An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1064
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


ANGELIA K. SIDDLE,
     Plaintiff,

      v.                                        Currituck County
                                                No. 11 CVD 45
WILLIAM L. SIDDLE,
     Defendant.


      Appeal by defendant from order entered 17 April 2013 by

Judge Amber Davis in Currituck County District Court.                     Heard in

the Court of Appeals 17 February 2014.


      THE TWIFORD       LAW   FIRM,     P.C.,    by   Edward    A.    O’Neal,   for
      plaintiff.

      GREGORY E. WILLS, P.C., by Gregory E. Wills, for defendant.


      ELMORE, Judge.


      Defendant William L. Siddle appeals from an order granting

plaintiff Angela K. Siddle’s claims for alimony and attorney’s

fees.        On appeal, defendant argues that the trial court erred

by failing to properly value his future needs and by failing to

consider plaintiff’s receipt of the vested retirement pension

funds      when   calculating     the    alimony      award.         In   addition,
                                      -2-
defendant contends that plaintiff had sufficient means to defray

the costs of litigation, and, therefore, the trial court erred

in awarding her attorney’s fees.            After careful consideration of

the challenges to the trial court’s 13 April 2013 order, we

affirm.

                            I.     Relevant Background

      Plaintiff and defendant were married on 21 November 1981

and   lived    together   as   husband    and     wife   until   their    date   of

separation on 20 January 2011.            There were two children born of

the marriage, both of whom are now of legal age.                         Defendant

enlisted in the United States Coast Guard in 1981.                 He served on

active duty for twenty years, and his Coast Guard pay was the

primary   source    of    income   for    the   family.      Plaintiff      worked

intermittently throughout defendant’s early Coast Guard career.

However, in 2001 plaintiff began working full-time as a clerk

for the Currituck County Register of Deeds.                 Defendant retired

from the Coast Guard on 6 January 2004 and subsequently accepted

a position at the Paxton Company, where he has remained employed

as a sales manager.            The parties began receiving retirement

funds   from    defendant’s      vested   Coast    Guard   pension   plan     (the

pension plan) in February 2004.
                                          -3-
       On     27    January   2011,    plaintiff       filed    a   complaint     in

Currituck      County    District     Court     for   post-separation      support,

alimony, equitable distribution, interim distribution of marital

property, and attorney’s fees.              Thereafter, the parties entered

into a consent order for post-separation support on 6 September

2011    and    an    equitable     distribution       consent   judgment    on    26

September 2012.         By the terms of these orders, defendant agreed

to pay plaintiff $500.00 per month in post-separation support,

and    the    parties    divided    the    marital     assets   equally.         Each

received approximately $45,000.00 in net proceeds from the sale

of the marital home and $38,000.00 in tax deferred IRA/401k

retirement accounts in their separate names.                    In addition, the

pension plan was divided equally.                Plaintiff elected to have her

one-half (1/2) share reduced by 6.5 percent in order to defer

the costs of her participation in the Coast Guard’s Survivor

Benefit Plan (“SBP”).            The SBP is a military program whereby a

service member’s spouse can elect to continue receiving a one-

half share of the pension after the service member’s death by

reducing the monthly pension benefit by a fixed amount.                    The net

effect is that plaintiff receives approximately the same vested

retirement benefit as defendant,                reduced only by the cost of an
                                          -4-
insurance plan designed to protect her interest in the event

defendant pre-deceases her.

    Plaintiff’s         remaining       claims     for   alimony     and      attorney’s

fees were heard before Judge Amber Davis on 13 February 2013.

At the hearing, plaintiff testified that the parties separated

because of acts of domestic violence that defendant committed

against   plaintiff.           The    parties’     children      each       testified     to

defendant’s repeated acts of domestic violence against plaintiff

throughout the duration of the parties’ marriage.                              The trial

court received into evidence plaintiff’s Affidavit of Financial

Standing and Needs, which accounted for her future or projected

expenses based on her former standard of living.                             Plaintiff’s

testimony   at     the    hearing       corroborated       her    affidavit.             For

example, plaintiff testified that she was presently living in a

single-wide      trailer       which     rented      for    $400.00          per    month,

including water and electricity.                   However, she estimated that

the cost to rent a home comparable to that in which she lived

prior to the date of separation would cost $1,100.00 per month,

which is the sum reflected in plaintiff’s financial affidavit.

