IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-703

No. COA21-68

Filed 21 December 2021

Johnston County, No. 17 CVD 3894

SALLYCETA WADSWORTH, Plaintiff,

v.

KEITH WADSWORTH, Defendant.

Appeal by Defendant from order entered on 6 July 2020 by Judge Jim Love, 

Jr., in Johnston County District Court. Heard in the Court of Appeals 5 October 2021.

Mary McCullers Reece for the Plaintiff-Appellee.

Tiffanie C. Meyers for the Defendant-Appellant.

JACKSON, Judge.

¶ 1 Keith Wadsworth (“Defendant”) appeals from the trial court’s order on 

equitable distribution, alimony, and child support. We affirm in part, vacate in part, 

and remand the case to the trial court for entry of an award of attorney’s fees that 

does not include fees for equitable distribution.

I. Background

¶ 2 The parties met in Bridgeport, Connecticut, and were married on 28 July 2001. 

Defendant had one child from a prior relationship at the time. Sallyceta Wadsworth 

(“Plaintiff”) was aware of Defendant’s eldest child before the parties were married. 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

¶ 3 In 2004, after the birth of their first child, the parties moved to North Carolina. 

Defendant accepted a position as a contract negotiator at Aetna Healthcare and 

Plaintiff worked part-time as a self-employed hairstylist while raising their child. In 

2009, a second child was born to the marriage.

¶ 4 Sometime in 2009, a deputy sheriff served Defendant at the marital home with 

a lawsuit for child support. Defendant told Plaintiff that the lawsuit was related to 

his oldest child, and she believed him. 

¶ 5 In 2011, Plaintiff became pregnant again. Not long afterward, Plaintiff found 

a VHS tape in the marital home that contained a recording of Defendant engaging in 

sexual intercourse with another woman. The recording bore a date during the parties’ 

marriage. Plaintiff confronted Defendant about the tape, and he did not deny he was 

in it.

¶ 6 Plaintiff then found the court papers Defendant had been served with in 2009 

and learned that the lawsuit was not related to Defendant’s eldest child, but instead

was related to child support for two children Defendant had with another woman 

during the parties’ marriage. 

¶ 7 Plaintiff gave birth to the third child of the marriage in November 2011. At 

the time, Defendant was traveling frequently. He told Plaintiff that the trips were 

work-related, but bank and credit-card statements showed that the trips included 

destinations such as Daytona Beach, San Juan, Myrtle Beach, and the Mohegan Sun, 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

a casino in Connecticut.

¶ 8 Defendant moved out of the marital residence on 14 April 2013 but continued 

paying for the mortgage and utilities and contributed towards the cost of groceries, 

clothing, and shoes for some time. These contributions decreased over time.

¶ 9 Defendant had a third child with another woman while still married to 

Plaintiff in August 2017.

¶ 10 Plaintiff initiated this action on 13 December 2017 in Johnston County District

Court. The matter came on for trial before the Honorable Jim Love, Jr., on 27 June 

2019. Judge Love presided over a three-day bench trial. The court entered an order 

on 6 July 2020 ordering Defendant to pay Plaintiff past-due and prospective child 

support, alimony, and awarding Plaintiff attorney’s fees. The court ordered 

Defendant to maintain life insurance to secure his alimony and child support 

obligations.

¶ 11 Defendant entered timely written notice of appeal from the trial court’s order 

on 4 August 2020.

II. Analysis

¶ 12 Defendant makes essentially five arguments on appeal. We address each in 

turn.

A. Standard of Review

¶ 13 “It is well established that child support orders entered by a trial court are 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

accorded substantial deference by appellate courts[.]” Sergeef v. Sergeef, 250 N.C.

