An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                 NO. COA13-1153
                        NORTH CAROLINA COURT OF APPEALS

                                  Filed: 6 May 2014


APRIL R. HUNT,
     Plaintiff,

      v.                                      New Hanover County
                                              No. 10 CVD 5691
JEFFERY H. HUNT,
     Defendant.


      Appeal by defendant from Order entered 6 May 2013 by Judge

J.H. Corpening, II in District Court, New Hanover County.                     Heard

in the Court of Appeals 20 February 2014.


      Lori W. Rosbrugh, for plaintiff-appellee.

      Chris Kremer, for defendant-appellant.


      STROUD, Judge.


      Jeffery Hunt (“defendant”) appeals from an order entered 6

May   2013    distributing       marital   property,    ordering     him   to   pay

alimony      to   his   former    wife,    April    Hunt   (“plaintiff”),       and

ordering him to pay $2,000 of plaintiff’s attorney’s fees. We

affirm in part and remand in part for additional findings.

                                 I.    Background
                                      -2-
      Plaintiff and defendant were married in November 1992 and

divorced on 26 August 2011. They have two daughters, born in

1997 and 1999. On 10 December 2010, Plaintiff filed a complaint

in New Hanover County seeking post-separation support, permanent

alimony,     equitable    distribution,     primary    custody      of    the

children, child support, and attorney’s fees. Issues of post-

separation support, temporary custody, permanent custody, and

child support were resolved by two consent orders. The district

court heard from the parties on the issues of permanent alimony,

equitable distribution, and attorney’s fees on 26 and 27 January

2012, and 21 May 2012.1

      The trial court entered an order resolving all three issues

on 6 May 2013. The trial court distributed the parties’ marital

estate unequally, distributing approximately $22,785 of property

to   plaintiff   and   $18,453   to   defendant.2     It   found   that   “an

unequal division in favor of the Defendant is equitable in this

case.”     The trial court also ordered defendant to pay plaintiff

1
  The hearing was not transcribed, but the parties have provided
a narration of the proceedings in the record.
2
  The trial court sent a letter to the attorneys informing them
how he intended to resolve the case and asking plaintiff’s
attorney to prepare an order.    He attached what appears to be
the spreadsheet he used to distribute the marital property. The
order itself refers to “Schedule A” as the distribution of
property, but that document was not attached to the order. There
is no dispute that the spreadsheet attached to the letter is how
the trial court actually intended to distribute the property
                                       -3-
$800 per month in alimony until the parties’ daughters no longer

attended private school, at which time the amount of alimony

would be increased by the cost of the private school tuition.3

Finally, the trial court found that plaintiff was entitled to

attorney’s   fees    and     ordered   defendant      to    pay    $2,000      of   the

$3,100 billed by plaintiff’s attorney, which included charges

for paralegal services. Defendant filed notice of appeal to this

Court on 5 June 2013.

                       II.    Equitable Distribution

     Defendant      first    argues    that    the    trial       court    erred    in

valuing   plaintiff’s       wedding    ring    and   in    ordering       an   unequal

distribution   of    marital    assets.       We   affirm    the    trial      court’s

valuation of the ring, but remand the equitable distribution

portion of the order to allow the trial court to make adequate

findings to support its conclusion.

A.   Standard of Review

           The standard of review on appeal from a
           judgment entered after a non-jury trial is
           whether there is competent evidence to
           support the trial court’s findings of fact
           and   whether  the   findings  support   the
           conclusions of law and ensuing judgment. The
           trial court’s findings of fact are binding
           on appeal as long as competent evidence

3
  The consent order regarding child support required defendant to
pay for the children’s private school tuition.     This order is
not a subject of this appeal.
                                     -4-
           supports them, despite the existence of
           evidence to the contrary. The trial court’s
           findings    need    only   be   supported    by
           substantial   evidence    to  be   binding   on
           appeal. We have defined substantial evidence
           as such relevant evidence as a reasonable
           mind might accept as adequate to support a
           conclusion. As to the actual distribution
           ordered by the trial court, when reviewing
           an   equitable     distribution   order,    the
           standard   of    review   is   limited   to   a
           determination of whether there was a clear
           abuse of discretion. A trial court may be
           reversed for abuse of discretion only upon a
           showing that its actions are manifestly
           unsupported by reason.

