{ "id": 8527565, "name": "LINDA LOU WYATT (HOLLIFIELD) v. JIMMY H. HOLLIFIELD, SR.", "name_abbreviation": "Wyatt v. Hollifield", "decision_date": "1994-04-19", "docket_number": "No. 9325DC593", "first_page": "352", "last_page": "360", "citations": [ { "type": "official", "cite": "114 N.C. App. 352" } ], "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": "57 ALR4th 710", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "285 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "282", "parenthetical": "permitting appeal of alimony pendente lite awards only after final judgment" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527082 ], "year": 1981, "pin_cites": [ { "page": "252", "parenthetical": "permitting appeal of alimony pendente lite awards only after final judgment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0250-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833", "parenthetical": "defining abuse of discretion" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777", "parenthetical": "defining abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "when statute employs word \"may,\" its provisions are ordinarily construed as permissive" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "parenthetical": "when statute employs word \"may,\" its provisions are ordinarily construed as permissive" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "232 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558677 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0451-01" ] }, { "cite": "75 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "237 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611770 ], "year": 1953, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0383-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "759", "parenthetical": "discussing requisites of preliminary injunction" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "year": 1983, "pin_cites": [ { "page": "401", "parenthetical": "discussing requisites of preliminary injunction" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] }, { "cite": "56 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "388", "parenthetical": "prima facie evidence deemed inadequate where both parties given opportunity to present evidence" } ], "opinion_index": 0 }, { "cite": "231 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628646 ], "year": 1949, "pin_cites": [ { "page": "129", "parenthetical": "prima facie evidence deemed inadequate where both parties given opportunity to present evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0123-01" ] }, { "cite": "254 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569249, 8569379, 8569416, 8569333, 8569302 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0299-01", "/nc/297/0299-04", "/nc/297/0299-05", "/nc/297/0299-03", "/nc/297/0299-02" ] }, { "cite": "252 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550343 ], "year": 1979, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0334-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "183 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549183 ], "year": 1971, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0286-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "411 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 803", "category": "reporters:state", "reporter": "N.C. App.", "year": 1991, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 }, { "cite": "360 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "320 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723595, 4724494, 4731441, 4724438, 4725910 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/320/0633-01", "/nc/320/0633-02", "/nc/320/0633-05", "/nc/320/0633-03", "/nc/320/0633-04" ] }, { "cite": "355 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "853" }, { "page": "853" } ], "opinion_index": 1 }, { "cite": "85 N.C. App. 660", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170260 ], "year": 1987, "pin_cites": [ { "page": "667-68" } ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0660-01" ] }, { "cite": "438 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 1 }, { "cite": "335 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529425, 2530259, 2532590, 2530871 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nc/335/0177-01", "/nc/335/0177-02", "/nc/335/0177-04", "/nc/335/0177-03" ] }, { "cite": "433 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "230" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522769 ], "year": 1993, "pin_cites": [ { "page": "517" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0460-01" ] } ], "analysis": { "cardinality": 790, "char_count": 17481, "ocr_confidence": 0.771, "pagerank": { "raw": 8.822123157029673e-08, "percentile": 0.4975270759028808 }, "sha256": "b3467a6a1024b89aefcfb04404cbfb212dc33e7009965c9916f0c460318a7ef5", "simhash": "1:2323df22162f6d50", "word_count": 2820 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHNSON concurs.", "Judge JOHN concurs with separate opinion." ], "parties": [ "LINDA LOU WYATT (HOLLIFIELD) v. JIMMY H. HOLLIFIELD, SR." ], "opinions": [ { "text": "GREENE, Judge.