             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-551

                              Filed: 19 March 2019

Mecklenburg County, No. 09 CVD 28068

SHANEEKQUA SIMMS, Plaintiff/Mother

            v.

LEROY BOLGER, Defendant/Father


      Appeal by Defendant from Orders entered 2 June 2017, 27 July 2017, and 20

November 2017 by Judge Kimberly Best in Mecklenburg County District Court.

Heard in the Court of Appeals 14 January 2019.


      Arnold & Smith, PLLC, by Matthew R. Arnold, for plaintiff-appellee.

      Plumides, Romano, Johnson & Cacheris, P.C., by Richard B. Johnson, for
      defendant-appellant.


      HAMPSON, Judge.


                     Factual and Procedural Background

      Leroy Bolger (Defendant) appeals from three separate Orders: (A) Modifying

Permanent Child Support; (B) Denying in part his Motion to Reconsider and Revise

the Order Modifying Permanent Child Support filed under N.C.R. Civ. P. 52, 59 and

60; and (C) Reconsidering and revising the Order Modifying Permanent Child

Support. The Record before us demonstrates the following relevant facts:
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        Defendant and Shaneekqua Simms (Plaintiff) are the parents of a minor child

born in 2009. In July 20061, prior to his relationship with Plaintiff, Defendant was

injured in a work-related car accident when the vehicle in which he was a passenger

was struck head on by a stolen car. Defendant has been disabled and unable to work

ever since.      Defendant received weekly temporary total workers’ compensation

benefits following his accident.

        At some point in 2009, the State of North Carolina, on Plaintiff’s behalf,

initiated this action against Defendant seeking to establish paternity of the minor

child, establishing Defendant’s child support obligation and seeking medical

insurance.2 On 26 May 2010, the Mecklenburg County District Court entered an

Order establishing Defendant’s paternity of the minor child, setting his child support

obligation at $349 per month, with arrearages and fees for the DNA test, and

requiring him to pay 24% of uninsured medical expenses for the child.


        1  The trial court found Defendant’s accident was in 2005. This appears to be a clerical error as
the Record demonstrates the accident was in 2006. The actual date is immaterial to the analysis of
this case.
         2 It appears this matter began as a “IV-D” case in which child support obligations are enforced

by a local Child Support Enforcement agency on behalf of a parent. The Record in this case does not
include any initiating pleadings in this action in violation of N.C.R. App. P. 9(a)(1)(d). As a practical
matter, it is helpful—if not an absolute necessity—for this Court to be able to review the initiating
pleadings in any action to ascertain whether a matter is properly before our courts. However, in light
of the fact the parties do not dispute the existence of a valid child support proceeding giving rise to the
child support modification before us, and the fact Plaintiff has stipulated to this limited record, this
omission does not significantly impede our review, and we endeavor to address the merits. We
recognize there are instances where omissions from the record may be fatal to an appeal and, indeed,
caution the present case may well be an exception and not the rule. We also encourage counsel for both
parties to review the most current version of N.C.R. App. P. 26(g)(1) when making their choices of font
in documents filed in our appellate courts as Courier-style fonts are no longer approved.


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      On 13 July 2011, Defendant, pro se, filed a Motion for Modification of Child

Support alleging he was no longer receiving weekly Workers’ Compensation benefits.

He attached a copy of a North Carolina Industrial Commission Order Approving and

Agreement for Partial Compromise Settlement and Release (Workers’ Comp

settlement). The Workers’ Comp settlement disclosed Defendant had received third-

party settlement funds of $606,666.67. Defendant settled the disability portion of his

workers’ compensation case for a $292,500 lump sum award which included an

attorneys’ fee. Future medical expenses were left open. Defendant received a net

amount of $826,041.67 from these settlements and deposited the amount of

$793,976.42 into an investment account (Baird Account) which he uses to generate

interest and dividend income as his primary source of income.

