NO. COA05-274

NORTH CAROLINA COURT OF APPEALS

Filed: 2 May 2006

    Appeal by defendant from judgment entered 17 September 2004 by Judge William K. Hunter in Guilford County District Court. Heard in the Court of Appeals 27 March 2006.

    Dotson & Associates, by Marshall F. Dotson III, for plaintiff- appellee.

    The Howard Law Firm, P.C., by Molly N. Howard, for defendant- appellant.

    MARTIN, Chief Judge.

    Scott William Myers, defendant-appellant, and Janet Carter Myers, plaintiff-appellee, married on 26 May 1989 and separated on 25 May 2001. Defendant appeals an order of alimony, assigning error to the trial court's findings and conclusions, including the determination of dependent and supporting spouses, the earning capacity of plaintiff, the income of defendant, the lack of consideration of equitable distribution, the deficiency of rationale supplied for the duration, amount, and manner of payment of alimony, and the monthly amount of alimony awarded. For the reasons stated below, we vacate the order and remand this matter to the trial court.    During and after the marriage, defendant worked as a real estate agent for Coldwell Banker. As an independent contractor, he earned income from commissions and also paid business expenses. In addition, defendant owned five duplexes from which he earned income and paid expenses as apartment rentals.
    Plaintiff's last employment came from cleaning houses, working twenty to thirty hours per week. She stopped working in June 2002, a month after the post-separation support hearing, and did not return to work. Plaintiff suffered from health and emotional stress problems during and after the marriage, although she was denied disability benefits. After separation, she eventually lived in subsidized government housing.
    On 5 August 2002, nunc pro tunc to 8 May 2002, the trial court entered a post-separation order directing defendant to pay plaintiff $100 per month and to maintain plaintiff on his health insurance policy. The parties entered a Memorandum Order on 10 December 2003, settling equitable distribution issues with a $100,000 payment from defendant to plaintiff. Defendant kept the duplexes and refinanced the properties to pay the $100,000 distribution. At the time of trial, plaintiff had $73,000 remaining in savings.
    The trial court conducted an alimony trial and entered a two-page permanent alimony order on 17 September 2004. The trial court's findings of fact included:
    THE COURT MAKES THE FOLLOWING FINDINGS OF FACT:
    . . .
    3. The Plaintiff is unemployed and has no income. The Plaintiff receives $100.00 per month post separation support pursuant to Court Order.

    4. The [P]laintiff has needs as detailed in her affidavit of income and expenses, and as amended and supplemented by her testimony, are approximately $1395.00 per month.

    5. Coldwell Banker in High Point, North Carolina employs the Defendant. The Defendant owns and receives rental income from five duplexes containing ten apartments. The Court finds that the Defendant has current income in excess of $55,000.00 per year.

    6. The Defendant has expenses on his affidavit of income and expenses, and as supplemented by his testimony[,] of $3899.44 per month.

    . . .

    11. That the Plaintiff during the course [of] the marriage suffered from a number of medical problems related to her stomach, back and psychiatric well being and continues to suffer from these problems. That the Defendant was and is aware of these physical and mental problems of the Plaintiff.

    12. That the Plaintiff was employed at Hatteras Yacht for ten years and earned approximately $1,700.00 per month and her last job was as a housecleaning [sic].

    13. The Defendant continues to provide the Plaintiff with health insurance.

    14. The Court finds that the Plaintiff is a dependent spouse, as defined by N.C. Gen. Stat. § 50-16.1A(2), and the Defendant is a dependent [sic] spouse, as defined by N.C. Gen. Stat. § 50-16.1A(5). The Plaintiff is actually dependent upon the Defendant the Defendant [sic] for her maintenance and support: Plaintiff is substantially in need of maintenance and support from the Defendant in order to meet her reasonable needs and expenses.

    15. The Plaintiff is entitled to alimony pursuant to N.C. Gen[.] Stat. § 50. The Defendant has the financial resources to provide Plaintiff with alimony in the amount of $1200.00 per month effective this date. The Defendant has the financial resources to maintain the Plaintiff on his health insurance policy.

