Appeal by defendant from order entered 6 October 1998 by Judge
L.W. Payne in Wake County District Court. Heard in the Court of
Appeals 23 February 2000.
Sokol & Lefante, P.A., by Elizabeth C. Todd and William L.
Ragsdale, for plaintiff-appellee.
Tharrington Smith, L.L.P., by Carlyn G. Poole, Jaye Meyer, and
Suzanne G. Richards, for defendant-appellant.
EDMUNDS, Judge.
Defendant appeals from an order finding her not to be a
dependent spouse and denying her claim for alimony. We vacate the
order and remand to the district court for further action.
Plaintiff James S. Rhew and defendant Luetta F. Rhew were
married 25 November 1966. They separated 1 October 1995 anddivorced 31 October 1997. Two children born of the marriage had
reached the age of majority at the time of the parties' divorce.
During their marriage, plaintiff obtained undergraduate and
graduate degrees and was the parties' major financial support.
Although defendant periodically worked, she devoted most of her
time to the children and to the home.
Throughout their marriage, the parties enjoyed a comfortable
standard of living. They budgeted a sizeable portion of their
income to savings and retirement accounts. When the parties
separated, plaintiff was earning $85,000 per year, while defendant
was unemployed. After the separation, defendant, who was then
approximately fifty years old, moved into her parents' home. At
the time of the hearing, plaintiff's annual income exceeded
$104,000, while defendant was earning $40,000 per year. After the
hearing on defendant's claim for alimony, the trial court made the
following pertinent findings of fact:
6. In 1994, the last full year of the
marriage, the parties had about $5,000 per
month of disposable income after deducting for
taxes and savings. . . .
7. In 1995 the parties had about $4,000
per month of disposable income after deducting
for taxes and savings. . . .
8. Since the date of separation
defendant has resided with her parents and has
had minimal expenses except for groceries.
9. Defendant presently has substantial
deductions from her bi-monthly salary for
deferred compensation and stock purchases. Itappears that she would have about $2,500 per
month in disposable income if she had only
mandatory deductions from her salary.
10. As of the date of this hearing the
parties had not resolved their respective
claims for equitable distribution. Defendant
is entitled to an equitable share of the
proceeds from the sale of the marital
residence, a substantial amount of IBM stock,
plaintiff's IBM retirement and the other
assets of the marriage. After equitable
distribution defendant will have the ability
to make a substantial down payment toward the
purchase price of a residence and should beable to finance the unpaid amount with a
relatively small mortgage.
11. Defendant's claim for alimony is
based in part on the argument that the
accustomed standard of living of the parties
included significant monthly contributions to
savings. It does not appear that the
appellate courts of this state have addressed
this issue. However, the appellate courts
have stated that the purpose of alimony is to
provide “reasonable subsistence” to a
dependent spouse. This Court understands
“reasonable subsistence” to mean the
necessities of daily living, including but not
limited to shelter, utilities, food and
clothing, but not including putting money away
for the future. Based upon this understanding
of the law of North Carolina and based further
upon the estate of defendant as set forth in
paragraph #10, the income of defendant and the
disposable income of the parties during the
last two years of the marriage as set forth in
paragraphs #6 and 7, it appears that defendant
has the ability to provide “reasonable
subsistence” for herself consistent with the
parties' accustomed standard of living and
that she is not, therefore, a dependent
spouse.
The trial court accordingly found that defendant was not entitled
to alimony. Defendant appeals.
I.
Defendant first argues the trial court erred by “fail[ing] to
make the detailed findings of fact needed to determine dependency.”
Only a dependent spouse, that is, one “who is
actually
substantially dependent upon the other spouse for his or her
maintenance and support
or is substantially in need of maintenance
and support from the other spouse,” N.C. Gen. Stat. § 50-16.1A(2)
(1999) (emphasis added), is entitled to alimony in North Carolina,
N.C. Gen. Stat. § 50-16.3A(a) (1999). To be “actuallysubstantially dependent,” a spouse must have “actual depende
nce on
the other in order to maintain the standard of living to which he
or she became accustomed during the last several years prior to the
spouses' separation.”
Talent v. Talent, 76 N.C. App. 545, 548, 334
S.E.2d 256, 258 (1985) (citation omitted),
superseded on other
grounds by N.C. Gen. Stat. § 50-16.3A(a). If the trial court
determines that one spouse is not
actually dependent upon the
other, the court must consider the second test set out in N.C. Gen.
