Myers v. Myers ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1210
Filed: 7 January 2020
Mecklenburg County, No. 15 CVD 20688
James B. Myers, Jr., Plaintiff,
v.
Charlotte K. Myers, Defendant.
Appeal by defendant from order entered 4 April 2018 by Judge Jena P. Culler
in District Court, Mecklenburg County. Heard in the Court of Appeals 22 May 2019.
James, McElroy & Diehl, P.A., by Christopher T. Hood, Jonathan D. Feit and
Haley E. White, for plaintiff-appellee.
Hamilton Stephens Steele + Martin, PLLC, by Amy E. Simpson, for defendant-
appellant.
STROUD, Judge.
Defendant-Wife appeals from the trial court’s Equitable Distribution
Judgment and Alimony Order. Wife argues the trial court erred by excluding her
expert witness’s testimony regarding potential tax consequences of an alimony
award, by failing to make sufficient findings to support the amount of prospective
alimony awarded, and by failing to award retroactive alimony. Because the trial
court erred in its legal determination that North Carolina General Statute § 1A-1,
Rule 26(b)(4)(a)(1) required exclusion of Wife’s expert witness, the trial court failed
to exercise its discretion to decide whether to admit her testimony and we remand for
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further consideration. Because the trial court did not make sufficient findings to
support the amount of alimony awarded or explain why it denied Wife’s claim for
retroactive alimony, we reverse and remand the order as to the amount of the
prospective alimony and as to the denial of retroactive alimony.
I. Background
Husband and Wife were married in 1994 and separated on 26 July 2014. Two
children were born to the marriage, in 2005 and 2007. After the first child was born,
Wife stopped working outside the home to care for the children or worked only part-
time, and Husband was the primary wage earner. On 6 November 2015, Husband
filed a complaint with claims for child custody, child support, equitable distribution,
and absolute divorce. On 21 January 2016, Wife filed her answer and counterclaims
for child custody, child support, post-separation support, alimony, equitable
distribution, and attorney fees. On 2 March 2016, the trial court entered a judgment
of absolute divorce, reserving all other pending claims. On 22 March 2016, Husband
filed his affirmative defenses and reply, alleging marital misconduct by Wife as a
defense to alimony. On 23 January 2017, with leave of court, Wife filed her amended
answer and counterclaims, adding allegations of marital misconduct by Husband.
The parties engaged in discovery regarding all pending claims.
About a week before trial on the equitable distribution and alimony claims, the
parties entered a Consent Order regarding permanent child custody and child
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support. Under the Consent Order, Husband was required to pay child support of
$1,700.00 per month, starting on 1 September 2017, and 75% of the children’s
uninsured medical expenses and certain extracurricular activities. The Consent
Order did not address how child support was calculated and did not mention
retroactive or past prospective child support.
The trial court held a hearing on equitable distribution and alimony on 13 and
14 September 2017 and entered its order on these claims on 4 April 2018. The trial
court granted an unequal distribution of the marital property, granting Wife 52% of
the net marital estate. In making the unequal distribution, the trial court specifically
considered several factors under North Carolina General Statute § 50-20(c), including
that Husband’s income “greatly exceeded that of” Wife during the marriage and his
“career growth potential is also far greater than” hers; Husband’s higher expectations
of pension or retirement benefits; Wife’s contributions as a homemaker and primary
parent; and Wife’s support for Husband in advancing his career. Neither party
challenges the equitable distribution provisions of the order on appeal.
On the alimony claim, the trial court made extensive findings of fact
addressing Husband’s allegations of marital misconduct by Wife early in their
marriage but determined that he was aware of the incident and condoned it.
Although Wife presented evidence regarding allegations of illicit sexual misconduct
by Husband in support of her alimony claim, the trial court made no findings on this
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issue. The trial court also made detailed findings of fact regarding the parties’
incomes and expenses and required Husband to make monthly alimony payments of
$1,200.00. We will address the trial court’s findings regarding alimony in more detail
below. Wife timely appealed from the trial court’s order.
II. Exclusion of Expert Testimony
A. Standard of Review
Wife’s first issue arises from the trial court’s exclusion of testimony of her
expert witness based upon her failure to disclose the identity of the witness
sufficiently in advance of trial. As a general rule, we review the trial court’s rulings
regarding discovery for abuse of discretion. See Miller v. Forsyth Mem’l Hosp., Inc.,
174 N.C. App. 619, 620, 625 S.E.2d 115, 116 (2005) (“It is well established that orders
regarding discovery matters are within the discretion of the trial court and will not
be upset on appeal absent a showing of abuse of that discretion. In addition, the
appellant must show not only that the trial court erred, but that prejudice resulted
from that error. This Court will not presume prejudice.” (citations and quotation
marks omitted)). “An abuse of discretion is a decision manifestly unsupported by
reason or one so arbitrary that it could not have been the result of a reasoned
decision.” Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). However,
if the trial court makes a discretionary ruling based upon a misapprehension of the
applicable law, this is also an abuse of discretion. See State v. Rhodes, 366 N.C. 532,
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536, 743 S.E.2d 37, 39 (2013) (“[A]n abuse-of-discretion standard does not mean a
mistake of law is beyond appellate correction. A [trial] court by definition abuses its
discretion when it makes an error of law.” (alterations in original) (quoting Koon v.
United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047) (1996))). And if the trial court’s
ruling depends upon interpretation of a statute, we review the ruling de novo. Moore
v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012) (“[W]hen a trial court’s
determination relies on statutory interpretation, our review is de novo because those
matters of statutory interpretation necessarily present questions of law.”). Where
the language of a statute is clear, we need not construe the statute and must simply
apply the plain meaning of the statute. See Burgess v. Your House of Raleigh, 326
N.C. 205, 209, 388 S.E.2d 134, 136 (1990). If the statute is ambiguous or unclear, we
must consider the purpose of the statute and intent of the legislature as expressed in
the statute.
When the plain language of a statute proves unrevealing,
a court may look to other indicia of legislative will,
including: the purposes appearing from the statute taken
as a whole, the phraseology, the words ordinary or
technical, the law as it prevailed before the statute, the
mischief to be remedied, the remedy, the end to be
accomplished, statutes in pari materia, the preamble, the
title, and other like means. The intent of the General
Assembly may also be gleaned from legislative history.
Likewise, later statutory amendments provide useful
evidence of the legislative intent guiding the prior version
of the statute. Statutory provisions must be read in
context: Parts of the same statute dealing with the same
subject matter must be considered and interpreted as a
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whole. Statutes dealing with the same subject matter must
be construed in pari materia, as together constituting one
law, and harmonized to give effect to each.
Insulation Sys., Inc. v. Fisher, 197 N.C. App. 386, 390, 678 S.E.2d 357, 360 (2009)
(quoting In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App.
558, 560, 589 S.E.2d 179, 181 (2003)). Where, as in this case, the Legislature has
recently amended a statute, we also “presume that the legislature acted with full
knowledge of prior and existing law and its construction by the courts.” State ex rel.
Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 763 (1992) (citing Lumber Co. v.
Trading Co., 163 N.C. 314, 317, 79 S.E. 627, 628-29 (1913)).
B. Motion to Exclude Expert Testimony
Wife contends the trial court erred by striking testimony and evidence from
her expert witness, Victoria Coble. Wife attempted to present evidence regarding the
tax consequences of alimony, tax rates, “cash flow issues and hypothetical rates of
return on cash investments.” Wife hired Ms. Coble a week prior to the trial and did
not disclose her as an expert witness until the afternoon of 12 September 2017, the
day before the trial. Husband moved to exclude Ms. Coble’s testimony at the start of
the trial, but the trial court initially denied Husband’s motion, ordered that all of Ms.
Coble’s materials be produced to Husband in the courtroom and directed that she
could be called to testify on the second day of trial. On the second day, Husband
renewed his objection to Ms. Coble’s testimony and made additional arguments to the
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trial court based upon the 2015 amendments to Rule 26 of the North Carolina Rules
of Civil Procedure, including a blog post on the issue published by Professor Ann
Anderson of the University of North Carolina School of Government (hereinafter
School of Government).
