Appeal by defendant from judgment and order entered 3 March
2005 by Judge Kevin M. Bridges in District Court, Union County.
Heard in the Court of Appeals 7 June 2006.
James, McElroy & Diehl, P.A., by G. Russell Kornegay, III and
Preston O. Odom, III, for plaintiff-appellee.
Horack, Talley, Pharr & Lowndes, PA, by Kary C. Watson, for
Tommy Lampros Megremis (plaintiff) and June Faye Wright
Megremis (defendant) (collectively the parties) were married 25
October 1981. At the time of the relevant proceedings in this
action, plaintiff was a medical doctor trained in obstetrics and
gynecology. Defendant did not complete her undergraduate
education, and had not worked outside of the marital home since
approximately 1986, after the birth of the parties' first child.
Plaintiff filed a complaint 8 May 2003 seeking child custody,
equitable distribution, and injunctive relief. Defendant filed an
answer 5 August 2003 and asserted counterclaims for child custody,
child support, postseparation support, alimony, and equitable
distribution. The relevant facts and procedural history of the
matter are set forth below.
The trial court conducted an equitable distribution pretrial
conference 22 March 2004. By the resulting pretrial order filed 8
April 2004, the parties were ordered to participate in a mediated
settlement conference. The parties complied with the court-ordered
settlement conference, but were unable to resolve any pending
issues. A trial on the remaining issues was scheduled for 1 June
By motion dated 30 April 2004, defendant requested a
continuance of the trial from the 1 June 2004 calendar.
Defendant's motion was based upon her belief that additional
appraisals were necessary, as well as her need to evaluate
additional discovery. Defendant's motion was denied by order filed10 May 2004. In the same order, defendant was awarded
postseparation support and temporary child support. Through no
action of the parties, the case was calendared for 7 June 2004.
Defendant filed a second motion to continue. Defendant's second
motion to continue was based on allegations that plaintiff had
failed to comply with discovery. Plaintiff conceded this failure
in his response. Defendant's second motion to continue was denied.
Prior to the scheduled 7 June 2004 court date, plaintiff's
counsel met with defendant's attorney of record, Robert P. Hanner,
II, (Hanner) and attempted to negotiate a settlement on the
remaining issues. Plaintiff's counsel drafted proposed settlement
documents, which defendant refused to execute.
Defendant filed a third motion to continue on 8 June 2004, on
the ground that her treating physician did not believe she was
mentally stable enough to proceed with a trial. The trial court
did not rule upon defendant's third motion because it did not reach
the case during its 7 June 2004 term of court. The case was then
scheduled for trial on 7 September 2004. On that date, the trial
court heard two matters: (1) defendant's fourth motion to continue,
dated 16 August 2004, and (2) Hanner's motion to withdraw as
defendant's counsel. In support of her motion to continue,
defendant presented testimony from her psychiatrist, who opined
that defendant's "situational depression and anxiety" made it
difficult for defendant to be prepared for trial on that date. In
support of his motion to withdraw, Hanner stated he could no longer
properly represent defendant because of a "very difficult timecommunicating" and "a lack of understanding." Hanner stated
defendant was not able to comprehend his explanations of
"relatively basic principles" and opined that defendant had "lost
confidence in [his] ability to represent her." By order filed 22
September 2004, the trial court granted Hanner's motion to withdraw
and, "in the interest of justice," allowed defendant's motion to
continue, and set the trial for all issues for 8 November 2004.
The trial court ordered that defendant was not entitled to any
additional continuances or postponements.
The trial court also ordered the parties and their counsel to
appear in court on 4 October 2004 to enter into a final pretrial
equitable distribution order (ED pretrial order). Defendant
appeared in court on 4 October 2004 but was unprepared to sign the
ED pretrial order. The trial court allowed defendant additional
time to review and sign the ED pretrial order. After substantial
revisions, defendant executed the ED pretrial order on 8 October
At the commencement of the trial on 8 November 2004, defendant
appeared pro se. Attorney Peter K. Thompson (Thompson) observed
the first two days of the trial. On the third day, he made a
formal appearance as defendant's counsel and represented defendant
throughout the remainder of the trial.
The trial court entered an order 3 March 2005 that, inter
alia, distributed the parties' marital and divisible assets,
sanctioned defendant for willful obstruction and unreasonable delay
of the equitable distribution proceeding, and denied and dismissedwith prejudice defendant's claim for alimony. In the 3 March 2005
order, the trial court concluded the appropriate sanction was for
defendant to pay the amount of plaintiff's attorney's fees that
were caused by defendant's willful delay and obstruction of the
equitable distribution case. The trial court found that amount to
be $27,946.99. The trial court concluded the appropriate method of
payment was for plaintiff to receive a credit against the
distributive award payment that plaintiff was required to pay to
defendant. Defendant appeals.
