreement Improper. - Because a husband neither disputed a property contract nor brought any new claim of his own, it would not have been appropriate for the wife to specifically plead an affirmative defense under G.S. 1A-1, N.C. R. Civ. P. 8(c); accordingly, the property contract was improperly disregarded by the trial court. Street v. Street, 191 N.C. App. 815, 664 S.E.2d 69 (2008).

VI. ALIMONY AND CHILD SUPPORT.

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Purpose of alimony pendente lite is to give dependent spouse immediate support and allow her to maintain her action. Giving supporting spouse credit for equitable distribution purposes for various payments made as part of alimony pendente lite would defeat the purpose of alimony pendente lite by penalizing the dependent spouse in the final distribution of the marital assets. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408, overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

No Application Where No Existing Alimony Order. - G.S. 50-20(f) had no application because there was no existing alimony order to modify until the effective date of the alimony order; therefore, the ex-husband's request that the trial court take judicial notice of the equitable distribution order before the entry of the alimony order was ineffectual. Rhew v. Felton, 178 N.C. App. 475, 631 S.E.2d 859, appeal dismissed, review denied, 636 S.E.2d 810 (2006).

When Contingent Fee Agreement Is Enforceable. - A contingent-fee arrangement covering services rendered in an equitable distribution action is fully enforceable as long as it does not provide compensation to the attorney for securing the divorce. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Contingent Fee Agreement for Equitable Distribution Must Be Separate from Fee Agreement for Divorce. - If an attorney represents a client in both a divorce proceeding and an equitable distribution proceeding, and the client wishes to have a contingent fee contract in the equitable distribution proceeding, the parties must execute a separate agreement to provide for a fee in the divorce action that is not contingent upon the securing of the divorce. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Contingent fee contract in which the fee was contingent with respect to both divorce and equitable distribution actions was void as against public policy, even though the uncontested divorce involved relatively minimal time compared with the time the attorney spent on the equitable distribution claim; and the attorney could not recover either under the contract itself or in quantum meruit for services rendered pursuant to the contract. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Equitable distribution in this State is accomplished without regard to alimony previously awarded; the amount of alimony previously awarded may be modified or vacated by the court after the marital property is equitably distributed. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Equitable Distribution to Be Decided Before Permanent Alimony. - When both permanent alimony and equitable distribution are requested, the equitable distribution should be decided first. Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985).

Where alimony, child support, and equitable distribution of marital property are requested, the equitable distribution of the property must be decided first. Soares v. Soares, 86 N.C. App. 369, 357 S.E.2d 418 (1987).

Since the trial court heard both the alimony claim and the equitable distribution claims simultaneously, it had to determine the final equitable distribution prior to determining alimony; on remand, the trial court had to first determine the equitable distribution matters prior to considering the alimony issues since the distribution could potentially change the financial circumstances of the parties including the need for or ability to pay alimony. Carpenter v. Carpenter, 245 N.C. App. 1, 781 S.E.2d 828 (2016).

Where equitable distribution order took into consideration fatally defective order for temporary alimony, the court vacated the order for equitable distribution and remanded the cause to the district court. Haywood v. Haywood, 95 N.C. App. 426, 382 S.E.2d 798, cert. denied, 325 N.C. 706, 388 S.E.2d 454 (1989).

Modification of child support must be vacated and remanded where it is part of equitable distribution judgment and thus appears to have been decided and entered at the same time as equitable distribution, rather than after equitable distribution as required by subsection (f) of this section. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Agreement Speaking to Equitable Distribution Did Not Waive Alimony Rights. - Defendant's execution of a separation agreement which stated that it was executed with "the express understanding" and "in full satisfaction of all obligations" did not constitute an express waiver of her alimony rights within the meaning of G.S. 52-10.1 or G.S. 50-16.6 where the preamble to the agreement referred to this section on equitable distribution, thus excluding issues of spousal support. Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312 (1999).

Reconsideration of Alimony or Child Support After Equitable Distribution. - G.S. 50-20(f) obviously contemplates that a child support order may precede an equitable distribution order. No child support order is ever final and delaying the child support order in lengthy case until after the equitable distribution issue was decided would have prolonged an already long-pending case. The trial court's decision to enter child support order prior to a determination of the equitable distribution issue was proper under the statute. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344 (1990).

If alimony and child support have not been previously awarded, equitable distribution must be made first; but if alimony or child support has already been awarded, the awards must be reconsidered upon request after the marital property has been equitably distributed. This order of events is required, no doubt, because of the obvious relationship that exists between the property that one has and his or her need for support and the ability to furnish it. Capps v. Capps, 69 N.C. App. 755, 318 S.E.2d 346 (1984).

Even assuming arguendo that the parties' settlement agreement in a divorce was an equitable distribution, a prior child support award, following an equitable distribution, need only be reconsidered upon the request of a party pursuant to G.S. 50-20(f); the father made no such request, and,consequently, the trial court was not required to recalculate his child support obligation in light of any equitable distribution. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006).

Equitable Distribution Judgment May Not Offset Child Support. - Defendant was not entitled to a "credit" against his future child support payments for the $12,435.50 he paid over and above his court-ordered obligation or for the $500.00 plaintiff owed him as a result of an equitable distribution judgment; child support obligations may not be offset by other obligations. Brinkley v. Brinkley, 135 N.C. App. 608, 522 S.E.2d 90 (1999).

The phrase "children of both parties" The phrase "children of both parties" clearly includes any child, legitimate or illegitimate. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997).

Where child was not the biological child of the plaintiff and was not adopted by her, the plaintiff had no legal obligation to provide for the medical care unless she specifically agreed to do so; therefore, child's medical bills were not marital debts. Crisp v. Crisp, 126 N.C. App. 625, 486 S.E.2d 485 (1997), cert. granted, 347 N.C. 264, 493 S.E.2d 744 (1997), aff'd in part, cert. dismissed in part, 347 N.C. 659, 496 S.E.2d 379 (1998).

Findings of Fact Sufficient. - Trial court's findings of fact were sufficient to meet the requirements of G.S. 50-20; the trial court found defendant was not dependent on plaintiff for maintenance nor in need of such because she had substantial unearned income in the form of life insurance proceeds, and the trial court relied on the same findings the court used to distribute the parties' property as the court did to determine defendant's eligibility for alimony, as both required consideration of similar factors and were ruled upon in the same order. Crago v. Crago, - N.C. App. - , 834 S.E.2d 700 (2019), review denied, 838 S.E.2d 181, 2020 N.C. LEXIS 166.

VII. TRANSFER OF TITLE.

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Authority to Order Conveyance of Title. - Courts have within their powers in equity the authority to compel one person to convey title to property to another person when justice requires it, as is best demonstrated by the courts' use of the equitable remedy of constructive trust. As is indicated by subsection (g), the legislature recognized this power of the courts to order the transfer of real property under appropriate circumstances. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

The court has the authority, within its power in equity, to compel one former spouse to convey title to property to the other former spouse when justice requires. Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987).

Release of Obligations. - Where husband was required by court order to make monthly payments for the mortgages on the parties' house and aluminum siding, fact that he agreed in his complaint for absolute divorce to transfer title to the property to wife and delivered deed to the property to wife, which deed contained an assumption clause purporting to indemnify defendant from any liability for the mortgages, this did not constitute sufficient evidence that wife agreed to assume the mortgages and relieve husband of his obligations. Marrow v. Marrow, 118 N.C. App. 332, 454 S.E.2d 853 (1995).

VIII. FINDINGS OF COURT.

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Written Findings of Facts Required in Any Order for Equitable Distribution. - The plain language of subsection ( j) mandates that written findings of facts be made in any order for the equitable distribution of marital property made pursuant to this section. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Written findings of fact are required in every case in which a distribution of marital property is ordered under the Equitable Distribution Act, even when marital property is equally divided. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Written findings of fact are required in every case in which a distribution of marital property is ordered under the Equitable Distribution Act, not merely when property is divided unequally. Chandler v. Chandler, 108 N.C. App. 66, 422 S.E.2d 587 (1992).

Trial court erred as to classification of real property because there were no findings of fact, as required by G.S. 50-20, necessary for the determination of whether the property was marital or separate such as when it was acquired, how it was acquired, or even how it was titled; on remand, the trial court was required to make findings of fact regarding the property, including whether the wife rebutted the marital gift presumption and the wife's testimony as to her donative intent was not incompetent as a matter of law. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

When Factors in Subsection (c) Must Be Addressed. - If evidence of one or more of the factors listed in subsection (c) is presented, the findings must reflect that the trial judge considered those factors, whether the judge ultimately orders an equal or an unequal distribution. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Trial court's general statement that it "considered the other statutory distributional factors" made no specific reference to the factors under G.S. 50-20(c), regarding distribution of property, making it impossible for an appellate court to determine if it found and relied on any other statutory factors, and its findings on the statutory factors it expressly considered lacked sufficient detail, as the court did not value the marital debts it mentioned, nor did it find whether the husband's cars were liquid or nonliquid assets, despite the requirement of G.S. 50-20(c)(9) that the court consider the liquid or nonliquid character of all marital property and divisible property. Embler v. Embler, 159 N.C. App. 186, 582 S.E.2d 628 (2003).

Judge Must Make Findings as to Each Statutory Factor. - When a party presents evidence which would allow the trial court to determine that an equal distribution of the marital assets would be inequitable, the trial court must then consider all of the distributional factors listed in subsection (c), and must make sufficient findings as to each statutory factor on which evidence was offered; therefore, where the trial court's order explicitly stated that it considered only one factor in determining how the marital assets should be divided, was error. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988), cert. granted, 324 N.C. 336, 378 S.E.2d 794 (1989).

Findings Must Include Ultimate Facts. - The trial court's findings were insufficient where the trial court stated that it considered all statutory factors and specifically listed some of those factors but did not include ultimate facts considered in applying those factors; for example, the trial court did not make any findings regarding the actual income and liabilities of the parties, the amount of plaintiff's contribution of separate funds to the marital home, and what the tax consequences to the parties would be, nor did it determine whether plaintiff's contentions that she "helped the career potential of the defendant" were accurate and, if so, the extent of plaintiff's contribution. Rosario v. Rosario, 139 N.C. App. 258, 533 S.E.2d 274 (2000).

Findings Must Support Award. - In all equitable distribution cases, findings of fact must support the determination that the marital property has been equitably divided. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Specific Statement That Distribution Is Equitable Is Not Required. - Once the trial court orders a distribution, it has held sub silentio that such distribution is fair and equitable. A specific statement that the distribution ordered is equitable is not required. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

But Reasons for Unequal Division Should Be Stated in Order. - If, in a particular case, the court concludes, after its careful and clearly articulated consideration of all of the statutory factors and of any nonstatutory factor raised by the evidence which is reasonably related to the rights to, interest in, and need for the marital property, that an equal division is not equitable, the trial court may properly order an unequal division, but should state in its order the basis and reasons for its division. Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984); Weaver v. Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (1985), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

As Should Findings of Fact Supporting Unequal Division. - The trial court should clearly set forth in its order findings of fact based on the evidence which support its conclusion that an equal division is not equitable. Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984); Weaver v. Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (1985); Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985), overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

In making its determination, the court must consider the factors listed in subsection (c) and set forth findings of fact in its judgment reflecting its consideration of the relevant factors. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, cert. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).

If, in a particular case, the trial court concludes, after its consideration of all the statutory factors and any nonstatutory factors raised by the evidence which are reasonably related to the rights to, interest in, and need for the marital property, that an equal division is not equitable, the court may properly order an unequal division; in this case, it should clearly set forth in its order findings of fact based on the evidence which support its conclusion that an equal division is not equitable. Smith v. Smith, 71 N.C. App. 242, 322 S.E.2d 393 (1984), modified and aff'd, 314 N.C. 80, 331 S.E.2d 682 (1985).

When a party has met its burden of proof and the court has concluded that an equal distribution would not be equitable, the court must make written findings, based upon relevant statutory and nonstatutory factors, which support its conclusion that an equal distribution is not equitable. Patton v. Patton, 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).

Where the trial court made numerous findings concerning the distributional factors upon which the parties presented evidence, there was no abuse of discretion in the trial court's distribution of property; the trial court complied with the mandate in G.S. 50-20(c) to consider factors and make findings in detail, and although the ex-wife presented evidence that may have permitted contrary findings, the trial court's findings were supported by competent evidence and were sufficient to support the conclusion that an unequal distribution in the ex-husband's favor was equitable. Britt v. Britt, 168 N.C. App. 198, 606 S.E.2d 910 (2005).

Trial court failed to make sufficient specific findings of fact it was required to make regarding each factor specified in G.S. 50-20(c) on which the parties offered evidence when it ordered the husband to pay a distributive award, as it did not point to a source of funds from which the husband could pay this obligation even though the husband had no obvious liquid assets. Embler v. Embler, 159 N.C. App. 186, 582 S.E.2d 628 (2003).

Unequal distribution of property in favor of a former wife required remand because the trial court did not make findings of fact and conclusions of law, as required by G.S. 50-20(j) of numerous factors under G.S. 50-20(c), including the wife's conversion of marital assets, the non-liquidity of certain assets, the wife's contribution to the marriage while the husband attended ministerial school, and the parties' mental and physical health. Plummer v. Plummer, 198 N.C. App. 538, 680 S.E.2d 746 (2009).

Equitable distribution award was reversed because the trial court did not explicitly consider the wife's sizeable and complicated inheritance. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Findings as to Increase in Value of Separate Property During Marriage. - A trial court's order which did not disclose the steps by which the trial court arrived at its conclusion that the entire increase in value of separate property was marital property, left the Court of Appeals unable to determine whether the trial court correctly applied the "source of funds" theory to the facts; therefore, the order was reversed and remanded for appropriate findings of fact from the evidence previously submitted. Ciobanu v. Ciobanu, 104 N.C. App. 461, 409 S.E.2d 749 (1991).

Findings as to Closely Held Corporation. - A mere recitation of the factors the trial court considered in its valuation of the corporation is not sufficient; the trial court must also indicate the value it attaches to each of the enumerated factors. Locklear v. Locklear, 92 N.C. App. 299, 374 S.E.2d 406 (1988).

Findings as to Stock. - Because competent evidence was presented in equitable distribution action to support the finding that shares of stock acquired by appellee during marriage and prior to separation were a gift from his father and thus separate property, the finding was not disturbed on appeal. Godley v. Godley, 110 N.C. App. 99, 429 S.E.2d 382 (1993).

Findings as to Evidence of Criminal Activity. - Trial court did not abuse its discretion in admitting evidence of a former husband's criminal activity because the majority of the trial court's findings of fact concentrated on the extent and nature of the damage the husband's actions inflicted on the marital home; the trial court referred to the husband's treatment of his former wife only as necessary to explain the sequence of events. Troutman v. Troutman, 193 N.C. App. 395, 667 S.E.2d 506 (2008).

Findings as to Debt Associated With Certain Property. - Unequal distribution of property in favor of a former wife required remand because the trial court did not make a finding, as required by G.S. 50-20(j), of to whom the debt associated with a certain parcel of real property was distributed. Plummer v. Plummer, 198 N.C. App. 538, 680 S.E.2d 746 (2009).

Findings as to Distribution of Real Property. - Although a trial court's equitable distribution order, G.S. 50-20 and G.S. 50-21, failed to state the percentage to be distributed to each spouse upon the sale of the parties' real property, the husband failed to explain how he was prejudiced by the omission of the percentage amount because the figure could be readily calculated using information contained in the findings and conclusions from the trial court's order, which provided for an equal division of the proceeds; the trial court's fair market value of the properties was negative $10,000 and $13,884. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

Impracticality of In Kind Distribution. - Adequate findings did not support a judgment equitably distributing three retirement plans, where the judgment contained no finding of fact, supported by evidence in the record, that an in kind distribution would be impractical, nor did it support a finding that the parties had stipulated to distribution in the manner directed by the court. Heath v. Heath, 132 N.C. App. 36, 509 S.E.2d 804 (1999).

Where the parties stipulated to an equal division of the marital property, which was equivalent to a stipulation that an equal division of the marital property was equitable, the trial court properly refused to make separate findings of fact regarding the post-separation appreciation of the marital home, its post-separation occupancy by the plaintiff, and the tax savings allegedly realized by the plaintiff because of the post-separation occupancy of the house. Christensen v. Christensen, 101 N.C. App. 47, 398 S.E.2d 634 (1990).

Trial Court Made Inadequate Findings Concerning How to Divide Marital Estate and Tax Consequences of the Division. - When a trial court found that a marital estate should be divided without a qualified domestic relations order (QDRO), it inadequately made no findings as to how this should be accomplished or the tax consequences to the husband if he was required to dip into his retirement, despite the requirement of G.S. 50-20(c)(11) that the tax consequences to each party be considered. Embler v. Embler, 159 N.C. App. 186, 582 S.E.2d 628 (2003).

Liquidity or Nonliquidity of Assets Never Put In Dispute. - Former husband's claim that a trial court failed to make findings of fact pursuant to G.S. 50-20(j) as to the liquidity of certain assets was overruled because the husband made no showing that the liquid or nonliquid nature of the assets at issue was ever brought up at trial; the husband pointed only to the wife's testimony that she had made withdrawals from an IRA out of necessity, and then he made the broad statement that the nature of assets held in savings accounts, checking accounts,]and actual checks were liquid in nature. Troutman v. Troutman, 193 N.C. App. 395, 667 S.E.2d 506 (2008).

Failure to Enter Finding That Defendant Did Not Rebut Presumption Was Harmless Error. - Where there was no evidence in the record to support a finding that certain real property was to remain the separate property of the husband, the failure of the trial court to enter a finding that defendant did not rebut the marital presumption by clear, cogent and convincing evidence was harmless. Furthermore, there was no "intention" in the deed to the parties as tenants by the entirety that the property was to remain defendant's separate property. Therefore, the trial judge correctly included the property among the marital assets. Taylor v. Taylor, 92 N.C. App. 413, 374 S.E.2d 644 (1988).

Findings Sufficient to Support Equitable Distribution Award. - Trial court's equitable distribution award was proper under circumstances in which the trial court classified the husband's post-separation payment, from his separate funds, of a mortgage on marital property as divisible property, and found that, based on the wife's unrepaid loan of $178,710 to the marital business from her separate funds, she was entitled to an award of $178,700 more than that of the husband; the trial court correctly granted the husband credit for his payment by subtracting $75,644 from the marital estate and subtracting $75,644 from his award to give him sole credit for satisfying the marital debt. The trial court made sufficient findings to consider the wife's loan as a distributional factor and reflecting its distribution decision. McNeely v. McNeely, 195 N.C. App. 705, 673 S.E.2d 778 (2009).

