Spillers v. Spillers

212 S.E.2d 676 (1975)

25 N.C. App. 261

Judith Ann SPILLERS v. John Ryon SPILLERS, Jr.

No. 7418DC1067

Court of Appeals of North Carolina.

April 2, 1975.

*678 Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., Greensboro, for plaintiff appellant.

Schoch, Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for defendant appellee.

MORRIS, Judge.

Assignment of error No. 4 was not brought forward and argued in plaintiff's brief, and, therefore, is deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. Four questions are raised by plaintiff's remaining assignments of error.

Plaintiff first contends that the trial judge abused his discretion by failing to award her the alimony to which she is entitled. In support of her argument plaintiff reviews the evidence and argues (1) that the payments ordered by the court are inadequate to permit her to continue to maintain her accustomed standard of living; (2) that the court erroneously considered her earning capacity as opposed to her actual earnings in determining that "by a reasonable application of her professional skills and training as a school teacher. . . plaintiff can substantially continue to maintain the standard of living previously enjoyed during her marriage and cohabitation with the defendant, . . ."; and (3) that the court should have ordered the transfer of certain property to her. We disagree. As we noted in Bowen v. Bowen, 19 N.C.App. 710, 713, 200 S.E.2d 214, 217 (1973), and in cases cited therein, "[t]he amount to be awarded for alimony. . . is within the discretion of the trial court and will not be disturbed in the absence of a manifest abuse of such discretion." In our opinion defendant has failed to show an abuse of discretion. Furthermore, we note that G.S. § 50-16.5(a) provides that "[a]limony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case." (Emphasis supplied.) We therefore conclude that it was proper for the trial judge to consider plaintiff's "earning capacity" in determining whether she could continue to maintain the standard of living enjoyed by her during her marriage to the defendant. Finally, we find it significant that G.S. § 50-16.7(a) states that *679 "[a]limony or alimony pendente lite shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. . ." (Emphasis supplied.) This statute in no way renders it mandatory or incumbent upon the trial court to order any transfer of property as part of the wife's alimony. Plaintiff contends that the court is directed to give due consideration to the "estates" of the parties and that the court's failure to order transfer of assets in addition to the monthly payments, which were the same as had been provided in the pendente lite order, is clearly an abuse of discretion. Undoubtedly the court could have required the defendant to transfer some of his assets to plaintiff. However, his failure to do so does not constitute abuse of discretion nor is it, in and of itself, conclusive indication that the court failed to consider defendant's estate.

Plaintiff next contends the trial judge abused his discretion in ordering her to surrender possession of a 1973 Eldorado Cadillac upon defendant's payment of $5,000 to her so that she could purchase other transportation. We are unable to find in this action any abuse of discretion on the part of the trial judge. Moreover, the record contains plenary evidence to support the trial judge's findings that Sample, Incorporated, owned the automobile and defendant only had given plaintiff the use of the automobile during the marriage. This assignment of error, therefore, is overruled.

In her third assignment of error plaintiff again argues that the trial judge erred in refusing to order the defendant to transfer certain property to her. Plaintiff further argues that the court should have determined her partial ownership in the home. As we already have pointed out, while the trial judge has authority to order a transfer of property under G.S. § 50-16.-7(a), the statute in no way requires him to order a transfer of property. Additionally, plaintiff never prayed for a determination of her ownership interest in the home or personalty in either her original or amended complaint. She may not raise this issue for the first time on appeal.

Plaintiff's final assignment of error relates to the court's refusal to order the defendant to continue his membership in the Sedgefield Country Club in order to assure plaintiff the continued use of the Club's facilities. Plaintiff maintains this was error in light of her testimony at the trial "as to the importance of her continuing to live in the home at Sedgefield and to the importance of being a member, or having member's privileges, in Sedgefield Country Club." She asserts that loss of the privileges will "substantially impair" her life-style and that the trial court abused its discretion in refusing to require the defendant to assure her the continued use of the Club. No authority is cited by plaintiff in support of this argument, nor has the plaintiff shown that the trial judge acted arbitrarily in denying her request. This assignment of error, therefore, is overruled.

Plaintiff has not been able to show that the court failed to consider those things he is directed by statute to consider nor has she been able to show abuse of discretion.

Affirmed.

BRITT and ARNOLD, JJ., concur.