THERESA GRINER KUNZE,
Plaintiff-Appellee,
v
.
Cabarrus County
No. 01-CVD-2466
STEVEN WAYNE KUNZE,
Defendant-Appellant.
Hartsell & Williams, P.A., by Christy E. Wilhelm, for
plaintiff-appellee.
Ferguson, Scarbrough, Hayes & Price, P.A., by James E.
Scarbrough, for defendant-appellant.
McGEE, Judge.
Theresa Griner Kunze (plaintiff) and Steven Wayne Kunze
(defendant) were married 13 February 1982 and divorced 16 December
2002. Four children were born of the marriage. Plaintiff filed a
complaint for child custody, child support, and alimony on 29
October 2001. By order entered 23 October 2002, defendant was
ordered to pay child support in the amount of $1,542.76 per month
and post-separation support in the amount of $1,269.00 per month.
An order for permanent alimony was entered 19 May 2003, which
required defendant to pay $1,404.76 per month. The order also
instructed defendant to seek review of alimony after plaintiff
received her undergraduate degree from the University of NorthCarolina at Charlotte, or at the end of the 2004 spring semester,
whichever occurred first. At that time, upon motion by defendant,
the trial court would consider whether to modify or terminate the
current award of alimony.
Defendant filed a motion on 21 June 2004 seeking termination
of his alimony obligation. By motion filed 2 February 2005,
defendant also sought modification of his child support obligation.
Defendant's motions were heard on 7 February 2005. At the
time of the hearing, defendant had remarried, but plaintiff had
not. Defendant's monthly income had increased from $6,973.73 at
the time of the prior order to $8,563.50 at the time of the
hearing. Defendant and his new wife sold defendant's mobile home
and purchased a new home with monthly payments of $1,411.83; they
also purchased two new vehicles with monthly payments of $912.50.
Defendant's new wife had monthly income of $3,050.00. Plaintiff's
gross monthly income was $2,244.00, including an anticipated bonus.
After hearing evidence, the trial court entered an order on 5 May
2005 modifying defendant's alimony and child support obligations.
Defendant was ordered to pay alimony in the amount of $950.00 per
month until 31 May 2013, and was ordered to pay child support in
the amount of $1,242.30 per month as of 1 August 2005. Defendant
appeals. Defendant's assignments of error pertain to the portion
of the order addressing alimony.
By his first assignment of error, defendant argues the trial
court abused its discretion in modifying the alimony award by
failing to refer to the circumstances and factors in the originalorder, and thereby increasing plaintiff's marital standard of
living. Defendant cites Britt v. Britt, 49 N.C. App. 463, 271
S.E.2d 921 (1980), to argue that the trial court should have
compared the circumstances of the parties at the time of the
hearing with the circumstances existing at the time of the original
alimony award in order to determine if there was a substantial
change in circumstances. However, Britt is inapplicable to the
present case. The rule in Britt applies to the trial court's
threshold determination of a substantial change in circumstances.
Britt at 474, 271 S.E.2d at 928 (holding that the present overall
circumstances of parties must be compared with the circumstances
existing at the time of the original award in order to determine if
there has been a substantial change in circumstances warranting
modification). Defendant does not assign error to the trial
court's conclusion that defendant met his burden of proving changed
circumstances. This assignment of error is overruled.
Defendant's next five assignments of error argued in his brief
state that five of the trial court's findings of fact were not
supported by the evidence. While defendant identifies assignment
of error number six as being argued in his brief, no argument, in
fact, is made in defendant's brief as to that assignment of error.
Accordingly, assignment of error number six is deemed abandoned.
N.C.R. App. P. 28(b)(6). Defendant argues the following five
findings of fact are unsupported by the evidence:
15. The Plaintiff testified that she has
expenses of $2,384.78 after pro-rating her
family's monthly expenses between herself and
her four minor children. These figures arebased on actual expenses and are in accordance
with the parties accustomed standard of living
during the marriage. Specifically,
[plaintiff] testified that her and the
children's monthly expenses are as follows:
. . . .
16. The Court finds that the expenses provided
in Paragraph 15 above are reasonable. Thus,
the Plaintiff has reasonable monthly expenses
totaling $2,384.72.
17. The Defendant testified that he and his
current wife have reasonable monthly expenses
of $9,192.60. [Defendant] pro-rated these
expenses at sixty-two percent (62%) for
himself and thirty-eight percent (38%) for his
current wife. Using this formula, [defendant]
determined that his monthly expenses total
$6,923.97. The Defendant did not provide a
reasonable explanation as to why he divided
the expenses 62%/38%.
. . .
19. The Plaintiff is living below the standard
of living that she was accustomed to during
the marriage. She has relied, in part, on
gifts from family and friends and credit card
use to meet her monthly expenses.
. . .
21. The Defendant is capable of making a
permanent alimony payment of $950 per month.
