Opinion
No. COA11–882.
2012-04-17
Kaylynne A. MURN, Plaintiff, v. Alvin J. MURN, Defendant.
Pope McMillan Kutteh Privette Edwards & Schieck, PA, by Charles A. Schieck for the plaintiff. Katherine Freeman, PLLC, by Katherine Freeman for the defendant.
Appeal by defendant from order entered 16 December 2010 by Judge H. Thomas Church in Iredell County District Court. Heard in the Court of Appeals 1 December 2011. Pope McMillan Kutteh Privette Edwards & Schieck, PA, by Charles A. Schieck for the plaintiff. Katherine Freeman, PLLC, by Katherine Freeman for the defendant.
THIGPEN, Judge.
Alvin J. Murn (“Defendant”) appeals from an order awarding attorney's fees to his ex-wife, Kaylynne A. Murn (“Plaintiff”). We must determine whether the trial court erred by making irrelevant findings and conclusions in its order and whether there was sufficient evidence to support the order. Because the trial court did not make a finding of fact about the number of hours Plaintiff's attorney worked, we reverse and remand for additional findings of fact on the issue of the reasonableness of the award of attorney's fees. For all other issues, we affirm.
I. Factual and Procedural Background
Plaintiff and Defendant were married on 26 August 1990 and had three children. The couple separated around 1 July 2004 and entered into a Separation Agreement and Property Settlement (“Separation Agreement”) on 19 August 2004. The Separation Agreement provided, in part, that “joint custody shall be shared as close as 50 percent each as possible”; that “Husband shall have physical custody of the children while Wife is at work and Wife will have physical custody of the children while Husband is at work”; and that child support was to be computed pursuant to North Carolina child support guidelines. The couple subsequently divorced on 23 January 2006.
Plaintiff initiated the present action on 8 January 2008 by filing a Complaint alleging, inter alia, that Defendant “failed to comply with the terms of the Separation [A]greement as it pertains to child support” and seeking “for [P]laintiff to have physical custody of the three children ... either as primary custodian or on a shared basis[.]” In his Answer and Motions in the Cause, Defendant sought specific performance of the Separation Agreement; modification of custody to grant Defendant “primary physical care, custody and control of the parties' minor children subject to reasonable visitation privileges”; and Rule 11 sanctions against Plaintiff. Following a hearing on 15 July 2009, the trial court entered an order appointing a psychologist to perform a “comprehensive child custody evaluation” and postponing proceedings until the completion of the evaluation.
The proceedings recommenced after the child custody evaluation, and the trial court entered a Custody Order by consent on 2 September 2010. Regarding child custody, the Custody Order provided that “[t]he parties shall exercise joint legal custody of the minor children with the Plaintiff having the primary physical custody of the minor children and the Defendant having secondary physical custody[.]” The Custody Order also stated that “[t]he parties shall return to court at 2:00 pm on Monday, September 20, 2010 for the court to make a determination on the following issues: Retroactive Child support, Future Child Support, [and] Attorney fees[.]” On 20 September 2010, the trial court entered another order reflecting the parties' agreement regarding the appointment of a therapist, holiday visitation, and modification of child support, and stating that “[t]he parties shall submit arguments concerning attorney fees within 30 days[.]”
On 16 December 2010, the trial court filed an Order for Attorney's Fees. The trial court found as fact that “Plaintiff is an interested party acting in good faith without the necessary means to defray the costs of this action”; that Defendant's actions taken in bad faith “forced Plaintiff to incur reasonable but substantial attorney[']s fees in defending the claims of Defendant”; and that Defendant refused to pay child support in accordance with the terms of the Separation Agreement “without just cause or excuse.” The trial court concluded Plaintiff was entitled to attorney's fees pursuant to N.C. Gen Stat. § 50–13.6 and ordered Defendant to reimburse Plaintiff $15,000.00 as reasonable attorney's fees. Defendant appeals from this order.
On appeal, Defendant contends (I) the trial court erred by making findings of fact and conclusions of law that were irrelevant and that determined issues which were waived or resolved in prior consent orders and (II) the order is not supported by necessary evidence.
