{ "id": 9251228, "name": "PATRICIA MARILYN HONEYCUTT, Plaintiff v. WALLACE B. HONEYCUTT, Defendant", "name_abbreviation": "Honeycutt v. Honeycutt", "decision_date": "2002-09-03", "docket_number": "No. COA01-1008", "first_page": "673", "last_page": "679", "citations": [ { "type": "official", "cite": "152 N.C. App. 673" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "480 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "345 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53936 ], "year": 1997, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0430-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "opinion_index": 0 }, { "cite": "333 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "287 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "846" }, { "page": "846" }, { "page": "846" } ], "opinion_index": 0 }, { "cite": "305 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567141 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0177-01" ] }, { "cite": "179 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554365 ], "year": 1971, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0463-01" ] }, { "cite": "501 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "674", "parenthetical": "citing Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971)" }, { "page": "675" }, { "page": "787" }, { "page": "675" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 781", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653020 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "785", "parenthetical": "citing Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971)" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0781-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1995, "pin_cites": [ { "page": "(3)" }, { "page": "(4)" }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "271 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "67" } ], "opinion_index": 1 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "135" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "319 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "645", "parenthetical": "in order to use earning capacity, the trial court must make a \"finding that the reduction in income was primarily motivated by a desire to avoid . . . reasonable support obligations\"" }, { "page": "645" }, { "page": "645" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521059 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "171", "parenthetical": "in order to use earning capacity, the trial court must make a \"finding that the reduction in income was primarily motivated by a desire to avoid . . . reasonable support obligations\"" }, { "page": "171" }, { "page": "171" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0159-01" ] }, { "cite": "214 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "45" }, { "page": "45" } ], "opinion_index": 1 }, { "cite": "287 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561262 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "171-72" }, { "page": "171-72" } ], "opinion_index": 1, "case_paths": [ "/nc/287/0163-01" ] } ], "analysis": { "cardinality": 698, "char_count": 15117, "ocr_confidence": 0.771, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7497720909597432 }, "sha256": "5ede0488400a43d3366a6eb882c7b5e95e351738b28fca1d0ba3b50dda4e2868", "simhash": "1:2fbf542e660ecfe4", "word_count": 2415 }, "last_updated": "2023-07-14T14:40:03.287783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BIGGS concurs.", "Judge GREENE concurs in part and dissents in part." ], "parties": [ "PATRICIA MARILYN HONEYCUTT, Plaintiff v. WALLACE B. HONEYCUTT, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiff, Patricia Marilyn Honeycutt, appeals an order entered 6 December 2000 terminating her ex-husband\u2019s obligation to pay alimony. We reverse and remand for further proceedings.\nPlaintiff married defendant, Wallace B. Honeycutt, in 1956. They separated July 1989, and divorced September 1990. Before the divorce was final, plaintiff filed a verified complaint seeking alimony, \u201creasonable support, maintenance and subsistence,\u201d possession of the marital home in addition to its furnishings, attorney\u2019s fees, and equitable distribution of the marital property. On 12 November 1991, the trial court entered a Judgment of Equitable Distribution and Qualified Domestic Relations Order, which distributed the couple\u2019s property and gave the marital home to plaintiff. Following a jury trial on the issue of fault, the trial court entered an Alimony Judgment on 31 January 1992 finding among other things that plaintiff was a dependent spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1(3) (1995), that defendant was a supporting spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1(4) (1995), and that defendant was capable of financially supporting plaintiff. Defendant was ordered to pay alimony of $3,261.74 per month to plaintiff \u201cuntil the death of either party, or the remarriage of the plaintiff, whichever event should first occur.