PATRICIA MARILYN HONEYCUTT,
Plaintiff,
v
.
WALLACE B. HONEYCUTT,
Defendant.
White and Crumpler, by Fred G. Crumpler, Jr. and Laurie
Schlossberg Kelly, and Jane S. Atkins & Associates, P.A., by
Jane S. Atkins and Elizabeth A. Stephenson, for plaintiff-
appellant.
Woodruff & Associates, P.A., by Carolyn J. Woodruff, for
defendant-appellee.
HUDSON, Judge.
Plaintiff, Patricia Marilyn Honeycutt, appeals an order
entered 6 December 2000 terminating her ex-husband's obligation to
pay alimony. We reverse and remand for further proceedings.
Plaintiff married defendant, Wallace B. Honeycutt, in 1956.
They separated July 1989, and divorced September 1990. Before the
divorce was final, plaintiff filed a verified complaint seeking
alimony, “reasonable support, maintenance and subsistence,”
possession of the marital home in addition to its furnishings,
attorney's fees, and equitable distribution of the marital
property. On 12 November 1991, the trial court entered a Judgment
of Equitable Distribution and Qualified Domestic Relations Order,which distributed the couple's property and gave the marital home
to plaintiff. Following a jury trial on the issue of fault, the
trial court entered an Alimony Judgment on 31 January 1992 finding
among other things that plaintiff was a dependent spouse pursuant
to N.C. Gen. Stat. § 50-16.1(3) (1995), that defendant was a
supporting spouse pursuant to N.C. Gen. Stat. § 50-16.1(4) (1995),
and that defendant was capable of financially supporting plaintiff.
Defendant was ordered to pay alimony of $3,261.74 per month to
plaintiff “until the death of either party, or the remarriage of
the plaintiff, whichever event should first occur.” The court also
decreed that “this Order may be reviewed as to permanent Alimony,
upon finalization of the equitable distribution action.”
On 9 December 1998, defendant filed a motion to reduce his
alimony payments to plaintiff on the grounds that there was a
“substantial change of circumstances” in that he was in the process
of selling his dental practice and would soon retire. Plaintiff
filed a motion to increase defendant's alimony payments, because
she contended that he was enjoying an increase in income from
rental property, from the sale of his dental practice, and from
annuity contracts, in addition to his annual income as a dentist.
The record does not indicate whether either of these motions were
heard. The parties entered a Consent Judgment on 9 March 2000,
resolving all outstanding equitable distribution issues.
On 2 August 2000, defendant filed a motion to terminate his
alimony payments to plaintiff, citing a “substantial material
change in circumstances in addition to the change contemplated bythe alimony judgment entered in 1992.” Defendant noted the
following changes in circumstance:
a. [Defendant] is now age 66 and
[plaintiff] is now age 65. Both are receiving
social security and both are or should be now
receiving Medicare.
b. The defendant [] has no regular
employment and is retired.
4. [Defendant] no longer has a monthly
income from his practice.
a. In equitable distribution,
[defendant] divided the retirement plans with
[plaintiff] fifty-fifty.
b. The needs of [plaintiff] have
materially declined since the hearing in 1991
in that she now has a paid for home, paid for
automobile, Medicare, upon information and
belief no household help and her medical bills
are less.
c. [Plaintiff] has adequate investments
along with her social security to provide for
her needs and her “paid for” home and with her
“paid for” automobile and Medicare.
[Plaintiff] has the luxury of living in a
5000 square foot “paid for” residence
containing five bedrooms and she could easily
downsize her residence to a more suitable size
for a person in retirement age should she need
additional resources.
Defendant also filed an alternative motion to terminate his alimony
payments, relying on the trial court's earlier order that alimony
could be reviewed as soon as the equitable distribution claim was
finalized. Plaintiff replied to both motions, and in response to
the alternative motion contended that “the Alimony Judgment is a
judgment awarding the plaintiff permanent alimony from the
defendant.”
