McKeown v. Castagno

Shipman & Wright, LLP, by W. Cory Reiss, for plaintiff-appellee.

James W. Lea, III and Paige E. Inman, for defendant-appellant.

GEER, Judge.

Defendant Paul Castagno appeals from orders awarding child support, alimony, and attorney's fees to plaintiff Molly Ann McKeown (formerly Castagno). Defendant primarily argues that the trial court's findings of fact regarding the parties' incomes and expenses are not supported by competent evidence in the record and that the trial court failed to make sufficient findings as to the amount and duration of the alimony award. We agree.

We hold that the trial court's finding regarding defendant's gross income is not supported by the evidence, and, consequently, we reverse and remand both the child support and the alimony orders for recalculation of defendant's gross income. Further, with respect to the alimony order, the trial court's finding regarding plaintiff's expenses is not supported by the evidence, and the order lacks sufficient findings of fact to explain the amount and duration of the alimony award. Finally, because the trial court's order awarding attorney's fees was entered after defendant filed this appeal, the trial court lacked jurisdiction to enter the attorney's fee order, and we must vacate it.

Facts

Plaintiff and defendant were married in Ohio on 16 December 1989. The parties met when defendant was a PhD graduate student at Ohio State University and plaintiff was an undergraduate. Defendant is 15 years older than plaintiff. Shortly after the parties' married, they moved to Alabama where their three sons were born.

Plaintiff served as the primary caretaker for the parties' children. Although she was steadily employed throughout the parties' marriage, she earned substantially less than defendant. Defendant worked as a professor at the University of Alabama, earning tenure in 1994 and full professor status in 2001. In 2001, defendant accepted a position at Ohio University and the family relocated to Ohio. In 2005, the family moved to Wilmington, after defendant was offered a position at the University of North Carolina at Wilmington (“UNCW”). At the time of the hearing, defendant was employed as a tenured professor at UNCW, and plaintiff held a staff position at UNCW as manager of web communications.

The parties separated on 20 February 2009, and, on 26 February 2010, plaintiff filed a complaint seeking child custody and support, post separation support, alimony, absolute divorce, and attorney's fees. On 4 March 2010, defendant filed an answer and counterclaims for child custody, child support, attorney's fees, an interim distribution, and equitable distribution. On 19 April 2010, the trial court entered an Order for Temporary Child Custody, Child Support, and Post Separation Support. The order awarded joint legal custody of the parties' three minor children and ordered defendant to pay post separation support and child support. Plaintiff and defendant were divorced on 21 May 2010.

On 14 December 2010, defendant filed for Chapter 13 bankruptcy. As a result of the bankruptcy filing, the action for alimony and child support was removed from the pending docket and was not heard until 10 July 2013. At the time of the hearing, two of the parties' sons had reached the age of 18. The youngest son lived with plaintiff and turned 13 in August 2013. After the hearing, the trial court entered a child support order on 23 July 2013 and an order on alimony on 26 July 2013. Defendant filed notice of appeal to this Court from those orders on 21 August 2013.

On 12 September 2013, the trial court entered an order awarding attorney's fees to plaintiff. Defendant appealed that order to this Court.

Grounds for Appellate Review

Although the orders from which defendant appeals resolve plaintiff's claims for child support, alimony, and attorney's fees, the record indicates that defendant's claim for equitable distribution is pending. “Since the question whether an appeal is interlocutory presents a jurisdictional issue, this Court has an obligation to address the issue sua sponteregardless whether it is raised by the parties.” Akers v. City of Mount Airy,175 N.C.App. 777, 778, 625 S.E.2d 145, 146 (2006).

“An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. City of Durham,231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). “An interlocutory order may be immediately appealed in only two circumstances: (1) when the trial court, pursuant to N.C.R. Civ. P. 54(b), enters a final judgment as to one or more but fewer than all of the claims or parties and certifies that there is no just reason to delay the appeal; or (2) when the order deprives the appellant of a substantial right that would be lost absent appellate review prior to a final determination on the merits.” Akers,175 N.C.App. at 779, 625 S.E.2d at 146.

Defendant's appeal in this case is interlocutory because his counterclaim for equitable distribution remains pending as a result of his filing for bankruptcy. See 11 U.S.C. § 362(b) (2014) (providing that filing of bankruptcy petition results in automatic stay of equitable distribution proceedings, but does not stay proceedings for alimony and child support). The record indicates that the trial court will not be able to address the equitable distribution claim until defendant is discharged from bankruptcy in 2016.

