Quick v. Quick, 163A81

Docket NºNo. 163A81
Citation305 N.C. 446, 290 S.E.2d 653
Case DateMay 04, 1982
CourtUnited States State Supreme Court of North Carolina

Page 653

290 S.E.2d 653
305 N.C. 446
No. 163A81.
Supreme Court of North Carolina.
May 4, 1982.

Brenton D. Adams, Raleigh, for plaintiff-appellee.

Tharrington, Smith & Hargrove by J. Harold Tharrington and Carlyn G. Poole, Raleigh, for defendant-appellant.

CARLTON, Justice.


Plaintiff and defendant were married in 1945, when they both were twenty years of age. Although they had few financial resources at the time of their marriage, defendant enjoyed tremendous success in his business and the parties later enjoyed an expensive standard of living. They were separated in 1978 and were divorced in 1979.

This appeal involves only plaintiff's claims for permanent alimony and attorney's fees. The propriety of a prior award of alimony pendente lite and attorney's fees is not before us.

A consent order was entered into by the parties and signed by Judge Parker on 8 March 1978, in which defendant agreed to pay plaintiff alimony pendente lite in the amount of $1,500.00 per [305 N.C. 448] month beginning 19 September 1978. Defendant further agreed to pay plaintiff's attorney the sum of $1,000.00 for services rendered prior to the consent order.

In the trial court the parties stipulated (1) that plaintiff is substantially dependent upon defendant for maintenance and support and is a dependent spouse within the meaning of G.S. 50-16.1(3), (2) that defendant has sufficient means and income to provide support for plaintiff and is a supporting spouse within the meaning of G.S. 50-16.1(4), (3) that plaintiff has a ground for alimony as provided in G.S. 50-16.2, and (4) that plaintiff is entitled to recover judgment

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against defendant for permanent alimony in such amount as might be established by the court.

The matter came on for hearing before Judge Barnette on 29 January 1980. Various documents concerning the parties' financial affairs were introduced and five witnesses, including plaintiff, defendant and defendant's accountant, gave extensive testimony. After hearing all the evidence the trial judge made the following findings of fact:

1. The plaintiff is unemployed and has been during her marriage with the defendant except as a part-time bookkeeper and clerical worker in the defendant's business.

2. That since the divorce the plaintiff is now entitled to $2700.00 per year as her 1/2 share of rents from property she and the defendant own as tenants in common.

3. That the defendant and the plaintiff own their family residence on 310 Carmen Avenue, Jacksonville, N. C. as tenants in common. The value of this property is unknown.

4. That the plaintiff and the defendant also own two buildings on New Bridge Street in Jacksonville, North Carolina as tenants in common. The value of these buildings is unknown.

5. That the plaintiff owns one hundred shares of Carmen Realty Company. These shares are worth slightly in excess of $6000.00.

6. That the plaintiff's reasonable monthly living expenses are $1500.00 per month.

[305 N.C. 449] 7. That the defendant has retired from active work in his business and is not presently employed. He retired for health reasons and has been retired for some time. This had nothing to do with the separation and subsequent divorce.

8. That the defendant now has a net monthly income of $2151.00.

9. That the defendant's reasonable monthly living expenses are approximately $3800.00.

10. That the defendant owns property mentioned in Findings of Fact Number 3 and 4 as tenants in common with the plaintiff.

11. That the defendant owns the remaining 2900 shares of Carmen Realty Company. His shares are worth approximately $174,000.00.

12. The plaintiff needs and the defendant can afford to pay the plaintiff the sum of $1275.00 per month as permanent alimony. Such sum is reasonable considering the respective incomes, estates and expenses of the parties.

13. That even with the alimony pendente lite she is receiving, the plaintiff is still unable to pay her attorney's fees.

14. That it has been reasonably necessary for the plaintiff's attorney to spend twenty hours in preparation for trial and in trial of this action for permanent alimony since March 8, 1979.

15. That the plaintiff's attorney has performed valuable services for the plaintiff including interviewing witnesses, conferences with the plaintiff, legal research, conducting deposition of the defendant, and appearing in Court on the plaintiff's behalf.

16. That the rate of $50.00 per hour is a reasonable rate for the plaintiff's attorney to charge.

Based on these findings Judge Barnette concluded that plaintiff was entitled to receive as permanent alimony the sum of $1,275.00 per month and to receive $1,000.00 for attorney's fees.

[305 N.C. 450] From the foregoing defendant appealed to the Court of Appeals. That court, in an opinion by Judge Webb in which Judges Hedrick and Arnold concurred, affirmed the trial court. We allowed defendant's petition for discretionary review on 1 December 1981.


We are first concerned with the sufficiency of the trial court order awarding plaintiff permanent alimony. Specifically, we must examine the trial court's findings of fact to determine whether they are adequate to support its conclusion of law that

Page 657

plaintiff is entitled to receive $1,275.00 each month from defendant as permanent alimony.

Defendant contends that the trial court abused its discretion by ordering him to pay plaintiff an amount which, in addition to his own reasonable living expenses, will cause him to divide and deplete his estate within a short period of time, Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). Plaintiff argues that the amount of alimony is a matter for the trial judge's sound discretion and is not reviewable on appeal absent a manifest abuse of discretion, citing Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966), and contends that this Court held in Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975), that no findings of fact are required to support the amount of alimony awarded.

We find the answer to this issue in our Rules of Civil Procedure (codified as Chapter 1A of our General Statutes). Rule 52(a)(1) requires that "in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." The amount of alimony is determined by the trial court without a jury. 2 R. Lee, North Carolina Family Law § 139 (4th ed. 1980). Our Rules of Civil Procedure apply to all cases of a civil nature brought in the superior and district courts unless a differing procedure is prescribed by statute. G.S. § 1A-1, Rule 1 (Cum.Supp.1981). Actions for permanent alimony are unquestionably of a civil nature, and there is no "differing procedure" prescribed by statute which governs the action. 1 Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d [305 N.C. 451] 399 (1978). Under Rule 52(a), three separate and distinct acts are required of the trial court. It must (1) find the facts specially, (2) state separately the conclusions of law resulting from the facts so found, and (3) direct the entry of the appropriate judgment. Cf. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639 (1951) (similar duties under prior law). In this case we are concerned with the first of these requirements, the finding of facts.

Rule 52(a) does not, of course, require the trial court to recite in its order all evidentiary facts presented at hearing. The facts required to be found specially are those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached. "Findings of fact may be defined as the written statement of the ultimate facts as found by the court, signed by the court, and filed therein, and essential to support the decision and judgment rendered thereon." 76 Am.Jur.2d Trial § 1251 (1975). In other words, a proper finding of facts requires a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment. 89 C.J.S. Trial § 627 (1955).

In Woodard v. Mordecai, 234 N.C. at 470, 472, 67 S.E.2d at 644, 645, this Court explained:

There are two kinds of facts: Ultimate facts, and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts. (Citations omitted.) G.S. 1-185 requires the trial judge to find and state the ultimate facts only. (Citations omitted.)


... Ultimate facts are those found in that vaguely defined area lying between evidential facts on the one side and conclusions of law on the other. (Citations omitted.) In consequence, the line of demarcation between ultimate facts and legal conclusions is not easily drawn. (Citation omitted.) An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the

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evidentiary facts. [305 N.C. 452] (Citations omitted.) Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law. (Citations omitted.)

In summary, while Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.

As stated by this Court, per Justice Exum, in Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980):

The purpose of the requirement that the...

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