The trial court's conclusions of law included:    2. The Plaintiff is a dependent spouse, as defined by N.C. Gen. Stat[.] § 50-16[.]1A(2), and the Defendant is [a] supporting spouse, as defined by N.C. Gen. Stat. § 50-16.1A(5).

    3. The Plaintiff is actually substantially dependent upon the Defendant for maintenance and support; Plaintiff is substantially in need of maintenance and support from the Defendant in order to meet her needs and expenses.

    4. Plaintiff is a party in action for alimony. The Defendant has the financial resources to provide Plaintiff with alimony in the amount of $1200.00, effective this date, and to maintain the Plaintiff on his health insurance policy.

The trial court ordered defendant to pay plaintiff alimony in the amount of $1,200 per month and to maintain her on his health insurance plan. Defendant appealed.

__________________________________

I. Dependent spouse

    Defendant argues the trial court erred in determining plaintiff was a dependent spouse because the court failed to make the detailed findings of fact necessary to determine dependency. Only a dependent spouse is entitled to alimony. N.C. Gen. Stat. § 50-16.3A(a) (2005). A dependent spouse is “a spouse, whether husband or wife, 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) (2005). The word “or” makes this statutory provision an either/or proposition: the dependent spouse is either “actually substantially dependent” or “substantially in need of maintenance and support.” Rhew v. Rhew, 138 N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000) (“If the trialcourt determines that one spouse is not actually dependent upon the other, the court must consider the second test set out in N.C. Gen. Stat. § 50-16.1A(2) and determine whether one spouse is 'substantially in need of maintenance and support' from the other.”) To be “actually substantially dependent,” the dependent spouse “must have actual dependence on the other in order to maintain the standard of living to which he or she became accustomed during the last several years prior to the spouses' separation.” Talent v. Talent, 76 N.C. App. 545, 548, 334 S.E.2d 256, 258 (1985), superceded on other grounds by N.C. Gen. Stat. § 50-16.3A(a). “To determine whether such actual dependence exists, the trial court must evaluate the parties' incomes and expenses measured by the standard of living of the family as a unit.” Id. (emphasis added).
    Alternately, if the trial court determines the spouse is not actually dependent but rather is “substantially in need of maintenance and support,” then the court must determine whether the spouse “would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other.” Id. The court should consider the following:
    (1) the standard of living, socially and economically, to which the parties as a family unit became accustomed during the several years prior to their separation; (2) the present earnings, prospective earning capacity, and any other condition, such as health, of each spouse at the time of the hearing; (3) whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the parties' accustomed standard of living, taking into consideration the spouse's reasonable expenses in lightof that standard of living; and (4) the financial worth or “estate” of both spouses.
Id. (citing Williams v. Williams, 299 N.C. 174, 183_84, 261 S.E.2d 849, 856 (1980)). In addition, “[t]he court must also consider fault and other facts of the particular case such as the length of the marriage and the contribution made by each spouse to the financial status of the family over the years.” Id.
    In an order for alimony, the trial court's findings of fact
are “a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982); see also Talent, 76 N.C. App. at 548, 334 S.E.2d at 259 (“The conclusions made by the court as to whether a spouse is 'dependent' or 'supporting' must be based on findings of fact sufficiently specific to indicate that the court properly considered the factors set out in Williams.”). “The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment_and the legal conclusions which underlie it_represent a correct application of the law.” Quick, 305 N.C. at 452, 290 S.E.2d at 658 (quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E. 2d 185, 189 (1980)). Without such findings, “appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated andthe case remanded for necessary findings.” Talent, 76 N.C. App. at 548_49, 334 S.E.2d at 259. “It is not enough that there is evidence in the record from which such findings could have been made because it is for the trial court, and not this court, to determine what facts are established by the evidence.” Id. at 549, 334 S.E.2d at 259.
    In the present case, we note several omissions and errors in the trial court's findings of fact. First, in Finding of Fact 14 we note the obvious scrivener's error finding both plaintiff and defendant to be dependent spouses: “14. The Court finds that the Plaintiff is a dependent spouse, as defined by N.C. Gen. Stat. § 50-16.1A(2), and the Defendant is a dependent spouse, as defined by N.C. Gen. Stat. § 50-16.1A(5).” Second, this finding of fact does not specify whether plaintiff is “actually substantially dependent” on defendant or “substantially in need of maintenance and support.” Instead, it appears to assert plaintiff is both: “The Plaintiff is actually dependent upon the Defendant . . . for her maintenance and support: Plaintiff is substantially in need of maintenance and support from the Defendant in order to meet her reasonable needs and expenses.” This error is repeated in the third conclusion of law.
    Third, for either determination, the trial court is required to determine the standard of living enjoyed by the parties while married. The order fails to do so. Fourth, if the trial court determines plaintiff is “substantially in need of maintenance and support,” then the findings of fact must consider plaintiff's anddefendant's prospective earning capacities, as well as the financial worth of both parties, including the remaining $73,000 from equitable distribution plaintiff had at the time of the trial.
    We pass no judgment on whether plaintiff is a dependent spouse, and if so, whether she is “actually substantially dependent” or “substantially in need of maintenance and support.” The findings of fact are simply too deficient to determine whether competent evidence underlies the order, and therefore we cannot determine whether the legal conclusions represent a correct application of the law.
    Accordingly, we follow the example of Talent and Rhew in vacating and remanding for an appropriate determination of whether plaintiff is a dependent spouse, and if so, for the entry of judgment to contain sufficiently specific findings of fact showing the trial court properly considered the statutory requirements. See Talent, 76 N.C. App. at 551, 334 S.E.2d at 260; Rhew, 138 N.C. App. at 472, 531 S.E.2d at 475. On remand, pursuant to N.C. Gen. Stat. § 50-16.9(a), “the court in its discretion may receive additional evidence or enter a new order on the basis of evidence already received.” Rhew, 138 N.C. App. at 472, 531 S.E.2d at 475; N.C. Gen. Stat. § 50-16.9(a) (2005) (“An order . . . for alimony . . . may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”).

