Hunt v. Hunt ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1153
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
APRIL R. HUNT,
Plaintiff,
v. New Hanover County
No. 10 CVD 5691
JEFFERY H. HUNT,
Defendant.
Appeal by defendant from Order entered 6 May 2013 by Judge
J.H. Corpening, II in District Court, New Hanover County. Heard
in the Court of Appeals 20 February 2014.
Lori W. Rosbrugh, for plaintiff-appellee.
Chris Kremer, for defendant-appellant.
STROUD, Judge.
Jeffery Hunt (“defendant”) appeals from an order entered 6
May 2013 distributing marital property, ordering him to pay
alimony to his former wife, April Hunt (“plaintiff”), and
ordering him to pay $2,000 of plaintiff’s attorney’s fees. We
affirm in part and remand in part for additional findings.
I. Background
-2-
Plaintiff and defendant were married in November 1992 and
divorced on 26 August 2011. They have two daughters, born in
1997 and 1999. On 10 December 2010, Plaintiff filed a complaint
in New Hanover County seeking post-separation support, permanent
alimony, equitable distribution, primary custody of the
children, child support, and attorney’s fees. Issues of post-
separation support, temporary custody, permanent custody, and
child support were resolved by two consent orders. The district
court heard from the parties on the issues of permanent alimony,
equitable distribution, and attorney’s fees on 26 and 27 January
2012, and 21 May 2012.1
The trial court entered an order resolving all three issues
on 6 May 2013. The trial court distributed the parties’ marital
estate unequally, distributing approximately $22,785 of property
to plaintiff and $18,453 to defendant.2 It found that “an
unequal division in favor of the Defendant is equitable in this
case.” The trial court also ordered defendant to pay plaintiff
1
The hearing was not transcribed, but the parties have provided
a narration of the proceedings in the record.
2
The trial court sent a letter to the attorneys informing them
how he intended to resolve the case and asking plaintiff’s
attorney to prepare an order. He attached what appears to be
the spreadsheet he used to distribute the marital property. The
order itself refers to “Schedule A” as the distribution of
property, but that document was not attached to the order. There
is no dispute that the spreadsheet attached to the letter is how
the trial court actually intended to distribute the property
-3-
$800 per month in alimony until the parties’ daughters no longer
attended private school, at which time the amount of alimony
would be increased by the cost of the private school tuition.3
Finally, the trial court found that plaintiff was entitled to
attorney’s fees and ordered defendant to pay $2,000 of the
$3,100 billed by plaintiff’s attorney, which included charges
for paralegal services. Defendant filed notice of appeal to this
Court on 5 June 2013.
II. Equitable Distribution
Defendant first argues that the trial court erred in
valuing plaintiff’s wedding ring and in ordering an unequal
distribution of marital assets. We affirm the trial court’s
valuation of the ring, but remand the equitable distribution
portion of the order to allow the trial court to make adequate
findings to support its conclusion.
A. Standard of Review
The standard of review on appeal from a
judgment entered after a non-jury trial is
whether 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. The
trial court’s findings of fact are binding
on appeal as long as competent evidence
3
The consent order regarding child support required defendant to
pay for the children’s private school tuition. This order is
not a subject of this appeal.
-4-
supports them, despite the existence of
evidence to the contrary. The trial court’s
findings need only be supported by
substantial evidence to be binding on
appeal. We have defined substantial evidence
as such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion. As to the actual distribution
ordered by the trial court, when reviewing
an equitable distribution order, the
standard of review is limited to a
determination of whether there was a clear
abuse of discretion. A trial court may be
reversed for abuse of discretion only upon a
showing that its actions are manifestly
unsupported by reason.
Stovall v. Stovall, 205 N.C. App. 405, 407-08, 698 S.E.2d 680,
683 (2010) (citations, quotation marks, and brackets omitted).
B. Valuation of Wedding Ring
Defendant first challenges the trial court’s valuation of
plaintiff’s wedding ring at $5,000. He asserts that it was
actually worth $10,000 because he paid $10,000 for it in or
about 1992; he presented no evidence of the ring’s value as of
the date of separation. Plaintiff testified at the hearing that
she believed the ring to be worth $5,000. There was no contrary
evidence of the value of the ring as of the date of valuation
and defendant has not argued that this evidence was incompetent.
Therefore, we conclude that the evidence supports the trial
court’s valuation of the ring. See id. at 407, 698 S.E.2d at
683.
-5-
C. Unequal distribution
Defendant next argues that the trial court erred in
awarding unequal distribution of the marital estate, valued at
$41,238.97. The trial court distributed $22,785.35 to plaintiff
and $18,453.62 to defendant. The trial court found that
The Court has considered all factors for
unequal distribution outlined in N.C.G.S. §
50-20(c) for both parties and the Court has
determined that an unequal distribution in
favor of the plaintiff is equitable based
upon the length of marriage, need to
Plaintiff to maintain household furnishings
for cihldren’s [sic] use and that Plaintiff
is not in a financial position to make any
distributive payment to Defendant.
