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1. Appeal and Error--alimony order vacated and remanded--new
findings
The trial court did not err by making new findings of fact
on remand of an alimony order where the original decision that
plaintiff was a dependent spouse and defendant a supporting
spouse was affirmed on appeal, but the remainder of the decision
was vacated. The vacated portions of the order were void and of
no effect, and the trial court was free to reconsider the
evidence and to enter new or additional findings based on the
evidence, with the exception of the portions of the order
affirmed in the first appeal.
2. Divorce--alimony--findings
The trial court's findings supported the amount and duration
of an alimony award where the court made findings on all of the
N.C.G.S. § 50-16.3A(b) factors for which evidence was presented,
there is no indication that the court misapplied the law when
making findings on those factors, and the record does not show
that the court abused its discretion when assigning weight to
those factors.
3. Divorce--alimony--attorney fees--findings
An alimony order was remanded for findings on whether
plaintiff was entitled to an award of attorney fees where the
court did not make any findings regarding whether plaintiff was
without sufficient means to subsist during the prosecution of the
suit and to defray the necessary expenses and the court's
conclusion that plaintiff was not entitled to an award of
attorney fees was therefore not supported by the findings.
Judge HUDSON dissenting.
Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for
plaintiff-appellant.
Darsie, Sharpe, Mackritis & Dukelow P.L.L.C., by Jimmy D.
Sharpe and Lisa M. Dukelow, for defendant-appellee.
GREENE, Judge.
Doris Friend-Novorska (Plaintiff) appeals an order filed 7
September 1999 awarding Plaintiff temporary alimony from James C.
Novorska (Defendant).
This case was originally heard by this Court based on
Plaintiff's appeal from an alimony order entered on 17 October
1997. See Friend-Novorska v. Novorska, 131 N.C. App. 867, 509
S.E.2d 460 (1998) (Friend-Novorska I). The following facts are
based on the facts recited in Friend-Novorska I: Plaintiff and
Defendant were married on 13 February 1982 and separated on 30 June
1995. No children were born to the marriage. Plaintiff filed a
complaint against Defendant on 3 January 1996, seeking
postseparation support, alimony, equitable distribution, and
attorney's fees. Subsequent to a hearing on Plaintiff's claim for
alimony, the trial court made the following pertinent findings of
fact: Plaintiff has monthly expenses of $3,089.00 “'to maintain
the standard of living to which she has become accustomed during
the last several years of the marriage'”; Plaintiff has an
available net income of $1,745.22 per month from her employment and
“'is in need of a contribution on a monthly basis of $1,343.78 to
meet her monthly living needs'”; Defendant has a net monthly income
from his employment of $4,077.00 and a net investment income of
approximately $810.00 per month; and Defendant has “'actual present
monthly expenses [of] $3,758.00.'” Based on its findings of fact,
the trial court awarded Plaintiff alimony in the amount of $600.00
per month for 30 months. On appeal, this Court held that “[i]n making its decision to
award a monthly amount of alimony substantially less than
[Plaintiff's] needs, the trial court erroneously relied on
[Defendant's] desire to purchase a new house and car.” Id. at 869,
509 S.E.2d at 461. Because Defendant argued before this Court in
Friend-Novorska I that the trial court erred by considering his
investment income, this Court also held “the trial court was
correct in considering [Defendant's] investment income.” Id. at
370, 509 S.E.2d at 462. Additionally, this Court held that because
the parties offered evidence regarding Defendant's alleged marital
misconduct, the trial court erred by failing to make findings of
fact regarding whether “the existence of the factor was or was not
supported by the greater weight of the evidence.” Id. Finally,
this Court noted the trial court “set[] forth no reasons for the
30-month duration of the award.” Id. This Court, therefore, held:
“On remand, the trial court must make a new award of alimony and
make specific findings justifying that award, both as to amount and
duration. Those portions of the order declaring [Plaintiff] to be
a dependent spouse and [Defendant] to be a supporting spouse are
affirmed.” Id. at 870-71, 509 S.E.2d at 462. Accordingly, this
Court affirmed in part and vacated and remanded in part the
decision of the trial court. Id. at 871, 509 S.E.2d at 462.