    Defendant contends the trial court erred by failing to make sufficient findings of fact on several factors relating to the amount and duration of alimony as required by N.C. Gen. Stat. § 50- 16.3A(b). Just as a trial court must make sufficient findings for a determination of whether a spouse is dependent, the trial court must make sufficient findings when examining factors for consideration of the amount and duration of alimony. The trial court “shall consider all relevant factors” when making the determination of alimony, with fifteen relevant but non-exclusive factors listed in the statute. N.C. Gen. Stat. § 50-16.3A(b) (2005). Section 50-16.3A(b) is buttressed by N.C. Gen. Stat. § 50-16.3A(c), which requires “the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.” Therefore, “[t]he trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors . . . for a determination of an alimony award.” Lamb v. Lamb, 103 N.C. App. 541, 545, 406 S.E.2d 622, 624 (1991) (quoting Skamarak v. Skamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 561 (1986)). “In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence.” Rhew, 138 N.C. App. at 470, 531 S.E.2d at 473 (quoting Talent, 76 N.C. App. at 548_49, 334 S.E.2d at 259).
    Defendant points to three factors under section 50-16.3A(b) which have insufficient or nonexistent findings. First,section 50-16.3A(b)(2) concerns the “relative earnings and earning capacities of the spouses.” The findings of fact do address plaintiff's earnings at the time of separation and at trial:
     3. The Plaintiff is unemployed and has no income. The Plaintiff receives $100.00 per month post separation support pursuant to Court Order.

    . . .

    12. That the Plaintiff was employed at Hatteras Yacht for ten years and earned approximately $1,700.00 per month and her last job was as a housecleaning [sic].

