Appeal judgement for dismissal of request of modification of alimony

I have been trying to have alimony modified for 5 years before child support ended. It finally went to court and my ex had the case dismissed due to lack of subject matter jurisdiction. The case Bauman Chacon v Baumann was cited. My attorney appealed per rule 58 or 59? arguing about how my case was different from the Baumann Chacon v Baumann. My case differs in that a divorce from Bed and Board was filed. The defense also claimed that my ex and I were not separated at the time the Divorce from Bed and Board was filed, which is up for debate and never was. However I have consulted another attorney who says there is no statute that says the parties must be separated to file for Divorce from Bed and Board.
I believe the Baumann Chacon V Baumann was misinterpreted because the case is about child custory primarily and spousal support, not alimony. No complaint had been filed by either party. However the judge upheld his ruling for the case to be dismissed.
I went to alimony court in 2013 and was awarded alimony and stated in the court order that the court had subject matter jurisdiction. I assumed this preserved my right to modifiy alimony. I understand that SMJ is a “black letter law”. However I contend the court did have SMJ due to the DB and B filed. It is valid to ask for support, post separation and alimony in the DB and B complaint. My ex refused to leave the home and refused to attend manditory mediation for child support and custody. I was the primary care giver to twins on the autism spectrum. To uproot them would have been traumatic for them. My attorney was unable to get a court date when going to calendar call twice. The attorneys decided to go to mediation in which I took the house. So the official date of separation was when my ex moved out of the house. The defense claims that a document had to be filed after separation in order for alimony court to have subject matter jurisdiction. I guess per the Baumann Chacon v Baumann? is this a new legal president? The original complaint is not valid not having the correct separation date on it? I was unable to maintain separation for months. I was enduring tremendous emotional abuse. He was the one that cheated but for 3 years pretended to want to save the marriage. Then he would claim that I was the one that had an affair to get out of spousal support in which he lost the case but it was horrifically stressful and expensive. I was a dependent spouse and have had to live on money gifted from my mother along with the 700 my ex was paying a month. He makes over 166k a year. I have been legally harassed. I have been betrayed in every way imaginable in my marriage.
If the court was ruled to not have subject matter jurisdiction for alimony can I be forced to pay back the alimony I did receive? What is your opinion of my case and appealing the decision? I fear that if I dont appeal one thing may be to be forced to repay alimony. . .

If you were receiving alimony pursuant to a court order, I don’t believe you would be required to repay alimony. There is no requirement of a document to be filed with the courts after a physical separation occurs. A divorce from bed and board judgment should have been plenty sufficient to establish a separation based on the information you’ve been provided.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Thank you for your reply. There is a problem with the Divorce from Bed and Board that was filed in that a date of separation was declared when in fact separation had not occurred. This was never amended. The motion was not heard in court. Separation occurred due to mediation. In the agreement my right to post separation support and alimony was still valid to pursue as it was not addressed. The date of separation would occur the day my ex husband vacated the marital home. This was the date used for subsequent motions. This is the date used for the alimony order and the divorce decree.
In filing for a motion to modify alimony the defense filed a motion to dismissed due to subject matter jurisdiction. Part of it was based on the inaccurate date of separation that was documented in the Divorce from Bed and Board. Part of the motion was to use Bauman Chacon v Bauman which there is a portion that was interpreted that a motion has to be filed in order to request alimony. If my Divorce from Bed and Board is considered not valid then something needed to be filed instead per the interpretation in Bauman Chacon case law. I felt I needed to clarify further my situation in this matter to see if I should pursue Appeals court. If the judge would dismiss my case because of incorrect date of separation anyway, or was the interpretation of Bauman needed? I do feel the case law was very twisted and not intended for the way it was used in my case. I do feel that the court would rule in my favor. But what about the incorrect date? I want to be clear that even if the Divorce from Bed and Board is dismissed whether it is necessary to file something more in order to request alimony. Alimony court did occur but now that has been dismissed due to lack of SMJ.
in the judge’s findings: "the motion to dismiss"The motion alleged that the pleading by the Plaintiff was filed prior to the time the parties actually separated. the plaintiff alleged the date of separation was Feb 2, 2011 and the Finding of the Fact in the Alimony order, after the parties litigated the issue the date of separation was found to be Feb. 18, 2012, more than one year later.

The court finds that there is no subject matter jurisdiction because there was no filing after the day of separation for the purposes of alimony. The plaintiff in response to the motion to dismissal, filed a motion to amend her pleading to file a supplemental claim pursuant to rule 15 on the NC rule of civil procedure. The court finds that allowing an amendment to the pleadings after the judgement of Divorce , and after the Alimony Order has been entered, would be tantamount to a judicial waiver of subject matter jurisdiction. based upone the forgoing finding of fact the court concludes as a matter pf law the court does not have SMJ over he alimony and PSS.
That it is not appropriate as a matter of law to allow the plaintiff to amend the pleadings. Based upon the foregoing findings of facts and conclusions of law, it is ordered, adjudge d and decreed, that the plaintiff’s claims for alimony and PSS are dismissed for lack of SMJ, . That the plaintiff’s motion to amend the pleading is hereby denied.
The findings of Fact per the judge in the appeal it is stated that the basis of the court’s ruling was that the findings of the prior Order clearly indicated that the parties were not separated when the complaint for post separation support and alimony were filed. On December 28, Plaintiff filed a Motion to alter or amend Judgement based on error of law. the Gravamen of the plaintiff’;s claim is that the NCGS 5016.1 (1) (4) states that Postseparation support may be ordered in an action for divorce whether absolutet of from bed and board…, That in the Bauman chacon v Bauman case, upon which the court partially replied, only involved a claim for postseparation support and not alimony, and that in Bauman there was no claim filed for divorce from bed and board. After careful revieo of the pleadings, statute, ,case law and arguments of counsel, the court finds that the court does not acquire jurisdiction over claims for PSS and Alimony if those claims are filed prior to the separation of the parties.

So in Bauman Chacon the plaintiff had not separated from her husband and was asking for child custody and support, as well as post separation. The court had dismissed the case due to lack of SMJ. The Appeals court said the courts did have SMJ in the matter of child support and custody if the parties are not separated. . But this leaves the argument that Postseparation support can be and was argued that this means that the parties must be separated to file any claim for post separation…

I dont know whether to appeal this. It seems that perhaps if the DB and B was never filed this wouldnt be a problem. I know this is a lot to ask about. But I want to know whether I have a strong case to appeal given the facts i have provided. It is very confusing.

The judge’s order seems very clear that regardless of the divorce from bed and board filing, the claims for postseparation support and alimony were filed before the time you and your husband actually separated. This is an accurate statement of the law and would likely be upheld by the Court of Appeals.

However, if you are considering an appeal, it would be best to consult with a family law appellate attorney first, or even your trial level family law attorney that represented you during these proceedings. Also, keep in mind that you only have 30 days from the date the order is entered (the date it is file stamped) to file a notice of appeal.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.