II. Extraneous Findings of Fact and Conclusion of Law
Defendant first contends the trial court erred by making extraneous findings and conclusions that were irrelevant and inconsistent with previous determinations in prior consent orders. Although we agree the trial court made findings and a conclusion that are not required to award attorney's fees pursuant to N.C. Gen.Stat. § 50–13.6 (2011), we conclude these findings and conclusion are surplusage.
N.C. Gen.Stat. § 50–13.6 provides:
In an action or proceeding for the custody or support, or both, of a minor child ... the 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. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding; provided however, should the court find as a fact that the supporting party has initiated a frivolous action or proceeding the court may order payment of reasonable attorney's fees to an interested party as deemed appropriate under the circumstances.
In construing N.C. Gen.Stat. § 50–13.6, our courts have made the following distinction between fee awards in proceedings solely for child support and fee awards in actions involving both custody and support:
Before a court may award fees in an action solely for child support, the court must make the required finding under the second sentence of the statute: that the party required to furnish adequate support failed to do so when the action was initiated. On the other hand, when the proceeding or action is for both custody and support, the court is not required to make that finding. A case is considered one for both custody and support when both of those issues were contested before the trial court, even if the custody issue is resolved prior to the support issue being decided.
Spicer v. Spicer, 168 N.C.App. 283, 296–97, 607 S.E.2d 678, 687 (2005) (citations omitted).
In this case, both parties state in their briefs, and we agree based on the record, that the present action was for custody and support. Thus, the trial court was not required to make the finding outlined in the second sentence of N.C. Gen.Stat. § 50–13.6. See id.; see also Kuttner v. Kuttner, 193 N.C.App. 158, 164, 666 S.E.2d 883, 888 (2008) (holding that trial court was not required to find as fact that the father initiated a frivolous action or proceeding in order to award attorney's fees to the mother in a child support and custody action where the mother was an interested party acting in good faith who had insufficient means to defray the expense of the suit).
Defendant challenges findings of fact numbers 26–29 regarding Defendant's refusal to pay child support as irrelevant and not supported by the evidence. Defendant also contends the trial court made many “further findings of fact and conclusions of law” addressing the behavior of the parties prior to 8 October 2009 which are waived in the 22 October 2009 consent order and are irrelevant to an order of attorney's fees.
In reviewing an attorney's fees award, this Court has previously held that although a finding of fact “was extraneous to the issues presented to the court and should not have been included in the order[,] ... it is not essential to support any of the trial court's conclusions of law, and we treat it as surplusage.” Kuttner, 193 N.C.App. at 165, 666 S.E.2d at 888 (citation omitted); see also Dawson Industries, Inc. v. Godley Const. Co., Inc., 29 N.C.App. 270, 275, 224 S.E.2d 266, 269 (“When findings that are unchallenged, or are supported by competent evidence, are sufficient to support the judgment, the judgment will not be disturbed because another finding, which does not affect the conclusion, is not supported by evidence.”) (citation omitted), disc. review denied, 290 N.C. 551, 226 S.E.2d 509 (1976).
In this case, we agree that the trial court was not required to make findings of fact regarding Defendant's refusal to pay child support, whether Defendant acted in bad faith, or whether Defendant initiated the proceedings; therefore, these findings should not have been included in the order. However, we treat these findings of fact and the related conclusion of law as surplusage because they are not essential to support the trial court's attorney's fee award.
III. Order Not Supported by Evidence
Defendant next contends the order for attorney's fees is not supported by sufficient evidence because (A) there is no evidence that Plaintiff is without sufficient means to defray the costs of this action and (B) there is no evidence to support the trial court's findings as to the amount of attorney's fees.
A. Sufficient Means to Defray the Costs of this Action
Defendant argues there is no evidence to support the trial court's finding and conclusion that Plaintiff is without sufficient means to defray the costs of this action. We disagree.
