{ "id": 8359029, "name": "SHIRLEY PATTON v. DAVID E. PATTON", "name_abbreviation": "Patton v. Patton", "decision_date": "1988-02-16", "docket_number": "No. 8714DC838", "first_page": "715", "last_page": "720", "citations": [ { "type": "official", "cite": "88 N.C. App. 715" } ], "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": "348 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "318 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732110 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc/318/0404-01" ] }, { "cite": "337 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "78 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520753 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/78/0247-01" ] }, { "cite": "271 S.E. 2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "135-36" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "307 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527382 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0600-01" ] }, { "cite": "302 S.E. 2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522179 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0318-01" ] }, { "cite": "352 S.E. 2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168525 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0353-01" ] }, { "cite": "348 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732110 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0404-01" ] }, { "cite": "337 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520753 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0247-01" ] } ], "analysis": { "cardinality": 477, "char_count": 11220, "ocr_confidence": 0.814, "pagerank": { "raw": 1.4513104388476776e-07, "percentile": 0.6550976524113954 }, "sha256": "3b73d9c4c9a2989e03442ea5ccd8eec7fa44e6a9f7cd727e1ba1972680725e52", "simhash": "1:a732ee7a075fd87d", "word_count": 1844 }, "last_updated": "2023-07-14T22:20:42.285314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and Smith concur." ], "parties": [ "SHIRLEY PATTON v. DAVID E. PATTON" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nDefendant first argues the trial court again failed to make a sufficient finding of fact as to the value of defendant\u2019s interest in his closely-held corporation. In Patton v. Patton, 318 N.C. 404, 348 S.E. 2d 593 (1986), the Supreme Court held that the finding of fact should be more than a mere enumeration of the factors considered by the trial court in determining the value of defendant\u2019s interest. The finding of fact has now been replaced with a detailed finding which indicates what the trial court attributed to each factor. The Supreme Court did not require a total recitation of evidence considered, but only required a more complete basis for the conclusion rendered. The new finding complies with this requirement. Defendant raised no issue as to the sufficiency of evidence. He only challenged the sufficiency of the finding of fact. Since the new finding is sufficiently detailed, this argument has no merit.\nDefendant next argues \u201cthe trial court committed reversible error in excluding the testimony of Paul J. Gworek at the supplemental equitable distribution hearing.\u201d At the supplemental hearing defendant wanted additional testimony to be heard, but the judge made it clear that he did not want to \u201cretry this case again.\u201d\nThis Court has previously said that on remand it is not necessary for a trial court to hear more evidence on a valuation question if no additional evidence is needed to make an appropriate finding of fact. Harris v. Harris, 84 N.C. App. 353, 352 S.E. 2d 869 (1987). In this case, the Supreme Court did not indicate more evidence was needed, but instead said that the finding of fact needed to more fully explain the basis for the valuation. The trial court determined there was no need for more evidence and such a decision was within its discretion.\nDefendant further contends the trial court erred in holding him in willful contempt for failure to pay alimony because \u201cthere was no finding of fact that he had the ability to comply.\u201d If the evidence plainly shows the defendant was capable of complying with the alimony order, then absence of a specific finding is immaterial. Daugherty v. Daugherty, 62 N.C. App. 318, 302 S.E. 2d 664 (1983).\nIn this case, by the time the motion for contempt was heard in March 1987 defendant had failed to make 33 payments of $1,000 each. This failure to pay occurred even after this Court in Patton v. Patton, 78 N.C. App. 247, 337 S.E. 2d 607 (1985), held the amount was reasonable and after the Supreme Court denied defendant\u2019s Petition for Discretionary Review on the alimony issues.