Appeal by plaintiff from order filed 30 November 2000 by Judge
Fred M. Morelock in Wake County District Court. Heard in the Court
of Appeals 11 June 2002.
Lynne M. Kay for plaintiff appellant.
Sokol & LeFante, by Marc W. Sokol, for defendant appellee.
GREENE, Judge.
Gail Patricia Kelly (Plaintiff) appeals an order filed 30
November 2000 denying her permanent alimony and attorney's fees.
The record shows Plaintiff filed a complaint against Daniel Joseph
Kelly (Defendant) on 14 February 1994 seeking a divorce, child
custody and support, alimony, equitable distribution, and
attorney's fees.
(See footnote 1)
On 7 October 1994, the trial court entered an
order for alimony pendente lite in favor of Plaintiff. The
judgment and order for equitable distribution, which awarded
Plaintiff approximately seventy-five percent of the marital estate,was not entered until 29 November 2000. On 30 November 2000, the
trial court entered an order, pursuant to the alimony statute in
existence prior to 1995 and applicable to this case, finding
Plaintiff to be a dependent spouse but denying alimony and
attorney's fees on the basis of Plaintiff's distributive award
under the equitable distribution order and Defendant's payment of
spousal support for a period of nearly seven years prior to 30
November 2000.
______________________
The issues are whether the trial court: (I) erred in finding
Plaintiff's estate consisted of seventy-five percent of the marital
estate; (II) abused its discretion in finding the parties'
reasonable expenses not pertinent to its decision to deny alimony;
(III) abused its discretion in finding the parties' reasonable
expenses; (IV) erred in finding that “Plaintiff has made no effort
to complete her education or to advance in her career, or to change
her employment”; and (V) erred in finding the family's monthly net
cash flow during the last few years of the parties' marriage to be
approximately $7,100.00 without considering Defendant's pay
increase during the six months prior to the parties' separation.
I
Plaintiff argues the trial court committed error in finding in
its alimony order that her estate consisted of seventy-five percent
of the marital estate. We agree. This finding, which was taken
directly from the equitable distribution order, reflects the amount
of marital property distributed to Plaintiff based on its date-of-separation value almost seven years prior to the alimony order.
Consideration of the parties' separate estates for purposes of
alimony, however, must be based on “[t]he value of property within
a reasonable time before or after the commencement of an action
seeking an award of permanent alimony.”
Clark v. Clark, 301 N.C.
123, 135, 271 S.E.2d 58, 67 (1980). Accordingly, the trial court
erred in attributing to Plaintiff an estate based on its date-of-
separation value.
II
Plaintiff next argues the trial court abused its discretion in
finding the parties' reasonable expenses irrelevant to its decision
to deny alimony. Under our case law prior to 1995, an alimony
award had to be “in such amount as the circumstances render[ed]
necessary, having due regard to the estates, earnings, earning
capacity, condition, accustomed standard of living of the parties,
and other facts of the particular case.” N.C.G.S. § 50-16.5(a)
(1987) (repealed 1995). Thus, an alimony order is valid only if
the trial court has made findings as to these factors.
Hunt v.
Hunt, 112 N.C. App. 722, 727, 436 S.E.2d 856, 680 (1993).
In this case, the trial court entered findings of fact as to
the factors listed above, including the parties' reasonable
expenses. While the entry of findings as to required factors will
normally be read as an implicit consideration of those factors by
the trial court in reaching its decision,
see Hanley v. Hanley, 128
N.C. App. 54, 60, 493 S.E.2d 337, 340-41 (1997),
the trial court in
this case expressly found its findings regarding the parties'reasonable expenses “not pertinent” to its conclusion to deny
alimony. As such, it failed to give any weight to the parties'
reasonable expenses and thereby abused its discretion.
Sayland v.
Sayland, 267 N.C. 378, 382, 148 S.E.2d 218, 221 (1966) (alimony
award not reviewable absent abuse of discretion);
see Quick v.
Quick, 305 N.C. 446, 457, 290 S.E.2d 653, 660 (1982) (an alimony
award must be fair and just to both parties).
III
Plaintiff also assigns as error the trial court's finding that
her reasonable expenses are equal to one third of the total family
expenses prior to the date of separation. As noted in
Bookholt v.
Bookholt, the trial court “'is not required to accept at face value
the assertion of living expenses offered by the litigants
themselves.' Implicit in this is the idea that the trial judge may
resort to his own common sense and every-day experiences in
calculating the reasonable needs and expenses of the parties.”
Bookholt v. Bookholt, 136 N.C. App. 247, 250, 523 S.E.2d 729, 731
(1999) (citation omitted). As the total family expenses previously
covered four other family members in addition to Plaintiff,
including the private school tuition of the parties' children, we
cannot say that the trial court abused its discretion in finding
Plaintiff's reasonable expenses to be one third of this amount.
As to Defendant's reasonable expenses, Plaintiff argues the
trial court erred because it included payments for vehicles driven
by their two daughters, ages twenty and twenty-two, as well as the
lease on an apartment occupied by one of their daughters. WhileDefendant asserts he is contractually liable for these payments,
the question remains whether the expenses should be deemed
reasonable. It is an abuse of discretion for a trial court to
allow a supporting spouse to reduce his net monthly income, and
thus his obligation to his dependent spouse, based not on necessity
but instead on the voluntary assumption of additional obligations.
Sayland, 267 N.C. at 383, 148 S.E.2d at 222;
Friend-Novorska v.
Novorska, 131 N.C. App. 867, 869, 509 S.E.2d 460, 461 (1998).
Because Defendant's expenses as they relate to the vehicle and rent
payments for the parties' daughters constitute a voluntary
assumption of legal obligations, the trial court abused its
discretion in including them in Defendant's reasonable expenses.
IV
Plaintiff further contends there is no competent evidence to
support the trial court's finding that she “has made no effort to
complete her education or to advance in her career, or to change
her employment.” Although Defendant testified he knew of other
people with similar credentials as Plaintiff who earned between
$10,000.00 and $30,000.00 a year more than Plaintiff, he knew
nothing about Plaintiff's attempts to find a higher paying
position. Furthermore, Plaintiff's testimony is undisputed that
she searched diligently for a period of six months and could not
obtain a higher paying job than the one she had accepted and that
pursuit of a bachelor's degree, even if she could afford it, would
not increase her income potential because she already worked at a
level requiring a degree. In light of this evidence, the trialcourt's finding was in error.
See Marks v. Marks, 316 N.C. 447,
460, 342 S.E.2d 859, 867 (1986) (findings must be supported by
competent evidence).
V
Finally, Plaintiff contends the trial court erred in finding
the family's monthly net cash flow during the last few years of the
parties' marriage to be approximately $7,100.00, a figure not
reflecting Defendant's pay increase during the six weeks prior to
the parties' separation. Apparently, the trial court purposefully
omitted consideration of Defendant's pay increase because it noted
Defendant also became responsible for paying his own self-
employment taxes from that point forward. As this additional
finding does not reflect whether the self-employment taxes offset
Defendant's pay increase, this issue must be remanded to the trial
court for entry of an appropriate finding of fact.
(See footnote 2)
For the reasons stated in this opinion, this case is reversed
and remanded for new findings based on the record.
Reversed and remanded.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
Footnote: 1