An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1064
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
ANGELIA K. SIDDLE,
Plaintiff,
v. Currituck County
No. 11 CVD 45
WILLIAM L. SIDDLE,
Defendant.
Appeal by defendant from order entered 17 April 2013 by
Judge Amber Davis in Currituck County District Court. Heard in
the Court of Appeals 17 February 2014.
THE TWIFORD LAW FIRM, P.C., by Edward A. O’Neal, for
plaintiff.
GREGORY E. WILLS, P.C., by Gregory E. Wills, for defendant.
ELMORE, Judge.
Defendant William L. Siddle appeals from an order granting
plaintiff Angela K. Siddle’s claims for alimony and attorney’s
fees. On appeal, defendant argues that the trial court erred
by failing to properly value his future needs and by failing to
consider plaintiff’s receipt of the vested retirement pension
funds when calculating the alimony award. In addition,
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defendant contends that plaintiff had sufficient means to defray
the costs of litigation, and, therefore, the trial court erred
in awarding her attorney’s fees. After careful consideration of
the challenges to the trial court’s 13 April 2013 order, we
affirm.
I. Relevant Background
Plaintiff and defendant were married on 21 November 1981
and lived together as husband and wife until their date of
separation on 20 January 2011. There were two children born of
the marriage, both of whom are now of legal age. Defendant
enlisted in the United States Coast Guard in 1981. He served on
active duty for twenty years, and his Coast Guard pay was the
primary source of income for the family. Plaintiff worked
intermittently throughout defendant’s early Coast Guard career.
However, in 2001 plaintiff began working full-time as a clerk
for the Currituck County Register of Deeds. Defendant retired
from the Coast Guard on 6 January 2004 and subsequently accepted
a position at the Paxton Company, where he has remained employed
as a sales manager. The parties began receiving retirement
funds from defendant’s vested Coast Guard pension plan (the
pension plan) in February 2004.
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On 27 January 2011, plaintiff filed a complaint in
Currituck County District Court for post-separation support,
alimony, equitable distribution, interim distribution of marital
property, and attorney’s fees. Thereafter, the parties entered
into a consent order for post-separation support on 6 September
2011 and an equitable distribution consent judgment on 26
September 2012. By the terms of these orders, defendant agreed
to pay plaintiff $500.00 per month in post-separation support,
and the parties divided the marital assets equally. Each
received approximately $45,000.00 in net proceeds from the sale
of the marital home and $38,000.00 in tax deferred IRA/401k
retirement accounts in their separate names. In addition, the
pension plan was divided equally. Plaintiff elected to have her
one-half (1/2) share reduced by 6.5 percent in order to defer
the costs of her participation in the Coast Guard’s Survivor
Benefit Plan (“SBP”). The SBP is a military program whereby a
service member’s spouse can elect to continue receiving a one-
half share of the pension after the service member’s death by
reducing the monthly pension benefit by a fixed amount. The net
effect is that plaintiff receives approximately the same vested
retirement benefit as defendant, reduced only by the cost of an
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insurance plan designed to protect her interest in the event
defendant pre-deceases her.
Plaintiff’s remaining claims for alimony and attorney’s
fees were heard before Judge Amber Davis on 13 February 2013.
At the hearing, plaintiff testified that the parties separated
because of acts of domestic violence that defendant committed
against plaintiff. The parties’ children each testified to
defendant’s repeated acts of domestic violence against plaintiff
throughout the duration of the parties’ marriage. The trial
court received into evidence plaintiff’s Affidavit of Financial
Standing and Needs, which accounted for her future or projected
expenses based on her former standard of living. Plaintiff’s
testimony at the hearing corroborated her affidavit. For
example, plaintiff testified that she was presently living in a
single-wide trailer which rented for $400.00 per month,
including water and electricity. However, she estimated that
the cost to rent a home comparable to that in which she lived
prior to the date of separation would cost $1,100.00 per month,
which is the sum reflected in plaintiff’s financial affidavit.
