JOYCE B. BELCHER,
Plaintiff
v
.
Wilson County
No. 80 CVD 714
H. ALAN AVERETTE,
Defendant
Farris and Farris, P.A., by Robert A. Farris, Jr. and William
M.J. Farris, for plaintiff-appellee.
Lederer & Associates, P.A., by Mary-Ann Leon and William M.
Lederer, for defendant-appellant.
WALKER, Judge.
Plaintiff and defendant were divorced in 1978. In 1998,
plaintiff filed a motion in the cause to enforce defendant's child
support obligations, which were embodied in a consent decree. At
the time of the filing, the children had reached the age of
majority, and plaintiff, on behalf of the children, was attempting
to collect arrearages from defendant. Defendant was found to be in
contempt of the consent decree, and he subsequently appealed the
contempt order. This Court affirmed the contempt order in Belcher
v. Averette, 136 N.C. App. 803, 526 S.E.2d 663 (2000) (Belcher I).
Plaintiff's counsel filed a motion for attorney's fees before
the trial court pursuant to N.C. Gen. Stat. § 50-13.6 (2001).
Plaintiff's counsel also filed a supplemental motion for the awardof plaintiff's attorney's fees to be added to the contempt order
pursuant to Rule 60(a) of the North Carolina Rules of Civil
Procedure. Defendant filed a motion to compel discovery of
information allegedly relevant to plaintiff's ability to pay her
attorney's fees.
The trial court found “this Court specifically finds pursuant
to N.C.G.S. § 50-13.6 that the Defendant refused to provide
support, and that this action, being brought on behalf of the minor
children was brought in good faith and the minor children had
insufficient means to defray the expenses of the suit[.]” It
further found that $6,000.00 was a reasonable amount for attorney's
fees under the circumstances. The trial court granted plaintiff's
motion for attorney's fees. It also found “Defendant's Objections
and Motions are not in order and are overruled” and denied
defendant's motions to compel discovery.
On appeal, defendant first contends that the trial court erred
in awarding attorney's fees pursuant to Rule 60(a) of the North
Carolina Rules of Civil Procedure. As the order of the trial court
clearly states that the award of attorney's fees was pursuant to
N.C. Gen. Stat. § 50-13.6 and it does not address the Rule 60(a)
motion, we overrule this assignment of error.
Defendant next contends that the trial court made insufficient
findings of fact for the award of attorney's fees under N.C. Gen.
Stat. § 50-13.6. The trial court is granted considerable
discretion in allowing or disallowing attorney's fees in child
support cases. Brandon v. Brandon, 10 N.C. App. 457, 463, 179S.E.2d 177, 181 (1971). Generally, an award will only be stricken
if the award constitutes an abuse of discretion. Clark v. Clark,
301 N.C. 123, 136, 271 S.E.2d 58, 68 (1980). N.C. Gen. Stat. § 50-
13.6 states:
In an action or proceeding for the custody or
support, or both, of a minor child, including
a motion in the cause for the modification or
revocation of an existing order for custody or
support, or both, 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.
An award of attorney's fees is proper in a contempt proceeding for
willful failure to pay child support. See Reynolds v. Reynolds,
147 N.C. App. 566, 574-75, 557 S.E.2d 126, 131-32 (2001), disc.
rev. denied, 355 N.C. 493, 563 S.E.2d 567 (2002). Our Courts have
held that, to support a claim for child support, there must be an
interested party, acting in good faith, with insufficient means to
defray the expenses. Hudson v. Hudson, 299 N.C. 465, 472, 263
S.E.2d 719, 723 (1980). A party has insufficient means to defray
the expenses 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.” Id. at 474, 263 S.E.2d at 725. If the action is for child support alone, there must be an
additional finding 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
proceeding.” Id. at 472-73, 263 S.E.2d at 724.
Here, the trial court found that defendant refused to provide
support, that the claim was being brought on behalf of the children
in good faith, and that the children had insufficient means to
defray the cost of litigation. Defendant does not assign error to
any of these findings. Defendant's claim is based upon the fact
that there was no finding that plaintiff was an interested party
with insufficient means to defray the cost of litigation.
Before ruling on the motion, the trial court stated that it
acted “after hearing from Counsel for the parties and reviewing the
file and evidence in the cause[.]” The order notes the action is
brought on behalf of the minor children. Child support by
definition is for the benefit of the minor children, see N.C. Gen.
