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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 04 December 2007
EINAT METZKOR COTTER
v. Durham County
No. 05 CVD 4863
Appeal by defendant from judgment entered 20 November 2006 by
Judge Craig B. Brown in Durham County District Court. Heard in the
Court of Appeals 11 October 2007.
No brief filed by plaintiff-appellee.
The Williams Law Group, PC by T. Miles Williams, for
When the trial court considered defendant's objections to the
award of attorney's fees, defendant received adequate opportunity
to be heard on the matter, and a formal hearing was not required.
It was error for the court to consider an unverified letter in
awarding attorney's fees to plaintiff's Israeli counsel. An
affidavit is appropriate evidence which may be used by the trial
court to establish a reasonable amount of attorney's fees.
I. Factual Background
Einat Metzkor Cotter (plaintiff) and Gad Cotter
(defendant) were married in Israel on 12 June 1997. One child
was born of the marriage on 30 November 1997. Plaintiff and
defendant were divorced on 8 April 1999 in the Family Court of TelAviv. Plaintiff and defendant entered into an agreement, which was
made part of the divorce judgment (the Israeli order). The
Israeli order provided, inter alia, for child support and a
division of personal property.
On 23 September 2005, plaintiff filed a complaint in Durham
County District Court requesting the court to:
(1) Register the. . . Israeli order for child
support and property/support payments;
(2) Award the plaintiff reasonable attorney's
fees in connection with enforcement of
(3) Order the Defendant to pay all costs,
including reasonable attorney's fees, for
the prosecution of this action;
(4) Determine that the Israeli order is
entitled to comity and enforce that
order, awarding past due child support
arrears to the Plaintiff and the sum of
$80,000 to Plaintiff;
(5) Find the Defendant in willful criminal
and/or civil contempt. . . for his
failure to. . . pay child support. . .
On 2 December 2005 plaintiff filed a notice of registration of
the Israeli order pursuant to Article 18 of Chapter 1C of the North
Carolina General Statutes. Plaintiff subsequently filed a motion
for summary judgment. After the 22 February 2006 hearing, the
Honorable Craig B. Brown granted plaintiff's motion for summary
judgment, recognizing the Israeli order and holding that it was
enforceable in the courts of North Carolina. The trial court
further ordered that plaintiff have and recover of defendant the
sum of $80,000, and entered judgment in that amount againstdefendant. On 8 March 2006 plaintiff filed a motion that defendant
be held in contempt for failure to make child support payments, and
this motion included a request for attorney's fees. The matter was
heard on 11 September 2006, and the court found defendant to be in
civil contempt. The contempt order entered on 25 September 2006
held that: Counsel for Plaintiff is awarded reasonable attorney's
fees and costs and shall submit an affidavit for same.
Plaintiff's attorney submitted an attorney's fees affidavit to
Judge Brown on 23 October 2006, a copy of which was sent to
defendant's counsel. On 16 November 2006, counsel for defendant
sent a letter to Judge Brown stating his objections to the
affidavit. An order awarding attorney's fees was entered on 20
November 2006. Defendant appeals.
II. Notice and Opportunity to be Heard
In his first argument, defendant contends that the trial court
erred in ordering the payment of attorney's fees to plaintiff's
counsel without giving defendant notice and an opportunity to be
heard on the matter. We disagree.
Defendant relies on Allen v. Allen, 65 N.C. App. 86, 308
S.E.2d 656 (1983) to support his contention that, in the absence of
a formal hearing on the matter, an award of attorney's fees must be
vacated. In Allen, the trial court entered a custody order
awarding custody of the child to defendant. The court order
indicated that plaintiff would be responsible for paying
defendant's attorney's fees, but that. . . the Court will withhold
ruling as to the amount of attorney fees at this time and shallrule on the attorney fees at such time as the plaintiff is brought
before the Court. Subsequently, the court entered an ex parte
judgment and directed plaintiff to pay fees and expenses of
defendant's counsel, the amount of which was based on an affidavit
provided by defendant's counsel. A copy of the affidavit was not
furnished to plaintiff's counsel.
On appeal, this Court vacated the judgment of attorney's fees,
emphasizing that it was not entered in accord with the provisions
of the consent order. Further, we noted that G.S. 50-13.6,
plainly states. . . plaintiff was entitled to have the
determination made in the usual way judicial determinations are
made -- in court, before both parties, with each having the
opportunity to present information and their views with respect to
it and that $16,000 is a substantial matter legally to any
litigant. Finally, this Court held that, even if the custody
order had been binding with respect to attorney's fees, the order
only applied to services rendered up to the time the custody order
was entered, and did not apply to future services.
The instant case is distinguishable from Allen. First, the
attorney's fees in this case were awarded pursuant to a contempt
hearing, not a child custody hearing. Our jurisprudence expressly
provides that the contempt power of the trial court includes the
authority to require the payment of reasonable attorney's fees to
opposing counsel as a condition to being purged of contempt for
failure to comply with a child support order. Blair v. Blair, 8
N.C. App. 61, 63, 173 S.E.2d 513, 514 (1970). The contempt orderentered by the trial court expressly provided that plaintiff was
awarded reasonable attorney's fees. We hold that the award of
attorney's fees included in the court's contempt order is proper.
