{ "id": 3821736, "name": "BENJAMIN FRANK CATHEY, Plaintiff v. ANN LEO CATHEY, Defendant", "name_abbreviation": "Cathey v. Cathey", "decision_date": "2011-03-01", "docket_number": "No. COA10-762", "first_page": "230", "last_page": "235", "citations": [ { "type": "official", "cite": "210 N.C. App. 230" } ], "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": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "1995 N.C. Sess. Laws 319", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "842 P.2d 535", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10356046 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/p2d/842/0535-01" ] }, { "cite": "507 P.2d 157", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1973, "opinion_index": 0 }, { "cite": "6 S.W.3d 230", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11644303 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/sw3d/6/0230-01" ] }, { "cite": "602 P.2d 1123", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 8689141 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/or-app/43/0367-01" ] }, { "cite": "636 N.W.2d 195", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9465043 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nw2d/636/0195-01" ] }, { "cite": "288 N.W.2d 41", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 2597791 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/neb/205/0426-01" ] }, { "cite": "216 N.W.2d 837", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 885577 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/minn/299/0120-01" ] }, { "cite": "641 P.2d 1003", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4428102 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/idaho/102/0816-01" ] }, { "cite": "336 So. 2d 1365", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9681168 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/so2d/336/1365-01" ] }, { "cite": "857 A.2d 324", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1605888 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/vt/177/0104-01" ] }, { "cite": "395 N.W.2d 906", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1986, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "426 Mich. 582", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1999027 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/mich/426/0582-01" ] }, { "cite": "168 Vt. 445", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 226597 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "448", "parenthetical": "quoting Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906, 914 (Mich. 1986)" }, { "page": "136", "parenthetical": "quoting Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906, 914 (Mich. 1986)" } ], "opinion_index": 0, "case_paths": [ "/vt/168/0445-01" ] }, { "cite": "105 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "249 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607756 ], "year": 1958, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0061-01" ] }, { "cite": "148 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "267 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559378 ], "year": 1966, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0378-01" ] }, { "cite": "260 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "162", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550450 ], "year": 1979, "pin_cites": [ { "page": "52", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0050-01" ] }, { "cite": "431 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521380 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0233-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1994, "opinion_index": 0 }, { "cite": "455 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790217 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0097-01" ] }, { "cite": "442 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "93" }, { "page": "93" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 360", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527578 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0360-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "154 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "74" }, { "page": "75" } ], "opinion_index": 0 }, { "cite": "270 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566989 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "257" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0253-01" ] }, { "cite": "297 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "173" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526951 ], "year": 1982, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0552-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "684 