Sunshine v. Sunshine

• Court: Court of Appeals of North Carolina
• Decided: June 4, 2024
• Docket: 23-559
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-559

Filed 4 June 2024

Wake County, No. 20 CVD 9574

JUDI BADER SUNSHINE, Plaintiff,

v.

IAN SUNSHINE, Defendant.

Appeal by Plaintiff from orders entered 3 August and 23 November 2022 by

Judge Rashad Hauter in Wake County District Court. Heard in the Court of Appeals

7 February 2024.

Tharrington Smith, LLP, by Jeffrey R. Russell, Evan B. Horwitz, and Casey C. Fidler, for Plaintiff-Appellant.

Jackson Family Law, by Jill Schnabel Jackson, for Defendant-Appellee.

COLLINS, Judge.

Plaintiff appeals from an order granting her alimony and a subsequent order

denying her motion for a new trial. Plaintiff argues that the trial court made several

errors resulting in an insufficient alimony award. For the reasons stated herein, we

vacate the order granting alimony and remand for further findings of fact, conclusions

of law supported by those findings, and a proper determination of the amount of

alimony in accordance with those findings and conclusions. SUNSHINE V. SUNSHINE

Opinion of the Court

I. Background

Judi Bader Sunshine (“Plaintiff”) and Ian Sunshine (“Defendant”) were

married on 3 June 2000 and separated on or about 7 March 2020. Two children were

born of the marriage, both of whom had reached the age of majority before entry of

the challenged alimony order.

Defendant has been in the packaging supply business for more than

twenty-seven years and is the sole owner of Sun Pro Packaging, Inc. Plaintiff became

a stay-at-home mother in 2001, around the time that the parties’ first child was born,

and she did not return to work outside the home until 2016. She is employed

part-time as a teaching assistant for special needs children at Quest Academy and

she owns Wingin’ It, a business that sells butterfly farming supplies.

Plaintiff commenced this action on 31 August 2020 by filing a complaint for

child custody, child support, postseparation support, alimony, equitable distribution,

and attorney’s fees. Defendant filed an answer and counterclaims for child custody

and equitable distribution. Plaintiff filed a reply to Defendant’s counterclaims and

affirmative defenses.

A hearing on Plaintiff’s claims for postseparation support, child support, and

attorney’s fees was held, and an order was entered on 11 January 2021 (“PSS and

Child Support Order”). The trial court found that Defendant had reasonable monthly

expenses of approximately $16,000 and a monthly net income of $38,000, and that

Plaintiff had reasonable monthly expenses of $9,859 and a monthly gross income of

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$1,000. The trial court further found that Plaintiff is a dependent spouse who is

actually substantially dependent upon Defendant for her maintenance and support

and awarded her $6,859 per month in postseparation support for thirty-six months

or until entry of an alimony order. The trial court awarded Plaintiff $2,000 per month

in child support until the parties’ remaining minor child graduated from high school

approximately five months after entry of the PSS and Child Support Order. The trial

court further found that Plaintiff was entitled to reimbursement from Defendant for

her attorney’s fees.

On 29 September 2021, the trial court entered a Consent Equitable

Distribution Judgment and Order. Defendant was distributed the following property:

the marital residence and the parties’ lake house with the mortgage notes upon each;

three cars; a boat; two jet skis; investment accounts with a value of approximately

$614,609; Defendant’s IRA; 66% of profits from a deferred profit plan and the tax

liability thereon; Sun Pro Packaging, Inc.; and various items of personal property.

Plaintiff was distributed the following: a cash award of $475,000 associated with the

parties’ marital residence and lake house that Defendant received; two cars;

investment accounts with a value of approximately $614,609; Plaintiff’s IRA; 34% of

profits from Defendant’s deferred profit plan; Wingin’ It; and various items of

personal property.

Plaintiff’s alimony claim was heard on 14 March 2022. On 8 April 2022, the

trial court orally rendered preliminary findings of fact and announced that it was

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awarding Plaintiff alimony in the amount of $6,500 per month for 120 months.

Counsel for the parties submitted supplemental written closing arguments and draft

orders to the trial court after its oral ruling.

The written order (“Alimony Order”) was entered on 3 August 2022. The trial

court found that Defendant’s net monthly income was $25,473.58 and reasonable

monthly living expenses were $11,788.39, leaving him a monthly surplus of

$13,685.19. The trial court found that Plaintiff’s net monthly income was $3,419.84

and reasonable monthly living expenses were $5,932.68, leaving her a monthly

shortfall of $2,512.84. The trial court awarded Plaintiff alimony in the amount of

$2,513 for 120 months.

Plaintiff moved for a new trial or alteration of the Alimony Order. The trial

court entered an order on 23 November 2022 denying Plaintiff’s motion. Plaintiff

timely filed a notice of appeal from the Alimony Order and the order denying her

motion for a new trial.

