James B. Myers, Jr., Plaintiff,
Charlotte K. Myers, Defendant.
in the Court of Appeals 22 May 2019.
by defendant from order entered 4 April 2018 by Judge Jena P.
Culler in District Court, Mecklenburg County. No. 15 CVD
McElroy & Diehl, P.A., by Christopher T. Hood, Jonathan
D. Feit and Haley E. White, for plaintiff-appellee.
Hamilton Stephens Steele Martin, PLLC, by Amy E. Simpson,
appeals from the trial court's Equitable Distribution
Judgment and Alimony Order. Wife argues the trial court erred
by excluding her expert witness's testimony regarding
potential tax consequences of an alimony award, by failing to
make sufficient findings to support the amount of prospective
alimony awarded, and by failing to award retroactive alimony.
Because the trial court erred in its legal determination that
North Carolina General Statute § 1A-1, Rule
26(b)(4)(a)(1) required exclusion of Wife's expert
witness, the trial court failed to exercise its discretion to
decide whether to admit her testimony and we remand for
further consideration. Because the trial court did not make
sufficient findings to support the amount of alimony awarded
or explain why it denied Wife's claim for retroactive
alimony, we reverse and remand the order as to the amount of
the prospective alimony and as to the denial of retroactive
and Wife were married in 1994 and separated on 26 July 2014.
Two children were born to the marriage, in 2005 and 2007.
After the first child was born, Wife stopped working outside
the home to care for the children or worked only part-time,
and Husband was the primary wage earner. On 6 November 2015,
Husband filed a complaint with claims for child custody,
child support, equitable distribution, and absolute divorce.
On 21 January 2016, Wife filed her answer and counterclaims
for child custody, child support, post-separation support,
alimony, equitable distribution, and attorney fees. On 2
March 2016, the trial court entered a judgment of absolute
divorce, reserving all other pending claims. On 22 March
2016, Husband filed his affirmative defenses and reply,
alleging marital misconduct by Wife as a defense to alimony.
On 23 January 2017, with leave of court, Wife filed her
amended answer and counterclaims, adding allegations of
marital misconduct by Husband. The parties engaged in
discovery regarding all pending claims.
week before trial on the equitable distribution and alimony
claims, the parties entered a Consent Order regarding
permanent child custody and child support. Under the Consent
Order, Husband was required to pay child support of $1,
700.00 per month, starting on 1 September 2017, and 75% of
the children's uninsured medical expenses and certain
extracurricular activities. The Consent Order did not address
how child support was calculated and did not mention
retroactive or past prospective child support.
trial court held a hearing on equitable distribution and
alimony on 13 and 14 September 2017 and entered its order on
these claims on 4 April 2018. The trial court granted an
unequal distribution of the marital property, granting Wife
52% of the net marital estate. In making the unequal
distribution, the trial court specifically considered several
factors under North Carolina General Statute § 50-20(c),
including that Husband's income "greatly exceeded
that of" Wife during the marriage and his "career
growth potential is also far greater than" hers;
Husband's higher expectations of pension or retirement
benefits; Wife's contributions as a homemaker and primary
parent; and Wife's support for Husband in advancing his
career. Neither party challenges the equitable distribution
provisions of the order on appeal.
alimony claim, the trial court made extensive findings of
fact addressing Husband's allegations of marital
misconduct by Wife early in their marriage but determined
that he was aware of the incident and condoned it. Although
Wife presented evidence regarding allegations of illicit
sexual misconduct by Husband in support of her alimony claim,
the trial court made no findings on this issue. The trial
court also made detailed findings of fact regarding the
parties' incomes and expenses and required Husband to
make monthly alimony payments of $1, 200.00. We will address
the trial court's findings regarding alimony in more
detail below. Wife timely appealed from the trial court's
Exclusion of Expert Testimony
Standard of Review
first issue arises from the trial court's exclusion of
testimony of her expert witness based upon her failure to
disclose the identity of the witness sufficiently in advance
of trial. As a general rule, we review the trial court's
rulings regarding discovery for abuse of discretion. See
Miller v. Forsyth Mem'l Hosp., Inc., 174 N.C.App.