On remand, the trial court did not hear additional evidence
regarding Plaintiff's claim for alimony. In an order filed 7
September 1999, the trial court made the following pertinent
findings of fact: H. An equitable distribution order was entered in
this cause . . . on July 24, 1997, from a
hearing held May 28, 1997. Pursuant to the
judgment of equitable distribution, . . .
[P]laintiff received an unequal distribution
of the marital property in her favor. . . .
[P]laintiff received assets with a date of
separation net value of $92,205.83, which was
55% of the marital estate, and . . .
[D]efendant received assets with a date of
separation net value of $75,441.13, or 45% of
the marital estate. . . .
. . . .
L. . . . [P]laintiff was earning an annual salary
of $17,280.00 working part-time at the date of
separation. At the time of trial, . . .
[P]laintiff worked full-time with University
of North Carolina Hospital at an annual salary
of $29,000.00 per year[.] . . . [P]laintiff
has $1,745.22 per month net income available
to her to meet . . . monthly expenses. . . .
This is a permanent, full-time position which
provides . . . [P]laintiff with health
insurance at no cost, dental insurance,
disability insurance and a retirement plan
which requires a six percent (6%) deduction
from her salary and the State of North
Carolina matches her contribution at the same
rate.
M. . . . [D]efendant has a Bachelor of
Administration Degree . . . which he obtained
prior to the marriage[.] . . . [D]efendant
. . . earns an annual gross salary of
$80,000.00. Based on [D]efendant's amended
financial affidavit submitted at trial, and
his own testimony, his actual present monthly
expenses are $3,758. This is based on
[D]efendant presently having rent of $745 per
month for an apartment, and no payments to
make on his present vehicle. According to
[D]efendant's affidavit, his net monthly
income from his employment . . . is
$4,077. . . . According to [D]efendant's 1996
Federal Income Tax return, [D]efendant has
additional income of $196 per month from
interest, dividends and refunds. . . .
[D]efendant also recognized capital gains in1996 of $12,404 due to the sale of securities.
(See footnote 1)
. . . .
Q. . . . [P]laintiff presented into evidence a
financial affidavit with regard to her
necessities of utilities, food, clothing,
cosmetics and shelter [as] evidence [of] a
need of $2,394.00 per month excluding
maintenance on the property which . . .
[P]laintiff testified is $350.00 per
month. . . . [P]laintiff also submitted an
amended affidavit and testified that her
expenses had decreased in some respects and
increased in others. . . .
R. Based upon the testimony, the Court finds the
reasonable fixed expenses of . . . [P]laintiff
to be $1,802.00 per month. Therefore, . . .
[P]laintiff's total reasonable needs are
$2,685.00 per month and . . . [P]laintiff's
shortfall for her projected needs, after
applying her income, is approximately $939.78
per month.
S. . . . [P]laintiff was awarded an unequal
distribution in her favor and is able to re-
allocate her resources to meet her reasonable
needs, including, but not limited to,
refinancing the marital residence without
depleting her separate estate.
. . . .
V. The Court has considered the evidence
presented by both parties as it relates to the
factors set forth in North Carolina General
Statute[] § 50-16.3A(b), and finds facts
related to those factors as follows:
(1) The marital misconduct of either of
the spouses. The Court considered
the evidence presented by . . .
[P]laintiff relating to . . .
[D]efendant's friendship with
several women prior to separation.
Both parties had friends of the
opposite sex during the course ofthe marriage. Neither party
committed illicit sexual marital
misconduct during the course of the
marriage and prior to the date of
separation.
(2) The relative earnings and earning
capacities of the spouses. This is
a mid-life second marriage for both
of the parties. Both of the parties
had selected careers and been
educated for their career plans
prior to this marriage. At the time
of trial, both parties were earning
to their full capacity and both
parties' relative earnings were
based upon their educational
background and employment history
that each obtained prior to this
marriage.
. . . .
(8) The standard of living of the
spouses established during the
marriage. The parties lived beyond
their means during the last four
years of their marriage as a result
of expenditures by the parties
during the marriage of funds and
assets received by . . . [D]efendant
from his mother's estate. The
inflated standard of living
established by the parties during
the last four (4) years of their
marriage resulted from . . .
[D]efendant inheriting approximately
$200,000.00 from his mother's
estate.
