              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-253

                                 Filed: 5 April 2016

Iredell County, No. 13 CVD 1797

KEVIN S. LASECKI, Plaintiff,

             v.

STACEY M. LASECKI, Defendant.


      Appeal by plaintiff from order entered on 28 August 2014 by Judge Edward L.

Hedrick, IV in District Court, Iredell County. Heard in the Court of Appeals on 9

September 2015.


      Homesley, Gaines & Dudley, LLP, by Edmund L. Gaines and Christina
      Clodfelter, for plaintiff-appellant.

      Katherine Freeman, PLLC, by Katherine Freeman, for defendant-appellee.


      STROUD, Judge.


      Kevin S. Lasecki (“plaintiff”) appeals from an order in which the trial court

ordered specific performance of his prospective support obligations under a

separation agreement, requiring that he pay $2,900.00 monthly in child support,

$1,385.00 monthly in alimony, and $9,592.50 in attorneys’ fees. The trial court also

entered money judgments of $54,432.31 for child support and alimony arrearages and

$16,623.45 for an unpaid joint credit card debt. Plaintiff argues that (1) the trial

court erred in awarding the two money judgments; (2) the trial court erred in ordering
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specific performance of $2,900.00 monthly in child support; (3) competent evidence

does not support the trial court’s findings as to the children’s reasonable needs; (4)

the trial court erred in ordering specific performance of $1,385.00 monthly in alimony;

and (5) the trial court erred in awarding $9,592.50 in attorneys’ fees. We affirm in

part, vacate in part, and remand.

                                  I.      Background

      Plaintiff and Stacey M. Lasecki (“defendant”) married in 1993, and three

children were born to the marriage. On 24 August 2012, plaintiff and defendant

separated and executed a Separation Agreement, which resolved issues of child

custody, equitable distribution, child support, alimony, and attorneys’ fees. In the

Separation Agreement, the parties agreed that plaintiff would pay defendant

$2,900.00 per month in child support and $3,600.00 per month in alimony. The

parties also agreed that plaintiff would pay a joint credit card debt. The parties

further agreed that in the event that either party breached the Separation

Agreement, that party would be liable for the other party’s attorneys’ fees.

      On 1 August 2013, plaintiff filed a complaint alleging that his income had

significantly decreased since the Separation Agreement’s execution and requested

that the trial court issue an order setting his child support obligation pursuant to the

North Carolina Child Support Guidelines.            On 19 September 2013, defendant

answered and counterclaimed for specific performance of plaintiff’s child support and



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alimony obligations under the Separation Agreement. Defendant also sought specific

performance of payment of child support and alimony arrearages, payment of the

unpaid joint credit card debt, attorneys’ fees, and “such other and further relief as to

the court may seem just, fit and proper.”

      On 1 May 2014, plaintiff’s employer terminated his employment. On 17 and

18 July 2014, while plaintiff was still unemployed and seeking a new job, the trial

court held a hearing on the pending claims. On or about 21 July 2014, Frontline

Products, LLC (“Frontline”) offered plaintiff a job in Arizona, which plaintiff

immediately accepted. On 23 July 2014, plaintiff moved to reopen the case to allow

additional testimony regarding his new employment and income. On 14 August 2014,

the trial court denied plaintiff’s motion. On 28 August 2014, the trial court entered

an order concluding that the $2,900.00 monthly child support amount set forth in the

Separation Agreement was reasonable and that plaintiff was able to pay the full

$2,900.00 monthly amount in child support and a reduced amount of $1,385.00

monthly in alimony. The trial court ordered as specific performance that plaintiff pay

these monthly amounts as well as $9,592.50 for defendant’s attorneys’ fees and

awarded money judgments of $54,432.31 for the child support and alimony

arrearages and $16,623.45 for the unpaid joint credit card debt.

      On 3 September 2014, plaintiff moved for a new trial arguing that the trial

court should consider his new employment and income and that it erred in imputing



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to him an annual income of $150,000.00. On 10 September 2014, the trial court

denied plaintiff’s motion. On 23 September 2014, plaintiff gave timely notice of

appeal from the trial court’s 28 August 2014 order.

     II.    Child Support and Alimony Arrearages and Joint Credit Card Debt

      Plaintiff first argues that the trial court erred in granting defendant two money

judgments in its order: (1) $54,432.31 in damages for the child support and alimony

arrearages; and (2) $16,623.45 in damages for failure to pay the unpaid joint credit

card debt pursuant to the Separation Agreement. Relying exclusively on NCNB v.

Carter, plaintiff contends that the trial court erred in awarding these money

judgments, because in her pleadings, defendant requested only specific performance

of these unpaid amounts. See NCNB v. Carter, 71 N.C. App. 118, 121-23, 322 S.E.2d

180, 183-84 (1984). We distinguish Carter.

      In Carter, the defendants appealed from the trial court’s ruling denying their

post-verdict motion for treble damages and attorneys’ fees pursuant to the Unfair and

Deceptive Trade Practices Act. Id. at 121, 322 S.E.2d at 183; see also N.C. Gen. Stat.

ch. 75 (2013). This Court affirmed the trial court’s ruling:

             [T]he relief granted must be consistent with the claims
             pleaded and embraced within the issues determined at
             trial, which presumably the opposing party had the
             opportunity to challenge. Simply put, the scope of a lawsuit
             is measured by the allegations of the pleadings and the
             evidence before the court and not by what is demanded.
             Hence, relief under [North Carolina Rule of Civil
             Procedure] 54(c) is always proper when it does not operate


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             to the substantial prejudice of the opposing party. Such
             relief should, therefore, be denied when the relief
             demanded was not suggested or illuminated by the
             pleadings nor justified by the evidence adduced at trial.
                    In the present case, neither the pleadings nor the
             evidence adduced at trial suggested that the defendants
             were proceeding on an unfair and deceptive trade practice
             claim. Defendants tried their case without reference to or
             reliance upon G.S. 75-1.1 et seq. Similarly, [the plaintiff]
             defended its case solely as a defense to common law fraud,
             and it did not litigate or assert any defenses to an unfair
             and deceptive trade practice claim. To permit defendants
             to change legal theories after the trial and verdict would
             not only deprive [the plaintiff] of a jury determination on
             that claim, but would subject [the plaintiff] to liability on a
             claim which it had no opportunity to evaluate or defend.
             Unquestionably proof of fraud necessarily constitutes a
             violation of G.S. 75-1.1, and under ordinary circumstances
             defendants would be entitled automatically to treble the
             damages fixed by the jury. However, fundamental fairness
             and due process required that [the plaintiff] be illuminated
             as to the substantive theory under which defendants were
             proceeding and to the possibility of the extraordinary relief
             sought prior to defendant’s post-verdict motion for treble
             damages.

