Dorwani v. Dorwani (N.C. App., 2011)
SYLVIA S. DORWANI, Plaintiff,
DEVENDRA B. DORWANI, Defendant.
Pasquotank County No. 06-CvD-528
NORTH CAROLINA COURT OF APPEALS
Filed: August 16 2011
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by defendant from order entered on or about 21 March 2010 by Judge C. Christopher Bean in District Court, Pasquotank County. Heard in the Court of Appeals 9 February 2011.
The Twiford Law Firm, P.O., by Edward A. O’Neal, for plaintiff-appellee.
Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr. and S. Adam Stallings, for defendant-appellant.
Defendant appeals from the trial court’s order awarding alimony and attorney fees to plaintiff. For the following reasons, we affirm.
Plaintiff and defendant were married on 23 March 1989. On 5 July 2006, plaintiff filed a complaint seeking “absolute
divorce, post-separation support, alimony, . . . attorney fees[,]” and equitable distribution. On 20 September 2006, defendant filed an answer and counterclaimed for absolute divorce and equitable distribution. The parties were divorced on 23 April 2007, and a consent judgment as to equitable distribution (“consent judgment”) was entered on 4 September 2007. On or about 22 March 2010, the trial court entered an order (“alimony order”) which required defendant to pay alimony and attorney fees as follows:
1. The Defendant shall pay to the Plaintiff permanent alimony in the sum of $3,000.00 per month beginning on October 1, 2009, and continuing on the first day of each successive month thereafter and shall terminate upon the death of either party or upon the Plaintiff’s remarriage or cohabitation. In the event that it is proved that the Plaintiff is not eligible to receive Social Security Benefits until she attains the age of 62, the Defendant shall pay permanent alimony to the Plaintiff in the sum of $4,360.00 per month beginning on October 1, 2009, and continuing until such time as the Plaintiff shall attain the age of 62 at which time the permanent alimony award is reduced to $3,000.00 per month.
2. The Defendant shall continue to pay the health insurance premiums for the benefit of the Plaintiff until such time as the Plaintiff becomes eligible to receive Medicare at which time the Defendant’s obligation to pay the Plaintiff’s health insurance premiums shall terminate.
3. The Defendant shall pay to Plaintiff’s attorney, Edwards A. O’Neal, the sum of $15,000.00 to be paid in three installments of $5,000.00 each with the first payment being due and payable on February 1, 2010; the second payment being due and payable on May 1, 2010; and the final payment being due and payable on August 1, 2010.
Defendant appeals the alimony order.
II. Duration and Amount of Alimony
Defendant’s first two issues on appeal are regarding the duration and amount of alimony awarded by the trial court. “When the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts.” Oakley v. Oakley, 165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (citation, quotation marks, and brackets omitted).
[T]he findings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case. The findings of fact need not set forth the weight given to the factors in section 50-16.3A(b) by the trial court when determining the appropriate amount, duration, and manner of payment, as the weight given the factors is within the sound discretion of the trial court.
Friend-Novorska v. Novorska, 143 N.C. App. 387, 395-96, 545 S.E.2d 788, 794 (footnote omitted), affirmed, 354 N.C. 564, 556 S.E.2d 294 (2001).
North Carolina General Statute § 50-16.3A(b) sets forth the factors which the trial court is to consider as to the duration and amount of an alimony award:
The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends,
and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The 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) (2005). Furthermore, North Carolina General Statute § 50-16.3A(c) requires that the trial “court shall 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 payment.” N.C. Gen. Stat. § 50-16.3A(c) (2005).
A. Duration of Alimony
As to the duration of alimony defendant contends that “the trial court erred in entering . . . an alimony order awarding lifetime alimony to plaintiff with insufficient findings of fact to support the duration of said award.”
1. Capable of Employment and Eligible to Receive Social Security Benefits
As to the duration of the alimony defendant first contends that “[t]he trial court erred in ordering permanent lifetime alimony as the trial court found . . . [p]laintiff . . . capable of employment and eligible to receive social security benefits as the surviving spouse from one of her two prior marriages.” While defendant discusses and challenges various findings of fact, upon review of the entire record, even when we consider only those findings of fact or portions thereof not challenged by defendant, the trial court’s rationale for awarding alimony for an indefinite term is obvious:
11. The Plaintiff has not been employed since 1993 when she left her job at Blue Cross Blue Shield in New Jersey and subsequently moved to North Carolina. She has only one year of community college, no current technological skills and no training in any field of employment in which she could earn a substantial income.