\nUpon reviewing the evidence relied upon by the trial court, we find there was sufficient evidence that defendant was capable of complying with the order. Although the court found defendant\u2019s salary to be $2,000 per month, other findings of fact indicate defendant was paid by his business in the form of fringe benefits and that the retained earnings of his corporation had grown more than $22,000 since the original order. Defendant challenges none of these findings except for the finding that defendant\u2019s present wife is supplied with an automobile by defendant\u2019s corporation. Defendant argues there is no evidence to support this finding and that his wife actually makes the payments on the vehicle. There is contradictory evidence in the record as to this issue, but even if there is insufficient evidence as to this one finding, there remain ample findings to support the court\u2019s conclusions and order. This argument has no merit.\nDefendant next argues the court erred by \u201cfailing to retroactively reduce, or to reduce or terminate, the defendant\u2019s alimony obligation.\u201d We have already addressed the past payments due to plaintiff and it is clear there should be no retroactive reduction. As to reduction in future payments, there must be a substantial change of circumstances to warrant a modification. Medlin v. Medlin, 64 N.C. App. 600, 307 S.E. 2d 591 (1983). There cannot be a conclusion of substantial change in circumstances based solely on change in income. Id. The overall circumstances of the parties must be compared with those at the time of the award.\nDefendant has not met his burden in this case. His arguments are based only on income of the parties. Defendant fails in his arguments to consider financial standing of plaintiff and her accustomed standard of living. Although plaintiff, at the time of the hearing, made $22,788 per year, she had a debt of $20,000. Much of this debt is attributable to defendant\u2019s failure to make past alimony payments. For these reasons, the trial court did not err in failing to reduce defendant\u2019s alimony payments.\n[5J Finally, defendant argues the trial court erred in awarding additional attorney\u2019s fees to plaintiff. The requirements for awarding attorney\u2019s fees are found in Clark v. Clark, 301 N.C. 123, 135-36, 271 S.E. 2d 58, 67 (1980):\nIn order to receive an award of counsel fees in an alimony case, it must be determined that the spouse is entitled to the relief demanded; that the spouse is a dependent spouse; and that the dependent spouse is without sufficient means whereon to subsist during the prosecution of the suit, and defray the necessary expenses thereof.\nPlaintiff is entitled to the relief prayed for as has already been decided. It is also clear she is a dependent spouse earning less income than defendant. The record also shows plaintiff has not been able to pay her attorney and was in debt $13,000 prior to the contempt hearing. Obviously, she cannot adequately defray the expenses of the contempt proceeding. Defendant has shown no abuse of discretion by the trial court in awarding the fees, and this argument fails.\nAffirmed.\nJudges BECTON and Smith concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Maxwell, Freeman & Beason, P.A., by James B. Maxwell, for plaintiff, appellee.", "Clayton, Myrick, McClanahan & Coulter, by Robert W. My-rick and Robert D. McClanahan, for defendant, appellant." ], "corrections": "", "head_matter": "SHIRLEY PATTON v. DAVID E. PATTON\nNo. 8714DC838\n(Filed 16 February 1988)\n1. Divorce and Alimony 8 30\u2014 equitable distribution \u2014 value of closely held corporation-sufficiency of finding of fact\nIn an action for child support, alimony, attorney\u2019s fees, and equitable distribution, there was no merit to defendant\u2019s contention that the trial court failed to make a sufficient finding of fact as to the value of defendant\u2019s interest in his closely held corporation, since the Supreme Court in an earlier appeal of the case held that the finding of fact should be more than a mere enumeration of the factors considered by the trial court in determining the value of defendant\u2019s interest; the finding of fact was subsequently replaced with a detailed finding which indicated what the trial court attributed to each factor; and the new finding complied with the Supreme Court\u2019s requirement of a statement of a more complete basis for the conclusion rendered.