1. Appeal and Error--notice of appeal--required
An issue as to whether the trial court erred by prohibiting defendant from assigning error
to a temporary custody order was not addressed where appellant did not at any time give notice
of appeal as to the order.
2. Contempt--condition for purging--vague
The trial court erred in a child custody and support action by entering a civil contempt
order including a vague condition which made it impossible for defendant to purge herself of the
contempt. The condition did not clearly specify what the defendant could and could not do in
order to purge herself; the purpose of civil contempt is not to punish but to coerce the defendant
to comply.
3. Child Support, Custody, and Visitation--custody--contempt hearing--in-chambers
interview of children
The trial court erred in a child custody action by conducting an in-chambers interview of
the children over the objection of defendant, but the error was not prejudicial since the parties'
attorneys were present during the interview.
4. Child Support, Custody, and Visitation--custody--attorney fees
The trial court erred in a child custody and support action by awarding plaintiff attorney
fees where the court concluded that plaintiff did not have sufficient assets with which to pay his
attorney fees and that defendant did have the means to pay plaintiff's attorney fees, but there
were no findings about plaintiff's monthly income or expenses and the court did not explicitly
find that plaintiff acted in good faith when he instituted this action.
5. Child Support, Custody, and Visitation--visitation--findings
The evidence in a custody action supported the court's visitation findings where
defendant contended that no competent evidence existed to support the findings since there was
no record of the private examination of the children by the court in chambers, but this interview
(unlike an earlier interview) was with the consent of both parties and with counsel present. A
party cannot complain about what the court learned from speaking with the children when a
court makes findings based on information obtained as a result of a private examination
conducted with the consent of the parties. Furthermore, the court's findings were also based on
evidence presented at another hearing.
6. Child Support, Custody, and Visitation--visitation--supervision of psychologist--
findings
The trial court did not abrogate its authority to a child psychologist in a visitation action
when it found that visitation with defendant ought to be under the supervision of the
psychologist. There was ample evidence to support the finding and the psychologist did not
have the authority to end defendant's visitation rights, but did have the authority to terminatecounseling and treatment, which included supervised visitation, and was required to notify the
court when he suspended treatment.
7. Child Support, Custody, and Visitation--custody--attorney fees
The trial court did not abuse its discretion by awarding plaintiff attorney fees in an
action for child custody and support where the court made the necessary findings of fact and
there was sufficient evidence to support those findings.
8. Child Support, Custody, and Visitation--refusal to enter permanent order--appeal
not interlocutory
The trial court erred by refusing to enter a permanent order for child support, attorney
fees and visitation and by dismissing defendant's appeal. Although all issues were resolved
when the order was entered, the trial judge stated that all of his orders were temporary. A mere
designation of an order as temporary is not sufficient to make that order interlocutory and not
appealable; a clear and specific reconvening time must be set out in the order and the time
interval must be reasonably brief.
9. Contempt--failure to pay attorney fees--no written undertaking
The trial court did not err by holding defendant in contempt for not paying attorney fees
as directed by an order where, although defendant contended that she filed an undertaking
pursuant to N.C.G.S. § 1-289 to stay enforcement of the award, she did not have a written
undertaking executed by a surety.
10. Contempt--attorney fees--findings and conclusions
The trial court did not err by awarding plaintiff attorney fees in the amount of $875 at a
civil contempt hearing where the court made the appropriate findings and conclusions.
Appeal by defendant from orders entered 16 September 1997, 4
November 1997, 6 April 1998 and 10 June 1998 by Judge Albert A.
Corbett, Jr. in Lee County District Court. Heard in the Court of
Appeals 29 March 1999.
Pursuant to Rule 40 of the Rules of Appellate Procedure and
defendant's motion to consolidate which we granted 29 September
1998, COA98-769 and COA98-1165 are consolidated. Accordingly, we
address both appeals.