Carter, 71 N.C. App. at 121-22, 322 S.E.2d at 183 (citations, quotation marks, and

brackets omitted).   The defendants did not request or raise the issue of treble

damages until after the verdict. See id., 322 S.E.2d at 183.

      In contrast, here, defendant specifically requested in her counterclaims that

plaintiff pay the child support and alimony arrearages and the unpaid amount owed

on the joint credit card.      Although plaintiff requested an order for specific

performance, she also requested “such other and further relief as to the court may



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seem just, fit and proper.” In addition, at the hearing, defendant’s counsel cross-

examined plaintiff specifically on the issues of the child support and alimony

arrearages and the unpaid amount owed on the joint credit card. By awarding these

unpaid amounts as money judgments, the trial court did not grant relief which “was

not suggested or illuminated by the pleadings nor justified by the evidence adduced

at trial.” See id. at 122, 322 S.E.2d at 183; N.C. Gen. Stat. § 1A-1, Rule 54(c) (2013)

(“Except as to a party against whom a judgment is entered by default, every final

judgment shall grant the relief to which the party in whose favor it is rendered is

entitled, even if the party has not demanded such relief in his pleadings.”).

Accordingly, we hold that the trial court did not err in awarding these unpaid

amounts as money judgments.

                                III.    Child Support

      Plaintiff argues that the trial court erred in ordering specific performance of

the Separation Agreement’s entire child support obligation. Plaintiff specifically

contends that the trial court erroneously imputed income to plaintiff in determining

the proper child support amount.

A.    Standard of Review

      In Pataky v. Pataky, this Court established the following test for determining

the appropriate amount of child support where the parties have executed an

unincorporated separation agreement:



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             [I]n an initial determination of child support where the
             parties have executed an unincorporated separation
             agreement that includes provision for child support, the
             court should first apply a rebuttable presumption that the
             amount in the agreement is reasonable and, therefore, that
             application of the guidelines would be inappropriate. The
             court should determine the actual needs of the child at the
             time of the hearing, as compared to the provisions of the
             separation agreement.          If the presumption of
             reasonableness is not rebutted, the court should enter an
             order in the separation agreement amount and make a
             finding that application of the guidelines would be
             inappropriate. If, however, the court determines by the
             greater weight of the evidence that the presumption of
             reasonableness afforded the separation agreement
             allowance has been rebutted, taking into account the needs
             of the children existing at the time of the hearing and
             considering the factors enumerated in the first sentence of
             G.S. § 50-13.4(c), the court then looks to the presumptive
             guidelines established through operation of G.S. § 50-
             13.4(c1) and the court may nonetheless deviate if, upon
             motion of either party or by the court sua sponte, it
             determines application of the guidelines would not meet or
             would exceed the needs of the child or would be otherwise
             unjust or inappropriate.

Pataky v. Pataky, 160 N.C. App. 289, 305, 585 S.E.2d 404, 414-15 (2003) (emphasis

added and quotation marks, footnote, and ellipsis omitted), aff’d per curiam, 359 N.C.

65, 602 S.E.2d 360 (2004). The first sentence of N.C. Gen. Stat. § 50-13.4(c) provides:

                    Payments ordered for the support of a minor child
             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.



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N.C. Gen. Stat. § 50-13.4(c) (2013) (emphasis added).

      In conducting this two-part analysis, the trial court must make findings of fact

and conclusions of law.    Pataky, 160 N.C. App. at 305-06, 585 S.E.2d at 415.

“[F]indings of fact by the trial court supported by competent evidence are binding on

the appellate courts even if the evidence would support a contrary finding.

Conclusions of law are, however, entirely reviewable on appeal.” Scott v. Scott, 336

N.C. 284, 291, 442 S.E.2d 493, 497 (1994) (citation omitted).

B.    Imputation of Income

      The trial court may impute income to a party only upon finding that the party

has “deliberately depressed his income or deliberately acted in disregard of his

obligation to provide support”:

                    Generally, a party’s ability to pay child support is
             determined by that party’s actual income at the time the
             award is made. A party’s capacity to earn may, however,
             be the basis for an award where the party deliberately
             depressed his income or deliberately acted in disregard of
             his obligation to provide support.
                    Before earning capacity may be used as the basis of
             an award, there must be a showing that the actions
             reducing the party’s income were taken in bad faith to
             avoid family responsibilities. Yet, this showing may be met
             by a sufficient degree of indifference to the needs of a
             parent’s children.

McKyer v. McKyer, 179 N.C. App. 132, 146, 632 S.E.2d 828, 836 (2006) (citations and

quotation marks omitted), disc. review denied, 361 N.C. 356, 646 S.E.2d 115 (2007);

see also Pataky, 160 N.C. App. at 306-08, 585 S.E.2d at 415-16 (holding that the trial


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court had erroneously imputed the income that the defendant had made at his last

job absent evidence of bad faith); Bowers v. Bowers, 141 N.C. App. 729, 732, 541

S.E.2d 508, 510 (2001).     In addition, in order to award the remedy of specific

performance, the trial court generally must find that that “such relief is feasible”:

                    As a general proposition, the equitable remedy of
             specific performance may not be ordered unless such relief
             is feasible; therefore courts may not order specific
             performance where it does not appear that defendant can
             perform. In the absence of a finding that the defendant is
             able to perform a separation agreement, the trial court may
             nonetheless order specific performance if it can find that
             the defendant has deliberately depressed his income or
             dissipated his resources.
                    In finding that the defendant is able to perform a
             separation agreement, the trial court is not required to
             make a specific finding of the defendant’s “present ability
             to comply” as that phrase is used in the context of civil
             contempt. In other words, the trial court is not required to
             find that the defendant possesses some amount of cash, or
             asset readily converted to cash[,] prior to ordering specific
             performance.