Additionally,      plaintiff         testified   that,     although         she    did   not

presently   have    a    car    payment,     she    would     need      a    new   vehicle

because hers had 140,000 miles and needed maintenance.                              In her
                                      -5-
financial    affidavit,    she     accounted   for    a   $400.00    per     month

automobile payment.       Relying on plaintiff’s financial affidavit

and her testimony, the trial court found: Plaintiff received

approximately $2,400.00 per month in disposable income from her

salary    and   her   share   of    the     retirement    pension,     and    her

reasonable needs totaled $3,815.00 per month.                 Thus, plaintiff

was left with a shortfall of $1,415.00 per month to meet her

reasonable needs.

    Defendant executed an Affidavit of Financial Standing and

Needs     based on his actual expenses, which reflected a $650.00

per month rent payment and no car payment.                 However, he later

amended the affidavit to account for his future or projected

expenses based on his former standard of living.                    The amended

affidavit included a $1,300.00 per month housing payment and a

$400.00 per month car payment.              Defendant testified that his

current    housing    situation    was    subpar   compared   to    his    former

standard of living.       He also testified that his current vehicle

had 206,000 miles and was “unreliable.”

    The trial court found that defendant’s future expenses were

not credible, and thus it relied on defendant’s actual expenses

to calculate his disposable income.                In its order, the trial

court found that defendant’s gross income, including bonuses,
                                          -6-
was $5,660.00 per month and that his reasonable needs totaled

approximately $3,350.00, leaving $2,310.00 in disposable income.

Based     on   the     foregoing,    the        trial   court      determined      that

defendant      was    the    supporting    spouse       and   plaintiff      was   the

dependent spouse.           It awarded plaintiff $1,700.00 per month in

permanent alimony and $4,500.00 in attorney’s fees.                       Defendant

now appeals.

                                     II. Analysis

      Defendant argues that the trial court erred in relying on

his   actual,    not     future,    expenses       to    calculate     his    alimony

obligation.          Specifically, defendant contends that, because the

trial court accepted plaintiff’s future needs as reasonable, it

was obligated to find that his were similarly reasonable.                            We

disagree.

      “The court shall award alimony to the dependent spouse upon

a finding that one spouse is a dependent spouse, that the other

spouse is a supporting spouse, and that an award of alimony is

equitable after considering all relevant factors[.]”                      N.C. Gen.

Stat. § 50-16.3A.           Subpart (b) of the statute enumerates sixteen

factors    for   the    trial    court    to     consider     in   determining     the

amount and duration of an award of alimony.                        “The trial court

shall make a specific finding of fact on each of the factors in
                                         -7-
subsection (b) of this section if evidence is offered on that

factor.”      N.C. Gen. Stat. § 50-16.3A(c).                   “The amount to be

awarded is a question of fairness to the parties, and, so long

as the court has properly taken into consideration the factors

enumerated by statute, the award will not be disturbed absent an

abuse of discretion.”           Gardner v. Gardner, 40 N.C. App. 334,

340, 252 S.E.2d 867, 871 (1979).

       On appeal, defendant does not challenge plaintiff’s future

expenses as being excessive or unreasonable.                     Further, he does

not allege as error that the trial court neglected to consider

the    relevant     factors    enumerated      in    N.C.    Gen.   Stat.     §   50-

16.3A(b).           Instead,     defendant          challenges      Finding       #32:

“Defendant’s [future] needs are speculative and do not reflect

his actual expenses over the expenses set out in his Financial

Affidavit.     The Court does not find that his “future needs” are

credible[.]”      The crux of defendant’s argument is that, in light

of fact that the trial court found plaintiff’s future needs to

be    reasonable,    it   cannot    alternatively       find     that   defendant’s

future needs are speculative given that both parties financial

affidavits    were    based    on   an    “identical        budget.”     Defendant

avers: “It logically follows that what was deemed appropriate

for her must also be appropriate for him.”
                                         -8-
      Defendant’s      argument        goes     only       to     the   weight        and

credibility of the evidence.              It is well settled that “it is

within a trial court’s discretion to determine the weight and

credibility    that    should     be    given        to   all     evidence    that    is

presented during trial.”          Phelps v. Phelps, 337 N.C. 344, 357,

446   S.E.2d   17,    25    (1994).           “The     trial    court   must     itself

determine what pertinent facts are actually established by the

evidence before it, and it is not for an appellate court to

determine de novo the weight and credibility to be given to

evidence disclosed by the record on appeal.”                      Id. (quotation and

citation omitted).          Here, the trial court made relevant findings

of fact on each of the pertinent statutory factors under N.C.

Gen. Stat. § 50-16.3A(b)(1-16),               none of which require a uniform

application.      Because there is no evidence that the trial court

abused its discretion in finding that defendant’s future needs

were not credible, defendant’s argument is overruled.

