Hello,
I was recently awarded Alimony. My ex makes much more income than I do, and is remarried to his paramour. Before the Alimony hearing, I had to file bankruptcy and the bankruptcy trustee decided to sell my home which is co owned with my ex spouse. 2 weeks before the alimony hearing the bankruptcy was discharged, but the part of the bankruptcy involving the house was not finished yet, as the house was not even listed for sale yet . At the Alimony hearing, my exs attorney argued that the bankruptcy was discharged and they did not get the updated affidavit without the credit card bills that were included in the bankruptcy on it from me. The judge asked if either party had the paperwork proving the bankruptcy was discharged there, and neither of us had it. We explained to the judge that the house part of the bankruptcy was not finished and that the alimony amount I needed was regardless of / not including any of the credit card bills. My exs attorney tried to get the alimony dismissed due to not having updated affidavit and bankruptcy discharge notice. The judge said he would not dismiss it and decided to move forward with having the hearing to determine alimony.I testified on the stand that regardless of any of the credit card bills, not counting them at all, I still needed the amount that I was asking for just to meet my basic living expenses not including paying any of those credit card bills. I also said I assumed those credit card bills were being discharged. In the end, the judge awarded me alimony for 10 years. We were married for 30 years, he had an affair, which the judge said was obvious and abandoned myself and our teenage daughter. Now, my ex has filed a motion to dismiss my alimony with district court and Appellate court on the grounds of saying that I committed fraud through my lawyer because the bankruptcy was discharged and that the judge did not do his job determining alimony correctly, because they are saying he considered things he wasn’t suppose to such as my paying medical expenses of our daughter who lives with me over age 18 and the credit cards from the bankruptcy. There is a hearing coming up next month with our judge to decide if my alimony will be dismissed or if there will be a whole new alimony hearing. But I was told regardless of either decision, my ex is going above the judges head to Appellate court and has already filed with Appellate court to dismiss my alimony and I need to find an attorney experienced in Alimony Appellate cases asap. My ex is trying to get the courts to stop my alimony payments immediately until the Appellate court makes a decision. I am in extreme financial need of my alimony and cannot survive without it, if I lose it I would not be able to pay my rent, car payment etc and would be homeless and jobless , living on the streets.
My questions are:
1- How likely is the Appellate court to grant a dismissal of my Alimony?
2- How likely is the district court and / or Appellate court to grant the immediate stopping of my alimony payments until a decision from the Appellate court?
3- What is the Appellate court process/actually happens with Appellate court? Do we go in front of a judge or is it just written arguments and responses from our lawyers regarding everything etc?
4- How do I find an experienced Alimony Appellate court attorney to help me, as I am on an extremely tight budget?
5- Can I ask the courts (district and / or Appellate) for reimbursement of Attorneys fees for having to go through any of this?
6- Does it matter to the courts that my ex is continuously doing these and other things, taking me to court to financially and emotionally drain and devastate me?
His affair and abandonment are the cause of me going into debt and filing bankruptcy and he never even paid any of his child support responsibility from our post separation agreement.
Any advice/feedback is greatly appreciated, thank you so much.
(1) The Court of Appeals will uphold a trial’s court’s ruling unless the trial court committed error. Trial court judges are given great deference as the finder of fact. Based on the information you provided, it does not sound likely that the Court of Appeals would reverse the trial court’s ruling awarding alimony.
(2) Absent a court order stating otherwise, he trial court’s ruling remains in place and remains a valid order that all parties must abide by unless or until overturned by the Court of Appeals.
(3) An appellate attorney will file a written brief addresses the issues and relevant case law for the appeal and will then make oral arguments in front of a panel or Court of Appeals judges. There is no trial or witness or testimony in appellate court.
(4) Some family law attorneys also handle family law appeals. You’ll need to check an attorney’s firm’s website or call their office to see if they handle appeals.
(5) Yes.
(6) Yes, a court can take these things into consideration.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Hello,
I reviewed the order. I have a couple questions below,Im trying to get a good idea of what Im up against, as I depend on my alimony to survive.
Here is what it says:
-The Plaintiff is a dependent spouse and defendent is a supporting spouse within the meaning of nc gen stat 50-16.3
-There were multiple separations during the marriage. Defendent ultimately met his current wife during one of these separations.
