Siddle v. Siddle

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1064
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1064 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

ANGELIA K. SIDDLE, Plaintiff,

v. Currituck County No. 11 CVD 45 WILLIAM L. SIDDLE, Defendant.

Appeal by defendant from order entered 17 April 2013 by

Judge Amber Davis in Currituck County District Court. Heard in

the Court of Appeals 17 February 2014.

THE TWIFORD LAW FIRM, P.C., by Edward A. O’Neal, for plaintiff.

GREGORY E. WILLS, P.C., by Gregory E. Wills, for defendant.

ELMORE, Judge.

Defendant William L. Siddle appeals from an order granting

plaintiff Angela K. Siddle’s claims for alimony and attorney’s

fees. On appeal, defendant argues that the trial court erred

by failing to properly value his future needs and by failing to

consider plaintiff’s receipt of the vested retirement pension

funds when calculating the alimony award. In addition, -2- defendant contends that plaintiff had sufficient means to defray

the costs of litigation, and, therefore, the trial court erred

in awarding her attorney’s fees. After careful consideration of

the challenges to the trial court’s 13 April 2013 order, we

affirm.

I. Relevant Background

Plaintiff and defendant were married on 21 November 1981

and lived together as husband and wife until their date of

separation on 20 January 2011. There were two children born of

the marriage, both of whom are now of legal age. Defendant

enlisted in the United States Coast Guard in 1981. He served on

active duty for twenty years, and his Coast Guard pay was the

primary source of income for the family. Plaintiff worked

intermittently throughout defendant’s early Coast Guard career.

However, in 2001 plaintiff began working full-time as a clerk

for the Currituck County Register of Deeds. Defendant retired

from the Coast Guard on 6 January 2004 and subsequently accepted

a position at the Paxton Company, where he has remained employed

as a sales manager. The parties began receiving retirement

funds from defendant’s vested Coast Guard pension plan (the

pension plan) in February 2004. -3- On 27 January 2011, plaintiff filed a complaint in

Currituck County District Court for post-separation support,

alimony, equitable distribution, interim distribution of marital

property, and attorney’s fees. Thereafter, the parties entered

into a consent order for post-separation support on 6 September

2011 and an equitable distribution consent judgment on 26

September 2012. By the terms of these orders, defendant agreed

to pay plaintiff $500.00 per month in post-separation support,

and the parties divided the marital assets equally. Each

received approximately $45,000.00 in net proceeds from the sale

of the marital home and $38,000.00 in tax deferred IRA/401k

retirement accounts in their separate names. In addition, the

pension plan was divided equally. Plaintiff elected to have her

one-half (1/2) share reduced by 6.5 percent in order to defer

the costs of her participation in the Coast Guard’s Survivor

Benefit Plan (“SBP”). The SBP is a military program whereby a

service member’s spouse can elect to continue receiving a one-

half share of the pension after the service member’s death by

reducing the monthly pension benefit by a fixed amount. The net

effect is that plaintiff receives approximately the same vested

retirement benefit as defendant, reduced only by the cost of an -4- insurance plan designed to protect her interest in the event

defendant pre-deceases her.

Plaintiff’s remaining claims for alimony and attorney’s

fees were heard before Judge Amber Davis on 13 February 2013.

At the hearing, plaintiff testified that the parties separated

because of acts of domestic violence that defendant committed

against plaintiff. The parties’ children each testified to

defendant’s repeated acts of domestic violence against plaintiff

throughout the duration of the parties’ marriage. The trial

court received into evidence plaintiff’s Affidavit of Financial

Standing and Needs, which accounted for her future or projected

expenses based on her former standard of living. Plaintiff’s

testimony at the hearing corroborated her affidavit. For

example, plaintiff testified that she was presently living in a

single-wide trailer which rented for $400.00 per month,

including water and electricity. However, she estimated that

the cost to rent a home comparable to that in which she lived

prior to the date of separation would cost $1,100.00 per month,

which is the sum reflected in plaintiff’s financial affidavit.

