FLORES v. FLORES (2019)

Where the trial court correctly determined that plaintiff was not a dependent spouse and thus not entitled to alimony, we affirm the trial court's ruling.

Plaintiff Bessie Goff Flores and defendant Luis Fernando Flores were married on 5 June 1999 and separated on 30 November 2014. During the marriage, two children were born, who were ages sixteen and fourteen at the time of the proceedings. From May 2015 until September 2015, defendant made child support payments in the amount agreed to by the parties of $ 1,039.00 per month and remained current on his monthly payments.

On 10 September 2015, the parties entered into a consent order as to child support and post-separation support. The parties agreed that defendant would pay plaintiff $ 450.00 in post-separation support and $ 1,287.20 in child support per month. A judgment for absolute divorce was entered on 24 May 2016 and incorporated the parties’ separation agreement and property settlement, which divided marital assets and debts.

This matter was brought before the Honorable Ericka Y. James, Judge presiding, regarding plaintiff's claim to recover the difference in child support from May 2015 until the entry of the consent order in September 2015. In addition, plaintiff sought permanent alimony, attorney's fees, and court costs from defendant. Having considered all testimony, the arguments of counsel, and the evidence submitted, the trial court found that plaintiff “grossly inflated her expenses in that she has used figures that grossly exceed[ed] her actual expenditures” and included expenses that were not her current obligations.

The trial court concluded that plaintiff was not a dependent spouse and that plaintiff's reasonable monthly expenses did not exceed her net monthly income. Subsequently, an order was entered on 30 August 2016 denying plaintiff's claims for alimony and attorney's fees. Defendant was ordered to pay plaintiff $ 992.00 in child support––the difference between the agreed amount and the court-ordered amount. Plaintiff timely appealed.¹

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On appeal, plaintiff argues the trial court erred by denying her claims for alimony and attorney's fees. Specifically, plaintiff contends the trial court erred by determining she was not a dependent spouse and thus not entitled to receive alimony or attorney's fees.

“As our statutes outline, alimony is comprised of two separate inquiries.” Barrett v. Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 644 (2000). The trial court's first determination as to whether a party is entitled to alimony is reviewed de novo. Id. If the trial court determines that a party is entitled to alimony, then a second determination is made as to the amount of alimony to be awarded, which we review for abuse of discretion. Id; see also Hartsell v. Hartsell, 189 N.C. App. 65, 69, 657 S.E.2d 724, 727 (2008) (“[I]n determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including, inter alia, the following: marital misconduct of either spouse; the relative earnings and earning capacities of the spouses; the ages of the spouses; the amount and sources of earned and unearned income of both spouses; the duration of the marriage; the extent to which the earning power, expenses, or financial obligations of a spouse are affected by the spouse's serving as custodian of a minor child; the standard of living of the spouses during the marriage; the assets, liabilities, and debt service requirements of the spouses, including legal obligations of support; and the relative needs of the spouses.” (quotation marks omitted)).

“[A] party is entitled to alimony if three requirements are satisfied: (1) that [the] party [seeking alimony] is a dependent spouse; (2) the other party is a supporting spouse; and (3) an award of alimony would be equitable under all the relevant factors.” Barrett, 140 N.C. App. at 371, 536 S.E.2d at 644. By statute, a “dependent spouse” is one “who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” N.C. Gen. Stat. § 50-16.1A(2) (2017). “[T]o properly find a spouse dependent[,] the court need only find that the spouse's reasonable monthly expenses exceed her monthly income and that the party has no other means with which to meet those expenses.” Beaman v. Beaman, 77 N.C. App. 717, 723, 336 S.E.2d 129, 132 (1985).

In the instant case, plaintiff testified that her gross monthly income was $ 3,274.12 and, after taxes and deductions, her estimated net monthly income was $ 3,007.30. However, the trial court found, and we agree, additional income should be imputed to plaintiff because she testified she received a contribution of $ 800.00 from her employer towards her health savings account, a $ 4,530.00 tax refund from the 2015 tax year, and a $ 1,287.20 monthly child support payment from defendant. As such, plaintiff's actual net monthly income, when dividing the $ 800.00 contribution and the $ 4,530.00 refund over a twelve-month period, was around $ 4,738.00.

