A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in
the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
NO. COA01-1211
NORTH CAROLINA COURT OF APPEALS
Filed: 5 November 2002
NANCY O. PICKARD,
Plaintiff-Appellant,
v
.
Mecklenburg County
No. 99 CVD 17562
JAMES H. PICKARD,
Defendant-Appellee.
Appeal by plaintiff from order entered 21 March 2001 by Judge
Eric L. Levinson in Mecklenburg County District Court. Heard in
the Court of Appeals 22 May 2002.
Helms, Henderson & Porter, P.A., by Christian R. Troy, for
plaintiff appellant.
Justice, Eve & Edwards, P.A., by R. Michael Eve, Jr., for
defendant appellee.
McCULLOUGH, Judge.
This case arises out of a divorce proceeding between plaintiff
Nancy Pickard and defendant James Pickard. The relevant facts are
as follows: The Pickards were married on 23 March 1985. Two
children were born of the marriage: James, born 4 December 1986;
and Luke, born 28 December 1988. The parties separated on 5 March
1999. On 19 November 1999, plaintiff filed a complaint and brought
forth issues of child custody and support, post separation support,
alimony, and equitable distribution. On 28 January 2000, defendant
filed an answer and counterclaim requesting that the trial court
dismiss plaintiff's complaint and award custody of the children tohim; he also requested a reasonable sum from the Plaintiff for the
support and maintenance of the minor children.
On 14 August 2000, the parties entered into a consent order
resolving the issues of child custody, post-separation support and
temporary child support. The consent order provided that:
1. The Defendant shall pay directly to
the Plaintiff on or before the 1st day of each
month beginning on May 1, 2000, post-
separation support in the amount of $1,000.00
per month without prejudice to either party.
Said post-separation support shall be tax
deductible by the Defendant and shall continue
for eighteen (18) months, or until the alimony
trial in this action, the Plaintiff's death,
remarriage, or cohabitation, whichever shall
first occur.
2. As temporary child support, the
Defendant shall pay the monthly mortgage
payment on the marital home in the approximate
amount of $673.00 per month. Defendant shall
also be responsible for a pro rata share of
the property tax on a monthly basis beginning
on January 1, 2000, and continuing until a
permanent child custody and support order is
entered. Defendant shall not be required to
convey his interest in the marital home to the
Plaintiff as a part of the equitable
distribution, until a permanent child custody
and support order is entered, so that he may
deduct said property tax payment on his state
and federal income tax returns.
The Pickards' divorce became final on 8 December 2000. The issues
of permanent child support and permanent alimony were tried at the
11 January 2001 Session of Mecklenburg County District Court. The
evidence at the bench trial showed that Mr. Pickard has a law
degree, and Mrs. Pickard has a college degree in history and a
minor in economics. Mr. Pickard practiced law until 1995, then
pursued work as a salesman. At the time of trial, he earnedapproximately $6,347.00 gross monthly wages and also had income
from investments. By mutual agreement of the parties, Mrs. Pickard
remained at home with the couple's two sons. In 1996, Mrs. Pickard
began exploring work options in the field of international
commerce. She also performed part-time temporary clerical and
secretarial jobs which permitted her to be at home when her sons
were at home. When the trial court entered its order for alimony
and child support in March 2001, plaintiff was earning $10.00 per
hour in a temporary assignment.
Over the span of the marriage, defendant's drinking became
problematic. Though defendant promised plaintiff he would seek
treatment, he did not do so. As defendant's drinking increased,
plaintiff began distancing herself both physically and emotionally
from him. However, other factors also contributed to plaintiff's
behavior. During the last years of the marriage, defendant
attempted to continue the parties' relationship; however, plaintiff
intended to separate from defendant and did so on 5 March 1999.
The trial court made several findings regarding the parties'
financial status and employment histories, the custody of their
children, and the breakup of their fourteen-year marriage. The
trial court noted that [d]efendant's use of alcohol was a serious
and significant factor in the break up [sic] of the marriage. The
trial court also found that plaintiff's physical and emotional
estrangement from defendant was caused, only in part, by
defendant's drinking, and that [t]his behavior by Plaintiff [her
physical and emotional estrangement] was a serious and significantfactor in the break up [sic] of the marriage. The trial court
found that the financial affidavits of both parties were
reasonable. The trial court noted that plaintiff incurred over
$14,000.00 in credit card debt; however, it also found that
[w]hile she may make some bad decisions in spending, she is not a
spendthrift.
