Honeycutt v. Honeycutt

568 S.E.2d 260, 152 N.C. App. 673, 2002 N.C. App. LEXIS 966
CourtCourt of Appeals of North Carolina
DecidedSeptember 3, 2002
DocketNo. COA01-1008
StatusPublished

This text of 568 S.E.2d 260 (Honeycutt v. Honeycutt) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Honeycutt v. Honeycutt, 568 S.E.2d 260, 152 N.C. App. 673, 2002 N.C. App. LEXIS 966 (N.C. Ct. App. 2002).

Opinions

HUDSON, Judge.

Plaintiff, Patricia Marilyn Honeycutt, appeals an order entered 6 December 2000 terminating her ex-husband’s obligation to pay alimony. We reverse and remand for further proceedings.

Plaintiff married defendant, Wallace B. Honeycutt, in 1956. They separated July 1989, and divorced September 1990. Before the divorce was final, plaintiff filed a verified complaint seeking ali[674]*674mony, “reasonable support, maintenance and subsistence,” possession of the marital home in addition to its furnishings, attorney’s fees, and equitable distribution of the marital property. On 12 November 1991, the trial court entered a Judgment of Equitable Distribution and Qualified Domestic Relations Order, which distributed the couple’s property and gave the marital home to plaintiff. Following a jury trial on the issue of fault, the trial court entered an Alimony Judgment on 31 January 1992 finding among other things that plaintiff was a dependent spouse pursuant to N.C. Gen. Stat. § 50-16.1(3) (1995), that defendant was a supporting spouse pursuant to N.C. Gen. Stat. § 50-16.1(4) (1995), and that defendant was capable of financially supporting plaintiff. Defendant was ordered to pay alimony of $3,261.74 per month to plaintiff “until the death of either party, or the remarriage of the plaintiff, whichever event should first occur.” The court also decreed that “this Order may be reviewed as to permanent Alimony, upon finalization of the equitable distribution action.”

On 9 December 1998, defendant filed a motion to reduce his alimony payments to plaintiff on the grounds that there was a “substantial change of circumstances” in that he was in the process of selling his dental practice and would soon retire. Plaintiff filed a motion to increase defendant’s alimony payments, because she contended that he was enjoying an increase in income from rental property, from the sale of his dental practice, and from annuity contracts, in addition to his annual income as a dentist. The record does not indicate whether either of these motions were heard. The parties entered a Consent Judgment on 9 March 2000, resolving all outstanding equitable distribution issues.

On 2 August 2000, defendant filed a motion to terminate his alimony payments to plaintiff, citing a “substantial material change in circumstances in addition to the change contemplated by the alimony judgment entered in 1992.” Defendant noted the folio-wing changes in circumstance:

a. [Defendant] is now age 66 and [plaintiff] is now age 65. Both are receiving social security and both are or should be now receiving Medicare.
b. The defendant [] has no regular employment and is retired.
4. [Defendant] no longer has a monthly income from his practice.
[675]*675a. In equitable distribution, [defendant] divided the retirement plans with [plaintiff] fifty-fifty.
b. The needs of [plaintiff] have materially declined since the hearing in 1991 in that she now has a paid for home, paid for automobile, Medicare, upon information and belief no household help and her medical bills are less.
c. [Plaintiff] has adequate investments along with her social security to provide for her needs and her “paid for” home and with her “paid for” automobile and Medicare.
[Plaintiff] has the luxury of living in a 5000 square foot “paid for” residence containing five bedrooms and she could easily downsize her residence to a more suitable size for a person in retirement age should she need additional resources.

Defendant also filed an alternative motion to terminate his alimony payments, relying on the trial court’s earlier order that alimony could be reviewed as soon as the equitable distribution claim was finalized. Plaintiff replied to both motions, and in response to the alternative motion contended that “the Alimony Judgment is a judgment awarding the plaintiff permanent alimony from the defendant.”

On 6 December 2000, the trial court concluded that the previous alimony judgment was an “Order of ‘permanent alimony’ but did not consider the amount of alimony to be a fully determined issue.” The trial court further concluded that according to the previous judgment, “neither party was to be required to demonstrate changed circumstances in order for the Court to adjust the actual amount of the alimony payment.” However, the trial court concluded, that because nine years had passed since entry of the alimony judgment, and since the property was equitably distributed (except for one piece of property), defendant “has the burden of demonstrating changed circumstances both for purposes of requesting that the Court terminate alimony altogether on the theory that [plaintiff] is no longer dependent and for purposes of requesting that, absent termination, the award be reduced.” The trial court held that defendant met his burden of proving changed circumstances, that plaintiff was “no longer a dependent spouse,” and terminated alimony payments effective 2 October 2000.

Plaintiff appeals this Order and in her sole argument contends that “the trial court erred in terminating [defendant’s] obligation to pay alimony to [plaintiff] on the grounds that said ruling is not sup[676]*676ported by proper findings of facts or conclusions of law.” She points to two alleged legal errors in the trial court’s order: (1) the conclusion that she is no longer a dependent spouse, and (2) findings and conclusions that she has a certain earning capacity. We note that the applicable alimony statutes, N.C. Gen. Stat. §§ 50-16.1 et seq., were amended in 1995. “Session Laws 1995 ... 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.” N.C.G.S. § 50-16.1 (1995) (editor’s note). The original action was filed prior to 1995, and the statute and applicable case law from before the 1995 amendments govern. See id.

We first address whether the trial court properly concluded that plaintiff is no longer a dependent spouse. Pursuant to N.C. Gen. Stat. § 50-16.9(a) (1987), “[a]n 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.” Here, the defendant had the burden of showing a change of circumstances to support his motion to decrease alimony. “Even where the moving party has met [his] burden to show relevant changed circumstances, however, the trial court is not required to modify an alimony award, but may do so in its discretion.” Kowalick v. Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998) (citing Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971)).

“To determine whether a change in circumstances under G.S. 50-16.9 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, 187, 287 S.E.2d 840, 846 (1982), disc. rev. denied, 314 N.C.

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Related

Bowes v. Bowes
214 S.E.2d 40 (Supreme Court of North Carolina, 1975)
Rowe v. Rowe
287 S.E.2d 840 (Supreme Court of North Carolina, 1982)
Robinson v. Robinson
179 S.E.2d 144 (Court of Appeals of North Carolina, 1971)
Cunningham v. Cunningham
480 S.E.2d 403 (Supreme Court of North Carolina, 1997)
Clark v. Clark
271 S.E.2d 58 (Supreme Court of North Carolina, 1980)
Spencer v. Spencer
319 S.E.2d 636 (Court of Appeals of North Carolina, 1984)
Kowalick v. Kowalick
501 S.E.2d 671 (Court of Appeals of North Carolina, 1998)

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Bluebook (online)
568 S.E.2d 260, 152 N.C. App. 673, 2002 N.C. App. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/honeycutt-v-honeycutt-ncctapp-2002.