Rhew v. Rhew

• Decision Date: 20 June 2000
• Docket Number: No. COA99-606.,COA99-606.
• Citation: 531 S.E.2d 471,138 NC App. 467
• Parties: James S. RHEW, Plaintiff, v. Luetta F. RHEW (Felton), Defendant.
• Court: North Carolina Court of Appeals

531 S.E.2d 471

138 NC App. 467

James S. RHEW, Plaintiff, v. Luetta F. RHEW (Felton), Defendant.

No. COA99-606.

Court of Appeals of North Carolina.

June 20, 2000.

Sokol & Lefante, P.A., by Elizabeth C. Todd and William L. Ragsdale, Raleigh, for plaintiff-appellee.

Tharrington Smith, L.L.P., by Carlyn G. Poole, Jaye Meyer, and Suzanne G. Richards, Raleigh, for defendant-appellant.

EDMUNDS, Judge.

Defendant appeals from an order finding her not to be a dependent spouse and denying her claim for alimony. We vacate the order and remand to the district court for further action.

Plaintiff James S. Rhew and defendant Luetta F. Rhew were married 25 November 1966. They separated 1 October 1995 and divorced 31 October 1997. Two children born of the marriage had reached the age of majority at the time of the parties' divorce. During their marriage, plaintiff obtained undergraduate and graduate degrees and was the parties' major financial support. Although defendant periodically worked, she devoted most of her time to the children and to the home.

Throughout their marriage, the parties enjoyed a comfortable standard of living. They budgeted a sizeable portion of their income to savings and retirement accounts. When the parties separated, plaintiff was earning $85,000 per year, while defendant was unemployed. After the separation, defendant, who was then approximately fifty years old, moved into her parents' home. At the time of the hearing, plaintiff's annual income exceeded $104,000, while defendant was earning $40,000 per year. After the hearing on defendant's claim for alimony, the trial court made the following pertinent findings of fact:

6. In 1994, the last full year of the marriage, the parties had about $5,000 per month of disposable income after deducting for taxes and savings....

7. In 1995 the parties had about $4,000 per month of disposable income after deducting for taxes and savings....

8. Since the date of separation defendant has resided with her parents and has had minimal expenses except for groceries.

9. Defendant presently has substantial deductions from her bi-monthly salary for deferred compensation and stock purchases. It appears that she would have about $2,500 per month in disposable income if she had only mandatory deductions from her salary.

10. As of the date of this hearing the parties had not resolved their respective claims for equitable distribution. Defendant is entitled to an equitable share of the proceeds from the sale of the marital residence, a substantial amount of IBM stock, plaintiff's IBM retirement and the other assets of the marriage. After equitable distribution defendant will have the ability to make a substantial down payment toward the purchase price of a residence and should be able to finance the unpaid amount with a relatively small mortgage.

11. Defendant's claim for alimony is based in part on the argument that the accustomed standard of living of the parties included significant monthly contributions to savings. It does not appear that the appellate courts of this state have addressed this issue. However, the appellate courts have stated that the purpose of alimony is to provide "reasonable subsistence" to a dependent spouse. This Court understands "reasonable subsistence" to mean the necessities of daily living, including but not limited to shelter, utilities, food and clothing, but not including putting money away for the future. Based upon this understanding of the law of North Carolina and based further upon the estate of defendant as set forth in paragraph # 10, the income of defendant and the disposable income of the parties during the last two years of the marriage as set forth in paragraphs # 6 and 7, it appears that defendant has the ability to provide "reasonable subsistence" for herself consistent with the parties' accustomed standard of living and that she is not, therefore, a dependent spouse.

The trial court accordingly found that defendant was not entitled to alimony. Defendant appeals.

I.

