Appeal by plaintiff from order entered 3 March 2005 by Judge
Lynn Gullett in Iredell County District Court. Heard in the Court
of Appeals 6 March 2006.
Davies & Grist, LLP, by Kenneth T. Davies, for plaintiff-
appellant.
Michelle D. Reingold for defendant-appellee.
MARTIN, Chief Judge.
The parties married in 1972, separated in 1999, divorced in
2002, and their children were emancipated by age. An equitable
distribution award was entered on 23 June 2004. The order from
which appellant-husband (“Husband”) appeals is a final order
entered 3 March 2005 awarding appellee-wife (“Wife”) alimony in the
amount of $900.00 per month for a period of ten years and
attorneys' fees in the amount of $3,052.00.
__________________
Husband has assigned error to a number of the trial court's
findings of fact on the grounds they are not supported by the
evidence offered at trial. We dismiss each of those assignments oferror for two reasons: first, Husband has not brought forward in
his brief any argument in support of the assignments of error
relating to the trial court's findings of fact,
see N.C.R. App. P.
28(a), 28(b)(6); and second, he did not file, as a part of the
record, either a narration of the evidence or a verbatim transcript
as required by N.C.R. App. P. 9(a)(1)(e). In the absence of such
narration or transcript, we must presume that each of the trial
court's findings of fact is fully supported by competent evidence
and such findings are conclusive on appeal.
In re Botsford, 75
N.C. App. 72, 75, 330 S.E.2d 23, 25 (1985).
Husband's remaining assignments of error, which are brought
forward in his brief, are directed to the trial court's conclusions
of law and its award of alimony and attorneys' fees. Citing
Walker
v. Walker, ___ N.C. App. ___, ___ S.E.2d ___ (COA04-1601 6 December
2005) and
Wetchin v. Ocean Side Corp. 167 N.C. App. 756, 606 S.E.2d
407 (2005), Wife argues these assignments of error are “'generic'
and lack any concise legal basis” and should likewise be dismissed
as violative of N.C.R. App. P. 10(c)(1), which requires, in
pertinent part, that
Each assignment of error shall, so far as is
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. An assignment of
error is sufficient if it directs the
attention of the appellate court to the
particular error about which the question is
made, with clear and specific record or
transcript references.
N.C.R. App. P. 10(c)(1). Husband's remaining assignments of error
are as follows:
1. The Court's entry of the March 3, 2005
Order on the ground that the Order is
erroneous as a matter of law, and based upon
insufficient Findings of Fact and Conclusions
of Law.
R. p. ___.
. . .
14. The Court's Conclusion of Law No. 2, on
the ground that there are insufficient
Findings of Fact to support it.
R. p. ___.
15. The Court's Conclusion of Law No. 3, on
the ground that there are insufficient
Findings of Fact to support it.
R. p. ___.
16. The Court's Conclusion of Law No. 4, on
the ground that there are insufficient
Findings of Fact to support it.
R. p. ___.
17. The Court's award of alimony to the
plaintiff [sic], on the grounds that there
were insufficient Findings of Fact and
Conclusions of Law to support it, and that
such an award was excessive.
R. p. ___.
18. The Court's award of attorney's fees to
the plaintiff [sic], on the ground that the
Defendant did not establish entitlement to
attorney's fees as a matter of law, and there
are insufficient Findings of Fact to support
it.
R. p. ___.
We agree with Wife that Assignment of Error No. 1 runs afoul of the
requirement of the appellate rule because it is broadside and does
no more than assert that “the trial court erred because its ruling
was erroneous.” Nor does it identify the precise legal basis uponwhich error is assigned.
Walker,
___ N.C. App. at ___, ___ S.E.2d
at ___. Husband's Assignment of Error No. 1 is therefore
dismissed.
Aside, however, from the obvious failing of Assignments of
Error 14, 15, 16, 17, and 18 to make clear and specific references
to the record or transcript, we believe those assignments of error
are sufficient to preserve for review the sufficiency of the
findings of fact to support the trial court's conclusions of law as
to Wife's entitlement to alimony and attorneys' fees. While
Husband's failure to reference the specific page numbers in the
record to which the assignments of error refer is a clear violation
of the appellate rule, those references are easily ascertainable
and his violation is not so egregious as to place an additional
burden upon this Court or invoke dismissal of the assignments of
error.
See Symons Corp. v. Insurance Co. of North America, 94 N.C.
App. 541, 543, 380 S.E.2d 550, 552 (1989) (noting that “[a]lthough
defendant in this case did not technically follow the rules by
failing to list specific page numbers where exceptions could be
found in the record and did not set out these exceptions in the
brief” such omissions were not “so egregious as to invoke
dismissal.”). Thus, our review in this matter will be limited to
the issues raised in Husband's arguments in support of Assignments
of Error 14 - 18, i.e., “whether the trial court's findings of fact
support its conclusions of law and whether those conclusions of law
represent a correct application of the law.”
Wetchin, 167 N.C.
App. at 759, 606 S.E.2d at 409. In making its award of alimony to Wife, the trial court found
that Husband earned a net income of $5052.00 per month, that Wife
earned a net income of $2500.00 per month, that Husband had engaged
in marital misconduct during the marriage, and that Wife had
“sacrificed her career to advance” Husband's. The trial court also
made the following pertinent findings:
17. That during much of the time that the
children were growing up, the Wife was a stay-
at-home mom. . . . and was a homemaker. The
Wife did so with the blessing of the Husband,
however, when the children got older, the Wife
did establish herself in a lucrative career.
