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1. Divorce_postseparation support findings_incorporation of tax return
A trial court order for postseparation support was supported by a finding that incorporated
by reference defendant's income numbers from his tax return.
2. Divorce_postseparation support findings_incorporation of financial standing
affidavit
Postseparation support involves a relatively brief examination of the parties' needs and
assets and the court may base its award on a verified pleading, affidavit, or other competent
evidence. The trial court here made an appropriate finding supported by the evidence by
incorporating by reference defendant's financial standing affidavit.
3. Divorce_equitable distribution_real estate development company_appraisal
An appraisal of defendant's real estate company was properly admitted in an equitable
distribution action.
4. Divorce_equitable distribution--past and future tax losses_testimony from
accountants_not speculative
Findings in a divorce and equitable distribution action concerning defendant's net
operating loss deductions for future and past tax years, and for capital gains eliminated using the
loss carrybacks, were supported by testimony from defendant's accountants and were not
speculative.
5. Divorce_equitable distribution--
decreased value of company_defendant's role
Findings in a divorce and equitable distribution action that a decrease in the value of
defendant's real estate development business was attributable to the actions of defendant were
not erroneous. Although defendant's son had become president of the company and defendant
limited his role, other findings indicate that defendant continued to play an important role in the
company.
6. Divorce_equitable distribution--
assets existing at separation but not at trial--
proceeds from liquidation_findings
The trial court did not err in an divorce and equitable distribution action by finding that
defendant had received the proceeds from the sale of several assets and distributions. Although
defendant asserted that these assets no longer existed at the time of trial and had gone to preserve
defendant's company and support the parties, the assets existed at the date of separation and the
proceeds were used to pay for spending and loans incurred by defendant after the separation.
7. Divorce_equitable distribution--
distribution of assets_business and automobile
There was no error in a divorce and equitable distribution action where defendant
contended that the court found the distribution of an asset to be divisible, but in fact the findingdetermined that the asset was defendant's separate property. Furthermore, the court properly
classified a car leased by defendant but driven by plaintiff as marital and distributed it to plaintiff
at the value agreed to by both parties ($0).
8. Divorce_equitable distribution--
valuation of country club membership_opinion of
plaintiff
The trial court did not err in a divorce and equitable distribution action in valuing a
country club membership. The subjective opinions of the owner of property as to its value are
admissible and competent.
9. Divorce_equitable distribution--
marital home_debts and tax payments
The trial court did not err in its findings concerning the marital home in a divorce and
equitable distribution action. Defendant failed to present any evidence of principal reduction, the
payments made were ordered as part of defendant's support of his dependent spouse, and
defendant did not introduce evidence to support the contention that he should have had a credit
for paying plaintiff's tax liability, which was a lien on the marital home.
10. Divorce_equitable distribution--
distribution of stock_capital gains
The trial court did not err in a divorce and equitable distribution action by distributing
stock to plaintiff without taking into account defendant's capital gains liability. Defendant's
accountant testified that defendant would have no tax after consideration of other losses.
11. Divorce_equitable distribution_company controlled by defendant_payment of debts
There was no abuse of discretion in an equitable distribution action in requiring defendant
to pay the debt and tax liability which accrued to a company during the time after separation in
which he had sole control of the company.
12. Divorce_equitable distribution--
marital debts_found but not listed
The trial court erred in a divorce and equitable distribution action by finding certain debts
to be marital but not listing them in Table A. Although remand was for other reasons, correction
was ordered.
13. Divorce_equitable distribution--
wife's inheritance_use to purchase husband's
business
The trial court did not err in an equitable distribution action by finding that the wife's
inheritance was used for the acquisition of the husband's business.
14. Divorce_equitable distribution_assets liquidated and found to be
distributed_postseparation conversion of those assets_distribution factor
The trial court did not err in an equitable distribution action by finding that proceeds from
the sale of an asset and the liquidation of an IRA were distributed to defendant and then
considering defendant's postseparation conversion of those assets as a distributional factor.
15. Divorce_equitable distribution--
ability to earn_finding supported by tax returns
The trial court did not err by finding that defendant had the ability to earn large sums
where his tax returns and financial statement supported that finding.
16. Divorce_equitable distribution_distributional factor--eligibility for social security
benefits
The trial court did not err in an equitable distribution action by finding as a distributional
factor that defendant will be entitled to receive social security benefits and that plaintiff will not.
