BRENDA WILKINS CUNNINGHAM,
Plaintiff
v
.
Craven County
No. 00 CVD 1642
JON CRAIG CUNNINGHAM,
Defendant
Charles William Kafer, for plaintiff-appellee.
Wyrick, Robbins, Yates & Ponton, LLP, by K. Edward Greene and
Donald L. Beci, for defendant-appellant.
CALABRIA, Judge.
Jon Craig Cunningham (“defendant”) appeals orders entered on
11 July 2003 concerning (1) equitable distribution (the “ED
order”); (2) defendant's military retirement benefits (the
“military pension order”); and (3) custody, child support, alimony,
and attorney fees. We affirm in part, reverse in part, and remand.
Defendant and Brenda Wilkins Cunningham (“plaintiff”) were
married 19 May 1990, separated 20 June 2000, and divorced 13
November 2001. Two children were born of the marriage, the first
child on 9 July 1992 and the second child on 21 March 1995 (the
“children”). In August 1997, the parties moved to Havelock, NorthCarolina after defendant, a Lieutenant Colonel and aviator in the
United States Marine Corps, was transferred to Cherry Point Marine
Corps Air Station (“Cherry Point”). In early 2000, the parties
jointly decided that defendant would accept a three-year overseas
tour of duty in Okinawa beginning 20 June 2000 and that plaintiff
and the children would accompany him. Prior to defendant's
departure, plaintiff changed the plan and told him that she and the
children would not accompany him initially but would join him
later. After defendant arrived in Okinawa, plaintiff informed
defendant that neither she nor the children would be joining him
and that she wanted a separation and divorce.
The parties never resumed marital relations after 20 June
2000. On 19 September 2000, plaintiff filed a complaint for
divorce from bed and board, postseparation support, alimony, child
custody, child support, and attorney fees. Defendant filed an
answer and counterclaimed, seeking, inter alia, equitable
distribution, child support and custody of the minor children.
Defendant subsequently shortened his tour of duty in Okinawa to one
year and returned to North Carolina to be near the children.
The Honorable Karen Alexander presided over the fifteen-day
trial in Craven County District Court, which started on 5 March
2002 and concluded on 27 November 2002. The court found
defendant's taxable monthly wages for 2002, as a Lieutenant Colonel
continuously on active duty since 13 March 1981, were $6,919.80.
His non-taxable monthly allowances were $1,130.47. Therefore, his
gross monthly income totaled $8,040.27, and his monthly incomeafter taxes and withholding was $6,250.49. In 2002, defendant's
income was supplemented with yearly bonuses of up to $9,000.00.
Defendant accrued military retirement benefits (“military pension”)
from 11 August 1983 and became eligible to receive his military
pension on 11 August 2003. Plaintiff offered evidence at trial
that, based on his pay scale as of 1 July 2000, defendant would
receive a monthly military pension of $3,126.00 and, based on his
life expectancy, would receive a total pension in the amount of
$561,494.62. Plaintiff is a registered nurse and did not work
outside the home after the birth of the parties' second child until
after the parties' separation when she commenced employment as a
school nurse. During the 2002-2003 academic year, plaintiff earned
$1,169.64 per month.
In the ED order, the trial court concluded, “[t]he large
disparity in [the] income between the parties and the substantial
difference between the military retirement distribution warrants an
unequal distribution of the marital property and debts.” The trial
court did not value defendant's retirement plan, but found the
following:
Were the defendant to retire on 11 August
2003, his earliest possible retirement date, .
. . . [p]laintiff's share under the terms of
this order would be 25.22 percent. Therefore,
the defendant will receive 74.88 percent or a
substantially greater portion of this
retirement. The longer he stays in the Marine
Corps after 11 August 2003, the greater will
be his share of this retirement.
The trial court further ordered that plaintiff “receive one-half of
the marital portion of the defendant's military retirement” as set
out in the military pension order.
The military pension order required defendant to pay plaintiff
one-half of the marital portion of each monthly military pension
payment beginning the first date defendant receives his first
pension check. The marital portion of the military pension would
be determined by a coverture fraction, the numerator being 121.03,
the number of months the parties were married, and the denominator
being defendant's total number of months of service for pension
purposes. The trial court further ordered that “the defendant
shall not take any steps designed to diminish or in any way reduce
the amount of disposable retired or retainer pay that he is
entitled to receive by virtue of his military service to the end
that the plaintiff's portion of his retirement is reduced.”