Stovall v. Stovall, 205 N.C. App. 405, 407-08, 698 S.E.2d 680,

683 (2010) (citations, quotation marks, and brackets omitted).

B.     Valuation of Wedding Ring

       Defendant first challenges the trial court’s valuation of

plaintiff’s    wedding   ring   at   $5,000.    He   asserts   that   it   was

actually worth $10,000 because he paid $10,000 for it in or

about 1992; he presented no evidence of the ring’s value as of

the date of separation. Plaintiff testified at the hearing that

she believed the ring to be worth $5,000.            There was no contrary

evidence of the value of the ring as of the date of valuation

and defendant has not argued that this evidence was incompetent.

Therefore,    we   conclude   that   the    evidence   supports   the   trial

court’s valuation of the ring.             See id. at 407, 698 S.E.2d at

683.
                                        -5-
C.   Unequal distribution

     Defendant     next   argues    that      the   trial   court   erred   in

awarding unequal distribution of the marital estate, valued at

$41,238.97. The trial court distributed $22,785.35 to plaintiff

and $18,453.62 to defendant.        The trial court found that

          The Court has considered all factors for
          unequal distribution outlined in N.C.G.S. §
          50-20(c) for both parties and the Court has
          determined that an unequal distribution in
          favor of the plaintiff is equitable based
          upon   the  length   of  marriage, need  to
          Plaintiff to maintain household furnishings
          for cihldren’s [sic] use and that Plaintiff
          is not in a financial position to make any
          distributive payment to Defendant.

The trial court reiterated this finding in its “Conclusions of

Law,” stating that

          [i]n considering whether or not to make an
          equal distribution of the marital estate the
          Court considered all factors under N.C.G.S.
          §   50-20(c)   specifically  considered  the
          length   of   the   parties’  marriage,  the
          inability of the Plaintiff to make a
          distributional payment to the Defendant and
          the need for the Defendant, custodian of the
          minor children to have and use the household
          effects.

It again concluded that “an unequal division in favor of the

Defendant is equitable in this case.”

     First,   we   note   that     it    appears    that    the   trial   court

misstated the party in whose favor an unequal distribution would
                                           -6-
be equitable—it found that an unequal distribution in favor of

defendant    would      be   equitable,      but   distributed       more    of    the

marital estate to plaintiff. Second, the trial court’s finding

that an unequal division is equitable is insufficient to support

its decision to distribute the marital property unequally. This

Court observed in Lucas v. Lucas that the distinction between a

finding like the one made here and the required finding that an

equal distribution is not equitable is not one of “semantics.”

209 N.C. App. 492, 503, 706 S.E.2d 270, 278 (2011). We held that

            in order to divide a marital estate other
            than equally, the trial court must first
            find that an equal division is not equitable
            and explain why. Then, the trial court must
            decide what is equitable based on the
            factors set out in N.C. Gen. Stat. § 50–
            20(c)(1)–(12) after balancing the evidence
            in light of the policy favoring equal
            division.

Id. at 504, 706 S.E.2d at 278.

     Thus,     although      the     evidence    supports    the    trial    court’s

findings, and the court clearly considered the relevant factors,

under Lucas, the trial court’s current findings are inadequate

to   support      its   decision      to    distribute      the    marital    estate

unequally. We therefore must remand for entry of an order with

appropriate       findings    on   these    issues.   Our    decision       does   not

require     the    trial     court    to    distribute      the    marital    estate
                                     -7-
equally, only to make the findings             necessary under        Lucas to

support its order. Additionally, though there is no dispute as

to how the trial court actually distributed the marital estate,

it appears that the trial court may have forgotten to attach

“Schedule   A”   to   its   order,   wherein   it    listed   in    detail   the

distribution of the marital assets. On remand, the trial court

should also correct this omission.

                                III. Alimony

     Defendant    also      argues   that   the     trial   court    erred   in

awarding plaintiff permanent alimony. He does not challenge the

trial court’s finding that plaintiff is entitled to alimony. He

argues that the amount and length of the alimony awarded was not

supported by the trial court’s findings and that the trial court

blurred the distinction between child support and alimony.                    We

disagree and affirm the trial court’s order awarding alimony.

