Gilmartin v. Gilmartin, COA18-466

• Decision Date: 18 December 2018
• Docket Number: No. COA18-466,COA18-466
• Court: North Carolina Court of Appeals
• Parties: Tracie Lee GILMARTIN, Plaintiff, v. Michael Thomas GILMARTIN, Defendant.

263 N.C.App. 104

822 S.E.2d 771

Tracie Lee GILMARTIN, Plaintiff,

v.Michael Thomas GILMARTIN, Defendant.

No. COA18-466

Court of Appeals of North Carolina.

Filed: December 18, 2018

Michael P. Sanders, P.C., by Michael P. Sanders, Elizabeth City, for plaintiff-appellee.

Frank P. Hiner, IV and Brett A. Lewis, for defendant-appellant.

STROUD, Judge.

Defendant appeals from a permanent alimony order. Because defendant has failed to provide a complete record for review on appeal, we affirm the trial court's order on the issues which this Court cannot review without the missing transcript. As to defendant's remaining issue regarding marital fault, we affirm.

I. Background

On 28 June 2016, plaintiff-wife filed a complaint against defendant-husband alleging that the parties married in 2006, had one child, and separated in June of 2016. Wife sought child custody, child support, postseparation support, alimony, equitable distribution, and an injunction to protect certain assets. Husband answered Wife's complaint alleging several affirmative defenses and also counterclaiming for child custody, child support, and equitable distribution ("ED").

On 27 March 2017, the trial court entered an order addressing child custody, child support, postseparation support, and uninsured medical expenses; this order is not at issue on appeal. On 6 December 2017, the trial court entered an alimony order which requires Husband to pay Wife $1,100 a month for 48 months. Husband appeals the alimony order.

II. Record on Appeal

Husband first contends "the trial court committed reversible error when it concluded as a matter of law that [Wife] was entitled to alimony and ordered that [Husband] pay [Wife] alimony[.]" (Original in all caps.) Husband raises four sub-arguments based upon findings of fact and conclusions of law regarding Wife's status as dependent spouse, judicial notice of financial affidavits, and sufficiency of the evidence regarding the parties' accustomed standard of living during the marriage. Husband also challenges numerous findings of fact as unsupported by the evidence.

Since Husband's arguments are based upon the sufficiency of the evidence to support the trial court's findings regarding various financial aspects of the case, we must determine whether there was sufficient financial evidence to support the findings.

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. When the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.

An abuse of discretion has occurred if the decision is manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.

Kelly v. Kelly , 228 N.C. App. 600, 601, 747 S.E.2d 268, 272–73 (2013) (citations and quotation marks omitted).

But our record on appeal includes only a portion of the trial transcript, so we cannot review any issues of sufficiency of the evidence. Husband has waived these issues on appeal by providing only a portion of the transcript and leaving out portions relevant to his appeal. It is clear from the transcript that the claims for ED and alimony were heard on the same day. The trial started with the ED claim and then the trial court heard the alimony portion of the case.

Our transcript on appeal begins with page 1—but in middle of the hearing—as the court reporter apparently transcribed only part of the hearing. The transcript begins with Wife's attorney explaining, "I have a witness here under subpoena, and he's had to sleep through the E.D . so if I can go ahead and call him and try to get him out of here." (Emphasis added.) The witness gave brief testimony and was released. Later, during the testimony and arguments, there were references to the ED portion of the hearing that had just transpired. For example, Wife's testimony includes the following questions and answers:

Q. You testified during the ED portion of this that you have three children; is that correct?

A. Yes.

....

Q. Did you hear those numbers I read to Mr. Gilmartin earlier about net profits for the business off of the tax returns?

A. Yes.

....

Q. And I know we went through this in ED , but I'm going to ask you again, did you invest some or all of the retirement monies that you took out into Bottomline?

A. Yes.

(Emphasis added.) At the end of the hearing, Husband's attorney began his closing argument, "May it please The Court and Mr. Sanders. Your Honor, addressing equitable distribution first ." (Emphasis added.) Thus, it is clear that the trial court heard the claims of ED and alimony at the same hearing, but Husband provided only the second portion of the transcript. And most of Husband's challenges to the findings of fact as unsupported are based upon the lack of financial evidence that would quite logically have been included in the ED portion of the trial, which may be why it was not repeated in the alimony portion of the trial.