In the order for custody, child support, alimony, and attorney
fees, the trial court granted the parties joint custody of the
children. The trial court granted primary custody to plaintiff and
secondary custody and visitation to defendant. Plaintiff's primary
custody was conditioned on her and the children's continued
residence in North Carolina unless defendant was transferred to
another duty station outside North Carolina or ceased to reside in
North Carolina; however, plaintiff was not required to reside in
North Carolina after 1 July 2005. The trial court further ordered
that plaintiff's friend, Kim Tippett, with whom defendant had a
poor relationship, “shall not be utilized as a babysitter for thechildren under any circumstances and the children shall not spend
the night with Kim Tippett for any reason.” Defendant was ordered
to pay plaintiff: (1) $1,160.57 per month in child support
beginning 1 January 2003; (2) $1,000.00 per month in alimony
beginning 1 January 2003 and ending 1 December 2005; and (3)
$35,000.00 in attorney fees paid at the rate of $500.00 per month
from 1 January 2003 through 1 December 2005 with the $17,000.00
balance payable on or before 31 December 2005. From these orders,
defendant appeals.
I. Equitable Distribution
Defendant asserts the trial court failed to value his military
pension in the ED order. “Upon application of a party, the court
shall determine what is the marital property and divisible property
and shall provide for an equitable distribution of the marital
property and divisible property between the parties . . . .” N.C.
Gen. Stat. § 50-20(a) (2003). The division of property in an
equitable distribution “is a matter within the sound discretion of
the trial court.” Gagnon v. Gagnon, 149 N.C. App. 194, 197, 560
S.E.2d 229, 231 (2002). The trial court's division will only be
reversed upon a showing that it “could not have been the result of
a reasoned decision.” Lawing v. Lawing, 81 N.C. App. 159, 162, 344
S.E.2d 100, 104 (1986).
Under N.C. Gen. Stat. § 50-20(c) (2003), equitable
distribution is a three-step process; the trial court must (1)
“determine what is marital [and divisible] property”; (2) “find the
net value of the property”; and (3) “make an equitable distributionof that property.” Soares v. Soares, 86 N.C. App. 369, 371, 357
S.E.2d 418, 419 (1987) (reversing and remanding where the trial
court “made some findings and conclusions regarding marital
property, but it did not place a value on the marital home”).
“Marital property includes all vested and nonvested pension,
retirement, and other deferred compensation rights, and vested and
nonvested military pensions eligible under the federal Uniformed
Services Former Spouses' Protection Act.” N.C. Gen. Stat. § 50-
20(b)(1) (2003). A trial court must value all marital and
divisible property -- collectively termed distributable property --
in order to reasonably determine whether the distribution ordered
is equitable. Turner v. Turner, 64 N.C. App. 342, 346, 307 S.E.2d
407, 409 (1983). Therefore, when no finding is made regarding the
value of an item of distributable property, a trial court's
findings are insufficient even if a determination is made with
respect to the percentage of a distributable property's value to
which each party is entitled. Byrd v. Owens, 86 N.C. App. 418,
421-22, 358 S.E.2d 102, 105 (1987) (holding the trial court erred
by failing to assign a promissory note value using traditional
methods of tracing funds and “simply distribut[ing] it by giving an
80% interest to defendant and 20% to plaintiff”).
Pursuant to N.C. Gen. Stat. § 50-20.1(b) (2003),
The award of nonvested pension, retirement, or
other deferred compensation benefits may be
made payable:
(1) As a lump sum by agreement;
(2) Over a period of time in fixed
amounts by agreement; or
(3) By appropriate domestic relations
order as a prorated portion of the benefitsmade to the designated recipient at the time
the party against whom the award is made
actually begins to receive the benefits.
Regardless of the method of payment under N.C. Gen. Stat. § 50-
20.1(b), the amount of the award shall be determined by applying a
coverture fraction -- “the proportion of time the marriage existed
(up to the date of separation of the parties), simultaneously with
the employment which earned the vested and nonvested pension,
retirement, or deferred compensation benefit, to the total amount
of time of employment” -- to the value of “the vested and nonvested
accrued benefit . . . .” N.C. Gen. Stat. § 50-20.1(d) (2003).
