Divorce--alimony--relative earnings and earning capacities--accustomed standard of living-
-established pattern of savings
The trial court erred by denying plaintiff wife's claim for alimony under N.C.G.S. § 50-
16.3A(c) based on the fact that she was able to meet all of her monthly bills without the aid of
alimony, because: (1) the trial court failed to make sufficient findings of fact regarding the
relative earnings and earning capacities of the spouses; and (2) the trial court improperly felt it
was unable to consider the parties' established pattern of savings in determining the standard of
living to which the parties had grown accustomed during the marriage.
Staton, Perkinson, Doster, Post, & Silverman, P.A., by
Jonathan Silverman, for plaintiff-appellant.
Cheshire, Parker, Schneider, Wells, & Bryan, by Jonathan
McGirt, for defendant-appellee.
CAMPBELL, Judge.
We note that plaintiff's brief fails to comply with our Rules
of Appellate Procedure in several respects, and is therefore
subject to dismissal for these violations. Nonetheless, as we feel
that the issues in this case warrant our attention, we elect to
review the matter pursuant to our discretionary powers under N.C.R.
App. P. 2.
Plaintiff and defendant were married for 34 years. During the
marriage, the couple put significant amounts of their income toward
their retirement, as they were hoping to retire in their early
sixties. Over the years, the couple acquired approximately twenty-
two different retirement accounts, to which they consistentlycontributed. Since their divorce, defendant has continued to put
a substantial amount of his income into his retirement accounts.
Plaintiff, however, contends that due to her lower income (which is
approximately one-third of defendant's net income per month), and
to her expenses (which account for all but approximately $170 of
her net monthly pay), she is unable to retain the lifestyle to
which she had been accustomed, namely: she will be forced to work
much longer than she would have, had she continued to enjoy the
standard of living to which she had become accustomed during her
marriage, since she is unable to accumulate savings of an amount
that would allow her to retire. As plaintiff was able to meet all
of her monthly bills without the aid of alimony, the trial court
denied her claim. Plaintiff appealed to this Court for further
review.
The duties of the trial court regarding a claim for alimony
can be found in N.C. Gen. Stat. § 50-16.3A(c) (1999), entitled
“Findings of Fact.” This section specifically states that the
trial court “shall set forth the reasons for its award or denial of
alimony and, if making an award, the reasons for its amount” and,
with the exception of motions where the Rules of Civil Procedure do
not require specific findings, that “the court shall make a
specific finding of fact on each of the factors in subsection (b)
of this section if evidence is offered on that factor.” N.C. Gen.
Stat. § 50-16.3A(c) (emphasis added).
This provision is mandatory, and it is a vital part of the
trial court's order. The trial court must make findings of fact
that are sufficiently detailed to allow review. Rhew v. Rhew, 138N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000). “The trial c
ourt
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.” Skamarak v. Skamarak, 81
N.C. App. 125, 128, 343 S.E.2d 559, 561 (1986), quoted in, Rhew v.
Rhew, 138 N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000). “'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.'” Rhew,
138 N.C. App. at 470, 531 S.E.2d at 473 (quoting Talent v. Talent,
76 N.C. App. 545, 548-49, 334 S.E.2d 256, 258 (1985)).
We conclude that the trial court did not make sufficient
findings of fact in regards to the alimony portion of the order,
and therefore, that we are unable to sufficiently review these
findings of fact and the court's subsequent conclusions of law.
As stated above, N.C. Gen. Stat. § 50-16.3A(c) requires the
trial court to make sufficient findings on each of the factors
listed in subsection (b). At the time of this trial, subsection
(b) contained factors one through fifteen, with factor number
sixteen taking effect in 1998. Therefore, our analysis is confined
to the first fifteen factors.
The trial court must make sufficiently specific findings of
fact on each factor listed in subsection (b) for which evidence is
offered. N.C. Gen. Stat. § 50-16.3(c). While we find evidence in
the record to support findings on several factors in subsection(b), since we remand the case due to insufficient findings, we will
not address each of these factors. Two of these factors, however,
do merit further instruction.