12. . . . During the recent years that the parties lived together as husband and wife, the Defendant earned substantially more money than the Plaintiff.
. . . .
14. At the time of the parties’ marriage, the Defendant did not have a college degree and during the marriage he obtained an accounting degree. He received his B.S. in 1990 and graduated from New Jersey Institute of Technology in 1994. He left his employment with Blue Cross Blue Shield where he and the Plaintiff both
worked prior to the time that the Plaintiff left her employment. The Defendant formed his consulting business, Basis NC, Inc., in 1998.
15. The Plaintiff is entitled to receive $1,360.00 per month in Social Security benefits resulting from her marriage to Russ DiMario. At age 62, the Plaintiff will be entitled to $1,126.00 per month in her own Social Security benefits.
. . . .
17. Plaintiff has volunteered as a companion/home care provider for elderly and infirmed persons for approximately 16 hours per week at intervals of 304 [sic] hours per visit. Due to physical and other limitations discussed more fully below, the Plaintiff would not be likely to be able to work in home health care for more than 20 hours per week and would, therefore, be ineligible for group health insurance. Starting salary ranges from $7.25 per hour to $8.50 per hour depending upon the level of care that the employee is able to provide. The Plaintiff’s physical ability to provide care will likely only decrease with advancing age. Considering that the Plaintiff has the potential to earn $649.50 per month (86.6 hours x $7.50), it is highly improbable that she would be able to do so for more than the next five years at which time she would be 65.
18. The Defendant has an accounting degree from Rutgers University and since 1998 has acted as a consultant to banks to develop new programs and financial systems. In 2006, he was able to charge $125.00 to $150.00 per hour for his services, but due to increasing competition and the downturn in the economy, he is charging $85.00 per
hour in 2009. At that rate and working only 40 to 50 hours per week, which is less than the 50 to 60 hours per week normally worked, and deducting two weeks of unpaid vacation, there is potential to earn $170,000.00 to $212,500.00 per year. However, since the Defendant contracts for specific periods of work, usually less than one year per job, there are times when he is not employed during the entire year. Due to availability of work and decreasing hourly rates, his recent potential to earn has decreased from his personal income of $230,124.00 derived from gross receipts of $398,616.00 in 2006.
. . . .
20. Plaintiff is 60 years old and suffers from chronic hip pain, fibromyalgia, anxiety, high blood pressure and allergies. Due to the hip pain, she is unable to sit for any prolonged period.
21. Carl Hanbury, a mental health therapist and expert in the field of vocational evaluation, of Albemarle Rehabilitation Services, performed a vocational evaluation on the Plaintiff. He determined that the Plaintiff is totally disabled and cites the Plaintiff’s age, heavy medication which decreases alertness, chronic pain and generalized anxiety as the basis for his opinion. . . .1
22. The Defendant is 47 years old and is in excellent health.
. . . .
31. Due to the Plaintiff’s age and physical health, no consideration is given to time necessary for the [Plaintiff] to acquire education necessary to find employment to meet her economic needs.
(Emphasis added.) In other words, defendant is relatively young, healthy, well-educated, and capable of substantial earnings; plaintiff is much older, in poor health, comparatively uneducated, and unqualified for employment which could provide a substantial income. Plaintiff is not capable of the type of work nor is she eligible for the amount of social security benefits necessary to meet her needs.
2. Alleged Expenses
Defendant next contends that “[t]he trial court erred in ordering permanent lifetime alimony as the trial court awarded [p]laintiff . . . support towards alleged expenses that were speculative and would have a limited duration.” Oddly, much of defendant’s argument focuses on the trial court’s reduction of the expenses as provided by plaintiff; defendant’s apparent goal is to point out the unreasonableness of the trial court, though the alleged “unreasonableness” worked in defendant’s favor.
