IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-715
Filed 18 June 2025
Catawba County, No. 22CVD001087-170
THOMAS THEUERKORN, Plaintiff,
v.
MELISSA BETH HELLER, Defendant.
Appeal by plaintiff from orders entered 14 June 2024 by Judge David W.
Aycock in Catawba County District Court. Heard in the Court of Appeals 22 May
2025.
Collins Family & Elder Law Group, by Rebecca K. Watts, for plaintiff- appellant.
Wesley E. Starnes, PC, by Wesley E. Starnes, for defendant-appellee.
FLOOD, Judge.
Plaintiff Thomas Theuerkorn appeals from the trial court’s amended equitable
distribution, alimony, and child support order entered 14 June 2024 (the “Amended
Order”); and from the trial court’s order, entered 14 June 2024, granting Defendant
Mellisa Beth Heller’s Rule 60 motion (the “Rule 60 Order”) to amend the equitable
distribution, alimony, and child support order entered 27 March 2024 (the “Original
Order”). On appeal, Plaintiff argues the trial court erred in: first, modifying the
Original Order “under the guise of correcting a clerical error”; second, ordering a
distributive award; third, awarding alimony, where the Amended Order incorrectly THEUERKORN V. HELLER
Opinion of the Court
calculated Plaintiff’s income and failed to include findings as to the parties’ expenses;
fourth, calculating child support using incorrect income information; and fifth,
ordering Defendant’s equitable distribution affidavit to be treated as the pretrial
order, and “refusing to allow [Plaintiff] to present evidence.” Upon review, we
conclude: first, the trial court did not abuse its discretion in granting Defendant’s
Rule 60 motion because the Amended Order corrected only a clerical error in the
Original Order; second, the trial court did not err in ordering a distributive award
because Plaintiff’s ability to pay the award can be ascertained from the Record; third,
the trial court erred in awarding alimony where it failed to make findings of fact as
to Plaintiff’s income; fourth, the trial court erred in calculating child support where
it failed to make findings of fact as to Plaintiff’s income; and fifth, Plaintiff’s argument
concerning the pretrial order is not preserved for appellate review. We therefore
affirm the Rule 60 Order, affirm the Amended Order in part, vacate and remand the
Amended Order as to alimony and child support, and dismiss Plaintiff’s argument
regarding the pretrial order.
I. Factual and Procedural Background
Plaintiff and Defendant married on 11 June 2011 and separated on 11 March
2022. Both parties were employed during their marriage and had three children
together. On 20 May 2022, Plaintiff initiated the underlying action by filing an action
for child custody and equitable distribution. On 2 September 2022, the trial court
entered an order for child custody by agreement of the parties. On 6 October 2022,
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Defendant filed an answer and counterclaim for child custody, child support,
equitable distribution, postseparation support, and alimony. On 8 May 2023, the trial
court entered an order for postseparation support and temporary child support.
On 31 October 2022, Defendant filed a financial affidavit listing her gross
monthly income as $3,519.17. On 7 November 2022, Plaintiff filed a financial
affidavit listing his gross monthly income as $15,298. On 19 April 2023, Defendant
filed an equitable distribution affidavit; Plaintiff did not file an equitable distribution
affidavit. On 24 May 2023, Defendant filed a motion for the trial court to adopt her
equitable distribution affidavit as the pretrial order. The trial court heard
Defendant’s motion on 16 January 2024, at which hearing “[P]laintiff was not
present, but was duly noticed.” Several days later, on 19 January 2024, the trial court
entered an order adopting Defendant’s equitable distribution affidavit as the pretrial
order, and on 12 February 2024, entered an order granting Defendant’s motion (the
“February 2024 Order”). In the February 2024 Order, the trial court ordered, in
relevant part, that “Plaintiff shall not introduce any evidence as to his retirement
accounts[.]”
On 13 February 2024, the matters regarding equitable distribution, child
support, and alimony came on for hearing. Plaintiff testified, in pertinent part, to the
following:
And here’s a paycheck of mine. This is a recent one, as in this January. And my situation currently is such, that . . . it looks like this; I get $3,134.00 a month in my paycheck. .
