263 N.C. App. 104
N.C. Ct. App.2018Background
- Tracie Gilmartin (wife) sued Michael Gilmartin (husband) after a 2016 separation seeking custody, support, alimony, equitable distribution (ED), and injunctive relief; husband counterclaimed on custody/support/ED.
- The trial court issued an interim order on custody/support (not appealed) and later a permanent alimony order (6 Dec 2017) requiring husband to pay $1,100/month for 48 months.
- Husband appealed the alimony order, challenging entitlement to alimony, the amount/duration, and findings on marital fault (indignities, illicit sexual behavior, condonation, and pleading sufficiency).
- The appellate record omitted a substantial portion of the trial transcript (the ED portion), leaving only the alimony portion; many financial details and exhibits appear to have been introduced during the omitted portion.
- Because the missing transcript materially limited review of evidentiary sufficiency for alimony and related findings, the Court affirmed those parts of the order that could not be reviewed and proceeded to review only the marital-fault issues supported by the included transcript.
Issues
| Issue | Plaintiff's Argument (Gilmartin) | Defendant's Argument (Michael) | Held |
|---|---|---|---|
| Sufficiency of record for appellate review of alimony and financial findings | Trial court properly considered evidence and made findings supporting alimony | Missing portions of the transcript thwart meaningful appellate review; appellant claims insufficiency of evidence | Court held appellant waived review by failing to provide complete transcript; affirmed those parts of the order it could not review |
| Entitlement/amount/duration of alimony | Alimony award supported by findings on statutory factors | No competent evidence in record to support award or its duration | Because record was incomplete, Court assumed findings supported by evidence and affirmed the award |
| Pleading sufficiency re: indignities / failure to allege lack of provocation | Complaint alleged marital misconduct, illicit sexual behavior, and specified indignities (pornography, online flirting); adequate to state claim | Complaint insufficient—failed to allege lack of provocation or particularize indignities | Court treated the argument like a Rule 12(b)(6) challenge but held the motion to dismiss issue was not properly presented on appeal (Shingledecker controlling); argument overruled |
| Condonation of marital fault (indignities and illicit sexual behavior) | Wife did not condone misconduct; she repeatedly confronted husband and sought counseling | Husband argues prior knowledge and resumed relations amount to condonation of misconduct | Court found competent evidence of ongoing deceit and repeated misconduct (pornography, online solicitations) and no condonation of indignities; affirmed trial court on fault |
Key Cases Cited
- Kelly v. Kelly, 228 N.C. App. 600 (discretionary standard for alimony review)
- State v. Davis, 191 N.C. App. 535 (duty of appellant to provide full record)
- State v. Williams, 274 N.C. 328 (appellate courts should not assume error not shown in record)
- King v. King, 146 N.C. App. 442 (affirming findings where appellant failed to include transcript)
- Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350 (definition and treatment of indignities as marital misconduct)
- Shingledecker v. Shingledecker, 103 N.C. App. 783 (limitations on appealing denial of motion to dismiss after trial on the merits)
- Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678 (procedural rule about appeals of dismissed-motions-to-dismiss after judgment)
- Earles v. Earles, 26 N.C. App. 559 (distinguishing condonation issues among different types of marital fault)