KIMBERLY SOLZSMON
v
.
Guilford County
No. 99 CVD 6743
TIMOTHY SOLZSMON
Tracey G. Tankersley for plaintiff-appellee.
John W. Lunsford for defendant-appellant.
THOMAS, Judge.
Defendant, Timothy Solzsmon, appeals an order requiring him to
pay $1000.00 per month in permanent alimony and $200.00 per month
for five years in retroactive alimony.
Defendant contends the trial court failed to make adequate
findings of fact in concluding that plaintiff, Kimberly Solzsmon,
is a dependent spouse and he is a supporting spouse, and further
erred by failing to consider the requisite statutory factors in
determining that an award of alimony is equitable. For the reasons
discussed herein, we reverse and remand for further findings
consistent with this opinion.
Plaintiff and defendant were married on 14 November 1992. On
25 May 1999, plaintiff filed a complaint seeking postseparation
support and permanent alimony. She alleges three grounds ofmarital misconduct: abandonment, adultery, and the squandering of
marital funds.
The trial court heard evidence that defendant works as an
operations manager at Carolina Builders and earns approximately
$38,000.00 per year plus an annual bonus averaging $3,000.00.
Plaintiff is employed as a billing specialist for a law firm and
earns approximately $2,000.00 per month, or $24,0000.00 annually,
in gross income.
At the start of the marriage, defendant began depositing
$1,200.00 per month into a joint bank account for the parties'
living expenses. As he received raises, the amount increased. By
the end of the marriage, defendant was depositing $1,800.00 per
month into the account. Meanwhile, plaintiff's entire monthly
paycheck was directly deposited into the account.
Immediately prior to their separation, plaintiff confronted
defendant about his relationship with her stepsister. When
defendant left the marital residence, he and plaintiff's stepsister
began living together and subsequently became engaged.
Defendant paid plaintiff $200.00 per month in postseparation
support but did not otherwise pay on any marital debts after the
date of separation. Plaintiff testified that she enjoyed a higher
standard of living during the marriage than at the time of the
hearing. She said she was forced to deplete her savings accounts
and borrow money from her mother.
The trial court entered an order requiring defendant to pay
plaintiff $200.00 per month in back alimony until the sum of$12,000.00 is paid in full plus $1,000.00 per month in permanent
alimony. Defendant was also ordered to pay $528.00 per month in
child support for the parties' minor son.
By his first assignment of error, defendant contends the trial
court erred in failing to find sufficient facts to support its
conclusion that plaintiff is a dependent spouse and defendant is a
supporting spouse. We agree.
To be entitled to alimony, the party seeking it must show:
“(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). “Supporting spouse” is a
spouse “upon whom the other spouse is actually substantially
dependent for maintenance and support or from whom such spouse is
substantially in need of maintenance and support.” N.C. Gen. Stat.
§ 50-16.1A(5) (1999). “Dependent spouse” is defined as a spouse
“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 other spouse.” N.C. Gen. Stat. §
50-16.1A(2) (1999).
Here, the trial court found that plaintiff is both “actually
substantially dependent” on defendant and “substantially in need of
maintenance and support from defendant.”
To find a spouse to be “actually substantially dependent” on
the other spouse, he or she must have “actual dependence on the
other in order to maintain the standard of living in the manner towhich that spouse became accustomed during the last several years
prior to separation.” Williams v. Williams, 299 N.C. 174, 180, 261
S.E.2d 849, 854 (1980) (emphasis omitted). In other words, the
spouse seeking alimony would be unable to maintain the accustomed
standard of living from his or her own means. Id. at 181, 261
S.E.2d at 855. The trial court must analyze the parties' “incomes
and expenses measured by the standard of living of the family as a
unit. If this comparison reveals that one spouse is without means
to maintain his or her accustomed standard of living, then [that
spouse] would qualify . . . as 'actually substantially dependent.'”
Id. at 183, 261 S.E.2d at 854. The trial court made no such
comparison. It merely incorporated by reference an affidavit of
plaintiff's current income and expenses and set forth defendant's
income and expenses according to his testimony.
If a spouse is not found to be actually substantially
dependent on the other spouse, the trial court must then determine
whether that spouse is “substantially in need of maintenance and
support” from the other, i.e., 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.
Id. at 181-82, 261 S.E.2d at 855 (emphasis added). “'Substantially
in need'” obviously refers to something less than being 'actually
substantially dependent . . . .'” Id. at 180, 261 S.E.2d at 845.
