{ "id": 8525525, "name": "CATHERINE CORN EDWARDS, Plaintiff v. ROBERT GREGG EDWARDS, Defendant", "name_abbreviation": "Edwards v. Edwards", "decision_date": "1991-05-07", "docket_number": "No. 9018DC899", "first_page": "706", "last_page": "713", "citations": [ { "type": "official", "cite": "102 N.C. App. 706" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "304 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708772, 4705865, 4705394, 4709177, 4708703 ], "year": 1983, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0543-05", "/nc/308/0543-03", "/nc/308/0543-04", "/nc/308/0543-01", "/nc/308/0543-02" ] }, { "cite": "295 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 804", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526309 ], "year": 1982, "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0804-01" ] }, { "cite": "295 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "a spouse's ability to pay alimony is usually determined by his income at the time the award is made" } ], "opinion_index": 0 }, { "cite": "306 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574939, 8574900, 8574909, 8574924 ], "year": 1982, "pin_cites": [ { "parenthetical": "a spouse's ability to pay alimony is usually determined by his income at the time the award is made" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0752-04", "/nc/306/0752-01", "/nc/306/0752-02", "/nc/306/0752-03" ] }, { "cite": "294 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "a spouse's ability to pay alimony is usually determined by his income at the time the award is made" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525435 ], "year": 1982, "pin_cites": [ { "parenthetical": "a spouse's ability to pay alimony is usually determined by his income at the time the award is made" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0524-01" ] }, { "cite": "378 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528064 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0414-01" ] }, { "cite": "347 S.E.2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "317 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773730 ], "year": 1986, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0652-01" ] }, { "cite": "279 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566177, 8566242, 8566148, 8566269, 8566207 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0397-02", "/nc/302/0397-04", "/nc/302/0397-01", "/nc/302/0397-05", "/nc/302/0397-03" ] }, { "cite": "274 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "50 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2672803 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/50/0305-01" ] }, { "cite": "293 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571437 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0518-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 52-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "opinion_index": 0 } ], "analysis": { "cardinality": 647, "char_count": 16064, "ocr_confidence": 0.748, "pagerank": { "raw": 3.994085311658125e-07, "percentile": 0.9055338747548602 }, "sha256": "0fb0491837824a4dd2f0fdd78b3d046fa8c65d34aa547008c54b9e88bce5d530", "simhash": "1:cdffd03a756e9980", "word_count": 2576 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "CATHERINE CORN EDWARDS, Plaintiff v. ROBERT GREGG EDWARDS, Defendant" ], "opinions": [ { "text": "ORR, Judge.\nDefendant assigns three errors on appeal. For the following reasons, we affirm in part, vacate in part and remand to the trial court.\nDefendant first argues that the trial court erred in ordering specific performance of the alimony provisions of the separation agreement. Specifically, defendant argues that the trial court did not make the appropriate findings of fact required by law concerning defendant\u2019s present ability to pay alimony arrearages before it entered its order. We disagree.\nUnder N.C. Gen. Stat. \u00a7 52-10.1 (1984):\nAny married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer ....\nUnder the statute, both parties to a divorce may enter into such agreement to settle the question of alimony, and the terms of the agreement are binding and may be modified only with the consent of both parties. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982). Further, a separation agreement not incorporated into a final divorce decree (as in the present case) may be enforced through the equitable remedy of specific performance. Harris v. Harris, 50 N.C. App. 305, 274 S.E.2d 489, disc. review denied and appeal dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981).\nIn Cavenaugh v. Cavenaugh, 317 N.C. 652, 657, 347 S.E.2d 19, 23 (1986), our Supreme Court held that \u201cwhen a defendant has offered evidence tending to show that he is unable to fulfill his obligations under a separation agreement or other contract the trial judge must make findings of fact concerning the defendant\u2019s ability to carry out the terms of the agreement before ordering specific performance.