Opinion
No. 07-1340.
Filed April 15, 2008.
Wilson County No. 00CVD1513.
Appeal by Defendant from order entered 30 July 2007 by Judge William G. Stewart in Wilson County District Court. Heard in the Court of Appeals 20 March 2008.
Elizabeth B. McKinney, for Plaintiff-Appellee. W. Michael Spivey, for Defendant-Appellant.
Jerry Russell Bailey (Defendant) appeals from order entered 30 July 2007, and subsequent amendment, denying Defendant's motion to reduce or terminate alimony and awarding Plaintiff attorneys' fees. We affirm in part and reverse in part.
The evidence tends to show that on 17 August 1974, Defendant and Pamela Willis Bailey (Plaintiff) were married, and Defendant and Plaintiff lived together as husband and wife until 13 September 2000. On 27 September 2000, Plaintiff filed a complaint alleging that Defendant abandoned Plaintiff, removed their financial assets, and committed adultery. Plaintiff further alleged that she "[had] been left without sufficient means to subsist[,] . . . [and] is and continues to be the dependent spouse[.]" Plaintiff prayed that the court grant Plaintiff the following: (1) a divorce pursuant to N.C. Gen. Stat. § 50-7; (2) equitable distribution of the marital property pursuant to N.C. Gen. Stat. § 50-20; and (3) postseparation support and alimony pursuant to N.C. Gen. Stat. § 50-16.A3 and N.C. Gen. Stat. § 50-16.A2.
On 28 August 2001, the trial court ordered that Defendant pay Plaintiff alimony in the amount of $1,100.00 per month for a period of ten years, beginning 1 June 2001, and that Defendant pay Plaintiff attorneys' fees in the amount of $2,500.00. The court also granted Plaintiff "exclusive use and possession of the marital residence[.]"
On 15 December 2006, Defendant filed a motion for reduction or termination of alimony payments to Plaintiff pursuant to N.C. Gen. Stat. § 50-16.9, alleging a substantial change in circumstance justifying a modification and reduction of the court's order requiring alimony. Defendant's motion alleged the following substantial changes of circumstance: (1) the equitable distribution "increas[ed] [Plaintiff]'s income while reducing [Defendant]'s income[;]" (2) Plaintiff's income increased by $1,033.00 per month, due to a military retirement benefit that she received as a result of a previous marriage; (3) Defendant's income has minimized due to his move from Florida to North Carolina; and (4) Plaintiff's expenses and "ability to work" changed. The trial court found that Defendant's income had been reduced due to his "increased standard of living[,]" and Plaintiff's monthly expenses, standard of living, and earned income had not substantially changed since the entry of the alimony order.
On 19 January 2007, the court entered an equitable distribution order, and on 22 January 2007, Plaintiff filed a motion to dismiss Defendant's claims for modification or termination of alimony. Plaintiff also prayed that the court order Defendant to pay the reasonable costs of attorneys' fees.
On 30 July 2007, the court entered an order concluding that Plaintiff "remains the dependent spouse" and Defendant "remains the supporting spouse[.]" The court found that "[t]he circumstances of the parties have not changed substantially since the entry of the [original] alimony Order[,]" and that "the Defendant has not met his burden in showing a substantial change of circumstances so as to warrant modification of the Order." After considering the factors set forth in N.C. Gen. Stat. § 50-16.1-16.10, the court denied Defendant's motion to modify or terminate alimony. The court also found that "[b]oth parties requested the other pay their respective attorneys' fees[,]" and ordered that "[n]either party is entitled to an award of attorneys['] fees."
On 10 August 2007, the court amended its 30 July 2007 order, awarding Plaintiff $1,000 in attorney's fees and stating that the "[o]rder contained a clerical error which needs to be corrected in order to properly reflect the judgment of the Court, pursuant to Rule 60[(a)] of the N.C. Rules of Civil Procedure[.]"
Defendant appeals from the order of the trial court entered 30 July 2007 denying Defendant's motion to reduce or terminate alimony and subsequent amendment granting Plaintiff attorneys' fees.
Pursuant to N.C. Gen. Stat. § 50-16.9 (2007), "[a]n order of a court of this State for alimony or postseparation support . . . may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." In general, the change of circumstances required for modification of an alimony order "must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay." Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). The same factors used in making the initial alimony award should be used by the trial court when hearing a motion for modification. Id. "[T]he overriding principle in cases determining the correctness of alimony is fairness to all parties." Marks v. Marks, 316 N.C. 447, 460, 342 S.E.2d 859, 867 (1986) (internal quotation marks omitted).