On 6 December 2000, the trial court concluded that the
previous alimony judgment was an “Order of 'permanent alimony' butdid not consider the amount of alimony to be a fully determined
issue.” The trial court further concluded that according to the
previous judgment, “neither party was to be required to demonstrate
changed circumstances in order for the Court to adjust the actual
amount of the alimony payment.” However, the trial court
concluded, that because nine years had passed since entry of the
alimony judgment, and since the property was equitably distributed
(except for one piece of property), defendant “has the burden of
demonstrating changed circumstances both for purposes of requesting
that the Court terminate alimony altogether on the theory that
[plaintiff] is no longer dependent and for purposes of requesting
that, absent termination, the award be reduced.” The trial court
held that defendant met his burden of proving changed
circumstances, that plaintiff was “no longer a dependent spouse,”
and terminated alimony payments effective 2 October 2000.
Plaintiff appeals this Order and in her sole argument contends
that “the trial court erred in terminating [defendant's] obligation
to pay alimony to [plaintiff] on the grounds that said ruling is
not supported by proper findings of facts or conclusions of law.”
She points to two alleged legal errors in the trial court's order:
(1) the conclusion that she is no longer a dependent spouse, and
(2) findings and conclusions that she has a certain earning
capacity. We note that the applicable alimony statutes, N.C. Gen.
Stat. §§ 50-16.1 et seq., were amended in 1995. “Session Laws 1995
. . . provides that the act applies to civil motions filed on or
after that date, and shall not apply to pending litigation, or tofuture motions in the cause seeking to modify orders or judgments
in effect on October 1, 1995.” N.C.G.S. § 50-16.1 (1995) (editor's
note). The original action was filed prior to 1995, and the
statute and applicable case law from before the 1995 amendments
govern. See id.
We first address whether the trial court properly concluded
that plaintiff is no longer a dependent spouse. Pursuant to N.C.
Gen. Stat. § 50-16.9(a) (1987), “[a]n order of a court of this
State for alimony or alimony pendente lite, whether contested or
entered by consent, 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.” Here, the defendant had the
burden of showing a change of circumstances to support his motion
to decrease alimony. “Even where the moving party has met [his]
burden to show relevant changed circumstances, however, the trial
court is not required to modify an alimony award, but may do so in
its discretion.” Kowalick v. Kowalick, 129 N.C. App. 781, 785, 501
S.E.2d 671, 674 (1998) (citing Robinson v. Robinson, 10 N.C. App.
463, 468, 179 S.E.2d 144, 148 (1971)).
“To determine whether a change in circumstances under G.S. 50-
16.9 has occurred, it is necessary to refer to the circumstances or
factors used in the original determination of the amount of alimony
awarded under G.S. 50-16.5.” Rowe v. Rowe, 305 N.C. 177, 187, 287
S.E.2d 840, 846 (1982), disc. rev. denied, 314 N.C. 331, 333 S.E.2d
489 (1985). Although now repealed, N.C. Gen. Stat. § 50-16.5
(1987), entitled “Determination of amount of alimony,” requires theconsideration of the “estates, earnings, earning capacity,
condition, accustomed standard of living of the parties, and other
facts of the particular case” in setting the amount of alimony.
See also Rowe, 305 N.C. at 187, 287 S.E.2d at 846. However, the
trial court may not reconsider the issue of whether the Plaintiff
is a dependent spouse, because it was “permanently adjudicated”
during the initial alimony hearing. See Rowe, 305 N.C. at 187, 287
S.E.2d at 846.
Here, the trial court improperly concluded that plaintiff “is
no longer a dependent spouse,” because the trial court determined
that relative status of the parties permanently as of the date of
the original order. See id. Subsequent to that order, the court
may consider only “whether any change of circumstances justified a
modification or termination of the alimony order.” Cunningham v.
Cunningham, 345 N.C. 430, 437, 480 S.E.2d 403, 407 (1997). “We
note that the trial court may, if a change in circumstances is
found to exist, reduce the amount of alimony to zero, but such
modification does not result in the loss of dependent spouse
status.” Kowalick, 129 N.C. App. at 786, 501 S.E.2d at 675.
