IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-703
No. COA21-68
Filed 21 December 2021
Johnston County, No. 17 CVD 3894
SALLYCETA WADSWORTH, Plaintiff,
v.
KEITH WADSWORTH, Defendant.
Appeal by Defendant from order entered on 6 July 2020 by Judge Jim Love,
Jr., in Johnston County District Court. Heard in the Court of Appeals 5 October 2021.
Mary McCullers Reece for the Plaintiff-Appellee.
Tiffanie C. Meyers for the Defendant-Appellant.
JACKSON, Judge.
¶1 Keith Wadsworth (“Defendant”) appeals from the trial court’s order on
equitable distribution, alimony, and child support. We affirm in part, vacate in part,
and remand the case to the trial court for entry of an award of attorney’s fees that
does not include fees for equitable distribution.
I. Background
¶2 The parties met in Bridgeport, Connecticut, and were married on 28 July 2001.
Defendant had one child from a prior relationship at the time. Sallyceta Wadsworth
(“Plaintiff”) was aware of Defendant’s eldest child before the parties were married. WADSWORTH V. WADSWORTH
Opinion of the Court
¶3 In 2004, after the birth of their first child, the parties moved to North Carolina.
Defendant accepted a position as a contract negotiator at Aetna Healthcare and
Plaintiff worked part-time as a self-employed hairstylist while raising their child. In
2009, a second child was born to the marriage.
¶4 Sometime in 2009, a deputy sheriff served Defendant at the marital home with
a lawsuit for child support. Defendant told Plaintiff that the lawsuit was related to
his oldest child, and she believed him.
¶5 In 2011, Plaintiff became pregnant again. Not long afterward, Plaintiff found
a VHS tape in the marital home that contained a recording of Defendant engaging in
sexual intercourse with another woman. The recording bore a date during the parties’
marriage. Plaintiff confronted Defendant about the tape, and he did not deny he was
in it.
¶6 Plaintiff then found the court papers Defendant had been served with in 2009
and learned that the lawsuit was not related to Defendant’s eldest child, but instead
was related to child support for two children Defendant had with another woman
during the parties’ marriage.
¶7 Plaintiff gave birth to the third child of the marriage in November 2011. At
the time, Defendant was traveling frequently. He told Plaintiff that the trips were
work-related, but bank and credit-card statements showed that the trips included
destinations such as Daytona Beach, San Juan, Myrtle Beach, and the Mohegan Sun, WADSWORTH V. WADSWORTH
a casino in Connecticut.
¶8 Defendant moved out of the marital residence on 14 April 2013 but continued
paying for the mortgage and utilities and contributed towards the cost of groceries,
clothing, and shoes for some time. These contributions decreased over time.
¶9 Defendant had a third child with another woman while still married to
Plaintiff in August 2017.
¶ 10 Plaintiff initiated this action on 13 December 2017 in Johnston County District
Court. The matter came on for trial before the Honorable Jim Love, Jr., on 27 June
2019. Judge Love presided over a three-day bench trial. The court entered an order
on 6 July 2020 ordering Defendant to pay Plaintiff past-due and prospective child
support, alimony, and awarding Plaintiff attorney’s fees. The court ordered
Defendant to maintain life insurance to secure his alimony and child support
obligations.
¶ 11 Defendant entered timely written notice of appeal from the trial court’s order
on 4 August 2020.
II. Analysis
¶ 12 Defendant makes essentially five arguments on appeal. We address each in
turn.
A. Standard of Review
¶ 13 “It is well established that child support orders entered by a trial court are WADSWORTH V. WADSWORTH
accorded substantial deference by appellate courts[.]” Sergeef v. Sergeef, 250 N.C.
App. 404, 406, 792 S.E.2d 192, 193 (2016) (internal marks and citation omitted). This
deference “is based upon the trial courts’ opportunity to see the parties; to hear the
witnesses; and to detect tenors, tones, and flavors that are lost in the bare printed
record read months later by appellate judges[.]” Shipman v. Shipman, 357 N.C. 471,
474, 586 S.E.2d 250, 253 (2003) (internal marks and citation omitted). Our review is
thus limited to “whether there is sufficient competent evidence to support the findings
of fact, and whether, based on these findings, the Court properly computed the child
support obligations.” Miller v. Miller, 153 N.C. App. 40, 47, 568 S.E.2d 914, 918-19
(2002) (citation omitted). “Accordingly, should we conclude that there is substantial
evidence in the record to support the trial court’s findings of fact, such findings are
conclusive on appeal, even if record evidence might sustain findings to the contrary.”
