Appeal by plaintiff from amended order entered 15 January
2004, nunc pro tunc
26 February 2003, and orders entered 7 July
2004 by Judge Paul Gessner in District Court, Wake County. Heard
in the Court of Appeals 9 January 2006.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and
Heidi C. Bloom, for defendant-appellee.
James S. Rhew (plaintiff) and Luetta Felton (defendant) were
married on 25 November 1966 and separated on 1 October 1995.
Plaintiff filed a complaint for absolute divorce and equitable
distribution on 13 August 1997. Defendant answered and
counterclaimed for equitable distribution, postseparation support,
alimony, attorney's fees, and resumption of maiden name on 27
October 1997. The parties were divorced on 31 October 1997. The
trial court held a hearing on defendant's claims for alimony and
attorney's fees on 13 May 1998, and denied these claims in an order
entered 6 October 1998. Defendant appealed the order of the trial court to this Court.
In an opinion filed 20 June 2000
, we held that the evidence
introduced at the 13 May 1998 hearing
was sufficient to enable the trial court to
consider the relevant factors and make
specific findings of fact required by N.C.
Gen. Stat. § 50-16.3A. However, the actual
findings of fact made by the trial court . . .
are insufficiently detailed or specific.
Other than the parties' contributions to
retirement and stock, the trial court made no
findings regarding the parties' standard of
living during the marriage, and beyond a
finding that "defendant . . . has had minimal
expenses," the trial court made no findings
regarding the parties' respective living
expenses since the separation.
Rhew v. Rhew, 138 N.C. App. 467, 472, 531 S.E.2d 471, 474 (2000)
Therefore, our Court "vacate[d] the order and remand[ed]
this case to the [trial] court for a redetermination of defendant's
dependency and entry of judgment containing findings of fact
sufficiently specific to show that the [trial] court properly
considered the statutory requirements." Id. at 472, 531 S.E.2d at
475. Our Court further stated that "[o]n remand, the [trial] court
in its discretion may receive additional evidence or enter a new
order on the basis of evidence already received." Id.
Defendant filed a notice of hearing, signed 11 February 2003,
which provided that "on February 18, 2003 at 9:00 a.m., or as soon
thereafter as the Court can hear this matter, the undersigned will
bring on the following for hearing: Pretrial Conference."
Defendant filed this notice of hearing nearly two years and eight
months after Rhew I had been filed.
The trial court conducted the
alimony hearing on remand on 26 February 2003. At the hearing,plaintiff argued that he should be permitted to introduce evidence
regarding events which had occurred since the 13 May 1998 hearing.
Plaintiff argued that, as a result of a change in circumstances
since May 1998, he no longer had the ability to pay alimony. The
trial court elected not to receive additional evidence and
proceeded solely upon the evidence presented at the original 13 May
1998 hearing. Plaintiff sought to make an offer of proof regarding
the excluded evidence and requested that the trial court personally
observe the presentation of his offer of proof. The trial court
allowed plaintiff to make his offer of proof, but denied the
request that the judge be present during the offer of proof.
Instead, the trial court allowed plaintiff to make a tape recording
of his offer in the presence of a courtroom clerk.
The trial court entered an order on 30 July 2003, nunc pro
tunc 26 February 2003 (the 30 July 2003 alimony order), in which
the trial court made extensive findings of fact and concluded that
plaintiff was a supporting spouse and that defendant was a
dependent spouse entitled to alimony. The trial court ordered
plaintiff to pay $1,200.00 per month in alimony starting 1 June
2003 and continuing until either: (1) the death of plaintiff, (2)
the death of defendant, (3) the remarriage of defendant, or (4) the
cohabitation of defendant, whichever event first occurred. The
trial court also ordered plaintiff to pay defendant $79,200.00 plus
interest, being past due alimony for the period from 1 November
1997 through 1 May 2003.
Plaintiff filed a Rule 59 motion for new trial or to alter oramend the 30 July 2003 alimony order, on 11 August 2003.
also filed a motion in the cause to modify the 30 July 2003 alimony
order on 12 September 2003.
