Appeal by defendant from judgment signed 15 November 2000 by
Judge J.H. Corpening, II in District Court, New Hanover County.
Heard in the Court of Appeals 19 February 2002.
No brief filed for plaintiff-appellee.
Ray C. Blackburn, Jr. for defendant-appellant.
McGEE, Judge.
Anna Simpson Hayes (plaintiff) and Phillip Hayes (defendant)
were married on 11 June 1977. The parties separated on 25 August
1997 and were divorced on 9 October 1998. Plaintiff filed an
action on 3 December 1997 seeking post separation support, alimony,
child custody, child support, equitable distribution of marital
and/or divisible property, and attorney's fees. The issues of post
separation support, child custody and child support were resolved
prior to trial. The remaining issues were tried on 10 June 1999.
This appeal only involves plaintiff's claim for alimony.
At trial, the evidence tended to show that plaintiff was
employed by the Pender County Board of Education as the finance
officer at Burgaw Middle School, that defendant had been self-employed as the owner-operator of Shiloh Travel Service since 1990,
and that defendant had an ownership interest in Old Southern
Cooking d/b/a Dilsey's Restaurant (Old Southern Cooking). Evidence
at trial also showed that defendant paid personal expenses out of
the Shiloh Travel Service business account and also made large
contributions to his church. Documentary evidence introduced at
trial included the parties' joint and individual tax returns,
plaintiff's financial standing affidavit, and a summary of
defendant's business and personal expenses.
Following the trial, the trial court entered an order signed
15 November 2000 that included the following pertinent findings of
fact, which defendant challenges as not supported by competent
evidence in the record:
34. Since 1996, the Defendant has had an
interest with his brother, in a restaurant in
Pender County known as Old Southern Cooking,
d/b/a Dil[s]ey's Restaurant.
. . .
40. Although the Defendant contends that
he does not make much money from his
businesses, the Court finds that the
Defendant's contentions are unreasonable,
given the fact that:
A. A significant amount of money
passes through his hands each
month[.]
B. The Defendant pays all of his
living expenses from his
business accounts.
C. The Defendant takes "care of"
Floyd Robinson from his
business account, disbursing
$10,565.40 for the use and
benefit of Mr. Robinson fromhis business account in the
year 1997 according to the
Defendant's own records.
D. The Defendant pays significant
amounts of money to or for the
use and benefit of Shiloh
Baptist Church . . . as shown
by his "Summary of Personal
Expenses" . . . .
41. Although the value of the
Defendant's ownership of Shiloh Travel
Service, and the value of Defendant's part-
ownership of Old Southern Cooking are not
before the Court, and the Court makes no
indication as to its opinion, if any, as to
the value of these two businesses, it is
clear, and the Court finds, that each of these
businesses provides a substantial income
stream to the Defendant each month, and that
the income the Defendant may derive from each
of these businesses is entirely in his
discretion as to Shiloh Travel Service and
substantially in his discretion as to Old
Southern Cooking.
The trial court's conclusions of law, challenged by defendant
as not supported by competent evidence, included:
10. The amount of alimony herein ordered
is reasonable and necessary under the present
circumstances of the parties, taking into
account such amounts as the Court has found
are necessary so as to meet the reasonable
needs of the Plaintiff for her subsistence,
having due regard to the estates, earnings,
conditions, accustomed standard of living of
the parties, and the other facts in this case
as found hereinabove.
11. The Defendant is fully capable of
providing alimony to the Plaintiff as ordered
herein.
The trial court ordered defendant to pay plaintiff permanent
alimony in the amount of $1,300.00 per month. Defendant was also
ordered to pay to plaintiff the sum of $22,100.00 "by way ofretroactive periodic permanent alimony payment[.]" Defendant
appeals.
Defendant first argues that the trial court erred in its
findings of fact as to alimony because they are not supported by
competent evidence in the record. Specifically, defendant contests
the trial court's findings on his income, estate and earning
capacity.
In an action for alimony, "the court shall award alimony to
the dependent spouse upon a finding that one spouse is a dependent
spouse, that the other spouse is a supporting spouse, and that an
award of alimony is equitable after considering all relevant
factors[.]" N.C. Gen. Stat. § 50-16.3A(a) (1999). In an order
awarding or denying alimony, the trial court "shall make a specific
finding of fact on each of the factors . . . if evidence is offered
on that factor." N.C. Gen. Stat. § 50-16.3A(c) (1999).
These
findings must be "'"sufficiently specific to indicate that the
trial judge properly considered each of the factors . . . for a
determination of an alimony award."'"
Rhew v. Rhew, 138 N.C. App.
467, 470, 531 S.E.2d 471, 473 (2000) (quoting
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))).
"Evidence must support findings; findings must
support conclusions; conclusions must support
the judgment. Each step of the progression
must be taken by the trial judge, in logical
sequence; each link in the chain of reasoning
must appear in the order itself. Where there
is a gap, it cannot be determined on appeal
whether the trial court correctly exercised
its function to find the facts and apply the
law thereto."
Quick v. Quick, 305 N.C. 446, 458, 290 S.E.2d 653, 661 (1982)
(quoting
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190
(1980)). If supported by competent evidence, the trial court's
findings of fact are conclusive on appeal, notwithstanding that
evidence has been offered at trial to the contrary.