Shipman, 357 N.C. at 475, 586 S.E.2d at 253-54 (internal marks and citation
omitted).
B. Challenged Factual Findings
¶ 14 Defendant’s first three arguments on appeal challenge the trial court’s findings
of fact. Defendant argues that the trial court erred in calculating his child support
obligation based on work-related childcare of $600 per month; that the trial court
erred in calculating extraordinary expenses based on insufficient evidence; and that
the trial court erred in calculating his child support arrears based on insufficient WADSWORTH V. WADSWORTH
evidence. We disagree with all three contentions.
1. Finding of Fact 42
¶ 15 Defendant challenges the evidentiary support for the trial court’s finding that
the reasonable work-related childcare costs of the parties were $600 per month. We
hold that this finding was supported by competent evidence.
¶ 16 The trial court found as follows in Finding of Fact 42:
42. That in order for Plaintiff to work, the minor children Maya and Mason needed work-related childcare on days they are not in school. During 2018, the Plaintiff had to make an election to either work and pay childcare or not work. That she could only afford childcare which cost $150.00 per week. That Plaintiff feels that in the future she would need to pay childcare for eighteen weeks. That the Plaintiff’s cost of daycare would be $600.00 per month.
¶ 17 The finding above was based on Plaintiff’s testimony and her financial
affidavit, which included the following breakdown of her average work-related
childcare expenses for her younger two children for an estimated ninety days per
year:
90 days of childcare/five workdays per week=18 weeks,
18 weeks x two children x $200 per week=$7,200
$7,200/12 months=$600/month
¶ 18 Plaintiff testified as follows on direct examination:
[PLAINTIFF’S COUNSEL]: So looking at [your financial WADSWORTH V. WADSWORTH
affidavit], have you tried to estimate the number of days you would need each month to provide that daycare or work-related childcare so you could work those days?
[PLAINTIFF]: Yes.
[PLAINTIFF’S COUNSEL]: Have you used a school calendar to try to determine the number of days that they are out of school, if it’s during the school year?
[PLAINTIFF]: Yes. This is it. It includes teacher workday, holidays, summer breaks. Holidays . . . [,] [a] total of 90 days for the year for the school year, calendar year, that they are out of school.
[PLAINTIFF’S COUNSEL]: And so, if we looked at that in terms of weeks, that would be about 18 weeks?
[PLAINTIFF]: Correct.
[PLAINTIFF’S COUNSEL]: And then did you multiply that times two children times $200 a week, and then prorate that per month to be about $600 per month?
[PLAINTIFF’S COUNSEL]: And is that the number that you used in your financial affidavit on page three, rather than the $200—or $150 that you state that you’re currently able to afford.
We hold that this testimony, along with Plaintiff’s financial affidavit, was competent
evidence to support the trial court’s finding that the reasonable work-related
childcare costs of the parties were $600 per month.
¶ 19 Defendant asserts that the finding of $600 per month is erroneous because it WADSWORTH V. WADSWORTH
is based on a $200 per week rate Plaintiff paid for childcare during the summer when
the children were not in school and not on daily rates for childcare during the school
year, and that determining prospective childcare costs based on a weekly rate rather
than a daily rate will result in overpayment for childcare. Defendant points to
testimony by Plaintiff that she paid for childcare by the day some of the time when
she could not afford to pay for an entire week to support the idea that basing
prospective childcare costs on a daily rather than weekly rate would result in lower
costs overall. Plaintiff’s testimony does not support this idea, however. Plaintiff
testified that she paid for childcare at a daily rate when she did not have the funds
to pay for a weekly rate; her testimony does not suggest that the daily price she paid
was less expensive on a weekly basis than paying for a full week: instead, she
testified that she paid by the day when she could not afford to pay by the week.
Accordingly, we reject the argument that determining the childcare costs based on a
weekly rate rather than a daily rate was erroneous.
2. Findings of Fact 39, 40, and 41
¶ 20 Defendant also challenges the trial court’s finding that the children’s
extraordinary expenses were $953.41 per month. Rather than challenge the
sufficiency of the evidence to support the costs included in the monthly average of
these expenses, Defendant contends that some of the costs used to calculate the
average should not have been included because they were for activities that had taken WADSWORTH V. WADSWORTH
place in the past and there was no evidence that these activities were ongoing. We
hold that the trial court’s findings related to the children’s extraordinary expenses
were supported by competent evidence and that the court did not abuse its discretion
by calculating an average that included costs that there was no evidence would be
recurring.