A defined benefit retirement plan, as opposed to a defined
contribution retirement plan, “is determined without reference to
contributions and is based on factors such as years of service and
compensation received.” Seifert v. Seifert, 82 N.C. App. 329, 333,
346 S.E.2d 504, 506 (1986). For the purpose of equitable
distribution, a defined benefit plan is valued as follows:
First, the trial court must calculate the
amount of monthly pension payment the
employee, assuming he retired on the date of
separation, will be entitled to receive at the
later of the earliest retirement age or the
date of separation. This calculation must be
made as of the date of separation and “shall
not include contributions, years of service or
compensation which may accrue after the date
of separation.” [N.C. Gen. Stat. §
50-20.1(d)]. . . . Second, the trial court[,]
[using an acceptable mortality table] must
determine the employee-spouse's life
expectancy as of the date of separation and
use this figure to ascertain the probable
number of months the employee-spouse will
receive benefits under the plan. Third, the
trial court, using an acceptable discount
rate, must determine the then-present value of
the pension as of the later of the date ofseparation or the earliest retirement date.
Fourth, the trial court must discount the
then-present value to the value as of the date
of separation. In other words, determine the
value as of the date of separation of the sum
to be paid at the later of the date of
separation or the earliest retirement date. .
. . Finally, the trial court must reduce the
present value to account for contingencies
such as involuntary or voluntary
employee-spouse termination and insolvency of
the pension plan. This calculation cannot be
made with reference to any table or chart and
rests within the sound discretion of the trial
court.
Bishop v. Bishop, 113 N.C. App. 725, 731, 440 S.E.2d 591, 595-96
(1994).
In the instant case, defendant's military pension is
categorized as a defined benefit retirement plan. 10 U.S.C. § 6323
(2005) (providing retirement benefit eligibility to Marine officers
who have served twenty years); Seifert, 82 N.C. App. at 333, 346
S.E.2d at 506 (stating “[t]he military retirement system is
noncontributory . . .”). The trial court properly determined that
the coverture fraction would entitle plaintiff to 25.22 percent of
defendant's military pension if defendant retired at his earliest
retirement date, 11 July 2003. In addition, the trial court
properly attempted, pursuant to N.C. Gen. Stat. § 50-20.1(b)(3), to
award plaintiff a prorated portion of defendant's military pension,
one-half of the marital portion of each of defendant's pension
payments, to be paid by defendant at the time he began receiving
benefits. However, the trial court failed to determine that
defendant's military pension was a defined benefit retirement plan
and failed to value it. We further note the record containedevidence regarding the value of defendant's military pension as of
the date of separation. Cf. Albritton v. Albritton, 109 N.C. App.
36, 426 S.E.2d 80 (1993) (holding the trial court's error in not
valuing a retirement account was not prejudicial because plaintiff
failed to provide evidence regarding the date of separation value).
Accordingly, we reverse and remand the trial court's ED order and
military pension order for a new equitable distribution order
including valuation of defendant's military pension using the
method established in Bishop.
Defendant also asserts the trial court erred in the ED order
by ordering that defendant “shall not take any steps designed to
diminish or in any way reduce the amount of disposable retired or
retainer pay that he is entitled to receive by virtue of his
military service to the end that the plaintiff's portion of his
retirement is reduced.” Specifically, defendant argues the order
forecloses his right to forego military pension payments in favor
of disability payments if he becomes so eligible. It is well
established that “disability payments cannot be classified as
marital property subject to distribution under state equitable
distribution laws.” Bishop, 113 N.C. App. at 733, 440 S.E.2d at
597. In Halstead v. Halstead, 164 N.C. App. 543, 550, 596 S.E.2d
353, 358 (2004), this Court held that the trial court's “order
requiring [the defendant] to pay his former wife any amount
withheld from her share of [the defendant's] military retirement
due to future reductions caused by an act or omission, including
future waivers of retirement pay, contravenes [federal law]” bydistributing disability payments. In the instant case, the trial
court's order could encompass reductions in defendant's military
pension payments due to his electing to receive disability payments
if he becomes eligible. Accordingly, upon remand, the trial court
must revise the ED order so as to avoid foreclosing defendant's
right to forego pension payments in favor of disability payments if
he becomes so eligible.
