Pierce v. Pierce

TYSON, Judge,

dissenting.

The majority’s opinion holds that the trial court’s findings of fact demonstrated a substantial change in circumstances to warrant a *495modification of the parties’ original alimony order. I disagree and vote to reverse the trial court’s order. I respectfully dissent.

I. Standard of Review

“Decisions regarding the amount of alimony are left to the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a manifest abuse of that discretion.” Bookholt v. Bookholt, 136 N.C. App. 247, 249-50, 523 S.E.2d 729, 731 (1999) (citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)). The trial court’s findings of fact axe reviewed in order to determine whether competent evidence supports the findings of fact and whether the findings of fact support the conclusions of law. Marks v. Marks, 316 N.C. 447, 461, 342 S.E.2d 859, 867 (1986). “[I]f there is no competent evidence to support a finding of fact, an exception to the finding must be sustained and a judgment or order predicated upon such erroneous findings must be reversed.” Bridges v. Bridges, 85 N.C. App. 524, 526, 355 S.E.2d 230, 231 (1987) (citation omitted).

II. Modification of an Alimony Order

Defendant argues the trial court erred by modifying and increasing his alimony obligation. I agree.

A. Substantial Change in Circumstances

An order for alimony may be modified at any time upon filing a motion in the cause and showing a change in circumstances by either party or anyone interested. N.C. Gen. Stat. § 50-16.9 (a) (2005). “As a general rule, the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse’s ability to pay.” Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982). “The change in circumstances must be substantial with a final decision based on a comparison of the facts existing at the original order and when the modification is sought.” Broughton v. Broughton, 58 N.C. App. 778, 781, 294 S.E.2d 772, 775, disc. rev. denied, 307 N.C. 269, 299 S.E.2d 214 (1982). The burden of proof is on the moving party to show that the original award is inadequate or unduly burdensome. Britt v. Britt, 49 N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (citation omitted). “[T]he question of the correct amount of alimony ... is a question of fairness to all parties.” Beall v. Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976).

*496B. Findings of Fact,

Defendant argues the trial court’s findings of fact are not supported by competent evidence and the findings of fact do not support the trial court’s conclusion that plaintiff was entitled to a modification of the initial alimony award. I agree.

1. Plaintiff’s Financial Needs

Defendant specifically challenges the trial court’s findings of fact numbered 3, 24, 25, and 26. These findings state:

3. That the Plaintiffs reasonable needs and expenses have changed since the entry of the Order of Alimony and Plaintiff’s resources are still not adequate to meet these needs and expenses.
24. That the Plaintiff’s reasonable monthly “shared” expenses are found to be $1,200 for housing and utilities based on the left side of Part B(l) of the Affidavit of Financial Standing. This amount is, of course, speculative, but by comparison with Defendant’s expenses on that side, $999, and shared with Dee Kennemore, it seems reasonable. Plaintiff has $860 [sic] expenses for items on the right side of the same page (home, food, and supplies, found to be $350 in 2004, are found the same now; gas, found to be $50 in 2004, is found to be $75, given her unemployment.) These monthly shared expenses total $2,060.00 while in 2004 these monthly shared expenses totaled $2,680.00[.]
25. That the Plaintiffs monthly reasonable expenses to be $300, even though she listed $45 on her Affidavit of Financial Standing. These same expenses were found to be $600 per month in 2004.
26. That with the Plaintiff’s debt service of $303 a month, her total expenses are $2,663 per month, leaying a shortfall of $1,660 per month without Alimony. In 2004 her total monthly expenses equaled $3,460.00, including debt service, leaving a shortfall of $2,449.00 per month without alimony.

It is undisputed that plaintiff’s monthly expenses decreased from $3,460.00 per month in 2004 to $2,663.00 per month at the time of modification. The majority’s opinion acknowledges plaintiffs decrease in expenses, but nevertheless holds that plaintiff’s financial situation had worsened at the time of the hearing based on evidence *497that plaintiff had: (1) depleted her equitable distribution funds; and (2) increased her credit card debt by $3,000.00.

• In the original alimony order, the trial court found “[plaintiff] has spent for her [sic] more expensive home and car than she could afford in an attempt to maintain that standard of living.” Plaintiffs inflated financial spending cannot support a finding of a substantial change in circumstances. See Harris v. Harris, 258 N.C. 121, 126, 128 S.E.2d 123, 127 (1962) (holding a defendant’s financial irresponsibility is not a basis to reduce his alimony obligation.). The trial court’s calculations reveal that plaintiff’s expenses in fact decreased since the original alimony order was entered and the original alimony order shows that plaintiff’s fiscal irresponsibility accounts for the depletion of her funds and the increase in her debt. The trial court’s findings of fact regarding plaintiff’s financial needs do not support its conclusion of law that plaintiff is entitled to a modification of the original alimony award.

2. Defendant’s Ability to Pav

The trial court also made several findings of fact regarding defendant’s ability to pay plaintiff’s shortfall in expenses. The trial court found: (1) defendant’s financial situation improved; (2) defendant shared some of his household expenses with a roommate; (3) defendant reduced plaintiff’s Visa bill from $10,546.00 to $1,000.00; (4) defendant’s net income increased 77%; and (5) defendant was able to pay plaintiff’s monthly shortfall in expenses.

This Court has stated that “fluctuations in income alone do not comprise changed circumstances capable of requiring modification of an alimony award.” Britt, 49 N.C. App. at 472, 271 S.E.2d at 927. The speculative and uncertain nature of the defendant’s income was recognized by the trial court’s finding of fact numbered 23: “[w]hile Defendant is about 69 years old and anticipates less income this year than last year, currently he is earning as he did in better days. The Court realizes that could change at any time.” The trial court’s finding that defendant’s fluctuating income increased over the course of one year, standing alone, does not support the conclusion of law that the plaintiff is entitled to a modification of the original alimony award based upon changed circumstances.

III. Conclusion

“[T]he changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent *498spouse or the supporting spouse’s ability to pay.” Rowe, 305 N.C. at 187, 287 S.E.2d at 846. Plaintiff is not entitled to a modification of the original alimony order when the undisputed evidence presented shows: (1) plaintiff’s expenses have decreased and (2) the depletion of the equitable distribution funds and increase in her debt were solely due to plaintiff’s fiscal irresponsibility.

The only notable change in circumstances was a one year fluctuation in defendant’s income, which cannot be the sole basis for a finding of changed circumstances. See Britt, 49 N.C. App. at 472, 271 S.E.2d at 927. The trial court’s findings of fact do not support its conclusions of law. The trial court’s order modifying the original alimony order should be reversed. I respectfully dissent.