\u201d The court also decreed that \u201cthis Order may be reviewed as to permanent Alimony, upon finalization of the equitable distribution action.\u201d\nOn 9 December 1998, defendant filed a motion to reduce his alimony payments to plaintiff on the grounds that there was a \u201csubstantial change of circumstances\u201d in that he was in the process of selling his dental practice and would soon retire. Plaintiff filed a motion to increase defendant\u2019s alimony payments, because she contended that he was enjoying an increase in income from rental property, from the sale of his dental practice, and from annuity contracts, in addition to his annual income as a dentist. The record does not indicate whether either of these motions were heard. The parties entered a Consent Judgment on 9 March 2000, resolving all outstanding equitable distribution issues.\nOn 2 August 2000, defendant filed a motion to terminate his alimony payments to plaintiff, citing a \u201csubstantial material change in circumstances in addition to the change contemplated by the alimony judgment entered in 1992.\u201d Defendant noted the folio-wing changes in circumstance:\na. [Defendant] is now age 66 and [plaintiff] is now age 65. Both are receiving social security and both are or should be now receiving Medicare.\nb. The defendant [] has no regular employment and is retired.\n4. [Defendant] no longer has a monthly income from his practice.\na. In equitable distribution, [defendant] divided the retirement plans with [plaintiff] fifty-fifty.\nb. The needs of [plaintiff] have materially declined since the hearing in 1991 in that she now has a paid for home, paid for automobile, Medicare, upon information and belief no household help and her medical bills are less.\nc. [Plaintiff] has adequate investments along with her social security to provide for her needs and her \u201cpaid for\u201d home and with her \u201cpaid for\u201d automobile and Medicare.\n[Plaintiff] has the luxury of living in a 5000 square foot \u201cpaid for\u201d residence containing five bedrooms and she could easily downsize her residence to a more suitable size for a person in retirement age should she need additional resources.\nDefendant also filed an alternative motion to terminate his alimony payments, relying on the trial court\u2019s earlier order that alimony could be reviewed as soon as the equitable distribution claim was finalized. Plaintiff replied to both motions, and in response to the alternative motion contended that \u201cthe Alimony Judgment is a judgment awarding the plaintiff permanent alimony from the defendant.\u201d\nOn 6 December 2000, the trial court concluded that the previous alimony judgment was an \u201cOrder of \u2018permanent alimony\u2019 but did not consider the amount of alimony to be a fully determined issue.\u201d The trial court further concluded that according to the previous judgment, \u201cneither party was to be required to demonstrate changed circumstances in order for the Court to adjust the actual amount of the alimony payment.\u201d However, the trial court concluded, that because nine years had passed since entry of the alimony judgment, and since the property was equitably distributed (except for one piece of property), defendant \u201chas the burden of demonstrating changed circumstances both for purposes of requesting that the Court terminate alimony altogether on the theory that [plaintiff] is no longer dependent and for purposes of requesting that, absent termination, the award be reduced.\u201d The trial court held that defendant met his burden of proving changed circumstances, that plaintiff was \u201cno longer a dependent spouse,\u201d and terminated alimony payments effective 2 October 2000.\nPlaintiff appeals this Order and in her sole argument contends that \u201cthe trial court erred in terminating [defendant\u2019s] obligation to pay alimony to [plaintiff] on the grounds that said ruling is not supported by proper findings of facts or conclusions of law.\u201d She points to two alleged legal errors in the trial court\u2019s order: (1) the conclusion that she is no longer a dependent spouse, and (2) findings and conclusions that she has a certain earning capacity. We note that the applicable alimony statutes, N.C. Gen. Stat. \u00a7\u00a7 50-16.1 et seq., were amended in 1995. \u201cSession Laws 1995 ... provides that the act applies to civil motions filed on or after that date, and shall not apply to pending litigation, or to future motions in the cause seeking to modify orders or judgments in effect on October 1, 1995.\u201d N.C.G.S. \u00a7 50-16.1 (1995) (editor\u2019s note). The original action was filed prior to 1995, and the statute and applicable case law from before the 1995 amendments govern. See id.