Defendant (wife) and plaintiff (husband) were married 5
March
1983, separated 23 August 1995 and divorced 12 November 1996.
The parties have two sons born of the marriage, Chris, born 2June 1985 and Shawn, born 19 January 1988. On 16 November 1995,
a consent order granted joint and equal custody of the minor
children to the parties. The children lived with each party for
six months during the year. The consent order further provided
that neither party would pay child support to the other. The
consent order was undisputed until 7 February 1997, when
plaintiff filed a motion pursuant to G.S. § 50-13.7 to modify
child custody and to establish child support.
After a hearing on 5 September 1997 in which an in-chambers
interview of the children was held, the court entered an order on
16 September 1997 modifying the 16 November 1995 consent order.
The new order awarded plaintiff primary physical custody of the
two minor children. The order reserved plaintiff's motion for
child support and attorneys' fees for a hearing in February 1998.
The child custody decision was denominated by the trial court as
a temporary order.
Defendant was ordered to show cause why she ought not be
found in contempt of the 16 September 1997 order. At the
contempt hearing on 17 October 1997, the trial court found as
facts that during the September child custody hearing, defendant
had been ordered by the trial court to refrain from administering
corporal punishment to the children as she had previously done
and that since the September hearing, defendant had violated this
provision of the order. The trial court held defendant in civil
and criminal contempt, ordered defendant to pay $1,200 in
attorneys' fees to plaintiff's counsel and confined defendant to
jail from 17 October 1997 until she purged herself of contempt. On 10 November 1997, the trial court found defendant had purged
herself of contempt and ordered her release.
On 5 December 1997, defendant gave notice of appeal from the
civil contempt order. The Court of Appeals entered an order on
17 March 1998 extending the defendant's time to serve her
proposed record on appeal to 13 April 1998.
On 23 March 1998, the trial court held a hearing on the
issues of child support, visitation and attorneys' fees and
another in-chambers interview of the children was held. On 6
April 1998, the trial court entered an order requiring that
defendant pay child support in the amount of $502 per month and
pay $7,500 in attorneys' fees to plaintiff's counsel. In
addition, the trial court ordered that defendant undergo
counseling and as part of that treatment, ordered that visitation
be supervised when defendant visited her children. On 17 April
1998, defendant gave notice of appeal from the 6 April order
allowing temporary child support, attorneys' fees and suspending
unsupervised visitation.
On 13 April 1998 when defendant served her record on appeal,
she tried to include the 6 April 1998 order on attorneys' fees
and child support. The trial court dismissed defendant's appeal
relating to the 6 April order because the trial court held it was
temporary and therefore interlocutory and the matter could not
be appealed. On 15 May 1998, the trial court held defendant in
criminal and civil contempt for failing to pay the $7,500 in
attorneys' fees awarded in the 6 April 1998 order. On 19 June
1998, defendant filed her third notice of appeal which appealedfrom the trial court's decision to dismiss her appeal of the 6
April 1998 order and from the trial court's second contempt order
entered 15 May 1998. Defendant appeals.
Daughtry, Woodard, Lawrence & Starling, L.L.P., by Stephen
C. Woodard, Jr. and Reid, Lewis, Deese, Nance & Person,
L.L.P., by Renny W. Deese, for plaintiff-appellee.
Staton, Perkinson, Doster, Post, Silverman, Adcock & Boone,
P.A., by Jonathan Silverman and Michelle A. Cummins, for
defendant-appellant.
EAGLES, Chief Judge.
[1]First, we consider whether the trial court erred when it
settled the record on appeal and prohibited defendant from
assigning error to the 16 September 1997 temporary custody order.
Defendant argues that this trial judge usually enters temporary
child custody orders and rarely enters permanent orders, the
purpose being to deprive the parties of timely appellate review.
In any event, defendant appellant failed to give notice of appeal
as to the 16 September 1997 child custody order. Pursuant to
Rule 3 of the Rules of Appellate Procedure, the appellant must
file a notice of appeal within the time period required under the
rule. See Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App.