-The court does NOT find that defendant ended his affair with his current wife and resumed the marital relationship.
-Defendant had an affair during the marriage and ultimately moved out of the marital home.
***The court considered the following in its determination of alimony:
a. the financial affidavits of both parties presented to the court (this afffidavit of mine had the credit card bills on it - and even though there was a notice that the bankruptcy was discharged, the notice said that not all debts would be discharged, and the house portion of the bankruptcy was not finished so I did not think it was completely discharged yet)
b. the standard of living of the spouses established during the marriage
c. the earning and income capacity of each party, specifically the evidence and admission by defendant that current earnings are suppressed but that age and physical condition may be a factor (which was a lie because withing weeks after this hearing he got a new job making more money)
d. the length of the marriage
e. the contribution of each spouse to the education of the other party, specifically that plaintiff substantially contributed to the defendants education, training and earning capacity and that defendant shared household duties, specifically cared for their children while plaintiff worked
f. the relative education of the parties, specifically that the plaintiff has a GED and unable to pursue further education based on current reasonable economic needs and defendant has a masters degree pursued during the marriage and
g. the relative assets and liabilities of the spouse
*Then it lists more facts that were told, one being that the plaintiff argues the post separation support she is receiving is not enough to cover her bills and support of their daughter while in college.
QUESTIONS:
1 - So based on these specific details from the alimony hearing above, how likely do you think it is that the appellate court will dismiss my alimony?
2- Does this seem like the judge was wrong in considering my affidavit with the credit card bills on it with a discharge, because he doesnt specifically say “not including the bills in the bankruptcy” ? even though the house part of the bankruptcy was not finished, and some of the creditors were most likely going to be paid from some of the equity when the house would sell, and I did testify that I needed the alimony amount for my basic living expenses not including any of the credit card bills that were included in the bankruptcy?
3- Below the reasons for determination of alimony it talks about my statement that my spousal support is not being enough to pay my bills and support our daughter through college. But this was NOT listed above with the items that were listed in alphabetical order that the court specifically considered in determination of alimony, it was only listed below with other facts that were told, but my ex is arguing that the judge considered it and was wrong and should not have considered it in my alimony. Does this seem true?
4 - Before appellate court, we are going to district court in a few weeks in front of the same judge that granted my alimony for the alimony dismissal hearing and its possible that the judge may grant my ex a whole new alimony trial if he doesnt dismiss my alimony, How likely do you think this will happen?
As now the house part of the bankruptcy is almost over as the house has been sold, and will close 2 days before the hearing and creditors will be paid from equity in the house.
5 - If the judge grants a new alimony trial,
-can my ex still file a complaint with appellate court if he is not happy with the results of the new alimony hearing?
-can I ask for a higher alimony amount, and for a longer period of time since I have more bills now?
- can I ask for reimbursement of attorney fees?
Thank you so much
(1) Unless the court of appeals determines that the trial court committed an error of law, the trial court’s ruling will not be overturned. It sounds like the trial judge put plenty of findings of fact in the order for this very reason.
(2) It is usually very relevant and appropriate for a judge to consider credit card bills and other expenses in an alimony hearing.
(3) The list that the judge cites is from a statutory list of factors. It is relevant for the judge to consider your need for alimony and your sources of income.
(4) A trial judge cannot overturn himself/herself and cannot overturn the ruling. The issue of alimony has been litigated and cannot be re-litigated unless the court of appeals remands it for a new trial.
(5) Your spouse can only file a notice of appeal within 30 days of the date of entry of the alimony order. Beyond that, the order stands and it cannot be reviewed by the court of appeals. If the court of appeals remands for a new trial, you can ask for more in alimony if your needs and expenses have changed and you can ask for your attorney’s fees.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Hello,
So that I understand this right, a few more questions:
1- Do you mean that my Ex’s Appellate Attorney will present their argument in front of the judges?
And I need an Appellate Attorney to go before the judges and defend my position also?