The trial court concluded plaintiff was the dependent spouse
under N.C. Gen. Stat. § 50-16.1A(2) (2001) and ordered that
defendant pay her child support of $1,054.00 per month (the
Guideline amount). Additionally, plaintiff was awarded alimony of
$1,100.00 per month from 1 February 2001 to 1 May 2002, with annual
reductions in the amount of alimony through November 2005, as well
as attorney fees of $3,000.00. From the trial court's order dated
21 March 2001, plaintiff appealed.
On appeal, plaintiff contends the trial court committed
reversible error by (I) awarding a reduced amount of alimony to
her; and (II) failing to make required findings of fact as to the
amount and duration of the alimony award. For the reasons set
forth herein, we disagree with plaintiff's arguments and affirm the
order of the trial court.
I.
By her first assignment of error, plaintiff contends the trial
court incorrectly awarded her a reduced amount of alimony because
she presented reasonable expenses of $1,860.00 per month, but was
awarded only $1,100.00 per month. Plaintiff also argues the trial
court's order does not provide sufficient findings of fact toexplain its reduced award.
According to plaintiff, the trial court gave undue weight to
the fact that she physically and emotionally estranged herself from
defendant during the last years of their marriage. Though
defendant's answer presented several defenses to plaintiff's claim
for alimony, she believes the trial court ultimately discredited
all but one of those defenses -- her physical and emotional
estrangement. Thus, plaintiff contends the only finding by the
trial court which could possibly explain the alimony reduction was
Finding of Fact 15, which stated:
15. Plaintiff physically and emotionally
estranged herself from Defendant. Defendant's
drinking was not the sole reason for the
Plaintiff shutting the Defendant out of her
life. This behavior by Plaintiff was a
serious and significant factor in the break up
[sic] of the marriage.
During the last years of the marriage,
Defendant made efforts to preserve the
marriage. Plaintiff did not wish to do so and
her intentions to separate were unambiguous.
Plaintiff also notes that the trial court's memorandum to the
parties' attorneys stated, In addition to everything we discussed,
I am giving additional weight and importance to the 'emotional shut
out/down' I am finding with respect to Ms. Pickard. Plaintiff
maintains this is further proof that the trial court improperly
used that single finding to reduce her alimony award.
Plaintiff admits the trial court could have awarded her a
reduced amount of alimony if it found that she engaged in marital
misconduct or if her earning capacity warranted a reduction. However, plaintiff believes that, even if Finding of Fact 15 is
read liberally, her conduct did not amount to marital misconduct
under N.C. Gen. Stat. § 50-16.3A(b)(1) (2001). Marital misconduct
is defined by N.C. Gen. Stat. § 50-16.1A(3) (2001) and includes,
among other things: f. Indignities rendering the condition of the
other spouse intolerable and life burdensome[.] Plaintiff notes
that both spouses have an equal burden to preserve their marriage
and the failure to preserve a marriage is not an indignity. [W]e
do not believe the failure to protect or preserve the marital
relationship standing alone would constitute an indignity rendering
a dependent spouse's condition intolerable and life burdensome as
required by [the statute]. Vann v. Vann, 128 N.C. App. 516, 519,
495 S.E.2d 370, 372-73 (1998).
'. . . The fundamental characteristic of indignities is that
it must consist of a course of conduct or continued treatment which
renders the condition of the injured party intolerable and life
burdensome. The indignities must be repeated and persisted in over
a period of time.' Traywick v. Traywick, 28 N.C. App. 291, 295,
221 S.E.2d 85, 88 (1976) (quoting 1 Robert E. Lee, North Carolina
Family Law § 82, at 311) (emphasis added)). See also 1 Suzanne
Reynolds, Lee's North Carolina Family Law § 6.11, at 569 (5th ed.
