Fink v. Fink
| Decision Date | 17 October 1995 |
| Docket Number | No. 9426DC242,9426DC242 |
| Citation | 120 N.C.App. 412,462 S.E.2d 844 |
| Parties | Robbie C. FINK, Plaintiff/Appellee, v. Calvin L. FINK, Defendant/Appellant. |
| Court | North Carolina Court of Appeals |
Horack, Talley, Pharr & Lowndes, P.A. by Tate K. Sterrett, Charlotte, for plaintiff-appellee.
Knox, Knox, Freeman & Brotherton by Bobby L. Bollinger, Jr., Charlotte, for defendant-appellant.
Calvin Fink (defendant) appeals the trial court's award of permanent alimony to Robbie Fink (plaintiff) and brings forward sixteen (16) assignments of error. For the reasons set forth herein, we reverse the decision of the trial court.
Relevant procedural and factual information is as follows: The parties were married 22 July 1973 and separated 23 July 1989. One child was born of the marriage, Jennifer Lee Fink.
On 1 October 1991, plaintiff filed a complaint seeking absolute divorce, temporary and permanent alimony, attorneys' fees, custody and child support of the minor child, and equitable distribution.
On 18 November 1991, a consent order was entered vesting custody of the minor child with plaintiff and providing for liberal visitation by defendant. Child support was set in the amount of $425.00 per month and defendant was further directed to maintain an insurance policy covering the child's medical needs and to defray certain orthodontic expenses of the child. Plaintiff's monthly gross income was specified as $1,426.00 and defendant's as $3,179.00. The order also provided:
The application of the current child support guidelines to the facts of this case would result in a child support award from defendant to plaintiff of approximately $425.00 per month, together with an additional sum for expenses in connection with orthodontic appliances for the child. There is no reason which justifies deviation from the child support guidelines at this time.
On 6 January 1992, defendant answered plaintiff's complaint, and on 4 June 1993, the parties entered into a consent judgment regarding equitable distribution. By stipulation, defendant conceded he had committed acts constituting "grounds for alimony within the meaning of N.C.G.S. § 50-16.2," and the subsequent alimony hearing was limited to the issues of dependency and "whether Plaintiff has committed acts which would be grounds for alimony if she were the supporting spouse" so as to disallow alimony or reduce the amount of alimony otherwise payable.
The trial court's judgment included the following pertinent findings of fact:
C.
INCOME AND EARNING CAPACITY
....
17. Defendant has various sums withheld from his wages for income taxes and social security. He also has withheld from his wages the sum of $119.00 per month, to pay for medical insurance coverage for the Child....
18. Taking into account defendant's actual income tax liability, rather than the sums withheld from his wages, and also taking into account the cost of medical insurance coverage which defendant provides for the Child and the sums contributed to defendant's retirement plan, defendant has net income of approximately $2,099.00 per month.
....
D.
ESTATES
....
26. Since the date of separation, plaintiff has acquired a 1992 Chevrolet Lumina automobile, which was purchased for her by her father. Plaintiff has made a number of payments to her father and is attempting to pay him $200.00 per month to repay the purchase price of this automobile.
....
G.
DEFENDANT'S NEEDS
....
35. Defendant has reasonable needs of $504.00 per month for food, clothing, personal care, entertainment, uninsured medical, gifts, travel and vacation and other items; and, defendant has reasonable expenses of $584.00 per month for rent, household maintenance and repair, utilities, cable, gas for auto, auto maintenance and repair, car insurance, and other items. His total reasonable needs for his own support and maintenance is $1,088.00 per month.
H.
36. In addition to medical insurance coverage and the other needs which defendant directly provides for the parties' child, Jennifer Lee Fink, the Child has other reasonable needs for her support and maintenance of $1,192.00 per month,....
....
J.
DEPENDENCY
....
42. As set out above, in addition to the medical insurance coverage and other needs which defendant provides directly for the Child, the Child has reasonable needs for her support and maintenance of $1,192.00 per month.
43. Defendant contributes $425.00 per month in child support to defray the Child's needs of $1,192.00 per month. The plaintiff provides the remaining $767.00 per month of the Child's needs.
44. As set out above, in computing the amount of defendant's net income at $2,099.00 per month, the Court took into account and gave defendant credit for $119.00 per month which was withheld from his wages to provide medical insurance coverage for the Child. After considering the amount of child support paid by defendant and after also considering the additional $177.00 per month expended by defendant in directly providing certain needs for the Child, defendant has available $1,497.00 per month to meet his own needs of $1,088.00 per month ($2,099.00 net income, minus $425.00 child support, and minus $177.00 other expenses provided directly for Child).
