Opinion
No. COA03-771
Filed April 6, 2004 This case not for publication
Appeal by defendant from order entered 25 February 2003 by Judge Peter L. Roda in Buncombe County District Court. Heard in the Court of Appeals 4 March 2004.
Roger T. Smith for plaintiff-appellee. Robert E. Riddle, P.A., by Robert E. Riddle and Andrea F. Dray, for defendant-appellant.
Buncombe County, No. 01 CVD 6058.
Lee Greenleaf (defendant) appeals from the trial court's order awarding Linda Greenleaf (plaintiff) alimony. Defendant and plaintiff were married on 2 October 1981 and separated on 7 July 2001. Plaintiff filed a complaint seeking post-separation support, alimony, divorce from bed and board, and equitable distribution on 27 November 2001. On 21 March 2003, Judge Earl J. Fowler issued an Order for Post Separation Support. On 6 February 2003, Judge Peter L. Roda entered an Equitable Distribution Judgment, granting each party an equal share in the marital estate.
A hearing on the issue of alimony was held on 17 February 2003. On 25 February 2003, Judge Roda entered an order awarding plaintiff permanent alimony. In its order, the trial court made the following five findings of fact:
1. That the Defendant, Lee Greenleaf was employed as a service manager and earned over $7,500.00 per month in 2002. He is now employed as a service manager in a different location earning approximately the same amount of income.
2. That the Plaintiff, Linda Greenleaf, was not employed at the time of the hearing but had the ability to earn $1500.00 per month which the Court will attribute to her in determining alimony.
3. That Defendant filed an affidavit showing $5243.00 in monthly expenses. That $2000.00 of his expenses are for maintenance of a residence in Charlotte, North Carolina, which is being sold. That over $900.00 additional expenses are for payments on credit card debts and store debts.
4. That Plaintiff filed an affidavit showing $4833.23 in monthly expenses. That $675.00 of this expense is for a condominium in Tucson, Arizona, which could be rented to cover expenses. That an additional $1050.00 was to cover credit card debts and a debt to her parents.
5. That Roger Smith, Counsel for Plaintiff, has rendered valuable services to the Plaintiff, which are reasonably worth $2162.50.
These were the only findings made by the trial court. Based upon these findings, the trial court made a single conclusion of law: "That the Plaintiff shall recover permanent alimony from the Defendant." The court then entered its order awarding plaintiff permanent alimony in the amount of $2,200.00 per month until she reaches sixty-two years of age, at which time the amount is reduced to $1,300.00 per month until defendant reaches age sixty-two, when the payment is reduced to $400.00 per month.
In his first, second and eighth assignments of error, defendant contends that the trial court erred in failing to designate whether plaintiff was a dependent spouse and whether defendant was a supporting spouse. We agree.
Only a dependent spouse is entitled to alimony in North Carolina. N.C. Gen. Stat. § 50-16.3A (2003). A dependent spouse is a spouse 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." N.C. Gen. Stat. § 50-16.1A(2) (2003). A supporting spouse is a spouse "upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support." N.C. Gen. Stat. § 50-16.1A(5). "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. . . ." N.C. Gen. Stat. § 50-16.3A(a). A spouse is "actually substantially dependent" if he or she is currently "without means of providing for his or her accustomed standard of living." Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 855 (1980). The "accustomed standard of living" is determined by the "last several years prior to separation." Id. A spouse is "substantially in need" when he or she will be unable to "maintain his or her accustomed standard of living (established prior to separation) without financial contribution from the other." Id. at 181-182.
In deciding the question of dependency, the trial court should consider the factors relevant to the amount and duration of alimony, including the accustomed standard of living prior to separation, the income and expenses of each spouse, and the value of each spouse's estate. Id. at 183; see also 2 Suzanne Reynolds, Lee's North Carolina Family Law §§ 9.8-9.9 (5th ed. 1999) (applying Williams to determination of dependency under the current alimony statute). The trial court's findings of fact must be sufficiently detailed to satisfy a reviewing court that it has considered "all relevant factors." Rhew v. Rhew, 138 N.C. App. 467, 472, 531 S.E.2d 471, 474 (2001).
In the case at bar, the trial court's findings of fact are not sufficiently specific to suggest it considered "all relevant factors" in making its determination. See id.; N.C. Gen. Stat. § 50-16.3A. Although there are findings regarding the relative income and expenses of the parties, there are no findings with respect the parties' accustomed standard of living prior to separation, the contribution of each party to the marriage's financial status, or the value of the parties' relative estates. Accordingly, the trial court's findings cannot support a conclusion that plaintiff is the dependent spouse or that defendant is the supporting spouse, and the trial court's order awarding alimony to plaintiff must be reversed and remanded for more detailed findings of fact. See Hunt v. Hunt, 112 N.C. App. 722, 727, 436 S.E.2d 856, 860 (1993).
