On September 19, 2009 the North Carolina Court of Appeals issued an unpublished opinion in Underwood vs. Underwood. This case dealt with modification of alimony. A Consent Order was entered resolving the parties’ claims for alimony and equitable distribution. The Consent Order provided that the alimony payments would cease upon the death of either party or the remarriage of the wife. The Consent Order made no mention of termination of alimony payments upon cohabitation.
Seven years later the husband filed a motion to modify or terminate the alimony payments based upon the wife’s cohabitation, the husband’s decrease in income and the wife’s increase in income. The trial court allowed the modification and the wife appealed.
The wife’s position was that the Consent Order was not modifiable because the alimony provisions were integrated with the property division terms. The Court of Appeals agreed, noting that the test is not whether the payments are labled as “alimony” but rather whether the support payments and the property settlement provisions constitute reciprocal consideration for each other. The Consent Order at issue in this case contained language expressly integrating those terms. So, the Court ruled that the alimony provisions of the Consent Order were not modifiable and ruled in the wife’s favor.