An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted i n accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-131
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


ALVIN KEITH LATAK,
     Plaintiff-Appellant,

      v.                                      Buncombe County
                                              No. 10 CVD 917
TERESA WILSON LATAK,
     Defendant-Appellee.


      Appeal by Plaintiff from judgment entered 28 August 2013 by

Judge Susan M. Dotson-Smith in District Court, Buncombe County.

Heard in the Court of Appeals 20 May 2014.


      Steven   Kropelnicki,         PC,     by    Steven     Kropelnicki,       for
      Plaintiff-Appellant.

      Tony E. Rollman for Defendant-Appellee.


      McGEE, Judge.


      Alvin    Keith    Latak   (“Plaintiff”)      and    Teresa    Wilson    Latak

(“Defendant”) were married 27 November 1987 and separated 5 May

2006.      Plaintiff filed a complaint for absolute divorce on 22

February 2010.       Defendant filed an answer and counterclaims for

alimony, equitable distribution, and child support on 4 June

2010.
                                         -2-
       Judgments or orders were entered as to all claims made by

the parties, including an order granting Plaintiff’s request for

an   absolute   divorce         from   Defendant.        On    appeal,     Plaintiff

challenges only the 28 August 2013 judgment as to Defendant’s

counterclaim for alimony. In its judgment, the trial court found

that   Plaintiff     was    a    supporting     spouse   and       Defendant   was   a

dependent spouse.          The trial court further found that, based on

“Plaintiff’s    income      and    the   [c]ourt’s   findings        on    reasonable

expenses,” Plaintiff had the ability to pay $1,000.00 per month

to Defendant in alimony, “which may assist [Defendant] in the

payments she will incur for private health insurance incurred as

a result of the divorce and loss of insurance.”                     The trial court

then concluded that Defendant was a dependent spouse and was

actually and substantially dependent upon Plaintiff for support,

and that Plaintiff was a supporting spouse with the ability to

pay alimony in the amount of $1,000.00 per month.

       The   trial    court       ordered      Plaintiff      to     pay   Defendant

$1,000.00 per month in prospective alimony and $750.00 per month

in retroactive alimony for a period of six months, followed by

one month of $500.00. These payments were ordered to continue

until October 2028, when Defendant turns sixty-five, or until

Defendant    otherwise       becomes     eligible    for      Medicare     coverage.

Plaintiff appeals.
                                         -3-
                               I. Standard of Review

    It is well settled that “when the trial court sits without

a jury, the standard of review 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.”     Lyons-Hart v. Hart, 205 N.C. App. 232, 235, 695 S.E.2d

818, 821 (2010).        “Findings of fact by the trial court in a non-

jury trial have the force and effect of a jury verdict and are

conclusive       on   appeal    if   there   is   evidence   to   support   those

findings.        A trial court’s conclusions of law, however, are

reviewable de novo.”           Id.

                                     II. Analysis

           A. Plaintiff’s Motion for Involuntary Dismissal

    Plaintiff first argues the trial court erred in denying his

motion for involuntary dismissal of Defendant’s counterclaim for

alimony.     Plaintiff argues that “all of the evidence failed to

make out a case for an award of alimony because [D]efendant

offered no evidence from which the court could find any standard

of living enjoyed by the parties prior to their separation.”

    N.C. Gen. Stat. § 1A-1, Rule 41(b) (2013) states:

            After the plaintiff, in an action tried by
            the court without a jury, has completed the
            presentation of his evidence, the defendant,
            without waiving his right to offer evidence
            in the event the motion is not granted, may
            move for a dismissal on the ground that upon
                                        -4-
            the facts and the law the plaintiff has
            shown no right to relief.      The court as
            trier of the facts may then determine them
            and render judgment against the plaintiff or
            may decline to render any judgment until the
            close of all the evidence.

N.C. Gen. Stat. § 1A-1, Rule 41(c) applies the same rules to

counterclaims.         In the present case, at the close of Defendant’s

evidence,        Plaintiff     moved      for      involuntary      dismissal     of

Defendant’s counterclaim for alimony.                   The trial court, in an

order denying Plaintiff’s motion, stated it

            would deny that motion based on the fact
            that the court had not had the opportunity
            to review all of [] [D]efendant’s evidence
            in that both parties had agreed to submit
            additional    evidence  in    the form  of
            affidavits and briefs in support of their
            sides.     The court having accepted the
            affidavits, evidence, and briefs now takes
            this matter under advisement.

Since N.C.G.S. § 1A-1, Rule 41(b) allows the trial court to

“decline    to    render     any   judgment     until   the   close   of   all   the

evidence,”       the   trial   court   did      not   abuse   its   discretion   in

denying Plaintiff's motion before the court had evaluated the

submitted    affidavits,       evidence      and   briefs.     N.C.G.S.    § 1A-1,

Rule 41(b).

 B. Trial Court’s Finding that Defendant was a Dependent Spouse

    Plaintiff argues the trial court erred in concluding as a

matter of law that Defendant was a dependent spouse.                   “Dependent

spouse” means a spouse who is actually substantially dependent
                                   -5-
upon the other spouse for his or her maintenance and support or

is substantially in need of maintenance and support from the

other spouse.   N.C. Gen. Stat. § 50-16.1A(2) (2013).        “A spouse

is ‘actually substantially dependent’ if he or she is currently

unable to meet his or her own maintenance and support.”        Barrett

v. Barrett, 140 N.C. App. 369, 371, 536 S.E.2d 642, 645 (2000).

