IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-113
Filed: 16 August 2016
Mecklenburg County, No. 10CVD20451 (JPC)
TAMMY BURGER, Plaintiff-Appellant,
v.
JEFFERY C. BURGER, Defendant-Appellee.
Appeal by plaintiff from Order entered 12 August 2015 by Judge Jena P. Culler
in Mecklenburg County District Court. Heard in the Court of Appeals 8 June 2016.
CHURCH WATSON LAW, PLLC, by Kary C. Watson, for plaintiff-appellant.
The Law Office of Stephen Corby, PLLC, by Stephen M. Corby, for defendant-
appellee.
ELMORE, Judge.
Tammy Burger (Wife) appeals from the trial court’s order entered 12 August
2015 on the issues of equitable distribution, child support, and alimony. We affirm
in part and reverse and remand in part.
I. Background
Jeffery C. Burger (Husband) and Wife were married on 3 October 1987,
separated on 30 December 2009, and divorced on 16 December 2011. They have two
children, born in 1997 and 2001. On 30 September 2010, Wife filed a complaint for
equitable distribution, alleging that she was entitled to an unequal distribution of the
BURGER V. BURGER
Opinion of the Court
marital and divisible property in her favor and an equitable distribution of the
marital and divisible debt. Husband filed an answer and counterclaims on 17
December 2010, seeking child custody, child support, post-separation support,
alimony, equitable distribution, and attorney’s fees. Husband alleged that he was a
dependent spouse within the meaning of N.C. Gen. Stat. § 50-16.1A(2) and that Wife
was a supporting spouse within the meaning of N.C. Gen. Stat. § 50-16.1A(5).
Following a number of continuances, the Honorable Jena P. Culler held a
bench trial from 11 February 2015 through 13 February 2015 on the issues of
equitable distribution, child support, and alimony. In the trial court’s 12 August 2015
Order, it found the following pertinent facts:
48. The Court has considered the financial needs of the
parties, the accustomed standard of living of the parties
prior to their separation, the present employment income
and other recurring earnings of each party from any source,
the income earning abilities of the parties, the separate
and marital debt service obligation of the parties, those
expenses reasonably necessary to support each of the
parties, and each parties’ respective legal obligation to
support any other person.
....
51. The Court finds that Wife is employed by Wells Fargo,
and has a gross monthly income of $15,098.00 and a net
monthly income of $10,230.09.
....
55. The Court finds that Husband is unemployed and has
been unemployed for several years. Husband has no
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current monthly income. Husband has cancer of the eye
and has to regularly apply pressure to his eye with his
hand to relieve pain. While Husband is at a disadvantage
for employment prospects due to his condition, the Court
finds that he is capable of working and earning minimum
wage and that he has a naive indifference to his self
support. Therefore, the Court imputes a gross monthly
income of $1,247.00, which is based on minimum hourly
working forty (40) hours per week.
....
61. The Court finds that Husband is a dependent spouse as
that term is defined in N.C.G.S. § 50-16.1A(2), is actually
and substantially dependent upon Wife for his
maintenance and support, and is substantially in need of
maintenance and support from Wife. Husband’s resources
are inadequate to meet his needs, and Husband is entitled
to alimony.
62. The Court finds that Wife is a supporting spouse as that
term is defined in N.C.G.S. § 50-16.1A(5). Wife is an able-
bodied person who has the means and ability to provide
reasonable and adequate support to maintain Husband in
the standard of living to which Husband was accustomed
before the separation of the parties.
....
64. The Court finds that the appropriate alimony award is
$1,750.00 per month.
65. The Court finds that Wife has been consistently
employed with Wells Fargo (or its predecessor banks)
during all times for which this court is entering an award
of alimony and Wife has [the] ability to pay the alimony
award set forth herein.
66. [Husband] filed his claim for alimony in December 2010
and the Court finds it is appropriate to make this Order
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Opinion of the Court
effective January 1, 2011.
After concluding that an unequal distribution in favor of Husband would be
equitable, the trial court distributed the marital property, marital debt, and divisible
debt and ordered both parties to pay child support. Wife timely appeals.
II. Analysis
A. Income and Expenses
On appeal, Wife argues that the trial court erred in determining Husband’s
income, Husband’s expenses, and her income. Wife asserts that while the trial court
properly imputed income to Husband for purposes of alimony and child support,
Husband has an earning capacity greater than minimum wage and “the evidence at
trial support[ed] at a minimum, an imputation of $5,000 gross income per month.”
Wife also claims that the trial court should have imputed income to Husband based
on income he could receive from his mother’s trust, arguing that Husband incorrectly
thinks the trust is discretionary. Husband contends that the trial court properly
imputed only minimum wage income due to his lack of recent work history and his
medical condition.1
N.C. Gen. Stat. § 50-16.3A(b) (2015) provides, “The court shall exercise its
discretion in determining the amount, duration, and manner of payment of alimony.
