{ "id": 8209239, "name": "BECKY D. PHILLIPS, Plaintiff v. JAMES A. PHILLIPS, JR., Defendant", "name_abbreviation": "Phillips v. Phillips", "decision_date": "2007-08-07", "docket_number": "No. COA06-1556", "first_page": "238", "last_page": "247", "citations": [ { "type": "official", "cite": "185 N.C. App. 238" } ], "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": "210 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "420", "parenthetical": "\"[W]e decline to hold a technical oversight constitutes reversible error when its correction would not produce a different result.\"" } ], "opinion_index": 0 }, { "cite": "286 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565269 ], "year": 1974, "pin_cites": [ { "page": "290", "parenthetical": "\"[W]e decline to hold a technical oversight constitutes reversible error when its correction would not produce a different result.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0282-01" ] }, { "cite": "343 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521686 ], "year": 1986, "pin_cites": [ { "page": "126-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0125-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "406 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "624" }, { "page": "624" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522066 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "545" }, { "page": "545" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0541-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "855" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "181-82" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0174-01" ] }, { "cite": "978 F.2d 1269", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3502900 ], "year": 1992, "pin_cites": [ { "page": "1286", "parenthetical": "\"[T]he right to exclude others is perhaps the quintessential property right. Without this right, one's interest in property becomes very tenuous since it is then subject to the whim of others . . . .\" (internal citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/us-app-dc/298/0249-01" ] }, { "cite": "47 S.E. 784", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1904, "pin_cites": [ { "page": "786", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 1 }, { "cite": "135 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660698 ], "year": 1904, "pin_cites": [ { "page": "665", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/135/0661-01" ] }, { "cite": "537 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "350 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132130, 132111, 131923, 132058, 132283 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/350/0600-02", "/nc/350/0600-05", "/nc/350/0600-01", "/nc/350/0600-03", "/nc/350/0600-04" ] }, { "cite": "94 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "664" } ], "opinion_index": 1 }, { "cite": "244 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219576 ], "year": 1956, "pin_cites": [ { "page": "578" } ], "opinion_index": 1, "case_paths": [ "/nc/244/0576-01" ] }, { "cite": "513 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "792" } ], "opinion_index": 1 }, { "cite": "350 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132035 ], "pin_cites": [ { "page": "370" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0367-01" ] }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "856" }, { "page": "856" } ], "opinion_index": 1 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "183" }, { "page": "183" } ], "opinion_index": 1, "case_paths": [ "/nc/299/0174-01" ] } ], "analysis": { "cardinality": 832, "char_count": 22230, "ocr_confidence": 0.738, "pagerank": { "raw": 2.4658617235445224e-07, "percentile": 0.8059966044352392 }, "sha256": "5fa92c221deb587c9684704d029637a386edc30fd441166f832b365062b9439c", "simhash": "1:a3fc942754939fd2", "word_count": 3574 }, "last_updated": "2023-07-14T20:04:26.584781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge JACKSON concurs in part and dissents in part with separate opinion." ], "parties": [ "BECKY D. PHILLIPS, Plaintiff v. JAMES A. PHILLIPS, JR., Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant appeals from an order filed 16 June 2006 ordering defendant to pay alimony of $700 per month to plaintiff for eleven years.\nBy judgment entered 9 March 2004, plaintiff and defendant were divorced. On 23 February 2005 the parties entered into a consent order providing for post separation support to be paid to plaintiff for twelve months, after which either party was given the right to calendar the issue of permanent alimony for hearing.\nBy agreement, the issue of alimony was set for hearing on 1 May 2006. After the hearing, the trial court determined that plaintiff was a dependent spouse substantially in need of maintenance and support, primarily so that she may obtain a suitable residence. The findings of fact noted that plaintiff owned a 930-square-foot condominium which had been and continues to be her mother\u2019s primary residence and which plaintiff\u2019s mother gifted to her for estate planning purposes. The court further found that plaintiff was living with her mother in the condominium at the time of the hearing and that such living arrangement did not allow plaintiff to keep her organ or her piano at her residence, and instead plaintiff was renting a storage unit for those items, as well as some of her other personal belongings.