Plaintiff makes three arguments on appeal: (1) the trial court
erred in ordering him to pay essentially his entire monthly income
as alimony; (2) the trial court erred in requiring him to pay
alimony arrearage where the trial court made no findings or
conclusions of law that plaintiff was in contempt of court; and (3)
the trial court erred in requiring plaintiff to pay defendant's
attorney's fees. For the reasons stated herein, we affirm the
trial court's order insofar as it reduced plaintiff's alimony
obligation to $3,600 per month and required him to pay arrearage,
but we reverse the award of attorney's fees.
Plaintiff's first argument proceeds in three parts. First,
plaintiff argues that the trial court abused its discretion in
ordering him, as the supporting spouse, to pay alimony in an amount
that would require him to deplete his estate. Second, plaintiff
argues that the trial court did not make sufficient findings of
fact to support its modification of the alimony award. Finally,
plaintiff argues that the trial court's findings of fact do not
support its conclusion of law.
[1] Plaintiff contends that it is an abuse of discretion, and
therefore error, for a trial court to order alimony in an amount
that would cause the supporting spouse to deplete his estate. Plaintiff contends, rather, that an alimony award must be based on
“the supporting spouse's ability to pay,”
Spencer v. Spencer, 133
N.C. App. 38, 43, 514 S.E.2d 283, 287 (1999) (quoting
Rowe v. Rowe,
305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982)), and “the supporting
spouse['s] income at the time the award is made.”
Quick v. Quick,
305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982). We note, however,
that a court may properly consider the parties' relative estates as
a “guide in evaluating the earnings and earning capacity of the
parties.”
Williams v. Williams, 299 N.C. 174, 184, 261 S.E.2d 849,
856 (1980). Also, “[t]he court must consider the estate and
earnings of both in arriving at the sum which is just and proper
for the husband to pay the wife.”
Sayland v. Sayland, 267 N.C.
378, 382, 148 S.E.2d 218, 222 (1966);
see also Quick, 305 N.C. at
453, 290 S.E.2d at 658. In the present case, the court properly
considered the relative estates of the parties as well as their
relative income and earning capacities.
Plaintiff further points out that “[o]rdinarily, the parties
will not be required to deplete their estates to pay alimony or to
meet personal expenses,”
Beaman v. Beaman, 77 N.C. App. 717, 722,
336 S.E.2d 129, 132 (1985), and “[a] spouse cannot be reduced to
poverty in order to comply with an alimony decree.”
Quick, 305
N.C. at 457, 290 S.E.2d at 661. As distinguished from the cited
cases, the alimony awarded in the present case would not deplete
the plaintiff's estate for almost 12 years based on his current
financial situation, and could last substantially longer if
plaintiff's income increases in accordance with the earningpotential he has demonstrated. Thus, the award does not leave the
plaintiff impoverished. Although plaintiff cites three cases from
our Supreme Court that appear to disfavor alimony awards that
result in estate depletion for one party or the other,
Quick, 305
N.C. 446, 290 S.E.2d 653;
Williams, 299 N.C. 174, 261 S.E.2d 849;
Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976)
, those
decisions by no means prohibit such awards.
Rather, all of these
cases cite “fairness and justice to all parties” as the principle
to which an alimony award must conform.
Quick, 305 N.C. at 453,
290 S.E.2d at 658 (quoting
Beall, 290 N.C. at 674, 228 S.E.2d at
410);
Williams, 299 N.C. at 189, 261 S.E.2d at 859 (quoting
Beall,
290 N.C. at 674, 228 S.E.2d at 410);
Beall, 290 N.C. at 674, 228
S.E.2d at 410 (citing
Sayland, 267 N.C. at 382-83, 148 S.E.2d at
222). Thus, we consider whether the court's award in the present
case is fair to all of the parties.
In the present case, plaintiff's net monthly income is
$3,791.95. Plaintiff's total monthly living expenses are $3,193.
After meeting his own living expenses, plaintiff would have only
$598.95 left to pay alimony. Defendant's total monthly living
expenses are $3,672. Her net monthly income from $4,300 of alimony
is only $3,580, an amount that already falls short of her monthly
living expenses. Considering that plaintiff's estate is
substantially larger than defendant's estate, it would be unfair to
require defendant to further deplete her estate while allowing
plaintiff to maintain his. Instead, the trial court ordered a
reduction in alimony from $4,300 per month to $3,600 per month. This award does not fully meet defendant's living expenses and is
greater than plaintiff's disposable income after meeting his own
expenses. Because the award requires both parties to deplete their
estates to meet their living expenses, the trial court's reduction
of alimony was fair to both parties, and the trial court did not
abuse its discretion.
[2] Next, plaintiff argues that the trial court did not make
sufficient findings of fact to support its modification of the
alimony award. Plaintiff argues that the court was required to
make findings of fact as to the standard of living of the parties
and as to the defendant's actual ability to make payments. We
first address whether the trial court is required to make a finding
as to the standard of living of the parties when hearing a motion
for modification of alimony. N.C.G.S. § 50-16.3A(c) requires the
court to make findings of fact with regard to sixteen factors when
making an initial award of alimony, if evidence is offered on the
factor. N.C. Gen. Stat. § 50-16.3A(c) (2005). Our Supreme Court
has recognized that a trial court must consider the same sixteen
factors when hearing a motion to modify alimony pursuant to
N.C.G.S. § 50-16.9:
To determine whether a change of
circumstances under G.S. 50-16.9 has occurred,
it is necessary to refer to the circumstances
or factors used in the original determination
of the amount of alimony awarded under G.S.