      On 19 September 2011, Plaintiff filed a verified Motion seeking, inter alia,

modification of child support and attorneys’ fees. The parties’ respective motions for

modification of child support both filed in 2011 were not heard until 25 October 2016.

The trial court entered its Order Modifying Permanent Child Support and Awarding

Attorneys’ Fees on 2 June 2017 (June Order).

      In the June Order, the trial court found Defendant had received non-recurring

income in the amount of $826,041.67. The trial court further found Defendant’s

current monthly income, comprised of interest and dividend income, Social Security

income, and Social Security child benefit, was $5,485. Based on this, the trial court



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calculated Defendant’s child support obligation under the North Carolina Child

Support Guidelines (the Guidelines) to be $1,004.78 per month. Factoring in Social

Security benefits paid directly to Plaintiff for the child as a result of Defendant’s

disability, this resulted in the trial court ordering Defendant to pay $702.78 per

month in prospective child support. The trial court further determined, based on the

modified child support award and giving Defendant credits for payments made and

Social Security Benefits paid for the child, Defendant owed an arrearage of

$36,443.04 for the time period between the time Plaintiff filed her motion and entry

of the June Order. The trial court also ordered Defendant to make a lump sum

payment from his non-recurring income in the Baird Account of $156,947.91 to be

placed in trust for the child. Additionally, the trial court awarded Plaintiff $25,000 in

attorneys’ fees.

      On 12 June 2017, Defendant filed a Motion to “Reconsider and Revise” the June

Order, seeking relief under Rules 52, 59, and 60 of the North Carolina Rules of Civil

Procedure.    Defendant’s Motion requested: (1) the trial court correct an error

stemming from Defendant’s financial affidavit resulting in his Social Security income

being counted twice in his current monthly income; (2) the trial court reconsider his

ongoing child support obligation in light of the fact the lump sum payment of support

and attorneys’ fees from the Baird Account would have a corresponding impact on his




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monthly income; and (3) modification of the requirement the funds be placed in a

trust account.

      Defendant’s Motion was heard on 17 July 2017 and the trial court rendered its

ruling allowing Defendant’s Motion in part and setting the case for rehearing on 27

July 2017. On 27 July 2017, the trial court entered its Order on Defendant’s Motion

to Reconsider and Revise the June Order (July Order). In the July Order, the trial

court granted Defendant’s Motion in part: granting a new trial on the “double

counting” of Defendant’s Social Security benefits; re-addressing the lump sum

distribution to a trust account; and consideration of an additional award of attorneys’

fees. The trial court denied Defendant’s request to reconsider his child support

obligation in light of the reduction in principal in the Baird Account. The same day,

Defendant filed a motion requesting the trial court deviate from the Guidelines. The

trial court denied this motion.   The trial court held its new hearing, and on 20

November 2017 entered a written Order (November Order).

      In the November Order, the trial court revised its finding of Defendant’s

monthly income to $4,455. Under the Guidelines and applying a credit for Social

Security payments, the trial court ordered Defendant to pay prospective child support

in the amount of $553.35 per month. The trial court also recalculated Defendant’s

arrearages from September 2011 through entry of its Order. Rather than calculate




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Defendant’s arrearages based on his current income, the trial court used Defendant’s

income for each individual year from 2011 through November 2017.

      The trial court’s November Order modified the lump sum award of support

from the Baird Account, requiring it be placed in an account bearing both the names

of Plaintiff and the child, with Plaintiff being named custodian of the account.

Further, the trial court awarded Plaintiff additional attorneys’ fees of $16,240.

                              Appellate Jurisdiction

      The November Order serves as a final judgment in this case resolving all

pending issues. In his timely Notice of Appeal, Defendant expressly preserves his

appeal from the June, July, and November Orders. Consequently, Defendant’s appeal

is properly before this Court. N.C. Gen. Stat. § 7A-27(b)(2) (2017).