Findings Insufficient to Support Equitable Distribution Award. - Trial court's equitable distribution order, G.S. 50-20(a), warranted reversal because the court failed to make adequate findings regarding: (1) the classification, value, and distribution of the husband's 401(k) account, including the passive appreciation of that account between the date of separation and the date of distribution; (2) the classification, value, and distribution of the expenditures the husband made from the funds contained in his 401(k) account, including the extent to which and purposes for which he spent the passive appreciation of the 401(k) account between the date of separation and the date of distribution; (3) the classification, value, and distribution of the husband's post-separation payments on marital debt, including the extent to which these payments were made with marital or separate funds; and (4) the classification, value, and distribution of specific items of debt. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

Although a trial court made sufficient findings of fact regarding the duration of the parties' marriage, the trial court failed to make findings of fact and appropriate conclusions of law regarding the other contentions for unequal distribution raised by both parties, as set forth in the pretrial order; there was nothing in the order indicating the trial court considered evidence of the parties' health and incomes. Hinkle v. Hinkle, 227 N.C. App. 252, 742 S.E.2d 325 (2013).

Trial court's finding was insufficient because the court declined to make a finding as to the income, property, and liabilities of each party, finding there was no evidence to support this factor, when there was such evidence. Berens v. Berens, 260 N.C. App. 467, 818 S.E.2d 155 (2018).

IX. RIGHTS CREATED BY SUBSECTION (K).

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Legislature's intent in subsection (k) was to create a right to equitable distribution of the marital property, which had not existed up to that time, and to make that right vest at the time of filing for divorce (now at the time of separation). Subsection (k) did not create any vested rights in particular marital property; it created a right to the equitable distribution of that property, whatever a court should determine that property is. Wilson v. Wilson, 73 N.C. App. 96, 325 S.E.2d 668, cert. denied, 314 N.C. 121, 332 S.E.2d 490 (1985).

Subsection (k) did not create substantive rights in any party to particular marital property which that party argues comes within the meaning of that acquired during the course of the marriage. Wilson v. Wilson, 73 N.C. App. 96, 325 S.E.2d 668, cert. denied, 314 N.C. 121, 332 S.E.2d 490 (1985).

The right to equitable distribution is an inchoate right exercisable only in a divorce action; thus, absent a consent judgment, the right to equitable property distribution could not be effectuated during the one-year separation period that necessarily precedes a filing for absolute divorce; however, this does not mean that a claim for equitable distribution cannot be made during that period. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

The vested right of equitable distribution does not create a property right in marital property, nor does the fact of separation create a lien on specific marital property in favor of the spouse. Rather, it only creates a right to an equitable distribution of that property, whatever a court should determine that property is. Perlow v. Perlow, 128 Bankr. 412 (E.D.N.C. 1991).

Vesting of Award Under Subsection (k). - Superior court properly dismissed a former wife's claims for breach of contract, quantum meruit, constructive fraud, and constructive trust for lack of jurisdiction because she could not recover her unpaid distributive award from the proceeds of the decedent's estate inasmuch as she already owned her distributive award and had to attempt to enforce her rights through the underlying equitable distribution action in the district court, which had jurisdiction. Watson v. Joyner-Watson, 263 N.C. App. 393, 823 S.E.2d 122 (2018).

Subjection of Each Spouse's Interest to Claims of Creditors. - Upon divorce, each former spouse's undivided one-half interest becomes subject to the claims of his or her individual creditors. Union Grove Mill and Mfg. Co. v. Faw, 103 N.C. App. 166, 404 S.E.2d 508 (1991).

Attachment of Lien Against Spouse upon Conversion to Tenancy in Common. - When property is held by married persons as tenants by the entireties, a lien of judgment effective against only one spouse does not attach to the property until the property is converted into another form of estate. One such type of conversion occurs upon divorce, where property held as a tenancy by the entirety is converted into property held as a tenancy in common, and each former spouse thereafter holds an undivided one-half interest in the subject property. Union Grove Mill and Mfg. Co. v. Faw, 103 N.C. App. 166, 404 S.E.2d 508 (1991).

Insurance Policies. - At the time of separation there were no vested rights under insurance policy on the life of party's son. The rights only vested at his death, and until then plaintiff, as owner of the policy, could have cancelled the policy or changed the beneficiary. At the time of separation, the cash value of the insurance policies was marital property, since the premiums to that point had been paid for with marital assets. The premiums after separation were paid for with plaintiff's assets and therefore the proceeds from the insurance policy were separate property of plaintiff. Foster v. Foster, 90 N.C. App. 265, 368 S.E.2d 26 (1988), cert. denied, 324 N.C. 245, 376 S.E.2d 739 (1989).

X. DISCRETION OF TRIAL COURT AND APPELLATE REVIEW.

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Trial Court Has Broad Discretion. - The legislature clearly intended to vest trial courts with discretion in distributing marital property under this section, but guided always by the public policy expressed therein favoring an equal division. The legislative intent to vest our trial courts with such broad discretion is emphasized by the inclusion of the catchall factor codified in subdivision (c)(12). White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

The trial court has broad discretion in the division of marital property. Hartman v. Hartman, 82 N.C. App. 167, 346 S.E.2d 196 (1986), aff'd, 319 N.C. 396, 354 S.E.2d 239 (1987).

But Court's Discretion Is Not Unlimited. - The courts do not have unlimited discretion in the division of marital property. They are limited by the presumption of equal division and by the requirement of subsection (j) of this section that they justify their distribution of property with written findings of fact. Furthermore, the exercise of discretion implies conscientious judgment arrived at in accordance with established rules, and not arbitrary action. White v. White, 64 N.C. App. 432, 308 S.E.2d 68 (1983), modified and aff'd, 312 N.C. 770, 324 S.E.2d 829 (1985).

The trial judge's discretion is to be upheld unless it fails to comply with the requirements of the statute. Wieneck-Adams v. Adams, 104 N.C. App. 621, 410 S.E.2d 525 (1991), aff'd, 331 N.C. 688, 417 S.E.2d 449 (1992).

Standard of Review. - Where defendant's argument on appeal was that he had brought forth enough evidence at the equitable distribution hearing to have allowed the trial judge to identify certain personal and real property as being marital property in part and defendant's separate property in part, the standard of review on appeal would be limited to the question of whether any competent evidence in the record sustains the court's findings. Taylor v. Taylor, 92 N.C. App. 413, 374 S.E.2d 644 (1988).

Trial court orders for equitable distribution are accorded substantial deference by appellate courts and appellate review is limited to a determination of whether there was a clear abuse of discretion. Hartsell v. Hartsell, 189 N.C. App. 65, 657 S.E.2d 724 (2008).

Judgment Not Disturbed on Appeal Absent Abuse of Discretion. - The division of marital property is a matter within the sound discretion of the trial court, and its judgment should not be disturbed on review unless it is shown that the division made was an abuse of discretion. White v. White, 64 N.C. App. 432, 308 S.E.2d 68 (1983), modified and aff'd, 312 N.C. 770, 324 S.E.2d 829 (1985); Johnson v. Johnson, 78 N.C. App. 787, 338 S.E.2d 567 (1986).

When evidence concerning one or more of the factors in subsection (c) of this section tending to show that an equal division of the marital property would not be equitable is admitted, the court must balance that evidence with the other evidence presented, keeping in mind the legislative policy strongly favoring an equal division, and must determine what constitutes an equitable division in that particular case. The balance struck by the court in weighing such evidence will not be disturbed absent a clear showing of abuse of discretion. Bradley v. Bradley, 78 N.C. App. 150, 336 S.E.2d 658 (1985).

Appellate review of equitable distribution awards is limited to a determination of whether there has been a clear abuse of discretion. Patton v. Patton, 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).

The trial court's rulings in equitable distribution cases receive great deference and may be upset only if they are so arbitrary that they could not have been the result of a reasoned decision. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Findings of fact by the trial court are upheld on appeal as long as they are supported by competent evidence. Gum v. Gum, 107 N.C. App. 734, 421 S.E.2d 788 (1992).

Trial court did not abuse its discretion by awarding plaintiff 50 percent of the marital portion of defendant's pension. Judkins v. Judkins, 113 N.C. App. 734, 441 S.E.2d 139, cert. denied, 336 N.C. 781, 447 S.E.2d 424 (1994).

Unequal Distribution. - Although there is a presumption that an equal division of marital property is equitable, so long as the trial court considers all the distributional factors in subsection (c) and makes sufficient findings as to each statutory factor on which evidence is offered, the finding of a single distributional factor by the trial court may support an unequal division. Judkins v. Judkins, 113 N.C. App. 734, 441 S.E.2d 139, cert. denied, 336 N.C. 781, 447 S.E.2d 424 (1994).

Or Miscarriage of Justice. - A proper order concluding that an equal division is not equitable should not be disturbed on appeal unless the appellate court, upon consideration of the cold record, can determine that the division ordered by the trial court has resulted in an obvious miscarriage of justice. Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984).

Nor Will Trial Court's Findings Be Disturbed Absent Abuse. - The trial court's findings in support of an equitable but unequal division will not be disturbed on appeal unless there was a clear abuse of discretion. Weaver v. Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (1985).

Where the trial court made numerous findings concerning the distributional factors upon which the parties presented evidence, there was no abuse of discretion in the trial court's distribution of property; the trial court complied with the mandate in G.S. 50-20(c) to consider factors and make findings in detail, and although the ex-wife presented evidence that may have permitted contrary findings, the trial court's findings were supported by competent evidence and were sufficient to support the conclusion that an unequal distribution in the ex-husband's favor was equitable. Britt v. Britt, 168 N.C. App. 198, 606 S.E.2d 910 (2005).

Only when evidence fails to show any rational basis for the distribution ordered by the court will its determination be upset on appeal. Nix v. Nix, 80 N.C. App. 110, 341 S.E.2d 116 (1986).

Equitable distribution order should not be disturbed unless the appellate court, upon consideration of the cold record, can determine that the division ordered has resulted in an obvious miscarriage of justice. Morris v. Morris, 90 N.C. App. 94, 367 S.E.2d 408, overruled in part on other grounds, Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

In complex litigation involving equitable distribution, appellate court will not remand judgment for obviously insignificant errors. Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385, cert. denied, 323 N.C. 174, 373 S.E.2d 111 (1988).

Formal errors in an equitable distribution judgment do not require reversal, particularly where the record reflects a conscientious effort by the trial judge to deal with complicated and extensive evidence. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Invited Error. - Even if a trial court erred under G.S. 50-20(f) by hearing alimony and equitable distribution claims together, a wife invited the error and was not prejudiced by it; the wife did not request separate hearings and never objected to having both claims heard at the same time. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011).

Abuse of discretion occurs when the trial court has failed to consider proper factors or has made a mistake or error with respect to the facts upon which the division was made, or when the division itself was, under the circumstances, either excessive or inadequate. White v. White, 64 N.C. App. 432, 308 S.E.2d 68 (1983), modified and aff'd, 312 N.C. 770, 324 S.E.2d 829 (1985).

Awards Payable in Lump Sum or Over Time. - It is within the trial court's sound discretion to determine whether the distributive award is to be made payable as a lump sum or over a fixed period of time. Atkins v. Atkins, 102 N.C. App. 199, 401 S.E.2d 784 (1991).

Payment of Interest. - The decision of whether to order the payment of interest on a distributive award is one that lies within the discretion of the trial judge. Mrozek v. Mrozek, 129 N.C. App. 43, 496 S.E.2d 836 (1998).

As to the proper standard of review of equitable distribution awards where evidence was admitted tending to show that an equal distribution would not be equitable, see White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

Inadequate Findings by Trial Court Precluded Appellate Review. - Where, among other things, the classification of certain property as marital was erroneous, tainting the findings and conclusions regarding valuation and distribution, and the method of valuing the marital portion of the home was inadequate to support the award to the wife, the findings and conclusions of the trial court were insufficient to allow appellate review. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

Trial court's conclusion that equal division of marital property would not be equitable was not supported by its findings of fact, where the court failed to make specific findings with regard to a number of factors listed under subsection (c) of this section, and the case would be remanded for further proceedings. Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984).

A ruling resulting in an unequal division of marital property will be upset only if it is manifestly unsupported by reason. Upchurch v. Upchurch, 128 N.C. App. 461, 495 S.E.2d 738 (1998), cert. denied, 348 N.C. 291, 501 S.E.2d 925 (1998).

Trial court did not have authority to reaffirm divorce decree and reserve for future resolution the issue of equitable distribution; since the trial court did not set aside the divorce, but rather, attempted to nullify the consequences of defendant's failure to assert her claim for equitable distribution prior to the entry of judgment of divorce, the order failed. Even if the court had effectively set aside, briefly, the divorce decree itself and then immediately reinstated the divorce decree with a reservation of an equitable distribution claim, the reservation of the equitable distribution claim would have been a legal nullity because plaintiff voluntarily dismissed his equitable distribution claim and defendant did not, during the time the divorce was arguably set aside, file an answer, counterclaim, or separate action requesting equitable distribution. Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469 (1991).

Authority of Court. - Where neither party made application or stated a claim for equitable distribution prior to the judgment of absolute divorce, the trial court lacked the authority to enter such a judgment. Stirewalt v. Stirewalt, 114 N.C. App. 107, 440 S.E.2d 854 (1994).

Trial court did not err in order purging defendant of contempt for failure to comply with equitable distribution judgment, by awarding the plaintiff the present value of the stock which had been assigned to her when the initial judgment had been entered. It was proper for the trial court to require the defendant to compensate the plaintiff for the stock splits and the dividends which she would have received had defendant not been recalcitrant in carrying out the trial court's orders. Conrad v. Conrad, 82 N.C. App. 758, 348 S.E.2d 349 (1986).

Interim order regarding the nature of insurance proceeds did not affect a substantial right as plaintiff's rights would be adequately protected by an appeal timely taken from the final equitable distribution judgment Hunter v. Hunter, 126 N.C. App. 705, 486 S.E.2d 244 (1997).

Immediate Appeal Contrary to Public Policy. - Permitting an immediate appeal from an interim equitable distribution order would be contrary to the policy of this State discouraging fragmentary appeals. Hunter v. Hunter, 126 N.C. App. 705, 486 S.E.2d 244 (1997).

XI. ATTORNEYS' FEES.

.

Court Had Jurisdiction. - Trial court was not without jurisdiction at the time it entered its subsection (i) order and it therefore had jurisdiction to award attorney's fees under that section. McKissick v. McKissick, 129 N.C. App. 252, 497 S.E.2d 711 (1998).

When Contingent Fee Agreement Is Enforceable. - A contingent fee arrangement covering services rendered in an equitable distribution action is fully enforceable as long as it does not provide compensation to the attorney for securing the divorce. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Contingent Fee Agreement for Equitable Distribution Must Be Separate from Fee Agreement for Divorce. - If an attorney represents a client in both a divorce proceeding and an equitable distribution proceeding, and the client wishes to have a contingent fee contract in the equitable distribution proceeding, the parties must execute a separate agreement to provide for a fee in the divorce action that is not contingent upon the securing of the divorce. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

Contingent fee contract in which the fee was contingent with respect to both divorce and equitable distribution actions was void as against public policy, even though the uncontested divorce involved relatively minimal time compared with the time the attorney spent on the equitable distribution claim; and the attorney could not recover either under the contract itself or in quantum meruit for services rendered pursuant to the contract. In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986).

No Abuse of Discretion In Failing to Further Reduce Former Husband's Pension Value - Former husband failed to demonstrate that the trial court abused its discretion in not further reducing his pension value to account for contingencies of the type discussed in Step five of Bishop because the husband pointed to no evidence in the record suggesting the possibility of any contingencies that could affect the value of his pension; since the husband was fully vested in his pension, the possibility of termination was immaterial, and the husband made no showing or argument that a risk of insolvency existed for the Teachers' and State Employees' Retirement System pension plan. Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

Fees Not Appropriate. - Trial court order regarding attorney fees was vacated where the wife abandoned her claim for alimony, the fees were clearly based upon the equitable distribution claim only, and neither the record nor the trial court's findings revealed that the requirements of G.S. 50-20(i) or G.S. 50-21(e) were met. Eason v. Taylor, 245 N.C. App. 16, 784 S.E.2d 200 (2016).


§ 50-20.1. Pension, retirement, and deferred compensation benefits.

