Myers v. Myers
| Citation | Myers v. Myers, 837 S.E.2d 443, 269 N.C.App. 237 (N.C. App. 2020) |
| Decision Date | 07 January 2020 |
| Citation | 837 S.E.2d 443,269 N.C.App. 237 |
| Docket Number | No. COA18-1210,COA18-1210 |
| Parties | James B. MYERS, Jr., Plaintiff, v. Charlotte K. MYERS, Defendant. |
| Court | North Carolina Court of Appeals |
James, McElroy & Diehl, P.A., by Christopher T. Hood, Charlotte, Jonathan D. Feit, Charlotte, and Haley E. White, for plaintiff-appellee.
Hamilton Stephens Steele + Martin, PLLC, by Amy E. Simpson, for defendant-appellant.
Defendant-Wife appeals from the trial court's Equitable Distribution Judgment and Alimony Order. Wife argues the trial court erred by excluding her expert witness's testimony regarding potential tax consequences of an alimony award, by failing to make sufficient findings to support the amount of prospective alimony awarded, and by failing to award retroactive alimony. Because the trial court erred in its legal determination that North Carolina General Statute § 1A-1, Rule 26(b)(4)(a)(1) required exclusion of Wife's expert witness, the trial court failed to exercise its discretion to decide whether to admit her testimony and we remand for further consideration. Because the trial court did not make sufficient findings to support the amount of alimony awarded or explain why it denied Wife's claim for retroactive alimony, we reverse and remand the order as to the amount of the prospective alimony and as to the denial of retroactive alimony.
Husband and Wife were married in 1994 and separated on 26 July 2014. Two children were born to the marriage, in 2005 and 2007. After the first child was born, Wife stopped working outside the home to care for the children or worked only part-time, and Husband was the primary wage earner. On 6 November 2015, Husband filed a complaint with claims for child custody, child support, equitable distribution, and absolute divorce. On 21 January 2016, Wife filed her answer and counterclaims for child custody, child support, post-separation support, alimony, equitable distribution, and attorney fees. On 2 March 2016, the trial court entered a judgment of absolute divorce, reserving all other pending claims. On 22 March 2016, Husband filed his affirmative defenses and reply, alleging marital misconduct by Wife as a defense to alimony. On 23 January 2017, with leave of court, Wife filed her amended answer and counterclaims, adding allegations of marital misconduct by Husband. The parties engaged in discovery regarding all pending claims.
About a week before trial on the equitable distribution and alimony claims, the parties entered a Consent Order regarding permanent child custody and child support. Under the Consent Order, Husband was required to pay child support of $1,700.00 per month, starting on 1 September 2017, and 75% of the children's uninsured medical expenses and certain extracurricular activities. The Consent Order did not address how child support was calculated and did not mention retroactive or past prospective child support.
The trial court held a hearing on equitable distribution and alimony on 13 and 14 September 2017 and entered its order on these claims on 4 April 2018. The trial court granted an unequal distribution of the marital property, granting Wife 52% of the net marital estate. In making the unequal distribution, the trial court specifically considered several factors under North Carolina General Statute § 50-20(c), including that Husband's income "greatly exceeded that of" Wife during the marriage and his "career growth potential is also far greater than" hers; Husband's higher expectations of pension or retirement benefits; Wife's contributions as a homemaker and primary parent; and Wife's support for Husband in advancing his career. Neither party challenges the equitable distribution provisions of the order on appeal.
On the alimony claim, the trial court made extensive findings of fact addressing Husband's allegations of marital misconduct by Wife early in their marriage but determined that he was aware of the incident and condoned it. Although Wife presented evidence regarding allegations of illicit sexual misconduct by Husband in support of her alimony claim, the trial court made no findings on this issue. The trial court also made detailed findings of fact regarding the parties’ incomes and expenses and required Husband to make monthly alimony payments of $1,200.00. We will address the trial court's findings regarding alimony in more detail below. Wife timely appealed from the trial court's order.
Wife's first issue arises from the trial court's exclusion of testimony of her expert witness based upon her failure to disclose the identity of the witness sufficiently in advance of trial. As a general rule, we review the trial court's rulings regarding discovery for abuse of discretion. See Miller v. Forsyth Mem'l Hosp., Inc. , 174 N.C. App. 619, 620, 625 S.E.2d 115, 116 (2005) ( . "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow , 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). However, if the trial court makes a discretionary ruling based upon a misapprehension of the applicable law, this is also an abuse of discretion. See State v. Rhodes , 366 N.C. 532, 536, 743 S.E.2d 37, 39 (2013) ( ). And if the trial court's ruling depends upon interpretation of a statute, we review the ruling de novo . Moore v. Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012) (). Where the language of a statute is clear, we need not construe the statute and must simply apply the plain meaning of the statute. See Burgess v. Your House of Raleigh , 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). If the statute is ambiguous or unclear, we must consider the purpose of the statute and intent of the legislature as expressed in the statute.
When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia , the preamble, the title, and other like means. The intent of the General Assembly may also be gleaned from legislative history. Likewise, later statutory amendments provide useful evidence of the legislative intent guiding the prior version of the statute. Statutory provisions must be read in context: Parts of the same statute dealing with the same subject matter must be considered and interpreted as a whole. Statutes dealing with the same subject matter must be construed in pari materia , as together constituting one law, and harmonized to give effect to each.
Insulation Sys., Inc. v. Fisher , 197 N.C. App. 386, 390, 678 S.E.2d 357, 360 (2009) (quoting In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co. , 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) ). Where, as in this case, the Legislature has recently amended a statute, we also "presume that the legislature acted with full knowledge of prior and existing law and its construction by the courts." State ex rel. Cobey v. Simpson , 333 N.C. 81, 90, 423 S.E.2d 759, 763 (1992) (citing Lumber Co. v. Trading Co. , 163 N.C. 314, 317, 79 S.E. 627, 628-29 (1913) ).
Wife contends the trial court erred by striking testimony and evidence from her expert witness, Victoria Coble. Wife attempted to present evidence regarding the tax consequences of alimony, tax rates, "cash flow issues and hypothetical rates of return on cash investments." Wife hired Ms. Coble a week prior to the trial and did not disclose her as an expert witness until the afternoon of 12 September 2017, the day before the trial. Husband moved to exclude Ms. Coble's testimony at the start of the trial, but the trial court initially denied Husband's motion, ordered that all of Ms. Coble's materials be produced to Husband in the courtroom and directed that she could be called to testify on the second day of trial. On the second day, Husband renewed his objection to Ms. Coble's testimony and made additional arguments to the trial court based upon the 2015 amendments to Rule 26 of the North Carolina Rules of Civil Procedure, including a blog post on the issue published by Professor Ann Anderson of the University of North Carolina School of Government (hereinafter School of Government).
Although the parties had engaged in discovery, Husband had done no discovery requesting disclosure of expert witnesses. There was no discovery conference or pretrial conference addressing evidence or witnesses in the alimony portion of the case; the only pretrial order addressed the equitable distribution claim, and that order did not mention potential witnesses, including any expert witnesses. Wife argued that under North Carolina General Statute § 1A-1, Rule 26(a) and (e), Husband had not requested her to identify any expert witnesses and she thus had no duty to supplement any prior responses. In addition, we...
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