Appeal by plaintiff from judgment and order entered 21
September 2001 and order entered 31 October 2001 by Judge John
Milton Britt in Nash County District Court. Heard in the Court of
Appeals 17 February 2003.
W. Michael Spivey for plaintiff-appellant.
Roger Eugene Harris, pro se, for defendant-appellee.
MARTIN, Judge.
Plaintiff appeals from a judgment distributing marital
property, an order awarding her alimony in the amount of $1,100 per
month, and an order denying her motion for attorney's fees. For
the reasons which follow, we vacate the judgment and orders and
remand this matter to the district court for further proceedings.
Plaintiff and defendant were married on 14 July 1982 and
separated 30 January 2000. The couple had two sons, both of whom
were minors at all times relevant to this appeal. On 25 February
2000, plaintiff commenced this action for child custody and
support, post-separation support, alimony, and equitable
distribution. Defendant filed an answer and a counterclaim forcustody and equitable distribution. Matters involving child
custody, child support, and post-separation spousal support were
resolved and are not involved in this appeal.
The issues of alimony and equitable distribution were heard in
the district court on 20 and 21 March 2001. On 21 September 2001,
the district court entered its judgment and order awarding an equal
share of the marital property to each party, and awarding plaintiff
alimony in the amount of $1,100 per month until her death or
remarriage. On 31 October 2001, the court entered an order denying
plaintiff's motion for attorney's fees.
_________________________________
By arguments in support of thirty-one of the thirty-five
assignments of error contained in the record on appeal, plaintiff
contends the district court (1) failed to make findings of fact
necessary to its equitable distribution and alimony awards and its
order denying attorney's fees; (2) considered factors which are not
proper in making such awards; (3) found facts which are not
supported by the evidence; (4) made legal conclusions which are not
supported by the factual findings or the evidence; and (5) abused
its discretion. The remaining assignments of error are deemed
abandoned. N.C.R. App. P. 28(b)(6) (2002).
I.
We first address plaintiff's arguments with respect to the
award of alimony. G.S. § 50-16.3A(a) provides, in pertinent part:
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 ofalimony is equitable after considering all
relevant factors, including those set out in
subsection (b) of this section.
N.C. Gen. Stat. § 50-16.3A(a) (2001). Subsection (b) of the
statute states that the “court shall exercise its discretion in
determining the amount, duration, and manner of payment of alimony”
and provides 16 factors the trial court “shall consider” as part of
making its determination. N.C. Gen. Stat. § 50-16.3A(b) (2001).
Subsection (c) of the statute requires the court to “set forth the
reasons for its award or denial of alimony and, if making an award,
the reasons for its amount” and, except in situations where “the
Rules of Civil Procedure do not require special findings of fact,
the court shall make a specific finding of fact on each of the
factors in subsection (b) . . . if evidence is offered on that
factor.” N.C. Gen. Stat. § 50-16.3A(c) (2001). Moreover, in
carrying out its duty under subsection (c):
The trial court must make findings of fact
that are sufficiently detailed to allow
review. “The trial court must at least make
findings sufficiently specific to indicate
that the trial judge properly considered each
of the factors . . . for a determination of an
alimony award.” “'In the absence of such
findings, appellate courts cannot
appropriately determine whether the order of
the trial court is adequately supported by
competent evidence, and therefore such an
order must be vacated and the case remanded
for necessary findings.'”
Vadala v. Vadala, 145 N.C. App. 478, 479, 550 S.E.2d 536, 537-38
(2001) (citations omitted). Where the trial court considers the
necessary factors and makes sufficient findings supported by
competent evidence, its decision as to an alimony award will not bedisturbed on appeal absent an abuse of discretion.
Alvarez v.
Alvarez, 134 N.C. App. 321, 517 S.E.2d 420 (1999).
Plaintiff first argues the district court made no findings
with respect to the critical matter of the parties' respective
living expenses. Two of the most important factors for
consideration in determining the amount of an alimony award are the
relative income and expenses of the parties.
Bryant v. Bryant, 139
N.C. App. 615, 534 S.E.2d 230,
disc. review denied, 353 N.C. 261,
546 S.E.2d 91 (2000); N.C. Gen. Stat. § 50-16.3A(b) (2002). With
respect to income, the district court found that defendant “earns
. . . approximately $130,000.00 as an executive in the tobacco
industry and his earning capacity for the future is exceptional”
and that plaintiff “has modest earnings and earning capabilities at
this time, [and] has been out of the work force for eighteen (18)
years.” However, the court made no specific findings as to the
parties' current expenses. Both parties presented evidence of
their expenses, with defendant claiming expenses of $3,600 a month
with little documentation and plaintiff claiming expenses of
approximately $4,000 a month after the sale of the marital home
with substantial documentation. The district court found only that
“[t]he relative needs of the parties are equal,” which plaintiff
alternatively asserts is not supported by the evidence. While the
trial court “is not required to accept at face value the assertion
of living expenses offered by the litigants themselves,” sufficient
findings must be made to show consideration of this important
factor and to allow this Court to understand the reasoning behindthe alimony amount awarded.
