Appeal by defendant from order entered 4 November 2003 by
Judge Chester C. Davis in District Court, Forsyth County. Heard in
the Court of Appeals 3 November 2004.
Wyatt Early Harris Wheeler, L.L.P., by A. Doyle Early, Jr.,
for plaintiff-appellee.
Michelle D. Reingold and Gatto Law Offices, P.A., by Joseph J.
Gatto, for defendant-appellant.
McGEE, Judge.
Plaintiff and defendant were married on 29 October 1994. The
parties adopted one child in 1993 and another child was born to the
parties in 1996. Plaintiff filed a complaint on 7 August 2000
seeking child custody and support, postseparation support, alimony,
a temporary restraining order and preliminary injunction, and
attorneys' fees. Defendant filed a motion to dismiss, an answer,
and a counterclaim on 6 September 2000. In his counterclaim,
defendant sought child custody and support, an immediate custody
order, a psychological evaluation, and equitable distribution of
the marital property. Plaintiff and defendant were divorced on 4March 2002.
The trial court entered an equitable distribution judgment and
order in which all the marital debt, totaling $637,641.80, was
distributed to defendant. Plaintiff was awarded a distributive
award in the amount of $358,719.08. Plaintiff was ordered to
execute a quitclaim deed to the former marital home to defendant.
Defendant was ordered to then immediately place the home on the
market and to pay plaintiff the net proceeds from the sale. The
balance of the distributive award was to be paid in monthly
installments beginning on 1 May 2006 and in an amount of no less
than $2,000, excluding interest. Interest on the distributive
award was set at eight percent, and interest payments were due
monthly, beginning 1 June 2003.
Instead of selling the former marital home to a third party,
defendant purchased the marital home for himself and his new wife.
The marital home was appraised at $990,000. Defendant took out a
first mortgage of $643,500, and a second mortgage of $215,000,
which was to pay down the distributive award at a lower interest
rate. Prior to purchasing the former marital home, defendant was
living in a home he owned, and for which his employer paid the
mortgage and utility expenses. In addition, defendant and his new
wife owned two other houses.
A hearing on alimony, child support and attorneys' fees was
held on 11 July, 15 July and 21 August 2003. In an order entered
4 November 2003, defendant was ordered to pay $1,483 per month in
child support; $3,578 per month in alimony, for thirty-six months;$3,881.46 to purge himself of civil contempt for failure to comply
with a previous interim support order; $4,000 in reimbursement to
plaintiff for the attorney's fees of C.R. "Skip" Long, Jr. (Mr.
Long); $7,500 in reimbursement to plaintiff for the attorney's fees
of A. Doyle Early, Jr. (Mr. Early); and $7,520 in child support
arrearage. Defendant appeals.
I.
We first review defendant's argument regarding the amount of
alimony awarded by the trial court. If a trial court finds that
"the supporting spouse participated in an act of illicit sexual
behavior . . . during the marriage and prior to or on the date of
separation, then the [trial] court shall order that alimony be paid
to a dependent spouse." N.C. Gen. Stat. § 50-16.3A(a) (2003). In
this case, defendant does not challenge that he is the supporting
spouse, and he stipulated at trial to having engaged in illicit
sexual behavior prior to or on the date of separation.
Consequently, the trial court was required to award alimony to
plaintiff.
See Williamson v. Williamson, 142 N.C. App. 702, 703,
543 S.E.2d 897, 897 (2001). Defendant however assigns error on
several grounds as to the amount of alimony awarded by the trial
court.
When awarding alimony, a trial court must consider the sixteen
factors set forth in N.C. Gen. Stat. § 50-16.3A(b)(1)-(16).
Friend-Novorska v. Novorska, 143 N.C. App. 387, 394, 545 S.E.2d
788, 793,
aff'd, 354 N.C. 564, 556 S.E.2d 294 (2001). "In
determining the amount of alimony . . . to be awarded the trial[court] must follow the applicable statutes. The amount is
. . . to be determined by [the trial court's] sound judicial
discretion[.]"