¶ 21 North Carolina General Statute § 50-13.4(c) provides that child support
shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.
N.C. Gen. Stat. § 50-13.4(c) (2019). “The calculation of child support is governed by
North Carolina Child Support Guidelines established by the Conference of Chief
District Court Judges.” Craven Cnty. ex rel. Wooten v. Hageb, 2021-NCCOA-231 ¶ 12
(2021) (citation omitted). “Child support set in accordance with the Guidelines is
conclusively presumed to be in such amount as to meet the reasonable needs of the
child and commensurate with the relative abilities of each parent to pay support.”
Beamer v. Beamer, 169 N.C. App. 594, 596, 610 S.E.2d 220, 223-24 (2005) (internal
marks and citation omitted).
¶ 22 Regarding “extraordinary expenses,” the Child Support Guidelines provide
that WADSWORTH V. WADSWORTH
[o]ther extraordinary child-related expenses (including (1) expenses related to special or private elementary or secondary schools to meet a child’s particular education needs, and (2) expenses for transporting the child between the parent’s homes) may be added to the basic child support obligation and ordered paid by the parents in proportion to their respective incomes if the court determines the expenses are reasonable, necessary, and in the child’s best interest.
N.C. Child Support Guidelines (2019). “Determination of what constitutes an
extraordinary expense is within the discretion of the trial court[.]” Biggs v. Greer,
136 N.C. App. 294, 298, 524 S.E.2d 577, 581 (2000) (internal marks and citation
omitted). A court may adjust the basic child support obligation for extraordinary
expenses, but such an adjustment is discretionary and does not qualify as a deviation
from the Guidelines. Id., 524 S.E.2d at 581-82. Thus, “[e]ven though the guidelines
note two specific extraordinary expenses, school and travel, . . . [this] list . . . is not
exhaustive[.]” Balawejder v. Balawejder, 216 N.C. App. 301, 317, 721 S.E.2d 679, 688
(2011) (internal marks and citation omitted).
¶ 23 The trial court found in relevant part as follows:
39. That the Plaintiff’s and Defendant’s three minor children are involved in numerous extracurricular activities which require expenses. Kailey is involved in travel soccer, piano, and pageants. Maya is involved in gymnastics, school clubs, and theater camp. Mason is involved in basketball and theater camp.
40. That the minor child Maya is struggling in school, and the Plaintiff hired a tutor to help Maya with her WADSWORTH V. WADSWORTH
studies.
41. That the approximate average of costs for the minor children’s extracurricular activities and Maya’s tutoring is $953.41 per month.
¶ 24 Defendant specifically objects to inclusion of costs for driving school, theater
camp, and pageants to calculate the average costs of the children’s extraordinary
expenses. The trial court credited in full Plaintiff’s financial affidavit in arriving at
the $953.41 per month figure, which included a $65 cost for driving school, a $704
cost for pageants, and a $152.50 per-child cost for theater camp for two of the three
children. While there was no evidence that the cost of the objected-to expenses would
be recurring, neither was there evidence that these costs would not be recurring,
setting aside the attorney argument in Defendant’s appellate brief. We therefore hold
that including these costs was well within the trial court’s discretion in determining
the children’s average extraordinary expenses going forward.
3. Findings of Fact 51, 52, 53, 54, and 55
¶ 25 Defendant also challenges the trial court’s findings related to his child support
arrears for the 2018-2020 timeframe—the period when this action was pending.
Specifically, Defendant argues that the court neglected to account for evidence that
some of the children’s extraordinary expenses had been paid by him directly during
this two-year period and that some of the expenses did not exist during the entire
period. We hold that the trial court was not required to give Defendant a credit for WADSWORTH V. WADSWORTH
his children’s expenses he paid after Plaintiff commenced this action but before the
court entered the order on appeal, and that the court calculated his arrears correctly.
¶ 26 As noted previously, “[t]he North Carolina Child Support Guidelines allow the
court to add to the parties’ basic child support obligation based on certain
extraordinary expenses[.]” Balawejder, 216 N.C. App. at 316, 721 S.E.2d at 688.