II. Discussion

Plaintiff sets forth the following issues on appeal, arguing that the trial court

erred by: (1) awarding an insufficient amount of alimony to Plaintiff; (2) failing to

find and conclude that Defendant engaged in other marital misconduct; and (3)

making certain findings of fact and conclusions of law. Plaintiff essentially argues

that the trial court made certain factual and legal errors that led to an insufficient

alimony award.

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We note that although Plaintiff noticed appeal from the trial court’s order

denying her motion for a new trial, Plaintiff made no argument to this Court that

that trial court erred by denying that motion. Any argument that the trial court erred

by denying the motion for a new trial is deemed abandoned. See N.C. R. App. P. 28(a).

A. Standard of Review

“As our statutes outline, alimony is comprised of two separate inquiries.”

Barrett v. Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000). “The trial

court’s first determination as to whether a party is entitled to alimony is reviewed de

novo.” Madar v. Madar, 275 N.C. App. 600, 604, 853 S.E.2d 916, 921 (2020) (italics

omitted). “If the trial court determines that a party is entitled to alimony, then a

second determination is made as to the amount of alimony to be awarded, which we

review for abuse of discretion.” Id. “The trial court’s decision constitutes an abuse of

discretion where it ‘is manifestly unsupported by reason, or so arbitrary that it could

not have been the result of a reasoned decision[.]’” Collins v. Collins, 243 N.C. App.

696, 700, 778 S.E.2d 854, 856 (2015) (citation omitted). “An error of law is by

definition an abuse of discretion.” Li v. Zhou, 252 N.C. App. 22, 26, 797 S.E.2d 520,

523 (2017) (citations omitted).

This Court reviews a trial court’s order containing findings of fact “to

determine if there is competent evidence to support the trial court’s findings of fact

and whether the findings support the conclusions of law and ensuing judgment.”

Klein v. Klein, 290 N.C. App. 570, 577, 892 S.E.2d 894, 903 (2023) (quotation marks

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and citation omitted). “The trial court’s findings of fact are binding on appeal as long

as competent evidence supports them, despite the existence of evidence to the

contrary.” Id. “[C]onclusions of law are reviewable de novo” on appeal. Smith v.

Smith, 247 N.C. App. 166, 169, 785 S.E.2d 434, 437 (2016) (quotation marks and

citations omitted). Furthermore, “[t]he labels ‘findings of fact’ and ‘conclusions of law’

employed by the trial court in a written order do not determine the nature of our

review.” Walsh v. Jones, 263 N.C. App. 582, 589, 824 S.E.2d 129, 134 (2019) (citation

omitted). “If the trial court labels as a finding of fact what is in substance a conclusion

of law, we review that ‘finding’ de novo.” Id. (italics omitted).

B. Law Governing Alimony

“‘Alimony’ means an order for payment for the support and maintenance of a

spouse or former spouse, periodically or in a lump sum, for a specified or for an

indefinite term, ordered in an action for divorce . . . or in an action for alimony without

divorce.” N.C. Gen. Stat. § 50-16.1A(1) (2022). “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, including those set out in [N.C. Gen. Stat.

§ 50-16.3A(b)].” Id. § 50-16.3A(a) (2022).

A dependent spouse is a spouse “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.” Id. § 50-16.1A(2) (2022). A

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supporting spouse is a spouse “upon whom the other spouse is actually substantially

dependent for maintenance and support or from whom such spouse is substantially

in need of maintenance and support.” Id. § 50-16.1A(5) (2022). If the court finds that

the supporting spouse participated in an act of illicit sexual behavior during the

marriage and prior to or on the date of separation and that the dependent spouse did

not, then the court shall order that alimony be paid to the dependent spouse. Id.

§ 50-16.3A(a).

In determining the amount, duration, and manner of payment of alimony, the

trial court shall consider all relevant factors, including the following statutory factors:

(1) The marital misconduct of either of the spouses . . . ; (2) The relative earnings and earning capacities of the spouses; (3) The ages and the physical, mental, and emotional conditions of the spouses; (4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others; (5) The duration of the marriage; (6) The contribution by one spouse to the education, training, or increased earning power of the other spouse; (7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child; (8) The standard of living of the spouses established during the marriage; (9) The relative education of the spouses and the time necessary to acquire sufficient education or training to

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enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs; (10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support; (11) The property brought to the marriage by either spouse; (12) The contribution of a spouse as homemaker; (13) The relative needs of the spouses; (14) The federal, State, and local tax ramifications of the alimony award; (15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. (16) The 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.

Id. § 50-16.3A(b) (2022).