Although the parties had engaged in discovery, Husband had done no discovery
requesting disclosure of expert witnesses. There was no discovery conference or
pretrial conference addressing evidence or witnesses in the alimony portion of the
case; the only pretrial order addressed the equitable distribution claim, and that
order did not mention potential witnesses, including any expert witnesses. Wife
argued that under North Carolina General Statute § 1A-1, Rule 26(a) and (e),
Husband had not requested her to identify any expert witnesses and she thus had no
duty to supplement any prior responses. In addition, we note that the Mecklenburg
County Local Rules do not require disclosure of expert witnesses and do not require
a pretrial order in an alimony claim. Both parties had timely produced financial
affidavits and income information as required by the Local Rules.
Based upon the blog post, the trial court noted in open court that “Professor
Anderson seem[s] to have a different opinion about how to interpret [Amended Rule
26]” than the trial court had the previous day. The trial court allowed Wife to proffer
Ms. Coble’s testimony in full but took the matter under advisement and contacted
Professor Anderson by email. The trial court later disclosed Professor Anderson’s
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response to the parties and allowed them to respond to this information. Ultimately,
the trial court changed its ruling and determined Wife was required to disclose the
identity of the expert witness under North Carolina General Statute § 1A-1, Rule
26(b)(4)(a)(1) in advance of trial, even with no interrogatories or other discovery by
Husband. Although Rule 26(b)(4)(a)(1) did not set a particular time for identification
of experts, the trial court determined Wife had failed to give sufficient or fair notice
as “24 hours in advance would pretty much [be] under anyone’s interpretation, not
reasonably in advance” of the trial and excluded the testimony.
C. Trial Court’s Communication with Disinterested Expert
The ruling in question on appeal depends upon the interpretation of North
Carolina General Statute § 1A-1, Rule 26, and particularly Rule 26(b)(4)(1)(a). Upon
Husband’s request, the trial court considered a blog post by Professor Anderson
published on 4 September 2015; it states in part as follows:
The General Assembly has amended the rule of procedure
in civil cases for discovery of information about another
party’s expert witness. North Rule of Civil Procedure
26(b)(4) has largely been unchanged since 1975. With the
amendments made by House Bill 376, S.L. 2015-153, the
rule updates the methods of disclosing and deposing
experts and implements some explicit work-product-type
protections. The Rule now looks more like the
corresponding provisions in Federal Rule of Civil
Procedure 26 (after that Rule’s own significant round of
changes in 2010). The changes to North Carolina Rule
26(b)(4) apply to actions commenced on or after October 1,
2015. The rule now provides the following:
Expert witness disclosure. A party is now
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required to disclose the identity of an expert
witness that it may use at trial (that is, a
witness that may be used to “present evidence
under Rule 702, Rule 703, or Rule 705 of the
North Carolina Rules of Evidence”). It
appears that the other party is no longer
required to first submit formal interrogatories
requesting the disclosure, but, as discussed
below, that party has the option of doing so.
Written report provision. If the expert is
one “retained or specifically employed to
provide expert testimony in the case or one
whose duties as the party’s employee
regularly involve giving expert testimony,”
the disclosing party has the option of
submitting a written report prepared by the
expert that includes: a complete statement of
the witness’s opinions and the bases and
reasons for them; facts the witness considered
in forming the opinions; exhibits that will be
used to summarize or support them; the
witness’s qualifications and a list of certain
publications; certain prior expert testimony
by the witness; and a statement of the expert’s
compensation. (This report is required under
the Federal rule.) In the absence of this
report, the other party may discover through
interrogatories the subject matter of an
expert’s expected testimony; the substance of
the facts and opinions to which the expert is
expected to testify; and a summary of the
grounds for each opinion.
Time frames for disclosure. The rule sets
default time frames for submitting written
reports of experts or interrogatory responses:
90 days before trial or, for rebuttals, 30 days
after the opposing party’s disclosure. These
requirements may—and surely in many cases
will be—altered by stipulation or court order.
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Ann M. Anderson, “North Carolina’s Expert Witness Discovery Rule – Changes and
Clarifications,” School of Gov’t (4 Sept. 2015), https://civil.sog.unc.edu/north-
carolinas-expert-witness-discovery-rule-changes-and-clarifications/.
This Court observes that the School of Government provides continuing
education for many public officials in North Carolina, including District Court judges,
Superior Court judges, the Court of Appeals, and the Supreme Court, as well as many
other local and state elected and appointed officials. As noted on the School of
Government’s website,
As the largest university-based local government training,
advisory, and research organization in the United States,
the School of Government offers up to 200 courses,
webinars, and specialized conferences for more than 12,000
public officials each year.
Faculty members respond to thousands of phone calls and
e-mail messages each year on routine and urgent matters
and also engage in long-term advising projects for local
governing boards, legislative committees, and statewide
commissions.
In addition, faculty members annually publish
approximately 50 books, manuals, reports, articles,
bulletins, and other print and online content related to
state and local government. Each day that the General
Assembly is in session, the School produces Daily Bulletin
Online, which reports on the day’s activities for members
of the legislature and others who need to follow the course
of legislation.
School of Government, https://www.sog.unc.edu/about/mission-and-history (last
visited 5 Dec. 2019).
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Although a trial judge must always carefully consider any communications
with a disinterested expert regarding a question arising in a trial, the trial court fully
advised the parties of the communication in open court and gave them an opportunity
to review the information and respond to it. This procedure is not required by any
statute or rule and is not possible or practicable in every situation. The North
Carolina Code of Judicial Conduct allows judges to consult “a disinterested expert on
the law applicable to a proceeding before the judge,” but it does not set out any
parameters for the consultation:
A judge should accord to every person who is legally
interested in a proceeding, or the person’s lawyer, full right
to be heard according to law, and, except as authorized by
law, neither knowingly initiate nor knowingly consider ex
parte or other communications concerning a pending
proceeding. A judge, however, may obtain the advice of a
disinterested expert on the law applicable to a proceeding
before the judge.
North Carolina Code of Judicial Conduct Canon 3(A)(4).1 Here, the trial court’s
disclosure of the communication to the parties eliminated any possibility of confusion
or unfairness to the parties and provided a clear basis for appellate review, since the
communication is addressed in the transcript.
1In contrast, regarding consultation with a disinterested expert, the American Bar Association Model
Code of Judicial Conduct requires a judge to “give[] advance notice to the parties of the person to be
consulted and the subject matter of the advice to be solicited,” and to “afford[] the parties a reasonable
opportunity to object and respond to the notice and to the advice received.” ABA Model Code of Judicial
Conduct Canon 2, Rule 2.9(A)(2). North Carolina has not adopted the ABA Model Code of Judicial
Conduct and does not require notice to the parties and an opportunity to respond.
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D. Analysis of Rule 26(b)(4)(a)(1):
Under North Carolina General Statute § 1A-1, Rule 26(b), each party is
required to disclose the identity of expert witnesses it may use at trial:
(b) Discovery scope and limits.--Unless otherwise limited
by order of the court in accordance with these rules, the
scope of discovery is as follows:
....
(4) Trial Preparation; Discovery of Experts. — Discovery
of facts known and opinions held by experts, that are
otherwise discoverable under the provisions of
subdivision (1) of this subsection and acquired or
developed in anticipation of litigation or for trial, may
be obtained only as provided by this subdivision:
a. 1. In general. — In order to provide
openness and avoid unfair tactical advantage
in the presentation of a case at trial, a party
must disclose to the other parties in
accordance with this subdivision the identity
of any witness it may use at trial to present
evidence under Rule 702, Rule 703, or Rule
705 of the North Carolina Rules of Evidence.
N.C. Gen. Stat. § 1A-1, Rule 26(b) (2017).
This subsection of Rule 26 was substantially revised in an amendment adopted
in 2015.2 Before the amendment, it read:
1. A party may through interrogatories require any other
party to identify each person whom the other party expects
to call as an expert witness at trial, to state the subject
matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds
for each opinion.
