{ "id": 4158669, "name": "DEBORAH DODSON, Plaintiff v. DAVID DODSON, Defendant", "name_abbreviation": "Dodson v. Dodson", "decision_date": "2008-05-06", "docket_number": "No. COA06-969-2", "first_page": "412", "last_page": "419", "citations": [ { "type": "official", "cite": "190 N.C. App. 412" } ], "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": "462 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916078 ], "year": 1995, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0412-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "228 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "413" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "290 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564393 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "679" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0669-01" ] }, { "cite": "377 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "801-02" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528031 ], "year": 1989, "pin_cites": [ { "page": "326-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0323-01" ] }, { "cite": "287 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567141 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0177-01" ] }, { "cite": "280 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170658 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0646-01" ] }, { "cite": "294 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "776" }, { "page": "778" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526256 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "781" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0778-01" ] }, { "cite": "148 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "267 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559378 ], "year": 1966, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0378-01" ] }, { "cite": "271 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "926", "parenthetical": "citations omitted" }, { "page": "928" }, { "page": "928" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522220 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "470", "parenthetical": "citations omitted" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0463-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "346 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358742 ], "year": 1986, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0289-01" ] }, { "cite": "393 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "573", "parenthetical": "quoting Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986)" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523187 ], "year": 1990, "pin_cites": [ { "page": "385", "parenthetical": "quoting Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0380-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "658" }, { "page": "661", "parenthetical": "\"A spouse cannot be reduced to poverty in order to comply with an alimony decree.\"" }, { "page": "658" }, { "page": "661" } ], "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "453" }, { "page": "457" }, { "page": "457" } ], "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" ] } ], "analysis": { "cardinality": 687, "char_count": 16603, "ocr_confidence": 0.726, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.3004451224762525 }, "sha256": "662c727d55f4339d7b45f78d7c88025f879f6557bf2b4b4f19e8172642646986", "simhash": "1:8728542e324685f7", "word_count": 2626 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "DEBORAH DODSON, Plaintiff v. DAVID DODSON, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nThis matter was previously heard and a decision was rendered by this Court on 8 May 2007. Pursuant to Rule 31 of the North Carolina Rules of Appellate Procedure, this Court granted defendant\u2019s petition for rehearing and subsequently obtained a complete transcript of the trial court proceedings. The issue for this Court is whether the trial court erred in calculating the correct .amount of David Dodson\u2019s (\u201cdefendant\u201d) alimony liability when the court modified the alimony order.\nDeborah Dodson (\u201cplaintiff\u2019) and defendant (collectively, \u201cthe parties\u201d) were married on 8 October 1977 and separated on 28 January 2002. Prior to the parties\u2019 divorce on 30 April 2004, plaintiff filed a complaint requesting post separation support, alimony, and attorney\u2019s fees. The parties entered into an arbitration agreement regarding alimony, equitable distribution, and attorney\u2019s fees. At the time of the arbitration hearing on 10 May 2004, two of the parties\u2019 three children had reached the age of majority, and two of them lived with the plaintiff. One of the children living with the plaintiff was home-schooled at the age of eighteen and the other child was the parties\u2019 minor child with severe medical conditions requiring supervision.