50-16.5 [now N.C. Gen. Stat. § 50-
16.3A]. . . .
. . . The statutes codified as G.S. 50-
16.1 through 50-16.10 all deal with the same
subject matter, alimony, and are to be
construed
in pari materia. So construed, the
change in circumstances in G.S. 50-16.9logically refers to those circumstances set
forth in G.S. 50-16.5 [now N.C. Gen. Stat. §
50-16.3A].
Rowe, 305 N.C. at 187, 287 S.E.2d at 846 (internal citation
omitted). Implied in this reasoning is that the trial court must
make findings of fact as to any of the 16 factors that have changed
since the entry of the alimony award that is being considered for
modification. The eighth factor in N.C.G.S. § 50-16.3A(b) is
“[t]he standard of living of the spouses established during the
marriage.” N.C. Gen. Stat. § 50-16.3A(b)(8) (2005). No change in
circumstances occurring after divorce and entry of alimony award
will ever change the standard of living that the couple enjoyed
while they were married. Thus, the parties did not present
evidence of a change with respect to this factor, and the trial
court did not need to make a finding of fact on the factor.
Plaintiff also argues that the trial court should have made a
finding of fact as to the defendant's actual ability to pay the
monthly award. Actual ability to pay is not a factor requiring
findings of fact under N.C.G.S. § 50-16.3A(b). Furthermore,
“the
failure of the court to make a specific finding of fact as to [the
supporting spouse's] ability to pay is not deemed a sufficient
ground for disturbing the court's order.”
Mills v. Mills, 257 N.C.
663, 666, 127 S.E.2d 232, 234 (1962)
. Although actual ability to
pay is relevant to the court's determination of fairness to the
parties, it is not error for a court to omit a specific finding of
actual ability to pay where the court clearly considered the
defendant's actual ability to pay. In the present case, the courtclearly considered plaintiff's ability to pay the alimony, as
evidenced by its extensive findings as to defendant's income,
living expenses, and estate.
[3] The last prong of plaintiff's argument that the trial
court erred in ordering plaintiff to pay essentially his entire
monthly income as alimony is that the court's findings of fact do
not support its conclusion of law that plaintiff's alimony should
be reduced to $3,600 per month. We review the trial court's
conclusion for abuse of discretion. As discussed in addressing the
first prong of plaintiff's argument, the trial court made findings
of fact as to the income, living expenses, and estates of both the
plaintiff and defendant and reached a conclusion that was fair and
within its discretion.
[4] Plaintiff next assigns as error that the trial court
required plaintiff to pay the alimony arrearage without making
findings or conclusions as to the issue of contempt, raised by the
defendant. It is true that the trial court did not dispose of
defendant's contempt motion by making “a finding for or against the
alleged contemnor on each of the elements set out in G.S. 5A-21(a)”
as required by N.C. Gen. Stat. § 5A-23(e) (2005). If this is
error, the plaintiff did not raise this issue on appeal, and so the
issue is not properly before us.
Instead, plaintiff argues that because the court did not make
findings or conclusions on the issue of contempt, its order that
plaintiff pay the alimony arrearage is in error. We find this
argument to be without merit. Plaintiff's argument relies on thepremise that a court may enforce alimony arrearage by ordering
their payment only subsequent to a finding of contempt. This is
decidedly untrue.
A judgment awarding alimony is a judgment
directing the payment of money by a defendant
to plaintiff and, by such judgment, the
defendant thereupon becomes indebted to the
plaintiff for such alimony as it becomes due,
and when the defendant is in arrears in the
payment of alimony the court may, on
application of plaintiff, judicially determine
the amount then due and enter its decree
accordingly.
Barber v. Barber, 217 N.C. 422, 427, 8 S.E.2d 204, 208 (1940)
(citing
Vaughan v. Vaughan, 211 N.C. 354, 361, 190 S.E. 492, 496
(1937)). Also, this Court held “a failure to find a supporting
party in contempt does not affect the underlying debt.”
Brower v.
Brower, 75 N.C. App. 425, 428, 331 S.E.2d 170, 173 (1985). The
trial court properly exercised its authority to determine the
amount of the alimony arrearage due and to order plaintiff to pay
such amount; thus, we find no error.
[5] As his third and final assignment of error, plaintiff
argues that the trial court erred in requiring plaintiff to pay
defendant's attorney fees. N.C.G.S. § 50-16.4 allows the court to
“enter an order for reasonable counsel fees for the benefit of such
spouse, to be paid and secured by the supporting spouse in the same
manner as alimony.” N.C. Gen. Stat. § 50-16.4 (2005). In
addition, our Supreme Court has held:
The clear and unambiguous language of the
statutes . . . provide as prerequisites for
determination of an award of counsel fees the
following: (1) the spouse is entitled to the
relief demanded; (2) the spouse is a dependent
spouse; and (3) the dependent spouse has not
sufficient means whereon to subsist during the
prosecution of the suit and to defray the
necessary expenses thereof.
Rickert v. Rickert, 282 N.C. 373, 378, 193 S.E.2d 79, 82 (1972).
Furthermore, “the trial court must set out the findings of fact
upon which the award is made.”
Self v. Self, 37 N.C. App. 199, 201,
245 S.E.2d 541, 543 (1978).
In the present case, the trial court made no findings with
regard to defendant's ability to subsist during prosecution of the
suit or her ability to defray the necessary expenses of suit.
Therefore, we must vacate the award of attorney fees.
Affirmed in part, vacated in part.
Judges ELMORE and JACKSON concur.
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