Frey v. Best

• Decision Date: 15 April 2008
• Docket Number: No. COA07-703.,COA07-703.
• Citation: 659 S.E.2d 60
• Parties: Cynthia Ann FREY, Plaintiff, v. John P. BEST, Jr., Defendant.
• Court: North Carolina Court of Appeals

659 S.E.2d 60

Cynthia Ann FREY, Plaintiff, v. John P. BEST, Jr., Defendant.

No. COA07-703.

Court of Appeals of North Carolina.

April 15, 2008.

Appeal by plaintiff from judgment entered 28 September 2006 by Judge Lillian Jordan in Durham County District Court. Heard in the Court of Appeals 4 February 2008.

Sandlin & Davidian, P.A., by Deborah Sandlin, Raleigh, for plaintiff-appellant.

No brief, for defendant-appellee.

MARTIN, Chief Judge.

Plaintiff Cynthia Ann Frey ("wife") and defendant John P. Best, Jr. ("husband") were married on 4 April 1998 and separated on 13 September 2002. Three children were born to the parties during the course of their marriage; at the time the parties separated, the ages of the children were four years, two years, and six months. On 8 October 2002, the parties executed a Separation, Child Custody, and Family Support Agreement. In May 2003, wife filed a complaint seeking enforcement of the parties' October 2002 Family Support Agreement, as well as sole custody of the minor children, child support post-separation support, alimony, equitable distribution, issuance of a temporary restraining order to prevent waste of a named marital asset, and attorney's fees. On 20 June 2003, husband filed his Answer, Counterclaim, and Motions seeking joint custody of the minor children and praying for the court to set the amount of child support according to the North Carolina Child Support Guidelines. Wife filed her Reply to husband's counterclaims on 21 July 2003. The record on appeal referenced more than eighteen motions subsequently filed by both parties; those motions and orders relevant to the issues before this Court are identified below.

On 26 June 2003, the parties agreed in a consent order that husband would pay $1,150.00 per month in child support and $1,150.00 per month in alimony, in addition to other costs including health insurance for wife and the minor children, as well as $5,500.00 in arrearages accrued under the parties' October 2002 Family Support Agreement. On 10 July 2003, the court entered an order incorporating the parties' Parenting Agreement which established that the minor children would reside with wife and would visit with husband on specified days and times.

On 12 March 2004, husband filed a motion to modify alimony and child support based on a substantial change in circumstances. On 14 June 2004, wife filed a motion praying for the court to deviate from the North Carolina Child Support Guidelines in the event that the court determined there had been a substantial change in circumstances when considering husband's 12 March motion. On 10 September 2004, the court entered an Amended Order dismissing wife's motion to deviate from the North Carolina Child Support Guidelines and reducing husband's child support obligation to $964.95 per month. The amount of alimony payable to wife remained $1,150.00 per month based on the court's findings regarding wife's actual monthly needs and its conclusions regarding husband's continued ability to pay. The court also ordered husband to pay arrearages accrued in child support, alimony, and unreimbursed medical expenses for the minor children, as well as wife's attorney's fees. On 4 November 2004 and 28 March 2006, the court ordered husband to be held in Durham County Jail after finding him in contempt for continued nonpayment of child support and alimony.

On 28 June 2006, wife filed a motion to amend the current parenting agreement between the parties to allow her to relocate with the minor children to Olympia, Washington. On 11 July 2006, the court entered a pretrial conference order signed by wife (pro se), husband's counsel, and the presiding judge setting the hearing on the issue of child custody for 21-22 September 2006. On 11 August 2006, husband filed and served a motion to modify child custody, child support, and alimony based upon a material and substantial change in circumstances. A hearing on wife's motion to permit relocating the children to the State of Washington was held on 14-15 September 2006. At that time, the court indicated its intent to also hear husband's 11 August 2006 motion to "modify the existing custodial, child support and alimony orders, which are in effect." Wife's counsel asked to continue the matters of child support and alimony because she was not aware that those issues were set for court on that day and was "not prepared to go forward." Nevertheless, the court decided to "just hear all issues pending."

