Brady v. Brady

• Citation: 871 S.E.2d 565
• Decision Date: 05 April 2022
• Docket Number: COA20-827
• Parties: Jolin BRADY, Plaintiff, v. Erron BRADY, Defendant.
• Court: Court of Appeal of North Carolina (US)

871 S.E.2d 565

Jolin BRADY, Plaintiff,

v.Erron BRADY, Defendant.

No. COA20-827

Court of Appeals of North Carolina.

Filed April 5, 2022

Sodoma Law, by Amy E. Simpson, and Hamilton Stephens Steele and Martin, PLLC, by Kyle W. LeBlanc, for Plaintiff-Appellee.

Myers Law Firm, PLLC, Charlotte, by Matthew R. Myers, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant appeals the trial court's Order for Alimony and Child Support, Equitable Distribution Judgment, and Order Denying Contempt ("Order"). Defendant argues that there are various deficiencies in the findings of fact and conclusions of law regarding the alimony award and equitable distribution. We discern merit in Defendant's challenge to the sufficiency of the findings of fact to support the amount of alimony awarded. We discern no merit in his remaining arguments. We vacate the alimony award and remand for further findings of fact and conclusions of law supported by those findings. We affirm the remainder of the Order.

I. Background

¶ 2 Plaintiff Jolin Brady and Defendant Erron Brady were married 26 April 1997, separated 11 June 2017, and divorced 26 September 2018. They are the parents of four children: a son born on 21 January 2002 and triplets born on 18 July 2005. Defendant was in undergraduate school at Brigham Young University when the parties married. The parties moved to Kentucky where Defendant went to dental school at the University of Kentucky. While Defendant was in dental school, Plaintiff worked as a paralegal and then stopped working when the parties’ eldest son was born. The parties moved to Charlotte, North Carolina, in 2002 after Defendant finished dental school. Defendant worked for several dental offices in the Charlotte area until opening his own dental practice on 2 May 2005, two months before the birth of the parties’ triplets.

¶ 3 Defendant is the sole owner of the dental practice, Erron S. Brady, DMD, PA ("Brady Family & Cosmetic Dentistry"). Defendant owns the office suite in which the dental practice is located through an LLC, Erron Brady Properties, LLC. The dental practice pays rent for the office suite to the LLC. In 2014, Plaintiff began working part-time as a yoga instructor.

¶ 4 Plaintiff commenced this action by filing a complaint for equitable distribution on 12 January 2018 under file number 18-CVD-937. Defendant filed an answer and counterclaim for equitable distribution on 19 February 2018. Plaintiff filed a complaint for child custody, child support, postseparation support, alimony, motion for physical and mental examination, appointment of expert, interim distribution, appointment for business evaluation, and attorney fees on 21 February 2018 under file number 18-CVD-3737. Defendant filed an answer and counterclaim for custody in 18-CVD-3737 on 4 May 2018. A consent order to consolidate the two pending actions into file number 18-CVD-937 was entered. Plaintiff filed a reply to Defendant's counterclaim for custody on 5 July 2018. A consent order for child custody was entered 4 June 2019.

¶ 5 A trial was held on 19 September 2019, 20 September 2019, and 15 October 2019 on contempt, equitable distribution, child support, alimony, and limited custody issues. At the start of the trial on 19 September 2019, the trial court entered a final pre-trial order which contained the contentions of the parties as to the various items of property to be distributed by the trial court. The parties ultimately agreed to the distribution of household goods. The agreement assigned a value of $23,000.00 in the equitable distribution to Plaintiff for the household goods, and a consent order regarding household goods was entered 18 December 2019.

¶ 6 In the final pre-trial order, the parties agreed on the distribution of most assets, with Plaintiff receiving $537,732.04 and Defendant receiving $587,049.68 of the agreed-upon assets. Four items were left for a determination by the trial court: (1) the valuation of Defendant's dental practice; (2) whether a Bank of America savings account ending in 3803 with $4,804.82 should be treated as Defendant's personal asset or part of his dental practice; (3) whether a Bank of America checking account ending in 0148 with $33,000.01 should be treated as Defendant's personal asset or part of his dental practice; and (4) how to distribute a checking account ending in 0293 in the amount of $8,738.68.

¶ 7 Plaintiff contended the value of the dental practice was $520,000 and Defendant contended the value of the practice was $400,000. Both sides presented experts at the trial on the value of the business. The total marital estate outlined in the final pre-trial order was $1,690,607.90, based on Plaintiff's figures, or $1,570,607.90, based on Defendant's figures. Once the agreed-upon $23,000.00 for household goods was added in, the total marital estate was $1,713,607.90, based on Plaintiff's figures, or $1,593,607.90 based on Defendant's figures.