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. . Now, there [are] bonus payments that are potentially coming this year, not guaranteed as always are bonus, but I have to make it there first.
Defendant, on cross-examination, introduced into evidence Plaintiff’s pay stub “for
the period ending on . . . December 31st, 2023[,]” as well as Plaintiff’s W-2 showing
his 2023 income. Defendant’s counsel engaged in the following exchange with
Plaintiff:
Q: All right. And let me show you what’s marked as Defendant’s Exhibit 23[.] .... Q. . . . And it shows that your Medicare wages and tips for 2023 were $248,739.71, is that correct?
A. . . . [T]hat is correct in the sense that this is the total number, but this is not what I get; not before tax or anything. This is including everything, my retirement, everything. .... Q. It is your gross income, correct?
A. Yeah[.]
Plaintiff also testified as to his expenses, Defendant testified as to her income, and
the trial court took judicial notice of Defendant’s financial affidavit—which included
her expenses.
In the Original Order, the trial court distributed assets and debts between the
parties, and ordered Plaintiff to pay a distributive award of $132,840.26. In its award
of alimony, the trial court found, in relevant part:
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31. . . . Plaintiff is employed at Corning and earns $20,728.31 gross per month. After his deductions from income, Plaintiff has a net income of $12,458.76 per month.
The trial court did not make any findings regarding the parties’ expenses, only
providing:
44. That the [trial c]ourt consider[ed] the financial affidavits filed by the parties and finds that [D]efendant is a dependent spouse and [P]laintiff is the supporting spouse.
45. That Defendant is in need of support from [P]laintiff and that [P]laintiff is capable of providing the same.
In its alimony award, the trial court did not state an actual amount that was awarded,
but instead left a blank space where the amount should have been filled in. Plaintiff
filed a notice of appeal from the Original Order on 22 April 2024.1
Following entry of the Original Order, on 2 May 2024, Defendant filed a Rule
60(a) motion requesting the trial court to fill in the blank space for alimony. On 14
June 2024, the trial court granted Defendant’s motion, entered the Rule 60 Order,
and that same day entered the Amended Order, which was identical to the Original
Order, except that the blank space had been filled with an award of alimony of
$1,250.00 per month. Plaintiff timely appealed from both the Rule 60 Order and the
Amended Order.
II. Jurisdiction
1 Defendant also filed a notice of appeal on 2 May 2024, but withdrew her notice of appeal on
20 June 2024.
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This Court has jurisdiction to review this appeal from final judgments of a
district court, pursuant to N.C.G.S. § 7A-27(b) (2023).
III. Analysis
On appeal, Plaintiff argues the trial court erred in: (A) modifying the Original
Order “under the guise of correcting a clerical error”; (B) ordering a distributive
award; (C) awarding alimony, where the Amended Order incorrectly calculated
Plaintiff’s income and failed to include findings as to the parties’ expenses; (D)
calculating child support using incorrect income information; and (E) ordering
Defendant’s equitable distribution affidavit to be treated as the pretrial order, and
“refusing to allow [Plaintiff] to present evidence.” We address each argument, in
turn.
A. Rule 60 Motion
Plaintiff first argues the trial court erred in modifying the Original Order
“under the guise of correcting a clerical error[.]” Specifically, Plaintiff argues the trial
court erred by making a substantive change—an award of alimony of $1,250.00 per
month—to the Original Order. We disagree.
“Rule 60 motions are addressed to the sound discretion of the trial court and
will not be disturbed absent a finding of abuse of discretion.” Lumsden v. Lawing,
117 N.C. App. 514, 518 (1995). “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
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reasoned decision.” Hartsell v. Hartsell, 189 N.C. App. 65, 68 (2008) (citation
omitted).
Pursuant to Rule 60(a) of the North Carolina Rules of Civil Procedure:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.
N.C.R. Civ. P. 60(a). “Relief under Rule 60(a) is limited to the correction of clerical
errors, and it does not permit the correction of serious or substantial errors.” Bossian
v. Bossian, 284 N.C. App. 208, 220 (2022) (citation omitted) (cleaned up); see also In
re D.D.J., 177 N.C. App. 441, 444 (2006) (providing that the trial court does “not have
the power under Rule 60(a) to affect the substantive rights of the parties or to correct
substantive errors in their decisions”). “A clerical error is an error resulting from a
minor mistake or inadvertence, especially in writing or copying something on the
record, and not from judicial reasoning or determination.” In re D.D.J., 177 N.C. App.
at 444 (citation omitted) (cleaned up).