“On remand, the trial court should make findings showing its
consideration of the [N.C.G.S. §] 50-16.5 factors on which the
parties have presented competent evidence.” Id. at 787, 501 S.E.2d
at 675. However, we note that findings 7 and 8 contain provisions
which are not supported by the evidence or which are not consistent
with the law. The court is not to calculate plaintiff's expenses
based on what they would be if she sold her home and moved to asmaller one, without taking into account the cost of such a move,
and the resultant lessening of plaintiff's standard of living. In
addition, we do not believe the evidence supports the finding that
plaintiff's expenses “should be reduced by $239.16 for medical
insurance since Plaintiff is now eligible for Medicare.” The
record reflects that plaintiff's health care costs are for
supplemental insurance to cover health care needs and prescription
medications which Medicare does not cover. The record reflects no
reason for the court to require her to lessen her standard of
living by reducing the quality or availability of health care in
this manner. To the contrary, the record reflects that by carrying
this insurance, the plaintiff has taken reasonable steps to provide
for her known health care needs. We remand for the trial court to
make new findings and conclusions consistent with this opinion.
However, plaintiff raises a second challenge to the
conclusions of law. Plaintiff argues that the trial court erred in
“considering [her] earning capacity,” as opposed to her actual
earnings, without first determining that she “was intentionally, in
bad faith, suppressing her actual income.” The statute in effect
at the time of this claim specifically required the court to
consider the income and earning capacity of the parties, among
other factors that may be considered, and here the conclusion makes
reference to “earning capacity.” The findings on which this
conclusion is based refer to potential investment income and social
security, rather than earning capacity from working, as the term is
typically used. Thus, as we do not believe the court's findingsaddress plaintiff's “earning capacity,” we need not address this
issue further.
Reversed and remanded for further findings consistent with
this opinion.
Judge BIGGS concurs.
Judge GREENE concurs in part and dissents in part.
GREENE, Judge, concurring in part and dissenting in part.
I agree with the majority as to the first part of its opinion
holding that the trial court erred in concluding plaintiff was no
longer a dependent spouse. The majority opinion, however, also
holds that the trial court's findings do not discuss plaintiff's
earning capacity and thus this Court need not address the question
whether the trial court erred in failing to make a finding as to
plaintiff's bad faith. As to this part of the opinion, I dissent.
According to pre-1995 case law, “an award of alimony may be
based upon [a] spouse's ability to earn as distinguished from [her]
actual income . . . only when it appears from the record that there
has been a deliberate attempt on the part of the . . . spouse to
avoid [her] financial family responsibilities.” Bowes v. Bowes,
287 N.C. 163, 171-72, 214 S.E.2d 40, 45 (1975); Spencer v. Spencer,
70 N.C. App. 159, 171, 319 S.E.2d 636, 645 (1984) (in order to use
earning capacity, the trial court must make a “finding that the
reduction in income was primarily motivated by a desire to avoid
. . . reasonable support obligations”). “Absent such a finding,
the trial court must determine alimony based on [a spouse's] incomealone, not [her] earning capacity.” Spencer, 70 N.C. App. at 171,
319 S.E.2d at 645.
In this case, the trial court concluded that “[i]n light of
the fact . . . the individual estates, earnings, earning
capacities, and conditions of the parties have changed
substantially and . . . [plaintiff] is presently capable of
supporting and maintaining herself . . . without any assistance
from . . . [d]efendant,” it was terminating defendant's spousal
support obligations. The trial court's findings on which this
conclusion is based include expert testimony regarding plaintiff's
potential investment income.
(See footnote 1)
Reliance on this testimony, which
essentially speaks to plaintiff's earning capacity, would be error
without an additional finding of bad faith on her part.
(See footnote 2)
See
Bowes, 287 N.C. at 171-72, 214 S.E.2d at 45; Spencer, 70 N.C. App.
at 171, 319 S.E.2d at 645. Moreover, in ascertaining plaintiff's
actual investment income for purposes of alimony, the trial court
must consider “[t]he value of property within a reasonable time
before or after the commencement of [the present] action.” Clark
v. Clark, 301 N.C. 123, 135, 271 S.E.2d 58, 67 (1980). As the
order does not reflect the extent, if any, to which the trial court
relied on the expert testimony regarding plaintiff's investmentincome, I would remand this issue to the trial court for findings
consistent with this opinion.
*** Converted from WordPerfect ***