\nLinda Lou Hollifield Wyatt (plaintiff) appeals from a judgment filed 5 January 1993 in Caldwell County District Court, ordering her to repay the alimony pendente lite she had received from Jimmy H. Hollifield, Sr. (defendant) and denying her attorney\u2019s fees for services rendered prior to the jury trial for permanent alimony.\nOn 15 January 1991, defendant filed a verified complaint seeking a divorce from bed and board from plaintiff. On 28 January 1991, plaintiff filed a verified complaint seeking divorce from bed and board, alimony pendente lite, permanent alimony, and attorney\u2019s fees. In her complaint, plaintiff alleged that she is unemployed, has no employment other than assisting defendant as bookkeeper for Hollifield Lumber Company, and is without the means to subsist during the prosecution of this action. Defendant moved to dismiss plaintiff\u2019s complaint on the grounds that there was a prior pending action between the parties.\nAfter a hearing on 28 May 1991, Judge Nancy Einstein, by order dated 8 June 1991, denied defendant\u2019s motion to dismiss, treated defendant\u2019s complaint as a counterclaim and joined the two files for trial. At the hearing, the trial court received evidence on plaintiff\u2019s claim for alimony pendente lite and made the following pertinent findings of fact:\n9. The defendant has committed such indignities to the person of the plaintiff so as to make her life burdensome and condition unbearable as follows:\na. . . . the defendant assaulted the plaintiff by throwing her on a bed choking her with one hand while holding a pistol to her forehead with the other and stating that he intended to kill her. . . .\nb. The defendant is an excessive user of alcohol and has been an excessive user consistently for several years.\nc. The defendant told the plaintiff on January 7, 1991, just prior to the separation of the parties, that he intended to kill himself and her to \u201cend it all\u201d.\nd. The defendant has for several years gone into rages for no apparent or predictable reasons including several instances of throwing food in restaurants to the embarrassment and humiliation of the plaintiff.\ne. The defendant threw food, lamps, ashtrays and other objects at the plaintiff from time to time while in the marital home.\n10. The defendant constructively abandoned the plaintiff. The defendant has on at least two occasions, threatened the plaintiff with death including the day immediately prior to her leaving the martial [sic] home.\n14. The plaintiff was never paid a salary for her efforts [as a bookkeeper in the offices of Hollifield Lumber Company].\n22.... The plaintiff earns approximately $300.00 per month working on a part time basis.\n23. The plaintiff has submitted an affidavit which was admitted into evidence indicating needs exceeding $2,400.00. to meet monthly living expenses.\n26. . . . The plaintiff\u2019s attorney has a normal hourly rate of $125.00. The plaintiff\u2019s attorney has devoted 12.9 hours for the preparation of the pleadings and for this hearing, as well as, various conferences with the defendant\u2019s attorney. The plaintiff paid her attorney a $2,500.00 retainer fee from the monies which she took into her possession at the time of separation.\nBased upon these findings, Judge Einstein concluded as a matter of law that plaintiff is a dependent spouse, \u201clikely to prevail on her action for alimony,\u201d \u201cwithout the means whereon to subsist pending the prosecution of this action,\u201d and \u201cwithout the ability to meet the defendant on an equal footing.\u201d Judge Einstein ordered defendant to pay plaintiff alimony pendente lite of $2,000.00 a month, but deferred plaintiff\u2019s motion for attorney\u2019s fees \u201cuntil hearing upon the trial of this matter for permanent alimony.\u201d Defendant appealed the denial of his motion to dismiss to this Court which affirmed Judge Einstein\u2019s denial of defendant\u2019s motion. Hollifield v. Hollifield, 104 N.C. App. 803, 411 S.E.2d 662 (1991) (unpublished opinion).