{
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  "name": "ROBERT B. BROUGHTON v. CELESTE GOLD BROUGHTON",
  "name_abbreviation": "Broughton v. Broughton",
  "decision_date": "1982-09-21",
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    "judges": [
      "Judges HEDRICK and WELLS concur."
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    "parties": [
      "ROBERT B. BROUGHTON v. CELESTE GOLD BROUGHTON"
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      {
        "text": "ARNOLD, Judge.\nPlaintiff's Appeal\nBefore an alimony award can be modified, the party seeking modification must show changed circumstances. G.S. 50-16.9. The change in circumstances must be substantial with a final decision based on a comparison of the facts existing at the original order and when the modification is sought. Britt v. Britt, 49 N.C. App. 463, 271 S.E. 2d 921 (1980).\nPlaintiff first contends that the 1980 order made no findings about the financial condition of the parties in 1973. Because there was nothing with which to compare the facts in 1980, he asserts that it was an error to find changed circumstances.\nThis argument, however, ignores the findings concerning the pre-divorce lifestyle, the property holdings of both parties in 1973, and the plaintiffs 1973 income. While it is true that no balance sheets were introduced at the 1973 hearing, the trial court did cite sufficient facts to show the relative financial condition of the parties in 1973. \u201cWhen the trial judge is authorized to find the facts, his findings, if supported by competent evidence, will not be disturbed on appeal. . . .\u201d Beall v. Beall, 290 N.C. 669, 673, 228 S.E. 2d 407, 409 (1976).\nG.S. 50-16.9, the modification of alimony statute, does not list factors to help in the modification decision. But the alimony statutes (G.S. 50-16.1 through 50-16.10) have been read in pari materia because they deal with the same subject matter. Williams v. Williams, 299 N.C. 174, 261 S.E. 2d 849 (1980). In Rowe v. Rowe, 52 N.C. App. 646, 280 S.E. 2d 182 (1980), the court followed the Williams rationale and read G.S. 50-16.9 (modification of alimony) in pari materia with G.S. 50-16.5 (amount of alimony).\nRowe is important because G.S. 50-16.5 lists factors to consider on the modification issue. Evidence was presented here on three of those factors, namely the estates, earnings and accustomed standard of living of the parties.\nIn addition, the trial court made findings with respect to plaintiff\u2019s earning capacity. Specifically, it found that plaintiff could \u201csubstantially increase his income, without depleting his estate, by converting his non-income producing interest in MRW Co. [a partnership with his two brothers] into proceeds for income producing assets. . . .\u201d The court found that this could increase after-tax income by $12,000 per year.\nPlaintiff bases two assignments of error on this finding by the trial court. He first attacks the earning capacity finding on the ground that there are no facts showing a deliberate attempt to depress his earnings.\nAlthough earning capacity is a permissible ground on which to base modification under G.S. 5046.5(a), plaintiff correctly cites the limitation on its use. As Chief Justice Sharp stated in Beall,\nCapacity to earn . . . 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.\n290 N.C. at 674, 228 S.E. 2d at 410. See also Bowes v. Bowes, 287 N.C. 163, 172-73, 214 S.E. 2d 40, 45 (1975). We agree with plaintiff that there is no showing in the record here of such a deliberate attempt by plaintiff to depress his income.\nA lack of any finding that plaintiff depressed his income may not be fatal to the record before us in this case however. The award may still be properly based on the plaintiffs earnings under G.S. 5046.5(a). Plaintiff\u2019s income at the time the award is made can be considered on the modification issue \u201cif the husband is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably.\u201d Bowes, 287 N.C. at 172-73, 214 S.E. 2d at 45, citing Conrad v. Conrad, 252 N.C. 412, 418, 113 S.E. 2d 912, 916 (1960). The 1980 order made this finding about plaintiffs work as an attorney and considered his earnings in granting the modification.\nThus, even though earning capacity was discussed in the 1980 order, we do not find sufficient reliance by the trial court on it to constitute error or require a remand. In our opinion the trial court provided defendant with a \u201creasonable subsistence ... in the exercise of a sound judicial discretion from the evidence before [it].\u201d Beall, 290 N.C. at 673-74, 228 S.E. 2d at 410.