Orren v. Orren , 253 N.C. App. 480 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1024
Filed: 16 May 2017
Alexander County, No. 09 CVD 521
DANIEL R. ORREN, Plaintiff,
v.
CAROLYN B. ORREN, Defendant.
Appeal by plaintiff from order entered 18 April 2016 by Judge Christine
Underwood in Alexander County District Court. Heard in the Court of Appeals 8
March 2017.
Homesley, Gaines, Dudley & Clodfelter, LLP, by Edmund L. Gaines and Leah
Gaines Messick, for plaintiff-appellant.
Wesley E. Starnes for defendant-appellee.
DIETZ, Judge.
Plaintiff Daniel Orren appeals from the trial court’s alimony order. He
contends that the trial court erred by denying his request to assert a cohabitation
defense at the alimony hearing. The trial court denied Mr. Orren’s request in part
because the court believed “cohabitation isn’t a defense to an alimony claim.”
As explained below, this Court has held that cohabitation is a defense to an
alimony claim. Williamson v. Williamson, 142 N.C. App. 702, 704, 543 S.E.2d 897,
898 (2001). Thus, the trial court acted under a misapprehension of the law when it
ORREN V. ORREN
Opinion of the Court
rejected Mr. Orren’s request to assert a cohabitation defense. When a trial court acts
under a misapprehension of the law, this Court must vacate the challenged order and
remand for the trial court to examine the issue under the proper legal standard.
Stanback v. Stanback, 270 N.C. 497, 507, 155 S.E.2d 221, 229 (1967). Accordingly, we
vacate the trial court’s order and remand for further proceedings consistent with this
opinion.
Facts and Procedural History
On 17 August 2009, Daniel Orren filed for divorce from his wife, Carolyn
Orren, and sought equitable distribution of the parties’ property. On 2 November
2009, Ms. Orren filed an answer and counterclaims for postseparation support,
alimony, and equitable distribution.
In June 2012, following a hearing and a consent agreement, the trial court
entered an equitable distribution order. In September 2012, the trial court held a
hearing on Ms. Orren’s request for alimony. At the end of the hearing, the court took
the matter under advisement. Later that month, the court drafted an alimony order
and mailed it to the Alexander County Clerk of Superior Court for filing, but the
clerk’s office did not receive it.
Apparently, over the next three years, neither party informed the trial court
that the alimony order had not been entered. Finally, in September 2015, Mr. Orren
sought leave from the trial court to assert the defense of cohabitation in response to
-2-
ORREN V. ORREN
Opinion of the Court
the pending alimony claim. The trial court then discovered that “the Clerk did not
receive the Order prepared by the Court.” The trial court explained that “[u]pon
learning that the Order had not been filed with the Clerk, the Court sought to retrieve
the Order but found it impossible to do so due to an earlier malfunction in the home
computer.” The trial court therefore “elected to reopen the evidence regarding
changes in the parties’ circumstances which have occurred [since] September 21,
2012.” The court held a hearing on 30 September 2015 to take additional evidence
with respect to the alimony claim, but rejected Mr. Orren’s request to assert the
defense of cohabitation.
On 18 April 2016, the trial court entered an alimony order that awarded Ms.
Orren alimony, attorneys’ fees, and a “distributive award” from a retirement
incentive package that Mr. Orren received after entry of the equitable distribution
order but before entry of the alimony order. Mr. Orren timely appealed.
Analysis
Mr. Orren first argues that the trial court abused its discretion by rejecting his
request to assert cohabitation as a defense to his ex-wife’s alimony claim. As
explained below, because the trial court acted under a misapprehension of the law,
we vacate the trial court’s order and remand for further proceedings.
Among other reasons why the trial court rejected Mr. Orren’s request to assert
a cohabitation defense, the trial court stated that Mr. Orren’s request was futile
-3-
ORREN V. ORREN
Opinion of the Court
because “cohabitation isn’t a defense to an alimony claim.” This statement is wrong.
In Williamson v. Williamson, the trial court permitted evidence of cohabitation at an
initial alimony hearing and then ruled that “plaintiff was not obligated for alimony
or postseparation support payments from the time defendant’s cohabitation began.”
142 N.C. App. 702, 703, 543 S.E.2d 897, 897 (2001). On appeal, the defendant argued
that a court may only modify an existing alimony award based on cohabitation and
cannot consider cohabitation as a defense to an initial alimony award. This Court
squarely rejected that argument, holding that cohabitation is a defense to an initial
award of alimony:
Defendant argues that this statute refers to a modification
of alimony. Defendant asserts “cohabitation” is not a
defense in an initial action for alimony. We disagree.
Id. at 704, 543 S.E.2d at 898.
To be sure, as Ms. Orren points out, the cohabitation statute provides that, “[i]f
a dependent spouse who is receiving postseparation support or alimony from a
supporting spouse . . . engages in cohabitation, the postseparation support or alimony
shall terminate.” N.C. Gen. Stat. § 50–16.9(b) (emphasis added). Thus, the statute
addresses situations in which postseparation support or alimony already has been
awarded before the cohabitation begins. But Williamson did not limit its holding in
that way; it held more broadly that cohabitation is “a defense in an initial action for
alimony.” Williamson, 142 N.C. App. at 704, 543 S.E.2d at 898. Moreover, the alimony
-4-
ORREN V. ORREN
Opinion of the Court
statute provides that, “[i]n determining the amount, duration, and manner of
payment of alimony, the court shall consider all relevant factors . . . .” N.C. Gen. Stat.
§ 50– 16.3A(b) (emphasis added). The fact that an award of alimony would
immediately be subject to termination based on cohabitation is a “relevant factor” the
trial court can consider in its initial alimony award. Simply put, as the Court held in
Williamson, cohabitation may be asserted as a defense to an initial alimony claim.
When a trial court acts under a misapprehension of the law in a discretionary
ruling, this Court must vacate the trial court’s ruling and remand for reconsideration
under the correct legal standard. Stanback v. Stanback, 270 N.C. 497, 507, 155 S.E.2d
221, 229 (1967); State v. Grundler, 249 N.C. 399, 402, 106 S.E.2d 488, 490 (1959).
Here, the trial court refused to permit Mr. Orren to assert a cohabitation defense at
the alimony hearing in part because “cohabitation isn’t a defense to an alimony
claim.” As explained above, that is incorrect; cohabitation is a defense to an alimony
claim. Thus, we must vacate the trial court’s alimony order and remand for further
proceedings.
Mr. Orren also challenges the trial court’s “distributive award” of $17,497.28
based on Mr. Orren’s receipt of an early retirement incentive package. Mr. Orren
received the retirement award after entry of the equitable distribution order but
before entry of the alimony order three years later. The trial court’s alimony order
states that “[b]ecause the benefits were accrued during the time the parties were
-5-
ORREN V. ORREN
Opinion of the Court
married and owned on the date of separation, the Court elects to classify these
benefits as marital property which was not distributed pursuant to the Equitable
Distribution Order.”
Because we vacate the trial court’s order and, on remand, the cohabitation
issue might bar some or all of the requested alimony, we decline to address this issue
because it may be moot. But we observe that, although receipt of a retirement
incentive might be a relevant factor to consider in setting the amount of alimony, see
N.C. Gen. Stat. § 50–16.3A(b), an alimony order should not (and cannot) be used as a
tool to amend an earlier equitable distribution order.
Conclusion
We vacate the trial court’s alimony order and remand for further proceedings
consistent with this opinion.
VACATED AND REMANDED.
Judges ELMORE and TYSON concur.
-6-