{
  "id": 8358332,
  "name": "ALICE K. PHILLIPS v. JAMES A. PHILLIPS",
  "name_abbreviation": "Phillips v. Phillips",
  "decision_date": "1986-11-04",
  "docket_number": "No. 8610DC439",
  "first_page": "228",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T16:07:52.921422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges WEBB and BeCTON concur."
    ],
    "parties": [
      "ALICE K. PHILLIPS v. JAMES A. PHILLIPS"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nDefendant first argues that the trial court erred in determining that the plaintiff was a dependent spouse and accordingly that the award of alimony is invalid. We disagree.\nG.S. 50-16.1(3) defines a \u201cdependent spouse\u201d as one who is either (1) actually substantially dependent on the other spouse for his or her maintenance and support or (2) substantially in need of that maintenance and support. In Williams v. Williams, 299 N.C. 174, 261 S.E. 2d 849 (1980), our Supreme Court discussed that definition. There, the Court held that a spouse is \u201cactually substantially dependent\u201d if they are without the means to provide for his or her accustomed standard of living. Even if a spouse is not actually substantially dependent, they are nevertheless a dependent spouse under the second part of the statute\u2019s definition if, considering the parties\u2019 earnings, earning capacity, estates, and other factors, the spouse seeking alimony demonstrates the need for financial contribution from the other spouse to maintain his or her accustomed standard of living.\nApplying those principles here, we hold that the trial court did not err in determining that the plaintiff is a dependent spouse. The trial court found that plaintiff had monthly expenses of $1,300 and a monthly salary of $978. That leaves her with a deficit of $322 a month. From these facts, the trial court could have found that plaintiff was both actually substantially dependent on defendant and substantially in need of defendant\u2019s support. Furthermore, the trial court\u2019s findings illustrate that it properly considered the parties\u2019 earnings, earning capacity, debts, assets, and accustomed standard of living.\nThe defendant argues that the trial court\u2019s finding that the plaintiffs reasonable expenses are now $1,300, which equals their combined expenses prior to this action, shows that she needs financial support only to increase her standard of living, not to maintain it. Nothing else in the record, however, supports defendant\u2019s argument and it does not necessarily follow that one\u2019s standard of living has risen merely because their expenses have increased. Therefore, defendant\u2019s argument is without merit.\nOnce a trial court determines that a spouse is dependent and is entitled to alimony, its award will not be disturbed on appeal absent a showing of abuse of discretion. Quick v. Quick, 305 N.C. 446, 290 S.E. 2d 653 (1982). The trial court concluded that the defendant was able to comply with the award and that the award was fair and reasonable under all the circumstances. We find no abuse of discretion in these conclusions.\nContrary to the trial court\u2019s conclusion, defendant contends that he does not have the financial ability to comply with the award. Although the defendant\u2019s reasonable monthly expenses exceed his monthly income by approximately $300, the same is true for the plaintiff. Neither party can, therefore, afford to vacate the home and pay for other living accommodations. The plaintiff, however, is the only one eligible for an award of alimony. Since it is the plaintiff, and not the defendant, who will continue making the mortgage payments, we believe that the trial court\u2019s award of possession of the home and furnishings is fair and just to both parties. Consequently, we hold that the trial court did not abuse its discretion.\nThe defendant next argues that the trial court made two findings of fact, which are actually conclusions of law, that the plaintiff is a dependent spouse. Defendant argues that they are unsupported by the necessary factual findings. We have already decided, however, that the trial court\u2019s conclusion that plaintiff is a dependent spouse is supported by facts to which the defendant has not excepted. Therefore, we need not decide whether the trial court mislabeled any of its findings.\nDefendant has also assigned as error that portion of the judgment which excludes him from the marital home. Since, as defendant admits, G.S. 5046.7(a) allows a trial court to order possession of real property as alimony, we fail to see the basis of his argument. Excluding the supporting spouse from the marital home is simply a natural consequence of a judgment which grants possession of the marital home to the dependent spouse. This assignment of error is without merit.