188, 189, 394 S.E.2d 683 (1990), appeal dismissed and disc.
review denied, 327 N.C. 633, 399 S.E.2d 326 (1990). Here, the
appellant did not at any time give notice of appeal as to the 16
September 1997 child custody order. Accordingly, we need not
address this issue. This assignment of error is overruled.
[2]Next we consider whether the trial court erred and made
it impossible for the defendant to purge herself of contemptunder the 4 November 1997 civil contempt order. Defendant argues
that the condition set out in the trial court's 4 November 1997
civil contempt order was so vague that it was impossible for
defendant to purge herself of contempt. After careful review, we
agree.
A court order holding a person in civil contempt must
specify how the person may purge himself or herself of the
contempt. G.S. § 5A-22(a); Nohejl v. First Homes of Craven
County, Inc., 120 N.C. App. 188, 191, 461 S.E.2d 10, 12 (1995).
The purpose of civil contempt is not to punish but to coerce the
defendant to comply with a court order. Bethea v. McDonald, 70
N.C. App. 566, 570, 320 S.E.2d 690, 693 (1984).
Defendant was held in civil and criminal contempt for
violating the 16 September 1997 temporary child custody order.
In the 4 November 1997 civil contempt order, one of the
conditions listed that defendant must meet to purge herself of
the contempt was that Ms. Cox
shall not hereafter at any time place either
of the minor children in a stressful
situation or a situation detrimental to their
welfare. Specifically, the defendant is
ordered not to punish either of the minor
children in any manner that is stressful,
abusive, or detrimental to that child.
This condition does not clearly specify what the defendant can
and cannot do to the minor children in order to purge herself of
the civil contempt. Accordingly, the trial court committed
reversible error and this civil contempt order is reversed.
Because we have reversed the trial court's 4 November 1997
civil contempt order because the vague condition made itimpossible for defendant to purge herself of contempt, we need
not addresses appellant's remaining assignments of error.
However, in our discretion, we will review two additional issues.
[3]First, we consider whether the trial court erred in
receiving testimony from the parties' children in-chambers and
outside of defendant's presence at the 17 October 1997 contempt
hearing. Defendant argues that the trial court erred by
conducting a private examination of the children in-chambers over
defendant's objection and without defendant's consent but with
counsel for both parties present. Defendant contends that her
constitutional right to confront witnesses was violated. After
careful review, we disagree.
In custody proceedings, the trial court may question a child
in open court but the court may question the children privately
only with the consent of the parties. Raper v. Berrier, 246 N.C.
193, 195, 97 S.E.2d 782, 784 (1957). In Raper, the Supreme Court
held:
While we recognize that in many instances it
may be helpful for the court to talk to the
child whose welfare is so vitally affected by
the decision, yet the tradition of courts is
that their hearings shall be open. . . .
Without doubt, the court may question a
child in open court in a custody proceeding
but it can do so privately only by consent of
the parties.
Id. In addition in Raper, counsel was not present when the
children were questioned in-chambers.
Here, defense counsel objected and specifically suggested
that the trial court hear the children in the courtroom and
suggested that the trial court close the courtroom for theirtestimony. The trial court denied defendant's request and
interviewed the children in his chambers; however, the parties'
attorneys were present. Although the defendant objected to the
in-chambers interview, defense counsel has failed to specify how
his client was prejudiced as a result of the in-chambers
interview. The lawyers' presence in-chambers eliminates any
prejudice to defendant that might have occurred had defendant's
attorneys not been present in the trial judge's chambers. The
attorneys' presence adequately protects the parties' rights and
interests. Accordingly, although it was error for the trial
court to conduct an in-chambers interview of the children over
the objection of defendant, the error was not prejudicial since
the parties' attorneys were present during the interview. This
assignment of error is overruled.