Condellone v. Condellone, 129 N.C. App. 675, 682-83, 501 S.E.2d 690, 695-96

(citations, quotation marks, and brackets omitted), disc. review denied, 349 N.C. 354,

517 S.E.2d 889 (1998).

      In sum, where the parties have executed an unincorporated separation

agreement, the trial court must examine whether the presumption of reasonableness

afforded the separation agreement has been rebutted, “taking into account the needs

of the children existing at the time of the hearing and considering the factors



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enumerated in the first sentence of G.S. § 50-13.4(c)[.]” Pataky, 160 N.C. App. at 305,

585 S.E.2d at 415. If the trial court concludes that the parties have not rebutted this

presumption, the trial court should then determine to what extent the supporting

parent “is able to perform” under the agreement. Condellone, 129 N.C. App. at 682-

83, 501 S.E.2d at 695-96. The trial court may then order specific performance and

require the supporting parent to pay that amount. See id., 501 S.E.2d at 695-96. But

the trial court may not impute income to the supporting parent absent a finding that

the supporting parent “deliberately depressed his income or deliberately acted in

disregard of his obligation to provide support.” McKyer, 179 N.C. App. at 146, 632

S.E.2d at 836 (citation omitted); see also Pataky, 160 N.C. App. at 306-07, 585 S.E.2d

at 415-16; Bowers, 141 N.C. App. at 732, 541 S.E.2d at 510.

       The trial court based its conclusion of law that the $2,900.00 monthly amount

set forth in the Separation Agreement was reasonable on numerous detailed findings

of fact:

             7.    Plaintiff remarried approximately two weeks before
             the hearing and lives with his Wife. His Wife is employed
             at Granger Corporation.

             8.      The [plaintiff] and his current Wife live in a 4
             bedroom, 2.5 bath home in Morrison Plantation. The home
             is rented for $1,650.00 per month and Plaintiff’s Wife pays
             the entire rent. The home is currently occupied by
             Plaintiff, Plaintiff’s Wife, and her two children in addition
             to his three children when they visit. He desires more time
             with his children, closer to fifty percent (50%). The three
             children attend public school and those schools are close to


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Plaintiff’s home.

9.     Since the date of separation the Plaintiff has never
been in town enough to exercise his 15 nights per month,
until his recent unemployment. When employed, he
generally visited every other weekend. His attempt to
name the children’s schools at trial was inaccurate. He
exercised a week of visitation in July and took the children
to the beach for his wedding.

10.    During the marriage and after the date of separation
the Defendant has been the primary caretaker for the
minor children. During the marriage Plaintiff travelled
extensively, while Defendant generally stayed home with
the children. Near the date of separation, Defendant held
a part-time job of approximately 8 hours per week.

....

13.   At the time the parties entered into the Separation
Agreement the Plaintiff travelled with his work 75% to
80% of the time. He was employed with Bath Solutions,
Inc. and was employed with that company for
approximately 4 years. Prior to that employment, Plaintiff
was employed with another company in sales for
approximately 19 years. That company was named Dial
and later Henkle. Plaintiff’s job was also in sales and at
the end of his career with that company he was earning
$150,000.00 per year.

14.    Pursuant to the Separation Agreement paragraph
16(e) the Plaintiff received an IRA with Davidson Wealth
Management in the amount of $185,000.00 and he has
maintained that asset, although he has taken some
distributions since the division of property. Even after the
distributions, the account has a current balance of
approximately $180,000.00.        He received two boats
pursuant to the Separation Agreement and has sold both
of them. A few months after the date of separation he
received net proceeds of $2,000.00 for one of them and


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recently received $13,600.00 for the other.

15.    On May 13, 2013, the [plaintiff] lost his job with BSI
due to soft sales and the companies’ hiring of a family
member. Within one week he found a job with Phoenix
Sales and Distribution. Although his travel was cut
significantly, Plaintiff continued to travel frequently with
his employment. His annual income with this employment
was $160,000.00. In August 2013 Plaintiff was offered a
position in sales with Frontline with an annual salary of
$255,000.00. Plaintiff asked Defendant and the children to
move to Arizona but she declined. Because he did not wish
to move away from his children, he declined the position.
In January 2014 Plaintiff’s salary was cut with Phoenix
Sales to $80,000.00.       Plaintiff was terminated from
Phoenix Sales on May 1, 2014. He continued to cover the
children on his health insurance through a COBRA plan at
a cost of $580.00 per month. As of the date of trial, the
Plaintiff learned that he could add his children to a policy
at his Wife’s employment for an additional $250.00 per
month. Plaintiff has applied for unemployment [benefits]
but has yet to receive benefits. The expected benefits
would be $350.00 per week. Plaintiff has looked for
employment through friends in the industry. He has
contacted his previous employer, Henkle/Dial. He has also
contacted Frontline and is hopeful that he can secure a
position with that company. This job prospect is favorable
and he has again asked Defendant to move with the
children to Arizona. Defendant does not intend to move to
Arizona.

16.    In 2013 the parties were offered an early pension
distribution from Henkle also known as Dial, a former
employer of the Plaintiff. This pension had been divided
by a QDRO pursuant to paragraph 16(h) of the Separation
Agreement. Plaintiff accepted the offer and received
$46,636.99. Defendant did not accept the offer and retains
her interest in the pension plan.

17.   The Defendant and the minor children lived in the


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marital home until it was sold by short sale in July of 2013.

18.    When Plaintiff was employed he was paid every two
weeks. He did not comply with his obligations under the
Separation Agreement. He did send to Defendant [one
half] of his net pay 2 times per month. The two extra pay
checks Plaintiff received per year he kept for himself.

....

22.   In 2013 the Plaintiff had the following deposit
accounts:

 Account                Balance 1/1/13            Balance
                                                  11/12/13
 [Checking account]           $29,794.65        $13,567.96
 IRA [account 1]             $198,693.13       $187,919.44
 IRA [account 2]              $20,526.69        $23,296.16
 Roth IRA [account]            $3,886.75         $4,262.35
 Total                       $252,901.22       $229,045.91

23.   In Plaintiff’s [checking account], he had an ending
balance during the following months as outlined below:

 Date                          Ending Balance
 9/30/13                       $18,862.12
 10/23/13                      $15,165.52
 11/20/13                      $15,827.20
 12/20/13                      $12,889.85
 1/23/14                       $49,692.19
 2/20/14                       $35,864.01
 3/21/14                       $31,774.86

The funds creating these balances included wages and
early retirement distributions.

24.   Defendant is employed with Hawthorns Holding
Group and Davidson Pizza Company. She serves as a
manager for Davidson Pizza Company and completes tasks
associated with accounts payable with Hawthorns Holding

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Group.   She earns $12.00 [per hour] and works
approximately 30 hours per week. She has had this
employment since August 27, 2013.

25.      Defendant has taken three distributions from the
IRA that she was distributed under the Separation
Agreement. In 2013 she took $12,000.00 to $15,000.00 and
in . . . 2014 she has taken $9,600.00. Her original division
under paragraph 16(e) [of the Separation Agreement] was
approximately $162,000.00.

26.    In 2011 Plaintiff’s wages, salaries and tips were
$286,505.00; in 2012 $264,446.00; in 2013 $182,288.00 (in
addition the Plaintiff took IRA distributions in the sum of
$28,821.00 and a pension distribution in the sum of
$46,637.00).

