An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1758

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

SHARON C. SCHMELTZLE,
    Plaintiff,

v .                         Wilson County
                            No. 98 CVD 1437

BARRY L. SCHMELTZLE    
    Defendant.

    Appeal by plaintiff from order entered 7 August 2002 by Judge John L. Whitley, District Court, Wilson County. Heard in the Court of Appeals 12 November 2003.

    The Sandlin Law Firm, P.A., by Deborah Sandlin for plaintiff.

    Sallenger & Brown, L.L.P., by Thomas R. Sallenger for defendant.

    WYNN, Judge.

    In this second appeal arising from the trial court's order denying Plaintiff's request for permanent alimony, Plaintiff argues the trial court erroneously concluded she caused Defendant to suffer indignities rendering his condition intolerable and his life burdensome. After careful review, we affirm the order below.
    Plaintiff and Defendant were married for over twenty years and raised two children. Plaintiff had a high school diploma, no advanced degrees, stayed at home, and was unemployed for most of the marriage. Prior to separating, Plaintiff began therapy for depression, anxiety, excessive compulsive disorder and bipolardisorder. Defendant had associate's and bachelor's degrees.
    The parties separated on 9 August 1997 and divorced on 18 November 1999. Defendant had sole custody of the two minor children and paid for all of their support. During the separation, Defendant paid Plaintiff $800 per month pursuant to a voluntary temporary order and paid all of the marital debt.
    In Plaintiff's complaint, she sought divorce from bed and board, child custody, child support, alimony and attorneys fees. Defendant answered and counterclaimed for absolute divorce and alleged Plaintiff's alimony claim should be denied based upon indignities. The trial court denied Plaintiff's claim for permanent alimony concluding that an award of alimony would not be equitable pursuant to N.C. Gen. Stat. § 50-16.3A because Plaintiff had engaged in marital misconduct without just cause or excuse and caused Defendant to suffer indignities. On appeal, this Court vacated the trial court's order holding the trial court's findings of fact were mere recitations of the testimony and did not constitute ultimate facts. Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 555 S.E.2d 326 (2001). On remand, the trial court again denied alimony. Plaintiff appeals.
    ______________________________________________________
    On appeal, Plaintiff contends the trial court erroneously concluded she caused Defendant to suffer indignities rendering his condition intolerable and his life burdensome and therefore was not entitled to permanent alimony. In determining whether a party's conduct constitutes indignities, “a trial court's findings of factare conclusive on appeal where there is some evidence to support those findings.” Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781, 783 (1984); see also Fitzgerald v. Fitzgerald, ____ N.C.App. ____, 588 S.E.2d 517 (2003); Ellinwood v. Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162 (1989).
    Under N.C. Gen. Stat. § 50-16.3A(a), “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 of alimony is equitable after considering all relevant factors.” One of the relevant factors the court may consider is “the marital misconduct of either of the spouses.” N.C. Gen. Stat. § 50-16.3A(b). As indicated in N.C. Gen. Stat. § 50-16.1A(3) marital misconduct includes “indignities rendering the condition of the other spouse intolerable and life burdensome.”
“There is no hard and fast rule as to what constitutes indignities. Rather, the courts make this determination based on the facts and circumstances of each case.” Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 129-30, 555 S.E.2d 326, 328 (2001). “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).
    In this case, the trial court found:
        a. The acts of the Plaintiff wherein she became obsessed with the education of theminor children, antagonized school officials, had been directed to stay away from at least one school campus, had been directed not to go on her own through the halls and classrooms of the children on her own as she had done in the past at one school, had been heard yelling by the Defendant, his daughters and staff members while the Plaintiff was in a meeting with the principal at one school, had completely withdrawn from the family and chose not to eat meals with the family, had begun to eat alone by the TV, had constantly made purchases from the QVC channel, had slept alone downstairs on the sofa, had continually yelled at the Defendant, used threats to get her way, had picked fights with the Defendant in the presence of the children, had become moody and explosive requiring the entire family including the Defendant to walk on eggshells, was the direct cause of the separation of the parties.

        b. The acts of the Plaintiff as set forth in subparagraph “a” above, did constitute marital misconduct on the part of the Plaintiff and did cause the Defendant great embarrassment, great humiliation and caused him to suffer from unprovoked harassment by the Plaintiff, The persistent and repeated conduct on the part of the Plaintiff for several years prior to the separation of the parties caused the Defendant to suffer from mental cruelty inflicted upon the Defendant by the Plaintiff and did constitute indignities rendering his condition intolerable and his life burdensome. An award of alimony would be equitable in light of all of the evidence.   (See footnote 1) 

The trial court also incorporated by reference the findings of fact from its 8 May 2000 order. The relevant portions of the 8 May 2000 order state:        21. The Plaintiff has been seen once per week since July/August 1997 by her therapist for depression, anxiety, excessive compulsive disorder and bipolar disorder.

        26. The Plaintiff has been obsessed with the education of the children to the point of antagonizing school officials causing the Defendant great embarrassment and humiliation.

        33. That the Defendant had been a faithful and devoted Husband at all times during the marriage and did no act or thing to provoke the Plaintiff.

        34. That the Defendant had attempted to find ways and means to induce the Plaintiff to change her attitude towards him and the marriage and his efforts in this regard were futile.

        35. The Plaintiff is a dependent spouse within the meaning of N.C.G.S. 50-16.1A and the Defendant is a supporting spouse within the meaning of N.C.G.S. 50-16.1A.

        38. This Court, after reviewing all evidence presented by the parties, and having an opportunity to view the parties, determines it would not be equitable to enter an order requiring the Defendant to pay alimony to the Plaintiff.

On appeal, Plaintiff contends that the evidence presented does not show she acted willfully, maliciously or consciously with an intent to annoy Defendant as the conduct described is symptomatic of her mental illnesses. In her brief to this Court, Plaintiff cites several mental health publications indicating her behavior was symptomatic of her mental illnesses. However, this information was not presented to the trial court. Plaintiff also contends her alleged conduct did not arise to the level of indignities.
    As stated, “there is no hard and fast rule as to what constitutes indignities. Rather, the courts make thisdetermination based on the facts and circumstances of each case.” Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 129-30, 555 S.E.2d 326, 328 (2001). In this case, the trial court found Plaintiff's behavior had caused Defendant great embarrassment and humiliation and had caused her family to “walk on eggshells.” The trial court also determined Plaintiff had withdrawn from her family, continually yelled and was explosive. These findings were supported by Defendant's testimony. Accordingly, we conclude these findings were supported by sufficient evidence.
    Finally, Plaintiff contends the trial court's finding that Plaintiff's behavior had been “persistent and repeated for several years prior to the separation of the parties” was not supported by the evidence. In this case, the trial testimony was not recorded and the parties were required to reconstruct the evidence after the trial. Defendant's narrative of the trial testimony indicates Plaintiff “repeatedly interfered with the children's schooling” and she “continually yelled.” This testimony was reflected in the trial court's findings in its 8 May 2000 order, which was incorporated by reference in the 7 August 2002 order. Moreover, in the absence of a trial transcript, we find the trial court's opportunity to view the parties and hear the evidence compelling. Accordingly, we affirm the order below.
    Affirmed.
    Judges TIMMONS-GOODSON and ELMORE.
    Report per Rule 30(e).


Footnote: 1
        Although the trial court states an award of alimony would be equitable, this seems to be a typographical error as the order read as a whole indicates the trial court was denying Plaintiff's request for alimony. Furthermore, the trial court “ordered that the Plaintiff's claim for alimony is hereby denied and that the Plaintiff shall not recover any alimony from the Defendant.”

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