Clark v. Clark

44 N.C. App. 649 | N.C. Ct. App. | 1980

Lead Opinion

PARKER, Judge.

Defendant-wife first contends that there was error in the award of $1500.00 per month in alimony on the grounds that the trial court failed to consider the income tax consequences of the award; that it applied an improper standard in evaluating her expenses in light of the plaintiff’s income and estate; and that the court abused its discretion in failing to make provision for possession of the parties’ homeplace. We find no error in the award of permanent alimony.

G.S. 5046.5(a) provides: “Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.” Although the factors in G.S. 5046.5(a) must be considered by the trial judge in determining the amount of alimony to be awarded, his determination of the proper amount will not be disturbed absent a clear abuse of discretion. Eudy v. Eudy, 288 N.C. 71, 215 S.E. 2d 782 (1975); Schloss v. Schloss, 273 N.C. 266, 160 S.E. 2d 5 (1968); Sayland v. Sayland, 267 N.C. 378, 148 S.E. 2d 218 (1966). We find no such abuse of discretion in the present case. The trial judge, as required by G.S. 5046.5(a), made extensive findings of fact concerning plaintiff-husband’s substantial income and estate, defendant-wife’s individual estate, and the parties’ high standard of living during their marriage. Defendant-wife contends that the trial court failed to take into account the entire value of plaintiff-husband’s estate because it excluded from evidence Defendant’s Exhibit 14, a handwritten statement by plaintiff-husband in which he estimated the value of his controlling interest in Landmark Inns of Durham, Inc. as of 1976 at $202,000 and forecasted probable annual increases in the value of his Landmark shares of at least $100,000 per year after May 1976. We find no error in the exclusion of this evidence. At the time of trial in October 1978 plaintiff-husband testified that he owned 89,333 shares of stock in Landmark Inns of Durham, and that the current value of the stock was $.61 per share. Although the excluded exhibit, which had been written by plaintiff-husband some time prior to May 1976, contained plaintiff-husband’s estimate of probable future increases which would indicate a higher value in 1978 than plaintiff-husband stated at trial, it was nothing more than an estimate and of little probative value.

Defendant-wife has also assigned error to the court’s finding that “all of the items on the budget submitted by the wife, Margaret J. Clark, on her Exhibit 1 are [not] needed or necessary items.” Defendant-wife contends that the finding, which refers to “needed or necessary” items, demonstrates that the court applied an improper standard in determining the amount of alimony. It is true that “[t]he wife of a wealthy man, who has abandoned her without justification, should be awarded an amount somewhat commensurate with the normal standard of living of a wife of a man of like financial resources.” Schloss v. Schloss, supra at 272, 160 S.E. 2d at 11; see also, Taylor v. Taylor, 26 N.C. App. 592, 216 S.E. 2d 737 (1975). However, viewed in the context of the findings of fact concerning the accustomed living standard of the parties, the court’s use of the word “necessary” with regard to defendant-wife’s evidence of expenses is not inconsistent with the standard outlined in Schloss v. Schloss, supra. It is clear that the court considered “necessary” expenses in terms of what was necessary for a woman married to a man of substantial means, rather than in terms of what was necessary for bare subsistence, and determined that $400.00 of the $1900.00 monthly expenses which she claimed were not necessary even for a woman of her accustomed standard of living. Defendant-wife’s assignment of error directed to this finding of fact is, therefore, overruled.

Neither do we find that the award should be reversed on the ground that the trial judge failed to consider the income tax consequences of the award. It is true that the court made no specific finding of fact concerning the tax implications involved. However, defendant-wife did offer evidence of her potential income tax liability at trial, and there is no indication in the record that this liability was not one of the factors taken into consideration in the determination of the amount of alimony to which defendant-wife was entitled. Again, no clear abuse of discretion has been shown.

Defendant-wife also contends that the award must be reversed because of the failure of the court to make some provision in its order for possession of the parties’ homeplace. In its conclusions of law, the court expressly stated that no division or writ of possession as to the homeplace of the parties was to be made in the judgment. Under G.S. 5046.7(a), the court may order payment of alimony by possession of real property. Further, G.S. 50-17 provides that “[i]n all cases in which the court grants alimony by the assignment of real estate, the court has power to issue a writ of possession when necessary in the judgment of the court to do so.” While the court has authority to order a transfer of title or possession of real property, the provisions of G.S. 5046.7(a) and G.S. 5047 do not require it to do so. See, Spillers v. Spillers, 25 N.C. App. 261, 212 S.E. 2d 676 (1975). We find no abuse of discretion in the trial judge’s failure to do so in the present case, particularly in view of defendant-wife’s failure to request this relief in her pleadings.