“A trial court abuses its discretion and enters an order outside the scope of the
Rule when it alters the effect of the original order.” In re Estate of Meetze, 272 N.C.
App. 475, 479 (2020) (citation omitted); see also Food Servs. Specialists v. Atlas Rest.
Mgmt., Inc., 111 N.C. App. 257, 259 (1993) (“We have repeatedly rejected attempts to
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change the substantive provisions of judgments under the guise of clerical error.”
(citation omitted)). This Court, however, has consistently concluded that “[t]he
amount of money involved is not what creates a substantive right. Instead, it is the
source from which this money is derived that determines whether a change in the
amount owed is substantive for the purposes of Rule 60(a).” Robertson v. Steris Corp.,
237 N.C. App. 263, 270–71 (2014) (quoting Lee v. Lee, 167 N.C. App. 250, 254 (2004))
(cleaned up); see also Ice v. Ice, 136 N.C. App. 787, 792 (2000).
Here, the trial court properly granted Defendant’s Rule 60(a) motion to correct
a clerical error. See Bossian, 284 N.C. App. at 220. The Original Order provided, in
relevant part, the following:
26. Plaintiff shall pay Defendant forty-eight (48) monthly alimony payments of $______ beginning April 15, 2024, and continuing thereafter on the 15th day of each month, with the final payment being April 15, 2028, by electronic transfer or any other method that the parties agree upon in writing. A text message shall constitute a sufficient writing.
The Amended Order was identical to the Original Order, except for the following
change in language:
26. Plaintiff shall pay Defendant forty-eight (48) monthly alimony payments of $1,250.00 beginning April 15, 2024, and continuing thereafter on the 15th day of each month, with the final payment being April 15, 2028, by electronic transfer or any other method that the parties agree upon in writing. A text message shall constitute a sufficient writing.
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Because the Original Order already provided that Plaintiff was required to pay
Defendant an alimony award, the Amended Order—which still required Plaintiff to
pay Defendant an alimony award—did not “alter[] the effect of the original order” or
change the source from which the award was derived. See In re Estate of Meetze, 272
N.C. App. at 479; Robertson, 237 N.C. App. at 270–71. By filling in only the blank
space to set the award of alimony in its Amended Order, the trial court made a change
that, at most, affected only “the amount of money involved[,]” which does not affect a
substantive right. See Robertson, 237 N.C. App. at 270–71; In re D.D.J., 177 N.C.
App. at 444. The error in the Original Order was, instead, the type of error that
resulted “from a minor mistake or inadvertence,” rather than from “judicial reasoning
or determination.” See In re D.D.J., 177 N.C. App. at 444.
Accordingly, because the trial court, by entry of the Amended Order, did not
alter “the effect of the [O]riginal [O]rder” and only altered the amount of money
involved, the trial court did not abuse its discretion in granting Defendant’s Rule
60(a) motion and in entering the Rule 60 Order and Amended Order. See In re Estate
of Meetze, 272 N.C. App. at 479; Robertson, 237 N.C. App. at 270–71; see also
Lumsden, 117 N.C. App. at 518. We therefore affirm the correction of the clerical
error in the Amended Order pursuant to Rule 60(a), but as we discuss below, vacate
and remand the trial court’s awards of alimony and child support.
B. Distributive Award
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Plaintiff next argues the trial court erred in ordering a distributive award
“without finding that [Plaintiff] had liquid assets from which to pay the award.” We
disagree.
“Equitable distribution is governed by [N.C.G.S. § 50-20 (2023)], which
requires the trial court to conduct a three-step process: (1) classify property as being
marital, divisible, or separate property; (2) calculate the net value of the marital and
divisible property; and (3) distribute equitably the marital and divisible property.”
Brackney v. Brackney, 199 N.C. App. 375, 381 (2009).
