LINDA RUTH GREENLEAF,
Plaintiff
v
.
Buncombe County
No. 01 CVD 6058
LEE ELSWORTH GREENLEAF,
Defendant
Roger T. Smith for plaintiff-appellee.
Robert E. Riddle, P.A., by Robert E. Riddle and Andrea F.
Dray, for defendant-appellant.
STEELMAN, Judge.
Lee Greenleaf (defendant) appeals from the trial court's order
awarding Linda Greenleaf (plaintiff) alimony. Defendant and
plaintiff were married on 2 October 1981 and separated on 7 July
2001. Plaintiff filed a complaint seeking post-separation support,
alimony, divorce from bed and board, and equitable distribution on
27 November 2001. On 21 March 2003, Judge Earl J. Fowler issued an
Order for Post Separation Support. On 6 February 2003, Judge Peter
L. Roda entered an Equitable Distribution Judgment, granting each
party an equal share in the marital estate.
A hearing on the issue of alimony was held on 17 February
2003. On 25 February 2003, Judge Roda entered an order awardingplaintiff permanent alimony. In its order, the trial court made the
following five findings of fact:
1. That the Defendant, Lee Greenleaf was
employed as a service manager and earned over
$7,500.00 per month in 2002. He is now
employed as a service manager in a different
location earning approximately the same amount
of income.
2. That the Plaintiff, Linda Greenleaf,
was not employed at the time of the hearing
but had the ability to earn $1500.00 per month
which the Court will attribute to her in
determining alimony.
3. That Defendant filed an affidavit
showing $5243.00 in monthly expenses. That
$2000.00 of his expenses are for maintenance
of a residence in Charlotte, North Carolina,
which is being sold. That over $900.00
additional expenses are for payments on credit
card debts and store debts.
4. That Plaintiff filed an affidavit
showing $4833.23 in monthly expenses. That
$675.00 of this expense is for a condominium
in Tucson, Arizona, which could be rented to
cover expenses. That an additional $1050.00
was to cover credit card debts and a debt to
her parents.
5. That Roger Smith, Counsel for
Plaintiff, has rendered valuable services to
the Plaintiff, which are reasonably worth
$2162.50.
These were the only findings made by the trial court. Based upon
these findings, the trial court made a single conclusion of law:
“That the Plaintiff shall recover permanent alimony from the
Defendant.” The court then entered its order awarding plaintiff
permanent alimony in the amount of $2,200.00 per month until she
reaches sixty-two years of age, at which time the amount is reducedto $1,300.00 per month until defendant reaches age sixty-two, when
the payment is reduced to $400.00 per month.
In his first, second and eighth assignments of error,
defendant contends that the trial court erred in failing to
designate whether plaintiff was a dependent spouse and whether
defendant was a supporting spouse. We agree.
Only a dependent spouse is entitled to alimony in North
Carolina. N.C. Gen. Stat. § 50-16.3A (2003). A dependent spouse
is a spouse who is “actually substantially dependent upon the other
spouse for his or her maintenance and support or is substantially
in need of maintenance and support from the other spouse.” N.C.
Gen. Stat. § 50-16.1A(2) (2003). A supporting spouse is a spouse
“upon whom the other spouse is actually substantially dependent or
from whom such other spouse is substantially in need of maintenance
and support.” N.C. Gen. Stat. § 50-16.1A(5). “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 . . . .” N.C. Gen. Stat. § 50-16.3A(a). A
spouse is “actually substantially dependent” if he or she is
currently “without means of providing for his or her accustomed
standard of living.” Williams v. Williams, 299 N.C. 174, 180, 261
S.E.2d 849, 855 (1980). The “accustomed standard of living” is
determined by the “last several years prior to separation.” Id. A
spouse is “substantially in need” when he or she will be unable to
“maintain his or her accustomed standard of living (establishedprior to separation) without financial contribution from the
other.” Id. at 181-182.
In deciding the question of dependency, the trial court should
consider the factors relevant to the amount and duration of
alimony, including the accustomed standard of living prior to
separation, the income and expenses of each spouse, and the value
of each spouse's estate. Id. at 183; see also 2 Suzanne Reynolds,
Lee's North Carolina Family Law §§ 9.8-9.9 (5th ed. 1999) (applying
Williams to determination of dependency under the current alimony
statute). The trial court's findings of fact must be sufficiently
detailed to satisfy a reviewing court that it has considered “all
relevant factors.” Rhew v. Rhew, 138 N.C. App. 467, 472, 531
S.E.2d 471, 474 (2001).
In the case at bar, the trial court's findings of fact are not
sufficiently specific to suggest it considered “all relevant
factors” in making its determination. See id.; N.C. Gen. Stat. §
50-16.3A. Although there are findings regarding the relative
income and expenses of the parties, there are no findings with
respect the parties' accustomed standard of living prior to
separation, the contribution of each party to the marriage's
financial status, or the value of the parties' relative estates.
Accordingly, the trial court's findings cannot support a conclusion
that plaintiff is the dependent spouse or that defendant is the
supporting spouse, and the trial court's order awarding alimony to
plaintiff must be reversed and remanded for more detailed findingsof fact. See Hunt v. Hunt, 112 N.C. App. 722, 727, 436 S.E.2d 856,
860 (1993).