Since there is no Rule 54(b) certification of any of the orders on appeal, and defendant has made no argument that the orders affect a substantial right that will be lost absent immediate appeal, we must dismiss defendant's appeal as interlocutory. Nevertheless, we recognize that in 2013, the General Assembly expanded the circumstances under which an interlocutory order in a domestic case may be immediately appealed to this Court when it enacted N.C. Gen.Stat. § 50–19.1 (2013). N.C. Gen.Stat. § 50–19.1 provides, in pertinent part:

Notwithstanding any other pending claims filed in the same action, a party may appeal from an order or judgment adjudicating a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if the order or judgment would otherwise be a final order or judgment within the meaning of G.S. 1A–1, Rule 54(b), but for the other pending claims in the same action.

This statute became effective 23 August 2013. 2013 N.C. Sess. Laws ch. 411, § 2. Because defendant filed his notice of appeal of the child support and alimony orders on 21 August 2013, two days prior to the effective date, his appeal was not authorized by N.C. Gen.Stat. § 50–19.1. See Holbert v. Holbert,––– N.C.App. ––––, –––– n.3, 762 S.E.2d 298, 303 n.3 (2014) (holding N.C. Gen.Stat. § 50–19.1 inapplicable in part because appellant noted his appeal from the orders prior to effective date of statute). However, because the alimony order was entered 26 July 2013, defendant could have waited until after N.C. Gen.Stat. § 50–19.1 went into effect on 23 August 2013 and still filed a timely notice of appeal to which the new statute would have applied, making this appeal proper. SeeN.C.R.App. P. 3(c)(1) (providing that notice of appeal is timely when filed “within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period”). Thus, had defendant waited two days to appeal the orders, his appeal would have been authorized by N.C. Gen.Stat. § 50–19.1.

Because defendant's appeal is interlocutory as a result of the bankruptcy stay, which will bar the trial court from entering a final judgment until 2016, and because defendant's appeal would have been authorized by N.C. Gen.Stat. § 50–19.1 had he waited two days to file his notice of appeal, we have elected, in our discretion, to treat defendant's brief as a petition for writ of certiorari and allow it.

Child Support Order

Defendant first argues that the trial court erred in its child support order when it calculated defendant's gross income. This Court reviews the trial court's determination of child support for abuse of discretion. Spicer v. Spicer,168 N.C.App. 283, 287, 607 S.E.2d 678, 682 (2005). In entering a child support order, however, the trial court “must ... make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.” Id.

As our Supreme Court has explained with respect to orders in which a court sits without a jury:

Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence; each link in the chain of reasoning must appear in the order itself. Where there is a gap, it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.

Coble v. Coble,300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). “This Court's review of a trial court's findings of fact is limited to ‘whether there is competent evidence to support the findings of fact, despite the fact that different inferences may be drawn from the evidence.’ “ State ex rel Midgett v. Midgett,199 N.C.App. 202, 206, 680 S.E.2d 876, 879 (2009) (quoting Hodges v. Hodges,147 N.C.App. 478, 482–83, 556 S.E.2d 7, 10 (2001) ).

“ ‘When determining a parent's child support obligation ... a court must determine each parent's gross income. A parent's child support obligation should be based on the parent's actual income at the time the order is made.’ “ Moore v. Onafowora,208 N.C.App. 674, 677, 703 S.E.2d 744, 747 (2010) (quoting Head v. Mosier,197 N.C.App. 328, 335, 677 S.E.2d 191, 197 (2009) ). “ ‘Because the determination of gross income requires the application of fixed rules of law, it is properly denominated a conclusion of law rather than a finding of fact.’ “ Midgett,199 N.C.App. at 206, 680 S.E.2d at 879 (quoting Lawrence v. Tise,107 N.C.App. 140, 145 n.1, 419 S.E.2d 176, 179 n.1 (1992) ). Whether the trial court properly applied the law in calculating gross income is a question we review de novo. See Bakes v. Bakes,194 N.C.App. 303, 311, 669 S.E.2d 891, 897 (2008) (“This finding is actually a conclusion of law, and we review it de novo.”).

