{
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    "judges": [
      "Judges BECTON and JOHNSON concur."
    ],
    "parties": [
      "PARKER WHEDON v. JEANNETTE C. WHEDON"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nIn his first argument, plaintiff contends that the trial court erred by amending the February 1981 alimony award under Whedon v. Whedon, supra. In the January 1983 order, the trial court concluded that the amount necessary to produce $1,259.00 per month net spendable income for defendant after payment of income taxes is $1,604.00 in 1982; $1,564.31 in 1983 and $1,549.58 in 1984 and thereafter, providing no changes are made in the tax laws. Plaintiff urges two grounds for his argument; first, that defendant did not present competent evidence of the respective finances and tax liabilities of the parties; and second, that the witness Brian Ives, who testified concerning the amount of alimony necessary to produce $1,259.00 per month net income after taxes, was not qualified as an expert and his testimony was based on incompetent evidence.\nPlaintiff correctly points out that, in determining the amount of alimony, the trial court must consider the \u201c. . . estates, earnings, earning capacity, condition, [and] accustomed standard of living of the parties . . .\u201d N.C. Gen. Stat. \u00a7 50-16.5 (1976). Plaintiff overlooks the fact, however, that the issues of defendant\u2019s right to alimony and the respective finances of the parties were addressed in Whedon v. Whedon, supra. That decision constitutes the law of the case and plaintiff may not seek to raise the same questions in this appeal. Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673 (1956). The sole issue left for consideration on remand in Whedon v. Whedon, supra, was the method by which the amount of defendant\u2019s tax liability was to be computed.\nWe hold that the witness Brian Ives was properly permitted to testify concerning his computation of defendant\u2019s prospective tax liability on her alimony receipts. Ives was never formally accepted by the trial court as an expert witness, but was nevertheless permitted to testify as an expert, after giving testimony concerning his qualifications. \u201cThe absence of a record finding in favor of . . . [the witness\u2019] qualification is no ground for challenging the ruling implicitly made by the judge in allowing him to testify. In such a case, at least if the record indicates that such a finding could have been made, it will be assumed that the judge found him to be an expert. . . .\u201d Lawrence v. Insurance Co., 32 N.C. App. 414, 232 S.E. 2d 462 (1977), citing 1 Stansbury\u2019s North Carolina Evidence, Brandis Revision \u00a7 133 (1973). By permitting Ives to testify, the court implicitly found that Ives was qualified as an expert witness. Ives\u2019 qualifications clearly invoke the rule that a person may testify as an expert witness when his own knowledge is greater than that of the trier of fact, and is necessary to give a proper understanding of the facts. Glenn v. Smith, 264 N.C. 706, 142 S.E. 2d 596 (1965); Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E. 2d 373 (1971). An expert witness may testify based either on his personal knowledge of certain facts, or based upon facts made known to him through hypothetical questions, or by a combination of these methods. State v. David, 222 N.C. 242, 22 S.E. 2d 633 (1942). Facts within the personal knowledge of an expert witness include those facts gathered from reports and other sources. The witness need not have observed each event or circumstance, see Board of Transportation v. Warehouse Corp., 300 N.C. 700, 268 S.E. 2d 180 (1980) (dicta) (court permitted expert witness to testify concerning average rainfall and flooding in area presumably gathered from records and reports); State v. DeGregory, 285 N.C. 122, 203 S.E. 2d 794 (1974) (medical expert permitted to testify from observations, records and tests conducted by others).\nIn the case before us, Ives testified that he relied upon tax tables contained in the Internal Revenue Service Code, plus information concerning defendant\u2019s finances supplied to him by defendant\u2019s attorneys to calculate defendant\u2019s potential tax liability. We find no error in the trial court\u2019s rulings as to the competency of Ives\u2019 testimony, and therefore, this assignment of error is overruled.