{
  "id": 4156933,
  "name": "DARREN RAY HARTSELL, Plaintiff v. RACHEL KATHERINE HARTSELL, Defendant",
  "name_abbreviation": "Hartsell v. Hartsell",
  "decision_date": "2008-03-04",
  "docket_number": "No. COA07-884",
  "first_page": "65",
  "last_page": "80",
  "citations": [
    {
      "type": "official",
      "cite": "189 N.C. App. 65"
    }
  ],
  "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": "630 S.E.2d 25",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12635918
      ],
      "year": 2006,
      "pin_cites": [
        {
          "parenthetical": "trial court did not \"impute\" income to appellant when it averaged his 2001 and 2002 to determine his 2003 income"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/630/0025-01"
      ]
    },
    {
      "cite": "611 S.E.2d 456",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12632675
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "462"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/611/0456-01"
      ]
    },
    {
      "cite": "631 S.E.2d 156",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12636078
      ],
      "weight": 3,
      "year": 2006,
      "pin_cites": [
        {
          "page": "163"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/631/0156-01"
      ]
    },
    {
      "cite": "640 S.E.2d 826",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12637772
      ],
      "year": 2007,
      "pin_cites": [
        {
          "page": "827-28",
          "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal quotation marks and citations omitted)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/640/0826-01"
      ]
    },
    {
      "cite": "620 S.E.2d 899",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12634258
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "903",
          "parenthetical": "quoting Moore Cty. ex rel. Evans v. Brown, 142 N.C. App. 692, 694-95, 543 S.E.2d 529, 531 (2001) (internal quotation marks and citations omitted)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/620/0899-01"
      ]
    },
    {
      "cite": "644 S.E.2d 600",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12638416
      ],
      "year": 2007,
      "pin_cites": [
        {
          "page": "603",
          "parenthetical": "citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/644/0600-01"
      ]
    },
    {
      "cite": "509 S.E.2d 236",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "opinion_index": 0
    },
    {
      "cite": "131 N.C. App. 784",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11205703
      ],
      "year": 1998,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/131/0784-01"
      ]
    },
    {
      "cite": "177 N.C. App. 642",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8301949
      ],
      "year": 2006,
      "pin_cites": [
        {
          "parenthetical": "trial court did not \"impute\" income to appellant when it averaged his 2001 and 2002 to determine his 2003 income"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/177/0642-01"
      ]
    },
    {
      "cite": "493 S.E.2d 804",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "opinion_index": 0
    },
    {
      "cite": "128 N.C. App. 174",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11653040
      ],
      "weight": 2,
      "year": 1997,
      "pin_cites": [
        {
          "page": "177"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/128/0174-01"
      ]
    },
    {
      "cite": "493 S.E.2d 288",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "289"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "127 N.C. App. 705",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11799982
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "706"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/127/0705-01"
      ]
    },
    {
      "cite": "228 S.E.2d 407",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "pin_cites": [
        {
          "page": "410"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "290 N.C. 669",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8564393
      ],
      "year": 1976,
      "pin_cites": [
        {
          "page": "674"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/290/0669-01"
      ]
    },
    {
      "cite": "485 S.E.2d 82",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "83",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "126 N.C. App. 362",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11710686
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "364",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/126/0362-01"
      ]
    },
    {
      "cite": "170 N.C. App. 89",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9004318
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "99"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/170/0089-01"
      ]
    },
    {
      "cite": "N.C. Gen. Stat. \u00a7 50-13.4",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 2007,
      "pin_cites": [
        {
          "page": "(c)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "178 N.C. App. 251",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8377203
      ],
      "weight": 2,
      "year": 2006,
      "pin_cites": [
        {
          "page": "264"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/178/0251-01"
      ]
    },
    {
      "cite": "588 S.E.2d 517",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 4,
      "year": 2003,
      "pin_cites": [
        {
          "page": "522"
        },
        {
          "page": "523"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "161 N.C. App. 414",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8958189
      ],
      "weight": 2,
      "year": 2003,
      "pin_cites": [
        {
          "page": "421"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/161/0414-01"
      ]
    },
    {
      "cite": "536 S.E.2d 337",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 2000,
      "pin_cites": [
        {