Here, the trial court made the following finding on defendant's gross income:

Defendant's current salary as a tenured professor at UNCW is $97,587.00 per year or $8,132.25 per month based upon his current monthly paystubs. Defendant also teaches summer school courses for which he earns approximately $10,000.00 per year. He also receives $1,023.00 per month from his University of Alabama pension which he has been receiving since 2010. In addition, Defendant has earned book royalties totaling $1,181.75 per year last year. Defendant's current gross monthly income is therefore $10,087.06.

Defendant first argues that the trial court's finding that he earns $10,000.00 from teaching summer school is not supported by competent evidence. We disagree. Defendant testified that he earns more money during the summer due to teaching summer school classes, and records from the N.C. Department of Health and Human Services show that defendant's income from UNCW increased in the third quarters of 2011 and 2012—the summer months—by $10,800.00 and $11,855.07, respectively. This evidence supports the trial court's finding as to defendant's income earned from teaching summer classes at UNCW.

Defendant next argues that the trial court should not have included his income either from summer school or from book royalties in its calculation of gross income because such income “is not guaranteed, as summer school classes are subject to cancellation due to an insufficient number of students, and money from book royalties is declining because the books are aging out.” However, the North Carolina Child Support Guidelines define gross income as “a parent's actual gross income from anysource” (emphasis added), and the income defendant earned from book royalties and summer school clearly falls within this definition.

Defendant cites no authority to support his contention that only income that is “guaranteed” in the future should be counted towards gross income. Our case law makes it clear that the relevant time frame for determining a party's income is the time the order is entered. See Moore,208 N.C.App. at 677, 703 S.E.2d at 747. Only in certain circumstances not present here, such as when the court finds that a party has deliberately depressed his income, is a trial court allowed to consider a party's future earning capacity in calculating gross income for purposes of determining the party's child support obligation. Hodges,147 N.C.App. at 484, 556 S.E .2d at 10. Because there is competent evidence to support the trial court's finding that defendant earned income from book royalties and summer school in the year preceding the order, the trial court did not err in including these sources of income in defendant's gross income calculation.

Defendant next argues that the trial court miscalculated defendant's salary at UNCW. The trial court found that “Defendant's current salary as a tenured professor at UNCW is $97,587.00 per year or $8,132.25 per month based upon his current monthly paystubs.” Defendant submitted into evidence six monthly paystubs from January to June 2013—the six months preceding the hearing. The paystubs reflect that defendant's “Regular Monthly Pay” from UNCW is $7,682 .25. The four paystubs from February until May show that defendant received an additional “Supplement Pay” of $450.00 per month for “RESEARCH,” for a monthly total of $8,132.25. In January and June, however, defendant only received his regular monthly pay of $7,682.25. The trial court, by annualizing defendant's monthly pay based upon the months in which he received supplemental pay for research, improperly inflated his annual salary. This was error. See Dodson v. Dodson,190 N.C.App. 412, 417, 660 S.E.2d 93, 97 (2008) (holding trial court incorrectly calculated income by annualizing pay stub that included an annual bonus and thus falsely inflated defendant's income).

The child support guidelines provide that “[w]hen income is received on an irregular, non-recurring, or one-time basis,”—such as the four supplemental payments of $450.00 received by defendant here—“the court may average or pro-rate the income over a specified period of time or require an obligor to pay as child support a percentage of his or her non-recurring income that is equivalent to the percentage of his or her recurring income paid for child support.” Thus, the trial court had two options. One option is to average or prorate the supplemental payment over a specified period of time. Alternatively, the trial court had the option of omitting the supplemental pay in calculating defendant's gross monthly income and ordering defendant to pay a certain percentage, equivalent to the percentage of the total gross income he is ordered to pay, of any supplement payment he earned or earns in the future.

In this case, the trial court did not follow either of these options. We, therefore, reverse the child support award and remand for recalculation of defendant's gross monthly income and consideration of defendant's irregular sources of income in a manner consistent with the guidelines.

Alimony Order

Defendant next challenges the trial court's alimony award. “In awarding alimony, the trial court is required to follow a two-step inquiry: first, the court determines whether a spouse is entitled to alimony, and, then if a spouse is so entitled, the court then determines the amount of alimony to be awarded.” Robinson v. Robinson,210 N.C.App. 319, 326, 707 S.E.2d 785, 791 (2011). Defendant does not dispute that plaintiff is entitled to alimony. On appeal, defendant challenges only the amount and duration of the alimony award.

