Bookholt v. Bookholt

• Decision Date: 30 December 1999
• Docket Number: No. COA99-175.,COA99-175.
• Citation: 523 S.E.2d 729,136 NC App. 247
• Court: North Carolina Court of Appeals
• Parties: Valerie BOOKHOLT, Plaintiff, v. Robert G. BOOKHOLT, Defendant.

523 S.E.2d 729

136 NC App. 247

Valerie BOOKHOLT, Plaintiff, v. Robert G. BOOKHOLT, Defendant.

No. COA99-175.

Court of Appeals of North Carolina.

December 30, 1999.

Casstevens, Hanner, Gunter & Gordon, P.A., by Mark D.N. Riopel and Robert P. Hanner, II, Charlotte, for plaintiff-cross-appellant.

Helms, Cannon, Hamel & Henderson, P.A., by Thomas R. Cannon and Christian R. Troy, Charlotte, for defendant-appellant. LEWIS, Judge.

Defendant appeals from an order requiring him to pay $2400 per month in alimony, $2350 per month in child support, and $4889 in attorneys' fees. Plaintiff cross-appeals from that part of the order stating that alimony terminates should she ever cohabit with a person of the opposite sex.

Plaintiff and defendant married on 30 May 1970 and separated on 22 March 1993. The parties entered into a consent order on 7 December 1993 covering, among other things, the issues of alimony pendente lite and temporary child support. Pursuant to that consent order, defendant agreed to pay $2200 per month in alimony and $2000 per month in child support. A divorce decree was issued on 16 May 1994, and a consent order for equitable distribution was subsequently entered on 9 January 1995. The issues of permanent alimony and permanent child support were not addressed until the order that is the subject of this appeal. Other facts will be presented as necessary for the proper resolution of the issues raised by each party. We now turn to those issues.

Defendant first assigns error with the trial court's alimony award. He does not take issue with plaintiff's entitlement to alimony, but rather takes issue with the amount the trial court ordered him to pay. Decisions regarding the amount of alimony are left to the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a manifest abuse of that discretion. Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982). We find no such abuse of discretion here.

Defendant argues that, in ordering $2400 per month in alimony, the trial court failed to account for the prior consent order as to alimony pendente lite, in which both parties agreed that a $2200 monthly obligation would be sufficient. This argument is completely without merit, and defendant even admitted as much at oral argument. By definition, alimony pendente lite is only temporary in nature; it just means the amount of alimony to be paid "pending the final judgment of divorce." N.C. Gen.Stat. § 50-16.1(2) (repealed 1995). Its purpose is simply to help the dependent spouse subsist and maintain herself during the pendency of the divorce litigation. Little v. Little, 12 N.C.App. 353, 356, 183 S.E.2d 278, 280 (1971). Accordingly, the amount of alimony pendente lite to which the parties consent does not bind the trial court as to the amount of permanent alimony it must eventually award.

Defendant also argues that, in calculating the $2400 monthly award, the trial court erred in computing the needs and expenses of each party. In his financial affidavit submitted to the trial court, defendant listed $2100 in projected monthly housing costs to enable him to attain better housing. The trial court, however, considered these projections speculative and reduced this figure to $960.50 in finding defendant's total monthly needs and expenses to be $2823.35. Defendant maintains that this amounted to an abuse of the trial judge's discretion. We disagree. "The determination of what constitutes the reasonable needs and expenses of a party in an alimony action is within the discretion of the trial judge, and he is not required to accept at face value the assertion of living expenses offered by the litigants themselves." Whedon v. Whedon, 58 N.C.App. 524, 529, 294 S.E.2d 29, 32, disc. review denied, 306 N.C. 752, 295 S.E.2d 764 (1982). Implicit in this is the idea that the trial judge may resort to his own common sense and every-day experiences in calculating the reasonable needs and expenses of the parties. Here, the trial court apparently felt the $2100 in projected housing costs was unreasonable and then reduced that figure to an amount it felt was more reasonable. By doing so, we find no abuse in the exercise of its discretion.

