Walker v Walker, (03-998) 07/20/2004

Appeal by plaintiff from judgment entered 5 December 2002 by Judge Shelly S. Holt in New Hanover County District Court. Heard in the Court of Appeals 7 June 2004.

Nora Henry Hargrove, for plaintiff-appellant.

Lea, Rhine & Rosbrugh, by Lori W. Rosbrugh, for defendant- appellee.

    MARTIN, Chief Judge.

    Plaintiff appeals from a judgment resolving issues pertaining to alimony, equitable distribution, and attorneys' fees.
    The record establishes that plaintiff and defendant divorced after thirty-five years of marriage. By the time of the divorce, all children born of the marriage were emancipated by age. Defendant stipulated to having committed fault as defined by our statutes during the course of the marriage and was, at all relevant times, the supporting spouse.
    Plaintiff and defendant jointly owned an Allstate insurance agency, which defendant operated. Plaintiff had also been employed during the course of the marriage as a professional nurse and, forsixteen years, had been employed by the Onslow County Board of Education. At the time of the hearing, however, she was unemployed due to having been terminated by her employer.
    The trial court found and concluded that an equal division of marital assets and debts, including the insurance agency, was equitable and distributed the property accordingly. In addition, the trial court determined that plaintiff qualified as a dependent spouse, and was entitled to an award of alimony in the amount of $2,000 per month for a period of nine months and $750 per month thereafter until plaintiff dies, remarries or cohabits with another man. The trial court also ordered that each party bear their own attorneys' fees. Plaintiff appeals from the trial court's judgment.
                ____________________
    Plaintiff presents arguments to support four out of the nineteen assignments of error contained in the record on appeal. The remaining assignments of error are deemed abandoned. N.C. R. App. P. 28(a).
    Plaintiff first assigns error to the amount of alimony awarded by the trial court. “A trial court's decision on the amount of alimony to be awarded is reviewed for an abuse of discretion.” Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 420, 588 S.E.2d 517, 522 (2003). A trial court abuses its discretion when it fails to make sufficient findings of fact to support the amount of an alimony award. Id. Findings of fact are considered sufficient to support an alimony award if (1) they address all the ultimate factsat issue in the case; and (2) they show that the trial court properly applied the law in the case. Id. “The ultimate facts at issue in the case are facts relating to the factors set forth in section 50-16.3A(b) for which evidence is presented at trial.” Friend-Novorska v. Novorska, 143 N.C. App. 387, 395 n.3, 545 S.E.2d 788, 794 n.3, aff'd per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).
    Plaintiff contends the trial court erred when it failed to make findings regarding the plaintiff's accustomed standard of living and her reasonable living expenses. We agree. A party's accustomed standard of living and his or her relative need are both factors set forth in G.S. § 50-16.3A(b), and thus, are considered ultimate facts at issue. See N.C. Gen. Stat. § 50-16.3A(b)(8) & (13) (2003). Plaintiff testified at trial that her accustomed standard of living during the last several years of the marriage cost $15,193 per month, and in order to sustain this standard of living, she was currently in need of $12,609 per month. She also testified regarding her various living expenses subsequent to the separation and her need for additional training in her field in order to obtain employment in a hospital setting.
    The trial court made the following findings to support its award of alimony:
        10. Due to the age of the Plaintiff and the current prospects for her to earn income, she will need additional training in her professional field in order to have any chance at employment providing income at a comparable level.
        11. The reasonable financial needs of the Plaintiff exceed any reasonable income the court may impute to the Plaintiff.

        12. As defined by our statutes, the Plaintiff Wife is and was the DEPENDENT SPOUSE in this marriage and the Defendant Husband is and was the SUPPORTING SPOUSE in this marriage.

        13. The Court has considered the reasonable living expenses of the Plaintiff and the income the Plaintiff will enjoy from the Equitable Distribution of the Marital Property set forth in the decretal portion hereof, including income that will be produced by and from the DISTRIBUTIONAL PAYMENT, THE ALLSTATE SAVINGS AND PROFIT SHARING FUND AND ONE HALF OF THE DEFENDANT'S ALLSTATE PENSION as well as her reasonable earning potential of $1500 per month, and based upon the same the court finds and awards alimony . . . .

