{ "id": 11920307, "name": "BRUCE T. CUNNINGHAM, JR., Plaintiff v. JANET F. CUNNINGHAM, Defendant", "name_abbreviation": "Cunningham v. Cunningham", "decision_date": "1996-03-05", "docket_number": "No. COA94-1179", "first_page": "771", "last_page": "778", "citations": [ { "type": "official", "cite": "121 N.C. App. 771" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "18 ALR2d 10", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "179 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554365 ], "year": 1971, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0463-01" ] }, { "cite": "148 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "222", "parenthetical": "increase in value of wife's property after entry of alimony decree evidence of changed circumstances" } ], "opinion_index": 0 }, { "cite": "267 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559378 ], "year": 1966, "pin_cites": [ { "page": "383", "parenthetical": "increase in value of wife's property after entry of alimony decree evidence of changed circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0378-01" ] }, { "cite": "287 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "271 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "926" } ], "opinion_index": 0 }, { "cite": "49 N.C App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522220 ], "year": 1980, "pin_cites": [ { "page": "470-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0463-01" ] }, { "cite": "287 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "846" } ], "opinion_index": 0 }, { "cite": "305 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567141 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0177-01" ] }, { "cite": "136 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "243" } ], "opinion_index": 1 }, { "cite": "262 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565461 ], "year": 1964, "pin_cites": [ { "page": "70" } ], "opinion_index": 1, "case_paths": [ "/nc/262/0067-01" ] }, { "cite": "228 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "413" } ], "opinion_index": 1 }, { "cite": "290 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564393 ], "year": 1976, "pin_cites": [ { "page": "679" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0669-01" ] }, { "cite": "17 J. Fam. L. 711", "category": "journals:journal", "reporter": "J. Fam. L.", "year": 1978, "pin_cites": [ { "page": "717" } ], "opinion_index": 1 }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "855" }, { "page": "856", "parenthetical": "emphasis in original" } ], "opinion_index": 1 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "181" }, { "page": "184" } ], "opinion_index": 1, "case_paths": [ "/nc/299/0174-01" ] }, { "cite": "298 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "341" } ], "opinion_index": 1 }, { "cite": "307 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562460 ], "year": 1983, "pin_cites": [ { "page": "385" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0381-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "439 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "138" } ], "opinion_index": 1 }, { "cite": "335 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526672 ], "year": 1994, "pin_cites": [ { "page": "529" } ], "opinion_index": 1, "case_paths": [ "/nc/335/0526-01" ] }, { "cite": "280 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "188", "parenthetical": "emphasis added" }, { "page": "188" } ], "opinion_index": 1 }, { "cite": "52 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170658 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "656" } ], "opinion_index": 1, "case_paths": [ "/nc-app/52/0646-01" ] }, { "cite": "342 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "867" }, { "page": "867", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "316 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703378 ], "year": 1986, "pin_cites": [ { "page": "461" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0447-01" ] }, { "cite": "148 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "222" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "267 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559378 ], "year": 1966, "pin_cites": [ { "page": "383" } ], "opinion_index": 1, "case_paths": [ "/nc/267/0378-01" ] }, { "cite": "271 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "927" }, { "page": "927" }, { "page": "927" } ], "opinion_index": 1 }, { "cite": "49 N.C App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522220 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "473" }, { "page": "472" }, { "page": "473" } ], "opinion_index": 1, "case_paths": [ "/nc-app/49/0463-01" ] }, { "cite": "287 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "846" }, { "parenthetical": "No. 96A81" } ], "opinion_index": 1 }, { "cite": "305 