Defendant also claims error in the trial court's calculations as to plaintiff's needs and expenses. In her financial affidavit, plaintiff listed her expenses as $1941.71 per month. The trial judge concluded that five of these expenses were unreasonable and, without making any further findings, reduced plaintiff's figure by $625.49. Defendant argues that, even though the trial court's reduction ultimately benefited him, the trial court's calculations are "patently defective" absent appropriate findings to explain them. Again we disagree. As previously stated, the trial judge is not bound by the financial assertions of the parties and may resort to common sense and every-day experiences. By reducing some of plaintiff's expenses here, the trial court did not abuse its discretion.

Defendant also argues that the alimony award is flawed because the trial court made no findings relative to the duration of the award, instead just mandating a lifetime award. Our statutes presently do require specific findings relative to the duration of any alimony award. N.C. Gen.Stat. § 50-16.3A(c) (1999). Significantly, however, this requirement only applies to actions filed on or after 1 October 1995. N.C. Gen.Stat. § 50-16.3A, Editor's Note (1999). This action was filed on 16 July 1993, pre-dating the present statute. The prior applicable version of the statute contained no requirement that there be findings relative to the duration of any alimony award. See N.C. Gen.Stat. § 50-16.5(a) (repealed 1995) ("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."). Accordingly, the trial court did not err by making no findings to support its lifetime award.

Next, defendant assigns error with the trial court's child support award. At the outset, we note that the parties' combined annual income exceeds $150,000. Accordingly, the North Carolina Child Support Guidelines do not apply, and any child support award is to be determined on a case-by-case basis. N.C. Child Support Guidelines, 1999 Ann. R. N.C., Commentary at 32. Defendant argues that, in ordering $2350 per month in child support, the trial court failed to account for the prior consent order as to temporary child support, in which both parties agreed that a $2000 monthly obligation would be sufficient. We reject this argument for the same reason that we rejected defendant's similar argument with respect to the alimony pendente lite consent order—the amount of temporary child support agreed to by the parties does not bind the trial court as to the amount of permanent child support it eventually awards.

Defendant also asserts error in the trial judge's findings with respect to the child's needs and expenses. In computing defendant's child support obligation, the trial court found the child to have reasonable needs and expenses of $3407 per month. In arriving at this figure, the trial court again did not accept all the projected expenses submitted by plaintiff, choosing to reduce those numbers by $466 without making any further findings. Although this reduction again benefited him, defendant argues that the award is nonetheless defective because the trial court did not make appropriate findings to justify this reduction. For the same reasons as we articulated earlier, this argument is without merit.

Finally, defendant assigns error to the trial court's award of $4889 in attorneys' fees to plaintiff. We conclude that the trial court made insufficient findings relative to its award of attorneys' fees and therefore remand the matter to the trial court for further findings.

"[T]he purpose of the allowance of counsel fees is to enable the dependent spouse, as litigant, to meet the supporting spouse, as litigant, on substantially even terms by making it possible for the dependent spouse to employ adequate counsel." Williams v. Williams, 299 N.C. 174, 190, 261 S.E.2d 849, 860 (1980). Accordingly, before an award of attorneys' fees in either a child support or alimony case is permissible, there must be a threshold finding that the dependent spouse has insufficient means to defray her litigation expenses. See N.C. Gen.Stat. § 50-13.6 (1999) (relating to child support); N.C. Gen.Stat. §§ 50-16.3, -16.4 (repealed 1995) (relating to alimony). In making this determination, the trial court should focus on both the disposable income of the dependent spouse and on her separate estate. Van Every v. McGuire, 348 N.C. 58, 62, 497 S.E.2d 689, 691 (1998). Here, plaintiff has a separate liquid estate of $88,000 from which she could pay her litigation expenses. The trial court, however, apparently failed to take this into account and instead just focused on her negative disposable income to justify the award of attorneys' fees. While the presence of a...