Beasley v. BeasleyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-787
Filed: 5 June 2018
Forsyth County, No. 15 CVD 5916
BRIAN CARTER BEASLEY, Plaintiff,
v.
KATHERINE LEIGH BEASLEY, Defendant.
Appeal by plaintiff from order entered 28 December 2016 by Judge Lisa V.L.
Menefee in Forsyth County District Court. Heard in the Court of Appeals 6 February
2018.
Jones Law PLLC, by Brian E. Jones, for plaintiff-appellant.
Halvorsen Bradshaw, PLLC, by Ruth I. Bradshaw for defendant-appellee.
BRYANT, Judge.
Where the trial court’s order for attorney’s fees effectively disposes of plaintiff’s
claim for attorney’s fees as they relate to the issues of child support and child custody;
and plaintiff’s interlocutory appeal affects a substantial right, we review plaintiff’s
appeal. Where the trial court’s findings of fact are supported by competent evidence
and in turn support the conclusion that defendant is entitled to receive a portion of
her attorney’s fees, we affirm the order of the trial court.
Plaintiff Brian Carter Beasley and defendant Katherine Leigh Beasley were
married for sixteen years. The parties separated on 2 September 2015. They have
one minor child, currently seven years old.
BEASLEY V. BEASLEY
Opinion of the Court
Plaintiff initiated the instant lawsuit on 25 September 2015 by filing claims
for child custody, child support, motion for medical records of defendant, and
attorney’s fees. Defendant filed a Motion to Strike, Answer, and Counterclaims on
23 November 2015. Meanwhile, the parties were unable to reach a mediated
parenting agreement as to child custody.
When the cross-claims for child custody came on for hearing on 18 February
2016, the parties resolved the issue by consent in a Memorandum of Judgment/Order
entered that same day. A consent order for child custody was entered on 29 July 2016
nun pro tunc 18 February 2016, which reserved any and all pending claims, including
but not limited to attorney’s fees. Pursuant to the consent order, the parties also
agreed that defendant would relocate from Winston-Salem, North Carolina, to
Madison County, Alabama, in May 2016. In April, the parties entered into a Consent
Order to Sell Former Marital Residence, in which they agreed the funds from the sale
of the marital home would be held in the parties’ attorneys’ trust accounts until
resolution of the pending cross-claims for equitable distribution.
Plaintiff and defendant again reached an impasse at private mediation. On 31
May, the parties proceeded to a hearing before the Honorable Lisa V. L. Menefee,
Chief Judge presiding in Forsyth County District Court on the pending cross-claims
for child support and defendant’s claim for post-separation support. Judge Menefee
rendered an oral ruling for plaintiff to pay defendant child support and post-
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separation support. Thereafter, the trial court entered its written order on 5 July
2016 nunc pro tunc 31 May 2016 which detailed that beginning on 1 June 2016 “and
continuing on the first day of the month thereafter,” plaintiff was to pay defendant
$3,445.93 in post-separation support and $1,116.00 in child support.
On 12 July 2016, defendant filed a motion for contempt, attorney’s fees, and a
show cause order asking the trial court to hold plaintiff in civil and/or criminal
contempt for failing to pay child support or post-separation support. Defendant’s
motion alleged that plaintiff owed defendant “at least $1,116 in child support arrears
and at least $5,168.91 in post-separation support arrears.” Defendant alleged that
as of the date of filing the motion,
[p]laintiff ha[d] failed to comply with the Order in that the
only money [p]laintiff has given [d]efendant is one check on
June 8, 2016 in the amount of $1,116 for child support.
Defendant cashed the check on June 9 or 10th at State
Employees’ Credit Union (SECU). On or about June 14,
2016, [d]efendant received a call from SECU notifying her
that [p]laintiff’s BB&T check bounced. SECU began
seeking fees and reimbursement from [d]efendant.
That same day, the trial court entered a show cause order, ordering plaintiff to appear
in Forsyth County District Court on 25 July 2016.
