Appeal by defendant from an order entered 23 February 2005
nunc pro tunc
6 January 2005 by Judge James H. Faison, III in
Pender County District Court. Heard in the Court of Appeals 10 May
Lea, Rhine, Rosbrugh & Chleborowicz, by Lori W. Rosbrugh, for
Lanier & Fountain, by John W. Ceruzzi, for defendant-
Donald Ray Helms (defendant) appeals from a final order,
entered 23 February 2005 nunc pro tunc 6 January 2005, awarding
Robin Joyce Helms (plaintiff) alimony and equitably distributing
the marital assets in plaintiff's action for post-separation
support, alimony, equitable distribution, and attorney fees. For
the reasons stated herein, we reverse the order of the trial court
and remand for further findings as to the award of alimony and
distribution of defendant's retirement account. The trial court made findings that the parties were married on
27 June 1981 and lived together as husband and wife for twenty-two
years. Plaintiff discovered that defendant was engaged in an
adulterous relationship that began three years prior to the
separation of the parties, despite defendant's previous denials of
an affair. The parties separated on 30 June 2003 when plaintiff
moved out of the marital home.
During the course of the marriage, plaintiff worked as a
dental assistant, earning $2,600.00 per month. Approximately one
month after separation, plaintiff lost her job due to a downsizing
at her place of employment. At the time of trial, plaintiff worked
as a secretary earning a monthly income of $1,256.00, and also had
a second job as a waitress, earning an additional average income of
$152.00 per month. Plaintiff was restricted in search for
reemployment as a dental assistant due to the development,
documented by her treating physician, of carpal tunnel syndrome in
both of her wrists. Plaintiff testified that her necessary monthly
average living expenses were $2,035.00.
Defendant retired from the North Carolina State Highway Patrol
after twenty-six and one-half years of service. At the time of the
parties' separation in June 2003, defendant received a monthly
retirement check for $1,670.91. Defendant also received a monthly
check for $837.46 from the North Carolina Department of Crime
Control and Public Safety in recognition of his more than twenty
years of service in law enforcement. Defendant was also employed
part-time, earning $831.04 monthly. In an order entered 23 February 2005, the trial court found
that plaintiff was a dependant spouse and defendant was a
supporting spouse, and that defendant had engaged in adultery
during the course of the marriage. The trial court ordered
defendant to pay plaintiff $350.00 monthly for post-separation
support until the sale of the marital residence, at which time
defendant was ordered to begin paying plaintiff 41.5 percent of his
monthly retirement checks. The trial court also ordered that
plaintiff's share of $55,199.68 plus interest of defendant's
retirement account be transferred into her separate account.
Defendant appeals from this order.
Defendant first contends that the trial court committed error
by declaring plaintiff a dependent spouse and defendant a
supporting spouse. We agree.
N.C. Gen. Stat. § 50-16.3A(a) (2005), governing awards of
alimony, directs in part that:
The court shall award alimony to the dependent
spouse upon a finding that one spouse is a
dependent spouse, that the other spouse is a
supporting spouse, and that an award of
alimony is equitable after considering all
relevant factors, including those set out in
subsection (b) of this section.
. N.C. Gen. Stat. § 50-16.1A(2) (2005) defines a dependant
spouse as 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. Id
. A supporting spouse isdefined by N.C. Gen. Stat. § 50-16.1A(5) as a spouse, whether
husband or wife, upon whom the other spouse is actually
substantially dependent for maintenance and support or from whom
such spouse is substantially in need of maintenance and support.
