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Glass v. Glass12/29/1998
Appeal by defendant from alimony and child support order entered 4 March 1997 by Judge Fred M. Morelock in Wake County District Court. Heard in the Court of Appeals 17 November 1998.
Margaret S. Glass (plaintiff) and J. Carter Glass (defendant) were married on 9 April 1976. They have one minor child, John, born 20 February 1989. The parties separated on 31 March 1995 when defendant moved from the marital residence.
On 11 July 1995, plaintiff filed an action for alimony and alimony pendente lite, equitable distribution, custody and support of the minor child, and counsel fees. Defendant counterclaimed for custody, child support , and equitable distribution, raising numerous affirmative defenses to the alimony claim, including excessive spending by plaintiff-wife.
On 21 November 1995, plaintiff voluntarily dismissed her claims for alimony and alimony pendente lite without prejudice. On the same day, plaintiff filed a new action for post-separation support, alimony, and counsel fees. Defendant answered the new complaint, again raising excessive spending by plaintiff-wife as a defense. The parties were divorced on 26 April 1996. The alimony, custody, and equitable distribution cases were consolidated by agreement and tried in June 1996.
The trial court entered an order and judgment in the equitable distribution case on 15 October 1996 and no appeal was taken. In November 1996, the trial court announced its tentative decision in the alimony and child support case. Before an order was prepared, however, defendant moved that the trial court hear additional evidence relating to events which occurred after the June 1996 hearing. The trial court allowed the motion, received additional evidence, and entered its order on 4 March 1997.
Defendant was required by the March 1997 order to pay alimony of $3,500.00 per month for ten years, retroactive to 1 April 1995. After credits for voluntary alimony payments, defendant had an alimony arrearage of $17,267.02. The trial court also required defendant to pay child support of $2,500.00 per month and one-half the child's unreimbursed medical expenses. Plaintiff's motion for counsel fees was denied. Defendant appealed, assigning numerous errors.
Defendant contends the trial court erred in calculating the incomes of both plaintiff and defendant, and that these basic errors call into question the trial court's Conclusion that defendant was the supporting spouse and plaintiff was the dependent spouse. Defendant further argues these errors require the case to be remanded so the trial court may make appropriate findings about the parties' incomes and expenses, and so that it may set proper amounts of alimony and child support .
Defendant argues the trial court erred in failing to find that plaintiff was guilty of marital misconduct by reason of her excessive spending, and that alimony should not have been ordered in any amount. Finally, defendant contends that due to the substantial changes in the alimony law effective 1 October 1995, the trial court could not order alimony for the period prior to the date plaintiff filed her second alimony complaint.
I. Alimony
Until 1967, North Carolina alimony law remained essentially unchanged. See Sally Burnett Sharp, Step by Step: The Development of the Distributive Consequences of Divorce in North Carolina, 76 N.C.L. Rev. 2017, 2029 (1998)(hereinafter "Sharp"). In 1967, the law of alimony was extensively rewritten and codified as N.C. Gen. Stat. ยง 50-16.1, et seq. Alimony remained fault-based, and was available to a spouse only upon findings that the spouse was dependent, that the other spouse was the supporting spouse, and that the
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