This Court addressed and rejected a similar argument in Bookholt v. Bookholt, 136 N.C. App. 247, 251, 523 S.E.2d 729, 731-32 (1999) (“Defendant argues that, even though the trial
court’s reduction ultimately benefited him, the trial court’s calculations are ‘patently defective’ absent appropriate findings to explain them. Again we disagree. As previously stated, the trial judge is not bound by the financial assertions of the parties and may resort to common sense and every-day experiences. By reducing some of plaintiff’s expenses here, the trial court did not abuse its discretion.”) Just as in Bookholt, here there was substantial evidence as to plaintiff’s expenses, and the trial court properly exercised its discretion in determining plaintiff’s reasonable expenses, including its adjustments. See id.; Whedon v. Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32-33 (“The determination of what constitutes the reasonable needs and expenses of a party in an alimony action is within the discretion of the trial judge, and he is not required to accept at face value the assertion of living expenses offered by the litigants themselves. See Clark, 301 N.C. at 131, 271 S.E.2d at 65 (no rule of law requires a judge to accept a party’s assertion of the amount of alimony needed to maintain a particular standard of living).”), disc. review denied, 306 N.C. 752, 295 S.E.2d 764 (1982).
3. Alimony Guidelines
Lastly, as to the duration of alimony awarded, defendant contends that “[t]he trial court and the parties need a uniform guideline to set a reasonable amount, duration, and the manner of payment of alimony pursuant to N.C. Gen. Stat. § 50-16.3A, so as to ensure equity in all domestic actions in North Carolina[.]” Defendant further notes that “[l]ike the child support guidelines, the parties and the trial court need rebuttable guidelines to calculate, effectively and fairly, spousal support in this case and all cases across the State. ” Although we may agree that a formula for the determination of alimony would be helpful, this Court has no authority or ability to adopt such a formula. Defendant’s arguments would be more appropriately made to the General Assembly. Accordingly, we conclude that the trial court did not err in determining the duration of alimony to be until “the death of either party or upon the Plaintiff’s remarriage or cohabitation.”
B. Amount of Alimony
Defendant next argues that
the trial court erred in setting the amount and payment of alimony, when it determined . . . [defendant’s] current and potential income as a supporting spouse by calculating his earnings using speculative future employment and an unrealistic ratio of past personal income to gross business income, and by failing to consider appropriately the
parties’ separate estates.
(Original in all caps.)
1. Defendant’s Income
As to the amount of alimony defendant first contends that “[t]he trial court improperly imputed income to the Defendant without appropriate findings of fact that were supported by competent evidence.” Defendant argues that the trial court improperly based the alimony award on his earning capacity instead of his actual income.
Our Supreme Court has stated that
[w]e think it certain the Legislature never contemplated the court would select the earnings for a single year in the past and use that as the basis for an award when that year does not fairly represent defendant’s current nor the average of his earnings for several years.
The award should be based on the amount which defendant is earning when alimony is sought and the award made, if the husband is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably.
To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband was failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife. . . .
If the court was of the opinion that it could use as the basis for the award earnings made in some preceding year rather than current earnings, it applied the wrong
yardstick. . . . Plaintiff is entitled to a fair and reasonable allowance for her support and for counsel fees based on defendant’s current earnings. If they are to exceed that sum, there should be specific findings that defendant is not fairly and diligently conducting the business which he has selected as appropriate to earn a livelihood for himself and his wife.
Conrad v. Conrad, 252 N.C. 412, 418, 113 S.E.2d 912, 916 (1960). While defendant is correct that there are no findings of fact to support imputing an income to him, as he was not suppressing his income, the extensive findings of fact, which are not substantively challenged by defendant, show that the trial court did not “impute” income to defendant. Instead, the trial court carefully analyzed the evidence regarding defendant’s income and deductions and considered the nature of defendant’s business. The trial court made the following findings of fact:
24. As stated above, the Defendant’s earned income fluctuates from year to year. He had no contract and was not employed from January, 2008, through March, 2008. For the remainder of 2008, he reported gross receipts for his Subchapter S corporation, Basis NC, Inc., of $225,010.00 but distributions to himself of only $89,547.00. Deductions shown on his personal tax return appear to be proper and as allowed by law.
