128 N.C. App. 54 | N.C. Ct. App. | 1997
Plaintiff and defendant were married on 4 January 1975 and separated on 30 March 1995. The parties had two children during the marriage: Anna Collins Hanley, born 31 May 1979, and James F. Hanley, Jr., bom 20 April 1981.
During the marriage, defendant worked for several banks and then for Stan Taylor Insurance Agency, where he became part owner in 1991. Defendant’s gross income, separate and apart from his ownership interest in the company, had grown from nearly $80,000 in 1991 to $132,000 in 1995.
After the parties married, the plaintiff received a degree in Industrial Art Education and worked for the Wake County School System as a full-time teacher for three years. After the birth of the parties’ first child, the plaintiff did not work for a number of years. After the birth of the parties’ second child, the plaintiff worked part-time as a substitute teacher and held other various part-time jobs. From 1993 through 1995, plaintiff worked at Alcatel twenty hours a week earning $10.00 an hour.
In early 1995, prior to the separation, the parties and their children went on a trip to Hawaii. The original itinerary was that the entire family would return together; however, while there, plaintiff met some people and wanted to stay on for a few extra days. The daughter stayed with plaintiff in Hawaii for an extra three days while the defendant and the son returned home.
Shortly after plaintiff’s return to Raleigh, she expressed her desire to return to Hawaii for an undetermined period of time. Approximately ten days after returning, plaintiff left again for Hawaii, purchasing tickets with defendant’s credit card. Plaintiff informed defendant that, “I do not know how long I will be gone. If you are here when I get back, that is okay. If you are not here when I get back, then
According to the plaintiff, when she returned to Raleigh she was met with anger and a cold and indifferent attitude by defendant who said he “didn’t want to continue with the marriage.” Eventually, plaintiff obtained other housing and the parties executed a separation agreement which provided, among other things, that defendant would pay plaintiff $600.00 a month in “family support” until the children graduated from high school.
Plaintiff filed this action seeking post-separation support, permanent alimony, and attorney’s fees. Defendant denied all claims and counterclaimed for custody and child support. At the hearing on plaintiff’s alimony claim, the trial court found that plaintiff had abandoned defendant without just cause or excuse and entered an order denying her claims for permanent alimony and attorney’s fees. The trial court subsequently rejected plaintiff’s motion to the trial court to make additional findings of fact and amend its judgment.
Plaintiff first contends that the trial court erred in finding that plaintiff abandoned defendant as there was no evidence in the record to support this conclusion.
Abandonment occurs where one spouse brings the cohabitation to an end (1) without justification, (2) without consent, and (3) without intention of renewing the marital relationship. Pruett v. Pruett, 247 N.C. 13, 23, 100 S.E.2d 296, 303 (1957); see also, Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Powell v. Powell, 25 N.C. App. 695, 214 S.E.2d 808 (1975).
It is undisputed that the parties never resumed cohabitation after plaintiff returned to Hawaii. Further, plaintiff does not contend she was justified in leaving Raleigh and returning to Hawaii. We find the first prong of the definition of abandonment (the bringing about of the end of cohabitation was unjustified) has been met.
We next examine whether the evidence presented supports the second prong of the test for abandonment — whether the defendant gave his consent to the end of the cohabitation.
Plaintiff argues that if she is deemed to have brought the parties’ marital cohabitation to an end, it was with the defendant’s implied consent as he did not communicate his objection to plaintiff.
Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary or affect the right to divorce or alimony. Nor, under such circumstances, is the innocent party obliged to protest, to exert physical force or other importunity to prevent the other party from leaving.
Id. at 390, 218 S.E.2d at 341 (citations omitted).
Included in the trial court’s findings was that “defendant has never been a controlling person and his belief was that if the plaintiff wanted to leave the family and return to Hawaii, then he should not stop her from doing so.” Further, there was evidence that plaintiff had previously expressed her displeasure with defendant and unhappiness with the marriage. Defendant testified that while he did not want plaintiff to return to Hawaii, he was not going to “keep her from doing something she says she really needs or wants to do.” Thus, while defendant did not outwardly “protest” or “exert physical force” to prevent plaintiff from leaving, it is clear from the evidence that he did not consent to ending the marital cohabitation.
Finally, we must examine whether there was sufficient evidence to support a finding that the plaintiff returned to Hawaii “without the intent to renew the marital relationship.”
“The trial court’s findings axe conclusive if supported by any competent evidence, even when the record contains evidence to the contrary.” Ellinwood v. Ellinwood, 94 N.C. App. 682, 685, 381 S.E.2d 162, 164 (1989). “Moreover, since there is no all-inclusive definition as to what will justify abandonment, each case must be determined in large measure upon its own circumstances.” Tan v. Tan, 49 N.C. App. 516, 521, 272 S.E.2d 11, 15 (1980), disc. review denied, 302 N.C. 402, 279
Plaintiff next argues that the trial court abused its discretion in denying her claim for alimony without considering all relevant factors under N.C. Gen. Stat. § 50-16.3A (1995) which provides in pertinent part:
(a) Entitlement. — In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependant spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.
(b) Amount and duration. — The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony .... In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. . . ;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
*59 (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.
(c) Findings of Fact. — The court shall set forth the reasons for its award or denial of alimony. . . .
Moreover, N.C. Gen. Stat. § 50-16.lA(3)(c) (1995) includes “[abandonment of the other spouse” within its definition of “marital misconduct.”
The trial court found that plaintiff was the dependent spouse and defendant was the supporting spouse; however, after considering all relevant factors listed in the statute, the court concluded an award of alimony would not be equitable.
In addition to the trial court’s finding that plaintiff abandoned the defendant, the court also made findings with regard to other factors which support its conclusion that alimony would not be equitable. For instance, the trial court found: defendant is sharing his retirement plan with plaintiff, in addition to a $75,000 property settlement; plaintiff has a degree in Industrial Art Education and has a current earning capacity of approximately $24,000 a year; plaintiff had $39,000.00 in cash at the time of the hearing; defendant is paying plaintiff $600.00 in “family support” until both children graduate from high school; defendant paid all of the marital debt, including plaintiffs charges in Hawaii; defendant has and continues to support the two minor children; plaintiff has not provided any support for the son who still resides with the defendant, although she has provided some financial assistance for the daughter; and defendant pays for the daughter’s schooling and automobile expenses, as well as providing spending money.
It is apparent that the trial court considered all relevant factors, not merely plaintiff’s marital misconduct, and did not abuse its discretion in determining that an award of alimony was not equitable under these circumstances.
The order of the trial court is
Affirmed.