27.    Plaintiff’s reasonable monthly expenses excluding
his support obligations under the Separation Agreement
living separate and apart from the Defendant can be found
in the following table:

Expense                Amount Comment

Rent                    $825.00 [one half] current
                                amount [because]
                                shared with Wife who
                                is employed
Health Insurance        $250.00 Incremental addition to
                                Wife’s plan
Food Expense            $200.00 Plaintiff’s 6/12/14
                                Affidavit
Truck Lease             $615.00
Car Insurance           $150.00 No boats remain
Cell Phone               $50.00 Plaintiff’s 6/2/14
                                Affidavit
Uninsured                $75.00 Plaintiff’s 6/12/14
Medical Expenses                Affidavit
Direct TV                $75.00
Electricity             $135.00

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Life Insurance         $230.00
Gasoline               $300.00 Higher of Plaintiff’s
                               Affidavits
Clothing and           $150.00
Household Goods
Dog                     $50.00 Lower of Plaintiff’s
food/maintenance               Affidavits
Internet Service        $50.00 Lower of Plaintiff’s
                               Affidavits
Water                   $85.00 Higher of Plaintiff’s
                               Affidavits
Entertainment          $300.00
Lawn                   $150.00
Maintenance
TOTAL                 $3,690.00


28.    The parties presented little evidence regarding the
past expenses or current actual needs of the minor
children. The Separation Agreement reveals that each of
the parties had an automobile at the date of separation and
the parties had two boats. They had college savings plans
for the two older children. They lived in a home which
suffered the risk of foreclosure. Plaintiff communicates
with the oldest daughter electronically.        Within the
Separation Agreement the parties agreed that the
appropriate sum to be paid by Plaintiff to Defendant was
$2,900.00 per month. The children attend public school.
The Court is able to estimate some of the reasonable needs
of the minor children by comparing them to the reasonable
needs of the Plaintiff. The reasonable needs of the minor
children living primarily with the Defendant can be found
in the following table:

Expense               Amount Comment
Rent                   $825.00 [one half] of total
                               similar fixe[d] expense
                               of Plaintiff
Health Insurance         $0.00 Provided by Plaintiff


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Food Expense          $600.00 3 x Plaintiff, assumes
                              each teenage child eats
                              as much as Plaintiff
Truck Lease           $615.00 Assumes [one half] total
                              fixed expense similar to
                              Plaintiff plus a car for
                              17 [year] old child [one
                              half] value of Plaintiff
Car Insurance         $225.00 Assumes [one half] total
                              fixed expense similar to
                              Plaintiff plus a car for
                              17 [year] old child [one
                              half] value of Plaintiff
Cell Phone            $100.00 Each teenage (2) child
                              with same cell phone as
                              Plaintiff
Uninsured             $225.00 3 x Plaintiff
Medical Expenses
Direct TV              $37.50 [one half] fixed expense
                              of Plaintiff attributed to
                              children
Electricity            $67.50 [one half] fixed expense
                              of Plaintiff attributed to
                              children
Gasoline              $450.00 Assumes [one half] total
                              fixed expense similar to
                              Plaintiff plus a car for
                              17 [year] old child
Clothing and          $450.00 3 x Plaintiff
Household Goods
Dog                    $25.00 [one half] fixed expense
food/maintenance              of Plaintiff attributed to
                              children
Internet Service       $25.00 [one half] fixed expense
                              of Plaintiff attributed to
                              children
Water                  $42.50 [one half] fixed expense
                              of Plaintiff attributed to
                              children
Entertainment         $900.00 3 x Plaintiff

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                 Lawn                        $75.00 [one half] fixed expense
                 Maintenance                        of Plaintiff attributed to
                                                    children
                 TOTAL                    $4,662.50


                29.    The children have generally been covered by medical
                insurance throughout their lives by policies provided by
                Plaintiff’s employer. The parties’ estates can be found
                above. Each is now renting a home. Their primary assets
                appear to be retirement [accounts] divided pursuant to the
                Separation Agreement.         Plaintiff has continued to
                contribute to retirement plans after the date of separation.
                The Plaintiff has enjoyed high earnings and the children
                enjoyed the benefit of his earnings throughout the
                marriage and most of the separation. His payments to
                Defendant under the Separation Agreement can be found
                above. The accustomed standard of living of the parties
                and the children were high prior to the separation of the
                parties and it has been comfortable since the separation.
                Defendant contributed as a homemaker during the
                marriage. Plaintiff’s lowest salary was $80,000.00 just
                prior to his recent termination. Defendant is currently
                earning as much as she has since the date of separation,
                $18,720.00. It would therefore be reasonable for Plaintiff to
                provide for not less than 81% of the needs of the minor
                children.[1] Pursuant to the Separation Agreement the
                Plaintiff [must] pay the Defendant $2,900.00 per month.
                Eighty-one percent of the reasonable needs found above are
                over $3,776.62 per month. Considering these factors, [t]he
                Court cannot find that the amount of support provided for
                in the parties’ Agreement is unreasonable.

(Emphasis added.) The trial court concluded that plaintiff had failed to rebut the



        1Plaintiff argues that the “record is devoid of any evidence of as to how it would be reasonable
for Plaintiff to provide for not less than 81% of the needs of the minor children with no income.”
Because we are vacating the portion of the order in which the trial court ordered plaintiff to pay
$2,900.00 monthly in child support, as discussed below, we do not address this issue.

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Pataky presumption and thus ordered that he pay $2,900.00 per month in child

support in accordance with the Separation Agreement, as described in the following

conclusions of law:

             3.     The legal obligation of married parents to support a
             minor child may be [e]stablished through execution and
             acknowledgement of a written Separation Agreement. No
             Agreement between the parents can fully deprive the
             Courts of their authority to protect the best interests of
             minor children.      Either party to an unincorporated
             Separation Agreement may seek a Court Order to establish
             child support pursuant to N.C.G.S. [§] 50-13.4 in an
             amount, scope or duration different from that provided in
             the unincorporated Agreement.             When a valid,
             unincorporated Separation Agreement determines a
             parent’s child support obligations, in a subsequent action
             for child support, the court must base the parent’s
             prospective child support obligation on the amount of
             support provided under the Separation Agreement rather
             than the amount of support payable under the child
             support guidelines unless the Court [d]etermines, by the
             greater weight of the evidence, taking into account the
             child’s needs and factors enumerated in the first . . .
             sentence of N.C.G.S. [§] 50-13.4(c), that the amount of
             support under the Separation Agreement is unreasonable.
             Taking into account the children’s needs and factors
             enumerated in the first sentence of N.C.G.S. [§] 50-13.4(c)[,]
             the parties have failed to prove that the amount of support
             under the Separation Agreement is unreasonable and the
             Plaintiff should pay Defendant child support in the amount
             of $2,900.00 per month.

