1. Divorce--alimony--dependent spouse classification--findings
The trial court correctly classified plaintiff as a
dependent spouse in an alimony determination where the court
found that plaintiff earns $2,666.50 in gross monthly income but
has $3,450 in monthly expenses and considered the marital
standard of living, plaintiff's relative earning capacity, and
her relative estate. Although the court did not make specific
findings as to the amount of marital expenditures, the court's
findings were sufficient for an overall portrayal of the parties'
accustomed standard of living.
2. Divorce--alimony--classification as supporting spouse
The trial court's classification of defendant as a
supporting spouse for alimony purposes was more than adequately
supported by findings that defendant earns $7,250 per month and
has expenses in the amount of $6,216.66 per month, with a
resulting income-expenses surplus.
3. Divorce--alimony--amount--ability of supporting spouse to
pay
The trial court did not abuse its discretion in an alimony
determination in the amount awarded where defendant contended
that the award exceeded what he was able to pay, but overlooked
clear statutory language which stated that income encompasses
both earned and unearned income, including employment benefits.
Taking into account all the statutory factors, defendant's
income-expenses surplus is well in excess of that which the court
actually ordered defendant to pay.
4. Divorce--alimony--attorney fees
The trial court properly exercised its discretion in
awarding attorney fees in an alimony action where it was
previously determined in this opinion that plaintiff is a
dependent spouse and entitled to receive alimony; the trial
court's findings suggest that plaintiff was forced to deplete her
equitable distribution award to pay her debts and expenses; the
amount awarded was within the range sought; and the court found
that the hourly rates charged were reasonable and customary for
that type of work.
White & Allen, P.A., by David J. Fillipelli, Jr. and Delaina
J. Davis, for plaintiff-appellee.
Wallace, Morris & Barwick, P.A., by Elizabeth A. Heath, for
defendant-appellant.
LEWIS, Judge.
Plaintiff and defendant married on 11 September 1966 and had
three children over the course of their marriage. On 2 February
1996, the parties separated, and plaintiff thereafter filed this
action for equitable distribution, alimony, and absolute divorce.
The trial court entered a decree of divorce on 23 June 1997. The
parties later settled their claims for equitable distribution,
leaving only the matter of alimony to be determined by the court.
In an order entered 19 May 1999, the trial court awarded plaintiff
$1750 per month in alimony and further ordered defendant to pay
$3100 in attorney's fees.
Defendant first appeals from that portion of the order
awarding plaintiff alimony. As our statutes outline, alimony is
comprised of two separate inquiries. First is a determination of
whether a spouse is entitled to alimony. N.C. Gen. Stat. § 50-
16.3A(a) (1999). Entitlement to alimony requires that one spouse
be a dependent spouse and the other be a supporting spouse Id. If
one is entitled to alimony, the second determination is the amount
of alimony to be awarded. N.C. Gen. Stat. § 50-16.3(b). We review
the first inquiry de novo, Rickert v. Rickert, 282 N.C. 373, 379,
193 S.E.2d 79, 82 (1972), and the second under an abuse of
discretion standard, Quick v. Quick, 305 N.C. App. 446, 453, 290S.E.2d 653, 658 (1982).
In his brief, defendant contests both plaintiff's entitlement
to alimony and the amount she was awarded. However, his
assignments of error only address the issue of amount. Nowhere in
his assignments does he challenge the trial court's classification
of him as the supporting spouse or plaintiff as the dependent
spouse. Ordinarily failure to so assign error would constitute
waiver of that argument for purposes of appeal. N.C.R. App. P.
10(a). However, pursuant to our discretionary authority, we will
nonetheless address defendant's challenge to the issue of
entitlement. N.C.R. App. P. 2.
[1]Entitlement to alimony is governed by N.C. Gen. Stat. §
50-16.3A(a). According to that section, a party is entitled to
alimony if three requirements are satisfied: (1) that party is a
dependent spouse; (2) the other party is a supporting spouse; and
(3) an award of alimony would be equitable under all the relevantfactors. Defendant argues plaintiff is not a dependent spouse and
that he is not a supporting spouse. We begin with the dependent
spouse classification.
To be a dependent spouse, one must be either "actually
substantially dependent upon the other spouse" or "substantially in
need of maintenance and support from the other spouse." N.C. Gen.
Stat. § 50-16.1A(2). A spouse is "actually substantially
dependent" if he or she is currently unable to meet his or her own
maintenance and support. Williams v. Williams, 299 N.C. 174, 180,
261 S.E.2d 849, 854 (1980). A spouse is "substantially in need of
maintenance" if he or she will be unable to meet his or her needs
in the future, even if he or she is currently meeting those needs.