1993). Plaintiff contends her actions did not rise to the level of
indignities, and therefore, did not constitute marital misconduct.
Plaintiff also argues the trial court did not make adequate
findings regarding her earning capacity. The evidence at trial was
that plaintiff earned $10.00 per hour in a temporary assignment. Plaintiff had a bachelor's degree in history and a minor in
economics and an interest in international commerce, but had not
established a career in that field. The trial court found that
[p]ursuit of employment in her field of interest, international
commerce, has been one cause of her underemployment. She will need
time to get into a career position that will pay her a better
wage. Plaintiff concedes, however, that the trial court did
determine her earning capacity to a point, as it found she was 43
years old, had a college degree, and suffered no physical
limitations.
Plaintiff believes the trial court did not indicate which
factors in N.C. Gen. Stat. § 50-16.3A(b) it relied upon to reduce
her alimony award, and did not state that alimony was being
reduced. She believes the trial court considered her failure to
preserve the marriage an indignity (and hence marital misconduct),
and used it to reduce her alimony award. She further contends the
trial court did not make adequate findings of fact (as it is
required to do by N.C. Gen. Stat. § 50-16.3A(c)) on either her
alleged marital misconduct or on the subject of her earning
capacity. These shortfalls, plaintiff argues, amounted to
reversible error.
Defendant argues, and we agree, that plaintiff wrongly assumes
the trial court awarded a reduced amount of alimony. Upon review
of the record, we discern nothing that supports plaintiff's
argument on that point, nor does the record reflect that the trial
court's consideration of her emotional shut down/out outweighedthe trial court's fifteen other findings of fact regarding alimony.
Even assuming the trial court reduced plaintiff's alimony and the
reduction was made solely based on plaintiff's emotional shut
down/out, defendant contends the reduction is proper, because
plaintiff not only withheld her love and affection, but also
constructively abandoned him by actively, physically, and
emotionally estranging herself from him during the last five years
of their marriage. Defendant points to Ellinwood v. Ellinwood, 88
N.C. App. 119, 362 S.E.2d 584 (1987), which states that a willful
failure to fulfill obligations of the marriage (such as love,
affection, and concern) constitutes constructive abandonment, which
is a form of marital misconduct, and in turn, supports a reduced
alimony award. In the present case, defendant argues plaintiff's
behavior is marital misconduct, which supports a reduced alimony
award.
We note that the trial court's order for alimony and child
support indicates that oral testimony was presented; however, that
testimony was not provided in the record on appeal. Because there
is no transcript of the testimony for this Court to review, the
[trial] court's findings of fact are presumed to be supported by
competent evidence. Fellows v. Fellows, 27 N.C. App. 407, 408,
219 S.E.2d 285, 286 (1975). Based on the record before us, we
cannot say the trial court committed reversible error in this case.
Accordingly, plaintiff's first assignment of error is overruled.
II.
By her second assignment of error, plaintiff contends thetrial court committed reversible error because its alimony award
was not supported by appropriate findings of fact and conclusions
of law.
N.C. Gen. Stat. § 50-16.3A governs actions for alimony;
section (b) dictates that [t]he court shall exercise its
discretion in determining the amount, duration, and manner of
payment of alimony. In reaching an alimony award, the trial court
must consider the sixteen factors set forth in section (b) and
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(b), (c). Furthermore, N.C. Gen. Stat. § 50-16.3A(c) states
that [t]he 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.
Plaintiff introduced her financial affidavit at trial, which
showed monthly needs and expenses of $1,860.00 per month. The
trial court awarded plaintiff $1,100.00 per month in alimony, with
annual reductions, until alimony finally terminated on 1 December
2005. Plaintiff contends the trial court erred because it did not
make findings of fact regarding the amount or duration of the
alimony, except to find that plaintiff's monthly expenses were
reasonable. Plaintiff admits the duration of alimony is a
determination left to the sole discretion of the trial court. She
maintains, however, that there is no starting point from which to
understand the trial court's alimony award. She contends there are
no findings of fact regarding her earning capacity, no conclusionsof law explaining the reduction in alimony, and no alimony amount
stated in the conclusions of law. Lastly, plaintiff points to
Friend-Novorska v. Novorska, 131 N.C. App. 867, 509 S.E.2d 460
(1998) (
Friend-Novorska I) for the proposition that failure to make
these findings of fact constitutes reversible error. We do not
agree.