A trial court’s determination that specific property is to be characterized as marital, divisible, or separate property will not be disturbed on appeal if there is competent evidence to support the determination. Ultimately, the court’s equitable distribution award is reviewed for an abuse of discretion and will be reversed only upon a showing that it is so arbitrary that it could not have been the result of a reasoned decision.
Id. at 381 (citations and internal quotation marks omitted).
Pursuant to N.C.G.S. § 50-20(e), “it shall be presumed in every action that an
in-kind distribution of marital or divisible property is equitable.” N.C.G.S. § 50-20(e).
This presumption is rebuttable “by the greater weight of the evidence, or by evidence
that the property is a closely held business entity or is otherwise not susceptible of
division in-kind.” N.C.G.S. § 50-20(e). The statute further provides that “[i]n any
action in which the presumption is rebutted, the court in lieu of in-kind distribution
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shall provide for a distributive award in order to achieve equity between the parties.”
N.C.G.S. § 50-20(e).
“The trial court is required to make findings as to whether the [party] has
sufficient liquid assets from which he can make the distributive award payment.”
Urciolo v. Urciolo, 166 N.C. App. 504, 507 (2004). If, however, “a party’s ability to
pay an award with liquid assets can be ascertained from the record, then the
distributive award must be affirmed.” Pellom v. Pellom, 194 N.C. App. 57, 69 (2008).
“[T]he money derived from refinancing the mortgage on the marital home is a source
of liquid funds available to a defendant.” Peltzer v. Peltzer, 222 N.C. App. 784, 791
(2012) (citation omitted) (cleaned up). Similarly, this Court has provided that an
inherited trust retirement account is a liquid asset where it “was available as a
resource from which the trial court could order a distributive award.” Comstock v.
Comstock, 240 N.C. App. 304, 321 (2015).
Here, the unchallenged findings of fact demonstrate that Plaintiff was
awarded: fifty percent of a “401(k) Investment Plan with Corning,” which had a total
value of $890,472.43; fifty percent of a “Pension Plan with Corning,” which had a total
value of $202,602.14; and a home valued at $255,706.77, excluding the value of the
mortgage as of the date of separation, which was valued at $158,993.23. Plaintiff was
ordered to pay a distributive award of $132,840.26 to Defendant. Given that Plaintiff
was awarded the home, and given its value of $255,706.77 with a remaining mortgage
of $158,993.23, Plaintiff could seek to refinance the mortgage in order to obtain “a
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source of liquid funds[.]” See Peltzer, 222 N.C. App. at 791. Further, given that the
retirement accounts were valued at over $1,093,074, even though Plaintiff was
awarded half of the value of these accounts, the remaining value of the accounts is “a
resource from which the trial court could order a distributive award.” See Comstock,
240 N.C. App. at 321.
Accordingly, because Plaintiff’s “ability to pay an award with liquid assets can
be ascertained from the record,” the trial court did not abuse its discretion in
awarding a distributive award. See Pellom, 194 N.C. App. at 69; Brackney, 199 N.C.
App. at 381. We therefore affirm the trial court’s distributive award.
C. Alimony
Plaintiff next argues the trial court erred in awarding alimony where the
Amended Order incorrectly calculated Plaintiff’s income and failed to include findings
as to the parties’ expenses. We agree.
“In all non-jury trials, the trial court must specifically find those material and
ultimate facts from which it can be determined whether the findings are supported
by the evidence and whether they support the conclusions of law reached.” Carpenter
v. Carpenter, 245 N.C. App. 1, 4 (2016) (internal quotation marks omitted). “A trial
court’s determination of whether a party is entitled to alimony is reviewable de novo
on appeal.” Id. at 4. “Under a de novo review, the court considers the matter anew
and freely substitutes its own judgment for that of the lower tribunal.” In re S.W.,
914 S.E.2d 457, 461 (N.C. Ct. App. 2025) (citation omitted). “The amount of alimony
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is determined by the trial judge in the exercise of his sound discretion and is not
reviewable on appeal in the absence of an abuse of discretion.” Wise v. Wise, 264 N.C.
App. 735, 738 (2019) (citation omitted).