 The record contains eighteen assignments of error, which
collectively challenge twenty-three findings of fact and eleven
conclusions of law. Defendant brings forward portions or all of
thirteen assignments of error, which we will address as three
issues. To the extent they are not argued in defendant's brief,
defendant's remaining assignments of error are deemed abandoned.
N.C.R. App. P. 28(b)(6). The issues on appeal are whether: (I) the
trial court's imposition of sanctions under N.C. Gen. Stat. § 50-
21(e) violated defendant's right to due process; (II) the trial
court erred in sanctioning defendant under N.C.G.S. § 50-21(e); and
(III) the trial court erred in denying defendant's request for
alimony. For the reasons below, we affirm the trial court's order
in part and reverse in part.
I. Due Process
 Defendant first argues the trial court violated her
constitutionally protected right to due process by imposing
sanctions without adequate notice and opportunity to be heard onthe issue. (Brief p 9) N.C. Gen. Stat. § 50-21(e) (2005) governs
sanctions in equitable distribution proceedings. The statute
(e) Upon motion of either party or upon the
court's own initiative, the court shall impose
an appropriate sanction on a party when the
court finds that:
(1) the party has willfully
obstructed or unreasonably delayed,
or has attempted to obstruct or
unreasonably delay, discovery
proceedings, including failure to
make discovery pursuant to G.S. 1A-
1, Rule 37, or has willfully
obstructed or unreasonably delayed
or attempted to obstruct or
unreasonably delay any pending
equitable distribution proceeding,
(2) the willful obstruction or
unreasonable delay of the
proceedings is or would be
prejudicial to the interests of the
N.C.G.S. § 50-21(e).
"Notice and opportunity to be heard prior to depriving a
person of his property are essential elements of due process of law
which is guaranteed by the Fourteenth Amendment of the United
States Constitution[.]" McDonald's Corp. v. Dwyer
, 338 N.C. 445,
448, 450 S.E.2d 888, 891 (1994). "Whether a party has adequate
notice is a question of law." Trivette v. Trivette
, 162 N.C. App.
55, 58, 590 S.E.2d 298, 302 (2004). "In order to pass
constitutional muster, the person against whom sanctions are to be
imposed must be advised in advance of such charges[.]" Griffin v.
, 348 N.C. 278, 280, 500 S.E.2d 437, 439 (1998). "Moreover,
a party has a due process right to notice both (1) of the fact thatsanctions may be imposed, and (2) the alleged grounds for the
imposition of sanctions." Zaliagiris v. Zaliagiris
, 164 N.C. App.
602, 609, 596 S.E.2d 285, 290 (2004) (citing Griffin
, 348 N.C.
279-80, 500 S.E.2d at 438-39), disc. review denied
, 359 N.C. 643,
617 S.E.2d 662 (2005).
N.C.G.S. § 50-21(e) is silent as to what type of notice is
required under the statute and how far in advance notice must be
given to a party facing sanctions. See
N.C.G.S. § 50-21(e). Under
N.C. Gen. Stat. § 1A-1, Rule 11, a motion requesting sanctions must
be served within the period prescribed by N.C. Gen. Stat. § 1A-1,
Rule 6(d), not later than five days before the hearing on the Rule
11 motion. Taylor v. Taylor Products, Inc.
, 105 N.C. App. 620,
629, 414 S.E.2d 568, 575 (1993) (citing N.C. Gen. Stat. § 1A-1,
Rule 6(d) (1990), overruled on other grounds by Brooks v. Giesey
334 N.C. 303, 318, 432 S.E.2d 339, 347 (1993). N.C.G.S. § 50-21(e)
includes conduct sanctioned under N.C. Gen. Stat. § 1A-1, Rule 37,
as well as a separate, more general, sanctions provision specific
to an equitable distribution proceeding.
Under Rule 37, a trial
court may impose sanctions, including attorney's fees, upon a party
for discovery violations.
N.C. Gen. Stat. § 1A-1, Rule 37(b)
(2005). Our Court has held that a party sanctioned under Rule 37
had ample notice of sanctions where the moving party's written
discovery motion clearly indicated the party was seeking sanctions
under Rule 37. Smitheman v. National Presto Industries
, 109 N.C.
App. 636, 640, 428 S.E.2d 465, 468, disc. review denied
, 334 N.C.