In
Friend-Novorska I, the plaintiff-wife sought alimony and
presented evidence that she needed over $1,300.00 from her former
husband 'to maintain the standard of living to which she has
become accustomed during the last several years of the
marriage[.]'
Friend-Novorska I, 131 N.C. App. at 868, 509 S.E.2d
at 461. When the trial court awarded her alimony in the sum of
$600.00 per month for 30 months, the plaintiff-wife appealed.
A
panel of our Court vacated and remanded the portions of the trial
court's order regarding alimony and instructed the trial court to
make a new award of alimony and make specific findings justifying
that award, both as to amount and duration.
Id. at 871, 509
S.E.2d at 462. Upon remand, the trial court did not hear
additional evidence regarding the plaintiff-wife's claim for
alimony. The trial court's order contained additional findings of
fact, but awarded the plaintiff-wife the same amount of alimony as
before. The plaintiff-wife again appealed.
Friend-Novorska v.
Novorska, 143 N.C. App. 387, 545 S.E.2d 788,
aff'd, 354 N.C. 564,
556 S.E.2d 294 (2001) (
Friend-Novorska II).
In
Friend-Novorska II, this Court addressed the plaintiff-
wife's argument that the trial court's findings of fact did notsupport the amount and duration of its alimony award.
In affirming
the trial court's order, our Court noted the similarities between
the statutory schemes for alimony and equitable distribution and
stated:
[B]ecause the discretionary powers granted to
the trial court in equitable distribution
actions is [sic] similar to the discretion
granted to the trial court in alimony 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 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 when determining the appropriate
amount, duration, and manner of payment, as
the weight given the factors is within the
sound discretion of the trial court.
Id. at 395-96, 545 S.E.2d at 794 (footnote omitted). Thus, findings
of fact concerning
some of the factors in N.C. Gen. Stat. § 50-
16.3A(b) support the amount, duration, and manner of payment of
alimony. Absent an abuse of discretion, the trial court's decision
will not be disturbed on appeal.
White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985).
In the present case, the trial court made findings of fact on
at least nine of the sixteen factors in N.C. Gen. Stat. § 50-
16.3A(b). The trial court need not cover each and every factor set
forth in the statute. Rather, findings of fact which clearly show
the trial court is considering the appropriate factors will be
deemed sufficient upon our review.
See Friend-Novorska II, 143
N.C. App. 564, 556 S.E.2d 294. Given the fact that plaintiff hadan earning capacity of at least $10.00 per hour, the trial court
could reasonably have determined that an $1,100.00 award of
alimony, coupled with her own income (even if she worked only part-
time) was sufficient to enable plaintiff to meet her reasonable
monthly expenses and maintain her lifestyle. Indeed, the same
result was reached in
Friend-Novorska I and was affirmed in
Friend-
Novorska II. We also believe the duration of the alimony award and
its annual reductions are reasonable. The trial court found that
plaintiff expressed a desire to work in international commerce, but
need[s] time to get into a career position that will pay her a
better wage. The trial court's decision to award alimony on an
annual reduction basis gave plaintiff time to get into a better
paying position. Finally, we note that plaintiff cannot complain
about the findings of fact or the underlying evidence because she
did not provide a transcript of the trial court proceedings.
See
Fellows, 27 N.C. App. 407, 219 S.E.2d 285.
Plaintiff's second
assignment of error is overruled.
After examining the order in its entirety, we believe the
trial court properly considered the factors set forth in N.C. Gen.
Stat. § 50-16.3A(b) and correctly applied the law to the facts
before it. Upon careful review of the proceedings and the
arguments of the parties, we conclude the trial court's order was
supported by the evidence and was reasonable in all respects. The
order of the trial court is hereby
Affirmed.
Judges WALKER and BRYANT concur.
Report per Rule 30(e).
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