Browne v. Browne , 101 N.C. App. 617 ( 1991 )

Judge COZORT

concurring by separate opinion.

I concur with both ultimate conclusions reached by the majority: (1) that the case must be remanded to set support consistent with the applicable statutes; and (2) that the pendente lite alimony award is not immediately appealable. On the first issue, however, I cannot agree with all of the issues discussed and opinions expressed by the majority.

I note initially that neither party raised at trial or on appeal the issue of whether a timely request was made for hearing evidence and making findings pursuant to N.C. Gen. Stat. § 50-13.4(c) (1987 & Cum. Supp. 1990). Any discussion of that issue is thus unnecessary to the resolution of this case, especially in light of the majority’s holding that the notice requirement was waived. Furthermore, I am compelled to comment on the majority’s interpretation of N.C. Gen. Stat. § 5043.4(c) that “upon request of any party” means ten days’ advance notice. I must disagree. The statute clearly states only “upon request” and makes no provision for advance notice of any duration. If the General Assembly had intended the statute to require advance notice, it could have specified such notice and the length thereof. Thus, on the first issue, I vote simply to reverse the trial court’s order which sets support at a level which varied from the guidelines and to remand the case to the trial court for entry of a new order.