(9) The relative education of the
spouses and the time necessary to
acquire sufficient education or
training to enable the spouse
seeking alimony to find employment
to meet his or her reasonable
economic needs. Upon separation of
the parties, . . . [D]efendant
voluntarily provided support for
. . . [P]laintiff from July, 1995,
to the entry of the post separation
support to June 14, 1996, to enableher to work herself into a full-time
position at the University of North
Carolina at Chapel Hill,
commensurate with her education and
training. Additionally, . . .
[D]efendant voluntarily agreed to
continue post separation support to
. . . [P]laintiff by a consent order
dated June 14, 1996, thus allowing
. . . [P]laintiff to complete her
training such that she could accept
a full-time position at the
University of North Carolina at
Chapel Hill in order to meet her
reasonable economic needs. Both
parties are currently employed to
their full capacity and neither
needs to be re-trained in order to
seek employment or to meet their
reasonable economic needs.
. . . .
(11) The property brought to the marriage
by either spouse. The parties
expended approximately $100,000.00
of . . . [D]efendant's separate
property which he received from his
mother's estate during the last
several years of their marriage,
thus creating an inflated standard
of living for the parties during
that period of time.
. . . .
(13) The relative needs of the
spouses. . . . Both parties have the
ability to meet their relative needs
in order to subsist in the future.
The Court recognizes that certain
expenses will have to be cut and re-
allocated by both parties in order
to live within their means which was
not the case during the last few
years of the parties' marriage.
. . . .
(15) Any other factor relating to the
economic circumstances of the
parties that the court finds to bejust and proper. During the course
of the marriage . . . [P]laintiff
shared all residences with . . .
[D]efendant and at times . . .
[D]efendant's son. At the time of
trial, . . . [P]laintiff is not
sharing her residence with another
person and continues to live in the
same home with the same square
footage and acreage as when two
people occupied the residence. . . .
[P]laintiff's current residence is
greater than she needs to maintain
her standard of living established
during the marriage; however, . . .
[P]laintiff voluntarily chose to
retain the house and 5.47 acres
which is subject to the mortgage of
approximately $139,000.00 at the
date of this trial. . . .
[P]laintiff has not sought a
roommate and refuses to refinance
the debt on her residence.
The trial court then concluded as a matter of law, in pertinent
part:
Based upon the factors set forth in North
Carolina General Statute § 50-16.3A(b), the
[c]ourt concludes that a term of alimony for
thirty consecutive months from October, 1997
to April, 2000, in the amount of $600.00 per
month is reasonable and equitable based on the
findings of fact made by this Court . . . .
Additionally, the trial court concluded that “[P]laintiff is not
entitled to an award of attorney['s] fees.”
The issues are whether: (I) the trial court on remand erred by making new and/or additional findings of fact when this Court vacated the order of the trial court in Friend-Novorska I; (II) the trial court's findings of fact are sufficient to support the amount and duration of its award of alimony under N.C. Gen. Stat. § 50-16.3A(b); and (III) the trial court's findings of fact supportits conclusion “[P]laintiff is not entitled to an award of attorney['s] fees.”
[1]Plaintiff argues the trial court was “bound by its own findings of fact” made in its 17 October 1997 order because it took no new evidence on remand. Plaintiff, therefore, contends the trial court erred by making new and/or additional findings of fact on remand, including its finding of fact regarding the contribution needed by Plaintiff to meet her monthly expenses.
In Friend-Novorska I, this Court affirmed the decision of the trial court that Plaintiff was a dependent spouse and Defendant was a supporting spouse. Additionally, this Court held “the trial court was correct in considering [Defendant's] investment income.” The remainder of the trial court's decision was vacated and remanded to the trial court for “a new award of alimony” and “specific findings justifying that award.” The term “vacate” means: “To annul; to set aside; to cancel or rescind. To render an act void; as, to vacate . . . a judgment.” Black's Law Dictionary 1548 (6th ed. 1990). Thus, the vacated portions of the 17 October 1997 order were void and of no effect. On remand, therefore, the trial court was free to reconsider the evidence before it and to enter new and/or additional findings of fact based on the evidence, with the exception that the trial court was bound on remand by any portions of the 17 October 1997 order affirmed by this Court in Friend-Novorska I. Accordingly, the trial court on remand was bound by its previous finding of fact regardingDefendant's investment income and by its previous conclusion that Defendant was a supporting spouse and Plaintiff was a dependent spouse. On remand, the trial court did not make new and/or additional findings regarding Defendant's investment income (See footnote 2) or regarding its conclusion Defendant was a supporting spouse and Plaintiff was a dependent spouse. In regard to the remaining portions of its 7 September 1999 order, the trial court did not err by making new and/or additional findings of fact, including its finding of fact regarding the contribution needed by Plaintiff to meet her monthly expenses.
