Patton v. Patton, 88 N.C. App. 715

Patton v. Patton

88 N.C. App. 715 | N.C. Ct. App. | 1988

HEDRICK, Chief Judge.

Defendant first argues the trial court again failed to make a sufficient finding of fact as to the value of defendant’s interest in his closely-held corporation. In Patton v. Patton, 318 N.C. 404, 348 S.E. 2d 593 (1986), the Supreme Court held that the finding of *718fact should be more than a mere enumeration of the factors considered by the trial court in determining the value of defendant’s interest. The finding of fact has now been replaced with a detailed finding which indicates what the trial court attributed to each factor. The Supreme Court did not require a total recitation of evidence considered, but only required a more complete basis for the conclusion rendered. The new finding complies with this requirement. Defendant raised no issue as to the sufficiency of evidence. He only challenged the sufficiency of the finding of fact. Since the new finding is sufficiently detailed, this argument has no merit.

Defendant next argues “the trial court committed reversible error in excluding the testimony of Paul J. Gworek at the supplemental equitable distribution hearing.” At the supplemental hearing defendant wanted additional testimony to be heard, but the judge made it clear that he did not want to “retry this case again.”

This Court has previously said that on remand it is not necessary for a trial court to hear more evidence on a valuation question if no additional evidence is needed to make an appropriate finding of fact. Harris v. Harris, 84 N.C. App. 353, 352 S.E. 2d 869 (1987). In this case, the Supreme Court did not indicate more evidence was needed, but instead said that the finding of fact needed to more fully explain the basis for the valuation. The trial court determined there was no need for more evidence and such a decision was within its discretion.

Defendant further contends the trial court erred in holding him in willful contempt for failure to pay alimony because “there was no finding of fact that he had the ability to comply.” If the evidence plainly shows the defendant was capable of complying with the alimony order, then absence of a specific finding is immaterial. Daugherty v. Daugherty, 62 N.C. App. 318, 302 S.E. 2d 664 (1983).

In this case, by the time the motion for contempt was heard in March 1987 defendant had failed to make 33 payments of $1,000 each. This failure to pay occurred even after this Court in Patton v. Patton, 78 N.C. App. 247, 337 S.E. 2d 607 (1985), held the amount was reasonable and after the Supreme Court denied defendant’s Petition for Discretionary Review on the alimony issues.

*719Upon reviewing the evidence relied upon by the trial court, we find there was sufficient evidence that defendant was capable of complying with the order. Although the court found defendant’s salary to be $2,000 per month, other findings of fact indicate defendant was paid by his business in the form of fringe benefits and that the retained earnings of his corporation had grown more than $22,000 since the original order. Defendant challenges none of these findings except for the finding that defendant’s present wife is supplied with an automobile by defendant’s corporation. Defendant argues there is no evidence to support this finding and that his wife actually makes the payments on the vehicle. There is contradictory evidence in the record as to this issue, but even if there is insufficient evidence as to this one finding, there remain ample findings to support the court’s conclusions and order. This argument has no merit.

Defendant next argues the court erred by “failing to retroactively reduce, or to reduce or terminate, the defendant’s alimony obligation.” We have already addressed the past payments due to plaintiff and it is clear there should be no retroactive reduction. As to reduction in future payments, there must be a substantial change of circumstances to warrant a modification. Medlin v. Medlin, 64 N.C. App. 600, 307 S.E. 2d 591 (1983). There cannot be a conclusion of substantial change in circumstances based solely on change in income. Id. The overall circumstances of the parties must be compared with those at the time of the award.

Defendant has not met his burden in this case. His arguments are based only on income of the parties. Defendant fails in his arguments to consider financial standing of plaintiff and her accustomed standard of living. Although plaintiff, at the time of the hearing, made $22,788 per year, she had a debt of $20,000. Much of this debt is attributable to defendant’s failure to make past alimony payments. For these reasons, the trial court did not err in failing to reduce defendant’s alimony payments.

[5J Finally, defendant argues the trial court erred in awarding additional attorney’s fees to plaintiff. The requirements for awarding attorney’s fees are found in Clark v. Clark, 301 N.C. 123, 135-36, 271 S.E. 2d 58, 67 (1980):

In order to receive an award of counsel fees in an alimony case, it must be determined that the spouse is en*720titled to the relief demanded; that the spouse is a dependent spouse; and that the dependent spouse is without sufficient means whereon to subsist during the prosecution of the suit, and defray the necessary expenses thereof.

Plaintiff is entitled to the relief prayed for as has already been decided. It is also clear she is a dependent spouse earning less income than defendant. The record also shows plaintiff has not been able to pay her attorney and was in debt $13,000 prior to the contempt hearing. Obviously, she cannot adequately defray the expenses of the contempt proceeding. Defendant has shown no abuse of discretion by the trial court in awarding the fees, and this argument fails.

Affirmed.

Judges BECTON and Smith concur.