Additionally, plaintiff testified that, although she did not
presently have a car payment, she would need a new vehicle
because hers had 140,000 miles and needed maintenance. In her
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financial affidavit, she accounted for a $400.00 per month
automobile payment. Relying on plaintiff’s financial affidavit
and her testimony, the trial court found: Plaintiff received
approximately $2,400.00 per month in disposable income from her
salary and her share of the retirement pension, and her
reasonable needs totaled $3,815.00 per month. Thus, plaintiff
was left with a shortfall of $1,415.00 per month to meet her
reasonable needs.
Defendant executed an Affidavit of Financial Standing and
Needs based on his actual expenses, which reflected a $650.00
per month rent payment and no car payment. However, he later
amended the affidavit to account for his future or projected
expenses based on his former standard of living. The amended
affidavit included a $1,300.00 per month housing payment and a
$400.00 per month car payment. Defendant testified that his
current housing situation was subpar compared to his former
standard of living. He also testified that his current vehicle
had 206,000 miles and was “unreliable.”
The trial court found that defendant’s future expenses were
not credible, and thus it relied on defendant’s actual expenses
to calculate his disposable income. In its order, the trial
court found that defendant’s gross income, including bonuses,
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was $5,660.00 per month and that his reasonable needs totaled
approximately $3,350.00, leaving $2,310.00 in disposable income.
Based on the foregoing, the trial court determined that
defendant was the supporting spouse and plaintiff was the
dependent spouse. It awarded plaintiff $1,700.00 per month in
permanent alimony and $4,500.00 in attorney’s fees. Defendant
now appeals.
II. Analysis
Defendant argues that the trial court erred in relying on
his actual, not future, expenses to calculate his alimony
obligation. Specifically, defendant contends that, because the
trial court accepted plaintiff’s future needs as reasonable, it
was obligated to find that his were similarly reasonable. We
disagree.
“The court shall award alimony to the dependent spouse upon
a finding that one spouse is a dependent spouse, that the other
spouse is a supporting spouse, and that an award of alimony is
equitable after considering all relevant factors[.]” N.C. Gen.
Stat. § 50-16.3A. Subpart (b) of the statute enumerates sixteen
factors for the trial court to consider in determining the
amount and duration of an award of alimony. “The trial court
shall make a specific finding of fact on each of the factors in
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subsection (b) of this section if evidence is offered on that
factor.” N.C. Gen. Stat. § 50-16.3A(c). “The amount to be
awarded is a question of fairness to the parties, and, so long
as the court has properly taken into consideration the factors
enumerated by statute, the award will not be disturbed absent an
abuse of discretion.” Gardner v. Gardner, 40 N.C. App. 334,
340, 252 S.E.2d 867, 871 (1979).
On appeal, defendant does not challenge plaintiff’s future
expenses as being excessive or unreasonable. Further, he does
not allege as error that the trial court neglected to consider
the relevant factors enumerated in N.C. Gen. Stat. § 50-
16.3A(b). Instead, defendant challenges Finding #32:
“Defendant’s [future] needs are speculative and do not reflect
his actual expenses over the expenses set out in his Financial
Affidavit. The Court does not find that his “future needs” are
credible[.]” The crux of defendant’s argument is that, in light
of fact that the trial court found plaintiff’s future needs to
be reasonable, it cannot alternatively find that defendant’s
future needs are speculative given that both parties financial
affidavits were based on an “identical budget.” Defendant
avers: “It logically follows that what was deemed appropriate
for her must also be appropriate for him.”
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Defendant’s argument goes only to the weight and
credibility of the evidence. It is well settled that “it is
within a trial court’s discretion to determine the weight and
credibility that should be given to all evidence that is
presented during trial.” Phelps v. Phelps, 337 N.C. 344, 357,
446 S.E.2d 17, 25 (1994). “The trial court must itself
determine what pertinent facts are actually established by the
evidence before it, and it is not for an appellate court to
determine de novo the weight and credibility to be given to
evidence disclosed by the record on appeal.” Id. (quotation and
citation omitted). Here, the trial court made relevant findings
of fact on each of the pertinent statutory factors under N.C.
Gen. Stat. § 50-16.3A(b)(1-16), none of which require a uniform
application. Because there is no evidence that the trial court
abused its discretion in finding that defendant’s future needs
were not credible, defendant’s argument is overruled.
