{ "id": 8411596, "name": "GAIL PATRICIA KELLY, Plaintiff v. DANIEL JOSEPH KELLY, Defendant", "name_abbreviation": "Kelly v. Kelly", "decision_date": "2004-12-21", "docket_number": "No. COA04-441", "first_page": "437", "last_page": "449", "citations": [ { "type": "official", "cite": "167 N.C. App. 437" } ], "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": "193 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1972, "pin_cites": [ { "page": "82" }, { "page": "83", "parenthetical": "citation omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "282 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565263 ], "year": 1972, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838", "parenthetical": "noting our Courts do not permit a new theory, not previously argued, because \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal].\"" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10", "parenthetical": "noting our Courts do not permit a new theory, not previously argued, because \"the law does not permit parties to swap horses between courts in order to get a better mount [on appeal].\"" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "210 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565054 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0235-01" ] }, { "cite": "493 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "463", "parenthetical": "citing Tennessee-Carolina Transp., Inc. v. Stride Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)" }, { "page": "463" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651936 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "41", "parenthetical": "citing Tennessee-Carolina Transp., Inc. v. Stride Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0037-01" ] }, { "cite": "295 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574939, 8574900, 8574909, 8574924 ], "year": 1982, "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": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525435 ], "year": 1982, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0524-01" ] }, { "cite": "546 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "630", "parenthetical": "citing Quick, 305 N.C. at 453, 290 S.E.2d at 658" }, { "page": "631" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434993 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "422", "parenthetical": "citing Quick, 305 N.C. at 453, 290 S.E.2d at 658" }, { "page": "422-23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0414-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "parenthetical": "emphasis supplied" }, { "page": "(a)", "parenthetical": "repealed 1995 N.C. Sess. Laws, c. 319, s. 1" } ], "opinion_index": 0 }, { "cite": "172 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "266" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549549 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "313" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0310-01" ] }, { "cite": "409 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "330 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509699 ], "year": 1991, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0143-01" ] }, { "cite": "442 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "497", "parenthetical": "citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)" } ], "opinion_index": 0 }, { "cite": "336 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539559 ], "year": 1994, "pin_cites": [ { "page": "291", "parenthetical": "citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0284-01" ] }, { "cite": "228 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "290 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564393 ], "year": 1976, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0669-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "484-85" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "453" }, { "page": "453" }, { "page": "453" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "523 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "731", "parenthetical": "citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)" }, { "page": "731" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239177 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "249-50", "parenthetical": "citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)" }, { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0247-01" ] }, { "cite": "567 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "weight": 5, "year": 2002, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 906, "char_count": 27911, "ocr_confidence": 0.744, "pagerank": { "raw": 1.8174297304815456e-07, "percentile": 0.7187324434745037 }, "sha256": "a3f9088c91b23b40b1917fafb465e2790c27fa4b8a325994a3bccca3ba005efa", "simhash": "1:c6eae8223a038c70", "word_count": 4451 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and GEER concur." ], "parties": [ "GAIL PATRICIA KELLY, Plaintiff v. DANIEL JOSEPH KELLY, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nGail Patricia Kelly (\u201cplaintiff\u2019) appeals from an order entered awarding her permanent alimony and denying her claim for attorney\u2019s fees. We affirm.