\u201d\nIn the present case, after hearing some evidence, the trial court stated that it \u201cwill order specific performance.\u201d The court then had a lengthy exchange with attorneys for plaintiff and defendant concerning the evidence it would hear to determine defendant\u2019s present ability to pay. The trial court stated:\nLet me say this. Before this day is over, we are going to hear all of the evidence, and I am going to dictate an order, and it will do whatever it does. And no order has been entered yet. I think we\u2019re using up time discussing that, because I need to hear evidence on his ability. And whether you call that before or after the fact of specific performance, I\u2019ve got to hear that evidence.\nThe trial court then heard defendant\u2019s testimony concerning his ability to pay his alimony arrearages and accepted into evidence defendant\u2019s affidavit (Exhibit 3) concerning his monthly expenses and income. After hearing all of the evidence, the trial court recited defendant\u2019s income and expenses in findings 7 through 10 and then made findings of fact 11 through 14 regarding defendant\u2019s ability to pay the arrearages. The trial court subsequently ordered specific performance of the alimony provision in the separation agreement. We find that the trial court\u2019s procedure in ordering specific performance is well within the requirements stated in Cavenaugh and affirm this portion of the judgment.\nDefendant next contends that the trial court erred in its findings of fact and conclusions of law that defendant has the present ability to pay alimony arrearages and prospective alimony. We agree.\nThe trial court correctly calculated defendant\u2019s net income at $2,032.00 per month. However, defendant argues that the trial court erroneously calculated his itemized monthly expenses to total $2,087.00, when the correct calculation is $2,513.00.\nPlaintiff concedes that the trial court\u2019s calculation of monthly expenses is erroneous but maintains that this is a \u201cclerical\u201d error which may be corrected under Rule 60 of the N.C. Rules of Civil Procedure without affecting the result of the judgment. We disagree.\nUnder N:C. Gen. Stat. \u00a7 1A-1, Rule 60(a) (1990):\nClerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.\nThis rule allows correction of clerical errors, but does not permit errors of a serious or substantial nature. Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196 (1989). We find that the trial court\u2019s miscalculation in this situation is of a substantial nature. The trial court understated defendant\u2019s monthly expenses by approximately $500.00 per month and failed to include that amount in its calculation of the amount of defendant\u2019s present ability to pay alimony arrearages and prospective alimony. While this miscalculation may have no effect on the trial court\u2019s order of specific performance, it may have an effect on the amount defendant can reasonably afford to pay plaintiff on a monthly basis. The trial court based its award on defendant\u2019s expenses of $2,087.00 per month, not the actual expenses of $2,513.00 per month.\nPlaintiff further argues that the trial court\u2019s error in the present case does not prejudice defendant because the trial court did not include defendant\u2019s $3,000.00 bonus for the year or a $3,000.00 tax refund in its calculation of defendant\u2019s income. There is no evidence before this Court that either of the above income sources for the year may be considered regular income and therefore included in calculating defendant\u2019s net monthly income. See Whedon v. Whedon, 58 N.C. App. 524, 294 S.E.2d 29, disc. review denied, 306 N.C. 752, 295 S.E.2d 764 (1982) (a spouse\u2019s ability to pay alimony is usually determined by his income at the time the award is made). Moreover, there is evidence that the income tax refund is a joint refund to both defendant and his present wife; therefore, for the purposes of the case before us, it would appear that defendant would be entitled to only half of such refund. We find that the trial court\u2019s miscalculation of defendant\u2019s expenses relative to his monthly income is a prejudicial error and therefore must be addressed by the trial court.\nDefendant also contends that the trial' court erred in finding that defendant had the present ability to increase the equity loan on the home owned by him and his current wife by $1,500.00. We disagree.\nDefendant cites no authority in support of his argument on this issue in violation of Rule 28(b)(5) of the N.C. Rules of Appellate Procedure. We have, however, reviewed defendant\u2019s argument and the law in this State and find no merit to defendant\u2019s contentions.\nIn its order, the trial court made the following findings concerning defendant\u2019s ability to incur additional debt to pay his alimony arrearages:\n8.