Williamson v. Williamson
217 N.C. App. 388
| N.C. Ct. App. | 2011Background
- Married 1975, separated 2007; alimony hearing held 2010 resulting in alimony award to Defendant and dismissal of her attorney's fees claim; prior equitable distribution proceedings informed income findings; trial court included Defendant's 2009 tax refund as regular income, which is challenged; Plaintiff's income relied on prior order and Defendant's credibility challenged; appeal includes challenges to evidence exclusion, illicit sexual behavior findings, and attorney's fees ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Tax refund included in regular income | Williamson argues tax refund improperly included in Defendant's income. | Williamson contends Edwards v. Edwards requires exclusion of tax refunds from regular income. | Tax refund improperly included; remand ordered. |
| Consideration of present income vs future pay changes | Court should rely on present income figures. | Future pay decrease not required to be considered. | Present income properly considered; no merit to future-change argument. |
| Credibility of Plaintiff's income evidence | Defendant's prior earnings evidence should be credited. | Court should rely on Plaintiff's prior order findings. | Court could rely on prior equitable distribution findings; credibility assessment within trial court's discretion. |
| Exclusion of e-mail evidence | Exclusion violated privacy and prejudiced Plaintiff. | Exclusion was permissible; impact not prejudicial. | Exclusion not shown to be prejudicial error. |
| Attorney's fees dismissal | Fees should be awarded under alimony-related statutes. | No proper pleadings or affidavits; issue not properly before court. | Affirmed dismissal of attorney's fees claim. |
Key Cases Cited
- Edwards v. Edwards, 102 N.C.App. 706 (N.C. App. 1991) (tax refunds not included as regular income absent evidence of regularity)
- Whedon v. Whedon, 58 N.C.App. 524 (N.C. App. 1982) (assessing present incomes for alimony)
- Oakley v. Oakley, 165 N.C.App. 859 (N.C. App. 2004) (standard for reviewing non-jury alimony decisions)
- Devaney v. Miller, 191 N.C.App. 208 (N.C. App. 2008) (judge may take judicial notice of previous orders)
- Phelps v. Phelps, 337 N.C. 344 (N.C. 1994) (credibility weight given to witnesses within trial court's discretion)
- Loflin v. Loflin, 25 N.C.App. 103 (N.C. App. 1975) (burden of proving dependency for alimony rests with claimant)
- Gregory v. Lynch, 271 N.C. 198 (N.C. 1966) (burden to show prejudicial error in evidentiary ruling)
- Spencer v. Spencer, 133 N.C.App. 38 (N.C. App. 1999) (attorney fees need proper pleadings and notice)