Stat. § 50-13.4(c), and the children, even upon attaining their
majority, ordinarily would not have sufficient funds to sue for
past due support. Further, plaintiff is an interested party as
defined by N.C. Gen. Stat. § 50-13.6, as she has provided the
financial support in the absence of defendant. Thus, no further
finding on that issue should be required as it was settled in
Belcher I.
The trial court had before it Belcher I when it determined
that plaintiff, on behalf of the children, had been deprived of$21,900.00 in child support which she had to provide. After a
careful review of the record, we find that the trial court made
sufficient findings to support its award of attorney's fees.
Defendant next contends that the trial court erred in denying
defendant's motion to compel discovery. Whether or not to grant a
party's motion to compel discovery is in the sound discretion of
the trial court and will not be disturbed absent an abuse of
discretion. Wagoner v. Elkin City Schools' Bd. of Education, 113
N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. rev. denied, 336
N.C. 615, 447 S.E.2d 414 (1994).
Here, defendant requested and plaintiff responded as follows:
1. All written contracts and agreements of
attorney fees for counsel to the Plaintiff.
None
2. All copies of cancelled checks and receipts of
monies paid by Plaintiff for attorney fees to
counsel for the Plaintiff since the filing of
this action.
None
3. Copies of Plaintiff's tax returns for the
previous three years prior to this year.
n/a Plaintiff objects, since her ability to pay is
not at issue.
4. Copies of any and all financial statements
given to any bank, firm, person or corporation
for the last five (5) years.
n/a Plaintiff objects, since her ability to pay is
not at issue.
5. All copies of cancelled checks drawn on
NationsBank or any other bank that Plaintiff
has had business with for payment of Health
Insurance by the Plaintiff for her children
for the last twenty (20) years.
n/a Heath [sic] insurance is not an issue.
6. All copies of records showing health insurance
coverage from Blue Cross Blue Shield Health
Insurance carried by the Plaintiff for her
children for the last twenty (20) years.
n/a Heath [sic] insurance is not an issue.
7. Any document(s) which supports any factual
basis for each and every allegation of
attorney fees and health insurance coverage on
the children contained in Plaintiff's
Complaint.
n/a Health insurance is not an issue.
As can be seen, requests 1 and 2 deal with proof that plaintiff had
previously paid her attorney. This is irrelevant as there is no
requirement that the fee be first paid by plaintiff before seeking
an award pursuant to the statute. The final three requests all
deal with issues involving health insurance, none of which bears on
the issue at hand. Thus, only two requests bear on plaintiff's
financial ability and those deal with tax returns and financial
statements for the past three and five years respectively.
The trial court could have concluded that such a request was
overly broad, burdensome and oppressive, given the narrow scope of
the issue before the trial court and the substantial arrearages
previously upheld by this Court. Denials of overly broad and
burdensome requests are routinely upheld. See, e.g., Williams v.
State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905
(1984). Thus, the trial court did not abuse its discretion in
denying defendant's motions to compel discovery. Defendant finally contends the trial court failed to make
proper findings regarding the reasonableness of the attorney's
fees. To award attorney's fees, the trial court must consider the
time and labor expended, the skill required, the customary fee for
like work, and the experience or ability of the attorney. United
Laboratories, Inc. v. Kuykendall, 102 N.C. App. 484, 494, 403
S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993).
Here, after reviewing the record and hearing evidence and
arguments of counsel, the trial court found the following in part:
[T]he sum of $6,000.00, pursuant to the
Affidavit by Plaintiff's Counsel as to fees
and costs incurred, is reasonable under the
circumstances of this case, considering the
subsequent Appeal by Defendant resulting in
the affirmation of the original Order secured
by Plaintiff's Counsel on behalf [of] the
minor children, as well as the original
Hearing hereon, the usual and customary rates
and charges, hourly rate, time spent and
efforts expended by Counsel for Plaintiff as
reflected in his Affidavit[.]
After a careful review of the record and the order, we find that
the trial court made sufficient findings regarding the
reasonableness of the attorney's fees and its consideration of the
relevant factors.
In conclusion, we find the trial court did not err in granting
plaintiff's motion for attorney's fees. Further, the trial court
did not err in denying defendant's motion to compel discovery.
Affirmed.
Judge McCULLOUGH concurs.
Judge BRYANT dissents.
Judge BRYANT, dissenting:
I respectfully dissent from those portions of the majority
opinion which affirm the award of attorney's fees and the trial
court's denial of discovery.