The trial court must make a specific finding of fact on each of these factors if

evidence is offered on that factor. Id. § 50-16.3A(c) (2022). The trial court is not,

however, required to make findings about the weight and credibility it gives to the

evidence before it. Robinson v. Robinson, 210 N.C. App. 319, 327, 707 S.E.2d 785,

791 (2011). The trial court must “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 payment.” N.C. Gen. Stat. § 50-16.3A(c). The trial court is to “exercise its

discretion in determining the amount, duration, and manner of payment of alimony.”

Id. § 50-16.3A(b).

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C. Plaintiff’s Arguments

The trial court determined that Plaintiff is a dependent spouse, Defendant is

a supporting spouse, Defendant participated in an act of illicit behavior during the

marriage and Plaintiff did not, and that an award of alimony to Plaintiff is equitable

under the circumstances. The trial court awarded Plaintiff alimony in the amount of

$2,513 for 120 months. Plaintiff’s arguments before this Court pertain solely to the

amount of alimony awarded.

1. Plaintiff’s Income

Plaintiff first argues that the trial court erroneously calculated her actual

income in the following three ways: (1) by disallowing $5,060 in labor expenses for

Wingin’ It; (2) by disallowing $13,399.73 in inventory expenses for Wingin’ It; and (3)

by finding that her annual income for Quest Academy employment was $22,000.

In determining an alimony award, the trial court must consider “[t]he relative

earnings and earning capacities of the spouses[.]” N.C. Gen. Stat. § 50-16.3A(b)(2).

“Alimony is ordinarily determined by a party’s actual income, from all sources, at the

time of the order.” Kowalick v. Kowalick, 129 N.C. App. 781, 787, 501 S.E.2d 671,

675 (1998) (citation omitted). Yet, there are exceptions to this general rule. A trial

court may impute income to a party if the trial court first finds that the party has

depressed their income in bad faith. Id. “Bad faith for [a] dependent spouse means

shirking the duty of self-support[.]” Works v. Works, 217 N.C. App. 345, 347, 719

S.E.2d 218, 219 (2011) (citations omitted). Bad faith may be proven “from evidence

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that a spouse has refused to seek or to accept gainful employment; willfully refused

to secure or take a job; deliberately not applied himself or herself to a business or

employment; [or] intentionally depressed income to an artificial low.” Id. (quotation

marks and citations omitted). Additionally, this Court has allowed the trial court to

use prior years’ incomes to determine a party’s current income in cases where the

trial court found the evidence of actual income to be unreliable or otherwise

insufficient. See e.g., Diehl v. Diehl, 177 N.C. App. 642, 649-50, 630 S.E.2d 25, 30

(2006); Zurosky v. Shaffer, 236 N.C. App. 219, 242-44, 763 S.E.2d 755, 769-70 (2014).

a. Labor and Inventory Expenses for Wingin’ It

Here, the trial court made the following findings of fact relevant to Plaintiff’s

arguments concerning the labor and inventory expenses:

32. Defendant also alleges that Plaintiff is underemployed and has the ability to earn substantially more than she currently earns. 33. Plaintiff has not attempted to find a fulltime job with benefits since the parties’ date of separation. Plaintiff testified that she wants to focus on her butterfly business. Plaintiff testified that her butterfly business sales increased by $20,000 this year and expects her business to make more in the future. Plaintiff works an average of 15 hours a week on the butterfly business and has an employee that helps her with order fulfillments. Plaintiff explained that her business is seasonal and that she works substantially more hours during the Summer. 34. Plaintiff’s 2021 income tax return reflects negative income from Wingin It, which is not consistent with prior years. Based on Plaintiff’s testimony at trial, Wingin It operates at a 40% profit margin. 35. Plaintiff had the time and ability to perform

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packaging/order fulfillment duties for Wingin It, yet she incurred an increasing and unnecessary expense for another person to perform such tasks for her. Plaintiff’s Schedule C Part III of her personal tax return shows an annual cost of labor expense of $5,060 in 2021, $4,000 in 2020, $2,200 in 2019 and $0 in 2018. 36. Considering Plaintiff’s work schedule, she could easily perform the duties that she pays another person to perform without affecting her business or her employment with Quest Academy thereby allowing her to save approximately $5,060 per year in labor costs. 37. Additionally, in 2021, contrary to her actions in other years, Plaintiff pre-ordered additional inventory (the sales of which will not occur or be reflected until 2022) and incurred an additional $13,399.73 expense which effectively lowered the income generated by the business. Plaintiff testified that she bought supplies early in anticipation of supply chain issues. 38. The Wingin It profit and loss statements from 2021 reflect $83,035 in sales and $64,246 in cost of goods (which includes $5,060 for the cost of labor and additional costs for three inventory orders) for a gross income of $18,789 before the Part II business expenses are deducted. 39. It is reasonable to infer from the statements of the Plaintiff and the history of the company prior to 2021, that as receivables from sales increase for the business, so should the income. 40. Further, the pre-order of supplies in the Fall of 2021 that were intended for sale in 2022 has caused the 2021 income to appear temporarily lower than it normally would. The expense incurred in 2021 should be recovered in 2022. 41. In determining Plaintiff’s actual income from Wingin It, the unnecessary cost of labor expense should be added back when determining gross income. For the year 2021, this amount is $5,060. 42. Further, for the year 2021, the third supply order of $13,399.73 should be added back. Adding back the cost of

