An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1005

NORTH CAROLINA COURT OF APPEALS

Filed: 20 June 2006


JANNIE M. WALKER,
Plaintiff,

    v.                            New Hanover County
                                No. 00 CVD 3315
ERNEST B. WALKER,
Defendant.

    Appeal by Plaintiff from an order entered 18 April 2005 by Judge Shelly S. Holt in New Hanover County District Court. Heard in the Court of Appeals 6 March 2006.
    Hosford & Hosford, P.C., by Sofie W. Hosford, for Plaintiff- Appellant.

    Lea, Rhine, Rosbrugh & Chleborowicz, by Lori W. Rosbrugh, for Defendant-Appellee.

    STEPHENS, Judge.

    Plaintiff appeals from an order of the trial court dated 5 October 2004, but not filed until 18 April 2005, awarding her alimony in the amount of $2,500.00 per month for a nine-month period from 1 December 2002 through 1 August 2003, and then $750.00 per month thereafter until Plaintiff dies, remarries or “cohabitates [sic].” In support of her appeal, Plaintiff challenges the sufficiency of the evidence to sustain certain of the trial court's findings of fact, and the sufficiency of the findings of fact to support certain of the court's conclusions oflaw and the alimony award. For the reasons stated herein, we reverse the trial court's determination and remand for further proceedings.
    Plaintiff and Defendant were married on 25 June 1966. They separated on 11 September 2000 and were divorced on 18 January 2002. Their children were emancipated by age throughout these proceedings. Defendant was the owner and operator of an Allstate Insurance Agency, and Plaintiff, although unemployed at hearing, had worked during the marriage as a nurse. Each was sixty years old when the case was heard and appeared to be “in excellent health.”
    Among others, issues pertaining to alimony were heard by the trial court on 6 May 2002 and, on 5 December 2002, the court entered judgment awarding alimony to Plaintiff in the amount of $2,000.00 per month for nine months and then $750.00 monthly thereafter “until Plaintiff dies, remarries, or cohabits with another man.”   (See footnote 1)  From that judgment, Plaintiff appealed to this Court and, on 20 July 2004, this Court filed an unpublished opinion affirming in part and reversing in part the judgment of the trialcourt. Walker v. Walker, 165 N.C. App. 547, 600 S.E.2d 900 (2004).
    Specifically, this Court reversed and remanded the alimony award because the trial court's judgment failed to contain any findings of fact regarding Plaintiff's accustomed standard of living before the parties' separation or her reasonable living expenses since the separation, even though evidence on both issues was offered at trial. Id. In addition, this Court noted the absence of findings regarding Defendant's relative income and expenses, and the cost, duration or effectiveness of additional training Plaintiff might require to resume gainful employment. Id. Accordingly, this Court vacated the alimony award and remanded this case back to the trial court for further findings of fact and a determination of the amount of alimony based on those findings of fact, as required by N.C.G.S. § 50-16.3A(c). Id. On remand, the trial court was given discretion to receive additional evidence or to enter a new order on the basis of the evidence presented at the 6 May 2002 hearing. Id.
    The parties did not offer, and the trial court did not request, additional evidence. Thus, on the basis of the evidence already before it, on 5 October 2004, the trial judge signed a new order entitled “Alimony Order on Remand.” That order was thenfiled on 18 April 2005.   (See footnote 2)  To address the alimony issues on remand, the trial court made the following pertinent findings of fact:
9.    Plaintiff . . . had previously been employed as a professional nurse by the Onslow County Board of Education from August 15, 1985 through September 25, 2001, when she was terminated from her position due to her own fault. At the time of her termination, Plaintiff earned $39,000.00 per year, or $3,350.00 per month. Since being terminated from employment with the Onslow County Board of Education, Plaintiff periodically earned $20 per hour as an on-call PRN with a local nursing home.

10.    At the time of this hearing, the Plaintiff has a reasonable earning potential of $1,500.00 per month. Plaintiff would need a refresher course in order to return to nursing in a hospital setting, which she could complete in approximately nine (9) months at minimal costs. The Plaintiff has been awarded sufficient assets to cover the cost of the refresher course.

