              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-113

                                Filed: 16 August 2016

Mecklenburg County, No. 10CVD20451 (JPC)

TAMMY BURGER, Plaintiff-Appellant,

             v.

JEFFERY C. BURGER, Defendant-Appellee.


      Appeal by plaintiff from Order entered 12 August 2015 by Judge Jena P. Culler

in Mecklenburg County District Court. Heard in the Court of Appeals 8 June 2016.


      CHURCH WATSON LAW, PLLC, by Kary C. Watson, for plaintiff-appellant.

      The Law Office of Stephen Corby, PLLC, by Stephen M. Corby, for defendant-
      appellee.


      ELMORE, Judge.


      Tammy Burger (Wife) appeals from the trial court’s order entered 12 August

2015 on the issues of equitable distribution, child support, and alimony. We affirm

in part and reverse and remand in part.

                                   I. Background

      Jeffery C. Burger (Husband) and Wife were married on 3 October 1987,

separated on 30 December 2009, and divorced on 16 December 2011. They have two

children, born in 1997 and 2001. On 30 September 2010, Wife filed a complaint for

equitable distribution, alleging that she was entitled to an unequal distribution of the
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                                  Opinion of the Court



marital and divisible property in her favor and an equitable distribution of the

marital and divisible debt.    Husband filed an answer and counterclaims on 17

December 2010, seeking child custody, child support, post-separation support,

alimony, equitable distribution, and attorney’s fees. Husband alleged that he was a

dependent spouse within the meaning of N.C. Gen. Stat. § 50-16.1A(2) and that Wife

was a supporting spouse within the meaning of N.C. Gen. Stat. § 50-16.1A(5).

      Following a number of continuances, the Honorable Jena P. Culler held a

bench trial from 11 February 2015 through 13 February 2015 on the issues of

equitable distribution, child support, and alimony. In the trial court’s 12 August 2015

Order, it found the following pertinent facts:

             48. The Court has considered the financial needs of the
             parties, the accustomed standard of living of the parties
             prior to their separation, the present employment income
             and other recurring earnings of each party from any source,
             the income earning abilities of the parties, the separate
             and marital debt service obligation of the parties, those
             expenses reasonably necessary to support each of the
             parties, and each parties’ respective legal obligation to
             support any other person.

             ....

             51. The Court finds that Wife is employed by Wells Fargo,
             and has a gross monthly income of $15,098.00 and a net
             monthly income of $10,230.09.

             ....

             55. The Court finds that Husband is unemployed and has
             been unemployed for several years. Husband has no


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current monthly income. Husband has cancer of the eye
and has to regularly apply pressure to his eye with his
hand to relieve pain. While Husband is at a disadvantage
for employment prospects due to his condition, the Court
finds that he is capable of working and earning minimum
wage and that he has a naive indifference to his self
support. Therefore, the Court imputes a gross monthly
income of $1,247.00, which is based on minimum hourly
working forty (40) hours per week.

....

61. The Court finds that Husband is a dependent spouse as
that term is defined in N.C.G.S. § 50-16.1A(2), is actually
and substantially dependent upon Wife for his
maintenance and support, and is substantially in need of
maintenance and support from Wife. Husband’s resources
are inadequate to meet his needs, and Husband is entitled
to alimony.

62. The Court finds that Wife is a supporting spouse as that
term is defined in N.C.G.S. § 50-16.1A(5). Wife is an able-
bodied person who has the means and ability to provide
reasonable and adequate support to maintain Husband in
the standard of living to which Husband was accustomed
before the separation of the parties.

....

64. The Court finds that the appropriate alimony award is
$1,750.00 per month.

65. The Court finds that Wife has been consistently
employed with Wells Fargo (or its predecessor banks)
during all times for which this court is entering an award
of alimony and Wife has [the] ability to pay the alimony
award set forth herein.

66. [Husband] filed his claim for alimony in December 2010
and the Court finds it is appropriate to make this Order


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              effective January 1, 2011.

       After concluding that an unequal distribution in favor of Husband would be

equitable, the trial court distributed the marital property, marital debt, and divisible

debt and ordered both parties to pay child support. Wife timely appeals.

                                         II. Analysis

A. Income and Expenses

       On appeal, Wife argues that the trial court erred in determining Husband’s

income, Husband’s expenses, and her income. Wife asserts that while the trial court

properly imputed income to Husband for purposes of alimony and child support,

Husband has an earning capacity greater than minimum wage and “the evidence at

trial support[ed] at a minimum, an imputation of $5,000 gross income per month.”

Wife also claims that the trial court should have imputed income to Husband based

on income he could receive from his mother’s trust, arguing that Husband incorrectly

thinks the trust is discretionary. Husband contends that the trial court properly

imputed only minimum wage income due to his lack of recent work history and his

medical condition.1

       N.C. Gen. Stat. § 50-16.3A(b) (2015) provides, “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


1Although Husband initially argues that the trial court erred in finding he was unemployed due to
bad faith, Husband did not file a notice of appeal in this case. N.C. R. App. P. 3 (2016).

