NO. COA05-277

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

    Appeal by defendant from orders entered 26 July 2004 and 5 August 2004 by Judge Dale Graham in Davidson County District Court. Heard in the Court of Appeals 20 October 2005.

    Michelle D. Reingold for plaintiff-appellee.

    C.R. “Skip” Long, Jr., for defendant-appellant.

    LEVINSON, Judge.
    Jerry Gray (husband) appeals from trial court orders holding him in contempt and awarding alimony and attorney's fees to Melinda Gray (wife). We affirm.
    Husband and wife were married on December 12, 1982, and separated on September 12, 1998. No children were born of the marriage, and the parties have now obtained a divorce. Husband has worked almost exclusively as an airline mechanic for approximately forty years. He has relocated on at least three occasions during the marriage to retain his employment with US Airways. Husbandvoluntarily transferred from Greensboro, North Carolina to Houston, Texas in January 1997. Wife remained at their marital home in North Carolina. Husband worked for US Airways full time until 2003. Husband was then informed that US Airways was downsizing, and that his job would be eliminated. Evidence was admitted which showed that husband accepted furlough rather than applying for open positions in other cities or for junior positions in Houston. The trial court received much testimony concerning the parties' incomes, earning capacities, and standard of living. Prior to his separation from wife, husband had an affair with a woman in Texas.
    Wife suffers from depression and anxiety which prohibits her from working full time or with others in an office setting. She is capable of restricted work, and she managed the couple's four rental properties in Winston-Salem, North Carolina during their marriage.
    In the latter months of 2003, husband stopped paying post- separation support, and wife filed a motion for contempt. This motion for contempt was heard in conjunction with the trial on wife's claim for alimony.
    The trial court made the following relevant findings of fact:
    6.    Throughout the marriage of the parties, the Defendant was employed as a mechanic or lead mechanic with US Airways[.] . . .

    7.    During the marriage, the Defendant had relocated onat least three occasions so that he could remain employed with US Airways.

    8.    In January of 1997, the Defendant voluntarily transferred to Houston, Texas from Greensboro, North Carolina where he worked full time until 2003 when he voluntarily accepted furlough on February 11, 2003.

    9.    At the time the Defendant accepted furlough, he was approximately fifty-four (54) years of age and in good health.

    10.    Prior to the Defendant's accepting furlough, US Airways had begun the procedure of downsizing in Houston and notifying him that his job would be eliminated. US Airways had other lead mechanic and mechanic positions open in other locations that the Defendant could have applied for; in addition, the Defendant could have applied for junior positions in Houston in his current classification or lower classification. The Defendant chose to accept furlough rather than be considered for a junior position in Houston or to accept a junior position in the US Airways system.

    11.    The Defendant has worked almost exclusively as an airline mechanic for approximately forty (40) years. He has special skills and abilities in said area. The Defendant has not attempted to gain other employment outside of US Airways in his field of expertise.

    12.    The Defendant did not bid a lead mechanic position in February of 2003 at the Charlotte, North Carolina facility, where a position was available, although qualified and with high seniority to do so.

    13.    The Defendant chose to accept furlough and has received pay in the amount of $1,430.00 per month, which ended in May of 2004. According to the US Airways handbook, the Defendant has three (3) years from the date of furlough to accept or be reinstated in his same or similar position.
    14.    The Defendant could have remained employed as a mechanic earning approximately the same income, but voluntarily and deliberately failed to exercise his
        reasonable capacity to earn.

    15.    The parties enjoyed a good standard of living while married. The marital residence was a two (2) story colonial type home with approximately 3000 square feet of living space in Welcome, North Carolina. The property had several acres attached and was well furnished and maintained. The parties owned at least three (3) vehicles.

    16.    The Plaintiff was employed at various times early in the marriage, but did not work approximately eight (8) years prior to the date of separation of the parties. The Plaintiff did manage the four (4) rental units located in Winston-Salem during the marriage.

    17.    The Plaintiff suffers from Depression and Anxiety and has been diagnosed with Major Depressive Disorder. This illness is unremitting in nature and prohibits the Plaintiff from working full time. The Plaintiff is unable to work with others in an office setting.

    18.    The Plaintiff is capable of restricted work where she can work alone for short periods of time. She is unable to respond to work related demands and is emotionally fragile with little chance of long term improvement. She is capable of managing the four (4) rental units that she acquired in the equitable distribution judgment.

    19.    The Plaintiff is currently prescribed and is taking medications for Anxiety and Depression. The Plaintiff is taking an Anti-Psychotic drug.

    20.    The Plaintiff suffered from these medical conditions throughout the marriage.

    . . . .
    
    22.    The Plaintiff presently has net monthly income ofapproximately $330.00 from her four (4) rental units.

    23.    Plaintiff has reasonable living expenses of approximately $2186.00 per month.

    24.    Plaintiff presently resides in a camper with her sister, who is disabled. They are planning to rent an apartment using their combined income.

    25.    The Defendant has reasonable monthly living expenses of $3541.00 per month.

    26.    The Defendant has the ability to earn $3,864.00 per month as an airline mechanic. He currently earns $406.00 per month net rental income from a house he owns in Houston, Texas for a total net monthly income of $4,270.00 on average.

    27.    The Defendant has the means and ability to pay $725.00 per month as alimony to the Plaintiff.

    . . . .

    30.    The Defendant had an illicit long-standing affair with a woman in Texas during the marriage and prior to the date of separation.

    31.    The parties have settled the equitable distribution issue. The Defendant received the marital residence with a net asset value of $225,000.00 along with other property.