Beall v. Beall, 290 N.C. 669, 673-74, 228 S.E.2d
407, 410 (1976). The trial court's determination of the amount of
alimony will not be upset absent a "manifest abuse of that
discretion."
Bookholt v. Bookholt, 136 N.C. App. 247, 249-50, 523
S.E.2d 729, 731 (1999). While the determination of the amount of
an alimony award is a question of "fairness and justice" to the
parties,
Beall, 290 N.C. at 674, 228 S.E.2d at 410, it is also
"designed to enable the dependent spouse to achieve the standard of
living she or he enjoyed during the marriage."
Barham v. Barham,
127 N.C. App. 20, 30, 487 S.E.2d 774, 780 (1997),
aff'd, 347 N.C.
570, 494 S.E.2d 763 (1998)
.
Defendant argues that the trial court abused its discretion by
ordering defendant to pay alimony in an amount that exceeds his
ability to pay. Defendant first argues that the trial court erred
despite finding that his monthly expenses were reasonable. In the
alimony order, the trial court found in finding of fact number ten
that:
Based upon the defendant's financial
affidavit, he has $10,000 in monthly income,
$3,700 in taxes, $3,785 in shared family
expenses and $1,876 in individual expenses,
which he contends leaves him with a surplus of
$639 per month, not including listed
additional in-kind income of $1,625 per month.
The Court finds, however, that the defendant's
expenses
are not reasonable in that after the
Equitable Distribution Judgment/Order was
entered and the distributive award determined,
the defendant and his new wife decided to
purchase the marital home for $799,000 and
borrowed a total of $858,500 to purchase thehome and pay down the distributive award at a
lower interest rate. The defendant has
attempted to maintain his standard of living
while the plaintiff's standard of living has
been substantially reduced and the defendant
has increased his debt from $637,641.80 to
$858,500 and included this debt service in his
expenses. The defendant had a choice to sell
the marital home and pay off all the marital
debt allocated to him of $637,641.80 and then
to obtain reasonable housing in accordance
with the defendant's economic circumstances at
that time.
(emphasis added).
In contrast, when later considering the statutory factors in
N.C. Gen. Stat. § 50-16.3A(b)(1)-(16), the trial court found in
finding of fact number eighteen that:
The relative needs of the spouses - The
defendant has reasonable needs of $5,661 per
month and the plaintiff has reasonable needs
of $4,167 per month.
Defendant contends, and plaintiff does not refute, that the
figure $5,661 represents the total of defendant's individual
expenses of $1,876 and shared expenses of $3,785, which include the
mortgage payments for the purchase of the former marital home.
Defendant argues that based on finding of fact number
eighteen, the trial court found defendant's expenses of $5,661, and
the monthly payments for the mortgages on the former marital home,
to be reasonable. Plaintiff responds that the trial court made a
clerical error and "clearly meant to state that the defendant
'contends that he' has reasonable need[s] of $5,661" per month.
When a trial court's findings of fact are so contradictory
that this Court cannot "'safely and accurately decide the
question,'" we cannot affirm the trial court's judgment.
Spencerv. Spencer, 70 N.C. App. 159, 168, 319 S.E.2d 636, 643-44 (1984)
(quoting
Lackey v. Board of Education, 257 N.C. 78, 84, 125 S.E.2d
343, 347 (1962)). "However, this Court must endeavor to reconcile
apparently inconsistent findings and uphold the judgment when
practicable."
Id. at 168, 319 S.E.2d at 644. In this case, we
find that the trial court's earlier, more specific, finding of
fact, is controlling. In finding of fact number ten, the trial
court described at great length why it found defendant's expenses
to be unreasonable. We see no need to give the trial court's
cursory statement in finding of fact number eighteen enough weight
to merit a reversal. We also find instructive the narrative of
trial testimony, on which the trial court's order plainly relied.
The narrative of trial testimony states:
The relative needs of the spouses - The
plaintiff and defendant testified as to what
they
contended were their reasonable needs.