25. David Edwards, who was qualified as an expert in taxation counseling and financial analysis, raises questions
regarding the appropriateness of deductions reflected on the corporate return. The most significant issue is the location of the Defendant’s “tax home” due to the fact that he has worked extensively in the New York metropolitan area and has rented an apartment there in excess of one year while maintaining his home and another office in North Carolina. His expenses have been deducted from the corporate return relating to maintaining a residence and doing business away from North Carolina which is permissible so long as North Carolina is the “tax home.” While Mr. Edwards’ argument is compelling and creative, the Court notes that over the years, the Defendant has worked on a contract basis for fixed periods of time in various locations across the United States, Canada, and London and although, if audited, the IRS might finds [sic] Mr. Edwards’ argument to be correct, the Court can only find as of the date of this trial that the returns filed have not been challenged by the IRS.
26. The Court looks to the returns as well as evidence offered regarding 2009 income in order to determine the Defendant’s current earned income. The Court received into evidence and considered Defendant’s Exhibits 17, 18, and 19, the Federal tax returns for Basis NC, Inc., and Defendant’s Exhibits 20, 21, and 22 which were the Defendant’s individual tax returns, for 2006[,] 2007, and 2008 respectively. The Defendant’s reported income on Form 1040 was $229,863.00 and $141,230.00. From January 1, 2009, through August, 2009, gross receipts of $172,540.00 were received. For 2006, 2007, and 2008 respectively, percentage of personal income on Form 1040 to gross receipts reported on Form 1120S equaled 57.67%, 48.74% and 53.06% (9 months basis). Based on 2009 receipts, as stated above, and
excluding the month of September, 2009, when the Defendant is not employed, he should have receipts in 2009 of $237,242.50. Applying 53% (an average of personal income to receipts from 2006 through 2008), personal income would equal $125,738.25 or $10,478.00 per month as business profit. Adding mileage reimbursement deducted from the 2008 tax return (average of $2,117.00 per month for nine months) and depreciation expense equal to $493.00 per month (12 month average for 2008), the Defendant’s monthly earned income equals $13,088.00.
27. The Court received into evidence and considered in determining the income of the Defendant, Plaintiff’s Exhibit 9, 2009 Basis NC, Inc., Profit and Loss Statement; Plaintiffs Exhibit 10, 2008 Basis NC, Inc., Profit and Loss and Balance Sheet; Plaintiff’s Exhibit 11, 2007 Basis NC, Inc., Profit and Loss Statement and Balance Sheet; the Defendant’s personal bank statements, Plaintiff’s Exhibit 16; Plaintiff’s personal American Express Statements, Plaintiff’s Exhibit 17; the Plaintiff’s Basis NC, Inc., American Express Statement, Plaintiff’s Exhibit 18; the Defendant’s BP and Shell Card Statements, Plaintiff’s Exhibit 19; and the deposition of Devendra Dorwani and Exhibits, Plaintiff’s Exhibit 25.
Of the aforementioned relevant findings of fact, defendant challenges only finding of fact 26. As to finding of fact 26, defendant argues that the trial court’s calculation of his “ability to earn future income is . . . an inappropriate, unfathomable, and speculative venture[.]” We do not find it so. The trial court noted that “[t]he amount of earned and unearned
income of the parties is of utmost importance to the Court, but is problematic.” We agree that the determination of defendant’s income in this case is problematic, but the findings of fact show that the trial court carefully considered all of the evidence and took into account the effects of the nature of defendant’s business and his accounting practices. Although there may have been evidence to support a higher or lower income for defendant, the trial court did not impute income to defendant and we cannot say that the trial court abused its discretion in determining defendant’s income to be $13,088.00 per month instead of $11,307.20 per month as defendant claimed on his financial affidavit.
2. Findings as to Estates
Defendant next argues that “the trial court’s findings regarding the parties’ estates is [sic] not supported by the evidence.” Defendant contends that the trial court erred in failing to make ” findings as to the total value of either . . . [defendant’s] or . . . [plaintiff’s] estate, their liquidity, or income-producing potential.” Again, we disagree, as the trial court made numerous findings of fact regarding the parties’ estates, including specific findings of fact as to the consent judgment:
28. The Defendant testified that he had purchased a timeshare in France which he had “forgotten about” until he was asked about the purchase when reviewing his various credit card statements at trial.
