1. Divorce--alimony--amount--discretion of trial judge
The trial court did not err in awarding $2,400 per month of alimony even though the
parties previously agreed that a $2,200 obligation would be sufficient for alimony pendente lite
because: (1) the amount of alimony is in the sound discretion of the trial court; (2) the amount
of alimony pendente lite to which the parties consent does not bind the trial court as to the
amount of permanent alimony it must eventually award; and (3) the determination of what
constitutes reasonable needs and expenses of a party in an alimony action is within the discretion
of the trial judge, and he is not required to accept at face value the assertion of living expenses
offered by the litigants themselves.
2. Divorce--alimony--duration--specific findings not required
The trial court did not err by failing to make findings relative to the duration of the
alimony award because the action was filed on 16 July 1993, and N.C.G.S. § 50-16.3A provides
that only actions filed on or after 1 October 1995 require specific findings relative to the
duration of any alimony award.
3. Child Support, Custody, and Visitation--support--amount--discretion of trial judge
The trial court did not err by ordering $2,350 per month in child support when the prior
consent order awarded $2,000 in temporary child support because the amount of temporary child
support agreed to by the parties does not bind the trial court as to the amount of permanent child
support.
4. Child Support, Custody, and Visitation--support--needs and expenses--discretion of
trial judge
The trial court did not err in computing defendant-father's child support obligation based
on the child's reasonable needs and expenses of $3,407 per month because the determination of
what constitutes reasonable needs and expenses is within the discretion of the trial judge, and he
is not required to accept at face value the assertion of expenses offered by the litigants
themselves.
5. Divorce--alimony and child support--attorney fees--sufficiency of findings--means
to defray litigation expenses--good faith
In an action for alimony and child support, the trial court erred in awarding $4,889 in
attorney fees under N.C.G.S. § 50-16.3 (now 50-16.4) and N.C.G.S. § 50-13.6 to plaintiff-wife
because the trial court made insufficient findings regarding: (1) whether the dependent spouse
has insufficient means to defray her litigation expenses based on both her disposble income and
her separate estate; and (2) whether the party seeking attorney fees is an interested party acting
in good faith.
6. Divorce--alimony and child support--attorney fees--comparison of separate estates--
discretion of trial court
Although a comparison of separate estates is not required in determining the propriety ofattorney fees under N.C.G.S. § 50-16.3 (now 50-16.4) and N.C.G.S. § 50-13.6 in an alimony
and child support case, on remand the trial court may do so, if it chooses, to determine whether
any necessary depletion of plaintiff-wife's estate would be reasonable.
7. Divorce--alimony--automatic termination--cohabitation--specific agreement
between parties required
In the absence of a specific agreement between the parties, the trial court erred in
including a provision in its alimony award that alimony could automatically terminate upon
plaintiff-wife's cohabitation with someone of the opposite sex in the absence of explicit statutory
authority because: (1) this action was filed on 16 July 1993, and the automatic termination of
alimony provision for cohabitation under N.C.G.S. § 50-16.9(b) only applies to actions filed on
or after 1 October 1995; (2) the only limited circumstances that automatically terminate alimony
include the death of either spouse, remarriage of the dependent spouse, and reconciliation
between spouses; (3) cohabitation alone cannot be grounds for modification of alimony, and
therefore, the trial court should not be able to circumvent this limitation by inserting
cohabitation as a prospective ground for termination; and (4) a cohabitation provision is not
analogous to an alimony award for a period of years terminable upon the occurrence of a certain
event since our statutes specifically empower a trial judge to award alimony for a specific period
of years and they do not confer the same power with respect to the occurrence of certain events,
such as cohabitation.
Casstevens, Hanner, Gunter & Gordon, P.A., by Mark D.N. Riopel
and Robert P. Hanner, II, for plaintiff-cross-appellant.
Helms, Cannon, Hamel & Henderson, P.A., by Thomas R. Cannon
and Christian R. Troy, for defendant-appellant.
LEWIS, Judge.
Defendant appeals from an order requiring him to pay $2400 per
month in alimony, $2350 per month in child support, and $4889 in
attorneys' fees. Plaintiff cross-appeals from that part of the
order stating that alimony terminates should she ever cohabit with
a person of the opposite sex.
