An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-698
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Filed: 15 April 2003


v .                             Nash County
                                No. 00 CVD 369

    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).

    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.

    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.

    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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