               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-701

                                Filed: 6 October 2015

Wake County, No. 11 CVD 16365

DABEERUDDIN KHAJA, Plaintiff,

              v.

FATIMA HUSNA, Defendant.


        Appeal by defendant from judgments entered 11 December 2012 and 4 January

2013, preliminary injunction entered 3 January 2013, orders entered 22 May and 3

June 2013 by Judge Debra Sasser in District Court, Wake County, and order entered

26 August 2013 by Judge Michael J. Denning, in District Court, Wake County. Heard

in the Court of Appeals 19 March 2015.


        Sandlin Family Law Group, by Deborah Sandlin and Debra Griffiths, for
        plaintiff-appellee.

        Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendant-
        appellant.


        STROUD, Judge


        Defendant, former wife, appeals several judgments, a preliminary injunction,

and orders regarding her divorce and alimony obligations to plaintiff, her former

husband. For the following reasons, we affirm in part and reverse and remand in

part.

                                    I.     Background
                                 KHAJA V. HUSNA

                                  Opinion of the Court



       This incredibly complex case, with a record, a supplemental record, and

transcripts totaling over 3,500 pages, arises from a very short marriage.

Unfortunately, this case is not the only litigation spawned by the two parties, as

defendant (“wife”) has also filed a separate tort action against plaintiff (“husband”)

in Superior Court, Wake County and brought both criminal charges and a civil action

against him in India. Perhaps it goes without saying that the parties agree on very

little, but it is undisputed that the parties met through an Indian marriage website,

began communicating in June of 2007, and were married in India on 19 October 2007.

Sometime in 2008 they separated, though the exact date of separation is disputed.

      The issues relevant to this appeal arise from husband’s divorce and alimony

claim against wife. On 24 October 2011, husband filed a complaint in Wake County

seeking an absolute divorce, alimony, and attorney fees. On 3 February 2012, wife

filed “MOTIONS AND ANSWER” in which she moved to dismiss husband’s claims

based upon subject matter jurisdiction and failure to state a claim upon which relief

could be granted, arguing that the parties were no longer married due to an

annulment in November of 2011 in India.          Wife also raised various affirmative

defenses, including the annulment; constructive and actual abandonment;

“physical[], sexual[] and psychological[] abuse[] . . . [due to] cruel and barbarous

treatment endangering her life and well being[;]” “indignities to [wife] as to render

her condition intolerable and her life burdensome[;]” a lie that “induce[d] her into



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entering” the marriage; “fraudulent[] induce[ment] . . . in order to gain entry into the

United States and to procure immigration through her[;]” and “fraud and unclean

hands . . . for alimony” purposes.      From this point forward, we will outline the

chronology of this case by reviewing the judgments, preliminary injunction, and

orders on appeal.

A. Preliminary Injunction

      On 4 December 2012, the trial court issued a “TEMPORARY RESTRAINING

ORDER” (“TRO”) on behalf of husband due to (1) ongoing disputes between the

parties regarding discovery, particularly wife’s failure to turn over electronic devices

such as computers and flash drives, and (2) wife’s “pursuing false criminal charges

against [husband] in India, having [husband’s] family members arrested,” . . .

“attempt[ing] to have [husband’s] medical license revoked[,] “effort to interfere with

[husband’s] immigration status[,]” and “false police reports to the Morrisville Police

Department[,]” which ultimately culminated in husband being arrested by

Immigration and Custom Enforcement

             and held for 21 days as a result of [wife’s] interference and
             lies. [Husband’s] passport has been impounded as a result
             of her lies and he was placed on Interpol’s Most Wanted
             because of her lies which he has only recently been able to
             rectify after substantial work and attorneys’ fees.

      The TRO ordered wife to immediately

                    surrender . . . all computers, laptops, sim cards, flash
                    drives, cd drives, hard drives and other modes of


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                       electronic storage equipment, in [wife’s] possession,
                       custody or control or that [wife] used at any time
                       between August 200[]1 to the present . . . by 5:00 pm
                       on Wednesday, December 5, 2012.

               2.      [Wife] is to immediately cease any harassment (as
                       defined by NCGS              § 14[-]277.3A(b)(2)) or
                       interference with [husband] or his family, including
                       but not limited to contacting the State Department,
                       Department of Homeland Security, Immigration
                       Services,     any    Congressman’s      office,   any
                       governmental agency in India regarding [husband].
                       [Wife] is also prohibited from submitting any further
                       documentation to any Indian official without a court
                       order allowing her to do so. This prohibition applies
                       to both direct and indirect harassment and
                       interference. [Wife] is to tell any person acting on
                       her behalf to stop all such contact.

The TRO set “[t]his matter” for hearing on 13 December 2012.

       As set by the TRO, on 13 December 2012, the trial court held the hearing, and

on 3 January 2013, based on the 13 December 2012 hearing, the trial court entered a

Preliminary Injunction. The Preliminary Injunction included extensive findings of

fact regarding the inception of the parties’ relationship, the relationship’s demise,

wife’s efforts to have husband arrested and deported, the ensuing litigation outside

of this case, and wife’s repeated refusals to comply with discovery requests and

orders.2



       1 The final digit of the year is illegible.
       2 Husband had previously served various discovery requests upon wife, and the trial court had
entered an order compelling discovery which is not a subject of this appeal.


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                                     Opinion of the Court



       Despite the title of the order, it was not a Preliminary Injunction in the usual

sense of the term since it mainly addressed discovery issues. See Jeffrey R. Kennedy,

D.D.S. v. Kennedy, 160 N.C. App. 1, 8, 584 S.E.2d 328, 333, (“A preliminary injunction

is an extraordinary measure taken by a court to preserve the status quo of the parties

during litigation. It will be issued only (1) if a plaintiff is able to show likelihood of

success on the merits of his case and (2) if a plaintiff is likely to sustain irreparable

loss unless the injunction is issued, or if, in the opinion of the Court, issuance is

necessary for the protection of a plaintiff’s rights during the course of litigation.”

