{ "id": 4160000, "name": "ROBIN JOYCE HELMS, Plaintiff v. DONALD RAY HELMS, Defendant", "name_abbreviation": "Helms v. Helms", "decision_date": "2008-06-17", "docket_number": "No. COA07-1090", "first_page": "19", "last_page": "33", "citations": [ { "type": "official", "cite": "191 N.C. App. 19" } ], "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": "649 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639197 ], "year": 2007, "pin_cites": [ { "page": "473", "parenthetical": "citing N.C. Gen. Stat. \u00a7 50-20(c) (2005)" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0469-01" ] }, { "cite": "631 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636078 ], "year": 2006, "pin_cites": [ { "page": "159", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0156-01" ] }, { "cite": "633 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636525, 12636526, 12636527, 12636528, 12636529, 12636530, 12636531, 12636532, 12636533, 12636534, 12636535, 12636536, 12636537, 12636538 ], "weight": 4, "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0891-06", "/se2d/633/0891-01", "/se2d/633/0891-02", "/se2d/633/0891-03", "/se2d/633/0891-04", "/se2d/633/0891-05", "/se2d/633/0891-07", "/se2d/633/0891-08", "/se2d/633/0891-09", "/se2d/633/0891-10", "/se2d/633/0891-11", "/se2d/633/0891-12", "/se2d/633/0891-13", "/se2d/633/0891-14" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "185 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211972 ], "year": 2007, "pin_cites": [ { "page": "647", "parenthetical": "citing N.C. Gen. Stat. \u00a7 50-20(c) (2005)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0642-01" ] }, { "cite": "582 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954872 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0186-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "178 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8377203 ], "year": 2006, "pin_cites": [ { "page": "256", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0251-01" ] }, { "cite": "334 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527658 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0545-01" ] }, { "cite": "343 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "598", "parenthetical": "citing Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985)" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522370 ], "year": 1986, "pin_cites": [ { "page": "258", "parenthetical": "citing Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0255-01" ] }, { "cite": "310 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 797", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525892 ], "year": 1984, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0797-01" ] }, { "cite": "336 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "132" }, { "page": "132" }, { "page": "132" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525140 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "723" }, { "page": "723" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0717-01" ] }, { "cite": "550 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "538", "parenthetical": "citation and quotation omitted" }, { "page": "538" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438654 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "481", "parenthetical": "citation and quotation omitted" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0478-01" ] }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "854" }, { "page": "855" }, { "page": "856", "parenthetical": "\"The incomes and expenses measured by the standard of living of the family as a unit must be evaluated from the evidence presented.\"" }, { "page": "857" } ], "opinion_index": 0 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "180" }, { "page": "182", "parenthetical": "\"The incomes and expenses measured by the standard of living of the family as a unit must be evaluated from the evidence presented.\"" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0174-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "536 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "644", "parenthetical": "citation omitted" }, { "page": "644-45" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127448 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "371", "parenthetical": "citation omitted" }, { "page": "371" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0369-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "opinion_index": 0 }, { "cite": "179 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "225" } ], "opinion_index": 0 }, { "cite": "362 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641314, 12641316, 12641389, 12641492, 12641496 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/se2d/662/0551-02", "/se2d/662/0552-02", "/se2d/662/0665-01", "/se2d/663/0312-02", "/se2d/663/0314-02" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "790", "parenthetical": "stating that subject matter jurisdiction is \" '\u00a1jurisdiction over the nature of the case and the type of relief sought[]' \"" }, { "page": "790" } ], "opinion_index": 1, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "649 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639197 ], "year": 2007, "pin_cites": [ { "page": "474", "parenthetical": "citing N.C. Gen. Stat. \u00a7 50-21(a); N.C. Gen. Stat \u00a7 1A-1, Rule 37(b)(2)" } ], "opinion_index": 1, "case_paths": [ "/se2d/649/0469-01" ] }, { "cite": "633 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636525, 12636526, 12636527, 12636528, 12636529, 12636530, 12636531, 12636532, 12636533, 12636534, 12636535, 12636536, 12636537, 12636538 ], "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 1, "case_paths": [ "/se2d/633/0891-06", "/se2d/633/0891-01", "/se2d/633/0891-02", "/se2d/633/0891-03", "/se2d/633/0891-04", "/se2d/633/0891-05", "/se2d/633/0891-07", "/se2d/633/0891-08", "/se2d/633/0891-09", "/se2d/633/0891-10", "/se2d/633/0891-11", "/se2d/633/0891-12", "/se2d/633/0891-13", "/se2d/633/0891-14" ] }, { "cite": "76 N.C. L. Rev. 2017", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1998, "pin_cites": [ { "page": "2085-86", "parenthetical": "footnote omitted" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 50-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2005, "pin_cites": [ { "page": "(b)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "137 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "808" } ], "opinion_index": 1 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "year": 1964, "pin_cites": [ { "page": "465" } ], "opinion_index": 1, "case_paths": [ "/nc/262/0462-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "590", "parenthetical": "stating that subject matter jurisdiction is \" '\u00a1jurisdiction over the nature of the case and the type of relief sought[]' \"" }, { "page": "590" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "507 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 1 }, { "cite": "131 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200649 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc-app/131/0409-01" ] }, { "cite": "610 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "169 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470105 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc-app/169/0358-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(l)" }, { "page": "(b)(4)(a)" } ], "opinion_index": 1 }, { "cite": "185 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211972 ], "year": 2007, "pin_cites": [ { "page": "649", "parenthetical": "citing N.C. Gen. Stat. \u00a7 50-21(a); N.C. Gen. Stat \u00a7 1A-1, Rule 37(b)(2)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/185/0642-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 1 }, { "cite": "179 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "year": 2006, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1083, "char_count": 34757, "ocr_confidence": 0.732, "pagerank": { "raw": 6.006114470538007e-08, "percentile": 0.3727902669228978 }, "sha256": "70798791f0d870893e48a97482ce6f9b938c10e9773a3ee411353be8d651b4a1", "simhash": "1:83ef406c764fde74", "word_count": 5568 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge STEPHENS concurs in part and dissents in part by separate opinion." ], "parties": [ "ROBIN JOYCE HELMS, Plaintiff v. DONALD RAY HELMS, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\n\u25a0 Donald Ray Helms (\u201cdefendant\u201d) appeals from order entered on remand from this Court directing a distribution of the parties\u2019 marital and divisible property. We affirm.\nI. Background\nRobin Joyce Helms (\u201cplaintiff\u2019) and defendant were married on 27 June 1981 and lived together as husband and wife for over twenty years. No children were born from the marriage. Plaintiff discovered that defendant had engaged in a three-year adulterous relationship with another woman. Plaintiff and defendant separated on 30 June 2003 when plaintiff moved out of the marital residence. Since the separation, defendant has been living in the marital residence with his paramour.\nOn 29 June 2004, plaintiff filed a verified complaint against defendant for: (1) post separation support; (2) permanent alimony; (3) equitable distribution; and (4) attorney fees. On 31 August 2004, defendant filed an answer and pled the affirmative defense of recrimination as an absolute bar to alimony.\nIn an order entered 23 February 2005, the trial court found that: (1) plaintiff was a dependent spouse and defendant was a supporting spouse and (2) defendant had engaged in adultery during the course of the marriage. The trial court ordered defendant to pay plaintiff $350.00 monthly for post-separation support until the sale of the marital residence. Upon sale, defendant was ordered to begin paying plaintiff: (1) 41.5 percent of his monthly retirement checks and (2) $400.00 per month in permanent alimony. Plaintiff was also awarded $18,000.00 as \u201cher past due share of [defendant\u2019s retirement payments for the 19 months between [the] date of separation and the date of trial.\u201d The trial court also ordered that plaintiff\u2019s net vested share of $55,199.68 plus interest of defendant\u2019s 401(k) retirement account be transferred into her separate account. Defendant appealed from this order on 22 March 2005.\nThis Court reversed the trial court\u2019s order and remanded the case for further findings of fact. See Helms v. Helms, 179 N.C. App. 225, 633 S.E.2d 891 (2006) (unpublished). Our Court held the trial court erred by declaring plaintiff a dependent spouse and defendant a supporting spouse without entering the requisite findings of fact concerning the parties\u2019 accustomed standard of living prior to the separation and defendant\u2019s total living expenses at the time of the hearing. Id. This Court also held the trial court erred in determining the respective shares of the parties\u2019 401(k) retirement accounts because the trial court\u2019s findings were insufficient to support the specific monetary award. Id.