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labor and third supply order will cause the gross income in Part I of Schedule C to be $37,248.73, which is 44.85% of gross receipts. 43. The Court then considered what, if any, of the Part II expenses to deduct from gross income. The Part II expenses duplicate some of the expenses listed on Plaintiff’s Financial Affidavit as her household and personal expenses. To the extent duplicate expenses are included in Plaintiff’s Part II Expenses, they are not considered when calculating Plaintiff’s reasonable expenses included in her financial affidavit.

44. The Part II expenses on Plaintiff’s 2021 income tax return total $19,404. It is appropriate to subtract the “Car and Truck” deduction of $476 from Plaintiff’s business expenses and to also not consider it as a personal regular recurring monthly expense. Plaintiff no longer has a car payment for the Mini Cooper and the Mazda was purchased for the parties’ adult child Lily who also shared in the purchase of that vehicle. This results in the total Part II expenses being $18,928.

45. For 2021, when considering the Part I gross income from Wingin It of $37,248.73 and the Part II expenses of $18,928, Wingin It income after business expenses is $18,320.73.

i. Labor Expense

Plaintiff challenges the trial court’s decision to add the $5,060 labor expense

back into her Wingin’ It income to determine her 2021 gross income. Although

Plaintiff challenges findings of fact 35, 36, 41, and 45, Plaintiff’s challenge is a legal

argument that the trial court erred “by erroneously imputing income to her without

the requisite finding of bad faith.”

The trial court found that “Plaintiff has not attempted to find a fulltime job

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with benefits since the parties’ date of separation[,]” “Plaintiff had the time and

ability to perform packaging/order fulfillment duties for Wingin’ It, yet she incurred

an increasing and unnecessary expense for another person to perform such tasks for

her[,]” and that Plaintiff “could easily perform the duties that she pays another

person to perform without affecting her business or employment . . . .” Accordingly,

the trial court added “the unnecessary cost of labor expense” of $5,060 to her gross

income for the year 2021.

The trial court’s findings allude to evidence of bad faith and it is apparent that

the trial court imputed income of $5,060 to Plaintiff for 2021. However, the trial court

did not specifically find that Plaintiff depressed her income in bad faith. See

Kowalick, 129 N.C. App. at 787, 501 S.E.2d at 675. Absent such a finding, the trial

court’s findings were not sufficient to support its imputation of $5,060 to Plaintiff’s

2021 gross income.

ii. Inventory Expense

Plaintiff next challenges the trial court’s decision to add $13,399.73 back to her

2021 gross income to account for a pre-order of inventory in the Fall of 2021 for sale

of items in 2022 in anticipation of supply chain issues. Although Plaintiff challenges

findings of fact 37, 40, 42, and 45, this is again a legal argument that the trial court

erred “by erroneously imputing income to her without the requisite finding of bad

faith.”

The trial court found that “in 2021, contrary to her actions in other years,

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Plaintiff pre-ordered additional inventory (the sales of which will not occur or be

reflected until 2022) and incurred an additional $13,399.73 expense which effectively

lowered the income generated by the business.” The trial court further found that

this pre-order “has caused the 2021 income to appear temporarily lower than it

normally would” and thus this “supply order of $13,399.73 should be added back” to

her 2021 gross income.

Unlike the “unnecessary” cost of labor discussed above, the pre-order of

supplies caused Plaintiff’s income to appear “temporarily lower” than normal,

indicating that Plaintiff’s 2021 gross income as reported was an unreliable measure

of her income for purposes of alimony. This case is similar in ways to Diehl and

Zurosky.

In Diehl,1 plaintiff “challenge[d] the trial court’s use of an average of his

monthly gross incomes in 2001 and 2002 as a basis for finding his monthly gross

income for 2003 . . . .” 177 N.C. App. at 649, 630 S.E.2d at 30. We concluded that the

trial court’s findings of fact that the evidence of actual income was unreliable were

supported by the evidence and held, “Given the unreliability of [plaintiff’s]

documentation, we cannot conclude . . . that the trial court abused its discretion by

averaging . . . income from his . . . two prior tax returns to arrive at his 2003 income.”

1 Although Diehl involved the computation of plaintiff’s income for purposes of child support,

its reasoning has been applied in alimony cases. See Zurosky, 236 N.C. App. at 242-44, 763 S.E.2d at 769-70.