(citation and quotation marks omitted)). Essentially, the Preliminary Injunction

addressed wife’s noncompliance with the discovery process; in other words, had wife

complied with discovery requests and orders, no preliminary injunction would have

been needed. The Preliminary Injunction required wife to preserve her “electronic

devices . . ., including but not limited to cellular phones, smart phones, laptops,

computers, storage devices such as flash drives or external hard drives, table[t]s,

disks, etc.[,]” “provide her email addresses and passwords[,]” to Mr. Ellington, an

expert in computer forensics and analysis, and “[b]y December 20, 2012, . . . submit

an affidavit . . . detail[ing] . . . any [and] all communication that [wife] has had with

any governmental agency that may directly or indirectly impact [husband].”3 The



       3  The TRO did enjoin wife from continuing to “harass” husband and from reporting him to
various agencies, but this language was not included in the decretal portion of the Preliminary
Injunction.

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Preliminary Injunction set another hearing on 3 January 2013 for consideration of

“remaining discovery issues [and] any issues regarding the implementation of this

order.”

B. Judgment for Absolute Divorce

      On 11 December 2012, exactly one week after the TRO was entered and two

days before the hearing which would result in the Preliminary Injunction, the trial

court entered a “JUDGMENT FOR ABSOLUTE DIVORCE[.]” On 4 January 2013,

the trial court entered an “AMENDED JUDGMENT FOR ABSOLUTE DIVORCE”

(“Divorce Judgment”) to correct a “typographical error[.]” The Divorce Judgment

noted that wife “withdrew her motion to dismiss for lack of subject matter jurisdiction

based on lack of domicile of either party and proceeded with her Rule 12(b)(6) claim

asserting the affirmative defense of an Indian annulment.”

      The trial court made several findings of fact, including the following which are

relevant to the issues raised on appeal:

             5.     . . . This court declines to recognize the Indian
                    annulment decree under the principles of comity in
                    that the petition was filed at a time when neither
                    [husband] nor [wife] was a domiciliary of India. . . .

             6.     The parties were married on October 19, 2007.
                    Plaintiff left the marital residence on February 9,
                    2008 when Defendant asked him to leave. The
                    parties worked on reconciling the marriage for
                    sometime. Defendant made the decision to remain
                    separate and apart from Plaintiff beginning in
                    September 2008. The parties have in fact remained


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                   separate and apart since September 2008.

C.    Order for Sanctions and Injunction

      As set by the Preliminary Injunction, on 3 January 2013, the same day the

Preliminary Injunction was entered, the trial court held a hearing regarding

“[husband’s] request for an injunction and for sanctions related to spoliation of

evidence and non-production of discovery[;]” on 22 May 2013, the trial court entered

the resulting “ORDER FOR SANCTIONS AND INJUNCTION” (“Sanctions Order”).

The Sanctions Order has extensive findings of fact, including findings of fact

regarding the contents of wife’s provided electronic devices, her continued failure to

fully comply with the prior orders regarding discovery, and her extensive interference

in husband’s life. The trial court concluded that wife had no “legal merit” in her

objections regarding discovery compliance and that there was “no just cause” for

wife’s failure to comply with discovery requests. The trial court ordered:

             1.    [Wife] is hereby precluded from presenting any
                   evidence regarding any marital fault on the part of
                   [husband].

             2.    [Wife] is hereby precluded from providing any
                   testimony that is not solicited by [husband’s]
                   attorney regarding any contact or communication
                   with any third party or third party agency regarding
                   [husband].

             3.    [Wife] is hereby precluded from presenting any
                   evidence regarding [husband’s] earning capacity.
                   [Wife] may only present evidence regarding
                   [husband’s] financial need for alimony.


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              4.   [Wife] may not solicit testimony from any witness
                   that she has not fully disclosed to [husband].

      It is important to note, that like the Preliminary Injunction, the “injunction”

portion of the Sanctions Order addresses discovery issues. Wife was not actually

“enjoined” from any activity but rather was ordered to comply with discovery and

sanctioned for not having already done as ordered. The trial court also noted that

“[t]he issue of attorneys’ fees amount and expert fees shall be entered by separate

order.”

D. Order for Alimony and Attorney Fees

      On 22 May 2013, the same date the Sanctions Order was entered, the trial

court began a three-day trial on husband’s alimony and attorney’s fee claim; on 26

August 2013, the trial court entered the resulting “ORDER FOR ALIMONY AND

ATTORNEYS’ FEES” (“Alimony Order”). The Alimony Order has 16 single-spaced

pages with extensive findings of fact and conclusions of law. Ultimately, on 26 August

2013, the trial court entered an order requiring wife to pay alimony to husband in the

amount of $1,600 per month, starting 1 September 2013 and continuing until 30

August 2016 and to pay additional attorney fees to husband’s counsel in the amount

of $40,000.

E.    Order for Attorney Fees




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                                        Opinion of the Court



       On 3 June 2013, the trial court entered an “ORDER FOR ATTORNEYS’ FEES”

(“Fees Order”), pursuant to its Sanctions Order in which it had informed the parties

it would be entering an order at a later time. The Fees Order required wife to pay

$20,000 to husband’s counsel and $2,500.00 to “Mr. Ellington for the forensic

evaluations and court testimony[.]” Wife filed a notice of appeal from most of the

aforementioned orders and judgments, even if interlocutory, on 25 September 2013.

                                       II.     Divorce Judgment

                                        “We made a mess of it.”4

       To understand wife’s first argument on appeal we must turn back from the

Amended Divorce Judgment to the Divorce Judgment as originally entered. The

introductory paragraph in the original Divorce Judgment stated that

               [t]he parties, through counsel, presented evidence during
               Defendant’s motion to dismiss, thus converting the motion
               to dismiss to a summary judgment hearing. The court
               having heard testimony of the parties, examined various
               exhibits and examined extensive case law finds that no
               genuine issue of material fact exists and that [husband] is
               entitled to summary judgment divorce for the following
               reasons[.]5


       4 Throughout this case, the parties’ counsel and trial court remained keenly aware of the level
of complexity and chaos involved. For this reason, the record includes comments which seem to
summarize each of the issues raised on appeal, and we have quoted these as introductions to each
section. We appreciate husband’s counsel for her candor in this particular remark about the
procedural posture of the case during the divorce hearing.