18. That the parties enjoyed a comfortable
standard of living during their marriage with
a large, beautiful marital home and no lack of
money. . . .
19. That both parties have normal needs for
funds to pay these everyday expenses. Both
parties have built new homes since the date of
separation. Both parties are working at
lucrative jobs, and [Husband] has the added
income of $1600.00 in retirement benefits his
new wife adds to the family.
. . .
22. That the Husband is the supporting spouse
and has been for the entire marriage of the
parties. The Wife is the dependent spouse,
having been a stay at home mother for most of
the marriage and always earning less than the
Husband.
23. That the Wife is substantially in need of
support from the Husband and the Husband is
able to pay an amount of support on behalf of
the Defendant.
24. That the Court has taken into
consideration the provisions of the Equitable
Distribution Order entered by the Honorable
Judge Honeycutt on June 23, 2004.
25. That the sum of Nine Hundred Dollars
($900.00) per month is a fair and equitable
amount of alimony to award the Wife.
Based on its findings, the trial court made the following
conclusions of law:
1. That the Court has jurisdiction n [sic]
this matter, and all parties are properly
before the Court.
2. That the Court has made findings of fact
concerning each of the factures [sic] in NCGS
50-16.3(A) which are relevant to this case.
3. That based on an analysis of these
factors, the Court finds that the Defendant is
entitled to alimony.
4. That the Wife is also entitled to an award
of Attorney's fees.
The Court ordered Husband to pay alimony in the amount of $900.00
per month for ten years, with such payments made into the office of
the Clerk of Superior Court and to pay attorneys' fees to Wife's
attorney in the amount of $3,052.00. After careful consideration,
we conclude the facts found support neither the trial court's award
of alimony nor attorneys' fees. Accordingly, we remand for further
findings.
I. Alimony
“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).
Findings of fact are sufficient to support an award of alimony if
they address the ultimate facts at issue and show the trial court
properly applied the law. Id. It is the appellant's burden torecreate the proceedings below to allow this Court meaningful
review. Sauls v. Sauls, 288 N.C. 387, 391, 218 S.E.2d 338, 341
(1975); N.C.R. App. P. 9(a)(1)(e); 9(c). Where “[t]he record does
not contain . . . oral testimony” we presume that the findings of
fact are “supported by competent evidence.” Fellows v. Fellows, 27
N.C. App. 407, 408, 219 S.E.2d 285, 286 (1975). However, these
findings must be sufficiently detailed and specific to support the
conclusions of law. Rhew v. Rhew, 138 N.C. App. 467, 472, 531
S.E.2d 471, 474 (2000). Moreover, “a trial court's failure to make
any findings regarding the reasons for the amount, duration, and
the manner of payment of alimony violates N.C. Gen. Stat. §
50-16.3(A)(c).” Fitzgerald, 161 N.C. App. at 421, 588 S.E.2d at
522-23.
In this case, the trial court failed to make specific findings
as to 1) the accustomed standard of living of the parties prior to
separation, 2) the reasonable living expenses after separation, or
3) its reasons for the amount, duration and manner of payment of
alimony. Therefore, its findings support neither its conclusion of
law that Wife is a dependent spouse entitled to alimony nor its
award of the amount and manner in which such alimony is to be paid.
As we are unable to determine whether the trial court properly
applied the law, we must vacate the alimony award and remand for
further findings of fact and a proper determination of the amount
of alimony in accordance with those findings of fact. Rhew, 138
N.C. App. at 472, 531 S.E.2d at 474 (insufficient findings of factto support denial of alimony where order lacked findings about
accustomed standard of living and respective living expenses).
II. Attorneys' Fees
Section 50-16.4 provides for “an order for reasonable counsel
fees for the benefit of” the dependent spouse who is entitled to
alimony. N.C. Gen. Stat. § 50-16.4 (2005). Before granting such
an award, however, “the trial court must determine, as a matter of
law, that the spouse seeking the award is dependent, and that the
spouse is without sufficient means to subsist during the
prosecution of the suit and to defray the necessary expenses.”
Owensby v. Owensby, 312 N.C. 473, 475, 322 S.E.2d 772, 773-74
(1984).
Here, the trial court concluded that appellee is a dependent
spouse, but it failed to make any findings regarding whether Wife
was “without sufficient means to subsist during the prosecution of
the suit and to defray the necessary expenses.”
Id. Moreover, even
though the amount of attorneys' fees to be awarded is a matter
entrusted to the discretion of the trial court, the court must, in
making that decision, make findings to show its consideration of
the nature and worth of the services rendered by counsel.
Id. at
477, 322 S.E.2d at 775 (holding that the court was unable to review
for abuse of discretion because the trial court's findings lacked
“a basis for determining the reasonableness of the counsel fees
awarded.”). Here, the trial court made no findings to show its
consideration of Wife's ability to defray the costs of the suit,
making it impossible for this Court to review the reasonableness ofthe award. Accordingly, on remand, the trial court must make
findings of fact sufficient for a determination of whether Wife is
entitled to an award of attorneys' fees and the reasonableness of
the amount of any such award.
Vacated and remanded.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
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