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Domestic Relations – Alimony – Income – Equitable Distribution – Savings Plan

Burger v. Burger (Lawyers Weekly No. 011-283-16, 15 pp.) (Rick Elmore, J.) Appealed from Mecklenburg County District Court (Jena Culler, J.) N.C. App.

Holding: Even though the defendant-husband has a law degree and indicated on a 2010 credit card application that his annual income was $60,000, the trial court’s 2015 alimony order also shows that the husband is no longer employed, has no eyesight in one eye, has cancer of the eye, has to regularly apply pressure to his eye with his hand to relieve pain, and has received no benefit from his mother’s discretionary trust.  The trial court did not abuse its discretion in imputing only minimum wage income to the husband.

We affirm the trial court’s alimony order but reverse in part and remand its equitable distribution order.

Where the wife had consistently received bonuses for the past four years, the trial court acted within its discretion when it included the wife’s December 2014 bonus in her average gross monthly income.

With regard to the equitable distribution order, the parties agreed that the wife’s savings plan was marital property and that its date-of-separation value was $498,672.13. However, because no evidence was presented on the plan’s current value or any passive changes in the plan’s value, the trial court erred in distributing the plan’s passive gains and losses without additional findings of fact. Accordingly, we reverse that portion of the equitable distribution order, and we remand for entry of additional findings.

Affirmed in part, reversed and remanded in part.


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