Perkins v. Perkins

• Citation: 355 S.E.2d 848,85 N.C.App. 660
• Decision Date: 19 May 1987
• Docket Number: No. 8617DC705,8617DC705
• Court: Court of Appeal of North Carolina (US)
• Parties: Myrna P. PERKINS v. Charles Thomas PERKINS, Jr.

Page 848

355 S.E.2d 848

85 N.C.App. 660

Myrna P. PERKINS v. Charles Thomas PERKINS, Jr.

No. 8617DC705.

Court of Appeals of North Carolina.

May 19, 1987.

Gwyn, Gwyn & Farver by Julius J. Gwyn, Reidsbille, for plaintiff-appellant.

Hatfield & Hatfield by Kathryn K. Hatfield, Greensboro, for defendant-appellee.

ORR, Judge.

I.

First, plaintiff contends that the trial court improperly denied her motion for a divorce from bed and board. We disagree.

Plaintiff must establish the existence of one of the five grounds listed in N.C.G.S. § 50-7 to obtain a divorce from bed and board. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967). To establish the existence of such a ground the plaintiff must allege and prove acts of misconduct by the defendant and show that this misconduct was not provoked by plaintiff's actions. Morris v. Morris, 46 N.C.App. 701, 266 S.E.2d 381, aff'd, 301 N.C. 525, 272 S.E.2d 1 (1980).

Plaintiff alleged in her complaint that defendant's excessive use of alcohol, intentional infliction of indignities to her person, and constructive abandonment of their marital relationship were not provoked by her actions, had rendered her condition intolerable and life burdensome, and entitled her to a divorce from bed and board. Plaintiff's complaint clearly stated all the elements necessary for the relief requested. However, plaintiff presented no evidence with which to prove her allegations, failing entirely to meet her burden of proof on this issue. Plaintiff justified this failure by contending that defendant's stipulation to the existence of grounds for awarding alimony was also a stipulation that grounds for a divorce from bed and board existed; thus relieving her of her burden of proof as to this issue. This contention is erroneous.

To obtain an order for alimony the plaintiff must establish one of ten grounds enumerated in N.C.G.S. § 50-16.2. Five of the grounds listed in N.C.G.S. § 50-16.2 are identical to the five grounds listed in N.C.G.S. § 50-7, permitting divorces from bed and board. Minor v. Minor, 70 N.C.App. 76, 318 S.E.2d 865, disc. rev. denied, 312 N.C. 495, 322 S.E.2d 558 (1984). The remaining five grounds, while similar in theme, pertain to entirely different areas of judicial concern.

Under either N.C.G.S. § 50-7 or N.C.G.S. § 50-16.2 the plaintiff is relieved of the burden of establishing the facts necessary to prove the underlying ground, if the defendant stipulates that grounds for such relief exist. "A stipulation is a judicial admission. As such, '[i]t is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent from the necessity of producing evidence to establish the admitted fact.' " Moore v. Humphrey, 247 N.C. 423, 430, 101 S.E.2d 460, 467 (1958) (citation omitted). However, the language of a stipulation "will not be so construed as to give the effect of an admission of a fact obviously intended to be controverted, or the waiver of a right not plainly intended to be relinquished...." Rickert v. Rickert, 282 N.C. 373, 380, 193 S.E.2d 79, 83 (1972).

In his stipulation defendant did not specify which ground, of the ten enumerated in N.C.G.S. § 50-16.2, existed to support an alimony award. Therefore, plaintiff may not automatically assume that the ground stipulated to in N.C.G.S. § 50-16.2 was one of the five grounds also listed in N.C.G.S. § 50-7. To adopt plaintiff's assumption would extend the perimeter of defendant's stipulation beyond the area it was clearly intended to cover and deprive defendant of a right he has not explicitly waived. This would be contrary to our established judicial policy of narrowly construing stipulations.

For this reason, we conclude that plaintiff failed to meet her burden of proof as to this issue. Thus, the trial court properly denied her request for a divorce from bed and board.

II.

Plaintiff next challenges the trial court's award of permanent alimony of seven hundred dollars a month for a twenty-four month period.

Plaintiff contends this award was erroneous for two reasons. First she alleges that the limitation of alimony payments to a twenty-four month period, without a showing of fault on the plaintiff's part, was improper.