          "page": "339"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "140 N.C. App. 362",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        12127310
      ],
      "year": 2000,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/140/0362-01"
      ]
    },
    {
      "cite": "256 S.E.2d 532",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "pin_cites": [
        {
          "page": "534"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "42 N.C. App. 365",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554407
      ],
      "year": 1979,
      "pin_cites": [
        {
          "page": "368"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/42/0365-01"
      ]
    },
    {
      "cite": "409 S.E.2d 897",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1991,
      "pin_cites": [
        {
          "page": "900",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "330 N.C. 143",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2509699
      ],
      "year": 1991,
      "pin_cites": [
        {
          "page": "147-48",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/330/0143-01"
      ]
    },
    {
      "cite": "N.C. Gen. Stat. \u00a7 50-16",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 4,
      "pin_cites": [
        {
          "page": "365"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "324 S.E.2d 829",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "page": "833",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "312 N.C. 770",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4755941
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "777",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/312/0770-01"
      ]
    },
    {
      "cite": "181 N.C. App. 688",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8375939
      ],
      "year": 2007,
      "pin_cites": [
        {
          "page": "690",
          "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal quotation marks and citations omitted)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/181/0688-01"
      ]
    },
    {
      "cite": "543 S.E.2d 529",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "page": "531",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "142 N.C. App. 692",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9443423
      ],
      "year": 2001,
      "pin_cites": [
        {
          "page": "694-95",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/142/0692-01"
      ]
    },
    {
      "cite": "174 N.C. App. 347",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8352050
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "352",
          "parenthetical": "quoting Moore Cty. ex rel. Evans v. Brown, 142 N.C. App. 692, 694-95, 543 S.E.2d 529, 531 (2001) (internal quotation marks and citations omitted)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/174/0347-01"
      ]
    },
    {
      "cite": "485 S.E.2d 351",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "352",
          "parenthetical": "citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "126 N.C. App. 429",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11711137
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "431",
          "parenthetical": "citations omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/126/0429-01"
      ]
    },
    {
      "cite": "501 S.E.2d 649",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "pin_cites": [
        {
          "page": "656",
          "parenthetical": "internal quotation marks omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "348 N.C. 537",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1659850
      ],
      "year": 1998,
      "pin_cites": [
        {
          "page": "547",
          "parenthetical": "internal quotation marks omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/348/0537-01"
      ]
    },
    {
      "cite": "290 S.E.2d 653",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "pin_cites": [
        {
          "page": "658"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "305 N.C. 446",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571060
      ],
      "year": 1982,
      "pin_cites": [
        {
          "page": "453"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/305/0446-01"
      ]
    },
    {
      "cite": "523 S.E.2d 729",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1999,
      "pin_cites": [
        {
          "page": "731",
          "parenthetical": "citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "136 N.C. App. 247",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11239177
      ],
      "year": 1999,
      "pin_cites": [
        {
          "page": "249-50",
          "parenthetical": "citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/136/0247-01"
      ]
    },
    {
      "cite": "408 S.E.2d 729",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1991,
      "pin_cites": [
        {
          "page": "731"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "330 N.C. 93",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2510111
      ],
      "year": 1991,
      "pin_cites": [
        {
          "page": "97"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/330/0093-01"
      ]
    },
    {
      "cite": "183 N.C. App. 471",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8204167
      ],
      "year": 2007,
      "pin_cites": [
        {
          "page": "475",
          "parenthetical": "citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/183/0471-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 1192,
    "char_count": 34795,
    "ocr_confidence": 0.746,
    "pagerank": {
      "raw": 1.7532409375623158e-07,
      "percentile": 0.7088332176895256
    },
    "sha256": "e9bdaba90e2ad5e60a2c193e2806f82e93d3ae769e3be51f7554801418260720",
    "simhash": "1:c3adf06872428cf4",
    "word_count": 5509
  },
  "last_updated": "2023-07-14T16:47:52.494477+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges ELMORE and GEER concur."
    ],
    "parties": [
      "DARREN RAY HARTSELL, Plaintiff v. RACHEL KATHERINE HARTSELL, Defendant"
    ],
    "opinions": [