The duration of the award may be for a specified or for an indefinite term. In
1Although Husband initially argues that the trial court erred in finding he was unemployed due to
bad faith, Husband did not file a notice of appeal in this case. N.C. R. App. P. 3 (2016).
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determining the amount, duration, and manner of payment of alimony, the court
shall consider all relevant factors . . . .”
Wife first argues that the trial court should have imputed gross monthly
income of $5,000 to Husband because he has an undergraduate, master’s, and law
degree, is capable of performing home repair, and in 2010, when Husband was still
employed by Strategic Legal Solutions, he listed on a credit card application that his
annual income was $60,000. Wife further argues that Husband voluntarily left his
employment at Strategic Legal Solutions shortly after the parties separated.
“ ‘Alimony is ordinarily determined by a party’s actual income, from all sources,
at the time of the order.’ ” Works v. Works, 217 N.C. App. 345, 347, 719 S.E.2d 218,
219 (2011) (citations omitted) (quoting Kowalick v. Kowalick, 129 N.C. App. 781, 787,
501 S.E.2d 671, 675 (1998)). Similarly, in general, “a party’s ability to pay child
support is determined by that party’s actual income at the time the award is made.”
McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d 828, 836 (2006) (citing Atwell
v. Atwell, 74 N.C. App. 231, 235, 328 S.E.2d 47, 50 (1985)). To base an alimony or
child support obligation on earning capacity rather than actual income, the trial court
must first find that the party has depressed her income in bad faith. Works, 217 N.C.
App. at 347, 719 S.E.2d at 219; McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836.
“[T]his showing may be met by a sufficient degree of indifference to the needs of a
parent’s children.” McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836.
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Here, the trial court found that Husband was unemployed at the time of the
hearing and had been unemployed for several years. Noting that he would be at a
disadvantage for employment prospects due to his health, the trial court nonetheless
found that Husband is capable of working and earning minimum wage. The court
further found that Husband has a naive indifference toward his self-support as well
as toward his duty of support for his children, and it imputed gross monthly income
of $1,247 based on working forty hours per week earning minimum wage.
While the record evidence shows that Husband is well-educated, it also shows
that he has no eyesight in one eye, “has cancer of the eye[,] and has to regularly apply
pressure to his eye with his hand to relieve pain.” The trial court found that Husband
“would have a difficult time finding a job given his presentation of himself[.]” Wife’s
only attempt to present evidence on Husband’s earning potential was based on a
credit card application that he had completed, and a job he had maintained, five years
prior. Moreover, regarding the trust, the trial court found that “there is no evidence
that Husband received any income from the discretionary trust during the marriage
or otherwise. While there is evidence that Husband could do more than just call and
try to acquire money from the trust, there is no evidence that he received any benefit
from the discretionary trust.” The trial court stated that it “consider[ed] the fact that
Husband did not take steps to further explore possibility of obtaining funds from the
trust.” Accordingly, the trial court did not abuse its discretion in imputing minimum
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wage income to Husband.
Wife also argues that the trial court’s calculation of Husband’s expenses is
unsupported by the evidence presented at trial, claiming that his expenses are
speculative and hypothetical.
“This Court has long recognized that ‘[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 judge, and he is not required to accept at face value the assertion
of living expenses offered by the litigants themselves.’ ” Nicks v. Nicks, ___ N.C. App.
___, ___, 774 S.E.2d 365, 376 (June 16, 2015) (COA14-848) (quoting Whedon v.
Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32 (1982)). “[T]he parties’ needs and
expenses for purposes of computing alimony should be measured in light of their
accustomed standard of living during the marriage.” Barrett v. Barrett, 140 N.C. App.
369, 372, 536 S.E.2d 642, 645 (2000).
Here, the trial court found that “Husband’s monthly-shared family reasonable
needs and expenses total $4,142.00 and Husband’s monthly individual reasonable
needs and expenses total $1,305.00. The specific findings as to these total expenses
are attached hereto and incorporated herein by reference as Exhibit 5.” Exhibit 5
details and confirms the total expenses listed above. Husband’s financial affidavit
filed 30 January 2015 supports the expenses contained in Exhibit 5 and the trial
court’s findings. While Wife argues that the expenses in the financial affidavit are
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“completely made up,” Wife’s “argument simply goes to the credibility and weight to
be given to the affidavit. [Wife] was free to attack [Husband’s] affidavit at trial by
cross-examination . . . . Such determinations of credibility are for the trial court, not
this Court.” Parsons v. Parsons, 231 N.C. App. 397, 400, 752 S.E.2d 530, 533 (2013)
(citation omitted). The trial court acted within its discretion in calculating Husband’s
total reasonable needs and expenses based on the record evidence.