Plaintiff produced defendant's W-2 statement, showing social security withholding, and neither
party produced evidence that plaintiff was entitled to social security benefits.
17. Divorce_equitable distribution_distributional factors_findings
The trial court in an equitable distribution action made the required findings about
distributional factors.
18. Divorce_alimony_monthly income of real estate developer_evidence supporting
findings
The evidence supported findings in an alimony order about defendant's continued
monthly income. Defendant, a real estate developer, had income plus a complex and constant
turnover of properties; although he alleged that some assets were included twice, the evidence
supports the court's findings.
19. Divorce_alimony_findings about duration
An alimony order was remanded for further findings concerning the reason for the
duration of alimony payments. Findings that plaintiff had no income after thirty-eight years of
marriage were not sufficient.
20. Divorce_alimony_tax rate_findings
A finding in an alimony order about defendant's tax rate was supported by the evidence.
21. Divorce_alimony_findings
The trial court made sufficient findings in an alimony order about defendant's age, past
health concerns, and gross and after-tax income as required by N.C.G.S. § 50-16.3A(b).
22. Divorce_alimony_order not binding on heirs
A finding that an alimony order would be binding on defendant's heirs was erroneous and
without effect, as such a term is barred by N.C.G.S. § 50-16.9(b).
23. Divorce_alimony_attorney fees
The findings of fact in an alimony action were sufficient for the award of attorney fees.
24. Divorce_equitable distribution--
distributive award_findings_sufficiency of assets
A distributive award in an equitable distribution action was remanded for additional
findings on whether defendant had sufficient liquid assets to pay the award.
Davis & Harwell, P.A., by Joslin Davis, Loretta C. Biggs and
Mark Hoppe, for plaintiff-appellee.
Justice, Eve & Edwards, P.A., by R. Michael Eve, Jr., for
defendant-appellant.
HUDSON, Judge.
On 9 January 2003, plaintiff Ann N. Squires filed a complaint
seeking inter alia, postseparation support, alimony and equitable
distribution of marital property. Following a hearing on 18-19
March 2003, the court entered an order for postseparation support
and requiring that sales proceeds from a marital asset be held in
a joint account until further order. After a hearing on 27-28
April and 3-6 May 2004, the court entered an equitable distribution
and alimony judgment and order on 1 September 2004, which the court
revised sua sponte on 30 March and 3 June 2005. Defendant J. Ralph
Squires appeals. As discussed below, we affirm in part, reverse in
part, vacate in part, and remand.
The evidence tended to show the following: The parties
married on 17 April 1965, separated on 26 December 2000, and were
divorced 5 June 2003. At the time of trial, defendant was 64 years
old and claimed that he had several health problems, though nomedical testimony was introduced in support of this contention.
Plaintiff was 58 years old and in good health. During the
marriage, she was primarily a homemaker. Defendant was in the
construction business until 1987 when he sold his company for
approximately $7 million. Defendant used the proceeds of the sale
to begin a real estate development business, Squires Enterprises,
Inc., (SEI). Prior to 2000, SEI purchased undeveloped lots,
obtained loans to finance the purchase and initial development of
the land, and contracted with construction companies for the
purchase of developed residential lots. During the marriage,
defendant earned income primarily through capital gains and
distributions from various investments, partnerships and S-
corporations. In the years 1999 through 2001, defendant's income
ranged from $627,540 to $1,042,475. Defendant's 2002 tax return
showed an income of $1,933,013. In the equitable distribution and
alimony judgment, the court awarded defendant 58 percent of the net
marital and divisible estate, or $4,545,769, and awarded plaintiff
42 percent, or $3,332,330.
The standard of review of the percentage division of marital
property in equitable distribution cases is for an abuse of
discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985).
It is well established that where matters are
left to the discretion of the trial court,
appellate review is limited to a determination
of whether there was a clear abuse of
discretion. A trial court may be reversed for
abuse of discretion only upon a showing that
its actions are manifestly unsupported by
reason. A ruling committed to a trial court'sdiscretion is to be accorded great deference
and will be upset only upon a showing that it
was so arbitrary that it could not have been
the result of a reasoned decision.
Id. Further, [i]t is well established that a trial court's
conclusions of law must be supported by its findings of fact.
Robertson v. Robertson, 167 N.C. App. 567, 574, 605 S.E.2d 667, 671
(2004).