619, 620, 625 S.E.2d 115, 116 (2005) ("It is well
established that orders regarding discovery matters are
within the discretion of the trial court and will not be
upset on appeal absent a showing of abuse of that discretion.
In addition, the appellant must show not only that the trial
court erred, but that prejudice resulted from that error.
This Court will not presume prejudice." (citations and
quotation marks omitted)). "An abuse of discretion is a
decision manifestly unsupported by reason or one so arbitrary
that it could not have been the result of a reasoned
decision." Briley v. Farabow, 348 N.C. 537,
547, 501 S.E.2d 649, 656 (1998). However, if the trial court
makes a discretionary ruling based upon a misapprehension of
the applicable law, this is also an abuse of discretion.
See State v. Rhodes, 366 N.C. 532, 536, 743 S.E.2d
37, 39 (2013) ("[A]n abuse-of-discretion standard does
not mean a mistake of law is beyond appellate correction. A
[trial] court by definition abuses its discretion when it
makes an error of law." (alterations in original)
(quoting Koon v. United States, 518 U.S.
81, 100, 116 S.Ct. 2035, 2047) (1996))). And if the trial
court's ruling depends upon interpretation of a statute,
we review the ruling de novo. Moore v.
Proper, 366 N.C. 25, 30, 726 S.E.2d 812, 817 (2012)
("[W]hen a trial court's determination relies on
statutory interpretation, our review is de novo because those
matters of statutory interpretation necessarily present
questions of law."). Where the language of a statute is
clear, we need not construe the statute and must simply apply
the plain meaning of the statute. See Burgess v. Your
House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136
(1990). If the statute is ambiguous or unclear, we must
consider the purpose of the statute and intent of the
legislature as expressed in the statute.
When the plain language of a statute proves unrevealing, a
court may look to other indicia of legislative will,
including: the purposes appearing from the statute taken as a
whole, the phraseology, the words ordinary or technical, the
law as it prevailed before the statute, the mischief to be
remedied, the remedy, the end to be accomplished, statutes
in pari materia, the preamble, the title, and other
like means. The intent of the General Assembly may also be
gleaned from legislative history. Likewise, later statutory
amendments provide useful evidence of the legislative intent
guiding the prior version of the statute. Statutory
provisions must be read in context: Parts of the same statute
dealing with the same subject matter must be considered and
interpreted as a whole. Statutes dealing with the same
subject matter must be construed in pari materia, as
together constituting one law, and harmonized to give effect
Insulation Sys., Inc. v. Fisher, 197 N.C.App. 386,
390, 678 S.E.2d 357, 360 (2009) (quoting In re Proposed
Assessments v. Jefferson-Pilot Life Ins. Co., 161
N.C.App. 558, 560, 589 S.E.2d 179, 181 (2003)). Where, as in
this case, the Legislature has recently amended a statute, we
also "presume that the legislature acted with full
knowledge of prior and existing law and its construction by
the courts." State ex rel. Cobey v.
Simpson, 333 N.C. 81, 90, 423 S.E.2d 759, 763 (1992)
(citing Lumber Co. v. Trading Co., 163 N.C.
314, 317, 79 S.E. 627, 628-29 (1913)).
Motion to Exclude Expert Testimony
contends the trial court erred by striking testimony and
evidence from her expert witness, Victoria Coble. Wife
attempted to present evidence regarding the tax consequences
of alimony, tax rates, "cash flow issues and
hypothetical rates of return on cash investments." Wife
hired Ms. Coble a week prior to the trial and did not
disclose her as an expert witness until the afternoon of 12
September 2017, the day before the trial. Husband moved to
exclude Ms. Coble's testimony at the start of the trial,
but the trial court initially denied Husband's motion,
ordered that all of Ms. Coble's materials be produced to
Husband in the courtroom and directed that she could be
called to testify on the second day of trial. On the second
day, Husband renewed his objection to Ms. Coble's
testimony and made additional arguments to the trial court
based upon the 2015 amendments to Rule 26 of the North
Carolina Rules of Civil Procedure, including a blog post on
the issue published by Professor Ann Anderson of the
University of North Carolina School of Government
(hereinafter School of Government).
