Opinion
No. COA13–247.
2013-07-2
Stephanie RITCHIE, Plaintiff, v. Christopher D. RITCHIE, Defendant.
The Currie Law Offices, by Patrick W. Currie, for Plaintiff. Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by Edwin H. Ferguson, Jr., and James R. DeMay, for Defendant.
Appeal by Defendant from order entered 13 November 2012 by Judge Dennis J. Redwing in Stanly County District Court. Heard in the Court of Appeals 5 June 2013. The Currie Law Offices, by Patrick W. Currie, for Plaintiff. Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., by Edwin H. Ferguson, Jr., and James R. DeMay, for Defendant.
STEPHENS, Judge.
Procedural History and Factual Background
This is the third appeal arising from a lawsuit filed 30 June 2004 by Plaintiff Stephanie Ritchie against Defendant Christopher D. Ritchie for custody, child support, post-separation support, alimony, and equitable distribution. On 22 July 2004, Defendant counterclaimed for custody, child support, and equitable distribution. The issue of equitable distribution came on for hearing in December 2008 and April 2009, and the trial court entered an order on equitable distribution on 5 February 2010 (“the equitable distribution order”). Defendant gave notice of appeal from that order, and, in an unpublished opinion filed 15 March 2011, this Court dismissed Defendant's appeal as interlocutory because Plaintiff's claim for alimony remained pending. Ritchie v. Ritchie, 210 N.C.App. 491, 711 S.E.2d 207 (2011) (unpublished disposition), available at 2011 N.C.App. LEXIS 541, 2011 WL 883206.
All issues relating to custody and child support have been resolved and are unrelated to the matters presented in this appeal.
The issue of alimony came on for hearing in April and June 2011, and the trial court entered an order on alimony on 17 August 2011 (“the alimony order”). Defendant gave notice of appeal from both the equitable distribution and the alimony orders. On 4 September 2012, this Court filed its unpublished decision in that appeal, affirming the equitable distribution order and the trial court's determination that Plaintiff was entitled to alimony. Ritchie v. Ritchie, ––– N.C.App. ––––, 731 S.E.2d 721 (2012), available at 2012 N.C.App. LEXIS 1056, 2012 WL 3791777 (“the 2012 Opinion”), disc. review denied,––– N.C. ––––, 738 S.E.2d 365 (2013). Specifically, on the issue of Plaintiff's entitlement to alimony, we noted that
Defendant argue[d] that several of the trial court's findings are insufficient because they “begin[ ] with a statement that ‘Plaintiff testified’ or ‘Defendant testified.’ “ However, Defendant d[id] not challenge any specific findings of fact as unsupported by the evidence, nor does he argue that the trial court failed to make findings of fact regarding any specific N.C. Gen.Stat. § 50–16.3A(b) factors. We acknowledge that approximately half of the trial court's fifty-two findings of fact begin with “Plaintiff testified,” “Defendant testified,” or a similar statement. See Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 339 (2000) (holding that “the trial court's repeated statements that a witness ‘testified’ to certain facts or other words of similar import” are “mere recitations of the evidence” and do not reflect the processes of logical reasoning) (citations and quotation marks omitted).
Id. at *11–*12, 738 S.E.2d 365. We held that, “[a]lthough the trial court made numerous findings of fact that merely recite Plaintiff's or Defendant's testimony, we conclude that the trial court's additional findings of fact are sufficient to demonstrate the court's consideration of the required statutory factors.” Id. at *16, 738 S.E.2d 365.
However, this Court also noted that the first alimony order stated:
Defendant shall pay to Plaintiff alimony in the sum of $650.00 per month beginning from the date of separation ... and continuing monthly thereafter for a period of 14 years and 11 months through June 11, 2019, terminating in that month, or sooner in the event of Plaintiff's death, remarriage, or cohabitation with another man, whichever event occurs first in time. It is the Court's intention that the alimony payments cease after the month in which the youngest child of the parties reaches the age of majority.
Id. at *19, 738 S.E.2d 365. We concluded that, “[a]lthough the trial court stated that alimony in the amount of $650 per month was reasonable and appropriate in conclusion of law number six, the trial court did not sufficiently set forth its reasons for the amount or duration of the alimony award as required by N.C. Gen.Stat. § 50–16.3A(c).” Id. Accordingly we remanded with instructions for the trial court to “give an adequate explanation of its reasons for awarding the amount of $650 per month in alimony or its reasons the alimony was awarded for a specific period of fourteen years and eleven months.” Id. at *19, *21, 738 S.E.2d 365.
On 13 November 2012, the trial court entered an amended alimony order (“the amended order”). From the amended order, Defendant appeals.
Discussion
On appeal, Defendant argues that the trial court erred in (1) ignoring the mandate of the 2012 Opinion to make further findings of fact regarding the duration and amount of the alimony award, (2) making findings of fact 52 and 53, and (3) making conclusions of law 2, 3, 5, and 6. We affirm.