\nI. Background\nPlaintiff and Daniel Joseph Kelly (\u201cdefendant\u201d) were married on 27 September 1974 and separated on or about 10 October 1993. The parties have three children bom of the marriage, all of whom are now majority age. During the marriage, both parties worked and took courses toward obtaining college degrees. Defendant received his undergraduate degree in 1977, and plaintiff last took courses toward her degree in 1989. During the last few years of the marriage, plaintiff\u2019s average gross annual income was in the mid-$30,000.00 range, while defendant\u2019s average gross annual income was approximately $100,000.00. During the marriage, both parties committed adultery.\nOn 14 February 1994, plaintiff filed a complaint seeking a divorce, child custody and support, alimony, equitable distribution, and attorney\u2019s fees. On 7 October 1994, the trial court awarded plaintiff alimony pendente lite. On 29 November 2000, the trial court entered an equitable distribution order awarding plaintiff approximately seventy-five percent of the marital estate. The following day, the trial court entered an order finding plaintiff to be a dependent spouse. The trial court denied plaintiff\u2019s request for alimony and attorney\u2019s fees on the basis of plaintiff\u2019s disproportionate distributive award in the equitable distribution order and defendant\u2019s payment of spousal support since 7 October 1994. Plaintiff appealed.\nIn an unpublished opinion filed 2 August 2002, this Court reversed the trial court\u2019s order filed 30 November 2000 denying plaintiff permanent alimony and attorney\u2019s fees. Kelly v. Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (2002) (unpublished opinion). We held the trial court erred by: (1) attributing to plaintiff an estate based on its value at the date of separation instead of the date \u201cbefore or after the commencement of an action seeking an award of permanent alimony;\u201d (2) failing to find the parties\u2019 reasonable expenses relevant in its decision to deny alimony; (3) finding defendant\u2019s expenses for vehicles and rent payments for the parties\u2019 daughters to be \u201creasonable expenses\u201d because they were \u201ca voluntary assumption of legal obligations;\u201d (4) finding plaintiff made no effort to complete her education or to advance in her career, or to change her employment; and (5) failing to make a finding regarding whether defendant\u2019s pay increase during the six weeks prior to the parties\u2019 separation was offset by his obligation to pay self-employment taxes. Id.\nOn remand, the trial court conducted a hearing on 27 January 2003. The trial court made additions to and changes in the findings from the 30 November 2000 order, some of which are now contested on appeal, and ordered defendant to: (1) pay plaintiff alimony commencing 28 November 2000 in the amount of $550.00 per month and terminating after four years or upon the parties\u2019 death or plaintiff\u2019s remarriage; and (2) pay plaintiff arrearage in alimony of $20,350.00 no later than 31 December 2003. The trial court denied plaintiff\u2019s request for attorney\u2019s fees. Plaintiff appeals.\nII. Issues\nThe issues on appeal are whether the trial court erred by: (1) finding the parties\u2019 net cash flow was $7,388.00 per month for the last few years of their marriage; (2) calculating defendant\u2019s net income and the marital portion of his income for the forty-day period between 1 September 1993 and 10 October 1993, the date of separation; (3) finding defendant\u2019s net income did not increase significantly during this period and that the parties\u2019 standard of living was not significantly increased; (4) finding plaintiff\u2019s current monthly expenses of $6,078.00 to be unreasonable and defendant\u2019s monthly expenses of $6,306.00 to be reasonable; (5) calculating plaintiff\u2019s reasonable monthly expenses by dividing by three the total amount of net income available to the entire household prior to the parties\u2019 separation; (6) awarding plaintiff $550.00 per month in alimony; and (7) denying plaintiff\u2019s request for attorney\u2019s fees.\nTTI. Alimony\nA. Standard of Review\nPlaintiff\u2019s first six assignments of error relate to the general issue of whether the trial court erred in its computation and award of alimony.\n\u201cDecisions regarding the amount of 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.