B. Pension Income

      Defendant      next    argues    that      the      trial    court     erred    in

awarding   plaintiff         permanent        alimony      without      taking       into

consideration the fact that plaintiff was entitled to half of

his pension income.         We disagree.
                                    -9-
    In   determining   the    amount    and   duration    of   alimony,     the

trial court must account for “[t]he 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)(16).

    The trial court’s order reflects the following findings of

fact in respect to the pension:

            24.     The Consent Order for Equitable
            Distribution divided the defendant’s United
            States Coast Guard retirement income with
            the Plaintiff receiving 43.5 percent of the
            retirement and Defendant receiving 56.5
            percent of the retirement.  The [p]laintiff
            selected to reduce her retirement income by
            six and one-half percent to pay for the
            costs of SBP benefits so that she will
            continue    to   receive   benefits   after
            [d]efendant’s death.

            25. Since June 1, 2012, the [p]laintiff has
            received approximately $680.00 to $700.00
            per month representing her marital share of
            the [d]efendant’s Coast Guard Retirement.
            Both parties will continue to receive their
            share of the Coast Guard Retirement plus any
            cost of living adjustments for the duration
            of the parties’ lifetime.

            26.      Plaintiff  receives   approximately
            $2,400.00 per month in disposable income
            from her employment and her shares of the
            Coast Guard Retirement benefits to meet her
            needs and expenses.
                                            -10-
      On    appeal,      defendant        admits    that    Findings        #24    and     #25

reference the Coast Guard pension, but he contends that this is

insufficient       to     satisfy    N.C.       Gen.    Stat.    §    50-16.3A(b)(16).

Specifically, defendant takes issue with Finding #24 because it

erroneously reports an unequal division of the pension funds.

He   also   contends       that     the    trial    court     erred     in    failing       to

account     for    the    effect     that       plaintiff’s      entitlement        to     the

pension income had on the duration of the alimony award.

      In calculating plaintiff’s monthly disposable income, the

trial    court     relied     on    the     sum    of    $686.44      as     reported       in

plaintiff’s financial affidavit, not the percentages set forth

in   Finding      #24.      Further,       in    Finding    #16,      the    trial    court

recognizes that the pension was divided equally:                        “Plaintiff was

entitled to receive . . . one-half share of the Coast Guard

Pension[.]”        Accordingly, any error as to the distribution of

the pension funds in Finding #24 is inconsequential.                              Moreover,

N.C. Gen. Stat. § 50-16.3A(b)(16)                      does not mandate            that the

trial    court     find     how    plaintiff’s         receipt   of    pension       income

impacted the duration of its alimony award.                          Pursuant to N.C.

Gen. Stat. § 50-16.3A(c), the trial court need only “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
                                          -11-
payment.”           In    Finding      #46,    the     trial     court    sufficiently

explained     its    reasoning         for     awarding         plaintiff      permanent

alimony:

            46.   The award of permanent alimony to the
            [p]laintiff should be for an indefinite
            period of time as her income is not likely
            to increase significantly because of her
            employment history and limited education.
            The   [p]laintiff  will  need  the   alimony
            awarded to her for an indefinite period to
            allow her to maintain a decent standard of
            living which will be a standard of living
            that is less than she enjoyed during the
            parties’ marriage.


    The     record        reflects      that         the    trial      court     properly

considered plaintiff’s receipt of the pension income.                          We see no

evidence    that     the       trial    court        abused     its     discretion     in

calculating    the       duration      and    amount       of   the    alimony    award.

Accordingly, defendant’s argument is overruled.

C. Attorney’s Fees

    Lastly,     defendant        argues       that    the    trial     court   erred   in

awarding plaintiff $4,500.00 in attorney’s fees.                         We    disagree.

Generally, “an analysis for attorney’s fees requires a two-part

determination: entitlement and amount.”                     Barrett v. Barrett, 140

N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000).                          However, here

defendant     does       not   challenge       the     amount     of    fees    awarded.
                                         -12-
Accordingly, our focus is whether plaintiff is entitled to an

award of attorney’s fees.