“[A]bsent a party’s request for deviation, the trial court is not required to set forth
findings of fact related to the child’s needs and the noncustodial parent’s ability to
pay extraordinary expenses.” Biggs, 136 N.C. App. at 298, 524 S.E.2d at 582. “Thus,
the trial court has the discretion to determine what expenses constitute extraordinary
expenses, the amount of these expenses, and . . . how the expenses are to be
apportioned between the parties.” Mackins v. Mackins, 114 N.C. App. 538, 549, 442
S.E.2d 352, 359 (1994).
¶ 27 The trial court was not required to make findings of fact regarding Defendant’s
contribution to the children’s extraordinary expenses during the time the case was
pending or provide Defendant with any credit or offset for these contributions in
calculating his child support arrears. Instead, the court needed only to determine the
parties’ adjusted gross incomes, and the cost of current work-related childcare, health
insurance premiums, and extraordinary expenses. The trial court made these
findings and used the results in the appropriate worksheet.
C. Securing Child Support and Alimony Obligations with Life Insurance WADSWORTH V. WADSWORTH
¶ 28 The trial court found in relevant part as follows in support of its order that
Defendant maintain a life insurance policy to secure his child support arrears and
alimony obligation:
44. That the Plaintiff is a dependent spouse who is actually substantially dependent upon the Defendant for her maintenance and support.
45. That the Defendant is a supporting spouse upon whom the Plaintiff is actually substantially dependent for maintenance and support.
...
54. That the Defendant’s total child support arrears as of June 30, 2020 is . . . $114,730.22.
56. The Defendant shall pay all amounts owed for July 1, 2020 ($4,105.35 in child support) on or before July 5, 2020. Defendant’s child support arrearage for February 1, 2020 through June 30, 2020 is being repaid from Defendant’s 401(k). Defendant’s alimony arrears for February 1, 2020 through July 31, 2020 shall be repaid on or before July 5, 2020 . . . . Effective August 1, 2020, the Defendant shall pay Plaintiff child support of $4,105.35 and alimony of $1,900.00 each month on or by the first day of each month.
57. That Defendant shall secure his child support arrears and alimony by maintaining life insurance on his life with a death benefit of $550,000.00, naming Plaintiff as beneficiary.
¶ 29 Defendant argues that no North Carolina statute authorizes a trial court to
order a supporting spouse to maintain a life insurance policy to secure a child support WADSWORTH V. WADSWORTH
or alimony obligation. Plaintiff argues that N.C. Gen. Stat. § 50-16.7(b) authorizes
such an order. Section 50-16.7(b) provides in relevant part that a court ordering the
payment of alimony may “require the supporting spouse to secure the payment of
alimony . . . by means of a bond, mortgage, or deed of trust, or any other means
ordinarily used to secure an obligation to pay money or transfer property[.]” N.C.
Gen. Stat. § 50-16.7(b) (2019). We hold that the life insurance the trial court ordered
Defendant to maintain did not qualify as “security” within the meaning of § 50-
16.7(b), and therefore do not reach the issue of whether life insurance can qualify as
a “means ordinarily used to secure an obligation to pay money” under § 50-16.7(b).
¶ 30 An award of alimony is only authorized “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(a) (2019). N.C. Gen. Stat. § 50-16.1A(2) defines a “dependent spouse” as “a
spouse, whether husband or wife, who is actually substantially dependent upon the
other spouse for his or her maintenance and support or is substantially in need of
maintenance and support from the other spouse.” Id. § 50-16.1A(2). Subsection (5)
of § 50-16.1A goes on to define “supporting spouse” as “a spouse, whether husband or
wife, upon whom the other spouse is actually substantially dependent for
maintenance and support or from whom such spouse is substantially in need of
maintenance and support.” Id. § 50-16.1A(5). WADSWORTH V. WADSWORTH
¶ 31 However, “[i]f a dependent spouse who is receiving postseparation support or
alimony from a supporting spouse under a judgment or order of a court of this State
remarries or engages in cohabitation, the postseparation support or alimony shall
terminate.” Id. § 50-16.9(b). Likewise, “[p]ostseparation support or alimony shall
terminate upon the death of either the supporting or the dependent spouse.” Id. The
reason is that “[t]he purpose of alimony is to provide support and maintenance for
the dependent spouse.” Potts v. Tutterow, 114 N.C. App. 360, 363, 442 S.E.2d 90, 92
(1994) (citation omitted). Accordingly, alimony has been described as the proportion
of the supporting spouse’s estate “which is judicially allowed and allotted to a
[dependent spouse] for [his or] her subsistence and livelihood during the period of
(their) separation.” Rogers v. Vines, 6 Ired. 293, 297 (1846). Just as alimony
terminates on the death of either party, so too do other legal obligations to make
support payments to a dependent spouse, Bland v. Bland, 21 N.C. App. 192, 196, 203
S.E.2d 639, 642 (1974), unless they are part of “a complete settlement of all property
and marital rights between the parties” for which there is reciprocal consideration,
such that “the entire agreement would be destroyed by a modification of the support
provision[,]” Walters v. Walters, 54 N.C. App. 545, 548, 284 S.E.2d 151, 153 (1981)
(internal marks and citation omitted), rev’d on other grounds, 307 N.C. 381, 298
S.E.2d 338 (1983).