In an order filed 15 January 2004, the
trial court denied plaintiff's Rule 59 motion in its entirety,
except the trial court ordered that a sentence in paragraph two of
the ordering clause of the alimony order be struck and deleted.
The trial court entered an amended alimony order, with this minor
change, on 15 January 2004, nunc pro tunc 26 February 2003. The
amended alimony order was in all other respects the same as the
original 30 July 2003 alimony order. The trial court never ruled
upon plaintiff's motion in the cause to modify the 30 July 2003
Plaintiff filed a motion for stay pending appeal on 16
Defendant filed a motion signed 25 February 2004
requesting that the trial court require plaintiff "to appear and
show cause why [plaintiff] should not be held in contempt for not
complying with . . . prior orders of [the trial] court dated July
30, 2003 and January 15, 2004." The trial court entered an order
to show cause on 4 March 2004. Plaintiff filed a motion to claim
exempt property on 29 March 2004, seeking to exempt his clothing,
vehicle, computer and IBM retirement account from execution by
defendant under the alimony order. Defendant also filed a motion
for attorney's fees. The trial court held a hearing on all four
motions on 6 April 2004.
The trial court entered the following orders on 7 July 2004:
(1) an order holding plaintiff in contempt for failing to makealimony payments pursuant to the amended order; (2) an order
denying plaintiff's motion to stay and motion for exempt property;
and (3) an order awarding defendant $15,000.00 in attorney's fees.
Plaintiff appeals from these three orders and the amended alimony
order entered 15 January 2004, nunc pro tunc 26 February 2003.
 Plaintiff argues the trial court abused its discretion by
failing to consider plaintiff's proffered evidence regarding
changed circumstances during the period between the 13 May 1998
hearing and the hearing on remand in February 2003. We find the
trial court did not abuse its discretion by relying solely upon
May 1998 evidence in
making its determinations regarding
entitlement and amount of alimony. However, we find the trial
court abused its discretion by not considering alleged changes of
circumstances occurring after May 1998, before entering a lump sum
Our Court reviews a trial court's decision regarding the
manner of payment of an alimony award for abuse of discretion.
Whitesell v. Whitesell
, 59 N.C. App. 552, 553, 297 S.E.2d 172, 173
(1982), disc. review denied
, 307 N.C. 583, 299 S.E.2d 653 (1983).
Our Supreme Court has held that "[u]pon appeal our mandate is
binding upon [the trial court] and must be strictly followed
without variation or departure. No judgment other than that
directed or permitted by the appellate court may be entered." D &
W, Inc. v. Charlotte
, 268 N.C. 720, 722, 152 S.E.2d 199, 202
(1966). In Rhew I
, our Court directed the trial court to (1) make a
new determination of defendant's dependency and (2) enter a
judgment with specific findings of fact on the relevant statutory
criteria, including the parties' standard of living during marriage
and the parties' living expenses since separation
App. at 472, 531 S.E.2d at 474-75
. Because our Court held that the
evidence that had been introduced at the May 1998 alimony hearing
was sufficient to have enabled the trial court to make the required
findings, it was reasonable and appropriate on remand for the trial
court to rely solely upon that evidence. See Rhew
, 138 N.C. App.
at 472, 531 S.E.2d at 474.
As we discuss in sections III and IV of
this opinion, on remand the trial court made sufficient findings to
support its determinations that plaintiff was a supporting spouse,
and defendant was a dependent spouse who was entitled to $1,200.00
per month in alimony.
However, the trial court exceeded our
Court's mandate on remand by entering a lump sum award for the
period from 1 November 1997 until 1 May 2003 without considering
possible changes of circumstances during that period of time.
Plaintiff argues in his motion in the cause to modify the 30
July 2003 alimony order, and on appeal, that the following three
events, inter alia
, which occurred between the 13 May 1998 hearing
and the 26 February 2003 hearing on remand, are substantial changes
of circumstances warranting a modification of the alimony award
under N.C. Gen. Stat. § 50-16.9(a): (1) resolution of defendant's
claim for equitable distribution, (2) decrease in value of assets
acquired by plaintiff in the equitable distribution settlement, and(3) plaintiff's unemployment.
