Brown v. Brown

355 S.E.2d 525 (1987)

Joann BROWN, Plaintiff,
v.
D.T. BROWN, Jr., Original Defendant,
v.
Paul G. BROWN and Gladys Brown, Additional Defendants.

No. 8624DC1217.

Court of Appeals of North Carolina.

May 5, 1987.

Petree Stockton and Robinson by Robert J. Lawing and Kevin L. Miller, Winston-Salem, and McElwee, McElwee, Cannon and Warden by William H. McElwee, III, North Wilkesboro, for plaintiff-appellant.

Howell and Peterson, P.A. by Allen J. Peterson, Burnsville, for defendant-appellee.

PARKER, Judge.

At the outset, we must determine whether this appeal is premature and therefore should be dismissed. Defendant has filed a motion to dismiss the appeal with this Court, contending it is interlocutory as the order related only to temporary alimony and thus there has not been a final judgment entered below. While we agree with defendant that the appeal is interlocutory, the order entered below affects a "substantial right" within the meaning of G.S. 1-277(a) and G.S. 7A-27(d)(1) and is, therefore, immediately appealable.

Normally, appeals from orders granting a dependent spouse alimony pendente lite are not allowed, as such appeals are too often undertaken for the sole purpose of delaying compliance with the order. See Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981). However, an appeal from an order denying temporary alimony to a dependent spouse does not raise the same concerns about unjust delays. See Mayer v. Mayer, 66 N.C.App. 522, 311 S.E.2d 659, disc. rev. denied, 311 N.C. 760, 321 S.E.2d 140 (1984). Similarly, this case involves an order terminating a dependent spouse's right to receive temporary alimony and an appeal from such an order by the dependent spouse does not implicate the policy underlying the Stephenson decision of preventing the supporting spouse from frustrating the temporary alimony order by pursuing fragmentary appeals.

In our view, the question of plaintiff's continued entitlement to the previously ordered alimony pendente lite until such time as her prayer for permanent alimony can be heard affects a "substantial right" of the dependent spouse. Therefore, the motion to dismiss the appeal as interlocutory is denied.

Turning to the merits of the appeal, plaintiff contends that the mere discovery of her adultery is not sufficient for a finding of "changed circumstances" necessary for a modification of an order of alimony pendente lite under G.S. 50-16.9(a). We agree. The record discloses that the adultery occurred before the parties' separation and before plaintiff filed her complaint for divorce. Moreover, the pleadings reveal that defendant suspected his wife's adultery and alleged adultery as a bar to plaintiff's claim for alimony under G.S. 50-16.6(a). Yet, despite his suspicions, defendant did not challenge his wife's claim for temporary alimony by proceeding to a hearing. Instead, he entered into a consent judgment, agreeing to pay her $1,200 a month in alimony pendente lite.

To modify an order of the court for alimony pendente lite, including one entered by consent, the party seeking the modification bears the burden of proving a material change in the circumstances justifying the modification. G.S. 50-16.9(a); Britt v. Britt, 49 N.C.App. 463, 271 S.E.2d 921 (1980). The determination of changed circumstances must be made by comparing the circumstances existing at the time of the original order with the circumstances as they exist at the time the modification is sought. Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772, disc. rev. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

When dealing with modification of orders for permanent alimony, "the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay." Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). See also Stallings v. Stallings, 36 N.C.App. 643, 244 S.E.2d 494, disc. rev. denied, 295 N.C. 648, 248 S.E.2d 249 (1978). This limitation is imposed because the issues of the spouses' respective roles as dependent and supporting spouse, and the dependent spouse's entitlement to alimony are permanently adjudicated by the original order. Rowe, supra. An order for alimony pendente lite is, however, by nature a temporary order. Changes in circumstances, including sexual misconduct not condoned, which occur after the entry of an order for alimony pendente lite may, therefore, affect the dependent spouse's entitlement to support, as there has been no permanent adjudication of that entitlement.

In this case, plaintiff had committed adultery prior to the entry of the consent judgment. By entering into the consent judgment, defendant agreed that, as of that date, his wife was entitled to alimony pendente lite. There was no evidence to support and the court did not find a material change in circumstances subsequent to the entry of the consent order.

Defendant failed to meet his burden of showing changed circumstances under G.S. 50-16.9(a). The order appealed from is vacated and the cause remanded for entry of an order requiring defendant to pay the accrued arrearages.

Vacated and remanded.

HEDRICK, C.J., and EAGLES, J., concur.