(emphasis added).
Considering the trial court's more specific earlier finding
and the trial testimony on which the trial court's order was based,
we reconcile the trial court's inconsistent findings and hold that
the trial court found as fact that defendant's expenses were
unreasonable.
Defendant next argues that even if the trial court found that
defendant's expenses were unreasonable, the alimony order must be
vacated because the trial court did not state exactly which
expenses it considered unreasonable. Plaintiff responds that since
the trial court specifically referred to the housing expensesdefendant assumed after purchasing the former marital home, "no
ambiguity exists when the order is considered in its entirety." We
agree with plaintiff. The trial court was very clear when it
delineated that it found defendant's assumption of debt by
purchasing the marital home to be unreasonable.
Defendant next contends the trial court erred by ordering him
to pay alimony in an amount that leaves him with a shortfall each
month. Defendant argues that his monthly income is $10,000, his
monthly taxes are $3,700, and his monthly expenses are $5,661.
Defendant argues that as a result he has a monthly surplus of only
$639. Defendant further argues that the total amount of his
monthly child support obligation of $1,483 and monthly alimony
obligation of $3,578 exceeds this $639 surplus.
We first note that defendant makes several misstatements in
his calculation. Defendant admitted in his financial affidavit
that he has a monthly income of $11,625 per month: $10,000 in draw
and $1,625 in benefits. Defendant's financial affidavit also only
estimated his taxes to equal $3,700 per month; the estimation did
not take into account various deductions, including those for
defendant's alimony payments, and defendant had not yet filed his
2002 or 2003 tax returns. Furthermore, the operating agreement of
defendant's employer, AEA, provides that AEA will pay defendant's
taxes. Finally, as discussed above, the trial court did not find
defendant's monthly expenses to be reasonable.
In addition to defendant's miscalculation, we do not find that
the alimony order leaving defendant with a shortfall requiresreversal of the trial court's alimony award. Our Court previously
upheld alimony awards that left supporting spouses with a shortfall
or very limited funds when the evidence showed that the supporting
spouse received other substantial financial benefits from the
supporting spouse's employer. Walker v. Walker, 143 N.C. App. 414,
546 S.E.2d 625 (2001); Ahern v. Ahern, 63 N.C. App. 728, 306 S.E.2d
140 (1983).
In Walker, the supporting spouse argued that the trial court
erred by ordering him to pay alimony that left him with a $491
shortfall per month. Walker, 143 N.C. App. at 423, 546 S.E.2d at
631. In addition to his salary, the supporting spouse received
various financial benefits from his employer, including health
insurance, all expenses related to his vehicle, personal
entertainment expenses, and a vehicle for his new wife. Id. at
416, 546 S.E.2d at 627. We held that "the trial court properly
considered [the supporting spouse's] financial benefits
. . . received through his company when calculating the amount of
alimony owed to [his wife]" and that the trial court did not abuse
its discretion by ordering alimony that left the supporting spouse
with a shortfall each month. Id. at 424, 546 S.E.2d at 631.
Similarly, in Ahern, we upheld a $25,000 per year alimony
award when the supporting spouse's salary was only $31,500 per
year. Ahern, 63 N.C. App. at 729-30, 306 S.E.2d at 142. We found
that the evidence showed that the supporting spouse's "real
earnings and income greatly exceed[ed] his designated salary,"
since he had other financial benefits including $125,000 inretained earnings, equity in his company worth $412,000,
memberships at social clubs, expensive vacations, and vehicle
expenses. Id. at 730, 306 S.E.2d at 142. See also Patton v.
Patton, 78 N.C. App. 247, 253-54, 337 S.E.2d 607, 611 (1985), rev'd
in part on other grounds, 318 N.C. 404, 348 S.E.2d 593 (1986)
(holding that when determining the supporting husband's income, the
trial court properly took account of various financial benefits he
received as sole owner of his business).