        5 We recognize that this quoted portion was removed from the Amended Divorce Judgment,

but as we noted, this procedural summary is helpful to understand wife’s argument on appeal.




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                                         Opinion of the Court




       On 28 November 2012, the trial court held a testimonial hearing to address

wife’s two motions to dismiss and husband’s divorce claim. Wife first proceeded on

her motions to dismiss for lack of subject matter jurisdiction and failure to state a

claim; both these arguments, according to wife, were based on the annulment of the

parties’ marriage issued by a court in India.6 In order to address the jurisdictional

issues, the parties presented testimony and other evidence.                     Since hearings on

motions to dismiss under Rule 12(b)(6) typically do not include testimony, this put

the case in an interesting procedural posture because the testimony and exhibits the

trial court was considering for the jurisdictional motion should not have been

considered for the Rule 12(b)(6) motion. See Hillsboro Partners v. City of Fayetteville,

___ N.C. App. ___, ___, 738 S.E.2d 819, 822 (“As a general proposition, a trial court’s

consideration of a motion brought under Rule 12(b)(6) is limited to examining the

legal sufficiency of the allegations contained within the four corners of the

complaint.”), disc. review denied, 367 N.C. 236, 748 S.E.2d 544 (2013).

       Husband testified first, followed by wife. During wife’s examination, the trial

court made it clear that the annulment in India was not really a jurisdictional issue

and addressed the procedural quagmire:

               There’s a first motion to dismiss, lack of subject matter

       6 Wife’s motion to dismiss states, “The Court lacks subject matter jurisdiction over Plaintiff’s
Claim for Absolute Divorce because the parties are no longer married.” In a later motion for relief
from order, wife raises another issue with subject matter jurisdiction regarding “residency and
domiciliary[,]” claiming that she resided in South Carolina.

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jurisdiction because parties are no longer married.
       That’s what it says, which is not subject matter
jurisdiction.
       The second motion to dismiss is it doesn’t state a
claim upon which relief can be granted.

       MS. CONNELL [Wife’s Counsel]:           Correct.    I
will concede that the first motion to dismiss for lack of
subject matter jurisdiction raised there is inappropriate.

       THE COURT:          OK. Again, remember on a
motion to dismiss is you look at the four corners of the
document.
       You don’t rely on other information. And I don’t
know what’s in the document, itself.
       But that’s why I don’t understand why we’re having
all this testimony on the issue of dismissal, 12(b)6.
       I’m looking at the complaint.

       MS. SANDLIN [Husband’s Counsel]: Your Honor,
I think it can be turned into a summary judgment.

        THE COURT:         It can be turned into a summary
judgment motion because that’s basically what we’re going
to do, is summary judgment on that issue.
        If you bring in extraneous information, the Court
can allow it and it would be treated as a motion for
summary judgment.

       MS. CONNELL:        I believe that’s where we are at
this point, Your Honor.

       THE COURT:          Yeah. I am a big nitpicker on
civil procedure. I wish someone had filed a motion for
summary judgment instead of--and we’ll proceed on that as
we go.
       Y’all work out the documents.

       MS. CONNELL: And just to clarify what I was going
to say, the 12(b)6, now summary judgment, and then our


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      contention is that the subject matter jurisdiction fails
      because no one was a domiciliary—

            THE COURT: (Interposing) Well, you just got
      through telling me you’re not--I’m talking only about the
      motions to dismiss right now.

             MS. CONNELL: I apologize. I’m jumping ahead.

            THE COURT: I’m only talking about the motions to
      dismiss.

             MS. CONNELL: OK.

            THE COURT: You’ve already told me that you’re not
      doing the motion to dismiss alleged in the complaint.

             MS. CONNELL: Yes, ma’am.

             THE COURT: And you haven’t filed another motion
      to dismiss the complaint based on anything else other than
      the two asserted in your answer?

             MS. CONNELL: Yes, ma’am.

             THE COURT: So I’m only talking about the motions
      to dismiss right now. . . .

After the lunch recess, the trial court resumed by clarifying:

      Folks, just to kind of carry on the discussion we had before
      we left, I do believe that this is being converted to a motion
      for summary judgment, which everyone realizes that even
      though it’s [wife’s] motion, I can grant summary motion in
      favor of the [husband] at the conclusion of this.
             Whereas, if it were just a motion to dismiss, that
      would be my only option, would be to dismiss it in its
      entirety.
             So if I were to find that there was --that the evidence
      regarding annulment was insufficient, that there was a


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             valid marriage, I can grant summary judgment on the
             divorce claim, because that’s what you’ve moved--you’ve
             moved to dismiss the entire complaint, but I certainly can
             grant summary judgment on the divorce claim.
                   Not on the alimony, because I don’t think all the
             elements will be presented in evidence.

At this point wife’s attorney stated that wife would only be proceeding on the Rule

12(b)(6) motion that had been “converted” to a summary judgment motion due to the

testimony and exhibits the trial court was to consider. With this background in mind,

we turn to wife’s argument on appeal.

      Wife’s first argument is that “the trial court erred in making factual findings

in the summary judgment proceeding which impacted the supposed duration of the

marriage and subsequent alimony award.” (Original in all caps.) (Quotation marks

omitted.) Wife argues that the trial court improperly made findings of fact in the

Divorce Judgment which created “a snowball effect” in the Alimony Order, as the trial

court considered the findings of fact from the Divorce Judgment the law of the case.

The focus of wife’s argument is not the validity of the absolute divorce itself but

instead the trial court’s later reliance upon its findings of fact in the Alimony Order.

Thus, we turn to the Divorce Judgment and the issues it actually intended to and did

address.

