{ "id": 8525894, "name": "CATHRINE LINTON STICKEL v. DELFORD LEFEW STICKEL", "name_abbreviation": "Stickel v. Stickel", "decision_date": "1982-08-17", "docket_number": "No. 8114DC1022", "first_page": "645", "last_page": "650", "citations": [ { "type": "official", "cite": "58 N.C. App. 645" } ], "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": "280 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569273 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0634-01" ] }, { "cite": "274 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "50 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2673238 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/50/0319-01" ] }, { "cite": "271 S.E. 2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "290 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "279 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567083, 8567051, 8567132, 8567023 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0402-03", "/nc/302/0402-02", "/nc/302/0402-04", "/nc/302/0402-01" ] }, { "cite": "272 S.E. 2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522434 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0516-01" ] }, { "cite": "254 S.E. 2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569249, 8569379, 8569416, 8569333, 8569302 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0299-01", "/nc/297/0299-04", "/nc/297/0299-05", "/nc/297/0299-03", "/nc/297/0299-02" ] }, { "cite": "252 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550343 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0334-01" ] }, { "cite": "265 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551243 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0438-01" ] }, { "cite": "183 S.E. 2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549830 ], "year": 1971, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0390-01" ] }, { "cite": "245 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552255 ], "year": 1978, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0272-01" ] }, { "cite": "239 S.E. 2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551853 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0720-01" ] } ], "analysis": { "cardinality": 565, "char_count": 11566, "ocr_confidence": 0.785, "pagerank": { "raw": 8.114486550543365e-08, "percentile": 0.4680238114268438 }, "sha256": "9961a3a20d62ba29844d0956e7d8b87dd5e63397448f995247c2babf307d1678", "simhash": "1:0f42f53baf8ee8be", "word_count": 1905 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Clark and Martin (Harry C.) concurred prior to 31 July 1982." ], "parties": [ "CATHRINE LINTON STICKEL v. DELFORD LEFEW STICKEL" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nDefendant argues by his first assignment that the trial court violated the best evidence rule by allowing plaintiff to introduce into evidence financial lists, or summaries, prepared from checks and itemized expenditures, which she used to show her past and future living expenses. Defendant contends that since there was no showing that the records upon which the summaries were based were so voluminous as to make it impracticable to examine them in court, plaintiff should have been required to introduce the checks, receipts and other underlying documents, rather than summaries thereof. We disagree, holding that defendant has misapprehended the purpose of the best evidence rule.\nThe rule exists to ensure that originals of documents are introduced into evidence where their contents are in issue. Plaintiff did not testify directly to what the records revealed, however, but used the summaries merely to illustrate testimony given from her own knowledge regarding expenses. In Chambless v. Chambless, 34 N.C. App. 720, 239 S.E. 2d 624 (1977), we held that lists of estimated expenses were admissible to illustrate a plaintiff\u2019s testimony as to the amount of her expenses. Here, as in Chambless, plaintiff testified, prior to the introduction of the lists, regarding her expenses. \u201c \u2018[I]f a fact has an existence independent of the terms of any writing, the best evidence rule does not prevent proof of such fact by the oral testimony of a witness having knowledge of it or by any other acceptable method of proof not involving use of the writing.\u2019 \u201d Cleary v. Cleary, 37 N.C. App. 272, 275, 245 S.E. 2d 824, 826 (1978), quoting 2 Stansbury\u2019s N.C. Evidence, \u00a7 191, at 103, n. 24 (Brandis Rev. 1973). Plaintiff\u2019s living expenses were a matter within her knowledge, and the contents of checks or receipts were not at issue. This assignment of error is overruled.\nDefendant next attacks the court\u2019s lump sum award to plaintiff of $30,000. He argues that the court made no findings or conclusions pertaining to the necessity of the award or his ability to pay it. He complains of the court\u2019s alleged failure to make findings and conclusions as to his reasonable living expenses, debts, and overall ability to pay alimony as ordered. Defendant further asserts that the court erred by ordering him to pay all real estate taxes and insurance on the marital home, and to provide medical insurance for plaintiff.