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "154", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151122 ], "year": 2009, "pin_cites": [ { "page": "616", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0612-01" ] } ], "analysis": { "cardinality": 656, "char_count": 13203, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.11380721424299255 }, "sha256": "d6bda41efbd29a81a089805f213232a7899c94b1a3638eaa8421c995ab9ea3ba", "simhash": "1:9765e5667f9d44f2", "word_count": 2132 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ELMORE concur." ], "parties": [ "BENJAMIN FRANK CATHEY, Plaintiff v. ANN LEO CATHEY, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nBenjamin Frank Cathey (\u201cplaintiff\u2019) appeals from the trial court\u2019s order which required him to pay $300.00 per month in alimony to Ann Leo Cathey (\u201cdefendant\u201d). We reverse.\nPlaintiff and defendant were married to each other on 2 September 1961. They remained married for thirty years until they separated on 2 September 1991. Plaintiff and defendant were subsequently divorced on 30 October 1992.\nOn 30 August 1994, the Cumberland County District Court entered an equitable distribution order. The trial court ordered an unequal distribution. Defendant received, inter alia, twenty-five percent of plaintiffs military retirement. The trial court anticipated that defendant\u2019s share of plaintiff\u2019s retirement would be approximately $500.00 per month. On 21 November 1994, the trial court ordered plaintiff to pay defendant permanent alimony in the amount of $500.00 per month for a period of forty-two months. The trial court\u2019s order indicated that after these forty-two months of payments, plaintiff\u2019s permanent alimony obligation would terminate.\nAt the time of the equitable distribution judgment, plaintiff had a disability rating of 7%. In subsequent years, this rating continued to increase so that by 1 February 2005, the Department of Veterans Affairs had increased plaintiff\u2019s disability rating to 100%. As plaintiff\u2019s disability rating increased, plaintiff received an increase in the amount of his disability payments and a corresponding reduction in the amount of his retirement payments. Consequently, defendant\u2019s share of plaintiff\u2019s decreased retirement pay was gradually reduced to $125.50 per month.\nOn 16 September 2008, defendant filed a motion in the cause to either modify the equitable distribution order or modify the alimony order, due to the change in the parties\u2019 respective financial situations. After a hearing on defendant\u2019s motion, the trial court entered an order on 1 March 2010 that denied defendant\u2019s motion to modify the equitable distribution, but granted defendant\u2019s motion to modify alimony. The trial court awarded defendant permanent alimony of $300.00 per month beginning 1 September 2010. The new alimony award would terminate upon the death of either party or upon the remarriage of or cohabitation by defendant. Plaintiff appeals.\nPlaintiff\u2019s sole argument on appeal is that the trial court erred by awarding defendant alimony after plaintiff\u2019s alimony obligations had been previously terminated. We agree.\nThe dispute in the instant case revolves entirely around the appropriate interpretation of the previous version of the alimony statutes, which was in effect at the time the original alimony order was entered on 21 November 1994. \u201cQuestions of statutory interpretation are ultimately questions of law for the courts and are reviewed de novo.\u201d In re Summons Issued to Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009) (internal quotations and citations omitted).\nWhen the original alimony award was entered, N.C. Gen. Stat. \u00a7 50-16.1 defined alimony as \u201cpayment 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.\u201d N.C. Gen. Stat. \u00a7 50-16.1 (1994). This definition did not expressly allow a trial court to award a specified amount of alimony that would be paid over a fixed period of time. Nonetheless, our Courts still permitted a trial court to \u201caward lump sum alimony for a specified period only.\u201d Whitesell v. Whitesell, 59 N.C. App. 552, 553, 297 S.E.2d 172, 173 (1982). Under this construction of the previous alimony statutes, \u201can award of alimony for a specified period only . . . [wa]s \u2018indubitably alimony in gross or \u201clump sum alimony.\u201d \u2019 \u201d Id. at 552, 297 S.E.2d at 173 (quoting Mitchell v. Mitchell, 270 N.C. 253, 257, 154 S.E.2d 71, 74 (1967)) (brackets omitted).