DANIEL R. ORREN, Plaintiff,
CAROLYN B. ORREN, Defendant.
in the Court of Appeals 8 March 2017.
by plaintiff from order entered 18 April 2016 by Judge
Christine Underwood in Alexander County District Court No. 09
Homesley, Gaines, Dudley & Clodfelter, LLP, by Edmund L.
Gaines and Leah Gaines Messick, for plaintiff-appellant.
E. Starnes for defendant-appellee.
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."
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 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.
and Procedural History
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.
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.
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
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
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.
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