[4]Finally, we consider whether the trial court abused its
discretion in awarding plaintiff attorneys' fees in the 17
October 1997 civil contempt order. Defendant argues that there
is no disparity between the parties' financial resources and
argues that the award of $1,200 in fees is unreasonable.
An award of attorneys' fees will be stricken only if the
award constitutes an abuse of discretion. Clark v. Clark, 301
N.C. 123, 136, 271 S.E.2d 58, 67 (1980). Attorneys' fees can be
properly awarded in custody, child support and alimony cases upon
adequate findings of fact that the moving party acted in good
faith and had insufficient means to defray the expense of the
suit. G.S. § 50-13.6; see Voshell v. Voshell, 68 N.C. App. 733,
736-37, 315 S.E.2d 763, 765 (1984). Whether these statutoryrequirements are met is a question of law, reviewable on appeal.
Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996),
reh'g denied, 343 N.C. 517, 472 S.E.2d 25 (1996).
Here the trial court concluded that plaintiff did not have
sufficient assets with which to pay his attorneys' fees and that
defendant did have the means to pay plaintiff's attorneys' fees.
However, there were no findings about plaintiff's monthly income
or expenses. See re Baby Boy Scearce, 81 N.C. App. 662, 663-64,
345 S.E.2d 411, 413 (1986), disc. review denied, 318 N.C. 415,
349 S.E.2d 590 (1986). In addition the court did not explicitly
find that plaintiff acted in good faith when he instituted this
action. Id. Accordingly, the trial court erred in awarding
plaintiff attorneys' fees and this order must be reversed and the
matter remanded to the trial court to make sufficient findings of
fact consistent with this opinion.
In summary, as to COA98-769, we hold that the trial court's
4 November 1997 civil contempt order is fatally vague and the
trial court erred in awarding attorneys' fees. Accordingly, the
4 November 1997 civil contempt order is reversed.
[5]We now turn to COA98-1165. Here the defendant appeals
from an order determining temporary child support, attorneys'
fees and visitation rights filed 6 April 1998 and an order filed
10 June 1998 dismissing her appeal from the 6 April 1998 order.
First, we consider whether the trial court abused its
discretion in denying defendant visitation with her children in
the 6 April 1998 child support, visitation and attorneys' fees
hearing.Defendant argues that unsupervised visitation with her is in the
best interest of the children. Defendant contends that the trial
court's findings of fact numbers 13, 15, 17 and 19 are not
supported by competent evidence. After careful review, we
disagree.
The guiding principle in custody and visitation disputes is
the child's best interest. In re Jones, 62 N.C. App. 103, 105,
302 S.E.2d 259, 260 (1983). A trial court is given broad
discretion in determining the custodial setting that will advance
the welfare and best interest of minor children. In re Peal, 305
N.C. 640, 645, 290 S.E.2d 664, 667 (1982). Our review of the
trial court's custody order here is confined to whether the court
abused its discretion. Newsome v. Newsome, 42 N.C. App. 416,
426, 256 S.E.2d 849, 855 (1979). Since the trial court had the
opportunity to see the parties in person and to hear the
witnesses and determine credibility, the trial court's decision
should not be reversed absent an abuse of discretion. Id.
Here finding of fact number 13 states that
[w]ith consent of both parties and counsel,
the court held an in camera interview with
each of the minor children separately with
counsel . . . present during each interview.
Each child was happy, well mannered, and much
improved over the emotional stage in which
this court saw them during the September 5,
1997 hearing. Each child expressed no desire
to visit or see their mother. . . .
Defendant contends that since there is no record of the private
examination the court conducted with the minor children during
the 23 March 1998 hearing, no competent evidence existed to
support the finding. We disagree. When a court makes findingsof fact based on information obtained as a result of a private
examination of children conducted with the consent of the
parties, a party cannot complain about what the court learned
from speaking with the children. Horton v. Horton, 12 N.C. App.