The trial court reiterated this finding in its “Conclusions of
Law,” stating that
[i]n considering whether or not to make an
equal distribution of the marital estate the
Court considered all factors under N.C.G.S.
§ 50-20(c) specifically considered the
length of the parties’ marriage, the
inability of the Plaintiff to make a
distributional payment to the Defendant and
the need for the Defendant, custodian of the
minor children to have and use the household
effects.
It again concluded that “an unequal division in favor of the
Defendant is equitable in this case.”
First, we note that it appears that the trial court
misstated the party in whose favor an unequal distribution would
-6-
be equitable—it found that an unequal distribution in favor of
defendant would be equitable, but distributed more of the
marital estate to plaintiff. Second, the trial court’s finding
that an unequal division is equitable is insufficient to support
its decision to distribute the marital property unequally. This
Court observed in Lucas v. Lucas that the distinction between a
finding like the one made here and the required finding that an
equal distribution is not equitable is not one of “semantics.”
209 N.C. App. 492, 503, 706 S.E.2d 270, 278 (2011). We held that
in order to divide a marital estate other
than equally, the trial court must first
find that an equal division is not equitable
and explain why. Then, the trial court must
decide what is equitable based on the
factors set out in N.C. Gen. Stat. § 50–
20(c)(1)–(12) after balancing the evidence
in light of the policy favoring equal
division.
Id. at 504, 706 S.E.2d at 278.
Thus, although the evidence supports the trial court’s
findings, and the court clearly considered the relevant factors,
under Lucas, the trial court’s current findings are inadequate
to support its decision to distribute the marital estate
unequally. We therefore must remand for entry of an order with
appropriate findings on these issues. Our decision does not
require the trial court to distribute the marital estate
-7-
equally, only to make the findings necessary under Lucas to
support its order. Additionally, though there is no dispute as
to how the trial court actually distributed the marital estate,
it appears that the trial court may have forgotten to attach
“Schedule A” to its order, wherein it listed in detail the
distribution of the marital assets. On remand, the trial court
should also correct this omission.
III. Alimony
Defendant also argues that the trial court erred in
awarding plaintiff permanent alimony. He does not challenge the
trial court’s finding that plaintiff is entitled to alimony. He
argues that the amount and length of the alimony awarded was not
supported by the trial court’s findings and that the trial court
blurred the distinction between child support and alimony. We
disagree and affirm the trial court’s order awarding alimony.
A. Standard of Review
As our statutes outline, alimony is
comprised of two separate inquiries. First
is a determination of whether a spouse is
entitled to alimony. Entitlement to alimony
requires that one spouse be a dependent
spouse and the other be a supporting spouse.
If one is entitled to alimony, the second
determination is the amount of alimony to be
awarded. N.C. Gen. Stat. § 50–16.3A (b). We
review the first inquiry de novo, and the
second under an abuse of discretion
standard.
-8-
Romulus v. Romulus, 215 N.C. App. 495, 520-21, 715 S.E.2d 308,
324-25 (2011) (citations, quotation marks, and brackets
omitted).
B. Reasonableness of Expenses
Defendant first argues that not all of plaintiff’s expenses
were reasonable. He only argues that the $200 per month that
plaintiff donates to her church is unreasonable. He cites no law
in support of his claim. “[T]he determination of what
constitutes the reasonable needs and expenses of a party in an
alimony action is within the discretion of the trial court.”
Parsons v. Parsons, ___ N.C. App. ___, ___, 752 S.E.2d 530, 533
(2013) (citation and quotation marks omitted). This argument is
without merit.
C. Evidence of Marital Misconduct
Next, defendant contends that the trial court’s findings on
indignities and marital misconduct were unsupported by the
evidence. The trial court found that
16. Phone records introduced by Plaintiff
showed that numerous phone calls and text
messages between Defendant and a female co-
worker were made from and received by
Defendant’s phone on weekends, and after
working hours, some very late at night and
exceeding one hour.
-9-
17. Defendant was not able to provide any
reasonable business explanation of the
numerous communications with the female co-
worker and his own testimony indicated that
at a minimum he had developed an
inappropriate emotional relationship with
her.
18. Plaintiff testified that Defendant left
the house at night, providing explanations
that were not reasonable under the
circumstances, and that Plaintiff found male
enhancement pills and K-Y spray in the
pockets of Defendant’s jacket, for which he
had no reasonable explanation. Said conduct
indirectly and collectively amounted to a
series of indignities which rendered
Plaintiff’s condition intolerable and life
burdensome.
Each one of these findings was supported by evidence at the
hearing. The only remaining question is whether this conduct
constitutes indignities.
There is no hard and fast rule as to what
constitutes indignities. Rather, the courts
make this determination based on the facts
and circumstances of each case. The
fundamental characteristic of indignities is
that it must consist of a course of conduct
or continued treatment which renders the
condition of the injured party intolerable
and life burdensome. The indignities must be
repeated and persisted in over a period of
time.
Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 129-30, 555 S.E.2d
326, 328 (2001) (citations, quotation marks, and emphasis
omitted).
-10-
In Evans v. Evans, we affirmed a finding of indignities
where, inter alia, the wife kept condoms in her purse despite
the fact that the parties were no longer engaging in sexual
relations and where the wife had engaged in sexually explicit e-
mails with a Chapel Hill physician. 169 N.C. App. 358, 364, 610
S.E.2d 264, 269 (2005). Additionally, the wife in Evans took
three trips, each three or four nights, without telling her
husband where she was going. Id.Here, the trial court found that defendant had an
inappropriately close relationship with a female co-worker over
a period of time prior to separation, repeatedly left the house
at night without explanation, and was caught with sexual items
for which he did not have an adequate explanation. We conclude
that the trial court did not err in finding that defendant’s
conduct here constituted indignities.
D. Reallocation of child support to alimony
Defendant next contends that the trial court blurred the
distinction between child support and alimony by providing that
when the minor children no longer attend private school,
defendant will have to increase the alimony payment by the
equivalent amount. Defendant does not argue that the trial
court’s findings on plaintiff’s income and expenses were
-11-
unsupported by the evidence or that she has not demonstrated a
need for alimony. This provision does not blur the distinction
between child support and alimony, but simply recognizes that
when defendant no longer has to pay over $750 per month in
private school tuition, his ability to pay alimony changes. In
addition, plaintiff’s need for alimony exceeds defendant’s
current ability to pay, as he is also paying child support and
tuition. Consideration of these facts is appropriate. See
Robinson v. Robinson, 210 N.C. App. 319, 328, 707 S.E.2d 785,
792 (2011) (noting that “a critical issue is the supporting
spouse’s actual ability to make alimony payments.”). Therefore,
this argument is meritless.
E. Amount and duration of alimony
Finally, defendant contends that the trial court failed to
set forth the reasons for the amount and duration of alimony.
This argument is premised on an assertion that is simply untrue.
The trial court specifically made findings on the parties’
income and expenses, the length of their marriage, defendant’s
marital misconduct, and the fact that defendant has had a
successful career as a bank executive. Meanwhile, “[p]laintiff
has worked when she had the opportunity, but has devoted most of
her married life to raising the party’s children, taking care of
-12-
the marital home and assisting Defendant in the advancement of
his career including multiple interstate moves with Defendant
for said purpose.” All of these findings explain the trial
court’s decision to award $800 per month in permanent alimony.
Defendant has failed to show any abuse of discretion.
IV. Attorney’s Fees
Defendant argues that the trial court erred in including
the time billed by the paralegal employed by plaintiff’s
attorney in awarding attorney’s fees. We disagree.
“A trial judge, acting within his discretion, may consider
and include in the sum he awards as attorney[’]s fees the
services expended by paralegals and secretaries acting as
paralegals if, in his opinion, it is reasonable to do so.” Lea
Co. v. North Carolina Bd. of Transp., 323 N.C. 691, 695, 374
S.E.2d 868, 871 (1989). The trial court here determined it was
reasonable to include the services of the paralegal in the cost
of attorney’s fees. It did not abuse its discretion in doing so.4
Defendant next argues that the trial court “failed to find
the required relationship between customary fees and those
requested.” He does not challenge the trial court’s
4
We also note that as the hourly charges for a paralegal are
less than for the attorney, use of paralegal services actually
is more economical for the client or for the opposing party who
may ultimately be ordered to pay these costs.
-13-
determination that defendant is entitled to attorney’s fees for
her alimony claims under N.C. Gen. Stat. § 50-16.4 (2011). The
trial court found that plaintiff had incurred attorney’s fees in
the amount of $3,100.24 in relation to her alimony claim. It
further found that “[i]t is the Plaintiff’s attorney’s opinion
that the reasonable value of the services, up to and including
the date of this Order for prosecution of the alimony claim is
$3,100.24.” This finding is insufficient as currently written.
It is for the trial court, not plaintiff’s attorney, to decide
the reasonableness of the fees and the trial court must make a
specific finding that the attorney’s fees were reasonable “in
comparison with that of other lawyers.” Coleman v. Coleman, 74
N.C. App. 494, 499, 328 S.E.2d 871, 874 (1985) (citation and
quotation marks omitted). Reciting testimony or the opinion of
a witness cannot substitute for a finding of fact. In re H.J.A.,
___ N.C. App. ___, ___, 735 S.E.2d 359, 363 (2012). Thus, we
must remand for the trial court to make adequate findings of
fact in this regard.
V. Conclusion
For the foregoing reasons, we remand the trial court’s
order to make adequate findings as to equitable distribution and
-14-
attorney’s fees. We affirm the portion of the trial court’s
order awarding alimony.
AFFIRMED, in part; REMANDED, in part.
Judges CALABRIA and DAVIS concur.
Report per Rule 30(e).