166, 432 S.E.2d 366 (1993)
. Moreover, at a hearing on thediscovery motion, the sanctioned party was given the opportunity to
explain to the trial court any justification for the party's
delinquency in responding to discovery. Id.
at 641, 428 S.E.2d at
468. See also Adair v. Adair
, 62 N.C. App. 493, 496, 303 S.E.2d
190, 192 (applying the five-days' notice requirement of Rule 6(d)
to Rule 37 sanctions, where the trial court entered sanction of
default judgment), disc. review denied
, 309 N.C. 319, 307 S.E.2d
162 (1993). In the present case, plaintiff filed no written motion
seeking sanctions. The trial court did not hold a separate hearing
on the issue of sanctions, but rather addressed sanctions as part
of the larger equitable distribution trial.
Plaintiff contends the issue of defendant's obstruction was
addressed in the ED pretrial order, and that the language of the ED
pretrial order "recite[d] the operative language of N.C.G.S. § 50-
21(e)[.]" However, a review of the record shows that the language
cited by plaintiff appears in the ED pretrial order as a
distributional factor, and not as a grounds for sanctions. As the
ED pretrial order does not specify sanctions or cite the sanctions
statute, we do not find the ED pretrial order sufficiently notified
defendant that she might face sanctions. Therefore we agree with
defendant that plaintiff did not make a written request for
We further agree with defendant that she was not otherwise
notified in advance of trial that she might face sanctions.
Plaintiff contends defendant received notice of sanctions at the 7
September 2004 hearing on Hanner's motion to withdraw anddefendant's motion to continue. However, a review of the
transcript shows that, while plaintiff's counsel did state at the
hearing that defendant's conduct "amount[ed] to an effort to
postpone" the trial further, he did not mention sanctions, the
statute, or any of the operative language of the statute. We find
this insufficient to constitute notice of the fact that sanctions
might be imposed. See Zaliagiris
, 164 N.C. App. at 609, 596 S.E.2d
at 290 (citing Griffin
, 348 N.C. at 279-80, 500 S.E.2d at 438-39).
Defendant concedes that plaintiff's counsel orally addressed
the issue of sanctions during his opening statement at trial. In
his opening statement, plaintiff's counsel forecast evidence of
defendant's conduct that plaintiff contended was "a willful
obstruction and delay of the equitable distribution trial and which
should subject [defendant] to sanctions." Plaintiff asked the
trial court "to consider the delay and obstruction of [defendant]
. . . under [N.C. Gen. Stat. §] 50-21(e)[.]" As noted above, there
was no separate hearing on the issue of sanctions. The trial court
heard evidence on sanctions as part of the larger equitable
Defendant and Thompson took part in the trial, objecting to
plaintiff's evidence on the issue of sanctions and presenting
evidence to rebut plaintiff's assertion of willful obstruction and
unreasonable delay. Plaintiff contends this participation by
defendant shows that defendant received ample notice and
opportunity to be heard. We disagree.
In a proceeding for sanctions under N.C.G.S. § 50-21(e),"[t]he fact that [a] party against whom sanctions are imposed took
part in the hearing 'and did the best [the party] could do without
knowing in advance the sanctions which might be imposed does not
show a proper notice was given.'" Zaliagiris
, 164 N.C. App. at
609, 596 S.E.2d at 290 (quoting Griffin
, 348 N.C. at 280, 500
S.E.2d at 439). Defendant attempts to analogize to the facts of
, in which our Court held that the trial court erred in
summarily recasting an assessment of expert witness costs as a
sanction, without notice to the sanctioned party that the party
would be made subject to such a sanction. Zaliagiris
, 164 N.C.
App. at 609-10, 596 S.E.2d at 290-91. Although the facts of the
present case differ slightly from Zaliagiris
, we find that, like
the sanctioned party in Zaliagiris
, defendant in the present case
did not have notice in advance
of the trial that sanctions might be
imposed against her. See id.
at 609, 596 S.E.2d at 290.
Consequently, we conclude the trial court violated defendant's due
process right to proper notice. We reverse the award of sanctions.
at 609-10, 596 S.E.2d at 290-91.
Because we hold that defendant did not have proper notice of
sanctions, we need not address whether, had defendant been given
proper notice, it was permissible under these facts to impose
sanctions under N.C.G.S. § 50-21(e). See Zaliagiris
, 164 N.C. App.
at 609 n.5, 596 S.E.2d at 291 n.5.
 Defendant argues the trial court committed reversibleerror in denying defendant's claim for alimony. Specifically,
defendant argues the trial court erred in (1) failing to consider
plaintiff's earning capacity and (2) determining plaintiff's
reasonable needs and expenses. For the reasons below, we affirm
the portion of the trial court's order denying defendant's claim
"The decision to award alimony is a matter within the trial
[court's] sound discretion and is not reviewable on appeal absent
a manifest abuse of discretion." Alvarez v. Alvarez
, 134 N.C. App.