                                        Issues

      Defendant presents the following issues for review: (I) Whether the trial court

erred in concluding there was a substantial change in circumstances justifying a

modification of child support; (II) Whether the trial court erred in making its lump

sum award of child support without deviating from the Guidelines; (III) Whether the

trial court erred in ordering the lump sum amount to be held in a custodial account

for the child; (IV) Whether the trial court erred in calculating Defendant’s arrearages

based on his historical income in each individual year; and (V) Whether the trial court

abused its discretion in awarding Plaintiff attorneys’ fees.



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                                 Standard of Review

      “Child support orders entered by a trial court are accorded substantial

deference by appellate courts and our review is limited to a determination of whether

there was a clear abuse of discretion.” Leary v. Leary, 152 N.C. App. 438, 441, 567

S.E.2d 834, 837 (2002). “In a case for child support, the trial court must make specific

findings and conclusions. The purpose of this requirement is to allow a reviewing

court to determine from the record whether a judgment, and the legal conclusions

which underlie it, represent a correct application of the law.” Id. at 441-42, 567 S.E.2d

at 837 (citations omitted).

                                       Analysis

I.    Substantial Change of Circumstances

      Defendant contends the trial court erred in concluding a substantial change of

circumstances existed warranting modification of Defendant’s ongoing child support

obligation. Defendant argues Plaintiff’s allegations of increased daycare expenses for

the child and Defendant’s increased income cannot constitute a substantial change

in circumstances. Defendant, however, had himself alleged a substantial change of

circumstances resulting from the settlement of his Workers’ Compensation claim and

resulting termination of monthly temporary disability payments.

      N.C. Gen. Stat. § 50-13.7, governing modification of child support orders,

provides in relevant part: “an order of a court of this State for support of a minor child



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may be modified or vacated at any time, upon motion in the cause and a showing of

changed circumstances by either party . . . .” N.C. Gen. Stat. § 50-13.7(a) (2017). It is

true our Courts have held an increase in the payor’s income alone is not enough to

prove a change of circumstances to support modification of child support. Thomas v.

Thomas, 134 N.C. App. 591, 595-96, 518 S.E.2d 513, 516 (1999). However, our Courts

have also recognized an increase in the payor’s income may be a factor in determining

changed circumstances when taken in context of changes in the child’s needs. See,

e.g., Gibson v. Gibson, 24 N.C. App. 520, 523, 211 S.E.2d 522, 524 (1975) (an increase

in support was properly justified by a showing of increased support costs and

substantially increased spendable income of the payor).

      Here, the trial court’s findings were not focused on Defendant’s increased

income, but instead related to the fact Defendant had settled his Workers’

Compensation and third-party claim resulting in two large distributions and

cessation of his monthly Workers’ Compensation benefits, the child’s expenses for day

care and health insurance, which had both increased since the prior Order, along with

the total reasonable needs of the child, and the disability benefit Plaintiff receives on

behalf of the child, which had increased to $302 from $10 at the time of the initial

Order. We conclude the totality of the trial court’s findings in this case support the

conclusion there had been a substantial change in circumstances since the initial




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child support Order entered in May 2010. Consequently, the trial court did not abuse

its discretion in modifying Defendant’s monthly child support obligation.

II.   Lump Sum Child Support Payment

      A.     Non-Recurring Income

      Defendant also contends the trial court abused its discretion in ordering him

to make a lump sum child support payment under the Guidelines from the settlement

funds he received arising from his 2005 work-related accident.

      Under N.C. Gen. Stat. § 50-13.4, a trial court is generally required to

“determine the amount of child support payments by applying the presumptive

guidelines . . . .” N.C. Gen. Stat. § 50-13.4(c) (2017). Income is broadly defined under

the Guidelines as:

             “Income” means a parent’s actual gross income from any
             source, including but not limited to income from
             employment or self-employment (salaries, wages,
             commissions, bonuses, dividends, severance pay, etc.), . . .
             retirement or pensions, interests, trusts, annuities, capital
             gains, Social Security benefits, workers compensation
             benefits, unemployment insurance benefits, disability pay
             and insurance benefits, gifts, prizes and alimony or
             maintenance received from persons other than the parties
             to the instant action.