Notwithstanding plaintiff's purported expenses, the record shows that plaintiff's reasonable monthly expenses were significantly lower than her net monthly income. On the amended post-separation financial affidavit submitted by plaintiff, she reported her estimated monthly expenses exceeded $ 8,000.00 and included educational expenses, out-of-pocket medical expenses, a mortgage payment and applicable taxes, homeowner's insurance, and debt payments. The trial court reduced plaintiff's reported monthly expenses to $ 3,907.00, finding that:

16. ․ [P]laintiff does not have current expenses for her education. ․ or her house payment and escrow. ․ Both of these expenses are currently being paid by third parties[.] ․ The educational loans will not be payable until six months after [ ] plaintiff graduates which is expected to be in December of 2017. The house payment will not be payable until the house is sold or if [ ] plaintiff does not sell the house within a certain time period, these expenses are not required to be repaid at all. Neither of these expenses are current obligations for [ ] plaintiff.

17. ․ [P]laintiff may not include expenses for the children's uninsured medical expenses ․ since said expenses are currently covered by the Child Support Order previously entered by the [c]ourt in this matter.

18. As to [ ] plaintiff's debt payments, the [c]ourt finds that the SECU personal loan no longer exists and has been paid off in full. The Wells Fargo card ․ is used by [ ] plaintiff to cover expenses for groceries, food, gas and other items which are separately listed on her affidavit. This credit card also contained substantial charges for [ ] plaintiff's attorneys fees in this matter which are nonrecurring expenses which will not be addressed separately by the court. As previously stated above, the Student Loan ․ is repetitive of the education expenses listed by [ ] plaintiff [and t]herefore, ․ not current monthly expenses of [ ] plaintiff for the purposes of alimony.

Plaintiff contends the trial court erred in calculating her monthly income. We disagree. Plaintiff's financial affidavit was not supported by our review of the transcript of her testimony and supporting exhibits as certain items were not accurately reflected in calculating her monthly expenditures.

First, plaintiff reported that she makes a monthly payment of $ 181.89 in property taxes and $ 111.00 for homeowner's insurance in addition to a $ 1,596.00 mortgage payment. However, she indicated at trial that the property taxes and homeowner's insurance should not have been listed separately on the affidavit, and the estimates were actually included in the purported $ 1,596.00 value. It was later revealed that plaintiff was receiving ongoing payments from NC Housing's mortgage assistance program to cover her housing expenses, and the payments lasted until January 2018.

Second, plaintiff testified that, notwithstanding Pell grants and scholarships, she included out-of-pocket educational expenses in excess of $ 600.00 on the financial affidavit. However, she later testified that she received reimbursements from her employer for any out-of-pocket expenses and she was not responsible for student loan payments until December 2017.

Similarly, plaintiff misrepresented her out-of-pocket medical expenses. She testified that she included $ 270.00 as a monthly payment on the financial affidavit for costs associated with her daughter's braces––although she has yet to receive a charge in excess of $ 230.00. Additionally, plaintiff conceded that she listed $ 105.00 for a medical insurance policy that did not exist.

Finally, of the debt payments listed on the financial affidavit, plaintiff's testimony revealed that $ 1,410.00 reflected expenses already listed separately on the affidavit or loans that had been paid off.

Thus, there was sufficient evidence to support a determination that plaintiff was not a dependent spouse as she earned a sufficient net monthly income to meet her reasonable expenses. Accordingly, as plaintiff was not entitled to alimony, her arguments regarding the amount of alimony and attorney's fees must fail. See N.C. Gen. Stat. § 50-16.4 (2017) (“At any time that a dependent spouse would be entitled to alimony ․ the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony.”).

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   We note there was no appeal by defendant from the trial court's order and no appellee brief was submitted by defendant.

BRYANT, Judge.

Judges DILLON and ZACHARY concur.