2The amended rule was effective on 1 October 2015. Husband filed his complaint on 6 November
2015.
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2. Upon motion, the court may order further discovery by
other means, subject to such restrictions as to scope and
such provisions, pursuant to sub-subdivision (b)(4)b. of this
rule, concerning fees and expenses as the court may deem
appropriate.
N.C. Gen. Stat. § 1A-1, Rule 26(b)(4)(a) (2013) (emphasis added).
Thus, before the 2015 Amendment, Rule 26(b)(4)(a)(1) provided that a party
“may through interrogatories” require an opposing party to disclose expert witnesses3
expected to testify at trial. Id. The 2015 Amendment to this subsection removed the
language regarding interrogatories and states instead that a party “must disclose”
expert witnesses.4 See N.C. Gen. Stat. § 1A-1, Rule 26(b)(4)(a)(1) (2017).
As Professor Anderson’s blog post correctly noted, subsection (b)(4)(a)(1) which
requires disclosure is now more similar to Federal Rule of Civil Procedure 26. In
addition, other amendments to Rule 26 adopted at the same time also made North
Carolina’s Rule 26 more similar to its federal counterpart. But since North Carolina
has not adopted many of the other related provisions of the Federal Rules, the
similarity is somewhat superficial. Regarding the 2015 amendments to Rule 26,
Shuford’s North Carolina Civil Practice and Procedure notes that North Carolina
3Throughout this opinion, we will use the term “expert witness” to refer to a witness who may be used
at trial to “present evidence under Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of
Evidence.” N.C. Gen. Stat. § 1A-1, Rule 26(b)(4)(a)(1) (2017).
4 The 2015 Amendment changed other portions of Rule 26 as well, as noted by Professor Anderson’s
blog. The other changes to Rule 26 are not directly relevant to the issue on appeal.
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Rule 26 and Federal Rule 26 both deal “with substantive aspects of discovery,” but
they are
fundamentally different in their respective approaches.
Since 1993, when Federal Rule 26 was substantively
rewritten, the discovery procedures were substantially
changed to establish what amounts, through mandatory
discovery requirements, to standing interrogatories and
requests for disclosure and production. The matter must
be produced no later than 14 days before a scheduled
conference to formulate a joint written discovery plan.
While the North Carolina Rule now lays out the framework
for a discovery plan and conference to be creased, it is not
mandatory unless one of the parties requests to have a
discovery meeting.
Alan D. Woodlief, Jr., Shuford North Carolina Civil Practice and Procedure § 26:28
(2018).
Because the 2015 Amendments to Rule 26 incorporated the concept of required
disclosure of expert witnesses but set no procedure or timing for the disclosure, Rule
26(b(4)(a)(1) is ambiguous. The trial court appreciated this ambiguity, noting, “I
think the rule is clear as mud.” We must therefore review the trial court’s
interpretation of the 2015 Amendment to Rule 26 de novo. See Moore v. Proper, 366
N.C. at 30, 726 S.E.2d at 817.
In conducting de novo review of the 2015 Amendment to Rule 26(b)(4)(a)(1), we
must first “determine whether [the] amendment is clarifying or altering.” Ray v. N.C.
Dep’t of Transp., 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012). An “altering amendment”
is intended to change the substance of the original statute, but a “clarifying
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amendment” is not intended to “change the substance of the law but instead [to give]
further insight into the way in which the legislature intended the law to apply from
its original enactment.” Id. Even if the statutory language is plain, we consider the
title of the act to assist in “ascertaining the intent of the legislature.” Id. at 8, 727
S.E.2d at 681. The Bill which made these amendments is entitled, “An Act Amending
the Rules of Civil Procedure to Modernize Discovery of Expert Witnesses and
Clarifying Expert Witness Costs in Civil Actions.” S.L. 2015-153 (H.B. 376) (original
in all caps). “To determine whether the amendment clarifies the prior law or alters
it requires a careful comparison of the original and amended statutes.” Ray, 366 N.C.
at 10, 727 S.E.2d at 682 (quoting Ferrell v. Dep’t of Transp., 334 N.C. 650, 659, 435
S.E.2d 309, 315 (1993)). Considering the purpose of the amendment—“to modernize
discovery of expert witnesses”—and the comparison of the original and amended
statutes, the 2015 Amendment was an “altering amendment” which was intended to
change the substance of Rule 26(b)(4)(a)(1).5
In seeking to construe Rule 26(b)(4)(a)(1), we have also considered it in the
context of Rule 26 in its entirety and Rule 37, which provides for enforcement and
sanctions for violations of Rule 26. We have also compared North Carolina’s Rule 26
to Federal Rule 26, as the amendments do make North Carolina’s rule somewhat
5This analysis does not apply to the portion of the amendments addressing expert witness costs. That
portion of the rule is not an issue in this case and the title of the bill expressly characterizes those
changes as a “clarifying” amendment.
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more similar to the federal rule. Most relevant to the issue presented here, the 2015
Amendment to North Carolina’s Rule 26 did not incorporate several related
provisions of Federal Rule 26 addressing how and when experts must be disclosed.
Federal Rule 26(a)(1)(C) directs that certain required disclosures be made and sets
out when “initial disclosures” must be provided. See Fed. R. Civ. P. 26(a)(1)(A)
(“Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the
court, a party must, without awaiting a discovery request, provide to the other
parties[.]”). North Carolina’s Rule 26—in contrast to the required initial disclosures
in the Federal rules—still requires the parties to ask for discovery.6 See N.C. Gen.
Stat. § 1A-1, Rule 26(a). In addition, Federal Rule 26(a)(2)(B) also requires the parties
to provide a written report from the expert witnesses identified, while in North
Carolina providing a report is optional. Compare Fed. R. Civ. P. 26(a)(2)(B) with N.C.
Gen. Stat. § 1A-1, Rule 26(b)(4)(a)(2). Federal Rule 26(f) requires, unless exempted,
a conference regarding discovery and a discovery plan. Fed. R. Civ. P. 26(f). The
analogous provisions in North Carolina’s Rules are optional. N.C. Gen. Stat. § 1A-1,
Rule 26(f). Overall, unless the parties have agreed to exchange reports from expert
witnesses, have stipulated to a schedule, or there is a discovery plan or order setting
6 “Discovery methods. — Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written interrogatories; production of
documents or things or permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; and requests for admission.” N.C. Gen. Stat. § 1A-1,
Rule 26(a).
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times for disclosure, North Carolina’s Rule 26(b)(4)(a)(1) puts the parties in the
difficult position of being bound by a vague requirement to disclose expert witnesses
without any particular time or method set for making that disclosure.7
And even assuming Wife violated Rule 26(b)(4)(a)(1), our analysis cannot end
there, as this Court has noted that Rule 37 sanctions “puts the teeth” in the other
substantive rules governing discovery.
The substantive law governing discovery is
contained in N.C.G.S. § 1A-1, Rules 26-36. However, it is
Rule 37 which governs discovery sanctions and which puts
teeth in the other rules. As this Court stated in Green v.
Maness, 69 N.C. App. 292, 299, 316 S.E.2d 917, 922, disc.
review denied, 312 N.C. 622, 323 S.E.2d 922 (1984):
Our courts and the federal courts have held
consistently that the purpose and intent of
[Rule 37] is to prevent a party who has
discoverable information from making
evasive, incomplete, or untimely responses to
requests for discovery . . . . In addition to its
inherent authority to regulate trial
proceedings, the trial court has express
authority under G.S. 1A–1, Rule 37, to impose
sanctions on a party who balks at discovery
requests.
Therefore, although the trial court found that Brown
violated several discovery rules, we must first find a basis
in Rule 37 to support the trial court’s imposition of
sanctions.