\nOn 18 May 2007, the trial court filed its order on remand. In its order, the trial court included specific findings of fact regarding the parties\u2019 accustomed standard of living prior to separation and the respective shares of defendant\u2019s 401(k) retirement account. The trial court\u2019s order on remand did not change the trial court\u2019s prior award to plaintiff. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) finding plaintiff is a dependent spouse and defendant is a supporting spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1A and (2) erroneously determining the parties\u2019 respective shares of defendant\u2019s 401(k) retirement account.\nWe recognize the trial court\u2019s order contains several items that-may be subject to challenge. First, the trial court set the value of the marital residence as the fut\u00fare sales price of the residence and not the net fair market value on the date of separation. We note that the trial court\u2019s order necessarily fails to account for post-separation appreciation or diminution in value of the marital residence because both the sale price of the house and the date of distribution are unknown. Secondly, the trial court failed to specify the reasons for the delay in plaintiff\u2019s receipt of 41.5 percent of defendant\u2019s monthly retirement checks and commencement of alimony payments until the sale of the marital residence, which acts as a deterrent for defendant to agree to the sale. Thirdly, the trial court entered conflicting findings and conclusions regarding the classification of plaintiff\u2019s lump sum award of $18,000.00 as \u201cher share of defendant\u2019s retirement benefits.\u201d Pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, \u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .\u201d N.C.R. App. P. 10(a) (2008). These issues are neither assigned as error, nor argued in the briefs, and are not properly before us.\nIII. N.C. Gen. Stat,. \u00a7 50-16.1A\nDefendant argues the trial court erred by concluding as a matter of law that plaintiff is a dependent spouse and defendant is a supporting spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1A. We disagree.\nA. Standard of Review\nWe review a trial court\u2019s finding that a party is entitled to alimony de novo. Barrett v. Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000) (citation omitted).\nB. Analysis\nAt the outset, we examine the two-step inquiry the trial court is statutorily required to follow in determining alimony:\nFirst is a determination of whether a spouse is entitled to alimony. N.C. Gen. Stat. \u00a7 50-16.3A(a). Entitlement to alimony requires that one spouse be a dependent spouse and the other be a supporting spouse[.] Id. If one is entitled to alimony, the second determination is the amount of alimony to be awarded. N.C. Gen. Stat. \u00a7 50-16.3(b).\nId. (emphasis original). Defendant argues that the trial court erred by classifying plaintiff as a dependent spouse and defendant as a supporting spouse, but does not contest the amount of alimony awarded.\n1. Dependent Spouse\nN.C. Gen. Stat. \u00a7 50-16.1A(2) (2005) defines a dependent spouse as a \u201chusband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.\u201d This Court has stated:\nA spouse is \u201cactually substantially dependent\u201d if he or she is currently unable to meet his or her own maintenance and support. Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980). A spouse is \u201csubstantially in need of maintenance\u201d if he or she will be unable to meet his or her needs in the future, even if he or she is currently meeting those needs. Id. at 181-82, 261 S.E.2d at 855.\nBarrett, 140 N.C. App. at 371, 536 S.E.2d at 644-45. \u201c[I]n other words, the court must determine whether one spouse would be unable to maintain his or her accustomed standard of living, established prior to separation, without financial contribution from the other.\u201d Vadala v. Vadala, 145 N.C. App. 478, 481, 550 S.E.2d 536, 538 (2001) (citation and quotation omitted) (emphasis supplied). \u201c[T]o properly find a spouse dependent the court need only find that the spouse\u2019s reasonable monthly expenses exceed her monthly income and that the party has no other means with which to meet those expenses.\u201d Beaman v. Beaman, 77 N.C. App. 717, 723, 336 S.E.2d 129, 132 (1985). It necessarily follows that the trial court must look at the parties\u2019 income and expenses in light of their accustomed standard of living. See Williams v. Williams, 299 N.C. 174, 182, 261 S.E.2d 849, 856 (1980) (\u201cThe incomes and expenses measured by the standard of living of the family as a unit must be evaluated from the evidence presented.\u201d).\nDefendant asserts plaintiff will receive 41.5 percent of defendant\u2019s retirement checks upon the sale of the marital residence and the trial court erred by failing to include this amount in its determination of plaintiff\u2019s monthly income, which affected her status as a dependent spouse. Defendant\u2019s argument is without merit. Plaintiff\u2019s status as dependent spouse is not determined based upon events set to occur in the future, but is established according to plaintiff\u2019s accustomed standard of living prior to the parties\u2019 separation. Vadala, 145 N.C. App. at 481, 550 S.E.2d at 538.