Spencer v.
Spencer, 133 N.C. App. 38, 43, 514 S.E.2d 283, 287 (1999).
The
issue in this case is whether there is a gap between the evidence
presented at trial and the findings of fact made by the trial
court.
Defendant argues that "[t]here is no evidence of any
'substantial income stream' to the [d]efendant" from Old Southern
Cooking. We agree with defendant that findings of fact numbers 40
and 41, with regard to Old Southern Cooking, are unsupported by
evidence in the record. There is no evidence in the record that
"[a] significant amount of money [from Old Southern Cooking] passes
through [defendant's] hands each month" as the trial court found.
There was no testimony at trial from either party regarding
defendant's monthly income from Old Southern Cooking and the trial
court made no specific findings as to defendant's monthly income
and/or expenses from Old Southern Cooking. The evidence shows that
in tax year 1996, defendant earned wages from Old Southern Cooking
in the amount of $14,788.00, which defendant reported as his total
income for the year. Defendant testified he had a $9,829.00 tax
loss that year for the restaurant.
In tax year 1997, the evidence shows that defendant earned
wages from Old Southern Cooking in the amount of
$18,876.00, withhis total income for the year being $23,499.00. The evidence shows
that defendant took a tax loss of $18,077.00 that year for the
restaurant. There is no evidence of wages or losses from Old
Southern Cooking after tax year 1997.
Further, there is no evidence in the record to support the
trial court's finding that the income defendant derives from Old
Southern Cooking is substantially within his discretion. Although
defendant owned an interest in Old Southern Cooking, there was no
testimony from either party that defendant has substantial
discretion in the income he receives from the restaurant. In fact,
defendant testified that he had not participated in restaurant
operations for a period of two and one-half years.
Findings of
fact numbers 40 and 41 with regard to Old Southern Cooking are not
supported by competent evidence in the record.
Defendant next argues the trial court erred in finding that
defendant could receive substantial income from Shiloh Travel
Service because the evidence in the record does not support this
finding. First, there is no evidence in the record to support the
trial court's finding that "[a] significant amount of money passes
through [defendant's] hands each
month[,]" because there was no
testimony by either party as to any monthly income defendant
receives from Shiloh Travel.
The evidence shows, and the trial
court found, that with regard to Shiloh Travel, in tax year 1994
defendant reported gross receipts of $141,193.93, and losses of
$15,637.57. In tax year 1995, defendant reported $151,399.00 in
gross receipts with a profit of $3,312.00. In tax year 1996,defendant reported $299,612.00 in gross receipts with a loss of
$204.00. Also, in tax year 1997, defendant testified to receiving
$599,000.00 in receipts, with a profit of $4,623.00. Finally, in
tax year 1998, defendant had gross receipts totaling $573,144.00
and losses totaling $12,490.00. Defendant testified that he only
had one banking account out of which he paid personal as well as
business expenses. In 1998, his personal expenses, including
donations, totaled $33,006.13. None of this evidence supports a
finding as to defendant's "significant"
monthly income stream.
The evidence at trial, however, does support the trial court's
finding that defendant "pays all of his living expenses" from his
Shiloh Travel business account because defendant testified to that
fact at trial. Further, the evidence also supports the trial
court's finding that defendant takes "care of" Floyd Robinson from
his Shiloh Travel business account. The evidence at trial showed
that Floyd Robinson was an employee of defendant's at Shiloh Travel
and left that employment in May 1998. In 1997, defendant paid
Floyd Robinson's Bell South bill, City of Wilmington bill and child
support bill and testified that "[a]ll of that was deducted from as
salary." In 1997, defendant paid Floyd Robinson $10,555.40.
Finally, the evidence in the record does support the trial
court's finding that defendant pays significant amounts of money to
or for Shiloh Baptist Church from his business account.
We find that finding of fact number 40 is not supported by
competent evidence, in part, and finding of fact number 41 is not
supported by competent evidence. Because we are unable todetermine what weight the trial court gave to each of these
findings when concluding that the amount of monthly alimony awarded
was reasonable and that defendant is "fully capable of providing
alimony to plaintiff in the amount of $1300.00 per month," we must
reverse and remand the trial court's order.
Alvarez v. Alvarez,
134 N.C. App. 321, 327, 517 S.E.2d 420, 424 (1999).
Finally, defendant argues in his brief to our Court that the
trial court failed to make specific findings as to the relative
earnings and earning capacities of the spouses, as well as the
amount and sources of earned and unearned income pursuant to N.C.
Gen. Stat. § 50-16.3A(b) (2) and (4) (1999). However, we are
unable to review these contentions on appeal because in his
assignment of error on appeal, defendant only contends that the
findings of fact were not supported by competent evidence, and does
not challenge the sufficiency of the findings. N.C.R. App. P. 10
("[T]he scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal in
accordance with this [r]ule.").
We reverse the order of the trial court and remand the matter
for new findings of fact supported by the evidence in the record.
Reversed and remanded.
Judges GREENE and THOMAS concur.
Report per Rule 30(e).
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