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) (2007). 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). North Carolina's appellate courts are deferential to trial courts in reviewing their findings of fact. "When a trial court sits as the trier of fact, the court's findings and judgment will not be disturbed on the theory that the evidence does not support the findings of fact if there is any evidence to support the judgment, even though there may be evidence to the contrary." Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 599, 516 S.E.2d 169, 173 (1999); see also Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (stating that "when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact").
Motion to Decrease Alimony
In his first argument, Defendant contends that the trial court's findings of fact were not sufficient to support its conclusion that a material change of circumstances was not shown in this case. Defendant specifically argues that, contrary to the court's conclusions of law, the "court's findings in this case clearly show a substantial change of circumstances." Defendant further argues that the trial court erred by failing to make adequate findings of fact regarding Plaintiff and Defendant's "current circumstances and those that existed at the time of the prior order." We disagree with both contentions.
In the instant case, the trial court made the following pertinent findings of fact:
3. There was entered an Order in this matter on May 24, 2001 which set the amount of alimony the Defendant is to pay Plaintiff in the amount of $1,100.00 per month. At this time, in addition to his gross weekly salary of $750.00 at Federal Express in Jacksonville, Florida, Mr. Bailey was receiving $1,292.00 from his 1711 Vineyard Drive, Apartment #8, Wilson, NC 27893 military pension for a total annual income of $54,504.00 per year.
4. That the Defendant filed a Motion for Termination of Alimony dated December 15, 2006, in which he sought to reduce or terminate the payment of alimony to the Plaintiff.
5. Since the entry of the original alimony Order the equitable distribution matter between the parties has been heard and an Order entered in the marital and divisible property of the parties has been divided and the Plaintiff will be receiving 26.96% of the defendant's military benefits and will receive approximately $441.00 per month as her portion of the Defendant's military benefits.
6. Since the entry of the original alimony Order, the Plaintiff has begun receiving additional income in the form of a military pension from her first marriage in the amount of $1,033.00 per month. The Plaintiff has also made substantial repairs to the marital residence she received as part of the equitable distribution Order. . . .
. . . .
8. The Defendant has continued his employment with the Girl Scouts of America and receives [sic] over 73% of his military retirement for an annual income of $51,437.00. Since the entry of the original alimony order, the Defendant has purchased a boat and trailer, has accumulated substantial savings in his bank account, and has increased his standard of living slightly from the original alimony hearing. The Defendant produced an affidavit of living expenses, and the Plaintiff introduced evidence of the assets owned by the Defendant.
9. The Plaintiffs average monthly expenses, standard of living, health issues and work income have remained approximately the same as set forth in the original alimony Order and she is still working at the same job she was working at the original alimony hearing. The Plaintiff tendered to the Court an affidavit of income and expenses which included the income received from a military pension from her first husband's death. Without the alimony paid to the Plaintiff by the Defendant, the Plaintiff will be unable to meet her reasonable monthly expenses as set forth in her affidavit.
10. The Plaintiff continues to be substantially dependent upon the Defendant for maintenance and support, and the Defendant continues to be able to provide the alimony as ordered.
11. The circumstances of the parties have not changed substantially since the entry of the alimony Order entered on May 24, 2001, and the Defendant has not met his burden in showing a substantial change of circumstances so as to warrant modification of the Order.
12. The Court's refusal to modify the alimony Order by reducing or terminating the alimony paid by the Defendant to the Plaintiff is equitable.
The court also entered the following pertinent conclusions of law:
2. The Plaintiff remains the dependent spouse and the Defendant remains the supporting spouse. Their financial circumstances are as set forth above and the facts found herein are incorporated by reference to the extent that they represent conclusions of law.
3. The refusal to modify the alimony payment of the Defendant to the Plaintiff is equitable considering all relevant factors[.]
The court ordered that "[t]he Defendant's motion to reduce or terminate alimony is denied."