But the findings of fact fail to consider plaintiff's earning capacity, which is a prospective determination. Although Finding of Fact 11 lists several of plaintiff's medical problems, evidence at trial also indicates she was denied disability benefits. Further evidence shows plaintiff can drive without restriction. Plaintiff also testified she can focus at Bible study classes for up to five hours consecutively. Thus, depending on the facts the trial court determines, plaintiff may have some current or prospective earning capacity. The findings of fact make no mention of plaintiff's earning capacity, and therefore fail to meet the requirements of section 50-16.3A(c).
    Second, section 50-16.3A(b)(4) pertains to the “amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others.” Finding of Fact 5 provides a mere three sentences on defendant's amount and sources of earned and unearned income:
     5. Coldwell Banker in High Point, North Carolina employs the Defendant. The Defendant owns and receives rentalincome from five duplexes containing ten apartments. The Court finds that the Defendant has current income in excess of $55,000.00 per year.

As in Vadala v. Vadala, 145 N.C. App. 478, 480, 550 S.E.2d 536, 538 (2001), where this Court remanded an alimony order because of insufficient findings of fact, we find ourselves with “no way to confirm or deny this finding as it gives no indication as to how it was calculated.” Vadala found insufficient a finding of fact reading: “The Plaintiff has been employed as a medical transcriptionist for fifteen years, and has a gross income of $2,075 per month; and, after taxes, her net income is $1,572 per month.” Id. Although Vadala was concerned with a finding of fact under section 50-16.3A(b)(2), the principle is the same for section 50-16.3A(b)(4). Here, the finding of fact indicates defendant has income “in excess of $55,000.00 per year,” but provides no methodology of how the trial court arrived at that sum. Although the finding mentions defendant's employment by Coldwell Banker, and his income from rental properties, it provides no indication of whether the $55,000 is gross or adjusted income, or how the trial court calculated the two strands of income. Furthermore, we do not know how much “in excess of” $55,000 defendant earns, since that vague phrase could mean a few hundred dollars, a few thousand dollars, or more. On appeal, defendant disputes both the amount of income and what he speculates about the methodology of the calculation, but the paucity of the findings of fact prevent us from exercising adequate review. Given the importance of earnings and income of the parties in making adetermination of the amount of alimony to be paid, an insufficient or nonexistent finding of fact on either section 50-16.3A(b)(2) or section 50-16.3A(b)(4) is a critical error.
    Third, section 50-16.3A(b)(16) directs the trial court to consider equitable distribution as a factor for consideration. N.C. Gen. Stat. § 50-16.3A(b)(16) (2005) (“The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.”). Here, the parties entered a Memorandum Order on 10 December 2003 directing defendant to pay plaintiff $100,000. The alimony award's findings of fact, however, contain no mention of this equitable distribution order, nor the $73,000 plaintiff retained at the time of trial. On review, this Court cannot determine whether the trial court considered this equitable distribution award. N.C. Gen. Stat. § 50-16.3A(b) (stating “the court shall consider all relevant factors”) (emphasis added). Defendant offered evidence with respect to the equitable distribution award, and since the trial court failed to make a specific finding of fact on this factor, it neglected the requirement of section 50-16.3A(c). Accordingly, the trial court failed to “make findings sufficiently specific to indicate that the trial judge properly considered each of the factors . . . for a determination of an alimony award.” Lamb, 103 N.C. App. at 545, 406 S.E.2d at 624.     We must, therefore, vacate the order and remand for appropriate determination and sufficiently specific findings regarding earning capacity, section 50-16.3A(b)(2), defendant's income, section 50-16.3A(b)(4), and equitable distribution, section 50-16.3A(b)(16), to show the trial court properly considered these relevant factors.

III. Reasons for amount, duration, and manner

    Defendant also appeals the amount of alimony he must pay plaintiff. If the trial court makes an award of alimony, it must set forth “the reasons for its amount, duration, and manner of payment.” N.C. Gen. Stat. § 50-16.3A(c) (2005); Friend-Novorska v. Novorska, 131 N.C. App. 867, 870, 509 S.E.2d 460, 462 (1998) (the trial court “shall, if making an alimony award, set forth 'the reasons for its amount, duration, and manner of payment'”).
    In the present case, the alimony order fulfilled the manner of payment requirement when it ordered defendant to pay $1,200 per month directly to the Plaintiff:
    NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

    . . .

