Adams v. Adams

• Decision Date: 20 December 1988
• Docket Number: No. 8822DC421,8822DC421
• Citation: 374 S.E.2d 450,92 N.C.App. 274
• Parties: Janet Walker ADAMS v. Litz Edward ADAMS.
• Court: North Carolina Court of Appeals

Page 450

374 S.E.2d 450

92 N.C.App. 274

Janet Walker ADAMS v. Litz Edward ADAMS.

No. 8822DC421.

Court of Appeals of North Carolina.

Dec. 20, 1988.

Morrow, Alexander, Tash, Long, and Black (Charles J. Alexander, II, and Ronald B. Black, of counsel), Winston-Salem, for plaintiff-appellee.

Harrell Powell, Jr., and Garry Whitaker, Winston-Salem, for defendant-appellant.

BECTON, Judge.

Defendant appeals from a judgment ordering him to pay $618.34 per month in alimony and mortgage payments and directing that he contribute $2,000 towards plaintiff's attorney fees. We affirm.

Plaintiff, Janet Walker Adams, and defendant, Litz Edward Adams, married on 15 August 1981. They separated on 31 July 1985. The following day, Ms. Adams filed a complaint seeking divorce from bed and board and temporary and permanent alimony. Ms. Adams based her prayer for permanent alimony on alleged indignities and alcohol abuse by her husband. In his answer, Mr. Adams denied those allegations, and he charged Ms. Adams with indignities and with abandonment. On 31 October 1985, Ms. Adams amended her complaint to aver that her husband had "engaged in open and notorious adulterous activities" since the date of their separation.

Ms. Adams' claim for permanent alimony was heard in two phases between January and March 1987. The first phase ended on 2 February when a district court jury returned answers to seven "issues" addressing, primarily, the fault grounds alleged by both parties. The jury found that Ms. Adams had committed indignities against her husband and had abandoned him without just cause. The jury also found that Mr. Adams had committed adultery as alleged by Ms. Adams. It found that Mr. Adams had not offered indignities against Ms. Adams and had not abused alcohol.

After the verdict, the questions of Ms. Adams' dependency and of the amount of alimony to be awarded her were heard before the district court judge. She entered judgment on 26 May 1987. Included in the judgment were 25 findings of fact. Among other things, the judge found that Mr. Adams was 38-years-old; that he was "essentially the owner, operator, manager and primary beneficiary of the income" of LEA Auto Brokers, Inc.; that LEA had deposits of $1,212,292.78 and expenses of $1,149,195.05 between February 1986 and January 1987; that Mr. Adams' monthly gross income during that year was approximately $5,258; that Mr. Adams had "reasonable and necessary monthly living expenses, exclusive of payments on indebtedness," of $1,714.50; and that Mr. Adams had debts totaling $26,145, not including his obligation to make payments on two mortgages on the marital home. The judge found Mr. Adams to be a supporting spouse under N.C.Gen.Stat.Sec. 50-16.1(4) (1987).

The judge included among her remaining findings that Ms. Adams was 43-years-old; that she had had little income from outside employment during her marriage to Mr. Adams; that she owned a design business called Adams Interiors; that she had an associate's degree in interior design and was pursing an advanced degree in the subject; that Adams Interiors grossed $86,383 in 1985 and $142,000 in 1986; that Ms. Adams' net monthly income from her business was $611 in 1985 and $853.80 in 1986; that Ms. Adams "ha[d] demonstrated an earning capacity since the separation ... substantially in excess of her contributions during the mar[riage] ..."; and that Ms. Adams' "current necessary and reasonable monthly living expenses" were approximately $2,280. The judge further found that Ms. Adams had inadequate financial resources and that she was a dependent spouse within the meaning of Section 50-16.1(3). The judge found also that the jury's determination of the fault issues supported a reduction, pursuant to Section 50-16.5(b), of the amount of alimony to be awarded Ms. Adams.

The judge ordered Mr. Adams to pay Ms. Adams $400 per month as permanent alimony. She further directed him to contribute $2,000 toward Ms. Adams' attorney fees and that he pay $218.34 per month on the second mortgage on the marital home prior to equitable distribution. Mr. Adams appeals.

I

Mr. Adams argues that because his adulterous conduct did not begin until after he had separated from Ms. Adams, awarding her alimony contravenes the legislative intent behind the North Carolina alimony statutes. He contends that an essential prerequisite for alimony is that the spouse held liable to pay it be the one primarily responsible for the demise of the marriage. In his brief, Mr. Adams states that the evidence presented at trial demonstrated that Ms. Adams had no intention to reconcile with him after she left their home on 31 July 1985. Consequently, Mr. Adams maintains, the adultery he engaged in after the separation "neither caused the marital break-up nor tended to diminish any remote possibility of reconciliation."

