McDowell v. McDowell

186 S.E.2d 621, 13 N.C. App. 643, 1972 N.C. App. LEXIS 2301

• Court: Court of Appeals of North Carolina
• Decided: February 23, 1972
• Docket: 7219DC85
• Status: Published

Opinion

BRITT, Judge.

Defendant contends that the order appealed from was improper for the reason that plaintiff did not allege and show any change of conditions subsequent to the entry of the 2 March 1971 order. In her testimony at the second hearing, plaintiff testified that there had been no change in the conditions of the parties since the entry of the previous order and the trial judge made no finding of any change of conditions.

G.S. 50-16.9 (a) entitled “Modification of order” provides in pertinent part as follows: “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.”

In Elmore v. Elmore, 4 N.C. App. 192, 166 S.E. 2d 506 (1969), this court said: “It is well established that a change in circumstances must be shown in order to modify an order relating to custody, support or alimony. G.S. 50-13.7; G.S. 50-16.9; Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E. 2d 469; Rayfield v. Rayfield, 242 N.C. 691, 89 S.E. 2d 399; Barber v. Barber, 216 N.C. 232, 4 S.E. 2d 447; 2 Lee, N.C. Family Law, § 153, pp. 227, 228.”

Upon a motion for modification of an award of alimony and support pendente lite, the movant has the burden of showing a change of circumstances. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E. 2d 144 (1971). For failure of movant to show a change of circumstances in this case, the order appealed from was improper and is vacated.

Reversed.

Judges Campbell and Graham concur.