Wyatt v. Hollifield

Judge JOHN

concurring.

I concur in the majority opinion affirming the trial court’s 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 “consideration” because I am persuaded the trial court’s 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.

I 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’s “consideration ... on this record” 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. § 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. *360 G.S. § 50-16.4 provides: “[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’s decision is reversible only upon a showing of an abuse of discretion. Id. at 668, 355 S.E.2d at 853 .