\nOn 12 May 1992, defendant filed an amended answer and counterclaim to plaintiff\u2019s claim for permanent alimony, divorce from bed and board, and attorney\u2019s fees. He requested a jury trial on the issue of permanent alimony and a refund of all alimony pendente lite paid to plaintiff. An absolute divorce judgment was entered on 29 May 1992. A jury trial on plaintiff\u2019s claim for permanent alimony was conducted, beginning on 2 December 1992, and the jury answered the questions submitted to them as follows:\nIssue # One (1):\nDid the defendant, Jimmy H. Hollifield, Sr., by cruel and barbarous conduct endanger the life of the plaintiff, Linda Hollifield (Wyatt), without provocation?\nAnswer No\nIssue # Two (2):\nDid the defendant, Jimmy H. Hollifield, Sr., without provocation, offer such indignities to the person of the plaintiff, Linda Hollifield (Wyatt), as to render her condition intolerable an [sic] life burdensome?\nAnswer' No\n[If You Answered Both Issues 1 & 2 \u201cNo\u201d, You Will Have CONCLUDED YOUR DELIBERATIONS. . . .]\nAfter the jury answered these questions, Judge Jonathan L. Jones made the following additional findings of fact:\n7. That from the date of separation of the parties hereto, January 8,1991, through April, 1992, the Plaintiff Mrs. Hollifield had worked at various cleaning jobs and had borrowed two thousand dollars ($2,000.00) from First Union Bank and six hundred dollars ($600.00) from one of her sons. That, in addition, Mrs. Hollifield also had over ten thousand dollars ($10,000.00) during this period of monies removed from the marital home.\n8. That from January 8, 1991, through April, 1992, Mrs. Hollifield had purchased a Cutlass automobile, had engaged in some recreational activity, had housed herself, clothed herself, and provided for herself in a reasonable manner.\n9. That after April, 1992, the Plaintiff Mrs. Hollifield traded her Oldsmobile Cutlass automobile for a new red Chrysler LeBaron convertible and has continued to engage in some recreational activity and house, clothe, and accommodate herself in a reasonable manner. That Mrs. Hollifield between April and November, 1992, expended in excess of thirty thousand dollars ($30,000.00) of the thirty-two thousand five hundred dollars ($32,500.00) of temporary alimony paid by Mr. Hollifield to her.\nBased on these findings of fact and the jury\u2019s answers, Judge Jones denied plaintiffs application for permanent alimony, dismissed her claim with prejudice, ordered her to repay defendant $32,500.00, the entire sum of alimony pendente lite she received pursuant to N.C. Gen. Stat. \u00a7 50-16.11, and denied plaintiff\u2019s request for attorney\u2019s fees.\nThe issues presented are whether (I) a spouse who receives alimony pendente lite can be required to return that alimony to the paying spouse in the event the recipient spouse\u2019s permanent alimony claim is denied; and (II) a spouse awarded alimony pendente lite loses her right to attorney\u2019s fees for services rendered in the pendente lite proceeding in the event the recipient\u2019s permanent alimony claim is denied.\nI\nAlimony pendente lite is defined as \u201cpayment [ordered to be paid] for the support and maintenance of a spouse\u201d pending \u201cthe final judgment of divorce in an action for divorce, whether absolute or from bed and board, or in an action for annulment, or on the merits in an action for alimony without divorce.\u201d N.C.G.S. \u00a7\u00a7 50-16.1(1), (2) (1987). With some exceptions, the supporting spouse must have five days notice of the alimony pendente lite hearing. N.C.G.S. \u00a7 50-16.8(e) (1987) (listing exceptions). At the pendente lite hearing, both parties must be given an opportunity to offer evidence \u201corally, upon affidavit, verified pleading, or other proof,\u201d and the trial judge is to \u201cfind the facts from the evidence so presented.\u201d N.C.G.S. \u00a7 5046.8(f) (1987); Austin v. Austin, 12 N.C. App. 286, 295, 183 S.E.2d 420, 427 (1971). The spouse seeking alimony pendente lite, if he or she also claims an entitlement to \u201cabsolute divorce, divorce from bed and board, annulment, or alimony without divorce,\u201d has the burden of showing that (1) he or she is a \u201cdependent spouse\u201d as defined in N.C. Gen. Stat. \u00a7 50-16.1(3); (2) that there is a \u201clikelihood of success on the merits\u201d with regard to his or her action for \u201cabsolute divorce, divorce from bed and board, annulment, or alimony without divorce,\u201d N.C.G.S. \u00a7 50-16.3(a)(1); see Gardner v. Gardner, 40 N.C. App. 334, 338, 252 S.E.2d 867, 870, disc. rev. denied, 297 N.C. 299, 254 S.E.2d 917 (1979); Cameron v. Cameron, 231 N.C. 123, 129, 56 S.E.2d 384, 388 (1949) (prima facie evidence deemed inadequate where both parties given opportunity to present evidence); cf. A.E.P Indus. v. McClure, 308 N.C. 393, 401, 302 S.E.2d 754, 759 (1983) (discussing requisites of preliminary injunction); and (3) she has, pursuant to N.C. Gen. Stat. \u00a7 50-16.3(a)(2), \u201c[insufficient means whereon to subsist during the prosecution ... of the suit and to defray the necessary expenses thereof.