¶ 8 The trial court entered its Order on 20 May 2020. The Order found the total marital estate to be $1,713,605 and distributed 54% of the estate to Plaintiff. The Order requires Defendant to refinance the office suite and cash out the equity to make a distributive award payment to Plaintiff of $364,000. The Order found Defendant's net monthly income to be $10,922.01, ordered him to pay alimony of $5,250 per month for 10 years from October 2019, and ordered child support of $3,483.83 per month.

¶ 9 Defendant timely appealed.

II. Discussion

A. Amount and Duration of Alimony

¶ 10 Defendant first argues that the trial court erred in setting the amount and duration of alimony.

¶ 11 The amount of alimony is determined by the trial judge in the exercise of his sound discretion and is reviewed on appeal only for an abuse of discretion. Quick v. Quick , 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982) (citation omitted).

In determining the amount of alimony[,] the trial judge must follow the requirements of the applicable statutes. Consideration must be given to the needs of the dependent spouse, but the estates and earnings of both spouses must be considered. "It is a question of fairness and justice to all parties."

Id. (quoting Beall v. Beall , 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976) ).

A trial court's award of alimony is addressed in N.C. Gen. Stat. § 50-16.3A ..., which provides in pertinent part that in "determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors" including, inter alia, the following: marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the extent to which the earning power, expenses, or financial obligations of a spouse are affected by the spouse's serving as custodian of a minor child; the standard of living of the spouses during the marriage; the assets, liabilities, and debt service requirements of the spouses, including legal obligations of support; and the relative needs of the spouses.

Hartsell v. Hartsell , 189 N.C. App. 65, 69, 657 S.E.2d 724, 727 (2008) (reciting factors listed in N.C. Gen. Stat. § 50-16.3A(b) ). In its order, "the court shall set forth ... the reasons for its amount, duration, and manner of payment [and] ... shall make a specific finding of fact on each of the factors in [ N.C. Gen. Stat. § 50-16.3A(b) ] if evidence is offered on that factor." N.C. Gen. Stat. § 50-16.3A(c) (2019).

Unless the supporting spouse is deliberately depressing his or her income or indulging in excessive spending because of a disregard of the marital obligation to provide support for the dependent spouse, the ability of the supporting spouse to pay is ordinarily determined by his or her income at the time the award is made. If the supporting spouse is deliberately depressing income or engaged in excessive spending, then capacity to earn, instead of actual income, may be the basis of the award.

Quick , 305 N.C. at 453, 290 S.E.2d at 658 (citations omitted).

¶ 12 The trial court in this case made the following findings of fact relevant to the amount and duration of the alimony award:

1. The parties were married on April 26, 1997, legally separated on June 11, 2017 ("DOS") and were divorced on September 26, 2018.

....

6. Plaintiff/Mother and Defendant/Father were both raised in the Mormon religion. Due to Defendant/Father's affairs, he has been excommunicated from the Mormon church two (2) times and is currently excommunicated....

7. Plaintiff/Mother was a stay at home mother for the majority of the parties’ marriage. Plaintiff/Mother worked full time while Defendant/Father finished his last year at BYU through the first 3.5 years of dental school. Once the parties had their first child, Plaintiff/Mother stopped working and focused her efforts on raising a family. In 2005, the parties had triplets and Plaintiff/Mother continued in her role as a stay-at-home parent. This allowed Defendant/Father to focus on working full days, earning substantial money, and advancing his career.

8. Defendant/Father is a self-employed dentist who works for a practice known as Brady Family and Cosmetic Dentistry....

9. Defendant/Father's gross salary is approximately $18,364.42 per month.

10. Defendant/Father is able to access his dental practice funds when he needs and/or wants the money. He bought a $25,000 dining room table and chairs from the business account when he wanted it, he spent over $10,000 flying first class and staying at the Ritz Carlton (with surf lessons, valet service, meals, etc.) because he wanted a "write off"; he spent over $9,000 in just over 2 months on guns and gun related paraphernalia; he has spent over $13,000 traveling to see his new wife in foreign locations, etc.; he spent over $6,300 in 4 months in 2018 traveling to Utah; he spent over $5,600 taking the children on vacation in 2017 (and upgrading their flight to first class). In fact, he

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