Bowes v. Bowes , 23 N.C. App. 70 ( 1974 )

CAMPBELL, Judge.

The defendant contends that there was insufficient evidence before the trial court to support the findings of fact and award of alimony contained in its order of 8 ¡February 1974. This order was presumably based on the earning1 capacity of the defendant rather than his actual income and on the amount felt necessary to provide reasonable subsistence to the plaintiff. Upon a review of the record, however, there is no evidence relating to the defendant’s income except that contained in income tax returns predating 1971 and that contained in testimony of the defendant at the trial.

It is settled in North Carolina that “ [t] o base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband is failing to exercise his capacity to earn because of disregard of his marital obligation to provide reasonable support . ... ” Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E. 2d 144, 147 (1971) (emphasis added). “If the husband is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which defendant is earning when the award is made.” Robinson v. Robinson, supra, at 468. There is no evidence in the record supporting a finding that the defendant is making a bad faith effort to earn a reasonable income. Consequently, the award should be based on evidence of earnings at the time the award is made. There being no such evidence other than that in the defendant’s testimony, the award is not supported by sufficient evidence.

“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). “ ‘[T]he earnings and means of the wife are matters to be considered by the judge in determining the amount of alimony. G.S. 50-16.’ ” Sayland v. Sayland, 267 N.C. 378, 382, 148 S.E. 2d 218, 222 (1966), quoting Bowling v. Bowling, 252 N.C. 527, 533, 114 S.E. 2d 228, 232 (1960). From the record, the wife had apparent earnings of sixty dollars ($60.00) to seventy dollars ($70.00) per week after taxes at the time of the trial. G.S. 50-16.5 (a) requires a determination of alimony to have regard to the earnings of both parties. This was not done in the instant case.

The evidence required by the statutes and the cases to support the particular findings of fact and award of alimony in this ease were absent, and the judgment of the trial court must be vacated and the cause remanded for further proceedings in accordance with this opinion.

Vacated and remanded.

Judges Parker and Vaughn concur.