      {
        "text": "ARROWOOD, Judge.\nDarren Hartsell (Plaintiff) appeals from the trial court\u2019s orders awarding alimony in favor of Rachel Hartsell (Defendant), ordering Plaintiff to pay child support, and ordering equitable distribution of marital and divisible property. We affirm in part and remand in part.\nPlaintiff and Defendant were married in 1988 and separated on 23 July 2005. Two children were born of the marriage, sons born in 1991 and 1994. On 17 August 2005 Plaintiff filed a complaint seeking equitable distribution of marital property, and orders determining child custody and child support. September 2005 Defendant filed an answer and counterclaims for child custody and support, alimony and post-separation support, counsel fees, and equitable distribution. In October 2005 Plaintiff filed a reply to Defendant\u2019s counterclaims.\nHearings were conducted on the parties\u2019 claims on 26 and 27 July 2006, and on 25 August 2006. The trial court entered its first orders for child support, alimony, and equitable distribution on 23 January 2007. Following motions by the parties for relief from judgment and amendment of judgment, the trial court on 25 April 2007 entered amended orders for child support, alimony, and equitable distribution. From these orders Plaintiff appeals.\nStandard of Review\nPreliminarily, we note that Plaintiff failed to assign error to the sufficiency of the evidence to support any specific finding of fact. \u201cBecause plaintiff has failed to assign error to any of the trial court\u2019s findings of fact, they are binding on appeal.\u201d Langdon v. Langdon, 183 N.C. App. 471, 475, 644 S.E.2d 600, 603 (2007) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Accordingly, we review the trial court\u2019s orders for abuse of discretion, taking its findings of fact as conclusively established.\nRegarding alimony, we observe that Plaintiff does not dispute Defendant\u2019s entitlement to alimony. \u201cDecisions 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.\u201d 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)). \u201cAn abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.\u201d Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (internal quotation marks omitted).\nRegarding the trial court\u2019s order for child support, we note that in determining issues of child support, the \u201ctrial court may consider the conduct of the parties, the equities of the given case, and any other relevant facts.\u201d Maney v. Maney, 126 N.C. App. 429, 431, 485 S.E.2d 351, 352 (1997) (citations omitted). \u201c \u2018Trial court orders regarding the obligation to pay child support are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.\u2019 \u201d State ex rel. Gillikin v. McGuire, 174 N.C. App. 347, 352, 620 S.E.2d 899, 903 (2005) (quoting Moore Cty. ex rel. Evans v. Brown, 142 N.C. App. 692, 694-95, 543 S.E.2d 529, 531 (2001) (internal quotation marks and citations omitted)).\nOur review of orders for equitable distribution is similarly limited. \u201cIn White v. White, our Supreme Court set forth \u2018the proper standard of review of equitable distribution awards\u2019 as follows:\nHistorically our trial courts have been granted wide discretionary powers concerning domestic law cases. The legislature also clearly intended to vest trial courts with discretion in distributing marital property under N.C.G.S. [\u00a7] 50-20[.] ... It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.\nStone v. Stone, 181 N.C. App. 688, 690, 640 S.E.2d 826, 827-28 (2007) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal quotation marks and citations omitted)).\nPlaintiff first argues that the trial court erred in its order awarding Defendant alimony, on the grounds that the court made \u201cinsufficient findings of fact\u201d to support the award.\nA trial court\u2019s award of alimony is addressed in N.C. Gen. Stat. \u00a7 50-16.3A (2007), which provides in pertinent part that in \u201cdetermining the amount,. duration, and manner of payment of alimony, the court shall consider all relevant factors\u201d including, inter alia, the following: marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the extent to which the earning power, expenses, or financial obligations of a spouse are affected by the spouse\u2019s serving as custodian of a minor child; the standard of living of the spouses during the marriage; the assets, liabilities, and debt service requirements of-the spouses, including legal obligations of support; and the relative needs of the spouses.\nIn finding of fact twenty-four (24) the trial court states that it considered the statutory factors, including those listed above. However, Plaintiff argues that the court\u2019s other findings of fact are insufficient to demonstrate the court\u2019s attention to these factors. We disagree, and note that the findings of fact include, in pertinent part, the following:\n(3) The parties hereto were married ... October 8, 1988,... and separated on July 23, 2005.\n(4) Two (2) children were born of the marriage of the parties . . . [in] 1991, and. . . 1994.\n(5) The named minor children . . . have been in the primary physical custody of the defendant since the separation of the parties. The plaintiff is 39 years old and the defendant is 36 years old. The plaintiff has a high school education and the defendant has a college degree.\n(8) The plaintiff is presently employed as a teacher with the Cabarrus County Schools, having commenced that employment after the separation of the parties. The plaintiff earned a gross monthly income from teaching during the 2005-2006 school year of $3,890.00 per month ... for ten months of the year[, and]... an annual teacher\u2019s supplement of $972.00 for the 2005-2006 school year. In the 2006-2007 school year, the plaintiff will earn a gross monthly income of $4,174.00 per month for ten months.