    2. The Defendant shall pay $1200.00 per month directly to the Plaintiff as alimony, this date.

However, the alimony order makes no mention of the duration of payment of alimony, and as such errs pursuant to section 50-16.3A(c). In Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 421, 588 S.E.2d 517, 523 (2003), this Court found:
    [T]he trial court, without making any findings as to its reasoning for the duration of the alimony or the mannerin which it was to be paid, ordered alimony to be paid until the death of a party or the dependent spouse's remarriage or cohabitation and that it be paid directly to the clerk of court.

This Court then remanded the alimony portion of the trial court's order “to make further findings of fact explaining its reasoning for the duration of the alimony award and its manner of payment.” Id. at 422, 588 S.E.2d at 523. Here, the alimony order fails to even mention the duration of payment, much less provide any reasoning, and thus its deficiency exceeds the errors in Fitzgerald.
    The alimony order does address the amount of alimony in both the findings of fact and conclusions of law:
    [Findings of Fact] 15. The Plaintiff is entitled to alimony pursuant to N.C. Gen[.] Stat. § 50. The Defendant has the financial resources to provide Plaintiff with alimony in the amount of $1200.00 per month effective this date. The Defendant has the financial resources to maintain the Plaintiff on his health insurance policy.

    . . .

    [Conclusions of Law] 4. Plaintiff is a party in action for alimony. The Defendant has the financial resources to provide Plaintiff with alimony in the amount of $1200.00, effective this date, and to maintain the Plaintiff on his health insurance policy.
However, both the finding of fact and conclusion of law are deficient under section 50-16.3A(c) because they fail to address the reasons for the amount. The trial court's determination that defendant “has the financial resources” is insufficient to explain how the court decided $1,200 per month was an appropriate amount, or how exactly defendant's financial resources could provide that amount. Furthermore, the trial court's determination thatdefendant “has the financial resources to maintain the Plaintiff on his health insurance policy” neglects to mention the monetary cost of such a policy, as well as the reasons for why defendant should maintain his ex-wife on his health insurance policy.
    As to the sum of the award, we note “[t]he amount of alimony is determined by the trial judge in the exercise of his sound discretion and is not reviewable on appeal in the absence of an abuse of discretion.” Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982). Since the order fails to provide reasons for the amount of the award, pursuant to section 50-16.3A(c), we cannot review whether the award of $1,200 per month is an abuse of discretion, and thus make no judgment on the amount of alimony to be paid.
    We note, however, “[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 (citing Beall v. Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976)). Our Supreme Court has noted:
    It is entirely possible, for example, that the trial court might determine a spouse dependent under the guidelines noted above and then find that it cannot order the amount of alimony needed from the other spouse because the latter is incapable of providing that total amount of support for any number of reasons.

Williams v. Williams, 299 N.C. 174, 186, 261 S.E.2d 849, 858 (1980). In the present case, the trial court's Finding of Fact 6 determined defendant to have expenses of $3,899.44 per month. His monthly income, which we calculate by dividing his approximately $55,000 per year of income by twelve months, results in $4,583.33 per month. Taking his $4,583.33 per month in income andsubtracting his expenses of $3,899.44, results in $683.89 per month. The trial court's award of alimony, however, is $1,200, resulting in a shortfall for defendant of more than $500 per month. Because the findings of fact provide no reasons for the amount of alimony awarded to plaintiff, we are unable to review whether this award is an abuse of discretion.
    Accordingly, we vacate and remand the order to provide for findings of fact and conclusions of law consistent with the requirements of N.C. Gen. Stat. § 50-16.3A.
    Vacated and remanded.
    Judges HUDSON and BRYANT concur.
    Report per Rule 30(e).

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