526, 529, 183 S.E.2d 794, 796-97, cert. denied, 279 N.C. 727, 184
S.E.2d 884 (1971). Here, during the 23 March 1998 hearing, the
trial court conducted an in-chambers interview with each of the
minor children with the consent of both parties (unlike the 17
October 1997 in-chambers interview) and with the parties' counsel
present during the in-chambers interview.
Further, the trial court's findings were based not only on
evidence adduced at the 23 March 1998 hearing but also on
evidence presented at the 5 September 1997 hearing. See Raynor v.
Odom, 124 N.C. App. 724, 728, 478 S.E.2d 655, 657 (1996) (stating
that it is not improper for a trial court to take judicial
notice of earlier proceedings in the same cause). During the 5
September 1997 hearing, Linda Ingram, a therapist who evaluated
the Cox family, reported that the children did not like their
mother and that the children's feelings toward their mother were
very negative. During the 23 March 1998 hearing, a report
produced by Dr. Matthew Mendel, a child psychologist, also stated
that the children are not willing to participate in regular
visitation with their mother.
[6]In addition, the defendant complains that findings of
fact fifteen and seventeen which relate to future visitations are
not supported by competent evidence. We disagree.
Generally, findings of fact fifteen and seventeen state thatunsupervised visitation with defendant is not in the best
interest of the children and that visitation with defendant ought
to be under the supervision of Dr. Mendel. Here, there was ample
evidence to support the court's findings that supervision of
defendant's visitation was essential to the best interests of the
children. Reports from both Linda Ingram and Dr. Mendel support
the trial court's findings. This assignment of error is
overruled.
Defendant also argues that the evidence does not support
finding of fact number nineteen and that finding nineteen was
inappropriate in that the trial court was abrogating its
authority to determine child custody and visitation rights to
Dr. Mendel. We disagree.
Finding of fact nineteen states that
[i]t would be in the best interest of the
parties and the minor children if, after
continued therapy, a relationship of some
degree could be established between the
defendant and the minor children, although
this court determines that Dr. Mendel may
suspend or terminate counseling, treatment,
and supervised visitation if he determines
that the defendant is not progressing nor
working openly and honestly toward
improvement. This court should be notified of
such termination of counseling.
However, conclusion of law number two states that temporary
visitation should continue to be suspended but that with
counseling and therapy, supervised visitation in Dr. Mendel's
presence will be allowed.
It is in the best interest and materially
promotes the best interest of each of the
minor children that the defendant's temporary
visitation continue to be suspended and that
counseling and therapy be continued to allowsupervised visitation between the defendant
and the minor children in the presence of Dr.
Matthew Mendel.
Finding of fact nineteen clearly provides that it is in the best
interest of the children to establish a relationship with their
mother. However, based on competent evidence, the court
determined that visitation should be suspended and that through
counseling and therapy, supervised visitation was appropriate.
Accordingly, Dr. Mendel did not have the authority to end
defendant's visitation rights but did have the authority to
terminate defendant's counseling and treatment which included
supervised visitation with the minor children. Dr. Mendel was
required to notify the trial court when he suspended his
treatment of defendant. This assignment of error is overruled.
[7]Next we consider whether the trial court abused its
discretion in awarding plaintiff attorneys' fees in the 6 April
1998 order. Defendant argues that there is no disparity between
the parties' financial resources and the attorneys' fee award was
excessive. After careful review, we disagree.
Generally, an award of attorneys' fees will be stricken if
the award constitutes an abuse of discretion. Clark v. Clark, 301
N.C. 123, 136, 271 S.E.2d 58, 67 (1980). Attorneys' fees can be
properly awarded in custody, child support and alimony cases upon
adequate findings of fact that the moving party acted in good
faith and had insufficient means to defray the expense of the
suit. G.S. § 50-13.6; see Voshell v. Voshell, 68 N.C. App. 733,
736-37, 315 S.E.2d 763, 765 (1984). The trial court must also
make specific findings of fact concerning the lawyer's skill, thelawyer's hourly rate and the nature and scope of the legal
services rendered. In re Baby Boy Scearce, 81 N.C. App. 662, 663-
64, 345 S.E.2d 411, 413 (1986), disc. review denied, 318 N.C.