\nPlaintiff next attacks the earning capacity finding on the ground that it was a denial of equal protection for the trial court to consider his earning capacity but not to consider defendant\u2019s earning capacity. A similar argument was rejected in Upchurch v. Upchurch, 34 N.C. App. 658, 239 S.E. 2d 701 (1977), cert. denied, 294 N.C. 363, 242 S.E. 2d 634 (1978). Although G.S. 5046.5(a) lists the earning capacity of the parties as a factor in the amount of alimony, Upchurch concluded \u201cwe do not think that in all cases the court is required to make findings of fact on the question of the dependent spouse\u2019s earning capacity.\u201d 34 N.C. App. at 661, 239 S.E. 2d at 703. We agree with Upchurch and hold that it was not error when the trial court did not consider the defendant\u2019s earning capacity in this case.\nBy a fourth assignment of error plaintiff attacks the award of attorney\u2019s fees to defendant for the motion directed at increased alimony. As plaintiff notes, G.S. 50-16.9, the modification section, does not mention attorney\u2019s fees.\nG.S. 50-16.4 provides for attorney\u2019s fees when a dependent spouse would be entitled to alimony pendente lite under G.S. 50-16.3. In this case, defendant does not seek alimony pendente lite but seeks a modification of permanent alimony subsequent to an absolute divorce. This does not mean that defendant is denied her attorney\u2019s fees paid in seeking increased alimony, however.\nUpchurch construed G.S. 50-16.4 to be applicable any time a dependent spouse could show that she has the grounds for alimony pendente lite, even though the proceeding was not brought for that purpose. (Emphasis added.) That any time \u201cincludes times subsequent to the determination of the issues in her favor at the trial of her cause on the merits.\u201d 34 N.C. App. at 664-65, 239 S.E. 2d at 705. Thus, if defendant meets the three requirements of G.S. 5046.3(a) for alimony pendente lite, she can recover her attorney\u2019s fees even though she sought alimony modification subsequent to absolute divorce.\nFirst, defendant must show that she is a \u201cdependent spouse\u201d as defined by G.S. 50-16.1(3). The trial court specifically made that finding in its 1980 order.\nSecond, it must appear from all the evidence presented that the defendant is entitled to the relief demanded. The increase in alimony below confirms this fact.\nFinally, it must appear that defendant does not have sufficient means to defray expenses of the suit. The trial court also made a specific finding on this point.\nG.S. 50-ll(c) also supports defendant\u2019s claim to attorney\u2019s fees. Subject to two exceptions that are not relevant here, the statute provides that\na decree of absolute divorce shall not impair or destroy the right of a spouse to receive alimony and other rights provided for such spouse under any judgment or decree of court rendered before or at the time of the rendering of the judgment for absolute divorce. (Emphasis added.)\nThe court in Shore v. Shore, 15 N.C. App. 629, 190 S.E. 2d 666 (1972), interpreted G.S. 50-ll(c) to allow an award of counsel fees \u201cfor services rendered to a dependent spouse subsequent to an absolute divorce in seeking to obtain or in resisting a motion for revision of alimony or other rights. . . .\u201d 15 N.C. App. at 633, 190 S.E. 2d at 669. Although a dependent spouse was resisting an effort by her husband to terminate alimony in Shore which is different from this case, its broad holding lends support to this case where defendant sought a revision in alimony. See also, 2 R. Lee, N.C. Family Law \u00a7 152 (4th ed. 1980).\nPlaintiff next contends that it was error for the trial court to admit the testimony of Clyde Idol as to the fair market value of the real property held by MRW Company, a partnership in which plaintiff is a member, and to conclude that the property\u2019s value was $850,000. Even though the trial judge acknowledged that seven comparable sales that Idol used in determining the MRW land value were not probative, and that he gave little consideration to the effect on the land value of the enactment of the Raleigh Flood Plain Regulations in 1973, the court set a valuation of $850,000 on the land, with plaintiffs share being valued at $425,000. This value was based in part on \u201cMr. Idol\u2019s general knowledge of real estate values.\u201d\nTo introduce evidence on valuation, a proper foundation must be laid. First, it must be shown \u201cthat the witness is familiar with the thing on which . . . [he] professes to put a value and [second] that he has such knowledge and experience as to enable him intelligently to place a value on it.\u201d Britt v. Smith, 6 N.C. App. 117, 122, 169 S.E. 2d 482, 486 (1969). See also, Passmore v. Woodard, 37 N.C. App. 535, 246 S.E. 2d 795 (1978).\nIdol\u2019s testimony showed his familiarity with the property here. He personally walked it, drew a map of it and exhibited his knowledge of the surrounding areas, including their future development trends. In addition, he testified as to his qualifications and past experience of 25 years as a real estate appraiser to show his expertise in this area. Thus, the portions of Idol\u2019s testimony not based on the comparable land sales, which the trial court explicitly rejected in its findings, were competent evidence.