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1. Divorce--alimony--dependent spouse
The trial court did not err in an alimony case by its determination under N.C.G.S. § 50- 16.1A(2) that plaintiff was a dependent spouse, because: (1) the trial court's findings include a description of the real property owned by each of the parties as well as their personal savings, thus satisfying the requirement to consider the parties' estates; (2) the findings indicate the standard of living established during the marriage and plaintiff's need for more space in order to maintain the standard of living of the spouse seeking alimony in the manner to which that spouse became accustomed during the last several years prior to separation; and (3) while it is true that plaintiff owned a condominium in fee simple, plaintiff's ownership cannot be weighed without consideration of the past use and intended future use of the condominium.
2. Divorce--alimony--consideration of all relevant factors
The trial court erred in an alimony case by failing to consider all relevant factors in determining the amount, duration, and manner of payment of alimony as required by N.C.G.S. § 50-16.3A(b), and the award of alimony is vacated and remanded for additional findings on all income, including medical benefits and any other benefits that function as income, because the trial court made no findings with respect to plaintiff's medical benefits or potential income from her IRA, although evidence of the sources of income was presented at the hearing.
3. Divorce--alimony--stipulation--technical error
Although the trial court made a technical error in an alimony case by finding that the parties stipulated that there would be no evidence pertaining to marital misconduct or fault, the error does not require reversal, because: (1) although defendant contends plaintiff admitted marital misconduct and fault by failing to respond to defendant's counterclaim, N.C.G.S. § 50- 10(a) provides that the material facts in every complaint asking for a divorce shall be deemed to be denied whether the same shall be actually denied by pleading; and (2) while defendant is correct that the parties did not stipulate on the record that there would be no evidence of marital fault, neither party presented evidence of marital misconduct or fault.
4. Divorce--alimony--notice of hearing
The trial court did not err in an alimony case by allegedly holding the trial without notice even though defendant contends he thought the hearing on 1 May 2006 would be a status conference only because on 23 March 2006 defendant signed a memorandum of judgment/order which stated any potential alimony issue is set for hearing on 1 May 2006.
5. Appeal and Error--preservation of issues--failure to object
Although defendant husband contends the trial court erred in an alimony case by failing to require plaintiff wife to produce bank records, this assignment of error is dismissed, because: (1) N.C. R. App. P. 10(b)(1) requires a party to have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling the party desired the court to make in order to preserve a question for appellate review; and (2) defendant failed to make a timely request, objection, or motion at trial asking the court to enforce production of the bank records.
Judge JACKSON concurring in part and dissenting in part.
Robert L. Inge for plaintiff-appellee.
James A. Phillips, Jr., defendant-appellant, pro se.
MARTIN, Chief Judge.
Defendant appeals from an order filed 16 June 2006 ordering defendant to pay alimony of $700 per month to plaintiff for eleven years.
By judgment entered 9 March 2004, plaintiff and defendant were divorced. On 23 February 2005 the parties entered into a consent order providing for post separation support to be paid to plaintiff for twelve months, after which either party was given the right to calendar the issue of permanent alimony for hearing.
By agreement, the issue of alimony was set for hearing on 1 May 2006. After the hearing, the trial court determined that plaintiff was a dependent spouse substantially in need of maintenance and support, primarily so that she may obtain a suitable residence. The findings of fact noted that plaintiff owned a 930-square-foot condominium which had been and continues to be her mother's primary residence and which plaintiff's mother gifted to her for estate planning purposes. The court further found that plaintiff was living with her mother in the condominiumat the time of the hearing and that such living arrangement did not allow plaintiff to keep her organ or her piano at her residence, and instead plaintiff was renting a storage unit for those items, as well as some of her other personal belongings.
With regard to the standard of living of the parties during the marriage, the court found that the marital home had been over 2,000 square feet and in need of repairs, that the parties had lived comfortably but modestly, and that they enjoyed some luxuries. Additionally, the court found that, in 2005, plaintiff's income was $29,840, and defendant's income was $74,704, and that defendant's future earning capacity was substantial while plaintiff's earning capacity was not as substantial. The court also made findings regarding property owned by the parties and their respective savings. Upon these findings, the court entered an order awarding alimony to plaintiff. Defendant appeals.