Plaintiff and defendant married on 30 May 1970 and separated
on 22 March 1993. The parties entered into a consent order on 7December 1993 covering, among other things, the issues of alimony
pendente lite and temporary child support. Pursuant to that
consent order, defendant agreed to pay $2200 per month in alimony
and $2000 per month in child support. A divorce decree was issued
on 16 May 1994, and a consent order for equitable distribution was
subsequently entered on 9 January 1995. The issues of permanent
alimony and permanent child support were not addressed until the
order that is the subject of this appeal. Other facts will be
presented as necessary for the proper resolution of the issues
raised by each party. We now turn to those issues.
[1]Defendant first assigns error with the trial court's
alimony award. He does not take issue with plaintiff's entitlement
to alimony, but rather takes issue with the amount the trial court
ordered him to pay. Decisions regarding the amount of alimony are
left to the sound discretion of the trial judge and will not be
disturbed on appeal unless there has been a manifest abuse of that
discretion. Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658
(1982). We find no such abuse of discretion here.
Defendant argues that, in ordering $2400 per month in alimony,
the trial court failed to account for the prior consent order as to
alimony pendente lite, in which both parties agreed that a $2200
monthly obligation would be sufficient. This argument is
completely without merit, and defendant even admitted as much at
oral argument. By definition, alimony pendente lite is only
temporary in nature; it just means the amount of alimony to be paid
"pending the final judgment of divorce." N.C. Gen. Stat. § 50-
16.1(2) (repealed 1995). Its purpose is simply to help thedependent spouse subsist and maintain herself during the pendency
of the divorce litigation. Little v. Little, 12 N.C. App. 353,
356, 183 S.E.2d 278, 280 (1971). Accordingly, the amount of
alimony pendente lite to which the parties consent does not bind
the trial court as to the amount of permanent alimony it must
eventually award.
Defendant also argues that, in calculating the $2400 monthly
award, the trial court erred in computing the needs and expenses of
each party. In his financial affidavit submitted to the trial
court, defendant listed $2100 in projected monthly housing costs to
enable him to attain better housing. The trial court, however,
considered these projections speculative and reduced this figure to
$960.50 in finding defendant's total monthly needs and expenses to
be $2823.35. Defendant maintains that this amounted to an abuse of
the trial judge's discretion. We disagree. "The determination of
what constitutes the reasonable needs and expenses of a party in an
alimony action is within the discretion of the trial judge, and he
is not required to accept at face value the assertion of living
expenses offered by the litigants themselves." Whedon v. Whedon,
58 N.C. App. 524, 529, 294 S.E.2d 29, 32, disc. review denied, 306
N.C. 752, 295 S.E.2d 764 (1982). Implicit in this is the idea that
the trial judge may resort to his own common sense and every-day
experiences in calculating the reasonable needs and expenses of the
parties. Here, the trial court apparently felt the $2100 in
projected housing costs was unreasonable and then reduced that
figure to an amount it felt was more reasonable. By doing so, we
find no abuse in the exercise of its discretion. Defendant also claims error in the trial court's calculationsas to plaintiff's needs and expenses. In her financial affidavit,
plaintiff listed her expenses as $1941.71 per month. The trial
judge concluded that five of these expenses were unreasonable and,
without making any further findings, reduced plaintiff's figure by
$625.49. Defendant argues that, even though the trial court's
reduction ultimately benefited him, the trial court's calculations
are "patently defective" absent appropriate findings to explain
them. Again we disagree. As previously stated, the trial judge is
not bound by the financial assertions of the parties and may resort
to common sense and every-day experiences. By reducing some of
plaintiff's expenses here, the trial court did not abuse its
discretion.
[2]Defendant also argues that the alimony award is flawed
because the trial court made no findings relative to the duration
of the award, instead just mandating a lifetime award. Our
statutes presently do require specific findings relative to the
duration of any alimony award. N.C. Gen. Stat. § 50-16.3A(c)
(1999). Significantly, however, this requirement only applies to
actions filed on or after 1 October 1995. N.C. Gen. Stat. § 50-
16.3A, Editor's Note (1999). This action was filed on 16 July
1993, pre-dating the present statute. The prior applicable version
of the statute contained no requirement that there be findings
relative to the duration of any alimony award. See N.C. Gen. Stat.