\nWhether the part of Idol\u2019s testimony that the court relied on was competent is important because\nwhere there is sufficient competent evidence to support a finding of fact by the court, it will be presumed that the court disregarded incompetent evidence tending to support the same finding, unless the record affirmatively discloses that the finding was based, in part at least, on incompetent evidence heard over objection.\n1 Strong\u2019s N.C. Index 3d, Appeal and Error \u00a7 57.2 (1976). See also, City of Statesville v. Bowles, 278 N.C. 497, 502, 180 S.E. 2d 111, 114-15 (1971).\nThere was sufficient competent evidence here to support the order. Idol testified as to his personal examination of the property, as to how it was zoned and to its highest and best use. The court also had before it an opinion on value from plaintiff\u2019s expert that the 1980 value was about the same as that in 1973 if the flood plain ordinance and inflation was considered, and an opinion from plaintiff that the value was $600,000. Plaintiff, as owner, was a competent witness on value. Highway Comm. v. Helderman, 285 N.C. 645, 652, 207 S.E. 2d 720, 725 (1974).\nFinally, it is important that the court valued plaintiff\u2019s property at a substantially lower figure than Idol\u2019s valuation of $1,433,375. The court\u2019s figure of $850,000 was closer to plaintiff\u2019s opinion of $600,000 than to Idol\u2019s opinion. This further illustrates the court\u2019s reliance on factors other than Idol\u2019s testimony. It was not error to allow Idol to testify as to the fair market value of plaintiff\u2019s property or to conclude that the property\u2019s value was $850,000.\nPlaintiffs final assignment of error is that testimony of the income and estate of plaintiffs present wife and consideration of that evidence in determining plaintiffs ability to pay increased alimony was incorrect. We find no error on this ground for two reasons.\nFirst, the court\u2019s consideration of the assets of plaintiffs present wife was negligible. The order restricted consideration of her income to weighing \u201cplaintiffs necessary and reasonable expenses and debts against his financial ability to pay defendant\u2019s demands . . .\u201d (Emphasis added). In addition, only plaintiffs earnings and partnership interest were explicitly considered by the trial court in determining his ability to pay.\nSecond, a decision with facts similar to this case allowed consideration of the present wife\u2019s income in determining the husband\u2019s ability to pay. The court in Wyatt v. Wyatt, 35 N.C. App. 650, 242 S.E. 2d 180 (1978), based its decision largely on the fact that the present wife was a member of the same household as the husband. \u201cUnder these circumstances, it was proper for the court to consider the substantial income received by a member of that household who shared in the responsibility for its support.\u201d 35 N.C. App. at 652, 242 S.E. 2d at 181. Here, as in Wyatt, plaintiff and his present wife live together. The fact that the husband raised the issue of his present wife\u2019s income in Wyatt, unlike this case where the former wife raised the issue, is not enough to dissuade our reliance in part on it.\nDefendant\u2019s Appeal\nDefendant first questions the value of plaintiff\u2019s interest in MRW Company. The discussion above disposes of the issue and we find no error as to the court\u2019s valuation of the property.\nA second assignment of error is that the trial judge incorrectly calculated the financial status of the parties in 1973 and 1980. Defendant in essence is attacking the trial court\u2019s findings of fact. Under G.S. 1A-1, Rule 52(a), the trial judge is required to find facts specially in any action tried without a jury. \u201c[I]f supported by competent evidence, such facts are as conclusive as the verdict of a jury.\u201d Coggins v. City of Asheville, 278 N.C. 428, 434, 180 S.E. 2d 149, 153 (1971). Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E. 2d 29, 33 (1968).\nDefendant here is rearguing facts that have a basis in the record and support the findings of the order from which she appeals. Three examples illustrate her approach. First, she \u201cfinds\u201d that plaintiffs net worth is $1,078,924. This figure apparently includes the estimate of Clyde Idol that plaintiff\u2019s interest in MRW was worth over $715,000. But the trial court made a specific finding that plaintiffs interest was worth only $425,000. The court\u2019s finding was based on competent evidence as previously discussed.\nSecond, she disputes as too low the court\u2019s determination that plaintiffs average income for the years 1977 through 1979 was $55,000. We do not find this amount to be \u201carbitrarily . . . established\u201d as defendant contends, but find sufficient evidence on an examination of the record to support the trial court.