[2]Plaintiff argues the trial court's findings of fact do not support the amount and duration of its alimony award. We disagree.
N.C. Gen. Stat. § 50-16.3A, which governs actions for alimony, states, in pertinent part: “The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony.” N.C.G.S. § 50-16.3A(b) (1999). In determining the amount, duration, and manner of payment of alimony, the trial court must consider the sixteen factors set forth in section 50-16.3A(b) and “make a specific finding of fact on each of the factors in subsection (b) . . . if evidence is offered on that factor.” N.C.G.S. §§ 50-16.3A(b), 50-16.3A(c) (1999). Additionally, section 50-16.3A(c) provides: “The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment.” N.C.G.S. § 50-16.3A(c). The issue of what constitutes sufficient “reasons for” the amount, duration, and manner of payment of an alimony award has previously not been addressed by this Court. However, because the statutory scheme provided in section 50-16.3A is similar to N.C. Gen. Stat. § 50-20 (equitable distribution of marital and divisible property), the findings of fact required to support an equitable distribution award under section 50-20 provide guidance as to the findings of fact required to support an alimony award under section 50-16.3A.
N.C. Gen. Stat. § 50-20(c) provides twelve factors the trial court must consider when determining the equitable distribution of marital and divisible property. N.C.G.S. § 50-20(c) (1999). As with section 50-16.3A, the trial court must make findings of fact under section 50-20 regarding any of the factors for which evidence is introduced at trial. Armstrong v. Armstrong, 322 N.C. 396, 406, 368 S.E.2d 595, 600 (1988). Section 50-20 further provides: “In any order for the distribution of property made pursuant to [N.C. Gen. Stat. § 50-20], the court shall make written findings of fact that support the determination that the marital property and divisible property has been equitably divided.” N.C.G.S. § 50- 20(j) (1999). Findings of fact are sufficient to “support the determination” an equitable division has been made when findings of fact have been made on the ultimate facts at issue in the case, and the findings of fact show the trial court properly applied the lawin the case. Armstrong, 322 N.C. at 405-06, 368 S.E.2d at 600; Atkinson v. Chandler, 130 N.C. App. 561, 566, 504 S.E.2d 94, 97 (1998). The weight given each factor, however, is within the discretion of the trial court, and the trial court is not required to specifically state the weight given each factor to “support the determination” an equitable distribution has been made. White v. White, 312 N.C. 770, 777-78, 324 S.E.2d 829, 833 (1985). Additionally, the weight given each factor by the trial court must be upheld on appeal absent a showing of abuse of discretion. Id. at 777, 324 S.E.2d at 833 (“trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason”). Thus, because the discretionary powers granted to the trial court in equitable distribution actions is similar to the discretion granted to the trial court in alimony actions, see id. (comparing “wide discretionary powers” granted to the trial court in equitable distribution actions, alimony actions, and child support and custody actions), we hold the findings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case (See footnote 3) and the findings of fact show the trial court properly applied the law in the case. The findings of fact need not set forth the weight given to the factors in section 50-16.3A(b) by the trial court whendetermining the appropriate amount, duration, and manner of payment, as the weight given the factors is within the sound discretion of the trial court.
