Opinion
No. COA11–1600.
2012-08-7
Timmie FLORA, Plaintiff v. Susan FLORA, Defendant.
Mast, Mast, Johnson, Wells & Trimyer, P.A., by George B. Mast and Ephriam B. Wright, III, for the plaintiff. Thomas and Farris, P.A., by Albert S. Thomas, Jr. and Allen G. Thomas, for the defendant.
Appeal by plaintiff from order entered 2 August 2011 by Judge Joseph J. Harper, Jr., in Nash County District Court. Heard in the Court of Appeals 10 May 2012. Mast, Mast, Johnson, Wells & Trimyer, P.A., by George B. Mast and Ephriam B. Wright, III, for the plaintiff. Thomas and Farris, P.A., by Albert S. Thomas, Jr. and Allen G. Thomas, for the defendant.
THIGPEN, Judge.
Timmie Flora (“Plaintiff”) appeals from an order awarding permanent alimony to Susan Flora (“Defendant”). We must determine whether the trial court made the required findings of fact pursuant to N.C. Gen.Stat. § 50–16.3A(c) (2011). Because the trial court failed to make findings of fact concerning statutory factors for which evidence was presented and failed to state its reasons for the amount, duration, and manner of the alimony payments, we reverse and remand for additional findings of fact.
I. Factual and Procedural History
Plaintiff and Defendant were married on 3 December 1995 and separated on 20 June 2009. On 18 December 2009, Plaintiff filed a complaint for divorce from bed and board and equitable distribution. The parties subsequently entered into a consent order distributing their property. Following a hearing on the issues of alimony and attorney's fees, on 2 August 2011 the trial court entered an order that, inter alia, directed Plaintiff to pay Defendant $900.00 per month as permanent alimony until Defendant reached retirement age and began drawing Social Security. Plaintiff appeals from the portion of the order awarding permanent alimony.
Although neither party raised this issue on appeal, we note that the order incorrectly states “Defendant shall pay Plaintiff the amount of $900 per month as permanent alimony[,]” rather than stating that Plaintiff shall pay Defendant alimony. Considering the order as a whole, this appears to be a clerical error as the trial court found as fact that “Defendant needs financial assistance” and that “Plaintiff has the obligation and ability to contribute to the financial needs of Defendant.” On remand, we direct the trial court to correct these errors. See State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696 (2008) (stating that “[w]hen, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth”) (citations and internal quotation marks omitted).
On appeal, Plaintiff contends the trial court abused its discretion by failing to (I) make sufficient findings of fact regarding the factors listed in N.C. Gen.Stat. § 50–16.3A(b) and (II) set forth the reasons for the amount, duration, and manner of alimony payment as required by N.C. Gen.Stat. § 50–16.3A(c).
II. Analysis
We review a trial court's decision on the amount of alimony to be awarded for an abuse of discretion. See Barrett v. Barrett, 140 N.C.App. 369, 371, 536 S.E.2d 642, 644 (2000). “An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.” Hartsell v. Hartsell, 189 N.C.App. 65, 68, 657 S.E .2d 724, 726 (2008) (citation omitted).
Plaintiff first contends the trial court violated N.C. Gen.Stat. § 50–16.3A by failing to make required findings of fact regarding the factors enumerated under N.C. Gen.Stat. § 50–16 .3A (b). We agree.
N.C. Gen.Stat. § 50–16.3A(b) provides that “[i]n determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors[,]” including the sixteen factors listed by the statute. N.C. Gen.Stat. § 50–16.3A(c) provides that with the exception of motions where the Rules of Civil Procedure do not require specific findings, “the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.”
Plaintiff contends, and we agree, that the trial court erred when it failed to make findings of fact concerning statutory factors for which evidence was presented at the hearing in violation of N.C. Gen.Stat. § 50–16.3A(c). Specifically, the record reveals that evidence was presented at the hearing regarding the parties' relative ages; educational levels; amounts and sources of income; relative debt service requirements; and the contribution of Plaintiff as a homemaker. The trial court, however, made no findings of fact with respect to any of this evidence. SeeN.C. Gen.Stat. § 50–16.3A(b); see also Friend–Novorska v. Novorska, 131 N.C.App. 867, 870, 509 S.E.2d 460, 462 (1998) (stating that “[s]ince the parties have offered evidence on that factor [of marital misconduct], the trial court was required, by the express terms of the statute, to make specific findings that the existence of the factor was or was not supported by the greater weight of the evidence”), aff'd per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).
Because the trial court did not make findings of fact concerning N.C. Gen.Stat. § 50–16.3A(b) factors for which evidence was presented as required by N.C. Gen.Stat. § 50–16.3A(c), we reverse the order and remand this case for further findings of fact. Specifically, the trial court is to enter an order containing findings of fact concerning all of the N.C. Gen.Stat. § 50–16.3A(b) factors for which evidence was presented.
Plaintiff also contends that the trial court's order fails to establish that the court considered the factors enumerated in N.C. Gen.Stat. § 50–16.3A(b) and that the portion of finding of fact number 11 regarding Defendant's standard of living fails for lack of specificity. Because we remand for additional findings of fact, we will not address these arguments.
We also note that N.C. Gen.Stat. § 50–16.3A(c) requires that the trial court shall, if making an alimony award, set forth “the reasons for its amount, duration, and manner of payment.” Here, the trial court made the following alimony award:
Defendant shall pay Plaintiff the amount of $900.00 per month as permanent alimony beginning the first day of June 2011 and continuing thereafter due and payable on the first day of the month thereafter until Defendant reaches full retirement age and begins drawing full Social Security.
The trial court, however, did not set forth the reasons Defendant is entitled to the specific amount of $900 or its rationale for the duration of the alimony continuing until “Defendant reaches full retirement age and begins drawing full Social Security.” Nor did the trial court specify its reasons for the manner of payment. Accordingly, on remand, the trial court must make additional findings of fact to justify the alimony award, specifically its reasons for the amount, duration, and manner of payment. See Hartsell, 189 N.C.App. at 76, 657 S.E.2d at 731 (remanding for further findings of fact regarding the basis for the amount and duration of the alimony award where the trial court “provided no explanation as to why it had concluded that defendant was entitled to that specific amount” of $650 per month and “included no findings of fact at all to explain its rationale for the duration of the award”).
REVERSED AND REMANDED. Judges ELMORE and GEER concur.
Report per Rule 30(e).