I. Mandate of the 2012 Opinion and Findings of Fact 52 and 53
Because they are closely related, we address Defendant's first two arguments together. Defendant first argues that the trial court erred in ignoring the mandate of the 2012 Opinion. Specifically, Defendant contends the trial court failed to make “additional computations or findings” about the amount and duration of alimony. In addition, Defendant asserts that our mandate did not permit the trial court to amend its previous findings of fact. In his second argument, Defendant contends that the trial court erred in making additional findings of fact 52 and 53. We disagree.
Defendant also notes that the trial court did not request an additional hearing on remand. Whether to hold an additional hearing or take evidence on remand for additional findings of fact is a matter left to the trial court's discretion. See, e.g., Patton v. Patton, 88 N.C.App. 715, 718, 364 S.E.2d 700, 702 (1988) (holding that “on remand it is not necessary for a trial court to hear more evidence on a ... question if no additional evidence is needed to make an appropriate finding of fact.”).
A trial court's decision on the amount and duration of alimony to be awarded is reversed only for an abuse of discretion. Barrett v. Barrett, 140 N.C.App. 369, 371, 536 S.E.2d 642, 644 (2000) (citations omitted). “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).
A trial court's award of alimony is addressed in N.C. Gen.Stat. § 50–16.3A ..., which provides in pertinent part that in “determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors” including, inter alia, the following: marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the extent to which the earning power, expenses, or financial obligations of a spouse are affected by the spouse's serving as custodian of a minor child; the standard of living of the spouses during the marriage; the assets, liabilities, and debt service requirements of the spouses, including legal obligations of support; and the relative needs of the spouses.
Id. at 69, 657 S.E.2d at 727. However, while findings of fact on the relevant statutory factors are required, “the court is not required to make findings about the weight and credibility it assigned to evidence before it.” Id. at 75, 657 S.E.2d at 730.
As to the “amended” findings of fact, our review indicates that the trial court removed phrases such as “Defendant testified” and “Plaintiff testified” from many of its previous “findings of fact .” As noted supra, in the 2012 Opinion, we cited Williamson for the proposition that a “trial court's repeated statements that a witness ‘testified’ to certain facts or other words of similar import” are “mere recitations of the evidence” and, because they fail to reflect a court's credibility determination and reasoning, do not constitute findings of fact. 140 N.C.App. at 364, 536 S.E.2d at 339 (citations and quotation marks omitted). Although not directed to remove such phrases from its findings of fact, we see no error in the trial court's action. To the extent these “amendments” affected findings of fact unrelated to the issues before the court on remand, to wit, the amount and duration of alimony, any changes are of no consequence. To the extent the “amended” findings of fact do concern the amount and duration of alimony, they fall squarely within the mandate of the 2012 Opinion. In other words, while a “trial court [is] bound on remand by any portions of the [previous] order affirmed by this Court,” Friend–Novorska v. Novorska, 143 N.C.App. 387, 394, 545 S.E.2d 788, 793,affirmed,354 N.C. 564, 556 S.E.2d 294 (2001), the trial court here was plainly not bound by denominated “findings of fact” which we previously held were in actuality mere recitations of testimony and which were in any event unnecessary to support the court's conclusions of law.
We also observe that Defendant makes no argument that any of the “amended” findings of fact are unsupported by the evidence before the trial court, and they are thus binding on appeal.
As to Defendant's argument that the trial court ignored the mandate of the 2012 Opinion, we observe that, on remand, the trial court made the following additional findings of fact:
52. The Defendant's current annual income of $112,200, or a gross monthly income of $9,350[,] easily supports a monthly alimony payment from Defendant to Plaintiff in the amount of $650.00 per month, the Court considering deductions from Defendant[']s monthly income for Federal and State taxes, Defendant's current child support obligation of $1,201.50 per month and a reasonable amount for Defendant's personal living expenses, the Court not taking into account obligations, both business and personal, which Defendant has voluntarily taken on after the date of separation of the parties.
53. Plaintiff[,] as the custodial parent of the parties['] two daughters has established a modest home which has a monthly mortgage payment and has purchased a used vehicle for use in caring for said children, said vehicle purchase having a monthly loan payment, neither of which monthly payments is excessive by today's standards, said mortgage payment to continue during the minority of the parties['] children in Plaintiff's custodial care, along with some amount for a car payment during said children's minority.