      Although the procedural posture of the case was a “mess[,]” we can organize

the mess by separately looking at each of the issues addressed by the Divorce

Judgment. First, the trial court considered the motion to dismiss based upon subject


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                                  Opinion of the Court



matter jurisdiction. Wife chose not to pursue this motion, and there are no arguments

regarding it on appeal. Secondly, the trial court considered wife’s motion to dismiss

based upon Rule 12(b)(6) that was “converted” to a motion for summary judgment

only on the claim for absolute divorce. Ultimately, wife does not contest the basis of

the trial court’s denial of the motion to dismiss because it did not recognize the

annulment in India. Wife has not raised any arguments that the annulment should

have been recognized.

      Lastly, there was the divorce claim. North Carolina General Statute § 50-6

provides,

                    Marriages may be dissolved and the parties thereto
             divorced from the bonds of matrimony on the application of
             either party, if and when the husband and wife have lived
             separate and apart for one year, and the plaintiff or
             defendant in the suit for divorce has resided in the State
             for a period of six months.

N.C. Gen. Stat. § 50-6 (2011). Thus, to grant a summary judgment divorce the trial

court need only find that there was no genuine issue of material fact that the parties

had been separated for a year, although the exact date is not a necessary finding as

long as the time period was a year or more, and that one of the parties had resided in

North Carolina for six months preceding the filing of the complaint. See id., see also

N.C. Gen. Stat. § 1A-1, Rule 56(c) (2011) (“The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on




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file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that any party is entitled to a judgment as a matter of law.”).

      Wife does not contest that the parties had been separate and apart for at least

a year or that she or husband had resided in North Carolina for six months. Thus,

wife does not contest the granting of husband’s claim for absolute divorce. Wife does

contest the trial court’s reliance on the findings of fact in the Divorce Judgment when

it later entered the Alimony Order. For the reasons we have just stated, we agree

that findings of fact beyond not recognizing the annulment in India, that the parties

had been separated and apart for a year, and that either husband or wife had resided

in North Carolina for six months were not necessary for the trial court to make in the

Divorce Judgment. However, because the determinations of the Divorce Judgment

itself are not challenged, we affirm the Divorce Judgment. Yet this does not end our

inquiry regarding the Divorce Judgment, because we must consider the extent to

which the trial court wrongfully used the extraneous findings of fact in the Divorce

Judgment in support of its Alimony Order. We will address this issue in our analysis

of the Alimony Order.




                                III.   Preliminary Injunction




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       “The particular marital fault that there has been testimony about in the past
     with regard to this case . . . there are findings of fact about it in this order.”7

       Wife’s argument here is similar to the argument we just addressed, although

more plainly stated as she contends that in the Alimony Order “[t]he trial court

improperly granted conclusive and preclusive effect to the factual findings in an

earlier entered preliminary injunction order.” (Original in all caps.) Just as in the

last section, here, wife contends that the trial court improperly relied upon findings

of fact made in the Preliminary Injunction in its Alimony Order. Wife does not

present any substantive challenge to the entry of the Preliminary Injunction itself.

Thus, we affirm the Preliminary Injunction, and to the extent that the trial court

relied upon findings of fact from the Preliminary Injunction in its Alimony Order, we

will address this in our analysis of the Alimony Order.

                                           IV.     Sanctions Order

       Wife makes two arguments as to the Sanctions Order, and we separately

address each.

A.     Failure to Consider Wife’s Affidavit

                  “That’s fine. I withdraw it. I’ll withdraw the affidavit.”8




       7   Husband’s counsel made this argument to the trial court at the alimony hearing as to the
effect of the findings of fact in the Preliminary Injunction.

       8   This quote is from wife’s counsel.

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      Wife argues that “the trial court improperly failed to consider wife’s affidavit

in opposition to the motion for sanctions/in limine filed against wife.” (Original in all

caps.) Wife contends that had the trial court considered her affidavit, it would have

ruled differently regarding the Sanctions Order, but she does not argue any other

substantive challenge to the actual Sanctions Order.

      Wife’s argument on appeal focuses on a few limited statements made by the

trial court from two separate parts of the hearing:

             [T]he trial court would not consider Wife’s affidavit in
             opposition to the motions pending before the court. . . . The
             trial court said it would not consider the affidavit unless it
             was “presented” as “evidence.” The trial court noted that
             Wife “[didn’t] have to file a response” to the outstanding
             motions. . . . Later in the hearing, when Wife’s counsel
             actually sought to introduce the affidavit into “evidence,”
             the trial court refused the entry of the affidavit.

But defendant’s summary of what happened at the hearing takes the trial court’s

statements out of context; we shall seek to place them back in proper perspective.

      On 3 January 2013, at the beginning of the hearing, the trial court stated:

                          We’re here, I think it’s called Plaintiff’s
             Motion in Limine on my calendar. I know it was a carry-
             over from a previous court date with regard to some
             discovery sanctions.
                   ....

                    MS. SANDLIN:        December 4th, Your Honor. And
             you signed the TRO that day and you entered a preliminary
             injunction following that hearing, which we had December
             the 13th.



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                    THE COURT:           Right.

                    MS. SANDLIN:          And as part of the December
              13th hearing, you ordered certain things. And that’s
              something else that we’re here about today, which is also
              covered in the motion in limine.
                    And you ordered certain things to happen back in
              September of 2012 and you’ve subsequently made other
              orders, just re-enforcing your order from September of
              2012.
                    The other thing that is on the calendar, Your Honor,
              is when we were here, Ms. Connell consented for Ms.
              Husna for the entry and continuation of the preliminary
              injunction as it related to electronic devices.

                    THE COURT:           Right.

Thereafter, Mr. Will Cherry, wife’s new counsel, stated that he would like to hand up

wife’s affidavit

              that responds to various things that I think are going to be
              at issue today.

                    THE COURT:         Counsel, I’m going to tell you if
              you expect me to read that affidavit, it counts against your
              time.