Additionally, Wife argues that the trial court’s calculation of her income is
unsupported by the evidence. Wife claims that the trial court erred in adding her
bonus from 2014 to the gross monthly income amount that she submitted to the trial
court in her financial affidavit, which raised her gross monthly income from
$11,566.08 to $15,098.00. Wife relies on Williamson v. Williamson, 217 N.C. App.
388, 391, 719 S.E.2d 625, 627 (2011), in which this Court held that the trial court
improperly included the defendant’s tax refund as part of her regular income.
“A supporting spouse’s ability to pay an alimony award is generally determined
by the supporting spouse’s income at the time of the award.” Rhew v. Felton, 178
N.C. App. 475, 484–85, 631 S.E.2d 859, 866 (2006) (citation omitted). “[I]t is within
the trial court’s discretion to determine the weight and credibility that should be
given to all evidence that is presented during the trial.” Phelps v. Phelps, 337 N.C.
344, 357, 446 S.E.2d 17, 25 (1994).
Wife testified that she received a bonus in 2011, 2012, 2013, and 2014. In
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Wife’s November 2011 financial affidavit, she listed her gross monthly income as
$15,618.55, which included $3,524.33 under “Bonuses.” Wife also filed financial
affidavits in April 2012 and July 2012, in which she listed on both that her gross
monthly income was $15,218.50, which included $3,844.67 under “Bonuses.”
Wife filed a revised financial affidavit in January 2015, just prior to trial, in
which she listed that her gross monthly income was $11,566.08 and she left the
“Bonuses” section blank. Wife attached her last two pay stubs to the financial
affidavit, which covered the 14 December 2014 to 10 January 2015 pay periods. When
asked why she did not include her bonus in her gross monthly income, Wife testified,
“I don’t know until I get my bonus what it will be this year.”
The evidence established that Wife had consistently received bonuses for the
past four years. Wife based her most recent financial affidavit in part on her gross
monthly income from December 2014. Wife admitted that her 2014 bonus totaled
around $41,000. And in November 2014, when completing a loan application for a
new home, Wife listed her total gross monthly income as $15,097, which included
$3,478 under “Bonuses.”
Unlike in Williamson where there was no evidence that the tax refund
constituted regular income, 217 N.C. App. at 390–91, 719 S.E.2d at 627, here, the
trial court properly determined Wife’s income in accordance with the record evidence.
Based on the facts presented in this case, the trial court acted within its discretion in
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including Wife’s December 2014 bonus in her average gross monthly income.
As a related issue, Wife makes a blanket assertion that the trial court’s
findings of fact concerning the parties’ income and expenses are unsupported by the
evidence and, absent proper findings, the trial court’s conclusions of law relating to
the support obligations must also fail.
“The review of the trial court’s findings are limited to ‘whether there is
competent evidence to support the findings of fact and whether the findings support
the conclusions of law.’ ” Dodson v. Dodson, 190 N.C. App. 412, 415, 660 S.E.2d 93,
96 (2008) (quotation omitted). For the numerous reasons stated above, the trial
court’s findings regarding the parties’ income and expenses were supported by
competent evidence. Likewise, the trial court’s conclusions of law, based on those
findings, were proper.
B. Effective Date of Alimony Award
Wife next argues that the trial court erred in awarding Husband alimony
effective 1 January 2011, claiming that she should not have an alimony obligation for
the period of 1 January 2011 through 1 February 2015.
“Our Court reviews a trial court’s decision regarding the manner of payment
of an alimony award for abuse of discretion.” Rhew, 178 N.C. App. at 479–80, 631
S.E.2d at 863 (citing Whitesell v. Whitesell, 59 N.C. App. 552, 553, 297 S.E.2d 172,
173 (1982)).
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In Smallwood v. Smallwood, ___ N.C. App. ___, ___, 742 S.E.2d 814, 824 (May
21, 2013) (COA12-1229), the defendant, relying on our holding in Brannock v.
Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999), argued that N.C. Gen. Stat. §
50-16.3A did not permit the trial court to award alimony “retroactively.” This Court
rejected the defendant’s argument, stating that “while Brannock does discuss the
changes in North Carolina law regarding alimony, nothing in the opinion references
any intent by the General Assembly to eliminate retroactive alimony or to abrogate
our rulings in Austin2 and its progeny.” Smallwood, ___ N.C. App. at ___, 742 S.E.2d
at 824. Accordingly, we upheld the award. Id. at ___, 742 S.E.2d at 824.
Here, the trial court awarded Husband alimony in the amount of $1,750.00 per
month for ten years, effective 1 January 2011. Wife does not challenge the ten-year
duration of the payments but only argues that the trial court erred in making the
award retroactive to 1 January 2011. Wife’s argument, however, has already been
rejected by this Court. See id. at ___, 742 S.E.2d at 824. Accordingly, Wife cannot
establish that the trial court abused its discretion in making the alimony award
effective 1 January 2011.