\nHere, the trial court made the following findings of fact:\n8. PLAINTIFF\u2019S INCOME: During the marriage, the Plaintiff worked as a dental assistant, earning $2,600.00 per month. Approximately one month after separation, Plaintiff lost her job due to a downsizing at her place of employment. At the time of the trial, Plaintiff worked as a secretary for Gideon\u2019s Heating and Air, earning a monthly income of $1,256.00 and also had a second job as a waitress, earning an additional average income of $152.00 per month. Plaintiff was restricted in search for reemployment as a dental assistant due to the development of carpal tunnel syndrome in both of her wrists during the last several years of her employment as a dental assistant. This condition was documented by her employer and her treating physician. The Plaintiff had also developed situational depression due to the breakup of her marriage and must take several antidepressant medications prescribed by her counselor to enable her to work.\n10. PLAINTIFF\u2019S EXPENSES: Plaintiff has monthly living expenses in the amount of $2,035.00 per month. The Court has examined these monthly expenses and finds them to be reasonable in light of the standard of living established by the parties during the marriage. . . .\n14. The Plaintiff does not have sufficient income to meet her monthly needs and maintain her accustomed standard of living without support from the Defendant.\n16. Plaintiff remains actually substantially dependent upon the Defendant for her maintenance and support and is substantially in need of maintenance and support from the Defendant.\nDefendant failed to except to any of the trial court\u2019s findings of fact contained in its 18 May 2007 order. Where an appellant does not except to the trial court\u2019s findings of fact, they are presumed to be supported by competent evidence and are binding on appeal. Hall v. Hall, 65 N.C. App. 797, 799, 310 S.E.2d 378, 380 (1984).\nHere, the trial court\u2019s findings of fact demonstrate that during the marriage and at the time of the hearing, plaintiff had an income-expenses deficit of $627.00 per month. The trial court\u2019s findings of fact are sufficient to support its conclusion that plaintiff is a dependent spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1A(2). Beaman, 77 N.C. App. at 723, 336 S.E.2d at 132.\n2. Supporting Spouse\nOur Supreme Court has stated, \u201cevidence one spouse is dependent does not necessarily infer the other spouse is supporting.\u201d Williams, 299 N.C. at 186, 261 S.E.2d at 857. A supporting spouse is statutorily defined as a \u201chusband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in n\u00e9ed of maintenance and support.\u201d N.C. Gen. Stat. \u00a7 50-16.1A(5) (2005). This Court has stated, \u201c[a] surplus of income over expenses is sufficient in and of itself to warrant a supporting spouse classification.\u201d Barrett, 140 N.C. App. at 373, 536 S.E.2d at 645 (citing Beaman, 77 N.C. App. at 723, 336 S.E.2d at 132).\nHere, the trial court found that at the time of separation: (1) defendant\u2019s total monthly income was at a minimum $3,339.41 per month and (2) defendant\u2019s actual monthly expenses were approximately $2,800.00 per month. Defendant\u2019s income-expenses surplus supports the trial court\u2019s classification of defendant as a supporting spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1A(5).\nPrior to the enactment of our current alimony statute in 1995, our trial courts were instructed that \u201can alimony award should follow equitable distribution, duly taking into account the division of the marital property and the resulting estates of the parties.\u201d Patterson v. Patterson, 81 N.C. App. 255, 258, 343 S.E.2d 595, 598 (1986) (citing Talent v. Talent, 76 N.C. App. 545, 334 S.E.2d 256 (1985)). Under the present statute, however, a claim for alimony \u201cmay be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.\u201d N.C. Gen. Stat. \u00a7 50-16.3A(a) (2005). The trial court found plaintiff is the dependent spouse and defendant is the supporting spouse. This determination along with the trial court\u2019s determination of the amount of alimony awarded to plaintiff are subject to reconsideration following the final equitable distribution or may be modified by motion in the cause and proof of a substantial change of circumstances. This assignment of error is overruled.\nIV. 401fk) Retirement Account,\nDefendant argues the trial court erroneously determined the parties\u2019 respective shares of defendant\u2019s 401(k) retirement account. We disagree.\nA. Standard of Review\n\u201cThe standard of review of the percentage division of marital property in equitable distribution cases is for an abuse of discretion.\u201d Squires v. Squires, 178 N.C. App. 251, 256, 631 S.E.2d 156, 159 (2006) (citation omitted). \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nB. Analysis\nThis Court previously remanded the issue of the 401(k) retirement account to the trial court based upon the parties\u2019 failure to present any evidence tending to show the value of the account on the date of separation. See Helms, 179 N.C. App. at 225, 633 S.E.2d at 891. At the hearing on remand, defendant presented the trial court with a written record that established the account was worth $111,805.02 on the date of separation.