             4.     The Court is not finding that Plaintiff is voluntarily
             suppressing his income in a bad faith attempt to avoid his
             child support obligation. The Court is not imputing income
             to the Plaintiff. The Court is setting child support pursuant
             to [N.C. Gen. Stat. §] 50-13.4(c) and pursuant to those
             factors which include the needs of the children, the estate


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                and earnings of Plaintiff and the presumption created by
                the Separation Agreement.

(Emphasis added.)

        In Finding of Fact 30, the trial court next examined plaintiff’s current ability

to comply with his contractual obligations under the Separation Agreement in

determining what amounts of child support and alimony to order as specific

performance:

                Plaintiff was regularly employed during the marriage
                earning $150,000.00. At and after the date of separation
                he was earning significantly more. At times during his four
                years with BSI he earned well in excess of $200,000.00 per
                year. Within a week of his severance he found a job earning
                $160,000.00 per year. While holding that job he turned
                down an offer of $255,000.00 per year and has a good
                prospect with a job with that employer. It is feasible for
                Plaintiff to earn $150,000.00 and with those earnings to
                support Defendant and their children. Based upon his
                experience, contacts in the industry and prior job
                performance[,] he has the ability to quickly find employment
                earning at least $150,000.00 per year.[2]            Earning
                $150,000.00 annually is $12,500.00 per month. The
                following table outlines the Plaintiff’s current ability to
                comply with his contractual obligations under the
                Separation Agreement.

                 Item                               Amount Comments
                 Likely potential gross           $12,500.00
                 income

        2  Plaintiff also argues that the “trial court’s finding that ‘it is feasible for Plaintiff to earn
$150,000 and with those earnings to support Defendant and their children’ and that Plaintiff ‘has the
ability to quickly find employment earning at least $150,000’ is not supported by the evidence and
cannot stand.” Because we are vacating the portions of the order in which the trial court ordered
plaintiff to pay $2,900.00 monthly in child support and $1,385.00 monthly in alimony, as discussed
below, we do not address this issue.

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              Federal Tax obligation     ($2,878.71) IRS Publication
                                                     15
              Social Security and          ($956.25) .0765
              Medicare
              North Carolina Income        ($688.75) Publication NC-
              Tax                                    30
              Plaintiff’s reasonable     ($3,690.00) See above
              expenses
              Plaintiff’s child          ($2,900.00) As ordered
              support obligation                     herein
              Total Remaining              $1,386.29

(Emphasis added.)

      In determining what amounts of child support and alimony to order as specific

performance, as a practical matter, the trial court imputed $150,000.00 in annual

income to plaintiff despite its statement that “[t]he Court is not imputing income to

the Plaintiff.” It is undisputed that as of the date of trial, plaintiff was unemployed

and had no income. The trial court concluded that plaintiff was unable to “comply

with an order requiring specific performance of a payment of all of the remaining

damages suffered by Defendant due to Plaintiff’s breach of the [Separation]

Agreement.”    Accordingly, the trial court ordered as specific performance that

plaintiff pay $2,900.00 per month in child support and $1,385.00 per month in

alimony, or $1,386.29 rounded down, rather than the full $3,600.00 monthly alimony

amount, as set forth in the Separation Agreement.

      On 3 September 2014, plaintiff moved for a new trial on the following two

grounds: (1) “Newly discovered evidence based upon the Plaintiff having received a



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job offer which he has accepted and which will involve his moving to Arizona”; and

(2) “Insufficiency of evidence to justify the verdict and the verdict is contrary to law

in that the evidence presented did not justify the Court basing its verdict upon finding

that the Plaintiff had the present capacity to earn $150,000 per year.”            On 10

September 2014, the trial court denied plaintiff’s motion, noting the following:

                    Since the court found that the presumption
             established by the agreement of the parties was not
             rebutted[,] the court never considered the North Carolina
             Child Support Guidelines. Since the court did not use the
             Child Support Guidelines to establish [plaintiff’s]
             obligation to pay child support[,] the court did not
             improperly use plaintiff’s earning capacity or imputed
             income to establish child support. The court considered his
             earnings of 0, but also considered all of the other factors
             outlined in N.C.G.S. [§] 50-13.4(c) and the needs of the
             children at the time of the hearing and the parties’
             unincorporated agreement.

(Emphasis added.)

      It appears that the trial court divided its child support analysis into two parts:

(1) whether plaintiff rebutted the Pataky presumption; and (2) what amount of child

support plaintiff was “able to perform[.]” See Pataky, 160 N.C. App. at 305, 585

S.E.2d at 414-15; Condellone, 129 N.C. App. at 682-83, 501 S.E.2d at 695-96. The

trial court ostensibly declined to impute income to plaintiff during the first part of its

analysis, yet it did impute an annual income of $150,000.00 to plaintiff during the

second part of its analysis even though it found that plaintiff was not “voluntarily

suppressing his income in a bad faith attempt to avoid his child support obligation.”


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      But nothing in McKyer, Pataky, or Bowers suggests that the rule that the trial

court cannot impute income absent a finding of bad faith is limited to a particular

part of the trial court’s child support determination. See McKyer, 179 N.C. App. at

146, 632 S.E.2d at 836 (“Before earning capacity may be used as the basis of [a child

support] award, there must be a showing that the actions reducing the party’s income

were taken in bad faith to avoid family responsibilities.”); Pataky, 160 N.C. App. at

306-07, 585 S.E.2d at 415-16; Bowers, 141 N.C. App. at 732, 541 S.E.2d at 510.

Rather, we hold that this rule applies throughout the entire child support

determination.

      We find it especially instructive that this Court in Pataky, even after it had

held that the trial court had erred in failing to apply a presumption of reasonableness

to the parties’ separation agreement, decided to address the issue of imputation of

income and held that the trial court had erred in imputing income to the supporting

parent absent evidence of bad faith. See Pataky, 160 N.C. App. at 306-08, 585 S.E.2d

at 415-16. In its discussion, this Court did not suggest that this rule would be

inapplicable should the trial court on remand determine that the separation

agreement amount was reasonable. See id., 585 S.E.2d at 415-16. Accordingly, we

hold that the trial court erred in basing its child support award upon plaintiff’s

earning capacity when it had found that plaintiff was not “voluntarily suppressing

his income in a bad faith attempt to avoid his child support obligation.” See id. at



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306-07, 585 S.E.2d at 415-16; McKyer, 179 N.C. App. at 146, 632 S.E.2d at 836;

Bowers, 141 N.C. App. at 732, 541 S.E.2d at 510.