\n(9)Prior to August 2005, the plaintiff had been self-employed as a masonry and grading contractor. The plaintiff sold the masonry business in 2004, but continued to operate the grading business. For several years prior to 2005, the parties had contemplated the plaintiff pursuing a career in teaching. In 2005, prior to the separation, . . . [the parties] discussed, planned and agreed . . . [that] plaintiff would teach while continuing to operate his grading business[.] . . . [P]laintiff represented to Defendant . . . that he could earn $30,000.00 to $50,000.00 per year in addition to his teaching income. . . .\n(10) The plaintiff testified he \u201cdid not have a clue how much money he made from the grading business in 2004.\u201d The income tax return of the parties for 2003 showed wages for the plaintiff from his business of approximately $32,150.00 (see Defendant\u2019s 1 from ED trial) and other profit income of $43,073.00. The profit income was reduced from approximately $66,000.00 by the election of T79 expenses\u2019 (depreciation) of $23,500.00. The masonry business was closed in 2004. It is unclear what percentage was from the masonry business and what percentage was from the grading business.\n(11) Neither the business nor the personal income tax returns for 2004 or 2005 were proffered to the Court. The bank account records of the masonry business from January 2004 through August 2005 show total deposits of $403,718.58 (see Defendant\u2019s 10). Payments to or for the benefit of the plaintiff from the masonry business account for the period from April 2004 through August 2005 were $71,727.82. The plaintiff also paid many personal expenses from the business account including health, airplane and car insurance, cell phones, gasoline for the parties, automobile repairs, and property taxes. Both parties benefitted from these payments.\n(12) The plaintiff had income from the grading business from the date of separation through December 31, 2005 of $39,389.33 (Defendant\u2019s 7). The business income included the sale of a truck for $12,000.00. The remaining income of $27,389.33 came from the operation of the grading business by the plaintiff while he was employed full-time as a teacher. The average monthly income for this period of five months and eight days was $5,217.02. From this income the plaintiff paid living expenses, some finances to defendant, and reduced the monthly debt of the parties. The expenses that the Court attributes to the business during this period are $13,241.63 or $2,522.22 per month. The net monthly income of the grading business during this period, after expenses, was $2,694.80.\n(13) Through July 2006 the plaintiff earned $13,847.00 in income from the grading business. Despite the availability of the plaintiff during the summer months when school is closed, the plaintiff has earned only $4,210.00 in June and July of 2006.\n(14) Sammy Flowe of S.J. Flowe Grading Company who has worked with Plaintiff in the past, testified that grading work is available and that the 643 Caterpillar loader owned by the plaintiff has a- rental value of $5,000.00 to $6,000.00 per month. He also testified that the loader could be operated by an employee and earn a net monthly income after expenses of $3,000.00 per month. The truck owned by the plaintiff would also have rental and income value. However, income from this source would be highly speculative.\n(15) The plaintiff is capable of earning income with the grading business and has demonstrated that ability. The income of $2,694.80 per month earned by the grading business in the last five months of 2005 is representative of the earning capacity of the plaintiff in that business while continuing his employment as a teacher. The Court finds that Plaintiff has the present ability and capacity to earn at least $2500.00 per month from the grading business based upon his past income. The total monthly gross income of the plaintiff from his employment as a teacher for twelve months and from the operation of the grading business was $5741.00 prior to August 2005 and $5978.00 after August 2005.\n(16) The plaintiff filed a financial affidavit with the Court at the time of the filing of the Complaint. The plaintiff, however, . . . presently does not have any expense for rent or electricity. Plaintiff has made efforts to reduce his living expenses in order to pay on the parties\u2019 marital debt and has been paying one-half of the mortgage payment since February 2006. It is reasonable to find that Plaintiff will have some expense for housing. The income and expense records indicate the plaintiff is paying approximately $300.00 per month for credit card accounts. The gasoline, insurance and repairs for his vehicle have been paid through the business. The plaintiff offered no other evidence as to his expenses at the hearing of this matter. From the affidavit of the plaintiff and the evidence presented by the plaintiff, the Court finds the plaintiff\u2019s reasonable monthly expenses, to be as follows:\nFood: $250.00; Clothing: 100.00; Telephone 50.00; Medical: 25.00; Education: 75.00; Grooming: 20.00; Recreation and Entertainment: 100.00; Laundry: 25.00; Life Insurance: 175.00; Credit Cards: 300.00; Rent: 500.00; Gifts: 25.00; Electricity: 100.00; Total: $1,745.00\nThe Plaintiff testified that he had always paid many living expenses through the grading business and the records reflect such, thus the Court will not consider expenses already paid through the business.\n(17) That from the date of separation through January 2006 the plaintiff paid the following sums to the defendant: . . . Total $ 13,151.03\n(18) Beginning in February 2006 the plaintiff paid to the defendant the sum of $450.00 per month as support for the minor children and $1,163.00 per month representing one-half of the mortgage payment and escrows for the former marital residence.\n(19) The defendant is employed as a teacher[,and has] . . . national teacher certification for which she receives additional income[.] . . . The gross monthly income of the defendant for ten months in 2005-2006 was $4,214.00. The net income of the defendant is $2,784.82 for. ten months which for twelve months is $3,511.66 gross and $2,321.00 \u2022 net. Defendant\u2019s gross pay for 2006-2007 will be $4,425.00 per month for ten months.