\nIt is undisputed that plaintiff is entitled to a portion of defendant\u2019s 401(k) account. At the equitable distribution hearing, plaintiff testified that she and her counsel had determined that she was entitled to $42,098.38 based upon the number of years she was married to defendant and the years defendant was employed. Defendant now argues this admission was binding upon the trial court. We disagree.\nThis Court addressed a similar issue in Embler v. Embler, 159 N.C. App. 186, 582 S.E.2d 628 (2003). In Embler, the defendant argued that the trial court erred by classifying his pension plan solely as marital property because one-third of defendant\u2019s employment occurred before the marriage. 159 N.C. App. at 191, 582 S.E.2d at 632. The defendant did not present any evidence of the pre-marital value of the pension and had stipulated on the equitable distribution form that the pension was marital property. Id. This Court stated, \u201c[t]he court thus had no evidence by which it could accurately calculate the pre-marital value of the pension. Defendant bore the burden of showing what portion of the pension vvas separate property and cannot now complain because he failed to meet his burden.\u201d Id.\nHere, defendant failed to present any evidence tending to show the number of years his 401(k) account existed prior to the marriage. In his equitable distribution affidavit, defendant stipulated the account was marital property and listed the word \u201cnone\u201d under separate property. Defendant did not meet his \u201cburden of showing what portion of the pension was separate property.\u201d Id. Defendant failed to show the trial court abused its discretion by awarding plaintiff one-half of defendant\u2019s 401(k) retirement account. See Young v. Gum, 185 N.C. App. 642, 647, 649 S.E.2d 469, 473 (2007) (citing N.C. Gen. Stat. \u00a7 50-20(c) (2005)) (holding there is a presumption that marital and divisible property will be distributed half to each spouse). This assignment of error is overruled.\nV. Conclusion\nThe trial court properly classified plaintiff as a dependent spouse and defendant as a supporting spouse pursuant to N.C. Gen. Stat. \u00a7 50-16.1A. Defendant failed to show the trial court abused its discretion by awarding plaintiff one-half of defendant\u2019s 401(k) retirement account. The trial court\u2019s order is affirmed.\nAffirmed.\nJudge McGEE concurs.\nJudge STEPHENS concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "STEPHENS, Judge,\nconcurring in part and dissenting in part.\nThis case confounds me. My confusion undoubtedly springs from the trial court\u2019s attempt to resolve simultaneously the issues of postseparation support, alimony, and equitable distribution, but is worsened by the manner in which these issues were \u201cresolved.\u201d Nevertheless, I reluctantly agree with the majority\u2019s opinion that the trial court did not abuse its discretion in awarding Plaintiff one-half of Defendant\u2019s 401(k) account. However, I vote to reverse the trial court\u2019s order because: (1) I conclude that the trial court was without subject matter jurisdiction to award postseparation support beyond the date of the order\u2019s entry because the order also awarded alimony, and (2) I disagree with the majority\u2019s opinion that the trial court properly concluded that Plaintiff is entitled to alimony. Thus, I dissent.\nPreliminarily, I note that this Court reversed and remanded the 23 February 2005 \u201cEquitable Distribution Order.\u201d The trial court\u2019s 18 May 2007 \u201cOrder on Remand,\u201d however, purported to leave \u201c[a]ll remaining provisions of the [Equitable Distribution] Order, not inconsistent with the terms [of the Order on Remand] ... in full force and effect.\u201d Because the Order on Remand does not contain all of the findings necessary for a complete review of Defendant\u2019s appeal, we find ourselves in the curious position of having to compare the two orders to discern which provisions of the Equitable Distribution Order survived our reversal. The two orders are not readily comparable, and the trial court\u2019s action hinders and impedes our review.\nNext, I agree with the majority that Defendant failed to assign error to \u201cseveral items\u201d that are clearly subject to challenge on appeal. Having thoroughly and exhaustively reviewed the record in this case, however, I submit that Defendant was as puzzled by the trial court\u2019s orders as I am, as the orders defy simple analysis. For example, in the Equitable Distribution Order, the trial court conflated the issues of equitable distribution and postseparation support, stating,\nPlaintiff is entitled to nineteenth [sic] months of retirement benefits she has not received since the date of the parties\u2019 separation at $924.91 plus interest and her share of any increases, which equals at least $17,573.29. These monies are not post-separation support, but are the Plaintiffs vested asset[,]\nbut then awarding, from the proceeds of the sale of the marital residence,\n$18,000.00 to Plaintiff as her past due share of Defendant\u2019s retirement payments for the 19 months between date of separation and the date of trial. This award is post-separation support granted.