Stallings v. Stallings , 36 N.C. App. 643 ( 1978 )

244 S.E.2d 494 (1978)

Barbara Perry STALLINGS
v.
Bobby Ray STALLINGS.

No. 7710DC421.

Court of Appeals of North Carolina.

June 6, 1978.

Brenton D. Adams, Raleigh, for plaintiff appellee.

Tharrington, Smith & Hargrove by J. Harold Tharrington and Steven L. Evans, Raleigh, for defendant appellant.

VAUGHN, Judge.

In well researched briefs, both parties have directed us to cases from other jurisdictions that have considered what effect a wife's post-divorce sexual misconduct has upon a decree directing her former husband to pay her alimony. We elect not to review these cases because, among other reasons, our decision here must depend upon the General Statutes of this State. Plainly stated, the award of alimony was made pursuant to statute. The court cannot modify or take away that award of alimony except as provided by statute. There is no statute that allows the court to modify an award of alimony solely because of post-marital fornication.

G.S. 50-16.9(a) provides that an award for alimony may be modified upon a showing of changed circumstances. We hold, however, that the "changed circumstances" must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay. The term has no relevance to the post-marital conduct of either party.

Defendant seeks to rely on the statutory proscription against an award of alimony to a spouse against whom an issue of adultery has been found [G.S. 50-16.6(a)] as being an expression of legislative intent that indiscriminate sexual activity by a former wife should bar her right to continue to receive alimony from her former husband. The reliance is misplaced because the statute, plain on its face, does not so provide, and the courts are, quite properly, powerless to so extend the reach of the statutes.

The Legislature has seen fit to provide that if a dependent spouse receiving alimony under an order of a court of the state shall remarry, the right to alimony shall terminate. G.S. 50-16.9(b). If so inclined, the Legislature could have added other conditions under which the award could be terminated. It did not do so.

The order from which defendant appealed is affirmed.

Affirmed.

BROCK, C. J., and ERWIN, J., concur.