Stat. § 50-16.1A(2) and determine whether one spouse is
“substantially in need of maintenance and support” from the other.
In other words, the court must determine whether one spouse would
“be unable to maintain his or her accustomed standard of living,
established prior to separation, without financial contribution
from the other.”
Talent, 76 N.C. App. at 548, 334 S.E.2d at 258-
59.
Section 50-16.3A(b) directs the trial court to “consider all
relevant factors” when making the determination of alimony and
enumerates fifteen such relevant (but non-exclusive) factors. N.C.
Gen. Stat. § 50-16.3A(b). “'The trial court must at least make
findings sufficiently specific to indicate that the trial judge
properly considered each of the factors . . . for a determination
of an alimony award.'”
Lamb v. Lamb, 103 N.C. App. 541, 545, 406
S.E.2d 622, 624 (1991) (quoting
Skamarak v. Skamarak, 81 N.C. App.
125, 128, 343 S.E.2d 559, 561 (1986) (citations omitted));
see also
Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986)
(“The analysis under this test . . . requires detailed and specificfindings by the trial court.”). “In the absence of such
findings,
appellate courts cannot appropriately determine whether the order
of the trial court is adequately supported by competent evidence,
and therefore such an order must be vacated and the case remanded
for necessary findings.”
Talent, 76 N.C. App. at 548-49, 334
S.E.2d at 259 (citation omitted). Accordingly, “'[t]he requirement
for detailed findings is thus not a mere formality or an empty
ritual; it must be done.'”
Lamb, 103 N.C. App. at 545, 406 S.E.2d
at 624 (quoting
Skamarak, 81 N.C. App. at 128, 343 S.E.2d at 562
(citation omitted)).
Plaintiff contends that defendant presented insufficient
evidence to enable the trial court to make detailed findings of
fact. However, a review of the record reveals that substantial
evidence was presented to the court. On 31 October 1997, defendant
submitted an affidavit to the court listing her monthly income and
expenses. Her monthly gross income was $3,333 and her monthly
expenses (including,
inter alia, medical, entertainment, insurance,
and 401(k) savings) totaled $2,445. Although she lived with her
parents at the time of the hearing, on the basis of her prior
expenses she estimated additional monthly expenses (including house
payment, power and water, homeowner's fees or maintenance, property
insurance, etc.) to be $2,241.
During the hearing on defendant's claim for alimony, defendant
indicated her desire to move into a home of her own. She testified
as to an affair plaintiff had from 1976 to 1981, but about which
she had not become aware until 1989. She testified about herhealth problems. Upon being diagnosed with cancer shortly after
the parties' separation, she underwent a mastectomy in November
1995, followed by reconstructive surgery. She needed to see a
neuromuscular therapist once a week, but because those visits were
not covered by her insurance, she had to reduce her visits to once
a month. Defendant also testified that she takes medication for
diabetes and depression and had been diagnosed with Attention
Deficit Disorder.
As to her monthly expenses, defendant testified that she based
the estimated $2,241 mortgage and utility expenses that she would
have to pay upon moving out of her parents' home on the similar
expenses incurred while married. She testified that her automobile
expenses included $70 or $80 per month in gasoline, approximately
$300 every six months for auto insurance, and $1,050 on recent car
repairs. She testified that her medical expenses not covered by
insurance averaged $784 per month. She paid $220 per month for
health insurance and contributed $667 per month to her 401(k) plan.
Defendant testified that during their marriage, the parties
went on vacations, weekend trips, boat outings, etc. When
defendant was working, the parties employed a domestic. During
their marriage, the parties made regular donations to their church,
went out regularly to dinner and movies, and entertained friends at
their home. Defendant testified she was unable to maintain that
same standard of living at the time of the hearing, but that if she
received contributions from plaintiff, she would be able to own her
own home. Defendant also called plaintiff as a witness. He testified
that he owned a 2,500 square-foot home on which he made monthly
mortgage payments of $1,700. To make this payment, plaintiff had
stopped his practice of devoting approximately 25% of his income to
investing. Plaintiff's total taxable income for 1997 was $104,413.
At the time of the hearing, he entertained regularly. He indicated
a vehicle debt of $30,000 because he needed to purchase a new car.