Pugh v. Pugh, 113 N.C. App. 375, 378, 438 S.E.2d 214, 216 (1994) (alterations in
7 Rule 26(b)(4)(f) sets a time for disclosure of testifying expert witnesses if the parties have agreed to
“submission of written reports pursuant to sub-sub-subdivision 2. of sub-subdivision a. of this
subdivision” or by interrogatories. N.C. Gen. Stat. § 1A-1, Rule 26(b)(4)(f). The time for disclosure
may also be set by stipulation, discovery plan, or court order. Id.
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original).
The interpretation of Rule 37 as described above has been followed by our
appellate courts for many years. We must presume the Legislature was aware of this
interaction between Rule 26 and Rule 37 when the 2015 amendment to Rule
26(b)(4)(a)(1) was adopted, without any related amendment to Rule 37.
“The legislature’s inactivity in the face of the Court’s
repeated pronouncements” on an issue “can only be
interpreted as acquiescence by, and implicit approval from,
that body.” Such legislative acquiescence is especially
persuasive on issues of statutory interpretation. When the
legislature chooses not to amend a statutory provision that
has received a specific interpretation, we assume
lawmakers are satisfied with that interpretation.
Brown v. Kindred Nursing Centers E., L.L.C., 364 N.C. 76, 83, 692 S.E.2d 87, 91-92
(2010) (citation omitted). Assuming that Wife was required by Rule 26(b)(4)(a)(1) to
disclose Ms. Coble as her expert witness sooner than she did, we will first attempt to
“find a basis in Rule 37 to support the trial court’s imposition of” the sanction of
excluding the expert witness. See Pugh, 113 N.C. App. at 378, 438 S.E.2d at 216. The
answer to this question would be simple under Federal Rule 37, entitled “Failure to
Make Disclosures or to Cooperate in Discovery; Sanctions”:
Failure to Disclose, to Supplement an Earlier Response, or
to Admit.
(1) Failure to Disclose or Supplement. If a party fails to
provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was
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substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c) (emphasis added).
The Advisory Committee Notes to Federal Rule 37 note it was amended in 1993
“to reflect the revision of Rule 26(a), requiring disclosure of matters without a discovery
request.” Fed. R. Civ. P. 37(emphasis added) (1993 Amendment Notes). The revisions
to subdivision (c) provided a “self-executing sanction” for failure to provide disclosures
required under Rule 26:
The revision provides a self-executing sanction for failure
to make a disclosure required by Rule 26(a), without need
for a motion under subdivision (a)(2)(A).
Paragraph (1) prevents a party from using as evidence any
witnesses or information that, without substantial
justification, has not been disclosed as required by Rules
26(a) and 26(e)(1). This automatic sanction provides a
strong inducement for disclosure of material that the
disclosing party would expect to use as evidence, whether
at a trial, at a hearing, or on a motion, such as one under
Rule 56. As disclosure of evidence offered solely for
impeachment purposes is not required under those rules,
this preclusion sanction likewise does not apply to that
evidence.
Limiting the automatic sanction to violations “without
substantial justification,” coupled with the exception for
violations that are “harmless,” is needed to avoid unduly
harsh penalties in a variety of situations: e.g., the
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inadvertent omission from a Rule 26(a)(1)(A) disclosure of
the name of a potential witness known to all parties; the
failure to list as a trial witness a person so listed by another
party; or the lack of knowledge of a pro se litigant of the
requirement to make disclosures. In the latter situation,
however, exclusion would be proper if the requirement for
disclosure had been called to the litigant’s attention by
either the court or another party.
Id.
The answer is not so simple under North Carolina’s Rule 37; it has no “self-
executing sanction” for failure to make a disclosure under Rule 26(b)(4)(a)(1). In fact,
Rule 37 does not address any sort of disclosure other than responses to discovery
requests. See N.C. Gen. Stat. § 1A-1, Rule 37. North Carolina’s Rule 37 is entitled
“Failure to make discovery; sanctions.” Id. As the title accurately implies, it
addresses sanctions only for failure to respond to discovery requests. Id. It does not
address sanctions for failure to disclose the identity of an expert witness under Rule
26(b)(4)(a)(1) in the absence of any discovery request, discovery plan, or court order
requiring disclosure.8 See id. North Carolina General Statute § 1A-1, Rule 37 was
8 “Motion for order compelling discovery. — A party, upon reasonable notice to other parties and all
persons affected thereby, may apply for an order compelling discovery as follows: . . . . (2) Motion. — If
a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation
or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an
interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted
under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit
inspection as requested, the discovering party may move for an order compelling an answer, or a
designation, or an order compelling inspection in accordance with the request. The motion must
include a certification that the movant has in good faith conferred or attempted to confer with the
person or party failing to make the discovery in an effort to secure the information or material without
court action. When taking a deposition on oral examination, the proponent of the question shall
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not amended to accommodate the changes to Rule 26(b)(4)(a)(1) in 2015, and it has
not been amended since 2015.
North Carolina cases interpreting Rule 37 have generally held that a party
seeking sanctions must first demonstrate a violation of a substantive rule of
discovery, based upon Rules 26 through 36, obtain a court order to compel discovery,
and then Rule 37 sanctions may be imposed.9
Generally sanctions under Rule 37 are imposed only for the
failure to comply with a court order. Rule 37(d), however,
expressly contemplates a limited number of circumstances
where a court order is not required before sanctions can be
imposed.
Pugh, 113 N.C. App. at 379, 438 S.E.2d at 217 (citation omitted). Therefore, even
assuming Wife did not timely identify Ms. Coble as an expert witness under Rule
26(b)(4)(a)(1), North Carolina’s Rule 37 provides no specific authority for sanctions
since Husband never propounded any discovery on this issue and did not obtain a
court order requiring Wife to disclose anything.
Recognizing the absence of authority for sanctions for a violation of rule
26(b)(4)(a)(1) under North Carolina’s Rule 37, Husband argues that the “trial court
complete the examination on all other matters before the examination is adjourned, in order to apply
for an order. If the motion is based upon an objection to production of electronically stored information
from sources the objecting party identified as not reasonably accessible because of undue burden or
cost, the objecting party has the burden of showing that the basis for the objection exists.” N.C. Gen.
Stat. § 1A-1, Rule 37(a) (emphasis added).
9None of the prior cases interpreting Rule 37 sanctions in this context were decided after or based
upon the 2015 disclosure provision of Rule 26(b), but they are still binding precedent as to the
application of Rule 37 sanctions.
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properly exercised its inherent authority by granting [Husband’s] motion and
excluding Ms. Coble’s expert testimony as a sanction for [Wife] violating the expert
disclosure mandate of Amended Rule 26.” Inherent authority has been defined as the
court’s power
to do only those things which are reasonably necessary for
the administration of justice within the scope of their
jurisdiction. Inherent powers are limited to those powers
which are essential to the existence of the court and
necessary to the orderly and efficient exercise of its
jurisdiction.
Matter of Transp. of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 559 (1991)
(citations and emphasis omitted).
In the context of discovery, prior cases indicate that the exercise of a trial
court’s inherent authority to impose sanctions for failure to comply with discovery
rules first requires a violation of a particular rule—usually an intentional or repeated
violation—or some behavior by counsel or a party which shows disrespect or defiance
of the trial court’s authority. See generally Pugh, 113 N.C. App. at 379, 438 S.E.2d at
217. Upon reviewing the cases cited by Husband to support the trial court’s inherent
authority to impose sanctions for abuse of discovery and other cases discussing a trial
court’s inherent authority in the context of discovery, we have been unable to find
any instance of a sanction imposed based only upon inherent authority, without a
clear and repeated failure of the party sanctioned to comply with a substantive rule
of discovery. For example, Husband cites to Cloer v. Smith, where the Plaintiff
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repeatedly refused with no valid legal basis to answer deposition questions. 132 N.C.