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determining the amount, duration, and manner of payment of alimony, the court

shall consider all relevant factors . . . .”

       Wife first argues that the trial court should have imputed gross monthly

income of $5,000 to Husband because he has an undergraduate, master’s, and law

degree, is capable of performing home repair, and in 2010, when Husband was still

employed by Strategic Legal Solutions, he listed on a credit card application that his

annual income was $60,000. Wife further argues that Husband voluntarily left his

employment at Strategic Legal Solutions shortly after the parties separated.

       “ ‘Alimony is ordinarily determined by a party’s actual income, from all sources,

at the time of the order.’ ” Works v. Works, 217 N.C. App. 345, 347, 719 S.E.2d 218,

219 (2011) (citations omitted) (quoting Kowalick v. Kowalick, 129 N.C. App. 781, 787,

501 S.E.2d 671, 675 (1998)). Similarly, in general, “a party’s ability to pay child

support is determined by that party’s actual income at the time the award is made.”

McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d 828, 836 (2006) (citing Atwell

v. Atwell, 74 N.C. App. 231, 235, 328 S.E.2d 47, 50 (1985)). To base an alimony or

child support obligation on earning capacity rather than actual income, the trial court

must first find that the party has depressed her income in bad faith. Works, 217 N.C.

App. at 347, 719 S.E.2d at 219; McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836.

“[T]his showing may be met by a sufficient degree of indifference to the needs of a

parent’s children.” McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836.



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      Here, the trial court found that Husband was unemployed at the time of the

hearing and had been unemployed for several years. Noting that he would be at a

disadvantage for employment prospects due to his health, the trial court nonetheless

found that Husband is capable of working and earning minimum wage. The court

further found that Husband has a naive indifference toward his self-support as well

as toward his duty of support for his children, and it imputed gross monthly income

of $1,247 based on working forty hours per week earning minimum wage.

      While the record evidence shows that Husband is well-educated, it also shows

that he has no eyesight in one eye, “has cancer of the eye[,] and has to regularly apply

pressure to his eye with his hand to relieve pain.” The trial court found that Husband

“would have a difficult time finding a job given his presentation of himself[.]” Wife’s

only attempt to present evidence on Husband’s earning potential was based on a

credit card application that he had completed, and a job he had maintained, five years

prior. Moreover, regarding the trust, the trial court found that “there is no evidence

that Husband received any income from the discretionary trust during the marriage

or otherwise. While there is evidence that Husband could do more than just call and

try to acquire money from the trust, there is no evidence that he received any benefit

from the discretionary trust.” The trial court stated that it “consider[ed] the fact that

Husband did not take steps to further explore possibility of obtaining funds from the

trust.” Accordingly, the trial court did not abuse its discretion in imputing minimum



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wage income to Husband.

       Wife also argues that the trial court’s calculation of Husband’s expenses is

unsupported by the evidence presented at trial, claiming that his expenses are

speculative and hypothetical.

       “This Court has long recognized that ‘[t]he determination of what constitutes

the reasonable needs and expenses of a party in an alimony action is within the

discretion of the trial judge, and he is not required to accept at face value the assertion

of living expenses offered by the litigants themselves.’ ” Nicks v. Nicks, ___ N.C. App.

___, ___, 774 S.E.2d 365, 376 (June 16, 2015) (COA14-848) (quoting Whedon v.

Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32 (1982)). “[T]he parties’ needs and

expenses for purposes of computing alimony should be measured in light of their

accustomed standard of living during the marriage.” Barrett v. Barrett, 140 N.C. App.

369, 372, 536 S.E.2d 642, 645 (2000).

       Here, the trial court found that “Husband’s monthly-shared family reasonable

needs and expenses total $4,142.00 and Husband’s monthly individual reasonable

needs and expenses total $1,305.00. The specific findings as to these total expenses

are attached hereto and incorporated herein by reference as Exhibit 5.” Exhibit 5

details and confirms the total expenses listed above. Husband’s financial affidavit

filed 30 January 2015 supports the expenses contained in Exhibit 5 and the trial

court’s findings. While Wife argues that the expenses in the financial affidavit are



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“completely made up,” Wife’s “argument simply goes to the credibility and weight to

be given to the affidavit. [Wife] was free to attack [Husband’s] affidavit at trial by

cross-examination . . . . Such determinations of credibility are for the trial court, not

this Court.” Parsons v. Parsons, 231 N.C. App. 397, 400, 752 S.E.2d 530, 533 (2013)

(citation omitted). The trial court acted within its discretion in calculating Husband’s

total reasonable needs and expenses based on the record evidence.

