Opinion
No. 07-230.
Filed March 4, 2008.
Rowan County No. 00CVD3118.
Appeal by plaintiff from orders entered 1 May 2003 and 21 September 2006 by Judge Charlie Brown in Rowan County District Court. Heard in the Court of Appeals 10 October 2007.
Horack, Talley, Pharr Lowndes, P.A., by Kary C. Watson, for plaintiff-appellant. Robert L. Inge, for defendant-appellee.
Daniel Lee Owens ("plaintiff") appeals the trial court's orders granting alimony to Jennifer L. Owens ("defendant") and denying Rule 59 relief from the alimony order. Plaintiff also appeals the order denying Rule 59 and Rule 60 relief from the contempt order. We affirm in part, reverse in part and remand.
Plaintiff and defendant (collectively "the parties") were married on 4 March 1979 and separated on 24 November 2000. On the date of separation, only one of the parties' two children was a minor. On 21 December 2000, plaintiff filed a complaint for divorce from bed and board and equitable distribution. On 9 February 2001, defendant filed, inter alia, an answer and counterclaim seeking custody of their minor child, post-separation support, permanent alimony, an unequal distribution of marital assets, an interim allocation of assets, and attorneys' fees. Subsequently, issues of child custody, child support and equitable distribution were determined. The trial court awarded custody of the minor child to plaintiff subject to defendant's visitation, and in lieu of defendant's child support obligation, defendant agreed not to seek additional post-separation support. On 9 August 2006, the Honorable Lillian B. Jordan entered an Equitable Distribution Judgment in Rowan County District Court.
At a hearing for post-separation support, the trial court found defendant's net monthly income, as shown on her financial affidavit filed on 24 April 2001, was $2,420.00 and her reasonable total monthly expenses were $6,948.00 which included the sum of $3,745.00 for the house payment, taxes and insurance. The trial court ordered plaintiff to pay defendant post-separation support in the amount of $4,931.00, beginning April 15, 2001 and payable monthly. Subsequently, the parties agreed to postpone the permanent alimony hearing. On 4 December 2002, plaintiff amended his reply as a defense to defendant's claim for alimony. Specifically, plaintiff alleged defendant engaged in illicit sexual behavior and made plaintiff's life burdensome and intolerable. Later, the court considered allegations of marital misconduct made by both parties and determined that defendant did not commit acts of marital misconduct. Plaintiff's financial affidavit filed 16 January 2003, showed plaintiff's net income, gross income less deductions, was $8,810.00 and his total expenses, including the $4,931.00 amount of post-separation support and expenses for his minor child, were $7,920.00. On 1 May 2003, nunc pro tunc 5 February 2003, the trial court ordered plaintiff to pay permanent alimony ("alimony order") in the amount of $5,000.00 per month and reserved plaintiff's claim for attorneys' fees.
On 8 May 2003, plaintiff filed a Rule 59 motion for a new trial on the issues addressed in the alimony order alleging insufficient evidence, ambiguous findings, excessive alimony obligation, and under Rule 59(a)(7) "any other reason heretofore recognized as grounds for a new trial." Plaintiff timely filed a notice of hearing for his Rule 59 motion.
Defendant filed a motion for contempt on 13 August 2003 for plaintiff's failure to pay alimony as ordered. On 18 August 2004, nunc pro tunc 30 March 2004, the trial court entered an order ("contempt order"), finding plaintiff in civil contempt for failure to pay alimony. The court ordered plaintiff to be incarcerated and included what appeared to be three different amounts to purge the contempt.
On 10 September 2004, plaintiff filed a notice of objection and exception to the contempt order and a motion pursuant to Rule 59 seeking a new hearing and Rule 60 to vacate and set aside the contempt order. Plaintiff was found in contempt for failure to pay alimony pursuant to the alimony order and failure to comply with the terms of the contempt order in an order entered 11 April 2005, nunc pro tunc 1 March 2005 ("second contempt order"). In the second contempt order, the court reserved ruling and took "under advisement the issue of contempt regarding non-payment of alimony" for the preceding eleven months.
Plaintiff filed a notice of objection and exception to the second contempt order on 22 April 2005. The trial court entered an order 21 September 2006, nunc pro tunc 22 May 2006, denying plaintiff's motion for Rule 59 and Rule 60 relief from the contempt order and plaintiff's motion for Rule 59 relief from the alimony order.
