An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1047


Filed: 02 September 2003


v .                         Durham County
                            No. 88 CVD 3603

    Appeal by defendant from orders entered 29 June 2001 by Judge Kenneth C. Titus and 5 December 2001 by Judge Ann E. McKown in Durham County District Court. Heard in the Court of Appeals 18 August 2003.

    Frasier & Alston, PA, by Karen Frasier Alston, for plaintiff- appellee.

    Berman & Associates, by Gary K. Berman, for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Ray George, appeals two orders finding him in civil contempt of court and ordering him to pay attorney fees. For the reasons discussed herein, we dismiss in part and reverse and remand in part.
    Plaintiff, Ann George, and defendant were married in May of 1972 in Atlanta, Georgia. No children were born to the parties. However, they adopted one child, Alexia Ann George, born 8 July 1982, in February 1983. Plaintiff and defendant separated in October 1988. On 5 May 1992, a consent judgment and order was entered. The consent order stated, inter alia, that: (1) plaintiff had custody of Alexia, with defendant having liberal visitation rights; (2) defendant was to pay $600 per month in child support; and (3) plaintiff and defendant must share equally the expenses of Alexia attending college.
    On 15 December 2000, plaintiff filed a motion to show cause alleging that defendant had refused to pay his share of Alexia's college expenses in accordance with the consent order. On 29 June 2001, the trial court found defendant in civil contempt for willfully and without justification refusing to pay his share of Alexia's college expenditures as required by the consent order. The trial court ordered defendant to pay $8,850 for his share of Alexia's college expenses incurred through the date of the order to plaintiff in monthly installments of $250 per month until the amount was satisfied. On 5 December 2001, the trial court ordered defendant to pay plaintiff's attorney fees in the amount of $1,000. Defendant appeals both orders.
    In his first assignment of error, defendant argues that the trial court erred by finding defendant to be in contempt of court. However, defendant's appeal as to the 29 June 2001 order was nottimely filed. The requirement of timely notice of appeal is jurisdictional and an untimely attempt to appeal must be dismissed. L. Harvey & Son Co. v. Shivar, 83 N.C. App. 673, 351 S.E.2d 335 (1987); N.C.R. App. P. 3. Therefore, we dismiss defendant's first assignment of error.
    In his second assignment of error, defendant argues that the trial court erred by allowing plaintiff's motion for attorney fees. We agree.
    North Carolina law generally does not allow for attorney fees as an item of costs absent express statutory authority. United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 188, 196 S.E.2d 598, 602, cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973). However, in civil contempt actions, this Court has upheld an award of attorney fees in child support actions, and specifically in cases where the terms of a consent order provide for the support of a child beyond the age of eighteen. Smith v. Smith, 121 N.C. App. 334, 465 S.E.2d 52 (1996); Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194 (1971).
    Before awarding attorney fees in an action for child support, the trial court must find that the interested party was: (1) acting in good faith; and (2) has insufficient means to defray the expense of the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980). To support an award of attorney fees, the trial court mustmake findings as to the lawyer's skill, the reasonableness of the hourly rate in comparison with that of other lawyers, and the nature of the services. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390, 285 S.E.2d 831 (1981); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61 (1999).
    The trial court's order in the instant case is devoid of any findings of fact or conclusions of law concerning the reasonableness of services rendered, the hours spent or an hourly rate. The order mentions an “Affidavit of Reasonable Attorneys' Fees,” which is not included in the record on appeal. Therefore, we hold that the trial court's order does not contain sufficient findings of fact or conclusions of law to support the amount of attorney fees awarded. We reverse and remand this issue for findings consistent with this opinion.
    Chief Judge EAGLES and Judge TYSON concur.
    Report per Rule 30(e).

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