To support his argument, Mr. Adams cites our supreme court's discussion, in Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980), of marital fault and its relevance to alimony awards. In Williams, Justice Carlton wrote that

... [O]ur legislature clearly intended that fault be a consideration in awarding alimony.

In so providing, the legislature implicitly recognized that the dissolution of the family as an economic unit works hardship on both parties.... In such cases, the burden of contending with diminished assets should, in all fairness, fall on the party primarily responsible for the break-up of the economic unit.

... Sound public policy would dictate that the party who violated th[e] binding [marriage] contract should continue to bear its financial burden where he or she can reasonably do so and where that is necessary to prevent a relatively greater economic hardship on the party without fault.

Id. at 188, 261 S.E.2d at 858-59 (emphasis omitted). Using Williams, Mr. Adams invites us to hold that his post-separation adultery nullifies his fault for alimony purposes, especially in light of the jury's finding that Ms. Adams' misconduct occurred prior to and at the time of separation. We decline to so hold.

The State is a party to every marriage of its citizens, and is, therefore, rightfully concerned about the permanence of their marital status. See Bruce v. Bruce, 79 N.C.App. 579, 583, 339 S.E.2d 855, 858 (1986), disc. rev. denied, 317 N.C. 701, 347 S.E.2d 36 (1986). N.C.Gen.Stat.Sec. 50-6 (1987) requires that a wife and husband live separate and apart for one year before the State will grant them an absolute divorce. This waiting period is designed "to protect the institution of marriage from hasty judgments and casual disruptions since differences may in time be reconciled." Mayer v. Mayer, 66 N.C.App. 522, 529, 311 S.E.2d 659, 665 (1984), disc. rev. denied, 311 N.C. 760, 321 S.E.2d 140 (1984). Only when the parties have lived apart for the statutory length of time will the State recognize that their marriage is not salvageable. See Bruce, 79 N.C.App. at 584-85, 339 S.E.2d at 859.

Until the State grants them an absolute divorce, a couple, though separated from each other, continues to be wife and husband. It is for this reason that N.C.Gen.Stat.Sec. 50-16.2 (1987), which sets down the fault grounds for alimony, does not distinguish between pre-separation and post-separation adultery. See Section 50-16.2(1). We do not view the failure of the General Assembly to differentiate between these time periods to be an oversight. Rather, defining adultery so as to include any act of voluntary sexual intercourse between a spouse and a third party- --the former's separation from the other spouse notwithstanding--is consistent with the policy favoring reconciliation. See Lee, North Carolina Family Law Sec. 65 (1979) (defining adultery as "... voluntary sexual intercourse of a married person with one other than his or her spouse.") Viewed in this way, we do not believe Mr. Adams can claim, as he attempts to do, that he is free from fault concerning the dissolution of his marriage. His conduct diminished prospects for reconciliation with his wife, and it contributed, therefore, to the finality of their break-up.

In cases such as this, the law's drawing of "bright lines" may seem to demonstrate too little regard for the complex emotional decisions married people make about the state of their relationship. It is our view, however, that the legislature has indicated that such lines exist. Our alimony statutes do not call upon the appellate courts to determine, on a case by case basis, when post-separation adultery is grounds for alimony and when it is not. We are not called upon, in short, to determine when a spouse may justifiably act upon the other spouse's announcement that reconciliation is impossible. Rather, we think it the intent of our legislature, and we so hold, that voluntary sexual intercourse by a spouse with a third party during the period of separation required by Section 50-6 is adultery as contemplated by Section 50-16.2(1), and is a ground for alimony. In so holding, we point out that this case does not involve, and we do not decide, whether any of the other fault-based grounds in the post-separation context affects alimony.

II

Mr. Adams further claims that the trial judge failed to base the alimony award on adequate findings of fact as required by N.C.Gen.Stat.Sec. 50-16.5(a) (1987) and Sec. 1A-1, R.Civ.P. 52(a) (1983). Specifically, Mr. Adams contends the court did not make findings as to the accustomed standard of living of the parties and the total value of their estates. He also claims the court failed to find facts relevant to his earnings. We find no merit in Mr. Adams' arguments.

Rule 52(a) requires the trial court to find "material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached." Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). If the trial court complies with the mandate of Quick, appellate...