II. Child Custody
In child custody determinations, the welfare of the child is
paramount, and “the court must consider all of the facts of the
case and decide the issue [of custody] in accordance with the best
interests of the child.” Dean v. Dean, 32 N.C. App. 482, 484-85,
232 S.E.2d 470, 472 (1977). Moreover, the trial court must resolve
all issues raised by relevant evidence that directly concern the
fitness of a party to have care, custody, and control of a child,
In re Kowalzek, 37 N.C. App. 364, 370, 246 S.E.2d 45, 48 (1978), or
that directly concern the child's best interests. Lamond v.
Mahoney, 159 N.C. App. 400, 407, 583 S.E.2d 656, 661 (2003). While
a trial court's decisions in child custody matters will not be
overturned absent a clear abuse of discretion, see Surles v.
Surles, 113 N.C. App. 32, 36-37, 437 S.E.2d 661, 663 (1993), a
custody order is, nonetheless, “deemed fatally defective when it
fails to treat an important question raised by the evidence.”
Dixon v. Dixon, 67 N.C. App. 73, 77, 312 S.E.2d 669, 672 (1984).
Defendant asserts the trial court erred by failing to make
findings regarding whether plaintiff, in order to deprive defendantof contact with the children, willfully misled defendant during
their discussions concerning her intention to later join defendant
with the children in Okinawa. Evidence of a parent's ability or
inability to cooperate with the other parent to promote their
child's welfare is relevant in a custody determination and material
to determining the best interests of the child. Cf. Phelps v.
Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994) (quoting as relevant to
a custody determination a finding of fact regarding one parent's
inability to cooperate in a reasonable fashion with the other
parent to promote their child's best interests); Woncik v. Woncik,
82 N.C. App. 244, 249, 346 S.E.2d 277, 280 (1986) (holding
“interference with visitation of the noncustodial parent . . .
[that negatively] impact[s] . . . the welfare of the child can
constitute a substantial change of circumstances sufficient to
warrant a change of custody”).
The trial court's order reflects that it fully considered and
made findings to address each parent's ability to cooperate for the
benefit of the children and both parents' marital misconduct. As
defendant acknowledges, the trial court did not ignore his evidence
regarding Okinawa, but rather found:
59. The defendant was to have permanent
change of duty station orders in June, 2000.
Discussion was had between the parties as to
the location for these orders and a joint
decision was made that the defendant would
take an accompanied three-year overseas tour
in Okinawa beginning in June, 2000. However,
the parties had arguments and the turmoil
between the parties continued to exist. After
the defendant received orders and the transfer
was to happen, the plaintiff advised him that
she was not going to go with him initially. This was not expected by the defendant. He
testified that he felt "set up". Evidence was
presented that the plaintiff went to divorce
and separation classes on base with her
friend, Kim Tippett, as a disguise prior to
the defendant's overseas tour. She stated
that she would consider going with him at a
later time. Subsequently, she advised him
that she was not coming to Okinawa.
This finding of fact fully describes the circumstances surrounding
defendant's tour in Okinawa and, indeed, directly parallels the
facts identified in defendant's brief on appeal. Defendant's
objection appears to be solely that the trial court did not brand
this conduct as deceitful and conclude that it so adversely
affected plaintiff's ability to be a good parent that defendant
should be given primary custody.
It is apparent from the trial court's order that the trial
court did not disregard or fail to resolve the issue of plaintiff's
ability to cooperate with defendant regarding the children, but
rather concluded that both parents were badly flawed in this area.
The court specifically found:
84. The parties have been excellent parents
for the two minor children, but the parties
have been poor spouses to each other. The way
the parties treat each other is a concern. . .
.
85. . . . The problems these parties have
with each other maybe [sic] affecting the
children on a psychological standpoint since
evidence exists of episodes of anxiety and
repeated incidences where the younger child
soils his pants by having bowel movements.
86. . . . Both parties are well grounded and
are the best . . . parent anyone could have
but for the behavior exhibited by each party
around the other. . . . Each party has actedpoorly with the other and each has faults with
respect to how each has treated the other.