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567141 ], "weight": 4, "year": 1982, "pin_cites": [ { "parenthetical": "No. 96A81" }, { "page": "188" }, { "page": "187" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0177-01" ] } ], "analysis": { "cardinality": 769, "char_count": 17794, "ocr_confidence": 0.758, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.375570544846437 }, "sha256": "db9121f21f8456eb1f39b732b9f6f8f93ef68c12b28990f73619e04f4c68ce4c", "simhash": "1:2d0bd56cd4dfad76", "word_count": 2822 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD concurs.", "Judge SMITH dissents." ], "parties": [ "BRUCE T. CUNNINGHAM, JR., Plaintiff v. JANET F. CUNNINGHAM, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nBruce T. Cunningham, Jr. (plaintiff) appeals from the trial court\u2019s 25 August 1994 order which denied plaintiff\u2019s motion to modify a previous alimony award.\nPlaintiff and Janet F. Cunningham (defendant) were married in 1972 and the following year, plaintiff, who is an attorney, began practicing law with defendant\u2019s father where he practiced until sometime after the parties separated in 1989. In the three years prior to the separation, plaintiff earned an income ranging from $100,000 to $125,000 per year.\nDuring the marriage, plaintiff and defendant accumulated a marital estate worth approximately $450,000 at the time of the parties\u2019 1 January 1989 separation agreement. The parties\u2019 separation agreement provided a roughly equal distribution of the marital estate, with plaintiff receiving approximately $225,000 in stock and liquid assets and defendant receiving the marital homeplace, valued at $140,000 (with a debt of $30,000), and $115,000 in liquid assets and other investments. Plaintiff also agreed to pay alimony to defendant equalling \u201cthe sum of one half [plaintiffs] monthly salary after first deducting social security.\u201d The separation agreement was, on 26 June 1989, incorporated by reference into the judgment of divorce. The incorporated separation agreement specifically provided that the alimony was separate from the property settlement and thus, the alimony provisions were not reciprocal consideration for the settlement and division of the marital estate.\nIn 1992, plaintiffs former father-in-law changed plaintiffs compensation schedule to one-half of the actual gross receipts he produced for the firm, which reduced plaintiff\u2019s annual salary. Shortly after this change, plaintiff left the law firm and joined another firm as partner. In 1993, plaintiff\u2019s gross income at his new law firm was approximately $42,000, and he paid defendant approximately $18,000 in alimony that year. Defendant\u2019s investment portfolio was valued at approximately $335,000, producing an \u201cincome of more than $30,000 in 1993.\u201d The defendant\u2019s home debt had been decreased to $2,000. She also earned an income of $7,000 from part-time work, compared to an income of $2,400 during the marriage. On 17 September 1993, plaintiff moved that his alimony obligation to defendant be modified, based upon defendant\u2019s increased investment income and plaintiff\u2019s involuntary reduction in compensation. The trial court found that between the date of the alimony order and the date of the modification hearing, the parties\u2019 reasonable expenses remained constant. The trial court concluded that \u201c[pjlaintiff has failed to meet his burden of establishing a material change of circumstances\u201d and that defendant \u201cis a dependent spouse.\u201d The trial court denied plaintiff\u2019s motion on 25 August 1994 and plaintiff appealed.\nThe issues are whether (I) the defendant\u2019s status as a dependent spouse is subject to reconsideration at a modification hearing; and (II) the evidence in this case supports the trial court\u2019s conclusion that there has been no \u201cchange of circumstances.\u201d\nI\nThe trial court concluded that the defendant remained a \u201cdependent spouse.\u201d This is an issue that was not properly before the trial court. The statutes applicable to this case permit the modification of an alimony decree upon a \u201cshowing of changed circumstances.\u201d N.C.G.S. \u00a7 50-16.9(a) (1995). The \u201ccircumstances\u201d to be considered are those \u201cfactors used in the original determination of the amount of alimony awarded under G.S. 50-16.5.\u201d Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). In other words, the \u201ccircumstances\u201d are only those that \u201cbear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.\u201d Britt v. Britt, 49 N.C App. 463, 470-71, 271 S.E.2d 921, 926 (1980). It is not appropriate to reconsider, in a modification hearing, the dependent spouse\u2019s entitlement to alimony, as the entitlement issue is \u201cpermanently adjudicated by the original order.