Whether a party is entitled to alimony is governed by N.C.G.S. § 50-16.3(A)
(2023). According to the statute, “a party is entitled to alimony if three requirements
are satisfied: (1) that party is a dependent spouse; (2) the other party is a supporting
spouse; and (3) an award of alimony would be equitable under all the relevant
factors.” Barrett v. Barrett, 140 N.C. App. 369, 371 (2000); see also N.C.G.S. § 50-
16.3(A)(a).
A “dependent spouse” must be either actually substantially dependent upon the other spouse or substantially in need of maintenance and support from the other spouse. A party is “actually substantially dependent” upon her spouse if she is currently unable to meet her own maintenance and support. A party is “substantially in need of maintenance and support” if she will be unable to meet her needs in the future, even if she is currently meeting those needs.
Carpenter, 245 N.C. App. at 4 (citations omitted); see also N.C.G.S. § 50-16.1(A)(2)
(2023). “To properly find a spouse dependent[,] the court need only find that the
spouse’s reasonable monthly expenses exceed her monthly income and that the party
has no other means with which to meet those expenses.” Helms v. Helms, 191 N.C.
App. 19, 24 (2008) (citation omitted) (cleaned up). “It necessarily follows that the trial
court must look at the parties’ income and expenses in light of their accustomed
standard of living.” Id. at 24.
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“[T]he trial court must base this determination [of dependency] on findings of
fact sufficiently specific to indicate that the court considered the factors set out” in
Williams v. Williams, 299 N.C. 174 (1980). Hunt v. Hunt, 112 N.C. App. 722, 726
(1993) (citation and internal quotation marks omitted). These factors include:
(1) [T]he accustomed standard of living of the parties prior to the separation, (2) the income and expenses of each of the parties at the time of the trial, (3) the value of the estates, if any, of both spouses at the time of the hearing, and (4) the length of the marriage and the contribution each party has made to the financial status of the family over the years.
Id. at 726–27 (citing Williams, 299 N.C. at 183–85).
Once the trial court has determined that a dependent spouse is entitled to
alimony, the trial court must “exercise its discretion in determining the amount,
duration, and manner of payment of alimony.” N.C.G.S. § 50-16.3(A)(b). To
determine the amount, duration, and manner of payment of alimony, the trial court
is required to consider the sixteen factors set forth in N.C.G.S. § 50-16.3(A)(b). See
N.C.G.S. § 50-16.3(A)(b).
1. Plaintiff’s Income
“Alimony is ordinarily determined by a party’s actual income, from all sources,
at the time of the order.” Works v. Works, 217 N.C. App. 345, 347 (2011) (citation
omitted). “To base an alimony obligation on earning capacity rather than actual
income, the trial court must first find that the party has depressed her income in bad
faith.” Id. at 347 (citation omitted). This Court has concluded that the trial court did
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not abuse its discretion in using a party’s income from years prior to those of the
hearing where “the trial court expressed concerns about [the party’s] reported income
and found that [the party’s] numbers were not credible.” Zurosky v. Shaffer, 236 N.C.
App. 219, 243 (2014).
In Green v. Green, the trial court made no findings of fact regarding the
defendant’s “current income at the time of the order” and based its decision on
whether the defendant had the ability to pay alimony based “on an average of [the
d]efendant’s two prior years’ income.” 255 N.C. App. 719, 734 (2017). On appeal, this
Court provided that “the trial court did not make findings of fact as to whether [the
d]efendant’s professed actual income at the time of the order was reliable or
unreliable before basing its decision regarding [the d]efendant’s ability to pay
alimony on an average of prior years’ income.” Id. at 734. This Court concluded that
the trial court “abused its discretion in basing its decision regarding [the d]efendant’s
ability to pay alimony on an average of [the d]efendant’s monthly gross income from
prior years without first determining [the d]efendant’s current monthly income, and
whether that reported current income was credible.” Id. at 734–35. This Court
further concluded that “[o]n remand, the trial court must make findings of fact
regarding [the d]efendant’s” current income, and “may only use prior years’ incomes
if the trial court finds as fact that [the d]efendant’s actual income is not credible, or
is otherwise suspect.” Id. at 735.
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Here, the matter came on for hearing in February 2024. In its award of
alimony, the trial court found, in relevant part:
31. . . . Plaintiff is employed at Corning and earns $20,728.31 gross per month. After his deductions from income, Plaintiff has a net income of $12,458.76 per month.