§ 50-16.5(a) (repealed 1995) ("Alimony shall be in such amount as
the circumstances render necessary, having due regard to the
estates, earnings, earning capacity, condition, accustomed standardof living of the parties, and other facts of the particular
case."). Accordingly, the trial court did not err by making no
findings to support its lifetime award.
[3]Next, defendant assigns error with the trial court's child
support award. At the outset, we note that the parties' combined
annual income exceeds $150,000. Accordingly, the North Carolina
Child Support Guidelines do not apply, and any child support award
is to be determined on a case-by-case basis. N.C. Child Support
Guidelines, 1999 Ann. R. N.C., Commentary at 32. Defendant argues
that, in ordering $2350 per month in child support, the trial court
failed to account for the prior consent order as to temporary child
support, in which both parties agreed that a $2000 monthly
obligation would be sufficient. We reject this argument for the
same reason that we rejected defendant's similar argument with
respect to the alimony pendente lite consent order -- the amount of
temporary child support agreed to by the parties does not bind the
trial court as to the amount of permanent child support it
eventually awards.
[4]Defendant also asserts error in the trial judge's findings
with respect to the child's needs and expenses. In computing
defendant's child support obligation, the trial court found the
child to have reasonable needs and expenses of $3407 per month. In
arriving at this figure, the trial court again did not accept all
the projected expenses submitted by plaintiff, choosing to reduce
those numbers by $466 without making any further findings.
Although this reduction again benefited him, defendant argues thatthe award is nonetheless defective because the trial court did not
make appropriate findings to justify this reduction. For the same
reasons as we articulated earlier, this argument is without merit.
[5]Finally, defendant assigns error to the trial court's
award of $4889 in attorneys' fees to plaintiff. We conclude that
the trial court made insufficient findings relative to its award of
attorneys' fees and therefore remand the matter to the trial court
for further findings.
"[T]he purpose of the allowance of counsel fees is to enable
the dependent spouse, as litigant, to meet the supporting spouse,
as litigant, on substantially even terms by making it possible for
the dependent spouse to employ adequate counsel." Williams v.
Williams, 299 N.C. 174, 190, 261 S.E.2d 849, 860 (1980).
Accordingly, before an award of attorneys' fees in either a child
support or alimony case is permissible, there must be a threshold
finding that the dependent spouse has insufficient means to defray
her litigation expenses. See N.C. Gen. Stat. § 50-13.6 (1999)
(relating to child support); N.C. Gen. Stat. §§ 50-16.3, -16.4
(repealed 1995) (relating to alimony). In making this
determination, the trial court should focus on both the disposable
income of the dependent spouse and on her separate estate. Van
Every v. McGuire, 348 N.C. 58, 62, 497 S.E.2d 689, 691 (1998).
Here, plaintiff has a separate liquid estate of $88,000 from which
she could pay her litigation expenses. The trial court, however,
apparently failed to take this into account and instead just
focused on her negative disposable income to justify the award ofattorneys' fees. While the presence of a substantial separate
estate does not automatically negate the dependent spouse's right
to attorneys' fees, the trial court must still find that the use of
her separate estate to pay her litigation expenses would amount to
an unreasonable depletion of that estate before it awards her
attorneys' fees. Chused v. Chused, 131 N.C. App. 668, 673, 508
S.E.2d 559, 563 (1998). The trial judge made no such finding here.
Furthermore, before an award of attorneys' fees is warranted in an
action involving child support, the trial judge is required to
determine whether the party seeking attorneys' fees is an
interested party acting in good faith. N.C. Gen. Stat. § 50-13.6
(1999). The trial court again made no such finding here, and we
are obligated to remand for that determination. See Cox v. Cox,
133 N.C. App. 221, 231, 515 S.E.2d 61, 66 (1999).
[6]We note that, in their briefs, the parties argue over
whether a comparison of the separate estates is required in
determining the propriety of attorneys' fees. Defendant contends
that such a comparison is required, especially since he apparently
has no separate estate here. Plaintiff, on the other hand,
contends that no such comparison is necessary. Our Supreme Court
recently clarified this issue in Van Every v. McGuire, 348 N.C. 58,
497 S.E.2d 689 (1998). Specifically, a trial judge is not required
to compare the separate estates of both parties, but may do so
under appropriate circumstances. Id. at 60, 497 S.E.2d at 690.