      Defendant emphasizes that the trial court did not violate the rule in

Condellone that “[i]n the absence of a finding that the [supporting parent] is able to

perform a separation agreement, the trial court may nonetheless order specific

performance if it can find that the [supporting parent] ‘has deliberately depressed his

income or dissipated his resources.’ ” See Condellone, 129 N.C. App. at 682, 501

S.E.2d at 695-96 (quoting Cavenaugh v. Cavenaugh, 317 N.C. 652, 658, 347 S.E.2d

19, 23 (1986)). Defendant argues that the trial court did not need to find that plaintiff

had deliberately depressed his income or dissipated his resources, because it did not

order him to pay more than it found that he had the ability to pay. Although we agree

that the trial court did not violate this particular rule in Condellone for the reason

defendant gives, we note that nothing in Condellone or Cavenaugh vitiates the related

yet distinct rule that in determining child support, the trial court cannot impute

income absent a finding of bad faith, as held in McKyer, Pataky, and Bowers.

Compare Condellone, 129 N.C. App. at 682-83, 501 S.E.2d at 695-96, and Cavenaugh,

317 N.C. at 658, 347 S.E.2d at 23, with McKyer, 179 N.C. App. at 146, 632 S.E.2d at

836, Pataky, 160 N.C. App. at 306-07, 585 S.E.2d at 415-16, and Bowers, 141 N.C.

App. at 732, 541 S.E.2d at 510. In fact, our Supreme Court in Cavenaugh cited to

Quick v. Quick for the companion rule to the McKyer rule that in determining the



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proper amount of alimony, the trial court cannot impute income absent a finding of

bad faith. See Cavenaugh, 317 N.C. at 657, 347 S.E.2d at 23 (“Cf. Quick v. Quick, 305

N.C. 446, 290 S.E.2d 653 (1982) (if supporting spouse deliberately depresses income

or dissipates resources, then capacity to earn rather than actual income may be the

basis for an alimony award).”). In Quick, our Supreme Court stated this rule more

strongly:

               [T]here are no findings to indicate whether the trial court
               believed that defendant was deliberately depressing his
               income or whether he was indulging in excessive spending
               in disregard of his marital obligation to support his
               dependent spouse. Absent those factors, our law requires
               that the ability of defendant to pay alimony is ordinarily
               determined by his income at the time the award is made.

Quick, 305 N.C. at 456-57, 290 S.E.2d at 660 (emphasis added). Therefore, because

the trial court based its child support award on plaintiff’s earning capacity, we vacate

that portion of the trial court’s order and remand the case to the trial court for further

proceedings.

      We also note that on or about 21 July 2014, only three days after the close of

the 17 and 18 July 2014 hearing, Frontline extended an offer to plaintiff to work as a

salesman in Arizona, and plaintiff immediately accepted. The salary in Frontline’s

offer was one percent of all of plaintiff’s sales, with a yearly guaranteed draw of

$110,000.00. The trial court had taken the case under advisement at the close of the

hearing on 18 July 2014 and had not yet announced a ruling. On 23 July 2014,



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plaintiff moved to reopen the case to allow testimony regarding this new employment

and income, and although the trial court had still not entered an order, on 14 August

2014, the trial court denied plaintiff’s motion. On 28 August 2014, the trial court

entered the order which is on appeal, and on 3 September 2014, plaintiff moved for a

new trial, again seeking to present evidence of plaintiff’s actual income in his new

job; the trial court denied this motion as well. Although plaintiff did not appeal from

the orders on the post-trial motions and has not challenged them on appeal, we cannot

help but note that if the trial court had allowed the evidence of plaintiff’s actual

income in his new job to be presented and considered, most of the issues addressed

by this appeal would have been eliminated and there would have been no need for

remand on those issues. Plaintiff accepted the new job only days after the hearing

and even before the trial court had announced its rulings, and with newly available

income information, the order could have been based upon plaintiff’s actual income.

We would also imagine that plaintiff’s move to Arizona to begin the new employment

would affect his visitation schedule with the children and travel costs associated with

visitation, which are additional factors the trial court may need to consider when

addressing the child support issue.

      Defendant argues that the fact that plaintiff got a new job with Frontline after

the trial renders plaintiff’s argument as to the trial court’s imputation of income moot.

See Ass’n for Home & Hospice Care of N.C., Inc. v. Div. of Med. Assistance, 214 N.C.



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App. 522, 525, 715 S.E.2d 285, 287-88 (2011) (“A case is ‘moot’ when a determination

is sought on a matter which, when rendered, cannot have any practical effect on the

existing controversy.”) (citation omitted). If plaintiff’s new job with Frontline paid

him an annual salary of $150,000.00, the amount imputed by the trial court, there

may have been no practical reason for plaintiff to raise this argument on appeal,

although it still may not really be legally moot. But we do not know exactly what

plaintiff’s new salary is since the amount is based on his sales, with a yearly

guaranteed minimum of $110,000.00; his actual income could be substantially more

depending upon sales, or it could be up to $40,000.00 annually less than the

$150,000.00 used by the trial court. In addition, there may be changes to visitation

and travel expenses for visitation associated with plaintiff’s move to Arizona.

Accordingly, this issue did not become moot because plaintiff accepted the job with

Frontline.

C.    Evidence of Children’s Reasonable Needs

      Plaintiff next argues that competent evidence does not support the trial court’s

findings as to the children’s reasonable needs. Although we are vacating the portion

of the trial court’s order awarding $2,900.00 per month in child support because the

trial court’s determination was based upon imputation of income to plaintiff, we

address this issue as it likely to arise on remand.




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      In determining whether the child support amount in a separation agreement

is reasonable, the trial court “should determine the actual needs of the child at the

time of the hearing, as compared to the provisions of the separation agreement.”