In this case, the evidence showed that by purchasing the
former marital home, defendant assumed additional debt. Defendant
chose to purchase the former marital home despite his admitted
ability to live in one of three other houses he and his new wife
owned, one for which the mortgage and utilities were paid by his
employer. Defendant also testified that he is entitled to
principal and interest payments on a $197,000 debt AEA owes him.
Defendant admitted that payments were suspended in November 2001,
but he has not taken any steps to collect the interest or principal
payments on this debt. Prior to suspension of the payments,
defendant had been receiving principal repayment of $4,750 per
month and interest payments in the amount of $4,750 per month, for
a total of $9,500 per month. When asked by the trial court why AEA
stopped paying interest on the note, defendant replied, "I don't
know." Finally, AEA's operating agreement provides that AEA will
pay defendant's taxes. Much of this was noted by the trial court
in finding of fact number eighteen:
The Court has previously considered the
defendant's intent to try to maintain hisstandard of living, his acquiring of
substantial additional debt to try to buy the
marital home and to pay down the distributive
award at a lower interest rate, the fact that
the defendant owns another home and his new
wife owns two (2) other homes where the
parties may have lived, and the failure of the
defendant to take any action to collect
principal or interest payments on the
substantial debt owed by AEA to defendant[.]
Accordingly, we find that the trial court properly evaluated
defendant's income and financial benefits and did not abuse its
discretion in the amount of alimony awarded.
Finally, defendant presents in his brief what he describes as
a "fictitious 'best case scenario'" where he argues that even had
he not purchased the former marital home, he would be unable to
afford the ordered monthly alimony payments. However, by
defendant's own admission, this scenario is fictitious, and it is
not supported by any cited authority. Moreover, by virtue of this
argument defendant asks this Court to assume facts not in evidence
and to make new findings of fact. Also, this argument does not
take into account the financial benefits defendant is entitled to
receive from his employer. We find that defendant's argument is
merely an "attempt to reargue the evidence in the hope that [this
Court] will substitute itself for the trial court and accept
defendant's version of the . . . story." Beall, 290 N.C. at 672,
228 S.E.2d at 409. We overrule this assignment of error.
II.
Defendant next assigns error to two of the trial court's
findings of fact, arguing that they are not supported by the
evidence and "necessarily affect the alimony award." Indetermining whether a trial court's findings of fact are supported
by the evidence, we examine "whether the findings are supported by
any competent evidence in the record."
Nix v. Nix, 80 N.C. App.
110, 112, 341 S.E.2d 116, 118 (1986).
A.
Defendant argues that finding of fact number seven is not
supported by the evidence:
[I]n addition to the defendant's draw of
$10,000 per month, the Court finds that the
defendant has received during the first part
of 2003 monthly benefits from AEA [defendant's
employer] as follows:
. . . .
Health insurance: $ 847.00
Health insurance: $ 515.00
Defendant argues that the evidence at trial more accurately
showed that defendant only received $515 in health insurance
benefits per month. Defendant points to the testimony of Phenie
Bowen (Ms. Bowen), AEA's controller. Ms. Bowen testified that
health insurance benefits for plaintiff, defendant, and their
children totaled $847 per month. She testified that health
insurance benefits for defendant and the children only totaled $515
per month. Defendant argues that he no longer carries plaintiff on
his insurance plan so that this finding of fact overstates his
income by $847 per month.
Although we agree that the trial court's finding of fact
overstates defendant's income, the evidence in the record shows
that defendant did in fact carry plaintiff on his health plan for
the first six months of 2003; thereafter, he only carried himselfand his children. Therefore, the trial court's finding of fact
only overstates defendant's income "during the first part of 2003"
by $515 per month.
Plaintiff argues that the trial court's error was harmless
since the $515 per month is more than offset by the $800 per month
that defendant admitted to receiving in unearned income. The trial
court acknowledged this income when considering the statutory
factors in finding of fact number eighteen:
The amount and sources of earned and
unearned income of both spouses
including, but not limited to, earnings,
dividends, and benefits such as medical,
retirement, insurance, social security,
or other - The defendant receives
unearned income in the sum of $800 per
month[.]