\nThe court determined by its sixth conclusion\nThat in addition to permanent alimony, the plaintiff is entitled to a lump-sum alimony representing the differences in what the defendant should have provided to the plaintiff during the eighteen-month period of separation and what he has presently actually paid, both direct (sic) and indirect (sic), to the plaintiff.\nDefendant maintains that the judgment contains no findings pertaining to plaintiff\u2019s reasonable needs during the 18 months that elapsed between defendant\u2019s leave taking in December 1979 and the hearing in May 1981, or about plaintiffs standard of living during that period.\nOn the contrary, the record is replete with evidence of plaintiffs needs, and the court, based on that evidence, found\n[t]hat the monthly expenses of the wife, according to the standard of living that had been maintained for her and the family unit by defendant prior to his separation, . . . approximates $3,000.00 per month, and that such monthly expenses are reasonable in light of the standard of living to which the parties had become accustomed during their marriage.\nThe trial judge also found that plaintiff spent approximately $2,850 per month in the year 1979, and awarded her $2,750 per month permanent alimony. Yet plaintiff is also \u201centitled to subsistence in keeping with defendant-husband\u2019s means and ability and standard of living, not only from the time she instituted her action, but from the time her husband wrongfully separated himself from her.\u201d Austin v. Austin, 12 N.C. App. 390, 393, 183 S.E. 2d 428, 430 (1971). A $30,000 lump sum award, representing the wife\u2019s recoupment of alimony that should have been paid prior to the hearing, when viewed in light of plaintiff\u2019s needs, and diminished by the amounts defendant paid during the period in question, is supported by the findings and is not unreasonable. Furthermore, it is quite clear from the record and judgment that defendant, a surgeon, is able to pay the alimony awarded. The court plainly found that defendant\u2019s income was $74,500, $84,000, and $92,000 for the years 1978, 1979 and 1980, respectively, and that his monthly expenditures were $4,160.\nCounsel\u2019s reliance on Taylor v. Taylor, 46 N.C. App. 438, 265 S.E. 2d 626 (1980), for the proposition that the court\u2019s order of payment of the $30,000 lump sum amount, which would force him \u201cto liquidate, by sale or mortgage, his only remaining assets . . . to effect a division of his estate\u201d with plaintiff was error, results from a mistaken application of the holding in that case. The lump sum amount discussed in Taylor v. Taylor, supra, was deemed to be a division of defendant\u2019s estate rather than an award of alimony, and for that reason was vacated. The payment ordered by the court in the instant case was, on the other hand, designated to cover arrearages in alimony, as is proper. Gardner v. Gardner, 40 N.C. App. 334, 252 S.E. 2d 867, cert. den. 297 N.C. 299, 254 S.E. 2d 917 (1979). Moreover, there was no requirement of time within which the sum was to be paid. The court\u2019s order merely provided that a lien be placed on defendant\u2019s interest in the Stickel\u2019s house in the amount of $30,000.\nDefendant invokes the case of Tan v. Tan, 49 N.C. App. 516, 272 S.E. 2d 11 (1980), cert. den. 302 N.C. 402, 279 S.E. 2d 356 (1981), to bolster his assertion that the trial court erred by ordering defendant to pay all real estate taxes and insurance on the house and medical insurance for plaintiff without a finding as to the actual amount defendant would have to pay. He says that the actual alimony payments are so \u201cshrouded in mystery\u201d as to make it impossible to determine the fairness to the parties of the judgment. The Tan case, however, does not require that the monthly alimony payments be designated to the penny. The holding only denounces findings made by the trial judge that \u201care too meager to enable the reviewing court to determine whether the trial judge exercised proper discretion in deciding what defendant was to pay plaintiff. . . .\u201d The trial court in this case made findings regarding the amounts paid by defendant since the couple\u2019s separation for real estate taxes on their house, referred in his findings to exhibits introduced at trial revealing the costs of insurance and other expenses in the minutest detail, and made findings of fact as to defendant\u2019s earnings, expenses, and plaintiff\u2019s needs. The order contains sufficient information for us to review it, and to determine that it is supported by competent and uncontradicted evidence. Compare Quick v. Quick, --- N.C. App. ---, 290 S.E. 2d 653 (1982). We perceive nothing less than a sound exercise of discretion by the trial court in entering the award.