\nWe first address whether the trial court properly concluded that plaintiff is no longer a dependent spouse. Pursuant to N.C. Gen. Stat. \u00a7 50-16.9(a) (1987), \u201c[a]n order of a court of this State for alimony or alimony pendente lite, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.\u201d Here, the defendant had the burden of showing a change of circumstances to support his motion to decrease alimony. \u201cEven where the moving party has met [his] burden to show relevant changed circumstances, however, the trial court is not required to modify an alimony award, but may do so in its discretion.\u201d Kowalick v. Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998) (citing Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971)).\n\u201cTo determine whether a change in circumstances under G.S. 50-16.9 has occurred, it is necessary to refer to the circumstances or factors used in the original determination of the amount of alimony awarded under G.S. 50-16.5.\u201d Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982), disc. rev. denied, 314 N.C. 331, 333 S.E.2d 489 (1985). Although now repealed, N.C. Gen. Stat. \u00a7 50-16.5 (1987), entitled \u201cDetermination of amount of alimony,\u201d requires the consideration of the \u201cestates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case\u201d in setting the amount of alimony. See also Rowe, 305 N.C. at 187, 287 S.E.2d at 846. However, the trial court may not reconsider the issue of whether the Plaintiff is a dependent spouse, because it was \u201cpermanently adjudicated\u201d during the initial alimony hearing. See Rowe, 305 N.C. at 187, 287 S.E.2d at 846.\nHere, the trial court improperly concluded that plaintiff \u201cis no longer a dependent spouse,\u201d because the trial court determined that relative status of the parties permanently as of the date of the original order. See id. Subsequent to that order, the court may consider only \u201cwhether any change of circumstances justified a modification or termination of the alimony order.\u201d Cunningham v. Cunningham, 345 N.C. 430, 437, 480 S.E.2d 403, 407 (1997). \u201cWe note that the trial court may, if a change in circumstances is found to exist, reduce the amount of alimony to zero, but such modification does not result in the loss of dependent spouse status.\u201d Kowalick, 129 N.C. App. at 786, 501 S.E.2d at 675.\n\u201cOn remand, the trial court should make findings showing its consideration of the [N.C.G.S. \u00a7] 50-16.5 factors on which the parties have presented competent evidence.\u201d Id. at 787, 501 S.E.2d at 675. However, we note that findings 7 and 8 contain provisions which are not supported by the evidence or which are not consistent with the law. The court is not to calculate plaintiffs expenses based on what they would be if she sold her home and moved to a smaller one, without taking into account the cost of such a move, and the resultant lessening of plaintiffs standard of living. In addition, we do not believe the evidence supports the finding that plaintiffs expenses \u201cshould be reduced by $239.16 for medical insurance since Plaintiff is now eligible for Medicare.\u201d The record reflects that plaintiffs health care costs are for supplemental insurance to cover health care needs and prescription medications which Medicare does not cover. The record reflects no reason for the court to require her to lessen her standard of living by reducing the quality or availability of health care in this manner. To the contrary, the record reflects that by carrying this insurance, the plaintiff has taken reasonable steps to provide for her known health care needs. We remand for the trial court to make new findings and conclusions consistent with this opinion.\nHowever, plaintiff raises a second challenge to the conclusions of law. Plaintiff argues that the trial court erred in \u201cconsidering [her] earning capacity,\u201d as opposed to her actual earnings, without first determining that she \u201cwas intentionally, in bad faith, suppressing her actual income.\u201d The statute in effect at the time of this claim specifically required the court to consider the income and earning capacity of the parties, among other factors that may be considered, and here the conclusion makes reference to \u201cearning capacity.\u201d The findings on which this conclusion is based refer to potential investment income and social security, rather than earning capacity from working, as the term is typically used. Thus, as we do not believe the court\u2019s findings address plaintiff\u2019s \u201cearning capacity,\u201d we need not address this issue further.\nReversed and remanded for further findings consistent with this opinion.\nJudge BIGGS concurs.\nJudge GREENE concurs in part and dissents in part.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "GREENE, Judge,\nconcurring in part and dissenting in part.