\u201d Bookholt v. Bookholt, 136 N.C. App. 247, 249-50, 523 S.E.2d 729, 731 (1999) (citing Quick v. Quick, 305 N.C. 446, 453, 290 S.E.2d 653, 658 (1982)). Our Supreme Court has cautioned this Court to apply our review \u201cstrictly\u201d and has explained, \u201c[A] manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing the heavy burden of proof.\u201d Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 484-85, 290 S.E.2d 599, 604 (1982).\nIn determining the amount of alimony the trial judge must follow the requirements of the applicable statutes. Consideration must be given to the needs of the dependent spouse, but the estates and earnings of both spouses must be considered. \u201cIt is a question of fairness and justice to all parties.\u201d\nQuick, 305 N.C. at 453, 290 S.E.2d at 658 (quoting Beall v. Beall, 290 N.C. 669, 674, 228 S.E.2d 407, 410 (1976)). \u201cThe well-established rule is that findings of fact by the trial court supported by competent evidence are binding on the appellate courts even if the evidence would support a contrary finding.\u201d Scott v. Scott, 336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994) (citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)). We address each assignment of error in turn.\nB. Average Net Cash Flow\nPlaintiff contends the trial court erred in calculating the average net cash flow to be $7,388.00 per month for the last few years of the parties\u2019 marriage. We disagree.\nThis Court previously ruled on plaintiff\u2019s argument regarding this issue in our prior opinion and noted that because plaintiff failed to object to the evidence at trial, she could not sustain an appeal on the issue. Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (original opinion page 6, n. 2) (citing N.C.R. App. P. 10(b)(1)). The only issue for the trial court on remand was whether defendant\u2019s pay increase was offset by his self-employment taxes. In addressing that issue, the trial court determined that the self-employment taxes did not offset the pay increase and accordingly, increased the average net cash flow from $7,100.00 in the 30 November 2000 order to $7,388.00 in the 18 December 2003 order.\nWe reject plaintiffs argument below that the trial court erred in determining that the self-employment taxes did not offset defendant\u2019s pay. Her argument that the trial court erred in calculating the parties\u2019 average net cash flow is not properly before this Court. This assignment of error is dismissed.\nC. Net Income\nPlaintiff contends no evidence supports the trial court\u2019s calculation of defendant\u2019s net income for the period between 1 September 1993, when he was promoted to partner, and 10 October 1993, when the parties separated. We disagree.\nOn 1 September 1993, defendant became a partner with Arthur Anderson. His annual income was $145,000.00. In the order entered 30 November 2000, the trial court \u201cpurposefully omitted consideration of Defendant\u2019s pay increase because it noted Defendant also became responsible for paying his own self-employment taxes from that point forward.\u201d Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (original opinion page 7). On remand, the trial court found: (1) defendant\u2019s approximate net monthly income for 1993 prior to joining the partnership was $6,487.52; (2) defendant\u2019s net income for the period between 1 September 1993 and 10 October 1993 was $8,976.98 based on income taxes of $5,960.00 and a required Koegh payment of six percent; and (3) \u201cdefendant\u2019s net income does not appear to have increased significantly during this period and the parties\u2019 standard of living was not significantly increased.\u201d\n1. Income Taxes\nAt trial, defendant claimed that he incurred a debt of $5,960.00 in income taxes based upon the partnership income he earned from 1 September 1993 through 10 October 1993.\nOn 29 November 2000, Judge Fred M. Morelock entered a judgment and order for equitable distribution that allowed defendant a credit for \u201c$5,960.00\u201d that he paid in income taxes for \u201c9/1 to 10/10.\u201d Neither party appealed this equitable distribution judgment and order. On 30 November 2000, Judge Morelock also entered an order denying plaintiffs claim for alimony and attorney\u2019s fees. Plaintiff entered notice of appeal only \u201cfrom the final Order entered on November 30, 2000 . . . which denied permanent alimony and attorney\u2019s fees.\u201d\nThis Court reversed and remanded Judge Morelock\u2019s order for new findings based upon the record. On remand, Judge Monica M. Bousman conducted a hearing and entered further findings, including the finding that defendant paid $5,960.00 in income taxes for the period between 1 September 1993 and 10 October 1993. This figure is supported by the amount credited defendant in the equitable distribution judgment and order, which was entered by another district court judge and not appealed.