\nModification of alimony under the previous alimony statutes was governed by N.C. Gen. Stat. \u00a7 50-16.9, which stated, in relevant part: \u201cAn 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.\u201d N.C. Gen. Stat. \u00a7 50-16.9 (1994). Under this statute, an award of lump sum alimony for a specified period was subject to modification and termination prior to its payment in full, if the modification or termination occurred prior to the vesting of the last payment. Potts v. Tutterow, 114 N.C. App. 360, 365, 442 S.E.2d 90, 93 (1994), aff\u2019d per curiam, 340 N.C. 97, 455 S.E.2d 156 (1995).\nHowever, the motion to modify alimony in the instant case was not filed until several years after the lump sum alimony award ordered by the trial court had been paid in full. Our Courts have never directly addressed the question of whether, under the previous alimony statutes, modification of a lump sum award would be permissible under these circumstances. Nevertheless, the language of the previous alimony statutes and the holdings of our Courts interpreting these statutes provide guidance on this issue and suggest that a dependent spouse whose alimony had either never existed or ceased to exist should no longer be entitled to alimony.\nUnder N.C. Gen. Stat. \u00a7 50-11 (1994), it was beyond the power of a trial court to enter an order awarding alimony after a judgment of absolute divorce, unless an alimony action was pending at the time of the absolute divorce judgment. Mitchell v. Mitchell, 270 N.C. 253, 258, 154 S.E.2d 71, 75 (1967); Gilbert v. Gilbert, 111 N.C. App. 233, 431 S.E.2d 805 (1993); see also Baugh v. Baugh, 44 N.C. App. 50, 52, 260 S.E.2d 161, 162 (1979) (\u201cAlthough 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.\u201d). This was true even if the financial circumstances of the dependent spouse deteriorated significantly after the absolute divorce judgment.\nIn addition, our Supreme Court has held that the trial court\u2019s authority to modify an alimony award under N.C. Gen. Stat. \u00a7 50-16.9 upon a showing of changed circumstances includes the power to terminate alimony \u201cabsolutely.\u201d Sayland v. Sayland, 267 N.C. 378, 383, 148 S.E.2d 218, 222 (1966). An alimony award\u2019 which is terminated absolutely must necessarily be terminated permanently and without restriction, as the word \u201cabsolute\u201d is defined as \u201c[f]ree from restriction, qualification, or condition\u201d or \u201cconclusive and not liable to revision.\u201d Black\u2019s Law Dictionary, 7 (9th ed. 2009). The trial court\u2019s power to terminate alimony absolutely would not be \u201cabsolute\u201d if it were permitted, upon an appropriate showing of changed circumstances by the dependent spouse, to simply reinstate alimony months or years after termination. Moreover, there is no mechanism in the previous alimony statutes which would have allowed alimony to be reinstated after termination under any circumstances. Ultimately, reinstatement of previously terminated alimony would be the equivalent of ordering a new alimony award, which is impermissible under N.C. Gen. Stat. \u00a7 50-11 (1994).\nFinally, under N.C. Gen. Stat. \u00a7 50-16.9(b) (1994), \u201c[i]f a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate.\u201d There is nothing in this statute to suggest that a dependent spouse who remarries could later reinstate an alimony award under any circumstances. Consequently, under N.C. Gen. Stat. \u00a7 50-16.9(b), the remarriage of a dependent spouse permanently terminated alimony as a matter of law, and any change in the dependent spouse\u2019s financial circumstances after remarriage could not be used as a basis to reinstate the previous alimony award.\nDefendant\u2019s situation does not differ substantially from that of a dependent spouse who was either not awarded alimony prior to the entry of an absolute divorce judgment or whose alimony was permanently terminated either by the trial court or by operation of law. As shown above, the prior alimony statutes provided no additional right to alimony or other protection for the dependent spouse whose alimony either never existed or ceased to exist, even if they were to later suffer an unexpected change of financial circumstances. While defendant\u2019s plight is unfortunate and sympathetic, she is still similarly situated to these other types of dependent spouses. As a result, there is nothing in the previous alimony statutes which would provide her with the right to be awarded additional alimony in the instant case.\nFurthermore, \u201c[t]he courts and the public are interested in the finality of litigation.\u201d Hicks v. Koutro, 249 N.C. 61, 64, 105 S.E.2d 196, 199 (1958). As the Vermont Supreme Court has noted, when faced with a question similar to that presented in the instant case,\n\u201c \u2018[t]here is no area of law requiring more finality and stability than family law...