In short, the trial court specifically addressed the ability of the
parents to cooperate with each other and found that both parents
were severely lacking. See In re Stancil, 10 N.C. App. 545, 549,
179 S.E.2d 844, 847 (1971) (noting that the “trial judge is not
required to find all the facts shown by the evidence. . . . It is
sufficient if enough material facts are found to support the
judgment”). The trial court chose to find that neither party was
fully the villain or the victim.
Defendant further asserts the trial court erred by placing
insufficient restrictions on the children's contact with Kim
Tippett. The trial court's findings of fact are conclusive on
appeal if supported by competent evidence. Raynor v. Odom, 124
N.C. App. 724, 729, 478 S.E.2d 655, 658 (1996). The trial court's
conclusions of law and orders will not be reversed if supported by
the findings of fact. Witherow v. Witherow, 99 N.C. App. 61, 63,
392 S.E.2d 627, 629 (1990). Based on competent evidence, the trial
court found the following facts:
Ms. Tippet does not like the defendant. She
has insulted him. The defendant does not like
Ms. Tippet. There was evidence that Ms.
Tippet interfered with the defendant spending
quality time with the children at such times
he had an opportunity to do so. This type of
interference shall not be allowed by the
plaintiff in the future.
These findings of fact support the trial court's order that “Kim
Tippet shall not be utilized as a babysitter for the children under
any circumstances and the children shall not spend the night withKim Tippet for any reason.” However, as the trial court's findings
and order indicate, whatever relationship Kim Tippett has with the
children, it is and must continue to be subordinate to defendant's
relationship with the children. The order of the trial court has
given the father recourse against the mother should she fail to
prevent interference by Kim Tippett in that relationship, and we do
not read the trial court's prohibition against babysitting or
spending the night as an exclusive list of those situations through
which Kim Tippett has interfered in the father and children's
relationship. The father, accordingly, may bring to the attention
of the trial court, for purposes of holding the mother responsible,
any circumstances which constitute the mother's permitting
interference by Kim Tippett with the father's relationship with the
children. We find this recourse, in conjunction with the listed
restrictions, to be sufficient.
Defendant additionally contends the trial court did not have
competent evidence to support its finding of fact that the best
interests of the children would not require plaintiff and the
children to remain in North Carolina after 1 July 2005. The trial
court found as fact that both parties are suitable persons to have
custody of the children and that the best interests of the children
would be served by the parties having joint custody, with plaintiff
having primary custody. Furthermore, the trial court found the
following:
The best interest and general welfare of the
children will be promoted by the plaintiff
staying in the State of North Carolina with
the children as long as the defendant isstationed and continues to reside in the State
of North Carolina. However, if he is not
stationed in North Carolina or ceases to
reside in North Carolina, the best interests
of the children will not require that the
plaintiff continue to reside here. Further,
the best interests and general welfare of the
children will not require that the plaintiff
and the children reside in North Carolina
after 1 July 2005.
At the hearing, defendant testified that he would be stationed at
Cherry Point until his intended retirement in June 2005. Defendant
also testified he intended to live near the children no matter
where the plaintiff and the children reside. Accordingly, the
trial court had competent evidence that a move by plaintiff and the
children after 1 July 2005 would not compromise the children's
ability to have contact with defendant and did not abuse its
discretion by allowing plaintiff and the children to move from
North Carolina after that date.
III. Child Support
Defendant asserts the trial court erred under the child
support guidelines by computing child support using worksheet A.
Specifically, based on the calendars for the children's elementary
school, defendant argues the children will live with him for at
least 123 nights annually; therefore, the trial court was required
under the guidelines to use worksheet B.
In support of his argument, defendant requests that this Court
take judicial notice of the children's elementary school calendars
for the academic years 2003-2004 and 2004-2005, which defendant
obtained from a county website. We note, however, the defendant
could have entered the 2003-2004 calendar into evidence because itwas adopted 21 November 2002, six days before the final date of the
hearing. Under N.C. R. App. P. 9 (2005), this Court's review is
limited to the record on appeal and the verbatim transcript of the
proceedings, and judicial notice is not a substitute for the proper
compilation of evidence that could have been submitted to the trial
court during the hearing and included in the record on appeal.