Despite its acknowledgment of this $800 in income, the trial court
omitted it in its calculation in finding of fact number seven.
We find that the trial court's error was harmless.
The $515
in benefits overstated by the trial court is more than offset by
defendant's own testimony and the trial court's finding of fact
that defendant received unearned income in the sum of $800 per
month. The trial court's error was harmless and did not affect the
alimony award.
B.
Defendant next assigns error to the trial court's finding of
fact that defendant increased his indebtedness from $637,641.80 to
$858,500.
Defendant argues first that the trial court understated his
original indebtedness. In the equitable distribution order, all ofthe marital debt, in the amount of $637,641.80, was distributed to
defendant. Defendant was also ordered to pay a distributive award
of $358,719.08. Defendant argues that the trial court failed to
take the distributive award into account when stating his original
indebtedness and argues that his original indebtedness was actually
$996,360.88 (the total of the marital debt plus the distributive
award). Defendant states that when he bought the former marital
home for $799,000, he took out two mortgages in a total amount of
$858,500 in order to pay off the distributive award at a lower
interest rate. Defendant claims that by assuming these mortgages
he actually reduced his total indebtedness by purchasing the former
marital home.
Although we recognize that the trial court did not take the
distributive award into account when calculating defendant's
indebtedness, we disagree that defendant actually reduced his total
indebtedness. Defendant's above calculation leads to the erroneous
conclusion that all of the debt from the distributive award was
absorbed by the two mortgages on the marital home. In actuality,
the evidence, including defendant's own testimony, shows that he
assumed only the second mortgage in the amount of $215,000 for the
purpose of paying down the distributive award. Defendant thus
still owed plaintiff $143,719.08 (the total distributive award of
$358,719.08 minus $215,000). When taking the distributive award
into account in assessing defendant's total debt, defendant's new
total debt is actually $1,002,219.08 (the total of $858,500 in
mortgages on the former marital home and the remaining $143,719.08owed to plaintiff for the distributive award). As a result, and
contrary to his contention, defendant did increase his overall
indebtedness.
We also disagree that any error the trial court made in
calculating defendant's entire indebtedness requires reversal of
the alimony award. Defendant argues that the trial court's
misstatement of his entire indebtedness necessarily affects the
alimony award because the trial court "condemns" defendant for
increasing his amount of debt. Although the trial court did
consider defendant's increase in debt unreasonable, we do not find
that any error in the calculation of defendant's total debt
affected the alimony award. The trial court clearly found that
defendant's increase of debt in the amount of $3,052 per month in
mortgage payments was unreasonable when defendant had his choice of
three other homes in which to live, including one for which his
employer paid the mortgage and utilities. It was not the actual
dollar amount of defendant's indebtedness that the trial court
relied on in making its alimony award, but rather defendant's
attempt to maintain his standard of living while plaintiff's
standard of living was substantially reduced. We find that any
error in the calculation of defendant's total indebtedness did not
affect the alimony award requiring reversal of the trial court's
order.
III.
Defendant next assigns error to the trial court's finding that
plaintiff's expenses for the upkeep of plaintiff's new home werereasonable. Since defendant only assigns error to these expenses,
the reasonableness of plaintiff's other expenses are deemed
conclusive.
Phillips v. Phillips, 83 N.C. App. 228, 228, 349
S.E.2d 397, 398 (1986) (stating that findings of fact not excepted
to are conclusive on appeal). At the time of trial, plaintiff and
the children had been living with plaintiff's parents since
defendant had purchased the former marital home. Plaintiff had an
initial closing date for the purchase of a new, 2,500 square foot
home on 31 July 2003. Plaintiff's anticipated reasonable and
necessary expenses amounted to $5,649; $864.00 of this amount was
to be used for the upkeep of the new home. The evidence at trial
showed that the monthly upkeep of the 7,500 square foot former
marital home amounted to $794.26.
Defendant argues that the costs for upkeep of plaintiff's home
were speculative, since plaintiff had not yet lived in the home.