App. 404, 406, 792 S.E.2d 192, 193 (2016) (internal marks and citation omitted). This 

deference “is based upon the trial courts’ opportunity to see the parties; to hear the 

witnesses; and to detect tenors, tones, and flavors that are lost in the bare printed 

record read months later by appellate judges[.]” Shipman v. Shipman, 357 N.C. 471, 

474, 586 S.E.2d 250, 253 (2003) (internal marks and citation omitted). Our review is 

thus limited to “whether there is sufficient competent evidence to support the findings 

of fact, and whether, based on these findings, the Court properly computed the child 

support obligations.” Miller v. Miller, 153 N.C. App. 40, 47, 568 S.E.2d 914, 918-19 

(2002) (citation omitted). “Accordingly, should we conclude that there is substantial

evidence in the record to support the trial court’s findings of fact, such findings are 

conclusive on appeal, even if record evidence might sustain findings to the contrary.”

Shipman, 357 N.C. at 475, 586 S.E.2d at 253-54 (internal marks and citation 

omitted).

B. Challenged Factual Findings

¶ 14 Defendant’s first three arguments on appeal challenge the trial court’s findings 

of fact. Defendant argues that the trial court erred in calculating his child support 

obligation based on work-related childcare of $600 per month; that the trial court 

erred in calculating extraordinary expenses based on insufficient evidence; and that 

the trial court erred in calculating his child support arrears based on insufficient 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

evidence. We disagree with all three contentions.

1. Finding of Fact 42

¶ 15 Defendant challenges the evidentiary support for the trial court’s finding that 

the reasonable work-related childcare costs of the parties were $600 per month. We 

hold that this finding was supported by competent evidence.

¶ 16 The trial court found as follows in Finding of Fact 42:

42. That in order for Plaintiff to work, the minor 

children Maya and Mason needed work-related childcare 

on days they are not in school. During 2018, the Plaintiff 

had to make an election to either work and pay childcare 

or not work. That she could only afford childcare which 

cost $150.00 per week. That Plaintiff feels that in the 

future she would need to pay childcare for eighteen weeks. 

That the Plaintiff’s cost of daycare would be $600.00 per 

month.

¶ 17 The finding above was based on Plaintiff’s testimony and her financial 

affidavit, which included the following breakdown of her average work-related 

childcare expenses for her younger two children for an estimated ninety days per 

year:

90 days of childcare/five workdays per week=18 weeks,

18 weeks x two children x $200 per week=$7,200

$7,200/12 months=$600/month

¶ 18 Plaintiff testified as follows on direct examination:

[PLAINTIFF’S COUNSEL]: So looking at [your financial 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

affidavit], have you tried to estimate the number of days 

you would need each month to provide that daycare or 

work-related childcare so you could work those days? 

[PLAINTIFF]: Yes.

[PLAINTIFF’S COUNSEL]: Have you used a school 

calendar to try to determine the number of days that they 

are out of school, if it’s during the school year? 

[PLAINTIFF]: Yes. This is it. It includes teacher 

workday, holidays, summer breaks. Holidays . . . [,] [a]

total of 90 days for the year for the school year, calendar 

year, that they are out of school. 

[PLAINTIFF’S COUNSEL]: And so, if we looked at that in 

terms of weeks, that would be about 18 weeks? 

[PLAINTIFF]: Correct.

[PLAINTIFF’S COUNSEL]: And then did you multiply 

that times two children times $200 a week, and then 

prorate that per month to be about $600 per month? 

[PLAINTIFF]: Yes.

[PLAINTIFF’S COUNSEL]: And is that the number that 

you used in your financial affidavit on page three, rather 

than the $200—or $150 that you state that you’re currently 

able to afford.

[PLAINTIFF]: Yes.

We hold that this testimony, along with Plaintiff’s financial affidavit, was competent 

evidence to support the trial court’s finding that the reasonable work-related 

childcare costs of the parties were $600 per month.