\nWith regard to the standard of living of the parties during the marriage, the court found that the marital home had been over 2,000 square feet and in need of repairs, that the parties had lived \u201ccomfortably but modestly,\u201d and that they \u201cenjoyed some luxuries.\u201d Additionally, the court found that, in 2005, plaintiff\u2019s income was $29,840, and defendant\u2019s income was $74,704, and that defendant\u2019s future earning capacity was \u201csubstantial\u201d while plaintiff\u2019s earning capacity was not as substantial. The court also made findings regarding property owned by the parties and their respective savings. Upon these findings, the court entered an order awarding alimony to plaintiff. Defendant appeals.\nDefendant first challenges the trial court\u2019s determination that plaintiff is a dependent spouse, asserting that the trial court failed to make findings of fact required under N.C.G.S. \u00a7 50-16.1A(2) and Williams v. Williams, 299 N.C. 174, 261 S.E.2d 849 (1980).\nThe trial court found: \u201cPlaintiff is a dependent spouse and is substantially in need of maintenance and support from the defendant as she is unable to currently afford a suitable residence.\u201d Our General Statutes state: \u201c \u2018Dependent spouse\u2019 means a spouse, whether husband or wife, who is ... substantially in need of maintenance and support from the other spouse.\u201d N.C. Gen. Stat. \u00a7 50-16.1A(2) (2005). Our Supreme Court has further interpreted the meaning of \u201csubstantially in need\u201d as \u201crequir[ing] only that the spouse seeking alimony establish that he or she would be unable to maintain his or her accustomed standard of living (established prior to separation) without financial contribution from the other.\u201d Williams, 299 N.C. at 181-82, 261 S.E.2d at 855. In Williams, the Court supplied additional guidelines for determining when a spouse is \u201csubstantially in need of maintenance and support,\u201d as follows:\nA. The trial court must determine the standard of living, socially and economically, to which the parties as a family unit had become accustomed during the several years prior to their separation.\nB. It must also determine the present earnings and prospective earning capacity and any other \u201ccondition\u201d (such as health and child custody) of each spouse at the time of hearing.\nC. After making these determinations, 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 that 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\u2019s accustomed standard of living.\nD. The financial worth or \u201cestate\u201d of both spouses must also be considered by the trial court in determining which spouse is the dependent spouse. . . .\nId. at 183, 261 S.E.2d at 856. Defendant argues that the trial court in the present case failed to make findings with respect to the financial worth or estate of the parties. However, the trial court\u2019s findings include a description of the real property owned by each of the parties as well as their personal savings, satisfying the requirement to consider the parties\u2019 estates.\nFurther, defendant contends that the court improperly considered plaintiff\u2019s ownership of the condominium, where the court made the finding \u201cplaintiff does technically own this [condominium], however it is her mother\u2019s residence and her mother will reside there for the remainder of her life\u201d because technical ownership is not a legal concept. Thus, defendant argues, the court failed to properly weigh this asset among the statutory factors for determining substantial need. Defendant\u2019s position fails to appreciate the meaning of the finding. Although we agree that the finding of technical ownership has no legal significance, the meaning of the finding remains intact. The court properly found that ownership of the condominium lies with plaintiff. In further explanation of the nature of the use of the condominium (despite plaintiff\u2019s ownership), the court specifically noted that the condominium \u201cis [plaintiff\u2019s] mother\u2019s residence and her mother will reside there for the remainder of her life.\u201d This portion of the finding indicates the standard of living established during the marriage and plaintiff\u2019s need for more space \u201cin order to maintain the standard of living of the spouse seeking alimony in the manner to which that spouse became accustomed during the last several years prior to separation.\u201d Id. at 183, 261 S.E.2d at 856. When coupled with the court\u2019s finding that plaintiff lacked adequate space in the condominium to store her organ, piano, and other belongings previously located in the parties\u2019 residence, the court\u2019s finding regarding ownership of the condominium clearly corresponds to the factors enumerated in Williams. The dissent takes issue with the court\u2019s finding because plaintiff\u2019s ownership of the condominium is fee simple without any reservation of a life estate for her mother or any other agreement accompanying the deed evidencing plaintiff\u2019s mother\u2019s legal right to remain in the condominium. Despite the absence of such evidence, it is perfectly obvious from the finding that plaintiff\u2019s mother deeded the condominium to plaintiff as part of an estate plan. While it is true, as the dissent notes, that plaintiff owns the condominium in fee simple, plaintiff\u2019s ownership of the condominium cannot be weighed without consideration of the past use and intended future use of the condominium. Accordingly, we conclude that the trial court\u2019s findings were adequate to meet the requirements of N.C.G.S. \u00a7 50-16.1A(2) and Williams.