Defendant also argues that plaintiff's anticipated reasonable and
necessary expenses were contrary to common sense because they
exceeded the amount needed for upkeep of the larger former marital
home. Defendant contends that due to these errors, the alimony
award was necessarily affected, meriting reversal.
"The determination of what constitutes the reasonable needs
and expenses of a party in an alimony action is within the
discretion of the trial [court], and [the trial court] 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,
disc. review denied, 306 N.C.752, 295 S.E.2d 764 (1982). We have held that this discretion
allows the trial court to "resort to [its] own common sense and
every-day experiences in calculating the reasonable needs and
expenses of the parties."
Bookholt, 136 N.C. App. at 250, 523
S.E.2d at 731. Defendant offers no evidence other than the size
difference of the former marital home as to the "real" cost of
living in the smaller home. We find that the trial court properly
relied on its own common sense and experience when determining
plaintiff's reasonable needs and did not abuse its discretion.
Even assuming
arguendo that the trial court did err by finding
that the cost to upkeep plaintiff's home amounted to $846, the
error was harmless. Plaintiff's total claimed monthly expenses
were $5,649, but the trial court found that her reasonable needs
were only $4,167 per month. Plaintiff is thus receiving $1,482
less than she anticipated she would need, which more than makes up
for the only amount defendant challenges on appeal, $846. As a
result, any error does not require that the alimony award be
reversed.
IV.
In his last assignment of error, defendant argues that the
trial court erred by ordering defendant to reimburse plaintiff for
the attorney's fees she incurred for Mr. Long's representation.
The trial court made the following findings of fact:
The plaintiff has had two attorneys
retained by her to assist her in this matter,
including [Mr. Long] and [Mr. Early]. Mr.
Long has spent 62 hours at $180 an hour, for a
total of $11,160 in representation of the
plaintiff in this matter. Mr. Long filed theoriginal pleadings in this matter and
represented the plaintiff in the custody
matter and also in the obtaining of
postseparation support and child support as
obtained in the Interim Support Order dated
January 2, 2001. The undersigned Judge did
not preside over any hearings in which Mr.
Long represented the plaintiff. Mr. Long has
submitted an affidavit itemizing the services
rendered, including client interviews,
research, preparation of pleadings, discussion
with opposing counsel, trial preparation, time
in court for child custody, child support,
postseparation support and mediation. None of
the time was expended in matters relating to
equitable distribution except for a portion of
a time in mediation. Mr. Long is a Board
Certified Specialist in the area of family law
and has many years of experience in the field.
. . . Both Mr. Long and Mr. Early are experts
in the area of family law and based upon their
skill, expertise and experience and the
comparable rates charged by other comparable
attorneys in the community, their hourly rates
are reasonable and in consideration of the
time and labor expended, the complexity of the
issues and the results obtained, the total
hours and fees are reasonable.
The trial court thereafter ordered defendant to reimburse plaintiff
$4,000 for Mr. Long's fees.
A trial court may award attorneys' fees to a dependent spouse
who is entitled to alimony upon application of such spouse, N.C.
Gen. Stat. § 50-16.4 (2003), but "attorneys' fees are not
recoverable in an action for equitable distribution so that, in a
combined action, the fees awarded must be attributable to work by
the attorneys on the divorce, alimony and child support actions."
Patterson v. Patterson, 81 N.C. App. 255, 262, 343 S.E.2d 595, 600
(1986). If the statutory requirements have been met, our review of
the amount of an award of attorneys' fees is for an abuse ofdiscretion.
Patton, 78 N.C. App. at 259, 337 S.E.2d at 614.
Defendant argues that Mr. Long did not participate in the
alimony and child support hearing, and since Mr. Long did not
appear before the trial court that entered the order which is the
basis of this appeal, the trial court did not have the opportunity
to question Mr. Long about his representation of plaintiff.
Defendant claims that "[i]t was impossible for the trial court to
then know (1) if Mr. Long's representation warranted attorney fees,
and (2) if the fees awarded were reasonable." We disagree.