\u2019 \u201d Hilaire v. DeBlois, 168 Vt. 445, 448, 721 A.2d 133, 136 (1998) (quoting Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906, 914 (Mich. 1986)). Once a divorce decree is final and the maintenance order has expired, neither the parties nor the court should be burdened by the inevitable uncertainty that would flow from a perpetually unresolved maintenance award.\nArbuckle v. Ciccotelli, 857 A.2d 324, 327 (Vt. 2004). In light of our interest in finality, the principles established by the previous alimony statutes, and the cases where our Courts have interpreted these statutes, we hold that, under our previous alimony statutes, the right to modify a lump sum alimony award that was ordered to be paid over a fixed term is limited to the time period during which the alimony is actually ordered. Modification, pursuant to N.C. Gen. Stat. \u00a7 50-16.9 (1994), can occur \u201cat any time\u201d before the award has been vested and satisfied. Polls, 114 N.C. App. at 365, 442 S.E.2d at 93. However, after the supporting spouse fulfills their obligation as ordered by the trial court, the original alimony award ceases to exist, and there is no longer an alimony award for the trial court to later modify.\nIn the instant case, defendant was originally awarded \u201cthe sum of $500.00 ... for a period of forty-two months, at which time permanent alimony will terminate.\u201d This award was subject to modification at any time prior to the vesting of the last payment due. However, after plaintiff paid the full amount ordered by the trial court, the alimony award was terminated by the express language of the trial court\u2019s order and thus ceased to exist. The, trial court\u2019s \u201cmodification\u201d of this non-existent award instead created a new award, which is forbidden by N.C. Gen. Stat. \u00a7 50-11 (1994). Thus, the trial court\u2019s order attempting to modify defendant\u2019s previously terminated alimony award was invalid.\nIn reaching this determination, we join the many other jurisdictions which have also considered the issue of whether a fixed term alimony award is subject to modification after it has been satisfied in full and concluded that it is not. See, e.g., Banks v. Banks, 336 So. 2d 1365 (Ala. Civ. App. 1976); Mercer v. Mercer, 641 P.2d 1003 (Idaho 1982); Eckert v. Eckert, 216 N.W.2d 837 (Minn. 1974); Welke v. Welke, 288 N.W.2d 41 (Neb. 1980); Bellefeuille v. Bellefeuille, 636 N.W.2d 195 (N.D. 2001); Park v. Park, 602 P.2d 1123 (Or. Ct. App. 1979); Waddey v. Waddey, 6 S.W.3d 230 (Tenn. 1999); Arbuckle, 857 A.2d 324; Brown v. Brown, 507 P.2d 157 (Wash. Ct. App. 1973); Harshfield v. Harshfield, 842 P.2d 535 (Wyo. 1992). As a result of our holding, the trial court\u2019s order requiring plaintiff to pay defendant $300.00 per month in alimony payments must be reversed.\nReversed.\nJudges HUNTER, Robert C. and ELMORE concur.\n. After the alimony award was entered, the General Assembly amended the statutes which governed alimony actions and made the amendments effective to actions filed on or after 1 October 2005. See 1995 N.C. Sess. Laws 319. Since the alimony action in the instant case was initiated prior to 1 October 2005, we limit the scope and application of our analysis to the previous alimony statutes.\n. N.C. Gen. Stat. \u00a7 50-16.3A (2009) now permits a trial court to award alimony \u201cfor a specified or for an indefinite term.\u201d", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Lewis, Deese & Nance, LLP, by Renny W. Deese, for plaintiff-appellant.", "Hedahl & Radtke, by Joan E. Hedahl, for defendant-appellee." ], "corrections": "", "head_matter": "BENJAMIN FRANK CATHEY, Plaintiff v. ANN LEO CATHEY, Defendant\nNo. COA10-762\n(Filed 1 March 2011)\nDivorce\u2014 alimony \u2014 obligation terminated \u2014 modification not allowed\nThe trial court erred in a domestic action by awarding defendant alimony after plaintiffs alimony obligation had been previously terminated. Under previous North Carolina alimony statutes, the right to modify a lump sum alimony award that was ordered to be paid over a fixed term was limited to the time period during which the alimony was actually ordered.\nAppeal by plaintiff from order entered 1 March 2010 by Judge Laura A. Devan in Cumberland County District Court. Heard in the Court of Appeals 15 December 2010.\nLewis, Deese & Nance, LLP, by Renny W. Deese, for plaintiff-appellant.\nHedahl & Radtke, by Joan E. Hedahl, for defendant-appellee." }, "file_name": "0230-01", "first_page_order": 238, "last_page_order": 243 }