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Domestic Relations – Parent & Child – Support – Father’s Income – Alimony – Attorney’s Fees

Defendant’s financial affidavit indicated that he earned a salary of $9,395.60 plus $1,141.50 in non-guaranteed bonus, and he testified that he earned $11,037.10, including a non-guaranteed bonus; nevertheless, the trial court found that defendant earned $10,968.83 per month. The trial court’s finding is not supported by competent evidence.

In addition, plaintiff concedes that, in its child support calculation, the trial court failed to properly account for defendant’s payment of $150 per month for the children’s health insurance.

We vacate (1) the trial court’s calculation of defendant’s income and the amount of child support owed, (2) the conclusion that defendant is the supporting spouse, (3) the award of alimony, (4) the equitable distribution award, and (5) the denial of plaintiff’s request for attorney’s fees. Otherwise, we affirm. Remanded.

Although the trial court made findings as to defendant’s income, the order contains no findings regarding his expenses or needs. Thus, the order’s conclusion that defendant was a supporting spouse is unsupported by the findings.

After the parties moved to North Carolina and before they sold their New Jersey home, defendant paid the mortgage on the New Jersey home. The trial court divided the proceeds from the sale equally.

We conclude the trial court, at least in part, distributed the marital property to plaintiff, who did not make the payments or have post-separation use of the property. Under our case law, the trial court is required to consider defendant’s payments as either a credit or a G.S. § 50-20(c) factor – to the extent the trial court distributed the property to plaintiff. There is evidence of defendant’s payments, no finding regarding credibility, and a failure to either credit defendant or consider the payments under § 50-20(c).

Based on the evidence presented, we conclude the trial court erred by failing to properly credit defendant’s payments or consider the payments as a § 50-20(c) factor, to the extent the trial court distributed the property to plaintiff. Accordingly, we vacate the trial court’s equitable distribution award and remand for findings and conclusions in accordance with this opinion.

The trial court concluded plaintiff was a dependent spouse and entitled to alimony. The trial court then denied plaintiff’s request for attorney’s fees. However, the trial court made no findings regarding whether she possessed sufficient means to pay her own attorney’s fees. As such, the denial of plaintiff’s request for attorney’s fees is unsupported by the findings of fact. We vacate this portion of the order and remand for further findings.

Vacated and remanded in part; affirmed in part.

Hewitt v. Hewitt (Lawyers Weekly No. 012-072-18, 21 pp.) (Robert Hunter Jr., J.) Appealed from Mecklenburg County District Court (Alicia Brooks, J.) Jonathan McGirt for plaintiff; Amy Simpson for defendant. N.C. App. Unpub.


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