Plaintiff appeals the alimony order, the order denying Rule 59 relief from the alimony order, and the order denying Rule 59 and Rule 60 relief from the contempt order.
I. Alimony Order
Plaintiff argues the 1 May 2003 permanent alimony order should be reversed because the judge failed to "make the appropriate findings of fact as required by N.C. Gen. Stat. § 50-16.3A." We agree.
N.C. Gen. Stat. § 50-16.3A(c) provides that in awarding alimony, the court "shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration and manner of payment." N.C. Gen. Stat. § 50-16.3A(c) (2003). The amount of an alimony award is not reviewable on appeal absent an abuse of discretion. Quick v. Quick, 305 N.C. 446, 451-52, 290 S.E.2d 653, 657-58 (1982). 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." N.C. Gen. Stat. § 50-16.3A(c). "The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system." Quick, 305 N.C. at 451-52, 290 S.E.2d at 657-58. "The facts required to be found specially are those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached." Id., 305 N.C. at 451, 290 S.E.2d at 657. The findings must be "sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment." Id. "[F]indings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case." Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 420-21, 588 S.E.2d 517, 522 (2003) (citation and internal quotations omitted). "Ultimate facts are the final facts required to establish plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts." Quick, 305 N.C. at 451, 290 S.E.2d at 657. "An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts." Id., 305 N.C. at 451-52, 290 S.E.2d at 657-58.
Plaintiff does not challenge the finding that plaintiff is the supporting spouse and defendant is the dependent spouse. In addition, plaintiff does not argue the trial court erred in failing to make findings based on evidence presented at trial. Since plaintiff failed to include a transcript with the record on appeal, "we . . . assume that the trial court's findings of fact are supported by competent evidence. . . ." Baker v. Baker, 115 N.C. App. 337, 339, 444 S.E.2d 478, 480 (1994). Plaintiff raises the issue of whether the trial court made "a specific finding of fact" related to the statutory factors. The factors under N.C. Gen. Stat. § 50-16.3A(b) are:
(1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.
N.C. Gen. Stat. § 50-16.3A(b) (2003).
After careful examination of the order, we determine that the court's findings of dependency on the part of the defendant and plaintiff's marital misconduct are sufficient to support an alimony award. See N.C. Gen. Stat. § 50-16.3A(a) (2003). Next we examine whether the trial court made specific findings to support the amount and duration of the alimony award. Although the trial court incorporated defendant's financial affidavit to support the finding regarding defendant's income and expenses, there is no finding that the court incorporated plaintiff's financial affidavit and the findings on plaintiff's expenses were incomplete. Moreover, the record indicates the defendant's financial affidavit was filed on 24 April 2001, almost two years before the alimony order was issued in February 2003. "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) (citation omitted). In addition, the court found that defendant "has supplemental income from other work at the school system and from Salem Creek," yet the court did not include the amount of defendant's supplemental income in its order.
Defendant argues that the trial court satisfied the requirements of N.C. Gen. Stat. § 50-16.3A(c) because the trial court incorporated plaintiff's exhibits 3 through 6 and defendant's exhibits 1 through 30 as additional findings. We disagree. Plaintiff's exhibits 3 through 6 constitute plaintiff's tax records from 1999 until 2001 and a list of contractors who presumably do business with the plaintiff. None of these exhibits reflect plaintiff's current expenses. We note that the record contains a financial affidavit filed by plaintiff which would indicate his expenses; however, the trial court's order failed to incorporate the plaintiff's financial affidavit that was filed in Rowan County on 16 January 2003.
The trial court did not satisfy the requirements of N.C. Gen. Stat. § 50-16.3A. Several findings are missing. Specifically, findings on defendant's total income, to include her supplemental income, plaintiff's total current expenses, and the reasons for the amount and duration of the alimony award. Therefore, remand is warranted. See N.C. Gen. Stat. § 50-16.3A(b)(2) (4); Williamson v. Williamson, 140 N.C. App. 362, 365, 536 S.E.2d 337, 339 (2000); Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003); Rhew v. Rhew, 138 N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000).