11.    The Plaintiff testified that her monthly living expenses were $15,193.09. The Court has examined these monthly expenses and finds that many of these expenses were either paid by the Defendant, were expenses associated with marital assets not being assigned to Plaintiff in equitable distribution, or not actually incurred by the Plaintiff at the time of the hearing. The Court finds that monthly expenses of $4,000.00 for thePlaintiff are reasonable in light of the standard of living established by the parties during the marriage. The Court has considered the income the Plaintiff will receive from the Equitable Distribution of the marital property, including the income that will be produced by and from the distributional payment, the Allstate Savings and Profit Sharing Fund, and one-half of the Defendant's Allstate Pension, as well as Plaintiff's reasonable earning potential of $1,500.00 and finds that the Plaintiff's reasonable monthly expenses exceed her income and that she is in need of alimony.

12.    The Defendant earns an average of $8,450.00 per month from his Allstate Insurance Agency, after deducting reasonable and necessary business expenses of $8,020.00, federal and state income taxes, and social security taxes. From this “net income” Defendant pays $2,621.00 in personal living expenses, which the Court finds to be reasonable, $3,507.00 per month towards the parties' unsecured marital debt, and $1,600.00 per month towards the parties' back taxes. Defendant also pays $1,641.47 towards the parties' marital real estate debts, but the Court finds that $1,185.00 of that amount is paid towards the parties' two (2) River Landing lots, which the Defendant indicates he will sell. Accordingly, the Court finds that the Defendant has net monthly disposable income of at least $263.99.

. . . .

        14.     In accordance with N.C.G.S. § 50- 16.3A(b), the Court found the following factors relevant in determining the amount, duration and manner of payment ofalimony:
     a. The relative earnings and earning capacities of the parties- The Plaintiff is a registered nurse but has been unemployed since September 25, 2001 and her present earning capacity is impacted by these circumstances. At the time of her termination from employment, Plaintiff earned $39,000.00 per year. The Plaintiff has the present ability to earn at least $1,500.00 per month. . . .
     b. The amount and sources of earned and unearned income of both spouses- The Plaintiff received income producing property from the Equitable Distribution of the marital property, including income that will be produced by and from the distributional payment, the Allstate Savings and Profit Sharing Fund, and one- half of the Defendant's Allstate Pension (which is estimated to be $880.00 per month)

. . . .

     d. The relative debt service requirements of a spouse- The Defendant services virtually all the parties' marital debt at a monthly cost in excess of $5,000.00 and is ordered to do so under the equitable distribution provisions of the December 5, 2002 Order of this Court. This obligation greatly diminishes his disposable income.

. . . .

     f. The standard of living of the spouses during the marriage- The parties enjoyed a comfortable standard of living during the marriage. The Affidavits of Expenses presented by both parties are representative of their pre-date of separation lifestyle and reflect the accustomed standard of living enjoyed bythe parties during the marriage.