"A conclusion of a substantial change in circumstances based solely on a change in income is inadequate and erroneous." Medlin v. Medlin, 64 N.C. App. 600, 602, 307 S.E.2d 591, 592 (1983) (citation omitted); see also Harris v. Harris, ___ N.C. App. ___, ___, 656 S.E.2d 316, 322 (2008) (citing Britt v. Britt, 49 N.C. App. 463, 472, 271 S.E.2d 921, 927 (1980)) (stating that "[t]he fact that the husband's salary or income has been reduced substantially does not automatically entitle him to a reduction in alimony or maintenance"). "The extant overall circumstances of the parties must be compared with those at the time of the award to determine whether a substantial change has occurred." Medlin, 64 N.C. App. at 602-03, 307 S.E.2d at 593. Where conflicting evidence regarding expenses or income is presented, it is within the trial court's discretion as a finder of fact to determine which evidence is credible. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) . Here, the trial court's findings of fact were based upon sufficient evidence from the record. In addition, the findings of fact support the trial court's conclusions of law. We find no abuse of discretion in the trial court's conclusion that no change of circumstances justifying modification of alimony occurred. Defendant did not carry his burden of proving that his present overall circumstances, compared with his circumstances at the time of the award, entitled him to a reduction in payments. The court therefore did not err in refusing to modify the order.
Defendant also contends that the court erred in failing to make certain other findings and resultant conclusions. We conclude that the material findings are supported by competent evidence. The court is not required to find all facts supported by the evidence, but only sufficient material facts to support the judgment. See Medlin, 64 N.C. App. at 602, 307 S.E.2d at 592 (citations omitted). The associated assignments of error are overruled.
Attorneys' Fees
In his second argument, Defendant contends that the trial court erred in amending its 30 July 2007 order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(a) (2007), to award attorneys' fees to Plaintiff. We agree.
N.C. Gen. Stat. § 50-16.4 states that "[a]t any time that a dependent spouse would be entitled to alimony pursuant to G.S.50-16.3A, or postseparation support pursuant to G.S. 50-16.A2, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony." (emphasis added). Our Supreme Court has held:
"The clear and unambiguous language of the statutes . . . provide as prerequisites for determination of an award of counsel fees the following: (1) the spouse is entitled to the relief demanded; (2) the spouse is a dependent spouse; and (3) the dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof."
Swain v. Swain, ___ N.C. App. ___, ___, 635 S.E.2d 504, 508-09 (2006) (quoting Rickert v. Rickert, 282 N.C. 373, 378, 193 S.E.2d 79, 82 (1972)), disc. review denied, 361 N.C. 437, 649 S.E.2d 897 (2007). "`[T]he trial court must set out the findings of fact upon which the award is made.'" Swain, ___ N.C. App. at ___, 635 S.E.2d at 509 (quoting Self v. Self, 37 N.C. App. 199, 201, 245 S.E.2d 541, 543 (1978)).
Here, on 30 July 2007, the trial court stated that "[b]oth parties requested the other pay their respective attorneys' fees[,]" and the court ordered that "[n]either party is entitled to an award of attorneys' fees." However, on 10 August 2007, the court amended its 30 July 2007 order, awarding Plaintiff $1,000 in attorney's fees and stating that the "[o]rder contained a clerical error which needs to be corrected in order to properly reflect the judgment of the Court, pursuant to Rule 60(1) of the N.C. Rules of Civil Procedure[.]" Rule 60(a) states that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders." "While Rule 60[a] allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment." Food Service Specialists v. Atlas Restaurant Management, 111 N.C. App. 257, 259, 431 S.E.2d 878, 879 (1993). "A change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order." Buncombe County ex rel. Andres v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993).
Because we find nothing in the record to support an assertion that the original order did not correctly reflect the initial ruling of the trial court, we conclude that the trial court's amendment granting Plaintiff attorneys' fees changed the effect of the original order and did not constitute the correction of a clerical error pursuant to Rule 60(a). See Vandooren v. Vandooren, 27 N.C. App. 279, 218 S.E.2d 715 (1975) (holding that the trial court's amendment of an alimony pendente lite order to provide that rentals from a guest house should be credited against the amount of alimony was not remedying a clerical error but was instead changing the judgment); see also Taylor v. Cadle, 130 N.C. App. 449, 455, 502 S.E.2d 692, 696 (1998) (holding that because no attorneys' fees were awarded in an initial court order, the court was not required to make findings regarding attorneys' fees in an amended order, and the court's failure to do so was not an omission under Rule 60(a)); Catawba County Bank v. Porter, ___ N.C. App. ___, ___, 655 S.E.2d 473, 475 (2008) (holding that Rule 60 is an improper mechanism for obtaining review of alleged legal error).
For the foregoing reasons, we affirm the court's order entered 30 July 2007, and reverse the portion of the court's amended order entered 10 August 2007 awarding Plaintiff attorneys' fees.
Affirmed in part; Reversed in Part.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).