Opinion
No. COA15–378.
01-19-2016
Alan EPLEY, Plaintiff, v. Fern INGBER, Defendant.
Arnold & Smith, PLLC, by Kyle A. Frost, for plaintiff-appellant. Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Elizabeth J. James, for defendant-appellee.
Arnold & Smith, PLLC, by Kyle A. Frost, for plaintiff-appellant.
Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Elizabeth J. James, for defendant-appellee.
Opinion
Appeal by plaintiff from order entered 18 November 2014 by Judge David H. Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 24 September 2015. Mecklenburg County, No. 14–CVD–3636.
DIETZ, Judge.
Alan Epley and Fern Ingber separated on 17 September 2013 after 11 years of marriage. While married, Epley, a small business owner, and Ingber, a nonprofit executive, maintained a comfortable lifestyle that included international travel, fine dining, and attending upscale art and sporting events.
After separating, Epley sought post-separation support, contending that he had sold his business and no longer had the means to maintain his standard of living. The trial court denied Epley's request for post-separation support in an order containing detailed findings of fact and conclusions of law. Epley appealed that interlocutory order to this Court.
Our decision is largely constrained by the narrow standard of review. Epley disagrees with many of the trial court's factual findings about his income and expenses, but those findings are supported by competent evidence in the record. This Court is therefore bound by those findings, even if we might have reached a different result. In light of those factual findings, we hold that the trial court properly concluded that Epley is not a dependent spouse and is therefore not entitled to post-separation support.
Facts and Procedural History
Plaintiff Alan Epley and Defendant Fern Ingber married on 26 January 2002. During their marriage, Ingber worked as President and Chief Executive Officer of the National Children's Oral Health Foundation and Epley owned and operated Southern Glass and Plastic, Inc.
From 2006 through 2014, Ingber earned a gross annual income of approximately $265,950.00. In November 2012, Epley sold Southern Glass and Plastic, Inc. for $1.5 million. He received his last installment payment from its sale during November 2013 in the amount of $193,000 before taxes.
Epley and Ingber separated on 17 September 2013. On 28 February 2014, Epley filed a verified complaint for post-separation support, alimony, attorney fees, and equitable distribution. In the complaint, Epley alleged that he was a dependent spouse under N.C. Gen.Stat. § 50–16.1A because Ingber had the ability and earning capacity to pay his claim for post-separation support while his own monetary resources were not adequate to meet his reasonable needs. On 18 November 2014, the trial court entered an order denying Epley's request for post-separation support. Epley appealed this interlocutory order.
Analysis
I. Appellate Jurisdiction
The parties concede that this appeal is interlocutory and that interlocutory orders ordinarily are not immediately appealable. See Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975). But Epley contends that this order affects a substantial right and therefore is immediately appealable because it denies a request for post-separation support. See N.C. Gen.Stat. § 7A–27(b)(3) (2015). Epley relies on Mayer v. Mayer, where this Court found appellate jurisdiction over an interlocutory alimony order because “it involve [d] intriguing, if not novel, questions of law, and conflicting policy considerations.” 66 N.C.App. 522, 525, 311 S.E.2d 659, 662 (1984).
Of course, not every appeal from the denial of post-separation support or alimony will involve novel questions of law and conflicting policy considerations—this appeal being an example of one that does not. But although we are not persuaded that every appeal from the denial of post-separation would be immediately appealable under Mayer, we hold that Epley alleged sufficient facts to show that the order at issue here affects a substantial right. Accordingly, we find appellate jurisdiction and address the merits of the appeal.
II. Denial of Motion for Post–Separation Support
Our review of the trial court's denial of post-separation support is largely constrained by the standard of review. “In reviewing an order concerning post-separation support we must consider whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.” Sorey v. Sorey, ––– N.C.App. ––––, 757 S.E.2d 518, 51920 (2014) (internal citation omitted). Therefore, this Court is bound by factual findings of the trial court that are supported by competent evidence even if there is—in this Court's view-far more persuasive evidence supporting a contrary finding.
A. Findings of Fact
We begin with Epley's challenge to the trial court's findings of fact. Epley contends that a number of the trial court's findings are not supported by the record. We address each of his arguments in turn, remaining mindful of the narrow standard of review applicable to a challenge to the trial court's factual findings.
Epley first argues that the trial court's finding that his monthly gross income is $7,863.70 is not supported by the record. We disagree. Epley receives approximately $350 per month from rental payments for the use of his property's parking lots. He also receives $2,513.70 in gross monthly social security payments. Finally, Epley received $193,000 as an installment payment for the sale of his business, amounting to approximately $120,000 after taxes. The trial court pro-rated this payment and calculated that Epley would have access to approximately $5,000 per month from November 2013 to November 2015. The trial court added this monthly inflow of $5,000 to Epley's income from the parking rent and social security gross monthly income of $2,863.70 and determined that Epley's monthly income totaled $7,863.70. These sources of income all are supported by competent evidence in the record.