Plaintiff introduced into evidence thirty-three pages of
invoices detailing the work Mr. Long performed on her behalf.
Plaintiff also introduced into evidence Mr. Long's affidavit
detailing the amount of time spent on plaintiff's case, his hourly
rate, and the work performed. The affidavit clearly states that
Mr. Long "spent time in court for . . . child support." The record
also reveals that Mr. Long performed work on plaintiff's behalf at
the interim support proceeding, preliminary child support
proceeding, and contempt action for violation of the interim
support order. The record clearly shows that Mr. Long performed
work on behalf of plaintiff for child support. We find that the
trial court had sufficient evidence upon which to base an award of
reimbursement for Mr. Long's fees.
Defendant next argues that the trial court's finding of fact
that Mr. Long spent a portion of time in mediation on equitable
distribution matters precludes an award of reimbursement for Mr.
Long's fees since "it is impossible to determine what amount oftime was actually committed to equitable distribution, and, whether
the trial court properly refused to award attorney fees for that
time." We disagree. The total amount Mr. Long billed to plaintiff
was $11,160, but the trial court only awarded $4,000 for
reimbursement of Mr. Long's fees. Furthermore, the record shows
that Mr. Long's fee for the mediation was only $570.60. Since the
trial court only ordered defendant to reimburse plaintiff for a
fraction of Mr. Long's total fees, and did not necessarily order
payment for time Mr. Long spent in mediation, we do not find an
abuse of discretion.
Defendant finally argues that "Mr. Long should properly raise
his issues of attorney fees, on his own behalf, before a trial
court in which he is representing [plaintiff]. For another
attorney to represent the interests of Mr. Long in a hearing that
Mr. Long did not participate is error." We find no merit in this
argument. The trial court ordered defendant to reimburse plaintiff
for Mr. Long's fees. The trial court did not order Mr. Long's fees
to be payable directly to Mr. Long. Plaintiff's attorney was not
representing the interests of Mr. Long, but the interests of
plaintiff. There was no abuse of discretion.
Defendant has failed to present an argument regarding his
remaining assignments of error. Therefore, pursuant to N.C.R. App.
P. 28(b)(6), these assignments of error are deemed abandoned.
Plaintiff, in a separate motion to this Court, requests that
we award her attorney's fees for this appeal. We have previously
held that in an appeal from an alimony award, an award of attorney's fees for services
performed on appeal should ordinarily be
granted, provided the general statutory
requirements for such an award are duly met,
especially where the appeal is taken by the
supporting spouse. This appears to be the
majority rule, and there is nothing in our
statutory or case law that would suggest that
a dependent spouse in North Carolina is
entitled to meet the supporting spouse on
equal footing, in terms of adequate and
suitable legal representation, at the trial
level only. In sum, an award of counsel fees
is appropriate whenever it is shown that the
spouse is, in fact, dependent, is entitled to
the relief demanded, and is without sufficient
means whereon to subsist during the
prosecution and defray the necessary expenses
thereof.
Fungaroli v. Fungaroli, 53 N.C. App. 270, 273, 280 S.E.2d 787, 790
(1981) (citations omitted)
;
see also Whedon v. Whedon, 313 N.C.
200, 208, 328 S.E.2d 437, 442 (1985).
In this case, defendant does not challenge that plaintiff is
a dependent spouse, and we have determined that plaintiff is
entitled to the relief she demanded. However, in order to receive
attorney's fees for this appeal, it must be determined whether she
is without sufficient means to afford such fees. We therefore
remand to the trial court "to conduct a broad inquiry considering
as relevant factors the nature and worth of the services rendered,
the magnitude of the task imposed upon counsel, and reasonable
consideration for the parties' respective conditions and financial
circumstances."
Id. at 208, 328 S.E.2d at 442.
Affirmed; and remanded for determination of attorney's fee.
Judges BRYANT and THORNBURG concur.
Report per Rule 30(e). Judge Thornburg concurred in this opinion prior to 31 December
2004.
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