Opinion
No. COA12–157.
2012-09-4
Stephanie RITCHIE, Plaintiff, v. Christopher D. RITCHIE, Defendant.
Stephanie Ritchie, pro se. Ferguson, Scarbrough, Hayes, Hawkins & Demay, P.A., by James R. DeMay, for the defendant.
Appeal by defendant from orders entered 5 February 2010 and 17 August 2011 by Judge Dennis J. Redwing in Stanly County District Court. Heard in the Court of Appeals 6 June 2012. Stephanie Ritchie, pro se. Ferguson, Scarbrough, Hayes, Hawkins & Demay, P.A., by James R. DeMay, for the defendant.
THIGPEN, Judge.
Christopher D. Ritchie (“Defendant”) appeals from an equitable distribution order and an alimony order. Defendant raises numerous arguments on appeal, including that the trial court erred by making and failing to make findings of fact regarding his post-separation debt payments in its equitable distribution order, and, regarding the alimony order, that the trial court erred by making insufficient findings of fact to support the alimony award and by failing to make findings of fact about its reasons for the amount and duration of the alimony award. Because the trial court did not make findings of fact setting forth the reasons for the amount or duration of the alimony award, we must remand the alimony order to the trial court to make additional findings of fact to justify the alimony award. For all other issues, we affirm.
Stephanie Ritchie (“Plaintiff”) and Defendant were married on 24 July 1997 and separated on 12 June 2004. On 30 June 2004, Plaintiff filed a complaint for, inter alia, equitable distribution and post separation support and alimony. On 8 August 2007, the parties entered into a consent order to settle all issues except for four matters including equitable distribution and alimony. Following several hearings, on 5 February 2010 the trial court filed a “2nd Amended Findings of Fact, Conclusions of Law, and Order” (“Equitable Distribution Order”), which distributed the parties' real and personal property and ordered Defendant to pay Plaintiff $89,146.18 for her share of the marital real property. On 17 August 2011, the trial court entered an Order on Plaintiff's Claim for Alimony (“Alimony Order”). The Alimony Order directed Defendant to pay Plaintiff $650.00 per month as alimony from the date of separation through 11 June 2019 or sooner in the event of Plaintiff's death, remarriage, or cohabitation with another man. Defendant appeals from both the Equitable Distribution Order and the Alimony Order.
On appeal from the Equitable Distribution Order, Defendant contends the trial court erred by (I) finding that Defendant made post-separation first mortgage and equity line of credit payments in the amount of $94,929.78; (II) failing to make findings of fact regarding the homeowner association dues, property taxes, and insurance premiums paid by Defendant for the benefit of the marital estate; (III) failing to classify and distribute Defendant's post-separation payments as divisible property to decrease marital debt; and (IV) concluding that each party is responsible for $9,324.56 in unpaid property taxes and water tap fees, but failing to subtract Plaintiff's divisible debt obligation of $9,324.56 from the $89,146.18 awarded to Plaintiff. On appeal from the Alimony Order, Defendant argues the trial court erred by (I) making insufficient findings of fact to support the alimony award; (II) failing to make findings of fact as to the reasons for the amount and duration of the alimony award; and (III) concluding that Defendant caused indignities to Plaintiff by abandoning the marriage. We will address each argument in turn.
II. Equitable Distribution Order
A. Standard of Review
The following is a summary of our standard of review:
On appeal, when reviewing an equitable distribution order, this Court will uphold the trial court's written findings of fact as long as they are supported by competent evidence. However, the trial court's conclusions of law are reviewed de novo. Finally, this Court reviews the trial courts actual distribution decision for abuse of discretion.
Mugno v. Mugno, 205 N.C.App. 273, 276, 695 S.E.2d 495, 498 (2010) (citations and quotation marks omitted). “A trial court's findings of fact in an equitable distribution case are conclusive if supported by any competent evidence.” Williamson v. Williamson, ––– N.C.App. ––––, ––––, 719 S.E.2d 628, 631 (2011) (quotation omitted).
B. Post–Separation Debt Payments
Defendant's first three arguments on appeal involve the trial court's findings of fact about and its classification of Defendant's post-separation debt payments. Specifically, Defendant argues the trial court erred by (I) finding that Defendant made post-separation first mortgage and equity line of credit payments in the amount of $94,929.78; (II) failing to make findings of fact regarding the homeowner association dues, property taxes, and insurance premiums paid by Defendant for the benefit of the marital estate; and (III) ignoring his post-separation debt payments totaling $227,249.67 towards the mortgage, property taxes, homeowner association dues, and insurance and failing to classify these payments as divisible property to decrease marital debt. The basis for each of these arguments is essentially that Defendant presented the trial court with evidence including “several notebooks” and bank records documenting his post-separation payments, but the trial court's findings of fact ignore his evidence.
