Clark v. Clark , 301 N.C. 123 ( 1980 )

271 S.E.2d 58 (1980) 301 N.C. 123

Loran S. CLARK
v.
Margaret J. CLARK.

No. 83.

Supreme Court of North Carolina.

October 7, 1980.

Maxwell, Freeman, Beason & Lambe, P.A. by James B. Maxwell, Durham, for plaintiff-appellee.

Haywood, Denny & Miller by Egbert L. Haywood, David M. Lomas and George W. Miller, Durham, for defendant-appellant.

BRITT, Justice.

Defendant first contends that the trial court abused its discretion in the award of permanent alimony in the amount of $1,500 per month on the grounds that it failed to consider the income tax consequences of the award; that it applied an incorrect standard in evaluating her expenses in light of her accustomed standard of living; and that it failed to make provision for the disposition of the parties' homeplace. We agree with the Court of Appeals that there was no abuse of discretion on these points.

While defendant has presented three arguments with respect to this contention, the starting point of our discussion as to each must be that which is provided by G.S. § 50-16.5(a) which dictates: "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." In applying the statute to particular factual situations, our cases have consistently embodied the rule that while the factors which are delineated in the statute must be considered by the judge in determining the amount of alimony to be awarded in a given case, his determination of the proper amount may not be disturbed on appeal absent a clear showing of abuse of discretion. E. g., Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975); Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966). By the exercise of his discretion, a judge ought not to arrogate unto himself arbitrary power to be used in such a manner so as to gratify his personal passions or partialities. Hensley v. McDowell Furniture Co., 164 N.C. 148, 80 S.E. 154 (1913). Discretion is properly applied in those instances where, upon deliberation and with firmness, a judge deems its use necessary to the proper execution of justice. See Jarrett v. High Point Trunk & Bag Co., 142 N.C. 466, 55 S.E. 338 (1906). A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason. See Martin v. Martin, 263 N.C. 86, 138 S.E.2d 801 (1964). It is with these principles in mind that we now turn our attention to a consideration of defendant's challenge to the award of permanent alimony which was made by Judge Pearson.

Defendant initially argues that the trial court erred by applying an incorrect standard in formulating its award of permanent alimony. We disagree.

Prior to their separation on 6 December 1976, plaintiff and defendant had established and maintained a high standard of living. The couple lived in a house in an exclusive section of Durham whose cost at the time of its purchase in 1974 was $75,000.00. Throughout their marriage, the parties had traveled extensively, including trips to Canada, the Caribbean Sea and Europe, as well as a trip around the world. The couple ate and dressed well. Except for the time they lived in Puerto Rico while plaintiff manufactured golf gloves, the parties maintained a membership in the Hope Valley Country Club in Durham. Throughout their marriage, the couple worked to accumulate numerous items of personal property, including antiques, porcelain and silverware. The couple consistently enjoyed this lifestyle throughout the course of their marriage.

Defendant worked outside of the home only for a short while early in the marriage and thereafter supported her husband in his business endeavors in other ways. Upon defendant's withdrawal from the work force, the parties looked to the income of plaintiff to maintain them in the style to which they had become accustomed. The record does not reflect plaintiff's income throughout the course of the marriage. However, it does indicate rather substantial growth in his income in the latter years of the parties' marital relationship. Plaintiff's taxable income in the years 1969 through 1973 fluctuated between a high of $33,986.69 in 1972 and a low of $10,594.42 in 1970. It was during this period that plaintiff worked with the trustee in bankruptcy to put the Hilton Inn on a sound financial footing. Plaintiff's association with Landmark Inns of Durham, Inc., commenced in 1974. His income thereupon grew from $52,000 in 1974 to $72,000 in 1976, the last year that the parties lived together as husband and wife. Other sources of income brought plaintiff's income for 1976 to a total of $95,756.17.

At the hearing held for the purpose of determining the amount of permanent alimony which was to be awarded, the trial court heard evidence not only of the income and lifestyle of the parties but also of their respective separate estates. Based upon this evidence, the trial court found as a fact that plaintiff's net worth in 1975 was approximately $650,000.00. His separate estate included several parcels of real estate, as well as two-third's ownership of Landmark Inns of Durham, Inc. By March 1978, plaintiff had built a savings account up to a balance of $75,000.00. Defendant's net worth consisted of stock, bonds, savings accounts, and a one-half interest in the Wilshire Drive property. Taken together, these items gave defendant assets amounting to $87,000.00.

