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Divorce--alimony-_modification of alimony--conclusions of law--findings of fact
The trial court did not abuse its discretion in the amount it reduced defendant's alimony
obligation because: (1) defendant did not assign error to any of the trial court's conclusions of
law, and therefore waived his right to challenge the conclusions; and (2) the findings of fact are
deemed to be supported by competent evidence when the transcript was incomplete, appellant
has the duty to see the record is properly prepared and transmitted, and an appellate court is not
required to and should not assume error by the trial judge when none appears on the record
before the appellate court.
Judge TYSON dissenting in a separate opinion.
No brief filed for plaintiff-appellee.
Shanahan Law Group, by Brandon S. Neuman and Kieran J. Shanahan, for defendant-appellant.
David Dodson (defendant) appeals from an order modifying alimony. We affirm.
Deborah Dodson (plaintiff) and defendant (collectively, the parties) were married on 8 October 1977 and separated on 28 January 2002. Prior to the parties' divorce on 30 April 2004, plaintiff filed a complaint for post separation support, alimony, and attorney's fees and the parties entered into an arbitration agreement regarding alimony, equitable distribution, and attorney's fees. At the time of the arbitration hearing on 10 May 2004, twoof the parties' three children had reached the age of majority, and two of them lived with the plaintiff. One of the children living with the plaintiff was home-schooled at the age of 18 and the other was the parties' minor child with severe medical conditions requiring supervision.
Since the plaintiff was unemployed, the arbitrator imputed the plaintiff's income at the rate of $6.00 per hour for 30 hours a week and determined the plaintiff's reasonable and necessary living expenses were approximately $2,330.00 per month. The arbitrator further determined the defendant had the ability to pay alimony in the amount of $2,200.00 per month based on his salary and monthly expenses. On 4 June 2004, the arbitrator ordered the defendant to pay alimony in the amount of $2,200.00 per month for 10 years as well as attorney's fees in the amount of $5,739.99. On 16 July 2004, the trial court confirmed the arbitrator's decision regarding the amount and the duration of the alimony and awarded attorney's fees.
On 17 August 2004, defendant filed motions for tax exemptions and a modification of the alimony award and alleged a change in circumstances. The circumstances included, inter alia, the children were no longer minors, the plaintiff's monthly income was actually higher and defendant's income was substantially lower than the amounts the arbitrator had determined.
On 12 August 2005, the trial court denied the motion requesting dependency tax exemptions for the 2003 and 2004 tax years because all three children had reached the age of majorityand the defendant's child support obligation had terminated. On that same date, the trial court granted defendant's motion for modification of alimony due to his reduction in income. His monthly alimony payments were modified to $1,826.00 per month.
On 22 August 2005, defendant filed a motion to reconsider the 12 August 2005 order modifying alimony. The trial court denied most of defendant's requests by orders on 10 February 2006, and preserved the previous alimony order of $1,826.00 per month. From the 12 August 2005 order, defendant appeals.
On appeal, defendant brings forth several arguments relating to the alimony award. Decisions regarding the amount of alimony are left to the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a manifest abuse of that discretion. See e.g., Bookholt v. Bookholt, 136 N.C. App. 247, 249-50, 523 S.E.2d 729, 731 (1999) (citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)). An abuse of discretion occurs when the ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (internal quotations omitted).
The review of the trial court's findings of fact are limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573 (1990) (quoting Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986)). [T]he trial court's conclusions of law arereviewed de novo by this Court. State v. Ripley, 360 N.C. 333, 339, 626 S.E.2d 289, 293 (2006).
The defendant must assign error to each conclusion he believes is not supported by the evidence, or the conclusions will be deemed binding on appeal. N.C. R. App. P. 10 (2006); see also Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). Failure to assign error to such conclusions of law constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts. Fran's Pecans at 112, 516 S.E.2d at 649; see also In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005).
In the case sub judice, the defendant does not assign error to any of the trial court's conclusions of law and therefore waived his right to challenge the conclusions. Hence, the conclusions of law are binding and the trial court's order should be affirmed. Furthermore, it is difficult for this Court to determine if the findings of fact were supported by competent evidence because the transcript is incomplete. Specifically, only 36 of over 100 pages of the transcript were included in the record. Under N.C. R. App. P. 9(c)(2) (2007), a partial transcript is allowed provided that when the verbatim transcript is designated to show the testimonial evidence, so much of the testimonial evidence must be designated as is necessary for an understanding of all errors assigned. Id. It is the duty of the appellant to see that the record is properly prepared and transmitted. Tucker v. Telephone Co., 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980) (quoting Hill v. Hill, 13 N.C.App. 641, 642, 186 S.E.2d 665, 666 (1972)). Further, the appellant has the duty to ensure that the record is complete. Faulkenberry v. Faulkenberry, 169 N.C. App. 428, 430, 610 S.E.2d 237, 239 (2005) (citing Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997)).
Here, the incomplete transcript in the record is inadequate under N.C. R. App. P. 9(c)(2) and prevents this Court from determining the context of some of the responses in the selected transcript. Although the sections of the transcript that were provided properly address some of the assignments of error, without access to all the evidence presented to the trial court, it is impossible for this Court to understand all the errors assigned by the defendant.
Absent a complete transcript, it is impossible for this Court to determine whether or not the challenged findings of fact are supported by the evidence, therefore, we assume that the findings are in fact supported. An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court. State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). Based on the exclusions of the transcript, we cannot review the defendant's assignments of error that allege the trial court erred in making findings of fact that were not supported by competent evidence. See Pharr at 139, 479 S.E.2d at 34 (concluding that the appellant failed to include relevant portions of the transcript and therefore, this Court would not speculate as to error by the trial court). Accordingly, thetrial court's findings of facts are deemed to be supported by competent evidence. This assignment of error is overruled.
Judge WYNN concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
The majority's opinion affirms the trial court's order and holds: (1) defendant failed to assign error to any of the trial court's conclusions of law and those conclusions are binding on appeal and (2) defendant's assignments of error cannot be reviewed due to an incomplete transcript. I disagree and respectfully dissent.
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