These findings fail to include any findings of fact regarding the plaintiff's accustomed standard of living prior to separation or her reasonable living expenses since the separation even though evidence regarding these issues was offered at trial. A mere recital that the trial court considered such living expenses is not sufficient to allow for proper review. Accordingly, the findings in this case are insufficient to support the amount of alimony awarded to plaintiff. See Rhew v. Rhew, 138 N.C. App. 467, 472, 531 S.E.2d 471, 474 (2000)(order denying alimony was not supported by sufficient findings of fact where no findings addressed parties' accustomed standard of living and findings addressing parties' respective living expenses were insufficiently detailed or specific).
    In addition, there are no findings regarding the defendant's relative income and expenses, or the cost, duration, oreffectiveness of the additional training which plaintiff might require in order to resume gainful employment. Without such findings, it is simply impossible for this Court to determine whether the trial court properly applied the law in this case. Therefore, we must vacate the alimony award and remand this case for further findings of fact and a determination of the amount of alimony in accordance with those findings of fact. On remand, the court in its discretion may receive additional evidence or enter a new order on the basis of evidence already received. See Rhew, 138 N.C. App. at 472, 531 S.E.2d at 475.
    Plaintiff next assigns error to the trial court's valuation of the parties' Allstate insurance agency. “In appellate review of a bench equitable distribution trial, the findings of fact regarding value are conclusive if there is evidence to support them, even if there is also evidence supporting a finding otherwise.” Crutchfield v. Crutchfield, 132 N.C. App. 193, 197, 511 S.E.2d 31, 34 (1999).
    Plaintiff first argues the trial court's valuation analysis was flawed because it relied, in part, on a certain “risk factor” that was not supported by the evidence. Defendant's expert testified that when calculating the value of the business, he decreased its ultimate value by a risk factor to account for the possibility that the defendant's franchisee, Allstate, could interfere with an eventual sale of the agency. However, the trial court specifically rejected the calculation of this “risk factor” into the valuation of the business by opting to use the valuationmethod recommended by the plaintiff's expert, which did not include the “risk factor” in its calculation. Thus, plaintiff's argument is without merit.
    Plaintiff next argues the trial court's valuation was flawed because it findings fail to show that the goodwill of the business was considered or included in its valuation. We disagree. In Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985), this Court stated:
        In ordering a distribution of marital property, a court should make specific findings regarding the value of a spouse's professional practice and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuations are based, preferably noting the valuation method or methods on which it relied. On appeal, if it appears that the trial court reasonably approximated the net value of the practice and its goodwill, if any, based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed.

Id. at 422, 331 S.E.2d at 272.
    In this case, the trial court made no specific finding regarding the value and existence of the Allstate insurance agency's goodwill. However, the trial court did make the following finding of fact:
        If data from 2000 is used, which is consistent with how the Defendant was operating on the DATE OF SEPARATION, then a value of $300,000 results using the Plaintiff's Expert's capitalization of excess earnings method. . . . The court, therefore, finds the FAIR MARKET VALUE on the DATE OF SEPARATION to have been $300,000.
    This Court has stated that the capitalization of excess earnings method is a valid approach to valuing the goodwill of a business. Poore, 75 N.C. App. at 421-22, 331 S.E.2d at 271-72. According to the testimony and reports of the expert valuation witnesses for both parties, the capitalization of excess earnings method determines fair market value by calculating a company's excess earnings (also known as goodwill) and adding that value to the total value of the company's tangible assets. In this case, the value of the agency's tangible assets was not available   (See footnote 1) and thus, the fair market value of the agency was based solely on the value of the agency's excess earnings (also known as goodwill). While the trial court could have been more clear that the capitalization of excess earnings method implicitly includes the value of a business' goodwill, it is apparent from the evidence and the findings in this case that the agency's goodwill was considered and included in the trial court's valuation. We, accordingly, overrule plaintiff's assignment of error.
    Finally, plaintiff argues the trial court erred when it failed to order the defendant to reimburse her for expenses incurred during the parties' separation for the purchase of necessities. Specifically, plaintiff argues that she was forced to deplete her North Carolina State Pension account and borrow from friends in order to buy groceries and maintain her home. It is within the trial court's discretion to determine whether a dependant spouse isentitled to a credit for the payment of necessities after the parties' separation but prior to an alimony/equitable distribution award. See Edwards v. Edwards, 110 N.C. App. 1, 11, 428 S.E.2d 834, 839, disc. review denied, 335 N.C. 172, 436 S.E.2d 374 (1993); N.C. Gen. Stat. § 50-20(c)(1)(2003) (“The income, property, and liabilities of each party at the time the division of property is to become effective” may be considered as a distributional factor when making an equitable distribution of marital property). We discern no abuse of discretion in this case.
    Reversed and remanded in part, affirmed in part.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).

Footnote: 1