In this case, the trial court made extensive findings of fact regarding the parties' incomes and expenses. The trial court found as fact that Plaintiff's “shortfall for her projected needs . . . is approximately $939.78 per month.” In awarding Plaintiff an alimony award of $600.00 per month for 30 months, the trial court considered: Plaintiff received an unequal distribution of the marital property in her favor; Plaintiff is able to “re-allocate her resources to meet her reasonable needs . . . without depleting her separate estate”; both of the parties “had selected careers and been educated for their career plans prior to this marriage”; the parties lived beyond their means during the last four years of their marriage; subsequent to the parties' separation, Defendant provided support to Plaintiff which enabled Plaintiff to obtain a full-time position at the University of North Carolina at Chapel Hill and to “complete her training . . . in order to meet her reasonable economic needs”; and “certain expenses will have to be cut and re-allocated by both parties in order to live within their means which was not the case during the last few years of the parties' marriage.” The record shows the trial court made findings of fact on all of the section 50-16.3A(b) factors for which evidence was presented, and there is no indication in the record that the trial court misapplied the law when making findings on these factors. Additionally, the record does not show the trial court abused its discretion when assigning weight to the section50-16.3A(b) factors in this case. Accordingly, we must affirm the amount, duration, and manner of payment of the trial court's 7 September 1999 award of alimony.
[3]Plaintiff argues the trial court erred by failing to award her attorney's fees under N.C. Gen. Stat. § 50-16.4.
Section 50-16.4 provides, in pertinent part: “At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, . . . the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.” N.C.G.S. § 50-16.4 (1999). “Before granting an award of attorney[']s[] fees, the trial court must determine, as a mater of law, that the spouse seeking the award is dependent, and that the spouse is without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses.” Owensby v. Ownesby, 312 N.C. 473, 475, 322 S.E.2d 772, 773-74 (1984). When an award of attorney's fees is properly awarded, the amount of the award is within the discretion of the trial court. Id. at 475, 322 S.E.2d at 774.
In this case, the trial court concluded Plaintiff is a dependent spouse. The trial court did not, however, make any findings regarding whether Plaintiff “is without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses.” The trial court's conclusion of law that “[P]laintiff is not entitled to an award of attorney['s] fees” is, therefore, not supported by its findings. Accordingly, the portionof the trial court's 7 September 1999 order denying Plaintiff attorney's fees is reversed, and this case is remanded to the trial court for findings on whether Plaintiff is entitled to an award of attorney's fees. The remaining portions of the trial court's 7 September 1999 order are affirmed. We reject the additional arguments asserted by Plaintiff in her brief to this Court.
Affirmed in part and reversed in part.
Judge MCCULLOUGH concurs.
Judge HUDSON dissents.
HUDSON, Judge, dissenting.
I do not believe the majority opinion fully addresses a number
of crucial issues in this case. These issues are: (I) precisely
which portions of the trial court's original order were vacated,
and which portions were left standing, by this Court in Friend-
Novorska v. Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998)
(Friend-Novorska I); (II) the trial court's failure to make a new
award of alimony on remand; and (III) the trial court's renewed
failure to explain both the amount of alimony and the duration of
the award on remand. For these reasons, I must dissent.
The trial court's original order, from which plaintiff
appealed in Friend-Novorska I, contained only two conclusions of
law:
1. Plaintiff is, and was during the marriage
and at date of separation, the dependent
spouse . . . . Defendant is and was the
supporting spouse at these times . . . .
2. . . . Defendant should pay alimony to
Plaintiff of $600 per month for a term of
thirty consecutive months.
On appeal from this order in Friend-Novorska I, plaintiff set forth
only one assignment of error: “The Order and Judgment for Alimony
ordering Defendant to pay Plaintiff $600 per month for thirty
consecutive months as being contrary to law and unsupported by
evidence, findings of fact and conclusions of law.” In her brief,
plaintiff argued as a subsidiary issue that the trial court erred
by failing to make adequate findings with regard to marital
misconduct. Likewise, defendant, in his brief to this Court,
argued only one cross-assignment of error: the trial court's award
of any alimony to plaintiff. Defendant argued as a subsidiary
issue that the trial court erred in considering his investment
income in determining his monthly income. Neither party, on appeal
in Friend-Novorska I, assigned error to any other finding or
conclusion in the trial court's first order.
In response to these two assignments of error, we affirmed (1)
the trial court's first conclusion of law (that plaintiff was a
dependent spouse and that defendant was a supporting spouse), and
(2) the trial court's consideration of defendant's investment
income in calculating defendant's net monthly income. However, we
further held that the trial court had erred in three specific ways.