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Id. at 650, 630 S.E.2d at 30. This Court also found plaintiff’s characterization of the

trial court’s methodology of averaging prior years’ incomes as “imputation” of income

to be inaccurate and held that the law of imputation of income was inapplicable. Id.

Thus, the trial court was not required to make a finding of bad faith. Id.

In Zurosky, this Court distinguished cases wherein the trial court imputed

income to a party when that party acted in bad faith to depress their income from

cases where a party’s reported income was unreliable, explaining that in Diehl, “the

trial court did not make a finding of bad faith or have evidence that the spouse

deliberately depressed his income; the trial court used prior years’ incomes because

the trial court did not have sufficient evidence regarding his actual income.” 236 N.C.

App. at 243, 763 S.E.2d at 769. As in Diehl, there were concerns over the reliability

of the reported income in Zurosky. Accordingly, we held that the trial court did not

abuse its discretion in using prior years’ income to determine actual income for

purposes of computing alimony. Id. at 243-44, 763 S.E.2d at 770.

Here, as in Diehl and Zurosky, the trial court was concerned with the reliability

of Plaintiff’s reported income. The trial court found that “contrary to her actions in

other years, Plaintiff had pre-ordered additional inventory” and that Plaintiff

testified that she “bought supplies early in anticipation of supply chains issues.” The

trial court further found that this pre-order “caused the 2021 income to appear

temporarily lower than it normally would.” Thus, based on her past business

decisions and the reason for pre-ordering inventory, her reported 2021 gross income

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was not a reliable measure of her actual income. Unlike in Diehl and Zurosky, the

reliability of Plaintiff’s reported income was not attributable to Plaintiff’s failure to

provide sufficient or reliable documentation; in fact, her pre-order of inventory was

potentially a wise business decision. Nonetheless, as in Diehl and Zurosky, the trial

court’s findings here support its decision to include the $13,399.73 cost of the

inventory order in the calculation of Plaintiff’s 2021 gross income.

b. Quest Academy Income

Plaintiff next argues that the trial court erroneously found that her actual

income from Quest Academy was $22,000 annually.

Finding of Fact 28 provides: “Plaintiff is currently employed in a contract part

time position at Quest Academy where [she] works approximately 15 hours per week

and earns $22,000 in annual income. Plaintiff anticipates signing a full year contract

with Quest Academy in May 2022.”

Plaintiff testified that she began working at Quest Academy in October of 2021.

When asked how much she was paid for working three days a week at Quest

Academy, Plaintiff responded, “I came in, sort of, at the middle of the year. Somebody

quit, and they reached out to me and offered me a position. And so it’s not for the full

year, but I know that for the full year it would be $22,000 a year.” When asked if she

planned to continue working at that job, Plaintiff responded, “Yes, I do.” The

following exchange then took place between the trial court and Plaintiff:

THE COURT: That’s $22,000 a year if it’s the full year?

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[PLAINTIFF]: Yes. THE COURT: Working three days a week? [PLAINTIFF]: Uh-huh. THE COURT: Okay. Thank you. Plaintiff’s testimony is competent evidence to support the challenged finding of fact

that she earns $22,000 in annual income from Quest Academy.

Plaintiff argues that her Financial Affidavit, her 2021 Federal income tax

return, and her Social Security Historical Statement of Income do not reflect that

Plaintiff had received $22,000 in annual income from Quest Academy as stated in the

above finding. However, Plaintiff did not work a full academic year in 2021 and had

yet to work a full academic year as of the 14 March 2022 trial; accordingly, Plaintiff’s

2021 tax return and 7 February 2022 Social Security Historical Statement of Income

would not have reflected an annual income of $22,000 from Quest Academy.

As this challenged finding of fact is supported by competent record evidence, it

is conclusive on appeal. Klein, 290 N.C. App. at 577, 892 S.E.2d at 903.

c. Summary of Plaintiff’s Income Discussion

For the reasons stated above, we hold as follows: Absent a finding that Plaintiff

acted in bad faith by incurring a $5,060 labor expense for Wingin’ It, the trial court’s

findings were not sufficient to support its imputation of $5,060 to Plaintiff’s 2021

gross income. However, the trial court’s findings support its decision to include the

$13,399.73 inventory expense in the calculation of Plaintiff’s 2021 gross income for

Wingin’ It, and the evidence supports the trial court’s finding that Plaintiff’s annual

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income from Quest Academy was $22,000. Accordingly, we vacate the Alimony Order

and remand this matter to the trial court with instructions to determine whether

Plaintiff depressed her income in bad faith. If the trial court finds so, it must make

an explicit finding of bad faith. If it does not so find, the trial court must recalculate

Defendant’s monthly alimony obligation to Plaintiff without imputing the $5,060 in

income to her.