\nIn his second argument, plaintiff contends that the trial court erred by dismissing defendant\u2019s request for appellate attorneys\u2019 fees without prejudice. Defendant sought attorneys\u2019 fees for preparation of the contempt hearing and for the preparation of the appeal in Whedon v. Whedon, supra. The trial court denied both of defendant\u2019s requests, apparently because defendant had failed to produce sufficient evidence to support her claim. The trial court noted that defendant\u2019s motion for appellate attorneys\u2019 fees was \u201cdenied and dismissed without prejudice.\u201d We believe this was error. The trial court\u2019s use of \u201cdismissed without prejudice\u201d may have been in reliance on N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) of the Rules of Civil Procedure, which governs motions for involuntary dismissals and provides that, in certain cases, the trial court may allow the moving party\u2019s motion for an involuntary dismissal without prejudice to the nonmoving party. The nonmovant may then correct the error which caused the dismissal and bring another lawsuit against the movant.\nWe recognize that the language of Rule 41(b) is somewhat vague and at first glance may appear to permit an involuntary dismissal without prejudice of a motion for counsel fees under N.C. Gen. Stat. \u00a7 50-16.4 when the movant has failed to present sufficient evidence to support such motion. We do not believe, however, that this is a proper application of the rule.\nNeither party has cited, nor has our own research revealed, North Carolina decisions supporting the notion that a party who has failed to produce sufficient substantive evidence to support a G.S. \u00a7 50-16.4 motion, under Rule 41(b), may be allowed to \u201cmend his licks\u201d in a second hearing. But see, 5 J. Moore, Moore\u2019s Federal Practice, \u00b6 41.14(1) (1982).\nApplying the foregoing rule to the case before us, we hold that it was the trial court\u2019s duty, when presented with plaintiffs motion for an involuntary dismissal of defendant\u2019s requests for attorneys\u2019 fees, to examine the quality of defendant\u2019s evidence and make a ruling on the merits. This the trial court did, denying defendant\u2019s motion. The additional language in the order indicating that the motion for appellate attorneys\u2019 fees was dismissed without prejudice was without legal effect and must be regarded as mere surplusage.\nWe turn now to defendant\u2019s cross-assignments of error. Defendant attempts to argue (1) that the trial court erred in dismissing her request for attorneys\u2019 fees, (2) that the trial court erred in failing to find that plaintiff was in wilful contempt for nonpayment of alimony and attorneys\u2019 fees, and (3) that the trial court\u2019s order concerning her 1982 alimony award was ambiguous and should be clarified.\nThe issue of what matters may be raised by cross-assignment of error by an appellee is governed by Rule 10(d) of the Rules of Appellate Procedure, which provides in pertinent part:\nWithout taking an appeal an appellee may set out exceptions to and cross-assign as error any action or omission of the trial court to which an exception was duly taken or as to which an exception was deemed by rule or law to have been taken, and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken. . . .\nIn her cross-assignments of error, however, defendant does not contend that the trial court\u2019s order deprived her of additional basis supporting the court\u2019s order, but rather that certain portions of the order were erroneous. The proper means by which to raise such an attack is an independent appeal. Defendant\u2019s cross-assignments of error are therefore overruled.\nAs modified, the judgment of the trial court is affirmed.\nAffirmed.\nJudges BECTON and JOHNSON concur.\n. The record of evidence clearly shows that defendant failed to produce sufficient evidence to support her motion for counsel fees.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Kennedy, Covington, Lobdell & Hickman, by Rickard D. Stephens and Raymond E. Owens, for plaintiff.",
      "Cannon and Basinger, P.A., by A. Marshall Basinger, II, for defendant."
