North Carolina Lawyers Weekly
Based on the trial court’s unchallenged findings, the defendant-husband, a dentist with his own practice, had a gross monthly salary of approximately $18,364.42 and net monthly income of approximately $10,922.01. Although the trial court found that defendant’s claimed monthly expenses of $11,974.43 were not reasonable, the trial court did not make a finding of fact as to what defendant’s reasonable monthly expenses actually were. The trial court did find that defendant had a monthly surplus of $5,250, allowing an inference that his reasonable monthly expenses were $5,672.01; however, the trial court made no such finding. Additionally, it does not appear that—in determining that defendant had the ability to pay monthly alimony of $5,250—the trial court considered defendant’s monthly child support obligation of $3,483.83. Finally, while the trial court found that defendant could access his dental practice funds “when he needs and/or wants the money,” it is unclear whether and to what extent the trial court considered defendant’s access to his dental practice funds when determining his ability to pay $5,250 in monthly alimony.
We vacate the alimony award and remand for further findings of fact and conclusions of law. Otherwise, we affirm.
Where the record evidence shows that neither defendant’s dental practice nor the dental office suite was susceptible to division, the evidence supports the trial court’s finding that the presumption favoring in-kind distribution was rebutted. Moreover, the $520,000 value of the dental practice, as found by the trial court, plus the $384,495 equity in the dental suite, as stipulated to by the parties, comprised a bulk of the $1,152,874 distributed to defendant. The remaining value of the assets distributed to defendant, including defendant’s two IRAs worth a combined value of $195,683.34, was $248,372, short of the $364,000 distributive award ordered. The evidence supports the trial court’s finding and conclusion that defendant refinance the dental suite to fund the distributive award.
Plaintiff’s valuation expert said she included only one bank account in her valuation of defendant’s dental practice; that account had a June 11, 2017, balance of $27,061; and the dental practice’s May 31, 2017 balance sheet reported total cash of $26,641. This evidence (1) supports the trial court’s conclusion that two other bank accounts were not included in the expert’s valuation of the dental practice and (2) is sufficient to support the trial court’s decision to exclude the other accounts from the value of the dental practice and instead to distribute them to defendant as personal property.
Affirmed in part, vacated and remanded in part.
Brady v. Brady (Lawyers Weekly No. 011-075-22, 20 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County District Court (Paulina Havelka, J.) Amy Simpson and Kyle LeBlanc for plaintiff; Matthew Myers for defendant. 2022-NCCOA-200