\u201d Rowe, 305 N.C. at 187, 287 S.E.2d 846. The purpose of the modification hearing is to permit the trial court to adjust the decree \u201cto some distinct and definite change in the financial circumstances of the parties.\u201d 2 Robert E. Lee, North Carolina Family Law \u00a7 152, at 237 (4th ed. 1980). This adjustment may include reducing the amount of alimony to zero, but it cannot result in a loss of entitlement to alimony on the grounds that the once dependent spouse is no longer dependent. In this case, the trial court concluded that the defendant remained a dependent spouse. As it was error for the trial court to address that issue, we need not review whether that conclusion was error.\nII\nIn this case, the parties\u2019 expenses remained constant between the date of the initial order of alimony and the date of the modification hearing. The defendant\u2019s income (not including her income from her assets which amounted to $30,000 a year at the time of the hearing) increased from $2,400 a year to $7,000 a year. The plaintiff\u2019s income decreased from $110,000 a year to $42,000 a year. The net value of the defendant\u2019s assets increased from $225,000 to approximately $473,000. The value of the plaintiff\u2019s assets did not change. There is no evidence that the needs of the parties changed. This evidence reveals that the defendant\u2019s assets and income increased substantially between the date of the original hearing and the date of the modification hearing. The plaintiff\u2019s income decreased substantially during this period of time. This reflects a substantial change in circumstances and the conclusion of the trial court to the contrary cannot be supported. See Sayland v. Sayland, 267 N.C. 378, 383, 148 S.E.2d 218, 222 (1966) (increase in value of wife\u2019s property after entry of alimony decree evidence of changed circumstances).\nThe language of the original decree adjusting the alimony payments based on a percentage of the plaintiff\u2019s income does not require a different result. This adjustment clause contemplated a change in the plaintiff\u2019s income. It did not, however, contemplate or make any adjustment for an increase in the estate or income of the defendant.\nOn remand the trial court is to consider, in its discretion, whether to modify the original decree of alimony. N.C.G.S. \u00a7 50-16.9(a) (order of alimony \u201cmay\u201d be modified upon changed circumstances). There is no requirement, even in the face of a changed circumstance, that the alimony be modified. Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971).\nReversed and remanded.\nChief Judge ARNOLD concurs.\nJudge SMITH dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Smith\ndissenting.\nI disagree with the two central precepts of the majority opinion. I believe we are bound by existing case law, which states with clarity that dependency may be reconsidered at a modification hearing. And, I agree with the trial court\u2019s conclusion that no change of circumstances, as a matter of law, has occurred.\nI. Reconsideration of Dependency\nIt appears that any question concerning reconsideration of dependency was settled by Marks v. Marks, 316 N.C. 447, 461, 342 S.E.2d 859, 867 (1986). Marks is analytically identical to the instant case, in that it involves an alimony modification motion alleging changes in the dependency status of a supported spouse. In the section of the Marks opinion entitled \u201cChanged Circumstances,\u201d our Supreme Court held that the trial court\u2019s\nfindings . . . fully support the trial judge\u2019s conclusion that \u201cplaintiff is no longer a dependent spouse,\u201d which supports his order terminating defendant\u2019s spousal support obligations. Only a \u201cdependent spouse\u201d is entitled to alimony. We conclude, therefore, that the trial court did not err in terminating defendant\u2019s obligation to pay alimony pursuant to the 1974 consent judgment.\nId. at 461, 342 S.E.2d at 867 (emphasis added) (citations omitted).\nSince the Marks Court affirmed the trial court\u2019s conclusion of law, it seems irrefutable that dependency is subject to reconsideration under proper and substantial changes of circumstance. Otherwise, under its unanimous opinion, our Supreme Court affirmed an error of law.\nThe Marks holding is consistent with the Supreme Court\u2019s earlier ruling in Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982). Rowe concerned an alimony modification motion based on changed circumstances. Id. The Rowe Court declared its \u201cprimary concern on this appeal [to be] the change in financial needs of defendant as a dependent spouse.