A.   Standard of Review

            As   our   statutes   outline,   alimony   is
            comprised of two separate inquiries. First
            is a determination of whether a spouse is
            entitled to alimony. Entitlement to alimony
            requires that one spouse be a dependent
            spouse and the other be a supporting spouse.
            If one is entitled to alimony, the second
            determination is the amount of alimony to be
            awarded. N.C. Gen. Stat. § 50–16.3A (b). We
            review the first inquiry de novo, and the
            second   under   an   abuse   of   discretion
            standard.
                                     -8-


Romulus v. Romulus, 215 N.C. App. 495, 520-21, 715 S.E.2d 308,

324-25   (2011)      (citations,     quotation    marks,    and     brackets

omitted).

B.   Reasonableness of Expenses

     Defendant first argues that not all of plaintiff’s expenses

were reasonable. He only argues that the $200 per month that

plaintiff donates to her church is unreasonable. He cites no law

in   support   of     his   claim.    “[T]he     determination      of    what

constitutes the reasonable needs and expenses of a party in an

alimony action is within the discretion of the trial court.”

Parsons v. Parsons, ___ N.C. App. ___, ___, 752 S.E.2d 530, 533

(2013) (citation and quotation marks omitted). This argument is

without merit.

C.   Evidence of Marital Misconduct

     Next, defendant contends that the trial court’s findings on

indignities    and   marital   misconduct      were   unsupported    by    the

evidence. The trial court found that

            16. Phone records introduced by Plaintiff
            showed that numerous phone calls and text
            messages between Defendant and a female co-
            worker were made from and received by
            Defendant’s phone on weekends, and after
            working hours, some very late at night and
            exceeding one hour.
                                     -9-
             17. Defendant was not able to provide any
             reasonable   business  explanation  of  the
             numerous communications with the female co-
             worker and his own testimony indicated that
             at   a   minimum    he  had   developed  an
             inappropriate emotional relationship with
             her.

             18. Plaintiff testified that Defendant left
             the house at night, providing explanations
             that   were   not   reasonable    under   the
             circumstances, and that Plaintiff found male
             enhancement pills and K-Y spray in the
             pockets of Defendant’s jacket, for which he
             had no reasonable explanation. Said conduct
             indirectly and collectively amounted to a
             series   of   indignities   which    rendered
             Plaintiff’s condition intolerable and life
             burdensome.

Each one of these findings was supported by evidence at the

hearing.     The only remaining question is whether this conduct

constitutes indignities.

             There is no hard and fast rule as to what
             constitutes indignities. Rather, the courts
             make this determination based on the facts
             and   circumstances   of   each  case.   The
             fundamental characteristic of indignities is
             that it must consist of a course of conduct
             or continued treatment which renders the
             condition of the injured party intolerable
             and life burdensome. The indignities must be
             repeated and persisted in over a period of
             time.

Schmeltzle v. Schmeltzle, 147 N.C. App. 127, 129-30, 555 S.E.2d

326,   328    (2001)   (citations,    quotation   marks,   and   emphasis

omitted).
                                            -10-
       In Evans v. Evans, we affirmed a finding of indignities

where, inter alia, the wife kept condoms in her purse despite

the fact that the parties were no longer engaging in sexual

relations and where the wife had engaged in sexually explicit e-

mails with a Chapel Hill physician.                  169 N.C. App. 358, 364, 610

S.E.2d 264, 269 (2005). Additionally, the wife in Evans took

three trips, each three or four nights, without telling her

husband where she was going. Id.

       Here,     the     trial      court    found        that   defendant       had      an

inappropriately close relationship with a female co-worker over

a period of time prior to separation, repeatedly left the house

at night without explanation, and was caught with sexual items

for which he did not have an adequate explanation. We conclude

that the trial court did not err in finding that defendant’s

conduct here constituted indignities.