Bryant, 139 N.C. App. at 618, 534
S.E.2d at 232. Appellate review of a conclusory finding such as
that made in the present case is not possible without findings as
to the respective needs of the parties.
Indeed, the district court's failure to make findings as to
the parties' financial needs prevents this Court from evaluating
other findings made in support of the alimony award. On the issue
of earning capacities, plaintiff contends there was no evidence to
support the district court's finding that she was “capable of
earning substantial sums.” There was evidence that plaintiff was
48 years old at trial, had been an unemployed homemaker since the
second year of the 18-year marriage, and held a Bachelor's degree
from the University of North Carolina at Chapel Hill. There was
also testimony by plaintiff that she suffered from depression and
fibromyalgia, a chronic pain and fatigue condition. There was also
evidence that since the separation of the parties, plaintiff had
earned a total of $500 as a substitute teacher at minimum wage
rates, and had found herself exhausted and debilitated after a day
of this work due to her poor health. The district court made
findings acknowledging plaintiff's age, time out of the work force,
her custody of two teenagers, and that she “has been treated in the
past for depression and presented evidence that she suffers from
fibromyalgia.” While none of this evidence or these findings
necessarily contradicts the finding that plaintiff is
“intellectually and physically capable of earning
substantial
sums,” we are unable to determine what the district court meant by“substantial” or how this finding affected the court's alimony
award in the absence of specific findings as to the parties'
financial needs.
Plaintiff also assigns error to the district court's
consideration of the financial gifts the couple had received and
plaintiff may receive in the future from her parents and the
property and income received by plaintiff in equitable
distribution. A consideration of assets received by a dependent
spouse through equitable distribution is not improper in
determining an alimony award amount as long as it does not result
in an inequitable subsidization of the supporting spouse's alimony
obligation.
See Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849
(1980);
Lamb v. Lamb, 103 N.C. App. 541, 406 S.E.2d 622 (1991);
N.C. Gen. Stat. § 50-16.3A(a), (b)(10) (2001). In addition,
financial gifts or assistance from the dependent spouse's parents
are not barred from consideration in an alimony determination.
Fink v. Fink, 120 N.C. App. 412, 462 S.E.2d 844 (1995),
disc.
review denied, 342 N.C. 654, 467 S.E.2d 710 (1996)
. However, the
evidence in this case does not indicate that plaintiff's parents
made regular gifts of money directly to her or were under contract
or promise to provide such support. In fact, plaintiff testified
at trial that she owed her parents at least $12,000 due to their
assistance since her separation. Without some finding of the
amount above $1,100 plaintiff requires monthly, it is impossible to
determine how much the trial court expected plaintiff to contribute
to her support by virtue of asset income or principal, orassistance from her parents, and thus to evaluate the substance or
effect of these findings on the ultimate award.
Plaintiff also asserts the district court failed to make
adequate findings as to the parties' established pattern of saving
and marital standard of living as required under G.S. § 50-
16.3A(b)(8). According to
Bryant, the marital standard of living
is to be considered as one factor in determining the parties'
expenses and the trial court “may also consider established
patterns of contributing to savings as part of the parties'
standard of living.”
Id. at 618, 534 S.E.2d at 232 (emphasis
omitted). In the present case, the district court made no findings
as to the marital pattern of savings even though evidence was
presented tending to show that the couple had been saving
aggressively since 1995 with the goal of Mr. Harris retiring at age
55. The district court found generally that “the parties had
established an above average standard of living,” but made no
findings with respect to marital spending patterns despite the
detailed evidence presented by the parties. Because these factors
are related to a determination of the parties' expenses, findings
related thereto were required in this case.
In addition to arguments related to the parties' financial
needs, plaintiff asserts the district court improperly considered
the ages of the children in her custody and the amount of child
support she receives from defendant in determining the amount of
the alimony award. Because plaintiff did not assign error to the
finding regarding the relation of the ages of the children in hercustody to her earning capacity, we decline to review it on appeal.
N.C.R. App. P. 10(a) (2002). The district court may consider a
noncustodial supporting spouse's child support contribution in
determining an alimony award amount, provided it does not result in
a
de facto increase of the dependent spouse's proportional child
support contribution.