\nBy defendant\u2019s next argument, he contends the trial court violated N.C.G.S. \u00a7 50-16.3A(b), requiring the court to \u201cconsider all relevant factors\u201d \u201c[i]n determining the amount, duration, and manner of payment of alimony\u201d and Lamb v. Lamb, 103 N.C. App. 541, 545, 406 S.E.2d 622, 624 (1991), requiring the court\u2019s findings to be \u201csufficiently specific to indicate that the trial judge properly considered each of the factors.\u201d Id. Defendant asserts the trial court failed to consider the \u201camount and sources of earned and unearned income . . . including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security or others\u201d and the \u201crelative assets and liabilities of the spouses and the relative debt service requirements of the spouses.\u201d N.C. Gen. Stat. \u00a7 50-16.3A(b)(4), (10) (2005). To support this argument, defendant notes that the court failed to make findings regarding plaintiff\u2019s health insurance benefits and retirement benefits. Defendant also notes that no monetary figure was given for the assets, liabilities, and debt requirements of the spouses. We address this latter contention first.\nN.C.G.S. \u00a7 50-16.3A(b)(10) does not require a recitation of the value of each of the assets, liabilities, and debts of the parties, but rather it calls for an assessment of the \u201crelative assets and liabilities . . . and the relative debt service requirements of the spouses.\u201d N.C. Gen. Stat. \u00a7 50-16.3A(b)(10) (2005). The trial court\u2019s findings that plaintiff owned a condominium and had approximately $20,000 in assets and was paying $196 per month for storage and that defendant owned 50% of the building which houses his law firm, owned the marital home with an equity line of credit, had approximately $18,000 in assets, and owed $300 per month in buyout payment to a former law partner were \u201csufficiently specific to indicate that the trial judge properly considered each of the factors.\u201d Lamb, 103 N.C. App. at 545, 406 S.E.2d at 624.\nWith regard to defendant\u2019s contention that the trial court erred in failing to make findings regarding plaintiff\u2019s health insurance benefits, we agree. N.C.G.S. \u00a7 50-16.3A(b)(4) requires the court to consider the amount and sources of both spouses\u2019 income \u201cincluding . . . benefits such as medical, retirement, insurance, social security or others.\u201d N.C. Gen. Stat. \u00a7 50-16.3A(b)(4) (2005). The court made no findings with respect to plaintiff\u2019s medical benefits or potential income from her IRA, although evidence of the sources of income was presented at the hearing. Without such findings, we cannot be sure \u201cthat the trial judge properly considered . . . the factor[].\u201d Lamb, 103 N.C. App. at 545, 406 S.E.2d at 624. Therefore, we vacate the award of alimony and remand for additional findings on all income, including medical benefits and any other benefits that function as income, of which evidence was presented at the hearing.\nDefendant\u2019s third argument challenges the trial court\u2019s finding that \u201cthe parties . . . stipulated that there would be no evidence pertaining to marital misconduct/fault\u201d because there was no such stipulation and contends that the court erred in failing to recognize plaintiff\u2019s admission of fault, barring her from claiming alimony. Defendant argues that plaintiff admitted marital misconduct and fault by not responding to defendant\u2019s counterclaim, relying on Rule 8(d) of the North Carolina Rules of Civil Procedure, which states \u201c[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d) (2005). Rule 7(a) categorizes a counterclaim as a responsive pleading, where it states \u201c[t]here shall be ... a reply to a counterclaim denominated as such.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 7(a) (2005). Defendant concludes that under the Rules of Civil Procedure plaintiff\u2019s failure to reply to his counterclaim amounts to an admission of his allegations. However, defendant overlooks N.C.G.S. \u00a7 50-10(a), which states \u201cthe material facts in every complaint asking for a divorce . . . shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not.\u201d N.C. Gen. Stat. \u00a7 50-10(a) (2005) (emphasis added). This Court in Skamarak v. Skamarak, 81 N.C. App. 125, 126-27, 343 S.E.2d 559, 561 (1986), applying \u00a7 50-10(a), deemed all allegations in defendant\u2019s counterclaim denied, where plaintiff filed no reply to the counterclaim. Id. While defendant is correct that the parties did not stipulate on the record that there would be no evidence of marital fault, nonetheless, neither party presented evidence of marital misconduct or fault. Thus, the court\u2019s finding of a stipulation is a technical error which does not affect the outcome of the order and, therefore, does not require reversal. Home Ins. Co. v. Ingold Tire Co., 286 N.C. 282, 290, 210 S.E.2d 414, 420 (1974) (\u201c[W]e decline to hold a technical oversight constitutes reversible error when its correction would not produce a different result.