the parties had engaged in discovery, Husband had done no
discovery requesting disclosure of expert witnesses. There
was no discovery conference or pretrial conference addressing
evidence or witnesses in the alimony portion of the case; the
only pretrial order addressed the equitable distribution
claim, and that order did not mention potential witnesses,
including any expert witnesses. Wife argued that under North
Carolina General Statute § 1A-1, Rule 26(a) and (e),
Husband had not requested her to identify any expert
witnesses and she thus had no duty to supplement any prior
responses. In addition, we note that the Mecklenburg County
Local Rules do not require disclosure of expert witnesses and
do not require a pretrial order in an alimony claim. Both
parties had timely produced financial affidavits and income
information as required by the Local Rules.
upon the blog post, the trial court noted in open court that
"Professor Anderson seem[s] to have a different opinion
about how to interpret [Amended Rule 26]" than the trial
court had the previous day. The trial court allowed Wife to
proffer Ms. Coble's testimony in full but took the matter
under advisement and contacted Professor Anderson by email.
The trial court later disclosed Professor Anderson's
response to the parties and allowed them to respond to this
information. Ultimately, the trial court changed its ruling
and determined Wife was required to disclose the identity of
the expert witness under North Carolina General Statute
§ 1A-1, Rule 26(b)(4)(a)(1) in advance of trial, even
with no interrogatories or other discovery by Husband.
Although Rule 26(b)(4)(a)(1) did not set a particular time
for identification of experts, the trial court determined
Wife had failed to give sufficient or fair notice as "24
hours in advance would pretty much [be] under anyone's
interpretation, not reasonably in advance" of the trial
and excluded the testimony.
Trial Court's Communication with Disinterested Expert
ruling in question on appeal depends upon the interpretation
of North Carolina General Statute § 1A-1, Rule 26, and
particularly Rule 26(b)(4)(1)(a). Upon Husband's request,
the trial court considered a blog post by Professor Anderson
published on 4 September 2015; it states in part as follows:
The General Assembly has amended the rule of procedure in
civil cases for discovery of information about another
party's expert witness. North Rule of Civil Procedure
26(b)(4) has largely been unchanged since 1975. With the
amendments made by House Bill 376, S.L. 2015-153,
the rule updates the methods of disclosing and deposing
experts and implements some explicit work-product-type
protections. The Rule now looks more like the corresponding
provisions in Federal Rule of Civil Procedure 26
(after that Rule's own significant round of changes in
2010). The changes to North Carolina Rule 26(b)(4) apply to
actions commenced on or after October 1, 2015. The rule now
provides the following:
Expert witness disclosure. A party is now
required to disclose the identity of an expert witness that
it may use at trial (that is, a witness that may be used to
"present evidence under Rule 702, Rule 703, or Rule 705
of the North Carolina Rules of Evidence"). It appears
that the other party is no longer required to first submit
formal interrogatories requesting the disclosure, but, as
discussed below, that party has the option of doing so.
Written report provision. If the expert is
one "retained or specifically employed to provide expert
testimony in the case or one whose duties as the party's
employee regularly involve giving expert testimony," the
disclosing party has the option of submitting a written
report prepared by the expert that includes: a complete
statement of the witness's opinions and the bases and
reasons for them; facts the witness considered in forming the
opinions; exhibits that will be used to summarize or support
them; the witness's qualifications and a list of certain
publications; certain prior expert testimony by the witness;
and a statement of the expert's compensation. (This
report is required under the Federal rule.) In the
absence of this report, the other party may discover through
interrogatories the subject matter of an expert's
expected testimony; the substance of the facts and opinions
to which the expert is expected to testify; and a summary of
the grounds for each opinion.
Time frames for disclosure. The rule sets
default time frames for submitting written reports of experts
or interrogatory responses: 90 days before trial or, for
rebuttals, 30 days after the opposing party's disclosure.
These requirements may-and surely in many cases will
be-altered by stipulation or court order.
Anderson, "North Carolina's Expert Witness
Discovery Rule - Changes and
Clarifications," School of Gov't (4 Sept.
Court observes that the School of Government provides
continuing education for many public officials in North
Carolina, including District Court judges, Superior Court
judges, the Court of Appeals, and the Supreme Court, as well
as many other local and state elected and appointed
officials. As noted on the School of Government's
As the largest university-based local government training,
advisory, and research organization in the United States, the
School of Government offers up to 200 courses, webinars, and
specialized conferences for more than 12, 000 public
officials each year.