\u201d Id. at 187, 287 S.E.2d at 846. The Rowe plaintiff appellee\u2019s brief stated:\nIn fact, the entire basis for plaintiff\u2019s motion for modification is that although defendant was a dependent spouse at the time of the December 1976 Order \u2014 circumstances have changed with reference to the preceding findings of fact \u2014 so as to render her no longer a dependent spouse and no longer in need of alimony.\nBrief for plaintiff appellee at pages 46-47; Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982) (No. 96A81) (italicized emphasis added).\nThe Court of Appeals decided the same change of circumstance issue in Rowe v. Rowe, 52 N.C. App. 646, 280 S.E.2d 182 (1981) by holding:\nDefendant\u2019s argument that the court\u2019s initial determination of dependency is not subject to reconsideration on a subsequent motion under G.S. 50-16.9 is untenable. As we have explained herein, G.S. 50-16.9 calls for a completely new examination of the factors which necessitated the initial award of alimony in order to determine whether any of these circumstances have changed. When the list of circumstances enumerated in G.S. 50-16.5 is properly employed, the conclusion is inescapable that defendant, although formerly dependent, is no longer so.\nId. at 656, 280 S.E.2d at 188 (emphasis added). The Supreme Court affirmed this ruling, when it \u201cagree [d] with the Court of Appeals that under these facts, there has been a change of circumstances as a matter of law.\u201d Rowe, 305 N.C. at 188, 287 S.E.2d at 847.\nBased on Rowe and Marks, I perceive our consideration on this issue bound by the principles of stare decisis. See Andersen v. Baccus, 335 N.C. 526, 529, 439 S.E.2d 136, 138 (1994). We are also bound by the rule espoused in In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989), wherein it was determined that one panel of the Court of Appeals may not overturn another.\nIn Rowe, this Court expressly ruled on the dependency reconsideration issue. Rowe, 52 N.C. App. at 656, 280 S.E.2d at 188. The Supreme Court affirmed the Court of Appeals on the reconsideration issue, on nearly identical grounds. Rowe, 305 N.C. at 187, 287 S.E.2d at 846. While I agree the majority\u2019s view on reconsideration may make for better policy, we are bound to apply the law, not rewrite it.\nII. Changes of Circumstance\nThe majority has apparently concluded as a matter of law that on the instant facts a change of circumstances has occurred. I cannot agree. In this case, the parties consented to incorporation of the separation agreement into the divorce judgment. See Walters v. Walters, 307 N.C. 381, 385, 298 S.E.2d 338, 341 (1983). The parties also incorporated an automatic adjustment provision into the consent judgment, allowing alimony in the amount of one-half of plaintiffs income.\nThis provision was designed as a mechanism of convenience to the parties to prevent repeated litigation on alimony issues related to income fluctuations. Plaintiff was not forced into this alimony arrangement. Instead, he voluntarily assumed an obligation empowering defendant to preserve the marital custom of saving income. In light of the trial court\u2019s finding that defendant suffers from an illness which prevents her from working full-time, defendant\u2019s emphasis on saving as a priority is understandable, if not laudable.\nBy plaintiff\u2019s own account, defendant is presently engaging in economic activity, made possible through alimony, that was a regular and important standard during the marriage. Plaintiff agreed to an alimony arrangement which would uphold the custom of saving, as that was \u201cthe economic standard established by the marital partnership.\u201d Williams v. Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980). This Court has held that, when a party includes specific provisions in a consent decree providing for alimony, there is \u201can implied requirement of proving \u2018changed circumstances\u2019... not contemplated at the time of the decree.\u201d Britt v. Britt, 49 N.C. App. 463, 473, 271 S.E.2d 921, 927 (1980). Moreover, \u201cthe provisions of a separation agreement [should] be given deference when adopted in a court order to \u2018increase \u201cself-help\u201d among the parties and prevent protracted litigation of spousal rights.\u2019 \u201d Britt, 49 N.C. App. at 472, 271 S.E.2d at 927 (quoting Note, Modification of Spousal Support: A Survey of a Confusing Area of the Law, 17 J. Fam. L. 711, 717 (1978-79)).\nWe have previously held that, where the change in circumstances is one that the trial court expected and probably made allowances for when entering the original decree, the change is not a ground for modification of the decree. Britt, 49 N.C. App. at 473, 271 S.E.2d at 927. In principle, this policy has the \u201cdesirable effect of discouraging modification except in special circumstances.\u201d Id. In this case, plaintiff\u2019s alleged change of circumstances is the exact event contemplated by the plain language of the trial court\u2019s alimony decree.