\u201d).\nDefendant next argues that the trial court committed reversible error and denied defendant the right to due process by holding an alimony trial without notice. Defendant asserts that he believed the hearing on 1 May 2006 would be a \u201cstatus conference\u201d only. This argument is without merit because on 23 March 2006 defendant signed a memorandum of judgment/order which stated \u201cany potential alimony issue is set for hearing on May 1, 2006.\u201d Accordingly, defendant received adequate notice of the alimony hearing.\nDefendant\u2019s final argument is that the trial court committed reversible error by failing to require plaintiff to produce bank records. \u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make . ...\u201d N.C. R. App. R 10(b)(1) (2006). Defendant did not make a timely request, objection, or motion at trial asking the court to enforce production of the bank records. Therefore, defendant did not preserve this assignment of error for review.\nVacated and remanded for additional findings.\nJudge STEPHENS concurs.\nJudge JACKSON concurs in part and dissents in part with separate opinion.", "type": "majority", "author": "MARTIN, Chief Judge." }, { "text": "JACKSON, Judge\nconcurring in part and dissenting in part.\nI concur fully with the majority opinion with the exception of the majority\u2019s conclusion regarding plaintiffs ownership of the condominium. Because I believe that the trial court failed to properly consider plaintiffs ownership of the condominium, I must respectfully dissent from the majority\u2019s conclusion that the trial court\u2019s findings satisfy the requirements set forth in section 50-16.1A(2) of the North Carolina General Statutes and our Supreme Court\u2019s opinion in Williams v. Williams, 299 N.C. 174, 183, 261 S.E.2d 849, 856 (1985).\nIn the instant case, the trial court found that \u201c[pjlaintiff is currently living with her 83 year old mother in a 930 [-square foot] condo. Plaintiff\u2019s mother purchased the home in 1982 and deeded it to plaintiff in 1993 for estate planning purposes.\u201d The trial court further found that although \u201c[p]laintiff does technically own this home,... it is her mother\u2019s residence and her mother will reside there for the remainder of her life.\u201d The majority opinion, in turn, finds no material fault with this finding.\nOur courts have demonstrated a strong reluctance to impose restrictions upon title absent clear language to the contrary in the deed. See, e.g., Station Assocs., Inc. v. Dare County, 350 N.C. 367, 370, 513 S.E.2d 789, 792 (\u201c \u2018The law does not favor a construction of the language in a deed which will constitute a condition subsequent unless the intention of the parties to create such a restriction upon the title is clearly manifested.\u2019 \u201d (quoting Washington City Bd. of Educ. v. Edgerton, 244 N.C. 576, 578, 94 S.E.2d 661, 664 (1956))), reh\u2019g denied, 350 N.C. 600, 537 S.E.2d 494 (1999). Here, there is no language in the general warranty deed limiting plaintiff\u2019s use of the subject property in favor of her mother. It is clear that plaintiff and her mother intended that the resulting conveyance would result in an estate held in fee simple. In fact, the deed itself imposes the affirmative obligation upon plaintiff to\nexpressly assume[] and agree[] to be bound by and comply with all of the covenants, restrictions, terms, provisions and conditions as set forth in the Declaration and the By-Laws and any rules and regulations made pursuant thereto including, but not limited to, the obligation to make payment of assessments for the maintenance and operation of the condominium project which may be levied against such unit.\nNo right is given to nor obligation imposed upon plaintiffs mother in the deed. She merely grants all of her interest in the condominium to plaintiff in \u201cfee simple\u201d according to the express terms of the deed.\nAlthough plaintiffs mother continues to reside in the condominium and, as the trial court found, plaintiff and her mother intend that she reside there for the remainder of her life, the record is devoid of any indication that plaintiffs mother reserved a life estate in the property or that plaintiff has conveyed any legally cognizable interest in the property to her mother. It is undisputed that plaintiff holds the property in fee simple, but the trial court diminished the significance of this legal interest by referring to plaintiffs interest in the property as mere \u201ctechnical\u201d ownership \u2014 a concept the majority correctly notes \u201cis not a legal concept.\u201d However, because she holds title to the property in fee simple, plaintiff has absolute dominion over the property and may utilize the property as she chooses. As our Supreme Court noted over a century ago,\n[t]he right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. It consists in the free use, enjoyment and disposal of all a person\u2019s acquisitions, without any. control or diminution save only by the laws of the land.