\u201d If the spouse seeking alimony pendente lite seeks no affirmative relief in an action filed against her for \u201cabsolute divorce, divorce from bed and board, annulment, or alimony without divorce,\u201d she has the burden of showing that (1) she is a dependent spouse, and (2) she does not have sufficient means to subsist during the defense of the suit and to defray the necessary expenses thereof. See Johnson v. Johnson, 237 N.C. 383, 385, 75 S.E.2d 109, 111 (1953).\nDefendant, pursuant to N.C. Gen. Stat. \u00a7 50-16.11, sought reimbursement of the alimony pendente lite he had paid pursuant to Judge Einstein\u2019s order.\nN.C. Gen. Stat. \u00a7 50-16.11 provides in pertinent part:\nupon motion by the supporting spouse, if a final judgment is entered in any action denying alimony because none of the grounds specified in G.S. 50-16.2 exists, the court may enter a judgment against the spouse to whom the payments were made for the amount of alimony pendente lite paid by the supporting spouse to that spouse pending a final disposition of the case.\nN.C.G.S. \u00a7 50-16.11 (1987). Because the language of this provision is unambiguous, it must be given its plain and definite meaning. State ex rel. Utilities Comm\u2019n v. Edmisten, 291 N.C. 451, 232 S.E.2d 184 (1977). The plain and definite meaning is that when a jury or trial judge finds that none of the grounds on which a spouse alleges entitlement to permanent alimony pursuant to Section 50-16.2 exists, the trial court, in its discretion, see In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978) (when statute employs word \u201cmay,\u201d its provisions are ordinarily construed as permissive), may order recoupment of any alimony pendente lite paid by the supporting spouse.\nIn this case, plaintiff proceeded in her action for permanent alimony on two of the ten grounds contained in Section 50-16.2: (1) defendant, by cruel and barbarous conduct endangered her life; and (2) defendant, without provocation, offered indignities to plaintiff so as to render her condition intolerable and life burdensome. Because the jury found that these two grounds did not exist, it was in the trial court\u2019s discretion upon defendant\u2019s motion pursuant to Section 50-16.11 whether or not to order recoupment of the $32,500.00 in alimony pendente lite defendant had paid to plaintiff. Because we are unable to say, on this record, that the decision to order recoupment is \u201cso arbitrary that it could not have been the result of a reasoned decision,\u201d there was no abuse of discretion. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (defining abuse of discretion).\nII\nContemporaneous with the order requiring plaintiff to return to defendant the alimony pendente lite paid, the trial court denied plaintiff\u2019s motion for attorney\u2019s fees rendered in the prosecution of the alimony pendente lite hearing. This motion had been made by plaintiff at the termination of the pendente lite hearing and deferred by Judge Einstein until the permanent alimony trial.\nThe defendant argues that because the trial court ordered recoupment of alimony pendente lite pursuant to Section 50-16.11, it follows that plaintiff is not entitled to counsel fees pursuant to N.C. Gen. Stat. \u00a7 50-16.4. We disagree. Section 50-16.11 cannot be read to mean that the jury\u2019s rejection of the plaintiff\u2019s grounds for permanent alimony is tantamount to a reversal or vacating of the alimony pendente lite award. Section 50-16.11 merely authorizes the trial judge to order recoupment of alimony pendente lite which may be for the entire amount or a portion of the amount paid by the supporting spouse to the dependent spouse. The statute does not mandate an order or recoupment in the event permanent alimony is denied. Thus, because the alimony pendente lite award has not been appealed and reversed, see Stephenson v. Stephenson, 55 N.C. App. 250, 252, 285 S.E.2d 281, 282 (1981) (permitting appeal of alimony pendente lite awards only after final judgment), nor vacated pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 59 or 60, it remains a valid order and can support an award of counsel fees. Accordingly, this matter must be remanded to the trial court for consideration, on this record and pursuant to N.C. Gen. Stat. \u00a7 50-16.4, of the plaintiff\u2019s request for counsel fees.\nAffirmed in part, reversed in part, and remanded.\nJudge JOHNSON concurs.\nJudge JOHN concurs with separate opinion.