270 S.E.2d 546 | N.C. Ct. App. | 1980
Hilda S. PAYNE
v.
Alfred E. PAYNE.
Court of Appeals of North Carolina.
*548 Sanford, Adams, McCullough & Beard by Renee J. Montgomery and Charles H. Montgomery, Cary, for plaintiff-appellant.
Stephen T. Smith, Raleigh, for defendant-appellee.
HEDRICK, Judge.
Plaintiff's assignments of error all relate to the amount of alimony the court ordered defendant to pay to plaintiff. G.S. § 50-16.5(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 trial judge must follow the requirements of this section in determining the amount of permanent alimony to be awarded, the trial judge's determination of the proper amount is within his sound discretion and his determination will not be disturbed on appeal absent a clear abuse of that discretion. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); Cornelison v. Cornelison, 47 N.C.App. 91, 266 S.E.2d 707 (1980); Clark v. Clark, 44 N.C.App. 649, 262 S.E.2d 659 (1980). Plaintiff contends that the findings, conclusions, and order requiring defendant to pay permanent alimony to plaintiff in the lump sum of $15,000 constitute a clear abuse of discretion on the part of the trial judge. We agree.
The findings of fact made by the trial judge afford us some insight into the "accustomed *549 standard of living" of the parties. Before they separated, the parties had a combined net income of $2,201 per month. They lived in a home with a monthly mortgage payment of $434, and plaintiff had the use of a 1978 Monte Carlo automobile. Their consumer indebtedness was within reasonable limits considering their net monthly income. While the parties had not accumulated assets of significant value, it is a reasonable inference that they lived quite well under all the circumstances.
Because of the patent ambiguities in the order providing the amount and manner of the payment of alimony, we are uncertain of the benefits to be derived by plaintiff and the obligation to be imposed upon defendant. If the parties are not divorced and the residence is not sold, defendant might not be required to pay the $10,000 at all, and plaintiff will be required to make the $434 monthly mortgage payments indefinitely, half of which will inure to the benefit of defendant as one of the tenants by the entirety. Under these circumstances, it is not likely that defendant would seek an early divorce or agree to any early sale of the property. On the other hand, plaintiff is not likely to obtain an absolute divorce, since that might jeopardize all of her rights to alimony. G.S. § 50-11(c); McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976). Also, plaintiff is not likely to be anxious for a quick sale of the property, even though her obligation to make monthly mortgage payments would thereby be terminated, since she would be giving up her place of residence with all of the consequent inconvenience and expense of finding a new home. If, as suggested by counsel on oral argument in this case, the judge by the order intended to force a sale of the property, an opposite result most likely would have been accomplished.
It hardly seems necessary to elaborate further on the infirmities of the order in question. However, lest someone conclude that a lump sum payment of $15,000 by defendant to plaintiff would be adequate and proper under the circumstances of this case, we do so elaborate. As pointed out above, before their separation the parties had a combined net "spendable" income of $2,201 per month. After the order, plaintiff will have a net monthly income of $662. Such an amount is $138 less than the $800 per month found by the trial judge to be plaintiff's "reasonable monthly living expenses." On the contrary, after the order defendant will have a net monthly income of $1,539, which is $739 more than the $800 per month which the court found to be defendant's "reasonable monthly living expenses." These figures do not take into consideration that defendant must liquidate the $5,491 consumer indebtedness of the parties, nor the fact that plaintiff, in order to have a place to live, must make monthly mortgage payments of $434. We do not need a computer, however, to convince us that the order challenged by this appeal effectively destroys plaintiff's "accustomed standard of living" while substantially improving defendant's. Overshadowing the entire matter is the inescapable fact that in five years plaintiff's right to "permanent alimony" will terminate, along with any semblance of her accustomed standard of living. Manifestly, the order fixing the amount and manner of payment of alimony fails to satisfy the minimal standards of G.S. § 50-16.5(a), and must be vacated and the cause remanded to the district court for another hearing with respect to the amount of alimony only, new findings, and a proper order. Those portions of the order declaring plaintiff to be a dependent spouse and defendant to be a supporting spouse and allowing plaintiff's claim for divorce from bed and board and attorneys fees are affirmed.
Vacated and remanded in part; affirmed in part.
MORRIS, C. J., and WHICHARD, J., concur.