\nAlthough he does not dispute defendant\u2019s entitlement to attorney\u2019s fees, defendant argues that the trial court improperly awarded counsel\u2019s fees to plaintiff for the services of two attorneys. If counsel fees are properly awarded, the amount of an award of attorney\u2019s fees in an alimony case is within the discretion of the trial judge, and is reviewable only for abuse of discretion. Clark v. Clark, 301 N.C. 123, 271 S.E. 2d 58 (1980). We find no evidence that the trial judge attached an unreasonable value to these services, or that defendant was forced to pay for a duplication of services. The assignment of error is overruled.\nDefendant, by his final assignment of error, maintains that he was erroneously denied a jury trial on the issues of plaintiff\u2019s dependency and the amount of alimony. The issue of dependency is for the trial judge, the case of Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E. 2d 243, cert. den., 302 N.C. 634, 280 S.E. 2d 449 (1981), being dispositive.\nThe judgment of the trial court is\nAffirmed.\nJudges Clark and Martin (Harry C.) concurred prior to 31 July 1982.", "type": "majority", "author": "MORRIS, Chief Judge." } ], "attorneys": [ "Maxwell, Freeman and Beason, by James B. Maxwell, for plaintiff appellee.", "Hunter, Wharton and Howell, by John V. Hunter, III, for defendant appellant." ], "corrections": "", "head_matter": "CATHRINE LINTON STICKEL v. DELFORD LEFEW STICKEL\nNo. 8114DC1022\n(Filed 17 August 1982)\n1. Divorce and Alimony \u00a7 18.8; Evidence \u00a7 31\u2014 introduction into evidence of financial list showing past and future living expenses \u2014 proper\nIn an action for divorce and alimony, the trial court did not violate the best evidence rule by allowing plaintiff to introduce into evidence financial lists, or summaries, prepared from checks and itemized expenditures, which she used to show her past and future living expenses. Plaintiffs living expenses were a matter within her knowledge, and the contents of the checks or receipts were not at issue; therefore, the lists of estimated expenses were admissible to illustrate plaintiffs testimony as to the amount of her expenses.\n2. Divorce and Alimony \u00a7 17.3\u2014 award of permanent alimony \u2014 lump sum payment \u2014 proper\nIn an action for alimony and divorce, a $30,000 lump sum award, representing the wife\u2019s recoupment of alimony that should have been paid prior to the hearing, when viewed in light of plaintiffs needs, and diminished by the amount defendant paid during the period in question, was supported by the findings and was not unreasonable. Furthermore, it was clear from the record and judgment that defendant, a surgeon, was able to pay the alimony awarded since the court plainly found that the defendant\u2019s income was $74,500, $84,000 and $92,000 for the years 1978, 1979 and 1980, respectively, and that his monthly expenditures were $4,160.\n3. Divorce and Alimony \u00a7 17.8\u2014 order to pay real estate taxes and insurance on home and medical insurance for plaintiff proper\nIn an action for alimony and divorce, the trial court did not err by ordering defendant to pay all real estate taxes and insurance on the house and medical insurance for plaintiff where the trial court made findings regarding the amounts paid by defendant, since the couple\u2019s separation, for real estate taxes on their house, referred in his findings to exhibits at trial revealing the cost of insurance and other expenses in the minutest details, and made findings of fact as to defendant\u2019s earnings, expenses, and plaintiffs needs.\nAPPEAL by defendant from LaBarre, Judge. Judgment entered 3 August 1981, in District Court, DURHAM County. Heard in the Court of Appeals 5 May 1982.\nPlaintiff and defendant husband were married 13 September 1952. One child, Nancy Leigh Stickel, was born to them in 1959 and is emancipated. Defendant left the marital home on 1 December 1979. Plaintiff sued for alimony 12 November of that year. The parties stipulated before trial that plaintiff had grounds for alimony pursuant to G.S. 50-16.2. The trial court overruled defendant\u2019s request for a jury trial and ordered defendant to pay lump sum alimony to plaintiff in the amount of $30,000 and $2,750 per month permanent alimony. Plaintiff was also awarded possession of the marital home, a continuation of medical insurance benefits, possession of an automobile, and $3,350 to assist in the payment of her attorney\u2019s fees. All other facts necessary for an understanding of this matter are set forth below.\nDefendant appeals, bringing forward six assignments of error.\nMaxwell, Freeman and Beason, by James B. Maxwell, for plaintiff appellee.\nHunter, Wharton and Howell, by John V. Hunter, III, for defendant appellant." }, "file_name": "0645-01", "first_page_order": 677, "last_page_order": 682 }