¶ 32 The requirement in the trial court’s order that Defendant “secure his child WADSWORTH V. WADSWORTH
support arrears and alimony by maintaining life insurance on his life with a death
benefit of $550,000.00,” was, in effect, a second award of alimony rather than security
for his alimony obligation of $1,900 per month and unsatisfied child support arrears.
“Security” has been defined as “[c]ollateral given or pledged to guarantee the
fulfillment of an obligation; esp., the assurance that a creditor will be repaid (usu.
with interest) any money or credit extended to a debtor.” Security, Black’s Law
Dictionary (11th ed. 2019). The obligations purportedly secured by the requirement
in the trial court’s order that Defendant maintain life insurance with a death benefit
of $550,000 were the net, unsatisfied child support arrears that accrued between 1
February 2020 and 30 June 2020 of $18,026.75 and a total potential alimony
obligation of $456,000 in nominal terms (i.e., without any adjustment for inflation or
other discounts), assuming (1) Defendant survived the entire twenty years he was
ordered to pay $1,900 per month in alimony; (2) the parties never reconciled; and (3)
Plaintiff never remarried. That is, setting aside the validity of this purported
security, if the requirement that Defendant maintain life insurance with a death
benefit of $550,000 was, in fact, security for his unsatisfied, net child support arrears
and his total potential alimony exposure, the life insurance overcollateralized the
obligations secured, which equaled at most $474,026.75. The obligations purportedly
secured equaled $75,973.25 less than the $550,000 of “security.”
¶ 33 More fundamentally though, the requirement in the trial court’s order that WADSWORTH V. WADSWORTH
Defendant maintain life insurance with a death benefit of $550,000 was, in effect, a
second award of alimony, which the overcollateralization of the purported security
underscores. The death benefit of $550,000 did not guarantee the fulfillment of the
obligations to pay $18,026.75 in net, unsatisfied child support arrears and the
obligation to pay as much as $456,000 in alimony. Were Defendant to pay his net,
unsatisfied child support arrears on or before 5 July 2020 and the $1,900 per month,
as ordered, but pass away on 31 July 2040, the day before his final $1,900 monthly
alimony payment was due, assuming the parties never reconciled and Plaintiff never
remarried, Plaintiff would receive a windfall: $18,026.75 in child support arrears;
$454,100 in monthly alimony payments; and $550,000 of “security” in the form of a
death benefit from the life insurance policy—representing more than a double
recovery of the amounts purportedly “secured” by the life insurance. Accordingly, we
hold that the life insurance the trial court ordered Defendant to maintain did not
qualify as “security” within the meaning of § 50-16.7(b).
¶ 34 Finally, as we reasoned in Squires v. Squires, 178 N.C. App. 251, 264, 631
S.E.2d 156, 164 (2006), the requirement in the trial court’s order that Defendant
maintain life insurance with a death benefit of $550,000 is “without effect as such a
term is barred by statute.” To reiterate, “alimony shall terminate upon the death of
either the supporting or the dependent spouse.” N.C. Gen. Stat. § 50-16.9(b) (2019).
The death benefit of the life insurance Defendant was ordered to maintain would WADSWORTH V. WADSWORTH
constitute alimony Plaintiff received after Defendant’s death—upon the occurrence
of which any obligation of Defendant to pay Plaintiff alimony would have been
extinguished. See id. Section 50-16.7(b) does not create an exception from the rule
that an alimony obligation terminates upon the death of either the supporting or
dependent spouse. We therefore vacate the portion of the trial court’s order requiring
Defendant to maintain life insurance with a death benefit of $550,000 naming
Plaintiff as beneficiary.