During the hearing, however, Plaintiff testified that that he earned “$3,134.00 a
month[,]” based on a paycheck from January 2024. Defense counsel, on cross-
examination, introduced evidence of Plaintiff’s income solely via a pay stub “for the
period ending on . . . December 31st, 2023[,]” and via Plaintiff’s 2023 W-2. Defense
counsel then elicited from Plaintiff that his 2023 gross income was $248,739.71.
Although the trial court’s Finding of Fact 31, on its face, purports to demonstrate
Plaintiff’s current 2024 earnings, it actually demonstrates Plaintiff’s 2023 income:
dividing $248,739.71 annual income by twelve months yields the result of $20,728.31
per month, the gross monthly amount included in Finding of Fact 31. This result also
contrasts with Plaintiff’s financial affidavit, which demonstrates a gross monthly
income of $15,298—significantly higher than Plaintiff’s testimony as to his January
2024 paycheck of “$3,134.00”—an amount less than that included in Finding of Fact
31.
Similar to Green, where the trial court based its decision on whether the
defendant had the ability to pay alimony based on “an average of [the d]efendant’s
two prior years’ income” rather than on the defendant’s current income, so here did
the trial court base its decision on whether Plaintiff had the ability to pay alimony
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based on evidence of Plaintiff’s 2023 income, rather than based on evidence of
Plaintiff’s “current income at the time of the order[.]” 255 N.C. App. at 734; see also
Works, 217 N.C. App. at 347. While the trial court was permitted to consider
Plaintiff’s ability to pay based on evidence of his 2023 income, it was required to either
make a finding as to Plaintiff’s 2024 income, or make findings of fact that Plaintiff’s
“actual income [was] not credible, or [was] otherwise suspect” before making a finding
as to Plaintiff’s 2023 income, both of which the trial court failed to do in the case sub
judice. Green, 255 N.C. App. at 735; see also Works, 217 N.C. App. at 347; Zurosky,
236 N.C. App. at 243.
Defendant argues this Court’s holding in Robinson v. Robinson demonstrates
that the trial court “was permitted to consider Plaintiff’s yearly income” and could
appropriately rely on evidence of Plaintiff’s 2023 income in determining his current
income. 210 N.C. App. 319, 329 (2011). Defendant’s reliance on Robinson, however,
is misplaced. In Robinson, the trial court determined that the plaintiff “consistently
earned over $100,000 per year[.]” Id. at 327. The trial court made this determination
by relying on the parties’ tax returns from previous years. Id. at 327. On appeal, the
plaintiff did not challenge the defendant’s entitlement to alimony, but challenged only
“the amount of alimony awarded.” Id. at 326. This Court concluded that, in
determining the “reasonable needs and expenses of the parties[,]” the trial court did
not abuse its discretion “in relying upon [the plaintiff’s] previous year tax records,
[the plaintiff’s] testimony as to his expenses, and the [trial] court’s ‘own common
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sense and every-day experiences’ in order to conclude that the alimony payment was
affordable.” Id. at 329 (citations omitted). This Court further provided that “[t]he
trial court’s inability to make more detailed findings of fact regarding [the plaintiff’s]
current actual ability to pay was due to his failure to attend and testify at the hearing
or to submit more detailed financial information about his current expenses.” Id. at
329.
Here, unlike in Robinson, Plaintiff has specifically challenged Defendant’s
entitlement to alimony, which warrants a de novo review, rather than solely a review
based on the trial court’s abuse of discretion. See Carpenter, 245 N.C. App. at 4; Wise,
264 N.C. App. at 738. Additionally, unlike in Robinson, where the plaintiff failed “to
attend and testify at the hearing or to submit more detailed financial information[,]”
here, Plaintiff: attended the hearing, testified as to his 2024 income, and had also
provided a financial affidavit prior to the hearing. 210 N.C. App. at 329. The trial
court, therefore, had the ability to make findings of fact about Plaintiff’s 2024
income—as opposed to solely his 2023 income—and alternatively, had the ability to
make findings of fact that Plaintiff’s current income was “not credible, or [] otherwise
suspect[,]” which would have permitted the trial court to use Plaintiff’s 2023 income.