In defendant's fifth assignment of error, he argues the trial court erred by failing to include in its findings of fact the various statutory factors to support an award of alimony under N.C. Gen. Stat. § 50-16.3A(b). In his ninth assignment of error, defendant specifically challenges the trial court's failure to make a finding regarding marital misconduct under N.C. Gen. Stat. § 50-16.3(b)(1). We agree.
The alimony statute requires the trial court to consider "all relevant factors" in determining the amount and duration of alimony, including sixteen factors specified in the statute. N.C. Gen. Stat. § 50-16.3A(b) (2003). If evidence is offered on a specific factor set forth in subsection (b), subsection (c) requires the court to make specific findings of fact as to that factor. Id. § 50-16.3A(c).
A review of the record indicates that evidence was offered on the following factors set forth in N.C. Gen. Stat. § 50-16.3A(b): marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages and the physical, mental and emotional conditions of the spouses; the amount and sources of income of both spouses; the duration of the marriage; the standard of living of the spouses established during the marriage; the relative education of the spouses; the relative assets and liabilities of the spouses; the contribution of plaintiff as a homemaker; and the relative needs of the spouses. On remand the trial court must make specific findings of facts on these factors, as required by N.C. Gen. Stat. § 50-16.3A(c).
In his remaining assignments of error, defendant challenges specific findings made by the trial court. "Where trial is by judge and not by jury, the trial court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991).
In his third assignment of error, defendant argues that the trial court erred in finding that he was earning approximately the same monthly income that he earned in 2002. We agree.
The uncontroverted evidence indicated that defendant worked as an automotive service manager during 2002. Defendant attached two W-2 Wage and Tax Statements for 2002 to his alimony affidavit. The first W-2 indicates that he earned $94,887.76 at Imports Automotive Company. The second W-2 shows earnings of $1,500.00 from Steve White Motors. Thus, the combined amount defendant earned during 2002 was $96,387.76, which amounts to approximately $8,032.31 gross monthly income.
The evidence also indicated that defendant is currently working as a service manager for a new employer, earning $750.00 per week plus a monthly commission based on the net profit of his department. Defendant earned $14,660.00 in salary and commission from 5 December 2002 until 14 February 2003, a period of ten weeks. Thus, his earnings were about $1,466.00 per week ($14,660.00 divided by ten weeks), or $6,303.80 per month. This sum is not "approximately the same amount of income" as defendant was earning in 2002. In fact, the evidence indicates that defendant is earning $1,728.51 less per month than he earned during 2002. Therefore, we conclude the evidence does not support the court's findings regarding defendant's income, and we remand this matter for findings of fact based on defendant's actual current earnings.
In his seventh assignment of error, defendant argues the trial court erred by including monthly payments on a life insurance policy insuring the lives of plaintiff's son and granddaughter in plaintiff's individual expenses. We note that the trial court has much discretion in determining which expenses are relevant to calculating alimony. See Reynolds, supra § 9.7, at 293-94. However, as noted above, the trial court failed to make sufficient findings regarding the various relevant factors, including the parties' standard of living during the marriage and their relative needs. On remand, therefore, the trial court should make specific findings of fact explaining whether or not it considered the monthly life insurance payments relevant to its award of alimony. In his fourth assignment of error, defendant argues the trial court erred in failing to make a finding of fact as to whether or not plaintiff was able to obtain employment. We disagree.
The trial court's second finding of fact clearly acknowledges that although plaintiff was not working, she "had the ability to earn $1500.00 per month which the Court will attribute to her in determining alimony." The trial court's finding is sufficient to satisfy the requirements of N.C. Gen. Stat. § 50-16.3A(b)(2) and Williams with regard to plaintiff's earning capacity at the time of the alimony hearing. This assignment of error is without merit.
In his sixth assignment of error, defendant argues the trial court erred in failing to make a finding that plaintiff could derive income from the rental of her condominium unit in Arizona. We disagree.
The trial court made a finding of fact that "$675.00 of [plaintiff's] expense is for a condominium unit in Tucson, Arizona, which could be rented to cover expenses." Thus, the trial court's order indicates that it considered the evidence regarding the condominium unit's potential to produce income for plaintiff. This assignment of error is without merit.
In his tenth assignment of error, defendant argues the trial court abused its discretion with regards to the amount and duration of alimony. As discussed above, the award of alimony must be reversed and the order remanded for the trial court for more specific findings of fact, including a more accurate finding as to defendant's current income. Thus, we do not reach this assignment of error.
Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).