Allport v. Allport

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-369

Filed 5 November 2025

Mecklenburg County, No. 17CVD009299-590

PTOLEMY T. ALLPORT, Plaintiff,

v.

SIMON J. ALLPORT, Defendant.

Appeal by defendant from order entered 23 May 2023 by Judge Paige B.

McThenia in District Court, Mecklenburg County. Heard in the Court of Appeals 29

January 2025.

James, McElroy & Diehl, P.A., by Preston O. Odom, III and G. Russell

Kornegay, III, for plaintiff-appellee.

Sellers Ayers Dortch & Lyons, PA, by Dorian H. Gunter, for defendant-

appellant.

STROUD, Judge.

Simon J. Allport (“Husband”) appeals from an Order Regarding Permanent

Alimony (“Alimony Order”) directing him to pay $14,767.52 per month to Ptolemy T.

Allport (“Wife”).

Husband introduced his case on appeal in this manner:

This case is about a trial judge erroneously concluding that

a woman with an estate worth approximately $4 million,

who has three degrees and three bar memberships, could

not make a substantial contribution to her own support.

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Opinion of the Court

The trial court ignored Wife’s available income and ordered

Husband to indefinitely fund her artificially inflated

lifestyle as punishment for his extramarital affair.

No doubt this is an accurate reflection of Husband’s personal feelings about this case,

but the courts do not decide cases based on the personal feelings of either party. Trial

courts decide cases based on the facts as presented in the evidence and on the law.

This Court reviews the trial court’s orders based on the appropriate standards of

review as applied to the trial court’s order and law and evidence in the record.

Husband’s introduction overlooks the standards applied by this Court, so with

these standards in mind, we will introduce Husband’s appeal as follows: This case is

about a trial judge carefully considering four days of testimony and voluminous

evidence, making determinations of the credibility and weight of all the evidence,

preparing an order with over 15 single-spaced pages of detailed findings of fact

addressing each fact necessary to determine alimony – none of which are challenged

on appeal as unsupported by the evidence – and concluding that Husband can and

should pay alimony to Wife. The trial court fully considered the incomes of both

parties, their established standard of living during the marriage, and the factors

stated in North Carolina General Statute Section 50-16.3A, including Husband’s

“illicit sexual behavior,” a factor which requires an award of alimony if the supporting

spouse has the ability to pay and the dependent spouse needs alimony. See N.C. Gen.

Stat. § 50-16.3A(a) (2023).

I. Factual and Procedural Background

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This summary of the factual background is based on the trial court’s

unchallenged findings of fact. The parties first met in April 1986 while they both

were working as engineers for Shell International in the Middle East and began

dating shortly thereafter in June of that year. Husband was dissatisfied with his

career as an engineer. Wife encouraged him to apply to medical school and assisted

him in completing and submitting his applications. Ultimately, Husband was

accepted and began attending Westminster Medical School at the University of

London. Wife resigned from her position at Shell and moved with Husband to London

in 1987.

While in London, Wife completed a two-year program to obtain a master’s

degree from the London School of Economics. Wife then enrolled at Tulane

University School of Law in Louisiana. The parties got married on 19 October 1989,

while Husband was still in medical school and Wife was in law school.

Husband graduated medical school in 1992 and began his internship and

residency at the University of Arizona in 1993. Wife moved to Arizona with Husband,

passed the Arizona bar exam, and began practicing at a large firm before accepting a

job at a district attorney’s office to gain trial experience.

In July 1996, Husband accepted a Fellowship in Gastroenterology in Atlanta,

Georgia. Wife moved to Georgia with Husband, passed the Georgia bar exam, and

began working for a boutique law firm while Husband completed his fellowship.

During their time in Georgia, Wife gave birth to the parties’ first child in August

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1998. Wife returned to full-time employment following her maternity leave. During

the years of Husband’s medical training in both Arizona and Georgia, Wife was the

primary income earner for the family.

After his fellowship, Husband accepted a position at Gastroenterology

Associates, PA in Hickory, North Carolina. The parties and their child moved to

North Carolina for Husband’s new job, and Wife began working for a law firm in

Hickory after passing the North Carolina bar exam. In May of 2000, Wife gave birth

to the parties’ twins and later returned to work at the law firm at a reduced caseload

to ensure flexibility to care for their children. In 2009, the parties agreed it would be

best for Wife to quit her job at the law firm to become a full-time stay-at-home wife

and mother. Wife resumed employment as an assistant district attorney in 2014 but

resigned after about nine months because it was “unmanageable[ ]” to support the

children and a career due to Husband’s demanding work schedule. After leaving the

district attorney’s office, Wife became inactive from the North Carolina Bar and

remained a stay-at-home wife and mother.

After moving to North Carolina, the parties began enjoying a high standard of

living due to Husband’s income as a physician. During their marriage, the parties

acquired several properties and real estate interests throughout North and South

Carolina. The parties also drove “luxury” vehicles, owned a boat and jet ski, and

“routinely spent over $50,000” annually on vacations.

In fall of 2012, Husband began having a secret romantic affair with a nurse

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colleague, Darla. During the time of their affair, Husband and Darla had an intimate

sexual relationship, often spending nights together at one of the parties’ homes while

Wife and the children remained at one of their other homes. This clandestine affair

continued for about three years, until September 2015, when Wife discovered text

messages between Husband and Darla on Husband’s laptop. The parties ultimately

separated on 25 September 2015, shortly after Wife discovered this affair.

On 30 May 2017, Wife filed a Complaint and Motion for Interim Distribution

in District Court, Mecklenburg County, asserting claims for child custody and child

support, postseparation support (“PSS”), alimony, attorney fees, and equitable

distribution. After the parties divorced on 9 November 2017, Husband proposed to

Darla on 24 December 2017 and they married on 23 June 2018.

On 2 November 2017, a hearing was held before Judge Sean P. Smith. In an

order entered 5 February 2018 (“PSS Order”), Judge Smith made findings of fact and

conclusions of law addressing PSS, temporary child support, temporary support

arrears, attorney fees, and interim equitable distribution. At the time of this hearing,

the parties had two minor children: one who remained in the custody of Wife, and the

other who remained in the custody of Husband.

In the PSS Order, Judge Smith found Husband’s “total gross monthly income

from all sources is $65,984.67[,]” and Wife’s reasonable monthly expenses were

$17,500.00 per month. The estimate of Wife’s monthly expenses included both her

own individual needs and “shared family expenses[ ]” such as house payments and

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utilities, but did not include any costs for childcare. Expenses for the minor child in

Husband’s custody were included in his reasonable monthly expenses. The trial court

found Husband had “total monthly expenses of $7,100.89 for himself and [the minor

child in his custody], a child support obligation . . . of $3,135.00 [for the minor child

in Wife’s custody], and a net monthly income of $38,942.94[.]” Judge Smith ordered

Husband to pay Wife $24,788.00 per month in PSS. This PSS was ordered retroactive

to 1 December 2016.

On 16 July 2019, Husband filed a Motion to Modify his PSS obligations.

Husband alleged that “[d]ue to circumstances outside of his control, . . . Husband’s

income has substantially decreased since the entry of the [PSS] Order.” On 16 August

2019, Wife filed a Motion for Contempt alleging Husband “willfully violated” the PSS

Order by paying “only $12,000.00 in [PSS] for the month of August 2019.” Both Wife’s

Motion for Contempt and Husband’s Motion to Modify were heard 6 November 2019.

In an order filed 17 December 2019, the trial court concluded Husband “has had, and

continues to have, the ability to comply with the [PSS] Order[,]” and his “failure to

comply with the [PSS] Order is willful.” The trial court adjudicated Husband to be

“in civil contempt . . . for his failure to comply” with the PSS Order and ordered

Husband to pay $51,152.00 in PSS arrearages or face imprisonment.

Regarding Husband’s Motion to Modify, in an order (“Modified PSS Order”)

entered 2 March 2020, the trial court found that “[s]ubsequent to the entry of the

[PSS] Order, [ ]Husband’s medical practice experienced turmoil and economic

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volatility.” “Poor management[ ]” of the practice “resulted in a decrease in [

]Husband’s annual income, specifically regarding his quarterly bonus.” The court

further found “[n]o evidence tend[ing] to suggest that [Husband] acted in bad faith in

earning, nor has he made efforts to suppress his income.” The court ordered,

“[e]ffective . . . [16 July 2019], [ ]Husband shall pay $17,500.00 per month in ongoing

[PSS].” Husband did not appeal either the PSS Order or the Modified PSS Order.

As to child custody and child support, the trial court determined this issue to

be “moot” as of 16 November 2020 since the youngest child had graduated high school

and reached the age of majority. On 25 May 2021, the parties resolved their equitable

distribution claim in a Consent Judgment and Order (“Consent Order”). In the

Consent Order, the trial court determined the equitable distribution of assets such as

property, vehicles, retirement and investment accounts, and business interests. In

the Alimony Order, the trial court relied on the Consent Order in finding that

“[f]ollowing entry of said [Consent Order], each party has an estate of between two

and three million dollars.”

The trial court heard Wife’s claim for alimony in a four-day trial starting on 13

March 2023. The trial court entered the Alimony Order on 23 May 2023. The trial

court ordered Husband to pay Wife $14,767.52 per month in “permanent ongoing

alimony[.]” This obligation would continue until the death of either party, or Wife’s

cohabitation and/or remarriage under North Carolina General Statute Section 50-

16.9(b). See N.C. Gen. Stat. § 50-16.9(b) (2023). The trial court also determined

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Wife’s claim for attorney fees would remain “open for hearing at a later date.”

Husband was served with the Alimony Order on 31 May 2023 and timely filed Notice

of Appeal to this Court on 27 June 2023.

II. Jurisdiction

Husband’s appeal from the Alimony Order is properly before this Court under

North Carolina General Statute Section 50-19.1, which provides:

Notwithstanding any other pending claims filed in the

same action, a party may appeal from an order or judgment

adjudicating a claim for absolute divorce, divorce from bed

and board, the validity of a premarital agreement . . . , child

custody, child support, alimony, or equitable distribution if

the order or judgment would otherwise be a final order or

judgment . . . , but for the other pending claims in the same

action.