\nSince plaintiff was unemployed at the time of the arbitration, the arbitrator imputed plaintiff\u2019s income at the rate of $6.00 per hour for thirty hours a week and determined plaintiff\u2019s reasonable and necessary living expenses were approximately $2,330.00 per month. The arbitrator further determined that defendant had the ability to pay alimony in the amount of $2,200.00 per month based on his salary and monthly expenses. On 4 June 2004, the arbitrator ordered defendant to pay alimony in the amount of $2,200.00 per month for ten years as well as attorney\u2019s fees in the amount of $5,739.99. On 16 July 2004, the trial court confirmed the arbitrator\u2019s decision regarding the amount and the duration of the alimony and awarded attorney\u2019s fees.\nOn 17 August 2004, defendant filed motions for tax exemptions and a modification of the alimony award, alleging a change in circumstances. The circumstances included, inter alia, the children were no longer minors, plaintiff\u2019s monthly income was actually higher, and defendant\u2019s income was substantially lower than the amounts the arbitrator had determined.\nOn 12 August 2005, the trial court denied the motion requesting dependency tax exemptions for the 2003 and 2004 tax years because all three children had reached the age of majority and the defendant\u2019s child support obligation had terminated. On that same date, the trial court granted defendant\u2019s motion to modify alimony due to his reduction in income. His monthly alimony payments were modified from $2,200.00 per month to $1,826.00 per month.\nOn 22 August 2005, defendant filed a motion to reconsider the 12 August 2005 order modifying alimony. On 10 February 2006, the trial court denied most of defendant\u2019s requests and preserved the amount of alimony from the previous alimony order in the amount of $1,826.00 per month. From the 12 August 2005 order, defendant appeals.\nDefendant contends that the trial court erred by (I) failing to consider plaintiff\u2019s increased income; (II) incorrectly calculating defendant\u2019s income; and (III) increasing the amount of plaintiff\u2019s fixed household expenses when modifying defendant\u2019s alimony obligation.\nI. Standard of Review\n\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)). The review of the trial court\u2019s findings are limited to \u201cwhether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.\u201d Hartsell v. Hartsell, 99 N.C. App. 380, 385, 393 S.E.2d 570, 573 (1990) (quoting Adkins v. Adkins, 82 N.C. App. 289, 292, 346 S.E.2d 220, 222 (1986)).\nPursuant to N.C. Gen. Stat. \u00a7 50-16.9 (2005), an award of alimony may be modified upon a showing of changed circumstances. Our case law interpreting N.C. Gen. Stat. \u00a7 50-16.9 reveals:\nit is apparent that not any change of circumstances will be sufficient to order modification of an alimony award; rather, the phrase is used as a term of art to mean a substantial change in conditions, upon which the moving party bears the burden of proving that the present award is either inadequate or unduly burdensome.\nBritt v. Britt, 49 N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (citations omitted).\nII. Plaintiff\u2019s Increased Income\nDefendant argues the trial court failed to consider the increase in plaintiff\u2019s income at the modification hearing when defendant\u2019s alimony obligation was modified. We agree.\nThe trial court must consider the income that the dependent spouse generates in assessing whether and to what extent to modify the alimony payments. Sayland v. Sayland, 267 N.C. 378, 382, 148 S.E.2d 218, 222 (1966). When a determination is made that there has been a change in circumstances that mandates a modification of alimony, the trial court should consider all factors which were relevant to the original determination of the alimony amount. Broughton v. Broughton, 58 N.C. App. 778, 781, 294 S.E.2d 772, 776 (1982). However, it is error to modify alimony based on only one factor, such as a change in a party\u2019s income. Id. at 474, 271 S.E.2d at 928. Rather, \u201c[t]he present overall circumstances of the parties must be compared with the circumstances existing at the time of the original award in order to determine if there has been a substantial change.\u201d Id. Our Supreme Court previously determined that it was error for a trial court to modify an alimony award based solely on a change in the parties\u2019 earnings and held:\nA modification should be founded upon a change in the overall circumstances of the parties. A change in income alone says nothing about the total circumstances of a party. The significant inquiry is how that change in income affects a supporting spouse\u2019s ability to pay or a dependent spouse\u2019s need for support. The trial court should have considered the ratio of defendant\u2019s earnings to the funds necessary to maintain her accustomed standard of living.\nRowe v. Rowe, 52 N.C. App. 646, 655, 280 S.E.2d 182, 187 (1981), aff\u2019d in part, rev. in part and remanded, 305 N.C. 177, 287 S.E.2d 840 (1982); see also Self v. Self, 93 N.C. App. 323, 326-27, 377 S.E.2d 800, 801-02 (1989). In addition, \u201cthe question of alimony ... is a question of fairness to all the parties.\u201d Beall v. Beall, 290 N.C. 669, 679, 228 S.E.2d 407, 413 (1976).