29. . . . In 1995, the parties purchased an historic house for $140,000.00 and later raised the house and put it on a new foundation, rebuilt box gutters, removed and reframed the roof, installed central heat and air, constructed a new bathroom, purchased new appliances, repaired plaster and painted, replaced flooring and removed a fireplace, among other improvements, all at considerable expense. . . .
30. Pictures of the Shawboro property in various states of repair were received into evidence and considered by the Court as Plaintiff’s Exhibits 27 and 29.
. . . .
32. Pursuant to the Consent Judgment of Equitable Distribution of “Marital Property,” entered by the Honorable C. Christopher Bean on September 4, 2007, and earlier distributive awards, the Plaintiff received $117,886.00 for her interest in the marital estate including her interest in the marital residence and in Basis NC, Inc. At the beginning of this trial for permanent alimony, the Plaintiff had assets of $4,000.00 in a money market account, $3,000.00 in checking and the IRA previously referred to valued at $46,091.79. All cash assets since the date of separation have been used by the Plaintiff to supplement her income and to pay attorneys fees. After payment of attorneys fees for this trial, her only cash asset will be the IRA account.
33. The Plaintiff owns a one-half
undivided interest with right of survivorship with her mother, age 80, in a house located on West Church Street in Elizabeth City. A copy of pictures of this residence were received into evidence and considered by the Court as Plaintiff’s Exhibit 6. The house was purchased after separation for $294,500.00 with the Plaintiff’s mother paying cash and the Plaintiff executing a mortgage for her one-half which mortgage was subsequently satisfied by her mother. By agreement, which is unrecorded, the Plaintiff pays her mother $750.00 per month as reimbursement for her one-half interest. The house is an historic home comparable to the marital residence, but in better condition. Larry Cobb, III, licensed real estate appraiser, has valued the house at $250,000.00 as of July 14, 2009, which the Court finds to be a reasonable appraised value when considering the other houses in the historic area of Elizabeth City which were used as comparables. Other than living expenses, attorneys fees and debt to her mother, the Plaintiff has no other liabilities.
34. The Court received into evidence and considered the Deed to the Plaintiff’s residence as Defendant’s Exhibit 8, the Deed of Trust and Cancellation of the Deed of Trust, as Defendant’s Exhibit 8A and 8B, and an appraisal of the residence as Defendant’s Exhibit 11.
35. The Defendant is the sole shareholder in his Subchapter S corporation, Basis NC, Inc., and is the sole owner of the former marital residence. Larry Cobb, III, licensed real estate appraiser, also appraised the former marital residence finding it to have an appraised value of $155,000.00 as of July 27, 2009. He classified the house as a “fixer upper” and
estimated that an additional expenditure of $50,000.00 could increase the value by an additional $100,000.00. The marital residence is located in rural Shawboro in Currituck County.
36. The Court received into evidence and considered the appraisal of the 823 Shawboro Road as Defendant’s Exhibit 12. The comparables used in that appraisal by Mr. Cobb were not in the general vicinity with two being in the City of Elizabeth City and one other located seven miles away in Camden County. None of the comparables have sold within the last year, but the two rural comparables when last sold brought prices of $281,800.00 and $277,500.00 respectively. While there is still work to be done on the marital residence at an undetermined cost and realizing the complexity of locating historic comparables in close proximity, the Court is unable to accept Mr. Cox’s [sic] appraised value as true market value. In 2005, the house had an appraised value of $360,000.00. A copy of the 2005 appraisal was received into evidence and considered by the Court as Plaintiff’s Exhibit 28. A DVD of the marital residence in its current condition was received into evidence and considered by the Court as Defendant’s Exhibit 32.
37. The Defendant was awarded the former marital residence in a Consent Equitable Distribution Judgment, a copy of which was received into evidence and considered by the Court as Defendant’s Exhibit 31. Following the separation and as a result of the Defendant assuming the ownership of the house, he assumed the existing debt of $215,000.00 on the marital residence and subsequently obtained two equity loans in order, in part, to pay the distributive award to the Plaintiff. On
June 7, 2008, outstanding loans were consolidated into a deed of trust for $345,000.00. As of July 31, 2009, there is a balance of $328,777.32 due on the loan. The Court received into evidence and considered the note for the refinance for the Shawboro residence, Defendant’s Exhibit 27, the Deed of Trust, Defendant’s Exhibit 28, and the HUD Statement for the refinance, Defendant’s Exhibit 29.