In alimony cases where a trial court sits without a jury, the
trial court must "find the facts specially and state separately its
conclusions of law thereon[.]" N.C. Gen. Stat. § 1A-1, Rule
52(a)(1)(2005). The trial court must find "specific ultimate facts
. . . sufficient for [an] appellate court to determine that the
judgment is adequately supported by competent evidence."
Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26,
28 (1977). Findings of fact required to support the amount of analimony award are sufficient if the findings address the ultimate
facts at issue and show the trial court properly applied the law.
Friend-Novorska v. Novorska, 143 N.C. App. 387, 395, 545 S.E.2d
788, 294, affirmed, 354 N.C. 564, 556 S.E.2d 294 (2001).
Defendant argues that finding of fact number fifteen, a list
of plaintiff's expenses, is merely a recitation of testimony and
not a finding of ultimate facts at issue. Mere recitations of
testimony do not constitute ultimate findings of fact by the trial
court because "they do not reflect the processes of logical
reasoning required by [N.C.G.S. §] 1A-1, Rule 52(a)(1)."
Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476,
479, 366 S.E.2d 705, 707 (1988) (internal quotation omitted). We
agree with defendant that finding fifteen contains a mere
recitation of testimony. However, the trial court's next finding
of fact, number sixteen, is an ultimate finding that references the
expenses enumerated in finding fifteen. In so doing, finding of
fact number sixteen is sufficient to show the trial court's process
of logical reasoning in finding plaintiff's expenses. See id.
Similarly, we find that finding of fact number eighteen is
sufficient to show that the trial court's finding number seventeen,
although a recitation of testimony, is the result of the trial
court's reasoning in finding defendant's expenses.
Defendant disputes only one of plaintiff's expenses listed in
finding fifteen: $239.93 for anticipated orthodontic work.
Defendant argues his original child support obligation included all
orthodontic expenses, and therefore the children's orthodontic workwas not an expense to be incurred by plaintiff. Under the original
order, defendant was obligated to maintain the children on his
health care insurance plan and to pay eighty-nine percent of any
health care expenses, including dental expenses, not covered by his
insurance. However, no evidence was presented at the modification
hearing as to whether defendant's dental insurance covered the
children's orthodontic procedures. If defendant's insurance did
not cover orthodontics, then plaintiff would incur eleven percent
of the uninsured cost. Plaintiff anticipated that defendant's
insurance would not cover the entire cost of the children's
orthodontics, and included $239.93 per month as her share of the
orthodontic expenses. In finding sixteen, the trial court found
this expense to be reasonable. However, upon review of the record,
we find no competent evidence to support the trial court's finding
that the plaintiff would incur this or any orthodontic expenses.
The trial court's finding of orthodontic expenses in finding number
fifteen is therefore erroneous.
Defendant further argues there was no evidence to support
finding nineteen, that plaintiff was living below the standard to
which plaintiff was accustomed during the marriage. We disagree.
Finding nineteen is supported by plaintiff's testimony that her
expenses exceeded her income and alimony payments, and that she
relied upon credit cards and gifts from family and friends to
purchase household necessities and to meet expenses. This
assignment of error is overruled.
In finding twenty-one, the trial court found that defendantwas capable of paying $950.00 per month in alimony. Defendant does
not contest that his gross monthly income at the time of the
hearing was $8,563.50, an increase from defendant's $6,973.73 gross
monthly income at the time of the prior order. Moreover, defendant
does not dispute the trial court's finding that defendant's alleged
expenses at the time of the hearing were unreasonable. However,
defendant argues that the trial court failed to make a specific
finding as to what amount of defendant's expenses was reasonable.
We agree and remand for further findings as to defendant's
reasonable living expenses at the time of the modification hearing.
The trial court, upon making such findings, shall determine the
amount of alimony in accordance with those findings of fact.
We also remand for findings as to the duration of defendant's
alimony obligation. In conclusion five, the trial court stated
that "the circumstances render it necessary" for defendant to make
alimony payments until 31 May 2013. However, the trial court made
no findings as to why defendant's obligation should continue until
31 May 2013. Pursuant to the express provisions of N.C. Gen. Stat.
§ 50-16.3A(c) (2005), a trial court making an alimony award must
set forth "the reasons for its amount, duration, and manner of
payment." Failure to make any findings regarding the reasons for
the amount, duration, or manner of payment violates the alimony
statute. Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 421, 588
S.E.2d 517, 522-23 (2003). Accordingly, we remand for further
findings of fact on the trial court's reasons for the duration of
defendant's alimony obligation. See Cunningham v. Cunningham, 171N.C. App. 550, 615 S.E.2d 675 (2005) (remanding for further
findings concerning the duration of an alimony award); Fitzgerald
(remanding for further findings of fact explaining the trial
court's reasoning for the duration of alimony award and method of
payment).
Defendant's assignment of error number twelve, not argued in
defendant's brief on appeal, is deemed abandoned pursuant to N.C.R.
App. P. 28(b)(6).
Vacated and remanded.
Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).
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