2019 Ann. R. 53. The Guidelines further provide, “[w]hen income is received on an

irregular, non-recurring, or one-time basis, the court may average or prorate the

income over a specified period of time or require an obligor to pay as child support a

percentage of his or her non-recurring income that is equivalent to the percentage of


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his or her recurring income paid for child support.” Id. (emphasis added). “Child

support set in accordance with the Guidelines ‘is conclusively presumed to be in such

amount as to meet the reasonable needs of the child and commensurate with the

relative abilities of each parent to pay support.’ ” Spicer v. Spicer, 168 N.C. App. 283,

286, 607 S.E.2d 678, 681 (2005) (quoting Buncombe Cty. ex rel. Blair v. Jackson, 138

N.C. App. 284, 287, 531 S.E.2d 240, 243 (2000)).

      As a result of his Worker’s Compensation and third-party settlements,

Defendant received the net amount of $826,041.67. The trial court classified this as

“non-recurring income[.]” The trial court, applying the Guidelines, found Defendant

had the “ability to transfer a lump sum of 19%, or $156,947.91,” of that income for

the benefit the child.

      Defendant first questions whether the settlement payments should constitute

“current income” for purposes of calculating child support, as the payouts occurred in

2011 and the initial hearing on child support modification did not occur until 2016.

Defendant’s contention only underscores the correctness of the trial court’s finding

these disbursements to Defendant constituted non-recurring income to him. See

Spicer, 168 N.C. App. at 290, 607 S.E.2d at 684. Defendant makes no argument that

the settlement payouts did not constitute income to him or that the lump sum amount

was calculated incorrectly. Thus, we conclude the trial court acted within its




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discretion to find the settlement payouts to Defendant, in this case, constituted non-

recurring income to him subject to application of the Guidelines.

        B.      Denial of Motion to Deviate from the Guidelines

        On 27 July 2017, the day of the rehearing, Defendant filed a Motion requesting

a deviation from the Guidelines as it related to the non-recurring income contending

the Guidelines approach would exceed the reasonable needs of the child.3

        N.C. Gen. Stat. § 50-13.4(c) provides:

                upon request of any party, the Court shall hear evidence,
                and from the evidence, find the facts relating to the
                reasonable needs of the child for support and the relative
                ability of each parent to provide support. If, after
                considering the evidence, the Court finds by the greater
                weight of the evidence that the application of the guidelines
                would not meet or would exceed the reasonable needs of the
                child considering the relative ability of each parent to
                provide support or would be otherwise unjust or
                inappropriate the Court may vary from the guidelines.

N.C. Gen. Stat. § 50-13.4(c). Here, between the June and November Orders, the trial

court made findings regarding both the needs of the child and each parent’s relative

ability to provide support. The trial court did not find application of the Guidelines

would be unjust or inappropriate. Moreover, the trial court is “not required to deviate

from the guidelines no matter how compelling the reasons to do so[.]” Pataky v.




        3Plaintiff objected to the filing of this Motion as untimely. The trial court elected to deny the
Motion in its discretion rather than dismiss it as untimely. Thus, we need not address the timeliness
of the Motion under Browne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991) and N.C.
Gen. Stat. § 50-13.5(d)(1) (2017).

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Pataky, 160 N.C. App. 289, 303, 585 S.E.2d 404, 413 (2003). Therefore, the trial court

did not abuse its discretion in declining to deviate from the Guidelines.

      C.     Consideration of the Lump Sum Award on Defendant’s Future Income

      Defendant next contends the trial court abused its discretion in both awarding

the lump sum child support payment from the Baird Account and requiring

Defendant to pay ongoing monthly child support without considering the impact of

the lump sum award on Defendant’s future income and impact on Defendant’s

disability and health.