Additionally, plaintiff testified that, although she did not

presently have a car payment, she would need a new vehicle

because hers had 140,000 miles and needed maintenance. In her -5- financial affidavit, she accounted for a $400.00 per month

automobile payment. Relying on plaintiff’s financial affidavit

and her testimony, the trial court found: Plaintiff received

approximately $2,400.00 per month in disposable income from her

salary and her share of the retirement pension, and her

reasonable needs totaled $3,815.00 per month. Thus, plaintiff

was left with a shortfall of $1,415.00 per month to meet her

reasonable needs.

Defendant executed an Affidavit of Financial Standing and

Needs based on his actual expenses, which reflected a $650.00

per month rent payment and no car payment. However, he later

amended the affidavit to account for his future or projected

expenses based on his former standard of living. The amended

affidavit included a $1,300.00 per month housing payment and a

$400.00 per month car payment. Defendant testified that his

current housing situation was subpar compared to his former

standard of living. He also testified that his current vehicle

had 206,000 miles and was “unreliable.”

The trial court found that defendant’s future expenses were

not credible, and thus it relied on defendant’s actual expenses

to calculate his disposable income. In its order, the trial

court found that defendant’s gross income, including bonuses, -6- was $5,660.00 per month and that his reasonable needs totaled

approximately $3,350.00, leaving $2,310.00 in disposable income.

Based on the foregoing, the trial court determined that

defendant was the supporting spouse and plaintiff was the

dependent spouse. It awarded plaintiff $1,700.00 per month in

permanent alimony and $4,500.00 in attorney’s fees. Defendant

now appeals.

II. Analysis

Defendant argues that the trial court erred in relying on

his actual, not future, expenses to calculate his alimony

obligation. Specifically, defendant contends that, because the

trial court accepted plaintiff’s future needs as reasonable, it

was obligated to find that his were similarly reasonable. We

disagree.

“The court shall award alimony to the dependent spouse upon

a finding that one spouse is a dependent spouse, that the other

spouse is a supporting spouse, and that an award of alimony is

equitable after considering all relevant factors[.]” N.C. Gen.

Stat. § 50-16.3A. Subpart (b) of the statute enumerates sixteen

factors for the trial court to consider in determining the

amount and duration of an award of alimony. “The trial court

shall make a specific finding of fact on each of the factors in -7- subsection (b) of this section if evidence is offered on that

factor.” N.C. Gen. Stat. § 50-16.3A(c). “The amount to be

awarded is a question of fairness to the parties, and, so long

as the court has properly taken into consideration the factors

enumerated by statute, the award will not be disturbed absent an

abuse of discretion.” Gardner v. Gardner, 40 N.C. App. 334,

340, 252 S.E.2d 867, 871 (1979).

On appeal, defendant does not challenge plaintiff’s future

expenses as being excessive or unreasonable. Further, he does

not allege as error that the trial court neglected to consider

the relevant factors enumerated in N.C. Gen. Stat. § 50-

16.3A(b). Instead, defendant challenges Finding #32:

“Defendant’s [future] needs are speculative and do not reflect

his actual expenses over the expenses set out in his Financial

Affidavit. The Court does not find that his “future needs” are

credible[.]” The crux of defendant’s argument is that, in light

of fact that the trial court found plaintiff’s future needs to

be reasonable, it cannot alternatively find that defendant’s

future needs are speculative given that both parties financial

affidavits were based on an “identical budget.” Defendant

avers: “It logically follows that what was deemed appropriate

for her must also be appropriate for him.” -8- Defendant’s argument goes only to the weight and

credibility of the evidence. It is well settled that “it is

within a trial court’s discretion to determine the weight and

credibility that should be given to all evidence that is

presented during trial.” Phelps v. Phelps, 337 N.C. 344, 357,

446 S.E.2d 17, 25 (1994). “The trial court must itself

determine what pertinent facts are actually established by the

evidence before it, and it is not for an appellate court to

determine de novo the weight and credibility to be given to

evidence disclosed by the record on appeal.” Id. (quotation and

citation omitted). Here, the trial court made relevant findings

of fact on each of the pertinent statutory factors under N.C.

Gen. Stat. § 50-16.3A(b)(1-16), none of which require a uniform

application. Because there is no evidence that the trial court

abused its discretion in finding that defendant’s future needs

were not credible, defendant’s argument is overruled.