First, we held that the trial court had erred in considering
defendant's desire to purchase a new house and car “[i]n making its
decision to award [to plaintiff] a monthly amount of alimony
substantially less than her needs.” Id. at 869, 509 S.E.2d at 461. We explained that the trial court had abused its discretion
in
allowing “a supporting spouse to reduce his net monthly income, and
thus his obligation to his dependent spouse, based not on
necessity, but instead on his expressed 'desires' for a new house
and automobile.” Id. Second, we held that the trial court had
erred in not making findings regarding the marital misconduct of
the parties since the parties had offered evidence on that issue.
Third, we held that the trial court had erred in not making
findings justifying either the amount or the duration of the award
of alimony. In regard to this third error, we specifically cited
Payne v. Payne, 49 N.C. App. 132, 137, 270 S.E.2d 546, 549 (1980),
for the proposition that “[o]vershadowing the entire matter is the
inescapable fact that [when the alimony payments cease,]
plaintiff's right to 'permanent alimony' will terminate, along with
any semblance of her accustomed standard of living.” Friend-
Novorska, 131 N.C. App. at 870, 509 S.E.2d at 462.
After our discussion of these three specific errors on the
part of the trial court, we stated:
On remand, the trial court must make a new
award of alimony and make specific findings
justifying that award, both as to amount and
duration. Those portions of the order
declaring [plaintiff] to be a dependent spouse
and [defendant] to be a supporting spouse are
affirmed. For the foregoing reasons, the
decision of the trial court is Affirmed in
part, and vacated and remanded in part.
Id. at 870-71, 509 S.E.2d at 462. Reading this language in
context, I believe we vacated only the trial court's second
conclusion of law awarding plaintiff $600.00 per month for thirtymonths. I further believe we remanded only for (1) a new award of
alimony calculated without considering defendant's desire for a new
house and car, (2) additional specific findings to justify the
amount and duration of that award, and (3) additional findings as
to marital misconduct. The majority states that aside from the two
issues which we expressly affirmed (the conclusion that plaintiff
was a dependent spouse and the consideration of defendant's
investment income in calculating his monthly income),“the remainder
of the trial court's decision was vacated.” I disagree.
Plaintiff's single assignment of error from the trial court's
original order in Friend-Novorska I contended only that the trial
court's second conclusion of law, awarding plaintiff $600.00 per
month for thirty months, was “contrary to law and unsupported by
evidence, findings of fact and conclusions of law.” Plaintiff did
not assign error to any of the findings of fact in the trial
court's original order. Likewise, although defendant on appeal in
Friend-Novorska I initially assigned error to a few factual
findings in the trial court's original order, these assignments of
error were abandoned by defendant on appeal to this Court because
in his brief in Friend-Novorska I he argued only one assignment of
error, namely that the trial court erred in its legal conclusion
that defendant should pay alimony to plaintiff. See N.C.R. App. P.
28(a). Where no error is assigned to findings of fact, such
findings of fact “are presumed to be supported by competent
evidence and are binding on appeal.” Anderson Chevrolet/Olds v.
Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982). Because none of the findings of fact from the trial court's
original order were challenged on appeal to this Court in Friend-
Novorska I, and because we did not hold in that case that any of
the findings were unsupported by the evidence, I believe all of the
findings of fact, rather than being vacated by our opinion in
Friend-Novorska I, as the majority contends, remained intact.
In Lea Co. v. N.C. Board of Transportation, 323 N.C. 697, 374
S.E.2d 866 (1989), our Supreme Court stated:
A decision of this Court on a prior appeal
constitutes the law of the case, both in
subsequent proceedings in the trial court and
on a subsequent appeal. Transportation, Inc.
v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d
181, 183 (1974). “[O]ur mandate is binding
upon [the trial court] and must be strictly
followed without variation or departure. No
judgment other than that directed or permitted
by the appellate court may be entered.” D &
W, Inc. v. Charlotte, 268 N.C. 720, 722, 152
S.E.2d 199, 202 (1966). “We have held
judgments of Superior [C]ourt which were
inconsistent and at variance with, contrary
to, and modified, corrected, altered or
reversed prior mandates of the Supreme Court .
. . to be unauthorized and void.” Collins v.
Simms, 257 N.C. 1, 8, 125 S.E.2d 298, 303
(1962).