¶ 19 Defendant asserts that the finding of $600 per month is erroneous because it 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

is based on a $200 per week rate Plaintiff paid for childcare during the summer when 

the children were not in school and not on daily rates for childcare during the school 

year, and that determining prospective childcare costs based on a weekly rate rather 

than a daily rate will result in overpayment for childcare. Defendant points to 

testimony by Plaintiff that she paid for childcare by the day some of the time when 

she could not afford to pay for an entire week to support the idea that basing 

prospective childcare costs on a daily rather than weekly rate would result in lower 

costs overall. Plaintiff’s testimony does not support this idea, however. Plaintiff 

testified that she paid for childcare at a daily rate when she did not have the funds 

to pay for a weekly rate; her testimony does not suggest that the daily price she paid 

was less expensive on a weekly basis than paying for a full week: instead, she 

testified that she paid by the day when she could not afford to pay by the week. 

Accordingly, we reject the argument that determining the childcare costs based on a 

weekly rate rather than a daily rate was erroneous.

2. Findings of Fact 39, 40, and 41

¶ 20 Defendant also challenges the trial court’s finding that the children’s 

extraordinary expenses were $953.41 per month. Rather than challenge the 

sufficiency of the evidence to support the costs included in the monthly average of 

these expenses, Defendant contends that some of the costs used to calculate the 

average should not have been included because they were for activities that had taken 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

place in the past and there was no evidence that these activities were ongoing. We 

hold that the trial court’s findings related to the children’s extraordinary expenses

were supported by competent evidence and that the court did not abuse its discretion 

by calculating an average that included costs that there was no evidence would be 

recurring.

¶ 21 North Carolina General Statute § 50-13.4(c) provides that child support 

shall be in such amount as to meet the reasonable needs of 

the child for health, education, and maintenance, having 

due regard to the estates, earnings, conditions, accustomed 

standard of living of the child and the parties, the child care 

and homemaker contributions of each party, and other 

facts of the particular case. 

N.C. Gen. Stat. § 50-13.4(c) (2019). “The calculation of child support is governed by 

North Carolina Child Support Guidelines established by the Conference of Chief 

District Court Judges.” Craven Cnty. ex rel. Wooten v. Hageb, 2021-NCCOA-231 ¶ 12 

(2021) (citation omitted). “Child support set in accordance with the Guidelines is 

conclusively presumed to be in such amount as to meet the reasonable needs of the 

child and commensurate with the relative abilities of each parent to pay support.” 

Beamer v. Beamer, 169 N.C. App. 594, 596, 610 S.E.2d 220, 223-24 (2005) (internal 

marks and citation omitted).

¶ 22 Regarding “extraordinary expenses,” the Child Support Guidelines provide

that
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

[o]ther extraordinary child-related expenses (including (1) 

expenses related to special or private elementary or 

secondary schools to meet a child’s particular education 

needs, and (2) expenses for transporting the child between 

the parent’s homes) may be added to the basic child support 

obligation and ordered paid by the parents in proportion to 

their respective incomes if the court determines the 

expenses are reasonable, necessary, and in the child’s best 

interest.

N.C. Child Support Guidelines (2019). “Determination of what constitutes an 

extraordinary expense is within the discretion of the trial court[.]” Biggs v. Greer, 

136 N.C. App. 294, 298, 524 S.E.2d 577, 581 (2000) (internal marks and citation 

omitted). A court may adjust the basic child support obligation for extraordinary 

expenses, but such an adjustment is discretionary and does not qualify as a deviation 

from the Guidelines. Id., 524 S.E.2d at 581-82. Thus, “[e]ven though the guidelines 

note two specific extraordinary expenses, school and travel, . . . [this] list . . . is not 

exhaustive[.]” Balawejder v. Balawejder, 216 N.C. App. 301, 317, 721 S.E.2d 679, 688 

(2011) (internal marks and citation omitted).

¶ 23 The trial court found in relevant part as follows:

39. That the Plaintiff’s and Defendant’s three minor 

children are involved in numerous extracurricular 

activities which require expenses. Kailey is involved in 

travel soccer, piano, and pageants. Maya is involved in 

gymnastics, school clubs, and theater camp. Mason is 

involved in basketball and theater camp.

40. That the minor child Maya is struggling in school, 

and the Plaintiff hired a tutor to help Maya with her 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

studies.