The trial court then thoroughly explained the “parameters” around its consideration

of the affidavit. Then husband’s attorney objected to the affidavit:

                     MS. SANDLIN:         Your Honor, I have some
              objections to the affidavit. Primarily my biggest objection
              is it has attached what purports to be attorney/client
              communication between Ms. Husna and her counsel, Ms.
              Connell and Ms. Tanner, which purports to explain some
              of her behavior.

                    THE COURT:           Are       you    waiving      the


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             attorney/client privilege, Counsel?

                   MR. CHERRY:         As the affidavit states, it is
             waived with respect to those—

                   THE COURT:          (Interposing)      No.   When you
             open the door, you open the door.

                    MR. CHERRY:          Your Honor, that—

                   THE COURT:          (Interposing) And it’s not in
             evidence yet, so no door has been opened.

                   MR. CHERRY:           That’s fine. I withdraw it. I’ll
             withdraw the affidavit.


(Emphasis added.)

       Thereafter, the trial court, to put it bluntly and colloquially, expressed its

concern that wife was attempting to throw her prior attorneys “under the bus” and

that this would not be allowed without hearing also from the attorneys themselves.

The trial court then explained it would only consider the affidavit if it came in as

evidence, and this was one of the portions of the transcript noted in wife’s brief:

                    THE COURT:         So to the extent you want to
             move that affidavit into evidence, I haven’t made any
             rulings on it.
                    But just handing it up to the Court for something
             other than evidence I don’t think is appropriate.
                    At the point you want to present it as evidence, well,
             you can certainly jump through the evidentiary hoops and
             try to get it in.

                   MR. CHERRY:        For the time being, I think we’ll
             address the matters through Defendant’s testimony.


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(Emphasis added.)

       Turning to the second portion of the transcript noted in wife’s brief, later in the

hearing, wife did testify on direct with husband’s counsel, and part of this testimony

involved a lengthy and confusing discussion regarding wife’s failure to properly

provide discovery. During the testimony, the following exchange took place:

               Q.      (By Ms. Sandlin)        Ma’am, you attached this
                       affidavit9, and you said, “This is evidence that I
                       asked the Indian Police Department and the Public
                       Prosecutor to produce the computer.”
                              Isn’t that the purpose that you did this?

               A.      Yes.

               ....

                      MR. CHERRY: I would like to move this
               affidavit into evidence since we’ve been talking about it so
               that you can consider—

                      THE COURT:         (Interposing)      The affidavit
               is not coming into evidence. You’re going to have her on
               the stand. You can get it in before me. Alright?

                       MR. CHERRY:             Yes, ma’am.

                     THE COURT:            And then it can come into
               evidence, just to basically corroborate her testimony.

(Emphasis added.)         Thereafter, wife never attempted to offer the affidavit into

evidence.


       9  In context, “this affidavit” is the affidavit wife had previously attempted to hand up to the
trial court and then withdrawn.

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       Regardless of the merits of wife’s legal arguments as to when and how an

affidavit may generally be presented in opposition to a motion, a review of the entire

hearing puts the issue in its proper context. Wife wanted to blame her prior attorneys

for her failures to respond to discovery requests, and she sought to do this by her

affidavit, without waiving her attorney-client privilege and without calling the

attorneys to testify. The trial court noted that if it accepted wife’s affidavit she would

be waiving her attorney-client privilege. Wife chose not to waive the attorney-client

privilege, and she did not challenge the trial court’s interpretation of her affidavit or

the trial court’s stance on privilege either before the trial court or on appeal. The

trial court then gave wife an opportunity to present the affidavit as evidence, but

wife’s counsel declined, and chose to “address the matters through Defendant’s

testimony.”

       Thereafter, during wife’s testimony on direct for husband’s attorney, wife’s

counsel again asked to offer the affidavit as evidence, and the trial court explained it

would accept the affidavit as evidence during wife’s time “on the stand[,]” in other

words, during her presentation of evidence, not during husband’s case-in-chief.10



       10  Black’s Law Dictionary defines “case-in-chief” as “1. The evidence presented at trial by a
party between the time the party calls the first witness and the time the party rests. 2. The part of a
trial in which a party presents evidence to support the claim or defense.” Black’s Law Dictionary 244
(9th ed. 2009). Normally each party offers exhibits into evidence during his or her case-in-chief and
not during the opponent’s case-in-chief. See generally id. Under N.C. Gen. Stat. § 8C-1, Rule 611(a),
“The court shall exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the



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                                          Opinion of the Court



Wife’s counsel did not disagree with the trial court’s ruling on the appropriate time

for the affidavit to be admitted into evidence. And although wife did present evidence

during her case in chief, she did not proffer the affidavit again.

       The affidavit was not admitted into evidence because wife’s attorney made the

strategic decision not to offer it. Perhaps this decision was based upon attorney-client

privilege, or because he believed that wife’s testimony was sufficient, or a myriad of

other possible reasons, but the fact remains that the trial court plainly stated it would

accept the affidavit as evidence during wife’s presentation of evidence if properly

offered, and wife’s attorney chose not to offer it. This argument has no merit.

B.     Extent of Discovery Required

“So I guess to answer your question, every device that I’ve been given has been
either misrepresented or tampered with in some way.”11

       Wife next argues that “the trial court improperly sanctioned wife for failing to

produce items she was under no obligation to produce.”                 (Original in all caps.)

(Quotation marks omitted.) “Our standard of review of an order imposing discovery

sanctions under N.C. Gen. Stat. § 1A–1, Rule 37 is abuse of discretion.” Ross v. Ross,

215 N.C. App. 546, 548, 715 S.E.2d 859, 861 (2011).




ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.” N.C. Gen. Stat. § 8C-1, Rule 611(a) (2011).

       11   This quote is from Mr. Ellington.


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                                  Opinion of the Court



      We have already concluded that wife’s affidavit was not received into evidence

because she did not introduce it. Thus, to the extent that wife relies on the same

affidavit as evidence of errors in the Sanctions Order, her argument is rejected.