\nI agree with the majority as to the first part of its opinion holding that the trial court erred in concluding plaintiff was no longer a dependent spouse. The majority opinion, however, also holds that the trial court\u2019s findings do not discuss plaintiff\u2019s earning capacity and thus this Court need not address the question whether the trial court erred in failing to make a finding as to plaintiff\u2019s bad faith. As to this part of the opinion, I dissent.\nAccording to pre-1995 case law, \u201can award of alimony may be based upon [a] spouse\u2019s ability to earn as distinguished from [her] actual income . . . only when it appears from the record that there has been a deliberate attempt on the part of the . . . spouse to avoid [her] financial family responsibilities.\u201d Bowes v. Bowes, 287 N.C. 163, 171-72, 214 S.E.2d 40, 45 (1975); Spencer v. Spencer, 70 N.C. App. 159, 171, 319 S.E.2d 636, 645 (1984) (in order to use earning capacity, the trial court must make a \u201cfinding that the reduction in income was primarily motivated by a desire to avoid . . . reasonable support obligations\u201d). \u201cAbsent such a finding, the trial court must determine alimony based on [a spouse\u2019s] income alone, not [her] earning capacity.\u201d Spencer, 70 N.C. App. at 171, 319 S.E.2d at 645.\nIn this case, the trial court concluded that \u201c[i]n light of the fact. . . the individual estates, earnings, earning capacities, and conditions of the parties have changed substantially and . . . [plaintiff] is presently capable of supporting and maintaining herself . . . without any assistance from . . . [defendant,\u201d it was terminating defendant\u2019s spousal support obligations. The trial court\u2019s findings on which this conclusion is based include expert testimony regarding plaintiff\u2019s potential investment income. Reliance on this testimony, which essentially speaks to plaintiffs earning capacity, would be error without an additional finding of bad faith on her part. See Bowes, 287 N.C. at 171-72, 214 S.E.2d at 45; Spencer, 70 N.C. App. at 171, 319 S.E.2d at 645. Moreover, in ascertaining plaintiffs actual investment income for purposes of alimony, the trial court must consider \u201c[t]he value of property within a reasonable time before or after the commencement of [the present] action.\u201d Clark v. Clark, 301 N.C. 123, 135, 271 S.E.2d 58, 67 (1980). As the order does not reflect the extent, if any, to which the trial court relied on the expert testimony regarding plaintiffs investment income, I would remand this issue to the trial court for findings consistent with this opinion.\n. It must be noted that plaintiff is sixty-five years old and not employed. Consequently, she does not derive any income from work.\nIt is true that, as the majority states, earning capacity is typically used in reference to a person\u2019s occupation; however, the concept is equally applicable where a trial court imputes income to a spouse based on the earning capacity of her investment portfolio, which, if used more effectively, could yield a higher return.", "type": "concurring-in-part-and-dissenting-in-part", "author": "GREENE, Judge," } ], "attorneys": [ "White and Grumpier, by Fred G. Crumpler, Jr. and Laurie Schlossberg Kelly, and Jane S. Atkins & Associates, P.A., by Jane S. Atkins and Elizabeth A. Stephenson, for plaintiff-appellant.", "Woodruff & Associates, P.A., by Carolyn J. Woodruff, for defendant-appellee." ], "corrections": "", "head_matter": "PATRICIA MARILYN HONEYCUTT, Plaintiff v. WALLACE B. HONEYCUTT, Defendant\nNo. COA01-1008\n(Filed 3 September 2002)\n1. Divorce\u2014 alimony \u2014 dependent spouse \u2014 permanently adjudicated at initial hearing\nIn an order terminating alimony, the trial court improperly concluded that defendant was no longer a dependent spouse because that issue was permanently adjudicated during the initial alimony hearing. The court may reduce the amount of alimony to zero if a change of circumstances is found to exist.\n2. Divorce\u2014 alimony \u2014 earning capacity \u2014 not investment potential or social security\nThe findings in an order terminating alimony did not address plaintiffs earning capacity where they referred to potential investment income and social security rather than earning capacity from working.\nJudge Greene concurring in part and dissenting in part.\nAppeal by plaintiff from order entered 6 December 2000 by Judge Mark S. Culler in Iredell County District Court. Heard in the Court of Appeals 21 May 2002.\nWhite and Grumpier, by Fred G. Crumpler, Jr. and Laurie Schlossberg Kelly, and Jane S. Atkins & Associates, P.A., by Jane S. Atkins and Elizabeth A. Stephenson, for plaintiff-appellant.\nWoodruff & Associates, P.A., by Carolyn J. Woodruff, for defendant-appellee." }, "file_name": "0673-01", "first_page_order": 701, "last_page_order": 707 }