415, 349 S.E.2d 590 (1986). Whether these statutory requirements
are met is a question of law, reviewable on appeal. Taylor v.
Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996), reh'g denied,
343 N.C. 517, 472 S.E.2d 25 (1996). Disparity of financial
resources and the relative estates of the parties is not a
required consideration. Id. at 56, 468 S.E.2d at 37.
Here, the trial court made the necessary findings of fact.
We hold there was sufficient evidence to support those findings.
The trial court found and concluded that
[t]he plaintiff is an interested party acting
in good faith who has insufficient means with
which to defray the expense of this suit . .
. The defendant has the means and ability
with which to pay plaintiff's attorney's fees
from her earnings and her estate.
The court also determined that
the plaintiff's attorney has expended at
least 50 hours in this matter which should be
reimbursed. Plaintiff's attorney is a Board
Certified specialist in family law. He has
more than 20 years of experience in family
law matters. The rate of $150.00 per hour is
a reasonable rate considering the charges by
attorneys in the community and the several
affidavits received without objection into
evidence by this court.
Accordingly, the trial court's findings of fact supported its
conclusions of law. The trial court did not abuse its discretion
in awarding plaintiff attorneys' fees.
[8]Next we consider whether the trial court erred when it
entered an order on 4 June 1998 dismissing defendant's appeal ofthe 6 April 1998 temporary order for child support, attorneys'
fees and visitation. Defendant argues that the trial court erred
by denying her appeal of the 6 April order because the trial
court stated that defendant could not appeal from a temporary
order. Defendant argues that she should not be denied appellate
review because the trial court stated that an order was temporary
even though in reality it was permanent. After careful review,
we agree.
Ordinarily, a temporary child custody order is
interlocutory and 'does not affect any substantial right . . .
which cannot be protected by timely appeal from the trial court's
ultimate disposition of the entire controversy on the merits.'
Berkman v. Berkman, 106 N.C. App. 701, 702, 417 S.E.2d 831, 832
(1992) (quoting Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344
S.E.2d 806, 807 (1986)). An interlocutory order is one that
does not determine the issues, but directs some further
proceeding preliminary to a final decree. Dunlap v. Dunlap, 81
N.C. App. 675, 676, 344 S.E.2d 806, 807 (1986)(holding that an
appeal is premature where the order provided for temporary
custody pending a hearing date set five months later), disc.
review denied, 318 N.C. 505, 349 S.E.2d 859 (1986).
Here, all issues were resolved when the 6 April 1998 order
was entered. Issues of custody had been resolved as well as
child support, visitation, and attorneys' fees. In addition, the
trial judge stated that all his orders were temporary which in
effect denies parties appellate review. The trial judge stated:
Yes, I don't -- I don't regard them as
permanent. That's the reason I've -- do Iever give anybody permanent custody? No. And
so all my Orders are all temporary so they
can be adjusted to meet the needs of the
child.
The trial judge went on to say:
We know that I know this, you know this, all
my Orders are always temporary and I never
enter any final Orders. I just don't do it.
That's just -- that's the way it is. Now, you
have appealed from the Temporary Order. How
can you do that? State law -- State law says
you can't do it.
A mere designation of an order as temporary by a trial court is
not sufficient to make that order interlocutory and not
appealable. A clear and specific reconvening time must be set
out in the order and the time interval between the two hearings
must be reasonably brief. See Dunlap v. Dunlap, 81 N.C. App. 675,
676, 344 S.E.2d 806, 807 (1986)(holding that an appeal is
premature where the order provided for temporary custody pending
a hearing date set five months later), disc. review denied, 318
N.C. 505, 349 S.E.2d 859, (1986). The trial court's refusal to
enter a permanent order has deprived defendant of appellate
review and the refusal was error.