\n. . . . The defendant has a line of credit on the equity loan of $10,000.00, and the defendant can borrow approximately an additional $1,500.00. The defendant owns a 1988 Jeep Cherokee valued at approximately $10,000.00, and the defendant has about three years of payments left on said Jeep. The defendant and his wife have a joint savings account of approximately $600.00, and the defendant has an IRA account in his name alone in the amount of approximately $1,800.00. As of the date of this hearing, the defendant has between $2,800.00 and $3,000.00 in his personal checking account, out of which he is committed to pay his living expenses. The defendant had a check in Court for $493.64 dated December, 1988 for the plaintiff\u2019s share of his profit-sharing plan, and the defendant has delivered the check to the plaintiff and the plaintiff has received the check. The defendant has not deliberately depressed his income or dissipated his resources.\n13.\nThe defendant has the present ability to increase the equity loan on his home by $1,500.00 within a week and to pay this amount directly to the plaintiff on or before Wednesday, April 4, 1990, as a partial payment upon his arrears.\nThe trial court then concluded:\n(5) The defendant has not deliberately depressed his income or dissipated his resources. The defendant has the present ability to pay $493.64 to the plaintiff immediately as her 25% share of the profit-sharing plan, has the present ability to pay to the plaintiff $1,500.00 of the alimony arrearage on or before April 4, 1990, has the present ability to resume the alimony payments of $300.00 per month beginning April 1, 1990 and continuing on the first of each consecutive month thereafter until they are paid and satisfied in full in accordance with the Separation Agreement of the parties, ....\nThe trial court further ordered: \u201cThe defendant shall pay to the plaintiff on or before April 4, 1990 the sum of $1,500.00 to be applied upon the alimony arrearage.\u201d\nDefendant maintains that the trial court specifically ordered him to take a home equity loan for $1,500.00. On the contrary, we find that the trial court made findings of the amount of defendant\u2019s assets and available credit and then ordered defendant to pay $1,500.00 and other sums, based upon its findings. Although defendant may choose to use a home equity loan for the lump sum payment of arrearages, defendant is not prevented by the trial court\u2019s order from obtaining that amount from other sources.\nDefendant\u2019s remaining assignment of error concerns whether the trial court erred in awarding attorney\u2019s fees in a specific performance action. We hold that the trial court did not err.\nDefendant is correct that attorneys\u2019 fees are generally not allowable unless expressly authorized by statute. Buck v. Proctor & Gamble, 58 N.C. App. 804, 805, 295 S.E.2d 243, 244 (1982), cert. denied, 308 N.C. 543, 304 S.E.2d 236 (1983) (citation omitted). In the present case, however, defendant and plaintiff specifically contracted for attorneys\u2019 fees in the separation agreement under paragraph 16, entitled \u201cIndemnity.\u201d\nIf either party hereto for any reason fails to perform his or her financial or other obligations to the other party or their child, and as a result thereof incurs any expense, including reasonable attorney\u2019s fees, to collect the same or otherwise enforce his or her rights with respect thereto, the defaulting party shall indemnify and hold the other harmless from any such expense.\nBased upon this agreement, the trial court found as fact that \u201cthe plaintiff is entitled to indemnification and recovery of reasonable attorneys\u2019 fees as a result of the failure of the defendant to comply with the provisions of the Separation Agreement.\u201d The trial court then found the specific amount of attorneys\u2019 fees based upon the hourly rate and the amount of time and effort expended.\nUnder \u00a7 52-10.1, separation agreements are \u201cbinding in all respects\u201d so long as they are \u201cnot inconsistent with public policy\u201d and executed according to the directives of the statute. We find nothing inconsistent with public policy in the above indemnity clause, and the agreement was executed pursuant to the statute. Therefore, it is \u201cbinding in all respects\u201d including the indemnity clause.\nTo hold otherwise would, in effect, hold that parties cannot contract for indemnification for attorneys\u2019 fees unless specifically authorized to do so by statute. We find that the general rule disallowing attorneys\u2019 fees unless statutorily authorized does not encompass this situation where the parties voluntarily contracted for indemnification for such fees. Therefore, we hold that the trial court did not err in allowing attorneys\u2019 fees.