\nWhen an order is not appealed, it becomes:\nthe law of the case, and other district judges were without authority to enter orders to the contrary. It is well established that no appeal lies from one superior court judge to another and that ordinarily one superior court judge may not modify, overrule or change the judgment of another superior court judge previously made in the same action.\nJohnson v. Johnson, 7 N.C. App. 310, 313, 172 S.E.2d 264, 266 (1970). The trial court did not err by relying on another judge\u2019s findings, which were binding, in determining the amount defendant paid in income taxes. This assignment of error is overruled.\n2. Keogh Contribution\nPlaintiff next argues that defendant failed to fulfill the required six-percent Keogh contribution. At trial, plaintiff presented an Arthur Anderson U.S. Partners\u2019 Profit Sharing Report she had received from defendant\u2019s employer showing that defendant had a year-to-date \u201ctotal\u201d \u201ccontributions\u201d of $42,457.33 to his \u201cprofit sharing (Keogh)\u201d account for the period of \u201c07-01-93 to -03-31-94.\u201d Plaintiff testified to the types of plans defendant had in his profit sharing plan and that defendant contributed approximately $45,500.00 to \u201cboth the Keogh and the 401(k)\u201d between 1 July 1993 and 30 June 1994.\nDefendant testified that he was required to make a six percent contribution to his Keogh upon becoming a partner at Arthur Anderson. During cross-examination, plaintiff\u2019s counsel asked, \u201cin 1993, you were earning $145,000 and you were required to put 6 percent of the $145,000 into a Keogh; is that what you are saying?\u201d Defendant replied, \u201cThat\u2019s basically the terms, although they \u2014 I don\u2019t know how they compute it. There was a time lag in that event, but that was [sic] the terms.\u201d In its equitable distribution order entered by Judge Morelock, the trial court credited defendant $45,379.00 for \u201cArthur Anderson \u2014 Keogh.\u201d\nCompetent evidence supports the trial court\u2019s finding, entered by Judge Bousman regarding defendant\u2019s contribution to the Keogh. See Johnson, 7 N.C. App. at 313, 172 S.E.2d at 266. This assignment of error is overruled.\nD. Standard of Living Increase\nPlaintiff contends the trial court erred by finding that defendant\u2019s net income did not increase significantly during the period from 1 September 1993 to 10 October 1993 and that the parties\u2019 standard of living did not increase. We disagree.\nIn the case at bar, the former N.C. Gen. Stat. \u00a7 50-16.5 controls the determination of alimony, and the trial court was required to apply that statute. Walker v. Walker, 143 N.C. App. 414, 422, 546 S.E.2d 625, 630 (2001) (citing Quick, 305 N.C. at 453, 290 S.E.2d at 658).\nThat statute provides that \u201calimony shall be in such amount as the circumstances render necessary, having due regard to the (1) estates, (2) earnings, (3) earning capacity, (4) condition, (5) accustomed standard of living of the parties, and (6) other facts of the particular case\u201d ...[.] In other words, the statute requires a conclusion of law that \u201ccircumstances render necessary\u201d a designated amount of alimony. Our case law requires conclusions of law that the supporting spouse is able to pay the designated amount and that the amount is fair and just to all parties.\nWalker, 143 N.C. App. at 422-23, 546 S.E.2d at 631 (quoting Quick, 305 N.C. at 453, 290 S.E.2d at 658-59; N.C. Gen. Stat. \u00a7 50-16.5).\nThe trial court found defendant\u2019s approximate net monthly income prior to becoming a partner in September 1993 was $6,487.52. Plaintiff has not assigned error to this portion of the trial court\u2019s findings. The trial court also found that defendant\u2019s net income for September 1993 was $6,732.73 and the marital portion of October\u2019s earnings that year was $2,244.25. In her brief, plaintiff references her prior argument regarding the trial court\u2019s error in calculating defendant\u2019s net income, which we have already overruled. Accordingly, this portion of plaintiffs argument is also without merit.\nPlaintiff also asserts the trial court erred in finding that the parties\u2019 standard of living did not increase. She argues that both she and defendant \u201cwere working hard together in order for both of them to share in the fruits of Defendant\u2019s increased income\u201d and she \u201cshould be allowed to share in the higher standard of living which was possible with Defendant\u2019s higher income . . . .\u201d This argument is without merit.