321, 323, 517 S.E.2d 420, 422 (1999). Under N.C. Gen. Stat. § 50-
16.3A(a) (2005), 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, including those set out in subsection
(b) of this section.
Subsection (b) enumerates sixteen factors, including the relative
earnings and earning capacities of the parties and the relative
needs of the parties. See
N.C. Gen. Stat. § 50-16.3A(b)(2), (13)
Defendant argues the trial court failed to consider
plaintiff's earning capacity as required by N.C.G.S. § 50-
16.3A(b)(2) in making its alimony determination. Ordinarily,
alimony is determined by a party's actual income at the time of the
alimony order. Kowalick v. Kowalick
, 129 N.C. App. 781, 787, 501
S.E.2d 671, 675 (1998) (citing Wachacha v. Wachacha
, 38 N.C. App.
504, 507-08, 248 S.E.2d 375, 377-78 (1978)). It is wellestablished that a trial court may consider a party's earning
capacity only if the trial court finds the party acted in bad
faith. See, e.g., Kowalick
, 129 N.C. App. at 787, 501 S.E.2d at
675 (citing Wachacha
, 38 N.C. App. at 507-08, 248 S.E.2d at
Defendant acknowledges this well-established rule, but
asks our Court to revisit our interpretation of N.C.G.S. § 50-
16.3A(b)(2) requiring that bad faith be demonstrated before
considering earning capacity. Defendant argues our case law
conflicts with the public policy of the State and the language of
N.C.G.S. § 50-16.3A. We are not persuaded by defendant's argument
and decline to revisit the well-established earning capacity rule.
We reiterate our Supreme Court's holding in Conrad v. Conrad
N.C. 412, 418, 113 S.E.2d 912, 916 (1960) that, "[t]o base an
[alimony] award on capacity to earn rather than actual earnings,
there should be a finding based on evidence that [a party] was
failing to exercise [the] capacity to earn because of a disregard
of [the] marital obligation to provide reasonable support" for the
In the present case, the trial court found that "[t]here is no
evidence that [plaintiff] [was] intentionally depressing his income
or in any way acting in bad faith." In support of this ultimate
finding of no bad faith, the trial court found that plaintiff's
reduction in income was attributable to the fact that plaintiff's
patients were not happy with his services and were choosing other
doctors. Defendant concedes this finding is supported by the
evidence presented. However, defendant argues the trial courterred by "ignoring" plaintiff's testimony that his bedside manner
was affected by the stress of the divorce proceedings, a fact
defendant contends weighs against the trial court's ultimate
finding of no bad faith. We are not persuaded by defendant's
argument. It is well settled that "it is within a trial court's
discretion to determine the weight and credibility that should be
given to all evidence that is presented during trial." Phelps v.
, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). "'The trial
court must itself determine what pertinent facts are actually
established by the evidence before it, and it is not for an
appellate court to determine de novo
the weight and credibility to
be given to evidence disclosed by the record on appeal.'" Id.
(quoting Coble v. Coble
, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189
(1980)). Accordingly, we uphold the trial court's determination of
no bad faith on the part of plaintiff, based upon the evidence
presented at trial.
Defendant also argues the trial court erred in finding
plaintiff's reasonable needs and expenses. In determining
entitlement to alimony, the trial court must consider the relative
needs of the parties. N.C.G.S. § 50-16.3A(a),(b)(13). "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]." 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). In the present case, the trial court found plaintiff's
reasonable needs and expenses amounted to $7,108.94 per month. This is the same amount plaintiff reported as his anticipated
expenses in an amended financial affidavit submitted to the trial
court. Given this evidence before the trial court, we perceive no
abuse of the trial court's discretion in determining plaintiff's
reasonable needs and expenses.
Defendant argues an abuse of discretion is evident because of
an inconsistency between the trial court's order of postseparation
support and the alimony order. Defendant's argument on this issue
is without merit. Our Court has held that a trial court's rulings
regarding postseparation support are neither conclusive nor binding
in the alimony context. See Wells v. Wells
, 132 N.C. App. 401,
413, 512 S.E.2d 468, 475 (noting that "the General Assembly
unmistakably signaled its intent that factual determinations by the
trial court at [postseparation support] hearings would not
conclusively resolve those issues nor bind the ultimate trier of
fact thereon"), disc. review denied
, 350 N.C. 599, 537 S.E.2d 495-
Affirmed in part; reversed in part.
Judges ELMORE and STEELMAN concur.
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