B. Pension Income
Defendant next argues that the trial court erred in
awarding plaintiff permanent alimony without taking into
consideration the fact that plaintiff was entitled to half of
his pension income. We disagree.
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In determining the amount and duration of alimony, the
trial court must account for “[t]he fact that income received by
either party was previously considered by the court in
determining the value of a marital or divisible asset in an
equitable distribution of the parties’ marital or divisible
property.” N.C. Gen. Stat. § 50-16.3A(b)(16).
The trial court’s order reflects the following findings of
fact in respect to the pension:
24. The Consent Order for Equitable
Distribution divided the defendant’s United
States Coast Guard retirement income with
the Plaintiff receiving 43.5 percent of the
retirement and Defendant receiving 56.5
percent of the retirement. The [p]laintiff
selected to reduce her retirement income by
six and one-half percent to pay for the
costs of SBP benefits so that she will
continue to receive benefits after
[d]efendant’s death.
25. Since June 1, 2012, the [p]laintiff has
received approximately $680.00 to $700.00
per month representing her marital share of
the [d]efendant’s Coast Guard Retirement.
Both parties will continue to receive their
share of the Coast Guard Retirement plus any
cost of living adjustments for the duration
of the parties’ lifetime.
26. Plaintiff receives approximately
$2,400.00 per month in disposable income
from her employment and her shares of the
Coast Guard Retirement benefits to meet her
needs and expenses.
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On appeal, defendant admits that Findings #24 and #25
reference the Coast Guard pension, but he contends that this is
insufficient to satisfy N.C. Gen. Stat. § 50-16.3A(b)(16).
Specifically, defendant takes issue with Finding #24 because it
erroneously reports an unequal division of the pension funds.
He also contends that the trial court erred in failing to
account for the effect that plaintiff’s entitlement to the
pension income had on the duration of the alimony award.
In calculating plaintiff’s monthly disposable income, the
trial court relied on the sum of $686.44 as reported in
plaintiff’s financial affidavit, not the percentages set forth
in Finding #24. Further, in Finding #16, the trial court
recognizes that the pension was divided equally: “Plaintiff was
entitled to receive . . . one-half share of the Coast Guard
Pension[.]” Accordingly, any error as to the distribution of
the pension funds in Finding #24 is inconsequential. Moreover,
N.C. Gen. Stat. § 50-16.3A(b)(16) does not mandate that the
trial court find how plaintiff’s receipt of pension income
impacted the duration of its alimony award. Pursuant to N.C.
Gen. Stat. § 50-16.3A(c), the trial court need only “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
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payment.” In Finding #46, the trial court sufficiently
explained its reasoning for awarding plaintiff permanent
alimony:
46. The award of permanent alimony to the
[p]laintiff should be for an indefinite
period of time as her income is not likely
to increase significantly because of her
employment history and limited education.
The [p]laintiff will need the alimony
awarded to her for an indefinite period to
allow her to maintain a decent standard of
living which will be a standard of living
that is less than she enjoyed during the
parties’ marriage.
The record reflects that the trial court properly
considered plaintiff’s receipt of the pension income. We see no
evidence that the trial court abused its discretion in
calculating the duration and amount of the alimony award.
Accordingly, defendant’s argument is overruled.
C. Attorney’s Fees
Lastly, defendant argues that the trial court erred in
awarding plaintiff $4,500.00 in attorney’s fees. We disagree.
Generally, “an analysis for attorney’s fees requires a two-part
determination: entitlement and amount.” Barrett v. Barrett, 140
N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000). However, here
defendant does not challenge the amount of fees awarded.
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Accordingly, our focus is whether plaintiff is entitled to an
award of attorney’s fees.