\nIn the instant case, the uncontradicted evidence shows that plaintiff\u2019s income increased from an imputed net income of $600.00 to an actual net income of $1,725.28 per month. While the trial court correctly found that plaintiff\u2019s income increased, the trial court failed to consider all factors surrounding the increase in plaintiff\u2019s income, such as how her change in income affects her \u201cneed for support\u201d when determining the modified alimony payment. Rowe, 52 N.C. App. at 655, 280 S.E.2d at 187. Therefore, we conclude the trial court\u2019s failure to make findings of fact regarding plaintiff\u2019s reasonable current financial needs and expenses and the ratio of those needs and expenses to her income constituted error.\nIII. The Calculation of Defendant\u2019s Income\nDefendant next argues that the trial court\u2019s calculation of his annual income as $53,910.00 was error. We agree.\nAt the 12 August 2005 hearing, the court reviewed a pay stub dated 15 April 2005 and found that defendant\u2019s annual income was 17 percent less than at the time of the prior order. The court divided the year-to-date earnings ($15,508.36) from that pay stub by 105 days then annualized that amount to reach $53,910.00. However, this pay stub included an annual bonus ($1,428.59) that, when annualized, falsely inflated defendant\u2019s income. Additionally, the year-to-date earnings shown on the pay stub reflected earnings through 22 April 2005, making it proper to divide the year-to-date amount by 112, rather than 105, before annualizing to reach an annual income. Calculated correctly plaintiff\u2019s yearly income would be $47,312.38 ((($15,508.36 \u2014 $1,428.59) / 112 * 365) + $1,428.59). This calculation shows a decrease in defendant\u2019s income not by 17 percent, but by at least 27 percent.\nTherefore, defendant\u2019s net monthly income is $3,371.00, rather than $3,841.08, the amount the trial court calculated as his monthly income in the August 2005 order. The arbitrator determined defendant\u2019s reasonable and necessary living expenses were approximately $2,300.00 per month. Thus, after deducting, defendant\u2019s $1,826.00 monthly alimony payment from his net monthly income, defendant is left with a negative balance. Alimony payments cannot reduce the supporting spouse to poverty. See Quick, 305 N.C. at 457, 290 S.E.2d at 661 (\u201cA spouse cannot be reduced to poverty in order to comply with an alimony decree.\u201d). Since it appears from the record that defendant\u2019s current salary is insufficient to pay his reasonable monthly expenses in addition to his alimony payments, we conclude the trial court abused its discretion in the alimony award.\nIV. Plaintiff\u2019s Fixed Household Expenses\nDefendant next argues that the trial court incorrectly found that plaintiff\u2019s fixed expenses increased by $630.50. We agree.\nThe trial court appears to have calculated $630.50 by determining the difference between plaintiff\u2019s present rent and her one-half mortgage payment on the marital home. Defendant correctly contends that absent further findings, this calculation is not supported by competent evidence.\nIt is well established that, as much as possible, alimony should allow the dependent spouse to maintain his or her accustomed standard of living that was attained during the marriage. Id. at 453, 290 S.E.2d at 658. However, in the instant case, the trial court failed to make findings concerning the parties\u2019 standard of living at the latter half of their marriage, plaintiff\u2019s present standard of living, whether the cost of rent in South Carolina was anticipated and included in the arbitrator\u2019s initial award of alimony, and whether the contributions of others should be accounted for when determining plaintiff\u2019s reasonable monthly expenses. Prior to their separation and divorce, the parties lived in a manufactured home. It is unclear from the record whether the three-bedroom house in which plaintiff currently resides increases plaintiff\u2019s standard of living: If so, the burden of this higher standard of living should not be borne by the defendant. Id.\nAdditionally, the trial court\u2019s findings appear to indicate that the arbitrator only allocated one-half of the mortgage payment towards plaintiff\u2019s reasonable monthly expenses. The evidence indicates that rental values in North Carolina and South Carolina were presented to the arbitrator when alimony was initially determined. Further, the arbitrator ordered the sale of the marital home, therefore he anticipated that both parties would reside elsewhere. Presumably with this in mind, he did not calculate their mortgage payment as a housing cost going forward when determining their monthly expenses.