The trial court must evaluate the following in making this finding:
(1) the standard of living, socially and
economically, to which the parties as a family
unit became accustomed during the several
years prior to their separation; (2) thepresent earnings, prospective earning
capacity, and any other condition, such as
health, of each spouse at the time of the
hearing; (3) whether the spouse seeking
alimony has a demonstrated need for financial
contribution from the other spouse in order to
maintain the parties' accustomed standard of
living, taking into consideration the spouse's
reasonable expenses in light of that standard
of living; and (4) the financial worth or
“estate” of both spouses. Id. The court must
also consider fault and other facts of the
particular case such as the length of the
marriage and the contribution made by each
spouse to the financial status of the family
over the years. Id.
Talent v. Talent, 76 N.C. App. 545, 548, 334 S.E.2d 256, 259 (1985)
(citing Williams, 299 N.C. at 183, 261 S.E.2d at 856)). Here, the
trial court found only that defendant engaged in marital misconduct
on the three grounds alleged by plaintiff, and then listed the
parties' current incomes and expenses. Otherwise, the order gives
no indication the factors were considered. The trial court
therefore erred by concluding that plaintiff is a dependent spouse
and defendant a supporting spouse based on these insufficient
findings.
By defendant's second assignment of error, he contends the
trial court further erred by failing to consider all relevant
factors, including those enumerated in N.C. Gen. Stat. § 50-16.3A
(b) (1999), in determining that an award of alimony would be
equitable. We also find this argument meritorious.
If evidence is offered on a factor listed in section 50-
16.3A(b), an award of alimony must include findings sufficiently
specific to indicate that the trial judge properly considered the
factor. Vadala v. Vadala, 145 N.C. App. 478, 479, 550 S.E.2d 536,537 (2001); see also N.C. Gen. Stat. § 50-16.3A(c) (1999) (“[T]he
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.”). In the absence of such findings, it is not possible for
this Court to properly determine whether the order is adequately
supported by competent evidence. Vadala, 145 N.C. App. at 479-80,
550 S.E.2d at 537-38. Therefore, such an order must be vacated and
the case remanded for necessary findings. Id.
Here, the trial court made findings regarding: (1) the amount
of current earnings and expenses of the spouses; (2) marital
misconduct; and (3) the duration of the marriage. Although
evidence was offered, the trial court made inadequate or no
findings of fact regarding: (i) the standard of living to which the
parties became accustomed during the marriage prior to their
separation; (ii) the total value of the estate of either spouse;
(iii) the relative assets and liabilities of the spouses and the
relative debt service requirements of the spouses, including legal
obligations of support; and (iv) the relative needs of the spouses.
See N.C. Gen. Stat. § 50-16.3A(b). The trial court also did not
consider other factors listed in section 50-16.3A(b).
Further, many of the findings of fact the trial court did make
are inadequate because they are not the ultimate facts but rather
are “mere recitations of the evidence and do not reflect the
'processes of logical reasoning.'” Williamson v. Williamson, 140
N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000) (quoting Appalachian
Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366S.E.2d 705, 707 (1988)). This is indicated by the language stating
that plaintiff or defendant “testified” to certain facts:
9. Plaintiff presented to the Court, and
testified to, an Affidavit of Income and
Expenses attached hereto and incorporated
herein by reference.
10. [T]he parties both testified that during
the marriage the Defendant deposited his
entire take home [pay] into a joint bank
account except for Four Hundred and 00/100
Dollars ($400.00) that he withheld for his car
payment.
11. Defendant testified that his net pay each
month was One Thousand Six Hundred and 00/100
Dollars ($1,600.00). There is a prior Order of
this Court . . . which has a finding of fact
that the Defendant's gross income is Three
Thousand Three Hundred Ninety-two and 00/100
Dollars ($3,392.00) per month.
12. Defendant testified that his monthly
expenses were as follows: . . . . That the
total of these expenses [is] $2,819.00.
(Emphasis added). We are therefore unable to appropriately review
the award because many of these findings of fact merely state what
a witness said rather than the ultimate facts on which a trial
court could base its decision.
Having determined the trial court's findings will not support
its decision, it is unnecessary for us to discuss the remaining
assignments of error.
We reverse the trial court's order and remand with
instructions that the trial court make, based on the evidence which
was presented at trial, appropriate findings of fact and
conclusions of law to support its awards, if any.
REVERSED AND REMANDED. Judges GREENE and MCGEE concur.
Report per Rule 30(e).
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