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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DORIS FRIEND-NOVORSKA, Plaintiff, v. JAMES C. NOVORSKA, Defendant
Filed: 20 April 2004
The trial court did not err in an alimony action by denying plaintiff dependent spouses's
motion for attorney fees, because plaintiff was able to subsist and defray the necessary expenses
related to prosecuting the action since: (1) plaintiff's income had increased from the date of
separation until the date of this action; (2) plaintiff continued to live at the marital residence
while defendant voluntarily paid at least half of the monthly mortgage payments; (3) defendant
paid plaintiff monthly postseparation support; and (4) defendant had previously paid $2,000
toward plaintiff's attorney fees.
Appeal by plaintiff from order entered 21 February 2003 by
Judge Joseph Buckner in Orange County District Court. Heard in the
Court of Appeals 16 March 2004.
Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for
Darsie, Sharpe, Mackritis & Dukelow P.L.L.C., by Lisa M.
Dukelow, for defendant-appellee.
Doris Friend-Novorska (plaintiff) appeals from an order
denying her motion for attorney's fees. We affirm.
This is the fourth appeal from the parties to this Court. The
first was heard by this Court on 21 October 1998. Novorska v.
Novorska, 131 N.C. App. 508, 507 S.E.2d 900 (1998) (Novorska I),
aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001). We affirmed the trial
court's judgment for equitable distribution. Id. While that
appeal was pending, plaintiff also appealed the order and judgment
for alimony. We affirmed the award of alimony but vacated andremanded for the trial court to make appropriate findings of fact
to support the amount and duration of the award. Novorska v.
Novorska, 131 N.C. App. 867, 509 S.E.2d 460 (1998) (Novorska II),
aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001). On remand, plaintiff
moved for a new award of alimony and for an award of attorney's
fees and costs. The trial court made new findings of fact and
awarded plaintiff the same amount and duration of alimony. The
trial court denied plaintiff's request for attorney's fees. The
plaintiff appealed this denial. We affirmed the award of alimony,
and reversed and remanded the trial court's denial of attorney's
fees for appropriate findings of facts on whether plaintiff was
entitled to attorney's fees. Novorska v. Novorska, 143 N.C. App.
387, 545 S.E.2d 788 (Novorska III), aff'd, 354 N.C. 564, 556
S.E.2d 294 (2001). We incorporate the facts from our previous
opinions and set forth additional facts necessary to decide this
appeal. Novorska I, 131 N.C. App. at 510, 507 S.E.2d at 902;
Novorska II, 131 N.C. App. at 868, 509 S.E.2d at 460; Novorska III,
143 N.C. App. at 388, 545 S.E.2d at 790.
Following remand from this Court, the trial court held a
hearing on Plaintiff's motion for attorney's fees on 18 March 2002.
After hearing oral arguments from each attorney and reviewing the
record before it, the trial court concluded that [d]uring the
course of this action, the plaintiff was able to subsist and defray
the necessary expenses related to prosecuting this action. The
trial court entered an order denying plaintiff's request for
attorney's fees on 21 February 2003. Plaintiff appeals.
The sole issue is whether the trial court erred in failing to
award plaintiff, the dependent spouse, attorney's fees.
III. Attorney's Fees
N.C. Gen. Stat. § 50-16.4 (2003) sets forth the requirements
for awarding attorney's fees to a dependent spouse and states,
[a]t any time that a dependent spouse would be
entitled to alimony pursuant to G.S. 50-16.3A,
or post-separation support pursuant to G.S.
50-16.2A, the court may, upon application of
such spouse, enter an order for reasonable
counsel fees for the benefit of such spouse,
to be paid and secured by the supporting
spouse in the same manner as alimony.
(emphasis supplied). We interpreted this statute to require that
[a] spouse is entitled to attorney's fees if that spouse is (1)
the dependent spouse, (2) entitled to the underlying relief
demanded (e.g., alimony and/or child support), and (3) without
sufficient means to defray the costs of litigation. Barrett v.
Barrett, 140 N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000) (citing
Clark v. Clark, 301 N.C. 123, 135-136, 271 S.E.2d 58, 67 (1980)).
Whether the moving party meets these requirements is a question of
law fully reviewable de novo on appeal. Hudson v. Hudson, 299 N.C.
465, 473, 263 S.E.2d 719, 724 (1980).
Here, the trial court found that plaintiff was the dependent
spouse and entitled to alimony. We affirmed the trial court's
holdings on these two issues in Novorska I, Novorska II, and
Novorska III. The determinative issue at bar is whether the trial
court made sufficient findings of fact to conclude that plaintiff
was with sufficient means to defray the costs of litigation.
Barrett, 140 N.C. App. at 374, 536 S.E.2d at 646. The trial court found that plaintiff presently is employed as
a Personnel Technician II at the University of North Carolina
Hospital with an annual salary of $29,900.00, compared to her
salary of $17,280.00 per year at the time of separation, an
increase of $12,620.00. Plaintiff's job also provides health
insurance at no cost, dental insurance, disability insurance and a
retirement plan which requires a six percent (6%) deduction from
her salary and the State of North Carolina matches her contribution
at the same rate.
The trial court further found that plaintiff retained sole
possession of the marital residence and that defendant voluntarily
agreed to pay the $1,113.00 per month mortgage payment on the
marital residence from the date of separation until this action was
filed. These payments allowed plaintiff to secure full-time and
permanent employment. After the filing of this action, the parties
entered into a consent judgment in which defendant agreed to pay
plaintiff $600.00 per month in post-separation funds plus one-half
of the monthly mortgage payment in the amount of $578.48. The
trial court further found that plaintiff had received an unequal
distribution of the marital property and that defendant had already
paid $2,000.00 towards plaintiff's attorney's fees.
The trial court's findings that (1) plaintiff's income had
increased from the date of separation until the date of this
action, (2) plaintiff continued to live at the marital residence
while defendant voluntarily paid at least half of the monthly
mortgage payments, (3) defendant paid plaintiff monthly post-
separation support, and (4) defendant had previously paid $2,000.00towards plaintiff's attorney's fees supports its conclusion of law
that plaintiff was able to subsist and defray the necessary
expenses related to prosecuting the action and the denial of
plaintiff's motion for attorney's fees. Plaintiff's assignment of
error is overruled.
The trial court's findings of fact are supported by
substantial evidence and its conclusions of law support its denial
of plaintiff's motion for attorney's fees. The order of the trial
court is affirmed.
Judges WYNN and HUNTER concur.
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