Defendant-wife then assigns error to the trial court’s award of $500.00 in legal fees on the ground that the amount is not supported by sufficient findings of fact or conclusions of law. In its judgment of 10 November 1978, the court found that at the time of trial, defendant-wife had assets, including stocks, bonds and savings accounts and a one-half interest in the parties’ homeplace, of approximately $87,000. Based on this finding, it concluded that defendant-wife was “entitled to some partial assistance on legal expenses incurred in this matter.” It is well established that the amount of attorney’s fees to be awarded is within the sound discretion of the trial judge and is not reviewable except for abuse of discretion. Stanback v. Stanback, 270 N.C. 497, 155 S.E. 2d 221 (1967); Stadiem v. Stadiem, 230 N.C. 318, 52 S.E. 2d 899 (1949). “The purpose of the allowance for attorney’s fees is to put the wife on substantially even terms with the husband in the litigation.” Stanback v. Stanback, supra at 509, 155 S.E. 2d at 230; accord, Harrell v. Harrell, 253 N.C. 758, 177 S.E. 2d 728 (1961). In view of the court’s finding concerning defendant-wife’s substantial individual estate, we are unable to conclude that the amount awarded was so patently unreasonable as to constitute an abuse of discretion.

Defendant-wife finally assigns error to that portion of the judgment ordering the parties to divide the household furnishings located in the homeplace in a mutually agreeable manner. We agree that the court was without power to order such a division. Neither party requested any property division in the pleadings, and in their pre-trial stipulation, they agreed that the sole issue to be determined at trial was the amount and type of alimony to which the defendant might be entitled. Plaintiff-husband argues that the order for division was an appropriate exercise of the court’s powers under G.S. 50-16.7. That statute provides in pertinent part:

(a) Alimony .... shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, ... as the court may order.

Although the statute clearly vests the court with power to order a transfer of personalty, that power does not exist independently of the court’s power to order alimony for the dependent spouse. G.S. 50-16.7 contemplates such transfers only in terms of satisfaction of the obligation to support. In the present case, there is no indication that the court was ordering a transfer of property as payment of alimony, and the statute is, therefore, inapplicable. Unless the parties choose to make a division between themselves or properly to invoke the jurisdiction of the court to order such division, the parties may not be ordered to divide their property.

That portion of the judgment awarding defendant-wife $1500 per month in alimony and $500.00 in attorney’s fees is

Affirmed.

That portion of the judgment ordering plaintiff and defendant to divide the property located in their homeplace is

Vacated.

Judge MARTIN (Robert M.) concurs. Judge Erwin dissents.

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Dissenting Opinion

Judge ERWIN

dissenting.

I dissent from that part of the majority’s opinion which affirms the judgment awarding defendant-wife $1500 per month in alimony. I would hold that the trial court abused its discretion by inadvertence or by accident.

The order for alimony pendente lite of 19 May 1979, entered by Judge Moore, provided inter alia:

“That the defendant shall have the continued use, occupancy and possession of the homeplace located at 1918 Wilshire Drive in Durham, North Carolina, and shall pay from the alimony pendente lite ordered herein all ordinary expenses in connection therewith, including mortgage payments, insurance, ad valorem taxes and ordinary repairs and upkeep.”

In the order for permanent alimony, plaintiff-husband was ordered to pay defendant-wife $1500 per month without any reference to the payments of the mortgage, insurance, ad valorem taxes, and ordinary or major repairs or upkeep of the home of the parties. This should have been provided, although a writ of possession was not issued. Without a determination placing these obligations of payment, the court left a reasonable inference that defendant-wife should continue to make all these payments, in that the order for alimony pendente lite required her to do so.

The court found “[t]hat the Court does not feel that all of the items on the budget submitted by the wife, Margaret J. Clark, on her Exhibit 1, are needed or necessary items.” This finding supports my conclusions, since this exhibit included all the items in question and, to me, it left the impression that defendant-wife should continue to pay them. On remand, this matter should be clarified in view of the very modest monthly award to defendant-wife when compared with the substantial income of plaintiff-husband.