Crocker v. Crocker
| Decision Date | 17 August 2010 |
| Docket Number | No. 05 CVD 321,NO. COA09-501,COA09-501,05 CVD 321 |
| Parties | KELLY B. CROCKER, Plaintiff, v. GREGORY S. CROCKER, Defendant. |
| Court | North Carolina Court of Appeals |
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for plaintiff-appellant.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by plaintiff from orders entered 21 October 2008 and 7 January 2 009 by Judge Amy R. Sigmon in Catawba County District Court. Heard in the Court of Appeals 16 November 2009.
Plaintiff Kelly B. Crocker appeals from amended orders for postseparation support and alimony entered on remand following her prior appeal to this Court in Crocker v. Crocker, 190 N.C. App. 165, 660 S.E.2d 212 (2008) ("Crocker I"). With respect to the amended order for postseparation support, we hold that the order still does not include sufficient findings of fact regarding plaintiff's reasonable expenses. As for the amended alimony order, there appears to be a discrepancy in how the trial court treated income received from rental property owned by plaintiff as opposedto rental property owned by defendant. Further, the trial court still has not made findings of fact explaining the reason for the duration and manner of the alimony payments. We must, therefore, remand for further findings as to each order.
Plaintiff and defendant married on 1 July 1989 and had four children. The parties separated on 6 September 2004 and divorced in November 2005. Plaintiff is a pediatrician, and defendant is self-employed, earning income through his ownership and management of rental properties. On 2 February 2005, plaintiff filed a complaint seeking divorce from bed and board, an interim distribution, equitable distribution, child custody, and child support. On 7 April 2005, defendant filed an answer and counterclaims, seeking divorce from bed and board, postseparation support, alimony, equitable distribution, child custody, and child support.
The trial court heard the issues of temporary custody, child support, and postseparation support on 28 June 2005. On 17 August 2005, the trial court entered a postseparation support order, awarding defendant $2,000.00 per month in postseparation support. On 10 July 2006, the parties entered into a consent judgment regarding equitable distribution. The trial court entered the child custody and child support order on 25 September 2006, granting joint legal custody and shared physical custody. Plaintiff was ordered to pay defendant $744.00 per month in child support.
Subsequently, on 20 October 2006, the trial court held a hearing on alimony, at which the court heard testimony and received evidence. The court announced its decision regarding alimony in open court on 13 February 2007 and directed counsel for defendant to prepare the order. On 7 March 2007, plaintiff filed a request for additional findings of fact and amendment of the order although the order had not yet been filed. That order was ultimately entered on 23 March 2007.
In the order, the trial court took judicial notice of and incorporated by reference the postseparation support order, the parties' consent judgment regarding equitable distribution, the child custody and support order, and the parties' wage affidavits and amended alimony affidavits. After concluding that plaintiff is a supporting spouse with the ability to pay alimony and that defendant is a dependent spouse substantially in need of maintenance and support from plaintiff, the trial court awarded defendant $2,000.00 per month in alimony for a period of 16 years. On 29 March 2007, the trial court denied plaintiff's motion for additional findings of fact and amendment of the order.
Plaintiff appealed both the postseparation support order and the alimony order. In Crocker I, 190 N.C. App. at 172, 660 S.E.2d at 217, this Court reversed both orders and remanded for further findings of fact. On remand, the trial court held a nonevidentiary hearing on 4 August 2008. On 21 October 2008, the court entered amended orders for postseparation support and alimony. Both of the orders repeated many of the findings of factcontained in the original orders, but added numerous new findings of fact. Plaintiff was again ordered to pay defendant $2,000.00 per month in both postseparation support and alimony, with payment extending "for a period of 16 years (the duration of the marriage)."
Plaintiff filed notice of appeal from both orders on 18 November 2008. Subsequently, the trial court entered an order amending the amended alimony order to correct the figure reciting the amount of defendant's rental income. Plaintiff filed notice of appeal from the second alimony order on 15 January 2009.
N.C. Gen. Stat. § 50-16.2A(c) (2009) provides that, except in cases of marital misconduct, "a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in [N.C. Gen. Stat. § 50-16.2A(b)], the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay." Under N.C. Gen. Stat. § 50-16.1A(2) (2009), a dependent spouse "is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse." A supporting spouse is the spouse "upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support." N.C. Gen. Stat. § 50-16.1A(5).
Under N.C. Gen. Stat. § 50-16.2A(b), the trial court is required to base its award "on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons." The court must "find specially 'those 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.'" Crocker I, 190 N.C. App. at 168, 660 S.E.2d at 214 (quoting Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)).
Plaintiff first argues that the trial court did not comply with the Court's mandate that the trial court make findings of fact in accordance with N.C. Gen. Stat. § 50-16.2A(b) as to the parties' accustomed standard of living. "The trial court must determine the standard of living, socially and economically, to which the parties as a family unit had become accustomed during the several years prior to their separation." Williams v. Williams, 299 N.C. 174, 183, 261 S.E.2d 849, 856 (1980). The leading treatise on North Carolina family law has noted that "[p]arties usually rely on income and living expenses to determine the standard of living ofthe family as a unit." 2 Suzanne Reynolds, Lee's North Carolina Family Law § 9.28 (5th ed. 1999).
In Barrett v. Barrett, 140 N.C. App. 369, 372-73, 536 S.E.2d 642, 645 (2000), where the defendant challenged the sufficiency of the trial court's findings as to the parties' standard of living, the Court held that the court's "explicit findings as to the parties' respective incomes during the marriage, the type of home in which they lived, and the types of family vacations they enjoyed," as well as a list of bills paid by the defendant prior to separation, "were sufficient for an overall portrayal of the parties' accustomed standard of living." (Emphasis added.) This Court has also found that a trial court sufficiently addressed the parties' standard of living when the order contained findings as to a husband's "monthly gross income and his reasonable living expenses, coupled with the findings as to [the wife's] monthly income and her expenses during the last year of the marriage." Adams v. Adams, 92 N.C. App. 274, 279-80, 374 S.E.2d 450, 453 (1988), superseded on other grounds by statute as stated in Brannock v. Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999), disc. review denied, 351 N.C. 351, 543 S.E.2d 123 (2000).
Here, the trial court found on remand that throughout the marriage, defendant had been the children's primary caregiver and spent the majority of his time at home with the children, although he also worked part-time several days a week on his rental properties in Boone, North Carolina. The court found that defendant had a gross income of $4,800.00 per month and net monthlyincome of $900.00. Plaintiff worked as a pediatrician three days each week, worked on weekends every six weeks, and was on call one night per week. The trial court found that plaintiff had a gross income of $13,444.00 per month and net income of $7,700.00 per month. The parties deposited their earnings into a joint account. During the marriage, the parties took family vacations and trips paid by joint marital funds.
At the date of separation, the parties owned real estate worth $465,000.00 with mortgage debt of $156,167.00, including both a marital residence and a house on lake front property. The parties had a vehicle valued at approximately $40,000.00 and one valued at approximately $5,000.00. No debt was owed on either vehicle. In addition, on about the date of separation, plaintiff gave defendant half the funds in the joint bank accounts, amounting to approximately $21,180.00.
In light of the Court's holdings in Barrett and Adams, we conclude that the trial court's findings on...
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