See Fink v. Fink,
supra; N.C. Gen. Stat. §
50-16.3A (b)(10) (2001). Therefore, the district court did not err
in its consideration of this factor.
Plaintiff next contends the trial court failed to make
adequate findings as to the tax consequences of the alimony award
as required under G.S. § 50-16.3A(b)(14). Plaintiff presented
several charts detailing alimony and after-tax cash flow for both
parties based on projected monthly alimony amounts from $2,000 to
$3,500 and testimony by the accountant who prepared the analyses.
The trial court found only that “[t]he federal, state, and local
tax ramifications of this alimony award are factors in the Court's
award of alimony.” This finding does not indicate what the trial
court considered the tax ramifications of its award to be, and is
insufficient to permit review of how such tax consequences may have
affected its award.
Plaintiff also argues the district court failed to make
findings on the issue of marital misconduct as required under G.S.
§ 50-16.3A(b)(1). Marital misconduct is defined,
in pertinent
part, as “[i]ndignities rendering the condition of the other spouse
intolerable and life burdensome” and “[e]xcessive use of alcohol
or drugs so as to render the condition of the other spouseintolerable and life burdensome.” N.C. Gen. Stat. § 50-16.1A(3)f.,
h. (2001). Plaintiff presented evidence that defendant often drank
to excess, had two DWI convictions in the 1980s, and had kissed and
hugged another woman at a party at which plaintiff was not present.
The district court found “[t]here was no evidence of marital
misconduct of either party that would affect the Court's award of
alimony.” We hold the finding is sufficient, as it implies
consideration of the evidence presented and a finding that it was
not significant enough to affect the award of alimony. Plaintiff
does not argue that this finding was unsupported by the evidence,
thus we decline to review the finding in substance.
Lastly, plaintiff argues that because the district court erred
by failing to set forth in its judgment its reasons for the amount
of the alimony award, the alimony award resulted from an abuse of
discretion. Due primarily to the absence of a finding as to the
parties' expenses, the district court's order does not contain
sufficient explanation of the reasoning behind the amount awarded
to support the decision or to allow appellate review, and thus
violates G.S. § 50-16.3A. Given the findings that defendant earns
approximately $130,000 per year and plaintiff did not work outside
the home during the 18-year marriage, an alimony award providing a
total of $13,200 per year is striking and underscores the necessity
for more specific findings.
II.
With respect to the trial court's equitable distribution
determination, plaintiff asserts the trial court abused itsdiscretion in ruling that an equal division of the marital property
was equitable.
Equitable distribution is vested in the
discretion of the trial court and will not be
disturbed absent a clear abuse of that
discretion. Only a finding that the judgment
was unsupported by reason and could not have
been a result of competent inquiry, or a
finding that the trial judge failed to comply
with the [equitable distribution] statute . .
. will establish an abuse of discretion.
Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451
(1992) (citations omitted).
Plaintiff argues first that the district court erred by
considering defendant's child support payments in determining how
to divide the couple's marital assets. She cites Findings 5 and 7
of the equitable distribution judgment. In Finding 5, the court
recited the amount which defendant was obligated to pay plaintiff
as child support; in Finding 7, in which it found that an equal
distribution of the marital property was equitable, the court
based such finding, in some part, upon its previous findings which
included,
inter alia, the defendant's child support obligation, and
upon its consideration of “the obligations for support arising out
of this marriage.” G.S. § 50-20(c)(2) provides that the court must
consider “any obligation for support arising out of a
prior
marriage.” (Emphasis supplied). G.S. § 50-20(f) specifically
provides “[t]he court shall provide for an equitable distribution
without regard to alimony for either party or support of the
children of both parties.” Any reliance on the finding regarding
defendant's child support payments in determining what distributionof the parties' assets is equitable is error.
Plaintiff further argues the district court erred by failing
to make findings on any of the statutory distributional factors in
determining equitable distribution and concluding as a matter of
law that it had done so. G.S. § 50-20(c) provides 12 factors the
court “shall consider” as part of determining how to distribute
marital property. N.C. Gen. Stat. § 50-20(c)(1)-(12) (2001).
Written findings are required on those factors for which evidence
has been presented and a general finding indicating that the
factors of G.S. § 50-20(c) were considered in determining the
distribution is insufficient because it does not allow this Court
to determine whether the trial court gave adequate consideration to
the evidence presented and correctly applied the law.
Daetwyler v.