However, Defendant does not challenge the following finding of fact:
32. The Court finds [the] amount of Defendant's claim for divisible debt to be incredible, and except for the unpaid taxes and water tap fee, not to be considered by the Court as a distributive factor. Defendant's voluminous record of exhibits presented were not in any way organized to allow the Court to track or trace funds from source to claimed use, and Defendant's testimony was confusing on direct examination and hesitant on cross examination, leading the Court to find Defendant's testimony not credible and not believed.
Because Defendant does not challenge this finding of fact, it is binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.”) (citations omitted).
“The credibility of the evidence in an equitable distribution trial is for the trial court.” Quesinberry v. Quesinberry, ––– N.C.App. ––––, ––––, 709 S.E.2d 367, 373 (2011) (quotation omitted). Furthermore, “[t]he trial court, as the finder of fact in an equitable distribution case, has the right to believe all that a witness testified to, or to believe nothing that a witness testified to, or to believe part of the testimony and to disbelieve part of it .” Id.
Here, the trial court specifically found as fact that “Defendant's voluminous record of exhibits presented were not in any way organized to allow the Court to track or trace funds from source to claimed use, and ... Defendant's testimony [was] not credible and not believed.” Because the credibility of the evidence is for the trial court, id., it was within the trial court's province to believe or disbelieve the evidence offered by Defendant regarding his post-separation debt payments. Furthermore, Defendant failed to challenge the trial court's finding of fact regarding the credibility of his evidence. Accordingly, we conclude these arguments have no merit.
C. Unpaid Property Taxes and Water Tap Fee
Defendant next contends the trial court erred when it concluded that each party is responsible for $9,324.56 in divisible debt from unpaid property taxes and a water tap fee, but failed to subtract Plaintiff's divisible debt obligation of $9,324.56 from the $89,146.18 awarded to Plaintiff. We disagree.
We note that Defendant does not cite any statutory or case law to support his argument.
“In equitable distribution actions, the trial court is required to classify, value, and distribute marital property, including marital debt, and divisible property, including divisible debt.” Fountain v. Fountain, 148 N.C.App. 329, 332, 559 S.E.2d 25, 29 (2002) (citations omitted). “Divisible property” includes “[i]ncreases and decreases in marital debt and financing charges and interest related to marital debt.” N.C. Gen.Stat. § 50–20(b)(4)(d). N.C. Gen.Stat. § 50–20(a) provides that “[u]pon application of a party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section.” Additionally, “[t]here shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable.” N.C. Gen.Stat. § 50–20(c).
Here, the trial court's relevant conclusions of law state:
12. The unpaid divisible debt accrued since that date of separation in the form of unpaid taxes on 4619 South Ocean Blvd in the amount of $7,425.72, unpaid taxes on 609 Heathwood in the amount of $10,143.40, and an unpaid water tap fee for 25235 Stoney Mountain Road in the amount of $1,080.00, all [totaling] $18,649.12 are valid divisible debts and are the joint obligation of both parties, each being responsible for $9,324.56.
...
14. An equal division of the marital property valued at $195,120 .49 ... is appropriate ... resulting in each party being entitled to the sum of $97,560.24.
...
16. That said equal division, subject to the credit [to Defendant for overpayment of child support in the amount of $8,414.06] ... [results in Plaintiff receiving] the sum of $89,146.18....
The trial court also found as fact that the “amount of Defendant's claim for divisible debt to be incredible, and except for the unpaid taxes and water tap fee, not to be considered by the Court as a distributive factor.”
The trial court's findings of fact and conclusions of law show that it classified the unpaid property taxes and water tap fee as divisible debt and accepted Defendant's valuation of the debt. See Fountain, 148 N.C.App. at 332, 559 S.E.2d at 29. Furthermore, the trial court distributed the divisible debt equally between the parties in accordance with N.C. Gen.Stat. § 50–20. Accordingly, we conclude the trial court did not err by failing to subtract Plaintiff's divisible debt obligation from the amount awarded to Plaintiff.