\nAside from the plain contradiction in the trial court\u2019s classification of Plaintiff\u2019s share of Defendant\u2019s retirement income, a determination that has potential tax ramifications, the trial court apparently picked the sum of $18,000.00 out of a hat. Given the opportunity to clarify\nits order by this Court\u2019s first opinion in this case, the trial court stated in the Order on Remand that:\nDefendant shall pay the sum of $350.00 per month to Plaintiff as post separation support. The first prospective payment shall be due on March 1, 2005 and shall continue until such time as the former marital home is sold. As for retroactive post separation support, from his net share of the sale proceeds of the former marital residence, the Defendant shall pay $18,000.00 to Plaintiff for the time between the date of separation and the date of trial.\n3. Defendant shall pay the sum of $3,150.00 to Plaintiff within 120 days of the entry of this Order as post separation support payments due for September, 2006 through May, 2007.\nWe are left to presume that the sum of $18,000.00 awarded as \u201cretroactive post separation support\u201d is the same $18,000.00 the trial court found and concluded was Plaintiffs vested asset. We are likewise left to presume Defendant began making postseparation support payments of $350.00 beginning in March 2005 as previously ordered, but that he stopped making those payments in September 2006. In any event, I am loathe to affirm an order which defies review.\nMoreover, I hesitate to affirm an order which clearly contradicts the provisions of our General Statutes. Postseparation support is \u201cspousal support to be paid until the earlier of... [t]he date specified in the order for postseparation support [or] [t]he entry of an order awarding or denying alimony.\" N.C. Gen. Stat. \u00a7 50-16.1A(4) (2005) (emphasis added); Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005); Rowe v. Rowe, 131 N.C. App. 409, 507 S.E.2d 317 (1998). In this case, the order awards alimony. The order also awards postseparation support to be paid beyond the date of the order\u2019s entry. Such action plainly contradicts the legislative directive.\nMore importantly, I would hold that the trial court\u2019s action in entering an order awarding alimony deprived the court of subject matter jurisdiction to award postseparation support prospective from the order\u2019s entry. In re T.R.R., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (stating that subject matter jurisdiction is \u201c \u2018\u00a1jurisdiction over the nature of the case and the type of relief sought[]\u2019 \u201d) (quoting Black\u2019s Law Dictionary 856 (7th ed. 1999)) (emphasis added); see N.C. Gen. Stat. \u00a7 50-16.1A(4) (defining postseparation support). It is well-established that an issue of subject matter jurisdiction may be raised at any stage of a case and may be raised by a court on its own motion. \u201c \u2018A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.\u2019 \u201d T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)). The trial court\u2019s award of postseparation support beyond the date of the order\u2019s entry should be vacated.\nEQUITABLE DISTRIBUTION\nBy his second assignment of error, Defendant argues the trial court abused its discretion in awarding Plaintiff one-half of his 401(k) account. In an equitable distribution action, the trial court is required to provide for an equitable distribution of the parties\u2019 marital property and divisible property. N.C. Gen. Stat. \u00a7 50-20(a) (2005). To do so, the court must determine what is marital property and what is divisible property. Id. \u201cMarital property\u201d includes \u201call real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned[.]\u201d N.C. Gen. Stat. \u00a7 50-20(b)(l) (2005). \u201cDivisible property\u201d includes, inter alia-.\nAll appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.\nN.C. Gen. Stat. \u00a7 50-20(b)(4)(a) (2005). While marital property is valued as of the date of separation, divisible property must be valued as of the date of distribution. N.C. Gen. Stat. \u00a7 50-21(b) (2005).\nAs the majority notes, the trial court did not value the marital residence as of the date of separation. Interestingly, a review of the transcript from the hearing held prior to the entry of the Equitable Distribution Order reveals that the first half of the hearing was dedicated to resolving this very issue. Furthermore, as the majority states, the trial court\u2019s order necessarily fails to account for post-separation appreciation or diminution in value of the marital residence because both the sale price of the house and the date of distribution are unknown. In light of these unknowns, I question whether the trial court\u2019s order completely resolves the equitable distribution claim and whether this appeal is interlocutory. In its discussion of the alimony award, the majority tacitly acknowledges the interim nature of the distributive award, stating that the trial court\u2019s alimony determinations are \u201csubject to reconsideration following the final equitable distribution])]\u201d (Emphasis added.) At a minimum, however, the trial court\u2019s order does not comply with our equitable distribution statutes.