N.C. Gen. Stat. § 50-19.1 (2023). The Alimony Order is not a final order as “[ ]Wife’s

claim for attorney[] fees related to alimony” was an issue “held open for hearing at a

later date.” The issue of alimony was adjudicated and decided by the trial court and

“would otherwise be a final order” if not for the remaining open issue of attorney fees.

See id. This Court has jurisdiction under North Carolina General Statute Section 50-

19.1. See id.

III. Analysis

Before we address the arguments Husband makes on appeal, we will note those

he did not make. He did not challenge any of the trial court’s findings of fact as

unsupported by the evidence, so they are all binding on appeal. See Mussa v. Palmer-

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Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012). Husband did not argue that

the findings of fact fail to support the trial court’s conclusions of law, although he

does present arguments about some conclusions of law. Instead, he argues that the

trial court abused its discretion because it should have made different or more

findings, that the trial court should have found his evidence more credible than Wife’s

evidence, and that based on his alternative version of the facts, the trial court should

have made different findings and conclusions of law. While we agree that an

alternative version of the facts would perhaps lead to different legal conclusions, our

standard of review requires that we rely on the unchallenged facts as found by the

trial court.

Husband presents two main arguments on appeal regarding the Alimony

Order. First, Husband argues the trial court erred in concluding that Wife is a

“dependent spouse” for purposes of alimony. Next, Husband argues the trial court

“abused its discretion in determining the amount of alimony[,]” and further “abused

its discretion in setting the duration of alimony.”

A. Dependent Spouse

Husband first argues the trial court “erred in concluding that Wife is a

dependent spouse.” Husband contends, in making its dependency determination, the

trial court failed to consider all income sources available to Wife and her earning

capacity. He also contends Wife’s “reasonable needs were grossly inflated.” Husband

then contends the trial court “impermissibly considered marital misconduct” in

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making its dependency determination. Wife argues Husband did not preserve the

trial court’s dependency determination for this Court’s consideration since he

admitted to Wife’s status as a “dependent spouse” and his own status as a “supporting

spouse” in his verified answer to Wife’s 30 May 2017 Complaint.

The trial court’s determination of whether Wife is entitled to alimony is a

question of law we review de novo:

As our statutes outline, alimony is comprised of two

separate inquiries. First is a determination of whether a

spouse is entitled to alimony. Entitlement to alimony

requires that one spouse be a dependent spouse and the

other be a supporting spouse. If one is entitled to alimony,

the second determination is the amount of alimony to be

awarded. We review the first inquiry de novo . . ., and the

second under an abuse of discretion standard[.]

Romulus v. Romulus, 215 N.C. App. 495, 520-21, 715 S.E.2d 308, 324-25 (2011)

(citations, quotation marks, and emphasis omitted).

Husband does not specifically challenge any of the trial court’s findings of fact

as unsupported by competent evidence. “A trial court’s unchallenged findings of fact

are ‘presumed to be supported by competent evidence and are binding on appeal.’”

Mussa, 366 N.C. at 191, 731 S.E.2d at 409 (brackets omitted) (quoting Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).

Under North Carolina General Statute Section 50-16.3A, a party may be

entitled to alimony if the trial court determines the party is a “dependent spouse” and

“the other spouse is a supporting spouse[.]” N.C. Gen. Stat. § 50-16.3A(a). A

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“‘[d]ependent spouse’ means a spouse, whether husband or wife, 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) (2023). Further, a “‘[s]upporting spouse’

means a spouse, . . . upon whom the other spouse is actually substantially dependent

for maintenance and support or from whom such spouse is substantially in need of

maintenance and support.” N.C. Gen. Stat. § 50-16.1A(5). “A surplus of income over

expenses is sufficient in and of itself to warrant a supporting spouse classification.”

Barrett v. Barrett, 140 N.C. App. 369, 373, 536 S.E.2d 642, 645 (2000) (citation

omitted).

In her Complaint, Wife alleged that “[she] is the dependent spouse and [

]Husband is the supporting spouse of the parties’ marriage [as] defined by [North

Carolina General Statute Section] 50-16.1A (2) and (5), respectively.” In his verified

answer, Husband admitted to this allegation. And at trial, Husband further testified

to these admissions. Specifically, the following interaction occurred when questioned

by his attorney:

Q. Now, [Husband], you would agree that [Wife] was

dependent on you for maintenance and support during the

course of marriage, wouldn’t you?

A. Yes, she was.

Q. Now, looking at [Wife]’s Exhibit 59, that is the summons

and complaint that we talked about earlier this morning.

Can you turn to Paragraph 18? You see that Page – do you

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see Paragraph 18?

A. Yes.

Q. And the allegation is that . . . Wife is [the] dependent

spouse and . . . Husband is the supporting spouse of the

part[ies’] marriage, as defined by [North Carolina General

Statute Section 50-16.1A] (2) and (5), respectively. You see

that allegation, correct?

A. I do.

....

Q. Now let’s go to your answer and counterclaim and see

how you responded to Paragraph[ ] 18 . . . . And that’s

[Wife]’s Exhibit 60. And look at your response. Your answer

to Paragraph 18 is admitted, correct?

A. Correct.

The trial court found “[ ]Husband admitted in [his] pleadings that [ ]Wife was

a dependent spouse and that he was the supporting spouse of the parties[’] marriage.”

In addition, Husband did not argue at trial that Wife was not a dependent spouse—

his arguments to the trial court, as on appeal, focused on Wife’s “unreasonable” and

“excessive” expenses, the value of her estate, and that “it’s not fair” to say that “he

makes a lot of money” and “she shouldn’t have to work.” But even if we were to ignore

Husband’s admissions in the pleadings and his failure to make an argument to the

trial court that Wife was not a dependent spouse, the trial court also made detailed

extensive findings which are binding on this Court about each parties’ employment,

income, and reasonable monthly needs and expenses, and based on those findings,

concluded that “[ ]Wife is actually and substantially dependent upon [ ]Husband” and

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further “in need of financial contribution from [ ]Husband to maintain her accustomed

standard of living.” Husband does not challenge any of these findings made by the

trial court as unsupported by the evidence, so these findings are binding on appeal.

See Mussa, 366 N.C. at 191, 731 S.E.2d at 409. Husband argues mostly about his

contentions regarding Wife’s potential income sources but the trial court essentially

addressed these contentions in Finding of Fact No. 17: “No credible evidence was

presented that [ ]Wife has depressed her income in bad faith and there is, therefore,

no basis to impute income to [ ]Wife.” Even if we were to overlook Husband’s

admission of Wife’s status as a dependent spouse, the unchallenged findings of fact

abundantly support the trial court’s conclusion that Wife is a dependent spouse.

Husband essentially conceded the issue of Wife’s status as a dependent spouse

before the trial court in his pleadings and in his arguments to the trial court, and on

appeal he makes the same arguments that Wife’s expenses are excessive and that she

could and should earn an income to support her needs. Husband has not challenged

the trial court’s findings of fact as to Wife’s expenses, income, and estate on appeal,

and those findings of fact support the trial court’s conclusions as to Wife’s dependency

status.

B. Alimony Award

Husband also argues the trial court abused its discretion in determining both

the amount and duration of alimony. Regarding amount, Husband specifically

contends the trial court “failed to consider all potential sources of income for Wife[,]”

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failed to assess and consider Wife’s earning capacity, and that Wife’s monthly

expenses were “artificially inflated[.]” Regarding duration, Husband contends the

trial court did not include any specific reasoning as to its determination of alimony

duration and failed to consider how the parties’ incomes and expenses would change

over time. Husband further contends the trial court abused its discretion in

determining the duration of alimony because the duration “was intended to punish

Husband” for his extramarital affair. We disagree.

We review the trial court’s determination of both the amount and duration of

alimony for abuse of discretion. See Collins v. Collins, 243 N.C. App. 696, 700, 778

S.E.2d 854, 856 (2015). “The trial court’s decision constitutes an abuse of discretion

where it ‘is manifestly unsupported by reason, or so arbitrary that it could not have

been the result of a reasoned decision.’” Id. (brackets omitted) (quoting Frost v.

Mazda Motor of Am., Inc., 353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000)). The

determination of the amount and duration of alimony is “left to the sound discretion

of the trial judge and will not be disturbed on appeal unless there has been a manifest

abuse of that discretion.” Kelly v. Kelly, 228 N.C. App. 600, 601, 747 S.E.2d 268, 272

(2013) (citation and quotation marks omitted). North Carolina General Statute

Section 50-16.3A specifically directs that a trial court “shall exercise its discretion in

determining the amount, duration, and manner of payment of alimony.” N.C. Gen.

Stat. § 50-16.3A(b).

[T]he findings of fact required to support the amount,

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duration, and manner of payment of an alimony award are

sufficient if findings of fact have been made on the ultimate

facts at issue in the case and the findings of fact show the

trial court properly applied the law in the case. The

findings of fact need not set forth the weight given to the

factors in section 50-16.3A(b) by the trial court when

determining the appropriate amount, duration, and

manner of payment, as the weight given the factors is

within the sound discretion of the trial court.

Friend-Novorska v. Novorska, 143 N.C. App. 387, 395-96, 545 S.E.2d 788, 794 (2001)

(footnote omitted).

North Carolina General Statute Section 50-16.3A(b), entitled “Amount and

Duration[,]” requires the trial court to consider certain factors to determine the

amount and duration of alimony:

The court shall exercise its discretion in determining the

amount, duration, and manner of payment of alimony. The

duration of the award may be for a specified or for an

indefinite term. In determining the amount, duration, and

manner of payment of alimony, the court shall consider all

relevant factors, including:

(1) The marital misconduct of either of the spouses.

Nothing herein shall prevent a court from

considering incidents of post date-of-separation

marital misconduct as corroborating evidence

supporting other evidence that marital misconduct

occurred during the marriage and prior to date of

separation;

(2) The relative earnings and earning capacities of

the spouses;

(3) The ages and the physical, mental, and emotional

conditions of the spouses;

(4) The amount and sources of earned and unearned

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income of both spouses, including, but not limited to,

earnings, dividends, and benefits such as medical,

retirement, insurance, social security, or others;

(5) The duration of the marriage;

(6) The contribution by one spouse to the education,

training, or increased earning power of the other

spouse;

(7) The extent to which the earning power, expenses,

or financial obligations of a spouse will be affected

by reason of serving as the custodian of a minor

child;

(8) The standard of living of the spouses established

during the marriage;

(9) The relative education of the spouses and the

time necessary to acquire sufficient education or

training to enable the spouse seeking alimony to find

employment to meet his or her reasonable economic

needs;

(10) The relative assets and liabilities of the spouses

and the relative debt service requirements of the

spouses, including legal obligations of support;

(11) The property brought to the marriage by either

spouse;

(12) The contribution of a spouse as homemaker;

(13) The relative needs of the spouses;

(14) The federal, State, and local tax ramifications of

the alimony award;

(15) Any other factor relating to the economic

circumstances of the parties that the court finds to

be just and proper.

(16) The fact that income received by either party

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was previously considered by the court in

determining the value of a marital or divisible asset

in an equitable distribution of the parties’ marital or

divisible property.

N.C. Gen. Stat. § 50-16.3A(b).

1. Amount of Alimony

On appeal, Husband argues “Wife has several sources of income available to

her which would have lowered the alimony amount had the trial court properly

considered them.” Specifically, Husband contends the trial court should have

considered: (1) “all sources of income available to Wife, including but not limited to

her IRA funds, Social Security, and the growth in her investment accounts, pursuant

to [North Carolina General Statute Section] 50-16.3A[;]” (2) Wife’s “sizable” estate,

which Husband contends is larger than found by the trial court; and (3) Wife’s

potential earning capacity. Husband also contends Wife’s reasonable needs, as stated

in the trial court’s findings of fact, were “grossly inflated.”

a. Wife’s Income and Estate

Husband is correct in his assertion that North Carolina General Statute

Section 50-16.3A provides that trial courts, in determining alimony, “shall consider

all relevant factors, including: . . . [t]he amount and sources of earned and unearned

income of both spouses, including, but not limited to, earnings, dividends, and

benefits such as medical, retirement, insurance, social security, or others[.]” N.C.

Gen. Stat. § 50-16.3A(b)(4). The trial court’s Alimony Order includes detailed and

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extensive findings addressing all these factors, and he has not challenged any of the

findings as unsupported by the evidence. Regarding some aspects of Wife’s income

Husband addresses on appeal, the trial court made these findings of fact:

15. [ ]Wife maintains a Charles Schwab Investment

account and earns dividends and interest from this asset. [

]Wife has a gross monthly income of $1,991.28 in dividend

and interest income.

16. [ ]Husband’s expert witness, Mr. Densel Fleming, CFP

served an Affidavit on February 27, 2023 and also provided

testimony at the trial of this matter.

17. No credible evidence was presented that [ ]Wife has

depressed her income in bad faith and there is, therefore,

no basis to impute income to [ ]Wife.

18. [ ]Wife’s gross monthly income for alimony purposes is

$1,991.28 per month.

....

43. The relative earnings and earning capacities of the

spouses:

a. As set forth in detail above, [ ]Wife has a monthly

gross income of $1,991.28. Given [ ]Wife’s absence

from the workforce since 2009 (other than her brief

employment as an Assistant District Attorney in

2014), [ ]Wife does not have the ability to become re-

employed and to support herself financially.

....

45. The amount and sources of earned and unearned

income of both spouses, including, but not limited to,

earnings, dividends, and benefits such as medical,

retirement, insurance, social security, or others:

a. [ ]Wife has passive investment income of

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$1,991.28 per month. [ ]Wife does not have any

income from employment.

Regarding Husband’s income, the trial court found he has “a net monthly income of

$30,263.19[.]” This income valuation consists of Husband’s salary and wages from

his job as a gastroenterologist, bonuses, interest and dividends from his brokerage

account, less the amount deducted for federal and state income tax, health insurance,

and retirement contributions.

It is uncontested that the $1,991.28 Wife receives each month is from a

brokerage account and was properly considered by the trial court as passive income.

Husband, however, argues the trial court should have also considered potential

income from Wife’s IRA, which he contends “had a cash flow of approximately

$2,451.33 per month,” along with $1,316.00 per month Wife could receive in Social

Security if she elected for early retirement.1

i. Failure to require early IRA withdrawals

Husband’s argument regarding the alleged $2,451.33 per month Wife could

theoretically receive from her IRA is based upon an estimate by Husband’s financial

expert witness, Densel Fleming. Mr. Fleming’s evidence regarding Wife’s potential

early IRA withdrawals was presented to support Husband’s contention that the trial

1 At the time this case was called for trial on 13 March 2023, and subsequent entry of the Alimony

Order on 23 May 2023, Wife was 63 years old. Wife is not eligible to receive the full amount of her

potential Social Security benefits until she is 67 years old.

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court should include these amounts in Wife’s income. 2 In estimating this amount,

Mr. Fleming ran a “Monte Carlo” simulation, assuming a 5.08 percent rate of return

on the total value of Wife’s IRA as of 31 December 2022. Husband also argues that

“[a]t Wife’s age, there is no penalty for her to withdraw from her IRA.”

We first note that the trial court specifically found in Finding No. 16 that Mr.

Fleming had presented an affidavit and testimony during the trial. The next finding,

No. 17, states “no credible evidence was presented that [ ]Wife has depressed her

income in bad faith and there is, therefore, no basis to impute income to Wife.” Mr.

Fleming’s evidence focused on Wife’s potential income and Husband used this

evidence to argue that the trial court should essentially impute the income to her, as

it was undisputed that Wife had never received any early IRA withdrawals.

It is well-established that for purposes of alimony, the trial court should

consider each party’s actual income “at the time of the order” unless there is evidence

of bad faith depression of income:

Alimony is ordinarily determined by a party’s actual

income, from all sources, at the time of the order. To base

an alimony obligation on earning capacity rather than

actual income, the trial court must first find that the party

has depressed her income in bad faith. In the context of

alimony, bad faith means that the spouse is not living up

to income potential in order to avoid or frustrate the

support obligation. Bad faith for the dependent spouse

means shirking the duty of self-support[.]

2 Our dissenting colleague accepts Mr. Fleming’s projection of potential income as fact, but the trial

court did not make this finding, although it did consider Mr. Fleming’s evidence.

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Works v. Works, 217 N.C. App. 345, 347, 719 S.E.2d 218, 219 (2011) (citations,

quotation marks, and emphasis omitted).

The trial court found Wife was not acting in bad faith by continuing her usual

practice of not taking early withdrawals from her IRA. Early withdrawals would

require Wife to deplete her estate to meet her current expenses and would prevent

her from being able to continue to save for retirement in a tax-advantaged account.

In support of Husband’s argument the trial court should have imputed income

to Wife, based upon Mr. Fleming’s hypothetical projections of what Wife might be

able to withdraw from her IRA and his assumptions of the future performance of the

assets in her IRA, Husband cites to this Court’s opinion in Phillips v. Phillips, 185

N.C. App. 238, 647 S.E.2d 481 (2007). In Phillips, this Court vacated and remanded

an alimony order because the lack of findings left the Court unsure of whether the

trial court considered the plaintiff’s “medical benefits” or income from her IRA, where

the evidence showed that the plaintiff was receiving IRA income:

With regard to [the] defendant’s contention that the trial

court erred in failing to make findings regarding [the]

plaintiff’s health insurance benefits, we agree. [North

Carolina General Statute Section] 50-16.3A(b)(4) requires

the court to consider the amount and sources of both

spouses’ income including benefits such as medical,

retirement, insurance, social security or others. The court

made no findings with respect to [the] plaintiff’s medical

benefits or potential income from her IRA, although

evidence of the sources of income was presented at the

hearing. Without such findings, we cannot be sure that the

trial judge properly considered the factor. Therefore, we

vacate the award of alimony and remand for additional

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findings on all income, including medical benefits and any

other benefits that function as income, of which evidence

was presented at the hearing.

185 N.C. App. at 243, 647 S.E.2d at 485 (emphasis added) (citations, quotation marks,

brackets, and ellipses omitted). But here, unlike Phillips, we can be sure that the

trial court properly considered this evidence, because the detailed and well-organized

Order addresses it. Here, there was no evidence that Wife was actually receiving any

income from her IRA and the trial court clearly considered and rejected Husband’s

evidence that Wife should be required to begin taking early IRA withdrawals. At

trial, the evidence showed Wife had continued to reinvest the interest and dividends

from her IRA, intending to live off the accrued value when she reaches retirement

age and she has never relied on distributions from the IRA as a source of income. The

trial court’s findings also indicate that requiring her to take early IRA distributions

would require Wife “to deplete her estate to meet her reasonable needs and expenses.”

A financial expert for Wife, Victoria Coble, who estimated Wife’s passive

income to be $1,991.28, testified about why the interest and dividends from Wife’s

IRA were not included in her income determinations. Specifically, she testified as

follows:

Q. Did you do any analysis of how much income and capital

gains and so forth, appreciation, she could expect to get on

a monthly or yearly basis from her Charles Schwab

investment account and from Charles Schwab?

A. So we pulled and we included in the written affidavit

and on her financial affidavit, all of the interest, dividends,

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Opinion of the Court

and capital gain distributions. So for 2022, all of that would

have been disclosed.

Q. But it didn’t include interest and capital gains and

dividends accumulated in her individual retirement

account, did it?

A. It did not. She’s not taking any money out of the IRA

right now, so it did not.

Q. Well, you didn’t reflect any income in that account in her

IRA account because I guess . . . she didn’t -- this is not

taxable or it’s not on the tax return as long as it’s not taken

out. Is that correct?

A. Well, I didn’t pick it up. She’s not 72, so she’s not taking

the distributions out of the IRA. So all those things kind of

stay in the IRA, where the investment account is just an

investment account. It’s not locked up under the --

Q. But there’s income being made in it.

A. For sure. Yes.

Q. And there’s -- her net estate is increasing because of the

dividends and interest and appreciation and capital gains

that are accruing within that account, aren’t they?

....

A. If the IRA is invested in the market. So the market goes

up, it goes up. If the market goes down, it goes down. I can’t

tell you off the top of my head. I would guess it does have

interest and dividend income as well. But you’re right that

it will follow the market.

Further, Ms. Coble also noted that Mr. Fleming’s estimate of $2,451.33 per month

from Wife’s IRA was only hypothetical, stating:

Again, we didn’t consider whether or not [her investment

returns were] actually being retrieved or being claimed. We

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just looked at access to those and then made that

adjustment to the current need amount as this is income

that is being -- that we know that has -- that’s accessible

today[.]

Husband’s expert witness, Mr. Fleming, presented evidence of estimates of Wife’s

potential income based on hypothetical projections of what Wife might be able to

withdraw from her IRA based on his assumptions of the future performance of the

assets in her IRA, but the evidence showed Wife had never received any distributions

from her IRA, only reinvesting interest and dividends for her future retirement. And

the trial court’s unchallenged findings indicate that during their marriage, the

parties had established a practice of making “significant retirement savings

contributions each year, budgeting a sizable portion of their income to savings. The

parties had an established category of expense called ‘savings’ and budgeted for this

expense every month. Their historical custom of savings was an important part of

their accustomed standard of living.”

The trial court’s findings also address Husband’s own substantial

contributions to his 401(k) account, both during the marriage and after, and

considered his 401(k) contributions as a reasonable deduction from his gross income.

As Wife correctly notes, Husband did not “fault the trial court for excluding dividends

and interest derived from his retirement accounts in calculating his net monthly

income for alimony purposes. Such incongruity is telling.” The trial court treated

both parties the same in this regard. The trial court considered Husband’s own 401(k)

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contributions as proper deductions from his gross income, and the trial court did not

require Husband to reduce his contributions to his 401(k) to enable him to pay more

alimony to Wife. Likewise, the trial court did not abuse its discretion by allowing

Wife to allow her IRA to continue to grow instead of requiring her to deplete her

estate by beginning to take distributions from the account, and the trial court did not

abuse its discretion by not treating potential income from Wife’s IRA account as

income under Section 50-16.3A(b)(4).

Apparently based on Bryant v. Bryant, 139 N.C. App. 615, 534 S.E.2d 230

(2000),3 our dissenting colleague accepts Husband’s argument that the trial court

erred by not imputing income to Wife based on the potential for early withdrawals

from her IRA for purposes of determining her need for alimony. However, the dissent

would apparently allow Husband to continue to benefit from a reduction of his net

income by making his own contributions to his 401(k) plan and reinvestment of any

income in the plan. The “logical” error in Bryant was that the trial court treated the

spouses differently for purposes of determining their incomes and expenses, id. at

619, 534 S.E.2d at 233; here the trial court treated both parties the same, although

Husband’s retirement contributions are done through his 401(k) plan and Wife’s are

done through her IRA, and these two types of plans work differently.

3 Husband did not present any argument based on Bryant, nor did his brief cite this case, perhaps

because the trial court treated both parties the same; it did not treat the retirement investments of

the parties differently, as did the trial court in Bryant. See 139 N.C. App. at 619, 534 S.E.2d at 233.

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In Bryant, an equitable distribution judgment had previously divided “the

parties’ investment accounts, which they established during the course of the

marriage to provide funds for their retirement[.]” Id. at 616, 534 S.E.2d at 231. “It

was the practice of the parties during the marriage to reinvest all dividends and

interest earned on these investment accounts.” Id. The accounts were equally

divided, and each party was “receiving an identical amount of investment income

from them, averaging $1981.75 per month in 1997.” Id. In the alimony order, for the

plaintiff-wife, the trial court included $1,981.75 per month as monthly investment

income and included the same amount as one of her expenses, to “enable the plaintiff

to continue to reinvest fully the investment income.” Id. (internal quotation marks

and brackets omitted). But for the defendant-husband, the trial court included the

$1,981.75 investment income as part of his income and did not treat this as an

expense for him. Id. On appeal, the defendant-husband argued that the trial court

should not have considered the investment amount as one of plaintiff-wife’s expenses.

Id. at 617, 534 S.E.2d at 231. This Court noted that “given that the trial court’s

calculation of an alimony award necessarily involves a comparison of the income and

expenses of both spouses . . . , in order to provide adequate review of the court’s

alimony award, we must necessarily review the trial court’s calculations as they

relate to both spouses.” Id. (citation and emphasis omitted).

Here, the trial court made detailed findings of fact regarding the income,

expenses, and retirement contributions made by both parties, including Wife’s

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expense of “[r]etirement savings” and Husband’s deductions from his gross income

for 401(k) plan contributions as well as “401(k) [p]lan [c]atch [u]p” contributions. The

trial court’s findings regarding Husband’s income includes a table listing thirteen

“[d]eductions” from his monthly gross income, including taxes, several types of

insurance, and his 401(k) contributions. Since Husband is still employed and

contributing to his 401(k) plan, the findings do not treat his 401(k) deductions as an

“expense” but as a deduction from his gross income. These deductions from his gross

income allow Husband to continue contributing to his estate, increasing its value

while also reducing his taxable income. Ultimately, the trial court found Husband

had monthly deductions of $26,761.28 from his gross monthly income of $57,024.47,

for a “net monthly income of $30,263.19 for alimony purposes.”

Wife was not employed and did not have a 401(k) plan; she had an IRA. The

IRA was part of Wife’s estate. The trial court found that each party “has an estate of

between two and three million dollars.” The trial court’s Consent Order entered 25

May 2021 determined equitable distribution of assets, but did not set out detailed

findings on the assets included in the marital estate or distributed to each party.

However, the evidence at trial showed that Wife’ estate included a “Schwab IRA

rollover account” and when the parties separated, Wife’s IRA was valued at about

$205,000. By May of 2021, the value of her IRA had increased to $388,358.84. All

the appreciation in the IRA came from growth within the account. Because it was an

IRA, Wife would only be able to make contributions from earned income, and Wife

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Opinion of the Court

had no earned income, so the only way she could continue to have appreciation in her

IRA was from appreciation of the assets in the account or reinvestment of any

earnings. Based on this evidence, in part, the trial court made an ultimate finding

that “[a]bsent an award of alimony, [ ]Wife would have to deplete her estate to meet

her reasonable needs and expenses.”

Husband’s argument, and our dissenting colleague, conflate the concepts of

current income and depletion (or avoiding depletion) of Wife’s estate. Husband has

earned income from employment and can continue to contribute to his 401(k) plan as

he did during the marriage; Wife does not have earned income and cannot contribute

to her IRA from her earned income. Husband contributes to his retirement savings

and increases his estate by contributions to his 401(k) plan and these contributions

are deductions from his gross income. Alimony helps Wife to avoid depletion of her

estate by premature withdrawals from her IRA and allows her IRA to continue to

increase in value – assuming her investments do well – until she reaches full

retirement age.

The IRA plan is part of Wife’s estate, which is not to be depleted for her current

support since Husband had adequate ability to pay alimony to meet her needs. The

trial court found Husband had a monthly surplus of $24,642.21 left after deductions

and his own reasonable expenses. The IRA will be a source of income for Wife in the

future, when she begins to take distributions from the plan, but at this time, it is an

investment which is part of her estate, not income. Husband’s argument was that

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Wife should be required to deplete her estate to convert the IRA from an asset to

current income to fund her current needs, even though she had never taken any

contributions from the IRA. Or the trial court would have to impute income to Wife

based on potential early withdrawals from the IRA to include this as part of her

income for purposes of alimony, but the trial court found no bad faith to support

imputing income. See Works, 217 N.C. App. at 347, 719 S.E.2d at 219.

Our dissenting colleague views the evidence as showing that Wife already has

the income to substantially fund her reasonable expense of investing in her IRA and

that under the trial court’s Order her retirement is being funded by about $5,000 per

month, including the $2,451.33 she could hypothetically withdraw from her IRA

(based on Mr. Fleming’s estimate) and the $2,500 Wife listed as an “expense” for

retirement savings. But based on the trial court’s findings of fact, this is not correct.

This approach would require either imputing income to Wife of $2,451.33 based on

Mr. Fleming’s estimate or ordering depletion of Wife’s estate to fund her current

expenses. Contrary to the dissent’s assumption that Wife has IRA income in this

specific amount, Wife does not have a current income of $2,451.33 from any source to

invest in her IRA. The evidence showed and the trial court found Wife had not

received any distributions from her IRA. The amount of $2,451.33 was Mr. Fleming’s

projection of what Wife might be able to withdraw from the IRA—and if she began

withdrawing this amount from the IRA, this would be a change to the long-

established practice of re-investing any income in the IRA for her retirement. She

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Opinion of the Court

would be depleting her retirement assets in her IRA to fund her current living

expenses. Thus, the effect of our dissenting colleague’s proposal would be to require

the trial court to impute income of $2,451.33 to Wife, despite the fact that the trial

court did not find Mr. Fleming’s projections to be credible. Requiring Wife to stop

reinvestment in her IRA would also be contrary to the parties’ established practice of

retirement savings as found by the trial court.

The trial court’s findings regarding the established practices of retirement

savings during the marriage, and the findings of the expenses and net incomes of both

parties were consistent with their practices during the marriage. In Bryant, the

“more difficult issue” was

the effect of the trial court’s characterization of investment

income as an expense in this case. Given the distinction

between the marital standard of living and reasonable

expenses in setting alimony awards, the Glass Court’s

holding relating to the standard of living leaves open the

question of whether the trial court below properly

characterized investment income as an expense in this

case. See also Rhew v. Rhew, 138 N.C. App. 467, 531 S.E.2d

471 (2000) (holding that, in determining entitlement to

alimony, as opposed to the amount of alimony, trial court

erred in disregarding evidence pertaining to the

established pattern of savings in considering defendant’s

accustomed standard of living).

139 N.C. App. at 618, 534 S.E.2d at 232 (emphasis omitted) (citing Glass v. Glass,

131 N.C. App. 784, 509 S.E.2d 236 (1998)). This Court held that the trial court did

not abuse its “discretion by characterizing the funds reflecting a marital pattern of

savings as a reasonable expense in this case” because “[the] defendant is still

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employed and has a comfortable and significantly higher income than [the] plaintiff,

who is not working.” Id. at 619, 534 S.E.2d at 232-33. But this Court did find an

abuse of discretion from “the trial court’s inclusion of this investment income amount

as an expense for the plaintiff but not for the defendant.” Id. at 619, 534 S.E.2d at 233

(emphasis added). This Court stated that

[i]t is not logical that the trial court could properly

characterize this investment income, earned and

reinvested during the course of the marriage, as an expense

for one spouse but not for the other. The court’s calculation

in this respect effectively promotes the manipulation of

funds to affect the support obligation, which this Court has

often sought to prevent.

Id. (citations omitted). Ultimately, this Court in Bryant held that the trial court

would logically have to include the investment income amount as an expense for the

defendant-husband since it was treated as an expense for the plaintiff-wife and

remanded for entry of new findings of fact with regard to reasonable expenses of both

parties. See id.

Here, the trial court allowed both parties to continue their marital practice of

investing in or, for Wife, not depleting their retirement accounts. In Bryant, the

parties each had identical investment accounts, since one account had been divided

and each received half. See id. at 616, 534 S.E.2d at 231. Under those facts, treating

the very same earnings from the account differently for each party was the

“manipulation of funds to affect the support obligation” this Court disapproved. Id.

at 619, 534 S.E.2d at 233. But here, the parties did not have identical investment

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accounts. Husband was saving for his retirement using deductions from his current

income into his 401(k) plan, while Wife had no earned income and was maintaining

her funds in her IRA. During the marriage, they had established these methods and

patterns of retirement savings. The trial court did not treat their investments

differently, nor did it characterize either party’s investments improperly, as

happened in Bryant, see id. at 619, 534 S.E.2d at 232-33, but it made findings

addressing the income and retirement contributions of each party.

If we were to remand for the trial court to include Wife’s potential income from

early IRA distributions, this would effectively require the trial court to impute income

to Wife for purposes of calculating her need for alimony, but the trial court found that

there was no credible evidence to support imputing income to Wife. And based on

this Court’s logic in Bryant, if we were to remand, we would also have to require the

trial court to make new findings as to Husband’s income by reconsidering whether

Husband should be permitted to reduce his net income and ability to pay alimony by

the amount of his 401(k) contributions or whether any earnings within his 401(k)

plan should be treated as income. See id. at 619, 534 S.E.2d at 233. This change

would increase his income for purposes of his ability to pay alimony as well. This

result is not supported by any legal authority, and Husband has not demonstrated

any abuse of discretion in the trial court’s treatment of Wife’s IRA as part of her estate

and not current income.

ii. Failure to require Wife to elect early Social Security benefits

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Husband also argues the trial court should have considered the $1,316.00 a

month Wife could receive from Social Security benefits if she elected for early

retirement before the age of 67. Husband contends that if Wife is not going to be

required to work to support herself, she should at least be required to begin to draw

upon her retirement benefits, including Social Security. His argument regarding

Social Security is similar to his argument regarding imputation of income based on

potential early withdrawals from Wife’s IRA. Again, his argument would require

imputing income to Wife. Wife counters that the trial court

made findings sufficient to show it considered—but

ultimately rejected—including any as-yet-unelected social

security benefits or undistributed IRA-derived funds as

potential income to Wife. Specifically, the trial court did so

via Findings of Fact 15, 17-18, 43a, 45a, and 49a, . . . which

collectively determine that counting anything other than

the $1,991.28 amount from Wife’s brokerage account as

income to her would require her “to deplete her estate to

meet her reasonable needs and expenses.”

Wife is correct; the trial court considered but rejected Husband’s evidence and his

contention that she should be required to elect to receive early Social Security

benefits.

Wife notes that her expert witness, Ms. Coble, determined “that if Wife elected

to take early retirement social security benefits at age 62 and reached the life

expectancy Fleming projected (age 82), she would lose approximately $40,000.00 per

year from then on.” Husband’s expert witness, Mr. Fleming, acknowledged that Wife

would receive “an increased amount of $1,464 per month[ ]” if she elects to withdraw

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her Social Security benefits “at her full retirement age of 66 years and 10 months[.]”

Our dissenting colleague would remand for the trial court to make additional

findings on whether to impute income to Wife based on her potential early Social

Security benefits based on the view that the trial court’s finding of “no credible

evidence” that Wife had depressed her income in bad faith “in context” was referring

to Wife’s choice not to seek a new job at 63 years of age. We disagree, since that

finding in the context of the Order is in the section entitled “[ ]Wife’s Employment

and Income” and the finding immediately follows Finding No. 16 regarding

Husband’s expert witness, Mr. Fleming, who presented expert testimony and

evidence as a certified financial planner about Wife’s investment income and

potential social security benefits. He did not present evidence about Wife’s failure to

obtain new employment. In addition, the Order includes detailed findings about

Wife’s employment history and earning capacity in Findings No. 43, 44, 45, 47, and

48 which address the alimony factors under North Carolina General Statute Section

50-16.3A(b).

The dissent also notes that there is no specific finding addressing Wife’s

eligibility to elect early Social Security benefits. But in Findings No. 41 and 43,4 the

trial court made “specific findings as to each factor set forth in [North Carolina

General Statute Section] 50-16.3A(b) upon which evidence was presented at trial:”

4 Finding No. 41 serves as an introduction to numbered findings addressing each statutory factor and

applies equally to Findings No. 42 through 52.

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45. The amount and sources of earned and unearned

income of both spouses, including, but not limited to,

earnings, dividends, and benefits such as medical,

retirement, insurance, social security, or others:

a. [ ]Wife has passive investment income of

$1,991.28 per month.[5] [ ]Wife does not have any

income from employment.

(Emphasis added.)

It is well established that the trial court need not make a finding about every

fact shown by the evidence presented as long as the findings support the trial court’s

conclusions. See Medlin v. Medlin, 64 N.C. App. 600, 603, 307 S.E.2d 591, 593 (1983)

(“The court is not required to find all facts supported by the evidence, but only

sufficient material facts to support the judgment.” (citations omitted)). Here, that

evidence was voluminous – the record is 1471 pages, there are 789 pages of transcript

from the hearing, and 7,566 pages of record supplement of documentary exhibits. The

trial court also made many findings of fact we have not quoted here addressing the

parties’ financial situation. The trial court specifically noted Husband’s evidence

urging the trial court to include Wife’s potential income based upon electing to receive

early Social Security benefits by noting Mr. Fleming’s testimony and affidavit so it is

clear the trial court considered this evidence.

We have been unable to find any legal authority to require the trial court to

5 Findings 13 through 18 also address Wife’s income and Finding 15 addresses her income of $1,991.28

from dividends and interest from her Charles Schwab Investment Account.

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consider imputing income to a spouse based on eligibility to elect early Social Security

benefits or limiting the trial court’s discretion in how to address the potential income

from early Social Security benefits. The trial court had the discretion to accept

Husband’s evidence on Wife’s potential Social Security benefits as credible and to

make findings based on that evidence, but it also had the discretion not to. Thus,

contrary to our dissenting colleague’s suggestion, the trial court’s Order does

demonstrate that it considered Wife’s potential to elect early Social Security benefits

because it specifically noted Mr. Fleming’s evidence. As noted above, the trial court

noted its consideration of Mr. Fleming’s affidavit and testimony and then found that

“no credible evidence was presented” to support imputing income to Wife.

Mr. Fleming was an expert witness for Husband who presented extensive

testimony regarding his analysis of

the income factors, all of the factors that affected [Wife]’s -

- the income. It was also to determine -- to evaluate those

income levels and the amounts and document them over

the time period by which they would occur, and also

identify if there were any current or future income that

would impact the scenario, as well as how sustainable

those income levels were, based upon the sources that they

would be coming from, and compare those also, to the

statutory mortality, as well.

Mr. Fleming’s testimony and documentary exhibits are the primary source of

Husband’s argument regarding Wife’s potential income from her IRAs and from early

election of Social Security. The trial court evaluated that evidence and determined

that there was “no credible evidence” to support imputing income to Wife. See

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Watkins v. Watkins, 228 N.C. App. 548, 558, 746 S.E.2d 394, 400-01 (2013) (“[T]he

trial court is the judge of the credibility of the witnesses who testify and . . . the trial

court determines what weight shall be given to the testimony and the reasonable

inferences to be drawn therefrom.” (citation and quotation marks omitted)). Here, we

need not speculate as to whether the trial court considered Husband’s evidence about

Wife’s potential Social Security benefits or what weight it had. This Court has no

authority to reassess the credibility or weight of the evidence. And as noted below,

in the future, either party may file a motion to modify alimony, as the trial court is

not required or expected to predict either parties’ changes in income or expenses as

they get older, retire, and begin receiving Social Security benefits or other retirement

income.

Husband has failed to demonstrate any abuse of discretion by the trial court’s

rejection of his argument that Wife should be required to elect a reduced amount of

Social Security benefits to support her own financial needs, even though he is fully

capable of providing support for her by paying alimony while still contributing to his

own retirement accounts. The trial court found that “[n]o credible evidence was

presented that [ ]Wife has depressed her income in bad faith and there is, therefore,

no basis to impute income to [ ]Wife.”

iii. Valuation of Wife’s estate

Husband argues that “Wife actually has an estate worth approximately $4

million, including cash assets of approximately $3 million[,]” and he contends that

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this alleged greater value of Wife’s estate should decrease Husband’s alimony

obligations.

As noted by our Supreme Court in Williams v. Williams, estate valuations

serve merely as a single guidepost for trial courts to determine each party’s earning

capacity, ensuring a fair alimony award:

If the spouse seeking alimony is denied alimony because he

or she has an estate which can be spent away to maintain

his or her standard of living, that spouse may soon have no

earnings or earning capacity and therefore no way to

maintain any standard of living.

We think, therefore, that the trial court

consideration of the “estates” of the parties is intended

primarily for the purpose of providing it with another guide

in evaluating the earnings and earning capacity of the

parties, and not for the purpose of determining capability

of self-support through estate depletion.

299 N.C. 174, 184, 261 S.E.2d 849, 856 (1980) (emphasis in original).

Here, regarding the parties’ estates, the trial court found that “each party has

an estate of between two and three million dollars. Absent an award of alimony, [

]Wife would have to deplete her estate to meet her reasonable needs and expenses.”