\nThird, defendant argues that the court did not take judicial notice of the consumer price indexes introduced into evidence. This contention ignores the explicit statement in the record that \u201cthe value of the dollar has depreciated substantially between January 4, 1973 and . . . May, 1980 . . . .\u201d Thus, there is in the record competent evidence to support the court\u2019s findings and we can find no error on this issue.\nDefendant next attacks the court\u2019s finding that her needs that she listed at trial were unrealistic in light of available funds, especially given the plaintiffs property holdings in MRW and the possibility of converting them into income-producing property. We have already discussed the court\u2019s improper consideration of plaintiffs earning capacity.\nAs for defendant\u2019s needs, she estimated them to be over $92,000 a year. While \u201caccustomed standard of living\u201d is a factor that G.S. 5046.5(a) lists for determining the amount of alimony, there is no evidence that defendant was ever accustomed to the standard of living she now seeks while she was married to plaintiff. The trial court found that plaintiffs total income in the early 1970\u2019s was less than half of what defendant now seeks. Moreover, there is sufficient evidence in the record to support the court\u2019s findings of plaintiffs income being much less than what defendant now seeks. We will not disturb the court\u2019s finding of unrealistic demands by the defendant. It should be remembered that \u201cthe question of the correct amount of alimony and child support is a question of fairness to all parties.\u201d Beall, 290 N.C. at 674, 228 S.E. 2d at 413.\nDefendant\u2019s fourth argument concerns the amount of alimony awarded by the court. In her brief under this topic she discusses a number of areas that are not relevant to this issue. Given the facts of this case and our discussion above on factors to be considered in setting alimony, we find no abuse of discretion by the trial judge. Eudy v. Eudy, 288 N.C. 71, 215 S.E. 2d 782 (1975); Schloss v. Schloss, 273 N.C. 266, 160 S.E. 2d 5 (1968); Sayland v. Sayland, 267 N.C. 378, 148 S.E. 2d 218 (1966).\nThe final assignment of error by defendant is in essence an attack on the court\u2019s findings of fact. She argues that there was not full disclosure of plaintiffs assets at trial. We can only conclude that a comparison of the record with the order appealed from reveals evidence to support the trial court.\nWe find no error prejudicial to either plaintiff or defendant and the order appealed from is\nAffirmed.\nJudges HEDRICK and WELLS concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Harrell and Titus, by Bernard A. Harrell and Richard C. Titus, for plaintiff appellant.",
      "Celeste Gold Broughton, pro se."
    ],
    "corrections": "",
    "head_matter": "ROBERT B. BROUGHTON v. CELESTE GOLD BROUGHTON\nNo. 8110DC58\n(Filed 21 September 1982)\n1. Divorce and Alimony \u00a7 19.4\u2014 modification of alimony award \u2014 changed circumstances \u2014 sufficiency of evidence\nIn an action for modification of an alimony award, the trial court did not err in finding changed circumstances sufficient to support an increase in alimony where evidence was presented on the estates, earnings and accustomed standard of living of the parties, and findings were made concerning the pre-divorce lifestyle, the property holdings of both parties and the plaintiffs income. G.S. 50-16.9 and G.S. 50-16.5.\n2. Divorce and Alimony \u00a7 19.4\u2014 modification of alimony \u2014 earning capacity finding erroneous \u2014 insufficient to cause remand\nThe trial court erred in entering a finding concerning plaintiffs earning capacity where there were no facts showing a deliberate attempt to depress his earnings; however, the error was not fatal since the award could have been properly based on the plaintiffs earnings under G.S. 50-16.5(a).\n3. Divorce and Alimony \u00a7 19\u2014 dependent spouse\u2019s earning capacity \u2014 necessity for findings\nIt was not a denial of equal protection for the trial court to consider plaintiffs earning capacity but not to consider defendant\u2019s earning capacity in making an award of alimony.\n4. Divorce and Alimony \u00a7 19\u2014 modification of alimony award \u2014award of attorney\u2019s fees proper\nThe trial court did not err in awarding attorney\u2019s fees to defendant for the motion directed at increased alimony where defendant showed (1) she was a \u201cdependent spouse as defined by G.S. 50-16.1(3), (2) she was entitled to the relief demanded, and (3) defendant did not have sufficient means to defray expenses of the suit. Further, G.S. 50-ll(c) allows an award of counsel fees \u201cfor services rendered to a dependent spouse subsequent to an absolute divorce in seeking to obtain or in resisting a motion for revision of alimony or other rights . . .