\nNevertheless, by his second assignment of error, Defendant only argues that the trial court was bound by the parties\u2019 admission that Plaintiff was entitled to receive $42,098.38 from Defendant\u2019s 401(k) retirement account. Defendant does not argue that the trial court\u2019s order violates our statutes. I agree with the majority that the parties\u2019 admission is not binding upon the trial court and, therefore, vote to overrule Defendant\u2019s second assignment of error.\nALIMONY\nBy his first assignment of error, Defendant argues the trial court erred in determining that Plaintiff is entitled to alimony. I agree.\nThe majority reasons that \u201c[p]laintiff\u2019s dependent spouse status is not determined based upon events set to occur in the future, but is established according to plaintiff\u2019s accustomed standard of living prior to the parties\u2019 separation.\u2019\u2019 (Emphasis added.) The majority then states that \u201cthe trial court\u2019s findings of fact demonstrate that during the marriage and at the time of the hearing, plaintiff had an income-expenses deficit of $627.00 per month.\u201d (Emphasis added.) The findings of fact recited in the majority\u2019s opinion do not support the majority\u2019s statement that, during the marriage, Plaintiff had an income-expenses deficit of $627.00. According to the findings, Plaintiff was earning $1,192.00 less per month at the time of the hearing than on the date of separation. Moreover, the majority\u2019s reliance on Plaintiff\u2019s income-expenses deficit at the time of the hearing is in plain opposition to its statement that Plaintiff\u2019s dependent spouse status is determined according to Plaintiff\u2019s accustomed standard of living prior to the parties\u2019 separation.\nAlthough I agree with the majority that our current statute authorizes a trial court to hear and award a claim for alimony prior to the entry of a judgment for equitable distribution and that the trial court\u2019s alimony determinations are subject to reconsideration following the final equitable distribution, this solution to the problems raised by this appeal is unappealing. As one leading scholar noted after the current statute\u2019s enactment,\nhearing the alimony claim [before the completion of an equitable distribution] is likely to be a waste of judicial and other resources and will certainly bring added expenses to the parties. The caveat to this statement would involve the unlikely event that the results of equitable distribution would not change the alimony duration or amount, or the dependency status \u2014 an eventuality that, given the potential of the expanded factors that can be used to increase the assets and income of the supporting spouse, is so unlikely as to stretch the imagination.\nSally Burnett Sharp, Step by Step: The Development of the Distributive Consequences of Divorce in North Carolina, 76 N.C. L. Rev. 2017, 2085-86 (1998) (footnote omitted) (emphasis added). Professor Sharp\u2019s prognostication has come true in this case. See, e.g., Helms v. Helms, 179 N.C. App. 225, 633 S.E.2d 891 (2006) (unpublished) (addressing the trial court\u2019s initial attempt to resolve this matter).\nIn light of the flawed nature of the trial court\u2019s orders, I cannot agree with the result reached by the majority. In my opinion, the trial court\u2019s determinations that, for purposes of alimony, Plaintiff is the dependent spouse and Defendant is the supporting spouse should be reversed. The trial court\u2019s award of alimony should also be reversed, and I would remand this case to the trial court. On remand, I would instruct the trial court to enter one order containing all of its findings. I would further remind the trial court that postseparation support terminates upon the entry of an award of alimony. If the trial court chooses to delay an alimony award until the marital home sells, the trial court should also delay its determination of the spouses\u2019 statuses until that time. I note with interest that this result comports with the result urged by Plaintiff in her first brief to this Court, in which she wrote:\nThe trial court set no deadline for the sale of the former marital home, thus allowing [Defendant] to pay [Plaintiff] alimony [sic] in the sum of $350.00 indefinitely, and preventing [Plaintiff] from receiving her $924.91 monthly share of [Defendant\u2019s] retirement benefits. While [Plaintiff] contends that the trial court was correct in [its] determination that she is the dependant [sic] spouse and [Defendant] is the supporting spouse, based on the foregoing \u201cdistribution\u201d of marital assets, she. recognizes the need for the trial court to properly deal with equitable distribution before there is any reconsideration of classification as a dependant [sic] spouse.\n(Emphasis added.) I dissent from the majority\u2019s opinion to the extent it affirms the trial court\u2019s award of postseparation support and alimony. Otherwise, I concur.\n. The plaintiff in an equitable distribution action is required to provide detailed information regarding the identification, classification, and value of marital and separate property as of the date of separation by filing an equitable distribution inventory affidavit. N.C. Gen. Stat. \u00a7 50-21(a) (2005). The defendant is required to provide the same information after receiving the plaintiff\u2019s affidavit. Id. \u201cA party who fails to file the required equitable distribution inventory affidavit can be subject to sanctions pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 37, up to and including dismissal of the claim.