B. Pension Income

Defendant next argues that the trial court erred in

awarding plaintiff permanent alimony without taking into

consideration the fact that plaintiff was entitled to half of

his pension income. We disagree. -9- In determining the amount and duration of alimony, the

trial court must account for “[t]he 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.” N.C. Gen. Stat. § 50-16.3A(b)(16).

The trial court’s order reflects the following findings of

fact in respect to the pension:

24. The Consent Order for Equitable Distribution divided the defendant’s United States Coast Guard retirement income with the Plaintiff receiving 43.5 percent of the retirement and Defendant receiving 56.5 percent of the retirement. The [p]laintiff selected to reduce her retirement income by six and one-half percent to pay for the costs of SBP benefits so that she will continue to receive benefits after [d]efendant’s death.

25. Since June 1, 2012, the [p]laintiff has received approximately $680.00 to $700.00 per month representing her marital share of the [d]efendant’s Coast Guard Retirement. Both parties will continue to receive their share of the Coast Guard Retirement plus any cost of living adjustments for the duration of the parties’ lifetime.

26. Plaintiff receives approximately $2,400.00 per month in disposable income from her employment and her shares of the Coast Guard Retirement benefits to meet her needs and expenses. -10- On appeal, defendant admits that Findings #24 and #25

reference the Coast Guard pension, but he contends that this is

insufficient to satisfy N.C. Gen. Stat. § 50-16.3A(b)(16).

Specifically, defendant takes issue with Finding #24 because it

erroneously reports an unequal division of the pension funds.

He also contends that the trial court erred in failing to

account for the effect that plaintiff’s entitlement to the

pension income had on the duration of the alimony award.

In calculating plaintiff’s monthly disposable income, the

trial court relied on the sum of $686.44 as reported in

plaintiff’s financial affidavit, not the percentages set forth

in Finding #24. Further, in Finding #16, the trial court

recognizes that the pension was divided equally: “Plaintiff was

entitled to receive . . . one-half share of the Coast Guard

Pension[.]” Accordingly, any error as to the distribution of

the pension funds in Finding #24 is inconsequential. Moreover,

N.C. Gen. Stat. § 50-16.3A(b)(16) does not mandate that the

trial court find how plaintiff’s receipt of pension income

impacted the duration of its alimony award. Pursuant to N.C.

Gen. Stat. § 50-16.3A(c), the trial court need only “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 -11- payment.” In Finding #46, the trial court sufficiently

explained its reasoning for awarding plaintiff permanent

alimony:

46. The award of permanent alimony to the [p]laintiff should be for an indefinite period of time as her income is not likely to increase significantly because of her employment history and limited education. The [p]laintiff will need the alimony awarded to her for an indefinite period to allow her to maintain a decent standard of living which will be a standard of living that is less than she enjoyed during the parties’ marriage.

The record reflects that the trial court properly

considered plaintiff’s receipt of the pension income. We see no

evidence that the trial court abused its discretion in

calculating the duration and amount of the alimony award.

Accordingly, defendant’s argument is overruled.

C. Attorney’s Fees

Lastly, defendant argues that the trial court erred in

awarding plaintiff $4,500.00 in attorney’s fees. We disagree.

Generally, “an analysis for attorney’s fees requires a two-part

determination: entitlement and amount.” Barrett v. Barrett, 140

N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000). However, here

defendant does not challenge the amount of fees awarded. -12- Accordingly, our focus is whether plaintiff is entitled to an

award of attorney’s fees.

When a dependent spouse is entitled to alimony pursuant to

N.C. Gen. Stat. § 50–16.3A, “the court may, upon application of

such spouse, enter an order for reasonable counsel fees, to be

paid and secured by the supporting spouse in the same manner as

alimony.” N.C. Gen. Stat. § 50–16.4 (2011). In order to

establish that a spouse is entitled to attorney’s fees, he or

she must be “(1) the dependent spouse, (2) entitled to the

underlying relief demanded (e.g., alimony and/or child support),

and (3) without sufficient means to defray the costs of

litigation.” Barrett at 369, 374, 536 S.E.2d at 646 (citation

omitted). “The satisfaction of these three requirements, is a

question of law, fully reviewable on appeal.” Id. (citation

omitted). Generally, the dependent spouse has insufficient

means to defray the costs of litigation if he or she is unable

as litigant to meet the supporting spouse as litigant on

substantially even terms. Theokas v. Theokas, 97 N.C. App. 626,

631, 389 S.E.2d 278, 281 (1990). “Once a spouse is entitled to

attorney’s fees, our focus then shifts to the amount of fees

awarded. The amount awarded will not be overturned on appeal -13- absent an abuse of discretion.” Barrett at 375, 536 S.E.2d at

647.

