Potts v. Tutterow

Judge GREENE

dissenting.

I agree with the majority that any part of the alimony award which accrued prior to the defendant’s remarriage remains payable and is not subject to divestment. I disagree, however, with the conclusion that only those portions of the award which were payable before the defendant’s remarriage were accrued.

“[A] lump sum award of alimony accrues when it is granted,” McCall v. Harris, 55 N.C. App. 390, 392 , 285 S.E.2d 335, 336 , disc. rev. denied, 305 N.C. 301 , 290 S.E.2d 703 (1982), and at that point the award becomes final and is not subject to modification. 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 17.5, at 270 (2d ed. 1987) (hereinafter Clark).

The only issue in this case is whether the award the trial judge made is in the nature of a “lump sum payment” or “periodic payments.” N.C.G.S. § 50-16.7(a) (1987). The order itself explicitly labels the alimony as “lump sum” and the fact that the award is payable in “installments” over a period of time does not alter its character. 2 Clark § 17.5, at 269-70 (lump sum alimony is alimony payable “at once or in installments”). In fact, “an award of alimony for a specified period of time” has been classified by our Supreme Court as “indubitably alimony in gross or ‘lump sum alimony.’ ” Whitesell v. Whitesell, 59 N.C. App. 552, 552 , 297 S.E.2d 172, 173 (1982), disc. rev. denied, 307 N.C. 583 , 299 S.E.2d 653 (1983) (citing Mitchell v. Mitchell, 270 N.C. 253, 257 , 154 S.E.2d 71, 74 (1967)). See Taylor v. Taylor, 46 N.C. App. 438, 443-44 , 265 S.E.2d 626, 629-30 (1980) (classifying $50,000 alimony award as “lump sum” even though it was “payable $30,000.00 within ten days of entry of judgment and the balance of $20,000.00 within four months thereafter”).

*367 In this case, the trial court ordered plaintiff to pay “lump-sum alimony of $54,240, payable in semi-monthly installments of $452, . . . until the sum of $54,240 is paid.” Such an award is an award of a definite sum payable over a specified period of time and, as such, is an award of lump sum alimony. See Mitchell, 270 N.C. at 257 , 154 S.E.2d at 74 ; Whitesell, 59 N.C. App. at 552 , 297 S.E.2d at 173 .

In this case, the award of lump sum alimony accrued, and defendant’s right to receive $54,240 therefore vested, upon entry of the order. McCall, 55 N.C. App. at 392 , 285 S.E.2d at 336 . Defendant at that time possessed a vested, non-modifiable right to receive $54,240, although actual receipt of the total amount was delayed until an ascertainable point in the future. Cf. Milam v. Milam, 92 N.C. App. 105, 106-07 , 373 S.E.2d 459, 460 (1988) (in equitable distribution action, pension was vested although not receivable until some point in the future), disc. rev. denied, 324 N.C. 247 , 377 S.E.2d 755 (1989); 2 Robert E. Lee, North Carolina Family Law § 169.8, at 235 (Supp. 1993) (inequitable distribution, pension rights, although vested, may not be payable until future date). This case is thus distinguishable from Faught, relied upon by the majority, because in that case, the payments of alimony were periodic in nature and did not vest until each payment was due. Faught v. Faught, 50 N.C. App. 635, 636 , 274 S.E.2d 883, 885 (1981). Furthermore, it is immaterial that immediate execution is not an available remedy with regard to the payments due in the future because vesting is an issue separate from execution.

Because defendant possessed a vested, non-modifiable right to receive the lump sum alimony award on the date the order was entered, her subsequent remarriage therefore did not operate to terminate her right to receive $54,240 from plaintiff. I would therefore reverse the trial court and remand for a hearing on the defendant’s motion for contempt.