\n(20) The defendant has filed an affidavit with the Court and testified as to the expenses contained in the affidavit. The reasonably] monthly expenses for the defendant to maintain the lifestyle to which she had become accustomed are as follows:\nHouse payment: 2,326.00; Electricity: 300.00; Heat: 25.00; Water: 40.00; Cable TV: 100.00; Telephone: 100.00; House Maintenance: 100.00; Gasoline: 300.00; Car repairs: 50.00; Car insurance: 84.00; Groceries: 150.00; Religious contributions: 200.00; Medical expenses: 25.00; Clothing: 75.00; Grooming: 40.00; Laundry: 20.00; Entertainment: 100.00; Christmas Gifts: 100.00; Subscriptions: 10.00; Life Insurance: 45.00; Car registration/other: 10.00; Vacations: 100.00; Pets: 30.00; Alarm system: 20.00;\nTotal: $ 4,350.00\n(21) During the marriage of the parties, the parties enjoyed a comfortable lifestyle, but lived beyond their means. The parties frequently traveled to the beach. The defendant resided in a large home with the plaintiff and the children. The home was located near the defendant\u2019s parents. The minor children participated in many activities, in school, the community, and the church. The parties kept a standard of living much higher than they could afford.\n(22) The plaintiff committed acts of marital misconduct, including illicit sexual behavior during the marriage and prior to the separation of the parties.\n(23) The defendant is a dependent spouse in that she is substantially in need of maintenance and support from the other spouse.\n(25) Considering the factors listed above, the plaintiff is the supporting spouse, and has the means and ability to contribute the amount of $650.00 to the maintenance and support of the defendant.\n(26) The minor children are covered by health insurance provided by the plaintiff through his employment at a monthly cost of $240.22.\n(27) The child support obligation for the plaintiff to the defendant based upon the 2002 Child Support Guidelines, the guidelines in place at the time of the hearing, would be $773.00 per month.\n(28) The plaintiff has the means and ability to pay child support in accordance with the North Carolina Child Support Guidelines.\n(29) That from August 2005 to February 2006 the plaintiff paid to the defendant the sum of $2,000.00 each month, designated as \u2018mortgage/child support\u2019, except during August 2005, when $2,300.00 was paid. The Court is unable to determine any arrearage in child support during this period. From February 2006 to present the plaintiff paid the defendant child, support of $450.00 per month. The plaintiff has accrued an arrearage from February 1, 2006 through January, 2007 of $323.00 per month for a total of $3,876.00.\nAs discussed above, the trial court\u2019s findings of fact are conclusively established on appeal. Findings of fact three (3), four (4), and five (5) address the duration of the marriage, the status of their minor children, and the parties\u2019 ages and education levels. The parties\u2019 relative incomes and earning capacities are set out in findings of fact eight (8) through fifteen (15), and in finding of fact nineteen (19). Their expenses, debts, financial obligations, and Plaintiff\u2019s payments to Defendant are discussed in findings of fact sixteen (16) through eighteen (18) and in findings of fact twenty (20), twenty-six (26), and twenty-nine (29). Their standard of living is detailed in finding of fact twenty-one (21). Marital misconduct is addressed in finding of fact twenty-two (22). We conclude that the trial court\u2019s findings of fact were more than sufficient to demonstrate the court\u2019s consideration of the statutory factors.\nWe have considered and rejected Plaintiff\u2019s arguments to the contrary. For example, Plaintiff argues that the trial court erred in its calculation of the parties\u2019 expenses, on the grounds that the court improperly adopted \u201cwholesale\u201d the expenses Defendant listed in her affidavit, but made changes to the expenses in Plaintiff\u2019s affidavit \u201cwithout explanation, justification or reason.\u201d Findings of fact sixteen (16) through eighteen (18) do articulate the trial court\u2019s reasoning in its calculation of Plaintiff\u2019s expenses. Moreover, the trial court is not required to make findings about the weight and credibility it assigns to the evidence before it. \u201cWhere trial is by judge and not by jury,... [the] trial judge acts as both judge and jury and considers and weighs all the competent evidence before him. If different inferences may be drawn from the evidence, the trial judge determines which inferences shall be drawn and which shall be rejected. . . . The logic behind this approach is clear. In this setting, the trial judge is better able than we at the appellate level to gauge the comportment of the parties throughout trial and to discern the sincerity of their responses to difficult questions.\u201d In re Estate of Trogdon, 330 N.C. 143, 147-48, 409 S.E.2d 897, 900 (1991) (citation omitted).\nSimilarly unavailing is Plaintiff\u2019s claim that the trial court \u201cmade no specific findings\u201d about the parties\u2019 standard of living. Finding of fact twenty-one (21) includes detailed references to features of the parties\u2019 lifestyle. Plaintiff also asserts that the court\u2019s findings fail to consider any reduction of Defendant\u2019s expenses in order to \u201ckeep the parties living within their means.\u201d In finding of fact twenty (20) the court enumerates Defendant\u2019s living expenses in detail. We conclude that the listed expenses represent a modest lifestyle, and that the court did not abuse its discretion in calculating Defendant\u2019s living expenses. The Plaintiff also makes a generalized assertion that the trial court inadequately addresses the assets, liabilities, or required contributions to debt distributed in the Amended Order for equitable distribution. However, Plaintiff fails to identify any specific pertinent assets, liabilities, or debts that the court erred by failing to discuss.