See Green, 255 N.C. App. at 735; Robinson, 210 N.C. App. at 329. The trial court
therefore erred in basing its award of alimony on Plaintiff’s 2023 income without
making the appropriate findings of fact. See Green, 255 N.C. App. at 734–35.
2. The Parties’ Expenses
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In addition to the lack of appropriate findings of fact as to Plaintiff’s income,
the trial court failed to make “findings of fact sufficiently specific to indicate that the
court considered” the parties’ expenses at the time of trial. See Hunt, 112 N.C. App.
at 726–27 (citation and internal quotation marks omitted). The trial court made no
findings of fact on the parties’ expenses or as to their standard of living, only finding
that the trial court “consider[ed] the financial affidavits filed by the parties” in
determining that Defendant was the dependent spouse, and Plaintiff the supporting
spouse, as set out in Findings of Fact 44 and 45. Because the trial court “must look
at the parties’ income and expenses in light of their accustomed standard of living[,]”
in order to determine whether a spouse is a dependent spouse, and the trial court’s
order lacks any findings of fact as to their specific income or as to their standard of
living, this Court cannot ascertain whether the trial court considered the Williams
factors in making its award of alimony, and much less ascertain whether it abused
its discretion in the amount awarded. See Helms, 191 N.C. App. at 24; Hunt, 112
N.C. App. at 726–27; see also Wise, 264 N.C. App. at 739; N.C.G.S. § 50-16.3(A)(b).
Accordingly, we vacate the trial court’s award of alimony, and remand for
further findings of fact as to Plaintiff’s current income at the time of the order, or as
to Plaintiff’s prior year’s income, so long as the trial court makes the requisite
findings of fact that demonstrate Plaintiff’s current income was “not credible, or []
otherwise suspect.” See Green, 255 N.C. App. at 735. We further remand for specific
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findings regarding the parties’ expenses and accustomed standard of living. See
Hunt, 112 N.C. App. at 726–27; see also Wise, 264 N.C. App. at 739.
D. Child Support
Plaintiff next argues the trial court erred in calculating child support using
incorrect income information. For the same reasons discussed previously, we agree.
“Upon appellate review, a trial court’s determination of the proper child
support payment will not be disturbed absent a clear abuse of discretion.” State v.
Williams, 163 N.C. App. 353, 356 (2004). “The trial court must, however, 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.” Spicer v. Spicer, 168 N.C. App. 283, 287 (2005).
Under N.C.G.S. § 50-13.4(c) (2023), the trial court “shall determine the amount
of child support payments by applying the presumptive guidelines established
pursuant to” N.C.G.S. § 50-13.4(c)(1). N.C.G.S. § 50-13.4(c). The trial court may
deviate from the guidelines if,
after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate[.]
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N.C.G.S. § 50-13.4(c). In doing so, “the court shall make findings of fact as to the
criteria that justify varying from the guidelines and the basis for the amount
ordered.” N.C.G.S. § 50-13.4(c).
“[A] party’s ability to pay child support is ordinarily determined by his or her
actual income at the time the award is made or modified.” Greer v. Greer, 101 N.C.
App. 351, 355 (1991); see also Eidson v. Kakouras, 286 N.C. App. 388, 403 (2022) (“It
is well established that child support obligations are ordinarily determined by a
party’s actual income at the time the order is made or modified.” (citation omitted)).
Similar to the income requirements for alimony, “[a] person’s capacity to earn income
may be made the basis of an award if there is a finding that the party deliberately
depressed his or her income or otherwise acted in deliberate disregard of the
obligation to provide reasonable support for the child.” Greer, 101 N.C. App. at 355–
56.
Although this Court has provided that “a trial court may permissibly utilize a
parent’s income from prior years to calculate the parent’s gross monthly income for
child support purposes[,]” see State ex rel. Midgett v. Midgett, 199 N.C. App. 202, 208
(2009), when a trial court uses prior years’ income, it must still make the appropriate
findings of fact, see Green, 255 N.C. App. at 735; see also Kaiser v. Kaiser, 259 N.C.