\u201d Young v. Gum, 185 N.C. App. 642, 649, 649 S.E.2d 469, 474 (2007) (citing N.C. Gen. Stat. \u00a7 50-21(a); N.C. Gen. Stat \u00a7 1A-1, Rule 37(b)(2)), disc, review denied, 362 N.C. 374,-S.E.2d -(2008).\nThe majority opinion refers to Defendant\u2019s \u201cequitable distribution affidavit.\u201d Presumably, the majority refers to a document in the record on appeal labeled \u201cEquitable Distribution Affidavit of the Defendant.\u201d This document is neither executed nor file-stamped. Interestingly, in his first brief to this Court in COA05-1346, the same attorney who represents Defendant in this appeal wrote:\nThe undersigned appellate counsel for Defendant performed a diligent search of \u25a0 the Pender County Clerk of Court\u2019s file with regard to this matter and he has been unable to locate any copies of a filed equitable distribution affidavit from either the Plaintiff or the Defendant, nor does the Exhibits/Evidence Log from the trial of this matter indicate that any such equitable distribution affidavit was entered into evidence.... The undersigned appellate counsel for Defendant has conferred with appellate counsel for the Plaintiff who has likewise not been able to locate any such equitable distribution affidavit.\n. Nineteen months of the award of vested retirement benefits is $17,573.29. Nineteen months of postseparation support in the amount of $350.00 per month, however, is only $6,650.00.", "type": "concurring-in-part-and-dissenting-in-part", "author": "STEPHENS, Judge," } ], "attorneys": [ "Lea, Rhine, Rosbrugh & Chleborowicz, by Lori W. Rosbrugh, for plaintiff-appellee.", "Lanier, Fountain & Ceruzzi, by John W. Ceruzzi, for defendant-appellant." ], "corrections": "", "head_matter": "ROBIN JOYCE HELMS, Plaintiff v. DONALD RAY HELMS, Defendant\nNo. COA07-1090\n(Filed 17 June 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error \u2014 failure to argue\nAlthough the trial court\u2019s order contains several items that may be subject to challenge in an equitable distribution case including setting the value of the marital residence as the future sales price of the residence instead of the net fair market value on the date of separation, failing to specify the reasons for the delay in plaintiff\u2019s receipt of defendant\u2019s monthly retirement checks and commencement of alimony payments after the sale of the marital residence, and the trial court\u2019s entering of conflicting findings and conclusions regarding the classification of plaintiff\u2019s lump sum award of $18,000 as her share of defendant\u2019s retirement benefits, these issues will not be considered on appeal because they are neither assigned as error nor argued in the brief as required by N.C. R. App. P. 10(a).\n2. Divorce\u2014 alimony \u2014 dependent spouse \u2014 supporting spouse \u2014 accustomed standard of living prior to separation\nThe trial court did not err in an alimony and equitable distribution case by concluding as a matter of law under N.C.G.S. \u00a7 50-16.1A that plaintiff wife was a dependent spouse and defendant husband was a supporting spouse because: (1) although defendant contends the trial court should have included the fact that plaintiff will receive 41.5 percent of his retirement checks upon the sale of the marital residence when it was determining plaintiffs monthly income, plaintiffs status as dependent spouse is not determined based upon events set to occur in the future, but is instead established according to plaintiffs accustomed standard of living prior to the parties\u2019 separation; (2) the findings of fact demonstrated that during the marriage and at the time of the hearing, plaintiff had an income-expenses deficit of $627 per month, thus supporting the conclusion that she was a dependent spouse; (3) a surplus of income over expenses is sufficient in and of itself to warrant a supporting spouse classification, and the findings of fact showed defendant\u2019s income-expenses surplus supported this classification; and (4) this determination, along with the trial court\u2019s determination of the amount of alimony awarded to plaintiff, are subject to reconsideration following the final equitable distribution or may be modified by motion in the cause and proof of a substantial change of circumstances.\n3. Divorce\u2014 equitable distribution \u2014 marital property\u2014 401(k) retirement account\nThe trial court did not abuse its discretion in an equitable distribution case by awarding each of the parties one-half of defendant husband\u2019s 401(k) retirement account because: (1) defendant failed to present any evidence tending to show the number of years his 401(k) account existed prior to the marriage; (2) in an equitable distribution affidavit, defendant stipulated the account was marital property and listed the word \u201cnone\u201d under separate property; and (3) defendant failed to meet his burden of showing what portion of the pension was separate property.\nJudge STEPHENS concurring in part and dissenting in part.\nAppeal by defendant from order entered 18 May 2007 by Judge James H. Faison, III in Pender County District Court. Heard in the Court of Appeals 5 March 2008.\nLea, Rhine, Rosbrugh & Chleborowicz, by Lori W. Rosbrugh, for plaintiff-appellee.\nLanier, Fountain & Ceruzzi, by John W. Ceruzzi, for defendant-appellant." }, "file_name": "0019-01", "first_page_order": 51, "last_page_order": 65 }