\nThe Plaintiff next contends that the court erred by failing to justify its decisions about the amount and duration of its award of alimony. N.C. Gen. Stat. \u00a7 50-16.3A(b) (2007) directs that the court \u201cshall 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.\u201d Decisions about the amount and duration of alimony are made in the trial court\u2019s discretion, and the court is not required to make findings about the weight and credibility it assigned to evidence before it. See Ingle v. Ingle, 42 N.C. App. 365, 368, 256 S.E.2d 532, 534 (1979). However, based upon this Court\u2019s decisions in Williamson v. Williamson, 140 N.C. App. 362, 536 S.E.2d 337 (2000), Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003), and Squires v. Squires, 178 N.C. App. 251, 631 S.E.2d 156 (2006), we must remand to the trial court for further findings of fact regarding the amount and duration of alimony.\nIn Williamson, the Court first pointed out that \u201cN.C. Gen. Stat. \u00a7 50-16.3A(c) (1995) requires the trial court, in making an alimony award, to set forth \u2018the reasons for its amount, duration, and manner of payment.\u2019\" Id. at 365, 536 S.E.2d at 339. The Court remanded to the trial court for further findings because its alimony order \u201cfailed to provide any reasoning for the $1,500.00 monthly amount, why the award was permanent, or why it would be paid directly to the Union County Clerk of Court.\u201d Id.\nIn Fitzgerald, this Court specifically held: \u201c[T]he trial court is also required to set forth the reasons for the amount of the alimony award, its duration, and manner of payment.\u201d 161 N.C. App. at 421, 588 S.E.2d at 522. The Court then pointed out that \u201c[t]he trial court, however, did not make required findings as to the reasons for making the duration of the alimony continuous until defendant dies, remarries, or cohabits, and why it is to be paid directly to the Clerk of Superior Court.\u201d Id. As a result, the Court held, citing Williamson as controlling precedent, that it was bound \u201cto remand the alimony portion of the order to the trial court to make further findings of fact explaining its reasoning for the duration of the alimony award and its manner of payment.\u201d Id. at 422, 588 S.E.2d at 523.\nSimilarly, in Squires, the trial court had ordered alimony to \u201ccontinue until the death of one of the parties, or plaintiff\u2019s remarriage or cohabitation, but failed to make any finding about the reasons for this duration.\u201d 178 N.C. App. at 264, 631 S.E.2d at 163. This Court \u201cremandfed] for further findings of fact concerning the duration of the alimony award.\u201d Id.\nHere, the trial court in almost identical fashion ordered the payment of alimony in the amount of $650.00 per month \u201cuntil the death or remarriage of the defendant.\u201d With respect to the $650.00, the trial court made only a finding that plaintiff had the ability to pay that amount, but provided no explanation as to why it had concluded that defendant was entitled to that specific amount. Further, the trial court included no findings of fact at all to explain its rationale for the duration of the award. Accordingly, Williamson, Fitzgerald, and Squires mandate that we remand for further findings of fact regarding the basis for the amount and duration of the alimony award.\nPlaintiff next argues that the trial court\u2019s order for child support improperly \u201cimputed income to the Plaintiff\u2019 without the required findings of fact. We disagree.\nUnder N.C. Gen. Stat. \u00a7 50-13.4(c) (2007), the trial court \u201cshall determine the amount of child support payments by applying the presumptive guidelines\u201d in the North Carolina Child Support Guidelines (the guidelines), which define income as \u201ca parent\u2019s actual gross income from any source, including but not limited to income from employment or self-employment[.]\u201d \u201cOrdinarily, gross income for self-employed individuals is determined under the North Carolina Child Support Guidelines, AOC-A-162, Rev. 10/02, as \u2018gross receipts minus ordinary and necessary expenses required for self-employment[.]\u2019 \u201d Ford v. Wright, 170 N.C. App. 89, 99, 611 S.E.2d 456, 462 (2005).\n\u201cIt is well established that child support obligations are ordinarily determined by a party\u2019s actual income at the time the order is made or modified.\u201d Ellis v. Ellis, 126 N.C. App. 362, 364, 485 S.E.2d 82, 83 (1997) (citation omitted). \u201cCapacity to earn, however, may be the basis of an award if it is based upon a proper finding that the husband is deliberately depressing his income or indulging himself in excessive spending because of a disregard of his marital obligation to provide reasonable support for his wife and children.\u201d Beall v. Beall, 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976). Thus, \u201ca showing of bad faith income depression by the parent is a mandatory prerequisite for imputing income to that parent.\u201d Sharpe v. Nobles, 127 N.C. App. 705, 706, 493 S.E.2d 288, 289 (1997).\nIn the instant case, the unchallenged findings of fact establish the following regarding Plaintiff\u2019s income:\n1. Prior to the parties\u2019 separation, Plaintiff earned income as a self-employed masonry and grading contractor. In 2004 Plaintiff closed the masonry part of his business. After the parties separated, Plaintiff continued to earn income as a self-employed grading contractor.\n2. For several years before their separation, the parties planned for Plaintiff to take a second job as a high school teacher, while continuing to operate the grading business part time.\n3. After the parties separated Plaintiff began working as a high school teacher.\n4. After Plaintiff started teaching school, he continued to operate his grading business. At the time of the hearing, he was employed as a teacher, and also earning income from the grading business. Plaintiff paid many personal expenses from his business account.\n5. Employment was available in the grading business at the time of the hearing.\n6. Plaintiff failed to provide income tax returns for 2004 or 2005.