    ],
    "corrections": "",
    "head_matter": "PARKER WHEDON v. JEANNETTE C. WHEDON\nNo. 8326DC675\n(Filed 1 May 1984)\n1. Divorce and Alimony \u00a7 17.3; Evidence \u00a7 48.3\u2014 witness never formally accepted as expert \u2014 testimony concerning amount of alimony \u2014 competency of testimony\nThere was no error in the trial court allowing a witness to testify concerning his computation of defendant\u2019s prospective tax liability on her alimony receipts even though the witness was never formally accepted by the trial court as an expert witness. The witness testified that he relied upon tax tables contained in the Internal Revenue Service Code, plus information concerning defendant\u2019s finances supplied to him by defendant\u2019s attorney to calculate defendant\u2019s potential tax liability, and by permitting the witness to testify, the court implicitly found that the witness was qualified as an expert witness.\n2. Divorce and Alimony \u00a7 20.3; Rules of Civil Procedure \u00a7 41.2\u2014 dismissing request for appellate attorneys\u2019 fees without prejudice \u2014error\nIt was the trial court\u2019s duty, when presented with plaintiffs motion for an involuntary dismissal of defendant\u2019s request for attorneys\u2019 fees, to examine the quality of defendant\u2019s evidence and make a ruling on the merits. When the trial court did this, and denied defendant\u2019s motion, the additional language in the order indicating that the motion for appellate attorneys\u2019 fees was dismissed without prejudice must be disregarded as mere surplusage, G.S. 1A-1, Rule 41(b), since a party who has failed to produce sufficient substantive evidence to support a G.S. \u00a7 50-16.4 motion may not be allowed to \u201cmend his licks\u201d in a second hearing.\n3. Appeal and Error 8 24.1\u2014 failure to preserve issue by cross-appeal \u2014 cross-assignment of error ineffectual\nDefendant\u2019s attempt to argue (1) that the trial court erred in dismissing her request for attorneys\u2019 fees, (2) that the trial court erred in failing to find that plaintiff was in willful contempt for nonpayment of alimony and attorneys\u2019 fees, and (3) that the trial court\u2019s order concerning her 1982 alimony award was ambiguous and should be clarified, was ineffectual since the proper method to have preserved these issues for review would have been to cross-appeal rather than to attempt to raise the issues by cross-assignments of error. App. R. 10(b).\nAppeal by plaintiff from Todd, Judge. Order entered 25 January 1983 in MECKLENBURG County District Court. Heard in the Court of Appeals 11 April 1984.\nThis appeal marks the second time plaintiff and defendant have been before this court seeking resolution of various domestic difficulties. The current appeal therefore stems from a somewhat complex set of facts which may be briefly set out as follows. Plaintiff filed for divorce on 20 November 1980 based on a one-year separation from defendant. In his complaint, plaintiff admitted that defendant was entitled to reasonable alimony. After a hearing on 17 February 1981 on the issue of permanent alimony, the trial court entered judgment (1) sequestering the marital home and certain personal property for defendant and requiring plaintiff to pay the mortgage, ad valorem property taxes and hazard insurance thereon; (2) granting possession of an automobile to defendant and ordering plaintiff to maintain insurance thereon; (3) granting $1,259.00 per month in permanent alimony until defendant vacated the marital home, when the payments would increase to $1,467.00 per month and (4) ordering plaintiff to pay to defendant a sum calculated to equal defendant\u2019s income tax obligations on the alimony payments. From the order of the trial court, plaintiff appealed.\nThis court, in Whedon v. Whedon, 58 N.C. App. 524, 294 S.E. 2d 29, disc. rev. denied, 306 N.C. 752, 295 S.E. 2d 764 (1982), affirmed the trial court\u2019s decision, with the exception of the award of payments for defendant\u2019s income tax obligations. While recognizing that income tax consequences \u201care among factors properly considered in awarding alimony . . .\u201d we held that the trial court\u2019s award was improperly calculated. \u201c[T]he tax payments by plaintiff ordered here constitute further taxable income to defendant , . . [and] the order results in an interminable cycle of further payments by plaintiff to defendant. . . . The uncertainty thus created renders impossible determination of the precise amount of alimony awarded, and the reviewing court thus cannot determine the reasonableness or fairness of the award.\u201d (Citations omitted.) Id.\nThereafter, defendant sought an order holding plaintiff in contempt for failure to pay alimony, an amendment of the alimony award in light of Whedon v. Whedon, supra, and counsel fees. Following a hearing on 22 November 1982, an order was entered on 25 January 1983 dismissing defendant\u2019s motions to hold plaintiff in contempt and for attorneys\u2019 fees, and granting defendant\u2019s motion to amend the alimony award. From entry of the trial court\u2019s order, plaintiff appeals and defendant makes cross-assignments of error.\nKennedy, Covington, Lobdell & Hickman, by Rickard D. Stephens and Raymond E. Owens, for plaintiff.\nCannon and Basinger, P.A., by A. Marshall Basinger, II, for defendant."
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  "file_name": "0191-01",
  "first_page_order": 223,
  "last_page_order": 228
}