  1. The distribution of vested marital pension, retirement, or deferred compensation benefits may be made payable by any of the following means:
    1. As a lump sum from the plan, program, system, or fund for those benefits subject to subsection (d1) of this section.
    2. Over a period of time in fixed amounts from the plan, program, system, or fund for those benefits subject to subsection (d1) of this section.
    3. As a prorated portion of the benefits made to the designated recipient, if permitted by the plan, program, system, or fund (i) at the time the participant-spouse is eligible to receive the benefits, (ii) at the time the participant-spouse actually begins to receive the benefits, or (iii) at the participant-spouse's earliest retirement age. For purposes of this section, "participant-spouse" means the spouse who is a participant in the plan, program, system, or fund.
    4. By awarding a larger portion of other assets to the party not receiving the benefits and a smaller share of other assets to the party entitled to receive the benefits.
    5. As a lump sum, or over a period of time in fixed amounts, by agreement.
  2. The distribution of nonvested marital pension, retirement, or deferred compensation benefits may be made payable by any of the following means:
    1. As a lump sum by agreement.
    2. Over a period of time in fixed amounts by agreement.
    3. As a prorated portion of the benefits made to the designated recipient, if permitted by the plan, program, system, or fund (i) at the time the participant-spouse is eligible to receive the benefits, (ii) at the time the participant-spouse actually begins to receive the benefits, or (iii) at the participant-spouse's earliest retirement age.
  3. Notwithstanding the provisions of subsections (a) and (b) of this section, the court shall not require the administrator of the plan, program, system, or fund involved to make any payments or distributions to the nonparticipant spouse, except as permitted by the terms of the plan, program, system, or fund.
  4. When the amount of the benefit payable by the plan, program, system, or fund to the participant-spouse is determined in whole or part by the length of time of the participant-spouse's employment, the marital portion shall be determined using the proportion of time the marriage existed (up to the date of separation of the parties) simultaneously with the total time of the employment which earned the benefit subject to equitable distribution, to the total amount of time of employment that earned the benefit subject to equitable distribution. The determination shall be based on the vested and nonvested accrued benefit, as provided by the plan, program, system, or fund, calculated as of the date of separation, and shall not include contributions, years of service, or compensation which may accrue after the date of separation. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation and cost-of-living adjustments and similar enhancements to the participant's benefit. Notwithstanding any other provision of this Chapter, if the court makes the award payable pursuant to subdivision (a)(3) or (b)(3) of this section and the court divides the marital portion of the benefit equally between the participant-spouse and nonparticipant spouse, the court shall not be required to determine the total value of the marital benefits before classifying and distributing the benefits. However, neither party shall be prohibited from presenting evidence of the total value of any marital benefits or of any benefits that are separate property of either spouse. When a pension, retirement, or deferred compensation plan, program, system, or fund, or an applicable statute limits or restricts the amount of the benefit subject to equitable distribution by a State court, the award shall be determined using the proportion of time the marriage existed (up to the date of separation of the parties) simultaneously with the total time of the employment which earned the benefit subject to equitable distribution to the total time of employment, as limited or restricted by the plan, program, system, fund, or statute that earned the benefit subject to equitable distribution.
  5. When the amount of the benefit payable by the plan, program, system, or fund is not determined in whole or part by the length of time of the participant-spouse's employment, but is instead based on contributions and held in one or more accounts with readily determinable balances, including, but not limited to, individual retirement accounts and defined contribution plans, such as those within the definitions of Internal Revenue Code section 401(k), 403(b), 408, 408A, or 457, the court shall not determine the award using the fraction described in subsection (d) of this section. The court instead shall determine the marital portion of the benefit by determining the amount of the account balance that is due to contributions made or earned during the marriage and before separation, together with the income, gains, losses, appreciation, and depreciation accrued on those contributions. If sufficient evidence is not presented to the court to allow the court to make this determination, the court shall then determine the marital portion of the benefit by using the fraction described in subsection (d) of this section, namely, by using the proportion of time the marriage existed (up to the date of separation of the parties) simultaneously with the employment which earned the benefit subject to equitable distribution to the total amount of time of employment. In either event, the award shall be based on the vested and nonvested accrued benefit as of the date of separation, together with the income, gains, losses, appreciation, and depreciation accrued after the date of separation on the date-of-separation benefits. However, the award shall not include contributions that may accrue or be made after the date of separation, or any income, gains, losses, appreciation, and depreciation accrued on those contributions.
  6. No award shall exceed fifty percent (50%) of the benefits the person against whom the award is made is entitled to receive as vested and nonvested pension, retirement, or deferred compensation benefits, except that an award may exceed fifty percent (50%) if (i) other assets subject to equitable distribution are insufficient; or (ii) there is difficulty in distributing any asset or any interest in a business, corporation, or profession; or (iii) it is economically desirable for one party to retain an asset or interest that is intact and free from any claim or interference by the other party; or (iv) more than one pension or retirement system or deferred compensation plan, program, system, or fund is involved, but the benefits award may not exceed fifty percent (50%) of the total benefits of all the plans added together; or (v) both parties consent. In no event shall an award exceed fifty percent (50%) if a plan, program, system, or fund prohibits an award in excess of fifty percent (50%).
  7. In the event the person receiving the award dies, the unpaid balance, if any, of the award shall pass to the beneficiaries of the recipient by will, if any, or by intestate succession, or by beneficiary designation with the plan, program, system, or fund consistent with the terms of the plan, program, system, or fund unless the plan, program, system, or fund prohibits such designation. In the event the person against whom the award is made dies, the award to the recipient shall remain payable to the extent permitted by the pension or retirement system or deferred compensation plan, program, system, or fund involved.
  8. Whenever the award is made payable pursuant to subdivision (a)(3) or (b)(3) of this section, and the pension or retirement or deferred compensation plan, program, system, or fund permits the use of a "separate interest" approach in the order, there shall be a presumption, rebuttable by the greater weight of the evidence, that the "separate interest" approach shall be used to divide the benefit in question. For purposes of this section, the phrase "separate interest" approach means any method of dividing pension or retirement system or deferred compensation benefits in which the nonparticipant spouse, the spouse not a participant in the plan, program, system, or fund in question, receives an interest that allows the nonparticipant spouse to receive benefits in a manner independent, in whole or part, of the benefits received by the participant-spouse, or to make elections concerning the receipt of benefits independently of the elections made by the participant-spouse.
  9. Whenever the pension or retirement or deferred compensation benefit is distributed pursuant to subdivision (a)(3) or (b)(3) of this section in an order that does not employ the "separate interest" approach, the court may, considering the length of the marriage and the ages of the parties, (i) award all or a portion of a survivor annuity to the nonparticipant spouse or former spouse and (ii) allocate the cost of providing the survivor annuity between the parties. The survivor annuity awarded by the court, if any, shall be allocated in accordance with the terms of the retirement plan, program, system, or fund.
  10. Whenever the pension or retirement or deferred compensation plan, program, system, or fund does not automatically provide pre-retirement survivor annuity protection for the nonparticipant spouse, the court shall order pre-retirement survivor annuity protection for the nonparticipant spouse if permitted by the plan, program, system, or fund.
  11. The court may allocate equally between the parties any fees assessed by a plan, program, system, or fund in order to process any domestic relations order or qualified domestic relations order.
  12. The court may require distribution of the award by means of a qualified domestic relations order, or as defined in section 414(p) of the Internal Revenue Code of 1986, or by domestic relations order or other appropriate order. To facilitate the calculating and payment of distributive awards, the administrator of the plan, program, system, or fund may be ordered to certify the total contributions, years of service, and pension, retirement, or other deferred compensation benefits payable.
  13. This section and G.S. 50-21 shall apply to all vested and nonvested pension, retirement, and deferred compensation plans, programs, systems, or funds, including, but not limited to, uniformed services retirement programs, federal government plans, State government plans, local government plans, Railroad Retirement Act pensions, executive benefit plans, church plans, charitable organization plans, individual retirement accounts within the definitions of Internal Revenue Code sections 408 and 408A, and accounts within the definitions of Internal Revenue Code section 401(k), 403(b), or 457.
  14. If a plan, program, system, or fund deems unacceptable an order providing for a distribution of pension, retirement, or deferred compensation benefits, then the court may upon motion of a party enter a subsequent order clarifying or correcting its prior order, as may be necessary to comply with the specific technical requirements of the plan, program, system, or fund.
  15. Notwithstanding any other provision of this Chapter, a claim may be filed, either as a separate civil action or as a motion in the cause in an action brought pursuant to this Chapter, for an order effectuating the distribution of pension, retirement, or deferred compensation benefits provided for in a valid written agreement, as defined in G.S. 50-20(d), whether or not a claim for equitable distribution has been filed or adjudicated. The court may enter an order effectuating the distribution provided for in the valid written agreement.

History

(1997-212, s. 1; 2019-172, s. 1.)

Effect of Amendments. - Session Laws 2019-172, s. 1, rewrote the section. For effective date and applicability, see editor's note.

CASE NOTES

Railroad Retirement Benefits Under a Separation Agreement. - Trial court properly granted summary judgment in favor of ex-wife in her suit to enforce a separation agreement, and did not err in entering an order awarding the ex-wife 29.5 percent of the ex-husband's divisible railroad retirement benefits. Gilmore v. Garner, 157 N.C. App. 664, 580 S.E.2d 15 (2003).

Entitlement to Unvested Stock at the Time of Separation. - Where the wife, pursuant to entering an employment agreement prior to the parties' separation, received 10,000 shares of the employer's stock after the parties' separation, which were later exchanged with the stock of the corporation that purchased the employer and was sold for net proceeds of $82,637, the trial court did not err in valuing the property pursuant to G.S. 50-21(b), which occurred after 20 years of marriage; it was reasonable for the trial court to infer that the wife's employment with the employer resulted from experience that the wife gained while working, for 20 years, for the company from which the employer spun off and that, pursuant to G.S. 50-20.1(d), all of the shares were subject to distribution in the divorce. Ubertaccio v. Ubertaccio, 161 N.C. App. 352, 588 S.E.2d 905 (2003), aff'd, 359 N.C. 175, 604 S.E.2d 912 (2004).

Defined Contribution Pension Plans. - Trial court properly applied a coverture fraction to the husband's defined contribution pension plan as required by G.S. 50-20.1; husband's argument that the statute only applied to defined benefit plans was rejected. Robertson v. Robertson, 167 N.C. App. 567, 605 S.E.2d 667 (2004).

Valuation of Military Pension Plan. - Court properly attempted, pursuant to G.S. 50-20.1(b)(3), to award a wife a prorated portion of her husband's military pension, one-half of the marital portion of each of defendant's pension payments, to be paid by defendant at the time he began receiving benefits; however, the trial court failed to determine that defendant's military pension was a defined benefit retirement plan and failed to value it. Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005).

Military Retirement Benefits Under Separation Agreement. - Because the parties' separation agreement offered no specific language referring to an alternate means of distribution of the ex-husband's military retirement pay, the trial court correctly applied the provisions related to distribution of retirement benefits found in G.S. 50-20.1(d). Brenenstuhl v. Brenenstuhl, 169 N.C. App. 433, 610 S.E.2d 301 (2005).

Immediate Distribution Proper. - Trial court did not err in making an immediate distribution of a former husband's pension benefits because the husband was fully vested and eligible for early retirement; the trial court awarded the husband all of his pension benefits and then awarded the former wife a larger portion of the remaining assets, precisely as permitted by G.S. 50-20.1(a). Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

Valuation of Defined Benefit Plan - Trial court did not clearly comply with the third and fourth steps of Bishop in reducing a former husband's pension benefits to present value because its finding of fact as to the actuarial present value of the defined benefit plan did not specifically state whether the present value was being determined as of the earliest retirement date or date of separation; because the cost of living adjustment was not a contribution to the plan or compensation being paid after the date of separation but was instead a gain on the benefit vested at the time of separation, the trial court was required to take it into account under G.S. 50-20.1(d). Cochran v. Cochran, 198 N.C. App. 224, 679 S.E.2d 469 (2009), review denied, 363 N.C. 801, 690 S.E.2d 533, 2010 LEXIS 57 (2010).

Award Calculation. - Although a husband argued the fraction an arbitrator used to determine the marital portion of the husband's retirement plan account was not in accordance with the directive of G.S. 50-20.1(d), the arbitrator's determination was not an evident mistake under the Family Law Arbitration Act, G.S. 50-55(a)(1), because even though the husband worked for the employer from 1977 through 2000, the husband only participated in the plan from 1989 through 2000; the husband determined the award was to be premised upon the time the marriage existed, simultaneous with the employment that earned the benefit, for a total of 34 months, as compared to the time the husband participated in the retirement plan, 123 months. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Trial court erred in classifying and valuing a husband's IRA because the husband's pension rollover IRA was funded entirely from the husband's defined pension, requiring application of the coverture fraction to derive the marital and separate components of the account, rather than the methodology presented by the wife's expert upon which the trial court relied. Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013), review denied 367 N.C. 290, 753 S.E.2d 670, 2014 N.C. LEXIS 68 (2014).

Trial court properly distributed a wife's state pension where it employed the coverture fraction mandated by G.S. 50-20.1(d) and awarded the husband a larger share of other marital assets to achieve equity. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

In a divorce case, the formula used by a trial court to calculate the fixed percentage of the husband's military retirement benefits to be awarded to the wife was exactly the formula set forth in Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987), and this statute, and the appellate court declined a request to consider a new formula. Gurganus v. Gurganus, 252 N.C. App. 1, 796 S.E.2d 811 (2017).

Husband's income as an attorney from a contingent fee case was wrongly classified because (1) the income was classified as both deferred compensation and divisible income, (2) the income was not deferred compensation, as, at separation, the husband and the husband's law firm were not certain to receive anything from the case, and (3) the income was not divisible property, as the husband had no pre-separation right to income, and the husband was not a party to the contingent fee contract. Green v. Green, 255 N.C. App. 719, 806 S.E.2d 45 (2017), review denied, 371 N.C. 485, 818 S.E.2d 273 (2018).

Former husband failed to show that a trial court erred by adopting the coverture fraction approach employed by the wife's forensic accounting expert in the date of separation valuation of financial accounts. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Applied in Comstock v. Comstock, 240 N.C. App. 304, 771 S.E.2d 602 (2015).

Cited in Patterson v. Patterson, 137 N.C. App. 653, 529 S.E.2d 484 (2000).


§ 50-21. Procedures in actions for equitable distribution of property; sanctions for purposeful and prejudicial delay.

  1. At any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed and adjudicated, either as a separate civil action, or together with any other action brought pursuant to Chapter 50 of the General Statutes, or as a motion in the cause as provided by G.S. 50-11(e) or (f). Within 90 days after service of a claim for equitable distribution, the party who first asserts the claim shall prepare and serve upon the opposing party an equitable distribution inventory affidavit listing all property claimed by the party to be marital property and all property claimed by the party to be separate property, and the estimated date-of-separation fair market value of each item of marital and separate property. Within 30 days after service of the inventory affidavit, the party upon whom service is made shall prepare and serve an inventory affidavit upon the other party. The inventory affidavits prepared and served pursuant to this subsection shall be subject to amendment and shall not be binding at trial as to completeness or value. The court may extend the time limits in this subsection for good cause shown. The affidavits are subject to the requirements of G.S. 1A-1, Rule 11, and are deemed to be in the nature of answers to interrogatories propounded to the parties. Any party failing to supply the information required by this subsection in the affidavit is subject to G.S. 1A-1, Rules 26, 33, and 37. During the pendency of the action for equitable distribution, discovery may proceed, and the court shall enter temporary orders as appropriate and necessary for the purpose of preventing the disappearance, waste, or destruction of marital or separate property or to secure the possession thereof.
  2. For purposes of equitable distribution, marital property shall be valued as of the date of the separation of the parties, and evidence of preseparation and postseparation occurrences or values is competent as corroborative evidence of the value of marital property as of the date of the separation of the parties. Divisible property and divisible debt shall be valued as of the date of distribution.
  3. Nothing in G.S. 50-20 or this section shall restrict or extend the right to trial by jury as provided by the Constitution of North Carolina.
  4. Within 120 days after the filing of the initial pleading or motion in the cause for equitable distribution, the party first serving the pleading or application shall apply to the court to conduct a scheduling and discovery conference. If that party fails to make application, then the other party may do so. At the conference the court shall determine a schedule of discovery as well as consider and rule upon any motions for appointment of expert witnesses, or other applications, including applications to determine the date of separation, and shall set a date for the disclosure of expert witnesses and a date on or before which an initial pretrial conference shall be held.
  5. Upon motion of either party or upon the court's own initiative, the court shall impose an appropriate sanction on a party when the court finds that:
    1. The party has willfully obstructed or unreasonably delayed, or has attempted to obstruct or unreasonably delay, discovery proceedings, including failure to make discovery pursuant to G.S. 1A-1, Rule 37, or has willfully obstructed or unreasonably delayed or attempted to obstruct or unreasonably delay any pending equitable distribution proceeding, and
    2. The willful obstruction or unreasonable delay of the proceedings is or would be prejudicial to the interests of the opposing party.

Real or personal property located outside of North Carolina is subject to equitable distribution in accordance with the provisions of G.S. 50-20, and the court may include in its order appropriate provisions to ensure compliance with the order of equitable distribution.

At the initial pretrial conference the court shall make inquiry as to the status of the case and shall enter a date for the completion of discovery, the completion of a mediated settlement conference, if applicable, and the filing and service of motions, and shall determine a date on or after which a final pretrial conference shall be held and a date on or after which the case shall proceed to trial.

The final pretrial conference shall be conducted pursuant to the Rules of Civil Procedure and the General Rules of Practice in the applicable district or superior court, adopted pursuant to G.S. 7A-34. The court shall rule upon any matters reasonably necessary to effect a fair and prompt disposition of the case in the interests of justice.

Delay consented to by the parties is not grounds for sanctions. The sanction may include an order to pay the other party the amount of the reasonable expenses and damages incurred because of the willful obstruction or unreasonable delay, including a reasonable attorneys' fee, and including appointment by the court, at the offending party's expense, of an accountant, appraiser, or other expert whose services the court finds are necessary to secure in order for the discovery or other equitable distribution proceeding to be timely conducted.

History

(1981, c. 815, s. 6; 1983, c. 671, s. 1; 1985, c. 689, s. 21; 1987, c. 844, s. 1; 1991, c. 610, s. 2; 1991 (Reg. Sess., 1992), c. 910, s. 1; 1993, c. 209, s. 1; 1995, c. 244, s. 1; c. 245, s. 1; 1997-302, s. 2; 2001-364, s. 1.)

Legal Periodicals. - For comment on resulting trusts in entireties property when the wife furnishes purchase money, see 17 Wake Forest L. Rev. 415 (1981).

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

For note, "North Carolina's Equitable Distribution Statute: Recent Developments," see 64 N.C.L. Rev. 1395 (1986).

For note, "Branch Banking & Trust Co. v. Wright - Creditors' Rights to Entireties Property Awarded to Nondebtor Spouse Upon Divorce," see 64 N.C.L. Rev. 1471 (1986).

For article, "The Partnership Ideal: The Development of Equitable Distribution in North Carolina," see 65 N.C.L. Rev. 195 (1987).

For article, "Semantics as Jurisprudence: The Elevation of Form Over Substance in the Treatment of Separation Agreements in North Carolina," 69 N.C.L. Rev. 319 (1991).

For 1997 legislative survey, see 20 Campbell L. Rev. 459.

For recent development, "Death and the Partnership Principle: Interpreting Recent Abatement Amendments to North Carolina's Equitable Distribution Act," see 80 N.C.L. Rev. 1089 (2002).

For article, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization," see 45 Wake Forest L. Rev. 579 (2010).

CASE NOTES

Editor's Note. - Some of the cases below were decided prior to the rewriting of this section by Session Laws 1987, c. 844, which provides for entry of a consent judgment of equitable distribution prior or subsequent to entry of a divorce judgment, and for institution of an action of equitable distribution prior to entry of a divorce judgment.

Public policy of this State is that equitable distribution of property shall follow decree of absolute divorce. Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984).

Equitable distribution, when properly demanded, must be granted upon the divorce decree being entered; and if alimony and child support has not been previously awarded, equitable distribution must be made first; but if alimony or child support has already been awarded, the awards must be reconsidered upon request after the marital property has been equitably distributed. This order of events is required, no doubt, because of the obvious relationship that exists between the property that one has and his or her need for support and the ability to furnish it. Capps v. Capps, 69 N.C. App. 755, 318 S.E.2d 346 (1984). But see now subsection (a) of this section.

It is North Carolina's public policy that an equitable distribution of property shall follow a decree of absolute divorce. However, a resort to the equitable distribution law is not the only recognized way for married people to dispose of their marital property. An alternative is in G.S. 50-20(d). Case v. Case, 73 N.C. App. 76, 325 S.E.2d 661, cert. denied, 313 N.C. 597, 330 S.E.2d 606 (1985). And see now subsection (a) of this section.

The plain language of subsection (a) of this section clearly provides that the equitable distribution of marital property must follow a decree of absolute divorce; however, the distribution proceedings may be instituted as a cross action or in a suit altogether separate from the divorce action. This section does not require that the distribution hearing must be held immediately following entry of the absolute divorce. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987). And see now subsection (a) of this section.

No Right to Jury Trial in Equitable Distribution Action. - No right to bring an action for equitable distribution of marital property existed prior to the adoption of the equitable distribution statutes, G.S. 50-20 and this section, and the language of the statutes themselves create no new right to trial by jury; therefore, there is no right to trial by jury for such an action under the Constitution of North Carolina. Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989).