He dined in restaurants approximately twenty times a month, and his
monthly grocery bill was about $300 per month. Plaintiff spent $55
per month for medication for high blood pressure and diabetes. He
paid $80 twice a month to have his home cleaned and estimated an
additional $140 for maintenance that he may need. He had taken
several trips in the six months prior to the hearing to such
destinations as Nashville, Tennessee, and the Bahama Islands.
This evidence was sufficient to enable the trial court to
consider the relevant factors and make specific findings of fact
required by N.C. Gen. Stat. § 50-16.3A. However, the actual
findings of fact made by the trial court and quoted above are
insufficiently detailed or specific. Other than the parties'
contributions to retirement and stock, the trial court made no
findings regarding the parties' standard of living during the
marriage, and beyond a finding that “defendant . . . has had
minimal expenses,” the trial court made no findings regarding the
parties' respective living expenses since the separation.
Although we do not suggest that the court is required to set
out specific findings as to each factor listed in section 50-16.3A(b), the court must provide sufficient detail to satisfy a
reviewing court that it has considered “all relevant factors.” In
the case at bar, the order sets out defendant's income and
concludes that she had the ability to provide herself reasonable
subsistence. Although this conclusion undoubtedly is based on the
evidence presented at the hearing, “[i]t is not enough that there
is evidence in the record from which such findings could have been
made because it is for the trial court, and not [the Court of
Appeals], to determine what facts are established by the evidence.”
Talent, 76 N.C. App. at 549, 334 S.E.2d at 259 (citation omitted).
Therefore, we vacate the order and remand this case to the district
court for a redetermination of defendant's dependency and entry of
judgment containing findings of fact sufficiently specific to show
that the court properly considered the statutory requirements.
See
id. at 551, 334 S.E.2d at 260. On remand, the court in its
discretion may receive additional evidence or enter a new order on
the basis of evidence already received.
See N.C. Gen. Stat. § 50-
16.9 (1999) (“An order . . . for alimony or postseparation support,
. . . may be modified or vacated at any time, upon motion in the
cause and a showing of changed circumstances by either party or
anyone interested.”);
Smith v. Smith, 111 N.C. App. 460, 433 S.E.2d
196 (1993),
rev'd in part on other grounds, 336 N.C. 575, 444
S.E.2d 420 (1994),
and superseded by statute on other grounds as
stated in Offerman v. Offerman, 137 N.C. App. 289, 527 S.E.2d 684
(2000).
II.
Defendant also contends the trial court erred by failing to
consider the parties' contributions to savings and retirement. In
paragraph eleven of its order, the trial court declined to consider
the parties' saving habits in determining whether or not to award
alimony to defendant, stating that “reasonable subsistence” did not
include savings for the future. However, shortly after the trial
court entered its order, this Court stated that “the trial court
can properly consider the parties' custom of making regular
additions to savings plans
as a part of their standard of living in
determining the amount and duration of an alimony award.”
Glass v.
Glass, 131 N.C. App. 784, 789-90, 509 S.E.2d 236, 239 (1998)
(emphasis added). Although the Court in
Glass properly identified
the difficulty that might arise when a party increased or decreased
his or her contribution to savings in order to manipulate an
alimony award, no such problem exists here. Evidence was presented
that established an historical pattern of such contributions, which
satisfied the requirement in
Glass that there be a custom of
regular savings. Therefore, the trial court erred when it found in
paragraph eleven of its order that “it appears that defendant has
the ability to provide 'reasonable subsistence' for herself
consistent with the parties' accustomed standard of living” without
considering contributions to savings. (Emphasis added.) Upon
remand, the trial court shall consider evidence pertaining to such
savings made in accordance with a pre-existing pattern in
determining defendant's accustomed standard of living and make
findings of fact accordingly.
III.
Finally, defendant contends the trial court erred by
speculating about the results of the pending equitable distribution
between the parties. “The claim for alimony may be heard on the
merits prior to the entry of a judgment for equitable distribution,
and if awarded, the issues of amount and of whether a spouse is a
dependent or supporting spouse may be reviewed by the court after
the conclusion of the equitable distribution claim.” N.C. Gen.
Stat. § 50-16.3A(a). In the case at bar, no evidence was presented
as to the likely outcome of the equitable distribution.
Consequently, paragraph ten of the order is unsupported by
evidence.
Vacated and remanded.
Judges LEWIS and JOHN concur.
*** Converted from WordPerfect ***