[1] Defendant first argues that the trial court's findings do
not support its order for postseparation support. We do not agree.
Defendant contends that the court erred in failing to find
that he had a present employment income or other recurring
earnings. Courts are to base their postseparation support awards
on the financial needs of the parties,
considering the parties' accustomed standard
of living, the present employment income and
other recurring earnings of each party from
any source, their income-earning abilities,
the separate and marital debt service
obligations, those expenses reasonably
necessary to support each of the parties, and
each party's respective legal obligations to
support any other persons.
N.C. Gen. Stat. § 50-16.2A(b) (2005) (emphasis supplied). Here,
evidence from defendant's tax returns showed that, while his W-2
income decreased from $106,100 to zero from 1999 through 2001, his
income from interest, dividends, capital gains and partnerships was
fairly consistent and averaged $622,136 per year, or $51,845
monthly, during those years. The court, in finding 15,
incorporated by reference the income numbers from defendant's tax
return. This finding supports the court's order for postseparation
support. [2] Defendant also contends that the court erred in failing to
make findings about defendant's expenses. Because postseparation
support involves a relatively brief examination of the parties'
needs and assets, the court may base its award on a verified
pleading, affidavit, or other competent evidence. Wells v. Wells,
132 N.C. App. 401, 410, 512 S.E.2d 468, 474, disc. review denied,
350 N.C. 599, 537 S.E.2d 495 (1999) (quoting N.C. Gen. Stat. §
50-16.8). Finding 21 incorporates by reference defendant's
financial standing affidavit, which details defendant's monthly
expenses. This finding provides that [a]fter considering
[defendant's] reasonable and necessary living expenses, [defendant]
has sufficient income to pay the postseparation support as
hereinafter ordered. The court made an appropriate finding
supported by the evidence about defendant's expenses. Defendant
has shown no abuse of discretion by the trial court.
[3] Defendant next argues that the trial court's distribution
of marital property is not equitable and not supported by competent
evidence, valid findings or proper conclusions. We disagree.
Defendant contends that the trial court erred in admitting
into evidence and adopting Kevin P. Walker's appraisal of SEI. The
court found that SEI had a fair market value of $2,331,000 on 26
December 2000 and of $1,712,000 as of 31 December 2003. Absent a
clear showing of legal error in utilizing [an approach to
valuation], this Court is not inclined to second guess the expert
and the trial court, which accepted and approved this
determination. Sharp v. Sharp, 116 N.C. App. 513, 529, 449 S.E.2d39, 47, disc. review denied, 338 N.C. 669, 453 S.E.2d 181 (1994).
The same method was used for both valuations, but defendant
challenges only the 31 December 2003 valuation. We overrule this
assignment of error.
[4] Defendant also contends that the court erred in making
finding 14 that defendant individually would be entitled to
specific net operating loss deductions applicable to future and
past tax years because such a finding was speculative and
hypothetical. The court found that SEI losses could be carried
forward and backward to reduce defendant's 2002 and 2003 state and
federal income taxes. The finding was supported by the testimony
of one of defendant's experts and his accountant. Defendant also
asserts that the trial court abused its discretion in findings 26
and 27 which concern capital gains which defendant could eliminate
using the SEI loss carrybacks. Both of these findings are
supported by testimony from defendant's accountants.
[5] Defendant next contends that the court erred in stating in
finding 25 that the decrease in the value of SEI between the date
of separation and 31 December 2003 was attributable to the actions
of defendant. Defendant draws our attention to finding 10 which
notes that in 2000, the parties' son Gil Squires became president
of SEI and defendant limited himself to arranging the financing
for each project. Defendant asserts that this finding and others
mentioning defendant's reliance on Gil Squires and his staff in
making decisions regarding SEI indicate that the court abused its
discretion in making finding 25 given its other findings. However,other findings indicate that defendant continued to play an
important role at SEI and we see no abuse of discretion.