38. In 2008, the Defendant spent approximately $63,000.00 on additional renovations to the house having previously spent $8,493.00 on a sound system in 2007. A loan of $55,000.00 was obtained from the Defendant’s mother in 2008. Between January, 2008, and June, 2009, the Defendant’s SEP IRA account was reduced from $83,099.96 to $837.88 by reason of withdrawals.
39. In addition to debt on the marital residence, the Defendant has debt in excess of $50,000.00 due the Bank of America, Best Buy for the surround system, attorneys fees, and as cosigner on a college loan for his adult daughter. A loan of $22,000.00 to the Defendant’s daughter Melissa remains unpaid but is owing to the Defendant. While paying his daughter’s college loan, the Defendant allowed his daughter to charge on his American Express card between November, 2007, and February, 2009, charges of $28,549.91. His daughter has repaid the total of the amount charged. Business and personal expenses included by the Defendant on the American Express card were comingled with those of his daughter including pleasure trips in 2005 and 2007 to Scotland and to France where $16,500.00 was charged, in part to purchase a time share in Paris for $10,820.00.
We thus conclude that the trial court properly considered “[t]he relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support” as required pursuant to N.C. Gen. Stat. § 50-16.3A(b)(10). N.C. Gen. Stat. § 50-16.3A(b)(10).
As to the specific findings of fact defendant first contends that
[i]n the trial court’s finding of fact 36, Larry Thomas Cobb, III, licensed real estate appraiser, testified as to the current value of the former marital residence, which the trial court earlier distributed to the Defendant . . . . While the trial court accepted Mr. Cobb’s appraised value of . . . [plainitff’s] home in finding 33 . . . , its arbitrary rejection of his appraisal in paragraph 36 . . ., and its reliance upon a 2005 appraisal on the former marital residence, which was done as part of a refinance by Countrywide Mortgage, was an abuse of discretion and unsupported by the evidence.
Again, we disagree with defendant’s contentions. The trial court clearly explained its reasoning for rejecting Mr. Cobb’s appraisal of the former marital residence in finding of fact 36:
The Court received into evidence and considered the appraisal of the 823 Shawboro Road as Defendant’s Exhibit 12. The comparables used in that appraisal by Mr. Cobb were not in the general vicinity with two being in the City of Elizabeth City and one other located seven miles away in Camden County. None of the comparables have sold
within the last year, but the two rural comparables when last sold brought prices of $281,800.00 and $277,500.00 respectively. While there is still work to be done on the marital residence at an undetermined cost and realizing the complexity of locating historic comparables in close proximity, the Court is unable to accept Mr. Cox’s [sic] appraised value as true market value.
(Emphasis added.) We do not find the trial court’s stated reasoning to be an abuse of discretion.
Lastly, as to the parties’ estates, defendant argues that in finding of fact 44, “[t]he trial court arbitrarily excluded . . . [defendant’s] expenses related to ‘attorney fees, and college loan for Defendant’s daughter[,]” “failed to consider . . . $4,820.72 . . . of monthly debt paid by” defendant, and “arbitrarily and improperly ignored and deducted the health insurance premiums that . . . [defendant] paid as a monthly expense on behalf of himself and” plaintiff. Finding of fact 44 provided:
The Defendant’s affidavit received into evidence as Defendant’s Exhibit 23 reflects needs of $8,493.62 per month after deducting spousal support and health insurance premiums for the Plaintiff. Debt payments, excluding those to be paid by November, 2009, attorney fees, and college loan for Defendant’s daughter which she has the ability to pay, total $2,100.00 per month. That amount should be reduced to $100.00 per month by April or May, 2010, when Bank of America is scheduled to be paid in full.
Having previously found that the Defendant’s potential earned monthly income is $13,088.00 per month, he clearly has the financial ability to pay alimony and attorneys fees.
We again note that the trial court “is not bound by the financial assertions of the parties and may resort to common sense and every- day experiences” in the determination of the reasonable expenses of each party. Bookholt, 136 N.C. App. at 251, 523 S.E.2d at 732. The trial court was not required to accept all of defendant’s contentions as to his expenses, just as it was not required to accept the plaintiff’s contentions. Accordingly, defendant’s arguments as to the amount of alimony are overruled.