\nIn addition, the court\u2019s findings state the dollar amounts of the following: Plaintiff\u2019s teaching salary for the pertinent calendar years; the amount Plaintiff represented that he could earn as a full time teacher and part-time grading contractor; the amount deposited into Plaintiff\u2019s business account before and after the parties\u2019 separation; and the amount of Plaintiff\u2019s income from the grading business during the twelve months after the parties separated, while Plaintiff was also teaching school full time. These figures show that during the first year after the parties separated, Plaintiff\u2019s income from the grading business was approximately $39,400 including the sale of a truck for $12,000, or $27,400 excluding the truck sale, yielding an average monthly income of $3,280 including the truck sale or $2,280 if it is excluded.\nRegarding income earned by Plaintiff from the sale of a truck from his grading business, Plaintiff does not argue that this should be excluded from his income, and case law suggests that the trial court could properly consider it. In Burnett v. Wheeler, 128 N.C. App. 174, 493 S.E.2d 804 (1997), the appellant argued that the trial court had improperly imputed income to him. This Court held:\nJudge Foster did not \u2018impute\u2019 an income of $77,000 to defendant. . . . When setting child support and determining the defendant\u2019s gross income, it is appropriate to consider all sources of income along with the defendant\u2019s earning capacity. See North Carolina Child Support Guidelines. The trial court found . . . defendant had retirement accounts which totaled $722,384 and . . . stocks and land valued at $60,000 and $74,000, respectively. . . . [T]he trial court did not abuse its discretion in considering all of defendant\u2019s available sources of income in arriving at his gross income. We find that the trial court did not impute an income to defendant^]\nBurnett, 128 N.C. App. at 177, 493 S.E.2d at 806.\nNor does the trial court\u2019s mere use of the phrases \u201cearning capacity\u201d or \u201cpast income\u201d automatically transform the order into one that \u201cimputes\u201d income to Plaintiff. In the instant case, the court\u2019s findings of fact expressly calculate Plaintiff\u2019s income on the basis of his present earnings, and not by imputing hypothetical earnings to an unemployed or underemployed parent. Finding of fact fifteen (15) might best be read as stating that \u201cPlaintiff has the present ability and capacity to [continue tol earn at least $2,500.00 per month from the grading business[.]\u201d See, e.g., Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25 (2006) (trial court did not \u201cimpute\u201d income to appellant when it averaged his 2001 and 2002 to determine his 2003 income).\nWe conclude that the trial court\u2019s determination that Plaintiff could continue to earn at least $2,500 a month from the grading business, was reasonably based on its findings of fact regarding Plaintiff\u2019s actual earnings during the year prior to the hearing. We have considered and rejected Plaintiff\u2019s arguments to the contrary.\nPlaintiff asserts that the court\u2019s findings about Plaintiff\u2019s income from the grading business \u201cfailed to include the fact that plaintiff\u2019s full-time job responsibilities had changed, that plaintiff\u2019s previous income was based upon his having a crew of full-time workers in addition to himself, and that there may be periods when work was unavailable to him.\u201d We disagree, and note that findings of fact twelve (12) through fourteen (14) specifically address the amount Plaintiff earned working alone while also teaching, and discuss the availability of work.\nPlaintiff also argues that \u201cin finding of fact #14 [the court] stated that the testimony about the income from the grading business \u2018would be highly speculative.\u2019 \u201d This contention, that the court found that income \u201cfrom the grading business\u201d to be \u201chighly speculative\u201d mischaracterizes the trial court\u2019s finding. The only potential income source that the trial court found speculative was the income Plaintiff might earn by renting a truck, which the court did not include in its calculation of Plaintiff\u2019s income.\nGlass v. Glass, 131 N.C. App. 784, 509 S.E.2d 236 (1998) cited by Plaintiff, is easily distinguished from the instant case. In Glass, the Defendant produced evidence of a decrease in income caused by circumstances beyond his control. Notwithstanding this evidence, and without any factual basis, the trial court found that Defendant would have increased income in the future. In contrast, the trial court herein based its conclusions on detailed findings of fact on Defendant\u2019s actual income. This assignment of error is overruled.\nThe Plaintiff also argues that the trial court erred by entering an order for equitable distribution that distributed the parties\u2019 marital property unequally, on the grounds that the order was \u201cnot supported by adequate findings of fact or appropriate consideration of the statutory distributional factors.\u201d We disagree.\nPlaintiff identifies only one distributional factor that he contends was handled improperly by the trial court \u2014 the specific dollar amount of the 2004 tax liability that the court distributed to Plaintiff. However, in finding of fact twenty-seven (27) the court addressed this issue in detail, and explained that because Plaintiff had presented conflicting evidence on this issue, the court was unable to assign an exact dollar amount to the liability. This assignment of error is overruled.\nWe have considered Plaintiff\u2019s other arguments and conclude they are without merit. For the reasons discussed above, the trial court\u2019s orders for alimony, child support, and equitable distribution are\nAffirmed in part and Remanded in part.\nJudges ELMORE and GEER concur.\n. The current version of the statute is identical.",
        "type": "majority",
        "author": "ARROWOOD, Judge."