The trial court stated its reasons for denying plaintiff the
opportunity to present new evidence on remand as follows:
My look on this and the cleanest thing,
in light of the case law -- the cleanest way
to do this is to go back to 1998, clean up or
straighten up what the Court of Appeals said
the mistakes that were made -- or the errors
in law that were made from 1998.
And just as we had suggested in court the
other day, if [defendant's counsel] doesn't
like it because I didn't order alimony or I
order alimony and it's not enough, he can file
an appropriate motion. Or if [plaintiff]
doesn't like it and -- for whatever reason,
[plaintiff] can file the appropriate motion in
the cause and move it along that way. That
was my understanding the other day, and I
think that is the cleanest way to do it.
The trial court further stated that if it allowed the introduction
of new evidence on remand, it would be "redoing the alimony trial
and hearing motions to modify at the same time," which would result
in confusion. The trial court therefore decided to proceed in
stages, first deciding entitlement and amount of alimony, and then
considering any motions to modify the alimony award.
The procedure envisioned by the trial court would have been
proper had the trial court simply made its initial determinations
that plaintiff was a supporting spouse and defendant was a
dependent spouse, who was entitled to $1,200.00 per month in
alimony, and then considered motions in the cause alleging a change
of circumstances. However, the trial court failed to follow its
own procedure when it awarded a lump sum payment, without
considering a change of circumstances.
Because the trial court abused its discretion by failing to
consider plaintiff's evidence regarding changed circumstances,
must vacate the lump sum award and remand the matter to the trial
court to allow presentation of evidence of a substantial change of
circumstances between the time of the 13 May 1998 hearing and the
hearing on remand in February 2003. On remand of this appeal, the
trial court shall redetermine the amount of alimony, and
plaintiff's ability to pay, at each point in time that plaintiff
carries his burden of proving a substantial change of
circumstances. The trial court shall
then enter an appropriate
award. If the trial court finds there has not been a substantial
change of circumstances, the trial court should enter an award of
alimony based upon the monthly award of $1,200.00.
The trial court
should also consider any motions for modification for the period
from the 26 February 2003 hearing until the time this case is heard
We recognize this is an unusual procedure based upon the
unique facts of this case; however, in the interest of justice, we
are constrained to allow plaintiff to present evidence of changed
circumstances through a motion for modification. See Barham v.
, 127 N.C. App. 20, 27, 487 S.E.2d 774, 778 (1997), aff'd per
, 347 N.C. 570, 494 S.E.2d 763 (1998) (recognizing that
fairness to the parties is the overriding principle in cases
determining whether an alimony award was proper).
court's alimony award became effective on 26 February 2003.
However, the trial court's order awarded alimony back to 1 November1997. If, on remand from this appeal, plaintiff were not afforded
the chance to present new evidence of changed circumstances,
plaintiff would be deprived of the statutory right to move for a
modification of alimony based upon a change of circumstances for
the five-year period from 1998 to 2003. See
N.C. Gen. Stat. § 50-
16.9 (2005). We further note that, during the five-year period
from 1998 to 2003, plaintiff could reasonably have concluded that
he would not ultimately be liable for alimony because of the trial
court's 1998 ruling which denied defendant's alimony claim. For
the reasons stated above, we vacate the lump sum award and remand
for proceedings consistent with this opinion.
 Plaintiff also argues the trial court violated his state
and federal constitutional rights to due process by failing to
consider his evidence regarding changed circumstances. In support
of his argument, plaintiff cites Wall v. Wall
, 140 N.C. App. 303,
536 S.E.2d 647 (2000). In Wall
, our Court held, on the facts of
that case, that a nineteen-month delay between the equitable
distribution hearing and the disposition was more than a de minimis
delay, and required the trial court to hear new evidence on remand
and enter a new distribution order. Id
. at 314, 536 S.E.2d at 654.
is clearly distinguishable from the present case.