    The trial court concluded, inter alia, that “[p]laintiff is the dependent spouse” and “[d]efendant is the supporting spouse”; “[d]efendant engaged in an act of illicit sexual behavior . . . during the marriage and prior to the date of separation”; “[d]efendant is in willful contempt concerning the non-payment of post-separation support”; “[d]efendant has the means and theability to pay the post-separation support . . . and the alimony awarded herein”; “[p]laintiff is entitled to an award of attorney's fees having brought the alimony and contempt action in good faith”; and that “[d]efendant acted in bad faith by voluntarily choosing furlough with US Airways thereby reducing his monthly income in an effort to avoid his reasonable support obligations.”
    The trial court ordered husband to pay $725.00 per month in alimony for sixty months effective 1 May 2004; pay $9,000.00 to purge himself of contempt for the arrearages owed under previous post-separation support orders; and pay $2,000.00 in attorney's fees. Husband now appeals.
    Husband argues first that the trial court's findings of fact do not support its conclusion of law that he acted in bad faith by voluntarily reducing his income in an effort to avoid his reasonable support obligations. We disagree.
    When considering alimony, a supporting spouse's ability to pay is typically determined by his income at the time the award is made. Beall v. Beall, 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976). “Capacity to earn, however, may be the basis of an award if it is based upon a proper finding that the husband is deliberately depressing his income . . . because of a disregard of his marital obligation to provide reasonable support. . . [.]” Id. (citing Conrad v. Conrad, 252 N.C. 412, 418, 113 S.E.2d 912, 916(1960), and Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962)). To use the earning capacity rule, the trial court must find that the supporting spouse depressed his/her income in bad faith. Kowalick v. Kowalick, 129 N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998) (citing Wachacha v. Wachacha, 38 N.C. App. 504, 507-08, 248 S.E.2d 375, 377-78 (1978)). “Evidence of intent such as 'bad faith' generally can be proven, if at all, only by circumstantial evidence.” Wachacha, 38 N.C. App. at 509, 248 S.E.2d at 378.
    Here, many of the court's findings of fact support the conclusions of law that husband acted in bad faith, and voluntarily reduced his income in an attempt to avoid his support obligations. Husband accepted furlough rather than be considered for a junior position in Houston or elsewhere in the US Airways system. He did not attempt to gain similar employment outside of the US Airways system, despite his almost forty years of experience as an airline mechanic. Husband failed to bid on an open lead mechanic position in Charlotte, North Carolina, despite his qualifications and seniority, and despite the fact that he had relocated on at least three other occasions because of his job. Husband deliberately failed to exercise his reasonable capacity to earn. These findings support the conclusions of law that husband acted in bad faith and attempted to avoid his reasonable support obligations.
    Husband makes a related argument that, because he lost his USAirways position in September 2002 and his lower status employment in February 2003 through no fault of his own, the earning capacity rule cannot, as a matter of law, be applied to him. In making this argument, husband relies upon this Court's holding in Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997), a child support opinion. Sharpe does not hold, however, that involuntary job loss makes application of the earning capacity rule inapplicable as a matter of law. See id. And, as wife correctly contends in her brief, the trial court's application of the earning capacity rule here is based, in large measure, on husband's “refusal to seek or accept gainful employment, as well as his willful refusal to secure or take a job. . . .”
    Husband also argues that the evidence is insufficient as a matter of law to support application of the earning capacity rule. In this regard, husband relies heavily on his observation that “[n]o evidence exists that [husband] deliberately and in bad faith avoided taking any other available jobs[]” and that “as a matter of law the evidence presented as to other positions being potentially available elsewhere in the country could not support findings and conclusions to justify the imposition of the earning capacity rule . . . .” On the contrary, there was evidence that husband was untruthful with the trial court concerning his desire and effort to seek work, and evidence that employment opportunities wereavailable had husband genuinely sought the same. In sum, a reasonable factfinder could conclude that husband accepted furlough without attempting to find employment, and that this, together with all the facts of this case, constituted bad faith on the part of husband. The assignments of error relevant to the issue of the earning capacity rule are overruled.
    Husband argues next that the trial court abused its discretion by awarding wife $725.00 in alimony per month. Husband cites no legal authority to support this argument, in violation of N.C.R. App. P. 28 (b)(6) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”). This assignment of error is dismissed.
    Husband argues next that the evidence and the trial court's findings of fact do not support the conclusion of law that husband is the supporting spouse. However, this issue is not properly preserved for appeal. In finding of fact number 29, and again in conclusion of law number 3, the trial court determined that husband is the supporting spouse. However, there is no assignment to either of these determinations in the record on appeal. “[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal. . . [.]” N.C.R. App. P. 10(a). “Failure to [assign error to a conclusion oflaw] constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.” Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). We therefore reject this argument.
    Husband argues last that the trial court erred by failing to make findings of fact concerning whether wife committed marital misconduct. Specifically, husband argues that the trial court should have made findings of fact as to whether (1) wife was sexually active with another person during her marriage to defendant, (2) wife abandoned or constructively abandoned husband by not moving to Texas, and (3) wife committed certain indignities. Husband contends that these issues were raised by the evidence and were not sufficiently addressed by the trial court. We disagree.
    N.C. Gen. Stat. . 50-16.3A(b) (2003) lists relevant factors that the trial court must consider in determining the amount, duration, and manner of payment of alimony. One of these factors listed is the marital misconduct of each spouse. If evidence is offered on one of the factors listed under G.S. § 50-16.3A(b), then the trial court must make a specific finding of fact regarding that factor. N.C. Gen. Stat. . 50-16.3A (2003). We have reviewed the transcript pages and exhibits that husband contends raise the particular issues he asserts the trial court should have rendered findings on. We are unpersuaded that these portions of the recordfairly raise the three issues raised by husband, such that the trial court was required to make specific findings of fact on them. The relevant assignments of error are overruled.
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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