2. Standard of Living

Plaintiff next argues that the trial court undervalued the parties’ standard of

living during the marriage, specifically challenging the trial court’s findings that the

parties lived in a frugal manner, and that the trial court erred by failing to allow

Plaintiff expenses for a comparable dwelling and investment savings. Plaintiff thus

argues that the trial court’s failure to consider the parties’ actual accustomed

standard of living resulted in an insufficient alimony award.

“[T]he parties’ needs and expenses for purposes of computing alimony should

be measured in light of their accustomed standard of living during the marriage.”

Barrett v. Barrett, 140 N.C. App. 369, 372, 536 S.E.2d 642, 645 (2000); see N.C. Gen.

Stat. § 50-16.3A(b)(8) (In determining alimony, the trial court shall consider “[t]he

standard of living of the spouses established during the marriage[.]”). Our Supreme

Court has made it clear that the “accustomed standard of living is based upon the

parties’ lifestyle during the marriage and not just economic survival”:

We think usage of the term accustomed standard of living

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of the parties completes the contemplated legislative meaning of maintenance and support. The latter phrase clearly means more than a level of mere economic survival. Plainly, in our view, it contemplates the economic standard established by the marital partnership for the family unit during the years the marital contract was intact. It anticipates that alimony, to the extent it can possibly do so, shall sustain that standard of living for the dependent spouse to which the parties together became accustomed.

Rea v. Rea, 262 N.C. App. 421, 428, 822 S.E.2d 426, 432 (2018) (quoting Williams v.

Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980)).

a. Frugal Manner of Living

Plaintiff argues that the findings of fact and the evidence do not support the

portions of findings of fact 11 and 81(g) that “the parties lived in a frugal manner.”

The trial court made the following relevant findings of fact:

11. Despite having the financial ability to live an extravagant lifestyle during their marriage, the parties lived in a frugal manner. 12. Around 2003, the parties purchased a lake house on Lake Gaston. 13. During the marriage, the parties took a vacation to Costa Rica when they were first married, went to Jamaica for their anniversary, visited Israel, and went to Disney World with their children. However, the majority of vacations they parties took during the marriage were spent at the lake house. .... 64. The parties lived in a 4300 square foot home during their marriage. Although owning a home would be consistent with the parties’ accustomed standard of living during the marriage, Plaintiff failed to demonstrate any need for the purchase of a house.

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.... 81. The Court gave due consideration to the factors outlined in N.C.G.S. § 50-16.3A(b) and finds that an award of alimony is equitable. The Court makes specific findings concerning those factors outlined in N.C.G.S. § 50-16.3A upon which evidence was received by the Court as follows: .... g. Factor (b)(8): As more fully explained above, the parties had the ability to live an extravagant lifestyle during their marriage but lived in a frugal manner.

While “frugal” is a subjective term, it can be defined as “characterized by or

reflecting economy in the use of resources” and implies an “absence of luxury and

simplicity of lifestyle.” Frugal, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/frugal (last visited May 23, 2024). Here, in addition to the

challenged findings regarding the “frugal manner” in which the parties lived, the trial

court made the following findings about their standard of living: the parties lived in

a 4,300 square-foot home; the parties owned a second home at the lake where they

vacationed; and the parties also vacationed in Costa Rica, Jamaica, Israel, and Disney

World. The record evidence supports these findings of fact and the record evidence

also indicates that at the time of separation, the parties had accumulated five

vehicles–an Acura RLX, an Inifinti, a Mazda Miata, a Ford Escape, and a Mini

Cooper–a pontoon boat, and two jet skis. While the findings regarding the parties’

standard of living and the record evidence would not support a finding that the

parties lived in an extravagant manner, they likewise do not support a finding that

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the parties “lived in a frugal manner.” We thus vacate the portions of findings 11 and

81(g) stating that the parties “lived in a frugal manner.”

b. Comparable Dwelling

Plaintiff next argues that the portion of the trial court’s finding of fact 64 that

states that “Plaintiff failed to demonstrate any need for the purchase of a house” is

not supported by any evidence or law. Plaintiff argues that the trial court erred by

relying on her apartment rent of $1,475, “which is significantly lower than the $4,697

mortgage the parties paid as part of their accustomed standard of living during the

marriage[,]” in determining her reasonable monthly needs and expenses.

The parties accustomed standard of living “contemplates the economic

standard established by the marital partnership” and anticipates that, where

possible, alimony “shall sustain that standard of living for the dependent spouse to

which the parties together became accustomed.” Rea, 262 N.C. App. at 428, 822

S.E.2d at 432 (citation omitted).

The trial court made the following relevant findings of fact:

61. Plaintiff currently lives in an apartment where she has resided for two years. Plaintiff currently pays $1,475 to rent an apartment. Plaintiff recently renewed her lease for a third year in January 2022. 62. Although Plaintiff is currently renting an apartment, she desires to purchase a home where her mortgage would be approximately $2,200 per month. 63. Despite having the current financial resources to purchase a home, Plaintiff has not purchased a home due to the current state of the housing market.