When a dependent spouse is entitled to alimony pursuant to
N.C. Gen. Stat. § 50–16.3A, “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.” N.C. Gen. Stat. § 50–16.4 (2011). In order to
establish that a spouse is entitled to attorney’s fees, he or
she must be “(1) the dependent spouse, (2) entitled to the
underlying relief demanded (e.g., alimony and/or child support),
and (3) without sufficient means to defray the costs of
litigation.” Barrett at 369, 374, 536 S.E.2d at 646 (citation
omitted). “The satisfaction of these three requirements, is a
question of law, fully reviewable on appeal.” Id. (citation
omitted). Generally, the dependent spouse has insufficient
means to defray the costs of litigation if he or she is unable
as litigant to meet the supporting spouse as litigant on
substantially even terms. Theokas v. Theokas, 97 N.C. App. 626,
631, 389 S.E.2d 278, 281 (1990). “Once a spouse is entitled to
attorney’s fees, our focus then shifts to the amount of fees
awarded. The amount awarded will not be overturned on appeal
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absent an abuse of discretion.” Barrett at 375, 536 S.E.2d at
647.
In its 13 April 2013 order, the trial court partially
granted plaintiff’s claims for attorney’s fees in the amount of
$4,500.00, finding: 1) plaintiff incurred $7,899.00 in
attorney’s fees to litigate her claims for post-separation
support and permanent alimony; 2) the fees charged by
plaintiff’s attorney were reasonable given counsel’s skill and
experience; 3) plaintiff lacked “sufficient means upon which to
live during the prosecution of her action and to defray her
necessary legal expenses from her re-occurring income[;]” and 4)
plaintiff had insufficient means to defray the cost and expense
of the suit “unless she were to deplete her estate by spending
the funds which she received from the sale of the former marital
residence.”
In the instant case, plaintiff is clearly the dependent
spouse entitled to the underlying relief demanded (alimony).
Thus, our focus hinges on whether plaintiff had sufficient funds
to defray the costs of litigation. “With regard to this
determination, a court should generally focus on the disposable
income and estate of just that spouse, although a comparison of
the two spouses’ estates may sometimes be appropriate.” Id. at
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374, 536 S.E.2d at 646 (citation omitted). Having reviewed the
trial court’s findings, we find them to be sufficient to form a
basis for determining a reasonable award of attorney’s fees.
Prior to the award of permanent alimony, plaintiff received
$2,400.00 per month in disposable income from her employment and
pension funds plus $500.00 per month in post-separation support.
Based on the trial court’s determination that plaintiff’s
reasonable needs totaled $3,815.00 per month, plaintiff was left
with a deficiency of $915.00 per month during the separation
period. This alone supports the trial court’s finding that
plaintiff had insufficient means upon which to live and
simultaneously defray the costs of litigation. Alternatively,
after paying plaintiff post-separation support and satisfying
his reasonable needs of $3,350.00, defendant had a surplus of
$1,810.00 per month during the separation period.
Defendant nonetheless points to the $8,000.00 cash
plaintiff took from the parties’ joint checking account and the
$10,000.00 she received in post-separation support out of which
her litigation costs could be paid. Defendant contends that
plaintiff had “at least Eighteen Thousand Dollars in liquid
funds with which to pay her attorney, irrespective of the
proceeds from the sale of the marital home.” However, there is
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no evidence before us that plaintiff has access to this money
from which she could defray her litigation expenses, as opposed
to having used it to pay her monthly expenses. Further, after
paying plaintiff $1,700.00 per month in alimony and satisfying
his reasonable needs, defendant will have $610.00 per month in
excess of his reasonable needs. Alternatively, upon receipt of
the alimony payment, plaintiff will have an excess of only
$285.00 per month to satisfy her reasonable needs. On the basis
of this evidence, we conclude that plaintiff was not able as
litigant to meet defendant as litigant on substantially even
terms. Accordingly, the trial court did not err in finding that
plaintiff had insufficient means to defray the cost of
litigation. The trial court’s award of $4,500.00 in attorney’s
fees is reasonable and supported by the evidence.
III. Conclusion
In sum, the trial court did not err in calculating
defendant’s reasonable needs based on his actual expenses as set
forth in his financial affidavit. There is no requirement that
the trial court uniformly calculate each parties’ disposable
income. Moreover, the record reflects that the trial court
considered plaintiff’s receipt of the pension funds in awarding
her permanent alimony. Finally, the trial court did not err in
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finding that plaintiff had insufficient means to defray the cost
of litigation and in awarding plaintiff $4,500.00 in attorney’s
fees. Accordingly, we affirm.
Affirmed.
Chief Judge MARTIN and HUNTER, Robert N., concur.
Report per Rule 30(e).