JACKSON, Judge concurring in part and dissenting in part.
I concur fully with the majority opinion with the exception of the majority's conclusion regarding plaintiff's ownership of the condominium. Because I believe that the trial court failed to properly consider plaintiff's ownership of the condominium, I must respectfully dissent from the majority's conclusion that the trial court's findings satisfy the requirements set forth in section 50- 16.1A(2) of the North Carolina General Statutes and our SupremeCourt's opinion in Williams v. Williams, 299 N.C. 174, 183, 261 S.E.2d 849, 856 (1985).
In the instant case, the trial court found that [p]laintiff is currently living with her 83 year old mother in a 930[-square foot] condo. Plaintiff's mother purchased the home in 1982 and deeded it to plaintiff in 1993 for estate planning purposes. The trial court further found that although [p]laintiff does technically own this home, . . . it is her mother's residence and her mother will reside there for the remainder of her life. The majority opinion, in turn, finds no material fault with this finding.
Our courts have demonstrated a strong reluctance to impose restrictions upon title absent clear language to the contrary in the deed. See, e.g., Station Assocs., Inc. v. Dare County, 350 N.C. 367, 370, 513 S.E.2d 789, 792 ('The law does not favor a construction of the language in a deed which will constitute a condition subsequent unless the intention of the parties to create such a restriction upon the title is clearly manifested.' (quoting Washington City Bd. of Educ. v. Edgerton, 244 N.C. 576, 578, 94 S.E.2d 661, 664 (1956))), reh'g denied, 350 N.C. 600, 537 S.E.2d 494 (1999). Here, there is no language in the general warranty deed limiting plaintiff's use of the subject property in favor of her mother. It is clear that plaintiff and her mother intended that the resulting conveyance would result in an estate held in fee simple. In fact, the deed itself imposes the affirmative obligation upon plaintiff to expressly assume and agree to be bound by and comply with all of the covenants, restrictions, terms, provisions and conditions as set forth in the Declaration and the By- Laws and any rules and regulations made pursuant thereto including, but not limited to, the obligation to make payment of assessments for the maintenance and operation of the condominium project which may be levied against such unit.
No right is given to nor obligation imposed upon plaintiff's mother in the deed. She merely grants all of her interest in the condominium to plaintiff in fee simple according to the express terms of the deed.
Although plaintiff's mother continues to reside in the condominium and, as the trial court found, plaintiff and her mother intend that she reside there for the remainder of her life, the record is devoid of any indication that plaintiff's mother reserved a life estate in the property or that plaintiff has conveyed any legally cognizable interest in the property to her mother. It is undisputed that plaintiff holds the property in fee simple, but the trial court diminished the significance of this legal interest by referring to plaintiff's interest in the property as mere technical ownership _ a concept the majority correctly notes is not a legal concept. However, because she holds title to the property in fee simple, plaintiff has absolute dominion over the property and may utilize the property as she chooses. As our Supreme Court noted over a century ago,
[t]he right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. It consistsin the free use, enjoyment and disposal of all a person's acquisitions, without any control or diminution save only by the laws of the land.
Vann v. Edwards, 135 N.C. 661, 665, 47 S.E. 784, 786 (1904) (internal quotation marks and citation omitted). Although, the condominium may be, as the trial court found, the mother's residence, it remains her residence only so long as plaintiff permits. Plaintiff's mother's ability and right to reside in the condo is wholly subject to the whim and caprice of plaintiff. Cf. Nixon v. United States, 978 F.2d 1269, 1286 (D.C. Cir. 1992) ([T]he right to exclude others is perhaps the quintessential property right. Without this right, one's interest in property becomes very tenuous since it is then subject to the whim of others . . . . (internal citations omitted)).
I believe that the trial court erroneously failed to consider the significance of plaintiff's fee simple interest in the condominium and, thus, did not properly determine the parties' financial worth as required by our Supreme Court's opinion in Williams. See Williams, 299 N.C. at 183, 261 S.E.2d at 856. Therefore, I would remand the case for proper consideration of the true nature of plaintiff's ownership of the condominium and entry of corresponding findings of fact. Accordingly, I respectfully dissent as to this portion of the majority opinion.
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