Newell v. Newell

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2026
• Docket: 25-614
• Status: Unpublished
• Author: Judge Fred Gore

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-614

Filed 18 March 2026

Mecklenburg County, No. 20CVD006366-590

WAYNE NEWELL, Plaintiff,

v.

ANN CECELIA NEWELL, Defendant.

Appeal by plaintiff from amended order entered 18 September 2024 by Judge

Roy H. Wiggins in Mecklenburg County District Court. Heard in the Court of Appeals

10 February 2026.

Epperson Law Group, PLLC, by Lauren E. R. Watkins, Bailey M. Wiseman, and James L. Epperson, for plaintiff-appellant.

Ann Cecelia Newell, pro se defendant-appellee. No brief filed.

GORE, Judge.

Plaintiff Wayne Newell (“husband”) appeals the amended order entered by the

trial court after initial appeal and remand by this Court.1 Husband argues the trial

court erred in its assignment of the values and dates for paying alimony and

arrearages to defendant. He also argues the trial court erred by failing to give credit

1 See Newell v. Newell, COA23-669, 2024 WL 1629506 (2024) (unpublished). NEWELL V. NEWELL

Opinion of the Court

for the payments made between separation and the post-separation order. Husband

appeals of right pursuant to N.C.G.S. § 7A-27(b)(2). We remand in part and discern

no abuse of discretion in part.

I.

Husband and defendant Ann Cecelia Newell (“wife”) were married in August

1993 and separated for the final time on 26 May 2015. Wife continued to care for and

raise their youngest child of three until he reached the age of majority in December

2019 and graduated high school in May 2020. According to the record, husband

provided money to the wife during the time she raised their minor child,

approximately fifty-four months. Husband filed a complaint for divorce in April 2020.

A Postseparation Support Order was entered in July 2022 awarding support

payments to wife in the amount of $1,029.00 per month.

The alimony hearing occurred on 11 January 2023, and the trial court awarded

the wife with ten years of alimony payments from husband beginning from the date

of separation in May 2015 at a rate of $1,500.00 per month. The trial court also

credited husband with a total of $75,232.00 in arrearage credit based upon a finding

that husband provided $67,000.00 in payments to wife while she raised their

youngest child, and a finding husband had paid $8,232.00 for postseparation support

up to the point of trial. Husband was required to pay $500.00 per month for the

arrearages and an additional one-time lump sum of $10,000.00. The trial court also

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found husband must pay wife’s attorney’s fees in the amount of $150.00 per month

until the set amount was paid in full.

Wife appealed the trial court’s order, and we previously determined the trial

court abused its discretion by deducting $67,000.00 in arrearage credits from

husband’s alimony arrearages.2 We reasoned the trial court failed to keep child

support and alimony separate, and the amount figured was arbitrary based upon the

trial court’s finding.3 We remanded for the trial court to adjust the alimony

arrearage, by adding $67,000.00 to account for the improper deduction, and specified

the modification could be made without further hearings or additional evidence.4

The trial court entered an amended order on 18 September 2024. Within the

order, the trial court removed the finding concerning the money paid to the wife for

fifty-four months, and adjusted the alimony arrearages obligation to $129, 768.00.

Husband timely appealed the amended order.

II.

Our standard of review for a bench trial decision is “whether competent

evidence supports the trial court’s findings of fact and whether its conclusions of law

were proper in light of such facts.” Collins v. Collins, 243 N.C. App. 696, 699 (2015)

(cleaned up). When competent evidence supports the findings of fact, the findings

2 Newell, COA23-669, 2024 WL 1629506 at *4. 3 Id. 4 Newell, COA23-669, 2024 WL 1629506 at *5.

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“are conclusive on appeal, even if there is contrary evidence.” Id. “The trial court’s

determination of the amount of alimony is reviewed for an abuse of discretion.” Id.

at 700. The trial court abuses its discretion when the “decision is manifestly

unsupported by reason or so arbitrary that it could not have been the result of a

reasoned decision.” Frost v. Mazda Motor of Am., Inc., 353 N.C. 188, 199 (2000)

(cleaned up).

A.

Plaintiff argues the trial court erred in its assignment of values and dates for

alimony and arrearages. “The overriding principle in cases determining the

correctness of alimony is fairness to all parties.” Barham v. Barham, 127 N.C. App.

20, 27 (1997), aff’d, 347 N.C. 570 (1998) (cleaned up). Plaintiff specifically argues the

amended order states payments should begin 1 February 2023 and 15 February 2023

when the order was entered 17 September 2024. The previous order stated the same

February dates and was entered 22 March 2023. According to plaintiff, he would be

in contempt of court from the time the order was originally entered by not having

paid the $10,000.00 lump sum by 15 February 2023. Additionally, plaintiff argues

the alimony arrearages currently set at a $500.00 per month rate would take until he

was approximately eighty years old to fully pay. Plaintiff argues that with his current

health condition it is unlikely he will live long enough to pay off the arrearages.

Plaintiff seeks remand and an evidentiary hearing to recalculate arrearages.

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The trial court determines the amount and duration for alimony awards to a

dependent spouse based upon the evidence offered for the sixteen statutory factors.

N.C.G.S. § 50-16.3A(b)(1)–(16) (2023). The trial court must make findings of facts

and conclusions of law to support the alimony award and to explain the reasoning for

the amount, duration, and manner of payment. N.C.G.S. § 50-16.3A(c) (2023). The

trial court may award alimony arrearages back to the date of separation. Smallwood

v. Smallwood, 227 N.C. App. 319, 333 (2013).