In defendant's fifth assignment of error, he argues the trial
court erred by failing to include in its findings of fact the
various statutory factors to support an award of alimony under N.C.
Gen. Stat. § 50-16.3A(b). In his ninth assignment of error,
defendant specifically challenges the trial court's failure to make
a finding regarding marital misconduct under N.C. Gen. Stat. § 50-
16.3(b)(1). We agree.
The alimony statute requires the trial court to consider “all
relevant factors” in determining the amount and duration of
alimony, including sixteen factors specified in the statute. N.C.
Gen. Stat. § 50-16.3A(b) (2003). If evidence is offered on a
specific factor set forth in subsection (b), subsection (c)
requires the court to make specific findings of fact as to that
factor. Id. § 50-16.3A(c).
A review of the record indicates that evidence was offered on
the following factors set forth in N.C. Gen. Stat. § 50-16.3A(b):
marital misconduct of either spouse; the relative earnings and
earning capacities of the spouses; the ages and the physical,
mental and emotional conditions of the spouses; the amount and
sources of income of both spouses; the duration of the marriage;
the standard of living of the spouses established during the
marriage; the relative education of the spouses; the relative
assets and liabilities of the spouses; the contribution of
plaintiff as a homemaker; and the relative needs of the spouses. On remand the trial court must make specific findings of facts on
these factors, as required by N.C. Gen. Stat. § 50-16.3A(c).
In his remaining assignments of error, defendant challenges
specific findings made by the trial court. “Where trial is by
judge and not by jury, the trial court's findings of fact have the
force and effect of a verdict by a jury and are conclusive on
appeal if there is evidence to support them, even though the
evidence might sustain findings to the contrary.” In re Estate of
Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991).
In his third assignment of error, defendant argues that the
trial court erred in finding that he was earning approximately the
same monthly income that he earned in 2002. We agree.
The uncontroverted evidence indicated that defendant worked as
an automotive service manager during 2002. Defendant attached two
W-2 Wage and Tax Statements for 2002 to his alimony affidavit. The
first W-2 indicates that he earned $94,887.76 at Imports Automotive
Company. The second W-2 shows earnings of $1,500.00 from Steve
White Motors. Thus, the combined amount defendant earned during
2002 was $96,387.76, which amounts to approximately $8,032.31 gross
monthly income.
The evidence also indicated that defendant is currently
working as a service manager for a new employer, earning $750.00
per week plus a monthly commission based on the net profit of his
department. Defendant earned $14,660.00 in salary and commission
from 5 December 2002 until 14 February 2003, a period of ten weeks.
Thus, his earnings were about $1,466.00 per week ($14,660.00divided by ten weeks), or $6,303.80 per month. This sum is not
“approximately the same amount of income” as defendant was earning
in 2002. In fact, the evidence indicates that defendant is earning
$1,728.51 less per month than he earned during 2002. Therefore, we
conclude the evidence does not support the court's findings
regarding defendant's income, and we remand this matter for
findings of fact based on defendant's actual current earnings.
In his seventh assignment of error, defendant argues the trial
court erred by including monthly payments on a life insurance
policy insuring the lives of plaintiff's son and granddaughter in
plaintiff's individual expenses. We note that the trial court has
much discretion in determining which expenses are relevant to
calculating alimony. See Reynolds, supra § 9.7, at 293-94.
However, as noted above, the trial court failed to make sufficient
findings regarding the various relevant factors, including the
parties' standard of living during the marriage and their relative
needs. On remand, therefore, the trial court should make specific
findings of fact explaining whether or not it considered the
monthly life insurance payments relevant to its award of alimony.
In his fourth assignment of error, defendant argues the trial
court erred in failing to make a finding of fact as to whether or
not plaintiff was able to obtain employment. We disagree.
The trial court's second finding of fact clearly acknowledges
that although plaintiff was not working, she “had the ability to
earn $1500.00 per month which the Court will attribute to her in
determining alimony.” The trial court's finding is sufficient tosatisfy the requirements of N.C. Gen. Stat. § 50-16.3A(b)(2) and
Williams with regard to plaintiff's earning capacity at the time of
the alimony hearing. This assignment of error is without merit.
In his sixth assignment of error, defendant argues the trial
court erred in failing to make a finding that plaintiff could
derive income from the rental of her condominium unit in Arizona.
We disagree.
The trial court made a finding of fact that “$675.00 of
[plaintiff's] expense is for a condominium unit in Tucson, Arizona,
which could be rented to cover expenses.” Thus, the trial court's
order indicates that it considered the evidence regarding the
condominium unit's potential to produce income for plaintiff. This
assignment of error is without merit.
In his tenth assignment of error, defendant argues the trial
court abused its discretion with regards to the amount and duration
of alimony. As discussed above, the award of alimony must be
reversed and the order remanded for the trial court for more
specific findings of fact, including a more accurate finding as to
defendant's current income. Thus, we do not reach this assignment
of error.
Accordingly, the case is remanded to the trial court for
further proceedings consistent with this opinion.
REVERSED and REMANDED .
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).
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