Roberts v. Roberts , 38 N.C. App. 295 ( 1978 )

248 S.E.2d 85 (1978) 38 N.C. App. 295

Mary W. ROBERTS
v.
Carlton N. ROBERTS.

No. 7718DC965.

Court of Appeals of North Carolina.

October 17, 1978.

Jordan, Wright, Nichols, Caffrey & Hill by William W. Jordan, Greensboro, for plaintiff-appellee.

James B. Rivenbark and John W. Kirkman, Jr., Greensboro, for defendant-appellant.

MORRIS, Judge.

Defendant first argues that the consent order entered 13 October 1975, compelling defendant to make alimony payments to the plaintiff, was superseded and the rights to alimony pendente lite terminated by the 8 March 1976 decree granting defendant absolute divorce from the plaintiff. The plaintiff argues, and the district court found, that the 13 October 1975 order was for permanent alimony and was, therefore, not superseded by the subsequent decree of absolute divorce.

If the 13 October 1975 consent judgment was one for permanent alimony, the right to receive alimony payments would not be terminated by the decree of absolute divorce. G.S. 50-11(c). However, if that judgment is merely for alimony pendente lite, the right of plaintiff to receive alimony payments terminated upon entry of the decree of absolute divorce. Smith v. Smith, 12 N.C.App. 378, 183 S.E.2d 283 (1971). We must, therefore, determine whether the consent judgment of 13 October 1975 ordered alimony pendente lite or permanent alimony.

"A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties." Bland v. Bland, 21 N.C.App. 192, 195, 203 S.E.2d 639, 641 (1974). This Court is not bound by the "four corners" of a consent judgment, but the judgment should be interpreted in light of the surrounding controversy and purposes intended to be accomplished by it. Price v. Horn, 30 N.C.App. 10, 226 S.E.2d 165 (1976), cert. denied, 290 N.C. 663, 228 S.E.2d 450 (1976).

The consent order entered into on 13 October 1975 provided, on the question of alimony, as follows:

"(2) That the defendant shall pay alimony to the plaintiff in the amount of $100.00 monthly until the plaintiff remarries or dies, whichever event occurs first." (Emphasis added.)

The amended order consented to by defendant provided:

"(2) That the Defendant shall pay alimony to the Plaintiff in the amount of $100.00 monthly until the Plaintiff remarries or dies, whichever event first occurs; that $50.00 shall be due and payable on the 15th day of each month, and the remaining $50.00 shall be due on the 30th day of each month. . . ." (Emphasis added.)

The language of the original order and amended order clearly comprehended the permanent nature of the order for alimony. Furthermore, if the language of the first order had not been intended by defendant, he had ample opportunity to correct the language before consenting to the amended order.

In addition to the actual language of the order, a subsequent motion by the plaintiff and reply by the defendant indicated that both parties understood that the 13 October 1975 order had provided for permanent alimony.

Plaintiff's motion sought ". . . a modification and increase in permanent alimony. . . ". This language clearly connotes plaintiff's understanding that, as a result of the prior consent order, she was receiving permanent alimony. Likewise, defendant's understanding that the consent order provided for permanent alimony is apparent from the following reply to plaintiff's motion:

"(1) That by order of this court dated October 13, 1975, the permanent alimony for the plaintiff was ordered and consented to by the parties, and this matter is not now subject to the court's review." (Emphasis added.)^[*]

It is clear defendant's assertion that plaintiff's right to alimony was terminated by the decree of absolute divorce must be rejected.

Defendant argues that the district court erred in its finding that plaintiff was, at the time of the hearing, a "dependent spouse" entitled to alimony. G.S. 50-16.1(3); G.S. 50-16.2. The 13 October 1975 consent order found defendant to be a dependent spouse. If defendant sought to change that designation, the burden was his to prove a material change in circumstances to justify a finding that plaintiff was no longer a dependent spouse. Gill v. Gill, 29 N.C.App. 20, 222 S.E.2d 754 (1976). Defendant not only failed to offer a motion to terminate alimony on the grounds plaintiff was no longer a dependent spouse, he produced no evidence to carry his burden of proof. This assignment of error is overruled.

The defendant's remaining contentions assert that the district court abused its discretion in ordering defendant to pay attorney's fees, increased child support, increased alimony, and lump sum payments to assist plaintiff in purchasing needed furniture and a suitable automobile for the benefit of the child.

In support of its award of attorney's fees, the trial court made a finding that plaintiff lacked the financial resources to pay her attorney and that her attorney devoted in excess of 20 hours to this action. When the court makes findings which are supported by competent evidence, the award of attorney's fees is binding on this Court in the absence of an abuse of discretion. Wyche v. Wyche, 29 N.C.App. 685, 225 S.E.2d 626 (1976), cert. denied, 290 N.C. 668, 228 S.E.2d 459 (1976). It suffices to say that, in view of the evidence as summarized above, the district court's award is supported by the evidence.

Defendant's final contention is that the plaintiff failed to show changed circumstances which would justify a modification of monthly alimony and child support payments and the two lump sum payments of child support. The determination of the amount of alimony is governed by the following statutory provision:

"§ 50-16.5. . . . (a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case."

The determination of child support payments is subject to the following guidelines:

"§ 50-13.4 . . . (c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case."

The statute directs that ". . . the court must consider not only the needs of the wife and children but the estate and earnings of both husband and wife." Beall v. Beall, 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976). Pursuant to a motion in the cause, the movant is entitled to increased alimony and child support upon a showing of sufficient changed circumstances. G.S. 50-13.7(a); G.S. 50-16.9(a); McDowell v. McDowell, 13 N.C.App. 643, 186 S.E.2d 621 (1972).

It is apparent from the facts in this case that plaintiff is no longer financially capable of providing, for herself and her child, an adequate standard of living. Plaintiff is unable to purchase suitable furnishings and appliances for the home and has insufficient funds to provide dependable, economic transportation for herself and her child. While plaintiff's assets have become depleted and inflation has outrun her modest salary increases, the defendant's financial ability to provide adequate support for his former wife and natural child has increased substantially. Based on these factors which are supported by the evidence, we cannot say the trial court abused its discretion. Absent such an abuse of discretion, a trial court's award of alimony and child support will not be disturbed on appeal. Gibson v. Gibson, 24 N.C.App. 520, 211 S.E.2d 522 (1975).

For the foregoing reasons, the judgment of the district court is

Affirmed.

HEDRICK and WEBB, JJ., concur.

NOTES

[*] Of course, defendant's reply asserting that the alimony payments are not subject to review is incorrect. "The word ``permanent', as a prefix to the word ``alimony,' does not mean that it is permanent in any absolute sense. It is merely permanent as distinguished from alimony pendente lite or temporary alimony . . . A court may vacate or modify its prior award of either permanent or temporary alimony upon a showing of changed circumstances." 2 Lee, N.C.Family Law, § 135, p. 38 (1976 Cum.Supp.) (3d Ed. 1963); G.S. 50-16.9(a); Seaborn v. Seaborn, 32 N.C.App. 556, 233 S.E.2d 67 (1977).