Id. at 181-82, 261 S.E.2d at 855; see also 2 Suzanne Reynolds &
Jacqueline Kane Connors, Lee's North Carolina Family Law § 9.5 (5th
ed. 1999). The trial court concluded plaintiff was a dependent
spouse because she was both actually dependent upon defendant and
substantially in need of his support. We uphold the trial court's
classification of plaintiff as a dependent spouse.
Here, the trial court found that plaintiff earns $2666.50 in
gross monthly income, but has $3450 in monthly expenses. Thus, she
has an income-expenses deficit of $783.50 per month. This in and
of itself supports the trial court's classification of her as a
dependent spouse. See, e.g., Phillips v. Phillips, 83 N.C. App.
228, 230, 349 S.E.2d 397, 399 (1986) ("The trial court found that
plaintiff had monthly expenses of $1,300 and a monthly salary of
$978. That leaves her with a deficit of $322 a month. From thesefacts, the trial court could have found that plaintiff was both
actually substantially dependent on defendant and substantially in
need of defendant's support."); see also Beaman v. Beaman, 77 N.C.
App. 717, 723, 336 S.E.2d 129, 132 (1985) ("[T]o properly find a
spouse dependent the court need only find that the spouse's
reasonable monthly expenses exceed her monthly income and that the
party has no other means with which to meet those expenses.").
But see Knott v. Knott, 52 N.C. App. 543, 546, 279 S.E.2d 72, 75
(1981) (“[A] mere comparison of plaintiff's expenses and income is
an improperly shallow analysis.”). Here, however, the trial
court's order reflects that it considered other factors in addition
to just plaintiff's income-expenses deficit. Specifically, the
trial court considered the marital standard of living, plaintiff's
relative earning capacity, and even her separate estate (a $600
savings account). We hold that the evidence and findings support
the trial court's classification of plaintiff as a dependent
spouse.
Defendant properly notes that the parties' needs and expenses
for purposes of computing alimony should be measured in light of
their accustomed standard of living during the marriage. Williams,
299 N.C. at 183, 261 S.E.2d at 856. To this end, defendant argues
the trial court's findings are insufficient with respect to the
parties' marital standard of living. Specifically, he points to
the absence of any findings with respect to the parties'
expenditures during the marriage. We disagree. The trial court
made explicit findings as to the parties' respective incomes duringthe marriage, the type of home in which they lived, and the types
of family vacations they enjoyed. Although the court did not make
any specific findings as to the amount of marital expenditures, it
did list various bills that defendant regularly paid prior to the
parties' separation, including utilities, cable and television,
telephone, newspaper, pest control, and yard service. We conclude
these findings were sufficient for an overall portrayal of the
parties' accustomed standard of living. See generally Adams v.
Adams, 92 N.C. App. 274, 279-80, 374 S.E.2d 450, 453 (1988) ("The
judge's findings as to Mr. Adams' monthly gross income and his
reasonable living expenses, coupled with the findings as to Ms.
Adams' monthly income and her expenses during the last year of the
marriage, satisfied the requirement . . . for findings regarding
the Adamses' accustomed standard of living.").
[2]We next consider the court's classification of defendant
as a supporting spouse. Just because one spouse is a dependent
spouse does not automatically mean the other spouse is a supporting
spouse. Williams, 299 N.C. at 186, 261 S.E.2d at 857. To be a
supporting spouse, one must be the spouse upon whom the other
spouse is either "actually substantially dependent" or
"substantially in need of maintenance and support." N.C. Gen.
Stat. § 50-16.1A(5). A surplus of income over expenses is
sufficient in and of itself to warrant a supporting spouse
classification. Beaman, 77 N.C. App. at 723, 336 S.E.2d at 132.
Here, the trial court found that defendant earns $7250 per month in
income and has expenses in the amount to $6216.66 per month. Theresultant income-expenses surplus more than adequately supports the
conclusion that defendant is a supporting spouse.
[3]Defendant next contests the amount of alimony the court
awarded to plaintiff. As stated earlier, a trial court's ultimate
conclusion as to the amount of alimony will not be upset absent a
manifest abuse of discretion. Quick, 305 N.C. at 453, 290 S.E.2d
at 658. We find no such abuse here.
Specifically, defendant contends the alimony award exceeds
that which he is able to pay. He points out that the court's
findings reflect his income-expenses surplus is only $1033.34 per
month ($7250 in salary less $6216.66 in expenses), which is well
under the $1700 per month the court ordered him to pay. However,
defendant overlooks the clear statutory language, which states that
income encompasses both earned and unearned income, including
"benefits such as medical, retirement, insurance, social security,
or others." N.C. Gen. Stat. § 50-16.3A(b)(4). In this regard, the
trial court also found that defendant receives from his employer
$500 per month as an automobile allowance, $2000 per year (or
$166.67 per month) in payments for his life insurance premiums, and
a ten percent contribution to his IRA (i.e., $725 per month).
Taking into account all the statutory factors, defendant's
aggregate income is actually closer to $8641.67 per month. The
resultant income-expenses surplus is thus closer to $2400 per
month, well in excess of that which the court actually ordered
defendant to pay.
Defendant also points out that the trial court's findingsreflect plaintiff has a monthly deficit of only $783.50 an
d thus
does not need nearly as much as the court awarded her. Defendant,
however, overlooks the fact that the $783.50 figure only takes into
account plaintiff's monthly gross income. Using her monthly net
income (as was used for defendant's computations) results in an
income-expenses deficit of nearly $1400 per month ($2048.98 net
income less $3450 in expenses). Given that defendant had an
income-expenses surplus of $2400 per month and plaintiff had an
income-expenses deficit of $1400 per month, the trial court's
intermediate award of $1700 a month did not constitute an abuse of
discretion.
[4]Finally, defendant argues the trial court improperly
ordered him to pay $3100 in attorney's fees. As with our analysis
for alimony, an analysis for attorney's fees requires a two-part
determination: entitlement and amount. This time, defendant did
assign error to both issues, and each will be addressed in turn.
A spouse is entitled to attorney's fees if that spouse is (1)
the dependent spouse, (2) entitled to the underlying relief
demanded (e.g., alimony and/or child support), and (3) without
sufficient means to defray the costs of litigation. Clark v.
Clark, 301 N.C. 123, 135-36, 271 S.E.2d 58, 67 (1980).
Entitlement, i.e., the satisfaction of these three requirements, is
a question of law, fully reviewable on appeal. Id. at 136, 271
S.E.2d at 67. Our holding as to alimony disposes of the first two
requirements: plaintiff is a dependent spouse and is entitled to
receive alimony. Thus, our focus hinges on whether plaintiff hadsufficient funds to defray the costs of litigation. With regard to
this determination, a court should generally focus on the
disposable income and estate of just that spouse, although a
comparison of the two spouses' estates may sometimes be
appropriate. Van Every v. McGuire, 348 N.C. 58, 62, 497 S.E.2d
689, 691 (1998). Here, the trial court's findings reflect
plaintiff has negative disposable income and a separate savings
account of only $600. This fact alone demonstrates that plaintiff
had insufficient funds to defray the costs of litigation.
Defendant nonetheless points to the $5000 cash she received
pursuant to equitable distribution out of which her litigation
costs could be paid. However, defendant has made no showing
(either at trial or on appeal) that plaintiff even still has this
money from which she could defray her litigation expenses, as
opposed to being forced to spend it to pay off her monthly
expenses. After all, the trial court found that plaintiff's only
source of savings was her $600 credit union account. Furthermore,
the court noted that plaintiff's credit card obligation is
currently $20,000, most of which was incurred after the date of
separation in order to meet her monthly expenses. These findings
suggest that plaintiff was in fact forced to deplete her equitable
distribution award to pay off her debts and expenses. We therefore
conclude plaintiff was without sufficient funds to defray the costs
of litigation and was therefore entitled to attorney's fees.
Once a spouse is entitled to attorney's fees, our focus then
shifts to the amount of fees awarded. The amount awarded will notbe overturned on appeal absent an abuse of discretion. Spencer v.
Spencer, 70 N.C. App. 159, 169, 319 S.E.2d 636, 644 (1984). Here,
plaintiff's attorney submitted two affidavits averring his costs in
this action amounted to $5446.55. The trial court's $3100 award
was thus within the range sought. Cf. id. (holding no abuse of
discretion when fees awarded fell within the range of costs
testified to by wife's expert witnesses). The trial court also
found that the hourly rates charged were reasonable and customary
for that type of work. Defendant has not contested this specific
finding or otherwise suggested that plaintiff's counsel has charged
excessively. Accordingly, we conclude the trial court properly
exercised its discretion in awarding $3100 in fees.
Affirmed.
Judges WALKER and HUNTER concur.
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