III. Attorney Fees
Finally, defendant contends that “the court committed reversible error in awarding the plaintiff attorney fees by failing to make the necessary conclusions of law that the plaintiff was without sufficient means to defray the costs of litigation and that the defendant could secure the funds to pay the same.” Defendant argues that plaintiff
was not entitled to an award of attorney’s fees, as the evidence showed she had sufficient funds to meet . . . [defendant] in court on equal grounds, and there was no evidence to support the conclusion that . . . [defendant] was able to pay her attorney
fees in the amount of . . . $15,000.00[.] In Barrett v. Barrett, this Court determined:
A spouse is entitled to attorney’s fees if that spouse is (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. Entitlement, i.e., the satisfaction of these three requirements, is a question of law, fully reviewable on appeal. Our holding as to alimony disposes of the first two requirements: plaintiff is a dependent spouse and is entitled to receive 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.
140 N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000). Just as in Barrett, here we have already addressed “the first two requirements: plaintiff is a dependent spouse and is entitled to receive alimony.” Id. Also, just as in Barrett, we therefore review de novo “whether plaintiff had sufficient funds to defray the costs of litigation.” Id.; Davis v. N.C. Dep’t of Crime Control & Pub. Safety, 151 N.C. App. 513, 516, 565 S.E.2d 716, 719 (2002) (“We review questions of law de novo.” (citation and quotation marks omitted)).
Although the trial court should have used the exact language as argued by defendant by concluding that plaintiff was “without sufficient means to defray the costs of litigation[,] ” id., the trial court made extensive findings of fact regarding the plaintiff’s income, assets, and liabilities, many of which we have previously quoted and discussed. As to plaintiff’s ability to pay her attorney fees, the trial court specifically found in finding of fact 32 that:
Pursuant to the Consent Judgment of Equitable Distribution of “Marital Property,” entered by the Honorable C. Christopher Bean on September 4, 2007, and earlier distributive awards, the Plaintiff received $117,886.002 for her interest in the marital estate including her interest in the marital residence and in Basis NC, Inc. At the beginning of this trial for permanent alimony, the Plaintiff had assets of $4,000.00 in a money market account, $3,000.00 in checking and the IRA previously referred to valued at $46,091.79. All cash assets since the date of separation have been used by the Plaintiff to supplement her income and to pay attorneys fees. After payment of attorneys fees for this trial, her only cash asset will be the IRA account.
Thus, it is apparent that plaintiff did not have “sufficient means to defray the costs of litigation[,] ” id., as the attorney fees owed were in excess of her cash assets, her IRA was not readily available, and she had no income except Social Security benefits.
As to defendant’s own ability to pay plaintiff’s attorney fees, defendant argues that he “was unemployed as of September 4, 2009, when there was no contract for work with Basis, N.C., Inc.” We have already addressed the trial court’s findings of fact as to the nature of defendant’s work, so that it was not unusual for defendant to have brief periods of time when he was not working because he “contracts for specific periods of work, usually less than one year per job” which results in “times when he is not employed during the entire year.” Considering the assets distributed to defendant and his income, the trial court did not err by determining that defendant had the ability to pay a portion of plaintiff’s attorney fees. Defendant’s arguments as to the attorney fee award are overruled.
For the foregoing reasons, the trial court’s order is affirmed.
Judge CALABRIA concurs.
Judge HUNTER, JR., Robert N. concurs in result only.
Report per Rule 30(e).
1. Defendant notes that “in paragraph 21 of the trial court’s findings of fact, the court finds Ms. Dorwani totally disabled and unable to earn income.” We note that paragraph 21 is merely a recitation of Carl Hanbury’s determinations and does not state that the trial court found plaintiff “totally disabled[.]”
2. Although plaintiff received a distributive award totaling $117,886.00 the consent judgment reveals that this amount was paid over several years: $8,300.00 on 17 August 2005; $20,000.00 on 2 September 2005; $72,086.13 on 23 March 2007; and $17,500.00 paid within seven days after filing of the consent judgment. The alimony trial began on 6 August 2009, nearly four years after the first payment and two years after the final payment toward the distributive award.