But again, Husband does not argue, nor could he, that the trial court’s finding about

potential depletion of Wife’s estate is not supported by the evidence. The trial court

based its finding regarding the value of Wife’s estate on the 25 May 2021 Consent

Order regarding equitable distribution. In the Alimony Order, the trial court noted

the entry of this Consent Order and found that “following entry of said [Consent

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Opinion of the Court

Order], each party has an estate of between two and three million dollars. Absent an

award of alimony, [ ]Wife would have to deplete her estate to meet her reasonable

needs and expenses.” The only evidence cited by Husband in support of his contention

that Wife’s estate value should be higher is Wife’s deposition taken on 11 January

2022. During questions about her estimated net worth, Wife was asked if adding the

total value of her assets “would be in excess of three million dollars[?]” Wife

responded in the affirmative. However, to the contrary, competent evidence was

presented to support the trial court’s finding as to Wife having an estimated net worth

of around $3 million, such as the value of her homes, vehicle, brokerage account, and

IRA, less the value of her debts, including mortgages.

The primary goal of ensuring fairness in alimony awards was emphasized by

this Court in Hill v. Hill, which noted that

[a]lthough some cases from our Supreme Court

appear to disfavor alimony awards that result in

estate depletion for one party or the other, those

decisions by no means prohibit such awards. Rather,

all of these cases cite fairness and justice to all

parties as the principle to which an alimony award

must conform. Thus, we consider whether the court’s

award in the present case is fair to all of the parties.

261 N.C. App. 600, 619-20, 821 S.E.2d 210, 225 (2018) (citations and quotation marks

omitted). Under this standard of fairness, the trial court did not abuse its discretion

in considering the value of Wife’s estate and by not requiring Wife to deplete her

estate to support her reasonable needs.

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b. Wife’s reasonable needs

On appeal, Husband argues “Wife’s monthly expenses, as found by the trial

court, were artificially inflated and not ‘reasonable’ considering the parties’ marital

standard of living.” Specifically, he argues that the trial court abused its discretion

in finding that “Wife’s expenses . . . are not extravagant and are within the means

and lifestyle [ ]Husband’s income provided.” He argues “the trial court . . . found [his]

reasonable monthly expenses to be $5,638.98[,]” contending that “[t]his immense

discrepancy in standards of living showcases Wife’s egregious spendthrift nature,

even considering Husband’s income and the parties’ marital standard of living.” We

disagree.

In determining alimony, “the trial court can accept or reject the alleged

expenses on any financial affidavit, based upon its evaluation of the credibility of the

evidence and the reasonableness of the expenses alleged.” Rea v. Rea, 262 N.C. App.

421, 426, 822 S.E.2d 426, 431 (2018) (citation omitted). At trial, Wife presented a

financial affidavit prepared by her financial expert, Ms. Coble, estimating her total

monthly expenses to be $24,042.06. The trial court did not fully accept Wife’s

estimates and instead found her reasonable total monthly expenses to be $16,758.80

per month, about 30% less than what Wife alleged in her financial affidavit.

Husband’s argument mostly addresses his contentions regarding Wife’s

expenses and findings the trial court could have made instead of those it did make.

But Husband does not challenge the trial court’s findings as to Wife’s current

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reasonable expenses or as to the parties’ lifestyle during the marriage as unsupported

by the evidence, so they are binding on appeal. The trial court made extensive and

detailed findings of fact about the parties’ accustomed standard of living established

during the marriage. For example, the trial court found:

m. The parties established a very high standard of living

during the course of their marriage.

n. At the time of their separation, the parties owned a 5,420

square foot mountain home in Boone, NC . . ., a 7,082

[square foot] lake-front primary residence in Hickory, NC

. . ., and a lake lot held as an investment[.] During their

marriage, the parties also owned a residence located at . . .

Blowing Rock, NC and an interest in a beach home located

at . . . Fripp Island, SC, although both of these properties

were sold just prior to the parties’ separation.

o. Throughout the marriage the parties drove luxury

vehicles, including cars manufactured by Porsche, BMW,

Mercedes, and the like. The parties also owned . . . a Cobalt

252 boat and a Yamaha jet ski.

p. During the marriage, the parties took frequent

vacations, including sailing trips in the Bahamas,

Bermuda, Aruba, Grenada, Turks and Caicos, and various

other islands; skiing trips to Snowmass, CO and

Vancouver, Canada; international trips to Europe and

Africa; and domestic travel to New York, NY,

Charlottesville, VA, and the like. The family routinely

spent over $50,000 in vacations each year.

q. The family held memberships at Lake Hickory Country

Club, Yonahlossee Racquet Club, and Spa Athletic Club. [

]Wife worked out with a personal trainer as frequently as

five times per week.

r. The parties employed an au pair to assist with childcare,

cooking, and cleaning.

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s. The parties made significant retirement savings

contributions each year, budgeting a sizable portion of

their income to savings. The parties had an established

category of expense called “savings” and budgeted for this

expense every month. Their historical custom of savings

was an important part of their accustomed standard of

living.

....

u. [ ]Wife is entitled to continue living as the wife of a

wealthy man, which she would have otherwise done but for

[ ]Husband’s illicit sexual affair and the resulting

separation and divorce [of the parties].

v. The parties’ high standard of living was made possible

from the income earned by [ ]Husband.

Our Supreme Court in Williams noted:

We think usage of the term “accustomed standard of living

of the parties” completes the contemplated legislative

meaning of “maintenance and support.” The latter phrase

clearly means more than a level of mere economic survival.

Plainly, in our view, it contemplates the economic standard

established by the marital partnership for the family unit

during the years the marital contract was intact. It

anticipates that alimony, to the extent it can possibly do so,

shall sustain that standard of living for the dependent

spouse to which the parties together became accustomed.

For us to hold otherwise would be to completely ignore the

plain language of G.S. 50-16.5 and the need to construe our

alimony statutes in pari materia. This we are unwilling to

do.

299 N.C. at 181, 261 S.E.2d at 855 (emphasis added). A prevailing purpose of an

alimony award is to support the dependent spouse, allowing her the opportunity to

enjoy the “accustomed standard of living” the parties enjoyed during their marriage.

Id. In light of our Supreme Court’s holding in Williams, this Court in Rea further

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explained that

[f]or some families, the economic standard, and lifestyle

established during the marriage includes expenses for golf,

vacations, boats, hobbies, and entertainment, and these

types of expenses can be included as part of the reasonable

expenses for purposes of alimony. For example, in Rhew,

this Court determined the trial court properly considered

evidence of the parties’ standard of living during the

marriage, which included frequent travel and major

vacations to Canada, New Orleans, Hawaii and Cancun; a

boat they used regularly; contributions to their church;

playing golf; arts, crafts and making jewelry; going out

every Friday evening; going dancing and to movies; going

out to lunch every Sunday; entertaining friends in their

home; and engaging the services of a housekeeper. Here,

instead of pursuing expensive leisure activities, [the

h]usband and [the w]ife established a lifestyle of caring for

foster children; this economic choice is certainly worth at

least the same consideration as golf and vacations. The

trial court did not abuse its discretion by including these

expenses in [the w]ife’s needs.

262 N.C. App. at 428-29, 822 S.E.2d at 432 (quotation marks and brackets omitted)

(citing Rhew v. Felton, 178 N.C. App. 475, 484, 631 S.E.2d 859, 865-66 (2006)).

Here, the trial court made detailed findings as to the extravagant lifestyle the

parties enjoyed during their marriage, and these findings were supported by the

evidence. And the parties enjoyed this lifestyle without incurring excessive debt;

Husband’s income was sufficient to provide this lifestyle. It is not relevant that

Husband’s reasonable monthly expenses are now less than Wife’s. What matters is

the trial court’s unchallenged findings regarding the established lifestyle of the

parties during their marriage and Wife’s current reasonable needs. Wife was able to

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enjoy this lifestyle during the marriage thanks to Husband’s substantial income and

is entitled to continue this lifestyle following the dissolution of their marriage, at least

to the extent Husband has the ability to support it. The trial court did not abuse its

discretion in determining Wife’s reasonable monthly expenses based upon the

lifestyle both parties enjoyed during the marriage. Husband’s argument regarding

Wife’s expenses being “grossly inflated” is overruled.

c. Wife’s Earning Capacity

Finally, regarding the alimony amount, Husband argues “[t]he trial court

failed to assess Wife’s earning capacity.” Specifically, Husband contends Wife “has a

bachelor’s degree . . ., a masters in economics, . . . a law degree[,] . . . passed the bar

on the first attempt in three states[,]” and has voluntarily remained unemployed

since 2014 “and has instead chosen to travel the world, never once submitting an

application for work.” Further, Husband argues that because Wife holds several

advanced degrees and was the “primary breadwinner” during the early years of the

parties’ marriage, income should have been imputed to Wife contending she should

be required to find at least some form of employment. We disagree.

“Ordinarily, alimony is determined by a party’s actual income at the time of

the alimony order. It is well established that a trial court may consider a party’s

earning capacity only if the trial court finds the party acted in bad faith.” Megremis

v. Megremis, 179 N.C. App. 174, 182, 633 S.E.2d 117, 123 (2006) (emphasis added)

(citations omitted). “In the context of alimony, bad faith means that the spouse is not

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living up to income potential in order to avoid or frustrate the support obligation. Bad

faith for the dependent spouse means shirking the duty of self-support[.]” Works, 217

N.C. App. at 347, 719 S.E.2d at 219 (citation and quotation marks omitted).

However, evidence of a voluntary reduction in income is

insufficient, without more, to support a finding of

deliberate income depression or bad faith.

Bad faith may be found from evidence that a spouse

has refused to seek or to accept gainful employment;

willfully refused to secure or take a job; deliberately not

applied himself or herself to a business or employment; or

intentionally depressed income to an artificial low.

Walton v. Walton, 263 N.C. App. 380, 386-87, 822 S.E.2d 780, 785 (2018) (citations,

quotation marks, and brackets omitted).

“We review the trial court’s bad faith determination for abuse of discretion[ ]”

and will “upset” such determination “upon a showing that it was so arbitrary that it

could not have been the result of a reasoned decision.” Cash v. Cash, 286 N.C. App.

196, 208, 880 S.E.2d 718, 728 (2022) (citation and quotation marks omitted).

Here, the trial court found “[n]o credible evidence was presented that [ ]Wife

has depressed her income in bad faith and there is, therefore, no basis to impute

income to [ ]Wife.” This finding alone is sufficient to overcome Husband’s argument,

since only the trial court can assess the credibility of the evidence. See Phelps v.

Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (“[I]t is within the trial court’s

discretion to determine the weight and credibility that should be given to all evidence

that is presented during the trial.”). Although Husband argued Wife should be

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required to work and presented evidence about her ability to do so at trial, the trial

court found no credible evidence to support Husband’s position. But in addition to

the trial court’s finding of “no credible evidence” that Wife had depressed her income

in bad faith, the trial court also made extensive findings regarding Wife’s employment

history and circumstances at the time of trial. For example, the trial court also found

Wife “left the workforce [in 2009] to become a full-time stay-at-home wife and

mother[,]” “does not have the ability to become re-employed and to support herself

financially[,]” and “is now close to retirement age and does not have the skills or work

history to allow her to find employment as an attorney at this point in time and at

this stage of her life.” The trial court also found that Wife had in August 2021

“suffered catastrophic injuries” from a fall, including “multiple broken bones and a

torn knee” and she “is still recovering from these injuries.”

We conclude the trial court did not abuse its discretion in finding that Wife had

not suppressed her income in bad faith and therefore not imputing income to Wife.

The trial court properly considered Wife’s near retirement age, her long-term status

as a stay-at-home wife and mother, her inability to seek employment as an attorney

due to her inactive status from the bar, and her recent injury.

The trial court did not abuse its discretion in determining the alimony amount.

The trial court considered all the factors as required by North Carolina General

Statute Section 50-16.3A, including all available income sources to Wife she was

currently and actually receiving, the relative size of each parties’ estate, the

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reasonable needs of Wife, and her present inability to rejoin the workforce.

2. Duration

Husband makes three main arguments regarding the duration of alimony set

by the trial court: (1) “[t]he trial court failed to include its reasoning for the alimony

duration”; (2) the trial court failed to consider how the parties’ needs and incomes

would change over time; and (3) the “duration set by the trial court was intended to

punish Husband for his marital misconduct.”

Again, we review the trial court’s determination of the duration of alimony for

abuse of discretion. See Kelly, 228 N.C. App. at 601, 747 S.E.2d at 272. Here, the

trial court set an indefinite alimony duration that would cease only upon the

occurrence of any of the following events: (1) “[ ]Wife’s death”; (2) “[ ]Husband’s

death”; (3) “[ ]Wife’s cohabitation (as . . . defined by [North Carolina General Statute

Section] 50-16.9(b))”; or (4) “[ ]Wife’s remarriage.”

a. Rationale for the duration of alimony

Regarding justification for the duration of alimony, Husband argues “[a] trial

court is required to include its reasoning, based upon competent evidence, for the

alimony duration, and failure to explain what competent evidence justifies the

duration requires remand.” Husband specifically contends, here, “[t]he trial court’s

only mention of the alimony duration appears in the decretal section, stating, ‘[

]Husband shall pay permanent ongoing alimony to [ ]Wife in the sum of $14,727.52

per month.’” But again, Husband’s argument about the absence of explanation for

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the duration of the alimony award ignores most of the six single-spaced pages of

findings of fact included in the entire section of the Alimony Order entitled “Factors

related to Amount, Duration, and Manner of Payment ([North Carolina General

Statute Section] 50-16.3A(b).” (Emphasis added.) All these findings regarding the

“factors” were part of the trial court’s explanation of its decision regarding the

duration of the alimony award.

In making this argument, Husband cites to this Court’s opinion in Fitzgerald

v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003). In Fitzgerald, this Court

reversed and remanded an alimony award where, though the trial court “made

sufficient ultimate findings of fact to support its award of alimony[,]” it “did not make

required findings as to the reasons for making the duration of the alimony continuous

until [the] defendant dies, remarries, or cohabits[.]” Id. at 421, 588 S.E.2d at 522

(citations omitted). Under North Carolina General Statute Section 50-16.3A, “[t]he

[trial] court shall set forth the reasons for its award or denial of alimony and, if

making an award, the reasons for its amount, duration, and manner of payment.”

N.C. Gen. Stat. § 50-16.3A(c).

This Court has held that a trial court’s failure to make any

findings regarding the reasons for the amount, duration,

and the manner of payment of alimony violates [North

Carolina General Statute Section 50-16.3A(c)]. In

Williamson, as in this case, the trial court, without making

any findings as to its reasoning for the duration of the

alimony or manner in which it was to be paid, ordered

alimony to be paid until the death of a party or the

dependent spouse’s remarriage or cohabitation and that it

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be paid directly to the clerk of court.

Fitzgerald, 161 N.C. App. at 421, 588 S.E.2d at 522-23 (citing Williamson v.

Williamson, 140 N.C. App. 362, 365, 536 S.E.2d 337, 339 (2000)).

Wife, however, argues the findings made by the trial court here mirror the

detailed findings in Yeun-Hee Juhnn v. Do-Bum Juhnn, 242 N.C. App. 58, 775 S.E.2d

310 (2015). In Juhnn, this Court affirmed an order setting an alimony duration of

eighteen years where the trial court made “seventy-six findings of fact” relating to

the defendant’s marital misconduct, substantial ability to support the family

financially, and his decision to “provide[ ] for his paramour and her children while

refusing to provide support to [the] plaintiff and his children[.]” Id. at 63, 775 S.E.2d

at 314. The seventy-six findings in Juhnn also addressed the plaintiff’s absence from

the workforce for many years to support her family, her inability to rejoin the

workforce, and her having “significantly less earning potential or earning capacity

than [the d]efendant[.]” Id. at 65, 775 S.E.2d at 315 (internal quotation marks

omitted).

Further, in Rea, this Court also affirmed the duration of an alimony order

where

the trial court did not simply recite that it had considered

this list of factors [in North Carolina General Statute

Section 50A-16.3]; it made findings of fact regarding the

relevant factors. Other findings in the order . . . specifically

address many of these factors in detail, including marital

misconduct; the relative earnings and earning capacities of

the parties; the duration of the marriage; the good health

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and ages of the parties; the standard of living established

during the marriage; the relative assets and liabilities of

the parties; and the relative needs of the parties. The trial

court properly considered the required factors and set the

duration of the alimony in its discretion. We discern no

abuse of discretion in the trial court granting 10.5 years of

alimony.

262 N.C. App. at 431, 822 S.E.2d at 433 (citation omitted).

Here, as in Juhnn and Rea, the trial court made extensive, detailed findings

under North Carolina General Statute Section 50A-16.3 in support of its indefinite

award including, but not limited to: marital misconduct by Husband; his remarriage

and financial support of his new family; the earning capacities of the parties; their

age and physical health; Wife’s role in supporting her family while Husband

completed his medical education and training; her later absence from the workforce

to support her family at home; her present inability to practice law again; and the

parties accustomed standard of living during their marriage. Given these findings,

the trial court concluded that “[c]onsidering all of the facts and circumstances of this

case, including the acts of marital misconduct . . . , an award of alimony is mandatory

and equitable.”

b. Failure to consider future changes

Husband further contends the trial court abused its discretion in setting an

indefinite alimony award because it failed to consider how the reasonable needs and

incomes of both parties would change in the future. Specifically, Husband contends

Wife’s income will increase once she begins drawing Social Security benefits, and that

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his income “will drastically be reduced within five . . . years[ ]” as he is currently 62

years old and will not be collecting income from his employment once he retires.

However, Husband cites no case law, nor any language in Section 50-16.3A,

suggesting the trial court is required to consider the future needs and incomes of the

parties in determining proper alimony amount and duration. Indeed, we are quite

certain that neither Husband nor the trial court has the ability to predict the future.

But since no one can predict the future, our alimony law does have a way to

deal with later changes in circumstances. Under North Carolina General Statute

Section 50-16.9(a), “[a]n order of a court of this State for alimony or postseparation

support, whether contested or entered by consent, may be modified or vacated at any

time, upon motion in the cause and a showing of changed circumstances by either

party or anyone interested.” N.C. Gen. Stat. § 50-16.9(a) (2023). The trial court did

not abuse its discretion by not considering possible future changes in the parties’

financial circumstances.

c. Effect of illicit sexual behavior on the duration of alimony

Finally, Husband argues the indefinite duration of the alimony award “was

intended to punish Husband for his marital misconduct.” Specifically, he contends

“[t]he trial court’s ruling was clearly intended to punish Husband . . . by forcing him

to work for the rest of his life in order to allow Wife ‘to continue to live as the wife of

a wealthy doctor,’ while refusing to support herself in any way.” But again, Husband

overlooks most of the trial court’s extensive findings regarding the Section 50-16.3A

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factors which were part of the trial court’s discretionary decision to award alimony

until death or remarriage.

In presenting this argument, Husband cites to this Court’s opinion in Taylor

v. Taylor where we held “[t]he purpose of the award is to provide for the reasonable

support of the wife, not to punish the husband or to divide his estate.” 26 N.C. App.

592, 595, 216 S.E.2d 737, 739 (1975) (citation and quotation marks omitted). It

appears Husband cited this 1975 case mainly because it used the word “punish” in a

portion of the opinion citing an even earlier case, Schloss v. Schloss: “The judgment

is more in the nature of a division of [the] defendant’s estate than it is an award of

alimony, and this is wrong. ‘The purpose of the award is to provide for the reasonable

support of the wife, not to punish the husband or to divide his estate.’ ” Id. (quoting

Schloss v. Schloss, 273 N.C. 266, 272, 160 S.E.2d 5, 11 (1968)). Taylor was decided

in 1975, before North Carolina adopted equitable distribution, and the trial court had

awarded a large lump sum to the wife in an apparent effort to distribute a portion of

the value of the husband’s business to her—something the trial court did not have

the authority to do under the law at that time. See id. at 594-95, 216 S.E.2d at 739

(“It should also be noted that this is not a ‘Community Property’ state and only the

Legislature could properly make it one. The lawmaking branch having declined to

enact that or a similar concept, it should not come to be by judicial dictum, however

well intentioned or fair-minded it may appear in a particular case.”). Otherwise,

neither Taylor nor Schloss tend to support Husband’s argument:

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The wife of a wealthy man, who has abandoned her without

justification, should be awarded an amount somewhat

commensurate with the normal standard of living of a wife

of a man of like financial resources.