\nThe statute clearly states that the trial court is to consider the parties\u2019 \u201caccustomed standard of living,\u201d not the potential standard of living. N.C. Gen. Stat. \u00a7 50-16.5 (emphasis supplied) (repealed 1995 N.C. Sess. Laws, c. 319, s. 1). Plaintiff has failed to show \u201ca manifest abuse of [the trial court\u2019s] discretion\u201d in concluding that the parties\u2019 standard of living did not substantially increase as' a result of defendant\u2019s net increase in salary of approximately $240.00 a month for the forty days prior to separation. Bookholt, 136 N.C. App. at 250, 523 S.E.2d at 731. This assignment of error is overruled.\nE. Reasonable Expenses\nPlaintiff argues the trial court erred in determining the reasonableness of the parties\u2019 monthly expenses and in calculating her monthly expenses. We disagree.\n\u201c \u2018The determination of what constitutes the reasonable needs and expenses of a party in an alimony action is within the discretion of the trial judge, and he is not required to accept at face value the assertion of living expenses offered by the litigants themselves.\u2019 \u201d Id. at 250, 523 S.E.2d at 731 (quoting Whedon v. Whedon, 58 N.C. App. 524, 529, 294 S.E.2d 29, 32, disc. rev. denied, 306 N.C. 752, 295 S.E.2d 764 (1982)). It is well-settled in North Carolina that \u201c[wlhere an appellate court decides questions and remands a case for further proceedings, its decisions on those questions become the law of the case, both in subsequent proceedings in the trial court and upon a later appeal, where the same facts and the same questions of law are involved.\u201d Sloan v. Miller Building Corp., 128 N.C. App. 37, 41, 493 S.E.2d 460, 463 (1997) (citing Tennessee-Carolina Transp., Inc. v. Stride Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)).\nIn her first appeal, plaintiff assigned error to the trial court\u2019s decision to set her reasonable monthly expenses at $2,366.00, one-third of the amount of the total family expenses while the family was still together. Plaintiff contended that her monthly expenses were $6,078.00, as set out in her financial affidavit. In this Court\u2019s previous opinion, we affirmed the trial court\u2019s decision stating, \u201cAs the total family expenses previously covered four other family members in addition to Plaintiff, including the private school tuition of the parties\u2019 children, we cannot say that the trial court abused its discretion in finding Plaintiff\u2019s reasonable expenses to be one third of this amount.\u201d Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (original opinion page 4).\nOn remand, the trial court determined that the total family expenses had increased slightly based on the increase in the average net cash flow. Accordingly, the trial court increased plaintiff\u2019s reasonable expenses to reflect that change. It did not disturb the methodology employed by the prior trial court on mandate from this Court\u2019s earlier decision. Judge Bousman was bound by our prior decision on this issue that the trial court had not abused its discretion in applying this method. See Sloan, 128 N.C. App. at 41, 493 S.E.2d at 463.\nPlaintiff also assigns error to the trial court\u2019s determination of the reasonableness of defendant\u2019s monthly expenses. In her first appeal, plaintiff challenged defendant\u2019s expenses, including things he was providing for his children who had reached the age of majority and were no longer eligible for child support. This Court found that the trial court had abused its discretion by including the expenses related to the children\u2019s vehicle and rent payments in defendant\u2019s monthly expenses. We reversed and remanded for \u201cnew findings on the record.\u201d Kelly, 151 N.C. App. 748, 567 S.E.2d 468 (original opinion page 5-6).\nOn remand, the trial court, following the mandate of this Court, eliminated the children\u2019s expenses and concluded that defendant\u2019s reasonable monthly expenses were $6,306.00. The record does not reflect that the trial court made further changes in the calculation of defendant\u2019s reasonable monthly expenses, other than to find the expenses he was paying for his adult children to be \u201cvoluntary.\u201d\nPlaintiff had the opportunity in her first appeal to challenge the reasonableness of defendant\u2019s expenses. She availed herself of this opportunity and objected only to the inclusion of the children\u2019s expenses. Plaintiff\u2019s argument that the trial court erred in calculating defendant\u2019s expenses is based upon a new theory that was not raised in her first appeal and is barred. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (noting our Courts do not permit a new theory, not previously argued, because \u201cthe law does not permit parties to swap horses between courts in order to get a better mount [on appeal].