\nVann v. Edwards, 135 N.C. 661, 665, 47 S.E. 784, 786 (1904) (internal quotation marks and citation omitted). Although, the condominium may be, as the trial court found, the \u201cmother\u2019s residence,\u201d it remains her residence only so long as plaintiff permits. Plaintiff\u2019s mother\u2019s ability and \u201cright\u201d to reside in the condo is wholly subject to the whim and caprice of plaintiff. Cf. Nixon v. United States, 978 F.2d 1269, 1286 (D.C. Cir. 1992) (\u201c[T]he right to exclude others is perhaps the quintessential property right. Without this right, one\u2019s interest in property becomes very tenuous since it is then subject to the whim of others . . . .\u201d (internal citations omitted)).\nI believe that the trial court erroneously failed to consider the significance of plaintiff\u2019s fee simple interest in the condominium and, thus, did not properly determine the parties\u2019 financial worth as required by our Supreme Court\u2019s opinion in Williams. See Williams, 299 N.C. at 183, 261 S.E.2d at 856. Therefore, I would remand the case for proper consideration of the true nature of plaintiff\u2019s ownership of the condominium and entry of corresponding findings of fact. Accordingly, I respectfully dissent as to this portion of the majority opinion.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JACKSON, Judge" } ], "attorneys": [ "Robert L. Inge for plaintiff-appellee.", "James A. Phillips, Jr., defendant-appellant, pro se." ], "corrections": "", "head_matter": "BECKY D. PHILLIPS, Plaintiff v. JAMES A. PHILLIPS, JR., Defendant\nNo. COA06-1556\n(Filed 7 August 2007)\n1. Divorce\u2014 alimony \u2014 dependent spouse\nThe trial court did not err in an alimony case by its determination under N.C.G.S. \u00a7 50-16.1A(2) that plaintiff was a dependent spouse, because: (1) the trial court\u2019s findings include a description of the real property owned by each of the parties as well as their personal savings, thus satisfying the requirement to consider the parties\u2019 estates; (2) the findings indicate the standard of living established during the marriage and plaintiff\u2019s need for more space in order to maintain the standard of living of the spouse seeking alimony in the manner to which that spouse became accustomed during the last several years prior to separation; and (3) while it is true that plaintiff owned a condominium in fee simple, plaintiff\u2019s ownership cannot be weighed without consideration of the past use and intended future use of the condominium.\n2. Divorce\u2014 alimony \u2014 consideration of all relevant factors\nThe trial court erred in an alimony case by failing to consider all relevant factors in determining the amount, duration, and manner of payment of alimony as required by N.C.G.S. \u00a7 50-16.3A(b), and the award of alimony is vacated and remanded for additional findings on all income, including medical benefits and any other benefits that function as income, because the trial court made no findings with respect to plaintiff\u2019s medical benefits or potential income from her IRA, although evidence of the sources of income was presented at the hearing.\n3. Divorce\u2014 alimony \u2014 stipulation\u2014technical error\nAlthough the trial court made a technical error in an alimony case by finding that the parties stipulated that there would be no evidence pertaining to marital misconduct or fault, the error does not require reversal, because: (1) although defendant contends plaintiff admitted marital misconduct and fault by failing to respond to defendant\u2019s counterclaim, N.C.G.S. \u00a7 50-10(a) provides that the material facts in every complaint asking for a divorce shall be deemed to be denied whether the same shall be actually denied by pleading; and (2) while defendant is correct that the parties did not stipulate on the record that there would be no evidence of marital fault, neither party presented evidence of marital misconduct or fault.\n4. Divorce\u2014 alimony \u2014 notice of hearing\nThe trial court did not err in an alimony case by allegedly holding the trial without notice even though defendant contends he thought the hearing on 1 May 2006 would be a status conference only because on 23 March 2006 defendant signed a memorandum of judgment/order which stated any potential alimony issue is set for hearing on 1 May 2006.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nAlthough defendant husband contends the trial court erred in an alimony case by failing to require plaintiff wife to produce bank records, this assignment of error is dismissed, because: (1) N.C. R. App. P. 10(b)(1) requires a party to have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling the party desired the court to make in order to preserve a question for appellate review; and (2) defendant failed to make a timely request, objection, or motion at trial asking the court to enforce production of the bank records.\nJudge JACKSON concurring in part and dissenting in part.\nAppeal by defendant from order entered 16 June 2006 by Judge Beth S. Dixon in Rowan County District Court. Heard in the Court of Appeals 21 May 2007.\nRobert L. Inge for plaintiff-appellee.\nJames A. Phillips, Jr., defendant-appellant, pro se." }, "file_name": "0238-01", "first_page_order": 270, "last_page_order": 279 }