III. Alimony Award
A. Standard of Review
We review a trial court's decision on the amount of alimony to be awarded for an abuse of discretion. Barrett v. Barrett, 140 N.C.App. 369, 371, 536 S.E.2d 642, 644 (2000) (citations omitted). “An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.” Hartsell v. Hartsell, 189 N.C.App. 65, 68, 657 S.E.2d 724, 726 (2008) (citation omitted).
B. N.C. Gen.Stat. § 50–16.3A(b) Factors
Defendant first contends the trial court made insufficient findings of fact because the findings of fact regarding the factors enumerated in N.C. Gen.Stat. § 50–16.3A(b) (2011) are merely recitations of testimony. We disagree.
N.C. Gen.Stat. § 50–16.3A(b) provides that “[i]n determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors[,]” including, inter alia: marital misconduct of either spouse; relative earnings and earning capacities of the spouses; the ages and the physical, mental, and emotional conditions of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the contribution by one spouse to the education of the other spouse; the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian of a minor child; the standard of living of the spouses established during the marriage; the relative education of the spouses; the relative assets and liabilities of the spouses and the relative debt service requirements of the spouses; the contribution of a spouse as homemaker; and the relative needs of the spouses.
“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) (quotation omitted). “[M]ere recitations of the evidence ... do not reflect the processes of logical reasoning and are not ultimate facts; therefore, they are insufficient.” Crocker v. Crocker, 190 N.C.App. 165, 169, 660 S.E.2d 212, 215 (2008) (quotation and quotation marks omitted).
Here, Defendant argues that several of the trial court's findings are insufficient because they “begin[ ] with a statement that ‘Plaintiff testified’ or ‘Defendant testified.’ “ However, Defendant does not challenge any specific findings of fact as unsupported by the evidence, nor does he argue that the trial court failed to make findings of fact regarding any specific N.C. Gen.Stat. § 50–16.3A(b) factors. We acknowledge that approximately half of the trial court's fifty-two findings of fact begin with “Plaintiff testified,” “Defendant testified,” or a similar statement. See Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 339 (2000) (holding that “the trial court's repeated statements that a witness ‘testified’ to certain facts or other words of similar import” are “mere recitations of the evidence” and do not reflect the processes of logical reasoning) (citations and quotation marks omitted). However, the trial court also made the following findings of fact:
3. Plaintiff and Defendant were wife and husband ... the length of marriage being twelve days short of seven years[.] ...
4. There were two children born of the marriage between Plaintiff and Defendant[.] ...
6. Prior to the marriage, Plaintiff obtained a B.S. degree, and was employed [as] a teacher in public and private schools during the marriage.
7. Prior to marriage, Defendant obtained a high school diploma and was employed with banking institutions during the marriage. Defendant also holds a North Carolina contractor[ ] license and a realtor[ ] license.
...
12. Previous to the marriage and during the first year of marriage [,] Plaintiff was employed as a public school teacher[.] ...
13. That Plaintiff, with Defendant's encouragement, returned to work in 2000, earning $8,400, earning $19,263 in 2001, $20,400 in[ ]2002, unknown in 2003, $21,155 in 2004, the year of separation, unknown in 2005, $21,818 in 2006, $22,708 in 2007, $23,780 in 2008, unknown in 2009, and $32,341 in 2010.
...
15. That the Court, in a previous child support proceeding heard in this matter[,] found that Defendant earned $132,000 in 2004, which represented a base salary of $78,451.20 with the rest being a payout of an incentive plan[.] ...
27. Plaintiff currently lives in a 1,600 square foot home with the parties ['] two children over which she has physical custody[.] ... Plaintiff having a monthly mortgage payment of $656, with a mortgage principal balance due as of April 15, 2011 of $94,312[.] ...
38. Plaintiff presented photographs ... to the court showing the basement area of the marital residence with Defendant's personal belongings ... and use of said area as the living quarters of Defendant in the Spring of 2004 up to the date of separation on June 12, 2004.
...
40. Defendant corroborated Plaintiff's testimony that during the first 6 to 7 months of the marriage, he paid off Plaintiff's then existing student loan debts somewhere in the amount of $9,000.
...
44. The Court finds the recitation of income and expenses detailed in Plaintiff's Amended Financial Affidavit ... to be an accurate reflection ... of Plaintiff's current standard of living, and that the debts Plaintiff has incurred since the date of separation regarding housing and a motor vehicle are reasonable[.] ...
The Court finds the recitation of income and expenses detailed in Defendant's Affidavit ... to be an in [ ] accurate reflection of Defendant's current standard of living in that expenses from three investment properties are stated with no mention of income generated by two of those properties ... and no mention of the mortgage interest, taxes, insurance and upkeep deductions Defendant admitted ... that he takes annually on those properties, the Court further finding that several categories of individual expenses stated for self and children ... [are] inflated[.]