Defendant first argues the trial court erred by "fail[ing] to make the detailed findings of fact needed to determine dependency." Only a dependent spouse, that is, one "who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse," N.C. Gen.Stat. § 50-16.1A(2) (1999) (emphasis added), is entitled to alimony in North Carolina, N.C. Gen.Stat. § 50-16.3A(a) (1999). To be "actually substantially dependent," a spouse must have "actual dependence on the other in order to maintain the standard of living to which he or she became accustomed during the last several years prior to the spouses' separation." Talent v. Talent, 76 N.C.App. 545, 548, 334 S.E.2d 256, 258 (1985) (citation omitted), superseded on other grounds by N.C. Gen.Stat. § 50-16.3A(a). If the trial court determines that one spouse is not actually dependent upon the other, the court must consider the second test set out in N.C. Gen.Stat. § 50-16.1A(2) and determine whether one spouse is "substantially in need of maintenance and support" from the other. In other words, the court must determine whether one spouse would "be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other." Talent, 76 N.C.App. at 548, 334 S.E.2d at 258-59.

Section 50-16.3A(b) directs the trial court to "consider all relevant factors" when making the determination of alimony and enumerates fifteen such relevant (but non-exclusive) factors. N.C. Gen.Stat. § 50-16.3A(b). "`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.'" Lamb v. Lamb, 103 N.C.App. 541, 545, 406 S.E.2d 622, 624 (1991) (quoting Skamarak v. Skamarak, 81 N.C.App. 125, 128, 343 S.E.2d 559, 561 (1986) (citations omitted)); see also Patterson v. Patterson, 81 N.C.App. 255, 343 S.E.2d 595 (1986)

("The analysis under this test ... requires detailed and specific findings by the trial court."). "In the absence of such findings, appellate courts cannot appropriately determine whether the order of the trial court is adequately supported by competent evidence, and therefore such an order must be vacated and the case remanded for necessary findings." Talent, 76 N.C.App. at 548-49,

334 S.E.2d at 259 (citation omitted). Accordingly, "`[t]he requirement for detailed findings is thus not a mere formality or an empty ritual; it must be done.'" Lamb, 103 N.C.App. at 545,

406 S.E.2d at 624 (quoting Skamarak, 81 N.C.App. at 128,

343 S.E.2d at 562 (citation omitted)).

Plaintiff contends that defendant presented insufficient evidence to enable the trial court to make detailed findings of fact. However, a review of the record reveals that substantial evidence was presented to the court. On 31 October 1997, defendant submitted an affidavit to the court listing her monthly income and expenses. Her monthly gross income was $3,333 and her monthly expenses (including, inter alia, medical, entertainment, insurance, and 401(k) savings) totaled $2,445. Although she lived with her parents at the time of the hearing, on the basis of her prior expenses she estimated additional monthly expenses (including house payment, power and water, homeowner's fees or maintenance, property insurance, etc.) to be $2,241.

During the hearing on defendant's claim for alimony, defendant indicated her desire to move into a home of her own. She testified as to an affair plaintiff had from 1976 to 1981, but about which she had not become aware until 1989. She testified about her health problems. Upon being diagnosed with cancer shortly after the parties' separation, she underwent a mastectomy in November 1995, followed by reconstructive surgery. She needed to see a neuromuscular therapist once a week, but because those visits were not covered by her insurance, she had to reduce her visits to once a month. Defendant also testified that she takes medication for diabetes and depression and had been diagnosed with Attention Deficit Disorder.

As to her monthly expenses, defendant testified that she based the estimated $2,241 mortgage and utility expenses that she would have to pay upon moving out of her parents' home on the similar expenses incurred while married. She testified that her automobile expenses included $70 or $80 per month in gasoline, approximately $300 every six months for auto insurance, and $1,050 on recent car repairs. She testified that her medical expenses not covered by insurance averaged $784 per month. She paid $220 per month for health insurance and contributed $667 per month to her 401(k) plan.

Defendant testified that during their marriage, the parties went on vacations, weekend trips, boat outings, etc. When defendant was working, the parties employed a domestic. During their marriage, the parties made regular donations to their church, went out regularly to dinner and movies, and entertained friends at their home. Defendant testified she was unable to maintain that same standard of living at the time of the hearing, but that if she received contributions from plaintiff, she would be able to own her own home.

Defendan...