Before attorney's fees can be awarded in an action for custody and support, “the facts required by the statute—that the party seeking the award is (1) an interested party acting in good faith, and (2) has insufficient means to defray the expense of the suit—must be both alleged and proved.” Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996) (citation omitted). “Whether these statutory requirements have been met is a question of law, reviewable on appeal. Only when these requirements have been met does the standard of review change to abuse of discretion for an examination of the amount of attorney's fees awarded.” Simpson v.. Simpson, –––N.C.App.––––, ––––, 703 S.E.2d 890, 892 (2011) (quotation omitted). “A party has insufficient means to defray the expense of the suit when he or she is unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit.” Taylor, 343 N.C. at 54, 468 S.E.2d at 35 (quotation and quotation marks omitted).
Defendant challenges the following finding of fact as not supported by evidence:
25. That Plaintiff is an interested party acting in good faith without the necessary means to defray the costs of this action and to employ adequate legal counsel in order to proceed as a litigant to meet the Defendant in the suit. Defendant retained the services of Ms. Jessie Conley to represent his legal interests in this matter, and M[ ]s. Conley enjoys a reputation of being a well prepared and zealous advocate of all her clients. Ms. Conley has zealously advocated the position of the Defendant at all times and at all stages of this litigation.
Defendant also challenges the trial court's conclusion that “Plaintiff is an interested party acting i[n] good faith without the necessary means to defray the costs of this action and to employ adequate legal counsel in order to proceed as a litigant to meet the Defendant in this child custody and child support action.”
Here, the record shows Plaintiff attached a completed North Carolina Child Support Worksheet B and the 20 September 2010 Order as exhibits to her written argument to the trial court on the issue of attorney's fees. The child support worksheet indicates Plaintiff's monthly gross income is $5,375.00, and Defendant's monthly gross income is $19,625.00. The child support worksheet shows the couple's monthly shared custody basic child support obligation as $4,438.50. The child support worksheet further indicates Plaintiff's adjusted support obligation is $332.04 per month, while Defendant's adjusted support obligation is $2,244.79 per month. Additionally, the 20 September 2010 Order states in relevant part:
2. The parties stipulate and agree that the attached worksheet B is the appropriate worksheet for the calculation of child support and that the Defendant has a monthly obligation of $1,912.76 per month.[ ] The Defendant has an arrearage of $12,036.00 and shall pay an additional $1,000.00 a month towards this arrearage until the arrearage is paid in full. The Defendant [ ] shall make his first payment on regular child support and arrearage payment on October 1, 2010[.]
We conclude there is sufficient evidence in the record to support the trial court's finding and conclusion that Plaintiff is without sufficient means to defray the costs of this action. First, Plaintiff's incurred attorney's fees in the amount of $21,780.00, a large portion of which the trial court found remain unpaid, are approximately four times her monthly gross income. See Lawrence v.. Tise, 107 N.C.App. 140, 153–54, 419 S.E.2d 176, 185 (1992) (holding that “the trial court's finding that Mother has the means to pay her attorney is not supported by the evidence” and the Mother was “not required to deplete her small estate in order to pay these expenses” where the evidence showed the Mother incurred legal fees in the amount of $6,741.00, that her monthly gross income was $215.00, and that her monthly expenses exceed her gross income) (citation omitted). Moreover, the evidence shows Defendant has a monthly child support obligation of $1,912.76, and, as of 20 September 2010, Defendant had an arrearage of $12,036.00 in child support. Defendant's failure to pay child support meant that Plaintiff had to assume the majority of the financial responsibility, with the shared monthly basic child support obligation of $4,438.50 taking the vast majority of her monthly income. See Belcher v. Averette, 152 N.C.App. 452, 455, 568 S.E.2d 630, 633 (2002) (concluding that trial court made sufficient findings to support its award of attorney's fees where it had before it Belcher I in which the court “determined that plaintiff, on behalf of the children, had been deprived of $21,900.00 in child support which she had to provide”). Accordingly, the trial court did not err by finding and concluding that Plaintiff is without sufficient means to defray the costs of this action.