Id. at 699, 374 S.E.2d at 868. Here, despite the absence of any
instructions from this Court to the trial court in Friend-Novorska
I to delete, modify or supplant the findings of fact from its
original order, the trial court on remand reconsidered the very
same evidence and entered findings of fact which are contrary to
those in its original order (which new findings of fact resulted in
a greatly reduced calculation of plaintiff's reasonable monthlyexpenses). I believe the trial court was without authority to take
this action, and I would reverse and remand with instructions that
the trial court may only supplement the findings of fact from its
original order in strict accordance with the directive of this
Court in Friend-Novorska I.
I further believe the trial court erred in awarding plaintiff
precisely the same alimony as in its original order, rather than
making a new award of alimony as it was instructed to do on remand.
In Friend-Novorska I, we held that the trial court had abused its
discretion in awarding plaintiff alimony in the sum of $600.00 per
month for 30 months. We reached this determination based on the
following facts set forth in the trial court's first order: (1)
plaintiff had an available net income of $1,745.22 per month from
employment, while her reasonable monthly expenses were $3,089.00,
resulting in plaintiff needing $1,343.78 per month to meet her
monthly living expenses; (2) defendant had approximately $4,887.00
per month (including net income from salary and investments) with
expenses of only $3,758.00 per month, giving him over $1,000 more
than necessary to meet his monthly living expenses; and (3) an
alimony award of $600 per month would provide defendant with about
$210.00 per month in tax benefits, and would provide plaintiff a
net of only $520.00 per month after taxes. In other words, the
award of $600 per month would have left plaintiff with $823.78 less
than her reasonable monthly expenses of $3,089, while providing
defendant with approximately $761 more than his reasonable monthly
expenses of $3,758. Thus, we held that the trial court had abused
its discretion in awarding plaintiff “substantially less than herneeds,” Friend-Novorska, 131 N.C. App. at 869, 509 S.E.2d
at 461,
and ordered the trial court on remand to “make a new award of
alimony,” id. at 871, 509 S.E.2d at 462.
The trial court, however, did not make a new award of alimony.
Instead, the trial court made the same award of $600 per month for
the same duration of 30 months. Furthermore, the only calculation
that has changed in the trial court's second order as compared to
its original order is the calculation of plaintiff's reasonable
monthly expenses (based on the very same evidence, the trial court
inexplicably reduced plaintiff's reasonable monthly car expenses
from $307 to $150, and reduced plaintiff's reasonable monthly
expenses for home maintenance from $350 to $100). According to
these new calculations, an award of $600 per month would still
leave defendant with $761 more than his reasonable monthly expenses
of $3,758, while still leaving plaintiff with $419.78 less than her
recalculated reasonable monthly expenses of $2,685. As in Payne,
where the trial court's alimony award would have provided plaintiff
with $138 less per month than her reasonable monthly living
expenses but would have provided defendant with $739 more per month
than his reasonable monthly living expenses,“the order challenged
by this appeal effectively destroys plaintiff's 'accustomed
standard of living' while substantially improving defendant's.”
Payne, 49 N.C. App. at 137, 270 S.E.2d at 549. I believe the trial
court's alimony award of $600 per month in its second order
directly contradicts our instructions on remand and constitutes
reversible error. Finally, in Friend-Novorska I, we not only ordered the trial
court on remand to make a new award of alimony, but also to “make
specific findings justifying that award, both as to amount and
duration.” Id. The trial court's second order states:
The Court concludes that a term of alimony for
thirty consecutive months from October, 1997
to April, 2000, in the amount of $600.00 per
month is reasonable and equitable based on the
findings of fact made by this Court in
paragraph 4, and its subsections, of the
findings of fact.
“Paragraph 4” comprises 14 pages of the order (the entire order is
15 pages), and “its subsections” include paragraphs A through V,
and, under paragraph V, sub-paragraphs 1 through 15. I believe
this broad reference to virtually every finding in the order as a
basis for concluding that the amount and duration of the alimony
award is reasonable is insufficiently specific to satisfy our
explicit instructions in Friend-Novorska I.
In sum, I believe the trial court's second order follows
neither the explicit instructions, nor the spirit, of this Court's
opinion in Friend-Novorska I. I believe the findings of fact in
the original order were not vacated by our opinion in Friend-
Novorska I and that the trial court was without authority to modify
or supplant those findings. I also believe the trial court's
failure to make a new award of alimony, and the trial court's
failure to make additional findings justifying the amount and
duration of the award, constitute reversible error. Therefore, I
must dissent.
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