Discretion of Trial Court. - The trial court retains the discretion to choose the appropriate method of compensating the spouse for his post-separation payment of marital debt. Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995).

Judgment effectuating a property distribution pursuant to an agreement that was not signed by both spouses was a court-ordered equitable distribution granted before absolute divorce, and as such was expressly prohibited by subsection (a) of this section. Collar v. Collar, 86 N.C. App. 105, 356 S.E.2d 407 (1987).

Subject Matter Jurisdiction. - In a case arising from a divorce action, an argument that a trial court lacked jurisdiction to enter an equitable distribution on April 5, 2002, was rejected because the prayers for relief put the parties on notice that they both sought equitable distribution. Moreover, regardless of whether the parties were separated at the time the complaint was filed, the record was clear that the parties were separated by the time the claim for equitable distribution was asserted. Gurganus v. Gurganus, 252 N.C. App. 1, 796 S.E.2d 811 (2017).

While both parties raised a claim for equitable distribution, both raised it prior to the date of separation. Because no claim for equitable distribution was filed after the parties' date of separation, the trial court did not have subject matter jurisdiction to enter the equitable distribution order. Standridge v. Standridge, 259 N.C. App. 834, 817 S.E.2d 463 (2018).

Jurisdiction over Out-of-State Property. - Subsection (a) of this section simply authorizes jurisdiction over the property of the defendant located outside North Carolina once due process concerns are satisfied. Carroll v. Carroll, 88 N.C. App. 453, 363 S.E.2d 872 (1988).

Alternative Procedures for Making Application for Distribution. - Although subsection (a) of this section sets out the procedure for making application for the distribution of property, it is not the only recognized way for married people to dispose of their marital property. An alternative is found in G.S. 50-20(d). Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984).

Insufficient Notice of Sanctions. - Wife had insufficient notice of sanctions, under G.S. 50-21(e), because: (1) no motion was filed; (2) no required scheduling or pretrial conferences were held; and (3) a deadline the wife allegedly violated was set in the wife's absence. Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014).

Pleadings. - A plaintiff in a divorce action may admit to a claim for equitable distribution in a reply, and join in the claims for an equitable distribution of the marital property through a reply pleading. The defendant is precluded, by principles of equitable estoppel, from defeating plaintiff's right to equitable distribution by submitting to a voluntary dismissal of his counterclaim. Hunt v. Hunt, 117 N.C. App. 280, 450 S.E.2d 558 (1994).

Wife sufficiently preserved her claim to an equitable distribution of marital property under G.S. 50-11(e) when her answer to her husband's complaint for divorce requested and reserved a right to equitable distribution, because the remedy of equitable distribution in a divorce case only applied to marital assets, and G.S. 50-21(a) gave a party asserting a claim for such redress 90 days to provide specific information about the property claimed to be subject to equitable distribution; so, to constitute a valid equitable distribution claim, the wife's counterclaim for equitable distribution did not have to state that it applied to the parties' marital assets or property, and the husband was put on notice that the wife asked the court to equitably distribute the parties' marital and divisible property. Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

In divorce proceedings, a former wife was not entitled to compel an equitable distribution affidavit from the former husband because the wife failed to properly file her equitable distribution claim pursuant to G.S. 50-21(a) as a separate action, cross-action, or motion in the cause within six months after the husband dismissed his own equitable distribution claim as required by G.S. 50-11(e) and (f); an oral motion by the wife for such a claim did not constitute the required motion. Webb v. Webb, 188 N.C. App. 621, 656 S.E.2d 334 (2008).

It was error to deny a husband's motion to change venue because (1) removal of all claims filed in the same action was required, and (2) all removal prerequisites were met. Dechkovskaia v. Dechkovskaia, 244 N.C. App. 26, 780 S.E.2d 175 (2015).

Bankruptcy. - Following the parties' separation, a spouse's right to equitable distribution does not create any vested rights in particular marital property, but rather creates in each spouse an unliquidated, unsecured, contingent claim as defined by federal law which may be discharged in bankruptcy. Justice v. Justice, 123 N.C. App. 733, 475 S.E.2d 225 (1996), aff'd, 346 N.C. 176, 484 S.E.2d 551 (1997).

Wife, separated from her debtor husband, was entitled to relief from the automatic stay, 11 U.S.C.S. § 362, to liquidate her right to an equitable distribution against debtor because she held an unsecured claim against debtor's bankruptcy estate, the matter was one controlled by state law, and relief would not unduly delay the administration of debtor's estate. In re Linville, - Bankr. - (Bankr. M.D.N.C. Feb. 1, 2005).

There was no merit to a Chapter 13 debtor's ex-wife's claim that she was allowed to enforce a state court's order awarding her $116,182 in funds the debtor had in a 401(k) account because the stay that was imposed pursuant to 11 U.S.C.S. § 362 when the debtor declared bankruptcy did not apply to that property; G.S. 50-21 made a clear distinction between "dissolution of a marriage," which was an action to terminate a marriage, and "equitable distribution of property," which was an action dividing property, and the state court's order awarding the ex-wife $116,182 was a distribution of property that created a debt that was dischargeable in Chapter 13 bankruptcy because it was not a domestic support obligation. In re Jones, 556 B.R. 219 (Bankr. E.D.N.C. 2016).

Equitable distribution reflects the idea that marriage is a partnership enterprise to which both spouses make vital contributions and which entitles the homemaker spouse to a share of the property acquired during the relationship. White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985).

Equitable distribution is not automatic. A party seeking equitable distribution must specifically apply for it, either by way of cross-action in an action brought for absolute divorce or as a separate action. Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987).

Where death ends all chance for divorce, any equitable distribution action then pending must abate; the 1995 amendment to this section did not change the relationship between equitable distribution and divorce. Instead, the amendment continued the legislative trend for equitable distribution to occur at any time prior to or after an absolute divorce. Brown v. Brown, 353 N.C. 220, 539 S.E.2d 621 (2000).

Trial Court Must Make Written Findings. - When determining equitable distribution, the trial court must make written findings characterizing postseparation appreciation of marital assets as either passive or active. Smith v. Smith, 336 N.C. 575, 444 S.E.2d 420 (1994).

The trial court's error in failing to make specific findings of fact as to each factor under this section did not prejudice the wife, where she asked for and received an equal distribution of marital assets. Crutchfield v. Crutchfield, 132 N.C. App. 193, 511 S.E.2d 31 (1999).

Formerly No Authority to Enter Order of Equitable Distribution Preceding Divorce. - Prior to the 1987 amendment to this section, although the trial court had jurisdiction over the parties and their property, it was without authority to enter an order of equitable distribution of the marital property preceding an absolute divorce, notwithstanding the parties' consent. McKenzie v. McKenzie, 75 N.C. App. 188, 330 S.E.2d 270 (1985).

Setting Aside Pre-trial Order. - Trial court erred in setting aside a pre-trial order, upon its own motion, prior to entry of an equitable distribution judgment because the order was entered in accordance with G.S. 50-21(d) and G.S. 1A-1, N.C. R. Civ. P. 16(a), and Guilford County, N.C. Dist. Ct. R. 31.9, the court waited over 18 months before setting aside the order containing the parties' binding stipulations, and the court failed to give either party notice of its intent to set aside the order. Plomaritis v. Plomaritis, 222 N.C. App. 94, 730 S.E.2d 784 (2012).

Evidence of Divorce Required. - An order of equitable distribution must be supported by a finding of fact, based on competent evidence, that a judgment of absolute divorce has been entered by a court of competent jurisdiction. McIver v. McIver, 77 N.C. App. 232, 334 S.E.2d 454 (1985). But see now subsection (a) of this section.

Separate Trials for Divorce and Distribution. - The trial court's order granting the plaintiff's motion for separate trials of his claim for absolute divorce and the defendant's claim for equitable distribution of the marital property did not constitute an abuse of discretion, nor did it prejudice the defendant's substantial rights. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987).

When Equitable Distribution Becomes Operative. - By the terms of subsection (a), equitable distribution becomes operative only after a husband and wife have separated and a claim for equitable distribution has been filed. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Husband's argument that one must be a party to an existing divorce action before an equitable distribution claim may be asserted had no merit under subsection (a) of this section as it existed in 1981, and would have been summarily dismissed under the 1987 amended version. McIver v. McIver, 92 N.C. App. 116, 374 S.E.2d 144 (1988).

The classification, valuation, and distribution of the marital debt is required without regard to whether the debt may be liquidated after the date of separation and before the trial; just as with assets, the question is whether the debt was acquired during the marriage and before the date of separation and in existence on the date of separation. Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995).

Inventory Affidavit. - Where the husband was given a copy of expert opinion of business valuation before trial, the wife was not limited to her inventory affidavit relating to the value of the business and was free to present the expert's testimony. Franks v. Franks, 153 N.C. App. 793, 571 S.E.2d 276 (2002).

Marital Property Valued at Net Value. - Net value, rather than fair market value, is the proper measure for valuing marital property for equitable distribution. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283 (1985).

Marital Property Is Valued as of the Date of the Parties' Separation. - This valuation date is used to determine the equitable distributive share of each party. However, where there is evidence of active or passive appreciation of the marital assets after that date, the court must consider such appreciation as a factor under G.S. 50-20(c)(11a) or (12), respectively. Mishler v. Mishler, 90 N.C. App. 72, 367 S.E.2d 385, cert. denied, 323 N.C. 174, 373 S.E.2d 111 (1988).

In an action for equitable distribution of marital property, the trial court was required to value the marital property as of the date of separation. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Trial court's finding pursuant to G.S. 50-21(b) that the pickup truck had a value on the date of separation of $4,860.00 was supported by competent evidence. Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Since the trial court was required by G.S. 50-21(b) to find the value of the IRA as of the date of separation, the court did not err by doing so. The husband's evidence was more properly considered as a distributional factor under G.S. 50-20(c). Warren v. Warren, 175 N.C. App. 509, 623 S.E.2d 800 (2006).

Trial court's valuation of vested and non-vested stock options using the "intrinsic value method," was not error under G.S. 50-21(b). Fountain v. Fountain, 148 N.C. App. 329, 559 S.E.2d 25 (2002).

Trial court did not abuse its discretion in valuing a condominium by accepting the testimony of the wife's expert witness that was based on a comparable sale that took place within the six months prior to the trial. Kabasan v. Kabasan, 257 N.C. App. 436, 810 S.E.2d 691 (2018).

Valuation of Unvested Stock. - Where the wife, pursuant to entering an employment agreement prior to the parties' separation, received 10,000 shares of the employer's stock after the parties' separation, which were later exchanged with the stock of the corporation that purchased the employer and was sold for net proceeds of $82,637, the trial court did not err in valuing the property pursuant to G.S. 50-21(b), which occurred after 20 years of marriage; it was reasonable for the trial court to infer that the wife's employment with the employer resulted from experience that the wife gained while working, for 20 years, for the company from which the employer spun off and that, pursuant to G.S. 50-20.1(d), all of the shares were subject to distribution in the divorce. Ubertaccio v. Ubertaccio, 161 N.C. App. 352, 588 S.E.2d 905 (2003), aff'd, 359 N.C. 175, 604 S.E.2d 912 (2004).

Presumption that a gift to the other spouse was intended applies only when a spouse uses separate property to acquire other property which is titled in the entireties, or when a spouse directs a title of his separate property be placed in the entireties. Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995).

Effect of Obligation to Build Road on Fair Market Value. - In making a determination as to the fair market value of property the trial court must ascertain the price a willing buyer would pay to purchase the land on the open market from a willing seller as of the date of the parties' separation. Thus, the value, if any, of the obligation to build an access road on the property is intrinsic to the fair market price and should have been included in the trial court's fair market valuation of the real property. Carlson v. Carlson, 127 N.C. App. 33, 487 S.E.2d 784 (1997), cert. denied, 347 N.C. 396, 494 S.E.2d 407 (1997).

Date of Valuation. - When a divorce is granted on the ground of a year's separation, the trial court is to determine the net market value of the marital assets as of the date of separation in order to effect an equitable distribution of these assets. Patton v. Patton, 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).

Trial court committed error in valuing stock as of the date of trial, as opposed to the date of separation. Lawing v. Lawing, 81 N.C. App. 159, 344 S.E.2d 100 (1986).

Value of property at the time of separation is especially important when an appreciation or diminution in the value of the property has taken place since separation, such as the incurring or removing of encumbrances by one spouse. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Even if property division was made on the basis of 1983 values, rather than values in 1972, when the parties separated, that division would merely reflect the 50% of the marital property that plaintiff wife was entitled to at separation plus 50% of any appreciation after separation, which would be her separate property, where defendant administrator did not show that the property's appreciation was due to deceased husband's contributions, monetary or otherwise. The plaintiff thus would receive the same amount of property regardless of whether the marital property was considered at its 1972 value or its 1983 value. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (1986).

Where plaintiff and defendant were divorced on the ground of one year separation, defendant's vested military pension and retirement benefits would be valued as of the date of separation. Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd, 319 N.C. 367, 354 S.E.2d 506 (1987).

Trial court is required to consider only evidence of the value of the marital property as of the date of separation, thus rendering evidence of post-separation occurrences incompetent for the purpose of valuing marital property. Consequently, a trial court is under a duty to exclude such incompetent evidence from its consideration, and its failure to do so is reviewable by the appellate court even in the absence of an objection to the evidence at trial. Christensen v. Christensen, 101 N.C. App. 47, 398 S.E.2d 634 (1990).

Where parties are divorced on the ground of one year's separation, the district court must value husband's military pension, as marital property, as of the date of separation. Lewis v. Lewis, 83 N.C. App. 438, 350 S.E.2d 587 (1986).

Trial court erred in confirming an arbitration award regarding the value of a husband's pension plan and a wife's 401(k) account and modification was warranted under the Family Law Arbitration Act, G.S. 50-55(a)(1) because the confirmed values did not reflect the account values as of the date of the separation of the parties, as required by G.S. 50-21(b). Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

It was error not to classify, value, or distribute the passive appreciation of a husband's investment account because (1) the appreciation was marital property, and (2) the husband showed no prejudice from a delay between the end of trial and the entry of judgment. Nicks v. Nicks, 241 N.C. App. 487, 774 S.E.2d 365 (2015).

The spouse not receiving the distribution of the marital debt who makes some payment on the marital debt after the date of separation and before the equitable distribution trial is entitled to either (1) a reimbursement from the other spouse for the amount of the payment, (2) a credit to his share of the equitable distribution award in an amount equal to the payment, or (3) an upward adjustment in his percentage of the distribution of the marital properties. Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995).

Legal Malpractice Claim Failed as Client Did Not Value Marital Estate - Client's legal malpractice action failed as even assuming an attorney negligently failed to advise the client or to value the client's estate properly under G.S. 50-20(e) and G.S. 50-21(b), the client made no forecast of the value of the marital estate as of the date of separation and therefore as to the value of the client's equitable distribution claim; thus, the client failed to show that any negligence by the attorney proximately caused damage to the client. Young v. Gum, 185 N.C. App. 642, 649 S.E.2d 469 (2007), review denied, 362 N.C. 374, 662 S.E.2d 552 (2008), review dismissed, as moot, 362 N.C. 374, 662 S.E.2d 665 (2008).

Payment on Debt Before Distribution. - Where the marital debt which was distributed to plaintiff and valued at $9,000 on the date of separation had a value of zero on the date of distribution, because it had been fully paid by the defendant, failure of the trial court to consider this fact as a distributional factor in making its distribution was reversible error. Loving v. Loving, 118 N.C. App. 501, 455 S.E.2d 885 (1995).

Valuation of Pension and Retirement Benefits. - For case discussing the relative advantages and disadvantages of the present discounted value method and the deferred distribution method in evaluating and distributing pension and retirement benefits, see Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd, 319 N.C. 367, 354 S.E.2d 506 (1987).

Where an expert at trial testified that the "before tax" value of the pension plans was $157,242.81 as of the date of separation, the trial court erred in concluding that the net present value of the pensions as of the date of separation was $93,084.60. Wilkins v. Wilkins, 111 N.C. App. 541, 432 S.E.2d 891 (1993).

Wife's state pension was properly valued where the testifying CPA relied upon a state retirement agency affidavit that contained the data necessary to conduct a Bishop analysis, as well as the vital statistics referenced by the wife, and the 27-day discrepancy with the actual date of separation in the affidavit went to the weight of the testimony, not its admission. Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015).

The subjective opinions of the owner of property as to its value are admissible and competent. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986).

Treatment of Entireties Property. - Under subsection (a) of this section, which prior to the rewriting of this section in 1987 stated that "equitable distribution of property shall follow a decree of absolute divorce", the estate of a tenancy in common of necessity intervened between absolute divorce and an award of title pursuant to equitable distribution when property was held by the entireties, whether or not the divorce and the equitable distribution occurred in a single proceeding. Branch Banking & Trust Co. v. Wright, 74 N.C. App. 550, 328 S.E.2d 840, appeal withdrawn, 318 N.C. 505, 353 S.E.2d 225 (1985).

Deed of Trust Executed Without Wife's Consent Attached to Husband's Interest. - When defendants were divorced the tenancy by the entirety in which their marital home was held became a tenancy in common, and the lien of deed of trust executed by husband without wife's consent attached to defendant husband's one-half undivided interest in the property. Thus when the marital home was distributed pursuant to G.S. 50-20 defendant wife took title in fee simple absolute subject to plaintiff bank's deed of trust on defendant husband's one-half undivided interest. Branch Banking & Trust Co. v. Wright, 74 N.C. App. 550, 328 S.E.2d 840, appeal withdrawn, 318 N.C. 505, 353 S.E.2d 225 (1985).

Effect of Findings. - The trial court's findings concerning valuation, as are all factual findings in an equitable distribution order, are binding on appellate courts when supported by competent evidence. Patton v. Patton, 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).

Findings as to Distribution of Real Property. - Although a trial court's equitable distribution order, G.S. 50-20 and G.S. 50-21, failed to state the percentage to be distributed to each spouse upon the sale of the parties' real property, the husband failed to explain how he was prejudiced by the omission of the percentage amount because the figure could be readily calculated using information contained in the findings and conclusions from the trial court's order, which provided for an equal division of the proceeds; the trial court's fair market value of the properties was negative $10,000 and $13,884. Bodie v. Bodie, 221 N.C. App. 29, 727 S.E.2d 11 (2012).

Refusal to Consider Evidence of Husband's Conversion of Property after Separation Was Error. - The trial court erred in refusing to consider evidence concerning the husband's conversion of property (i.e., shares of stock) after the parties' separation. The ruling was error regardless of whether the property was originally obtained with marital or separate funds. Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63 (1985).