Wife’s argument is hypertechnical and focused on a few words in husband’s discovery

requests, in which he requested discovery of “regularly used” or “primarily used”

electronic devices, while, during the hearing and in the Sanctions Order, the trial

court addressed “any” electronic device she has been exposed to over the course of

litigation. But considering the entirety of the Sanctions Order in context, the trial

court did not, as wife argues, require her to do the impossible by providing every

single electronic device she had been exposed to, whether or not it belonged to her.

Instead, the Sanctions Order quite logically addresses discovery violations such as

wife’s denial of use of an email address which the evidence showed she had used after

the date she claimed she had last used it and tampering with devices she eventually

did turn over for discovery. On appeal, wife does not actually contest a single finding

of fact regarding her devious conduct during discovery nor does she challenge the

propriety of the trial court’s ultimate sanction which bars her from presenting certain

evidence, including evidence of husband’s marital fault, at the alimony hearing. Wife

has failed to argue, much less demonstrate, an abuse of discretion. See id.

      Once again, the focus of wife’s arguments regarding the Sanctions Order is the

trial court’s later reliance on findings from the Sanctions Order in the Alimony Order.



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                                   Opinion of the Court



Wife’s only heading in this section of her brief is entitled, “A specific illustration of

how the trial court’s error in the sanction/in limine order illegally prejudiced Wife at

the alimony trial.” (Emphasis added.) In fact, wife concludes her argument regarding

the Sanctions Order by stating, “For that reason and others cited herein, the alimony

order and the corresponding order on attorneys’ fees must be vacated[,]” and does not

even mention vacating, reversing, or remanding the Sanctions Order.

       Lastly, we note that wife filed a reply brief and argued,

              assuming arguendo the trial court could change the terms
              [to “any” device instead of “regularly” or “primarily” used
              devices] if wife’s obligations to provide discovery responses
              from those of the original requests and the trial court’s own
              order to compel, wife could not be bound by those changed
              terms until a written order on sanctions was issued.

(Original in all caps.)

       The trial court rendered its decision at the hearing regarding sanctions on 3

January 2013, but did not enter the written Sanctions Order until 22 May 2013, the

first day of the alimony hearing. Wife claims that since “no written order on the

sanctions had been entered . . . it was unclear what Wife’s obligations were pending

entry of such an order.”     Wife essentially argues that she was not aware of her

discovery obligations until it was too late. Although we acknowledge that in some

cases a delay in entry of an order of this sort could be problematic, as a party truly

may not know what is required of her by the trial court, that did not happen here.

We know this because at the alimony trial, which began on 22 May 2013, the same


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                                              Opinion of the Court



day that the Sanctions Order was signed and filed, wife’s counsel does not mention

any concerns whatsoever regarding the date of entry of the Sanctions Order, despite

the fact that various provisions of the order are discussed during the hearing. If wife

believed that she was prejudiced by the delayed entry of the Sanctions Order and did

not understand her obligations, she should have mentioned it that day, when the trial

court could have addressed the issue with both parties and counsel. Wife has thereby

waived any argument on appeal regarding the date of entry of the Sanctions Order.

See N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a

party must have presented to the trial court a timely request, objection, or motion[.]”);

see also State v. Johnson, 204 N.C. App. 259, 266, 693 S.E.2d 711, 716-17 (2010) (“As

a general rule, the failure to raise an alleged error in the trial court waives the right

to raise it for the first time on appeal.”) Thus, we affirm the Sanctions Order,12 and

finally turn to the crux of this entire appeal, the Alimony Order.

                                         V.        Alimony Order

        “[I]f the Court is stuck with those findings of fact, which I think we are--we
       can’t go back and relitigate those.”13

       Finally, we turn to the Alimony Order. Wife essentially raises two arguments

as to the Alimony Order, and we address each in turn.

                                  Decisions regarding the amount of

       12 Wife does not make a separate argument regarding the Attorney Fees Order, and thus it too
is affirmed.

       13   This quote is from the trial court.

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                                   Opinion of the Court



                    alimony are left to the sound discretion of the
                    trial judge and will not be disturbed on appeal
                    unless there has been a manifest abuse of that
                    discretion. When the trial court sits without a
                    jury, the standard of review on appeal is
                    whether there was competent evidence to
                    support the trial court’s findings of fact and
                    whether its conclusions of law were proper in
                    light of such facts.
             An abuse of discretion has occurred if the decision is
             manifestly unsupported by reason or one so arbitrary that
             it could not have been the result of a reasoned decision.

Kelly v. Kelly, ___ N.C. App. ___, 747 S.E.2d 268, 272-73 (2013) (citation and quotation

marks omitted).

A.    Trial Court’s Reliance on Prior Orders

      As we have noted several times so far, most of wife’s arguments regarding

other judgments and orders are that the trial court improperly relied on various

findings of fact in these prior judgments and orders in the Alimony Order. Indeed,

the trial court made it clear at the alimony hearing that it was bound by all judgments

and orders that had preceded this hearing; and as to marital fault, a main focus of

the Alimony Order, the trial court stated that what had been determined about fault

was “the law of the case, and it’s done.” Because the trial court was not actually

“stuck” with all of the prior findings of fact, we must reverse and remand the Alimony

Order.

      We consider first the trial court’s reliance on findings of fact in the summary

judgment Divorce Judgment. As we noted in the section regarding the Divorce


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                                           Opinion of the Court



Judgment, the trial court did indeed make some findings of fact, particularly finding

6, that went beyond the facts needed to address the limited issues before it.14 Our

Court has previously recognized as to findings of fact in summary judgment

proceedings that “[t]he Findings of Fact entered by the trial judge, insofar as they

may resolve issues as to a material fact, have no effect on this appeal and are

irrelevant to our decision.” Insurance Agency v. Leasing Corp., 26 N.C. App. 138, 142,

215 S.E.2d 162, 165 (1975) (citations and quotation marks omitted). The unnecessary

findings of fact in the Divorce Judgment should also have been irrelevant to the trial

court when considering alimony, see generally id., but unfortunately they were not.