      In Spicer, this Court addressed similar arguments. In Spicer, the father-payor

was also seriously injured in a motor vehicle accident and received a lump sum

settlement that was held in a trust to provide income to him. Mr. Spicer, like

Defendant, contended the trial court should not have invaded the trust principal and

also awarded monthly child support payments from his recurring income. This Court

recognized the broad discretion granted to trial courts to devise a child support award

in light of the circumstances of all the parties, including Mr. Spicer’s disability and

potential future medical care. Spicer, 168 N.C. App. at 290, 607 S.E.2d at 684. This

Court held the trial court did not err “when it sought to supplement the funds

available for the child’s support by invading the trust principal.” Id. at 291, 607

S.E.2d at 684.

      Our Court further noted:



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             This Court has previously held that a trial court “is not
             limited to ordering one method of payment to the exclusion
             of the others provided in the statute. The Legislature’s use
             of the disjunctive and the phrase ‘as the court may order’
             clearly shows that the court is to have broad discretion in
             providing for payment of child support orders.”

Id. at 291, 607 S.E.2d at 684 (quoting Moore v. Moore, 35 N.C. App. 748, 751, 242

S.E.2d 642, 644 (1978)). Thus, we held the trial court did not err by determining the

“child support obligation could be fulfilled by requiring income from both monthly

payments and a lump sum award.” Id. at 292, 607 S.E.2d at 684. Likewise, we

conclude in this case, the trial court did not abuse its discretion in awarding child

support that included both monthly payments and a lump sum award.

      Defendant argues the trial court erred by denying his Motion to Reconsider

and Revise as to the calculation of his income. He contends his future interest and

dividend income will be proportionately impacted by the reduction in the Baird

Account principal from the lump sum, arrearage, and attorneys’ fees payments.

However, “[i]t is well established that child support obligations are ordinarily

determined by a party’s actual income at the time the order is made or modified.”

Ellis v. Ellis, 126 N.C. App. 362, 364, 485 S.E.2d 82, 83 (1997).

      Here, the trial court applied Defendant’s current income at the time of the

hearing to calculate his future ongoing monthly child support payments. We conclude

the trial court did not abuse its discretion in so doing where there was no evidence as

to the actual impact on Defendant’s future income from the lump sum payments.


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Moreover, the trial court pointed out, and we agree, once the actual impact on

Defendant’s income is realized, it may well support a new motion to modify

Defendant’s child support obligation. Consequently, the trial court did not abuse its

discretion in making its award of lump sum and ongoing monthly child support

payments.

III.   Direction of Payment to a Custodial Account

       In the November Order, the trial court modified the June Order which required

Defendant to use the lump sum award to establish a trust account for the minor child,

with Plaintiff as trustee. In the November Order, the trial court instead directed

Defendant to transfer the lump sum to an account in the names of both Plaintiff and

the child, with Plaintiff named custodian of the account.

       The trial court modified its June Order based on this Court’s holding in Parrish

v. Cole. In Parrish, this Court struck a provision of a child support order that required

payment of a portion of the payor’s annual bonus into an interest bearing savings

account with any surplus accruing directly to the child once they turned 18 years old.

This Court held “The [trial] court, however, was without the power to, in effect,

attempt to create a savings account for the use of the children after they reach legal

maturity at the age of 18.” Parrish v. Cole, 38 N.C. App. 691, 695, 248 S.E.2d 878, 880

(1978).




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      We are sensitive to the trial court’s efforts to balance the two competing

interests of (1) ensuring a portion of the benefits received by Defendant are used for

the benefit of the child; while (2) ensuring Plaintiff, herself, does not receive

unfettered benefit of any surplus funds intended for the child. However, in the context

of Parrish, we are unable to discern any difference between the trust account utilized

in the June Order and the custodial account required by the November Order. See

Belk ex rel. Belk v. Belk, 221 N.C. App. 1, 14, 728 S.E.2d 356, 364 (2012) (citing

numerous authorities “recognizing the parallels between a custodial account

established under UTMA and a formal trust, especially noting the similarity between

the rights and duties of an UTMA custodian and a trustee”). Thus, as the custodial

account contemplated by the November Order is an attempt to create a savings

account for the use of the child after the child reaches legal maturity at the age of 18

or is otherwise emancipated, we conclude the trial court erred in directing payment

of child support to a custodial account for the benefit of the child, and reverse and

remand.

