Greene v Greene, 168 NC App 239 (04-510) 01/18/2005

Appeal by plaintiff from an order entered 28 October 2003 by Judge Jacquelyn Lee in Johnston County District Court. Heard in the Court of Appeals 27 December 2004.

Marshall & Taylor, P.C., by Travis R. Taylor, for plaintiff- appellant.

Hinton, Hewett & Wood, P.A., by Alan B. Hewett, for defendant- appellee.

HUNTER, Judge.

    The parties were married on 5 August 1979 and separated on 29 June 2001. Joye B. Greene (“plaintiff”) filed a complaint on 16 July 2001 seeking equitable distribution, postseparation support, alimony, divorce from bed and board, and attorney's fees. In a memorandum of order entered on 28 August 2001, Douglas E. Greene (“defendant”) agreed to pay postseparation support to plaintiff in the amount of $825.00 per month. On 6 November 2001, defendant sought to stay all proceedings and to stay enforcement of the memorandum of order. The trial court denied defendant's motion on7 December 2001 and ordered defendant to pay $300.00 in attorney's fees.
    Defendant filed a financial affidavit on 5 February 2003. The trial court heard plaintiff's claims for alimony and attorney's fees on 5 February and 8 September 2003. In its order entered on 28 October 2003, the trial court made the following findings of fact:
            1.    The parties are citizens and residents of Johnston County, North Carolina;

            2.    The parties were married on August 5, 1979 and thereafter separated on June 29, 2001;

            3.    On August 28, 2001 a Memorandum of Order was entered in this case whereby Defendant agreed to pay post separation support to Plaintiff in the amount of $825.00 per month pending further orders of this court;

            4.    Plaintiff is gainfully employed by the City of Raleigh and her current gross income is approximately $36,000 per year;

            5.    The Defendant is gainfully employed by the State Bureau of Investigation as an agent and as an instructor. The Defendant is also a Master Sergeant in the Air National Guard. The Defendant's current gross income is approximately $60,000 per year[.]

On the basis of these findings of fact, the trial court made its conclusions of law:

            1.    This Court has jurisdiction over the parties and subject of this action;

            2.    The Plaintiff is entitled to receive alimony payments from the Defendant in the amount of $625.00 per month for a period of 11 years beginning in February of 2003, and said payments shall not be modified unless allowed by law;
            3.    The Plaintiff has incurred reasonable attorney's fees in pursuing this claim for alimony;

            4.    The Plaintiff is entitled to recover reasonable attorney's fees incurred in the furtherance of her claim for alimony in the amount set forth below.

The trial court ordered that defendant was no longer required to pay postseparation support and that plaintiff would recover $1,200.00 in attorney's fees from defendant. From the trial court's order, plaintiff appeals.
    Plaintiff first contends the trial court failed to make sufficient findings of fact for appellate review of whether the alimony awarded was appropriate. She argues the trial court's five findings of fact are not sufficiently specific to indicate that the trial court considered all the statutory factors. Plaintiff further argues in her related third argument that the trial court abused its discretion in determining the amount of alimony awarded.
    As an initial matter, the trial court must “set forth the reasons for its award[,]” and it shall then “make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.” N.C. Gen. Stat. § 50-16.3A(c) (2003). “The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors established by G.S. 50-16.5(a) for a determination of an alimony award.” Skamarak v. Skamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 561 (1986).
    While defendant asserts the trial court received ample evidence and testimony to support entry of its order, “[t]herequirement for detailed findings is . . . not a mere formality or an empty ritual; it must be done.” Id. at 128, 343 S.E.2d at 562. The trial court failed to make any findings as to several of the factors for which evidence was offered. We conclude the trial court's limited findings of fact are insufficient to support its conclusion of law that plaintiff is entitled to an award of alimony. Since this case must be remanded for further findings of fact on the issue of alimony entitlement, we do not reach plaintiff's third argument as to whether the trial court abused its discretion in determining the amount of the alimony award.
    In her second argument, plaintiff contends the trial court made insufficient findings of fact and conclusions of law for appellate review of whether the amount of attorney's fees awarded was reasonable. She states that the trial court made no findings of fact to support its conclusion that she was entitled to recover attorney's fees. Plaintiff further asserts in her related fourth argument that the trial court abused its discretion by limiting the amount of attorney's fees awarded.
            In order to receive an award of counsel fees in an alimony case, it must be determined that the spouse is entitled to the relief demanded; that the spouse is a dependent spouse; and that the dependent spouse is without sufficient means whereon to subsist during the prosecution of the suit, and defray the necessary expenses thereof.

Clark v. Clark, 301 N.C. 123, 135-36, 271 S.E.2d 58, 67 (1980). Although defendant again argues the transcript contains competent and adequate evidence to support entry of the trial court's order, the trial court failed to make any findings of fact to support itsaward of attorney's fees. Because the trial court's findings of fact are inadequate to determine whether the award of attorney's fees was appropriate, the case is remanded for further findings as to the award. This Court therefore does not reach plaintiff's final argument of whether the trial court abused its discretion in setting the amount of attorney's fees awarded to her. See Friend- Novorska v. Novorska, 143 N.C. App. 387, 397, 545 S.E.2d 788, 795, per curiam aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001). If, upon remand, the trial court properly determines plaintiff is entitled to attorney's fees, it should then determine the amount to which she is entitled.
    We vacate the order awarding alimony and attorney's fees to plaintiff and remand this matter to the trial court for entry of an order containing the requisite findings of fact consistent with this decision. On remand, the trial court may, in its discretion, receive additional evidence. See Rhew v. Rhew, 138 N.C. App. 467, 472, 531 S.E.2d 471, 475 (2000).
    Vacated and remanded.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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