\n. Although N.C. Gen. Stat. \u00a7 50-16.8(f), as printed in the 1987 edition of the North Carolina General Statutes (the current edition), uses the word \u201cparty,\u201d because the original amendment adding Section 50-16.8(f) in 1967 uses the word \u201cparties,\u201d and because there has been no amendment since 1967 changing \u201cparties\u201d to \u201cparty,\u201d the word \u201cparty\u201d contained in the current version of Section 50-16.8(f) is a misprint and must be read as \u201cparties.\u201d", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge JOHN\nconcurring.\nI concur in the majority opinion affirming the trial court\u2019s order of recoupment of alimony paid by defendant. As to the question of counsel fees pendente lite, I concur in the result reached by the majority remanding this matter for \u201cconsideration\u201d because I am persuaded the trial court\u2019s rulings under the recoupment statute and concerning the award of counsel fees must be independent of each other. Unfortunately, a critical page from the transcript of the proceedings below has been, apparently inadvertently, omitted from the appellate record. Consequently, it is not possible to determine whether the court properly exercised its discretion in denying counsel fees independent of its order of recoupment.\nI write separately to emphasize that, because neither new evidence nor additional argument are required to clarify the point in question, see Smith v. Smith, 111 N.C. App. 460, 517, 433 S.E.2d 196, 230, disc. review denied, 335 N.C. 177, 438 S.E.2d 202 (1993), the court\u2019s \u201cconsideration ... on this record\u201d need consist only of reliance upon the existing record for entry of an order containing appropriate findings and conclusions consistent with N.C.G.S. \u00a7 50-16.4 (1987) and other applicable law. Further, the majority opinion should not be read necessarily to mandate an award of counsel fees in any amount, nominal or otherwise. G.S. \u00a7 50-16.4 provides: \u201c[a]t any time that a dependent spouse would be entitled to alimony pendente lite . . . , the court may . . . enter an order for reasonable counsel fees . . . (Emphasis added.) Simply stated, upon a pendente lite award, the statute authorizes, but does not require, the court to award pendente lite counsel fees, see Perkins v. Perkins, 85 N.C. App. 660, 667-68, 355 S.E.2d 848, 853, disc. review denied, 320 N.C. 633, 360 S.E.2d 92 (1987), and the court\u2019s decision is reversible only upon a showing of an abuse of discretion. Id. at 668, 355 S.E.2d at 853.", "type": "concurrence", "author": "Judge JOHN" } ], "attorneys": [ "Todd, Vanderbloemen, Respess and Brady, P.A., by William W. Respess, Jr., for plaintiff-appellant.", "Rudisill & Brackett, P.A., by J. Richardson Rudisill, Jr., and H. Kent Crowe, for defendant-appellee." ], "corrections": "", "head_matter": "LINDA LOU WYATT (HOLLIFIELD) v. JIMMY H. HOLLIFIELD, SR.\nNo. 9325DC593\n(Filed 19 April 1994)\n1. Divorce and Separation \u00a7 284 (NCI4th)\u2014 alimony pendente lite \u2014 recoupment properly ordered\nWhen a jury or trial judge finds that none of the grounds on which a spouse alleges entitlement to permanent alimony pursuant to N.C.G.S. \u00a7 50-16.2 exists, the trial court, in its discretion, may order recoupment of any alimony pendente lite paid by the supporting spouse, and the trial court in this case did not abuse its discretion in requiring such recoupment.\nAm Jur 2d, Divorce and Separation \u00a7 710.\n2. Divorce and Separation \u00a7 538 (NCI4th)\u2014 alimony pendente lite \u2014recoupment ordered \u2014award not reversed or vacated \u2014 award still basis for award of attorney fees\nThere was no merit to defendant\u2019s contention that, because the trial court ordered recoupment of alimony pendente lite pursuant to N.C.G.S. \u00a7 50-16.11, it followed that plaintiff was not entitled to counsel fees incurred in the prosecution of the alimony pendente lite claim pursuant to N.C.G.S. \u00a7 50-16.4, since the alimony pendente lite award was not appealed and reversed, nor vacated, remained a valid order, and could support an award of counsel fees.\nAm Jur 2d, Divorce and Separation \u00a7 616.\nRight to attorneys\u2019 fees in proceeding, after absolute divorce, for modification of child custody or support order. 57 ALR4th 710.\nJudge JOHN concurring.\nAppeal by plaintiff from judgment filed 5 January 1993 in Caldwell County District Court by Judge Jonathan L. Jones. Heard in the Court of Appeals 4 March 1994.\nTodd, Vanderbloemen, Respess and Brady, P.A., by William W. Respess, Jr., for plaintiff-appellant.\nRudisill & Brackett, P.A., by J. Richardson Rudisill, Jr., and H. Kent Crowe, for defendant-appellee." }, "file_name": "0352-01", "first_page_order": 380, "last_page_order": 388 }