41. That the approximate average of costs for the minor 

children’s extracurricular activities and Maya’s tutoring is 

$953.41 per month.

¶ 24 Defendant specifically objects to inclusion of costs for driving school, theater 

camp, and pageants to calculate the average costs of the children’s extraordinary 

expenses. The trial court credited in full Plaintiff’s financial affidavit in arriving at 

the $953.41 per month figure, which included a $65 cost for driving school, a $704 

cost for pageants, and a $152.50 per-child cost for theater camp for two of the three 

children. While there was no evidence that the cost of the objected-to expenses would 

be recurring, neither was there evidence that these costs would not be recurring, 

setting aside the attorney argument in Defendant’s appellate brief. We therefore hold 

that including these costs was well within the trial court’s discretion in determining 

the children’s average extraordinary expenses going forward.

3. Findings of Fact 51, 52, 53, 54, and 55

¶ 25 Defendant also challenges the trial court’s findings related to his child support 

arrears for the 2018-2020 timeframe—the period when this action was pending. 

Specifically, Defendant argues that the court neglected to account for evidence that 

some of the children’s extraordinary expenses had been paid by him directly during 

this two-year period and that some of the expenses did not exist during the entire 

period. We hold that the trial court was not required to give Defendant a credit for 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

his children’s expenses he paid after Plaintiff commenced this action but before the 

court entered the order on appeal, and that the court calculated his arrears correctly.

¶ 26 As noted previously, “[t]he North Carolina Child Support Guidelines allow the 

court to add to the parties’ basic child support obligation based on certain 

extraordinary expenses[.]” Balawejder, 216 N.C. App. at 316, 721 S.E.2d at 688. 

“[A]bsent a party’s request for deviation, the trial court is not required to set forth 

findings of fact related to the child’s needs and the noncustodial parent’s ability to 

pay extraordinary expenses.” Biggs, 136 N.C. App. at 298, 524 S.E.2d at 582. “Thus, 

the trial court has the discretion to determine what expenses constitute extraordinary 

expenses, the amount of these expenses, and . . . how the expenses are to be 

apportioned between the parties.” Mackins v. Mackins, 114 N.C. App. 538, 549, 442 

S.E.2d 352, 359 (1994).

¶ 27 The trial court was not required to make findings of fact regarding Defendant’s 

contribution to the children’s extraordinary expenses during the time the case was 

pending or provide Defendant with any credit or offset for these contributions in 

calculating his child support arrears. Instead, the court needed only to determine the 

parties’ adjusted gross incomes, and the cost of current work-related childcare, health 

insurance premiums, and extraordinary expenses. The trial court made these 

findings and used the results in the appropriate worksheet.

C. Securing Child Support and Alimony Obligations with Life Insurance
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

¶ 28 The trial court found in relevant part as follows in support of its order that 

Defendant maintain a life insurance policy to secure his child support arrears and 

alimony obligation:

44. That the Plaintiff is a dependent spouse who is 

actually substantially dependent upon the Defendant for 

her maintenance and support.

45. That the Defendant is a supporting spouse upon 

whom the Plaintiff is actually substantially dependent for 

maintenance and support.

. . .

54. That the Defendant’s total child support arrears as 

of June 30, 2020 is . . . $114,730.22.

. . .

56. The Defendant shall pay all amounts owed for July 

1, 2020 ($4,105.35 in child support) on or before July 5, 

2020. Defendant’s child support arrearage for February 1, 

2020 through June 30, 2020 is being repaid from 

Defendant’s 401(k). Defendant’s alimony arrears for 

February 1, 2020 through July 31, 2020 shall be repaid on 

or before July 5, 2020 . . . . Effective August 1, 2020, the 

Defendant shall pay Plaintiff child support of $4,105.35 

and alimony of $1,900.00 each month on or by the first day 

of each month.

57. That Defendant shall secure his child support 

arrears and alimony by maintaining life insurance on his 

life with a death benefit of $550,000.00, naming Plaintiff 

as beneficiary.

¶ 29 Defendant argues that no North Carolina statute authorizes a trial court to 

order a supporting spouse to maintain a life insurance policy to secure a child support 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

or alimony obligation. Plaintiff argues that N.C. Gen. Stat. § 50-16.7(b) authorizes 

such an order. Section 50-16.7(b) provides in relevant part that a court ordering the 

payment of alimony may “require the supporting spouse to secure the payment of 

alimony . . . by means of a bond, mortgage, or deed of trust, or any other means 

ordinarily used to secure an obligation to pay money or transfer property[.]” N.C. 

Gen. Stat. § 50-16.7(b) (2019). We hold that the life insurance the trial court ordered 

Defendant to maintain did not qualify as “security” within the meaning of § 50-

16.7(b), and therefore do not reach the issue of whether life insurance can qualify as 

a “means ordinarily used to secure an obligation to pay money” under § 50-16.7(b).

¶ 30 An award of alimony is only authorized “upon a finding that one spouse is a 

dependent spouse, that the other spouse is a supporting spouse, and that an award 

of alimony is equitable after considering all relevant factors[.]” N.C. Gen. Stat. § 50-

16.3A(a) (2019). N.C. Gen. Stat. § 50-16.1A(2) defines a “dependent spouse” as “a 

spouse, whether husband or wife, who is actually substantially dependent upon the 

other spouse for his or her maintenance and support or is substantially in need of 

maintenance and support from the other spouse.” Id. § 50-16.1A(2). Subsection (5) 

of § 50-16.1A goes on to define “supporting spouse” as “a spouse, whether husband or 

wife, upon whom the other spouse is actually substantially dependent for 

maintenance and support or from whom such spouse is substantially in need of 

maintenance and support.” Id. § 50-16.1A(5).
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

¶ 31 However, “[i]f a dependent spouse who is receiving postseparation support or 

alimony from a supporting spouse under a judgment or order of a court of this State 

remarries or engages in cohabitation, the postseparation support or alimony shall 

terminate.” Id. § 50-16.9(b). Likewise, “[p]ostseparation support or alimony shall 

terminate upon the death of either the supporting or the dependent spouse.” Id. The 

reason is that “[t]he purpose of alimony is to provide support and maintenance for 

the dependent spouse.” Potts v. Tutterow, 114 N.C. App. 360, 363, 442 S.E.2d 90, 92 

(1994) (citation omitted). Accordingly, alimony has been described as the proportion

of the supporting spouse’s estate “which is judicially allowed and allotted to a 

[dependent spouse] for [his or] her subsistence and livelihood during the period of 

(their) separation.” Rogers v. Vines, 6 Ired. 293, 297 (1846). Just as alimony 

terminates on the death of either party, so too do other legal obligations to make 

support payments to a dependent spouse, Bland v. Bland, 21 N.C. App. 192, 196, 203 

S.E.2d 639, 642 (1974), unless they are part of “a complete settlement of all property 

and marital rights between the parties” for which there is reciprocal consideration,

such that “the entire agreement would be destroyed by a modification of the support 

provision[,]” Walters v. Walters, 54 N.C. App. 545, 548, 284 S.E.2d 151, 153 (1981) 

(internal marks and citation omitted), rev’d on other grounds, 307 N.C. 381, 298 

S.E.2d 338 (1983).

¶ 32 The requirement in the trial court’s order that Defendant “secure his child 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

support arrears and alimony by maintaining life insurance on his life with a death 

benefit of $550,000.00,” was, in effect, a second award of alimony rather than security 

for his alimony obligation of $1,900 per month and unsatisfied child support arrears. 

“Security” has been defined as “[c]ollateral given or pledged to guarantee the 

fulfillment of an obligation; esp., the assurance that a creditor will be repaid (usu. 

with interest) any money or credit extended to a debtor.” Security, Black’s Law 

Dictionary (11th ed. 2019). The obligations purportedly secured by the requirement 

in the trial court’s order that Defendant maintain life insurance with a death benefit 

of $550,000 were the net, unsatisfied child support arrears that accrued between 1 

February 2020 and 30 June 2020 of $18,026.75 and a total potential alimony 

obligation of $456,000 in nominal terms (i.e., without any adjustment for inflation or 

other discounts), assuming (1) Defendant survived the entire twenty years he was 

ordered to pay $1,900 per month in alimony; (2) the parties never reconciled; and (3) 

Plaintiff never remarried. That is, setting aside the validity of this purported 

security, if the requirement that Defendant maintain life insurance with a death 

benefit of $550,000 was, in fact, security for his unsatisfied, net child support arrears 

and his total potential alimony exposure, the life insurance overcollateralized the 

obligations secured, which equaled at most $474,026.75. The obligations purportedly 

secured equaled $75,973.25 less than the $550,000 of “security.”

¶ 33 More fundamentally though, the requirement in the trial court’s order that 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

Defendant maintain life insurance with a death benefit of $550,000 was, in effect, a 

second award of alimony, which the overcollateralization of the purported security 

underscores. The death benefit of $550,000 did not guarantee the fulfillment of the

obligations to pay $18,026.75 in net, unsatisfied child support arrears and the 

obligation to pay as much as $456,000 in alimony. Were Defendant to pay his net, 

unsatisfied child support arrears on or before 5 July 2020 and the $1,900 per month,

as ordered, but pass away on 31 July 2040, the day before his final $1,900 monthly 

alimony payment was due, assuming the parties never reconciled and Plaintiff never 

remarried, Plaintiff would receive a windfall: $18,026.75 in child support arrears; 

$454,100 in monthly alimony payments; and $550,000 of “security” in the form of a 

death benefit from the life insurance policy—representing more than a double 

recovery of the amounts purportedly “secured” by the life insurance. Accordingly, we 

hold that the life insurance the trial court ordered Defendant to maintain did not 

qualify as “security” within the meaning of § 50-16.7(b).

¶ 34 Finally, as we reasoned in Squires v. Squires, 178 N.C. App. 251, 264, 631 

S.E.2d 156, 164 (2006), the requirement in the trial court’s order that Defendant 

maintain life insurance with a death benefit of $550,000 is “without effect as such a 

term is barred by statute.” To reiterate, “alimony shall terminate upon the death of 

either the supporting or the dependent spouse.” N.C. Gen. Stat. § 50-16.9(b) (2019). 

The death benefit of the life insurance Defendant was ordered to maintain would 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

constitute alimony Plaintiff received after Defendant’s death—upon the occurrence 

of which any obligation of Defendant to pay Plaintiff alimony would have been 

extinguished. See id. Section 50-16.7(b) does not create an exception from the rule 

that an alimony obligation terminates upon the death of either the supporting or 

dependent spouse. We therefore vacate the portion of the trial court’s order requiring 

Defendant to maintain life insurance with a death benefit of $550,000 naming 

Plaintiff as beneficiary.

D. Attorney’s Fees

¶ 35 Defendant challenges the trial court’s award of attorney’s fees on the basis that 

the award includes fees incurred during the equitable distribution portion of the case, 

which are not recoverable. Plaintiff suggests that this is a clerical error in the order, 

but we disagree. We hold that (1) competent evidence in the record supported the 

trial court’s findings that Plaintiff was a dependent spouse; (2) Defendant was a 

supporting spouse; and (3) Plaintiff had insufficient means to subsist during the 

prosecution of the case and defray necessary expenses. However, the attorney’s fee 

award included fees incurred during the equitable distribution portion of the case, 

which was improper. We vacate the portion of the order awarding Plaintiff attorney’s 

fees and remand the case for entry of an award of attorney’s fees that does not include 

fees for equitable distribution.

¶ 36 “A party can recover attorney’s fees only if such a recovery is expressly 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

authorized by statute.” Robinson v. Robinson, 210 N.C. App. 319, 336, 707 S.E.2d 

785, 797 (2011) (internal marks and citation omitted). N.C. Gen. Stat. § 50-13.6 

authorizes attorney’s fee awards in actions for child custody, while N.C. Gen. Stat. 

§ 50-16.4 authorizes them in actions for alimony. See N.C. Gen. Stat. § 50-13.6 (2019)

(“[T]he court may in its discretion order payment of reasonable attorney’s fees to an 

interested party acting in good faith who has insufficient means to defray the expense 

of the suit.”); id. § 50-16.4 (“[T]he court may . . . enter an order for reasonable counsel 

fees, to be paid and secured by the supporting spouse in the same manner as 

alimony.”). In actions for equitable distribution, however, attorney’s fees are not 

recoverable. Robinson, 210 N.C. App. at 337, 707 S.E.2d at 797 (citations omitted). 

In a combined action for equitable distribution, alimony, and child support, a trial 

court may award attorney’s fees for the alimony and child support portions of the 

case, but not for the equitable distribution portion. Id. 

¶ 37 Plaintiff’s counsel averred in a 14 January 2020 affidavit prepared in support 

of the award of attorney’s fees that total fees and costs for Plaintiff’s claims for 

alimony, child custody, and child support were $11,321.86. A 14 January 2020 billing 

statement attached to the affidavit reflects a balance of $11,489.11, however, and the 

trial court awarded attorney’s fees to Plaintiff in the amount reflected in the billing 

statement rather than the affidavit. A review of the billing statement reveals that 

the billing statement includes fees for the equitable distribution portion of the case. 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

There is a handwritten notation on the billing statement that states that “since 

6/26/2019 (date of prior affidavit), an additional $6,515.61 has been incurred[.]” The 

affidavit likewise references a prior affidavit submitted by Plaintiff’s counsel in 

support of the award, stating that through 26 June 2019, the recoverable fees were 

$4,806.25. However, this prior affidavit is not in the record on appeal. The 

exhibits/evidence log prepared by the clerk references a Plaintiff’s Exhibit 27 

described as “expenses for atty’s fees” admitted by the court on 28 June 2019, 

suggesting that the prior affidavit not in the record may be Plaintiff’s Exhibit 27.

¶ 38 Under Rule 9 of the North Carolina Rules of Appellate Procedure, our review 

“is solely upon the record on appeal,” N.C. R. App. P. 9(a), and we cannot consider 

trial exhibits not included in the record on appeal, Ronald G. Hinson Elec., Inc. v. 

Union Cnty. Bd. of Educ., 125 N.C. App. 373, 375, 481 S.E.2d 326, 328 (1997). We 

hold that the trial court erroneously relied only on the 14 January 2020 billing 

statement—which, as both the handwritten notation on the billing statement and 

affidavit indicate, included recoverable fees of only $6,515.61, not the total 

recoverable fees of $11,321.86. Accordingly, we vacate the attorney’s fee award and 

remand the case for entry of an attorney’s fees award that does not include fees for 

equitable distribution.

III. Conclusion

¶ 39 We affirm the order of the trial court in part but vacate the portions of the 
WADSWORTH V. WADSWORTH

2021-NCCOA-703

Opinion of the Court

order requiring Defendant to maintain life insurance and awarding Plaintiff

attorney’s fees. We remand the case to the trial court for entry of an award of 

attorney’s fees that does not include fees for equitable distribution. Because N.C. 

Gen. Stat. §§ 50-13.6 and 50-16.4 only authorize awards of reasonable fees, the award 

entered by the trial court on remand must be supported by factual findings 

demonstrating that the fees are reasonable. See, e.g., Falls v. Falls, 52 N.C. App. 203, 

221, 278 S.E.2d 546, 558 (1981) (“To support an award of attorney’s fees, the trial 

court should make findings as to the lawyer’s skill, his hourly rate, its reasonableness 

in comparison with that of other lawyers, what he did, and the hours he spent.”).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Judges DILLON and MURPHY concur.