By: Jessica S. Bullock, Board Certified Family Law Specialist
In our day to day, lawyers, judges, and parties often interchange the words “alimony” and “spousal support;” however, a recently published Court of Appeals’ opinion reminds us of the distinction between these two legal terms.
In Meeker v. Meeker, husband and wife were married in 1982, separated in 2009 and divorced in 2011. In 2010, prior to the parties’ divorce, the parties entered into a Separation Agreement which, in part, provided that husband agreed to make monthly “alimony[1]” payments to wife in the amount of $7,577.78 per month until 2025. The parties further agreed that husband’s payments to wife would terminate earlier than 2025, if wife were to cohabitate, pass away or remarry.
In 2019, husband believed that wife had been cohabitating with another man because she had been spending almost every night at another man’s home for about two years, so he stopped paying wife her monthly support payments. She did not agree that she had been cohabitating and filed a lawsuit for Breach of Contract and Specific Performance with the Forsyth County District Court. Litigation ensues.
Three key issues were addressed by the Court of Appeals in its opinion.
(1) Did the trial court err by finding that Wife had no cohabitation?
(2) Did the trial court err by entering an Order of Specific Performance without finding Husband had the ability to comply?
(3) Did the trial court err by then finding the Husband in civil contempt of the Order for Specific Performance after he had noticed his appeal?
This particular article focuses on the third issue.
Generally, once an appeal has been perfected, the trial court loses its jurisdiction to enforce the order subject to appeal while it is up on appeal. Lowder v. All Star Mills, Inc., 301 N.C. 561, 582, 273 S.E.2d 247, 259 (1981). Here, the Husband had noticed his appeal approximately four months before the trial court held him in civil contempt.
This is a time where the difference between spousal support or alimony payments in a contract versus a court order makes a significant difference. The Court of Appeals held that:
we recognized that our General Assembly has provided “[n]otwithstanding the provisions of G.S. 1-294 . . . an order for the periodic payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal.” N.C. Gen. Stat. § 50-16.7(j) (2021). However, here, the Order was not one directing the payment of “alimony.”
Meeker v. Meeker, No. COA22-931 (2 January 2024). Pursuant to N.C.G.S. § 50-16.1A(1), “alimony” is defined as “an order [by a court] for payment for the support and maintenance of a spouse or former spouse”. (Emphasis added). Therefore, despite being called “alimony” in the parties’ separation agreement, the payments agreed upon between Husband and Wife were actually spousal support payments, because their Agreement was never incorporated into a court order.
Bottom Line? An Order for Specific Performance regarding spousal support payments is not enforceable by contempt during the pendency of the appeal. This case serves as a great reminder for practitioners to be cognizant of all of the benefits and risks in resolving spousal support via an unincorporated Separation Agreement, so that they can better counsel their clients.
[1] The Separation Agreement terms the payments “alimony.”