B. Amount of Attorney's Fees
Defendant lastly contends there is no evidence to support the trial court's findings as to the amount of attorney's fees. Specifically, Defendant first contends the trial court did not have admissible evidence of Plaintiff's attorney's fees as the fee affidavit submitted by Plaintiff's attorney was deficient and inadmissible “because it was not made on personal knowledge, nor did it state the affiant had prepared, reviewed or was familiar with the records of [Plaintiff's] attorney's fees.” Defendant, however, failed to raise this issue before the trial court. SeeN.C. R.App. P. 10(a)(1) (2011) (stating that “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make”). Thus, we will not consider Defendant's arguments regarding the admissibility of Plaintiff's attorney's affidavit.
Additionally, Defendant contends the affidavit does not “meet the requirements of Falls ” and that there was no other evidence of what Plaintiff's attorney did and the hours he spent. We agree that the trial court failed to make the required findings of fact pursuant to Falls.
Because N.C. Gen.Stat. § 50–13.6 allows for an award of reasonable attorney's fees, “cases construing the statute have in effect annexed an additional requirement concerning reasonableness onto the express statutory ones.” Cobb v. Cobb, 79 N.C.App. 592, 595, 339 S.E.2d 825, 828 (1986). Specifically, the record must contain additional findings of fact upon which a determination of reasonableness can be based, “such as findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney's hourly rate, and its reasonableness in comparison with that of other lawyers.” Id. at 595–96, 339 S.E.2d at 828;see also Falls v. Falls, 52 N.C.App. 203, 221, 278 S.E.2d 546, 558 (“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.”), disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981). “If these requirements have been satisfied, the amount of the award is within the discretion of the trial judge and will not be reversed in the absence of an abuse of discretion.” Smith v. Barbour, 195 N.C.App. 244, 255, 671 S.E.2d 578, 586 (quotation and quotation marks omitted), disc. review denied, 363 N.C. 375, 678 S.E.2d 670 (2009).
Here, the trial court made the following unchallenged findings of fact:
30. That pursuant to the Attorneys fees affidavit submitted by Plaintiff's counsel, the Plaintiff incurred attorney[']s fees in the amount of $21,728.00 (twenty one thousand, seven hundred twenty eight dollars) since the inception of this litigation, a large portion of which remained unpaid by her to her attorney for services rendered.
31. That the attorney's fee affidavit tendered by Plaintiff's counsel states that Mr. Schieck charges an hourly rate of $250.00 per hour. The Court finds as a fact that this hourly rate is reasonable in light of Mr. Schieck's skill, the nature and scope of the legal services rendered by Mr. Schieck throughout all stages of these extensive proceedings, and complexity of the matters litigated before the Court in this matter. Like Ms. Conley, Mr. Schieck enjoys a reputation of being a well prepared and zealous advocate of all his clients. Mr. Schieck has zealously advocated the position of the Plaintiff at all times and at all stages of this litigation.
32. That Plaintiff is entitled to an award of reasonable attorney[']s fees incurred in this matter pursuant to 50–13.6.
33. That Plaintiff is entitled to an award of reasonable attorney[']s fees for having to file an action to compel compliance with the Separation Agreement executed by the parties as it pertained to the issue of child support for the minor children at issue.
34. That the Court finds as a fact that the sum of $15,000.00 is a reasonable award of attorney[']s fees in this matter, in that as argued by Defendant's counsel in her written argument to the Court, there were tangential legal matters involving the parties not directly germane to this action that do not warrant a reimbursement of attorney[']s fees by this Court.
See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal”) (citations omitted). The trial court also made extensive findings of fact about the procedural history of this case, which Defendant does not challenge.
Plaintiff concedes, and we agree, that the trial court did not make a finding of fact about the number of hours Plaintiff's attorney worked. We, therefore, reverse the award of attorney's fees and remand for additional findings of fact on the issue of the reasonableness of attorney's fees. See Falls, 52 N.C.App. at 221, 278 S.E.2d at 558 (reversing the trial court's award of attorney's fees because the trial court failed to make the required findings of fact regarding the reasonableness of the attorney's fees).
AFFIRMED in part; REVERSED and REMANDED in part. Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).