App. 569, 512 S.E.2d 779 (1999). This Court upheld the trial court’s imposition of
sanctions for discovery violations based upon Rule 30(c) and Rule 37; it also noted
that “[t]he trial court also retains inherent authority to impose sanctions for discovery
abuses beyond those enumerated in Rule 37.” Id. at 573, 512 S.E.2d at 782. Husband
also cites to Telegraph Co. v. Griffin, where the trial court held the plaintiff in
contempt and sanctioned plaintiff for its repeated failure to respond to interrogatories
and violation of an order compelling the plaintiff to respond. 39 N.C. App. 721, 251
S.E.2d 885 (1979). Although this Court noted generally that “Rule 37 allowing the
trial court to impose sanctions is flexible, and a ‘broad discretion must be given to the
trial judge with regard to sanctions[,]’” the holding was based upon the plaintiff’s
repeated failure to respond to interrogatories under the authority granted by Rule
37, not inherent authority alone. See id. at 727, 251 S.E.2d at 888. But all of these
cases were decided prior to the 2015 amendments to Rule 26, and since Rule 37 does
not address failure to disclose expert witnesses without a discovery request, enforcing
the requirement of Rule 26(b)(4)(a)(1) is “reasonably necessary for the administration
of justice within the scope of [the trial court’s] jurisdiction,” and thus it is within the
inherent authority of the trial court to impose a sanction. See Matter of Transp. of
Juveniles, 102 N.C. App. at 808, 403 S.E.2d at 559.
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Here, on the first day of trial, the trial court initially ruled that Wife’s expert
witness would be permitted to testify because Husband had never asked Wife to
identify any expert witnesses in written discovery or her deposition. Referring to
Rule 26(b)(4) “in its entirety” and subdivision (b)(4)(a)(1), the trial court initially
denied Husband’s motion to exclude the testimony:
Reading those in accordance with each other must
disclose in accordance with this subdivision the identity of
a witness tells me that they have to provide the answer and
the interrogatories if they’re asked.
They weren’t asked. Reading it as a whole, I don’t
think you can complain if you never asked.
On the second day of trial, after communication with Professor Anderson,
additional argument by the parties, and further consideration of the meaning of the
2015 Amendment to Rule 26(b)(4)(a)(1), the trial court determined that the 2015
Amendment limited the trial court’s discretion to allow Wife’s expert testimony and
required its exclusion.10 The trial court therefore revised its ruling and excluded Ms.
Coble’s testimony.
On appeal, both parties argue the trial court had the discretion to either allow
or exclude testimony by Ms. Coble. Both Wife’s and Husband’s arguments present
10 Husband argued, “The legislature has told us that Rule 26(a)(4), (a)(1), in particular has been
amended, such that it now requires, with no discretion, when it says, ‘In order to provide openness and
avoid unfair tactical advantage in the presentation of a case at trial, a party must disclose to the other
parties in accordance with this subdivision, the identity of any witness it may use at trial to present
evidence under Rule 702, 703 or 705 of the North Carolina 3 Rules of Evidence.’” (Emphasis added.)
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factors the trial court may consider in exercising its discretion to exclude the expert
testimony or to allow it. Wife argues the trial court abused this discretion, and
Husband argues the trial court properly exercised its discretion. But examination of
the transcript and the trial court’s stated basis for its initial ruling to allow the
testimony and later decision to exclude it demonstrates that the trial court’s ultimate
ruling was not a discretionary ruling. Instead, the trial court determined as a matter
of law it did not have the discretion to allow Ms. Coble’s testimony because Wife had
not identified the expert prior to trial under Rule 26(b)(4)(a)(1), even with no
discovery request for identification of expert witnesses. The trial court stated its
concern that Rule 26(b)(4)(a)(1) lacked a time frame for disclosure but based upon
interpretations of Federal Rule 26 determined the expert witness testimony must be
excluded.11
Since North Carolina General Statute § 1A-1, Rule 26(b)(4)(a)(1) does not
include a timeframe for voluntary disclosure and the North Carolina Rules of Civil
Procedure do not include the other related rule provisions which give Federal Rule
26(a)(2)(D) clear time requirements and the Federal Rule 37 provisions which give it
“teeth,” North Carolina’s Rule 26(b)(4)(a)(1) leaves the matter of a party’s compliance
and any sanction or remedy for noncompliance within the trial court’s inherent
11Based upon her communication with Professor Anderson, the trial court noted, “this Federal Rule’s
interpretation has been that the interrogatories are not required.”
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authority and discretion.12 The guiding purpose of disclosure in Rule 26(b)(4)(a)(1) is
“to provide openness and avoid unfair tactical advantage in the presentation of a case
at trial[.]” N.C. Gen. Stat. § 1A-1, Rule 26(b)(4)(a)(1). Thus, the trial court must
make a discretionary determination of whether Wife’s failure to disclose the expert
sufficiently in advance of the trial gave her an “unfair tactical advantage” at trial or
defeated the purpose of “providing openness” as contemplated by Rule 26(b). Since
Rule 26 does not set a particular time or method for disclosure, the trial court must
make this discretionary determination based upon the particular circumstances.
Since Rule 37 does not address sanctions for failure to disclose, the trial court has
inherent authority to grant a remedy for the failure to disclose, which may include
exclusion of the testimony or other remedies or sanctions as appropriate to the
circumstances. Here, the trial court’s interpretation of Rule 26(b)(4)(a)(1) as
requiring exclusion of Ms. Coble’s testimony was in error. Essentially, the trial court
misapprehended the law by determining that it did not have the discretion to allow
Ms. Coble’s testimony, as demonstrated by the change in its ruling on the issue.13
The trial court’s failure to exercise its discretion was an abuse of discretion. See Hines
12 Although Federal Rule 37 has a “self-executing” sanction for failure to disclose, it also allows the
trial judge some discretion, since “the [non-disclosing] party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1) (emphasis added). The trial court also has discretion
to impose sanctions other than exclusion of the testimony. Id.
13 On the first day of trial, the trial court exercised its discretion to deny Husband’s motion but also
took into consideration the lack of relevant discovery requests, a discovery plan, and a pretrial order.
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v. Wal-Mart Stores E., L.P., 191 N.C. App. 390, 393, 663 S.E.2d 337, 339 (2008) (“A
discretionary ruling made under a misapprehension of the law, may constitute an
abuse of discretion.”).
Upon de novo review of Rule 26(b)(4)(a)(1), we hold the Rule does require
advance disclosure of expert witnesses who will testify at trial, even without a
discovery request, discovery plan, or court order. The trial court had inherent
authority to impose a sanction for failure to disclose sufficiently in advance of trial.
The trial court also has discretion to allow or to exclude Ms. Coble’s evidence or to
impose another sanction for the failure to disclose, but the trial court failed to exercise
this discretion and determined the testimony must be excluded based upon Rule
26(b)(4)(a)(1). We therefore reverse the trial court’s ruling as to the admissibility of
Ms. Coble’s testimony and remand for reconsideration. On remand, the trial court
should exercise its discretion either to allow or exclude Ms. Coble’s testimony (or to
impose some other sanction) upon consideration of whether the expert testimony
gives Wife an “unfair tactical advantage” based upon the factors each party has
argued on appeal in support of this discretionary decision and any other factors it
deems appropriate.
III. Consideration of Factors Under North Carolina General Statute
§ 50-16.3A(b)
A. Standard of Review
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“To support the trial court’s award of alimony . . . the trial court’s findings must
be sufficiently specific to allow the reviewing court to determine if they are supported
by competent evidence and support the trial court’s award.” Wise v. Wise, ___ N.C.
App. ___, ___, 826 S.E.2d 788, 792 (2019). We review the trial court’s determination
of the amount of alimony for abuse of discretion.” Hill v. Hill, ___ N.C. App. ___, ___,
821 S.E.2d 210, 224 (2018).
B. Analysis
Wife argues the trial court erred by failing to consider each of the 16 factors
under North Carolina General Statute § 50-16.3A(b) for which evidence was
presented in determining the amount of the alimony award.
The term “alimony” is defined as “an order for
payment of the support and maintenance of a spouse or
former spouse.” In determining the amount of alimony, the
trial court “shall consider all relevant factors,” including
the sixteen (16) factors set forth in N.C. Gen. Stat. §
50-16.3A(b). “In the absence of such findings, appellate
courts cannot appropriately determine whether the order
of the trial court is adequately supported by competent
evidence, and therefore such an order must be vacated and
the case remanded for necessary findings.”