The trial judge was presented with an annual budget which projected expenses for defendant in the amount of $23,200.57. In his order, Judge Pearson concluded that "... the Court does not feel that all of the items on the budget submitted by the wife, Margaret J. Clark, on her Exhibit 1, are needed or necessary items."^[1] While we do not consider it proper for us to speculate as to the items which Judge Pearson had in mind in making this observation, an examination of the proposed budget in light of other evidence which was adduced at the hearing refutes defendant's contention that the order manifests an abuse of discretion.

While the amount of permanent alimony that is to be awarded is basically a question of fairness and justice to all concerned parties, Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Sayland v. Sayland, supra, the precise amount of the award in a given case is subject to the principle that the wife of a wealthy man should be awarded an amount commensurate with the normal standard of living of a man of like financial resources. Schloss v. Schloss, supra. Before this court, defendant characterized the use of the term "needed or necessary" as an abuse of discretion manifesting an application of an improper standard. We disagree.

Viewed within the context of the findings of fact concerning the parties' accustomed standard of living, the court's use of the phrase is not inconsistent with the standard enunciated by Schloss v. Schloss, supra. It is manifest that the court considered what expenses were necessary to maintain the standard of living of a woman who was married to a man of substantial means, rather than in terms of what was necessary to maintain bare subsistence. There is no rule of law which would serve to require a trial judge to accept without question a party's assertion of what would constitute an award of alimony which was adequate to maintain a particular standard of living. See Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).^[2] To so require would be to make a mockery of the standard which defendant properly asserts as controlling in the present case. Indeed, it is incumbent upon the court, in making a determination of the award of alimony, to weigh the evidence so as to make an independent determination of the proper amount.

Furthermore, we note that with the entry of judgment in the present case awarding defendant permanent alimony, she was no longer saddled with certain obligations imposed on her by the order granting her alimony pendente lite. That order imposed upon her the obligation of bearing the burdens normally incident to home ownership in regard to the Wilshire Drive property. The budget which defendant submitted to Judge Pearson called for the expenditure of approximately $8,000 in discharge of the mortgage payments and the maintenance of the house in an adequate state of repair, as well as the payment of property taxes and insurance premiums.

As a general rule, the award of permanent alimony terminates an order of alimony pendente lite. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972). The order of temporary alimony had granted defendant the sum of $1,400 per month, $100 per month less than the amount awarded as permanent alimony by Judge Pearson. Yet, with the smaller sum which was available to her, defendant met the obligations of home ownership as well as increased the balance in her savings account by approximately $9,000.00. Therefore, upon the record which is before us, we are unable to agree with defendant that the trial court applied the wrong standard in determining the amount of her alimony award.

Similarly, we do not find that the trial judge committed error in failing to consider the income tax consequences of the award of permanent alimony.

Periodic payments received by a wife, which constitute a discharge of a legal obligation which the husband has to provide in the way of alimony by virtue of a court decree entered after March 1, 1954, are taxable to the wife and deductible by the husband. I.R.C. § 71 (1954). While it is true that the express language of G.S. § 50-16.5(a) does not include the income tax consequences of an award of alimony as a factor to be weighed in the balance in determining the proper amount of the award, we are of the opinion that such would be a proper consideration in making that determination. While the award to defendant amounts to $18,000 annually, the sum of money which is available to her for the maintenance of her standard of living will be considerably less than that because the payments which she receives under the decree entered by Judge Pearson are taxable to her.

The statute is clearly broad enough to authorize the courts to consider the tax aspects of an award of permanent alimony by providing that "[A]limony shall be in such amount as the circumstances render necessary, having due regard to the estates, ... and other facts of the particular case." G.S. § 50-16.5(a) (1976). To ignore the income tax consequences of an award of permanent alimony would be an unreasonable application of the mandate of the statute, as well as a violation of the principle laid down by Beall v. Beall, supra, and Sayland v. Sayland, supra, that the amount of alimony that is to be awarded is basically a question of fairness and justice to all parties. We do not mean to suggest that tax consequences are in any way preeminent in the determination of the amount of the award. Nor do we mean to suggest that a trial court must compute the amount of the award in such a manner as to result in the least amount of tax liability for either the supporting spouse or the dependent spouse. We simply hold that the tax consequence of an award of alimony is but one consideration among several that are properly weighed by a trial court in determining the amount of the award. It is clear that to disregard the effect of taxation on such an award would be to flirt with an unrealistic, and potentially unjust, result. The great weight of authority in other jurisdictions supports our position. E. g., Wetzel v. Wetzel, 35 Wis.2d 103, 150 N.W.2d 482 (1967); see generally Annot., 51 A.L.R.3d 461 (1973).