45. After subtracting from [plaintiff's] net income of $1,260.00 per month the $767.00 per month which she contributes towards the Child's needs, plaintiff has available $493.00 per month to contribute towards her own needs of $1,055.00 per month. Thus, she has a shortfall of $562.00 per month in meeting her own needs.
46. Plaintiff is unable to meet her living expenses and needs and is unable to maintain her accustomed standard of living without financial contribution from defendant.
47. Plaintiff is in need of support and maintenance from defendant in order to meet her living expenses and needs.
....
L.
51. Considering all of the foregoing facts and circumstances, the amount of alimony which is necessary for defendant to pay to plaintiff in order to enable plaintiff to meet her living expenses and needs, in accordance with her accustomed standard of living, is $562.00 per month.
52. Taking into account the foregoing facts and circumstances, and also considering defendant's ability to contribute towards plaintiff's needs and expenses, the amount of alimony which defendant is able to afford to contribute, at the present time, is $409.00 per month.
Based on its findings, the court ordered defendant to pay $409.00 per month in permanent alimony and $6,000.00 in attorneys' fees. Defendant gave notice of appeal to this Court 20 September 1993.
Defendant first contends the trial court committed reversible error by including in plaintiff's "needs a sum for the support of the minor child," particularly under circumstances "when a Guideline child support consent order had previously been entered and the amount so included exceeded her presumed child support obligations under the Guidelines." We find defendant's argument persuasive in part.
"Alimony" is defined as "payment for the support and maintenance of a spouse, either in lump sum or on a continuing basis, ordered in an action for divorce...." N.C.Gen.Stat. § 50-16.1(1) (1987). Only a dependent spouse, that is, one "who 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," N.C.Gen.Stat. § 50-16.1(3) (1987), is entitled to alimony in North Carolina. N.C.Gen.Stat. § 50-16.2 (1987).
"Actually substantially dependent" means "the spouse seeking alimony must have actual dependence on the other in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation." Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980). " 'Substantially in need of' [support]" means that the dependent spouse "would be unable to maintain his or her accustomed standard of living (established prior to separation) without financial contribution from the other." Id. at 181-82, 261 S.E.2d at 855. From Finding of Fact No. 46, it appears the trial court based its determination of dependency upon plaintiff's being substantially in need of defendant's support.
Whether a spouse is "substantially in need of maintenance and support" as defined by G.S. § 50-16.1(3) "is determined by construing this statute in pari materia with the terms of N.C.Gen.Stat. § 50-16.5" which prescribes factors for the trial court to consider in determining the amount of alimony. Lamb v. Lamb, 103 N.C.App. 541, 548, 406 S.E.2d 622, 626 (1991) (citing Williams, 299 N.C. at 182, 261 S.E.2d at 855). Thus, "[i]n determining the needs of a dependent spouse, all of the circumstances of the parties should be taken into consideration including the property, earnings, earning capacity, condition and accustomed standard of living of the parties." Peeler v. Peeler, 7 N.C.App. 456, 461, 172 S.E.2d 915, 918 (1970); accord Sprinkle v. Sprinkle, 17 N.C.App. 175, 182, 193 S.E.2d 468, 474 (1972). As stated more specifically in Williams:
Applying the factors of G.S. 50-16.5, we think the legislature intended trial courts to determine dependency under G.S. 50-16.1(3) bearing in mind these propositions:
....
A. 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.
B. It must also determine the present earnings and prospective earning capacity and any other "condition" (such as health and child custody ) of each spouse at the time of hearing.
C. After making these determinations, the trial court must then determine whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the standard of living of the spouse seeking alimony in...
To continue reading
Request your trial
-
Robinson v. Robinson
...when the child for whom the support is needed resides primarily with the recipient of the alimony.’ ” Fink v. Fink, 120 N.C.App. 412, 420, 462 S.E.2d 844, 851 (1995) (quoting Wolfburg v. Wolfburg, 27 Conn.App. 396, 402, 606 A.2d 48, 52 (1992)), disc. rev. denied, 342 N.C. 654, 467 S.E.2d 71......
-
Hart v. Hart
...Rules 51 (2019). The gross income of the parents is used to calculate the presumptive child support obligation. Fink v. Fink , 120 N.C. App. 412, 424, 462 S.E.2d 844, 853 (1995), disc. review denied , 342 N.C. 654, 467 S.E.2d 710 (1996). "Income" is broadly defined under the Guidelines asa ......
- In re Mills
-
Barham v. Barham
... ... "[T]he 'overriding principle' in cases determining the correctness of alimony is 'fairness to all parties.' " Fink v. Fink, 120 N.C.App. 412, 418, 462 S.E.2d 844, 850 (1995)(quoting Marks v. Marks, 316 N.C. 447, 460, 342 S.E.2d 859, 867 (1986)), disc. review ... ...