N.C.G.S. § 50-13.6 clearly states that "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." It must be determined whether
plaintiff, as the interested party in this matter, had insufficient
means to defray the expense of suit, not the minor children. See
Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996) (stating that
defendant was an interested party acting in good faith and evidence
existed that she could defray the costs of litigation); Reynolds v.
Reynolds, 147 N.C. App. 566, 557 S.E.2d 126 (2001) (stating that
plaintiff, as an interested party, acted in good faith and did not
have the means to defray the costs of suit); Thomas v. Thomas, 134
N.C. App. 591, 518 S.E.2d 513 (1999) (noting that the trial court
failed to make findings as to whether mother, as the interested
party, acted in good faith and could defray expenses of
litigation); Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113
(1998) (stating that defendant in the proceedings was an interested
party acting in good faith, who could not defray the expenses of
suit without impoverishing herself); Lawrence v. Tise, 107 N.C.
App. 140, 419 S.E.2d 176 (1992) (stating that mother was an
interested party acting in good faith). The majority states that plaintiff provided financial support
for the children in the absence of defendant. The majority states
that plaintiff was deprived of $21,900.00 in child support. In
addition, the majority states that children, even upon attaining
the age of majority, would not have sufficient means to bring suit
for past due child support. Based on the above stated facts, the
majority concluded that "the trial court made sufficient findings
to support its award of attorney's fees." I disagree.
It may be correct, as the majority alludes, that in a case
involving child support or custody issues, a parent is technically
acting on behalf of or in the interests of her minor children.
However, I find it inconceivable that our legislators intended the
courts to consider the minor children's ability to bear the expense
of suit (instead of focusing on the parent's ability to bear the
expense of suit when the parent is the party seeking enforcement of
the underlying child support order). See, e.g., Van Every v.
McGuire, 348 N.C. 58, 62, 497 S.E.2d 689, 691 (1998) (stating that
when determining a party's entitlement to an award of attorney's
fees in child custody dispute, "if [the] trial court finds from the
evidence that [the party] has sufficient means to defray the
expense of the suit, then [the party's] request for attorney's fees
shall be denied"); Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d
33, 35 (1996) ("[B]efore attorney's fees can be taxed in an action
for custody or in [an] action for custody and support, . . . the
party seeking the award" of attorney's fees must both allege and
prove that party is an interested party acting in good faith andthat party has insufficient means to defray the expense of suit).
It is uncontroverted that defendant was found to be in
contempt of a child support order, with arrears totaling
$21,900.00. Moreover, it is undisputed that plaintiff provided
care and support for the children in the absence of support from
defendant. However, these facts do not lend themselves to the
direct conclusion that plaintiff, as the interested party bringing
this action in good faith, was of insufficient means to defray the
expense of suit. The statutorily required findings of N.C.G.S. §
50-13.6 cannot be circumvented in the manner in which the majority
reasons.
The trial court failed to make findings regarding plaintiff's
ability to defray the expense of suit. I would therefore reverse
the trial court's decision as to this issue and remand for findings
as to plaintiff's ability to defray the expense of suit.
In addition, I would reverse the trial court's denial of
defendant's motion to compel discovery of information relevant to
plaintiff's financial ability to pay her attorney's fees.
In North Carolina, a party may obtain discovery of any
unprivileged information, as long as that information is relevant
to the pending action and is reasonably calculated to lead to the
discovery of admissible evidence. N.C.R. Civ. P. 26(b)(1).
Whether or not to grant a party's motion to compel discovery
resides in the sound discretion of the trial court, and will not be
disturbed absent abuse of that discretion. See Wagoner v. ElkinCity Schools' Bd. of Education, 113 N.C. App. 579, 585, 440 S.E.2d
119, 123 (1994).
As noted above, I believe that the trial court committed error
in failing to make findings concerning plaintiff's financial
ability to pay her attorney's fees. The information defendant
sought to discover was both relevant to and reasonably calculated
to reveal evidence admissible as to the issue of plaintiff's
financial ability to pay her attorney's fees. Defendant having
satisfied the requirements enunciated in N.C.R. Civ. P. 26(b)(1),
I believe that the trial court committed error amounting to an
abuse of discretion in failing to grant defendant's motion to
compel discovery of information relevant to plaintiff's ability to
pay her attorney's fees.
For the reasons set forth herein, I would reverse and remand
to the trial court to make findings in accordance with N.C.G.S. §
50-13.6. Specifically, the trial court should be ordered to make
findings regarding whether plaintiff has insufficient means to
defray the expense of the suit. In addition, I would reverse the
trial court's denial of defendant's motion to compel discovery.
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