In its 13 April 2013 order, the trial court partially

granted plaintiff’s claims for attorney’s fees in the amount of

$4,500.00, finding: 1) plaintiff incurred $7,899.00 in

attorney’s fees to litigate her claims for post-separation

support and permanent alimony; 2) the fees charged by

plaintiff’s attorney were reasonable given counsel’s skill and

experience; 3) plaintiff lacked “sufficient means upon which to

live during the prosecution of her action and to defray her

necessary legal expenses from her re-occurring income[;]” and 4)

plaintiff had insufficient means to defray the cost and expense

of the suit “unless she were to deplete her estate by spending

the funds which she received from the sale of the former marital

residence.”

In the instant case, plaintiff is clearly the dependent

spouse entitled to the underlying relief demanded (alimony).

Thus, our focus hinges on whether plaintiff had sufficient funds

to defray the costs of litigation. “With regard to this

determination, a court should generally focus on the disposable

income and estate of just that spouse, although a comparison of

the two spouses’ estates may sometimes be appropriate.” Id. at -14- 374, 536 S.E.2d at 646 (citation omitted). Having reviewed the

trial court’s findings, we find them to be sufficient to form a

basis for determining a reasonable award of attorney’s fees.

Prior to the award of permanent alimony, plaintiff received

$2,400.00 per month in disposable income from her employment and

pension funds plus $500.00 per month in post-separation support.

Based on the trial court’s determination that plaintiff’s

reasonable needs totaled $3,815.00 per month, plaintiff was left

with a deficiency of $915.00 per month during the separation

period. This alone supports the trial court’s finding that

plaintiff had insufficient means upon which to live and

simultaneously defray the costs of litigation. Alternatively,

after paying plaintiff post-separation support and satisfying

his reasonable needs of $3,350.00, defendant had a surplus of

$1,810.00 per month during the separation period.

Defendant nonetheless points to the $8,000.00 cash

plaintiff took from the parties’ joint checking account and the

$10,000.00 she received in post-separation support out of which

her litigation costs could be paid. Defendant contends that

plaintiff had “at least Eighteen Thousand Dollars in liquid

funds with which to pay her attorney, irrespective of the

proceeds from the sale of the marital home.” However, there is -15- no evidence before us that plaintiff has access to this money

from which she could defray her litigation expenses, as opposed

to having used it to pay her monthly expenses. Further, after

paying plaintiff $1,700.00 per month in alimony and satisfying

his reasonable needs, defendant will have $610.00 per month in

excess of his reasonable needs. Alternatively, upon receipt of

the alimony payment, plaintiff will have an excess of only

$285.00 per month to satisfy her reasonable needs. On the basis

of this evidence, we conclude that plaintiff was not able as

litigant to meet defendant as litigant on substantially even

terms. Accordingly, the trial court did not err in finding that

plaintiff had insufficient means to defray the cost of

litigation. The trial court’s award of $4,500.00 in attorney’s

fees is reasonable and supported by the evidence.

III. Conclusion

In sum, the trial court did not err in calculating

defendant’s reasonable needs based on his actual expenses as set

forth in his financial affidavit. There is no requirement that

the trial court uniformly calculate each parties’ disposable

income. Moreover, the record reflects that the trial court

considered plaintiff’s receipt of the pension funds in awarding

her permanent alimony. Finally, the trial court did not err in -16- finding that plaintiff had insufficient means to defray the cost

of litigation and in awarding plaintiff $4,500.00 in attorney’s

fees. Accordingly, we affirm.

Affirmed.

Chief Judge MARTIN and HUNTER, Robert N., concur.

Report per Rule 30(e).