D. Attorney’s Fees
¶ 35 Defendant challenges the trial court’s award of attorney’s fees on the basis that
the award includes fees incurred during the equitable distribution portion of the case,
which are not recoverable. Plaintiff suggests that this is a clerical error in the order,
but we disagree. We hold that (1) competent evidence in the record supported the
trial court’s findings that Plaintiff was a dependent spouse; (2) Defendant was a
supporting spouse; and (3) Plaintiff had insufficient means to subsist during the
prosecution of the case and defray necessary expenses. However, the attorney’s fee
award included fees incurred during the equitable distribution portion of the case,
which was improper. We vacate the portion of the order awarding Plaintiff attorney’s
fees and remand the case for entry of an award of attorney’s fees that does not include
fees for equitable distribution.
¶ 36 “A party can recover attorney’s fees only if such a recovery is expressly WADSWORTH V. WADSWORTH
authorized by statute.” Robinson v. Robinson, 210 N.C. App. 319, 336, 707 S.E.2d
785, 797 (2011) (internal marks and citation omitted). N.C. Gen. Stat. § 50-13.6
authorizes attorney’s fee awards in actions for child custody, while N.C. Gen. Stat.
§ 50-16.4 authorizes them in actions for alimony. See N.C. Gen. Stat. § 50-13.6 (2019)
(“[T]he 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.”); id. § 50-16.4 (“[T]he court may . . . enter an order for reasonable counsel
fees, to be paid and secured by the supporting spouse in the same manner as
alimony.”). In actions for equitable distribution, however, attorney’s fees are not
recoverable. Robinson, 210 N.C. App. at 337, 707 S.E.2d at 797 (citations omitted).
In a combined action for equitable distribution, alimony, and child support, a trial
court may award attorney’s fees for the alimony and child support portions of the
case, but not for the equitable distribution portion. Id.
¶ 37 Plaintiff’s counsel averred in a 14 January 2020 affidavit prepared in support
of the award of attorney’s fees that total fees and costs for Plaintiff’s claims for
alimony, child custody, and child support were $11,321.86. A 14 January 2020 billing
statement attached to the affidavit reflects a balance of $11,489.11, however, and the
trial court awarded attorney’s fees to Plaintiff in the amount reflected in the billing
statement rather than the affidavit. A review of the billing statement reveals that
the billing statement includes fees for the equitable distribution portion of the case. WADSWORTH V. WADSWORTH
There is a handwritten notation on the billing statement that states that “since
6/26/2019 (date of prior affidavit), an additional $6,515.61 has been incurred[.]” The
affidavit likewise references a prior affidavit submitted by Plaintiff’s counsel in
support of the award, stating that through 26 June 2019, the recoverable fees were
$4,806.25. However, this prior affidavit is not in the record on appeal. The
exhibits/evidence log prepared by the clerk references a Plaintiff’s Exhibit 27
described as “expenses for atty’s fees” admitted by the court on 28 June 2019,
suggesting that the prior affidavit not in the record may be Plaintiff’s Exhibit 27.
¶ 38 Under Rule 9 of the North Carolina Rules of Appellate Procedure, our review
“is solely upon the record on appeal,” N.C. R. App. P. 9(a), and we cannot consider
trial exhibits not included in the record on appeal, Ronald G. Hinson Elec., Inc. v.
Union Cnty. Bd. of Educ., 125 N.C. App. 373, 375, 481 S.E.2d 326, 328 (1997). We
hold that the trial court erroneously relied only on the 14 January 2020 billing
statement—which, as both the handwritten notation on the billing statement and
affidavit indicate, included recoverable fees of only $6,515.61, not the total
recoverable fees of $11,321.86. Accordingly, we vacate the attorney’s fee award and
remand the case for entry of an attorney’s fees award that does not include fees for
equitable distribution.
III. Conclusion
¶ 39 We affirm the order of the trial court in part but vacate the portions of the WADSWORTH V. WADSWORTH
order requiring Defendant to maintain life insurance and awarding Plaintiff
attorney’s fees. We remand the case to the trial court for entry of an award of
attorney’s fees that does not include fees for equitable distribution. Because N.C.
Gen. Stat. §§ 50-13.6 and 50-16.4 only authorize awards of reasonable fees, the award
entered by the trial court on remand must be supported by factual findings
demonstrating that the fees are reasonable. See, e.g., Falls v. Falls, 52 N.C. App. 203,
221, 278 S.E.2d 546, 558 (1981) (“To support an award of attorney’s fees, the trial
court should make findings as to the lawyer’s skill, his hourly rate, its reasonableness
in comparison with that of other lawyers, what he did, and the hours he spent.”).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Judges DILLON and MURPHY concur.