Opinion
No. COA02-1283
Filed 05 August 2003 This case not for pulication
Appeal by plaintiff from judgment entered 11 June 2002 by Judge J. Stanley Carmical in Robeson County District Court. Heard in the Court of Appeals 4 June 2003.
Foil Law Office, by Beth Poinsett Von Hagen and N. Joanne Foil, for plaintiff-appellant. Ivey A. Barnhill, pro se.
Robeson County No. 98 CVD 127.
Plaintiff and defendant married each other for the third time on 28 July 1981. At the time of their third marriage, plaintiff was living in North Carolina and defendant was living in Florida. The parties kept separate residences throughout the marriage and would visit each other on a regular basis.
On 15 January 1998, plaintiff filed a complaint seeking an absolute divorce from defendant based on a one-year separation. Defendant filed an answer and counterclaim responding to allegations in plaintiff's complaint and seeking divorce from bed and board, post-separation support, permanent alimony, equitable distribution of marital property and attorney's fees. Plaintiff amended his complaint and responded to defendant's counterclaim, requesting the trial court make an equitable distribution of the parties' marital property and deny defendant's other counterclaims.
On 19 February 1999, the trial court awarded plaintiff an absolute divorce from defendant in a judgment reserving the issues of equitable distribution, post-separation support and alimony. On 15 February 2002, a trial was held regarding the equitable distribution of the parties' marital property and alimony. The trial court entered a judgment on the distribution of marital property on 11 June 2002. It found that an equal division of marital property was equitable and concluded that defendant was entitled to a distributive award of $4,264.00 to equalize the division of marital property.
On 11 June 2002, the trial court also entered an alimony judgment in favor of defendant concluding that she was the dependent spouse and plaintiff was the supporting spouse with the ability to pay alimony. It awarded defendant alimony of $700.00 per month for a period of 60 months and further ordered plaintiff to pay defendant $4,000.00 in attorney's fees.
In its alimony judgment, the trial court found that defendant's alimony claim had no bearing on the equitable distribution judgment and that it took the equitable distribution judgment into consideration when it decided the alimony claim pursuant to N.C. Gen. Stat. § 50-16.3A(a). Plaintiff appealed the alimony judgment and attorney's fees award; however, there is no appeal from the equitable distribution judgment.
I.
Plaintiff first argues the trial court committed reversible error in awarding alimony to defendant. Specifically, plaintiff contends there was insufficient evidence to support the trial court's findings and conclusions that defendant was a dependent spouse and that plaintiff was a supporting spouse and had the ability to pay alimony. He further asserts that the trial court's findings of fact are insufficient to support the amount of the alimony award and that the trial court abused its discretion in awarding defendant alimony in the amount of $700.00 per month.
An alimony award involves two separate inquiries: entitlement and amount. N.C. Gen. Stat. § 50-16.3A (2001). If the trial court properly determines one spouse is entitled to alimony, it then must determine the amount of the alimony award. Barrett v. Barrett, 140 N.C. App. 369, 536 S.E.2d 642 (2000). This Court reviews the trial court's determination as to entitlement de novo and examines the amount of the alimony award for abuse of discretion. Id.
A party is entitled to receive alimony if he or she shows: "(1) that party is a dependent spouse; (2) the other party is a supporting spouse; and (3) an award of alimony would be equitable under all the relevant factors [including those set out in N.C. Gen. Stat. § 50-16.3A(b)]." Id. at 371, 536 S.E.2d at 644; see also N.C. Gen. Stat. § 50-16.3A(a). A dependent spouse is one "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) (2001). Similarly, a supporting spouse is one "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." N.C. Gen. Stat. § 50-16.1A(5).
Our Supreme Court has held that "actually substantially dependent" means "the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation." Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980) (emphasis omitted). The trial court is required to compare the parties' incomes and expenses, Bryant v. Bryant, 139 N.C. App. 615, 534 S.E.2d 230, disc. review denied, 353 N.C. 261, 546 S.E.2d 91 (2000), and determine whether one spouse is "without means to maintain his or her accustomed standard of living," Williams, 299 N.C. at 183, 261 S.E.2d at 856. "Alimony is ordinarily determined by a party's actual income, from all sources, at the time of the order." Kowalick v. Kowalick, 129 N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998) (emphasis omitted) (citation omitted).