Application of Equitable Distribution Held Not Retroactive When Pension Benefits Had Accrued Prior to Adoption. - Although the defendant's right to his pension benefits had accrued fully prior to the adoption of the Equitable Distribution Act and the August 1, 1983 amendment to G.S. 50-20 subjecting his pension to equitable distribution, the act and amendment did not affect his property interests until the plaintiff's claim for equitable distribution was filed on May 14, 1984, well after both the act and the amendment became effective. This was not a retroactive application of the act or of the amendment. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

Sanctions for Marital Misconduct That Has No Economic Impact on Marital Estate. - Marital misconduct that has no resulting economic impact on the marital estate may nonetheless have other consequences; for instance, the spouse can be sanctioned for the willful obstruction of an equitable distribution proceeding, directed to pay for costs incurred for the return of the other spouse's separate property, or be subject to an inspection for the purpose of inventory and valuation. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

Sanctions for Willful Obstruction and Unreasonable Delay. - Whether to impose sanctions and which sanctions to impose under this section are decisions vested in the trial court and reviewable on appeal for abuse of discretion, and in applying this standard the appellate court will uphold a trial court's order of sanctions unless it is manifestly unsupported by reason. Crutchfield v. Crutchfield, 132 N.C. App. 193, 511 S.E.2d 31 (1999).

Evidence that the wife willfully obstructed or attempted to obstruct or unreasonably delay discovery proceedings and equitable distribution proceedings, which caused prejudice to the husband, supported the imposition of sanctions requiring the wife to pay $1,500 of the husband's attorney fees. Crutchfield v. Crutchfield, 132 N.C. App. 193, 511 S.E.2d 31 (1999).

Trial court erred when it sanctioned the husband under G.S. 50-21(e), finding that the husband's refusal to accept the wife's valuation of the business resulted in a willful obstruction of the case where the trial court summarily recast the improper assessment of expert witness costs as a sanction against the husband, where the husband was given no notice that he would be subject to sanctions, and in fact, the notice sent to the husband was misleading. Zaliagiris v. Zaliagiris, 164 N.C. App. 602, 596 S.E.2d 285 (2004), cert. denied, 359 N.C. 643, 617 S.E.2d 662 (2005).

Trial court did not err in awarding attorney's fees to a wife in a dissolution proceeding because the trial court's findings of fact were supported by competent evidence detailing the wife's efforts to seek attachment of the husband's wages and the husband's failure to appear at any hearing in the matter, including court-ordered mediation. Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 606 S.E.2d 164 (2004).

Wife's due process rights were violated when sanctions were imposed for the wife's willful obstruction and unreasonable delay of equitable distribution hearing because the wife did not receive notice required by G.S. 50-21(e); the husband did not make a written request for sanctions and the language cited by the husband as allegedly giving the wife notice appeared in the equitable distribution order a distributional factor, and not as grounds for sanctions. Megremis v. Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006).

It was error to impose sanctions on a wife for allegedly failing to timely file an equitable distribution affidavit because, inter alia, the husband did not comply with the statutory requirements for a scheduling and discovery conference, possible mediation, or a final pretrial conference. Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014).

It was error to impose sanctions on a wife for allegedly failing to timely file an equitable distribution affidavit because, inter alia, (1) a deadline for filing the affidavit was set after the deadline, (2) finding the wife did not timely file the affidavit when the affidavit was not yet due was unreasonable, and (3) finding the wife did not answer discovery was irrelevant. Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014).

Attorney Fees Not Appropriate. - Trial court order regarding attorney fees was vacated where the wife abandoned her claim for alimony, the fees were clearly based upon the equitable distribution claim only, and neither the record nor the trial court's findings revealed that the requirements of G.S. 50-20(i) or G.S. 50-21(e) were met. Eason v. Taylor, 245 N.C. App. 16, 784 S.E.2d 200 (2016).

Preservation for Appellate Review. - Husband's claim that he did not receive proper notice that he was subject to attorneys fees as sanctions in his divorce case was not raised in his written closing argument, and he thus failed to preserve this issue for appellate review. Wirth v. Wirth, 193 N.C. App. 657, 668 S.E.2d 603 (2008).

Applied in Crumbley v. Crumbley, 70 N.C. App. 143, 318 S.E.2d 525 (1984); Lofton v. Lofton, 71 N.C. App. 635, 322 S.E.2d 654 (1984); Weaver v. Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (1985); Dusenberry v. Dusenberry, 73 N.C. App. 177, 326 S.E.2d 65 (1985); Seifert v. Seifert, 319 N.C. 367, 354 S.E.2d 506 (1987); Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993).

Cited in Alexander v. Alexander, 68 N.C. App. 548, 315 S.E.2d 772 (1984); Smith v. Smith, 71 N.C. App. 242, 322 S.E.2d 393 (1984); Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266 (1985); Dewey v. Dewey, 77 N.C. App. 787, 336 S.E.2d 451 (1985); Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163 (1985); Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221 (1985); Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986); In re Cooper, 81 N.C. App. 27, 344 S.E.2d 27 (1986); Patton v. Patton, 318 N.C. 404, 348 S.E.2d 593 (1986); North Carolina Baptist Hosps. v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987); Collar v. Collar, 86 N.C. App. 109, 356 S.E.2d 405 (1987); Byrd v. Owens, 86 N.C. App. 418, 358 S.E.2d 102 (1987); Caldwell v. Caldwell, 93 N.C. App. 740, 379 S.E.2d 271 (1989); Trogdon v. Trogdon, 97 N.C. App. 330, 388 S.E.2d 212 (1990); Carter v. Carter, 102 N.C. App. 440, 402 S.E.2d 469 (1991); State v. Morris, 103 N.C. App. 246, 405 S.E.2d 351 (1991); Forsyth Mem. Hosp. v. Chisholm, 342 N.C. 616, 467 S.E.2d 88 (1996); Atkinson v. Atkinson, 132 N.C. App. 82, 510 S.E.2d 178 (1999); Khajanchi v. Khajanchi, 140 N.C. App. 552, 537 S.E.2d 845 (2000); Robinson v. Robinson, 210 N.C. App. 319, 707 S.E.2d 785 (2011); Cheek v. Cheek, 211 N.C. App. 183, 712 S.E.2d 301 (2011); United States v. 998 Cotton St., - F. Supp. 2d - (M.D.N.C. Mar. 22, 2013); Hinkle v. Hinkle, 227 N.C. App. 252, 742 S.E.2d 325 (2013); Porter v. Porter, 252 N.C. App. 321, 798 S.E.2d 400 (2017).

Opinions of Attorney General

Statutory Requirement. - The requirement that an equitable distribution of property must follow a decree of absolute divorce is statutory and not constitutional. See opinion of Attorney General to The Honorable Henson P. Barnes, North Carolina Senate, 57 N.C.A.G. 30 (1987). And see now subsection (a) of this section.

§ 50-22. Action on behalf of an incompetent.

A duly appointed agent who has the power to sue and defend civil actions on behalf of an incompetent spouse and who has been appointed pursuant to a durable power of attorney executed in accordance with Chapter 32C of the General Statutes, a guardian appointed in accordance with Chapter 35A of the General Statutes, or a guardian ad litem appointed in accordance with G.S. 1A-1, Rules 17 and 25(b), may commence, defend, maintain, arbitrate, mediate, or settle any action authorized by this Chapter on behalf of an incompetent spouse. However, only a competent spouse may commence an action for absolute divorce.

History

(1991, c. 610, s. 1; 2009-224, s. 1; 2017-153, s. 2.4.)

Effect of Amendments. - Session Laws 2009-224, s. 1, effective June 30, 2009, rewrote the section.

Session Laws 2017-153, s. 2.4, effective January 1, 2018, in the first sentence, substituted "agent" for "attorney-in-fact" near the beginning, and substituted "Chapter 32C" for "Chapter 32A" near the middle.


§§ 50-23 through 50-29: Reserved for future codification purposes.

ARTICLE 2. Expedited Process for Child Support Cases.

Sec.

§ 50-30. Findings; policy; and purpose.

  1. Findings. - The General Assembly makes the following findings:
    1. There is a strong public interest in providing fair, efficient, and swift judicial processes for establishing and enforcing child support obligations. Children are entitled to support from their parents, and court assistance is often required for the establishment and enforcement of parental support obligations. Children who do not receive support from their parents often become financially dependent on the State.
    2. The State shall have laws that meet the federal requirements on expedited processes for obtaining and enforcing child support orders for purposes of federal reimbursement under Title IV-D of the Social Security Act, 42 U.S.C. § 66(a)(2). The Secretary of the United States Department of Health and Human Services may waive the expedited process requirement with respect to one or more district court district as defined in G.S. 7A-133 on the basis of the effectiveness and timeliness of support order issuance and enforcement within the district.
    3. The State has a strong financial interest in complying with the expedited process requirement, and other requirements, of Title IV-D of the Social Security Act, but the State would incur substantial expense in creating statewide an expedited child support process as defined by federal law.
    4. The State's judicial system is largely capable of processing child support cases in a timely and efficient manner and has a strong commitment to an expeditious system.
    5. The substantial expense the State would incur in creating a new system for obtaining and enforcing child support orders would be reduced and better spent by improving the present system.
  2. Purpose and Policy. - It is the policy of this State to ensure, to the maximum extent possible, that child support obligations are established and enforced fairly, efficiently, and swiftly through the judicial system by means that make the best use of the State's resources. It is the purpose of this Article to facilitate this policy. The Administrative Office of the Courts and judicial officials in each district court district as defined in G.S. 7A-133 shall make a diligent effort to ensure that child support cases, from the time of filing to the time of disposition, are handled fairly, efficiently, and swiftly. The Administrative Office of the Courts and the State Department of Health and Human Services shall work together to improve procedures for the handling of child support cases in which the State or county has an interest, including all cases that qualify in any respect for federal reimbursement under Title IV-D of the Social Security Act.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 86; 1997-443, s. 11A.18.)

Legal Periodicals. - For note, "Legislating Responsibility: North Carolina's New Child Support Enforcement Acts," see 65 N.C.L. Rev. 1354 (1987).

§ 50-31. Definitions.

As used in this Article, unless the context clearly requires otherwise:

  1. "Child support case" means the part of any civil or criminal action or proceeding, whether intrastate or interstate, that involves a claim for the establishment or enforcement of a child support obligation.
  2. "Dispose" or "disposition" of a child support case means the entry of an order in a child support case that:
    1. Dismisses the claim for establishment or enforcement of the child support obligation; or
    2. Establishes a child support obligation, either temporary or permanent, and directs how that obligation is to be satisfied; or
    3. Orders a particular child support enforcement remedy.
  3. "Expedited process" means a procedure for having child support orders established and enforced by a magistrate or clerk who has been designated as a child support hearing officer pursuant to this Article.
  4. "Federal expedited process requirement" means the provision in Title IV, Part D of the Social Security Act, 42 U.S.C. § 666(a)(2), that requires as a condition of the receipt of federal funds that a state have laws that require the use of federally defined expedited processes for obtaining and enforcing child support orders.
  5. "Filing" means the date the defendant is served with a pleading that seeks establishment or enforcement of a child support obligation, or the date written notice or a pleading is sent to a party seeking establishment or enforcement of a child support obligation.
  6. "Hearing officer" or "child support hearing officer" means a clerk or assistant clerk of superior court or a magistrate who has been designated pursuant to this Article to hear and enter orders in child support cases.
  7. "Initiating party" means the party, the attorney for a party, a child support enforcement agency established pursuant to Title IV, Part D of the Social Security Act, or the clerk of superior court who initiates an action, proceeding, or procedure as allowed or required by law for the establishment or enforcement of a child support obligation.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1; 1987, c. 346.)

§ 50-32. Disposition of cases within 60 days; extension.

Except where paternity is at issue, in all child support cases the district court judge shall dispose of the case from filing to disposition within 60 days, except that this period may be extended for a maximum of 30 days by order of the court if:

  1. Either party or his attorney cannot be present for the hearing; or
  2. The parties have consented to an extension.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1.)

CASE NOTES

Hearing Scheduled on Regular Domestic Calendar Instead of Expedited Calendar. - In an action for modification of child custody order seeking child support, where the trial judge scheduled a hearing on the regular domestic calendar instead of the expedited calendar for domestic court cases, the defendant was not prejudiced by the court's placement of this case as the case was continued within the 60 day requirement of this section. Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428 (1988).


§ 50-33. Waiver of expedited process requirement.

  1. State to Seek Waiver. - The State Department of Health and Human Services, with the assistance of the Administrative Office of the Courts, shall vigorously pursue application to the United States Department of Health and Human Services for waivers of the federal expedited process requirement.
  2. Districts That Do Not Qualify. - In any district court district as defined in G.S. 7A-133 that does not qualify for a waiver of the federal expedited process requirement, an expedited process shall be established as provided in G.S. 50-34.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 87; 1997-443, s. 11A.19.)

§ 50-34. Establishment of an expedited process.

  1. Districts Required to Have Expedited Process. - In any district court district as defined in G.S. 7A-133 that is required by G.S. 50-33(b) to establish an expedited child support process, the Director of the Administrative Office of the Courts shall notify the chief district court judge and the clerk or clerks of superior court in the district in writing of the requirement. The Director of the Administrative Office of the Courts, the chief district court judge, and the clerk or clerks of superior court in the district shall implement an expedited child support process as provided in this section.
  2. Procedure for Establishing Expedited Process. - When a district court district as defined in G.S. 7A-133 is required to implement an expedited process, the Director of the Administrative Office of the Courts, the chief district judge, and the clerk of superior court in an affected county shall determine by agreement whether the child support hearing officer or officers for that county shall be one or more clerks or one or more magistrates. If such agreement has not been reached within 15 days after the notice required by subsection (a) when implementation is required, the Director of the Administrative Office of the Courts shall make the decision. If it is decided that the hearing officer or officers for a county shall be magistrates, the chief district judge, the clerk of superior court, and the Director of the Administrative Office of the Courts shall ensure his or their qualification for the position. If it is decided that the hearing officer or officers for a county shall be the clerk or assistant clerks, the clerk of superior court in the county shall designate the person or persons to serve as hearing officer, and the chief district judge, the clerk of superior court, and the Director of the Administrative Office of the Courts shall ensure his or their qualification for the position.
  3. Public To Be Informed. - When an expedited process is to be implemented in a county or district court district as defined in G.S. 7A-133, the chief district court judge, the clerk or clerks of superior court in affected counties in the district, and the Administrative Office of the Courts shall take steps to ensure that attorneys, the general public, and parties to pending child support cases in the county or district are informed of the change in procedures and helped to understand and use the new system effectively.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 88.)

§ 50-35. Authority and duties of a child support hearing officer.

A child support hearing officer who is properly qualified and designated under this Article has the following authority and responsibilities in all child support cases:

  1. To conduct hearings and to ensure that the parties' due process rights are protected;
  2. To take testimony and establish a record;
  3. To evaluate evidence and make decisions regarding the establishment or enforcement of child support orders;
  4. To accept and approve voluntary acknowledgements of support liability and stipulated agreements setting the amount of support obligations;
  5. To accept and approve voluntary acknowledgements and affirmations of paternity;
  6. Except as otherwise provided in this Article, to enter child support orders that have the same force and effect as orders entered by a district court judge;
  7. To enter temporary child support orders pending the resolution of unusual or complicated issues by a district court judge;
  8. To enter default orders; and
  9. To subpoena witnesses and documents.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1.)

§ 50-36. Child support procedures in districts with expedited process.

  1. Scheduling of Cases. - The procedures of this section shall apply to all child support cases in any district court district as defined in G.S. 7A-133 or county in which an expedited process has been established. All claims for the establishment or enforcement of a child support obligation, whether the claim is made in a separate action or as part of a divorce or any other action, shall be scheduled for hearing before the child support hearing officer. The initiating party shall send a notice of the date, time, and place of the hearing to all other parties. Service of process shall be made and notices given as provided by G.S. 1A-1, Rules of Civil Procedure.
  2. Place of Hearing. - The hearing before the child support hearing officer need not take place in a courtroom, but shall be conducted in an appropriate judicial setting.
  3. Hearing Procedures. - The hearing of a case before a child support officer is without a jury. The rules of evidence applicable in the trial of civil actions generally are observed; however, the hearing officer may require the parties to produce and may consider financial affidavits, State and federal tax returns, and other financial or employment records. Except as otherwise provided in this Article, the hearing officer shall determine the parties' child support rights and obligations and enter an appropriate order based on the evidence and the child support laws of the State. All parties shall be provided with a copy of the order.
  4. Record of Proceeding. - The record of a proceeding before a child support hearing officer shall consist of the pleadings filed in the child support case, documentation of proper service or notice or waiver, and a copy of the hearing officer's order. No verbatim recording or transcript shall be required or provided at State expense.
  5. Transfer to District Court Judge. - Upon his own motion or upon motion of any party, the hearing officer shall transfer a case for hearing before a district court judge when the case involves:
    1. A contested paternity action;
    2. A custody dispute;
    3. Contested visitation rights;
    4. The ownership, possession, or transfer of an interest in property to satisfy a child support obligation; or
    5. Other complex issues.

Upon ordering such a transfer, except in cases of contested paternity, the hearing officer shall also enter a temporary order that provides for the payment of a money amount or otherwise addresses the child's need for support pending the resolution of the case by the district court judge. The chief district court judge shall establish a procedure for such transferred cases to be given priority for hearing before a district court judge.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 89.)

CASE NOTES

Hearing Scheduled on Regular Calendar Instead of Expedited Calendar. - In an action for modification of child custody order seeking child support, where the trial judge scheduled a hearing on the regular domestic calendar instead of the expedited calendar for domestic court cases, the defendant was not prejudiced by the court's placement of this case as the case was continued within the 60 day requirement of this section. Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428 (1988).


§ 50-37. Enforcement authority of child support hearing officer; contempt.

When a child support case is before a child support hearing officer for enforcement of a child support order, the hearing officer has the same authority that a district court judge would have, except in cases of contempt. Orders that commit a party to jail for civil or criminal contempt for the nonpayment of child support, or for otherwise failing to comply with a child support order, may be entered only by a district court judge. When it appears to a hearing officer that there is probable cause for finding such contempt in a case before the child support hearing officer and that no other enforcement remedy would be effective or sufficient, the hearing officer shall enter an order finding probable cause and referring the case for hearing before a district court judge. The order may indicate the amount of payment the responsible parent may make, or other action he may take, or both, to comply with the child support order. If proof of compliance is made to the hearing officer within a time specified in the order, the hearing officer may cancel the referral of the contempt case to district court. Except as specifically limited by this section, a clerk or magistrate acting as a child support hearing officer retains all of the contempt powers he or she otherwise has by virtue of being a clerk or magistrate.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1.)

§ 50-38. Appeal from orders of the child support hearing officer.