The factors set forth in N.C. Gen. Stat. § 50-16.3A
are as follows:
(1) The marital misconduct of either of the
spouses. Nothing herein shall prevent a court
from considering incidents of post marital
misconduct as corroborating evidence
supporting other evidence that marital
misconduct occurred during the marriage and
prior to date of separation;
(2) The relative earnings and earning
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Opinion of the Court
capacities of the spouses;
(3) The ages and the physical, mental, and
emotional conditions of the spouses;
(4) 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 others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the
education, training, or increased earning
power of the other spouse;
(7) The extent to which the earning power,
expenses, or financial obligations of a spouse
will be affected by reason of serving as the
custodian of a minor child;
(8) The standard of living of the spouses
established during the marriage;
(9) The relative education of the spouses and
the time necessary to acquire sufficient
education or training to enable the spouse
seeking alimony to find employment to meet
his or her reasonable economic needs;
(10) The relative assets and liabilities of the
spouses and the relative debt service
requirements of the spouses, including legal
obligations of support;
(11) The property brought to the marriage by
either spouse;
(12) The contribution of a spouse as
homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax
ramifications of the alimony award;
(15) Any other factor relating to the economic
circumstances of the parties that the court
finds to be just and proper.
(16) The fact that income received by either
party was previously considered by the court
in determining the value of a marital or
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Opinion of the Court
divisible asset in an equitable distribution of
the parties' marital or divisible property.
Collins v. Collins, 243 N.C. App. 696, 707-09, 778 S.E.2d 854, 861 (2015) (citations
and brackets omitted) (quoting N.C. Gen. Stat. 50-16.3A (2013)).
“The requirement for detailed findings is thus not a mere
formality or an empty ritual; it must be done.” “Although
the trial judge must follow the requirements of this section
in determining the amount of permanent alimony to be
awarded, the trial judge’s determination of the proper
amount is within his sound discretion and his
determination will not be disturbed on appeal absent a
clear abuse of that discretion.”
Lamb v. Lamb, 103 N.C. App. 541, 545, 406 S.E.2d 622, 624 (1991) (citation omitted).
Wife contends that the trial court failed to make findings on these factors for
which evidence was presented: (1) marital misconduct of Husband; (2) the tax
consequences of the alimony award, and (3) the “standard of living of the spouses
established during the marriage.”
(1) Marital Misconduct of Either Spouse
As to marital misconduct, Wife notes that the trial court did make findings of
fact addressing her misconduct, a part of Husband’s defense to her alimony claim,
but did not address her contentions of marital misconduct by Husband. Husband
contended Wife had committed marital misconduct early in their marriage. The trial
court made findings regarding this evidence and determined Husband had known
about the misconduct and condoned it. Wife presented evidence regarding Husband’s
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marital misconduct during the marriage, but the trial court’s findings do not address
this evidence at all. It is possible the trial court determined that even if Husband
committed marital misconduct as Wife alleged, the trial court determined it would
not change Wife’s entitlement to alimony or the amount awarded, but evidence was
presented on this factor, so the findings should have addressed it.
(2) Federal, State, and Local Tax Ramifications of the Alimony Award
As to the tax consequences of the alimony award, the trial court is required to
make findings on a factor only if evidence is presented on that factor. Wife sought to
present evidence on this factor by Ms. Coble’s expert testimony, but the trial court
excluded this evidence for the reasons discussed above. Since we have determined
the trial court erred by failing to exercise its discretion and excluding Ms. Coble’s
testimony based upon a misapprehension of the law, on remand the trial court must
determine whether, in its discretion, it will consider Ms. Coble’s evidence. If so, the
trial court’s findings on remand should address the evidence on this factor.14
(3) The Standard of Living of the Spouses Established During the
Marriage
14 Wife’s brief notes that since the trial, there have been changes in the income tax laws applicable to
alimony. Any discussion of exactly how changes in the tax laws may affect the alimony award is beyond
the scope of this appeal, but on remand the trial court may consider this issue. We also decline to
address the potential relevance of Ms. Coble’s testimony on remand as she discussed financial issues
other than the taxable nature of alimony payment. For example, she testified regarding the tax
ramifications of renting a home as compared to making mortgage payments and the amount of income
Wife might earn from investing funds she received from the sale of the former marital home.
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As to the standard of living during the marriage, Wife contends that she
presented evidence of the “shared family expenses in three different ways: (1) the
amount consistent with the standard of living of the parties while married ($5,138.67
per month); (2) the amount actually being spent by [Wife] at the time of trial
($4,246.27); and (3) the amount [Wife] would need if she purchased a home (which is
consistent with how the parties lived during the marriage) instead of continuing to
rent (as she had been since separation) ($5,015.94).” Wife also presented evidence of
her individual expenses based upon the standard of living during the marriage of
$3,681.00, and the reduced amount she was actually spending at the time of trial,
$3,174.51. She argues the trial court considered only her actual expenses as of the
time of trial but did not consider the other values based upon the accustomed
standard of living during the marriage. She also notes that the trial court found that
Husband’s reasonable expenses included many of types of discretionary expenses
which both parties had enjoyed during the marriage, but, after separation, only
Husband could afford, such as home ownership, entertainment and recreation, meals
out, Christmas and birthday gifts, and home furnishings. Husband also had surplus
funds even after continuing his pattern of saving and investing in retirement assets
established during the marriage, but the trial court did not include savings or
retirement as part of Wife’s reasonable expenses, although the parties had saved for
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retirement during the marriage and she has no retirement plan at her new
employment.
Husband contends that the trial court did not have to accept Wife’s contentions
regarding her reasonable expenses or the standard of living during the marriage. See
Nicks v. Nicks, 241 N.C. App. 487, 501, 774 S.E.2d 365, 376 (2015) (“This Court has
long recognized that the determination of what constitutes the reasonable needs and
expenses of a party in an alimony action is within the discretion of the trial judge,
and he is not required to accept at face value the assertion of living expenses offered
by the litigants themselves.” (brackets and quotation marks omitted) (quoting
Whedon v. Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32 (1982))). He also notes
that the trial court made findings of fact in the equitable distribution portion of the
order regarding the parties’ “comfortable lifestyle;” the 3,700 square foot marital
home which had net sales proceeds of $372,255.00, and the Lexus car Wife drove for
several years. He also notes the distribution of various bank accounts, stock, and
retirement assets, so Wife had the benefit of her portion of those assets—although
Husband also received his portion of those assets. The parties had no marital debt
mentioned in the order.
Our Supreme Court has made it clear that the “accustomed standard of living”
established during the marriage is “more than a level of mere economic survival:”
We think usage of the term accustomed standard of
living of the parties completes the contemplated legislative
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meaning of maintenance and support. The latter phrase
clearly means more than a level of mere economic survival.
Plainly, in our view, it contemplates the economic standard
established by the marital partnership for the family unit
during the years the marital contract was intact. It
anticipates that alimony, to the extent it can possibly do so,
shall sustain that standard of living for the dependent
spouse to which the parties together became accustomed.
For us to hold otherwise would be to completely ignore the
plain language of G.S. 50-16.5 and the need to construe our
alimony statutes in pari materia. This we are unwilling to
do.
Rea v. Rea, ___ N.C. App. ___, ___, 822 S.E.2d 426, 432 (2018) (quoting Williams v.
Williams, 299 N.C. 174, 181, 261 S.E.2d 849, 855 (1980)).
Although the trial court made detailed findings as to the shared family
expenses and reasonable individual expenses for Husband and Wife, these findings
appear to be based upon the evidence of expenses for each party at the time of trial.
Wife contends her actual living expenses after separation were reduced due to her
inability to maintain the same standard of living as established during the marriage
without assistance from Husband. No findings indicate any difference between Wife’s
actual expenses after separation as compared to the accustomed standard of living
during the marriage as reflected in the equitable distribution portion of the order.
The trial court does not have “to accept at face value the assertion of living expenses,”
Nicks, 241 N.C. App. at 501, 774 S.E.2d at 376, but it does have to consider the parties’
accustomed standard of living during the marriage and not just Wife’s actual
expenses at the time of trial. Based upon the findings in the equitable distribution
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portion of the order as to the parties’ “comfortable lifestyle,” large home, luxury
vehicle, and substantial savings and investments during the marriage, it appears
Wife’s standard of living on her own after separation was significantly reduced from
the level established during the marriage. Even the trial court’s findings of some of
the parties’ expenses show the difference between Husband’s standard of living at the
time of trial, which appears to be more similar to the accustomed standard during
the marriage as alleged by Wife, and Wife’s reduced standard. For example, the trial
court found Husband had reasonable expenses for “activities” of $460.20 per month;
Wife’s expense is only $75.00. Husband was allowed $300 per month for “meals out;”
Wife was allowed only $150.00. Husband was allowed $200.00 per month for “home
furnishings;” Wife was allowed only $45.00.15 Husband’s gross monthly income was
$17,780.26; at the time of trial, Wife’s gross income was $4,244.28. Certainly, there
is no requirement that Wife enjoy the same lifestyle as Husband’s current lifestyle,
but the trial court must consider the accustomed standard of living developed during
the marriage in determining Wife’s reasonable need for support.
Wife also notes that Husband was continuing to save and invest for retirement
and contends the parties had a pattern of saving during the marriage. Husband’s
15Husband’s shared family expenses were based upon one-third of the total household expense since
he has remarried and the trial court allocated a portion of the expenses to his wife, although Husband
testified he was paying 100% of the expenses. Wife’s shared family expenses were based upon one-
half of the total household expense. Since Husband’s expenses were one-third of his actual
expenditures, he was actually spending $1380.00 per month on “activities;” $900.00 per month on
meals out; and $600.00 per month on furnishings.
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Opinion of the Court
affidavit showed he was investing $1,458.00 per month during the marriage, and he
was investing $1,372.50 per month at the time of trial. Wife was either unemployed
or worked part-time after the children were born, so their accumulation of retirement
assets during the marriage was based largely upon Husband’s contributions and his
evidence would tend to show the accustomed level of retirement investment during
the marriage. Based upon the equitable distribution findings, the parties
accumulated substantial retirement savings and other investments during the
marriage. Husband was continuing this pattern of savings, but after separation Wife
was unable to do so. The trial court made no findings regarding this monthly expense.
Where the parties have established a pattern of saving for retirement as part
of their accustomed standard of living during the marriage, this expense can be part
of the standard of living and should be considered for purposes of alimony.
This Court recently held in Glass v. Glass, 131 N.C.
App. 784, 789-90, 509 S.E.2d 236, 239 (1998), that an
established pattern of contributing to a retirement or
savings plan may be considered by the trial court in
determining the parties’ accustomed standard of living.
Glass cautioned, however, that a party’s savings should not
be used to “reduce his or her support obligation to the other
by merely increasing his or her deductions for savings
plans,” nor should a spouse be able to “increase an alimony
award by deferring a portion of his or her income to a
savings account,” emphasizing that “the purpose of
alimony is not to allow a party to accumulate savings.”
Then, in Rhew v. Rhew, 138 N.C. App. 467, 531
S.E.2d 471 (2000), (a case which we note, was decided by
this Court after the trial court in the case sub judice had
entered its order denying alimony), we clarified our holding
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Opinion of the Court
in Glass, finding that although the parties’ pattern of
savings may not be determinative of a claim for alimony,
the trial court must at least consider this pattern in
determining the parties’ accustomed standard of living.
Vadala v. Vadala, 145 N.C. App. 478, 481, 550 S.E.2d 536, 539 (2001) (citation
omitted).
We see no indication the trial court considered the parties’ pattern of savings
and investment for retirement as part of their accustomed standard of living during
the marriage. We realize the trial court distributed the marital assets accrued during
the marriage in the equitable distribution provisions of the order, but that
distribution does not negate the need to consider the pattern of savings and
investment as a part of the accustomed standard of living during the marriage for
purposes of alimony.
IV. Basis for Amount of Alimony Awarded
Wife also contends that the trial court findings of fact are not sufficient to
support the award of $1200.00 per month. “To support the trial court’s award of
alimony . . . the trial court’s findings must be sufficiently specific to allow the
reviewing court to determine if they are supported by competent evidence and
support the trial court’s award.” Wise v. Wise, ___ N.C. App. at ___, 826 S.E.2d at
792. Although the amount of alimony is in the trial court’s discretion, based upon the
findings of fact we are simply unable to determine how the trial court arrived at the
amount of alimony of $1,200.00 per month. The trial court found that Wife’s gross
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income was $4,244.28, which is “subject to deduction for federal tax, state tax,
Medicare, and Social Security,” but the trial court did not make a finding as to the
amount of these deductions, although this information was in evidence.16 The trial
court found her total expenses, including shared family expenses and individual
expenses, as $5,565.54. Under the Consent Order, Husband was paying $1,700.00
monthly in child support, but the order does not mention the child support payment
at all. Even based upon the trial court’s findings, it appears that Wife had greater
reasonable needs than $1,200.00 per month, and Husband had the ability to pay
substantially more. And if the trial court considers the standard of living during the
marriage instead of Wife’s reduced standard after separation, her needs may actually
be higher. Based upon the trial court’s findings, this is not a case where the trial
court limited the alimony award because Husband lacked the ability to pay more
alimony, nor was the alimony award reduced based upon any marital fault by Wife.
The only issue was Wife’s reasonable needs based upon the accustomed standard of
living established during the marriage. We must therefore vacate the trial court’ s
order as to the amount of the monthly prospective alimony obligation and remand for
additional findings of fact to address the issues noted and entry of a new order for
prospective alimony. See Collins, 243 N.C. App. at 707, 778 S.E.2d at 861.
V. Retroactive Alimony
16 Even without Ms. Coble’s testimony, the parties’ financial affidavits, pay stubs, and income tax
returns included evidence of tax deductions and net incomes.
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A. Standard of Review
“To support the trial court’s award of alimony . . . the trial court’s findings must
be sufficiently specific to allow the reviewing court to determine if they are supported
by competent evidence and support the trial court’s award.” Wise v. Wise, ___ N.C.
App. at ___, 826 S.E.2d at 792. If the trial court denies alimony, the findings must
also set forth the reasons for the denial. N.C. Gen. Stat. § 50-16.3A(c) (2017) (“The
court shall set forth the reasons for its award or denial of alimony and, if making an
award, the reasons for its amount, duration, and manner of payment. (emphasis
added)).
B. Analysis
Wife last argues that the trial court erred by denying her claim for alimony
retroactive to either the date of separation or the date of filing of the claim for post-
separation support and alimony because the findings do not address the reason for
denial. The order on appeal does not include any findings regarding support Husband
voluntarily paid after separation, either as child support or alimony, although the
evidence showed that he did make house payments until sale of the marital home and
he did pay some other support for the benefit of the children and Wife. The only
finding in the order mentioning past alimony is finding of fact 91:
In its discretion, the Court declines to find that [Husband]
owes any arrears for PSS or alimony and this Order shall
superseded and supplant any prior Order of this Court
regarding spousal support.
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Opinion of the Court
This finding implies there was a prior order for alimony, since the term
“arrears” normally refers to accrued payments owed under an order, and to the extent
Husband failed to pay all sums required under the “prior order,” the trial court did
not award any “arrears.” But the trial court never entered a “prior order” regarding
post-separation support or alimony, nor was there a “prior order” to supersede or
supplant. This finding is thus not supported by the record. The trial court did not
enter an order for child support either, until the Consent Order entered just before
the alimony and equitable distribution trial.