The 2004-2005 school calendar reflects that it was not adopted
until 20 November 2003 and was therefore not in existence at the
time of the hearing. Rather than requesting this Court to take
judicial notice of evidence that the trial court could not have
considered, defendant's proper course of action with respect to the
2004-2005 calendar -- or any subsequent school calendar -- would be
to file a motion in the cause with the trial court to modify or
vacate the child support order pursuant to N.C. Gen. Stat. §
50-13.7(a) (2003). Accordingly, we decline to take judicial notice
of the 2003-2004 and 2004-2005 school calendars.
IV. Alimony
In making an award of alimony, the trial court must consider
“all relevant factors” necessary to determine that the award is
equitable. N.C. Gen. Stat. § 50-16.3A(a) (2003). “[T]he court
shall make a specific finding of fact on each of the factors in
[N.C. Gen. Stat. § 50-16.3A(b) (2003)] if evidence is offered on
that factor.” N.C. Gen. Stat. § 50-16.3A(c) (2003). Pursuant to
N.C. Gen. Stat. § 50-16.3A(b)(1), the trial court must consider
“the marital misconduct of either of the spouses.” Marital
misconduct includes the act of abandoning the other spouse. N.C.Gen. Stat. § 50-16.1A(3) (2003). “An abandonment occurs when one
spouse brings the cohabitation with the other spouse to an end
without justification, without the consent of the other spouse and
without intent of renewing it. The spouse alleging abandonment
must prove the absence of justification for the abandonment.”
Corbett v. Corbett, 67 N.C. App. 754, 755, 313 S.E.2d 888, 889
(1984) (emphasis omitted).
Defendant asserts the trial court erred by failing to make
findings regarding whether plaintiff abandoned defendant by
representing she would join him in Okinawa, then informing him,
after he had moved, she would not join him and intended to divorce
him. Defendant alleged and offered evidence that plaintiff
intentionally misled him into accepting a post in Okinawa with
promises to accompany him while actually intending to end their
marital relationship. In its order, the trial court not only
recited the events surrounding Okinawa, but also made findings
regarding marital misconduct of defendant and other marital
misconduct of plaintiff. Not surprisingly, the trial court then
found that “[t]he marriage between the parties was dysfunctional”
and that “[b]oth parties were at fault in the breakup of the
marriage.” The trial court then specifically found _ while
addressing the alimony issue _ that “[d]espite the marital
misconduct of the plaintiff, she should be given credit for her
career sacrifices that no doubt helped the defendant succeed in his
military goals.” The trial court thus fully addressed the question
of plaintiff's misconduct as it relates to alimony. See Friend-Novorska v. Novorska, 143 N.C. App. 387, 395, 545 S.E.2d 788, 794
(2001) (holding “the findings of fact required to support . . . an
alimony award are sufficient if findings of fact have been made on
the ultimate facts at issue in the case and the findings of fact
show the trial court properly applied the law in the case”).
Defendant also asserts the trial court made insufficient
findings regarding the duration of the alimony. “[A] trial court's
failure to make any findings regarding the reasons for the amount,
duration, and the manner of payment of alimony violates N.C. Gen.
Stat. § 50-16.3(A)(c).” Fitzgerald v. Fitzgerald, 161 N.C. App.
414, 421, 588 S.E.2d 517, 522-23 (2003). While the trial court
made sufficient findings regarding the reasons for the amount and
manner of payment, the trial court failed to make findings
concerning the reasons for the duration of the alimony payments.
Accordingly, we remand the alimony order for further findings of
fact concerning the duration of the alimony award.
Defendant next asserts the trial court's reduction in his
expenses was arbitrary, and the amount of alimony when combined
with his expenses, including child support and other payments,
exceeds that which he is able to pay. Since it is likely to recur
upon remand, we deem it necessary to address this issue. “The
determination of what constitutes the reasonable needs and expenses
of a party in an alimony action is within the discretion of the
trial judge, and he is not required to accept at face value the
assertion of living expenses offered by the litigants themselves.”
Whedon v. Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32 (1982). “Implicit in this is the idea that the trial judge may resort to
his own common sense and every-day experiences in calculating the
reasonable needs and expenses of the parties.” Bookholt v.
