Burger v. BurgerÂ
249 N.C. App. 1
| N.C. Ct. App. | 2016Background
- Parties married in 1987, separated in 2009, divorced 2011; two children. Wife (Tammy) worked at Wells Fargo; Husband (Jeffery) unemployed and has serious eye cancer/vision issues.
- Wife filed for equitable distribution (Sept. 2010); Husband counterclaimed seeking alimony and other relief, alleging he was a dependent spouse.
- Bench trial held Feb 2015 on equitable distribution, child support, and alimony. Trial court found Husband actually dependent and Wife a supporting spouse.
- Trial court imputed Husband gross monthly income of $1,247 (minimum-wage, 40 hrs/week) due to perceived indifference to self-support, found his monthly needs/expenses on the record, and awarded Husband $1,750/month alimony effective Jan 1, 2011 for ten years.
- Trial court included Wife’s 2014 bonus in her gross monthly income. It divided Wife’s Wachovia/Wells Fargo savings plan 50/50 as of the date of separation and ordered each party to receive passive gains/losses accruing to their share from separation to distribution.
Issues
| Issue | Plaintiff's Argument (Burger) | Defendant's Argument (Jeffery) | Held |
|---|---|---|---|
| Imputation of Husband’s income for support | Husband has higher earning capacity (education, past $60k income); court should impute $5,000+/mo or impute trust distributions | Court properly imputed only minimum-wage income given unemployment, medical condition, lack of recent earnings, and evidence about the trust | Affirmed: trial court did not abuse discretion imputing $1,247/mo and rejecting imputation from trust absent evidence of payments |
| Calculation of Husband’s expenses | Husband’s claimed expenses were speculative and not credible | Expenses supported by Husband’s financial affidavit and incorporated exhibit | Affirmed: trial court acted within discretion relying on affidavit and exhibit; credibility determinations for trial court |
| Inclusion of Wife’s bonus in her income | Court erred by adding 2014 bonus to gross monthly income (bonus not regular monthly pay) | Wife consistently received bonuses; evidence supported including 2014 bonus in average monthly income | Affirmed: trial court reasonably included December 2014 bonus in calculating Wife’s income |
| Effective date of alimony (retroactivity to Jan 1, 2011) | Wife challenges retroactive start date; she should not owe alimony for 2011–Feb 2015 | Trial court may make award effective earlier; prior NC appellate precedent allows retroactive alimony | Affirmed: retroactive effective date not an abuse of discretion under applicable precedent |
| Distribution of Wachovia/Wells Fargo retirement (passive gains/losses) | Trial court should value divisible component as of date of distribution; cannot allocate passive gains/losses without current valuation evidence | Trial court allocated 50% as of separation and ordered passive gains/losses to be broken out | Reversed in part and remanded: court erred in awarding passive gains/losses without findings/ evidence of current value; additional findings required |
Key Cases Cited
- Works v. Works, 217 N.C. App. 345 (discusses imputation of income and bad-faith depression of income)
- McKyer v. McKyer, 179 N.C. App. 132 (child support based on actual income unless bad-faith depression shown)
- Kowalick v. Kowalick, 129 N.C. App. 781 (alimony ordinarily determined by actual income)
- Williamson v. Williamson, 217 N.C. App. 388 (court may not include irregular windfalls as regular income without evidence)
- Brannock v. Brannock, 135 N.C. App. 635 (discusses alimony law changes; referenced in retroactivity analysis)
- Cunningham v. Cunningham, 171 N.C. App. 550 (insufficient findings when value of distributable property not determined)
- Nicks v. Nicks, 774 S.E.2d 365 (trial court discretion on reasonable needs and expense findings)
- Phelps v. Phelps, 337 N.C. 344 (trial court discretion to weigh and credit evidence)