Domestic Relations – Alimony – Insufficient Findings – Expenses – Ability to Pay – Duration

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Fennell v. Fennell. (Lawyers Weekly No. 10-16-0774, 19 pp.) (Martha A. Geer, J.) Appealed from Pasquotank County District Court. (C. Christopher Bean, J.) N.C. App. Unpub.

Holding: Because the trial court failed to make sufficient findings of fact to support its conclusion that the plaintiff-wife is entitled to alimony and to explain the manner and duration of the ordered payments, we cannot effectively review the alimony order on appeal.

We reverse and remand for further findings of fact.

The trial court determined that the defendant-husband did not have the present ability to pay alimony or attorney’s fees, but that he would have the ability to pay after he paid off a portion of his debt load. Based on that finding, the trial court determined that the wife was entitled to receive alimony and attorney’s fees.

The trial court ordered the husband to pay $3,000 as alimony by April 1, 2009. The court said this lump-sum payment would represent the amount of ongoing monthly alimony payments of $500 from November 2008 through April 2009. The court also ordered the husband to pay the wife’s attorney $1,000.

The trial court further ordered the husband to pay, on or before Oct. 1, 2009, an additional $3,000 as alimony representing the payments from May 1, 2009, through Oct. 1, 2009. The court ordered an additional payment of $1,000 to the wife’s attorney on April 1, 2010. Finally, the trial court ordered that beginning Nov. 1, 2009, the husband was required to make monthly alimony payments of $500.

The trial judge had the discretion – after hearing the testimony and viewing the exhibits presented by the parties – to exercise his own common sense and experience to find that the living expenses set out in the husband’s affidavit were not reasonable and to reduce those amounts.

Nevertheless, when the trial court exercises this discretion, it must provide some explanation as to how it has calculated the parties’ incomes and expenses. In the absence of any explanation, this court cannot effectively review the decision.

The order contains no indication of how the trial court derived the figure of $2,129 when the husband’s affidavit claimed expenses of $3,429, thus precluding us from effectively reviewing this decision. We must remand for further findings of fact on those issues.

On the ability to pay issue, the trial court initially found, “The [husband] does not have the present ability to pay alimony or attorney’s fees,” but the trial court based its award on its finding that “after the [husband] satisfies a portion of his debt load, including monthly payments which will terminate in the next twelve months, he will have the ability to make payments to the [wife] for alimony and attorney’s fees.”

The trial court based its finding that the husband would have an ability to pay on its belief that the defendant would satisfy a debt, presently requiring monthly payments, within 12 months. Although the trial court did not specifically say so, the husband asserts that this finding of fact refers to a debt owed to Interstate TD Investments, LLC.

Nothing in the finding of fact at issue or any other finding of fact identifies specifically what “monthly payments … will terminate in the next twelve months,” and the trial court did not make any finding as to the amount by which the husband’s expenses would be reduced by the termination of the referenced payments.

Further, it is unclear from this finding of fact whether the trial court was relying only upon the termination of these payments or on additional satisfaction of the husband’s debt load. Given the generality of this finding, we cannot effectively perform our appellate-review functions. On remand, therefore, the trial court must make additional findings regarding its determination that the husband would have the ability to pay at a later date.

The trial court made findings indicating it had considered the statutory factors in G.S. § 50-16A(b) and had determined that alimony was appropriate, but the trial court never expressly stated that alimony was “equitable.”

Nothing in the statute specifically requires that the trial court use the word “equitable.” The husband has not cited any case requiring that the trial court use particular language in ordering an award of alimony.

The trial court’s order contains specific findings on the marital misconduct of the husband, the earnings of the spouses, the physical conditions of the spouses, the amount and source of income of the spouses, the duration of the marriage, the fact that the wife has a minor child living with her, the standard of living of the spouses during the marriage, the assets and liabilities of the spouses, and the needs of the spouses – all factors set out in G.S. § 50-16.3A(b).

The husband has not pointed to any factor set out in the statute on which the parties presented evidence, but the trial court did not make a finding of fact.

The trial court made findings on at least nine of the factors set out in the statute for the court to consider in awarding alimony and then found that the wife was entitled to receive alimony from the husband based on these findings. The trial court simply failed to include in its order the magic words that “an award of alimony would be equitable.”

We hold that the trial court’s findings of fact were sufficient to meet the requirements of G.S. § 50-16.3A(c). The trial court’s determination that alimony was equitable can be inferred from its findings.

While the husband acknowledges that the trial court could order either lump-sum payments or periodic payments, he argues, citing Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980), that the court could not order both methods of payment.

Williams did not preclude an award of both types of payments; it simply noted that an award of “1,000 per month” was not a lump-sum payment and, therefore, the trial court erred in characterizing it as such. Other decisions have, in fact, upheld awards including both periodic and lump-sum payments.

Even though the trial court had authority to order both lump-sum and periodic payments, the order regarding the manner of alimony payments must be reversed and remanded for another reason.

The trial court found that the wife’s deficit between her income and expenses every month was $502. This finding explains why the trial court set the alimony amount at $500 per month.

The trial court also had the authority to specify that this alimony be “on-going.” G.S. § 50-16.3A(b). However, the trial court did not explain why it ordered that alimony be ongoing. It also failed to explain why it decided to make the lump-sum payments due on April 1, 2009, and Oct. 1, 2009, with periodic payments beginning after Oct. 1, 2009, or why it ordered the husband to make the payments directly to the clerk of superior court. Such findings were necessary to explain and support the trial court’s order and we must, therefore, remand.

We reverse the award of alimony and remand for further findings of fact consistent with this opinion. Because the trial court may award the wife attorney’s fees only if it has concluded that she is entitled to alimony, we must also set aside the attorney’s fees award. If the trial court determines on remand that the wife is entitled to alimony, then it may reinstate its award of attorney’s fees.

Reversed and remanded.