Wife also argues that the trial court erred because it failed to make findings
about the parties’ income and expenses for the intervening years between 2011 and
2015. Alimony, however, “is ordinarily determined by a party’s actual income, from
2 Austin v. Austin, 12 N.C. App. 390, 393, 183 S.E.2d 428, 430 (1971).
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all sources, at the time of the order.” Kowalick, 129 N.C. App. at 787, 501 S.E.2d at
675. In the trial court’s findings of fact, it found that Wife’s current net monthly
income was $10,230.90 and her total monthly reasonable financial needs and
expenses were $8,240. Based on the evidence presented and consideration of the
statutory factors, the trial court awarded Husband $1,750 per month in alimony. The
trial court did not abuse its discretion in considering Wife’s current net monthly
income in determining the alimony award.
C. Equitable Distribution
Finally, Wife argues that the trial court erred in distributing Wife’s
Wachovia/Wells Fargo Savings Plan (the Plan) because the trial court failed to value
the divisible component of the Plan as of the date of distribution. Wife does not
otherwise contest the trial court’s distribution.
Our standard of review for alleged errors in a trial court’s
classification and valuation of divisible and marital
property is well-settled:
[w]hen the trial court sits without a jury, the standard of
review on appeal is whether there was competent evidence
to support the trial court’s findings of fact and whether its
conclusions of law were proper in light of such facts. While
findings of fact by the trial court in a non-jury case are
conclusive on appeal if there is evidence to support those
findings, conclusions of law are reviewable de novo. We
review the trial court’s distribution of property for an abuse
of discretion.
Nicks, ___ N.C. App. at ___, 774 S.E.2d at 380 (quoting Romulus v. Romulus, 215 N.C.
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App. 495, 498, 715 S.E.2d 308, 311 (2011)).
In making an equitable distribution of the marital assets, the trial court is
required to undertake a three-step process: “(1) to determine which property is
marital property, (2) to calculate the net value of the property, fair market value less
encumbrances, and (3) to distribute the property in an equitable manner.” Beightol
v. Beightol, 90 N.C. App. 58, 63, 367 S.E.2d 347, 350 (1988) (citation omitted). Under
our General Statutes, marital property is defined as “all real and personal property
acquired by either spouse or both spouses during the course of the marriage and
before the date of the separation of the parties, and presently owned . . . .” N.C. Gen.
Stat. § 50-20(b)(1) (2015). Divisible property includes “[p]assive income from marital
property received after the date of separation, including, but not limited to, interest
and dividends.” N.C. Gen. Stat. § 50-20(b)(4) (2015). “For purposes of equitable
distribution, marital property shall be valued as of the date of the separation of the
parties, and . . . [d]ivisible property and divisible debt shall be valued as of the date
of distribution.” N.C. Gen. Stat. § 50-21(b) (2015).
Here, the trial court found that the “ ‘Wachovia/Wells Fargo 401(k)’ listed on
the Final Pretrial Order is a duplicate entry of the ‘Wachovia/Wells Fargo Savings
Plan.’ ” The trial court did not issue any other findings regarding the Plan but listed
it as marital property and ordered the following:
Wife’s Wachovia/Wells Fargo Savings Plan shall be divided
equally between the parties as of the date of separation.
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Each party is hereby awarded fifty percent (50%) of the
balance of the said account as of the date of separation,
which was $498,672.00, together with all passive gains and
losses accruing on his or her respective share from the date
of separation through the date of the division of the said
account. . . .
On the Equitable Distribution Pretrial Order, both parties contended that the
Plan was marital property and the date of separation value was $498,672.13. Neither
party submitted a current value. Similarly, at trial, no testimony concerned the
current value of the Plan. Because no evidence was presented on the Plan’s current
value and no evidence was presented on any passive changes in the Plan’s value, the
trial court erred in distributing the passive gains and losses without additional
findings of fact. See Cunningham v. Cunningham, 171 N.C. App. 550, 556, 615 S.E.2d
675, 680 (2005) (“[W]hen no finding is made regarding the value of an item of
distributable property, a trial court’s findings are insufficient even if a determination
is made with respect to the percentage of a distributable property’s value to which
each party is entitled.”). Accordingly, we reverse that portion of the order on
equitable distribution and we remand to the trial court for entry of additional
findings.
III. Conclusion
The trial court did not err in its award of alimony, and the trial court’s findings
of fact support its conclusions of law. The trial court did err in distributing the
passive gains and losses from the Plan. We reverse this portion of the equitable
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distribution award and remand to the trial court.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges DAVIS and DIETZ concur.
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