\u201d). This assignment of error is overruled.\nF. Alimony Award\nPlaintiff argues the trial court erred in awarding her $550.00 in alimony. Under the prior alimony statute, the trial court shall determine alimony \u201cin such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.\u201d N.C. Gen. Stat. \u00a7 50-16.5(a) (repealed 1995 N.C. Sess. Laws, c. 319, s. 1).\n. Plaintiff argues the trial court abused its discretion in leaving her without sufficient means to cover basic necessities while allowing defendant to maintain a substantially higher style of living.\u201d The trial court found plaintiffs reasonable monthly expenses to be $2,462.00 and her \u201ccurrent monthly cash flow from employment is approximately $2,000,\u201d thus leaving a net deficit of $462.00 per month. The trial court also found plaintiff\u2019s cash flow was supplemented, by gifts from her long-time boyfriend. Although defendant\u2019s monthly cash flow is higher than plaintiff, the trial court found that defendant has \u201cexcess income of $894.00 per month.\u201d\nWe have already held the trial court did not err by finding both parties\u2019 expenses to be reasonable. Further, the trial court awarded plaintiff seventy-five percent of the marital estate in its equitable distribution judgment and order. Plaintiff has failed to show the trial court abused its discretion in awarding her $550.00 in alimony, when her net deficit is only $462.00 and defendant\u2019s excess income is only $894.00. This assignment of error is overruled.\nIV. Attorney\u2019s Fees\nIn her final assignment of error, plaintiff contends the trial court erred by failing to order defendant to pay the attorney\u2019s fees she incurred as a result of litigation regarding alimony. We disagree.\nThe former N.C. Gen. Stat. \u00a7 50-16.4, which was modified by the legislature in 1995 after plaintiff filed this action, provided:\nCounsel fees in actions for alimony. \u2014 At any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.\n(emphasis supplied) (modified 1995 N.C. Sess. Laws, c. 319, s. 3). In explaining application of this statute in the trial courts, our Supreme Court has stated:\nThe clear and unambiguous language of the statutes under consideration provide as prerequisites for determination of an award of counsel fees the following: (1) the spouse is entitled to the relief demanded; (2) the spouse is a dependent spouse; and (3) the dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof.\nRickert v. Rickert, 282 N.C. 373, 378, 193 S.E.2d 79, 82 (1972). The decision regarding whether to award attorney\u2019s fees \u201clies solely within the discretion of the trial judge, and that such allowance is reviewable only upon a showing of an abuse of the judge\u2019s discretion.\u201d Id.\nA trial court\u2019s ruling to award subsistence pendente lite does not require the allowance of attorney\u2019s fees. Id. at 379, 193 S.E.2d at 83 (citation omitted). However, \u201cwhen subsistence pendente lite or counsel fees is allowed pursuant to the statutory requirements, the amount of the allowance is in the trial judge\u2019s discretion, and is reviewable only upon showing an abuse of his discretion.\u201d Id. (citations omitted).\nPlaintiff assigns error to the trial court\u2019s conclusion that:\nIn this case, the Court shall exercise its discretion and deny Plaintiff\u2019s request for counsel fees on the grounds that Plaintiff is entitled to permanent alimony[,] but that she has, nevertheless, received temporary support for nearly seven years[,] and further, that the Defendant does not have the present ability to pay even his own counsel fees.\nPlaintiff argues she \u201cis entitled to the relief demanded because she was awarded permanent alimony.\u201d This argument is without merit. The trial court is afforded wide latitude in determining whether to award such fees. Further, nothing in the statute requires the trial court to grant plaintiff\u2019s motion for attorney\u2019s fees. Id. We hold the trial court did not abuse its discretion in denying plaintiffs motion for attorney\u2019s fees. This assignment of error is overruled.\nV. Conclusion\nWe dismiss plaintiffs assignment of error regarding the parties\u2019 average net cash flow because she failed to preserve it for appellate review. Additionally, plaintiff\u2019s assignment of error regarding the reasonableness of the parties\u2019 expenses was addressed in her first appeal and is not properly before this Court.\nPlaintiff failed to show the trial court abused its discretion in: (1) calculating defendant\u2019s net income based on income tax payments of $5,906.00; (2) crediting defendant\u2019s net income for his required six-percent'Keogh contribution; (3) its findings regarding the parties\u2019 standard of living; (4) awarding plaintiff $550.00 in alimony; and (6) denying plaintiff\u2019s request for attorney\u2019s fees. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges TIMMONS-GOODSON and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Lynne M. Garnett, for plaintiff-appellant.", "Sokol & LeFante, P.A., by Lisa.LeFante, for defendant-appellee." ], "corrections": "", "head_matter": "GAIL PATRICIA KELLY, Plaintiff v. DANIEL JOSEPH KELLY, Defendant\nNo. COA04-441\n(Filed 21 December 2004)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nAlthough plaintiff wife contends the trial court erred in an alimony case by finding the parties\u2019 net cash flow was $7,388 per month for the last few years of their marriage, this assignment of error is dismissed because: (1) plaintiff failed to object to the evidence at trial; and (2) plaintiffs argument that the trial court erred by determining that self-employment taxes did not offset defendant\u2019s pay is rejected.\n2. Divorce\u2014 alimony \u2014 net income \u2014 marital portion of income\nThe trial court did not abuse its discretion in an alimony case by calculating defendant husband\u2019s net income and the marital portion of his income for the forty-day period between 1 September 1993 when defendant was promoted to partner, and 10 October 1993, the date of separation, because: (1) although defendant got a pay increase, he also became responsible for paying his own self-employment taxes from that period forward; (2) the trial court did not err by relying on another judge\u2019s findings, which were binding, in determining the amount defendant paid in income taxes; and (3) competent evidence supported the trial court\u2019s finding regarding defendant\u2019s required six-percent Keogh profit sharing contribution.\n3. Divorce\u2014 alimony \u2014 net income \u2014 standard of living\nThe trial court did not abuse its discretion in an alimony case by finding defendant husband\u2019s net income did not increase significantly during the forty-day period prior to the parties\u2019 separation and that the parties\u2019 standard of living was not significantly increased, because: (1) plaintiff\u2019s reference to her prior argument regarding the trial court\u2019s error in calculating defendant\u2019s net income has already been overruled; and (2) N.C.G.S. \u00a7 50-16.5 states the trial court is to consider the parties\u2019 accustomed standard of living and not the potential standard of living.\n4. Divorce\u2014 alimony \u2014 reasonableness of monthly expenses\nThe trial court did not err in an alimony case by finding plaintiff wife\u2019s current monthly expenses of $6,078 to be unreasonable and defendant husband\u2019s monthly expenses of $6,306 to be reasonable, because: (1) the trial court was bound by the Court of Appeals\u2019 prior decision on this issue that the prior trial court had not abused its discretion in finding that plaintiff\u2019s reasonable expenses were one-third of the amount since the total family expenses previously covered four other family members in addition to plaintiff; and (2) plaintiff had the opportunity in her first appeal to challenge the reasonableness of defendant\u2019s expenses, availed herself of this opportunity by objecting only to the inclusion of the children\u2019s expenses which were subsequently removed from the calculation, and now her new theory that was not raised in her first appeal is barred.\n5. Divorce\u2014 alimony \u2014 amount\nThe trial court did not err by awarding plaintiff wife $550 per month in alimony, because: (1) it has already been determined that the trial court did not err by finding both parties\u2019 expenses to be reasonable; (2) the trial court awarded plaintiff seventy-five percent of the marital estate in its equitable distribution order; and (3) plaintiff failed to show the trial court abused its discretion when her net deficit is only $462 and defendant\u2019s excess income is only $894.\n6. Costs\u2014 attorney fees \u2014 alimony\nThe trial court did not abuse its discretion by denying plaintiff wife\u2019s request for attorney fees incurred as a result of litigation regarding alimony, because: (I) a trial court\u2019s ruling to award subsistence pendente lite does not require the allowance of attorney fees; and (2) even though plaintiff was awarded permanent alimony, nothing under N.C.G.S. \u00a7 50-16.4 requires the trial court to grant plaintiffs motion for attorney fees.\nAppeal by plaintiff from order entered 18 December 2003 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 18 November 2004.\nLynne M. Garnett, for plaintiff-appellant.\nSokol & LeFante, P.A., by Lisa.LeFante, for defendant-appellee." }, "file_name": "0437-01", "first_page_order": 467, "last_page_order": 479 }