      Additionally, Wife argues that the trial court’s calculation of her income is

unsupported by the evidence. Wife claims that the trial court erred in adding her

bonus from 2014 to the gross monthly income amount that she submitted to the trial

court in her financial affidavit, which raised her gross monthly income from

$11,566.08 to $15,098.00. Wife relies on Williamson v. Williamson, 217 N.C. App.

388, 391, 719 S.E.2d 625, 627 (2011), in which this Court held that the trial court

improperly included the defendant’s tax refund as part of her regular income.

      “A supporting spouse’s ability to pay an alimony award is generally determined

by the supporting spouse’s income at the time of the award.” Rhew v. Felton, 178

N.C. App. 475, 484–85, 631 S.E.2d 859, 866 (2006) (citation omitted). “[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.” Phelps v. Phelps, 337 N.C.

344, 357, 446 S.E.2d 17, 25 (1994).

      Wife testified that she received a bonus in 2011, 2012, 2013, and 2014. In



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Wife’s November 2011 financial affidavit, she listed her gross monthly income as

$15,618.55, which included $3,524.33 under “Bonuses.” Wife also filed financial

affidavits in April 2012 and July 2012, in which she listed on both that her gross

monthly income was $15,218.50, which included $3,844.67 under “Bonuses.”

      Wife filed a revised financial affidavit in January 2015, just prior to trial, in

which she listed that her gross monthly income was $11,566.08 and she left the

“Bonuses” section blank.     Wife attached her last two pay stubs to the financial

affidavit, which covered the 14 December 2014 to 10 January 2015 pay periods. When

asked why she did not include her bonus in her gross monthly income, Wife testified,

“I don’t know until I get my bonus what it will be this year.”

      The evidence established that Wife had consistently received bonuses for the

past four years. Wife based her most recent financial affidavit in part on her gross

monthly income from December 2014. Wife admitted that her 2014 bonus totaled

around $41,000. And in November 2014, when completing a loan application for a

new home, Wife listed her total gross monthly income as $15,097, which included

$3,478 under “Bonuses.”

      Unlike in Williamson where there was no evidence that the tax refund

constituted regular income, 217 N.C. App. at 390–91, 719 S.E.2d at 627, here, the

trial court properly determined Wife’s income in accordance with the record evidence.

Based on the facts presented in this case, the trial court acted within its discretion in



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including Wife’s December 2014 bonus in her average gross monthly income.

      As a related issue, Wife makes a blanket assertion that the trial court’s

findings of fact concerning the parties’ income and expenses are unsupported by the

evidence and, absent proper findings, the trial court’s conclusions of law relating to

the support obligations must also fail.

      “The review of the trial court’s findings are limited to ‘whether there is

competent evidence to support the findings of fact and whether the findings support

the conclusions of law.’ ” Dodson v. Dodson, 190 N.C. App. 412, 415, 660 S.E.2d 93,

96 (2008) (quotation omitted). For the numerous reasons stated above, the trial

court’s findings regarding the parties’ income and expenses were supported by

competent evidence. Likewise, the trial court’s conclusions of law, based on those

findings, were proper.

B. Effective Date of Alimony Award

      Wife next argues that the trial court erred in awarding Husband alimony

effective 1 January 2011, claiming that she should not have an alimony obligation for

the period of 1 January 2011 through 1 February 2015.

      “Our Court reviews a trial court’s decision regarding the manner of payment

of an alimony award for abuse of discretion.” Rhew, 178 N.C. App. at 479–80, 631

S.E.2d at 863 (citing Whitesell v. Whitesell, 59 N.C. App. 552, 553, 297 S.E.2d 172,

173 (1982)).



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          In Smallwood v. Smallwood, ___ N.C. App. ___, ___, 742 S.E.2d 814, 824 (May

21, 2013) (COA12-1229), the defendant, relying on our holding in Brannock v.

Brannock, 135 N.C. App. 635, 523 S.E.2d 110 (1999), argued that N.C. Gen. Stat. §

50-16.3A did not permit the trial court to award alimony “retroactively.” This Court

rejected the defendant’s argument, stating that “while Brannock does discuss the

changes in North Carolina law regarding alimony, nothing in the opinion references

any intent by the General Assembly to eliminate retroactive alimony or to abrogate

our rulings in Austin2 and its progeny.” Smallwood, ___ N.C. App. at ___, 742 S.E.2d

at 824. Accordingly, we upheld the award. Id. at ___, 742 S.E.2d at 824.

          Here, the trial court awarded Husband alimony in the amount of $1,750.00 per

month for ten years, effective 1 January 2011. Wife does not challenge the ten-year

duration of the payments but only argues that the trial court erred in making the

award retroactive to 1 January 2011. Wife’s argument, however, has already been

rejected by this Court. See id. at ___, 742 S.E.2d at 824. Accordingly, Wife cannot

establish that the trial court abused its discretion in making the alimony award

effective 1 January 2011.