In determining the amount and duration of an alimony award, a trial court is required to “consider all relevant factors,” including, but not limited to, 16 factors listed in N.C. Gen.Stat. § 50–16.3A(b) (2013). Id.The trial court must “make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.” N.C. Gen.Stat. § 50–16.3A(c). Additionally, when alimony is awarded, the court must set forth “the reasons for its amount, duration, and manner of payment.” Id.

Although the trial court's ultimate determination as to the amount and duration of an alimony award is reviewed by this Court for abuse of discretion, Fitzgerald v. Fitzgerald,161 N.C.App. 414, 420, 588 S.E.2d 517, 522 (2003), this Court cannot determine whether the trial court abused its discretion absent sufficient findings of fact.

“[F]indings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case.”

Id.(quoting Friend–Novorska v. Novorska,143 N.C.App. 387, 395, 545 S.E.2d 788, 794, aff'd per curiam,354 N.C. 564, 556 S.E.2d 294 (2001) ). As stressed by our Supreme Court, “[e]ffective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order's rationale is articulated.” Coble,300 N.C. at 714, 268 S.E.2d at 190. Where the trial court's findings are lacking, “it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.” Id.

Defendant argues that the alimony award should be reversed because the trial court (1) miscalculated defendant's gross income, (2) failed to consider the parties' net incomes, (3) miscalculated plaintiff's expenses, (4) failed to make specific findings regarding all the factors listed in N.C. Gen.Stat. § 50–16.3A(b), (5) failed to make adequate findings regarding its reasoning for the amount and duration of the award, and (6) awarded alimony in an amount and duration that was inequitable to the defendant.

The trial court's finding regarding defendant's gross monthly income is identical to the finding in the child support order: the trial court found that defendant's income from his UNCW salary, summer school, University of Alabama pension, and book royalties amounted to a gross monthly income of $10,087.06. As we have already found, this calculation is not supported by competent evidence in that by determining defendant's base salary from UNCW upon defendant's earnings in a month in which defendant received a non-recurring supplemental payment for research, the trial court falsely inflated defendant's base salary. We must therefore reverse and remand the alimony order for recalculation of defendant's income.

Next, defendant, citing Dodson,argues that the trial court erred by failing to consider the parties' net monthly income. In Dodson,this Court held that the trial court abused its discretion in awarding an alimony amount that, when deducted from defendant's net monthly income, left him with a negative balance. Id.at 417, 660 S.E.2d at 97. This Court reasoned that “neither party should be forced to deplete their assets and be reduced to poverty to maintain the support of the other.” Id.at 419, 660 S.E.2d at 98.

This Court has explained that “[i]n determining a supporting spouse's gross income, the critical issue is the supporting spouse's actual ability to make alimony payments.” Barham v. Barham,127 N.C.App. 20, 27, 487 S.E.2d 774, 779 (1997), aff'd per curiam,347 N.C. 570, 494 S.E.2d 763 (1998). We recognize that using the supporting spouse's net income is a more accurate way to determine the supporting spouse's actual ability to pay. Indeed, our Courts have often looked to net income, rather than gross income, to determine a party's actual ability to pay. See, e.g., Swain v. Swain,179 N.C.App. 795, 799, 635 S.E.2d 504, 507 (2006) (comparing parties' net monthly income to their reasonable expenses to determine whether either party is required to deplete their estate to meet their living expenses); Dodson,190 N.C.App. at 417, 660 S.E.2d at 97 (considering defendants' net monthly income in determining that alimony payments left him with negative cash flow).

Although defendant has not cited, and we have not found, any authority that requiresthe trial court to make a specific finding as to the parties' net income, we note that in certain cases, the failure of the trial court to make a finding on the parties net income may prohibit this Court from determining whether the alimony award causes the supporting spouse to deplete his estate. Cf. Graham v. Graham,77 N.C.App. 422, 425, 335 S.E.2d 210, 212 (1985) (holding findings regarding defendant's monthly gross income, debts, and ability to pay were insufficient to support determination that defendant's failure to pay alimony was willful and remanding for further findings on defendant's net monthly income, other assets, and payment schedule with the IRS).

Nevertheless, even assuming, as defendant asserts, that defendant's net monthly income is insufficient to enable him to pay child support, alimony, and meet his reasonable expenses, that does not necessarily mean that the trial court abused its discretion in entering the alimony award. This Court has recognized that although alimony awards that result in estate depletion for one party or the other are disfavored, they are not prohibited. Swain,179 N.C.App. at 799, 635 S.E.2d at 507. Rather, the overarching concern in alimony determinations is fairness and justice for all the parties. Id.