The fact that the wife has property of her own does

not relieve the husband of the duty to support her following

his unjustified abandonment of her. Nevertheless, the

statute expressly provides that the earnings and means of

the wife are matters to be considered by the judge in

determining the amount of alimony to be awarded. It is a

question of fairness and justice to both. The purpose of the

award is to provide for the reasonable support of the wife,

not to punish the husband or to divide his estate.

Schloss, 273 N.C. at 272, 160 S.E.2d at 11 (citations and quotation marks omitted).

We also note that both the equitable distribution and alimony statutes have

changed substantially since Schloss and Taylor were decided. As Wife contends,

“[North Carolina General Statute Section] 50-16.3A (enacted in 1995)[ ]” does

“include[ ] some modicum of punishment[,]” citing to Reynolds on Family Law:

The only way the 1995 legislation reflects the goal to

punish is in the non-discretionary treatment of illicit

sexual behavior by the supporting spouse. When the non-

discretionary treatment applies, the court must award

alimony to the dependent spouse without considering any

marital misconduct by the dependent spouse, reflecting the

view that the supporting spouse should be punished for the

uncondoned illicit sexual behavior that occurred on or

before the date of separation.

2 Suzanne Reynolds, Reynolds on North Carolina Family Law § 5.18(b)(2) (2024).

Section 50-16.3A, which was adopted in 1995, specifically directs that marital

misconduct “shall” be considered by the trial court in making its alimony

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determinations, including amount and duration. See N.C. Gen. Stat. § 50-16.3A(b)(1).

And for one particular form of “marital misconduct” by a supporting spouse, “illicit

sexual behavior,” alimony is mandatory:

The court shall award alimony to the dependent spouse

upon a finding that one spouse is a dependent spouse, that

the other spouse is a supporting spouse, and that an award

of alimony is equitable after considering all relevant

factors, including those set out in subsection (b) of this

section. . . . If the court finds that the supporting spouse

participated in an act of illicit sexual behavior, as defined

in [North Carolina General Statute Section] 50-16.1A(3)a.,

during the marriage and prior to or on the date of

separation, then the court shall order that alimony be paid

to a dependent spouse.

N.C. Gen. Stat. § 50-16.3A(a) (emphasis added).

As this Court explained in Romulus v. Romulus, the marital fault of “illicit

sexual behavior” is treated differently than the other seven potential types of “marital

fault”:

“Illicit sexual behavior” is one of the eight forms of “marital

misconduct” as defined by [North Carolina General Statute

Section] 50-16.1A(3) . . . . “Illicit sexual behavior” is treated

differently from all other forms of “marital misconduct,” as

the trial court has the discretion to weigh all of the other

forms of “marital misconduct” and to determine what

effect, if any, the misconduct should have upon the alimony

award. See N.C. Gen.Stat. § 50-16.3A(b) (“The court shall

exercise its discretion in determining the amount,

duration, and manner of payment of alimony. In

determining the amount, duration, and manner of payment

of alimony, the court shall consider all relevant factors,

including: (1) The marital misconduct of either of the

spouses.”). As to “illicit sexual behavior” only, [North

Carolina General Statute Section] 50-16.3A(a) eliminates

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the trial court’s discretion to weigh the marital misconduct

of the parties unless both parties have committed “illicit

sexual behavior.”

215 N.C. App. at 521-22, 715 S.E.2d at 325 (ellipses and footnote omitted).

We recognize that the effect of “illicit sexual behavior” as a mandatory basis

for either allowing or denying alimony may seem punitive to the unfaithful party,

either the dependent spouse or the supporting spouse. See id. at 497, 715 S.E.2d at

310-11 (“As to the denial of alimony, we affirm the trial court’s conclusion that [the]

plaintiff is barred from alimony by her uncondoned ‘illicit sexual behavior’ during the

marriage, despite the trial court’s findings as to [the] defendant’s physical abuse of

[the] plaintiff and their children. Our legislature has decreed that even one fleeting

incident of ‘illicit sexual behavior’ by a dependent spouse automatically bars her from

an alimony award, even if the supporting spouse has committed serious, indeed

criminal, physical abuse, against his wife and children throughout the marriage, and

we have no authority to question the legislature’s wisdom in adopting this rule.”).

Here, the trial court made detailed findings about Husband’s “especially

egregious illicit sexual affair” with Darla, beginning about three years before the

parties separated. As already discussed, the trial court did not abuse its discretion

in setting the amount of alimony after considering both parties’ reasonable expenses

and incomes. Wife’s income was far from enough to provide for her reasonable

expenses as determined based on the accustomed standard of living during the

marriage, and Husband has the ability to provide for her reasonable needs while still

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leaving him with the means to cover not only his own expenses, but also those of his

new wife, Darla, and her adult child. In fact, the trial court found that in addition to

supporting Darla and her adult child, Husband had spent $490,000.00 to renovate

her home, paid off her daughter’s student loan of about $55,000.00, and paid Darla’s

attorney fees of about $45,000.00. The trial court did not abuse its discretion by

considering Husband’s marital misconduct as a significant factor supporting the

duration of the alimony award. Husband’s argument is overruled.

IV. Conclusion

We affirm the Alimony Order as the trial court did not err by concluding that

Wife is a dependent spouse and the trial court did not abuse its discretion in

determining the amount and duration of the alimony. The trial court’s findings

thoroughly addressed the factors required under North Carolina General Statute

Section 50-16.3A. Further, the trial court’s order did not punish Husband for his

illicit sexual behavior during the marriage but gave proper consideration to this

factor as required under North Carolina General Statute Section 50-16.3A.

AFFIRMED.

Judge ZACHARY concurs.

Chief Judge DILLON dissents by separate opinion.

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No. COA24-369 – Allport v. Allport

DILLON, Chief Judge, dissenting.

I agree with most of the majority opinion. I agree the trial court made

sufficient findings to justify Wife’s entitlement to alimony. However, I agree with

Husband that the trial court did not make adequate findings regarding certain

evidence presenting about Wife’s income available to fund for her own reasonable

monthly expenses. Accordingly, my vote is to vacate the order and remand the matter

for the trial court to make additional findings regarding Wife’s income.

As noted by the majority, in determining the appropriate amount of alimony,

the trial court “shall consider all relevant factors, including . . . [t]he amount of earned

and unearned income of both spouses, including, but not limited to . . . dividends and

benefits such as . . . retirement [and] social security[.]” N.C.G.S. § 50-16.3A(b)(7)

(emphasis added).

The trial court found Wife to be 63 years of age. The trial court found – for

purposes of calculating the appropriate award of alimony – the income Wife had

available to pay for her own expenses was her non-retirement brokerage account

earnings, totaling $1,991.28 per month. Indeed, there was evidence presented that

Wife’s assets include $1.445 million in that brokerage account.

There was also evidence, however, that Wife had another $1.214 million in an

IRA account, earning $2,451.33 per month. I believe the trial court erred by failing

to make findings showing it considered this evidence of Wife’s income from her IRA,

income which she chooses to allow to be reinvested in that IRA. See Bryant v. Bryant,

ALLPORT V. ALLPORT

DILLON, C.J., dissenting.

139 N.C. App. 615, 618 (2000) (interpreting first part of holding in Glass v. Glass, 131

N.C. App. 784, (1998), to require income invested in retirement accounts and

dividends being automatically reinvested be included in income); Friend-Novorska v.

Novorska, 131 N.C. App. 867, 870 (1998) (must include investment income that is

automatically reinvested); Parsons v. Parsons, 231 N.C. App. 397 (2013) (interest and

dividend income, generated by investment account and distributed to wife monthly

as her sole source of income, properly used to determine wife’s gross monthly income).

At 63 years of age, Wife is eligible to pull this income from her IRA without

penalty to satisfy her reasonable monthly expenses. I note that, as pointed out by

Wife in her brief, the trial court did make findings Wife should not have to deplete

her estate to take care of herself. However, requiring Wife to pull this income to

support her lifestyle would not deplete her assets, i.e., her IRA corpus. Rather,

allowing Wife to reinvest her IRA dividend/interest income serves only to increase

Wife’s estate.

The trial court found that Wife’s reasonable monthly expenses include

$2,500.00 per month to increase her retirement savings and that this reasonable

expense must be funded by Husband through alimony. The trial court, though,

should have made findings concerning the evidence that Wife is already earning

about that amount which is being used to fund further increase (beyond mere

appreciation) in her retirement savings. There is a possibility that – by not

considering Wife’s IRA dividend/interest income in its calculus – the trial court has

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DILLON, C.J., dissenting.

double counted. That is, based on the alimony award ordered by the trial court, Wife’s

retirement is actually being funded by about $5,000.00 per month - $2,451.33 funded

from dividends/interest earned in her IRA and $2,500.00 funded by Husband through

the alimony award – being about double the amount the trial court found necessary

to meet Wife’s reasonable needs.

In sum, the trial court had discretion to determine it to be reasonable for Wife

to allow the dividend/interest income which her IRA already generates to be

reinvested in her IRA to increase her retirement estate and to require Husband to

contribute additional sums each month towards Wife’s retirement. But based on the

trial court’s finding that Wife’s reasonable expenses included only $2,500.00 per

month for retirement savings, it was perhaps error for the trial court to require

Husband to pay an additional $2,500.00 per month in alimony to cover this

reasonable expense, rather than just requiring Husband to pay $48.67 per month to

cover this expense.

Further, at 63 years of age, Wife is eligible to collect social security. The trial

court did not make any express finding regarding this potential income source. The

trial court did find there was no credible evidence Wife has depressed her income in

bad faith. But it appears from the context of this finding within the broader order

that this finding was made in relation to Wife’s choice not to seek employment at 63

years of age. There is no finding concerning the evidence offered regarding her

eligibility to receive social security. It may be that the trial court would find it

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DILLON, C.J., dissenting.

appropriate to allow Wife to wait a few more years to collect social security so she

would receive a greater monthly benefit. But since there was evidence concerning

Wife’s eligibility to receive social security benefits now, the trial court must make

findings showing it considered the evidence of this current source of income.

I understand the IRA income and the social security benefits may not be

taxable income until pulled out, if at all. But just because an income source is not

subject to taxation does not mean the trial court should not consider evidence

concerning such income sources, where evidence has been presented these sources

are available to the dependent spouse.

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