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47. The Court finds that overall, Defendant has ... substantially increased his annual gross employment wage income since the date of separation, but has also continued to increase his financial obligations to lenders by buying an additional residence which now sits empty, and by starting another new family with its associated increase in living expenses.
48. ... [T]he Court finds ... that during the marriage Plaintiff contributed an average annual income to the marital household of $15,570, and that Defendant contributed an average annual income to the marital household of $49,000....
49. At the time of the hearing in this matter, ... Plaintiff's wages from employment were $32,341, and Defendant's wages from employment were $112,200.
50. No[ ] testimony was presented by either party regarding any health issues each may have, and the Court finds ... that each appears healthy[.] ...
51. Since the date of separation, Plaintiff has been living on an income of less than half of which she experienced during her marriage to Defendant, that she lives in a residence less than half the size of the marital residence, and that her standard of living has been reduced accordingly from that which she was accustomed to during the several years prior to the date of separation.
In sum, findings of fact numbers three, four, six, seven, twenty-seven, and fifty address the duration of the marriage, the status of the minor children, and the parties' physical condition and education levels. The parties' relative incomes and earning capacities are discussed in findings of fact numbers thirteen, fifteen, forty-seven, forty-eight, and forty-nine. Their expenses, debts, and financial obligations are set out in findings of fact numbers twenty-seven, forty-four, forty-six, and forty-seven. Their standard of living is detailed in findings of fact numbers forty-eight and fifty-one. The contribution of Defendant to the education of Plaintiff is addressed in finding of fact number forty. Although the trial court made numerous findings of fact that merely recite Plaintiff's or Defendant's testimony, we conclude that the trial court's additional findings of fact are sufficient to demonstrate the court's consideration of the required statutory factors.
C. Reasons for the Amount and Duration of the Alimony Award
Defendant next contends the trial court failed to make findings of fact regarding its reasons for the amount and duration of the alimony award. We agree.
N.C. Gen.Stat. § 50–16.3A(b) (2011) provides that “[i]n determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:”
(1) The marital misconduct of either of the spouses. Nothing 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;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions 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;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.
Id.N.C. Gen.Stat. § 50–16.3A(c) (2011) governs the “Findings of Fact” in an alimony award and states that “[t]he 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.” Id. (emphasis added). “[A] trial court's failure to make any findings regarding the reasons for the amount, duration, and the manner of payment of alimony violates N.C. Gen.Stat. § [50–16.3A(c) ].” Fitzgerald v. Fitzgerald, 161 N.C.App. 414, 421, 588 S.E.2d 517, 522–23 (2003).
Here, the trial court made the following alimony award:
Defendant shall pay to Plaintiff alimony in the sum of $650.00 per month beginning from the date of separation ... and continuing monthly thereafter for a period of 14 years and 11 months through June 11, 2019, terminating in that month, or sooner in the event of Plaintiff's death, remarriage, or cohabitation with another man, whichever event occurs first in time. It is the Court's intention that the alimony payments cease after the month in which the youngest child of the parties reaches the age of majority.
Although the trial court stated that alimony in the amount of $650 per month was reasonable and appropriate in conclusion of law number six, the trial court did not sufficiently set forth its reasons for the amount or duration of the alimony award as required by N.C. Gen.Stat. § 50–16.3A(c). Specifically, the trial court did not give an adequate explanation of its reasons for awarding the amount of $650 per month in alimony or its reasons the alimony was awarded for a specific period of fourteen years and eleven months. See Hartsell, 189 N.C.App. at 76, 657 S.E.2d at 731 (remanding for further findings of fact regarding the basis for the amount and duration of the alimony award where the trial court “provided no explanation as to why it had concluded that defendant was entitled to that specific amount” of $650 per month and “included no findings of fact at all to explain its rationale for the duration of the award”); Fitzgerald, 161 N.C.App. at 422, 588 S.E.2d at 523 (stating that although the trial court made sufficient findings to support the amount of the alimony award, this Court must “remand the alimony portion of the order to the trial court to make further findings of fact explaining its reasoning for the duration of the alimony award and its manner of payment”); Works v. Works, ––– N.C.App. ––––, ––––, 719 S.E.2d 218, 220 (2011) (stating, “the trial court failed to set forth the reasons for its determination that wife is entitled to alimony only for a specified period of eighty-four consecutive months or seven years[,]” and concluding “in accordance with the statutory requirements of N.C.G.S. § 50–16.3A(c), we must remand this matter to the trial court with instructions that it make specific findings with respect to its reasons for the specified duration of its alimony award”). Although, the trial court references the wife's standard of living and the time at which the youngest child of the parties reaches the age of majority in its order, we believe these findings are insufficient to adequately explain the trial court's reasons for the amount and duration of its award. See Lucas v. Lucas, –––N.C. ––––, ––––, 706 S.E.2d 270, 276 (2011) (holding the findings of fact were “too meager to enable the reviewing court to determine whether the trial judge exercised proper discretion in deciding what defendant was to pay plaintiff”) (internal quotation marks omitted). Thus, we must remand the Alimony Order to the trial court to make further findings of fact explaining its reasoning for the duration and amount of the alimony award.