       When a dependent spouse is entitled to alimony pursuant to

N.C. Gen. Stat. § 50–16.3A, “the court may, upon application of

such spouse, enter an order for reasonable counsel fees, to be

paid and secured by the supporting spouse in the same manner as

alimony.”        N.C. Gen. Stat. § 50–16.4 (2011).                       In order to

establish that a spouse is entitled to attorney’s fees, he or

she   must   be    “(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.”       Barrett at 369, 374, 536 S.E.2d at 646 (citation

omitted).         “The satisfaction of these three requirements, is a

question of law, fully reviewable on appeal.”                           Id. (citation

omitted).         Generally,    the    dependent     spouse      has     insufficient

means to defray the costs of litigation if he or she is unable

as    litigant     to   meet    the    supporting       spouse     as    litigant    on

substantially even terms.             Theokas v. Theokas, 97 N.C. App. 626,

631, 389 S.E.2d 278, 281 (1990).                “Once a spouse is entitled to

attorney’s fees, our focus then shifts to the amount of fees

awarded.     The amount awarded will not be overturned on appeal
                                               -13-
absent an abuse of discretion.”                       Barrett at 375, 536 S.E.2d at

647.

       In    its    13     April     2013     order,    the    trial      court    partially

granted plaintiff’s claims for attorney’s fees in the amount of

$4,500.00,         finding:            1)     plaintiff       incurred      $7,899.00      in

attorney’s         fees     to    litigate      her     claims      for   post-separation

support      and         permanent      alimony;        2)    the    fees      charged    by

plaintiff’s attorney were reasonable given counsel’s skill and

experience; 3) plaintiff lacked “sufficient means upon which to

live during the prosecution of her action and to defray her

necessary legal expenses from her re-occurring income[;]” and 4)

plaintiff had insufficient means to defray the cost and expense

of the suit “unless she were to deplete her estate by spending

the funds which she received from the sale of the former marital

residence.”

       In the instant case, plaintiff is clearly the dependent

spouse      entitled       to    the    underlying      relief      demanded      (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.”                              Id. at
                                          -14-
374, 536 S.E.2d at 646 (citation omitted).                    Having reviewed the

trial court’s findings, we find them to be sufficient to form a

basis for determining a reasonable award of attorney’s fees.

Prior   to     the   award      of   permanent     alimony,   plaintiff     received

$2,400.00 per month in disposable income from her employment and

pension funds plus $500.00 per month in post-separation support.

Based     on   the    trial      court’s      determination      that     plaintiff’s

reasonable needs totaled $3,815.00 per month, plaintiff was left

with a deficiency of $915.00 per month during the separation

period.        This alone supports the trial court’s finding that

plaintiff      had    insufficient         means    upon   which     to    live      and

simultaneously defray the costs of litigation.                      Alternatively,

after paying plaintiff post-separation support                      and satisfying

his reasonable needs of $3,350.00, defendant had a surplus of

$1,810.00 per month during the separation period.

    Defendant         nonetheless         points     to    the     $8,000.00         cash

plaintiff took from the parties’ joint checking account and the

$10,000.00 she received in post-separation support out of which

her litigation costs could be paid.                    Defendant contends that

plaintiff      had   “at     least     Eighteen    Thousand   Dollars      in   liquid

funds   with     which     to    pay    her   attorney,    irrespective         of   the

proceeds from the sale of the marital home.”                     However, there is
                                       -15-
no evidence before us that plaintiff has access to this money

from which she could defray her litigation expenses, as opposed

to having used it to pay her monthly expenses.                       Further, after

paying plaintiff $1,700.00 per month in alimony and satisfying

his reasonable needs, defendant will have $610.00 per month in

excess of his reasonable needs.             Alternatively, upon receipt of

the   alimony      payment,   plaintiff     will     have    an     excess   of     only

$285.00 per month to satisfy her reasonable needs.                       On the basis

of this evidence, we conclude that plaintiff was not able as

litigant to meet defendant as litigant on substantially even

terms.     Accordingly, the trial court did not err in finding that

plaintiff     had      insufficient     means       to     defray    the     cost    of

litigation.        The trial court’s award of $4,500.00 in attorney’s

fees is reasonable and supported by the evidence.

                                    III. Conclusion

      In    sum,    the   trial     court     did    not    err     in    calculating

defendant’s reasonable needs based on his actual expenses as set

forth in his financial affidavit.               There is no requirement that

the   trial    court    uniformly     calculate      each    parties’      disposable

income.       Moreover, the record reflects that the trial court

considered plaintiff’s receipt of the pension funds in awarding

her permanent alimony.         Finally, the trial court did not err in
                                  -16-
finding that plaintiff had insufficient means to defray the cost

of litigation and in awarding plaintiff $4,500.00 in attorney’s

fees.   Accordingly, we affirm.

    Affirmed.

    Chief Judge MARTIN and HUNTER, Robert N., concur.

    Report per Rule 30(e).