Daetwyler, 130 N.C. App. 246, 502 S.E.2d 662 (1998),
affirmed per
curiam, 350 N.C. 375, 514 S.E.2d 89 (1999). In this case, the
district court made just such a general finding, reciting the
factors listed in G.S. § 50-20(c), including ones as to which no
evidence was presented, but making no specific findings from the
evidence with respect to any of the statutory factors. Therefore,
the district court's findings are insufficient to support its
conclusion that an equal distribution is equitable and the
equitable distribution issue must be remanded for the requisite
findings.
Next, regarding the actual division of the marital property,
plaintiff contends the trial court made certain findings of fact
which are unsupported by the evidence. The record and evidenceindicate that after the date of separation defendant sold 1000
shares of marital stock for a total of $71,715.45. Despite
entering into a subsequent consent order whereby neither party
would transfer or dispose of financial assets or incur additional
debt on marital accounts, defendant placed the funds in an asset
account, along with the balance of an insurance reimbursement for
a damaged motorcycle, and proceeded to pay certain marital debts as
well as joint and separate bills for the month of March 2000. The
trial court's sole findings with respect to the use of the funds
are as follows:
7. ... C. The Harley Davidson is valued at
$7,500.00, is classified as marital property
and has been equally divided as follows.
$7,500.00 was paid by Defendant to the
Plaintiff out of the asset account, the
insurance reimbursement in the amount of
$8,714.00 was deposited into the asset
account, $7,500.00 of which went to the
Defendant, the balance was used to pay marital
debt.
D. The American Express Brokerage Account
#000 1384 3065 7 021 is valued at $16,142.00,
is classified as marital property and is
awarded to the Defendant. The Court is
satisfied that the date of separation value
less the above referenced amount of
#[sic]71,715.45 was placed into the First
Citizens Bank asset account and was used to
pay marital debt and was therefore equitably
distributed.
Although evidence in the record, including confusing testimony by
defendant referring to certain records and cancelled checks not
contained in the record on appeal, explains the disposal of most of
the approximately $72,000, it does not support the district court's
finding that all of it “was used to pay marital debt and wastherefore equitably distributed.”
“A marital debt . . . is one incurred during
the marriage and before the date of separation
by either spouse or both spouses for the joint
benefit of the parties.” “'The party who
claims that any debt is marital bears the
burden of proof on that issue.'” The party so
claiming must prove “the value of the debt on
the date of separation and that it was
'incurred during the marriage for the joint
benefit of the husband and wife.'”
Becker v. Becker, 127 N.C. App. 409, 414-15, 489 S.E.2d 909, 913
(1997) (citations omitted). On remand, the district court must
make specific findings with respect to defendant's use of the
marital funds in question, detailing whether the various
expenditures were for marital debt or separate post-separation
support obligations or debts.
III.
Lastly, plaintiff asserts the district court erred in denying
her request for attorney's fees. In her complaint, plaintiff
prayed for attorney's fees on the issues of child custody and
support, post-separation support, and alimony.
“The purpose of the allowance of counsel fees
is to enable the dependent spouse, as
litigant, to meet the supporting spouse, as
litigant, on substantially even terms by
making it possible for the dependent spouse to
employ adequate counsel.” Accordingly, before
an award of attorneys' fees in either a child
support or alimony case is permissible, there
must be a threshold finding that the dependent
spouse has insufficient means to defray her
litigation expenses. In making this
determination, the trial court should focus on
both the disposable income of the dependent
spouse and on her separate estate.
Bookholt v. Bookholt, 136 N.C. App. 247, 252, 523 S.E.2d 729, 732(1999) (citations omitted); N.C. Gen. Stat. § 50-13.6 (2001)
(counsel fees for child custody and support); N.C. Gen. Stat. §§
50-16.4 (2001) (counsel fees for post-separation support and
alimony). In the present case, the district court found that
“plaintiff, for the reasons set forth herein, clearly has
sufficient means whereupon to subsist during the prosecution of the
suit (which has already concluded) and to defray the necessary
expenses thereof (which she clearly has the present ability to
do).” Although the court set forth the income and assets plaintiff
would receive as a result of alimony and equitable distribution, as
well as other potential sources of income, such as employment and
trust income, the absence of any finding as to plaintiff's actual
and/or reasonable expenses and financial needs again makes it
impossible for this Court to review the court's ultimate finding
that plaintiff has sufficient means to defray the costs of
litigation in this case. Thus, the findings are insufficient to
support the district court's legal conclusion that “[t]he use of
the plaintiff's separate estate
would not amount to an unreasonable
depletion of that estate.”
Bookholt,
supra. The order denying
plaintiff's motion for attorney's fees must be vacated and the
issue remanded to the district court for further findings as
required by law.
Vacated and remanded.
Chief Judge EAGLES and Judge GEER concur.
Report per Rule 30(e).
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