Taylor v. Taylor , 118 N.C. App. 356 ( 1995 )

Judge Lewis

dissenting in part, concurring in part.

I dissent as to the majority’s decision to remand on the issue of attorney’s fees under N.C.G.S. § 50-13.6. I do not agree that the trial court is required in this case to consider the relative estates of the parties in determining whether the party seeking attorney’s fees has insufficient means to defray the expense of the suit. I also do not agree that requiring this defendant to pay her own attorney’s fees constitutes an unreasonable depletion of her estate.

None of the cases cited by the majority require a consideration of the relative estates of the parties in determining the threshold question of whether attorney’s fees should be awarded in child support cases. Clark was an alimony case dealing with the issue of whether the proper amount of fees had been awarded, and not with the initial determination of whether attorney’s fees should have been awarded at all. See Clark, 301 N.C. at 136, 271 S.E.2d at 67. As such, it is inapposite.

In Cobb, this court did consider the relative estates of the parties in making a determination of whether an award of attorney’s fees was proper. Cobb, 79 N.C. App. at 596, 339 S.E.2d at 828. However, Cobb does not require such a consideration in all cases. Consideration of both parties’ estates is appropriate under Cobb when the party seeking attorney’s fees would be required to deplete her estate unreasonably in order to pay her litigation expenses. See id. at 596-7, 339 S.E.2d at 828.

The plaintiff seeking attorney’s fees in Cobb had no liquid assets and her actual income did not meet her living expenses. Thus, requiring her to deplete this small estate was not reasonable. Here, the court found that defendant has a liquid estate of $666,581, a home worth $350,000, two cars, and furniture, all of which have an approximate value of $ 1.1 million. Defendant’s situation is very different from the plaintiff in Cobb who would have had to sell her only remaining asset, her home, to pay attorney’s fees. Defendant’s situation is also very different from the plaintiff in Lawrence, also cited by the majority, whose monthly expenses exceeded her income and who had a small estate compared to that of defendant here. See Lawrence, 107 N.C. App. at 153-54, 419 S.E.2d at 184.

Requiring defendant to sell some of her substantial assets to pay her attorney’s fees is not an unreasonable depletion of her estate. Plaintiff may well be required to liquidate some of his assets to pay his litigation expenses. Since defendant has substantial assets, it is not unreasonable to require her to liquidate some of hers as well. Thus, there was no need for the court to inquire into the relative estates of the parties.

The majority’s requirement that a court always consider the relative estates of both parties may result in the award of attorney’s fees whenever one spouse has a larger estate than the other even when the moving party has a substantial estate. Such a requirement goes far beyond the scope of section 50-13.6 which permits attorney’s fees only when the party seeking fees has “insufficient means to defray the expense of the suit” I cannot believe that the legislature intended such a result nor should we build an additional hurdle for trial judges to clear.

The trial court did not err in finding that the defendant had sufficient means to defray her litigation expenses. Since a finding of insufficient means is required for an award of attorney’s fees under section 50-13.6, the trial court properly denied defendant’s motion for attorney’s fees.

I concur with the majority’s disposition of the other issues raised in this case.