  1. Appeal; Hearing De Novo. - Any party may appeal an order of a child support hearing officer for a hearing de novo before a district court judge by giving notice of appeal at the hearing or in writing within 10 days after entry of judgment. Upon appeal noted, the clerk of superior court shall place the case on the civil issue docket of the district court. The chief district court judge shall establish a procedure for such transferred cases to be given priority for hearing before a district court judge. Unless appealed from, the order of the hearing officer is final.
  2. Order Not Stayed Pending Appeal. - Appeal from an order of a child support hearing officer does not stay the execution or enforcement of the order unless, on application of the appellant, a district court judge orders such a stay.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1.)

§ 50-39. Qualifications of child support hearing officer.

  1. Qualifications. - A clerk or assistant clerk of superior court or a magistrate, to be designated and serve as a child support hearing officer, shall satisfy each of the following qualifications:
    1. Be at least 21 years of age and not older than 70 years of age, and have a high school degree or its equivalent.
    2. Be qualified by training and temperament to be effective in relating to parties in child support cases and in conducting hearings fairly and efficiently.
    3. Be certified by the Administrative Office of the Courts as having completed the training required by subsection (b).
    4. Establish that he has one of the following qualifications;
      1. Election or appointment as the clerk of superior court; or
      2. Three years experience as an assistant clerk of superior court working in child support or related matters; or
      3. Six years experience as an assistant clerk of superior court; or
      4. Four years experience as a magistrate whose duties have included, in substantial part, the disposition of civil matters; or
      5. Pursuant to G.S. 7A-171.1, five to seven years eligibility for pay as a magistrate; or
      6. Three years experience working in the field of child support enforcement or a related field.
  2. Training Required. - Before a clerk or assistant clerk or a magistrate may conduct hearings as a child support hearing officer he must satisfactorily complete a course of instruction in the conduct of such hearings established by the Administrative Office of the Courts. The Administrative Office of the Courts shall establish a course in the conduct of such hearings. The Administrative Office of the Courts may contract with qualified educational organizations to conduct the course of instruction and must reimburse the clerks or magistrates attending for travel and subsistence incurred in taking such training.

History

(1985 (Reg. Sess., 1986), c. 993, s. 1.)

§ 50-40: Reserved for future codification purposes.

ARTICLE 3. Family Law Arbitration Act.

Sec.

§ 50-41. Purpose; short title.

  1. It is the policy of this State to allow, by agreement of all parties, the arbitration of all issues arising from a marital separation or divorce, except for the divorce itself, while preserving a right of modification based on substantial change of circumstances related to alimony, child custody, and child support. Pursuant to this policy, the purpose of this Article is to provide for arbitration as an efficient and speedy means of resolving these disputes, consistent with Chapters 50, 50A, 50B, 51, 52, 52B, and 52C of the General Statutes and similar legislation, to provide default rules for the conduct of arbitration proceedings, and to assure access to the courts of this State for proceedings ancillary to this arbitration.
  2. This Article may be cited as the North Carolina Family Law Arbitration Act.

History

(1999-185, s. 1.)

Legal Periodicals. - For legislative survey on family and juvenile law, see 22 Campbell L. Rev. 253 (2000).

For article, "Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making,” see 68 Duke L.J. 1324 (2019).

CASE NOTES

Cited in Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd, 359 N.C. 65, 602 S.E.2d 360 (2004); Stokes v. Crumpton, 369 N.C. 713, 800 S.E.2d 41 (June 9, 2017).


§ 50-42. Arbitration agreements made valid, irrevocable, and enforceable.

  1. During, or after marriage, parties may agree in writing to submit to arbitration any controversy, except for the divorce itself, arising out of the marital relationship. Before marriage, parties may agree in writing to submit to arbitration any controversy, except for child support, child custody, or the divorce itself, arising out of the marital relationship. This agreement is valid, enforceable, and irrevocable except with both parties' consent, without regard to the justiciable character of the controversy and without regard to whether litigation is pending as to the controversy.
  2. This Article does not apply to an agreement to arbitrate in which a provision stipulates that this Article does not apply or to any arbitration or award under an agreement in which a provision stipulates that this Article does not apply.

History

(1999-185, s. 1.)

§ 50-42.1. Nonwaivable provisions.

  1. Except as otherwise provided in subsections (b) and (c) of this section or in this Article, a party to an agreement to arbitrate or an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of this Article to the extent provided by law. Any waiver or agreement must be in writing.
  2. Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not:
    1. Waive or agree to vary the effect of the requirements of G.S. 50-42, 50-49(a), (b), or (c), 50-58, or 50-59.
    2. Agree to unreasonably restrict the right to notice of the initiation of an arbitration proceeding under G.S. 50-42.2(a) or (b).
    3. Agree to unreasonably restrict the right to disclosure of any facts by a neutral arbitrator under G.S. 50-45.1.
  3. Except as otherwise provided in this Article, a party to an agreement to arbitrate or an arbitration proceeding may not waive, or the parties shall not vary the effect of, the requirements of this section or G.S. 50-43, 50-45(f), 50-52 through 50-57, or 50-60 through 50-62.
  4. Any waiver contrary to this section shall not be effective but shall not have the effect of voiding the agreement to arbitrate.

History

(2005-187, s. 1.)

§ 50-42.2. Notice.

  1. A person initiates an arbitration proceeding by giving written notice to the other parties to the agreement to arbitrate in the manner in which the parties have agreed or, in the absence of agreement, by certified or registered mail, return receipt requested, or by service as authorized for the commencement of a civil action under the North Carolina Rules of Civil Procedure.
  2. Unless a person objects to the lack or insufficiency of notice not later than the beginning of the hearing, the person's appearance at the hearing waives the objection.
  3. Except as otherwise provided in this Article, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in the ordinary course of business, regardless of whether the person acquires knowledge of the notice.
  4. A person has notice if the person has knowledge of the notice or has received notice.
  5. A person receives notice when it comes to the person's attention or the notice is delivered at the person's place of residence or place of business or at another location held out by the person as a place of delivery of communications.

History

(2005-187, s. 1.)

§ 50-43. Proceedings to compel or stay arbitration.

  1. On a party's application showing an agreement under G.S. 50-42 and an opposing party's refusal to arbitrate, the court shall order the parties to proceed with the arbitration. If an opposing party denies existence of an agreement to arbitrate, the court shall proceed summarily to determine whether a valid agreement exists and shall order arbitration if it finds for the moving party; otherwise, the application shall be denied.
  2. Upon the application of a party, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. This issue, when in substantial and bona fide dispute, shall be immediately and summarily tried and the court shall order a stay if it finds for the moving party. If the court finds for the opposing party, the court shall order the parties to go to arbitration. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court unless the court otherwise orders.
  3. If an issue referable to arbitration under an alleged agreement is involved in an action or proceeding pending in a court of competent jurisdiction, the application shall be made in that court. Otherwise, the application may be made in any court of competent jurisdiction.
  4. The court shall order a stay in any action or proceeding involving an issue subject to arbitration if an order or an application for arbitration has been made under this section. If the issue is severable, the stay may be with respect to that specific issue only. When the application is made in an action or proceeding, the order compelling arbitration shall include a stay of the court action or proceeding.
  5. An order for arbitration shall not be refused and a stay of arbitration shall not be granted on the ground that the claim in issue lacks merit or because grounds for the claim have not been shown.

History

(1999-185, s. 1; 2005-187, s. 2.)

Editor's Note. - Session Laws 2005-187, s. 2, effective October 1, 2005, and applicable to agreements made on or after that date, added the last two sentences in subsection (b). For applicability, see Editor's note.

§ 50-44. Interim relief and interim measures.

  1. In the case of an arbitration where arbitrators have not yet been appointed, or where the arbitrators are unavailable, a party may seek interim relief directly from a court as provided in subsection (c) of this section. Enforcement shall be granted as provided by the law applicable to the type of interim relief sought.
  2. In all other cases a party shall seek interim measures as described in subsection (d) of this section from the arbitrators. A party has no right to seek interim relief from a court, except that a party to an arbitration governed by this Article may request from the court enforcement of the arbitrators' order granting interim measures and review or modification of any interim measures governing child support or child custody.
  3. In connection with an agreement to arbitrate or a pending arbitration, the court may grant under subsection (a) of this section any of the following:
    1. An order of attachment or garnishment;
    2. A temporary restraining order or preliminary injunction;
    3. An order for claim and delivery;
    4. Appointment of a receiver;
    5. Delivery of money or other property into court;
    6. Notice of lis pendens;
    7. Any relief permitted by G.S. 7B-502, 7B-1902, 50-13.5(d), 50-16.2A, 50-20(h), 50-20(i), or 50-20(i1); or Chapter 50A, Chapter 50B, or Chapter 52C of the General Statutes;
    8. Any relief permitted by federal law or treaties to which the United States is a party; or
    9. Any other order necessary to ensure preservation or availability of assets or documents, the destruction or absence of which would likely prejudice the conduct or effectiveness of the arbitration.
  4. The arbitrators may, at a party's request, order any party to take any interim measures of protection that the arbitrators consider necessary in respect to the subject matter of the dispute, including interim measures analogous to interim relief specified in subsection (c) of this section. The arbitrators may require any party to provide appropriate security, including security for costs as provided in G.S. 50-51, in connection with interim measures.
  5. In considering a request for interim relief or enforcement of interim relief, any finding of fact of the arbitrators in the proceeding shall be binding on the court, including any finding regarding the probable validity of the claim that is the subject of the interim relief sought or granted, except that the court may review any findings of fact or modify any interim measures governing child support or child custody.
  6. Where the arbitrators have not ruled on an objection to their jurisdiction, the findings of the arbitrators shall not be binding on the court until the court has made an independent finding as to the arbitrators' jurisdiction. If the court rules that the arbitrators do not have jurisdiction, the application for interim relief shall be denied.
  7. Availability of interim relief or interim measures under this section may be limited by the parties' prior written agreement, except for relief pursuant to G.S. 7B-502, 7B-1902, 50-13.5(d), 50-20(h), 50B-3, Chapter 52C of the General Statutes; federal law; or treaties to which the United States is a party, whose purpose is to provide immediate, emergency relief or protection.
  8. Arbitrators who have cause to suspect that any child is abused or neglected shall report the case of that child to the director of the department of social services of the county where the child resides or, if the child resides out-of-state, of the county where the arbitration is conducted.
  9. A party seeking interim measures, or any other proceeding before the arbitrators, shall proceed in accordance with the agreement to arbitrate. If the agreement to arbitrate does not provide for a method of seeking interim measures, or for other proceedings before the arbitrators, the party shall request interim measures or a hearing by notifying the arbitrators and all other parties of the request. The arbitrators shall notify the parties of the date, time, and place of the hearing.
  10. A party does not waive the right to arbitrate by proceeding under this section.

History

(1999-185, s. 1; 2005-187, s. 3.)

Editor's Note. - Session Laws 2005-187, s. 3, effective October 1, 2005, and applicable to agreements made on or after that date, added subsection (j). For applicability, see Editor's note.

§ 50-45. Appointment of arbitrators; rules for conducting the arbitration.

  1. Unless the parties otherwise agree in writing, a single arbitrator shall be chosen by the parties to arbitrate all matters in dispute.
  2. If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. The agreement may provide for appointing one or more arbitrators. Upon the application of a party, the court shall appoint arbitrators in any of the following situations:
    1. The method agreed upon by the parties in the arbitration agreement fails or for any reason cannot be followed.
    2. An arbitrator who has already been appointed fails or is unable to act, and a successor has not been chosen by the parties.
    3. The parties cannot agree on an arbitrator.
  3. Arbitrators appointed by the court have all the powers of those arbitrators specifically named in the agreement. In appointing arbitrators, a court shall consult with prospective arbitrators as to their availability and shall refer to each of the following:
    1. The positions and desires of the parties.
    2. The issues in dispute.
    3. The skill, substantive training, and experience of prospective arbitrators in those issues, including their skill, substantive training, and experience in family law issues.
    4. The availability of prospective arbitrators.
  4. The parties may agree in writing to employ an established arbitration institution to conduct the arbitration. If the agreement does not provide a method for appointment of arbitrators and the parties cannot agree on an arbitrator, the court may appoint an established arbitration institution the court considers qualified in family law arbitration to conduct the arbitration.
  5. The parties may agree in writing on rules for conducting the arbitration. If the parties cannot agree on rules for conducting the arbitration, the arbitrators shall select the rules for conducting the arbitration after hearing all parties and taking particular reference to model rules developed by arbitration institutions or similar sources. If the arbitrators cannot decide on rules for conducting the arbitration, upon application by a party, the court may order use of rules for conducting the arbitration, taking particular reference to model rules developed by arbitration institutions or similar sources.
  6. Arbitrators and established arbitration institutions, whether chosen by the parties or appointed by the court, have the same immunity as judges from civil liability for their conduct in the arbitration.
  7. "Arbitration institution" means any neutral, independent organization, association, agency, board, or commission that initiates, sponsors, or administers arbitration proceedings, including involvement in appointment of arbitrators.
  8. The court may award costs under G.S. 50-51(f) in connection with applications and other proceedings under this section.

History

(1999-185, s. 1; 2005-187, s. 4.)

Editor's Note. - Session Laws 2005-187, s. 4, effective October 1, 2005, and applicable to agreements made on or after that date, in subsection (a), substituted "otherwise agree in writing" for "agree otherwise"; added "in writing" in subsections (d) and (e); and in subsection (h), substituted "costs under G.S. 50-51(f)" for "costs, as provided in G.S. 50-51(f)," For applicability, see Editor's note.


§ 50-45.1. Disclosure by arbitrator.

  1. Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and to the arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including:
    1. A financial or personal interest in the outcome of the arbitration proceeding.
    2. An existing or past relationship with any of the parties to the agreement to arbitrate or to the arbitration proceeding, their counsel or representatives, a witness, or other arbitrators.
  2. An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and to the arbitration proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator.
  3. If an arbitrator discloses a fact required by subsection (a) or (b) of this section to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be grounds for vacating an award made by the arbitrator under G.S. 50-54(a)(2).
  4. If the arbitrator did not disclose a fact as required by subsection (a) or (b) of this section, upon timely objection by a party, the court may vacate an award pursuant to G.S. 50-54(a)(2).
  5. An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party is presumed to act with evident partiality under G.S. 50-54(a)(2).
  6. If the parties to an arbitration proceeding agree to the procedures of an arbitration institution or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on those grounds pursuant to G.S. 50-54(a)(2).

History

(2005-187, s. 5.)

§ 50-46. Majority action by arbitrators.

The arbitrators' powers shall be exercised by a majority unless otherwise provided by the parties' written arbitration agreement or this Article.

History

(1999-185, s. 1; 2005-187, s. 6.)

Effect of Amendments. - Session Laws 2005-187, s. 6, effective October 1, 2005, and applicable to agreements made on or after that date, added "parties' written." For applicability, see Editor's note.

§ 50-47. Hearing.

Unless otherwise provided by the parties' written agreement:

  1. The arbitrators shall appoint a time and place for the hearing and notify the parties or their counsel by personal service or by registered or certified mail, return receipt requested, not less than five days before the hearing. Appearance of a party at the hearing waives any claim of deficiency of notice. The arbitrators may adjourn the hearing from time to time as necessary and, on request of a party and for good cause shown, or upon their own motion, may postpone the hearing to a time not later than the date fixed by the written agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. Upon application of a party, the court may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
  2. The parties are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.
  3. All the arbitrators shall conduct the hearing, but a majority may determine any question and may render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.
  4. Upon request of any party or at the election of any arbitrator, the arbitrators shall cause to be made a record of testimony and evidence introduced at the hearing. The arbitrators shall decide how the cost of the record will be apportioned.

History

(1999-185, s. 1; 2005-187, s. 7.)

Effect of Amendments. - Session Laws 2005-187, s. 7, effective October 1, 2005, and applicable to agreements made on or after that date, in the introdutory paragraph, added "parties' written"; and in subdivision (1), added "of a party" following "Appearance" in the second sentence, and added "written" in the third sentence. For applicability, see Editor's note.

§ 50-48. Representation by attorney.

A party has the right to be represented by counsel at any proceeding or hearing under this Article. A waiver of representation prior to a proceeding or hearing is ineffective.

History

(1999-185, s. 1.)

§ 50-49. Witnesses; subpoenas; depositions; court assistance.

  1. The arbitrators have the power to administer oaths and may issue subpoenas for attendance of witnesses and for production of books, records, documents, and other evidence. Subpoenas issued by the arbitrators shall be served and, upon application to the court by a party or the arbitrators, enforced in the manner provided by law for service and enforcement of subpoenas in a civil action.
  2. On the application of a party and for use as evidence, the arbitrators may permit depositions to be taken in the manner and upon the terms the arbitrators designate.
  3. All provisions of law compelling a person under subpoena to testify apply.
  4. The arbitrators or a party with the approval of the arbitrators may request assistance from the court in obtaining discovery and taking evidence, in which event the Rules of Civil Procedure under Chapter 1A of the General Statutes and Chapters 50, 50A, 52B, and 52C of the General Statutes apply. The court may execute the request within its competence and according to its rules on discovery and evidence and may impose sanctions for failure to comply with its orders.
  5. A subpoena may be issued as provided by G.S. 8-59, in which case the witness compensation provisions of G.S. 6-51, 6-53, and 7A-314 shall apply.

History

(1999-185, s. 1.)

§ 50-50: Repealed by Session Laws 2005-187, s. 8, effective October 1, 2005.

§ 50-50.1. Consolidation.

  1. Except as otherwise provided in subsection (c) of this section, upon motion of a party to an agreement or arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if all of the following apply:
    1. There are separate agreements to arbitrate or separate arbitration proceedings between the same parties or one of them is a party to a separate agreement to arbitrate or a separate arbitration with a third party.
    2. The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions.
    3. The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings.
    4. Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.
  2. The court may order consolidation of separate arbitration proceedings as to some claims and allow other claims to be resolved in separate arbitration proceedings.
  3. The court shall not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

History

(2005-187, s. 9.)

§ 50-51. Award; costs.