Alimony awarded as periodic payments for a specified period of time, as in the case at bar, is defined as a lump sum alimony award and is permissible. Whitesell v. Whitesell, 59 N.C.App. 552, 297 S.E.2d 172 (1982), disc. rev. denied, 307 N.C. 583, 299 S.E.2d 653 (1983). Consequently, the trial court's decision to award alimony in a lump sum, alone, is not sufficient to constitute reversible error.

Plaintiff's second contention is that the trial court failed to make the necessary findings of fact and conclusions of law with which to support its alimony award.

In determining the amount of alimony to award, the trial court must consider the six factors enumerated in N.C.G.S. § 50-16.5: (1) the estates, (2) the earnings, (3) the earning capacity, (4) the condition, (5) the accustomed standard of living of the parties, and (6) any other facts particular to the case. Once these factors are considered, however, the actual amount awarded lies within the trial court's discretion and will not be disturbed on review absent a showing by the litigant that the challenged award is manifestly unsupported by reason. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

Because an alimony award is determined by a trial court without a jury, N.C.G.S. § 1A-1, Rule 52(a) requires the trial court to find facts specially and state conclusions of law separately. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). To comply with Rule 52(a) the trial court must "make conclusions of law to the effect that (a) the 'circumstances render necessary' a designated amount of alimony, (b) the supporting spouse has the ability to pay the designated amount, and (c) the designated amount is fair and just to all parties." Davis v. Davis, 62 N.C.App. 573, 576, 302 S.E.2d 886, 887 (1983); Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 659. These conclusions must "be based upon factual findings sufficiently specific to indicate that the trial judge properly considered the six statutory factors enumerated [in G.S. 50-16.5,] and the rules [pertaining to such factors, evolving] from our case law. Without findings on the above-listed factors, an appellate court cannot review the amount of alimony awarded to determine whether the trial judge abused his discretion." Quick v. Quick, 305 N.C. at 454, 290 S.E.2d at 659.

In the order awarding alimony the trial court stated as a conclusion of law that "plaintiff is entitled to an award of permanent alimony." To support this conclusion, the trial court made findings of fact as to the parties' estates and earnings. The trial court failed, however, to make any findings as to the parties' expenses, accustomed standard of living, or plaintiff's financial obligations.

This failure constitutes reversible error. The parties' expenses and financial obligations at the time the award is made must be considered to insure that the alimony award is fair and just to both parties. Furthermore, the parties' standard of living during the marriage is a critical factor, which the trial court must consider to insure that the dependent spouse's alimony award will sustain her prior lifestyle. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653; Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).

This Court notes that findings of fact pertaining to the parties' living expenses were made in the pendente lite order. These findings, however, are irrelevant in the present case. It is well established that the trial court's findings in an alimony pendente lite motion are solely for the purpose of that motion and are not competent evidence on the final hearing of the same issues. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962); Hall v. Hall, 250 N.C. 275, 108 S.E.2d 487 (1959); Bumgarner v. Bumgarner, 231 N.C. 600, 58 S.E.2d 360 (1950).

The record disclosed considerable evidence presented by both parties as to their expenses, financial obligations, and accustomed standard of living, which would permit the trial court to make factual findings on these issues. Whether or not the evidence is sufficient to support the award given is not for this Court's consideration.

"What the evidence does in fact show is a matter for the trial court's determination, and its determination should be stated in appropriate and adequate findings of fact. Only when an appellate court knows what the facts are can it determine whether the amount awarded was within the trial court's discretion." Quick v. Quick, 305 N.C. at 457, 290 S.E.2d at 661 (emphasis supplied).

Accordingly, this Court remands this case for further findings in compliance with our decision.

III.

Plaintiff also assigns as error the trial court's failure to make any factual findings as to the tax consequences of the alimony award on the parties' income. Such failure, plaintiff argues, shows that the trial court neglected to consider this factor when awarding alimony.

Although not specifically listed as a factor for the trial court's consideration in N.C.G.S. § 50-16.5, consideration of the income tax consequences is proper. Such consideration is authorized by the sixth enumerated factor in N.C.G.S. § 50-16.5, "other facts of the particular case." "To ignore the income tax consequences of an award of...