[6] Defendant also contends that the court erred in finding
that defendant received all of the proceeds from the sale of
Cheshire Joint Venture, Park Meridian Stock, his IRA and Dover
Mortgage Corporation distributions. Defendant asserts that these
assets no longer existed at the time of trial, and that the court
should have credited him with using these assets to preserve SEI
and support the parties. The assets in question existed at the
date of separation and defendant controlled and liquidated them
after the date of separation. Findings 72, 73, and 76 provide that
the proceeds from the sale of the Regions stock and liquidation of
defendant's IRA went to pay post-date of separation loans or for
other spending by defendant. In the final pretrial order, the
parties agreed that defendant had received over $600,000 in
distributions from Dover after separation. Plaintiff testified
that defendant used these funds for his own purposes without her
knowledge. Finding 26 states that defendant loaned $250,000 to SEI
after liquidating Cheshire and spending the remaining proceeds. No
substantive evidence showed that any of the funds went to support
plaintiff. The evidence supports these findings, and the court did
not abuse its discretion. These arguments are without merit.
[7] Defendant also contends that the court erred in
distributing OS Partners, LLC, to defendant at a value of $48,980.
Defendant argues that the court found his interest in OC Partners
to be divisible; however, finding 33 determines that this interestis defendant's separate property and Table A of the judgment does
not list the interest as either marital or divisible.
Defendant contends that the court erred in awarding the
Escalade automobile to plaintiff and assigning it no value. The
Escalade was leased by defendant but driven exclusively by
plaintiff. Both parties listed the lease value of the car as $0 on
schedule E of the pretrial order. The trial court properly
classified the lease as marital and distributed to plaintiff at the
value agreed to by both parties. This assignment of error is
without merit.
[8] Defendant also contends that the court erred in finding
that the Old North State Country Club membership had a value on the
date of separation of $10,000. Plaintiff valued the membership at
$10,000, and [t]he subjective opinions of the owner of property as
to its value are admissible and competent. Patterson v.
Patterson, 81 N.C. App. 255, 261, 343 S.E.2d 595, 600 (1986). We
overrule this assignment of error.
[9] Defendant next contends that the court erred in
distributing existing assets to plaintiff and requiring that
defendant pay taxes and debts related to those assets. Defendant
also asserts that amended finding 35, which assigned the equity in
the marital home a value of $657,202 and assigning it to plaintiff,
conflicts with finding 93, which states that the equity line on the
marital home is a marital debt to be distributed equally to the
parties. Finding 93 also orders defendant to pay the monthly
service on this debt until the home is sold, as required by thecourt's alimony order. Defendant contends that the court erred in
failing to credit him with any principal reduction. We see no
conflict in these findings, where defendant failed to present any
evidence of principal reduction and where the payments are ordered
as part of defendant's support of his dependant spouse.
The appropriate treatment of post-separation
payments made by one spouse toward marital
debt will vary depending upon the facts of the
particular case. . . . The trial court is in
the best position to determine the most
equitable treatment of post-separation
payments toward marital debt; therefore, the
determination is left to the discretion of the
trial court.
Edwards v. Edwards, 110 N.C. App. 1, 13, 428 S.E.2d 834, 840, disc.
review denied, 335 N.C. 172, 436 S.E.2d 374 (1993). The court also
required defendant to pay all of plaintiff's 2002 individual state
income tax liability, which was a lien on the marital home, without
giving him credit. Defendant claims that the liability resulted
from the sale of assets which benefitted plaintiff, but he
presented no evidence to quantify any tax burden.
[10] The court also distributed to plaintiff FNB Corp. stock
worth $1,089,850, which was part of the consideration received for
the sale of Dover. Defendant asserts that he will be required to
pay capital gains on the stock, and that the court failed to give
him credit for any tax liability. Defendant's accountant testified
that he would have no tax after taking into account the SEI losses
and again he failed to present evidence quantifying any tax burden.
[11] In finding 31, the court valued Little River Highway,
LLC, shares at $110,000 at the date of separation and distributedthem to plaintiff, but in the decretal portion of the judgment the
court required that defendant pay all debt and tax liability
associated with this asset. Defendant contends that this
requirement is inequitable and an abuse of discretion. Defendant
had sole control over Little River Highway for two and one-half
years after the date of separation. We conclude that there was no
abuse of discretion in requiring defendant to pay for debt accruing
during the time he had control of this asset.
[12] Defendant also contends that the court erred in the
distribution of Regions Financial Corporation stock pledged to
secure marital loans and in failing to list and consider as marital
debts loans which were secured by the stock. The trial court found
that $500,000 owed to Regions Bank was marital, but failed to list
it in Table A. The parties agreed that a $75,000 debt to W.G.