dealt with an equitable distribution award, while the
present case involves alimony. See Id
. Second, while
challenged delay in Wall
occurred between the date of the hearing
and the date of the trial court's entry of judgment, the delay inthe present case
resulted from an appeal of the 1998 order and
remand for a new hearing. See Id
We overrule this assignment of
 Plaintiff argues the trial court erred by finding and
concluding that plaintiff was a supporting spouse and defendant was
a dependent spouse because the trial court, on remand, did not
consider evidence of changed circumstances as of the February 2003
hearing. In determining an award of alimony, a trial court engages
in a two-part inquiry. Barrett v. Barrett
, 140 N.C. App. 369, 371,
536 S.E.2d 642, 644 (2000).
N.C. Gen. Stat. § 50-16.3A(a) (2005)
provides that a trial court
"shall award alimony to the dependent
spouse upon a finding that one spouse is a dependent spouse, that
the other spouse is a supporting spouse, and that an award of
alimony is equitable after considering all relevant factors[.]"
Once a trial court determines a dependent spouse is entitled to
alimony, the trial court determines the amount of the alimony
award. N.C. Gen. Stat. § 50-16.3A(b) (2005).
A trial court's determination of entitlement to alimony is
reviewed de novo
, 140 N.C. App. at 371, 536 S.E.2d at
644. Pursuant to N.C. Gen. Stat. § 50-16.1A(5) (2005), a
supporting spouse is "a spouse, whether husband or wife, upon whom
the other spouse is actually substantially dependent for
maintenance and support or from whom such spouse is substantially
in need of maintenance and support." "A surplus of income over
expenses is sufficient in and of itself to warrant a supportingspouse classification." Barrett
, 140 N.C. App.
373, 536 S.E.2d
at 645. A dependent spouse is "a spouse, whether husband or wife,
who is actually substantially dependent upon the other spouse for
his or her maintenance and support or is substantially in need of
maintenance and support from the other spouse." N.C. Gen. Stat. §
50-16.1A(2) (2005). A deficit between a spouse's income and
expenses supports a trial court's classification of that spouse as
, 140 N.C. App.
372, 536 S.E.2d at 645. In
, our Court further held that
the trial court's order reflects that it
considered other factors in addition to just
[the] plaintiff's income-expenses deficit.
Specifically, the trial court considered the
marital standard of living, [the] plaintiff's
relative earning capacity, and even her
separate estate . . . . We hold that the
evidence and findings support the trial
court's classification of [the] plaintiff as a
. at 372, 536 S.E.2d at 645.
In the present case, as discussed previously, the trial court
did not abuse its discretion by relying solely upon the May 1998
evidence in making its determination regarding defendant's
entitlement to alimony. The trial court found that plaintiff had
a net monthly income of approximately $5,400.00 and reasonable
monthly expenses in the amount of $4,200.00, yielding a surplus of
$1,200.00. The trial court further found that defendant had a net
monthly income of approximately $2,400.00 and reasonable monthly
expenses in the amount of $3,800.00. Therefore, defendant's
reasonable needs exceeded her income by approximately $1,400.00.
In accordance with our Court's mandate in Rhew I
, the trial courtmade findings regarding the parties' living expenses after
separation and made the following findings of fact regarding the
standard of living of the parties during their marriage
22. During the marriage, the parties traveled
frequently and took several major vacations,
including trips to Canada, New Orleans, Hawaii
and Cancun. In addition, the parties owned a
boat that they used regularly. The parties
attended church and made regular contributions
to their church. . . . Plaintiff played golf
regularly and . . . Defendant enjoyed arts,
crafts and making jewelry. The parties went
out every Friday evening, and often went
dancing. They went out to lunch every Sunday
and saw movies several times a month. They
saw friends every weekend and regularly
entertained in their home. Occasionally, the
parties engaged the services of a housekeeper.
23. Throughout the marriage, the parties set
aside significant portions of their income for
savings and retirement. They each invested
approximately ten percent (10%) of their
incomes in stock and participated in IBM
deferred savings plans to the maximum amount
Plaintiff did not assign error to these findings of fact and we
therefore treat them as supported by competent evidence. See
Fitzgerald v. Fitzgerald
, 161 N.C. App. 414, 421, 588 S.E.2d 517,
522 (2003). Accordingly, we hold that the evidence and the
findings support the trial court's determination that plaintiff is
a supporting spouse and defendant is a dependent spouse. See
, 140 N.C. App. at 372-73, 536 S.E.2d at 645.
