Hoover v. Hoover , 248 N.C. App. 173 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1396
Filed: 5 July 2016
Iredell County, No. 94 CVD 782
PATRICIA B. HOOVER, Plaintiff,
v.
GEORGE BARRY HOOVER, Defendant.
Appeal by plaintiff from order entered 7 August 2015 by Judge Edward L.
Hedrick, IV, in Iredell County District Court. Heard in the Court of Appeals 12 May
2016.
Homesley, Gaines, Dudley, & Clodfelter, LLP, by Leah Gaines Messick and
Edmund L. Gaines, for plaintiff-appellant.
No brief submitted for defendant-appellee.
ZACHARY, Judge.
Patricia Hoover (plaintiff) appeals from an order modifying the amount of
alimony that George Hoover (defendant) is obligated to pay her on a monthly basis.
On appeal, plaintiff argues that the trial court erred by finding that defendant had
retired and by concluding that there had been a substantial change of circumstances,
and that because defendant had voluntarily suppressed his earnings in bad faith the
trial court should have imputed income to defendant. We conclude that the trial court
did not err by finding that defendant was retired or by concluding that there had been
a substantial change of circumstances, and that plaintiff failed to preserve for our
HOOVER V. HOOVER
Opinion of the Court
review the issue of whether defendant had acted in bad faith such that the trial court
should have imputed income to defendant in calculating his earning capacity.
I. Background
Plaintiff and defendant were married on 8 March 1978, separated on 29
December 1993 and divorced on 21 July 1999. There were no children born of the
parties’ marriage. A consent order entered in 2003 required defendant to pay plaintiff
permanent alimony of $400.00 per week. Pursuant to an order entered on 25 July
2007, defendant’s alimony obligation was reduced to $750.00 per month.
On 2 January 2015, defendant filed a motion to modify alimony. Defendant
alleged that there had been a substantial change of circumstances since the 2007
alimony order was entered, in that he was seventy-two years old, he had several
serious medical problems, and his sole income consisted of a monthly Social Security
payment of “approximately $1508.00.” The trial court conducted a hearing on
defendant’s motion on 2 July 2015. On 7 August 2015, the trial court entered an
order finding that there had been a substantial change of circumstances and reducing
defendant’s alimony payment to $195.00 per month. On 8 September 2015, plaintiff
appealed to this Court from the trial court’s order modifying alimony.
II. Standard of Review
Pursuant to N.C. Gen. Stat. § 50-16.9(a) (2014), an order for alimony “may be
modified or vacated at any time, upon motion in the cause and a showing of changed
-2-
HOOVER V. HOOVER
Opinion of the Court
circumstances by either party[.]” “ ‘As a general rule, the changed circumstances
necessary for modification of an alimony order must relate to the financial needs of
the dependent spouse or the supporting spouse’s ability to pay.’ ” Parsons v. Parsons,
231 N.C. App. 397, 399, 752 S.E.2d 530, 532 (2013) (quoting Rowe v. Rowe, 305 N.C.
177, 187, 287 S.E.2d 840, 846 (1982)). On appeal:
“The well-established rule is that findings of fact by the
trial court supported by competent evidence are binding
on the appellate courts even if the evidence would support
a contrary finding. Conclusions of law are, however,
entirely reviewable on appeal.” A trial court’s unchallenged
findings of fact are “presumed to be supported by
competent evidence and [are] binding on appeal.”
Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 408-09 (2012) (quoting
Scott v. Scott, 336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994), and Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
III. Trial Court’s Order
In its order, the trial court’s findings of fact included the following:
...
4. Pursuant to an Order entered . . . July 25, 2007, the
Defendant’s obligation to pay Alimony was modified to
$750.00 per month beginning July 6, 2007.
5. [In July 2007] . . . Defendant was employed part-time at
NAPA Auto Parts earning $241.52 per week and lived with
his mother in her former residence which she had conveyed
to him and his two siblings. . . .
-3-
HOOVER V. HOOVER
Opinion of the Court
6. On January 10, 2008, the Defendant moved to modify his
Alimony obligation and . . . [alleged] that Plaintiff . . . was
no longer dependent. . . . Defendant’s motion was denied.
7. On September 2, 2011, the parties agreed to reduce
Defendant’s Alimony obligation by $290.00 per month
pending Defendant’s knee surgery. Defendant’s obligation
pursuant to that Order would revert to $750.00 per month
upon the Defendant’s return to work.
8. On August 1, 2014, when the Defendant was
approximately 72 years old, he quit his job at NAPA Auto
Parts because he desired to retire. At the time he left
employment, he was making $9.90 per hour. His gross
income from this employment in 2014 was $14,663.46.
9. The Defendant continues to live in the same home with
his mother. The home is owned by Defendant and his two
siblings; however, he divides the expenses associated with
the home with his mother equally[.] . . . When he has
insufficient money to pay ½ of the expenses, his mother
pays them all. In fact, his mother pays most of the utilities.
The home is worth approximately $150,000.
10. Defendant’s current income is solely in the form of
social security retirement in the gross amount of $1,528.90
per month. For the last several years, his mother has given
the Defendant and his siblings $10,000 per year, but has
not given him the gift in 2015.
11. Defendant is 73 years old. Defendant had a heart attack
8 years ago and a knee replacement 3 years ago. He also
had a hip replacement just before his knee replacement.
Very recently, he suffered severe vision loss in one eye.
Although he had surgery, his vision remains only 30% of
that enjoyed by the eye prior to the retinal tear.