“Appeal from an order requiring [the supporting spouse] to pay alimony and

counsel fees d[oes] not automatically stay execution on the judgment, and the trial

court ha[s] the authority to . . . require [the supporting spouse] to execute a written

undertaking in order to stay execution.” Simms v. Bolger, 264 N.C. App. 456, 459–

60 (2019). Thus, when an alimony order is entered, execution of that order is

generally required despite appeal and may be enforced through civil contempt. See

N.C.G.S. § 50-16.7(j) (2023). Further, although modification may be sought for a

substantial change in circumstances, the moving party may not file a motion simply

to avoid payment until a motion is determined. See generally, Hill v. Hill, 261 N.C.

App. 600, 625–26 (2018).

Despite plaintiff’s argument that the date in finding 33 is nonsensical, upon

review the trial court included findings it would provide retroactive alimony to the

date of separation. Additionally, the court included a finding that the parties

separated on 26 May 2015 for the final time, and this supports the retroactive date

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of 1 May 2015 given the award requires monthly payments. Further, the trial court

included findings to support the values assigned for arrearages based upon plaintiff’s

surplus each month compared to defendant’s negative balance. The trial court’s

finding that the parties had been separated seven years at the time of the order is

supported by the amount in arrears calculated to the date of 12 December 2022 at a

monthly rate of $1,500.00 per month since the date of separation. Accordingly, we

discern no abuse of discretion by the trial court as it relates to these dates and values.

The trial court abused its discretion by including a start date that began prior

to the date the order was entered for monthly arrears, for the lump sum payment of

$10,000 towards the total arrearages, and for the date to begin payment for

defendant’s attorney’s fees. The trial court ordered plaintiff to begin payments for

arrearages on 1 February 2023, to make a lump sum payment by 15 February 2023,

and to make a monthly payment for defendant’s attorney’s fees starting 1 February

2023. The original order was entered 23 March 2023, and as plaintiff argues, this

would put plaintiff in violation of the order from the date it was entered. Although

more likely a clerical error at the time, a date change on remand would have a

substantive impact because of the potential for civil contempt if the party had failed

to make payments as required in the order. See Gordon v. Gordon, 119 N.C. App.

316, 318 (1995) (discussing how a change to an order is substantive rather than

clerical when it “alters the effect of the original order”). Therefore, this issue must be

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remanded for the trial court to correct the date retroactively to reflect the dates the

trial court intended when the alimony order was entered.

Plaintiff also seeks a remand for a new evidentiary hearing to change the

values and dates due to the longevity of payments at the current rate set out in the

amended order. However, plaintiff does not direct us to any case law that would

support a remand to change the values and dates of the order because of the longevity

of the payments. Nor have we found any case law to support this request. Alimony

orders are enforced from the date entered and are not stayed apart from obtaining an

undertaking. § 50-16.7(j). Thus, the amended order has been in effect and payments

have been ongoing despite plaintiff’s multiple appeals.

What plaintiff seeks is a modification of the order, but plaintiff did not move

for a modification at the trial level. “An alimony order may be modified or vacated at

any time, upon motion in the cause and showing of changed circumstances by either

party or anyone interested.” Hill, 261 N.C. App. at 618. Our legislature has provided

for parties involved in alimony orders to seek modification “at any time” but they

must follow the statutory process for modification. N.C.G.S. § 50-16.9(a) (2023). We

will not consider a modification on appeal when plaintiff has not yet sought

modification at the trial level. See Robinson v. Shanahan, 233 N.C. App. 34, 36 (2014)

(“It is a well-established rule in our appellate courts that a contention not raised and

argued in the trial court may not be raised and argued for the first time on appeal.”)

B.

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Next, plaintiff argues the trial court erred by not crediting him for the money

paid to defendant between the date of separation and the post separation support

order in the amended order. We disagree.

According to plaintiff, the prior order accounted for fifty-four months of

payments to defendant but there was not sufficient evidence in the record to support

whether it was for child support or alimony. According to the record, the fifty-four

months accounted for the payments made approximately between the date of

separation and when defendant was still raising the parties’ minor child. Plaintiff

also acknowledges apart from testimony by both husband and wife that some money

was given, there was no set amount determined nor was it established what the

money was for.

Plaintiff makes arguments based upon a finding that was in the previous order

but was removed from the amended order. Our review is limited to the amended

order. See N.C.R. App. P. 3 (d). Plaintiff does not argue the trial court’s findings were

unsupported by competent evidence when establishing the amount of alimony

arrearages. The trial court included findings of the amount of alimony arrearages

owed from the date of separation until December 2022. It applied a credit for the

Postseparation Support Order payments made for a total of eight months and

deducted this amount from the arrearage obligation. These findings are supported

by competent evidence and conclusive on appeal.

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Additionally, when there is no evidence in the record to support the arrearage

credit due to the parties’ failure to establish it at trial, the trial court demonstrates

its discretion by not including a finding based upon insufficient evidence. But cf. W.

Auto Supply Co. v. Vick, 47 N.C. App. 701, 707 (1980) (“If there is no evidence in the

record to support findings . . . they must be set aside.”). Therefore, the trial court did

not abuse its discretion by declining to credit plaintiff for alimony arrearages that

were unestablished by the evidence.

III.

For the foregoing reasons, we remand in part for the trial court to correct the

dates to reflect when payments should have started after the order was entered in

March 2023. We discern no abuse of discretion as it pertains to the alimony

arrearages.

REMANDED IN PART, AFFIRMED IN PART.

Judges ARROWOOD and CARPENTER concur.

Report per Rule 30(e).

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