Owensby v. Owensby , 312 N.C. 473 ( 1984 )

322 S.E.2d 772 (1984)

Ernest Earl OWENSBY
v.
Elizabeth Upton OWENSBY.

No. 320A84.

Supreme Court of North Carolina.

December 4, 1984.

Hamrick, Mauney, Flowers, Martin & Deaton by Fred A. Flowers, Shelby, for plaintiff-appellant.

Murchison, Guthrie & Davis by Dennis L. Guthrie and K. Neal Davis, Charlotte, for defendant-appellee.

BRANCH, Chief Justice.

The sole question presented for our review in this appeal is whether the trial court abused its discretion in its award of a total of $6,750 in attorneys' fees to defendant's attorneys for legal services rendered on her behalf. Without ruling upon the reasonableness of the award, we remand the case to the trial court for further findings of fact.

The purpose of allowing counsel fees for a dependent spouse in a divorce and alimony action is to enable the spouse, as litigant, to meet the supporting spouse, as litigant, on substantially even terms, making it possible for the dependent spouse to employ adequate and suitable legal representation. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980). Before granting an award of attorneys' fees, the trial court must determine, as a matter of law, that the spouse seeking the award is dependent, and that the spouse is without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses. Id. Where attorneys' fees are properly awarded, the amount of the award rests within the discretion of the trial court and is reviewable on appeal only for an abuse of discretion. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).

In determining the proper amount of counsel fees to be awarded, the trial court should not end its inquiry with a determination of each party's estate and how much is available to defray costs of litigation. Id.; Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967). As we stated in Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949):

There are so many elements to be considered in an allowance of this kind;—the nature and worth of the services; the magnitude of the task imposed; reasonable consideration for the defendant's condition and financial circumstances;— these and many other considerations are involved. On this appeal the question before us is not whether the award may not have been larger than that anticipated or even usual in cases of that kind; but whether in consideration of the circumstances under which it was made it was so unreasonable as to constitute an abuse of discretion.

Id. at 321, 52 S.E.2d at 901. Furthermore, the court must make findings of fact as to the nature and scope of legal services rendered, the skill and the time required upon which a determination of reasonableness of the fees can be based. See Brown v. Brown, 47 N.C.App. 323, 267 S.E.2d 345 (1980); Blair v. Blair, 44 N.C.App. 605, 261 S.E.2d 301 (1980); Rickenbaker v. Rickenbaker, 21 N.C.App. 276, 204 S.E.2d 198 (1974).

In the case at hand, after concluding that the defendant was entitled to have reasonable counsel fees paid by the plaintiff, the court stated that it considered the following factors in setting the award:

1. The time and labor required in the investigation and prosecution of the action; the novelty and difficulty of the questions of law, and the skill requisite to the proper representation of the defendant.

2. The Court considers the employment by the defendant may preclude appearances in other matters which the counsel of record for the defendant could be engaged with, and the Court considers whether employment by the defendant would preclude employment by other clients.

3. The Court further considers the customary charge for similar services rendered.

4. The Court considers the amount involved in the controversy.

5. The Court considers the contingency or certainty of the compensation.

6. The Court considers the character of the employment, whether casual or for an established and constant client.

7. The Court considers the variation in overhead in practicing of law in Mecklenburg County and Cleveland County, and the Court considers that the defendant's counsel must maintain offices, a library and employees in his office.

8. The Court considers that the sum of $2,500 has been paid previously and $1,500 has been paid on a subsequent prior occasion, amounting to a total of $4,000 prior to this hearing.

Having reviewed the trial court's findings, we find them to be insufficient to form a basis for determining a reasonable award of attorneys' fees. For example, although the trial court perfunctorily stated that it had considered among other factors, the time and labor required to represent the defendant, the court nowhere found how many hours of labor were actually expended on defendant's behalf by her attorneys. Although one of the listed "considerations" of the trial court was the customary charge for similar services, the court never stated what it found the customary charge to be, or whether the charge by defendant's counsel was in line with the customary fee. Although the trial court recited as one of its considerations "the novelty and difficulty of the questions of law, and the skill requisite to the proper representation of the defendant," the court did not state how it adjudged the difficulty of the legal questions or the adequacy of the representations. The court's findings in no way shed light upon the nearly $48,000 disparity between the amount submitted by defendant's attorneys as the value of their services and the amount awarded by the court. In sum, nothing in the court's findings provided a basis for determining the reasonableness of the counsel fees awarded. Absent such findings, we are unable to determine whether the trial court abused its discretion in setting the amount of the award. We therefore remand the case to the Court of Appeals, for a further remand to the trial court for additional findings in accord with this opinion.

MODIFIED AND AFFIRMED.