      The parties frame this argument around the question of who should be

properly designated as a recipient of child support under N.C. Gen. Stat. § 50-13.4(d).

However, Parrish focuses more on the purpose of our child support statute: to provide

support for the child prior to the child’s emancipation, not after. See N.C. Gen. Stat.




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§ 50-13.4(b) (primary liability for support of a minor child); N.C. Gen. Stat. § 50-

13.4(c) (defining when child support terminates).

      This is why the error in creating a custodial account is not harmless. Here, the

trial court’s Order establishes a custodial account that would result in surplus funds

being directed to the child upon emancipation under the terms of the custodial

account. Instead, the funds should be ordered directed to the benefit of the minor

child no differently than in any other child support award. Like in Parrish, “[i]f it

should subsequently appear that all of that amount is not needed for the support of

his child[], [D]efendant will be at liberty to make an appropriate motion in the cause

to reduce his obligation.” Parrish, 38 N.C. App. at 695, 248 S.E.2d at 880.

IV.   Calculation of Defendant’s Child Support Arrearage

      Defendant next challenges the trial court’s calculation of his child support

arrearage owed from the date of Plaintiff’s Motion to Modify Child Support until the

November Order. In the November Order, the trial court calculated Defendant’s child

support obligation for each individual year from the 2011 filing to the 2017 decision,

rather than apply Defendant’s current income and child support obligation at the

time of the hearing.

      The arrearages owed by Defendant from the filing of Plaintiff’s Motion are a

form of prospective child support. See Respess v. Respess, 232 N.C. App. 611, 628, 754




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S.E.2d 691, 702-03 (2014) (child support awarded from the time a party files a

complaint for child support to the date of trial is prospective child support).

      Again, “ ‘[i]t is well established that child support obligations are ordinarily

determined by a party’s actual income at the time the order is made or modified.’ ”

Kaiser v. Kaiser, ___ N.C. App. ___, ___, 816 S.E.2d 223, 228 (2018) (quoting Ellis, 126

N.C. App. at 364, 485 S.E.2d at 83). “Although this means the trial court must focus

on the parties’ current income, past income often is relevant in determining current

income.” Id. Under certain circumstances, “ ‘a trial court may permissibly utilize a

parent’s income from prior years to calculate the parent’s gross monthly income for

child support purposes.’ ” Id. (quoting Midgett v. Midgett, 199 N.C. App. 202, 208, 680

S.E.2d 876, 880 (2009)). For example, this Court has recognized such an approach is

permissible where the income is highly variable or seasonal, or where the evidence of

income is unreliable. Id. “What matters in these circumstances is the reason why the

trial court examines past income; the court’s findings must show that the court used

this evidence to accurately assess current monthly gross income.” Id.

      In this case, the trial court made no findings providing a rationale for using

Defendant’s income for each individual year rather than using his current income to

calculate child support owed back to the filing of Plaintiff’s motion. Notably, in the

June Order, the trial court did use Defendant’s current income and support obligation

in its calculation of Defendant’s arrearage. The use of Defendant’s historical income



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to calculate prospective child support in the form of arrears dating back to the filing

of Plaintiff’s Motion without any finding to support the use of this method was error.

We reverse and remand this matter to the trial court. On remand, the trial court

should calculate Defendant’s arrearage owed using his gross income as of the time its

modification order was originally entered, Lawrence v. Tise, 107 N.C. App. 140, 149,

419 S.E.2d 176, 182 (1992), or, alternatively, make findings to support its use of

Defendant’s historical income to calculate arrearages.