\n5. Evidence \u00a7 45\u2014 testimony as to value of property \u2014 properly admitted\nThe trial court did not err in allowing a witness to testify as to the fair market value of plaintiffs property since the witness testified as to his personal examination of the property, as to how it was zoned and to its highest and best use therefore laying a proper foundation for the testimony.\n6. Divorce and Alimony \u00a7 19\u2014 modification of alimony award \u2014 testimony concerning income and estate of plaintiffs present wife \u2014 no error\nAdmission of testimony concerning the income and estate of plaintiffs present wife and consideration of that evidence in determining plaintiffs ability to pay increased alimony was not error since (1) the court\u2019s consideration of the assets of plaintiffs present wife was negligible, and (2) the Court in Wyatt v. Wyatt, 35 N.C. App. 650 (1978) allowed consideration of the present wife\u2019s income in determining the husband\u2019s ability to pay.\n7. Divorce and Alimony \u00a7 19.7\u2014 modification of alimony award \u2014 review of court\u2019s findings \u2014 supported by competent evidence\nIn a suit concerning modification of alimony, several findings concerning plaintiffs net worth, plaintiffs average income, the consumer price indexes, defendant\u2019s needs, and the amount of alimony awarded were supported by competent evidence and therefore are conclusive on appeal.\nAPPEAL by both parties from Braswell, Judge. Order entered 15 July 1980 in District Court, Wake County. Heard in the Court of Appeals 31 August 1982.\nThis appeal is from a motion in the cause by defendant seeking an increase in alimony and child support from an order originally entered on 4 January 1973.\nPlaintiff and defendant were married in 1964 and lived together until 1969, when plaintiff moved out of their residence. They were divorced in 1973. Two children were born to the couple, one in 1965 and one in 1967.\nIn the 1980 order now before us the trial court made findings of fact about the property of each party and concluded that the defendant was \u201csubstantially dependent\u201d on the plaintiff at the time of the 1973 order.\nThe 1980 order also contained findings relevant to this case that have occurred since 1973. These included findings that the residence of defendant had lapsed into disrepair, that defendant had more than $21,000 in unpaid State and Federal tax liability, that she had received inheritances in 1973 and 1975, and that she had declared a revocable trust in 1977 with her residence as the corpus, which was mortgaged twice in 1978 and 1979. In its order the court also detailed the plaintiffs financial status and holdings and considered an appraisal report on the value of real property in which plaintiff has an interest.\nThe real property owned by plaintiff and his present wife as tenants by the entirety was listed and the financial status of the wife was detailed. The order limited consideration of the present wife\u2019s income to weighing \u201cplaintiffs necessary and reasonable expenses and debts against his financial resources in determining his financial ability to pay defendant\u2019s [increased] demands.\u201d\nFindings on the reasonable needs of the defendant, the minor children and the plaintiff were itemized by the court. According to the order, the sum of plaintiff\u2019s needs, alimony and child support would exceed his average income over the prior three years even if he converted his partnership interest into an income producing asset.\nDefendant\u2019s legal expenses were estimated by the court and found to be reasonable. The findings of fact concluded that defendant is still substantially dependent on plaintiff, that her standard of living is substantially lower and her debts substantially higher than at the time of the 1973 order.\nThe court defined the $1,500 per month award in the 1973 order as $500 per month alimony and $500 per month for each child as child support. The order concluded that there had been a material and substantial change in the circumstances and conditions of the parties that justified an increase in what defendant should receive. Although the order left the child support, medical and dental expenses at the same amount, the permanent alimony was increased to $1,000 per month, and defendant was granted $5,567.50 for attorney\u2019s fees for that part of her motion directed at increased alimony. Moreover, while it was not so ordered the court also found that the plaintiff could increase his ability to pay without depleting his estate by converting his non-income producing partnership interest into an income producing asset.\nFrom this order, both parties appealed.\nHarrell and Titus, by Bernard A. Harrell and Richard C. Titus, for plaintiff appellant.\nCeleste Gold Broughton, pro se."
  },
  "file_name": "0778-01",
  "first_page_order": 810,
  "last_page_order": 820
}