\nIndeed, plaintiff\u2019s individual salary has decreased significantly. But, given the symbiotic income link between plaintiff and defendant, defendant has suffered an income reversal identical to plaintiff\u2019s. This result has impacted defendant substantially, as the trial court found that defendant\u2019s needs had not changed since the original decree. Evidence in the record indicates defendant has had to liquidate assets in response to the decreased alimony. Defendant is not required to deplete assets to remain qualified for alimony, for such a mandate might eviscerate her ability \u201cto maintain any standard of living.\u201d Williams, 299 N.C. at 184, 261 S.E.2d at 856 (emphasis in original).\nI find plaintiff\u2019s plaint of financial, hardship dubious. The trial court found that \u201calthough the monthly needs of the Plaintiff has [sic] increased, the increases are results of voluntary choices made by the Plaintiff and are not material to the issue of payment of permanent alimony.\u201d This finding is well supported by the record. Plaintiff has remarried since his divorce from defendant. However, in the portion of plaintiff\u2019s brief outlining his finances and reasonable expenses, he has omitted his wife\u2019s earnings from her law practice. As well, it is difficult to define plaintiff\u2019s vacation to the island of Tortola, B.W.I. as the practice of a destitute person. Thus, it cannot be said that plaintiff\u2019s \u201cability to pay\u201d has been impaired, or that a legitimate \u201cquestion of fairness\u201d has been raised. Beall v. Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976); and Bunn v. Bunn, 262 N.C. 67, 70, 136 S.E.2d 240, 243 (1964).\nIn Sayland v. Sayland, 267 N.C. 378, 383, 148 S.E.2d 218, 222 (1966), our Supreme Court stated: \u201cPayment of alimony may not be avoided merely because it has become burdensome, or because the husband has remarried and voluntarily assumed additional obligations.\u201d Id. (emphasis added). In light of the trial court\u2019s findings, which are supported by the record, I find Sayland controlling. Thus, no change of circumstances, as a matter of law, has occurred under these facts. I would affirm the trial court\u2019s denial of plaintiff\u2019s motion requesting alimony modification. Therefore, I dissent.", "type": "dissent", "author": "Judge Smith" } ], "attorneys": [ "Maxwell, Freeman & Beason, P.A., by James B. Maxwell, for plaintiff-appellant.", "Ann Marie Vosburg for defendant-appellee." ], "corrections": "", "head_matter": "BRUCE T. CUNNINGHAM, JR., Plaintiff v. JANET F. CUNNINGHAM, Defendant\nNo. COA94-1179\n(Filed 5 March 1996)\n1. Divorce and Separation \u00a7 288 (NCI4th)\u2014 modification of alimony \u2014 reconsideration of dependency issue \u2014 error\nIt is not appropriate to reconsider in a modification hearing the dependent spouse\u2019s dependency and entitlement to alimony, as the entitlement issue is permanently adjudicated by the original order; rather, the purpose of the modification hearing is to permit the trial court to adjust the decree to some distinct and definite change in the financial circumstances of the parties, and this adjustment may include reducing the amount of alimony to zero.\nAm Jur 2d, Divorce and Separation \u00a7 699.\nChange in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance. 18 ALR2d 10.\n2. Divorce and Separation \u00a7 291 (NCI4th)\u2014 modification of alimony \u2014 substantial change of circumstances \u2014 sufficiency of evidence\nThe trial court erred in finding that there was not a substantial change of circumstances and in denying plaintiff\u2019s motion to modify a previous alimony award where the parties\u2019 expenses remained constant between the date of the initial order of alimony and the date of the modification hearing; defendant\u2019s income increased from $2,400 a year to $7,000 a year; plaintiff\u2019s income decreased from $110,000 a year to $42,000 a year; the net value of defendant\u2019s assets increased from $225,000 to approximately $473,000; and the value of plaintiffs assets did not change. The language of the original decree adjusting the alimony payments based on a percentage of plaintiff\u2019s income does not require a different result.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 710-715.\nChange in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance. 18 AJLR2d 10.\nJudge Smith dissenting.\nAppeal by plaintiff from order filed 25 August 1994 in Moore County District Court by Judge Adam C. Grant, Jr. Heard in the Court of Appeals 18 October 1995.\nMaxwell, Freeman & Beason, P.A., by James B. Maxwell, for plaintiff-appellant.\nAnn Marie Vosburg for defendant-appellee." }, "file_name": "0771-01", "first_page_order": 805, "last_page_order": 812 }