V.    Awards of Attorneys’ Fees

      In his fifth argument, Defendant contends the trial court erred in ordering him

to pay Plaintiff’s attorneys’ fees in the amounts of $16,240 and $25,000.

      Our General Statutes permit an award of attorneys’ fees in child support and

custody cases under appropriate circumstances. N.C. Gen. Stat. § 50-13.6 (2017). We

typically review the amount of an award of attorneys’ fees for abuse of discretion.

Sarno v. Sarno, ___ N.C. App. ___, ___, 804 S.E.2d 819, 824 (2017).

      Defendant contends the trial court abused its discretion in awarding attorneys’

fees. First, Defendant contends the trial court abused its discretion in awarding

$16,240 in attorneys’ fees in the November Order. Defendant argues “the majority of

these fees were incurred prior to Defendant-Appellant filing his Motion to Reconsider

on 12 June 2017[,]” “[t]he Court had already ordered $25,000.00 in attorney’s fees to

Plaintiff-appellee[,]” and this award was not supported by the evidence. We disagree.



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      During the 27 July 2017 hearing on Defendant’s Motion to Reconsider,

Plaintiff’s counsel presented evidence of “supplemental attorney’s fees and expenses

in connection with this matter in the amount of $17,440.” Counsel explained these

fees included expenses incurred as of that date. The trial court, accordingly, found

Plaintiff “has incurred total attorney fees of $17,440.00 since October 25, 2016, not

encompassing work done on the date of the July 27, 2017 hearing in this matter or

prospective fees.” The trial court further found this amount to be reasonable, and

determined Defendant had the ability to pay Plaintiff’s attorneys’ fees in the amount

of $16,240.

      There is evidence to support the trial court’s determination as to the

reasonableness and amount of attorneys’ fees. Defendant has not shown the trial

court abused its discretion in ordering the payment of $16,240 in attorneys’ fees.

      Next, Defendant contends the trial court abused its discretion in awarding

$25,000 in attorneys’ fees in the June Order. Defendant contends this award was

unreasonable. However, Plaintiff’s Affidavit of Attorneys’ Fees was introduced into

evidence without objection.      Plaintiff testified she believed these fees were

reasonable. Shortly after this affidavit was introduced, Plaintiff was subject to cross-

examination, and at no point did Defendant challenge the reasonableness of the fees.

      The trial court relied on this evidence in the June Order, finding Plaintiff “has

incurred total attorney fees of Thirty One Thousand Four Hundred Sixty Six Dollars



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and Ninety Cents ($31,466.90),” and the work done “was reasonable.” The court

further broke down the work done in the case, including an hourly rate for Plaintiff’s

counsel, hourly rate for his associate, and hourly rate for his staff, and noting these

rates were “reasonable in relation to [counsel]’s experience, the type of legal services

he provides and his skill level given that he practices law in Mecklenburg County,

North Carolina and is a Board Certified Specialist in Family Law.” The court noted

Plaintiff had the “means and ability to defray a large portion of the expenses of this

suit[,]” and an award of $25,000 would be both just and within Defendant’s ability to

pay.

       Based on the Record before us, we cannot say the original award of attorneys’

fees in the amount of $25,000 was unreasonable or otherwise constituted an abuse of

discretion. We, therefore, affirm the awards of attorneys’ fees.

                                     Conclusion

       Accordingly, we affirm the trial court’s conclusion there was a substantial

change of circumstances justifying a modification of child support. We affirm the trial

court’s award of the lump sum child support payment from the Baird Account. We

also affirm the trial court’s awards of attorneys’ fees. We reverse and remand the

November Order, in part, for the trial court to reconsider its calculation of the child

support arrearage owed by Defendant. We further reverse the November Order, in




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                                    SIMMS V. BOLGER

                                    Opinion of the Court



part, and direct the trial court to require the lump sum child support payment be

directed to Plaintiff for the benefit of the minor child.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Chief Judge McGEE and Judge HUNTER concur.




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