“A spouse is ‘substantially in need of maintenance’ if he or she

will be unable to meet his or her needs in the future, even if

he or she is currently meeting those needs.”       Id.

    Plaintiff argues the trial court erred in concluding as a

matter of law that Defendant was a dependent spouse because the

record is devoid of evidence from which the trial court could

find the standard of living enjoyed by the parties prior to

their separation.     However, our Courts are not, as Plaintiff

argues,   unanimous   that   the   parties’   accustomed   standard   of

living during their marriage must be established in order to

conclude as a matter of law that a spouse is dependent.

    This Court has concluded in several cases that a deficit of

income, minus reasonable expenses, is sufficient to conclude as

a matter of law that a party is a dependent spouse.        In Barrett,

this Court stated:

           Here, the trial court found that plaintiff
           earns $2666.50 in gross monthly income, but
           has $3450 in monthly expenses.    Thus, she
           has an income-expenses deficit of $783.50
                                        -6-
            per month. This in and of itself supports
            the   trial    court’s    classification    of
            plaintiff as a dependent spouse. See, e.g.,
            Phillips v. Phillips, 83 N.C. App. 228, 230,
            349 S.E.2d 397, 399 (1986) (“The trial court
            found that plaintiff had monthly expenses of
            $1,300 and a monthly salary of $978.      That
            leaves her with a deficit of $322 a month.
            From these facts, the trial court could have
            found that plaintiff was both actually
            substantially dependent on defendant and
            substantially    in   need   of    dependent’s
            support.”); see also Beaman v. Beaman, 77
            N.C. App. 717, 723, 336 S.E.2d 129, 132
            (1985) (“To properly find a spouse dependent
            the court need only find that the spouse’s
            reasonable   monthly   expenses   exceed   her
            monthly income and that the party has no
            other means with which to meet those
            expenses.”) But see Knott v. Knott, 52 N.C.
            App. 543, 546, 279 S.E.2d 72, 75 (1981)
            (“[A]   mere    comparison   of    plaintiff’s
            expenses and income is an improperly shallow
            analysis.”)(emphasis added).

Barrett, 140 N.C. App. 369 at 371, 536 S.E.2d 642 at 645; see

also Rhew v. Felton, 178 N.C. App. 475,483, 631 S.E.2d 859,865

(2006).

    In the present case, the trial court found that Defendant

had a deficit of income over reasonable expenses of $4,400.55

and will have a greater deficit when she has to begin paying for

a private health insurance policy.

    Additionally,        the    trial     court    considered      the    parties’

separate estates.        Plaintiff lives in a home he owns that has a

disputed   value   of    $187,000.00.         Defendant    rents    a    home   for

$625.00    per   month    and   her     mother    makes   the   rent     payments.
                                            -7-
Plaintiff was awarded Latak Landscaping, the parties’ private

landscaping business, as part of the equitable distribution of

marital property.           Latak Landscaping earns Plaintiff an average

of $1,276.00 per month. Plaintiff and Defendant agreed to settle

a disputed equitable distribution award for a $15,000.00 cash

payout of which Plaintiff had already paid one-half at the time

of   the    hearing    on    Defendant’s         counterclaim       for   alimony,          the

other half being due by October 2013.

      The     trial    court       also     considered      the     parties’         earning

capacities.        Plaintiff       earns     approximately        $6,234.00          a    month

from United Parcel Service, in addition to his earnings from

Latak Landscaping.            Defendant works forty hours per week for

Advanced     Business       Systems    as    a    clerical    worker      and        earns      a

monthly salary of $2,684.00.

      Given    Defendant’s         income-expenses         deficit    and       the      other

factors     considered,       we    hold    that    the    evidence       and    findings

support     the    trial     court’s      classification       of    Defendant            as   a

dependent spouse.

            C. Plaintiff Alleges Erroneous Findings of Fact

      Plaintiff       also    argues       the    trial   court     erred       in       making

findings regarding the parties’ accustomed standard of living

during     their   marriage,        contending      that     Defendant      offered            no

supporting evidence of the parties’ standard of living.                                     The
                                      -8-
trial court specifically found that, during the course of their

marriage, “the parties enjoyed a middle to upper-middle class

lifestyle[,]”      including    health   insurance       through    Plaintiff’s

employment at no cost.          Plaintiff also argues the trial court

erred by finding that he was the primary wage-earner for the

family during the course of his marriage to Defendant.

    Even assuming there is not competent evidence in the record

to support these challenged findings of fact, as stated in the

above analysis, a finding of a deficit of income over reasonable

expenses   is    sufficient     to   classify    a    party   as   a    dependent

spouse.    The trial court’s finding of a deficit of income over

reasonable      expenses   of   Defendant   is       sufficient    to    classify

Defendant as a dependent spouse.            The trial court did not err

in concluding as a matter of law that Defendant is a dependent

spouse.

    Affirmed.

    Judges HUNTER, Robert C. and ELMORE concur.

    Report per Rule 30(e).