Bookholt, 136 N.C. App. 247, 250, 523 S.E.2d 729, 732 (1999).
The trial court found defendant's net income after taxes and
withholding was $6,250.49 per month. The trial court's custody,
child support, alimony, and attorney fees order required defendant
to pay per month $1,160.57 in child support, $1,000.00 in alimony,
$500.00 in attorney fees, and $88.78 in medical insurance for the
children. After these deductions, defendant would have $3,501.14
per month for living expenses. Defendant submitted an affidavit
stating that his monthly living expenses were $4,648.00.
The trial court found defendant could reasonably lower his
monthly living expenses by almost $1,500.00, to $3,156.00, by
taking the following steps: (1) reducing his $134.00 telephone bill
to $100; (2) cancelling his $55.00 cable television subscription;
(3) reducing his $650.00 food expense to $400.00; (4) reducing his
$100.00 clothing expense to $50.00; (5) stopping his $60.00
allowance to the children since he would be paying child support;
(6) reducing his $207.00 gift and special occasion expense to
$104.00; (7) reducing his vacation and recreation expense from
$450.00 to $100.00; and (8) reducing his $60.00 grooming and
hygiene expense to $20.00. Additionally, the trial court found
that defendant's $150.00 furniture payment would soon end and his
$400.00 credit card payments were a duplication of other expenses. After reviewing the record on appeal, we hold the trial court
did not abuse its discretion by making the above reductions to
defendant's monthly expenses. Accordingly, defendant will have
sufficient funds to meet his monthly living expenses and
obligations under the trial court's current order and will also
have approximately $345.14 per month in unutilized funds.
Defendant also argues the trial court's finding that his
income would be supplemented by bonuses was not supported by the
evidence. He states the only evidence concerning his bonuses was
from him and that he would receive no more bonuses. However, as
established above, even in the absence of bonuses, defendant would
have sufficient funds for his monthly expenses and obligations
under the current order. Therefore, to the extent the finding was
in error, we can discern no prejudice to defendant.
V. Attorney Fees
Defendant asserts the trial court erred by failing to make
valid findings that the attorney fees awarded were not attributable
to work performed on the equitable distribution portion of the
case. Specifically, defendant argues one cannot discern the
portion of the case to which each charge applies nor the nature of
the service provided from the fee affidavits submitted by
plaintiff's attorney; therefore, the trial court had insufficient
evidence upon which to base its award of attorney fees.
Pursuant to N.C. Gen. Stat. § 50-13.6 (2003), the trial court
may award attorney fees in an action for child custody and support
if the party seeking the award was an interested party acting ingood faith when she instituted the action and has “insufficient
means to defray the expense of the suit.” Cox v. Cox, 133 N.C.
App. 221, 228, 515 S.E.2d 61, 66 (1999). Under N.C. Gen. Stat. 50-
16.4 (2003), the trial court may award attorney fees in an action
for alimony or postseparation support “to a party who has shown
that she is entitled to the relief demanded, is a dependent spouse,
and lacks sufficient means upon which to live during the
prosecution of the suit and to defray her necessary legal
expenses.” Perkins v. Perkins, 85 N.C. App. 660, 668, 355 S.E.2d
848, 853 (1987). If each of the statute's requirements are met,
this Court reviews the amount of attorney fees awarded under an
abuse of discretion standard. Id.; Atwell v. Atwell, 74 N.C. App.
231, 238, 328 S.E.2d 47, 51 (1985).
To support the reasonableness of an award of attorney fees,
the trial court must make “findings regarding the nature and scope
of the legal services rendered, the skill and time required, the
attorney's hourly rate, and its reasonableness in comparison with
that of other lawyers.” Cobb v. Cobb, 79 N.C. App. 592, 595, 339
S.E.2d 825, 828 (1986); Perkins, 85 N.C. App. at 668, 355 S.E.2d at
853. “Moreover, attorney fees are not recoverable in an action for
equitable distribution.” Holder v. Holder, 87 N.C. App. 578, 584,
361 S.E.2d 891, 894 (1987). Therefore, in a combined action, the
trial court's findings of fact must reflect that the attorney fees
awarded are attributable only to the alimony or child custody and
support claims. Id. Pertinent to the issue of attorney fees and based on competent
evidence, the trial court found plaintiff was the dependent spouse,
defendant was the supporting spouse, and plaintiff was entitled to
alimony. The trial court also made the following pertinent
findings:
99. The plaintiff is an interested party
acting in good faith who has insufficient
means to defray the expenses of this action. .