      }
    ],
    "attorneys": [
      "Hartsell & Williams, P.A., by Christy E. Wilhelm, for Plaintiff-Appellant.",
      "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene, and Tobias S. Hampson, for Defendant-Appellee."
    ],
    "corrections": "",
    "head_matter": "DARREN RAY HARTSELL, Plaintiff v. RACHEL KATHERINE HARTSELL, Defendant\nNo. COA07-884\n(Filed 4 March 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error to sufficiency of evidence\nThe trial court\u2019s order in an alimony, child support, and equitable distribution case is reviewed for abuse of discretion taking its findings of fact as conclusively established, because plaintiff failed to assign error to the sufficiency of the evidence to support any specific finding of fact.\n2. Divorce\u2014 alimony \u2014 sufficiency of findings \u2014 additional findings required for amount and duration\nThe trial court did not err by awarding alimony to defendant even though plaintiff contends there was insufficient findings of fact because: (1) finding's of fact 3, 4, and 5 address the duration of the marriage, the status of their minor children, and the parties\u2019 ages and education levels; (2) findings 8 through 15 and 19 discuss the parties\u2019 relative incomes and earning capacities; (3) findings 16 through 18, 20, 26, and 29 address the parties\u2019 expenses, debts, financial obligations, and plaintiff\u2019s payments to defendant; (4) finding 21 addresses the parties\u2019 standard of living; (5) finding 22 addresses marital misconduct; (6) contrary to plaintiff\u2019s contention, findings 16 through 18 articulate the trial court\u2019s reasoning in calculating plaintiff\u2019s expenses, and the trial court is not required to make findings about the weight and credibility it assigns to the evidence before it; (7) contrary to plaintiff\u2019s claim, finding 21 included detailed references to features of the parties\u2019 lifestyle; and (8) plaintiff failed to identify any specific pertinent assets, liabilities, or debts that the court erred by failing to discuss. However, the case is remanded for further findings of fact regarding the amount and duration of alimony since the trial court provided no explanation as to why it had concluded that defendant was entitled to $650 per month, nor did it provide any explanation as to its rational for the duration of the award to be until the death or remarriage of defendant.\n3. Child Support, Custody, and Visitation\u2014 support \u2014 imputing income\nThe trial court did not improperly impute income to plaintiff in a child support order without the required findings of fact because: (1) the court\u2019s findings of fact expressly calculated plaintiff\u2019s income on the basis of his present earnings and not by imputing hypothetical earnings to an unemployed or underemployed parent; (2) the trial court\u2019s determination that plaintiff could continue to earn at least $2,500 a month from the grading business was reasonably based on its findings of fact regarding plaintiff\u2019s actual earnings during the year prior to the hearing; (3) findings of fact 12 through 14 specifically address the amount plaintiff earned working alone while also teaching, and discussed the availability of work; and (4) contrary to plaintiff\u2019s assertion that in finding 14 the trial court stated the testimony about the income from the grading business would be highly speculative, the only potential income source the trial court found speculative was the income plaintiff might earn by renting a truck, which the court did not include in its calculation of plaintiff\u2019s income.\n4. Divorce\u2014 equitable distribution \u2014 distributional factor\u2014 conflicting evidence of tax liability\nThe trial court did not err by entering an equitable distribution order that distributed the parties\u2019 marital property unequally, because: (1) plaintiff identified only one distributional factor that he contended was mishandled by the trial court, which was the specific dollar amount of the 2004 tax liability that the court distributed to plaintiff; and (2) the trial court addressed this issue in detail in finding of fact 27 and explained that the court was unable to assign an exact dollar amount to the liability since plaintiff had presented conflicting evidence on this issue.\nAppeal by Plaintiff from judgments entered 25 April 2007 by Judge Michael G. Knox in Cabarrus County District Court. Heard in Court of Appeals 16 January 2008.\nHartsell & Williams, P.A., by Christy E. Wilhelm, for Plaintiff-Appellant.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene, and Tobias S. Hampson, for Defendant-Appellee."
  },
  "file_name": "0065-01",
  "first_page_order": 97,
  "last_page_order": 112
}