\n2. Divorce and Alimony \u00a7 30\u2014 equitable distribution \u2014 value of closely held corporation \u2014 more evidence not required on remand\nThe trial court on remand was not required to hear more evidence of valuation with regard to defendant\u2019s closely held corporation, since the Supreme Court did not indicate more evidence was needed but instead said that the finding of fact needed to more fully explain the basis for the valuation.\n3. Divorce and Alimony \u00a7 21.5\u2014 failure to pay alimony \u2014 contempt\u2014evidence of ability to pay\nThe trial court did not err in holding defendant in willful contempt for failure to pay alimony, and the absence of a specific finding of ability to pay was immaterial, where there was sufficient evidence that defendant was capable of complying with the order in that his salary was $2,000 per month, he was paid by his business in the form of fringe benefits, and the retained earnings of his corporation had grown more than $22,000 since the original order.\n4. Divorce and Alimony \u00a7 19.3\u2014 modification of alimony \u2014 evidence of income \u2014 insufficient showing of change of circumstances\nDefendant failed to show a substantial change of circumstances to warrant modification of an alimony order where his arguments were based only on income of the parties.\n5. Divorce and Alimony \u00a7 18.16\u2014 award of attorney\u2019s fees proper\nThe trial court did not err in awarding additional attorney\u2019s fees to plaintiff where it had already been decided that plaintiff was entitled to the relief prayed for; she was a dependent spouse earning less income than defendant; plaintiff had been unable to pay her attorney and was in debt $13,000 prior to the contempt hearing; and she could not defray the expenses of the contempt proceeding.\nAPPEAL by defendant from LaBarre, Judge. Judgment entered 31 March 1987 in District Court, DURHAM County. Heard in the Court of Appeals 3 February 1988.\nThis is an action for child support, alimony, attorney\u2019s fees and equitable distribution. The parties were divorced on 1 December 1983. On 29 August 1984 plaintiff was awarded $1,000 per month in alimony, $500 per month in child support, the marital residence and personal property therein and attorney\u2019s fees of $3,000. Defendant was awarded his interest in businesses Pateo, Inc., and Wick-and-Leather, Inc., as well as personal property already removed from the marital residence.\nThis Court, in Patton v. Patton, 78 N.C. App. 247, 337 S.E. 2d 607 (1985), affirmed the trial court except in regard to attorney\u2019s fees. The case was remanded for proper findings of fact and entry of judgment as to attorney\u2019s fees. The North Carolina Supreme Court, in Patton v. Patton, 318 N.C. 404, 348 S.E. 2d 593 (1986), then affirmed this Court as to attorney\u2019s fees but reversed this Court and remanded the case for proper findings of fact concerning the value of defendant\u2019s interest in a closely-held corporation.\nBy order filed 31 March 1987 the trial court replaced the original finding of fact as to the attorney\u2019s fees. The new finding outlined the nature and scope of the services rendered by plaintiffs attorney. The judge noted the amount of time spent on plaintiffs case, what reasonable fees would be per hour, and the necessity and reasonableness of the representation in light of defendant\u2019s refusals to pay. The conclusion of law based upon this finding and the order requiring payment of attorney\u2019s fees were then reaffirmed.\nThe court also replaced the original finding as to the value of defendant\u2019s closely-held corporation. The judge found that defendant\u2019s interest in Pateo, Inc. was at least $85,000. In so finding, the judge considered an insurance proposal valuing defendant\u2019s interest at $207,000, financial statements by the corporation\u2019s accountants and retained earnings of the corporation. The judge further considered the nature and success of the business, and also used a formula to determine a capitalization of earnings ratio which showed a value above \u201cbook value.\u201d The conclusion of law based upon this finding and the order dividing marital assets were then reaffirmed.\nThe court further held defendant in contempt of court for failure to make payments, held that there should be no reduction in defendant\u2019s alimony payment as requested, and ordered defendant to pay an additional $4,500 in attorney\u2019s fees.\nDefendant appealed.\nMaxwell, Freeman & Beason, P.A., by James B. Maxwell, for plaintiff, appellee.\nClayton, Myrick, McClanahan & Coulter, by Robert W. My-rick and Robert D. McClanahan, for defendant, appellant." }, "file_name": "0715-01", "first_page_order": 743, "last_page_order": 748 }