Schneider v. Schneider ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-920
Filed: 7 November 2017
Mecklenburg County, No. 13-CVD-3272 (CTM)
ROBERT ALLEN SCHNEIDER, Plaintiff,
v.
HOLLI M. SCHNEIDER, Defendant.
Appeal by defendant from order entered 23 March 2016 by Judge Christy T.
Mann in District Court, Mecklenburg County. Heard in the Court of Appeals 23
February 2017.
Robert Allen Schneider, pro se, plaintiff-appellee.
Plumides, Romano, Johnson & Cacheris, PC, by Richard B. Johnson, for
defendant-appellant.
STROUD, Judge.
Because the trial court may have misapprehended its ability to consider the
financial circumstances of the defendant Mother in awarding attorney fees to plaintiff
Father under North Carolina General Statute § 50-13.6, we reverse the order
awarding attorney fees to Father and remand to the trial court for reconsideration of
this issue.
I. Background
SCHNEIDER V. SCHNEIDER
Opinion of the Court
This case arises from a long and contentious custody case. After their
separation, plaintiff-Father filed a complaint in 2013 against defendant-Mother with
claims for emergency temporary custody, permanent custody, child support, equitable
distribution, interim distribution, appointment for a guardian ad litem, and attorney
fees. We need not go into great detail regarding the multiple claims here, but the
custody dispute centered in large part around Mother’s move to Mississippi with the
children. Over the years the trial court entered several orders but the only one at
issue on appeal is from March of 2016, when the trial court ordered Mother to pay
Father $30,000.00 for attorney fees pursuant to North Carolina General Statute § 50-
13.6. Mother appeals.
II. Attorney Fees
Mother’s only argument on appeal is that the court erred by awarding Father
$30,000.00 in attorney fees.
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
-2-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
of reasonable attorney’s fees to an interested party as
deemed appropriate under the circumstances.
N.C. Gen. Stat. § 50-13.6 (2015). “Whether these statutory requirements have been
met is a question of law, reviewable on appeal. Only when these requirements have
been met does the standard of review change to abuse of discretion for an examination
of the amount of attorney’s fees awarded.” Doan v. Doan, 156 N.C. App. 570, 575, 577
S.E.2d 146, 150 (2003) (citation and quotation marks omitted).
Mother first contends that the trial court “failed to make detailed findings of
fact regarding [Father’s] inability to defray the costs of the lawsuit” as is required
under North Carolina General Statute § 50-13.6. See N.C. Gen. Stat. § 50-13.6.
Mother cites to Dixon v. Gordon, wherein this Court reversed and remanded to the
trial court because
the only findings of fact were that father does not have
sufficient funds with which to employ and pay legal counsel
. . . to meet Mother on an equal basis. Although
information regarding father‘s gross income and
employment was present in the record in father‘s
testimony, there are no findings in the trial court‘s order
which detail this information. We believe that because the
findings in this case contain little more than the bare
statutory language, the order is insufficient to support an
award of attorneys fees.
223 N.C. App. 365, 373, 734 S.E.2d 299, 305 (2012) (quotation marks, ellipses,
brackets, and footnote omitted), and Cox v. Cox, wherein this Court also reversed and
remanded the case because “the trial court concluded that plaintiff did not have
-3-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
sufficient assets with which to pay his attorneys’ fees and that defendant did have
the means to pay plaintiff’s attorneys’ fees. However, there were no findings about
plaintiff’s monthly income or expenses.” 133 N.C. App. 221, 228, 515 S.E.2d 61, 66
(1999). However, unlike the cited cases, contrast Dixon, 223 N.C. App. at 373, 734
S.E.2d at 305; Cox, 133 N.C. App. at 228, 515 S.E. at 66, the trial court here did make
“detailed findings of fact” including the following:
6. The Plaintiff/Father is an airplane pilot and
is employed by Southwest Airlines. His annual income is
approximately $134,000.00.
....
10. Plaintiff is the major financial support for the
minor children due to Defendant’s choice to stay home and
help raise her stepchildren as well as stay home with her
expected new born with her new husband.
11. Plaintiff was forced to borrow money from
family and deplete his savings in order to pay for attorney
fees to represent his interests in having his children
returned to North Carolina.
12. Plaintiff's attorney fees overall were over
$54,000.00 of which approximately $39,000.00 were
charged for Ms. Sellers’ attorney fees on custody of this
matter for over 122 hours of work.
13. This does not include costs for appearing at
this hearing or preparing the order.
14. Defendant incurred attorney fees of
approximately $18,000.00 in the above case. These fees
were paid with the proceeds which Defendant/Mother
received from the domestic case.
-4-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
15. The evidence presented at trial and this
hearing demonstrate that Plaintiff has insufficient means
to defray the costs of this suit and that these sums affect
the means with which Plaintiff has to support his
children’s financial needs.
Mother’s argument that the trial court made “only general findings” is simply
inaccurate. This argument is without merit.