  1. The award shall be in writing, dated and signed by the arbitrators joining in the award, with a statement of the place where the arbitration was conducted and the place where the award was made. Where there is more than one arbitrator, the signatures of a majority of the arbitrators suffice, but the reason for any omitted signature shall be stated. The arbitrators shall deliver a copy of the award to each party personally or by registered or certified mail, return receipt requested, or as provided in the parties' written agreement. Time of delivery shall be computed from the date of personal delivery or date of mailing.
  2. Unless the parties otherwise agree in writing, the award shall state the reasons upon which it is based.
  3. Unless the parties otherwise agree in writing, the arbitrators may award interest as provided by law.
  4. The arbitrators in their discretion may award specific performance to a party requesting an award of specific performance when that would be an appropriate remedy.
  5. Unless the parties otherwise agree in writing, the arbitrators may not award punitive damages. If arbitrators award punitive damages, they shall state the award in a record and shall specify facts justifying the award and the amount of the award attributable to punitive damages.
  6. Costs:
    1. Unless the parties otherwise agree in writing, awarding of costs of an arbitration shall be in the arbitrators' discretion.
    2. In making an award of costs, the arbitrators may include any or all of the following as costs:
      1. Fees and expenses of the arbitrators, expert witnesses, and translators;
      2. Fees and expenses of counsel, to the extent allowed by law unless the parties otherwise agree in writing, and of an institution supervising the arbitration, if any;
      3. Any other expenses incurred in connection with the arbitration proceedings;
      4. Sanctions awarded by the arbitrators or the court, including those provided by N.C.R. Civ. P. 11 and 37; and
      5. Costs allowed by Chapters 6 and 7A of the General Statutes.
    3. In making an award of costs, the arbitrators shall specify each of the following:
      1. The party entitled to costs;
      2. The party who shall pay costs;
      3. The amount of costs or method of determining that amount; and
      4. The manner in which costs shall be paid.
  7. An award shall be made within the time fixed by the agreement. If no time is fixed by the agreement, the award shall be made within the time the court orders on a party's application. The parties may extend the time in writing either before or after the expiration of this time. A party waives objection that an award was not made within the time required unless that party notifies the arbitrators of his or her objection prior to delivery of the award to that party.

History

(1999-185, s. 1; 2005-187, s. 10.)

Effect of Amendments. - Session Laws 2005-187, s. 10, effective October 1, 2005, and applicable to agreements made on or after that date, in subsection (a), added "the place where the arbitration was conducted and" in the first sentence, and added "parties' written" in the third sentence; in subsections (b), (c), and (e), substituted "otherwise agree in writing" for "agree otherwise"; in subdivision (f)(1), substituted "otherwise agree in writing" for "otherwise agree"; and in subdivision (f)(2)b., added "counsel, to the extent allowed by law unless the parties otherwise agree in writing,". For applicability, see Editor's note.

§ 50-52. Change of award by arbitrators.

  1. On a party's application to the arbitrators or, if an application to the court is pending under G.S. 50-53 through G.S. 50-56, on submission to the arbitrators by the court under the conditions ordered by the court, the arbitrators may modify or correct the award for any of the following reasons:
    1. Upon grounds stated in G.S. 50-55(a)(1) and (a)(3).
    2. If the arbitrators have not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding.
    3. To clarify the award.
  2. The application shall be made within 20 days after delivery of the award to the opposing party. The application must include a statement that the opposing party must serve any objections to the application within 10 days from notice. An award modified or corrected under this section is subject to the provisions of G.S. 50-51(a) through G.S. 50-51(f) and G.S. 50-53 through G.S. 50-56.

History

(1999-185, s. 1; 2005-187, s. 11.)

Effect of Amendments. - Session Laws 2005-187, s. 11, effective October 1, 2005, and applicable to agreements made on or after that date, rewrote the section. For applicability, see Editor's note.

§ 50-53. Confirmation of award.

  1. Unless the parties otherwise agree in writing that part or all of an award shall not be confirmed by the court, upon a party's application, the court shall confirm an award, except when within time limits imposed under G.S. 50-54 through G.S. 50-56 grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in G.S. 50-54 through G.S. 50-56.
  2. The court may award costs, as provided in G.S. 50-51(f), of the application and subsequent proceedings.

History

(1999-185, s. 1; 2003-61, s. 1; 2005-187, s. 12.)

Effect of Amendments. - Session Laws 2005-187, s. 12, effective October 1, 2005, and applicable to agreements made on or after that date, designated the previously undesignated provisions as subsections (a) and (b); in subsection (a), substituted "otherwise agree in writing that part or all of an award shall not be confirmed by the court" for "agree otherwise," and substituted "except when" for "unless." For applicability, see Editor's note.

CASE NOTES

Construction. - Plain language of the Family Law Arbitration Act (FLAA) itself provides a mechanism for vacating an arbitration award upon proof of fraud. G.S. 50-53, 50-54. Clear and convincing evidence is needed to succeed on a motion to vacate based on allegations of fraud. Given this high standard, and the concealment and deception inherent in fraud, post-confirmation discovery naturally follows. Moreover, there is no provision of the FLAA that prohibits post-confirmation discovery, and nothing within the statute limits G.S. 50-54 solely to claims of fraud made pre-confirmation. Stokes v. Crumpton, 369 N.C. 713, 800 S.E.2d 41 (June 9, 2017).


§ 50-54. Vacating an award.

  1. Upon a party's application, the court shall vacate an award for any of the following reasons:
    1. The award was procured by corruption, fraud, or other undue means;
    2. There was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing the rights of a party;
    3. The arbitrators exceeded their powers;
    4. The arbitrators refused to postpone the hearing upon a showing of sufficient cause for the postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to the provisions of G.S. 50-47;
    5. There was no arbitration agreement, the issue was not adversely determined in proceedings under G.S. 50-43, and the party did not participate in the arbitration hearing without raising the objection. The fact that the relief awarded either could not or would not be granted by a court is not a ground for vacating or refusing to confirm the award;
    6. The court determines that the award for child support or child custody is not in the best interest of the child. The burden of proof at a hearing under this subdivision is on the party seeking to vacate the arbitrator's award;
    7. The award included punitive damages, and the court determines that the award for punitive damages is clearly erroneous; or
    8. If the parties contract in an arbitration agreement for judicial review of errors of law in the award, the court shall vacate the award if the arbitrators have committed an error of law prejudicing a party's rights.
  2. An application under this section shall be made within 90 days after delivery of a copy of the award to the applicant. If the application is predicated on corruption, fraud, or other undue means, it shall be made within 90 days after these grounds are known or should have been known.
  3. In vacating an award on grounds other than stated in subdivision (5) of subsection (a) of this section, the court may order a rehearing before arbitrators chosen as provided in the agreement, or in the absence of a provision regarding the appointment of arbitrators, by the court in accordance with G.S. 50-45, except in the case of a vacated award for child support or child custody in which case the court may proceed to hear and determine all such issues. The time within which the agreement requires an award to be made applies to the rehearing and commences from the date of the order.
  4. The court shall confirm the award and may award costs of the application and subsequent proceedings under G.S. 50-51(f) if an application to vacate is denied, no motion to modify or correct the award is pending, and the parties have not agreed in writing that the award shall not be confirmed under G.S. 50-53.

History

(1999-185, s. 1; 2005-187, s. 13.)

Effect of Amendments. - Session Laws 2005-187, s. 13, effective October 1, 2005, and applicable to agreements made on or after that date, rewrote subsection (d). For applicability, see Editor's note.

Legal Periodicals. - For comment, "The Road Not Often Taken: Alternative Dispute Resolution for Common Interest Communities in North Carolina," see 30 Campbell L. Rev. 315 (2008).

CASE NOTES

No Basis to Vacate Order. - Although a husband argued an arbitrator erred in concluding the appreciation in the balance of an investment account contained no separate property, as defined in G.S. 50-20(b)(2), there was no evident mistake in the arbitrator's decision to not classify a rollover from a separate brokerage account into the investment account during the marriage as separate property because there were several transfers in the brokerage account during the marriage and trading activity occurred in the investment account after the transfer; the husband was not entitled to vacate the arbitrator's award under the Family Law Arbitration Act, G.S. 50-54(a)(8). Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Construction. - Although a husband argued an arbitrator erred in conferring the status of marital property, as defined in G.S. 50-20(b)(1), upon the appreciation in the balance of an investment account, the husband was not entitled to vacate the arbitrator's order, pursuant to the Family Law Arbitration Act, G.S. 50-54(a)(8), because the balance increase, which occurred between the date of marriage and the date of separation, was the result of the husband's substantial activity; the husband testified he met with the broker every month or two and authorized every trade, and the evidence reflected frequent trading activity during the time of marriage and the date of separation. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Plain language of the Family Law Arbitration Act (FLAA) itself provides a mechanism for vacating an arbitration award upon proof of fraud. Clear and convincing evidence is needed to succeed on a motion to vacate based on allegations of fraud. Given this high standard, and the concealment and deception inherent in fraud, post-confirmation discovery naturally follows. Moreover, there is no provision of the FLAA that prohibits post-confirmation discovery, and nothing within the statute limits G.S. 50-54 solely to claims of fraud made pre-confirmation. Stokes v. Crumpton, 369 N.C. 713, 800 S.E.2d 41 (June 9, 2017).


§ 50-55. Modification or correction of award.

  1. Upon application made within 90 days after delivery of a copy of an award to an applicant, the court shall modify or correct the award where at least one of the following occurs:
    1. There is an evident miscalculation of figures or an evident mistake in the description of a person, thing, or property referred to in the award;
    2. The arbitrators have awarded upon a matter not submitted to them, and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
    3. The award is imperfect in a matter of form, not affecting the merits of the controversy.
  2. If the application is granted, the court shall modify or correct the award to effect its intent and shall confirm the award as modified or corrected. Otherwise, the court shall confirm the award as made.
  3. An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
  4. The court may award costs, as provided in G.S. 50-51(f), of the application and subsequent proceedings.

History

(1999-185, s. 1.)

CASE NOTES

No Evident Miscalculation or Mistake. - Although a husband argued the fraction an arbitrator used to determine the marital portion of the husband's retirement plan account was not in accordance with the directive of G.S. 50-20.1(d), the arbitrator's determination was not an evident mistake under the Family Law Arbitration Act, G.S. 50-55(a)(1), because even though the husband worked for the employer from 1977 through 2000, the husband only participated in the plan from 1989 through 2000; the husband determined the award was to be premised upon the time the marriage existed, simultaneous with the employment that earned the benefit, for a total of 34 months, as compared to the time the husband participated in the retirement plan, 123 months. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

No Evident Miscalculation or Mistake. - Arbitrator's finding that the diminution in value of a husband's vehicle was properly within the definition of divisible property, pursuant to G.S. 50-20(b)(4), was not an evident miscalculation or mistake under the Family Law Arbitration Act, G.S. 50-55, because the basis for the vehicle's decrease in value could not be attributed to the actions of one spouse and occurred after the date of separation; the arbitrator made the uncontested finding that the post-separation decrease in the value of the vehicle was $13,000. Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).

Modification Warranted. - Trial court erred in confirming an arbitration award regarding the value of a husband's pension plan and a wife's 401(k) account and modification was warranted under the Family Law Arbitration Act, N.C. G.S. 50-55(a)(1) because the confirmed values did not reflect the account values as of the date of the separation of the parties, as required by G.S. 50-21(b). Barton v. Barton, 215 N.C. App. 235, 715 S.E.2d 529 (2011).


§ 50-56. Modification of award for alimony, postseparation support, child support, or child custody based on substantial change of circumstances.

  1. A court or the arbitrators may modify an award for postseparation support, alimony, child support, or child custody under conditions stated in G.S. 50-13.7 and G.S. 50-16.9 as provided in subsections (b) through (f) of this section.
  2. Unless the parties have agreed in writing that an award for postseparation support or alimony shall be nonmodifiable, an award by arbitrators for postseparation support or alimony under G.S. 50-16.2A, 50-16.3A, 50-16.4, or 50-16.7 may be modified if a court order for alimony or postseparation support could be modified under G.S. 50-16.9.
  3. An award by arbitrators for child support or child custody may be modified if a court order for child support or child custody could be modified under G.S. 50-13.7.
  4. If an award for modifiable postseparation support or alimony, or an award for child support or child custody, has not been confirmed under G.S. 50-53, upon the parties' written agreement these matters may be submitted to arbitrators chosen by the parties under G.S. 50-45. G.S. 50-52 through G.S. 50-56 shall apply to this modified award.
  5. If an award for modifiable postseparation support or alimony, or an award for child support or child custody has been confirmed pursuant to G.S. 50-53, upon the parties' agreement in writing and joint motion, the court may remit these matters to arbitrators chosen by the parties as provided in G.S. 50-45, in which case G.S. 50-52 through G.S. 50-56 apply to this modified award.
  6. Except as otherwise provided in this section, the provisions of G.S. 50-55 apply to modifications or corrections of awards for postseparation support, alimony, child support, or child custody.

History

(1999-185, s. 1; 2005-187, s. 14.)

Effect of Amendments. - Session Laws 2005-187, s. 14, effective October 1, 2005, and applicable to agreements made on or after that date, in subsection (a), substituted "as provided" for "in accordance with procedures stated"; in subsection (b), added "in writing" and substituted "under" for "pursuant to" preceding "G.S. 50-16.9"; in subsection (c), substituted "under" for "pursuant to"; in subsection (d), substituted "under" for "pursuant to", added "written", substituted "under G.S. 50-45" for "as provided in G.S. 50-45, in which case", and added "shall"; and in subsection (e), added "in writing." For applicability, see Editor's note.


§ 50-57. Orders or judgments on award.

  1. Upon granting an order confirming, modifying, or correcting an award, an order or judgment shall be entered in conformity with the order and docketed and enforced as any other order or judgment. The court may award costs, as provided in G.S. 50-51(f), of the application and of proceedings subsequent to the application and disbursements.
  2. Notwithstanding G.S. 7A-109, 7A-276.1, or 132-1 or similar law, the court, in its discretion, may order that any arbitration award or order or any judgment or court order entered as a court order or judgment under this Article, or any part of the arbitration award or order or judgment or court order, be sealed, to be opened only upon order of the court upon good cause shown. Upon good cause shown, the court may order resealing of the opened arbitration awards or orders or judgments or court orders. The court, in its discretion, may order that any arbitration award or order or any judgment or court order entered as a court order or judgment under this Article, or any part of the arbitration award or order or judgment or court order, be redacted, the redactions to be opened only upon order of the court upon good cause shown. Upon good cause shown, the court may order redaction of the previously redacted arbitration awards or orders or judgments or court orders opened under the court's order.

History

(1999-185, s. 1; 2005-187, s. 15.)

Effect of Amendments. - Session Laws 2005-187, s. 15, effective October 1, 2005, and applicable to agreements made on or after that date, designated the previously undesignated paragraph as subsection (a), and added subsection (b). For applicability, see Editor's note.

§ 50-58. Applications to the court.

Except as otherwise provided, an application to a court under this Article shall be by motion and shall be heard in the manner and upon notice provided by law or rule of court for making and hearing motions in civil actions. Unless the parties otherwise agree in writing, notice of an initial application for an order shall be served in the manner provided by law for service of summons in civil actions.

History

(1999-185, s. 1; 2005-187, s. 16.)

Effect of Amendments. - Session Laws 2005-187, s. 16, effective October 1, 2005, and applies to agreements made on or after that date, substituted "otherwise agree in writing" for "agree otherwise" in the second sentence. For applicability, see Editor's note.

§ 50-59. Court; jurisdiction; other definitions.

  1. The term "court" means a court of competent jurisdiction of this State. Making an agreement in this State described in G.S. 50-42 or any agreement providing for arbitration in this State or under its laws confers jurisdiction on the court to enforce the agreement under this Article and to enter judgment on an award under the agreement.
  2. The term "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

History

(1999-185, s. 1; 2005-187, s. 17.)

Effect of Amendments. - Session Laws 2005-187, s. 17, effective October 1, 2005, and applicable to agreements made on or after that date, added "other definitions" to the section heading; designated the previously undesignated paragraph as subsection (a); and added subsection (b). For applicability, see Editor's note.

§ 50-60. Appeals.

  1. An appeal may be based on failure to comply with the procedural aspects of this Article. An appeal may be taken from any of the following:
    1. An order denying an application to compel arbitration made under G.S. 50-43;
    2. An order granting an application to stay arbitration made under G.S. 50-43(b);
    3. An order confirming or denying confirmation of an award;
    4. An order modifying or correcting an award;
    5. An order vacating an award without directing a rehearing; or
    6. A judgment entered pursuant to provisions of this Article.
  2. Unless the parties contract in an arbitration agreement for judicial review of errors of law as provided in G.S. 50-54(a), a party may not appeal on the basis that the arbitrator failed to apply correctly the law under Chapters 50, 50A, 52B, or 52C of the General Statutes.
  3. The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

History

(1999-185, s. 1.)

CASE NOTES

Interlocutory Order. - Court of appeals did not review a father's appeal from an order denying his motions seeking post-award discovery because the interlocutory order was not a judgment under the Family Law Arbitration Act, and the father did not demonstrate that the interlocutory order deprived him of a substantial right. Stokes v. Crumpton, 246 N.C. App. 757, 784 S.E.2d 537 (2016).

Judgment. - Language, "a judgment entered pursuant to provisions of this Article," suggests the courts construe "judgment" in pari materia and identify other uses of the term in the Family Law Arbitration Act; in G.S. 50-57(a) and 50-59(a), "judgment" refers to a court's final ruling after confirmation, modification, or correction of the arbitration award and, thus, a "judgment entered pursuant to provisions of this Article," is a final judgment, similar to the Revised Uniform Arbitration Act. Stokes v. Crumpton, 246 N.C. App. 757, 784 S.E.2d 537 (2016).

Cited in Stokes v. Crumpton, 369 N.C. 713, 800 S.E.2d 41 (June 9, 2017).


§ 50-61. Article not retroactive.

This Article applies to agreements made on or after October 1, 1999, unless parties by separate written agreement after that date state that this Article shall apply to agreements dated before October 1, 1999.

History

(1999-185, s. 1; 2005-187, s. 18.)

Effect of Amendments. - Session Laws 2005-187, s. 18, effective October 1, 2005, and applies to agreements made on or after that date, added "written." For applicability, see Editor's note.

§ 50-62. Construction; uniformity of interpretation.

  1. Certain provisions of this Article have been adapted from the Uniform Arbitration Act formerly in force in this State, the Revised Uniform Arbitration Act in force in this State, the North Carolina International Commercial Arbitration and Conciliation Act, and Chapters 50, 50A, 50B, 51, 52, and 52C of the General Statutes. This Article shall be construed to effect its general purpose to make uniform provisions of these Acts and Chapters 50, 50A, 50B, 51, 52, 52B, and 52C of the General Statutes.
  2. The provisions of this Article governing the legal effect, validity, or enforceability of electronic records or electronic signatures, or of contracts performed with the use of these records or signatures, conform to the requirements of section 102 of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, et seq., or as otherwise authorized by federal or State law governing these electronic records or electronic signatures.

History

(1999-185, s. 1; 2005-187, s. 19.)

Effect of Amendments. - Session Laws 2005-187, s. 19, effective October 1, 2005, and applies to agreements made on or after that date, designated the previously undesignated paragraph as subsection (a); in subsection (a), added "formerly" and "the Revised Uniform Arbitration Act in force in this State"; and added subsection (b). For applicability, see Editor's note.

CASE NOTES

Cited in Stokes v. Crumpton, 369 N.C. 713, 800 S.E.2d 41 (June 9, 2017).