[9]Next we consider whether the trial court erred when it
held defendant in civil contempt on 15 May 1998 for defendant's
failure to pay the $7,500 in attorneys' fees set out in the 6
April 1998 order. Defendant argues that she filed an undertaking
pursuant to G.S. § 1-289 which stays the enforcement of the
attorneys' fees award in the 6 April 1998 order.
G.S. § 1-289 states that
[i]f the appeal is from a judgment directing
the payment of money, it does not stay the
execution of the judgment unless a writtenundertaking is executed on the part of the
appellant, by one or more sureties, to the
effect that if the judgment appealed from, or
any part thereof, is affirmed, or the appeal
is dismissed, the appellant will pay the
amount directed to be paid by the judgment. .
. .
G.S. 1-289 applies to awards of attorneys' fees. See Faught v.
Faught, 50 N.C. App. 635, 639, 274 S.E.2d 883, 886 (1981). Here,
defendant did not have a written undertaking executed by a
surety. Accordingly, the trial court did not err in holding
defendant in civil contempt for not paying plaintiff's attorneys'
fees as directed by the 6 April 1998 order.
[10]Finally we consider whether the trial court erred in
awarding plaintiff attorneys' fees in the amount of $875 at the
15 May civil contempt hearing. Defendant argues that the award
is not supported by the evidence and the award was excessive for
the time spent by counsel. After careful review, we disagree.
As we stated earlier, an award of attorneys' fees will be
stricken only if the award constitutes an abuse of discretion.
Clark v. Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67 (1980).
Attorneys' fees can be properly awarded in custody, child support
and alimony cases upon adequate findings of fact that the moving
party acted in good faith and had insufficient means to defray
the expense of the suit. G.S. § 50-13.6; see Voshell v. Voshell,
68 N.C. App. 733, 736-37, 315 S.E.2d 763, 765 (1984). The trial
court must also make specific findings of fact concerning the
lawyer's skill, the lawyer's hourly rate and the nature and scope
of the legal services rendered. In re Baby Boy Scearce, 81 N.C.
App. 662, 663-64, 345 S.E.2d 411, 413 (1986), disc. reviewdenied, 318 N.C. 415, 349 S.E.2d 590 (1986). Whether these
statutory requirements are met is a question of law, reviewable
on appeal. Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35
(1996), reh'g denied, 343 N.C. 517, 472 S.E.2d 25 (1996).
Here the trial court found that:
Stephen C. Woodard, Jr. has rendered valuable
legal services to the plaintiff in
representing him in this hearing and
plaintiff's counsel submitted affidavits
evidencing that he had expended eight (8)
hours of time in the preparation of pleadings
and the hearing of this matter. Plaintiff's
attorney is experienced in family law with
some twenty years of experience. He is a
board certified specialist in family law. The
normal and reasonable value of legal services
in this area for attorney of such experience
and expertise is at least $175 per hour. The
court determines that the services rendered
to the plaintiff by his attorney have a
reasonable value of at least $875.00 within
the discretion of this court.
The trial court further found that
[t]he plaintiff does not have sufficient
assets, nor means, with which to pay said
attorney's fees and the defendant has
sufficient income and assets to pay said
amount.
The trial court made the appropriate findings and conclusions of
law. Accordingly, the trial court did not err is awarding
plaintiff attorneys' fees. This assignment of error is
overruled.
In summary, as to COA98-769, we reverse the 4 November 1997
civil contempt order. As to COA98-1165 we affirm the trial
court's 6 April 1998 decision to order supervised visitation, and
award attorneys' fees and we affirm the trial court's 15 May 1998
civil contempt order; however, we hold that the trial court erredin dismissing defendant's appeal of the temporary child support,
attorneys' fees and visitation order filed 6 April 1998.
Affirmed in part, reversed in part.
Judges JOHN and EDMUNDS concur.
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