Copyright 1998 - N.C. Administrative Office of the Courts


FLOYD B. MCKISSICK, JR., Plaintiff v.

CYNTHIA HEATH MCKISSICK, Defendant

No. COA97-735

(Filed 7 April 1998)

1.    Costs § 37 (NCI4th)-- action to recover possession of personal property -- attorney fees as costs

    The award of attorney fees in an action to recover personal property under N.C.G.S. § 1- 230 was not supported by N.C.G.S. § 6-18(2) because there is not a specific authorization that costs in the context of this statute are to include attorney fees.

2.    Divorce and Separation § 170 (NCI4th)-- action for possession of separate property -- attorney fees

    The trial court was not without jurisdiction to award attorney fees under N.C.G.S. § 50- 20(i) in an action for return of separate property where plaintiff contended that the trial court was without jurisdiction because it had earlier declared that a premarital agreement was valid and barred defendant's claims under the equitable distribution statute. The trial court did not make the determination that all property rights had been settled by the premarital agreement until after the order requiring return of defendant's separate property and thus had jurisdiction at the time it entered the order.

    Appeal by plaintiff from order filed 14 January 1997 by Judge J. Kent Washburn in Alamance County District Court. Heard in the Court of Appeals 17 February 1998.

    Floyd B. McKissick, Jr., plaintiff appellant, pro se.

    Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Thomas R. Peake, II, for defendant appellee.

    GREENE, Judge.

    Floyd McKissick (plaintiff) appeals from an order of the trial court awarding Cynthia Heath McKissick (defendant) attorneys' fees.