The trial court thereupon increased its previous alimony award to Plaintiff from $2,000.00 to $2,500.00 for the nine months from 1 December 2002 through 1 August 2003 and maintained its award of $750.00 per month beginning 1 September 2003. Plaintiff appeals.
    Plaintiff first argues that the trial court's “Alimony Order on Remand” contains insufficient findings of fact regarding Plaintiff's accustomed standard of living during the marriage. We agree.
    It is well settled that, pursuant to N.C.G.S. § 50-16.3A(b), the trial court “must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors [enumerated therein] . . . for a determination of an alimony award.” Lamb v. Lamb, 103 N.C. App. 541, 545, 406 S.E.2d 622, 624 (1991) (quotation omitted). 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 and the case remanded for necessary findings.” Talent v. Talent, 76 N.C. App. 545, 548- 49, 334 S.E.2d 256, 259 (1985) (citation omitted). For this reason, “[t]he requirement for detailed findings is thus not a mere formality or an empty ritual; it must be done.” Skamarak v. Skamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 562 (1986)(citation omitted).
    In Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000), this Court remanded an alimony order because the trial court failed to make sufficient findings of fact regarding the parties' standard of living during the marriage. The Rhew Court noted that although “substantial evidence” had been presented to the trial court from which specific findings on this issue could have been made, the trial court made no findings describing the parties' standard of living during the marriage beyond their contributions to retirement and stock. Id. at 470, 531 S.E.2d at 474.
    Similarly, in this case, Plaintiff offered substantial evidence regarding the lifestyle and standard of living to which she was accustomed during her marriage. For example, her lifestyle included an expensive home in a prestigious golf course community, a golf course membership, time share properties in Las Vegas and Hawaii, a condo in a beach community, monthly beauty appointments, vacations, luxury automobiles, regular contributions to her church, and gifts to friends and family. The existence of this evidence required the trial court, under N.C.G.S. §§ 50-16.3A(b)(8) and (c), to make “findings of fact that are sufficiently detailed to allow review.” Vadala v. Vadala, 145 N.C. App. 478, 479, 550 S.E.2d 536, 537 (2001) (citation omitted). However, other than findings that the parties “enjoyed a comfortable standard of living during themarriage[,]” that their respective Affidavits of Expenses were “representative of their pre-date of separation lifestyle and reflect the accustomed standard of living” they enjoyed, and that monthly expenses of $4,000.00 would be reasonable to attribute to Plaintiff “in light of the standard of living established by the parties during the marriage[,]” the trial court made no findings on this issue to assist this Court in reviewing the alimony award.
    “[T]he parties' needs and expenses for purposes of computing alimony should be measured in light of their accustomed standard of living during the marriage.” Barrett v. Barrett, 140 N.C. App. 369, 372, 536 S.E.2d 642, 645 (2000) (citation omitted). Plaintiff claimed that her monthly living expenses totaled $15,193.09. She concedes, however, that the existence of substantial marital debt, the majority of which was assigned to Defendant to pay, justifies some “tightening of the belt” with respect to the rather lavish lifestyle she enjoyed before separating from her husband. In other words, it is obvious from the debt which accompanied the lifestyle that Plaintiff will not be able to maintain the same standard of living her marriage provided. Nevertheless, we agree with Plaintiff that, to support the alimony award, the trial court must make specific findings as to why the amount of monthly living expenses the court attributed to Plaintiff is reasonable, including which expenses the court finds to be reasonable and why otherexpenses are unreasonable. It appears that the court rejected some of the monthly expenses claimed by Plaintiff on several grounds, including that the claimed expense was not actually incurred by Plaintiff. The lack of specificity of the order, however, precludes a determination of which expenses were rejected, much less why. Plainly, the amount of Plaintiff's reasonable monthly expenses is critical to the calculation of the alimony award. Given the discrepancy between the expenses claimed by Plaintiff and the amount the court believed was reasonable, it is equally as critical that the order contain specific findings on each factor that leads to the resulting alimony amount.
    Additionally, and for the same reasons, the court must make findings to explain its imputation to Plaintiff of $1,500.00 as her “reasonable earning potential[.]” Through specific findings which explain the court's determination of Plaintiff's reasonable monthly living expenses and imputed income, the court will be able to meet its statutory obligation to “set forth . . . the reasons for its amount[]” of alimony. N.C.G.S. § 50-16.3A(c) (2005). Finally, the court's order also must explain, through specific findings, the reasons for the duration of alimony awarded, both for the initial nine-month period of time and the remainder. Id.; Friend-Novorska v. Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998). As in Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 421, 588 S.E.2d 517,522 (2003), the trial court in the case at bar “did not make required findings as to the reasons for making the duration of the alimony continuous until [Plaintiff] dies, remarries, or cohabits[.]” Failure to make such findings violates N.C.G.S. § 50- 16.3A(c).
    Plaintiff next argues that the “Alimony Order on Remand” includes findings that are not supported by the evidence regarding the cost, duration, or effectiveness of additional training Plaintiff may require to resume gainful employment. Again, we agree.