On 28 September 2006, the court entered an order denying wife's motion to relocate with the minor children, reducing husband's alimony payments to $0, and reducing husband's child support payments to $720.00 per month. Husband was also ordered to pay a total of $43,412.30 in arrearages arising from amounts due for alimony, child support, medical bills, child care, and attorney's fees. Due to a finding that husband "ha[d real anger] problems that if left unchecked could have an adverse effect on his sons," husband was also ordered to attend an anger management assessment within 90 days from the order entry date, and to complete the treatment recommended, if any. By consent of the parties, all of whom were residents of Wake County at the time of the September 2006 hearing, the case was transferred to Wake County.

The record on appeal contains forty-five assignments of error. Those assignments of error for which wife failed to present arguments are not discussed below and are deemed abandoned. N.C.R.App. P. 28(a) (2008) ("Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief, are deemed abandoned.").

I.

Wife first contends that the trial court erred by reducing husband's alimony obligation to zero dollars ($0.00) without making findings of fact regarding wife's reasonable needs or husband's ability to pay alimony. We agree.

"An order of a court of this State for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." N.C. Gen.Stat. § 50-16.9(a) (2007). "This power to modify includes the power to terminate alimony altogether." Self v. Self, 93 N.C.App. 323, 325, 377 S.E.2d 800, 801 (1989) (citing Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966)).

On 26 June 2003, the parties in this case agreed in a consent order that husband would pay wife $1,150.00 per month in alimony. "[W]hen alimony is part of a private agreement between the parties and is then incorporated into a court order such as a divorce decree[,] ... the agreement is treated as a court order for purposes of modification." Cunningham v. Cunningham, 345 N.C. 430, 434, 480 S.E.2d 403, 405 (1997). Therefore, for the trial court to have the authority to modify the 2003 alimony order in the present case, it must have determined that there was "a showing of changed circumstances." See N.C. Gen.Stat. § 50-16.9(a).

"`As a general rule, the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay.'" Cunningham, 345 N.C. at 436, 480 S.E.2d at 406 (quoting Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982), disc. review denied, 314 N.C. 331, 333 S.E.2d 489 (1985)). However, "it [i]s error for a court to modify an alimony award based only on a change in the parties' earnings." Self, 93 N.C.App. at 326, 377 S.E.2d at 801. "The significant inquiry is how [a] change in income affects a supporting spouse's ability to pay or a dependent spouse's need for support." Id. (internal quotation marks omitted). The trial court is required to "find specific ultimate facts to support [its] judgment [that there has been a material and substantial change in circumstances to support a modification of an alimony order], and the facts found must be sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." Montgomery v. Montgomery, 32 N.C.App. 154, 156-57, 231 S.E.2d 26, 28 (1977).

A.

When determining a dependent spouse's need for support, "[t]he trial court should ... consider[] the ratio of [the dependent spouse's] earnings to the funds necessary to maintain [his or] her accustomed standard of living...." Self, 93 N.C.App. at 326, 377 S.E.2d at 801 (internal quotation marks omitted). This Court has held that "the trial court's failure [to consider or] to make any findings regarding [the dependent spouse's] reasonable current financial needs and expenses and the ratio of those needs and expenses to [his or] her income constitute[s] error." See id. at 326-27, 377 S.E.2d at 802.

In the present case, the court concluded there had been "a substantial and material change in circumstances" affecting husband's obligation to pay alimony to wife based on the following findings of fact:

17. When the parties entered into the consent order on June 26, 2003 setting the alimony payments at $1150.00 per month[, wife] was employed part time and had monthly gross earnings of $200.00 and the youngest child was 6 months old. [Husband] has filed a motion to decrease his alimony payments.

18. [Wife] is currently employed as a CPA. She works 35 hours per week and makes $25.00 per hour and has a monthly gross income of $3788.00. This constitutes a substantial and material change in circumstances and the alimony award is reduced to zero. However[, husband] is still responsible for the alimony arrearages [in the amount of] $29,350.12....

In other words, as the basis for its determination that there was a "substantial and material change in circumstances" sufficient to allow modification of the alimony award, the trial court found only that wife's income had increased since the entry of the original alimony order. However, an "increase in [wife's] income ... alone...