The irrelevant findings of fact in the Divorce Judgment include the date of separation

of September 2008, as this was a contested issue. Essentially, the parties agree they

ceased living together on 9 February 2008, but husband contends, and the trial court

found in the Divorce Judgment, that the parties separated in September 2008,

apparently based upon “defendant’s” formation of the intent to remain separate and

apart from “plaintiff.”15 Although it might be appropriate to reverse and remand the


        14 During rendition of the divorce ruling, the trial court recognized that a summary judgment
divorce order should not have findings of fact: “So I’m granting summary judgment in favor of the
Plaintiff on the divorce claim. . . . But of course, it’s a summary judgment, folks, so there’s not a lot of
findings in there.”

        15 Based upon the evidence presented and the arguments on appeal, we think that perhaps
this finding may also include a “typographical error” in referring to the parties. Based upon the
evidence that the trial court appeared to find the most reliable, husband’s evidence, it is likely the trial
court actually found that husband formed his intent to remain separate and apart in September, and
not that wife formed an intent then; but either way, the result is the same on appeal, since the trial
court will have to make a new finding of fact on the date of separation on remand.

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Alimony Order for this reason alone, since we have no way of knowing how much

weight the trial court gave the findings of fact it relied upon from the Divorce

Judgment, such as the date of separation, or if the unnecessary findings of fact had

any effect on the final ruling, we will address the other issues as well in the hope of

limiting and clarifying the determinations which will have to be made on remand.

      The findings of fact from the Preliminary Injunction were also not binding

upon the trial court at the alimony hearing. See Childress v. Yadkin Cty., 186 N.C.

App. 30, 43, 650 S.E.2d 55, 64 (2007) (citation and quotation marks omitted).

(“[F]indings and conclusions made in the grant of an injunction are not authoritative

as the law of the case for any other purpose[.]”) Indeed, our Supreme Court has

explained the “relevant rules” regarding Preliminary Injunctions:

             1. The purpose of an interlocutory injunction is to preserve
             the status quo of the subject matter of the suit until a trial
             can be had on the merits. . . .

             ....

             7. The findings of fact and other proceedings of the judge
             who hears the application for an interlocutory injunction
             are not binding on the parties at the trial on the merits.
             Indeed, these findings and proceedings are not proper
             matters for the consideration of the court or jury in passing
             on the issues determinable at the final hearing.


Huskins v. Hospital, 238 N.C. 357, 360-62, 78 S.E.2d 116, 119-21 (1953) (citations

omitted). Upon remand the trial court should not rely upon any of the findings of fact



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                                   Opinion of the Court



in the Preliminary Injunction to make findings required for husband’s alimony claim,

including the findings regarding marital fault.

      We now consider the Sanctions Order. We have already affirmed the Sanctions

Order, and this order bars wife from presenting certain evidence, including any

evidence of marital fault by husband. Yet, even if wife could not present evidence of

marital fault by husband, the trial court was not “stuck” with all of the prior findings

of fact regarding marital fault committed by wife. We also note that in the trial

court’s consideration of marital fault, the actual date of separation will determine

whether wife’s actions alleged as marital misconduct occurred during the marriage

or after the date of separation. N.C. Gen. Stat. § 50-16.3A (b)(1)(2011) (determining

the amount and duration of alimony requires, if relevant, consideration of “[t]he

marital misconduct of either of the spouses. Nothing herein shall prevent a court from

considering incidents of post date-of-separation marital misconduct as corroborating

evidence supporting other evidence that marital misconduct occurred during the

marriage and prior to date of separation[.]”) Again, we have no way of knowing

exactly which prior findings of fact the trial court erroneously relied upon or if the

trial court might have found differently if not bound by prior findings, so we must

remand the Alimony Order. Furthermore, from our review, the Sanctions Order’s

findings of fact addressed the issues of discovery and non-compliance with the

discovery process, but they properly did not address non-relevant issues such as the



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                                         Opinion of the Court



date of separation and marital fault for purposes of alimony, so to the extent these

findings could even be inferred from the Sanctions Order, they would not be binding

on the claim for alimony as this claim is separate and apart from the discovery issues.

But viewed within context, as an order addressing discovery issues and violations, we

have affirmed the Sanctions Order, so it remains binding on remand, including its

prohibition on wife’s presentation of evidence of marital fault by husband.

B.     Judicial Notice

“Her earning capacity is an ultimate fact. And to say, ‘OK, I pulled this up on the
website and I want you to take judicial notice that this is what she can earn,’ without
any further evidence about what she can earn, I would object.”16


       Wife’s last argument is that “the trial court erred in taking judicial notice of

the Bureau of Labor Statistics concerning supposed salaries for electrical engineers,

[wife’s occupation,] as these statistics do not constitute undisputed adjudicative facts

capable of being judicially noticed.” (Original in all caps.) (Quotation marks omitted.)

The trial court found:

                        Defendant is an accomplished electrical engineer
                        who hold several patents. She has been published
                        more than 20 times. Defendant’s area of expertise is
                        that of semiconductor and other electrical
                        components. The court takes judicial notice of the
                        occupational employment statistics, occupational
                        employment and wages for 2012 as published by the
                        national Bureau of Labor Statistics. The national
                        average salary for an electrical engineer with

       16  This statement is wife’s counsel’s objection to the trial court taking judicial notice of the
labor statistics.

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                                  Opinion of the Court



                    Defendant’s qualifications is $99,540 annually. The
                    mean salary for an electrical engineer in North
                    Carolina is $126,000. Defendant has the ability to
                    earn at least $99,540 annually. Defendant is
                    capable of earning a substantial income but is
                    choosing to not do so in order to avoid her support
                    obligation to Plaintiff.

      North Carolina General Statute § 8C-1, Rule 201 of the Rules of Evidence

governs judicial notice:

                    (a) Scope of rule.--This rule governs only judicial
             notice of adjudicative facts.

                   (b) Kinds of facts.--A judicially noticed fact must be
             one not subject to reasonable dispute in that it is either (1)
             generally known within the territorial jurisdiction of the
             trial court or (2) capable of accurate and ready
             determination by resort to sources whose accuracy cannot
             reasonably be questioned.