\nFor the above reasons, we affirm in part, vacate in part and remand to the trial court for further findings not inconsistent with this opinion.\nAffirmed in part; vacated in part and remanded.\nJudges Johnson and Parker concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Wyatt Early Harris Wheeler & Hauser, by A. Doyle Early, Jr., and Lee M. Cecil, for plaintiff-appellee.", "Byerly & Byerly, by W. B. Byerly, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "CATHERINE CORN EDWARDS, Plaintiff v. ROBERT GREGG EDWARDS, Defendant\nNo. 9018DC899\n(Filed 7 May 1991)\n1. Divorce and Separation \u00a7 39 (NCI4th)\u2014 separation agreement \u2014 alimony\u2014arrearages and prospective amounts\u2014 ability to pay \u2014 procedure not erroneous\nAlthough the trial court stated that it \u201cwill allow specific performance\u201d of the alimony provisions of a separation agreement prior to hearing any evidence of defendant\u2019s present ability to pay, the procedure followed by the court complied with prior case law where the court then had a discussion with counsel for both parties concerning evidence it would hear to determine defendant\u2019s present ability to pay; the court thereafter heard defendant\u2019s testimony concerning his present ability to pay alimony arrearages and admitted defendant\u2019s affidavit setting forth his monthly expenses and income; after hearing all the evidence, the court made findings as to defendant\u2019s income and expenses and his ability to pay the arrearages; and the court subsequently ordered specific performance of the alimony provisions by the payment of ar-rearages and prospective alimony.\nAm Jur 2d, Divorce and Separation \u00a7 652.\n2. Divorce and Separation \u00a7 39 (NCI4th)\u2014 separation agreements \u2014alimony\u2014present ability to pay \u2014 expenses \u2014 erroneous findings and conclusions\nThe trial court erred in its findings and conclusions as to defendant\u2019s present ability to pay alimony arrearages and prospective alimony required by a separation agreement where the court understated defendant\u2019s monthly expenses by nearly $500.00 and failed to include that amount in its calculation of defendant\u2019s present ability to pay arrearages and prospective alimony.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 426, 660.\n3. Rules of Civil Procedure \u00a7 60.2 (NCI3d| \u2014 alimony \u2014 specific performance \u2014 miscalculation of expenses \u2014not clerical error\nThe trial court\u2019s miscalculation of defendant\u2019s expenses in an order of specific performance of the alimony provisions of a separation agreement was not a mere clerical error which could be corrected under N.C.G.S. \u00a7 1A-1, Rule 60(b) without affecting the result of the order.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 426, 660.\n4. Divorce and Separation \u00a7 307 (NCI4th)\u2014 alimony arrearages\u2014 home equity loan not required by order\nThe trial court did not improperly order defendant to obtain a $1500.00 home equity loan in order to make a partial payment of his alimony arrearages but only made findings of the amount of defendant\u2019s assets and available credit, including a finding that he can borrow an additional $1500.00 under his home equity line of credit, and then ordered defendant to pay $1500.00 based upon its findings.\nAm Jur 2d, Divorce and Separation \u00a7 750.\n5. Divorce and Separation \u00a7 520 (NCI4th)\u2014 separation agreement \u2014 alimony\u2014specific performance \u2014 attorney fees\nThe trial court did not err in awarding attorney fees to plaintiff in an action for specific performance of the alimony provisions of a separation agreement where the parties specifically contracted for indemnification of such fees in their separation agreement. The general rule disallowing attorney fees unless statutorily authorized does not apply in this situation. N.C.G.S. \u00a7 52-10.1.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 598, 599.\nAPPEAL by defendant from judgment entered 28 March 1990 by Judge J. Bruce Morton in GUILFORD County District Court. Heard in the Court of Appeals 12 March 1991.\nOn 7 December 1989, plaintiff filed this action seeking specific performance of certain provisions of the separation agreement between plaintiff and defendant. The agreement stated that defendant would pay plaintiff rehabilitative alimony of $300.00 per month beginning 1 October 1986, and continue for six years or until plaintiff\u2019s death or remarriage, whichever occurs first. Defendant ceased making these payments in April 1989.\nThe trial court entered its judgment in plaintiff\u2019s favor on 28 March 1990. Defendant appeals.\nWyatt Early Harris Wheeler & Hauser, by A. Doyle Early, Jr., and Lee M. Cecil, for plaintiff-appellee.\nByerly & Byerly, by W. B. Byerly, Jr., for defendant-appellant." }, "file_name": "0706-01", "first_page_order": 736, "last_page_order": 743 }