While it is true that the trial court made no specific finding of fact concerning the income tax implications of the award, we conclude that our holding as to this argument does not require reversal. Defendant offered evidence of her potential income tax liability at trial. The record does not indicate, nor has defendant demonstrated on appeal, that this liability was not one of the factors taken into consideration in the determination of the amount of alimony to which defendant was entitled. The facts which Judge Pearson did find support his conclusions of law and the judgment entered insofar as the award of alimony is concerned. That there was no specific finding concerning the tax consequences of the award does not amount to reversible error under these circumstances.

Nor do we agree with defendant's contention that the trial court erred in failing to make adequate provisions in its judgment with respect to the status of the parties' homeplace in Durham. In his order, Judge Pearson expressly stated

That no division or writ of possession as to the homeplace of the parties located at 1918 Wilshire Drive in Durham, North Carolina should be made by this court.

The order granting defendant alimony pendente lite also granted her possession of the property located at 1918 Wilshire Drive in Durham. That order also imposed upon her the obligations of home ownership in regard to that property. As we have noted earlier, the order granting defendant permanent alimony superseded the prior order. See Rickert v. Rickert, supra. Defendant was no longer obligated by court order to make payments on and maintain the homeplace. Any such obligation which remains is now grounded in considerations of contract and ownership which are peripheral to this litigation. While a trial court has the authority to order payment of alimony by possession of real property, G.S. § 50-16.7(a) (1976), as well as the power to issue a writ of possession when necessary, G.S. § 50-17 (1976), the pertinent statutory provisions do not require it to do so.^[3] We agree with the decision of the Court of Appeals in this respect.^[4]

By her second assignment of error, defendant contends that the trial court erred by excluding from evidence defendant's Exhibit 14. The exhibit is a handwritten statement by plaintiff in which he estimated the value of his controlling interest in Landmark Inns of Durham, Inc., to be $202,000 as of 1976. The document went on to forecast the value of the stock to increase annually by the sum of $100,000 after May 1976. We agree with the Court of Appeals that there was no error.

The value of property within a reasonable time before or after the commencement of an action seeking an award of permanent alimony is a proper subject of inquiry for a trial court which is hearing such a case. Otherwise, an accurate assessment of the value of the parties' separate estates and, therefore, a fair determination of ability to provide and need to receive such an award would be difficult, if not completely impossible. In the present case, defendant sought to introduce a valuation of stock in a corporation which had been prepared by plaintiff. Such a valuation of personal property may be admitted as an admission. See Daniels v. Fowler, 123 N.C. 35, 31 S.E. 598 (1898); compare Everett v. Gainer, 269 N.C. 528, 153 S.E.2d 90 (1967) (lack or amount of internal revenue stamps on a deed is evidence of consideration paid). However, a valuation that extends into the remote future is incompetent. Tennessee Carolina Transportation Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973). The exhibit in question was prepared some time prior to May 1976 and extends indefinitely into the future. Furthermore, no basis for that valuation is established in the record which is before us. See Harrelson v. Gooden, 229 N.C. 654, 50 S.E.2d 901 (1948); Nantahala Power & Light Co. v. Rogers, 207 N.C. 751, 178 S.E. 575 (1935).

By her third assignment of error, defendant contends that the trial court abused its discretion in awarding defendant only $500 in counsel fees. This assignment has merit and we hold that the Court of Appeals erred in overruling it.

In order to receive an award of counsel fees in an alimony case, it must be determined that the spouse is entitled to the relief demanded; that the spouse is a dependent spouse; and that the dependent spouse is without sufficient means whereon to subsist during the prosecution of the suit, and defray the necessary expenses thereof. Rickert v. Rickert, supra; see generally, Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980). Whether these requirements have been met is a question of law that is reviewable on appeal, and if counsel fees are properly awarded, the amount of the award rests within the sound discretion of the trial judge and is reviewable on appeal only for an abuse of discretion. Hudson v. Hudson, supra; Rickert v. Rickert, supra. The guiding principle behind the allowance of counsel fees is to enable the dependent spouse, as litigant, to meet the supporting spouse, as litigant, on substantially even terms by making it possible for the dependent spouse to employ adequate and suitable legal representation. Hudson v. Hudson, supra; Williams v. Williams, supra; Rickert v. Rickert, supra; Schloss v. Schloss, supra.