                    (c) When discretionary.--A court may take judicial
             notice, whether requested or not.

                   (d) When mandatory.--A court shall take judicial
             notice if requested by a party and supplied with the
             necessary information.

                    (e) Opportunity to be heard.--In a trial court, a party
             is entitled upon timely request to an opportunity to be
             heard as to the propriety of taking judicial notice and the
             tenor of the matter noticed. In the absence of prior
             notification, the request may be made after judicial notice
             has been taken.

N.C. Gen Stat. § 8C-1, Rule 201 (2011).

      In Greer v. Greer, this Court noted:



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                                  Opinion of the Court



                    Rule 201(b) of the North Carolina Rules of Evidence
             specifies that a judicially noted fact must be one not subject
             to reasonable dispute in that it is either (1) generally
             known within the territorial jurisdiction of the trial court
             or (2) capable of accurate and ready determination by
             resort to sources whose accuracy cannot reasonably be
             questioned. . . .
                    Any subject, however, that is open to reasonable
             debate is not appropriate for judicial notice.

175 N.C. App. 464, 472, 624 S.E.2d 423, 428 (2006) (emphasis added) (citation,

quotation marks, and brackets omitted).

      As part of husband’s evidence regarding wife’s earning capacity, his attorney

asked the trial court “to take judicial notice of the Department of Labor Statistics

with regard to salaries for electrical engineers.” Wife’s counsel objected, noting that

“[t]his is the sort of thing that if they wanted to call in a vocational expert to talk

about what she’s capable of earning, then I wouldn’t have any objection to it.” After

further discussion, husband’s counsel noted that “what I’m asking you to take judicial

notice of is what the average salary is for someone with her qualifications.” The trial

court then took judicial “notice of what she can earn[.]”

      According to wife’s brief, her “earning capacity was highly disputed[,]” and the

trial court made an unchallenged finding of fact regarding her prior earnings. The

trial court found in finding of fact 13 that wife was employed by Cree Inc. at the time

of the marriage and earned $58,685.00 annually. In 2008, she earned $63,783.00,

and in 2009, $89,242.53.     In 2010, wife’s income from Cree Inc. and Nitek was



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                                   Opinion of the Court



$57,328.00.    Wife also began pursuing her PhD and Nitek was paying her tuition,

which was “substantial” and unreported on her income tax returns. In 2011, wife was

paid $24,023 by Nitek, and in 2012, she was paid “about $25,000.00” and sold stock

“in excess” of $17,000.00. In August of 2012, wife quit her job.      Furthermore, the

trial court found, and wife does not dispute, that she “is an accomplished electrical

engineer who hold several patents” and “has been published more than 20 times[;]”

her area of expertise is “semi-conductor and other electrical components.” The trial

court then found wife’s earning capacity to be $99,540.00 annually, based upon the

“national average salary” for an electrical engineer with wife’s qualifications.

      Given the evidence at trial, and the trial court’s own recitation of wife’s varying

salaries through the years, wife’s earning capacity actually was and is “open to

reasonable debate[.]” Id. Even if the labor statistics alone are undisputed, their

applicability to wife is still open to question. Wife may contend, and apparently does,

that she does not have the capacity to earn as much as the average electrical engineer

with her qualifications or perhaps her capacity to earn is even greater than average,

considering her patents and publications. Either way, her earning capacity is not the

type of undisputed fact of which the trial court could take judicial notice under Rule

201. See id.

      Husband argues that even if the trial court erred in taking judicial notice of

the statistics regarding average salaries, the error is harmless based upon the



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                                   Opinion of the Court



evidence of her actual earnings before quitting her job, particularly her earnings of

$88,512.00 in 2009 and her stock option benefits. But wife is correct that there is no

evidence to support the trial court’s finding of fact as to her earning capacity of

$99,540.00, and this finding was explicitly based upon the judicially noticed statistics.

This amount, $99,540.00, is substantially greater than wife’s earnings for most of the

years addressed in finding of fact 13. We agree that the trial court erred by taking

judicial notice of the statistics and relying so heavily upon these statistics for its

finding of fact regarding wife’s earning capacity. We have already determined that

the Alimony Order must be reversed and remanded, but we address this issue so that

the trial court does not make the same error upon remand in determining wife’s

earning capacity.

                                      VI.     Conclusion

      In conclusion, we affirm the Divorce Judgment, Preliminary Injunction,

Sanctions Order, and Attorney Fees Order. We reverse and remand only the Alimony

Order. On remand, the trial court must, if wife should request to do so, permit her to

present additional evidence regarding the date of separation and her intent to

separate, to the extent that this evidence is not barred by the Sanctions Order. As to

this issue, the parties must have the opportunity to present additional evidence since

wife did not previously have the opportunity to present this evidence because of the

trial court’s reliance on the finding of fact as to the date of separation in the Divorce



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                                  Opinion of the Court



Judgment. Due to the affirmed Sanctions Order, wife still may not present evidence

of marital fault by husband or any other evidence barred by the Sanctions Order.

However, the trial court should make its own independent determination of marital

misconduct by wife as it is not bound by any prior judicial determination. Of course,

this opinion does not prevent the trial court from making the same findings of fact on

remand, so long as the findings are based upon its independent consideration of the

evidence for purposes of determining the alimony claim. Since it has been over two

years since the entry of the Alimony Order, we leave it in the trial court’s sole

discretion as to whether the parties should be permitted to present additional

evidence. It would be entirely appropriate for the trial court to enter its new order

based upon the evidence that was before it in 2013, but this Court has no way of

knowing the current circumstances of the parties or if the trial court would prefer to

receive additional evidence prior to entering a new alimony order; so the

determination of whether to permit the parties to present additional evidence on

remand and the extent of any evidence allowed can only be made by the trial court.

      AFFIRMED in part; REVERSED and REMANDED in part.

      Judges DILLON and DAVIS concur.




                                         - 35 -