Husband, citing to pages 1-108 of the transcript, the entire transcript but for the closing arguments, argues, "No financial affidavit was introduced for [Wife] at trial and, in fact, no exhibits were introduced at the alimony hearing." But pages 1-108 are only the alimony portion of the hearing, so we have no way of knowing what exhibits were introduced or what discussion, if any, occurred about the financial affidavit during the equitable distribution phase. Husband may not have intended to misrepresent the record before the trial court to this Court, but because a substantial portion of the transcript particularly relevant to his argument on appeal is missing, we cannot review the sufficiency of the evidence.

It is the duty of the appellant to ensure this Court has everything needed for a proper review of his issues on appeal. See State v. Davis , 191 N.C. App. 535, 539, 664 S.E.2d 21, 24 (2008) ("We note that State's exhibit 18, the videotaped interview of K.T., was not included as an exhibit to the record on appeal and was not recorded on the trial transcript. It is the duty of the appellant to ensure that all documents and exhibits necessary for an appellate court to consider his assignments of error are part of the record or exhibits."). Further, "[a]n appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court." State v. Williams , 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). Accordingly, we affirm the trial court's order as to these issues on appeal. See King v. King , 146 N.C. App. 442, 445-46, 552 S.E.2d 262, 265 (2001) ("Plaintiffs also argue the trial court erred in entering findings of facts and conclusions of law concerning damages to Plaintiffs' property that were not supported by the evidence. Because Plaintiffs have failed to include a transcript of evidence from the hearing in this matter or any evidence which would enable this Court to determine whether the trial court's findings of fact are supported by competent evidence, we overrule this assignment of error. Accordingly, the trial court's findings of fact and conclusions of law concerning damages to Plaintiffs' property are affirmed." (emphasis added) (citation and quotation marks omitted) ).

III. Alimony Factors

Husband next challenges the amount and duration of the alimony award. Husband contends that

the trial court committed reversible error when it ordered defendant to pay plaintiff alimony in the sum of $1,100.00 per month for forty-eight months when the court did not have sufficient competent evidence to order alimony in any amount and the court failed to provide a factual basis for the duration of alimony?

(Original in all caps.) Again, due to the incomplete transcript, we cannot review the sufficiency of the evidence. The order on appeal has findings of fact on some of the alimony factors enumerated in North Carolina General Statute § 50-16.3A(b), and we must assume they are supported by the evidence. And since findings for a particular factor are only required if evidence was presented on that factor, we must also assume the trial court made findings addressing all of the factors for which evidence was presented. See generally N.C. Gen. Stat. § 50-16.3A(b-c) (2017) (noting as to the 16 factors the trial "court shall make a specific finding of fact on each of the" "relevant factors" in subsection (b) only "if evidence is offered on that factor"). The trial court made findings of fact regarding many of the factors, including "marital misconduct[,]" "relative earnings[,]" "ages" of the parties, "amount and sources" of income, "duration of the marriage[,]" and "standard of living of the spouses established during the marriage[.]" The trial court also concluded, "The award of alimony is equitable considering all relevant factors , including those set forth in NCGS Section 50-16.3A(b)" and "[t]he relevant factors support alimony in the amount designated and for the designated duration." (Emphasis added.) Again, "[a]n appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court." Williams , 274 N.C. at 333, 163 S.E.2d at 357. And again, we affirm. See King , 146 N.C. App. at 445-46, 552 S.E.2d at 265.

IV. Martial Fault

Husband also contends, "the trial court committed reversible error when it found that [Husband] committed marital fault even though [Wife] failed to allege a lack of provocation, [Wife] condoned defendant's behavior and plaintiff, in her complaint, failed to allege the nature of the ‘indignities’ she suffered during the marriage." (Original in all caps.) Because marital fault concerns only alimony and is not dependent upon the financial circumstances of the parties, and we have that portion of the...