In making its determination of the proper amount of counsel fees which are to be awarded a dependent spouse as litigant, the trial court ought not to cease its inquiry with a determination of the separate estates of the parties which are available to defray the costs of litigation. See Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967). The trial court is under an obligation to conduct a broad inquiry in this regard, considering as relevant factors the nature and worth of the services rendered, the magnitude of the task imposed upon counsel, and reasonable consideration for the parties' respective conditions and financial circumstances. Stanback v. Stanback, supra; Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949). On appeal, the question posed is not whether the award was larger or smaller than expected, or whether it was of the customary amount. Instead, the issue becomes whether, upon consideration of all the circumstances under which it was made, it was so unreasonable as to constitute an abuse of discretion. Stanback v. Stanback, supra; Stadiem v. Stadiem, supra.

In the present case, the disparity of financial resources which are available to the parties to defray the expenses of litigation is apparent. The record reflects that plaintiff's net worth in 1975 was approximately $650,000.00. By 1978, plaintiff had built a savings account whose balance of $75,000 approached the value of defendant's entire separate estate of $87,000.00. To award only $500 in counsel fees to defendant in light of this substantial difference in worth manifests an abuse of discretion. While defendant is an individual of some means by contemporary standards, the law does not impose upon her the obligation to deplete her separate estate to meet the financial burdens imposed by this litigation. Cf., Williams v. Williams, 299 N.C. at 183-84, 261 S.E.2d at 856. (A spouse who has a substantial separate estate is not prevented from being found to be actually, substantially dependent upon the supporting spouse where the depletion of the separate estate could maintain the accustomed standard of living.)

We think that the rationale behind our decision in Williams v. Williams, supra, on the question of alimony is appropriately applied to the question of counsel fees. It is true that in Williams we disallowed counsel fees, but in that case the separate estate of the dependent spouse was almost equal to that of the supporting spouse. It would be contrary to what we perceive to be the intent of the legislature to require a dependent spouse to meet the expenses of litigation through the unreasonable depletion of her separate estate where her separate estate is considerably smaller than that of the supporting spouse as is the case here. Furthermore, it flies in the face of common sense and fair play to so require. While in the abstract, it would seem that defendant has ample resources with which to do battle in the courts, close analysis suggests that such is the case only through unreasonable depletion of her relatively small resources.

We observe that this litigation has been underway since 1977. While the record suggests that there was extensive discovery and other activity conducted in the course of the litigation, there is no suggestion that the trial court considered the nature and worth of the services rendered by defense counsel or the magnitude of the task imposed upon them. Accordingly, on the question of counsel fees, we reverse the decision of the Court of Appeals, we vacate the award of counsel fees and remand the case to the Court of Appeals for remand to the district court for further proceedings not inconsistent with this opinion.

Affirmed in part.

Reversed in part and remanded.

BROCK, J., took no part in the consideration or determination of this case.

NOTES

[1] In seeking an award of alimony pendente lite, defendant submitted annual estimated expenses to the court amounting to $23,500.00. In his order granting defendant alimony pendente lite in the amount of $1,400 monthly, Judge Moore observed that "[T]he Court considers the $23,500.00 as a somewhat liberal expense account and that some of the expenses may not be economically calculated in determining pure subsistence."

[2] Speaking for the court in Williams v. Williams, Justice Carlton observed that

... the trial court must then determine whether the spouse seeking alimony has a demonstrated need for financial contribution from the other spouse in order to maintain the standard of living of the spouse seeking alimony in the manner to which the spouse became accustomed during the last several years prior to separation. This would entail considering what reasonable expenses the party seeking alimony has, bearing in mind the family unit's accustomed standard of living.

299 N.C. at 183, 261 S.E.2d at 856.

[3] While Judge Pearson could have awarded the homeplace to defendant as part of the award, defendant cannot assert that she had an automatic right to possession of the house or that such possession was an inherent aspect of her standard of living.

[4] We specifically reject plaintiff's contention that defendant's argument ought to be rejected out of hand because she did not specifically ask for the award of possession in her counterclaim. Clearly, her prayer "[F]or such other and further relief as the defendant may be entitled and which the court deems just and proper" is broad enough to include such an award. See State Highway Com'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967).