Rea v. Rea

• Decision Date: 20 November 2018
• Docket Number: No. COA18-95,COA18-95
• Citation: 822 S.E.2d 426,262 N.C.App. 421
• Court: North Carolina Court of Appeals
• Parties: Robin Lynn REA, Plaintiff v. Kathleen Oliver REA, Defendant.

262 N.C.App. 421

822 S.E.2d 426

Robin Lynn REA, Plaintiff

v.Kathleen Oliver REA, Defendant.

No. COA18-95

Court of Appeals of North Carolina.

Filed: November 20, 2018

Miller & Audino, LLP, Greenville, by Jay Anthony Audino, for plaintiff-appellant.

Pritchett & Burch, PLLC, Windsor, by Lloyd C. Smith, III, for defendant-appellee.

STROUD, Judge.

Plaintiff-husband appeals the trial court's order awarding alimony to defendant-wife. Because the trial court's findings of fact are supported by the evidence, the conclusions of law are supported by those findings, and the trial court did not abuse its discretion in setting the alimony term and duration, we affirm.

I. Background

In 1999, plaintiff Husband and defendant Wife were married; they separated on 8 August of 2014. On 21 August 2014, Husband filed a verified complaint for equitable distribution and a motion for a temporary restraining order and injunctive relief alleging Wife was removing antiques and other personal property from the former marital home and should be enjoined from such malfeasance. On 3 September 2014, Wife answered Husband's complaint, denying allegations of wrongdoing and counterclaiming for postseparation support, permanent alimony, equitable distribution, and attorney fees. On 2 October 2014, Husband filed a verified reply to Wife's answer and counterclaims and alleged that Wife "committed acts of marital misconduct[;]" Husband characterized the wrongdoing as financial in nature.

On 2 February 2015, the trial court entered an order for postseparation support requiring Husband to pay Wife $2,000 a month. On 25 July 2016, the trial court entered a judgment and order on equitable distribution; this order was not appealed. On 16 September 2016, the trial court entered a Qualified Domestic Relations Order ("QDRO") which was also not appealed.

The trial court held a hearing on Wife's alimony claim on 9 September 2016 and on 31 July 2017, the trial court entered an order awarding Wife alimony and attorney fees. The trial court determined Husband had committed acts of martial misconduct, including illicit sexual behavior. Husband was ordered to pay wife $2,780 per month for 10.5 years and attorney fees. Husband timely filed notice of appeal.

II. Alimony Order

Husband challenges findings of fact made by the trial court and the trial court's ultimate determination of the amount and term of 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. 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.

Dechkovskaia v. Dechkovskaia , 232 N.C. App. 350, 356, 754 S.E.2d 831, 836 (2014) (citations omitted).

A. Findings of Fact

Husband challenges nine findings of fact as unsupported by competent evidence; we first consider each of the nine challenged findings of fact.

1. Foster Children

The trial court found in finding of fact 7 that "[d]uring the marriage the parties[ ] provided foster care to numerous children, and as of the date of separation, the parties w[ ]ere the primary caretakers and sole financial provider for two minor children, both of who[m] have remained with the [Wife], who has been solely responsible for their financial care." Husband argues this finding is not supported by the evidence because the evidence actually showed that the children's father cares for them on weekends and they receive Medicaid for medical expenses, so Wife is not "solely responsible" for the children. (Emphasis added.) Wife responds that the parties had taken in about fifteen foster children at various times during their marriage, including the two children still living with Wife as of the date of separation. Wife testified they had taken full financial responsibility for them, including providing uninsured medical costs if the children's biological father allowed Medicaid to lapse. Since the parties separated, Wife had been solely responsible for the children; in other words, Husband had not been assisting financially with the foster children as he did while the parties were together.