Next, as to three of the detailed findings of fact just mentioned -- 10, 11, and
15 -- Mother contends portions of them “are not supported by the evidence.” Mother’s
main contention about the challenged findings of fact is that there was no evidence
to support them and her brief implies, at the very least, that no evidence was
presented but rather “counsel simply made arguments[.]” Mother’s argument has
two fatal flaws: first, the trial court did hold a hearing, at which it considered
documentary exhibits, including financial affidavits from the parties, and Mother
actually testified; the second flaw is that the trial court explicitly noted that the
order was based not just on this hearing, but also on the evidence presented at the
hearings regarding the other matters at issue. The order here specifically notes in
its introduction that the trial court made this determination “after reviewing the file,
evidence presented, and the fee affidavit of Plaintiff[.]” In addition, finding of fact
15 shows that the trial court considered all of the evidence presented at the prior
hearings:
15. The evidence presented at trial and this
-5-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
hearing demonstrate that Plaintiff has insufficient means
to defray the costs of this suit and that these sums affect
the means with which Plaintiff has to support his
children’s financial needs.
(Emphasis added.) Although Mother challenges the latter part of this finding which
states that “Plaintiff has insufficient means to defray the costs of this suit[,]” she
does not dispute the sources of the evidence that the trial court considered.
Additionally, it is clear from the order what the “evidence presented at trial” referred
to, since the order also notes that “Custody and Child Support were resolved at trial
and an order was entered on April 11, 2014. Associated attorney fee claims were
held open for later resolution.” The child custody and support order had extensive
findings of fact and was not appealed.
Furthermore, at the beginning of the hearing on attorney fees, counsel
recognized that the trial court would be considering evidence from the child custody
and support hearing as well as that presented at this hearing as Father’s attorney
stated, with no objection or qualification from Mother’s counsel,
Your Honor, this is what we need in this situa -- in this
case. Our evidence is already in the court file. It’s never
been closed out. The parties’ equitable distribution
affidavits are both in the court file. Plaintiff’s was filed
February 2014, and Defendant’s was filed in March of
2014. Those are in the file. And along that same time
period in the file you should see both of their financial
affidavits respectively filed 2-28-2014 and 3-5-2014. We
also have the order for permanent custody and child
support, which was entered in April of 2014, Your Honor[,]
-6-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
and the trial court responded, “Okay.” Mother’s argument that there was no evidence
presented which could support the challenged portions of the three findings of fact is
without merit.
Lastly, Mother contends the trial court made an error of law because it believed
it could not compare the relative estates of the parties, and if the trial court had done
this comparison, it would have determined that an award of attorney fees was not
appropriate. Mother notes that the trial court stated, “the law doesn’t – it’s not -- it
doesn’t provide for me to consider how much money -- in this case, how much money
. . . [mother]” makes. In fact, the trial court discussed its inability to make this
comparison at some length at the hearing, but this is the substance of the trial court’s
statement of the law. Father makes no counter argument on appeal regarding this
issue. We agree that from the trial court’s rendition, it appeared to be under the
impression that the only consideration was whether Father could pay his attorney
fees, without any consideration of Mother’s financial situation. We cannot discern
from the order itself whether the trial court considered Mother’s financial situation
or in its discretion it simply declined to consider it. But a fair reading of the order is
consistent with Mother’s argument that the trial court misapprehended its discretion
to consider her financial situation.
Our Supreme Court clarified the extent of the trial court’s discretion to
consider the estate of the party ordered to pay attorney fees in Van Every v. McGuire:
-7-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
[W]hile the trial court should focus on the disposable
income and estate of [the party requesting fees], it should
not be placed in a straitjacket by prohibiting any
comparison with [the other party’s] estate, for example, in
determining whether any necessary depletion of [the party
requesting fees’] estate by paying her own expenses would
be reasonable or unreasonable. Accordingly, the order of
remand must be modified to remove these restrictions.
348 N.C. 58, 62, 497 S.E.2d 689, 691 (1998). In short, the trial court is not required
to consider the financial circumstances of the party ordered to pay attorney fees under
North Carolina General Statute § 50-13.6, but the trial court is allowed, in its
discretion, to consider the financial circumstances of the party ordered to pay and to
compare the financial situations of the parties. See Van Every, 348 N.C. at 62, 497
S.E.2d at 691.
We must therefore reverse and remand the order for the trial court to
reconsider its discretionary award of attorney fees. In exercising its discretion, the
trial court may decline to consider Mother’s financial situation in light of all of the
circumstances of the case or it may consider her financial situation and compare it to
Father’s situation. Since the trial court made thorough findings of fact in the order
on appeal and those findings were fully supported by the evidence, there is no need
for the trial court to receive additional evidence on remand or to make additional
findings of fact before entering a new order, but the trial court may in its discretion
receive additional evidence or make additional findings.
III. Conclusion
-8-
SCHNEIDER V. SCHNEIDER
Opinion of the Court
For the foregoing reasons, we reverse and remand.
REVERSED AND REMANDED.
Judges DILLON and MURPHY concur.
-9-