\nFinally, the trial court erred by not making findings concerning the additional support plaintiff receives in meeting her monthly expenses. When determining the amount and duration of alimony, the court, when relevant, shall consider the contribution of others to assess a dependent spouse\u2019s financial need. N.C. Gen. Stat. \u00a7 50-16.3A (2005). Our case law reveals that in order for third-party income to substantially contribute to a dependent spouse\u2019s income, the additional income must be reliable, Fink v. Fink, 120 N.C. App. 412, 426, 462 S.E.2d 844, 854 (1995), and the income must be used for household support. Broughton, 58 N.C. App. at 786, 294 S.E.2d at 778. In this case, the contributions by the parties\u2019 adult children may meet those requirements, though it is unclear what amount each child used for his or her own needs, and what amount was used to supplement plaintiffs needs. This also hinges on a determination of the change in standard of living. If the court determines that the dependent spouse has raised her standard of living, these contributions by the adult children may be a means of supporting that increase.\nTherefore, after a careful review of the record and transcript, we conclude there is no competent evidence to support the trial court\u2019s finding of fact that plaintiff\u2019s fixed household expenses have increased by $630.50 based upon her change in residence.\nV. Conclusion\nThe trial court abused its discretion in determining the amount of defendant\u2019s alimony liability in the modification order. When modifying an alimony order the court should evaluate all changes in circumstances. Britt, 49 N.C. App. at 474, 271 S.E.2d at 928. Neither party should be forced to bear an unfair burden. Beall, 290 N.C. at 679, 228 S.E.2d at 413. More importantly, neither party should be forced to deplete their assets and be reduced to poverty to maintain the support of the other. Quick, 305 N.C. at 457, 290 S.E.2d at 661. In the present case, the court incorrectly determined that the defendant\u2019s net monthly income was $3,841.08 and reasonable monthly expenses were $2,300.00. The correct amount of defendant\u2019s net monthly income should have been $3,371.00 and his reasonable monthly expenses were at least $2,300.00. After defendant pays his monthly alimony obligation of $1,826.00, the balance remaining to meet his reasonable monthly expenses of $2,300.00 is $1,545.05. Thus, defendant is left with a negative cash flow. However, plaintiff\u2019s net monthly income, including alimony, totals $3,314.28. If her monthly expenses of less than $3,000.00 are deducted, a positive balance in the amount of at least $314.00 remains. Defendant should not be forced to deplete his assets, while at the same time plaintiff is left with a surplus.\nWe reverse and remand this matter to the trial court to correct the amount of defendant\u2019s yearly income. We also remand to the trial court to determine plaintiff\u2019s reasonable and necessary living expenses, considering both her accustomed standard of living during the latter years of the parties\u2019 marriage and the rental payments she currently receives from her adult children residing with her.\nReversed and remanded with instructions.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "No brief filed for plaintiff-appellee.", "Shanahan Law Group, by Brandon S. Neuman & Rieran J. Shanahan, for defendant-appellant." ], "corrections": "", "head_matter": "DEBORAH DODSON, Plaintiff v. DAVID DODSON, Defendant\nNo. COA06-969-2\n(Filed 6 May 2008)\n1. Divorce\u2014 alimony \u2014 modification\u2014increase in income\u2014 surrounding factors\nIn an alimony modification proceeding, the trial court correctly found that plaintiff\u2019s income had increased, but failed to consider all of the factors surrounding the increase in her income. The court\u2019s failure to make findings of fact about plaintiff\u2019s reasonable current financial needs and expenses and the ratio of those needs and expenses to her income constituted error.\n2. Divorce\u2014 alimony \u2014 modification\u2014reduction of supporting spouse to poverty\nAlimony payments cannot reduce the supporting spouse to poverty. In this case, the trial court\u2019s calculation of defendant\u2019s income was erroneous, and, since it appears that defendant\u2019s current salary is insufficient to pay his reasonable monthly expenses plus his alimony payment, the trial court abused its discretion in the award.\n3. Divorce\u2014 alimony modification \u2014 change in circumstances and expenses \u2014 findings\nIn an alimony proceeding, the trial court incorrectly found that plaintiff\u2019s fixed expenses increased, and failed to make findings on a number of issues, including the standard of living in the latter half of the parties\u2019 marriage, mortgage payments and rental expenses, and rental payments received by plaintiff from adult children residing with her.\nAppeal by defendant from order entered 12 August 2005 by Judge Donna Stroud in Wake County District Court. Originally heard in the Court of Appeals on 8 May 2007. An opinion affirming the order of the trial court was filed by this Court on 7 August 2007. Petition for Rehearing by defendant was filed on 22 August 2007, granted on 29 November 2007, and heard without additional briefs or oral argument. This opinion supersedes the previous opinion filed on 7 August 2007.\nNo brief filed for plaintiff-appellee.\nShanahan Law Group, by Brandon S. Neuman & Rieran J. Shanahan, for defendant-appellant." }, "file_name": "0412-01", "first_page_order": 444, "last_page_order": 451 }