 Plaintiff also argues the trial court erred by failing to
make findings of fact to support the duration and manner of payment
of the alimony award. In essence, plaintiff argues the trial courtshould have determined plaintiff's ability to pay the alimony award
based on new evidence as of the February 2003 hearing, rather than
on the basis of the evidence introduced at the 13 May 1998 hearing.
Pursuant to N.C. Gen. Stat. § 50-16.3A(c) (2005), a trial court
must set forth the reasons for the amount, duration, and manner of
payment of an alimony award. A supporting spouse's ability to pay
an alimony award is generally determined by the supporting spouse's
income at the time of the award. Quick v. Quick
, 305 N.C. 446,
453, 290 S.E.2d 653, 658 (1982). Decisions regarding the amount of
an alimony award are left to the sound discretion of the trial
, 140 N.C. App.
371, 536 S.E.2d at 644.
In the present case, the trial court did not abuse its
discretion by determining the amount of alimony to which defendant
was entitled solely on the basis of the May 1998 evidence. The
trial court found that plaintiff's income exceeded his expenses by
$1,200.00 and that defendant's needs exceeded her income by
$1,400.00. Therefore, the trial court did not abuse its discretion
by determining plaintiff was able to pay $1,200.00 per month in
alimony as of 1 November 1997. Pursuant to the procedure set forth
in section I of this opinion, the trial court will redetermine the
amount of the award and plaintiff's ability to pay alimony if it
finds that plaintiff proves a substantial change of circumstances.
 Plaintiff also argues the trial court erred by holding
plaintiff in contempt for failing to pay the lump sum alimony
award. Because we vacate the lump sum alimony award, we vacate theorder finding plaintiff in contempt. See Bridges v. Bridges
N.C. App. 209, 212, 223 S.E.2d 845, 847 (1976) (holding that "[a]n
invalid judgment or order may not be the basis of a proceeding in
 Plaintiff argues the trial court erred by awarding
attorney's fees to defendant. We disagree. "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
, 140 N.C. App. at 374, 536 S.E.2d at
646; see also
N.C. Gen. Stat. § 50-16.4 (2005). We review a trial
court's determination regarding entitlement to attorney's fees de
, 140 N.C. App. at 374, 536 S.E.2d at 646.
In the present case, we uphold the trial court's determination
that defendant was a dependent spouse who was entitled to alimony.
Therefore, defendant was entitled to attorney's fees if she was
without sufficient means to defray the costs of litigation. In
making this determination, a trial court should generally rely on
the dependent spouse's disposable income and estate. Barrett
N.C. App. at 374, 536 S.E.2d at 646. In the present case, the
trial court found that "[d]efendant has borrowed substantial monies
from her family members to pay her legal expenses; she has limited
funds in her bank and savings accounts; and she was forced to sell
her home and therefore owns no real property." The trial court
also found that "[d]efendant [was] without sufficient means whereonto subsist during the prosecution of this action and to defray the
necessary expenses of this action." We hold these unchallenged
findings were sufficient to support defendant's entitlement to
Once it is determined that a dependent spouse is entitled to
an award of attorney's fees, we next determine whether the amount
of the award was proper. Barrett
, 140 N.C. App. at 375, 536 S.E.2d
at 647. "The amount awarded will not be overturned on appeal
absent an abuse of discretion." Id
. An order awarding attorney's
fees "must contain findings as to the basis of the award, including
the nature and scope of the legal services, the skill and time
required, and the relationship between the fees customary in such
a case and those requested." Holder v. Holder
, 87 N.C. App. 578,
584, 361 S.E.2d 891, 894 (1987). In the present case, defendant's
attorneys submitted affidavits for attorney's fees and detailed
records of the time expended on defendant's case. The trial court
[d]efendant accrued attorney's fees to
Tharrington Smith up through the summer of
2001 in the amount of approximately $26,000.00
and to Wyrick, Robbins, Yates & Ponton in the
amount of $35,000.00 In view of the
complexity of the issues and the duration of
this case, the [Trial] Court finds that these
fees are reasonable based upon the skills
required and services rendered in this case.