The trial court made the following pertinent findings of fact:
9. The Plaintiff does suffer from a variety of physical ailments. At this time, the Plaintiff is incapable of gainful employment and is incapable of earning any significant income except for his Military retirement, his Civil Service retirement and his Social Security. Although the Plaintiff is incapable of gainful employment, the Plaintiff is currently receiving approximately $1,254.00 per month from his Military retirement, the sum of $605.00 per month from his civil service retirement, and the sum of $533.00 per month from his Social Security retirement benefits. The Plaintiff has a total gross income of approximately $2,392.00 per month.
10. The Defendant is approximately sixty-six (66) years old. The Defendant is presently working part time but has a total income in the total amount of approximately $733.00 per month. Although the Defendant suffers from a variety of physical ailments, the Defendant is not disabled at this time.
11. The Plaintiff has filed an affidavit of income and expenses that shows he has income in the approximate amount of $2,392.00 per month. This Court finds that the Plaintiff's financial affidavit is reasonable, considering the duration of the marriage, the standard of living of the parties during the marriage, and the income and expenses of the Plaintiff and the Defendant during the marriage.
12. The Defendant has filed an affidavit of income and expenses that shows she has an income of approximately $733.00 per month. The Court finds that the Defendant's affidavit is reasonable, considering the duration of the marriage, the standard of living of the parties during the marriage, and the income and expenses of the Plaintiff and the Defendant during the marriage.
Defendant testified at the alimony hearing that in addition to her $733.00 per month retirement and social security benefits, she earned approximately $688.00 per month from her part-time employment. Despite this uncontroverted testimony, the trial court found defendant's monthly income totaled only $733.00. Although the trial court referred to the parties' affidavits, it did not make the required comparison of their incomes and expenses to determine whether defendant was without the means to maintain her accustomed standard of living. Without the proper findings, it is unclear how the trial court made its determination that defendant was actually substantially dependent on plaintiff for support.
Because the trial court failed to consider defendant's part-time earnings or to make specific findings regarding defendant's gross income and expenses, we hold the findings do not support the conclusion that defendant was the dependent spouse and, therefore, the trial court erred in determining defendant was entitled to alimony. Since we are remanding this case for further findings of fact on the issue of alimony entitlement, we do not reach the question of the amount of the alimony award.
II.
Plaintiff further contends the trial court abused its discretion and committed reversible error in awarding defendant attorney's fees because the findings of fact support neither defendant's entitlement to attorney's fees nor the amount awarded.
A spouse will be entitled to attorney's fees if he or she is "(1) the dependent spouse, (2) entitled to the underlying relief demanded . . . and (3) without sufficient means to defray the costs of litigation." Barrett, 140 N.C. App. at 374-75, 536 S.E.2d at 646; see also N.C. Gen. Stat. § 50-16.3A(a). Whether a spouse is entitled to attorney's fees is a question of law fully reviewable on appeal to this Court. Barrett, supra. The amount of the attorney's fees award is reviewed for abuse of discretion. Id.
An award of attorney's fees rests, in part, upon a proper finding that one party is the dependent spouse. Because we have held the trial court erred in its determination that defendant was the dependent spouse, we also hold the trial court erred in concluding defendant was entitled to attorney's fees. Moreover, there are no findings to support the conclusion that defendant has insufficient means to defray the costs of litigation. Friend-Novorska v. Novorska, 143 N.C. App. 387, 545 S.E.2d 788, aff'd per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001) (remanding for further findings where the trial court made no finding that the dependent spouse was without means to defray the costs of litigation); Quick v. Quick, 53 N.C. App. 248, 280 S.E.2d 482 (1981) (holding that the dependent spouse must show she needs counsel fees to place her on equal footing with her husband by making it possible to retain adequate legal representation), rev'd on other grounds, 305 N.C. 446, 290 S.E.2d 653 (1982). If, upon remand, the trial court properly determines defendant is entitled to attorney's fees, it should then determine the amount to which she is entitled.
We vacate the judgment awarding defendant alimony and attorney's fees and remand this matter to the trial court for entry of an order containing the required findings of fact consistent with this decision. On remand, the trial court may, in its discretion, receive additional evidence. Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d 471 (2000).
Vacated and remanded.
Judges TIMMONS-GOODSDON and HUDSON concur.
Report per Rule 30(e).