{
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  "name": "MARGARET SKAMARAK v. DAVID WILLIAM SKAMARAK",
  "name_abbreviation": "Skamarak v. Skamarak",
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  "casebody": {
    "judges": [
      "Judges Wells and Whichard concur."
    ],
    "parties": [
      "MARGARET SKAMARAK v. DAVID WILLIAM SKAMARAK"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nOn 28 December 1984, the plaintiff filed an action asking, inter alia, for a divorce from bed and board from the defendant on the grounds of abandonment and the offering of indignities to the plaintiff, and for permanent alimony. The defendant answered denying all material allegations of the plaintiffs complaint, raising the affirmative defenses of recrimination, abandonment, and spendthrift. The defendant also filed a counterclaim, designated as such, alleging that plaintiff constructively abandoned the defendant and that the plaintiff offered indignities to the defendant. The counterclaim prayed that he be granted a divorce from bed and board from the plaintiff. The plaintiff never answered the defendant\u2019s counterclaim.\nOn 16 April 1985, this case came on for jury trial in Wake County District Court. At the close of all the evidence the defendant made a motion for directed verdict on the counterclaim alleging that the allegations of the counterclaim had been admitted because of the plaintiff s failure to reply to the counterclaim. The trial court denied the defendant\u2019s motion. Four issues were submitted to the jury:\nDid the Defendant, without provocation, offer such indignities to the person of the Plaintiff as to render her life burdensome and condition intolerable?\nDid the Defendant willfully abandon the Plaintiff without just cause or provocation?\nDid the Plaintiff, without provocation, offer such indignities to the person of the Defendant as to render his life burdensome and condition intolerable?\nDid the Plaintiff willfully abandon the Defendant without just cause or provocation?\nThe jury answered the first issue \u201cyes\u201d and answered the remaining three issues \u201cno.\u201d The trial court entered an Order granting the plaintiff a divorce from bed and board from the defendant, ordering the defendant to pay $700 per month in alimony, and awarding plaintiff $300 in attorney\u2019s fees. From the verdict and Order the defendant appeals.\nThe defendant contends that the trial court erred by refusing to rule on the effect of plaintiffs failure to file a reply to defendant\u2019s counterclaim or to grant defendant a directed verdict on the issues raised in the counterclaim, because by failing to answer the counterclaim the plaintiff was deemed to have admitted the allegations in the counterclaim. We disagree.\nG.S. 50-10 provides:\nThe material facts in every complaint asking for a divorce or for an annulment shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a judge or jury.\nIn Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7 (1925), the Supreme Court of North Carolina, presented with the exact issue before us, held:\nTrue, no answer was interposed by the plaintiff to the complaint filed by his wife in her cross-action, but the material facts in every complaint asking for a divorce, are deemed to be denied under the statute, and no judgment is allowed to be given in favor of the plaintiff in any such complaint until all the material facts have been found by a jury.\nId. at 421, 130 S.E. at 8-9. This is still the law in North Carolina with regard to a divorce from bed and board. Cf G.S. 50-10 (1985 Cum. Supp.) (with regard to absolute divorce). Thus, all the allegations of defendant\u2019s counterclaim, wherein he sought a divorce from bed and board, were deemed to be denied by the plaintiff. This assignment is overruled.\nThe defendant contends that the trial court erred by failing to instruct the jury on the issue of plaintiffs being a spendthrift. In defense to a claim for alimony, the supporting spouse may claim that the dependent spouse has committed any of the acts set forth in G.S. 50-16.2. See G.S. 5046.5(b); Self v. Self, 37 N.C. App. 199, 200-01, 245 S.E. 2d 541, 542-43 (1978). Under G.S. 50-16.2, grounds for alimony exist where the supporting spouse is a spendthrift. In this case the defendant, in defense to plaintiffs claim for alimony, pled that the plaintiff was a spendthrift. A spendthrift is a person who spends money profusely and improvidently. Black\u2019s Law Dictionary 1255 (rev. 5th ed. 1979). The defendant presented evidence showing how the plaintiff spent money during the marriage. The majority of the testimony in this case concerned the couple\u2019s financial condition and the wife\u2019s spending habits. The defendant requested that the trial court submit the issue of spendthrift to the jury. \u201c[I]t is the duty of the trial judge to submit to the jury those issues \u2018which are raised by the evidence, and which, when answered, will resolve all material controversies between the parties.