The trial court ordered plaintiff to pay defendant $15,000.00 in
attorney's fees. We hold the trial court did not abuse its
discretion by ordering plaintiff to pay a portion of defendant's
 Plaintiff next argues that pursuant to state and federal
law, the trial court erred by denying plaintiff's motion to exempt
his IBM retirement from execution by defendant. Pursuant to N.C.
Gen. Stat. § 1C-1601(a)(9) (2005):
Each individual, resident of this State, who
is a debtor is entitled to retain free of the
enforcement of the claims of creditors:
(9) Individual retirement plans as
defined in the Internal Revenue Code
and any plan treated in the same
manner as an individual retirement
plan under the Internal Revenue
However, N.C. Gen. Stat. § 1C-1601(e)(9) (2005) provides:
The exemptions provided in this Article are
inapplicable to claims:
(9) For child support, alimony
distributive award order pursuant to
Chapter 50 of the General
In the present case, plaintiff sought to exempt his retirement
account from defendant's execution under the alimony order.
N.C.G.S. § 1C-1601(e)(9) clearly provides that the exemption for
retirement accounts does not apply to claims for alimony.
Therefore, the trial court did not err in denying plaintiff's
motion on this ground.
Plaintiff also argues his retirement account was exempt from
execution pursuant to 29 U.S.C. § 1056(d)(1) (2005), which
provides: "Each pension plan shall provide that benefits provided
under the plan may not be assigned or alienated." 29 U.S.C. §1056(d)(3)(A) (2005) includes an exception to this rule:
Paragraph (1) shall apply to the creation,
assignment, or recognition of a right to any
benefit payable with respect to a participant
pursuant to a domestic relations order, except
that paragraph (1) shall not apply if the
order is determined to be a qualified domestic
(emphasis added). Plaintiff argues that because the trial court's
order was not in the form of a qualified domestic relations order,
his retirement account was exempt from execution by defendant.
However, plaintiff's argument is premature. The trial court did
not order the assignment of plaintiff's retirement account. The
trial court only ruled that plaintiff's retirement account was not
exempt from execution by defendant. Accordingly, we overrule
defendant's assignment of error.
 Plaintiff also argues the trial court committed reversible
error by failing to personally consider his offer of proof
regarding changed circumstances at the time of the hearing on
remand. Plaintiff relies upon N.C. Gen. Stat. § 1A-1, Rule 43(c)
(2005), which provides as follows:
In an action tried before a jury, if an
objection to a question propounded to a
witness is sustained by the court, the court
on request of the examining attorney shall
order a record made of the answer the witness
would have given. The court may add such
other or further statement as clearly shows
the character of the evidence, the form in
which it was offered, the objection made and
the ruling thereon. In actions tried without
a jury the same procedure may be followed,
except that the court upon request shall take
and report the evidence in full
, unless it
clearly appears that the evidence is not
admissible on any grounds or that the witness
(emphasis added). "Rule 43(c) thus requires the trial court, upon request, to
allow the insertion of excluded evidence in the record." Nix v.
Allstate Ins. Co.
, 68 N.C. App. 280, 282, 314 S.E.2d 562, 564
(1984). In the present case, the trial court allowed plaintiff to
introduce the excluded evidence into the record. Plaintiff cites
no binding authority, and we find none, that requires a trial court
to personally take an offer of proof. Therefore, the trial court's
failure to personally consider plaintiff's offer of proof was not
 Plaintiff argues that, pursuant to N.C. Gen. Stat. § 50-
20(f), the trial court erred by failing to take judicial notice of
its equitable distribution order upon plaintiff's request prior to
entering its alimony order on remand. N.C. Gen. Stat. § 50-20(f)
(2005) requires: "After the determination of an equitable
distribution, the [trial] court, upon request of either party,
shall consider whether an order for alimony or child support should
be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7."
However, this statute has no application here because there was no
existing alimony order to modify until 26 February 2003, the
effective date of the alimony order. Therefore, plaintiff's
request that the trial court take judicial notice of the equitable
distribution order before the entry of the alimony order was
ineffectual and we overrule this assignment of error.
Affirmed in part, vacated and remanded in part.
Chief Judge MARTIN and Judge STEELMAN
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