Gilbert v. Gilbert

321 S.E.2d 455 (1984)

David B. GILBERT v. Nell H. GILBERT.

No. 8314DC1183.

Court of Appeals of North Carolina.

November 6, 1984.

*456 Maxwell, Freeman, Beason & Morano by James B. Maxwell, Durham, for plaintiff-appellant.

Mount, White, King, Hutson & Carden by William O. King and Elizabeth R. Stuckey, Durham, for defendant-appellee.

ARNOLD, Judge.

Plaintiff first contends that the order that a one-half interest in the marital home be conveyed to defendant was beyond the authority of the trial judge. Although the North Carolina statutes and decisions may not be entirely clear on this question, see, e.g., Taylor v. Taylor, 26 N.C.App. 592, 216 S.E.2d 737 (1975); Spillers v. Spillers, 25 N.C.App. 261, 212 S.E.2d 676 (1975); Clark v. Clark, 44 N.C.App. 649, 262 S.E.2d 659, modified, 301 N.C. 123, 271 S.E.2d 58 (1980), we find on considering them and the basic purposes of the alimony statute that the trial judge did not properly order conveyance to the defendant of an interest in the marital home and other real estate.

The purpose of alimony is to provide support and maintenance for the dependent spouse. G.S. 50-16.1. "Alimony 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." G.S. 50-16.5(a).

*457 The methods of structuring and enforcing payment of alimony are set out in G.S. 50-16.7 (1976). Subsection (a) provides:

Alimony 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. In every case in which either alimony or alimony pendente lite is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance. (Emphasis added.)

This part of the statute makes no mention of a transfer of title to real property and, as plaintiff argues, it appears to exclude by implication an order of such a transfer as part of the alimony award.

This subsection, however, must be read with the rest of the statute. Subsections (b) and (c) state that:

(b) The court may require the supporting spouse to secure the payment of alimony or alimony pendente lite so ordered by means of a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due. (c) If the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or alimony pendente lite as provided in subsection (a) or for the securing thereof, the court may also enter an order which shall transfer title, as provided in G.S. 1A-1, Rule 70 and G.S. 1-228.

Admittedly, subsection (c) appears to conflict with subsection (a), in that it allows the court to transfer real property as part of the alimony award. We note, however, that in (c) "transfer" is modified by "as provided in subsection (a) or for the securing thereof." This limits the transfer to one of a security interest in or possession of real property. The second phrase "or for the securing thereof" refers back to subsection (b). We do not read subsections (b) and (c) as enlarging the authority given the trial judge in subsection (a). Rather, these subsections enable the court to order a transfer of title to real property to secure an award of alimony made under subsection (a). Thus, the trial judge may order the transfer of title to real property, but only if it is necessary to insure the payment of alimony.

In the case at bar, the trial judge did not find sufficient facts to support the conveyance of a half interest in the marital home and other real estate as security for the payment of alimony. He wrote, in his judgment of 14 June 1983:

32. Considering the estate, earnings and positions of the parties, education, defendant's inability to be self-sufficient, the depletion of defendant's estate, the insecurity of defendant's future with respect to real estate which was acquired with funds and financial commitments of both parties but which was deeded only to plaintiff, and considering the circumstances of the separation, defendant is entitled to a lump sum payment of alimony, a one-half interest in the Pinafore Drive home, an interest in the equity of the Kerr Lake property, attorney's fees, an interest in jointly held stock, and permanent alimony. Plaintiff is healthy, able-bodied, and has an outstanding income and excellent income capacities. He possesses the means and abilities to provide the support which will be more particularly set out below.

None of the considerations given indicate that the judge feared that the alimony payments would not be made. The "insecurity of defendant's future" with respect to the real estate is not a proper reason for securing the alimony award now. The trial judge can adjust the alimony award in the future to meet the need for large financial commitments, such as a down payment on a new house when the writ of possession expires, that might occur then. If the trial judge believed that there were reasons, financial or otherwise, to suspect that the alimony payments would not be made in *458 full, then he should have set them out specifically as grounds for the transfer of title to secure the alimony award.

The alimony statute, G.S. 50-16.7, authorizes the trial judge to order lump sum alimony payments and the transfer of title to personal property. In the case at bar, the trial judge did not abuse his discretion in awarding the $10,000 lump sum payment or in transferring an interest in jointly-owned stock.

In light of the conclusions above, we see no point in addressing the issue of whether service of the plaintiff's proposed record on appeal was timely.

The trial judge's order is accordingly vacated as to the conveyance of a half interest in the marital home and other real estate, and remanded for further findings in accordance with this opinion, if the trial judge determines they are appropriate. The order is affirmed as to the other matters addressed in it.

Affirmed in part and vacated and remanded in part.

WHICHARD and EAGLES, JJ., concur.