Lamb v. Lamb

406 S.E.2d 622, 103 N.C. App. 541, 1991 N.C. App. LEXIS 873
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 1991
Docket9021DC1174
StatusPublished
Cited by16 cases

This text of 406 S.E.2d 622 (Lamb v. Lamb) 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
Lamb v. Lamb, 406 S.E.2d 622, 103 N.C. App. 541, 1991 N.C. App. LEXIS 873 (N.C. Ct. App. 1991).

Opinions

ORR, Judge.

At the time of the judgment of permanent alimony, the trial court found that the defendant, who was 68 years old and had health problems, owned the following assets:

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Defendant had individual debts of $37,876.

The trial court found that defendant had the following monthly income:

Including the temporary alimony of $1684, the trial court found that defendant’s total gross monthly income was $3161. With taxes, the trial court found that defendant’s average net income per month [544]*544was $2554.08. The trial court found that defendant’s total monthly expenses were $2500.

Regarding plaintiff, who was 56 years old, in good health, and a dentist, the trial court found that he owned the following assets:

The trial court found that plaintiff owed the following debts:

The plaintiff filed a Financial Affidavit showing his total monthly living expenses as $10,461.43, but the trial court adjusted it to $2861.11. The trial court found that plaintiff had a gross monthly income of $8696.32 and net monthly income of $5681.18.

[545]*545I.

Plaintiff argues that the trial court erred in failing to consider the effects of equitable distribution, the estates, earnings and accustomed standard of living of the parties in setting the permanent alimony. We disagree.

N.C. Gen. Stat. § 5046.5(a) (1987) provides that “[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.” Plaintiff argues that the trial court failed to meet at least two of the statutory requirements.

“The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors established by G.S. 5046.5(a) for a determination of an alimony award.” Shamarak v. Shamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 561 (1986). “The requirement for detailed findings is thus not a mere formality or an empty ritual; it must be done.” Id. at 128, 343 S.E.2d at 562. “Although the trial judge must follow the requirements of this section in determining the amount of permanent alimony to be awarded, the trial judge’s determination of the proper amount is within his sound discretion and his determination will not be disturbed on appeal absent a clear abuse of that discretion.” Payne v. Payne, 49 N.C. App. 132, 135, 270 S.E.2d 546, 548 (1980).

Plaintiff contends that a comparison of the estates of the two parties reveals that no amount of alimony is “necessary” to maintain defendant’s standard of living. We disagree. The trial court found that defendant had assets of over $490,000, debts of $37,876, monthly expenses of $2500, and a gross monthly income of $1477. Plaintiff argues that defendant’s monthly receipts are $3618 with the addition of the monthly payment from plaintiff of $2141.29 (less the $300 interest) on the equitable distribution distributive award note. We disagree with plaintiff’s assessment of defendant’s monthly receipts. The $2141 is the principal on the equitable distribution note, and the trial court properly included this amount in the assets owned by defendant.

The trial court found that plaintiff had a gross monthly income of $8696.32, net monthly income of $5681.18, and monthly living expenses of $2861.11. He had assets of $901,338.29 and debts of [546]*546$338,095.46. Plaintiff argues that his total monthly expenses are $9002.43 which results in a shortfall of $3321.25.

The trial court’s findings are supported by competent evidence and are binding on this Court on appeal. Williams v. Williams, 299 N.C. 174, 187, 261 S.E.2d at 849, 858 (1980). We find that the trial court properly considered the factors in N.C. Gen. Stat. § 5046.5(a) in setting permanent alimony and making sufficiently detailed findings. Further, defendant need not deplete her monthly principal payment as plaintiff argues. As our Supreme Court stated in Williams, “[i]f the spouse seeking alimony is denied alimony because he or she has an estate which can be spent away to maintain his or her standard of living, that spouse may soon have no earnings or earning capacity and therefore no way to maintain any standard of living.” 299 N.C. at 184, 261 S.E.2d at 856.

Plaintiff also argues that the trial court ignored the relationship between equitable distribution and alimony and excluded the effect of equitable distribution from its consideration of plaintiff’s ability to pay alimony. Further, he argues the results are unjust in that the trial court ordered the same amount of permanent alimony as temporary alimony so that defendant is receiving the same amount of alimony as she did prior to equitable distribution.

We disagree. Clearly there is a relationship between one’s property and one’s “need for support and the ability to furnish it.” Capps v. Capps, 69 N.C. App. 755, 757, 318 S.E.2d 346, 348 (1984). However, in its determination of the factors required to be considered by N.C. Gen. Stat. § 5046.5(a), the trial court did consider the effects of equitable distribution. Further, at the time of the award of permanent alimony, over six years had passed since the award of temporary alimony. Here the trial court properly considered the required factors and did not abuse its discretion in setting the amount of permanent alimony.

Plaintiff also contends that the “trial court committed reversible error by repeatedly sustaining objections to testimony regarding the parties’ accustomed standard of living prior to separation, contrary to N.C. Gen. Stat. § 5046.5(a) and the decisions of this court.” Plaintiff assigns as error the sustaining of an objection by defendant’s attorney regarding plaintiff’s preparation of a summary sheet of what he considered “reasonable monthly expenses for the maintenance of one person at the Woodberry Drive address.” The summary sheet has not been included in the record. [547]*547“[T]he parties’ standard of living during the marriage is a critical factor, which the trial court must consider to insure that the dependent spouse’s alimony award will sustain.her prior lifestyle.” Perkins v. Perkins, 85 N.C. App. 660, 666, 355 S.E.2d 848, 852, disc. review denied, 320 N.C. 633, 360 S.E.2d 92 (1987). Consistent with this requirement, the trial court’s findings indicate he considered defendant’s “station in life to which she became accustomed to during the parties’ marriage.”

II.

Plaintiff also contends that the trial court erred in concluding as a matter of law that defendant is a dependent spouse and that plaintiff is a supporting spouse. We disagree.

The trial court stated in its conclusions of law:

2. The Defendant is a dependent spouse, the Plaintiff is the supporting spouse and is financially capable of supporting the Defendant; and that grounds exist for award of permanent alimony.
3.

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Lamb v. Lamb
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Cite This Page — Counsel Stack

Bluebook (online)
406 S.E.2d 622, 103 N.C. App. 541, 1991 N.C. App. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamb-v-lamb-ncctapp-1991.