Squires and secured by a pledge of 6000 shares of Park Meridian was
marital debt, and the court so found in finding 102. However, the
court erred in failing to list this debt in Table A, as plaintiff
conceded at oral argument. On remand which is necessary for other
reasons, the trial court should make the necessary correction here.
[13] Defendant also contends that the court erred in its
consideration of factors for an unequal distribution. Defendant
asserts that finding 108 that [w]ife's separate inheritance was
used for the acquisition of husband's business was not supported
by any evidence and should not have been given any weight in
considering an unequal distribution. Plaintiff testified that
these funds went into defendant's business although she admittedthat she had not traced any separate funds into the business.
Defendant could not recall whether such funds went into his
business. The court's finding was not erroneous.
[14] Defendant also contends that the court erred in finding
that proceeds from the sale of Cheshire and liquidation of
defendant's IRA were distributed to defendant and also considered
as a distributional factor against defendant. Post-separation
payments may . . . be treated as a distributional factor.
Khajanchi v. Khajanchi, 140 N.C. App. 552, 564, 537 S.E.2d 845, 853
(2000). A trial court may also give the payor a dollar for dollar
credit in the division of the property, or require that the
non-payor spouse reimburse the payor for an appropriate amount.
Hay v. Hay, 148 N.C. App. 649, 655, 559 S.E.2d 268, 273 (2002).
While these are alternative options, here the court did not count
the value of these assets twice as defendant alleges. Rather, the
court distributed the assets to defendant and also weighed his
post-separation conversion of these assets in considering the
equitable distribution.
[15] Defendant also asserts that the court erred in making
finding 111 that defendant earns and has the ability to earn large
and substantial sums. However, defendant's answer, tax returns
from 1997 through 2002 and his financial statement all support this
finding.
[16] Defendant also contends that the court erred in finding
112 by considering as a distributional factor that defendant will
be entitled to receive social security benefits in the future andthat plaintiff will not. Although defendant refused to produce his
social security statement at trial after being subpoenaed,
plaintiff did introduce his Form W-2 showing that social security
taxes were being withheld from defendant's SEI salary. Neither
party produced evidence showing that plaintiff was entitled to
receive any social security benefits.
[17] Defendant contends that the court erred in failing to
consider evidence of other distributional factors. [W]hen a party
presents evidence which would allow the trial court to determine
that an equal distribution of the marital assets would be
inequitable, the trial court must then consider all of the
distributional factors listed in G.S. 50-20(c), Smith v. Smith, 314
N.C. 80, 331 S.E.2d 682 (1985), and must make sufficient findings
as to each statutory factor on which evidence was offered.
Locklear v. Locklear, 92 N.C. App. 299, 305-6, 374 S.E.2d 406, 410
(1988). N.C. Gen. Stat. § 50-20(c) lists the factors to be
considered:
(1) The income, property, and liabilities of
each party at the time the division of
property is to become effective.
(2) Any obligation for support arising out of
a prior marriage.
(3) The duration of the marriage and the age
and physical and mental health of both
parties.
(4) The need of a parent with custody of a
child or children of the marriage to occupy or
own the marital residence and to use or own
its household effects. (5) The expectation of pension, retirement, or
other deferred compensation rights that are
not marital property.
(6) Any equitable claim to, interest in, or
direct or indirect contribution made to the
acquisition of such marital property by the
party not having title, including joint
efforts or expenditures and contributions and
services, or lack thereof, as a spouse,
parent, wage earner or homemaker.
(7) Any direct or indirect contribution made
by one spouse to help educate or develop the
career potential of the other spouse.
(8) Any direct contribution to an increase in
value of separate property which occurs during
the course of the marriage.
(9) The liquid or nonliquid character of all
marital property and divisible property.
(10) The difficulty of evaluating any
component asset or any interest in a business,
corporation or profession, and the economic
desirability of retaining such asset or
interest, intact and free from any claim or
interference by the other party.
(11) The tax consequences to each party,
including those federal and State tax
consequences that would have been incurred if
the marital and divisible property had been
sold or liquidated on the date of valuation.
The trial court may, however, in its
discretion, consider whether or when such tax
consequences are reasonably likely to occur in
determining the equitable value deemed
appropriate for this factor.
(11a) Acts of either party to maintain,
preserve, develop, or expand; or to waste,
neglect, devalue or convert the marital
property or divisible property, or both,
during the period after separation of the
parties and before the time of distribution.
***
(12) Any other factor which the court finds to
be just and proper.
