               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
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                                     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



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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



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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



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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



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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.




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