Hudson v. Hudson, No. COA08-76 (N.C. App. 10/21/2008)
| Decision Date | 21 October 2008 |
| Docket Number | No. COA08-76,COA08-76 |
| Court | North Carolina Court of Appeals |
| Parties | VALERIE CLASEN HUDSON, Plaintiff, v. BERNARD JOHN HUDSON, Defendant. |
Walker & Bullard, P.A., by Daniel S. Bullard, for Plaintiff-Appellee.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Defendant-Appellant.
Defendant appeals from the trial court's orders reducing Defendant's child support payment to $978.00 per month, reducing Defendant's alimony payment to $1,400.00 per month, and holding Defendant in civil contempt. We affirm in part and reverse and remand in part.
Valerie Clasen Hudson (Plaintiff) and Bernard John Hudson (Defendant) married on 22 June 1985 and separated on 29 July 2004. On 22 May 2006, the trial court ordered Defendant to pay alimony in the amount of $2,000.00 per month commencing 1 March 2006 for a term of 10 years. The court also ordered Defendant to pay $1,145.00 in child support per month commencing 1 March 2006. At the time of the hearing on 22 May 2006, Defendant worked for Avaya, earning a gross income of $9,020.00 per month. Plaintiff's gross income from Advanced Services an in-home respiratory therapist was $3,250.00 per month. In May 2006, Defendant learned that his job would be reassigned to another group in Avaya, and Defendant immediately began searching for a new job. Defendant discovered that "due to his longevity with his current company and seniority that he was earning more than the market would pay in the telecommunications industry." Defendant was offered a job with Newport News, Virginia, and a salary of $84,132.00, and although Defendant did not wish to relocate, he did. Defendant received his last paycheck from Avaya on 31 May 2006 for $9,020.00. At Defendant's new job with Newport News, his gross income was $7,011.00 per month.
On 30 June 2006, Defendant filed a motion to reduce his alimony and child support obligation based on the loss of his job and new employment at a reduced salary. The trial court found that "[D]efendant is living substantially below the accustomed standard of living established during the marriage." The trial court ruled that an appropriate amount of alimony for Defendant to pay to Plaintiff is $1,400.00 per month for the remainder of the term of alimony as set by the trial court. The court also ruled that based upon the North Carolina Child Support Guidelines, Defendant's child support payment should be decreased to $978.00 per month. From this order, Defendant appeals.
"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)). The review of the trial court's findings are limited to "'whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.'" Hartsell v. Hartsell,' 99 N.C. App. 380, 385, 393 S.E.2d 570, 573 (1990) (quoting Adkins v. Adkins,' 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986)).
In Defendant's first argument, he contends that the trial court failed to properly consider the statutory factors required by N.C. Gen. Stat. § 50-16.3A in calculating its reduction of Defendant's alimony obligation. We disagree as to N.C. Gen. Stat. § 50-16.3A(b), but agree as to N.C. Gen. Stat. § 50-16.3A(c).
Specifically, Defendant argues that the trial court erred by entering the modified award without a proper consideration of the required alimony factors which determine the amount, duration, and manner of payment of alimony. Defendant contends that the trial court failed to make the following findings as required by N.C. Gen. Stat. § 50-16.3A(b): (a) the parties' ability to pay and shared economic burden; (b) the relative earnings and earning capacity of the parties; (c) the accustomed standard of living of the parties; (d) the relative needs of the parties; (e) the relative estates of the parties; (3) and generally, the reasons for the amount, duration and manner of payment as required by N.C. Gen. Stat. § 50-16.3A(c).
N.C. Gen. Stat. § 50-16.9(a) (2007) requires, in pertinent part, the following: "An order of a court of this State for alimony or post separation 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." In general, the change of circumstances required for modification of an alimony order "must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay." Rowe v. Rowe,' 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). "The same factors used in making the initial alimony award should be used by the trial court when hearing a motion for modification." Bailey v. Bailey,' ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2008) (COA07-1340, filed 15 April 2008).
The trial court is required to "consider all relevant factors" in determining the amount and duration of alimony. N.C. Gen. Stat. § 50-16.3A(b) (2007). Section 50-16.3A(b) enumerates fifteen relevant, but non-exclusive, factors. "The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors . . . for a determination of an alimony award." Rhew v. Rhew,' 138 N.C. App. 467, 470, 531 S.E.2d 471, 473 (2000) (internal quotation marks omitted). N.C. Gen. Stat. § 50-16.3A (2007) requires, in pertinent part, the following:
(b) The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
. . . .
(2) The relative earnings and earning capacities of the spouses;
. . . .
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
. . . .
(8) The standard of living of the spouses established during the marriage;
. . . .
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
. . . .
(13) The relative needs of the spouses;
(c) The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment.Except where there is a motion before the court for summary judgment, judgment on the pleadings, or other motion for which the Rules of Civil Procedure do not require special findings of fact, the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.
"Findings of fact are sufficient to `support the determination' an equitable division has been made when findings of fact have been made on the ultimate facts at issue in the case, and the findings of fact show the trial court properly applied the law in the case." Friend-Novorska v. Novorska,' 143 N.C. App. 387, 395, 545 S.E.2d 788, 793 (2001).
The findings of fact need not set forth the weight given to the factors in section 50-16.3A(b) by the trial court when determining the appropriate amount, duration, and manner of payment, as the weight given the factors is within the sound discretion of the trial court.
Id. When a statute requires the court to consider certain factors in making an award, "[t]he trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the [statutory] factors[.]" Skamarak v. Skamarak,' 81 N.C. App. 125, 128, 343 S.E.2d 559, 561 (1986) (citing Quick,' 305 N.C. 446, 290 S.E.2d 653).
In the instant case, the trial court made the following pertinent findings of fact:
5. The court entered an Order on May 22, 2006 which addressed alimony, child support, custody, equitable distribution and attorney fees. The defendant was ordered to pay alimony in the amount of $2,000.00 per month commencing March 1, 2006 and on the first of each month thereafter for a term of 10 years. The defendant was ordered to pay the plaintiff $1,145.00 per month as child support commencing March 1, 2006 and on the first of each month thereafter.
6. At the time of hearing for the May 22, 2006 Order, the court made the following findings regarding the incomes and expenses of the parties:
a. The defendant was working at Avaya and earning gross income of $9,020.00 per month. The plaintiff's income was $3,250.00 gross per month from Advanced Services. The plaintiff was also receiving $600.00 per month net from rental income although the court did not include that amount in the plaintiff's income for child support purposes.
b. The defendant was paying $122.00 per month in medical insurance premiums for the children.
c. The plaintiff had individual expenses of $2,600.00 per month and fixed expenses of $3,350.00 per month which included at least $1,100.00 per month for a mortgage payment, $400.00 in utilities, $450.00 in automotive expenses, $100.00 in phone expenses, tax and insurance expenses of $350.00 and additional miscellaneous expenses of no less than $1,000.00.
7. In May 2006, the defendant learned that his job was to be reassigned to another group in Avaya. The defendant immediately began to attempt to locate a new...
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