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64. The parties lived in a 4300 square foot home during their marriage. Although owning a home would be consistent with the parties’ accustomed standard of living during the marriage, Plaintiff failed to demonstrate any need for the purchase of a house. .... 81. . . . .... i. Factor (b)(l0): As a result of the Consent Order and Judgment for Equitable Distribution, Plaintiff was removed from liability on the home mortgage and lake cabin mortgage (which were awarded to the Defendant) . . . . Defendant has a combined monthly mortgage expense of $4,753.39. . . .

While a majority of these findings, including that “owning a home would be

consistent with the parties’ accustomed standard of living during the marriage,” are

supported by competent evidence, the portion of finding 64 that “Plaintiff failed to

demonstrate any need for the purchase of a house” is not supported. The trial court

must “consider the parties’ accustomed standard of living during the marriage and

not just [Plaintiff’s] actual expenses at the time of trial.” Myers v. Myers, 269 N.C.

App. 237, 261, 837 S.E.2d 443, 460 (2020).

The trial court’s supported findings regarding the parties accustomed standard

of living during the marriage include the following: “The parties lived in a 4300

square foot home during their marriage” and “owning a home would be consistent

with the parties’ accustomed standard of living during the marriage[.]” Furthermore,

finding of fact 81(i) indicates that Defendant continues to reside in the former-marital

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home and lake home, making $4,753.39 in monthly mortgage payments.

Based upon these findings and the record evidence, Plaintiff’s residence in a

rental apartment for $1,475 monthly is a significant reduction in her standard of

living from the standard established during the parties’ marriage and from the

standard Defendant continues to enjoy. Although the trial court made detailed

findings of fact regarding what it found to be the parties’ reasonable individual

expenses, these findings appear to be based solely upon the evidence of expenses for

each party at the time of trial without consideration of the parties’ accustomed

standard of living. See id. (“No findings indicate any difference between [Plaintiff’s]

actual expenses after separation as compared to the accustomed standard of living

during the marriage . . . .”). When the trial court considers the parties’ accustomed

standard of living developed during the marriage, instead of Plaintiff’s reduced

standard of living after separation, her reasonable needs will be higher. While there

is no requirement that Plaintiff enjoy the same lifestyle as Defendant’s current

lifestyle, the trial court must consider the accustomed standard of living developed

by the parties during the marriage in determining Plaintiff’s reasonable need for

support. Id. at 261-62, 837 S.E.2d at 460.

Based upon the trial court’s findings, this is not a case where the trial court

limited the alimony award because Defendant lacked the ability to pay more alimony,

nor was the alimony award reduced based upon any marital fault by Plaintiff—in

fact, Defendant admitted marital fault in this case. We thus vacate the portion of

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finding 64 stating that “Plaintiff failed to demonstrate any need for the purchase of a

house.”

c. Investment Savings

Plaintiff next argues that the trial court erred by not including savings

expenses for Plaintiff more consistent with the parties’ accustomed standard of living.

Plaintiff specifically argues that the trial court erred by narrowly focusing on

“retirement savings” instead of considering various savings and investment accounts

possessed by the parties and funded by their excess earnings.

“[T]he trial court can properly consider the parties’ custom of making regular

additions to savings plans as a part of their standard of living in determining the

amount and duration of an alimony award . . . .” Glass v. Glass, 131 N.C. App. 784,

789-90, 509 S.E.2d 236, 239 (1998). However, the trial court may consider a savings

component to an alimony award “only if the parties’ had a habit of regularly

contributing money to savings during their marriage.” Collins, 243 N.C. App. at 707,

778 S.E.2d at 860 (citation omitted). See Rhew v. Rhew, 138 N.C. App. 467, 473, 531

S.E.2d 471, 475 (2000) (“Evidence was presented that established an historical

pattern of such contributions, which satisfied the requirement in Glass that there be

a custom of regular savings.”). “Further, our case law establishes that the purpose of

alimony is not to allow a party to accumulate savings.” Glass, 131 N.C. App. at 790,

509 S.E.2d at 240.

Here, the trial court made the following challenged findings of fact:

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70. There is insufficient evidence that the parties have established a pattern of saving for retirement as part of their accustomed standard of living during the marriage. 71. The financial affidavits of each party do not reflect any retirement contributions for their respective date of separation expenses. Further, the parties’ personal tax returns that were admitted into evidence do not reflect a retirement contribution. 72. Therefore, the Court is not considering the $600 retirement expense on Plaintiff's financial affidavit.