Faculty members respond to thousands of phone calls and
e-mail messages each year on routine and urgent matters and
also engage in long-term advising projects for local
governing boards, legislative committees, and statewide
In addition, faculty members annually publish approximately
50 books, manuals, reports, articles, bulletins, and other
print and online content related to state and local
government. Each day that the General Assembly is in session,
the School produces Daily Bulletin Online, which reports on
the day's activities for members of the legislature and
others who need to follow the course of legislation.
visited 5 Dec. 2019).
a trial judge must always carefully consider any
communications with a disinterested expert regarding a
question arising in a trial, the trial court fully advised
the parties of the communication in open court and gave them
an opportunity to review the information and respond to it.
This procedure is not required by any statute or rule and is
not possible or practicable in every situation. The North
Carolina Code of Judicial Conduct allows judges to consult
"a disinterested expert on the law applicable to a
proceeding before the judge," but it does not set out
any parameters for the consultation:
A judge should accord to every person who is legally
interested in a proceeding, or the person's lawyer, full
right to be heard according to law, and, except as authorized
by law, neither knowingly initiate nor knowingly consider ex
parte or other communications concerning a pending
proceeding. A judge, however, may obtain the advice of a
disinterested expert on the law applicable to a proceeding
before the judge.
Carolina Code of Judicial Conduct Canon
3(A)(4). Here, the trial court's disclosure of
the communication to the parties eliminated any possibility
of confusion or unfairness to the parties and provided a
clear basis for appellate review, since the communication is
addressed in the transcript.
Analysis of Rule 26(b)(4)(a)(1):
North Carolina General Statute § 1A-1, Rule 26(b), each
party is required to disclose the identity of expert
witnesses it may use at trial:
(b) Discovery scope and limits.--Unless otherwise limited by
order of the court in accordance with these rules, the scope
of discovery is as follows: . . . .
(4) Trial Preparation; Discovery of Experts. - Discovery of
facts known and opinions held by experts, that are otherwise
discoverable under the provisions of subdivision (1) of this
subsection and acquired or developed in anticipation of
litigation or for trial, may be obtained only as provided by
a. 1. In general. - In order to provide openness and avoid
unfair tactical advantage in the presentation of a case at
trial, a party must disclose to the other parties in
accordance with this subdivision the identity of any witness
it may use at trial to present evidence under Rule 702, Rule
703, or Rule 705 of the North Carolina Rules of Evidence.
Gen. Stat. § 1A-1, Rule 26(b) (2017).
subsection of Rule 26 was substantially revised in an
amendment adopted in 2015. Before the amendment, it read:
1. A party may through interrogatories require any other
party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject
matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds
for each opinion.
2. Upon motion, the court may order further discovery by
other means, subject to such restrictions as to scope and
such provisions, pursuant to sub-subdivision (b)(4)b. of this
rule, concerning fees and expenses as the court may deem
Gen. Stat. § 1A-1, Rule 26(b)(4)(a) (2013) (emphasis
before the 2015 Amendment, Rule 26(b)(4)(a)(1) provided that
a party "may through interrogatories" require an
opposing party to disclose expert witnessesexpected to
testify at trial. Id. The 2015 Amendment to this
subsection removed the language regarding interrogatories and
states instead that a party "must disclose" expert
witnesses. See N.C. Gen. Stat. § 1A-1,
Rule 26(b)(4)(a)(1) (2017).
Professor Anderson's blog post correctly noted,
subsection (b)(4)(a)(1) which requires disclosure is now more
similar to Federal Rule of Civil Procedure 26. In addition,
other amendments to Rule 26 adopted at the same time also
made North Carolina's Rule 26 more similar to its federal
counterpart. But since North Carolina has not adopted many of
the other related provisions of the Federal Rules, the
similarity is somewhat superficial. Regarding the 2015
amendments to Rule 26, Shuford's North Carolina Civil
Practice and Procedure notes that North Carolina Rule 26 and
Federal Rule 26 both deal "with substantive aspects of
discovery," but they are
fundamentally different in their respective approaches. Since
1993, when Federal Rule 26 was substantively rewritten, the
discovery procedures were substantially changed to establish
what amounts, through mandatory discovery requirements, to
standing interrogatories and requests for disclosure and
production. The matter must be produced no later than 14 days
before a scheduled conference to formulate a joint written
discovery plan. While the North Carolina Rule now lays out
the framework for a discovery plan and conference to be
creased, it is not mandatory unless one of the parties
requests to have a discovery meeting.
