Caldwell v. Caldwell

356 S.E.2d 821 (1987)

Joretta C. CALDWELL v. Carmel F. CALDWELL.

No. 8630DC1288.

Court of Appeals of North Carolina.

June 16, 1987.

*822 Alley, Hyler, Kersten, Killian, Davis and Smathers, P.A., by George B. Hyler, Jr., Asheville, for plaintiff-appellee.

McLean & Dickson, P.A., by Russell L. McLean, III, Waynesville, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant contends the trial judge's finding that "Plaintiff was substantially and materially dependent upon the Defendant for her support and maintenance" is not supported by the evidence. We agree.

G.S. 50-16.1(3) defines "dependent spouse" as 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." The trial court in this case did not find that plaintiff was "substantially in need of maintenance and support" from defendant. The term "actually substantially dependent" as used in the first portion of the definition means that the spouse seeking alimony must have actual dependence on the other "in order to maintain the standard of living in the manner to which that spouse became accustomed during the last several years prior to separation." Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980). Thus to qualify as a dependent spouse under that portion of G.S. 50-16.1(3) the spouse seeking alimony must be actually without means for providing for his or her accustomed standard of living. Id.

The uncontradicted evidence in the record discloses that the year before the parties separated, plaintiff had an income of $18,339.97 and defendant had an income of $20,475.11. The year they separated, plaintiff's income was $19,301.46 and defendant's income was $24,447.26. During the last year that they lived together, they maintained separate bank accounts and divided household expenses. There is no evidence in the record to support the ultimate finding that plaintiff was "substantially and materially dependent upon the Defendant for her support and maintenance." We hold, therefore, that the trial court erred in awarding plaintiff alimony.

The trial court also erred in awarding plaintiff attorney's fees. To recover attorney's fees pursuant to G.S. 50-16.4 in an action for alimony, the spouse must be entitled to the relief demanded, must be a *823 dependent spouse, and must have insufficient means to subsist during the prosecution of the suit and to defray the expenses thereof. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972). Since plaintiff is not a dependent spouse and is not entitled to an award of alimony, she is not entitled to recover attorney's fees.

The order awarding alimony and attorney's fees to plaintiff is reversed.

Reversed.

PHILLIPS and ORR, JJ., concur.