In Swain,the supporting spouse's net income was insufficient to meet his reasonable expenses and pay the alimony awarded by the trial court. Id.At the same time, however, the alimony award, when added to the dependent spouse's net income, was insufficient to cover the dependent spouse's reasonable expenses. Id.This Court held that “[b]ecause the award requires both parties to deplete their estates to meet their living expenses,” the amount awarded was fair to both parties and the trial court did not abuse its discretion. Id.

Here, because the trial court did not make findings regarding either party's net income, we cannot determine with certainty whether the alimony award causes either party to deplete his or her estate. Although the trial court found that defendant has the ability to make the alimony payment, this finding is based upon defendant's gross income, which we have already determined was inflated. On remand, the trial court should make findings sufficient to address whether the alimony award causes either party to deplete his or her estate and whether the amount awarded is fair to both parties. We note that findings regarding the parties' net incomes would provide a more accurate accounting of plaintiff's needs and defendant's ability to pay.

Defendant next argues that the trial court made insufficient findings regarding plaintiffs' expenses and that “[a]ccepting Plaintiff's affidavit at face value” was error. This Court has held that when calculating the reasonable monthly expenses of a spouse who has custody of a minor child, the expenses attributable to the minor child may not exceed the total child support obligation of the parties as entered in a child support order pursuant to the child support guidelines. Robinson,210 N.C.App. at 332, 707 S .E.2d at 795.

In Robinson,the trial court awarded alimony to the wife in an amount equal to her monthly shortfall of $1,900.00, which it determined by deducting the wife's net income and the husband's child support obligation from the wife's and her minor child's monthly expenses. Id.at 330, 707 S.E.2d at 793. This Court held that it was error to consider the actual expenses of the minor child in calculating the wife's monthly expenses:

As [the husband's] child support obligation was determined under the Guidelines, the trial court erred in making its own calculations, based upon [the wife's] testimony and financial affidavit, regarding [the minor child's] actual expenses and then using that higher calculated total ($1,603.00) to determine [the wife's] monthly shortfall for purposes of calculating what alimony she was owed. Fink [v. Fink],120 N.C.App. [412,] 423, 462 S.E .2d [844,] 853 [ (1995) ]. [The wife] may benefit from having her child care expenses considered in the court's calculation of alimony. N.C. Gen.Stat. § 50–16.3A(b)(7). However, she may not receive the benefit of a finding based in part upon her actualchild support expenditures as she alleges them to be in her affidavit if [the husband] is credited only with his Guideline proportionate share of child support expenses.

Id.at 332, 707 S.E.2d at 794–95. This Court vacated the alimony award and remanded for a proper determination based upon the wife's shortfall after paying only her guideline share of the minor child's expenses. Id.,707 S.E.2d at 795.

Here, the trial court found that plaintiff has reasonable monthly expenses of $5,495.00 per month, but did not indicate how it arrived at this determination. It appears that the trial court relied upon plaintiff's expense affidavit, which showed total monthly expenses of $2,925.00 for plaintiff and $2,570.00 for her minor child. The trial court additionally made a finding that defendant's child support obligation, as established by the guidelines, is $1,018.01. Thus, as in Robinson,plaintiff was apparently given credit for the minor child's actual expenses even though defendant was only credited with the amount established by the guidelines. Pursuant to the child support order, the total child support obligation of both parties is only $1,589.72. Because “ ‘support set consistent with the guidelines is conclusively presumedto be in such amount as to meet the reasonable needs of the child for health, education and maintenance,’ “ Fink,120 N.C.App. at 423, 462 S .E.2d at 853 (quoting Browne v. Browne,101 N.C.App. 617, 624, 400 S.E.2d 736, 740 (1991) ), the portion of plaintiff's total monthly expenses attributable to the minor child may not exceed the amount set by the child support order.

Taken from line 6 of Worksheet A attached to the Child Support Order.

On remand, the trial court should make specific findings regarding how it has calculated plaintiff's monthly expenses, and it may not include the actual expenses of the minor child in excess of the total child support obligation established in the amended child support order.