Woodlief, Jr., Shuford North Carolina Civil Practice and
Procedure § 26:28 (2018).
the 2015 Amendments to Rule 26 incorporated the concept of
required disclosure of expert witnesses but set no procedure
or timing for the disclosure, Rule 26(b(4)(a)(1) is
ambiguous. The trial court appreciated this ambiguity,
noting, "I think the rule is clear as mud." We must
therefore review the trial court's interpretation of the
2015 Amendment to Rule 26 de novo. See Moore v.
Proper, 366 N.C. at 30, 726 S.E.2d at 817.
conducting de novo review of the 2015 Amendment to
Rule 26(b)(4)(a)(1), we must first "determine whether
[the] amendment is clarifying or altering." Ray v.
N.C. Dep't of Transp., 366 N.C. 1, 9, 727 S.E.2d
675, 681 (2012). An "altering amendment" is
intended to change the substance of the original statute, but
a "clarifying amendment" is not intended to
"change the substance of the law but instead [to give]
further insight into the way in which the legislature
intended the law to apply from its original enactment."
Id. Even if the statutory language is plain, we
consider the title of the act to assist in "ascertaining
the intent of the legislature." Id. at 8, 727
S.E.2d at 681. The Bill which made these amendments is
entitled, "An Act Amending the Rules of Civil Procedure
to Modernize Discovery of Expert Witnesses and Clarifying
Expert Witness Costs in Civil Actions." S.L. 2015-153
(H.B. 376) (original in all caps). "To determine whether
the amendment clarifies the prior law or alters it requires a
careful comparison of the original and amended
statutes." Ray, 366 N.C. at 10, 727 S.E.2d at
682 (quoting Ferrell v. Dep't of Transp., 334
N.C. 650, 659, 435 S.E.2d 309, 315 (1993)). Considering the
purpose of the amendment-"to modernize discovery of
expert witnesses"-and the comparison of the original and
amended statutes, the 2015 Amendment was an "altering
amendment" which was intended to change the substance of
seeking to construe Rule 26(b)(4)(a)(1), we have also
considered it in the context of Rule 26 in its entirety and
Rule 37, which provides for enforcement and sanctions for
violations of Rule 26. We have also compared North
Carolina's Rule 26 to Federal Rule 26, as the amendments
do make North Carolina's rule somewhat more similar to
the federal rule. Most relevant to the issue presented here,
the 2015 Amendment to North Carolina's Rule 26 did not
incorporate several related provisions of Federal Rule 26
addressing how and when experts must be
disclosed. Federal Rule 26(a)(1)(C) directs that certain
required disclosures be made and sets out when "initial
disclosures" must be provided. See Fed. R. Civ.
P. 26(a)(1)(A) ("Except as exempted by Rule 26(a)(1)(B)
or as otherwise stipulated or ordered by the court, a party
must, without awaiting a discovery request, provide
to the other parties[.]"). North Carolina's Rule
26-in contrast to the required initial disclosures in the
Federal rules-still requires the parties to ask for
discovery.See N.C. Gen. Stat. § 1A-1,
Rule 26(a). In addition, Federal Rule 26(a)(2)(B) also
requires the parties to provide a written report
from the expert witnesses identified, while in North Carolina
providing a report is optional. Compare Fed. R. Civ.
P. 26(a)(2)(B) with N.C. Gen. Stat. § 1A-1,
Rule 26(b)(4)(a)(2). Federal Rule 26(f) requires,
unless exempted, a conference regarding discovery and a
discovery plan. Fed.R.Civ.P. 26(f). The analogous provisions
in North Carolina's Rules are optional. N.C. Gen. Stat.
§ 1A-1, Rule 26(f). ...