Specifically, under factor (2), the trial court must consider
the relative earnings and earning capacities of the spouses. The
trial court did make findings as to plaintiff's income in its
finding of fact number 1, however, this finding is not sufficiently
detailed. Finding of fact number 1, reads: “The Plaintiff has
been employed as a medical transcriptionist for fifteen years, and
has a gross income of $2,075 per month; and, after taxes, her net
income is $1,572 per month.” This may be so, but we have no way to
confirm or deny this finding as it gives no indication as to how it
was calculated. Indeed, the parties themselves dispute this
finding of fact with each arguing different methods for calculating
this income. In addition, the trial court found no facts regarding
defendant's income whatsoever.
The second factor that we need to address is factor number
(8), which examines the standard of living to which the parties had
grown accustomed during the marriage.
In order to be entitled to alimony, the party seeking alimony
must establish that: “(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 relevant factors.” Barrett v.
Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000). A
dependent spouse 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 otherspouse.” N.C. Gen. Stat. § 50-16.1A(2) (1999). As this Court has
said before, “[i]n 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.'” Rhew, 138 N.C. App. at
470, 531 S.E.2d at 473 (quoting Talent v. Talent, 76 N.C. App. 545,
548, 334 S.E.2d 256, 258-59 (1985)).
In its finding of fact number five, the trial court stated:
“[t]he Court considered the Plaintiff's contention that she needs
to save for her retirement; however, the Court did not consider
this 'need' in determining her status as a dependent spouse for
purposes of alimony.” Further, in its conclusion of law number
four, the court concluded that “[t]he Plaintiff's alleged 'need' to
save for her retirement is not properly considered by the Court in
accessing [sic] the Plaintiff's needs for alimony, nor in
determining her status as a dependent spouse.” (Emphasis added.)
It appears from these statements that the trial court felt it
was unable to consider the parties' pattern of saving for their
retirement. Recent case law, however, has determined that a
pattern of savings may be considered by the court in determining
alimony.
This Court recently held in Glass v. Glass, 131 N.C. App. 784,
789-90, 509 S.E.2d 236, 239 (1998), that an established pattern of
contributing to a retirement or savings plan may be considered by
the trial court in determining the parties' accustomed standard of
living. Glass cautioned, however, that a party's savings shouldnot be used to “reduce his or her support obligation to the oth
er
by merely increasing his or her deductions for savings plans,” nor
should a spouse be able to “increase an alimony award by deferring
a portion of his or her income to a savings account,” emphasizing
that “the purpose of alimony is not to allow a party to accumulate
savings.” Glass, 131 N.C. App. at 790, 509 S.E.2d at 239-40.
Then, in Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471
(2000), (a case which we note, was decided by this Court after the
trial court in the case sub judice had entered its order denying
alimony), we clarified our holding in Glass, finding that although
the parties' pattern of savings may not be determinative of a claim
for alimony, the trial court must at least consider this pattern in
determining the parties' accustomed standard of living.
We find Rhew analogous to the case now before us in several
respects. In Rhew, the parties were found to have “enjoyed a
comfortable standard of living,” and had “budgeted a sizeable
portion of their income to savings and retirement accounts,” as had
the parties in the case at hand. Id. at 468, 531 S.E.2d at 472.
Likewise, the trial court in Rhew had declined to consider the
parties' pattern of savings in determining whether to award
alimony. However, soon after the trial court had entered its
order, Glass was decided, which found that the trial court could
“'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.'” Rhew,138 N.C. App. at 473, 531 S.E.2d at 475 (2000)(quoting Glas
s, 131
N.C. App. 784, 789-90, 509 S.E.2d 236, 239 (1998)).
The Rhew Court went on to say:
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 . . . 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.
Id. at 473, 531 S.E.2d at 475.
Similarly, inasmuch as it appears the trial court here felt it
was unable to consider the parties' established pattern of savings
in determining plaintiff's claim for alimony, the judgment of the
trial court must be reversed and remanded for reconsideration of
this claim.
Upon remand, the trial court shall review all relevant factors
under N.C. Gen. Stat. § 50-16.3A(b), including the parties' pattern
of retirement savings as it pertains to the parties' accustomed
standard of living pursuant to N.C. Gen. Stat. § 50-16.3(b)(8), and
make sufficient findings of fact as to the same.
Reversed and remanded.
Chief Judge EAGLES and Judge HUNTER concur.
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