Defendant next argues that the trial court failed to make a finding as to the parties' standard of living. “The marital standard of living, the eighth factor listed under G.S. 50–16.3A(b), must be used in the court's calculation of expenses.” Bryant v. Bryant,139 N.C.App. 615, 617, 534 S.E.2d 230, 232 (2000). In Beaman v. Beaman,77 N.C.App. 717, 722, 336 S.E.2d 129, 132 (1985), however, this Court held that a specific finding of fact on the parties' marital standard of living was not necessary where the trial court made findings as to the parties' monthly incomes and expenses. Here, as in Beaman,the trial court's findings as to the parties' reasonable expenses shows that the trial court considered their accustomed standard of living.

Furthermore, defendant has failed to point to any evidence in the record regarding the marital standard of living and has failed to articulate how any such evidence would affect the alimony determination in this case. It is well settled that “ ‘the appellant has the burden not only to show error, but also to show that the alleged error was prejudicial and amounted to the denial of some substantial right.’ “ Smallwood v. Smallwood,––– N.C.App. ––––, ––––, 742 S.E.2d 814, 821 (2013) (quoting Brown v. Boney,41 N.C.App. 636, 647, 255 S.E.2d 784, 790 (1979) ).

Defendant also argues that the trial court failed to make a finding regarding a marital debt of $70,000.00 that was discharged in defendant's bankruptcy proceeding. Although there was evidence presented to support this assertion, defendant has failed to show on appeal how relief from a marital debt tips the scales in his favor. Further, we note that the trial court did not make any findings as to the parties' assets or liabilities when entering the alimony order, likely because defendant's equitable distribution claim is stayed pending his discharge in bankruptcy. N.C. Gen.Stat. § 50–16.3A(a) provides that “[t]he claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.” The trial court, therefore, may account for the discharge of marital debts in the equitable distribution order and is free to revisit the alimony award after the equitable distribution claim is settled.

Finally, defendant argues that the trial court failed to make findings regarding its reasoning for the amount and duration of the award. The trial court simply found that “[t]he relative needs of the parties have been considered and the Plaintiff's affidavit supports an award of $1,500.00 in alimony.” It then ordered defendant to make alimony payments “for a period of five years or until the occurrence of a statutory terminating event.”

Pursuant to N.C. Gen.Stat. § 50–16.3A(c), a trial court making an alimony award must set forth “the reasons for its amount, duration, and manner of payment.” Failure to make any findings regarding the reasons for the amount, duration, or manner of payment violates the alimony statute. Fitzgerald,161 N.C.App. at 421, 588 S.E.2d at 522–23. Here, it is unclear why the trial court awarded $1,500.00 to plaintiff. Based on the trial court's findings, plaintiff had a monthly deficit of only $310.32. The trial court did not explain how it determined that $1,500.00 is an equitable alimony award. The order also failed to explain the five-year duration. Although plaintiff suggests that the five-year duration corresponds with when the minor child will reach the age of majority, the trial court did not make a finding to that effect.

The court found plaintiff's gross income to be $4,166.67. When that figure is added to the child support payment of $1,018.01 and the reasonable monthly expenses of $5,495.00 are subtracted, a deficit of $310.32 remains. We note that plaintiff's monthly deficit would be higher if the trial court used her net monthly income.
--------

Accordingly, we remand for further findings of fact on the trial court's reasons for the amount and duration of defendant's alimony obligation. See Cunningham v. Cunningham,171 N.C.App. 550, 564, 615 S.E.2d 675, 685 (2005) (remanding for further findings concerning duration of alimony award); Fitzgerald,161 N.C.App. at 422, 588 S.E.2d at 523 (remanding for further findings of fact to explain trial court's reasoning for duration of alimony award and method of payment); Crocker v. Crocker,190 N.C.App. 165, 172, 660 S.E.2d 212, 217 (2008) (remanding for further findings where trial court did not state any reason for the amount of alimony, its duration, or the manner of payment).

Attorney's Fees

Lastly, defendant argues that the trial court lacked jurisdiction to enter an award of attorney's fees after defendant had filed notice of appeal from the child support and alimony orders. We agree.

This issue is controlled by N.C. Gen.Stat. § 1–294 (2013), which provides that “[w]hen an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.” “While an appeal is not perfected until it is actually docketed in the appellate division, a proper perfection relates back to the time of the giving of the notice of appeal[.]” Swilling v. Swilling,329 N.C. 219, 225, 404 S.E.2d 837, 841 (1991). Thus, a timely notice of appeal divests the trial court of jurisdiction except over a matter “not affected by the judgment appealed from.” N.C. Gen.Stat. § 1–294.

