Caldwell v. Caldwell

Court of Appeals of North Carolina

Caldwell v. Caldwell

356 S.E.2d 821, 86 N.C. App. 225, 1987 N.C. App. LEXIS 2689

CourtCourt of Appeals of North Carolina

DecidedJune 16, 1987

Docket8630DC1288

StatusPublished

Cited by4 cases

This text of 356 S.E.2d 821 (Caldwell v. Caldwell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Caldwell v. Caldwell, 356 S.E.2d 821, 86 N.C. App. 225, 1987 N.C. App. LEXIS 2689 (N.C. Ct. App. 1987).

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Opinion

HEDRICK, Chief Judge.

Defendant contends the trial judge’s finding that “Plaintiff was substantially and materially dependent upon the Defendant for her support and maintenance” is not supported by the evidence. We agree.

G.S. 50-16.1(3) defines “dependent spouse” as a spouse, “whether husband or wife, 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.” The trial court in this case did not find that plaintiff was “substantially in need of maintenance and support” from defendant. The term “actually substantially dependent” as used in the first portion of the definition means that the spouse seeking alimony must have actual dependence on the other “in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation.” Williams v. Williams, 299 N.C. 174, 180, 261 S.E. 2d 849, 854 (1980). Thus to qualify as a dependent spouse under that portion of G.S. 50-16.1(3) the spouse seeking alimony must be actually without means for providing for his or her accustomed standard of living. Id.

The uncontradicted evidence in the record discloses that the year before the parties separated, plaintiff had an income of *227 $18,339.97 and defendant had an income of $20,475.11. The year they separated, plaintiffs income was $19,301.46 and defendant’s income was $24,447.26. During the last year that they lived together, they maintained separate bank accounts and divided household expenses. There is no evidence in the record to support the ultimate finding that plaintiff was “substantially and materially dependent upon the Defendant for her support and maintenance.” We hold, therefore, that the trial court erred in awarding plaintiff alimony.

The trial court also erred in awarding plaintiff attorney’s fees. To recover attorney’s fees pursuant to G.S. 50-16.4 in an action for alimony, the spouse must be entitled to the relief demanded, must be a dependent spouse, and must have insufficient means to subsist during the prosecution of the suit and to defray the expenses thereof. Rickert v. Rickert, 282 N.C. 373, 193 S.E. 2d 79 (1972). Since plaintiff is not a dependent spouse and is not entitled to an award of alimony, she is not entitled to recover attorney’s fees.

The order awarding alimony and attorney’s fees to plaintiff is reversed.

Reversed.

Judges Phillips and ORR concur.

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HEDRICK, Chief Judge.

Defendant contends the trial judge’s finding that “Plaintiff was substantially and materially dependent upon the Defendant for her support and maintenance” is not supported by the evidence. We agree.

G.S. 50-16.1(3) defines “dependent spouse” as a spouse, “whether husband or wife, 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.” The trial court in this case did not find that plaintiff was “substantially in need of maintenance and support” from defendant. The term “actually substantially dependent” as used in the first portion of the definition means that the spouse seeking alimony must have actual dependence on the other “in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation.” Williams v. Williams, 299 N.C. 174, 180, 261 S.E. 2d 849, 854 (1980). Thus to qualify as a dependent spouse under that portion of G.S. 50-16.1(3) the spouse seeking alimony must be actually without means for providing for his or her accustomed standard of living. Id.

The uncontradicted evidence in the record discloses that the year before the parties separated, plaintiff had an income of *227 $18,339.97 and defendant had an income of $20,475.11. The year they separated, plaintiffs income was $19,301.46 and defendant’s income was $24,447.26. During the last year that they lived together, they maintained separate bank accounts and divided household expenses. There is no evidence in the record to support the ultimate finding that plaintiff was “substantially and materially dependent upon the Defendant for her support and maintenance.” We hold, therefore, that the trial court erred in awarding plaintiff alimony.

The trial court also erred in awarding plaintiff attorney’s fees. To recover attorney’s fees pursuant to G.S. 50-16.4 in an action for alimony, the spouse must be entitled to the relief demanded, must be a dependent spouse, and must have insufficient means to subsist during the prosecution of the suit and to defray the expenses thereof. Rickert v. Rickert, 282 N.C. 373, 193 S.E. 2d 79 (1972). Since plaintiff is not a dependent spouse and is not entitled to an award of alimony, she is not entitled to recover attorney’s fees.

The order awarding alimony and attorney’s fees to plaintiff is reversed.

Reversed.

Judges Phillips and ORR concur.

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356 S.E.2d 821, 86 N.C. App. 225, 1987 N.C. App. LEXIS 2689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldwell-v-caldwell-ncctapp-1987.

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