The standard of review for a trial court's finding that a
party is entitled to alimony is de novo
. Barrett v. Barrett
N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000). In determining
whether a spouse is dependant, our Supreme Court has established
several factors for consideration: (1) the parties' accustomed
standard of living prior to the separation, (2) the parties'
respective income and expenses at the time of trial, (3) the
respective value of the spouses' estates, if any, at the time of
the hearing, and (4) the length of the marriage and each party's
contribution to the family's financial status over the course of
the marriage. Williams v. Williams
, 299 N.C. 174, 183-85, 261
S.E.2d 849, 856-57 (1980). Because the determination of
dependency requires application of legal principles, it is a
conclusion of law, and the trial court must base this determination
on 'findings of fact sufficiently specific to indicate that the
court considered the factors set out in Williams
.' Hunt v. Hunt
112 N.C. App. 722, 726, 436 S.E.2d 856, 859 (1993) (citations
omitted). A failure to make findings
regarding the accustomed standard of living of
the parties prior to the separation, the
expenses of each party at the time of the
trial, the value of each party's estate at the
time of the hearing, or of the contributioneach party made to the financial status of the
family during the course of the marriage
indicates that the trial court has failed to consider the Williams
factors and will not support a conclusion that one party is a
dependent and the other a supporting spouse. Hunt
, 112 N.C. App.
727, 436 S.E.2d at 860.
Here, while the trial court made findings as to plaintiff's
and defendant's respective incomes at the time of separation and at
the time of hearing, and as to plaintiff's reasonable living
expenses at the time of hearing, the trial court failed to make
findings as to the parties' accustomed standard of living prior to
the separation, or as to defendant's total living expenses at the
time of the hearing. See Knott v. Knott
, 52 N.C. App. 543, 546,
279 S.E.2d 72, 75 (1981) (stating [i]t is clear then that a mere
comparison of plaintiff's expenses and income is an improperly
shallow analysis . . . in . . . determin[ing] whether plaintiff is
a dependent spouse). As the point in evaluating the parties'
accustomed standard of living is to consider the pooling of
resources that marriage allows, findings that merely set out the
parties' separate estates during the marriage are insufficient to
support a conclusion that plaintiff is a dependant spouse and
defendant is a supporting spouse. Rice v. Rice
, 159 N.C. App. 487,
501, 584 S.E.2d 317, 326 (2003).
As the trial court failed to make sufficient findings of the
parties' standard of living prior to separation and defendant's
current expenses so as to permit a determination of whetherplaintiff is a dependant spouse and defendant is a supporting
spouse, we 'cannot appropriately determine whether the order of
the trial court is adequately supported by competent evidence, and
therefore such an order must be reversed and the case remanded for
necessary findings.' Rhew v. Rhew
, 138 N.C. App. 467, 470, 531
S.E.2d 471, 473 (2000) (citation omitted).
Defendant next contends that the trial court erred in
determining the respective shares of the parties' 401K retirement
account. We agree.
[N.C. Gen. Stat. §] 50-20(c) requires the trial court to
determine what is marital property, then to find the net value of
the property and finally to make an equitable distribution of that
property. Soares v. Soares
, 86 N.C. App. 369, 371, 357 S.E.2d
418, 419 (1987). Marital property includes all vested and
nonvested pension, retirement, and other deferred compensation
rights[.] N.C. Gen. Stat. § 50-20(b)(1) (2005). A trial court
must value all marital and divisible property--collectively termed
distributable property--in order to reasonably determine whether
the distribution ordered is equitable. Cunningham v. Cunningham
___ N.C. App. ___, ___, 615 S.E.2d 675, 680 (2005). Therefore,
when no finding is made regarding the value of an item of
distributable property, a trial court's findings are insufficient
even if a determination is made with respect to the percentage of
a distributable property's value to which each party is entitled.
. Here, both parties concede that the record does not reveal how
the trial court arrived at the figure of $55,199.68 as plaintiff's
share of defendant's individual retirement account, as no evidence
as to the date of separation value of the account appears in the
record. As no finding was made regarding the value of the account,
the trial court's findings are insufficient and we remand for
further evidentiary findings as to this matter.
As the findings of fact are insufficient to support the trial
court's conclusions that plaintiff is a dependant spouse and
defendant is a supporting spouse, and to support the specific
monetary award of plaintiff's share of defendant's 401K account, we
reverse the order and remand for further findings in accordance
with this opinion.
Reversed and remanded.
Judge BRYANT concurs.
Judge CALABRIA concurs in the result only.
Report per Rule 30(e).
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