In this case, defendant filed his notice of appeal from the child support and alimony orders on 21 August 2013, and the order for attorney's fees was not entered until 12 September 2013. Therefore, the Court only retained jurisdiction to enter an attorney's fee award if the attorney's fee order is “not affected by the judgment appealed from.” N.C. Gen.Stat. § 1–294. This Court has previously held that “if an award of attorneys' fees is the result of a party's prevailing as to the underlying judgment, then the issue of attorneys' fees cannot be deemed a ‘matter included in the action and not affected by the judgment appealed from,’ N.C. Gen.Stat. § 1–294, and, therefore, the trial court lacks jurisdiction to enter an order awarding attorneys' fees following appeal of the judgment.” Swink v. Weintraub,195 N.C.App. 133, 159, 672 S.E .2d 53, 70 (2009).

In this case, the trial court's attorney's fee award was granted pursuant to both N.C. Gen.Stat. § 50–13.6 (2013) and N.C. Gen.Stat. § 50–16.4 (2013). N.C. Gen.Stat. § 50–16.4 provides:

At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 5016.3A, or postseparation support pursuant to G.S. 50–16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony.

“To recover attorney's fees pursuant to G.S. 50–16.4 in an action for alimony, the spouse must be entitled to the relief demanded[.]” Caldwell v. Caldwell,86 N.C.App. 225, 227, 356 S .E.2d 821, 822 (1987). In other words, “a claim for attorneys' fees under § 50–16.4 is contingent upon the claimant prevailing on the alimony claim.” Lucas v. Lucas,209 N.C.App. 492, 497, 706 S.E.2d 270, 274 (2011). Thus, an attorney's fee award under N.C. Gen.Stat. § 50–16.4 is directly dependent upon whether the alimony award is sustained on appeal. Accordingly, pursuant to the rule articulated in Swink,the trial court lacked jurisdiction to enter an award based on N.C. Gen.Stat. § 50–16.4 after defendant filed notice of appeal as to the alimony order.

The trial court additionally based its award on N.C. Gen.Stat. § 50–13.6, which provides:

In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.

This Court has explained that in proceedings covered by N.C. Gen.Stat. § 50–13.6, “[i]f ... the trial court makes the two required findings regarding good faith and insufficient means, then it is immaterial whether the recipient of the fees was either the movant or the prevailing party.” Wiggins v. Bright,198 N.C.App. 692, 696–97, 679 S.E.2d 874, 877 (2009). Whether plaintiff acted in good faith or had insufficient means to defray the costs of litigation are issues that are independent of and not affected by the underlying child support order. Therefore, we hold that a trial court retains jurisdiction to award attorney's fees pursuant to N.C. Gen.Stat. § 50–13.6 after a party has filed notice of appeal from the underlying child custody or child support order.

In short, the trial court did not have jurisdiction to determine whether plaintiff was entitled to attorney's fees pursuant to N.C. Gen.Stat. § 50–16.4 because such fees were contingent upon the validity of the underlying alimony order, but did retain jurisdiction to determine whether plaintiff was entitled to attorney's fees pursuant to N.C. Gen.Stat. § 50–13.6 because those fees were not affected by the underlying child support order. The alimony and child support proceedings were tried together, however, and the attorney's fee order did not specify which portion of its award it attributed to the litigation of the child support claim and which portion it attributed to the litigation of the alimony claim. We, therefore, vacate the order and remand for entry of a new order.

As this Court suggested in McClure v. Cnty. of Jackson,185 N .C.App. 462, 471, 648 S.E.2d 546, 551–52 (2007), “[w]hen faced with the possibility of an award of attorney's fees, the better practice is for the trial court to defer entry of the written judgment until after a ruling is made on the issue of attorney's fees, and incorporate all of its rulings into a single, written judgment. This will result in only one appeal, from one judgment, incorporating all issues in the case.”

Reversed and remanded in part; vacated in part.

Judges BRYANT and CALABRIA concur.

Report per Rule 30(e).

Opinion

Appeal by defendant from orders entered 23 July 2013, 26 July 2013, and 13 September 2013 by Judge Melinda H. Crouch in New Hanover County District Court. Heard in the Court of Appeals 21 May 2014.

--------

Notes: