Gebb v. Gebb

335 S.E.2d 221, 77 N.C. App. 309, 1985 N.C. App. LEXIS 4088
CourtCourt of Appeals of North Carolina
DecidedOctober 15, 1985
DocketNo. 8429DC1275
StatusPublished

This text of 335 S.E.2d 221 (Gebb v. Gebb) 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.

Bluebook
Gebb v. Gebb, 335 S.E.2d 221, 77 N.C. App. 309, 1985 N.C. App. LEXIS 4088 (N.C. Ct. App. 1985).

Opinion

MARTIN, Judge.

The principal issue before us on this appeal is whether the trial court made sufficient findings of fact to support the awards for alimony and child support. We conclude that it did not. We also conclude that the trial court adjudicated matters not properly before it in this action. Accordingly, we must vacate the order appealed from and remand the case for further proceedings.

A dependent spouse is entitled to an award for alimony when “[t]he supporting spouse offers such indignities to the person of the dependent spouse as to render his or her condition intolerable and life burdensome.” G.S. 50-16.2(7). The jury found that plaintiff suffered indignities offered by defendant, entitling her to alimony under G.S. 50-16.2. The jury also found that plaintiff offered indignities to defendant, which would be grounds under G.S. 50-16.5(b) for disallowing or reducing plaintiffs alimony. The amount of reduced alimony to be awarded lies in the sound discretion of the trial judge. Self v. Self, 37 N.C. App. 199, 245 S.E. 2d 541, cert. denied, 295 N.C. 648, 248 S.E. 2d 253 (1978).

The factors which must be considered in determining an award for alimony are set forth in G.S. 50-16.5(a): “[a]limony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.” In determining the amount of alimony to be awarded the trial judge must comply with G.S. 1A-1, Rule 52, i.e., find facts specially, state separately the conclusions of law resulting from the facts so found, and direct entry of appropriate judgment. Quick v. Quick, 305 N.C. 446, 290 S.E. 2d 653 (1982). All the evidentiary facts need not be recited, but Rule 52 requires specific findings of ultimate facts established by the evidence which determine the issues involved and are essential to support [312]*312the conclusions of law. Id. The amount of alimony to be awarded is a reasonable subsistence, which must be determined by the trial judge from the evidence before him. Beall v. Beall, 290 N.C. 669, 228 S.E. 2d 407 (1976). G.S. 50-16.5(a) requires a conclusion of law that “circumstances render necessary” a certain amount of alimony, that the supporting spouse is able to pay the alimony, and that the amount is fair and just to all parties. Quick, supra. These conclusions must, of course, be based on specific findings of fact in accordance with Rule 52.

In the instant case the findings of fact which relate to the factors listed in G.S. 50-16.5(a) were:

3. That during the major portion of the marriage the Plaintiff worked and contributed her income for the maintenance and support of the parties and children and to further the education of the defendant with the income reported by the defendant for tax purposes as follows:
Year 1976 . $17,380.80
Year 1977 . 45,287.35
Year 1978 . 53,014.60
Year 1979 . 55,089.06
Year 1980 . 50,250.00
Year 1981 . 47,602.00
Year 1982 . 48,500.00
Year 1983 thru July 31 . 27,365.00
That it would appear from the foregoing that there was a substantial increase of the defendant’s income each year until the separation of the parties, and thereafter there was a decrease each year except that the defendant made a little more in 1982 than he did in 1981.
6. That the plaintiff has been accepted to the Pennsylvania School of Optometry, beginning in August 1984, and has need of $10,400.00 per year tuition requirements plus books, equipment, and additional living expenses for the next four (4) years.
[313]*31311. In an action in the Superior Court of Transylvania County, summary judgment was granted to the plaintiff declaring her to be an equitable owner of one-half interest in the property [150 acre tract], which case was upheld by the North Carolina Court of Appeals.
15. That from the joint account of the parties prior to the separation, the defendant withdrew $20,000.00 and placed it in an account in Asheville on behalf of himself and his mother, and that he immediately prior to the separation, withdrew $17,000.00 from which he paid off his office debts and purchased a tractor, which he thereafter sold for $5,000.00 to his mother.
16. That the defendant received payment of some $600.00 for timber cut from said property, and that there were forty (40) large truckloads in addition thereto for which the defendant received remuneration in an amount unknown to the Court.
20. That the house in which the plaintiff and minor children have been residing is in need of certain repairs, and that the same are the responsibility of the defendant. That no repair has been made to the house in over two years, and there is severe structural damage to two bedroom walls, two doors, six door latches, and the foundation of the house. In addition, the dishwasher, washer and dryer, and refrigerator are ten to twelve years old and are not functioning reliably. The two large burners on the stove need repair, and there are electrical and plumbing needs.
29. That the defendant’s income is in all respects in excess of any amount that the plaintiff could reasonably expect to earn at this time; that because of prior expenditures by the plaintiff of her income and her efforts while the defendant was receiving his education and thereafter, the plaintiff should now be awarded such sums as might be necessary for a limited time in order that she might now place herself in [314]*314the same position to reasonably create sufficient income to provide herself with the approximate standard of living enjoyed by the defendant.
31. That the income of the defendant would indicate his ability to earn sufficient funds to reasonably pay the amounts hereafter set forth.

Based on these findings, the court ordered defendant to pay plaintiff the sum of $10,500.00 per year for four years as “reduced alimony,” and to be responsible for payment of all of her hospital, dental, eye and medical expenses, whether by insurance or otherwise, for four years.

There were no findings of fact as to the total value of the estates of the parties, which is the first factor listed in G.S. 50-16.5(a). The trial judge merely found that plaintiff had been determined a one-half equitable owner of the 150 acre property. There was no finding of fact as to the value of the property, although there was evidence that eleven of the 150 acres had been sold for $3,400 per acre and, on the remaining 139 acres there was a large house, valued at approximately $70,000, a swimming pool, and a trailer. The findings relating to plaintiffs earning capacity were that she had previously been employed as a teacher earning $10,350.00 in 1976-77, and that she planned to attend optometry school. There was no finding as to plaintiffs present earning capacity, even though the evidence disclosed that she had both an undergraduate and master’s degree, was certified in school administration but had not applied for employment since 1981.

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Related

Self v. Self
245 S.E.2d 541 (Court of Appeals of North Carolina, 1978)
Williams v. Williams
261 S.E.2d 849 (Supreme Court of North Carolina, 1980)
Clark v. Clark
271 S.E.2d 58 (Supreme Court of North Carolina, 1980)
Quick v. Quick
290 S.E.2d 653 (Supreme Court of North Carolina, 1982)
Beall v. Beall
228 S.E.2d 407 (Supreme Court of North Carolina, 1976)
Clark v. Clark
262 S.E.2d 659 (Court of Appeals of North Carolina, 1980)

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Bluebook (online)
335 S.E.2d 221, 77 N.C. App. 309, 1985 N.C. App. LEXIS 4088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gebb-v-gebb-ncctapp-1985.