Plaintiff argues that the trial court’s finding of fact that she “was distributed

$569,702 in investment accounts and a cash distributive award totaling $475,000 in

addition to other cash, bank accounts, and investments in her name” and that “[w]hen

combined with other IRA and bank accounts, Plaintiff had cash and investments of

approximately $1,468,208 as of the date of trial” shows that “savings and investments

were a part of the parties’ standard of living during the marriage.” While we agree

that this finding shows an accumulation of money in various accounts, indicating that

the parties saved money during the marriage, we are bound by case law that requires

evidence of a regular pattern of savings. See, e.g., Glass, 131 N.C. App. at 789-90,

509 S.E.2d at 239; Collins, 243 N.C. App. at 707, 778 S.E.2d at 860. Plaintiff points

to no evidence, and we can find none, to establish a regular pattern of savings

contributions to satisfy the requirement in Glass that there be a custom of regular

savings. Accordingly, the challenged findings of fact are binding upon us. Klein, 290

N.C. App. at 577, 892 S.E.2d at 903.

d. Summary of Standard of Living Discussion

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For the reasons stated above, we hold as follows: The portions of the trial

court’s findings of fact 11 and 81(g) stating that the parties “lived in a frugal manner”

are not supported by the evidence and are vacated. The portion of finding of fact 64

stating that “Plaintiff failed to demonstrate any need for the purchase of a house” is

not supported and is vacated. The trial court did not err by excluding savings

expenses for Plaintiff. Accordingly, we vacate the Alimony Order and remand this

matter to the trial court with instructions to determine Plaintiff’s reasonable needs

in light of the parties’ accustomed standard of living and a new alimony order

consistent with this determination.

3. Differential Treatment

Plaintiff next argues that “[t]he trial court manifestly abused its discretion by

applying differential treatment to the parties when it determined the amount of

alimony.” Plaintiff’s argument is essentially that the trial court awarded Plaintiff an

insufficient amount of alimony in light of the parties’ accustomed standard of living

and disparate incomes. As we have addressed Plaintiff’s arguments above and have

determined that the trial court erred in various ways, we need not reiterate our

analysis here.

4. Marital Misconduct

Plaintiff finally argues that the trial court erred by failing to find and conclude

that Defendant engaged in marital misconduct other than Defendant’s admitted

illicit sexual behavior. Plaintiff points to evidence of alcohol and drug use by

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Defendant and of controlling and cruel conduct by Defendant.

“In determining the amount, duration, and manner of payment of alimony, the

court shall consider all relevant factors, including . . . [t]he marital misconduct of

either of the spouses.” N.C. Gen. Stat. § 50-16.3A(b)(1).

“Marital misconduct” means any of the following acts that occur during the marriage and prior to or on the date of separation: .... f. Indignities rendering the condition of the other spouse intolerable and life burdensome; .... h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome[.]

Id. § 50-16.1A(3) (2022).

In addition to finding that “Defendant now admits that he had a sexual

relationship with Jill O’Kane during the parties’ marriage prior to their separation[,]”

the trial court found that “[d]uring the marriage, Defendant would often come home

impaired from alcohol and marijuana after attended hockey games.” Although the

trial court did not make findings of fact regarding Defendant’s alleged controlling and

cruel behavior, “[t]he court is not required to make findings about the weight and

credibility which it gives to the evidence before it.” Robinson, 210 N.C. App. at 327, 707

S.E.2d at 791. Furthermore, the trial court is not required to include findings of each

piece of evidence presented at trial and is instead, only required to “resolve the material,

disputed factual issues raised by the evidence.” Carpenter v. Carpenter, 225 N.C. App.

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269, 273, 737 S.E.2d 783, 787 (2013). Accordingly, the trial court was not required to

make additional findings of fact about alleged misconduct by Defendant in awarding

alimony to Plaintiff.

III. Conclusion

For the reasons stated herein, we vacate the Alimony Order and remand the

matter to the trial court with the following instructions: (1) Determine whether

Plaintiff depressed her income in bad faith by incurring a $5,060 labor expense for

Wingin’ It. If the trial court finds so, it must make an explicit finding of bad faith. If

it does not so find, the trial court must recalculate Defendant’s monthly alimony

obligation to Plaintiff without imputing the $5,060 in income to her. (2) Vacate

findings of fact 11 and 81(g) stating that the parties “lived in a frugal manner.”

(3) Vacate the portion of finding of fact 64 stating that “Plaintiff failed to demonstrate

any need for the purchase of a house.” (4) Determine Plaintiff’s reasonable needs and

expenses in light of the parties’ accustomed standard of living during the marriage—

not just Plaintiff’s actual expenses at the time of trial—and recalculate Defendant’s

monthly alimony obligation to Plaintiff based on this determination. (5) Enter a new

order for alimony.

VACATED AND REMANDED.

Judges WOOD and GORE concur.

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