\u2019 \u201d Wilkinson v. Weyerhaeuser Corp., 67 N.C. App. 154, 158, 312 S.E. 2d 531, 533 (1984), quoting Wooten v. Nationwide Mutual Insurance Co., 60 N.C. App. 268, 298 S.E. 2d 727 (1983). Defendant properly raised the issue of spendthrift and offered evidence to support his allegation. We hold that the trial court erred in refusing to submit the issue of spendthrift to the jury.\nThe defendant assigns error to the trial court\u2019s Order awarding $700 a month in alimony to the plaintiff and $300 in attorney\u2019s fees. The defendant contends that the trial court failed to make the required findings of fact to support both awards. We agree.\nG.S. 5046.5(a) states: \u201cAlimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.\u201d The trial court must at least make findings sufficiently specific to indicate that the trial judge properly considered each of the factors established by G.S. 5046.5(a) for a determination of an alimony award. Quick v. Quick, 305 N.C. 446, 290 S.E. 2d 653 (1982); Spencer v. Spencer, 70 N.C. App. 159, 170, 319 S.E. 2d 636, 645 (1984). To have a valid order the trial court must make detailed findings concerning the following:\n(1) the estates of the parties;\n(2) the earnings of the parties;\n(3) the earning capacity of the parties;\n(4) the condition of the parties; and\n(5) the accustomed standard of living of the parties.\nSpencer, supra. The requirement for detailed findings is thus not a mere formality or an empty ritual; it must be done. Coble v. Coble, 300 N.C. 708, 268 S.E. 2d 185 (1980). The trial judge failed to make the necessary findings in this case. There are no findings as to the earning capacity of the parties, or the condition of the parties. There are inadequate findings as to the accustomed standards of living of the parties and the estates of the parties. \u201cThe existence of evidence in the record from which such findings could be made cannot remedy this failing. What the evidence does in fact show is for the trial court to determine, not this Court.\u201d Spencer, supra, at 170, 319 S.E. 2d at 645. The Order of the trial court on alimony must be vacated.\nG.S. 50-16.4 provides for attorney\u2019s fees for the dependent spouse in actions for alimony. The order awarding attorney\u2019s fees must set out findings of fact upon which the award of attorney\u2019s fees is made. Self v. Self, supra.\nThe trial court\u2019s Order in this case is devoid of any findings concerning attorney\u2019s fees; therefore, the award of attorney\u2019s fees is vacated.\nThe defendant contends the trial court made additional errors on various evidentiary matters. We have reviewed those assignments of error and find no prejudicial error.\nThe Order of the trial court is vacated and this case is remanded for a new trial.\nNew trial.\nJudges Wells and Whichard concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "M. Jean Calhoun and David Parker for plaintiff appellee.",
      "Sullivan & Pearson by Mark E. Sullivan for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "MARGARET SKAMARAK v. DAVID WILLIAM SKAMARAK\nNo. 8510DC1027\n(Filed 3 June 1986)\n1. Divorce and Alimony \u00a7 2.2\u2014 divorce from bed and board \u2014 failure to reply to counterclaim\nThe trial court properly refused to grant defendant a directed verdict on his counterclaim for divorce from bed and board because plaintiff failed to reply to the counterclaim since all allegations in a divorce action are deemed to be denied by the opposing party. N.C.G.S. \u00a7 50-10.\n2. Divorce and Alimony \u00a7 4.2\u2014 alimony action \u2014 spendthrift issue\nThe trial court in an alimony action erred in refusing to submit an issue as to whether plaintiff was a spendthrift where defendant properly raised the issue and offered evidence to support his allegation. N.C.G.S. \u00a7 50-16.2.\n3. Divorce and Alimony \u00a7 17.3\u2014 award of alimony \u2014 insufficient findings\nThe trial court failed to make sufficient findings to support its award to plaintiff of $700 per month in alimony in an action for divorce from bed and board where no findings were made as to the earning capacity or the condition of the parties, and findings as to the accustomed standard of living and estates of the parties were inadequate.\n4. Divorce and Alimony 8 18.16\u2014 attorney fees \u2014 failure to make findings\nThe trial court erred in awarding the plaintiff in an alimony action $300 in attorney\u2019s fees without making any findings of fact concerning attorney\u2019s fees.\nAPPEAL by defendant from Bullock, Judge. Order entered 2 May 1985 in District Court, Wake County. Heard in the Court of Appeals 6 February 1986.\nM. Jean Calhoun and David Parker for plaintiff appellee.\nSullivan & Pearson by Mark E. Sullivan for defendant appellant."
  },
  "file_name": "0125-01",
  "first_page_order": 149,
  "last_page_order": 153
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