The trial court also made findings of fact that (1) Defendant's gross monthly income is $9,350, (2) Plaintiff's current monthly mortgage payment is $656, (3) Plaintiff's amended financial affidavit was accurate (with a single exception of a misstatement about the cost of cable television) and revealed reasonable personal expenses, (4) Plaintiff's standard of living, as well as the mortgage and size of her home, have been reduced significantly since the date of separation, (5) Defendant's financial affidavit reflected inflated expenses and inaccurate statements regarding income from investment properties, (6) Defendant increased his personal expenses by purchasing an additional home which is not being used as a residence, (7) Defendant has undertaken significant new costs and spending associated with his new wife and her child and family, and (8) Defendant pays $1,201.50 in child support to Plaintiff for the support of his two children with her.
Additional findings of fact 52 and 53, in conjunction with those previously made by the trial court, show that the duration of alimony has been set to continue until the parties' children both reach the age of majority, permitting Plaintiff to maintain her relatively low-wage employment at a private school which in turn provides the dual benefits of allowing the children to receive free private school educations and allowing Plaintiff to serve as the children's primary caretaker and custodian on her teacher's salary. Further, these findings of fact indicate that the trial court determined the amount of alimony based upon Plaintiff's mortgage and car payment and upon Defendant's ability to pay said amount in light of his gross monthly income, tax and child support obligations, and personal living expenses.
Defendant cites Fink v. Fink, 120 N.C.App. 412, 462 S.E.2d 844 (1995), disc. review denied, 342 N.C. 654, 467 S.E.2d 710 (1996), and contends that findings of fact 52 and 53 suggest the trial court improperly blurred the line between child support and alimony. We are not persuaded. In Fink, we observed that
alimony is payment for support of a former spouse and child support is payment for support of a minor child, and the two must be kept separate when the court determines the appropriate awards as to each, the distinction between the two kinds of payments is easily blurred, particularly when the child for whom the support is needed resides primarily with the recipient of the alimony.
Id. at 420, 462 S.E.2d at 851 (citation, quotation marks, brackets, and ellipsis omitted). However, in that case, this Court went on to hold that, in exercising its discretion to make alimony awards, “recognition by the trial court of the custodial parent's attendant caregiving and monetary obligations to the minor child is consistent with [this State's statutes and case law].” Id. As in Fink, the trial court here was free to consider in its discretion the caregiving obligations of Plaintiff as the primary caregiver for the parties' minor children.
In sum we conclude that, as directed in the 2012 Opinion, the amended alimony order provides “an adequate explanation of its reasons for awarding the amount of $650 per month in alimony or its reasons the alimony was awarded for a specific period of fourteen years and eleven months.” Ritchie, 2012 N.C.App. LEXIS 1056 at *19, 2012 WL 3791777. Accordingly, Defendant's arguments regarding the mandate of the 2012 Opinion and the adequacy of findings of fact 52 and 53 are overruled.
II. Conclusions of Law 2, 3, 5, and 6
Defendant also argues that the trial court erred in making conclusions of law 2, 3, 5, and 6. We disagree.
In conclusion of law 2, the trial court stated that “Defendant is a supporting spouse ... in that his wage income exceeded that of Plaintiff by a ratio of three to one[.]” Defendant asserts that this ratio is inaccurate because it is based upon “incomplete” findings of fact about the yearly income of each party. Defendant also attacks the court's statement in conclusion of law 3 that “Plaintiff is in no way capable of financially maintaining the economic standard of living she enjoyed during the marriage of the parties” and “will be unable to meet her needs in the future without the assistance of alimony from Defendant.” As noted supra, the 2012 Opinion affirmed the trial court's determination that Plaintiff was entitled to alimony. Ritchie, 2012 N.C.App. LEXIS 1056 at *16, 2012 WL 3791777. Thus, issues regarding Plaintiff's entitlement to alimony were not before the trial court on remand. Accordingly, Defendant's arguments regarding conclusions of law on that matter are not properly before this Court.
Defendant has not, however, challenged the findings of fact as unsupported by the evidence, and they are thus binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.”) (citations omitted). Further, Defendant acknowledges that income amounts reflected in the findings of fact do result in a ratio of approximately three to one. Accordingly, this argument lacks merit.
Defendant also contends that the trial court erred in concluding that Defendant has the ability to assist Plaintiff financially because, as the court stated in conclusion of law 5, the equity value of a number of Defendant's investment properties is unknown. We note that, while Defendant argued at trial and on appeal that he has consistently paid all debt obligations on these properties since the 2004 date of separation, he failed to provide accurate evidence on the value of those properties. Defendant will not be heard to complain that the trial court made findings and conclusions based on incomplete evidence when it is he who failed to provide the court with the “complete” evidence. This argument is overruled.
Defendant's final argument is that the trial court erred in conclusion of law 6 by awarding alimony without considering the factors specified in section 50–16.3A(b) regarding the duration and amount of alimony. As discussed supra, this argument is overruled. Accordingly, the amended alimony order is
AFFIRMED. Judges BRYANT and DILLON concur.
Report per Rule 30(e).