Hartsell v. Hartsell

• Decision Date: 04 March 2008
• Docket Number: No. COA07-884.,COA07-884.
• Citation: 657 S.E.2d 724
• Court: North Carolina Court of Appeals
• Parties: Darren Ray HARTSELL, Plaintiff, v. Rachel Katherine HARTSELL, Defendant.

657 S.E.2d 724

Darren Ray HARTSELL, Plaintiff, v. Rachel Katherine HARTSELL, Defendant.

No. COA07-884.

Court of Appeals of North Carolina.

March 4, 2008.

Appeal by Plaintiff from judgments entered 25 April 2007 by Judge Michael G. Knox in Cabarrus County District Court. Heard in Court of Appeals 16 January 2008.

Hartsell & Williams, P.A., by Christy E. Wilhelm, Concord, for Plaintiff-Appellant.

Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, and Tobias S. Hampson, Raleigh, for Defendant-Appellee.

ARROWOOD, Judge.

Darren Hartsell (Plaintiff) appeals from the trial court's orders awarding alimony in favor of Rachel Hartsell (Defendant), ordering Plaintiff to pay child support, and ordering equitable distribution of marital and divisible property. We affirm in part and remand in part.

Plaintiff and Defendant were married in 1988 and separated on 23 July 2005. Two children were born of the marriage, sons born in 1991 and 1994. On 17 August 2005 Plaintiff filed a complaint seeking equitable distribution of marital property, and orders determining child custody and child support. September 2005 Defendant filed an answer and counterclaims for child custody and support, alimony and post-separation support, counsel fees, and equitable distribution. In October 2005 Plaintiff filed a reply to Plaintiff's counterclaims.

Hearings were conducted on the parties' claims on 26 and 27 July 2006, and on 25 August 2006. The trial court entered its first orders for child support, alimony, and equitable distribution on 23 January 2007. Following motions by the parties for relief from judgment and amendment of judgment, the trial court on 25 April 2007 entered amended orders for child support, alimony, and equitable distribution. From these orders Plaintiff appeals.

Standard of Review

Preliminarily, we note that Plaintiff failed to assign error to the sufficiency of the evidence to support any specific finding of fact. "Because plaintiff has failed to assign error to any of the trial court's findings of fact, they are binding on appeal." Langdon v. Langdon, ___ N.C.App. ___, ___, 644 S.E.2d 600, 603 (2007) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Accordingly, we review the trial court's orders for abuse of discretion, taking its findings of fact as conclusively established.

Regarding alimony, we observe that Plaintiff does not dispute Defendant's entitlement to alimony. "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." Bookholt v. Bookholt, 136 N.C.App. 247, 249-50, 523 S.E.2d 729, 731 (1999) (citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)). "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (internal quotation marks omitted).

Regarding the trial court's order for child support, we note that in determining issues of child support, the "trial court may consider the conduct of the parties, the equities of the given case, and any other relevant facts." Maney v. Maney, 126 N.C.App. 429, 431, 485 S.E.2d 351, 352 (1997) (citations omitted). "`Trial court orders regarding the obligation to pay child support are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.'" State ex rel. Gillikin v. McGuire, 174 N.C.App. 347, 352, 620 S.E.2d 899, 903 (2005) (quoting Moore Cty. ex rel. Evans v. Brown, 142 N.C.App. 692, 694-95, 543 S.E.2d 529, 531 (2001) (internal quotation marks and citations omitted)).

Our review of orders for equitable distribution is similarly limited. "In White v. White, our Supreme Court set forth `the proper standard of review of equitable distribution awards'" as follows:

Historically our trial courts have been granted wide discretionary powers concerning domestic law cases. The legislature also clearly intended to vest trial courts with discretion in distributing marital property under N.C.G.S. [§] 50-20[.] ... It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.

Stone v. Stone, 181 N.C.App. 688, 690, 640 S.E.2d 826, 827-28 (2007) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal quotation marks and citations omitted)).

Plaintiff first argues that the trial court erred in its order awarding Defendant alimony, on the grounds that the court made "insufficient findings of fact" to support the award.

A trial court's award of alimony is addressed in N.C. Gen.Stat. § 50-16.3A (2007), 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.

In finding of fact twenty-four (24) the trial court states that it considered the statutory factors, including those listed above. However, Plaintiff argues that the court's other findings of fact are insufficient to demonstrate the court's attention to these factors. We disagree, and note that the findings of fact include, in pertinent part, the following:

(3) The parties hereto were married ... October 8, 1988, ... and separated on July 23, 2005.

(4) Two (2) children were born of the marriage of the parties ... [in] 1991, and ... 1994.

(5) The named minor children ... have been in the primary physical custody of the defendant since the separation of the parties. The plaintiff is 39 years old and the defendant is 36 years old. The plaintiff has a high school education and the defendant has a college degree.

....

(8) The plaintiff is presently employed as a teacher with the Cabarrus County Schools, having commenced that employment after the separation of the parties. The plaintiff earned a gross monthly income from teaching during the 2005-2006 school year of $3,890.00 per month ... for ten months of the year[, and] ... an annual teacher's supplement of $972.00 for the 2005-2006 school year. In the 2006-2007 school year, the plaintiff will earn a gross monthly income of $4,174.00 per month for ten months.

(9) Prior to August 2005, the plaintiff had been self-employed as a masonry and grading contractor. The plaintiff sold the masonry business in 2004, but continued to operate the grading business. For several years prior to 2005, the parties had contemplated the plaintiff pursuing a career in teaching. In 2005, prior to the separation, ... [the parties] discussed, planned and agreed ... [that] plaintiff would teach while continuing to operate his grading business[.] ... [P]laintiff represented to Defendant ... that he could earn $30,000.00 to $50,000.00 per year in addition to his teaching income....

(10) The plaintiff testified he "did not have a clue how much money he made from the grading business in 2004." The income tax return of the parties for 2003 showed wages for the plaintiff from his business of approximately $32,150.00 (see Defendant's 1 from ED trial) and other profit income of $43,073.00. The profit income was reduced from approximately $66,000.00 by the election of '179 expenses' (depreciation) of $23,500.00. The masonry business was closed in 2004. It is unclear what percentage was from the masonry business and what percentage was from the grading business.

(11) Neither the business nor the personal income tax returns for 2004 or 2005 were proffered to the Court. The bank account records of the masonry business from January 2004 through August 2005 show total deposits of $403,718.58 (see Defendant's 10). Payments to or for the benefit of the plaintiff from the masonry business account for the period from April 2004 through August 2005 were $71,727.82. The plaintiff also paid many personal expenses from the business account including health, airplane and car insurance, cell phones, gasoline for the parties, automobile repairs, and property taxes. Both parties benefitted from these payments.

(12) The plaintiff had income from the grading business from the date of separation through December 31, 2005 of $39,389.33 (Defendant's 7). The business income included the sale of a truck for $12,000.00. The remaining income of $27,389.33 came from the operation of the grading business by the plaintiff while he was employed full-time as a teacher. The average monthly income for this period of five months and eight days was $5,217.02. From this income the plaintiff paid living expenses, some finances to defendant, and reduced the monthly debt of the parties. The expenses that the Court attributes to the business during this period are $13,241.63 or $2,522.22 per month. The net monthly income of the grading business during this period, after expenses, was $2,694.80.

(13) Through July 2006 the plaintiff earned $13,847.00 in income from the grading business. Despite the availability of the plaintiff during the summer months when school is closed, the plaintiff has earned only $4,210.00 in June and July of 2006.

(14) Sammy Flowe of S.J. Flowe Grading Company who has worked with Plaintiff in the past, testified that grading work is...