Conclusion of law number six states the following:
“The findings support and the Court concludes that an alimony payment from Defendant to Plaintiff in the amount of $650 per month, as requested by Plaintiff is reasonable and appropriate, giving Plaintiff the ability to obtain a standard of living higher than what she now has, but not approaching that to which she became accustomed during the marriage, said payments giving Plaintiff the ability to provide for a future she would have had if the marriage had endured. The findings support and the Court concludes that the duration of the alimony shall be for a period of 15 years, beginning on that date of separation and ending in the month in which the youngest child of the parties reaches the age of majority.”
D. Conclusion of Law Number Four
In his last argument on appeal, Defendant contends the evidence and findings of fact do not support the following conclusion of law:
4. The findings support and the Court concludes as a matter of law that Defendant caused indignities to Plaintiff by abandoning the marriage of the parties in that Defendant withdrew from normal participation in the family unit over the course of the marriage by pursuing individual pursuits, both business and pleasure, thereby causing Plaintiff to wonder what was wrong with her and to feel bad inside, by setting up a separate residence in the basement of the marital residence several months before the date of separation, at which time Plaintiff knew she had to fend for herself, and by moving out of the marital residence without communicating the same to Plaintiff before doing so.
We disagree.
In determining the amount, duration, and manner of payment of alimony, a court must consider “[t]he marital misconduct of either of the spouses.” N.C. Gen.Stat. § 50–16.3A(b)(1). Marital misconduct includes the act of abandoning the other spouse. N.C. Gen.Stat. § 50–16.1A (3)(c) (2011). “An abandonment occurs when one spouse brings the cohabitation with the other spouse to an end without justification, without the consent of the other spouse and without intent of renewing it.” Cunningham v. Cunningham, 171 N.C.App. 550, 563, 615 S.E.2d 675, 684 (2005) (quotation and quotation marks omitted). “Abandonment is a legal conclusion which must be based upon factual findings supported by competent evidence.” Soares v. Soares, 86 N.C.App. 369, 370, 357 S.E.2d 418, 418–19 (1987) (citation omitted).
Defendant contends the evidence “does not support the conclusion that Defendant ‘abandoned’ the marriage.” However, Defendant does not challenge the following findings of fact as insufficient or unsupported by competent evidence:
24. Plaintiff testified that over the course of the marriage, Defendant just withdrew from everyone, that they sought counseling through their then pastor, that Plaintiff felt bad on the inside, wondering what was wrong with herself.
25. Plaintiff testified that in April 2004, Defendant abruptly moved his clothing, personal items, computer, and some furniture, to the basement of the home, and took up separate residence there, at which time Plaintiff knew she would have to fend for herself, and that she then opened a separate bank account in her name only, depositing therein the paycheck from her employment.
26. Plaintiff testified that Defendant never told Plaintiff their marriage was over, but instead, while Plaintiff was away from the residence, moved himself and his personal items out of the marital residence on June 12, 2004.
...
38. Plaintiff presented photographs[ ] ( ... un-refuted by Defendant) to the court showing the basement area of the marital residence with Defendant's personal belongings ... and use of said area as the living quarters of Defendant in the Spring of 2004 up to the date of separation on June 12, 2004.
Because Defendant does not challenge any of these findings of fact, they are binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
We conclude the unchallenged findings of fact regarding Defendant's withdrawal from the marriage, moving to the basement of the marital home, and moving out of the home on 12 June 2004 are sufficient to support the trial court's conclusion that Defendant abandoned the marriage. Thus, this argument is without merit.
AFFIRMED IN PART, REMANDED IN PART. Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).