\nFinally, defendant challenges the trial court\u2019s order in the judgment which prevents him from removing his personal property absent an agreement between the parties and proper scheduling between their attorneys. We have a difficult time believing that this question has not become moot in the time since the judgment was issued. Since, however, the question is raised and argued in the briefs, we will address it.\nThe obvious and legitimate intent of the order is to insure that the removal of defendant\u2019s personal property is accomplished peacefully. Certainly, in issuing its judgment, a trial court has broad discretion in the manner in which it grants relief and it may order whatever relief the circumstances demand. See 49 C.J.S. Judgments Section 67 (1947). Even so, we believe the order here exceeds what is reasonably necessary. The order subjects the removal of defendant\u2019s property to the unbridled discretion of the plaintiff. Given what has apparently been an unfriendly history between the parties since their separation, a possibility exists that the plaintiff could abuse the order. Therefore, we reverse this part of the judgment and remand the case for entry of a more appropriate order regarding the removal of defendant\u2019s personal property.\nAffirmed in part; reversed and remanded in part.\nJudges WEBB and BeCTON concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Carter G. Mackie, for the plaintiff-appellee.",
      "Donald B. Hunt, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "ALICE K. PHILLIPS v. JAMES A. PHILLIPS\nNo. 8610DC439\n(Filed 4 November 1986)\n1. Divorce and Alimony \u00a7 17.3\u2014 alimony \u2014 wife as dependent spouse \u2014 sufficiency of evidence\nThe trial court did not err in determining that plaintiff wife was the dependent spouse, though plaintiffs salary was higher than that of defendant, where the court found that plaintiff had monthly expenses of $1,300 and a monthly salary of $978; from these facts the court could have found that plaintiff was both actually substantially dependent on defendant and substantially in need of defendant\u2019s support; and the court\u2019s findings illustrated that it properly considered the parties\u2019 earnings, earning capacity, debts, assets, and accustomed standard of living. N.C.G.S. \u00a7 60-16.1(3).\n2. Divorce and Alimony \u00a7 17.3\u2014 alimony \u2014 wife\u2019s living expenses \u2014 findings proper\nThere was no merit to defendant\u2019s contention that the trial court\u2019s finding that plaintiffs reasonable expenses were $1,300, which equalled the parties\u2019 combined expenses prior to this action, showed that she needed financial support only to increase her standard of living, not to maintain it.\n3. Divorce and Alimony \u00a7 17\u2014 husband\u2019s removal of personal property from wife\u2019s home \u2014 order improper\nThe trial court\u2019s order preventing defendant from removing his personal property from the marital home absent an agreement between the parties and proper scheduling between their attorneys exceeded what was necessary to insure peaceful removal of defendant\u2019s personal property.\nAPPEAL by defendant from Payne, Judge. Judgment entered 8 August 1985 in District Court, WAKE County. Heard in the Court of Appeals 24 September 1986.\nPlaintiff brought this action for divorce from bed and board and alimony. The defendant answered and counterclaimed for divorce from bed and board, alimony, and equitable distribution.\nThe relevant findings of the trial court were not excepted to and are conclusive on appeal. Those findings show the following. The parties were married on 25 May 1980. During the marriage, defendant subjected plaintiff to verbal abuse and sufficient physical abuse as to give rise to grounds for alimony under G.S. 50-16.2(7). While living together, the parties\u2019 monthly expenses were $1,300.00. Of that amount, defendant contributed $600.00 from his monthly income of $706.00 and the plaintiff contributed the bal-anee out of her $978.00 monthly salary. At the time of the trial, each party\u2019s income had remained unchanged and plaintiffs and defendant\u2019s expenses were $1,300.00 and $1,000.00 respectively. In addition, plaintiff owned a 1983 Ford automobile, was liable for the mortgage debt of the marital home, and had other debts in excess of $1,000.00. Defendant had cash assets of almost $1,000.00, title to a 1984 Ford, and $370.00 in outstanding debts. Both parties had an ownership interest in the marital home.\nThe trial court denied all portions of defendant\u2019s counterclaim, granted plaintiff a divorce from bed and board, and awarded plaintiff possession of the marital home and its furnishings as permanent alimony. The court concluded that the plaintiff was a dependent spouse within the meaning of G.S. 50-16.1(3) and that defendant was a supporting spouse within the meaning of G.S. 50-16.1(4). It also concluded that the defendant was able to comply with the alimony award and that the award was fair and reasonable under all the circumstances.\nCarter G. Mackie, for the plaintiff-appellee.\nDonald B. Hunt, for the defendant-appellant."
  },
  "file_name": "0228-01",
  "first_page_order": 256,
  "last_page_order": 259
}