App. 499, 506 (2018) (“What matters in these circumstances is the reason why the
trial court examines past income; the court’s findings must show that the court used
this evidence to accurately assess current monthly gross income.”).
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Here, for the same reasons discussed previously as to the trial court’s award of
alimony, we conclude the trial court erred in using Plaintiff’s 2023 income to calculate
Plaintiff’s income for purposes of awarding child support without making the
appropriate findings of fact. See Green, 255 N.C. App. at 735; see also Greer, 101 N.C.
App. at 355. Accordingly, we vacate the trial court’s order, and remand for additional
findings of fact. We therefore do not reach the merits of Plaintiff’s further argument
regarding the child support guidelines.
E. Pretrial Order
Plaintiff finally argues that the trial court erred in ordering Defendant’s
equitable distribution affidavit to be treated as the pretrial order, and “refusing to
allow [Plaintiff] to present evidence.” For the following reasons, Plaintiff’s argument
is not preserved for appellate review.
Pursuant to the North Carolina Rules of Appellate Procedure, an appellant’s
notice of appeal “shall designate the judgment or order from which appeal is taken[.]”
N.C.R. App. P. 3(d). “An appellant’s failure to designate a particular judgment or
order in the notice of appeal generally divests this Court of jurisdiction to consider
that order.” Yorke. v. Novant Health, Inc., 192 N.C. App. 340, 347 (2008). This Court,
however, “has recognized that even if an appellant omits a certain order from the
notice of appeal, our Court may still obtain jurisdiction to review the order pursuant
to” N.C.G.S. § 1-278 (2023). Id. at 348; see N.C.G.S. § 1-278. “Review under N.C.G.S.
§ 1–278 is permissible if three conditions are met: (1) the appellant must have timely
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objected to the order; (2) the order must be interlocutory and not immediately
appealable; and (3) the order must have involved the merits and necessarily affected
the judgment.” Yorke, 192 N.C. App. at 348 (citation and internal quotation marks
Here, Plaintiff has failed to meet the first requirement permitting review of
the February 2024 Order. See id. at 348. In the trial court’s order, the trial court
found that: “[P]laintiff was not present, but was duly noticed[,]” and “[P]laintiff has
failed to timely submit his equitable distribution affidavit pursuant to local rules[.]”
As Plaintiff was not present at the hearing, and did not submit an equitable
distribution affidavit prior to the hearing, Plaintiff did not raise a timely objection
before the trial court and thus failed to preserve the issue for appellate review. See
N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request, objection, or motion, stating
the specific grounds for the ruling the party desired the court to make if the specific
grounds were not apparent from the context.”); see, e.g., Kaylor v. Kaylor, 296 N.C.
App. 80, 88 (2024) (concluding that the defendant failed to preserve his argument for
appellate review where the defendant had “failed to attend” multiple case review
hearings and the equitable distribution trial, and “failed to offer an equitable
distribution inventory affidavit at any point”).
Accordingly, because Plaintiff did not timely object to the trial court’s order,
Plaintiff did not meet the first requirement to have the trial court’s order reviewed
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under N.C.G.S. § 1-278; as such, we dismiss Plaintiff’s alleged error as to the
February 2024 Order. See Yorke, 192 N.C. App. at 347–48.
IV. Conclusion
Upon review, we conclude: first, the trial court did not abuse its discretion in
granting Defendant’s Rule 60 motion because the Amended Order corrected only a
clerical error in the Original Order; second, the trial court did not err in ordering a
distributive award because Plaintiff’s ability to pay the award can be ascertained
from the Record; third, the trial court erred in awarding alimony where it failed to
make findings of fact as to Plaintiff’s income; fourth, the trial court erred in
calculating child support where it failed to make findings of fact as to Plaintiff’s
income; and fifth, Plaintiff’s argument concerning the pretrial order is not preserved
for appellate review. We therefore affirm the Rule 60 Order, affirm the Amended
Order in part, vacate and remand the Amended Order as to alimony and child
support, and dismiss Plaintiff’s argument regarding the pretrial order.
AFFIRMED In Part, VACATED AND REMANDED In Part, and DISMISSED
In Part.
Judges STADING and MURRY concur.
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