Pataky, 160 N.C. App. at 305, 585 S.E.2d at 414.          “In order to determine the

reasonable needs of the child, the trial court must hear evidence and make findings

of specific fact on the child’s actual past expenditures and present reasonable

expenses.” Atwell v. Atwell, 74 N.C. App. 231, 236, 328 S.E.2d 47, 50 (1985). In

Atwell, this Court vacated a child support award because the trial court had failed to

make a finding as to the actual past expenditures of the child and the evidence did

not support its finding as to the present reasonable expenses of the child:

             The record is devoid of any finding relating to the actual
             past expenditures of the minor child. Although there is a
             finding ostensibly relating to the present reasonable
             expenses of the child, i.e., that the wife’s needs for
             “maintenance” of the child are “no less than $500.00 per
             month,” this finding is not supported by the evidence. The
             wife’s affidavit sets the child’s individual monthly needs at
             $308.63. There is no other evidence regarding the child’s
             individual financial needs. Perhaps the trial court was
             estimating what portion of the fixed household expenses
             was attributable to the child. However, as discussed, there
             is no evidence apportioning the expenses, and factual
             findings must be supported by evidence, and not based on
             speculation.

Id. at. 236-37, 328 S.E.2d at 50-51. Similarly, in Loosvelt, this Court held that the

trial court erred when it partially based its determination of the children’s reasonable

needs upon the supporting parent’s “shared family expenses”:


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                    The trial court’s order seems to “divide the father’s
             wealth” by basing child support upon a number calculated
             by adding one-third of plaintiff’s “shared family expenses”
             to the child’s historical individual expenses. The order also
             finds that plaintiff resided in Los Angeles, California, but
             fails to make any findings of fact as to how plaintiff’s
             expenses incurred in California, which apparently do not
             include any child-related expenditures, relate to the
             expenses of raising a child, even the child of a wealthy
             parent, in Charlotte, North Carolina.

Loosvelt v. Brown, ___ N.C. App. ___, ___, 760 S.E.2d 351, 362 (2014) (citation

omitted).

      Like in Loosvelt, in Finding of Fact 28, as quoted above, the trial court

estimated the children’s reasonable needs “by comparing them to the reasonable

needs” of plaintiff and indicated in its table that it was basing its estimations of the

children’s expenses upon assumptions related to plaintiff’s expenses, not upon any

competent evidence as to the children. See id., 760 S.E.2d at 362. Plaintiff argues

that this “calculation of the present reasonable needs of the children based on

[p]laintiff’s expenses is speculation[,]” especially given the trial court’s finding that

the children live primarily with defendant, not plaintiff. We agree and direct the trial

court on remand to “hear evidence and make findings of specific fact on the

[children’s] actual past expenditures and present reasonable expenses.” See Atwell,

74 N.C. App. at 236, 328 S.E.2d at 50.

                                    IV.    Alimony

A.    Standard of Review


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      Plaintiff next argues that the trial court erred in ordering specific performance

of $1,385.00 monthly in alimony because it erred in imputing income to him as part

of its determination that it was feasible for him to pay this amount in alimony.

“[F]indings of fact by the trial court supported by competent evidence are binding on

the appellate courts even if the evidence would support a contrary finding.

Conclusions of law are, however, entirely reviewable on appeal.” Scott, 336 N.C. at

291, 442 S.E.2d at 497 (citation omitted). “The remedy [of specific performance] rests

in the sound discretion of the trial court[] and is conclusive on appeal absent a

showing of a palpable abuse of discretion.”        Harborgate Prop. Owners Ass’n v.

Mountain Lake Shores Dev. Corp., 145 N.C. App. 290, 295, 551 S.E.2d 207, 210 (2001)

(citation omitted), appeal dismissed and disc. review denied, 356 N.C. 301, 570 S.E.2d

505-07 (2002).

B.    Analysis

      Like in the context of child support, as discussed above, when establishing an

alimony obligation, the trial court may not impute income to the supporting spouse

unless it finds that “the supporting spouse is deliberately depressing his or her

income or indulging in excessive spending because of a disregard of the marital

obligation to provide support for the dependent spouse”:

             Consideration must be given to the needs of the dependent
             spouse, but the estates and earnings of both spouses must
             be considered. It is a question of fairness and justice to all
             parties. Unless the supporting spouse is deliberately


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             depressing his or her income or indulging in excessive
             spending because of a disregard of the marital obligation to
             provide support for the dependent spouse, the ability of the
             supporting spouse to pay is ordinarily determined by his or
             her income at the time the award is made. If the supporting
             spouse is deliberately depressing income or engaged in
             excessive spending, then capacity to earn, instead of actual
             income, may be the basis of the award.
                    ....
             [T]here are no findings to indicate whether the trial court
             believed that defendant was deliberately depressing his
             income or whether he was indulging in excessive spending
             in disregard of his marital obligation to support his
             dependent spouse. Absent those factors, our law requires
             that the ability of defendant to pay alimony is ordinarily
             determined by his income at the time the award is made.

Quick, 305 N.C. at 453-57, 290 S.E.2d at 658-60 (emphasis added and citation and

quotation marks omitted); see also Kowalick v. Kowalick, 129 N.C. App. 781, 787, 501

S.E.2d 671, 675 (1998) (“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.”). Additionally, as discussed above, “the equitable remedy of

specific performance may not be ordered unless such relief is feasible; therefore courts

may not order specific performance where it does not appear that defendant can

perform.” Condellone, 129 N.C. App. at 682, 501 S.E.2d at 695 (citation and quotation

marks omitted).

      In Finding of Fact 30, as quoted above, the trial court imputed an annual

income of $150,000.00 to plaintiff and concluded that plaintiff had the ability to pay

$1,385.00 monthly in alimony in addition to his child support obligation. But the


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trial court found that plaintiff was not voluntarily suppressing his income. Absent a

finding that plaintiff was “deliberately depressing his income” or “indulging in

excessive spending in disregard of his marital obligation to support his dependent

spouse[,]” “our law requires that the ability of [plaintiff] to pay alimony is ordinarily

determined by his income at the time the award is made.” See Quick, 305 N.C. at

456-57, 290 S.E.2d at 660; Kowalick, 129 N.C. App. at 787, 501 S.E.2d at 675.

Although the parties in Quick and Kowalick had not executed a separation

agreement, those cases do not suggest that the court should treat the determination

of ability to pay for purposes of specific performance of a separation agreement any

differently. See Quick, 305 N.C. at 453-57, 290 S.E.2d at 658-60; Kowalick, 129 N.C.

App. at 787, 501 S.E.2d at 675. Accordingly, we hold that the trial court erred in

imputing income to plaintiff in determining the proper amount of alimony and

therefore vacate that portion of the order.

                                V.       Attorneys’ Fees

A.    Standard of Review

      “[Q]uestions of contract interpretation are reviewed as a matter of law and the

standard of review is de novo.” Price & Price Mech. of N.C., Inc. v. Miken Corp., 191

N.C. App. 177, 179, 661 S.E.2d 775, 777 (2008). “The remedy [of specific performance]

rests in the sound discretion of the trial court[] and is conclusive on appeal absent a




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showing of a palpable abuse of discretion.” Harborgate Prop. Owners, 145 N.C. App.

at 295, 551 S.E.2d at 210 (citation omitted).