N.C. Gen. Stat. § 50-20 (2003). Here, the court made the required
findings. Defendant again draws our attention to his lack of an
earned income, arguing that it should have been considered by the
court as a distributional factor. As discussed supra, the court
found that defendant had substantial income. In addition,
defendant contends the court should have considered his age and
health, and his liquidated IRA as distributional factors. The
court found that his age and any health problems defendant had did
not prevent him from earning income. Defendant also asserts that
the court should have considered the lack of liquidity of the
parties' marital assets and defendant's tax liabilities. Testimony
from defendant's accountants supported the court's findings that
any tax liabilities would likely be eliminated by carrying his SEI
losses back or forward.
[18] Defendant next argues that the alimony order is not
supported by proper conclusions, valid findings or competent
evidence. We do not agree.
Defendant contends that the evidence failed to support finding
122 that defendant's monthly income will continue to exceed $14,000
per month from earnings from sale of lots of the Riverfront and
Colony Road Partnership projects, or finding 142 that defendant
will have a monthly income of at least $15,000. Defendant asserts
that the value of these assets had already been included in the
value of SEI and that using them in the alimony award constituted
inappropriate double dipping. However, defendant's own evidence
regarding SEI's average profitability indicated that he couldexpect to earn over $20,000 per month. In addition, the court
heard evidence of the complex and constant turnover of properties
through defendant's real estate companies, and we see no error in
its findings here.
[19] Defendant also contends that the court erred in not
making findings regarding its reasons for 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).
The court ordered that alimony continue until the death of one of
the parties, or plaintiff's remarriage or cohabitation, but failed
to make any finding about the reasons for this duration. Plaintiff
asserts that the findings that she had no income after thirty-eight
years of marriage are sufficient. We do not agree. We remand for
further findings of fact concerning the duration of the alimony
award.
[20] Defendant also contends that finding 144, that
plaintiff's combined tax rate would be 15%, was unsupported by the
evidence. While it is true that the express language of G.S. §
50-16.5(a) does not include the income tax consequences of an award
of alimony as a factor to be weighed in the balance in determining
the proper amount of the award, we are of the opinion that such
would be a proper consideration in making that determination.
Clark v. Clark, 301 N.C. 123, 132-33, 271 S.E.2d 58, 65-66 (1980).
Plaintiff's expert, Mr. Walker, testified that the 15% combined taxrate was appropriate and that he knew of no rate changes; defendant
failed to offer any controverting evidence regarding tax rate. The
court did not abuse its discretion in making this finding.
[21] Defendant contends that the court erred in failing to
make findings concerning the factors listed in N.C. Gen. Stat. §
50-16.3A(b), specifically defendant's age, health, lack of earned
income and tax liabilities. Finding 7 notes defendant's age and
past health concerns. Findings 116 through 121 note defendant's
gross and after-tax income between 1997 and 2002. This assignment
of error is without merit.
[22] Defendant next contends that the court erred in
continuing certain terms of the postseparation award and in making
the alimony judgment binding on his heirs. Any finding purporting
to make alimony binding on defendant's heirs is error, but is
without effect as such a term is barred by statute. N.C. Gen.
Stat. § 50-16.9(b) (2005) (Postseparation support or alimony shall
terminate upon the death of either the supporting or the dependent
spouse.) We vacate this portion of the judgment.
[23] Defendant also argues that the court erred in awarding
attorney's fees to plaintiff based on these findings. Because we
believe the findings are sufficient, we disagree.
At any time that a dependent spouse would be entitled to
alimony . . . the court may . . . enter an order for reasonable
counsel fees for the benefit of such spouse, to be paid and secured
by the supporting spouse . . . . N.C. Gen. Stat. § 50-16.4
(2005). To recover attorneys' fees pursuant to this statute in anaction for alimony, the requesting spouse must be entitled to the
relief demanded, must be a dependent spouse, and must have
insufficient means to subsist during the prosecution of the suit
and to defray the expenses thereof. Caldwell v. Caldwell, 86 N.C.
App. 225, 227, 356 S.E.2d 821, 822-23, cert. denied, 320 N.C. 791,
361 S.E.2d 72 (1987). In addition, 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). Thus, the trial court must make findings of fact as to
the nature and scope of legal services rendered, the skill and the
time required upon which a determination of reasonableness of the
fees can be based. Williamson v. Williamson, 140 N.C. App. 362,
365, 536 S.E.2d 337, 339 (2000).