Epley also contends that the $193,000 installment payment for the sale of his business cannot be treated as income. Epley argues that “proceeds from the sale of an asset under both Federal and State income tax laws are not considered taxable income except to the extent the seller profits from the sale.” McKyer v. McKyer, 179 N.C.App. 132, 144, 632 S.E.2d 828, 835 (2006).
McKyer, however, specifically “reserve[d] for another day the decision how to treat ... the type of ‘gain’ realized from [a party's] sale of an asset like a business.” Id. And, in any event, McKyer addressed a different issue than whether one spouse is dependent on the other. That determination turns on whether the allegedly dependent spouse “is without means to maintain his or her accustomed standard of living.” Williams v. Williams, 299 N.C. 174, 183, 261 S.E.2d 849, 856 (1980). Here, the trial court found that a pro-rated monthly portion of the $193,000 installment payment from the sale of Epley's business was an available “means to maintain his accustomed standard or living.” Id. That finding is permitted by our precedent and likewise is supported by competent evidence in the record in this case.
Epley next challenges the trial court's finding that his housing, food and supplies, and gasoline expenses should be reduced below the amounts asserted in Epley's affidavit. Again, under the limited standard of review for factual findings, we hold that the trial court's findings are supported by competent evidence.
With regard to housing and rent, Ingber testified that Epley's apartment building was one of the most luxurious buildings in Charlotte, that it was far superior to her current apartment building, and that Epley and Ingber had agreed to move to another building upon their separation. This testimony was competent evidence supporting the trial court's decision not to fully credit Epley's rent expense claims in his affidavit.
With regard to food and supplies, when asked how his claimed $1,082 monthly expenses were used, Epley responded, “[d]ifferent supplies. Different things I need for the apartment. Possibly a lamp. Possibly different things to make life a little easier.” The vagueness of these statements is sufficient to support the trial court's decision not to fully credit Epley's affidavit and to reduce his claimed food and supplies expenses.
Finally, with regard to Epley's claimed $400 monthly expense for gasoline, the record shows that this expense resulted from Epley's frequent trips to Charleston to visit his new girlfriend. Ingber also testified that her own monthly gasoline expense was only $140. This evidence supported the trial court's decision not to fully credit Epley's affidavit because his claimed gasoline expenses were not necessary to maintain his standard of living from the marriage.
Epley next challenges the trial court's findings concerning various monthly expenses for leisure and travel. Again, we hold that the trial court's findings are supported by competent evidence. Epley claimed $649.50 in monthly golf expenses, but Ingber testified that Epley played golf “maybe four times a year when a friend asked him to play.” This supports the trial court's reduction in his claimed golf expenses.
Epley claimed $2,000 per month in travel expenses but Ingber testified that during the past five years, aside from trips to Scotland and Southern Asia, all of Epley's travel was part of Ingber's work-related travel and was related to and paid for by her employer. This testimony is competent evidence to support the trial court's findings.
Finally, the evidence discrediting Epley's other claimed expenses described above provided sufficient competent evidence for the court to reduce the clothing, charitable contributions and professional services expenses as well. Sorey, ––– N.C.App. at ––––, 757 S.E.2d at 521 (“When an application is made for post-separation support ... It is elementary that the fact finder may believe all, none, or only part of a witness' testimony.”) (citations and internal quotations omitted). Accordingly, we affirm the trial court's findings of fact.
In sum, we hold that the challenged findings were supported by at least some competent record evidence. Accordingly, under the applicable standard of review, we must affirm these findings.
B. Conclusions of Law
Epley next argues that the trial court erred by concluding that he was not a dependent spouse. We reject this argument and hold that the trial court's conclusion is supported by its findings.
A dependent spouse is one who must be either “actually substantially dependent upon the other spouse” or “substantially in need of maintenance and support from the other spouse.” N.C. Gen.Stat. § 50–16.1A(2). Dependency should be based on the parties' standard of living, the present employment income and other recurring earnings of each party from any source, each party's income-earning abilities, debt, living expenses, and legal obligations to support other persons. N.C. Gen.Stat. § 50–16.2A(b)
As explained above, the trial court concluded that Epley was not a dependent spouse based on its findings that, while maintaining his standard of living, he had a monthly income of $7,863.70 and monthly expenses of $7,365.21. These findings support the trial court's conclusion that Epley is not “substantially in need of maintenance and support” from Ingber. The court found that Epley had sufficient income to meet his own maintenance and support needs, and, in light of his monthly income and expenses, the ability to maintain his accustomed standard of living without financial contribution from Ingber. Thus, Epley did not satisfy the legal definition of a dependent spouse, and the trial court properly rejected his claim for post-separation support.
Conclusion
The trial court's order denying post-separation support is affirmed. AFFIRMED.
Judges HUNTER JR. and DILLON concur.
Report per Rule 30(e).