Husband agrees there was no prior order for alimony or child support but
argues that he voluntarily paid “tax-free spousal support, in the absence of a court
order, from the time the parties separated up through the alimony trial.” He argues
that he paid cash support of $1,000 or $1,100 twice each month and paid for groceries
and car insurance as well as the mortgage and other expenses associated with the
marital residence where Wife resided until it was sold in July 2015. After the sale of
the marital residence, Husband contends that he continued to pay “tax-free cash
support” in various amounts. Husband argues that “[o]ne may logically infer” that
since the trial court ordered alimony of $1,200.00 per month, and he had paid more
than that, the trial court did not err in failing to award retroactive alimony. Husband
also argues that Wife did not preserve any claims for retroactive child support or child
support arrears in their Consent Order.
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Opinion of the Court
This Court has held that a dependent spouse may be entitled to alimony from
the date of separation forward:
In construing the prior version of the statute
governing alimony, N.C. Gen. Stat. § 50–16.3 (repealed by
1995 N.C. Sess. Laws ch. 319, § 1, effective 1 October 1995),
this Court held that a dependent spouse may be entitled to
alimony not merely from the date the claim for alimony is
filed but rather from the date of the parties’ separation.
In 1995, the General Assembly “effected a ‘wholesale
revision’ in North Carolina alimony law” by repealing § 50–
16.3 and replacing it with § 50–16.3A. In Brannock, this
Court held that the 1995 changes to the alimony statute
were so extensive that a claim for alimony under the
current statute is “fundamentally different” than a claim
under the prior, now repealed, statute.
Defendant relies on our holding in Brannock to
argue that under the current statute – § 50–16.3A –
alimony may not be awarded “retroactively.” However,
while Brannock does discuss the changes in North Carolina
law regarding alimony, nothing in the opinion references
any intent by the General Assembly to eliminate
retroactive alimony or to abrogate our rulings in Austin
and its progeny.
Smallwood v. Smallwood, 227 N.C. App. 319, 332-33, 742 S.E.2d 814, 823-24 (2013)
(citations and brackets omitted).
Husband is correct there was evidence regarding payments he made after
separation for the benefit of Wife and the children, but that evidence is not as clear
as he contends. He testified that his Exhibit 27 was a chart showing “all the cash
support that I provided since the date of separation.” But in our record, Husband’s
Exhibit 27 is a bank statement; we have been unable to find a chart showing the cash
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Opinion of the Court
support. Husband also testified about a “flash drive [with] all of the backup
supporting documentation used to create this chart,” but our record does not include
a flash drive and does not indicate what documents were on the flash drive.
Even if we assume Husband presented the chart and “backup supporting
documentation” as evidence of the payments, the trial court did not make any findings
regarding support Husband may have paid after the date of separation, either as
child support or alimony, and this Court cannot make findings of fact. See Horton v.
Horton, 12 N.C. App. 526, 529, 183 S.E.2d 794, 797 (1971). We cannot determine that
Husband paid any particular amounts after separation, and we have no way of
determining how much of the sums he paid should be allocated to child support and
how much to alimony, nor can we determine how much he should have paid as
compared to what he actually paid. During much of the time after separation, Wife
was not employed, or not employed full time, and when she did become employed, she
testified that she would incur work-related child care costs. The amounts owed by
Husband for child support alone would have varied over time based upon Wife’s
earnings, or lack thereof, at the time. At the time of trial, she was employed full-time
and thus her ability to support herself and the children was greater than it had been
at any time since separation.
As to Husband’s argument of waiver, at the trial, there was some discussion of
Wife’s retroactive child support claim but no resolution. Near the beginning of the
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Opinion of the Court
trial, Wife’s counsel stated that retroactive child support was also an issue to be
resolved at the trial, and the trial court noted that it believed the Consent Order had
entirely resolved the child support claim. But the Consent Order specifically resolves
only permanent child custody and permanent prospective child support, effective
from 1 September 2017 forward, in the amount of $1,700.00 per month. The Consent
Order does not mention retroactive child support or waive any claim for retroactive
child support. Wife’s counsel argued that she could still pursue back child support
since the Consent Order did not address anything prior to 1 September 2017. The
trial court stated, “I don’t know that there’s an issue to take up--- . . . based on---[.]”
Unfortunately, the trial court was interrupted and the discussion moved on to
another topic. The question was never resolved, at least in our record.
Later in the trial, Husband argued that Wife’s need for both retroactive child
support and alimony was decreased after the marital home was sold and Wife
received her portion of the proceeds since she could have invested the proceeds in the
stock market and earned substantial returns from the investment. Husband even
asked the trial court to take judicial notice of her potential returns from investing in
stock market, which the trial court very appropriately declined to do.17
17Rule 201 of the North Carolina Rules of Evidence provides that “[a] judicially noticed fact must be
one not subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201(b).
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During arguments at the close of the trial, Husband noted that the Consent
Order on child support had set support based upon the child support guidelines, but
that there was no need to consider work-related day care because Husband was
available to care for the children since he works mostly from home. Wife testified
that she would need day care while working. Wife also noted that under the Consent
Order, Husband would have more custodial time than he had since the parties’
separation and the prospective child support was set based upon the new custodial
schedule. In any event, we cannot determine any amounts or expenses the Consent
Order as to child support was based upon because it has no findings of fact or
explanation of how support was calculated. In fact, the trial court also noted that
under the Child Support Guidelines, based upon the parties’ incomes, “it doesn’t
calculate to $1700.00,” the amount of child support in the Consent Order. The
Consent Order does not include any findings of fact to explain how the child support
was calculated. The order states, “The parties have waived the necessity of the Court
making additional findings of fact and/or conclusions of law in support of the order
except as set forth below.” There are no findings of the parties’ incomes or expenses
in the Consent Order and no indication that the Guidelines were actually used to set
the amount of $1,700.00 per month.18 In any event, the issues before us on appeal
18The order does provide for modification of the child support based upon the Guidelines when
Husband has an obligation to support only one child.
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Opinion of the Court
are not based upon the child support claim; the issue on appeal is the denial of Wife’s
claim for retroactive alimony, and the Consent Order surely did not waive that.
The trial court did not make sufficient findings to explain why it denied Wife’s
claim for retroactive alimony. Based upon the evidence, it appears Husband
voluntarily paid Wife after their separation, but the amounts varied over time, and
he had obligations for both child support and post-separation support. If he
voluntarily paid sufficient amounts to meet both of these obligations, the trial court
could deny Wife’s claim for retroactive alimony, but the trial court did not make any
findings of fact or conclusions of law to support denial of Wife’s claim, as required by
North Carolina General Statute § 50-16.3A(c).19 The order does not “set forth the
reasons for its . . . denial of alimony” from the period after the date of separation
forward. N.C. Gen. Stat. § 50-16.3A(c). We must therefore vacate and remand for
the trial court to make findings of fact and conclusions of law regarding Wife’s
entitlement to retroactive alimony and if the sums already paid by Husband were not
sufficient to meet both his child support and alimony obligations, to determine how
much retroactive support is due to Wife.
VI. Conclusion
We reverse the trial court’s decision to exclude Wife’s expert testimony and
remand for reconsideration of whether to exclude Ms. Coble’s proffered testimony and
19We express no opinion on the issue of retroactive child support other than to note it appears to be a
pending claim and is not resolved in either the Consent Order or the order on appeal.
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Opinion of the Court
evidence. We also reverse and remand the 4 April 2018 order as to the amount of the
prospective alimony and as to the denial of retroactive alimony. The portions of the
order regarding Equitable Distribution were not a subject of Wife’s appeal and thus
those portions of the order stand. On remand, the trial court shall make additional
findings of fact and conclusions of law to address the issues noted above. At the
request of either party, the trial court shall allow the parties to present additional
evidence and argument limited to the issues to be addressed on remand. If neither
party requests additional hearing, the trial court may in its discretion either receive
additional evidence and argument or may make its findings and conclusions and
enter a new order regarding retroactive and prospective alimony based upon the
current record.
REVERSED IN PART AND REMANDED.
Judges HAMPSON and BROOK concur.
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