Here, the judgment contains the following pertinent findings:
123. Wife is currently 58 years old and the
course of the parties 38-year marriage has
been primarily a homemaker and mother,
although she does currently own and operate an
antique business known as Lillie [sic]
Antiques & collectibles Inc. Wife works
approximately 5-6 hours per week at said
business, which has not made a profit over the
past several years.
***
126. Wife has been and continues to be
actually and substantially dependent on
Husband for her maintenance and support and
substantially in need of maintenance and
support from Husband in order to maintain her
accustomed standard of living. Wife is the
dependant spouse and Husband is the supporting
spouse of the parties' marriage.
***
143. Wife's total reasonable monthly needs
and expenses are $6,139 as previously found
herein. Will have no mortgage payments upon
the sale of the Winged Bourne residence and
her receipt of all the proceeds from such
sale. The Court makes the reasonable
assumption that these proceeds will be used to
purchase a new residence. The sum of $500 per
month is a reasonable allocation for the
expenses of taxes and insurance on the new
residence. Wife's total employment income and
other recurring earnings from all sources are
zero per month as found herein. Wife will
receive dividends of $2,354 per month from the
FNB stock. Wife has paid federal income tax
at an effective rate of approximately 8% and
no state income tax when she has had taxable
income since the parties separated as Lillie's
Antique's [sic] has reported a loss over the
past few years. After subtracting Wife's net
income $2,334, Wife needs $3,805 per month in
order to meet her reasonable monthly needs
based upon her accustomed standard of living
during the course of the marriage and in
consideration of her income and earning
abilities.
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146. Wife is substantially in need of a
financial contribution from Husband in order
to maintain her accustomed standard of living.
147. Wife is a dependant spouse of her
marriage to Husband as that term is defined in
N.C. Gen. Stat. § 50-16.2A(2).
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149. Considering all the facts and
circumstances of this case, including the
factors set out in N.C. Gen. Stat. § 50-16.2A,
the resources of Wife are not adequate to meet
her reasonable needs for support.
(Emphasis supplied.) The court also made two findings denominated
153 which detail the reasonable attorneys' fees plaintiff incurred
regarding the alimony portion of the litigation. These findingsare sufficient to support the court's award of attorneys' fees. We
overrule this assignment of error.
[24] Defendant also contends the court erred in failing to
distribute the property in kind, in ordering a distributive award,
and in failing to give him credit for an interim distribution to
plaintiff. N.C. Gen. Stat. § 50-20 states, in pertinent part:
(e) Subject to the presumption of subsection
(c) of this section that an equal division is
equitable, it shall be presumed in every
action that an in-kind distribution of marital
or divisible property is equitable. This
presumption may be rebutted by the greater
weight of the evidence, or by evidence that
the property is a closely held business entity
or is otherwise not susceptible of division
in-kind. In any action in which the
presumption is rebutted, the court in lieu of
in-kind distribution shall provide for a
distributive award in order to achieve equity
between the parties. The court may provide
for a distributive award to facilitate,
effectuate or supplement a distribution of
marital or divisible property. The court may
provide that any distributive award payable
over a period of time be secured by a lien on
specific property.
N.C. Gen. Stat. § 50-20(e) (2003). [I]n equitable distribution
cases, if the trial court determines that the presumption of an
in-kind distribution has been rebutted, it must make findings of
fact and conclusions of law in support of that determination.
Urciolo v. Urciolo, 166 N.C. App. 504, 507, 601 S.E.2d 905, 908
(2004). Here, the distributive award was necessary in order to
preserve SEI and distribute it to defendant in its entirety.
However, the court failed to make the required findings that
defendant had sufficient liquid assets from which to pay the
distributive award. Although defendant may in fact be able to paythe distributive award, defendant's evidence is sufficient to raise
the question of where defendant will obtain the funds to fulfill
this obligation. Id. (quoting Embler v. Embler, 159 N.C. App.
186, 188, 582 S.E.2d 628, 630 (2003)). We reverse the trial court
on this assignment of error, and remand for additional findings of
fact on whether defendant has sufficient liquid assets to pay the
distributive award to plaintiff, consistent with this opinion.
Affirmed in part, reversed in part, vacated in part and
remanded.
Judges HUNTER and BRYANT concur.
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