Second, in contrast to Allen, the court's contempt order made
no mention of a future hearing on the matter of attorney's fees,
but instead instructed counsel for plaintiff, Nancy Gordon
(Gordon), to submit an affidavit for her fees. Gordon submitted a
verified affidavit of attorney's fees to the court, including 10.60
hours of Gordon's time at $250.00 per hour, and 3 hours of Gordon's
legal assistant's time at $75.00 per hour. A copy of the affidavit
was faxed to defendant's attorney and receipt of the affidavit was
acknowledged by defendant's counsel in his 16 November 2006 letter.
All of the work performed by Gordon was prior to the contempt
Upon receipt of Gordon's affidavit, defendant's attorney
submitted a letter to Judge Brown, objecting to the entry of an
award of attorney's fees on the grounds that:
(1) Ms. Gordon's affidavit includes time by
the Plaintiff's Israeli attorney who
submitted an unverified letter detailing
his fees. . . .
(2) Ms. Gordon's affidavit includes time for
her legal assistant Donna Henry of 3
hours on the day of the hearing that I
believe was an unnecessary expense and
ask that this fee not be
considered. . . .
(3) I am requesting that any attorney's fees
awarded be included in the arrearage
amount and satisfied under the
installment payment established in the
Counsel for defendant did not explicitly request a hearing, but
instead stated he would be available for a conference or hearing
on this matter.
In its order awarding attorney's fees, the court awarded
Gordon $1,900.00, based upon 7.6 hours of her time at $250.00 per
hour. The court awarded Gordon $37.50 for one half hour of her
legal assistant's time. The court awarded $3,944.00 for
plaintiff's Israeli attorney fees and $547.80 in costs.
We hold that defendant was given an adequate opportunity to be
heard and present his views in this matter. The court did not
merely award the amount Gordon requested in attorney's fees, but
instead reduced the amount she received by nearly thirty percent.
Further, the court reduced the amount awarded to Gordon's legal
assistant by nearly eighty-five percent. As one of defendant's
objections to the award of attorney's fees was that the amount
requested for Gordon's legal assistant was unreasonable, the
court's drastic reduction in this amount awarded is evidence of the
court's consideration of defendant's objection.
We further note that defendant has failed to demonstrate any
prejudice he suffered in the absence of a formal hearing, and has
made no showing of how his argument at a formal hearing would have
differed from the objections contained in his letter to Judge
This argument is without merit.
III. Letter from Clifford Entes
In his second argument, defendant contends that the trial
court erred in awarding plaintiff attorney's fees for the work done
by her Israeli attorney, Clifford Entes (Entes). Defendant
contends that the court's findings of reasonableness of Entes' fees
are not supported by the evidence. We agree.
In the order awarding attorney's fees, the trial court
directed that [c]ounsel for Plaintiff is awarded reasonable
attorney's fees and costs and shall submit an affidavit for same.
An affidavit is defined as an oath or affirmation reduced to
writing, sworn or affirmed to before some officer who has authority
to administer it. Alford v. McCormac, 90 N.C. 151, 152, 1884 N.C.
LEXIS 183 (1884) (citation omitted).
Gordon submitted an affidavit regarding the services she
provided to plaintiff, including her hourly rate, her skill and
experience, the reasonableness of her services compared with fees
customarily charged in her area for similar services, and the
number of hours she spent working on plaintiff's contempt case.
Attached to Gordon's affidavit was an exhibit detailing the exact
dates, hours, and costs she incurred. Gordon also attached a
letter from Entes which detailed the work he did for plaintiff in
Israel. Entes' letter was not verified. Thus, it was not an
affidavit, which was required by the court's prior order. We hold
the court erred in considering Entes' letter and awarding fees
based thereon. The portion of the judgment awarding attorney'sfees to Entes is vacated and remanded to the trial court for
IV. Affidavit of Nancy Gordon
In his final argument, defendant contends that the trial court
erred in considering Gordon's verified affidavit in making its
award of attorney's fees and costs. Defendant contends that such
affidavit was not introduced into evidence at a hearing and was not
properly before the court. We disagree.
We first note defendant cites no authority for his contention
that a court may not consider an affidavit in awarding attorney's
fees. For this reason, this assignment of error is deemed
abandoned. N.C. R. App. P. 28(b)(5).
defendant has preserved this argument for
review, in the instant case, the trial court's contempt order
directed Gordon to submit an affidavit regarding her fees. In
awarding attorney's fees, it is proper for the court to consider
affidavits to determine the amount of the award. See Hillman v.
United States Liability Ins. Co.
, 59 N.C. App. 145, 155, 296 S.E.2d
302, 309 (1982); Cox v. Cox
, 133 N.C. App. 221, 234, 515 S.E.2d 61,
70 (1999); Middleton v. Middleton
, 159 N.C. App. 224, 227, 583
S.E.2d 48, 49 (2003). As discussed above, a formal hearing was not
required, and defendant had an adequate opportunity to be heard on
the matter. We hold that the court properly considered Gordon's
affidavit in awarding attorney's fees to plaintiff. This argument
is without merit. Except as otherwise provided herein, the scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal in accordance with this Rule 10.
N.C. R. App. P. 10(a) (2007). Defendant makes arguments in his
brief regarding the court's findings in the order awarding
attorney's fees. However, defendant does not assign as error these
findings, and they will not be heard on appeal.
AFFIRMED in part, REVERSED and REMANDED in part.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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