Thus, on remand, the trial court may, if it so chooses, engage in
a comparison of plaintiff's and defendant's separate estates tohelp it determine "whether any necessary depletion of [plaintiff's]
estate by paying her own expenses would be reasonable or
unreasonable." Id. at 62, 497 S.E.2d at 691.
[7]Having now considered all issues raised by defendant in
his appeal, we move to plaintiff's cross-appeal. In her cross-
appeal, plaintiff contests that portion of the trial court's order
terminating her right to alimony should she ever cohabit with
someone of the opposite sex. Our current statutes affirmatively
state that cohabitation automatically terminates any alimony
obligation. N.C. Gen. Stat. § 50-16.9(b) (1999). However, this
statute only applies in actions filed on or after 1 October 1995.
Id., Editor's note. Because the instant action was filed 16 July
1993, the automatic termination provision in section 50-16.9(b) is
not applicable here. No such cohabitation provision appeared in
the pre-1995 version of the statute. We are thus left to decide
whether the trial court could automatically terminate alimony upon
cohabitation in the absence of explicit statutory authority. We
hold that it could not.
Heretofore, alimony has been automatically terminable only in
limited circumstances. The death of either spouse warrants
automatic termination. Hester v. Hester, 239 N.C. 97, 100, 79
S.E.2d 248, 251 (1953). Likewise, remarriage of the dependent
spouse automatically terminates the supporting spouse's alimony
obligation. N.C. Gen. Stat. § 50-16.9(b) (amended 1995). And
finally, reconciliation between the spouses is grounds for
automatic termination. O'Hara v. O'Hara, 46 N.C. App. 819, 821,266 S.E.2d 59, 59 (1980). We see no justification for extending
these grounds to include cohabitation. We have previously held
that, in a petition to modify alimony, cohabitation, standing
alone, is not a sufficient change of circumstances to warrant
terminating the alimony obligation. See Stallings v. Stallings, 36
N.C. App. 643, 645, 244 S.E.2d 494, 495, disc. review denied, 295
N.C. 648, 248 S.E.2d 249 (1978). If cohabitation cannot be grounds
for modification of alimony, then the trial judge should not be
able to circumvent this limitation by simply inserting cohabitation
as a prospective ground for termination.
Defendant analogizes this cohabitation provision to an alimony
award for a period of years. He argues that, just as the trial
court can terminate alimony upon a certain number of years, it
should be able to terminate alimony upon the occurrence of a
certain event, such as cohabitation. We find this analogy
unpersuasive. Our alimony statutes specifically authorize alimony
to be in lump sum or periodic payments. N.C. Gen. Stat. § 50-
16.1(1) (repealed 1995). An alimony award for a specified period
of years is one form of a lump sum payment. Whitesell v.
Whitesell, 59 N.C. App. 552, 552, 297 S.E.2d 172, 173 (1982), disc.
review denied, 307 N.C. 503, 299 S.E.2d 653 (1983). Thus, our
statutes specifically empower a trial judge to award alimony for a
specified period of years; they do not confer the same power with
respect to the occurrence of certain events, such as cohabitation.
Accordingly, we hold that, prior to the 1995 statutory amendments,
the trial court had no authority to include a provisionautomatically terminating alimony upon cohabitation.
In passing, we feel obliged to clarify that our holding today
in no way affects the ability of parties to include a termination-
upon-cohabitation provision in separation agreements, whether or
not specifically incorporated into a court order. Such provisions
have previously been upheld by this Court, and we do not disturb
these prior holdings. See, e.g., Condellone v. Condellone, 129
N.C. App. 675, 686 n.2, 501 S.E.2d 690, 697 n.2, disc. review
denied, 349 N.C. 354, 517 S.E.2d 889 (1998); Rehm v. Rehm, 104 N.C.
App. 490, 409 S.E.2d 723 (1991). Our holding today only restricts
a trial court in cases filed before 1 October 1995 from including
such a provision in alimony orders in the absence of a specific
agreement between the parties.
In summary, we affirm the trial court's awards of $2400 per
month in alimony and $2350 per month in child support. We vacate
its order with respect to attorneys' fees and remand to the trial
court for further findings. Finally, we vacate that portion of the
trial court's order automatically terminating plaintiff's right to
alimony upon cohabitation and remand for the entry of a new order
without that provision.
Affirmed in part, vacated in part, and remanded.
Judges WYNN and MARTIN concur
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