§§ 50-63 through 50-69: Reserved for future codification purposes.

ARTICLE 4. Collaborative Law Proceedings.

Sec.

§ 50-70. Collaborative law.

As an alternative to judicial disposition of issues arising in a civil action under this Article, except for a claim for absolute divorce, on a written agreement of the parties and their attorneys, a civil action may be conducted under collaborative law procedures as set forth in this Article.

History

(2003-371, s. 1.)

Legal Periodicals. - For comment, "Putting 'Counselor' Back in the Lawyer's Job Description: Why More States Should Adopt Collaborative Law Statutes," see 84 N.C. L. Rev. 979 (2006).

For article, "Growing Pains: Changes in Collaborative Law and the Challenge of Legal Ethics," see 30 Campbell L. Rev. 237 (2008).

For comment, "Working Around the Withdrawal Agreement: Statutory Evidentiary Safeguards Negate the Need for a Withdrawal Agreement in Collaborative Law Proceedings," see 30 Campbell L. Rev. 363 (2008).

For article, "Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina," 87 N.C.L. Rev. 1910 (2009).

For article, "Inn Fein Amhain: Taking Collaborative Law Beyond Divorce," see 52 Wake Forest L. Rev. 139 (2017).

§ 50-71. Definitions.

As used in this article, the following terms mean:

  1. Collaborative law. - A procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties' attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.
  2. Collaborative law agreement. - A written agreement, signed by a husband and wife and their attorneys, that contains an acknowledgement by the parties to attempt to resolve the disputes arising from their marriage in accordance with collaborative law procedures.
  3. Collaborative law procedures. - The process for attempting to resolve disputes arising from a marriage as set forth in this Article.
  4. Collaborative law settlement agreement. - An agreement entered into between a husband and wife as a result of collaborative law procedures that resolves the disputes arising from the marriage of the husband and wife.
  5. Third-party expert. - A person, other than the parties to a collaborative law agreement, hired pursuant to a collaborative law agreement to assist the parties in the resolution of their disputes.

History

(2003-371, s. 1.)

Legal Periodicals. - For comment, "Working Around the Withdrawal Agreement: Statutory Evidentiary Safeguards Negate the Need for a Withdrawal Agreement in Collaborative Law Proceedings," see 30 Campbell L. Rev. 363 (2008).

§ 50-72. Agreement requirements.

A collaborative law agreement must be in writing, signed by all the parties to the agreement and their attorneys, and must include provisions for the withdrawal of all attorneys involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute.

History

(2003-371, s. 1.)

Legal Periodicals. - For comment, "Working Around the Withdrawal Agreement: Statutory Evidentiary Safeguards Negate the Need for a Withdrawal Agreement in Collaborative Law Proceedings," see 30 Campbell L. Rev. 363 (2008).

§ 50-73. Tolling of time periods.

A validly executed collaborative law agreement shall toll all legal time periods applicable to legal rights and issues under law between the parties for the amount of time the collaborative law agreement remains in effect. This section applies to any applicable statutes of limitations, filing deadlines, or other time limitations imposed by law or court rule, including setting a hearing or trial in the case, imposing discovery deadlines, and requiring compliance with scheduling orders.

History

(2003-371, s. 1.)

§ 50-74. Notice of collaborative law agreement.

  1. No notice shall be given to the court of any collaborative law agreement entered into prior to the filing of a civil action under this Article.
  2. If a civil action is pending, a notice of a collaborative law agreement, signed by the parties and their attorneys, shall be filed with the court. After the filing of a notice of a collaborative law agreement, the court shall take no action in the case, including dismissal, unless the court is notified in writing that the parties have done one of the following:
    1. Failed to reach a collaborative law settlement agreement.
    2. Both voluntarily dismissed the action.
    3. Asked the court to enter a judgment or order to make the collaborative law settlement agreement an act of the court in accordance with G.S. 50-75.

History

(2003-371, s. 1.)

§ 50-75. Judgment on collaborative law settlement agreement.

A party is entitled to an entry of judgment or order to effectuate the terms of a collaborative law settlement agreement if the agreement is signed by each party to the agreement.

History

(2003-371, s. 1.)

§ 50-76. Failure to reach settlement; disposition by court; duty of attorney to withdraw.

  1. If the parties fail to reach a settlement and no civil action has been filed, either party may file a civil action, unless the collaborative law agreement first provides for the use of arbitration or alternative dispute resolution.
  2. If a civil action is pending and the collaborative law procedures do not result in a collaborative law settlement agreement, upon notice to the court, the court may enter orders as appropriate, free of the restrictions of G.S. 50-74(b).
  3. If a civil action is filed or set for trial pursuant to subsection (a) or (b) of this section, the attorneys representing the parties in the collaborative law proceedings may not represent either party in any further civil proceedings and shall withdraw as attorney for either party.

History

(2003-371, s. 1.)

§ 50-77. Privileged and inadmissible evidence.

  1. All statements, communications, and work product made or arising from a collaborative law procedure are confidential and are inadmissible in any court proceeding. Work product includes any written or verbal communications or analysis of any third-party experts used in the collaborative law procedure.
  2. All communications and work product of any attorney or third-party expert hired for purposes of participating in a collaborative law procedure shall be privileged and inadmissible in any court proceeding, except by agreement of the parties.

History

(2003-371, s. 1.)

Legal Periodicals. - For comment, "Working Around the Withdrawal Agreement: Statutory Evidentiary Safeguards Negate the Need for a Withdrawal Agreement in Collaborative Law Proceedings," see 30 Campbell L. Rev. 363 (2008).

§ 50-78. Alternate dispute resolution permitted.

Nothing in this Article shall be construed to prohibit the parties from using, by mutual agreement, other forms of alternate dispute resolution, including mediation or binding arbitration, to reach a settlement on any of the issues included in the collaborative law agreement. The parties' attorneys for the collaborative law proceeding may also serve as counsel for any form of alternate dispute resolution pursued as part of the collaborative law agreement.

History

(2003-371, s. 1.)

§ 50-79. Collaborative law procedures surviving death.

Consistent with G.S. 50-20(l) , the personal representative of the estate of a deceased spouse may continue a collaborative law procedure with respect to equitable distribution that has been initiated by a collaborative law agreement prior to death, notwithstanding the death of one of the spouses. The provisions of G.S. 50-73 shall apply to time limits applicable under G.S. 50-20(l) for collaborative law procedures continued pursuant to this section.

History

(2003-371, s. 1.)

§§ 50-80 through 50-89: Reserved for future codification purposes.

ARTICLE 5. Parenting Coordinator.

Sec.

§ 50-90. Definitions.

As used in this Article, the following terms mean:

  1. High-conflict case. - A child custody action involving minor children brought under Article 1 of this Chapter where the parties demonstrate an ongoing pattern of any of the following:
    1. Excessive litigation.
    2. Anger and distrust.
    3. Verbal abuse.
    4. Physical aggression or threats of physical aggression.
    5. Difficulty communicating about and cooperating in the care of the minor children.
    6. Conditions that in the discretion of the court warrant the appointment of a parenting coordinator.
  2. Minor child. - A person who is less than 18 years of age and who is not married or legally emancipated.
  3. Parenting coordinator. - An impartial person who meets the qualifications of G.S. 50-93.
  4. Party. - Any person granted legal or physical custodial rights to a child in a child custody action.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, added subdivision (4).

CASE NOTES

Necessary Findings. - Trial court erred in appointing a parenting coordinator without making the necessary specific findings. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901 (2008).

Ability to pay for coordinator. - There is no affirmative duty to require the parties to produce evidence of their ability to pay for a parenting coordinator if one is not appointed. Therefore, a trial court did not err by denying a motion for a parenting coordinator in a high conflict child custody case since the parties more than likely lacked the ability to pay for such. Thomas v. Thomas, 233 N.C. App. 736, 757 S.E.2d 375 (2014).


§ 50-91. Appointment of parenting coordinator.

  1. The court may appoint or reappoint a parenting coordinator at any time in a child custody action involving minor children brought under Article 1 of this Chapter on or after the entry of a custody order, other than an ex parte order, or upon entry of a contempt order involving a custody issue pursuant to any of the following:
    1. All parties consent to the appointment and the scope of the parenting coordinator's authority.
    2. Upon motion of a party requesting the appointment of a parenting coordinator.
    3. Upon the court's own motion.
  2. If the parties have not consented to the appointment of a parenting coordinator, the court shall make specific findings that the action is a high-conflict case, that the appointment of the parenting coordinator is in the best interests of any minor child in the case, and that the parties are able to pay for the cost of the parenting coordinator. The court does not have to find a substantial change of circumstance has occurred to appoint a parenting coordinator.
  3. The order appointing a parenting coordinator shall specify the terms of the appointment and the issues the parenting coordinator is directed to assist the parties in resolving and deciding. Notwithstanding the appointment of a parenting coordinator, the court shall retain exclusive jurisdiction to determine fundamental issues of custody, visitation, and support, and the authority to exercise management and control of the case.
  4. The parenting coordinator shall be selected from a list maintained by the district court. Prior to the appointment, the court, the parties' attorneys, or the parties shall contact the parenting coordinator to determine if the parenting coordinator is willing and able to accept the appointment.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

CASE NOTES

Necessary Findings. - Trial court erred in appointing a parenting coordinator without making the necessary specific findings. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901 (2008).

Appointment Proper. - Trial court permissibly appointed a parenting coordinator after finding that the case involved a high degree of conflict, the parties were able to pay for a coordinator, and such appointment was in the best interest of the child. Jackson v. Jackson, 192 N.C. App. 455, 665 S.E.2d 545 (2008).

Ability to pay. - There is no affirmative duty to require the parties to produce evidence of the parties' ability to pay for a parenting coordinator if one is not appointed. Therefore, a trial court did not err by denying a motion for a parenting coordinator in a high conflict child custody case since the parties more than likely lacked the ability to pay for such. Thomas v. Thomas, 233 N.C. App. 736, 757 S.E.2d 375 (2014).


§ 50-92. Authority of parenting coordinator.

  1. The authority of a parenting coordinator shall be specified in the court order appointing the parenting coordinator and shall be limited to matters that will aid the parties in complying with the court's custody order, resolving disputes regarding issues that were not specifically addressed in the custody order, or ambiguous or conflicting terms in the custody order. The parenting coordinator's scope of authority may include, but is not limited to, any of the following areas:
    1. Transition time, pickup, or delivery.
    2. Sharing of vacations and holidays.
    3. Method of pickup and delivery.
    4. Transportation to and from visitation.
    5. Participation in child or day care and babysitting.
    6. Bed time.
    7. Diet.
    8. Clothing.
    9. Recreation.
    10. Before- and after-school activities.
    11. Extracurricular activities.
    12. Discipline.
    13. Health care management.
    14. Alterations in schedule that do not substantially interfere with the basic time-share agreement.
    15. Participation in visitation, including significant others or relatives.
    16. Telephone contact.
    17. Alterations to appearance, including tattoos or piercings.
    18. The child's passport.
    19. Education.
    20. Other areas of specific authority as designated by the court or the parties.
  2. The parenting coordinator shall decide any issue within the scope of the parenting coordinator's authority, and the decision shall be enforceable as an order of the court. The decision shall be in writing and provided to the parties and their attorneys. So long as the custody order under which the decision is made is in effect, the decision shall remain binding after the expiration of the parenting coordinator's term unless the parenting coordinator or a subsequent parenting coordinator modifies the decision or the court reviews and modifies the decision.
  3. Any party or attorney for the party may file a motion for the court to review a parenting coordinator's decision. The parties shall comply with the parenting coordinator's decision unless the court, after a review hearing, determines that (i) the parenting coordinator's decision is not in the child's best interests or (ii) the decision exceeded the scope of the parenting coordinator's authority. The moving party or the attorney for the moving party shall cause a subpoena to be issued for the parenting coordinator's attendance at the review hearing. At the conclusion of the review hearing, the court shall determine how the parenting coordinator's fees, as related to the review hearing, shall be apportioned between the parties. The court may review and modify a parenting coordinator's decision after the expiration of a parenting coordinator's term.
  4. The parenting coordinator shall not provide any professional services or counseling to any party or any of the minor children.
  5. The parenting coordinator shall refer financial issues related to the parenting coordinator's decisions to the parties or their attorneys.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

§ 50-93. Qualifications.

  1. To be eligible to be included on the district court's list of parenting coordinators, a person must meet all of the following requirements:
    1. Hold a masters or doctorate degree in psychology, law, social work, or counseling.
    2. Have at least five years of related professional post-degree experience.
    3. Hold a current North Carolina license in the parenting coordinator's area of practice.
    4. Participate in 24 hours of training in topics related to the developmental stages of children, the dynamics of high-conflict families, the stages and effects of divorce, problem solving techniques, mediation, and legal issues.
  2. In order to remain eligible as a parenting coordinator, the person must also attend parenting coordinator seminars that provide continuing education, group discussion, and peer review and support.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, substituted "or counseling" for "medicine, or a related subject area" in subdivision (a)(1), and, in subdivision (a)(3), inserted "North Carolina" and deleted "if applicable" at the end.

§ 50-94. Appointment conference.

  1. The parties, their attorneys, and the proposed parenting coordinator must all attend the appointment conference. However, no appointment conference is required if (i) the parenting coordinator's term is later extended, (ii) a subsequent parenting coordinator is appointed in the same matter, or (iii) the parties, their attorneys, and the proposed parenting coordinator consent to a waiver of the appointment conference by signing the proposed appointment order. The court shall not enter an order appointing a parenting coordinator or conduct an appointment conference unless a custody order has already been entered or is being simultaneously entered.
  2. At the time of the appointment conference, the court shall do all of the following:
    1. Explain to the parties the parenting coordinator's role, authority, and responsibilities as specified in the appointment order and any agreement entered into by the parties.
    2. Repealed by Session Laws 2019-172, s. 2, effective October 1, 2019.
    3. Determine financial arrangements for the parenting coordinator's fee to be paid by each party and authorize the parenting coordinator to charge any party separately for individual contacts made necessary by that party's behavior.
    4. Inform the parties, their attorneys, and the parenting coordinator of the rules regarding communications among them and with the court.
    5. Enter the appointment order if the order has not yet been entered.
  3. Repealed by Session Laws 2019-172, s. 2, effective October 1, 2019.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote subsection (a); deleted subdivision (b)(2); added "if the order has not yet been entered" in subdivision (b)(5); and deleted subsection (c).

CASE NOTES

Cited in McKyer v. McKyer, 182 N.C. App. 456, 642 S.E.2d 527 (2007).


§ 50-95. Fees.

  1. The parenting coordinator shall be entitled to reasonable compensation from the parties for services rendered and to a reasonable retainer. If a dispute arises regarding the payment of fees or the retainer, the parenting coordinator may file a fee report and request a hearing. If a party disputes the parenting coordinator's fees or the allocation of those fees, the party may file a motion with the court requesting that the court review the fees. The district court retains jurisdiction to resolve disputes regarding the parenting coordinator's fees after the conclusion of the parenting coordinator's term so long as the parenting coordinator's fee report was filed in a timely manner.
  2. Repealed by Session Laws 2019-172, s. 2, effective October 1, 2019.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, in subsection (a), deleted the former second sentence, which read: "The parenting coordinator may request a hearing in the event of a fee dispute.", and added the present second through fourth sentences; and deleted subsection (b).

§ 50-96. Meetings and communications.

Meetings and communications between the parenting coordinator and the parties, the attorneys for the parties, or any other person with information that assists the parenting coordinator in the coordinator's duties may be informal and ex parte. Communications between the parties and the parenting coordinator are not confidential. The parenting coordinator and the court shall not engage in any ex parte communications. Upon request of the parenting coordinator, the parties shall timely execute any releases necessary to facilitate communication with any person having information that assists the parenting coordinator in the coordinator's duties. The parenting coordinator, in the coordinator's discretion, may meet or communicate with the minor children.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

§ 50-97. Reports.

  1. The parenting coordinator may file a report with the court regarding any of the following:
    1. The parenting coordinator's belief that the existing custody order is not in the best interests of the child.
    2. The parenting coordinator's determination that the parenting coordinator is not qualified to address or resolve certain issues in the case.
    3. A party's noncompliance with a decision of the parenting coordinator or the terms of the custody order.
    4. The parenting coordinator's fees as set forth in G.S. 50-95.
    5. The parenting coordinator's request that the parenting coordinator's appointment be modified or terminated.
  2. Upon the filing of a verified report by the parenting coordinator alleging that a party is not complying with a decision of the parenting coordinator, not complying with the terms of the custody order, or not paying the parenting coordinator's fees, the court may issue an order directing a party to appear at a specified reasonable time and show cause why the party shall not be held in contempt. Nothing in this section prevents a party from filing the party's own motion regarding noncompliance with a parenting coordinator's decision or noncompliance with the terms of the custody order.
  3. An expedited hearing shall be granted and shall occur within four weeks of the filing of the report unless the parenting coordinator requests a longer length of time or the court has already issued an order directing a party to show cause why the party shall not be held in contempt.
  4. The court, after a hearing on the parenting coordinator's report, shall be authorized to issue temporary custody orders as may be required for a child's best interests.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

§ 50-98. Parenting coordinator records.

  1. In the parenting coordinator's discretion, the parenting coordinator may release any records held by the parenting coordinator to the parties or the attorneys for the parties.
  2. Any party may apply to the judge presiding for the issuance of a subpoena to compel production of the parenting coordinator's records. Any party who submits an application for a subpoena shall provide reasonable notice to the parenting coordinator and the parties so that any objection to the release of information or the manner of the release of information may be considered prior to the issuance of a subpoena.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

§ 50-99. Modification or termination of parenting coordinator appointment.

  1. For good cause shown, the court may terminate or modify the parenting coordinator appointment upon motion of any party, upon the agreement of the parties, or by the court on its own motion.
  2. For good cause shown, the court may modify or terminate the parenting coordinator's appointment upon request of the parenting coordinator as set forth in G.S. 50-97(a)(5).
  3. For purposes of termination or modification of the parenting coordinator's appointment, good cause may include, but is not limited to, any of the following:
    1. The lack of reasonable progress.
    2. A determination that the parties no longer need the assistance of a parenting coordinator.
    3. Impairment on the part of a party that significantly interferes with the party's participation in the process.
    4. The inability or unwillingness of the parenting coordinator to continue to serve.

History

(2005-228, s. 1; 2019-172, s. 2.)

Effect of Amendments. - Session Laws 2019-172, s. 2, effective October 1, 2019, rewrote the section.

§ 50-100. Parenting coordinator immunity.

A parenting coordinator shall not be liable for damages for acts or omissions of ordinary negligence arising out of that person's duties and responsibilities as a parenting coordinator. This section does not apply to actions arising out of the operation of a motor vehicle.

History

(2005-228, s. 1.)