Husband misconstrues this finding as saying that Wife receives absolutely no assistance from any other source in supporting the children. But the trial court was not addressing all of the financial circumstances of the foster children in this order; it was addressing the financial situation of Husband and Wife. Husband's argument ignores the first part of the finding, which is that prior to their separation, he and Wife were the "sole financial provider" for the children, but after the separation, Wife had been the sole provider. Further, the evidence showed that since Husband and Wife separated, Wife has been caring for the children without Husband's involvement or financial assistance, so the finding is supported by competent evidence. Even if the wording of finding 7 could have been more exact, the meaning is clear. See, e.g., In re S.W. , 175 N.C. App. 719, 723, 625 S.E.2d 594, 597 (2006) ("A review of the record reveals that there is competent evidence to support findings of fact numbers 4, 6 through 17 and 19 as these findings of fact are admitted to in respondent's answer, if not in exact form, at least in substance."). This argument is overruled.

2. Marital Misconduct

Husband next challenges finding of fact 11(a) and (b) which address his marital misconduct:

11. Plaintiff has committed acts of marital misconduct, which include the following:

a. Plaintiff engaged in acts of illicit sexual behavior prior to the parties separation. Plaintiff had the inclination and opportunity and had in fact committed adultery with [Sue Smith].¹

b. Prior to the parties' separation, Plaintiff offered indignities that rendered Defendant's condition intolerable and her life burdensome, due to him acting on his adulterous relationship and Defendant becoming aware of that adultery prior to separation. Specifically, Defendant found Plaintiff kissing [Sue Smith] in a parked vehicle in Greenville prior to separation.

Husband argues there was not sufficient evidence to support finding 11 because there was not definitive proof he engaged in any type of sexual activity with Ms. Smith. Husband contends that the evidence of his inclination and opportunity to commit illicit sexual behavior with Ms. Smith or offer indignities was not sufficient and evidence of his behavior and statements during the marriage which Wife interpreted as indications of his infidelity, are not sufficient. Husband characterizes the evidence as "[c]ar rides and phone calls" that "can only rise to the level of mere conjecture[.]" Husband specifically argues there is no direct evidence of "sexual intercourse, sexual acts, or sexual contact."

It is well-established that direct evidence of illicit sexual behavior or indignities as a result of that behavior is not required but can be shown by circumstantial evidence:

Where adultery is sought to be proved by circumstantial evidence, resort to the opportunity and inclination doctrine is usually made. Under this doctrine, adultery is presumed if the following can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations.

Thus, if a plaintiff can show opportunity and inclination, it follows that such evidence will tend to support a conclusion that more than mere conjecture exists to prove sexual intercourse by the parties.

Coachman v. Gould , 122 N.C. App. 443, 447, 470 S.E.2d 560, 563 (1996) (citation and quotation marks omitted).

The evidence at trial included a private investigator ("PI") who testified that on 6 August, before separation, she witnessed and photographed Husband kissing Ms. Smith. The investigative report, admitted as an exhibit, shows that the investigator parked near Husband's truck in the parking lot of a shopping mall at 1:09 p.m. and waited until 3:45 p.m., when Husband and Ms. Smith arrived, and Ms. Smith parked her car next to Husband's truck. Husband and Ms. Smith kissed. Husband then got into his own truck, and both vehicles left at the same time. Thereafter, on 18 and 19 August, two nights in a row only ten days after the parties' separation, the PI saw Husband's and Ms. Smith's vehicles parked overnight at a hotel. Although the overnight stays at the hotel were shortly after the parties separated, "[n]othing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation[.]" N.C. Gen. Stat. § 50-16.3A(b)(1) (2015).

Furthermore, Wife testified that prior to their separation Husband began to repeat specific suspicious behaviors he exhibited in 2011 when he had a prior affair; these actions prompted her to hire the PI. For example, Husband failed to come home one night. Wife also saw Husband and Ms. Smith together, including at Husband's temporary residence, shortly after the date of separation, and when Wife confronted the Husband about the other woman, he said, "she was a better woman than" Wife. We conclude there was competent evidence to support finding of fact 11(a) and (b). This argument is overruled.

3. Retirement Income

Defendant next challenges finding of fact 16 which states, "The Plaintiff has significant funds upon which he can enjoy upon retirement based on Plaintiff's employment. The Defendant has little to no independent source of retirement income, but did receive a portion of the Plaintiff's retirement in the Order for...