D.     Reallocation of child support to alimony

       Defendant next contends that the trial court blurred the

distinction between child support and alimony by providing that

when    the    minor     children      no     longer       attend      private   school,

defendant      will    have    to    increase       the    alimony     payment      by    the

equivalent      amount.       Defendant      does    not    argue      that   the    trial

court’s       findings    on     plaintiff’s         income      and    expenses         were
                                     -11-
unsupported by the evidence or that she has not demonstrated a

need for alimony. This provision does not blur the distinction

between child support and alimony, but simply recognizes that

when defendant no longer has to pay over $750 per month in

private school tuition, his ability to pay alimony changes.                     In

addition,     plaintiff’s   need     for     alimony    exceeds    defendant’s

current ability to pay, as he is also paying child support and

tuition.      Consideration    of    these    facts    is   appropriate.     See

Robinson v. Robinson, 210 N.C. App. 319, 328, 707 S.E.2d 785,

792 (2011) (noting that “a critical issue is the supporting

spouse’s actual ability to make alimony payments.”). Therefore,

this argument is meritless.

E.    Amount and duration of alimony

      Finally, defendant contends that the trial court failed to

set forth the reasons for the amount and duration of alimony.

This argument is premised on an assertion that is simply untrue.

The   trial   court   specifically    made     findings     on    the   parties’

income and expenses, the length of their marriage, defendant’s

marital    misconduct,   and   the    fact    that     defendant    has   had   a

successful career as a bank executive. Meanwhile, “[p]laintiff

has worked when she had the opportunity, but has devoted most of

her married life to raising the party’s children, taking care of
                                           -12-
the marital home and assisting Defendant in the advancement of

his career including multiple interstate moves with Defendant

for   said   purpose.”       All    of    these     findings    explain       the   trial

court’s decision to award $800 per month in permanent alimony.

Defendant has failed to show any abuse of discretion.

                              IV.     Attorney’s Fees

      Defendant argues that the trial court erred in including

the   time    billed    by     the       paralegal        employed   by     plaintiff’s

attorney in awarding attorney’s fees. We disagree.

      “A trial judge, acting within his discretion, may consider

and   include    in    the   sum     he    awards     as    attorney[’]s      fees    the

services     expended    by        paralegals       and     secretaries     acting      as

paralegals if, in his opinion, it is reasonable to do so.” Lea

Co. v. North Carolina Bd. of Transp., 323 N.C. 691, 695, 374

S.E.2d 868, 871 (1989). The trial court here determined it was

reasonable to include the services of the paralegal in the cost

of attorney’s fees. It did not abuse its discretion in doing so.4

      Defendant next argues that the trial court “failed to find

the   required    relationship            between    customary       fees    and    those

requested.”      He     does        not      challenge        the     trial        court’s

4
  We also note that as the hourly charges for a paralegal are
less than for the attorney, use of paralegal services actually
is more economical for the client or for the opposing party who
may ultimately be ordered to pay these costs.
                                   -13-
determination that defendant is entitled to attorney’s fees for

her alimony claims under N.C. Gen. Stat. § 50-16.4 (2011). The

trial court found that plaintiff had incurred attorney’s fees in

the amount of $3,100.24 in relation to her alimony claim. It

further found that “[i]t is the Plaintiff’s attorney’s opinion

that the reasonable value of the services, up to and including

the date of this Order for prosecution of the alimony claim is

$3,100.24.” This finding is insufficient as currently written.

It is for the trial court, not plaintiff’s attorney, to decide

the reasonableness of the fees and the trial court must make a

specific finding that the attorney’s fees were reasonable “in

comparison with that of other lawyers.” Coleman v. Coleman, 74

N.C. App. 494, 499, 328 S.E.2d 871, 874 (1985) (citation and

quotation marks omitted).        Reciting testimony or the opinion of

a witness cannot substitute for a finding of fact. In re H.J.A.,

___ N.C. App. ___, ___, 735 S.E.2d 359, 363 (2012). Thus, we

must remand for the trial court to make adequate findings of

fact in this regard.

                            V.     Conclusion

    For   the   foregoing   reasons,      we   remand   the   trial   court’s

order to make adequate findings as to equitable distribution and
                             -14-
attorney’s fees. We affirm the portion of the trial court’s

order awarding alimony.

    AFFIRMED, in part; REMANDED, in part.

    Judges CALABRIA and DAVIS concur.

    Report per Rule 30(e).