          Wife also argues that the trial court erred because it failed to make findings

about the parties’ income and expenses for the intervening years between 2011 and

2015. Alimony, however, “is ordinarily determined by a party’s actual income, from



2   Austin v. Austin, 12 N.C. App. 390, 393, 183 S.E.2d 428, 430 (1971).

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all sources, at the time of the order.” Kowalick, 129 N.C. App. at 787, 501 S.E.2d at

675. In the trial court’s findings of fact, it found that Wife’s current net monthly

income was $10,230.90 and her total monthly reasonable financial needs and

expenses were $8,240. Based on the evidence presented and consideration of the

statutory factors, the trial court awarded Husband $1,750 per month in alimony. The

trial court did not abuse its discretion in considering Wife’s current net monthly

income in determining the alimony award.

C. Equitable Distribution

      Finally, Wife argues that the trial court erred in distributing Wife’s

Wachovia/Wells Fargo Savings Plan (the Plan) because the trial court failed to value

the divisible component of the Plan as of the date of distribution. Wife does not

otherwise contest the trial court’s distribution.

             Our standard of review for alleged errors in a trial court’s
             classification and valuation of divisible and marital
             property is well-settled:

             [w]hen the trial court sits without a jury, the standard of
             review on appeal is whether there was competent evidence
             to support the trial court’s findings of fact and whether its
             conclusions of law were proper in light of such facts. While
             findings of fact by the trial court in a non-jury case are
             conclusive on appeal if there is evidence to support those
             findings, conclusions of law are reviewable de novo. We
             review the trial court’s distribution of property for an abuse
             of discretion.

Nicks, ___ N.C. App. at ___, 774 S.E.2d at 380 (quoting Romulus v. Romulus, 215 N.C.



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App. 495, 498, 715 S.E.2d 308, 311 (2011)).

      In making an equitable distribution of the marital assets, the trial court is

required to undertake a three-step process: “(1) to determine which property is

marital property, (2) to calculate the net value of the property, fair market value less

encumbrances, and (3) to distribute the property in an equitable manner.” Beightol

v. Beightol, 90 N.C. App. 58, 63, 367 S.E.2d 347, 350 (1988) (citation omitted). Under

our General Statutes, marital property is defined as “all real and personal property

acquired by either spouse or both spouses during the course of the marriage and

before the date of the separation of the parties, and presently owned . . . .” N.C. Gen.

Stat. § 50-20(b)(1) (2015). Divisible property includes “[p]assive income from marital

property received after the date of separation, including, but not limited to, interest

and dividends.” N.C. Gen. Stat. § 50-20(b)(4) (2015). “For purposes of equitable

distribution, marital property shall be valued as of the date of the separation of the

parties, and . . . [d]ivisible property and divisible debt shall be valued as of the date

of distribution.” N.C. Gen. Stat. § 50-21(b) (2015).

      Here, the trial court found that the “ ‘Wachovia/Wells Fargo 401(k)’ listed on

the Final Pretrial Order is a duplicate entry of the ‘Wachovia/Wells Fargo Savings

Plan.’ ” The trial court did not issue any other findings regarding the Plan but listed

it as marital property and ordered the following:

             Wife’s Wachovia/Wells Fargo Savings Plan shall be divided
             equally between the parties as of the date of separation.


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             Each party is hereby awarded fifty percent (50%) of the
             balance of the said account as of the date of separation,
             which was $498,672.00, together with all passive gains and
             losses accruing on his or her respective share from the date
             of separation through the date of the division of the said
             account. . . .

      On the Equitable Distribution Pretrial Order, both parties contended that the

Plan was marital property and the date of separation value was $498,672.13. Neither

party submitted a current value. Similarly, at trial, no testimony concerned the

current value of the Plan. Because no evidence was presented on the Plan’s current

value and no evidence was presented on any passive changes in the Plan’s value, the

trial court erred in distributing the passive gains and losses without additional

findings of fact. See Cunningham v. Cunningham, 171 N.C. App. 550, 556, 615 S.E.2d

675, 680 (2005) (“[W]hen no finding is made regarding the value of an item of

distributable property, a trial court’s findings are insufficient even if a determination

is made with respect to the percentage of a distributable property’s value to which

each party is entitled.”).   Accordingly, we reverse that portion of the order on

equitable distribution and we remand to the trial court for entry of additional

findings.

                                   III. Conclusion

      The trial court did not err in its award of alimony, and the trial court’s findings

of fact support its conclusions of law. The trial court did err in distributing the

passive gains and losses from the Plan. We reverse this portion of the equitable


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distribution award and remand to the trial court.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.


      Judges DAVIS and DIETZ concur.




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