B.    Analysis

      Plaintiff argues that the trial court erred in ordering specific performance of

$9,592.50 in attorneys’ fees. Plaintiff does not challenge the trial court’s conclusion

of law that defendant was entitled to attorneys’ fees under the Separation Agreement;

rather, plaintiff contends that the trial court erroneously imputed income to him in

determining that it was “feasible” for him to pay this amount. See Condellone, 129

N.C. App. at 682, 501 S.E.2d at 695 (citation omitted). Accordingly, we review this

issue for an abuse of discretion. See Harborgate Prop. Owners, 145 N.C. App. at 295,

551 S.E.2d at 210.

      “[T]he public policy of this State encourages settlement agreements and

supports the inclusion of a provision for the recovery of attorney’s fees in settlement

agreements.” Bromhal v. Stott, 341 N.C. 702, 705, 462 S.E.2d 219, 221 (1995). We

revisit this Court’s discussion in Condellone of the prerequisites of ordering specific

performance of a separation agreement:

                    As a general proposition, the equitable remedy of
             specific performance may not be ordered unless such relief
             is feasible; therefore courts may not order specific
             performance where it does not appear that defendant can
             perform. In the absence of a finding that the defendant is
             able to perform a separation agreement, the trial court may
             nonetheless order specific performance if it can find that
             the defendant has deliberately depressed his income or


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              dissipated his resources.
                     In finding that the defendant is able to perform a
              separation agreement, the trial court is not required to
              make a specific finding of the defendant’s “present ability
              to comply” as that phrase is used in the context of civil
              contempt. In other words, the trial court is not required to
              find that the defendant possesses some amount of cash, or
              asset readily converted to cash[,] prior to ordering specific
              performance.

Condellone, 129 N.C. App. at 682-83, 501 S.E.2d at 695-96 (citations, quotation

marks, and brackets omitted).

       In the Separation Agreement, the parties agreed: “If either party breaches any

of the provisions of this Agreement, then the breaching party shall be required to pay

reasonable attorney fees for the party whose contractual rights hereunder were

violated by said breach.”

       The trial court made the following findings of fact and conclusions of law on

this issue:

              31.    Plaintiff has breached the Agreement. Defendant
              has incurred reasonable attorney fees in response to that
              breach. Pursuant to the Separation Agreement Defendant
              is entitled to recover these fees. Five attorneys have
              worked for the Defendant in this litigation. . . . In light of
              the rates charged in the area and the complexity of the
              work[,] the rates charged by the attorneys are reasonable.
              Some of the time was devoted to the divorce of the parties
              which was not necessitated by Plaintiff’s breach. The
              following table contains the reasonable attorney fees
              incurred by Defendant related to Plaintiff’s breach of the




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                agreement.[3]

                ....

                32.    Plaintiff has retained significant assets in the form
                of retirement savings which will make it difficult for
                Defendant to collect a money judgment. He rents his
                dwelling and leases his vehicle. While failing to comply
                with the terms of the contract he has chosen to buy jewelry
                for others, undertake the obligations of a new marriage and
                take vacations. He has continued since the date of
                separation to contribute to retirement savings plans in the
                sum of $231.00 per month according to his June 2, 2014
                affidavit while refusing to perform under the contract.
                Excluding Defendant’s claims for attorney fees, she is
                obtaining significant money judgments against the
                plaintiff as a result of this Order, which may also inhibit
                her ability to collect upon another judgment. In light of
                Plaintiff’s maintenance of a large checking account
                balance[,] he has the ability to comply with an Order for the
                payment of Defendant’s attorney fees.

(Emphasis added.) Based on these findings of fact and conclusions of law, the trial

court ordered the specific performance of $9,592.50 in attorneys’ fees.

        Plaintiff argues that no evidence supported the trial court’s finding that he had

the ability to pay the attorneys’ fees amount since he was unemployed at the time of

the hearing and the trial court’s finding of fact as to his checking account balance

history only covered September 2013 to March 2014, or a few months before the July

2014 hearing. But the trial court made numerous detailed findings of fact regarding



        3For the sake of brevity, we omit the trial court’s table and note that in it, the trial court made
many detailed findings of fact regarding defendant’s reasonable attorneys’ fees, which neither party
challenges on appeal, and calculated a total amount of $9,592.50.

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plaintiff’s financial situation and employment history and prospects, as quoted above,

in addition to its finding that plaintiff maintained a significant checking account

balance (ranging from $12,889.85 to $49,692.19). The award of attorneys’ fees did

not rely upon or require any imputation of income to plaintiff, as the trial court clearly

considered the plaintiff’s financial assets and checking account balances. Payment of

the attorneys’ fees is also a one-time expense, unlike the child support and alimony

payments which are ongoing prospective obligations. In addition, we note that the

trial court need not make a specific finding of a party’s present ability to comply, as

that phrase is used in the civil contempt context. See id. at 683, 501 S.E.2d at 696

(“In finding that the [supporting spouse] is able to perform a separation agreement,

the trial court is not required to make a specific finding of the [supporting spouse’s]

‘present ability to comply’ as that phrase is used in the context of civil contempt. In

other words, the trial court is not required to find that the [supporting spouse]

possesses some amount of cash, or asset readily converted to cash[,] prior to ordering

specific performance.”) (citations, quotation marks, and brackets omitted).           But

despite the fact that the trial court was not required to find that plaintiff had assets

available to pay the attorneys’ fees as in a civil contempt order, the trial court

nonetheless did make findings that plaintiff had assets available to pay the attorneys’

fees. Accordingly, we hold that the trial court did not abuse its discretion in ordering

the specific performance of attorneys’ fees.



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                                   Opinion of the Court



                                   VI.    Conclusion

      For the foregoing reasons, we affirm in part and vacate in part the trial court’s

order. We affirm the portions of the order in which the trial court awarded money

judgments for the child support and alimony arrearages and unpaid joint credit card

debt and ordered specific performance of defendant’s attorney’s fees. We vacate the

portions of the order in which the trial court ordered specific performance of $2,900.00

monthly in child support and $1,385.00 monthly in alimony. We therefore remand

the case to the trial court for further proceedings consistent with this opinion and

direct that if either party requests to present additional evidence for the trial court’s

consideration on remand as may be needed to address the issues discussed in this

opinion, the trial court shall allow presentation of evidence, although the trial court

may in its discretion set reasonable limitations on the extent of new evidence

presented.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      Judges CALABRIA and INMAN concur.




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