12. Defendant's reasonable monthly expenses can be found
in the following table . . . [table omitted, showing a total
monthly expense amount of $ 1,467.38].
-4-
HOOVER V. HOOVER
Opinion of the Court
13. Upon the factors about which no evidence was
presented, the Court will find the Defendant failed to prove
a substantial change in circumstances related to those
factors outline[d] in N.C.G.S. §50-16.3A and the
dependency of the Plaintiff.
14. Defendant is earning at his capacity. There is
insufficient evidence for the Court to find that retiring at
the age of 72 was done by the Defendant in a bad faith
attempt to disregard his marital obligations.
15. Defendant owes medical providers more than $42,000
for past medical treatment.
16. Defendant receives unearned benefits from his mother
in the sum of $133.44 per month as outlined in the table
above.
17. Therefore, the Defendant's monthly income and
benefits exceed his reasonable needs by $194.96.
The trial court’s conclusions of law included the following:
...
2. A substantial change in circumstances has occurred
since the entry of the last Order affecting Defendant’s
ability to pay Alimony and his Motion to Modify Alimony
should be allowed.
3. Although Defendant’s reduction in income was
voluntary, it was not in bad faith.
4. Considering the resources of the Defendant and the
other factors outlined above, it would be appropriate for the
Court to modify Defendant’s obligation to pay Alimony as
of August 1, 2015.
-5-
HOOVER V. HOOVER
Opinion of the Court
5. Defendant has the ability to pay the amount ordered
herein.
Based upon its findings and conclusions, the trial court granted defendant’s
motion to modify alimony and ordered him to pay plaintiff alimony “in the sum of
$195.00 per month beginning August 1, 2015, which shall be garnished from the
Defendant’s social security check and be paid directly to the Plaintiff.” We conclude
that the trial court’s findings of fact are supported by the evidence, and that its
findings support its conclusions of law.
In reaching this conclusion, we have considered plaintiff’s arguments for a
contrary result. We first note that plaintiff has not argued that the modification order
has resulted in plaintiff’s lacking adequate funds with which to support herself.
Moreover, plaintiff does not challenge the evidentiary facts found by the trial court,
but only the trial court’s ultimate finding that defendant had retired, and its
conclusions that defendant was earning at his capacity because he had not left work
in a bad faith attempt to evade his alimony obligation, and that there had been a
substantial change of circumstances.
Regarding the trial court’s finding that defendant had retired, the undisputed
evidence established the following facts:
1. Defendant was 72 years old1 when he quit work, and was
73 at the time of the hearing on defendant’s motion.
1 We note that employment beyond the age of 72 is prohibited in some circumstances. See N.C.
Gen. Stat. § 7A-4.20 (2015).
-6-
HOOVER V. HOOVER
Opinion of the Court
2. During the time between entry of the 2007 alimony order
and the hearing on defendant’s motion to modify alimony,
defendant had experienced the following medical problems:
(a) a heart attack; (b) a knee replacement; (c) a hip
replacement; (d) instances of skin cancer; (e) hearing loss;
and (f) 70% loss of vision in one eye.
3. After defendant left his employment, his only ongoing
source of income was a monthly Social Security check of
approximately $1530.00 per month.
4. Defendant was 73 years old and living with his 99 year
old mother who contributed to the payment of his expenses.
We hold that the evidence of these circumstances, which is not challenged on
appeal, clearly supports the trial court’s finding that defendant had retired. Plaintiff
is not entitled to relief on the basis of this argument.
Plaintiff also argues that the trial court erred by concluding that there had
been a substantial change of circumstances. Plaintiff asserts on appeal that in its
determination of whether there had been a change of circumstances, the trial court
should have made a finding that defendant acted in bad faith and should have
imputed income to defendant in the amount of his previous earnings. We have
carefully reviewed the transcript of the hearing in this matter, and conclude that
plaintiff did not argue before the trial court that defendant had acted in bad faith,
and did not argue that the trial court should impute income to defendant.
Because plaintiff did not argue at the trial level that the trial court should find
that defendant acted in bad faith and, on that basis, should impute income to
defendant, neither defendant nor the trial court had an opportunity to address this
-7-
HOOVER V. HOOVER
Opinion of the Court
issue. N.C.R. App. P. Rule 10(a)(1) (2014) provides in relevant part that in order to
preserve an issue for appellate review, “a party must have presented to the trial court
a timely request, objection, or motion, stating the specific grounds for the ruling the
party desired the court to make” and must have “obtain[ed] a ruling upon the party's
request, objection, or motion.” “As a general rule, the failure to raise an alleged error
in the trial court waives the right to raise it for the first time on appeal.” State v.
Johnson, 204 N.C. App. 259, 266, 693 S.E.2d 711, 716-17 (2010).
“Our Supreme Court has long held that where a theory
argued on appeal was not raised before the trial court, the
law does not permit parties to swap horses between courts
in order to get a better mount in the appellate courts. . . .
The defendant may not change his position from that taken
at trial to obtain a steadier mount on appeal.”
Cushman v. Cushman, __ N.C. App. __, __, 781 S.E.2d 499, 504 (2016) (quoting
Balawejder v. Balawejder, 216 N.C. App. 301, 307, 721 S.E.2d 679, 683 (2011)). We
conclude that, by failing to raise this issue at the trial level, plaintiff waived review
on appeal.
For the reasons discussed above, we conclude that the trial court did not err
and that its order should be
AFFIRMED.
Judges DILLON and DAVIS concur.
-8-