II. Rule 59 Motion
Plaintiff contends the permanent alimony order should be reversed because the trial court abused its discretion when it denied his Rule 59 motion for a new trial. Plaintiff also asserts the trial court's delay in ruling on his motion for a new trial shows an abuse of the trial court's discretion. Because we conclude the alimony order should be reversed and remanded for more specific findings, we need not address this issue.
III. Contempt Order
Plaintiff argues that the 18 August 2004 contempt order should be vacated because the trial court's findings in the contempt order were not in the alimony order. Because plaintiff did not appeal the contempt order in his notice of appeal, this issue is not preserved. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990). Instead we address his argument in the context of whether the trial court abused its discretion in denying his Rule 59 and Rule 60 motions for relief from the 18 August 2004 contempt order, which were properly preserved in the notice of appeal.
Plaintiff cites Green v. Green, 130 N.C. 578, 41 S.E. 784 (1902), for the proposition that plaintiff cannot be held in contempt for failure to pay alimony "on findings of fact not contained in the underlying order." We find this case distinguishable from the case at bar. In Green, the Court held the contempt order was reversible because although the trial court found the husband was able to pay at least a portion of the alimony order, this fact was not sufficient to hold him in contempt for failing to pay the full amount of the alimony order. Id. The relevant portion of the case states:
[N]otwithstanding the finding of the fact that the defendant was able to pay only a part of the amount ordered to be paid, he was to be committed to the common jail until he should comply with the order making the allowance in the nature of alimony; that is, until he should pay the whole amount. Clearly, the judgment cannot be supported on that finding of fact.
Id., 130 N.C. at 578, 41 S.E. at 785.
In the case sub judice the contempt order recited specific findings as to plaintiff's income, expenses, and more importantly, $158,000.00 worth of personal property which plaintiff was unwilling to transfer to defendant as a credit toward his alimony obligation. The trial court found that plaintiff's monthly income was $2,586.00 and his monthly expenses totaled $1,200.00. The trial court also found that plaintiff's anticipated receipts from recent jobs would total between $35,000.00 to $38,000.00. Because plaintiff failed to submit a transcript, we presume the findings are supported by competent evidence. Matter of Botsford, 75 N.C. App. 72, 74-75, 330 S.E.2d 23, 25 (1985); Nunnery v. Baucom, 135 N.C. App. 556, 561-62, 521 S.E.2d 479, 484 (1999); Baker v. Baker, 115 N.C. App. 337, 339, 444 S.E.2d 478, 480 (1994). These findings support the trial court's determination that plaintiff had the partial means and ability to comply with the order and his failure to do so was wilful and without legal cause or excuse. Therefore, we find no abuse of discretion in denying plaintiff's Rule 59 and Rule 60 motions.
We also note that our remand as to the alimony order does not vacate the determination of dependency, rather, it only vacates the amount and the duration of alimony. Therefore, plaintiff is obligated to pay some amount. See Quick, 305 N.C. at 462-63, 290 S.E.2d at 664 (contemplating that vacating the alimony order might discourage defendant from complying with the order and noting that "[o]n remand, with . . . new findings to be made, defendant will be ordered to make alimony payments in the trial court's discretion."). Since plaintiff cites no other authority to support his position, this assignment of error is overruled.
We note further that the filing of the motion to set aside the alimony order did not relieve plaintiff of his obligation to abide by the terms of the order. Rather than filing that motion, plaintiff could have appealed the alimony order to this Court and sought to stay its enforcement. Or, before the contempt order was entered, plaintiff could have sought to compel the trial court to rule on the motion to set aside the alimony order so that plaintiff could perfect an appeal. N.C.R. App. P. 22 (2007). Nothing in the record before us indicates that the delay in hearing the motion to set aside the alimony order was due to the trial court's conduct. It appears plaintiff waited until the trial court ruled on the motion to set aside the judgment, over three years after the motion was filed, to appeal the alimony order. "One who willfully violates an order does so at his peril." Joyner v. Joyner, 256 N.C. 588, 591, 124 S.E.2d 724, 727 (1962). As is evident from the trial court's findings in the contempt order, plaintiff willfully violated the alimony order, and the trial court did not abuse its discretion in denying plaintiff's motion to set aside the contempt order.
Finally, we note plaintiff assigned twelve errors on appeal and argued only eight in his brief. Those assignments of error not argued are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
Affirm in part, reverse in part and remand.
Judges McCULLOUGH and STEPHENS concur.
Report per Rule 30(e).