Powell v. Powell

214 S.E.2d 808 (1975)

25 N.C. App. 695

Walter Lee POWELL v. Audrey S. POWELL.

No. 757DC105.

Court of Appeals of North Carolina.

May 21, 1975.

*810 Kirby & Clark by John E. Clark, J. Russell Kirby, Wilson, for plaintiff appellant.

Turner & Harrison by Fred W. Harrison, Kinston, for defendant appellee.

MORRIS, Judge.

Plaintiff first contends that the trial court did not make sufficient findings of fact to sustain the award of custody of the three minor children to the defendant.

G.S. § 50-13.2(a) provides that "[a]n order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child".

Here, the trial court found "[t]hat the defendant is a fit and suitable person to have the custody of the children born of the union". Such a finding was necessary under the decision in Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384 (1949). See 3 Strong, N.C.Index 2d, Divorce and Alimony, § 24, p. 377. The trial court also found that "the plaintiff is a fit and suitable person to have visitation rights with the children" and then, without further findings, concluded that the defendant is entitled to an order awarding custody of the children to her.

Our Supreme Court frequently has stated that the findings of the trial court in regard to the custody of children are conclusive when supported by competent evidence. 3 Strong, N.C.Index 2d, ibid.

"However, when the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact." Crosby v. Crosby, 272 N.C. 235, 238-239, 158 S.E.2d 77, 80 (1967), citing Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

In this regard we find the language of Britt, J., in the case of In Re Moore, 8 N.C.App. 251, 254, 174 S.E.2d 135, 137 (1970), instructive. There it was noted:

". . . The institution of the present proceeding invoked the jurisdiction of the District Court of Beaufort County to inquire into the custody of Amy Hope Moore, to determine what custodial arrangement would best serve her welfare, to make findings of fact based on competent evidence with respect thereto, and enter an order awarding her custody to such `person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child.' G.S. § 50-13.2(a)." (Emphasis supplied.) See also Boone v. Boone, 8 N.C.App. 524, 174 S.E.2d 833 (1970); and In re Williams, 9 N.C.App. 24, 175 S.E.2d 326 (1970).

We conclude that the facts found by the trial court are insufficient to sustain the award of custody in this case. Nor do we find in the record evidence sufficient for *811 the court to make findings of fact as to the best interests of the children with respect to their custody. A new hearing is necessary in order that the court may, upon competent evidence, make findings with respect to the question of whether an award of the custody of the three minor children to the plaintiff or the defendant will "best promote the interest and welfare of the child[ren]".

Plaintiff next argues that the trial court failed to make sufficient findings of fact to sustain its conclusion of abandonment upon which the award of permanent alimony to the defendant was based. Again, we find merit in plaintiff's contention.

G.S. § 50-16.2(4) provides as follows:

"§ 50-16.2. Grounds for alimonyA dependent spouse is entitled to an order for alimony when: . . . . . (4) The supporting spouse abandons the dependent spouse."

". . . The statute does not define abandonment. [However], [o]ne spouse abandons the other, within the meaning of this statute, where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. See, Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12. One spouse may abandon the other without physically leaving the home. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919. In that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. The constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a wilful failure, as by a wilful failure to provide adequate support. McDowell v. McDowell, supra; Blanchard v. Blanchard, supra." Panhorst v. Panhorst, 277 N.C. 664, 670-671, 178 S.E.2d 387, 392 (1971).

Here, the trial court found:

"That for several years, the plaintiff (Walter Lee Powell) has resided in Wilson County; and the defendant (Audrey S. Powell) has resided with her mother in Lenoir County near the town of Pink Hill." "That up until the month of August, 1973, the plaintiff (Walter Lee Powell) visited his wife in her mother's home on an average of at least twice each week, during which time the marriage relationship continued." "That during the period of living in separate households, the parties took trips together and spent several nights in various motels, one such occasion being in March, 1973 at the Holiday Inn in Raleigh and another such occasion being in August, 1973 at Myrtle Beach, South Carolina.",

and finally:

"That living in separate households and until August, 1973, the plaintiff supplied his wife and family with funds and materials in excess of Six Hundred Dollars ($600.00) monthly. That beginning in August, 1973, said funds were cut to Eighty Dollars per week, and materials received from the business were eliminated entirely."

The trial court then concluded "[t]hat the plaintiff . . . by his actions . . . abandoned his wife and children in August of 1973 without providing them with sufficient support to maintain them in their usual manner of living . . ." The record contains no finding of fact with respect to whether plaintiff brought their cohabitation to an end "without justification, without the consent of the other spouse, and without the intent of renewing it." Furthermore, while one spouse may abandon the other by a "wilful failure and refusal to provide her with any support", here there was no finding of fact that the reduction of support after August, 1973, was wilful or without excuse. (Emphasis supplied.) *812 The fact that in 1973 plaintiff's business had a net loss of $14,000 would tend to negate such a finding.

The facts found by the trial court are insufficient to sustain its finding of abandonment.

By his third assignment of error plaintiff argues that the trial court did not make sufficient findings of fact to sustain the award of reasonable attorney fees to the defendant. As we pointed out in Austin v. Austin, 12 N.C.App. 286, 296, 183 S.E.2d 420, 427 (1971),

". . . It is uncontroverted that G.S. § 50-16.4 and G.S. § 50-13.6 permit the entering of a proper order for `reasonable' counsel fees for the benefit of a dependent spouse, but the record in this case contains no findings of fact, such as the nature and scope of the legal services rendered, the skill and time required, et cetera, upon which a determination of the requisite reasonableness could be based. Compare, for example, the evidence and findings in Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967). See also Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949)."

The failure of the trial court to make adequate findings of fact with respect to counsel fees requires that this assignment of error be sustained.

Plaintiff also argues that the trial court abused its discretion in setting the amount of his weekly alimony and support payments in that it failed to consider the amount of his present earnings, and instead based its decision on his capacity to earn, without finding that he was "failing to exercise his capacity to earn because of a disregard of his marital obligation". We again find merit in plaintiff's contention. Here the trial court found:

"That the plaintiff is self-employed, with a gross income exceeding One Hundred Seventeen Thousand Dollars ($117,000) annually, as reflected upon his tax returns, which also reflect a net loss of Fourteen Thousand Dollars ($14,000) for 1973 and very little profit for the preceding years.",

and that

". . . the plaintiff is an able-bodied man, with a gross income of more than One Hundred Seventeen Thousand Dollars ($117,000) who has shown a loss or little profit from his business (service station) for several years. Yet the plaintiff personally and his family until August, 1973, lived very well from the business, and the plaintiff stated to the Court that although he was not making any money from the business, he had no plans to seek other employment and that he had no other sources of income or savings. That the plaintiff is fully able to support his family as evidenced by his actions prior to August of 1973."

As was pointed out in Robinson v. Robinson, 10 N.C.App. 463, 467-468, 179 S.E.2d 144, 147 (1971):

"Plaintiff is entitled to a fair and reasonable allowance for support for herself and her three children. The granting of an allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who is able bodied and capable of earning, may be ordered to pay subsistence. Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13; Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728. If the husband is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which defendant is earning when the award is made. To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife and children. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912." (Emphasis supplied.)

*813 For reasons set out, the cause must be remanded for further hearing and findings consistent with this opinion. We observe that in the order entered the court did not make separate findings with respect to the needs of the children and the needs of defendant. In the order entered upon rehearing, should the court determine that defendant is entitled to alimony, the court would be well advised to make findings with respect to the needs of defendant separate from the findings with respect to the needs of the children.

Error and remanded.

VAUGHN and CLARK, JJ., concur.