2- Do you think the Bankruptcy issue is likely to convince the Appellate court to dismiss my alimony or allow my ex a new alimony hearing? He is also accusing me of committing fraud through my attorney, by knowing the bankruptcy was discharged. But like I explained to the judge, the house part was not finished and the notice states that not all debts are discharged. I did not get a notice specifically telling me which ones were and were not discharged.
My ex has a very aggressive, bull dog, extremely experienced appellate attorney and he will stop at nothing to financially and emotionally drain me.
3- Can the Appellate court grant my ex the right to stop paying my alimony until they make a decision? I am just trying to be prepared for what to expect and If this happens I will be homeless, as I cannot afford to pay my rent and living expenses on just my own salary.
4- Based on what information I have provided, do you still think that it seems not likely that the Appellate court will overturn the Alimony ruling?
Thank you so much.
(1) Yes, both sides submit written briefs arguing their position on an issue that has been appealed to the court of appeals and both sides present oral arguments to a panel of court of appeals judges.
(2) I do not have enough information to make a guess about how the court of appeals judges will handle the bankruptcy and alimony issue.
(3) The alimony order from district court will remain in place until the case is heard by the court of appeals.
(4) Based only on the information you have provided, it sounds like the trial court judge made sufficient findings of fact, and the court of appeals cannot overturn or remand the trial court’s order unless they find the trial court made an error of law.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Urgent!! Hello,
we recently had the alimony dismissal hearing and the judge allowed my ex’s attorney motions to consider alimony dismissal and the judge set my alimony order aside, and stopped my alimony payments saying that there were some discrepancies with the order and asked both attorneys to write a briefing on the alimony order as to my attorney to prove with legal law statutes as to why the previous trial was sufficient to award alimony and for his attorney to do a briefing on why it was “not” sufficient enough to award alimony so he can decide whether to permanently dismiss any alimony, or make us do a new trial etc. This is due to his attorney arguing that the bankruptcy was discharged before the trial and we did not produce enough efficient financial information etc for alimony because they only had the previous affidavit with all the bills that were included in my bankruptcy on there. Although at the original alimony hearing myself and my attorney both told the judge that I needed the money I was asking for to pay my basic living expenses , regardless of the bankruptcy bills, we were not counting any of them in what I needed because I was expecting them to be discharged in the bankruptcy, but we were not sure the bills were completely discharged yet because the part of the bankruptcy with my house was still on going, it was not finished. His attorney is also taking it to appeals court if the judge does not completely dismiss my alimony and his attorney already filed everything with appellatte court and they are just waiting on the judges decision before they proceed with the appellatte court.
Questions:
-
Do you have an idea of why the judge asked the attorneys to write a briefing for this?
-
Do you think it is likely that the judge will dismiss my alimony permanently?
-Do you think that based on these things that if it goes to appellatte court that appellatte judges will grant the permanent dismissal of my alimony?
- Do you think that even though by the alimony order information I wrote above, that legally proved I am a dependent spouse and need some financial support form him to survive, I supported him through his educations, careers and everything for 30 years, he has masters degree and I don’t have a degree, etc that this still would not be enough legal statute proof for the judge to decide to do something other than permanently dismiss my alimony?, even as he knows if he does not dismiss it that right away by my exs attorney, its going to appellatte court ??
-Does there have to be alot of financial proof in the order for it to not get dismissed in appellatte court?
-Do you think this would survive appellatte court for me to be granted alimony?
The judge gets the briefings tomorrow from both attorneys.
-Do you know how long it usually takes for a judge to make a decision for something like this?
-Have you ever heard of or experienced a judge do something like this before?
I am on pins and needles since the judge stopped my alimony and I need that money to survive and not be homeless etc.
Thank you so much.
(1) The judge likely asked each attorney to write a brief on this issue because the judges are unsure on how to rule.
(2) Without being more involved in this matter, I am not able to say whether it is likely or unlikely for the judge to overrule the alimony award.
(3) It sounds like you have a good claim for alimony and for being the dependent spouse, but without being more involved in this matter, which involves very fact-specific issues and potential issues of law, I am unable to say what an appeals court judge may do.
(4) There needs to have been enough financial and non-financial facts on the trial record to support an award of alimony.
(5) I do not practice in appellate court so I do not know how long it may take for a ruling or other determination.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.