Pierce v. Pierce

655 S.E.2d 863, 188 N.C. App. 488, 2008 N.C. App. LEXIS 229
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2008
DocketCOA07-132
StatusPublished
Cited by3 cases

This text of 655 S.E.2d 863 (Pierce v. Pierce) 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
Pierce v. Pierce, 655 S.E.2d 863, 188 N.C. App. 488, 2008 N.C. App. LEXIS 229 (N.C. Ct. App. 2008).

Opinions

McGEE, Judge.

Joanne Pierce (Plaintiff) and James Pierce (Defendant) were married on 2 July 1960 and separated on or about 30 September 2002. Plaintiff filed a complaint on 29 January 2004 for postseparation support, alimony, and equitable distribution. Defendant filed an answer and counterclaim for equitable distribution on 4 February 2004. The trial court entered an order for postseparation support on 6 April 2004.

The trial court entered a judgment for alimony and equitable distribution on 18 March 2005. The trial court divided the marital property and ordered Defendant to páy Plaintiff alimony in the amount of $700.00 per month.

Plaintiff filed a motion in the cause for a modification of alimony on 3 April 2006. The trial court entered an order modifying the previous alimony judgment on 27 July 2006. Defendant appeals.

Defendant argues the trial court erred by modifying the previous alimony judgment. N.C. Gen. Stat. § 50-16.9(a) (2007) provides, in pertinent part: “An order of a court of this State for alimony . . . may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” In general, the change of circumstances required for modification of an alimony order “must relate to the financial needs of the dependent spouse or the supporting spouse’s ability to pay.” Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). The same factors used in making the initial alimony award should be used by the trial court when hearing a motion for modification. Id. “[T]he ‘overriding principle’ in cases determining the correctness of alimony is [490]*490‘fairness to all parties.’ ” Marks v. Marks, 316 N.C. 447, 460, 342 S.E.2d 859, 867 (1986) (quoting Beall v. Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976)).

In alimony cases where a trial court sits without a jury, the trial court must “find the facts specially and state separately its conclusions of law thereon[.]” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2007). The trial court must find “specific ultimate facts ... sufficient for [an] appellate court to determine that the judgment is adequately supported by competent evidence.” Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977).

Defendant argues the following findings of fact were unsupported by the evidence:

24. That... Plaintiff’s reasonable monthly “shared” expenses are found to be $1,200[.00] for housing and utilities based on the left side of .Part B(l) of the Affidavit of Financial Standing. This amount is, of course, speculative, but by comparison with Defendant’s expenses on that side, $999[.00], and shared with Dee Kennemore, it seems reasonable. Plaintiff has $860[.00] expenses for items on the right side of the same page (home, food, and supplies, found to be $350[.00] in 2004, are found the same now; gas, found to be $50[.00] in 2004, is found to be $75[.00], given [Plaintiff’s] unemployment.) These monthly shared expenses total $2,060.00 while in 2004 these monthly shared expenses totaled $2,680.00[.]
25. That. . . Plaintiff’s monthly reasonable expenses [are found] to be $300[.00], even though she listed $45[.00] on her Affidavit of Financial Standing. These same expenses were found to be $600[.00] per month in 2004.

However, these findings were supported by evidence presented to the trial court. Plaintiff listed the following expenses on her 3 April 2006 financial affidavit in the left column under shared family expense: $1,545.23 for house payment/rent; $157.00 for electricity; $118.00 for heat; $48.00 for water; and $50.00 for cable television. These expenses totaled $1,918.23. However, as demonstrated by another finding not challenged by Defendant, the trial court deemed those expenses excessive: “[T]he Court anticipates . . . Plaintiff’s new mortgage expense will be substantially less than [the] $1545[.00] a month listed on her April 2006 Affidavit of Financial Standing. If that [491]*491is not the case, the Court finds there was no point in selling her house.” Because the trial court deemed the listed expenses excessive, the trial court reduced the expenses to $1,200.00. The trial court recognized that $1,200.00 was speculative because Plaintiff had not yet purchased a new home and did not know what her new mortgage payment would be. However, the trial court found the amount reasonable when compared with Defendant’s shared expenses.

In finding twenty-four, the trial court also found that Plaintiff had $860.00 in expenses on her financial affidavit for items in the right column under shared family expense. Plaintiff listed the following expenses in that column: $45.00 for telephone(s)/pager; $500.00 for home food and supplies; $390.00 for car payment; and $150.00 for gasoline. These expenses totaled $1,085.00. However, the trial court again determined that Plaintiff’s listed expenses were excessive. The trial court found Plaintiff’s expenses for home food and supplies to be only $350.00 and found Plaintiff’s expense for gasoline to be only $75.00. When those amounts are substituted for Plaintiff’s amounts in the right column, the total is $860.00, as found by the trial court. Also, when the amounts found by the trial court from the left column are added to the amounts from the right column, the total is $2,060.00, as found by the trial court. This amount is less than Plaintiff’s expenses in 2004, which totaled $2,680.00. Accordingly, finding of fact twenty-four was supported by the evidence.

Defendant also challenges finding of fact twenty-five. However, this finding was also supported. In Plaintiff’s financial affidavit filed 20 October 2004, Plaintiff listed $993.00 in individual expenses, but in the trial court’s 18 March 2005 judgment for alimony and equitable distribution, the trial court found that Plaintiff’s “individual expenses [were] reduced to $600.00.” Therefore, the trial court’s finding that “[t]hese same expenses were found to be $600[.00] per month in 2004[]” was supported. In finding of fact twenty-five, the trial court also increased Plaintiffs individual expenses to $300.00 even though Plaintiff had only listed $44.75 on her 3 April 2006 financial affidavit. Given that these same expenses were found to be $600.00 in 2004, it is reasonable that the trial court increased the expenses from $44.75 to $300.00. Just as the trial court found Plaintiff’s listed shared family expenses to be excessive, the trial court had the right to determine that Plaintiff’s listed individual expenses were inadequate. Even -with the trial court’s adjustment, Plaintiff’s individual expenses were half of what they were in 2004. Accordingly, this finding of fact was supported.

[492]*492Defendant also challenges finding of fact three: “3. That... Plaintiffs reasonable needs and expenses have changed since the entry of the Order of Alimony and Plaintiff’s resources are still not adequate to meet these needs and expenses.” Defendant cites finding of fact twenty-six, in which the trial court found that “[Plaintiff’s] total expenses are $2,663[.00] per month, leaving a shortfall of $1,660[.00] per month without Alimony.

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Related

Kelly v. Kelly
747 S.E.2d 268 (Court of Appeals of North Carolina, 2013)
Keal v. Keal
680 S.E.2d 903 (Court of Appeals of North Carolina, 2009)
Pierce v. Pierce
655 S.E.2d 863 (Court of Appeals of North Carolina, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
655 S.E.2d 863, 188 N.C. App. 488, 2008 N.C. App. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-pierce-ncctapp-2008.