. . She is not entitled to receive
attorneys's fees for the portions of this case
relating to equitable distribution and
divorce. However, the time expended by
plaintiff's attorney regarding those issues
has not been substantial
. . . .
104. The trial of this case took fifteen
days. Although a portion of the trial related
to the issue of equitable distribution, the
vast majority of the trial related to the
issue of custody. . . .
105. The plaintiff['s] . . . attorney has
been licensed to practice since 1969[,] . . .
limits his practice to family law[,] . . . is
board certified in family law[,] . . . [and]
charges $300.00 per hour[,] . . . which
[b]ased upon . . . his experience . . . is
reasonable.
. . . .
107. The trial of this case has resulted in a
substantial increase in attorney's fees and
time expended. The trial of this case, the
preparation for trial, the staff time, [and]
the attorney's time have resulted in 244.8
hours of service. That time and services have
a reasonable value of $64,830.00. . . . Of
this $64,830.00, at least 75% of that time and
that fee have related to issues pertaining to
custody, child support, and alimony. Of these
fees, the defendant should pay the sum of
$35,000.00.
Therefore, the trial court's findings properly (1) met the
statutory requirements necessary for an award of attorney fees; (2)
addressed the services, skill, time, and rate of plaintiff'scounsel; and (3) apportioned the fees to exclude attorney fees for
equitable distribution.
We note defendant does not argue on appeal that the trial
court had insufficient evidence for its findings that plaintiff was
acting in good faith and had insufficient means to defray the costs
of the action. Moreover, the trial court had sufficient evidence
upon which to base its apportionment of the attorney fees between
equitable distribution and the other relevant issues. Although the
fee affidavits did not label every charge as being attributable to
a particular issue, our review of the affidavits reveals
plaintiff's counsel adequately described each line item service.
Therefore, the trial court could reasonably compare the time spent
on each issue at trial and the evidence presented with the line
item services on the fee affidavits. In this way, the trial court
could rationally determine that approximately seventy-five percent
of plaintiff's attorney fees, roughly $48,622.50, were attributable
to issues pertaining to alimony or child custody and support.
Accordingly, we can discern no abuse of discretion by the trial
court in ordering defendant to pay $35,000.00 in attorney fees.
Defendant also assigns error to the trial court's finding
that, after paying “$500.00 per month for each month beginning 1
January 2003 through 1 December 2005[,]” defendant has the ability
to pay the remaining portion of the $35,000.00 in attorney fees by
making a “lump sum payment of $17,000.00 on or before 31 December
2005.” Because a change in the amount of assets awarded defendant
through equitable distribution might impact his ability to makesuch a lump sum payment, we remand the issue of defendant's ability
to make a lump sum payment of $17,000.00 in attorney fees for
further findings of fact in light of the new equitable distribution
order required by our above holding.
VI. Conclusion
We have carefully considered defendant's remaining arguments
and find them to be without merit. For the foregoing reasons, we
(1) reverse and remand the trial court's ED and military pension
orders for valuation of defendant's military pension and a new
equitable distribution order as well as a revision of the ED order
to avoid language foreclosing defendant's right to forego pension
payments in favor of disability payments if he becomes eligible;
(2) affirm the trial court's child custody order; (3) affirm the
child support order; (4) reverse and remand the trial court's
alimony order for findings explaining the reasons for the duration
of the alimony award; and (5) affirm the trial court's award of
attorney fees but remand the issue of defendant's ability to pay a
lump sum of $17,000.00 in light of the new equitable distribution
order. “On remand, the trial court shall rely upon the existing
record, but may in its sole discretion receive such further
evidence and further argument from the parties as it deems
necessary and appropriate to comply with the instant opinion.”
Heath v. Heath, 132 N.C. App. 36, 38, 509 S.E.2d 804, 805 (1999).
Affirmed in part, reversed in part, and remanded.
Chief Judge MARTIN and Judge GEER concur.
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