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The trial court did not err by denying defendant's request for counsel fees under
N.C.G.S. § 50-16.4 in a domestic proceeding where she was represented pro bono. Payment of
fees to her counsel would not have been for her benefit.
Justice Newby dissenting.
Justice Patricia Timmons-Goodson joins in this dissenting opinion.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 175 N.C. App. 320, 623 S.E.2d 322 (2006), affirming an order denying defendant's claim for counsel fees entered on 6 January 2004 by Judge Anne B. Salisbury in District Court, Wake County. Heard in the Supreme Court 12 September 2006.
Oliver & Oliver, PLLC, by John M. Oliver, for plaintiff-appellee.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendant-appellant.
Legal Aid of North Carolina, Inc., by Celia Pistolis, and Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., for Legal Aid of North Carolina, the North Carolina Justice Center, Legal Services of Southern Piedmont, Legal Aid Society of Northwest North Carolina, Carolina Legal Assistance, and the North Carolina Association of Women Attorneys, amici curiae.
Maupin Taylor, P.A., by John I. Mabe, Jr., for North Carolina Bar Association, amicus curiae.
In enacting N.C.G.S. § 50-16.4, the General Assembly provided:
At any time that a dependent spouse would be entitled to alimony pursuant to G.S.50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.
N.C.G.S. § 50-16.4 (2005) (emphasis added). Because any counsel fees ordered paid to defendant's pro bono counsel would not be for the benefit of defendant, we hold she was not entitled to counsel fees pursuant to N.C.G.S. § 50-16.4. Accordingly, we affirm the decision of the Court of Appeals.
Justice NEWBY dissenting.
As a prerequisite to an award of attorney's fees under
N.C.G.S. § 50-16.4, the majority determines the statutory
language for the benefit of such spouse requires the dependent
spouse to have a personal financial obligation to her attorney.
Since I am not convinced the General Assembly intended this
result, I respectfully dissent.
The General Assembly enacted N.C.G.S. § 50-16.4 with the goal of enabl[ing] the dependent spouse, as litigant, to meet the supporting spouse, as litigant, on substantially even terms by making it possible for the dependent spouse to employ adequate counsel. Hudson v. Hudson, 299 N.C. 465, 473, 263 S.E.2d 719, 724 (1980). The statute, which furthers the legislature's purpose by authorizing fee-shifting in appropriate circumstances, reads:
At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.
N.C.G.S. § 50-16.4 (2005) (emphasis added).
Indisputably, defendant meets the threshold requirements of being a dependent spouse with inadequate financial means. See Hudson, 299 N.C. at 473, 263 S.E.2d at 724. The only question is whether the trial court may award reasonable fees when the attorney is providing pro bono services.
Finding the statute to be clear and unambiguous, the majority effectively holds N.C.G.S. § 50-16.4 sanctions fee shifting only when a dependent spouse is financially obligated to counsel and will receive a direct pecuniary benefit from the award. I believe this restrictive reading imposes a requirement not anticipated by the legislature. Under this approach, even attorney's fees paid by a friend or family member would not form the basis of an award, because the dependent spouse would not directly benefit from payment of the attorney.
Yet, the phrase for the benefit of such spouse could be read in other ways. A more natural reading is that the phrase for the benefit of is synonymous with on behalf of. Hence, I believe the General Assembly employed the phrase as it is often used in reference to payments made to third parties on behalf of or for the benefit of others. See generally William C. Burton, Legal Thesaurus 572-73 (2d ed. 1992) (listing behalf, accommodate, and advantage, among others, as synonymous with benefit). Given this reading, for the benefit of simply indicates the legislature's decision to allow attorney's fees to be paid directly to counsel, a non-party, on behalf of the dependent spouse. This interpretation is consistent with the portion of N.C.G.S. § 50-16.4 that allows for collection ofattorney's fees in the same manner as alimony by the non-party attorney. Id. § 50-16.4. (See footnote 1)
Likewise, a broader reading of the term benefit is warranted because a pecuniary benefit is but one of many possible benefits. See generally Black's Law Dictionary 166-67 (8th ed. 2004) (defining benefit as an [a]dvantage; privilege and providing definitions for six different types of benefits including pecuniary benefit). As part of the vast group of North Carolinians who cannot afford legal representation, see generally N.C. Legal Servs. Planning Council, North Carolina Statewide Legal Needs Assessment (2003), available at http://www.lri.lsc.gov, defendant derives direct benefit from fee-shifting statutes that increase the amount of pro bono representation in the market. Moreover, defendant, who may again find herself in need of legal representation, has developed an attorney-client relationship with her pro bono counsel. Allowing an award in this case may permit the relationship to continue for subsequent litigation involving matters such as collections, child custody, or unrelated issues.
Fee awards to pro bono counsel also benefit dependent spouses by allowing attorneys rather than dependent spouses to assume the risk that fees will not be awarded. The lawyer can retain the possibility of payment under the statute, whilerelieving the dependent spouse of the additional stress of potential responsibility for legal bills. In addition, a dependent spouse may not wish to receive charity and may sense a moral obligation to repay the attorney. The fee award would free the spouse of this concern. Thus, even when the attorney does not undertake additional pro bono representation, the dependent spouse receives a benefit.
This disparity of interpretation is understandable in view of the different definitions of benefit. See The American Heritage Dictionary of the English Language 123 (William Morris ed., New College ed. 1979). The majority embraces the concept of [a] payment or series of payments to one in need. Id. (definition 3). I prefer the broader definition: Anything that promotes or enhances well-being; advantage. Id. (definition 1).
At best the statute is ambiguous whether for the benefit of requires the dependent spouse to receive a direct pecuniary benefit, demands only that the dependent spouse be advantaged, or merely indicates that payments can be made directly to counsel. [W]here a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990). Additionally, if a statute is remedial in nature, seeking to advance the remedy and repress the evil, it must be liberally construed to effectuate the intent of the legislature. DiDonato v. Wortman, 320 N.C. 423, 430 n.2, 358 S.E.2d 489, 493 n.2 (1987) (citation and internal quotation marks omitted). On the one hand, determining that the phrase sanctions payments directly to pro bono counsel permits attorneys to accept additional pro bono work, furthering the legislative purpose by enabling more dependent spouses to meet their supporting spouses on equal footing in litigation. On the other hand, concluding that the phrase requires that the award provide a direct pecuniary benefit to the dependent spouse hinders the legislature's goal by limiting the amount of work that will originally be taken on a pro bono basis.
Certainly, public policy considerations weigh in favor of such awards. Without the threat of fee-shifting, supporting spouses have less incentive to settle cases in which their spouses are represented by pro bono counsel. Supporting spouses will also be tempted to provide dependent spouses with little or no support before litigation, because a destitute spouse is more likely to face a choice of pro bono counsel or no counsel at all, with either option benefitting the supporting spouse.
In its brief to this Court, amicus curiae contends there is a direct link between the urgent need to provide people of modest means with access to the civil justice system and statutes such as [N.C.G.S.] § 50-16.4, which are designed not just to level the playing field[, but to] open the gates to the field. I agree. Unfortunately, our decision today will reduce the availability of legal counsel to dependent spouses, effectively closing the gates. Because N.C.G.S. § 50-16.4 does not preclude benefitting dependent spouses by providing fee awards to pro bono counsel, neither should we. Justice TIMMONS-GOODSON joins in this dissenting opinion.
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