    In addressing this issue, the court made the following finding: “Plaintiff would need a refresher course in order to return to nursing in a hospital setting, which she could complete in approximately nine (9) months at minimal costs.” The only evidence offered on this issue, however, was Plaintiff's testimony in response to questions regarding her employment status. Plaintiff testified that she had looked for jobs in nursing and “discovered” when she looked at opportunities with the hospital system that she did not have enough hospital experience. Consequently, to land a job in a hospital, Plaintiff opined that she would have to “go back to school and get a refreshercourse[.]”   (See footnote 3)  Contrary to the trial court's finding, there is no evidence in this record regarding how long it would take Plaintiff to complete a “refresher course” or how much such a course would cost. Moreover, while N.C.G.S. § 50-16.3A(b) requires the court to consider “the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs[,]” section 50-16.3A(c) requires a specific finding of fact on the subsection (b) factors only if “evidence is offered on that factor.”
Here, Plaintiff's offhand comment that if she were to consider nursing work in a hospital, she may have to pursue a “refresher” course first, does not constitute sufficient evidence to require a specific finding under section 50-16.3A(c), especially since Plaintiff worked primarily as a school nurse during her marriage. Additionally, Plaintiff's statement is plainly insufficient to support the finding the court made. While the prior remand of this case authorized the trial court to exercise its discretion to either receive additional evidence or to make the requisite findings of fact on the basis of the evidence already received, it is evident that findings cannot be made on nonexistent evidence. Thus, in its required consideration of this particular subsection(b) factor, if the court determined that Plaintiff needed additional education or training in order to be able to meet her reasonable economic needs, the court would have had no choice except to receive additional evidence. Having received no evidence upon which to base the finding of fact in dispute, that finding is therefore stricken.
    Plaintiff argues that, on further remand, the trial court should take additional evidence regarding the cost, duration and effectiveness of additional job training for her. Defendant objects to Plaintiff having “a third bite at the apple[.]” We are mindful of the length of time this case has already been in litigation and of the amount of time which has passed since the only evidentiary hearing that was held. However, since the case must be remanded for the reasons delineated above, we note that “[a]n 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.” N.C.G.S. § 50-16.9(a) (2005). There is thus an avenue for the parties to explore this issue further, if warranted.
    Next, Plaintiff challenges finding of fact twelve regarding Defendant's income and expenses and argues that this finding likewise is not supported by the evidence. In this finding, among other things, the court determined that Defendant paid $3,507.00toward the unsecured marital debt, that his reasonable monthly living expenses were $2,621.04, and that his net disposable monthly income, after deduction of his expenses and several items of marital debt payments, was “at least” $263.99. Plaintiff correctly points out that, whereas Defendant included $3,507.00 on his income and expense summary as the amount he paid each month toward unsecured marital debt, he testified at the hearing that, in fact, the payment was approximately $300.00 less. Further, during questioning of Defendant, Defendant's attorney suggested that the amount Defendant paid toward unsecured marital debt was $2,717.00 per month. These discrepancies require a determination by the trial court, but it appears uncontradicted that the amount Defendant paid toward unsecured marital debt was not as great as the court found in the order at issue. Additionally, it appears that the court included $456.47 as an amount that Defendant paid “towards the parties' marital real estate debts,” when, in fact, those payments were assumed by Plaintiff as part of the equitable distribution order. Correction of these errors will change the calculation of Defendant's net monthly disposable income. On remand, the trial court should revise this finding of fact to reflect accurate figures.
    Plaintiff also challenges Findings of Fact 14 b. and d. as insufficient to support the alimony award. For the reasonsdiscussed above, we agree and direct the trial court on remand to conform these findings to the evidence, resolving any credibility issues as it sees fit, and to make the findings sufficiently specific to explain the amount and duration of alimony awarded.
    Finally, Plaintiff argues that the trial court erred when it failed to direct the manner of payment of the alimony awarded. Section 50-16.3A(c) specifically requires the court to “set forth . . . if making an award, the reasons for its amount, duration, and manner of payment.” We thus agree with Plaintiff that, on remand, the trial court must determine the manner of payment of the alimony awarded from 1 December 2002 through 1 August 2003.
    Because this case is before this Court for the second time and must again be remanded for sufficient findings of fact to support the alimony award, we reiterate that the primary purpose of the statutory requirement is to permit effective appellate review in order to address the propriety of challenged alimony awards. With this objective in mind, the trial court should strive to find sufficiently specific facts so that there is no question as to how and why the court arrived at the amount of alimony awarded. We are aware of the heavy caseloads under which our district court judges labor and the many constraints on their time as a consequence. However, the statutory mandates of section 50-16.3A exist for obviously sound reasons and, when properly applied, can serve toreduce the amount of time invested by the parties and the courts in alimony cases.
    REVERSED AND REMANDED.
    Chief Judge MARTIN and Judge WYNN concur.
    Report per Rule 30(e).


Footnote: 1    Although in the original order the trial court limited cohabitation to being with “another man,” N.C.G.S. § 50-16.9 (2005) provides that cohabitation may also include “two adults dwelling together continuously and habitually in a . . . private homosexual relationship.”
Footnote: 2    The reason for the delay between the signing and the filing of the new order is not explained in the record before this Court.
Footnote: 3    She testified further that she had also looked for nursing jobs outside the hospital setting.

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