On 22 July 2016, plaintiff filed a motion to continue, stating that he had moved
to Alabama where he had taken a new job and that he had been unemployed for
several weeks leading up to his move. As such, plaintiff argued, he was financially
unable to comply with the 5 July 2016 order. Plaintiff’s motion was denied. When
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plaintiff failed to appear on 25 July on the show cause order, the Honorable Camille
Banks-Payne, Judge presiding, entered a Commitment Order for Civil Contempt
against plaintiff.
On 31 August 2016, defendant noticed for hearing the issue of attorney’s fees
related to her resolved claims for child custody, child support, and post-separation
support, and the hearing was set for 26 October 2016. At the hearing, the court
received into evidence, without objection, the affidavit of attorney’s fees of defendant’s
counsel. On 28 December 2016 nunc pro tunc 26 October 2016, the trial court entered
its Order for Attorney’s fees, stating it had considered the “voluminous pleadings of
record to include[,] but not limited to[,] the Order for Child Support and Order for
Post-Separation Support[,] . . . the Consent Order for Child Custody[,]. . . the motions
to continue, . . . the verified Affidavit of Attorney’s fees presented by Defendant’s
counsel, and arguments of counsel[.]” The trial court ordered that “Plaintiff shall pay
directly to Defendant’s attorneys . . . attorney’s fees in the total amount of $48,188.15
by no later than December 31, 2016.” Plaintiff appeals.
_________________________________________________________
Plaintiff concedes that his appeal from the trial court’s Order for Attorney’s
Fees is interlocutory, as other claims in this case remain outstanding. We first
address the interlocutory nature of plaintiff’s appeal.
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“An interlocutory order is one made during the pendency of an action, which
does not dispose of the case, but leaves it for further action by the trial court in order
to settle and determine the entire controversy.” Musick v. Musick, 203 N.C. App. 368,
370, 691 S.E.2d 61, 62–63 (2010) (quoting McIntyre v. McIntyre, 175 N.C. Ap. 558,
561–62, 623 S.E.2d 828, 831 (2006)).
While a final judgment is always appealable, an
interlocutory order may be appealed immediately only if (i)
the trial court certifies the case for immediate appeal
pursuant to N.C.G.S. § 1A-1, Rule 54(b), or (ii) the order
“affects a substantial right of the appellant that would be
lost without immediate review.”
Id. at 370, 691 S.E.2d at 63 (quoting McIntyre, 175 N.C. App. at 562, 623 S.E.2d at
831). As the trial court in the instant case did not certify the order for attorney’s fees
pursuant to N.C. Gen. Stat. § 1A–1, Rule 54(b), plaintiff’s right to an immediate
appeal, if one exists, necessarily depends on whether the trial court’s order denying
his motion affects a substantial right. See id. (citation omitted).
“The burden is on the appellant to establish that a substantial right will be
affected unless he is allowed immediate appeal from an interlocutory order.” Embler
v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001) (citation omitted).
“Th[e] [substantial right] rule is grounded in sound policy considerations. Its goal is
to ‘prevent fragmentary and premature appeals that unnecessarily delay the
administration of justice and to ensure that the trial divisions fully and finally
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dispose of the case before an appeal can be heard.’ ” Id. at 165, 545 S.E.2d at 261–62
(quoting Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)).
However, “an order which completely disposes of one of several issues in a
lawsuit affects a substantial right.” Case v. Case, 73 N.C. App. 76, 78, 325 S.E.2d
661, 663 (1985) (citation omitted) (allowing immediate appeal of the trial court’s entry
of summary judgment on the defendant’s counterclaim for equitable distribution as
it affected a substantial right, even though claims for absolute divorce, child custody,
and child support were still pending in the trial court).
In August 2013, the following statutory provision (“Maintenance of certain
appeals allowed”) became effective and applies to the instant appeal:
Notwithstanding any other pending claims filed in the
same action, a party may appeal from an order or judgment
adjudicating a claim for absolute divorce, divorce from bed
and board, child custody, child support, alimony, or
equitable distribution if the order or judgment would
otherwise be a final order or judgment within the meaning
of G.S. 1A-1, Rule 54(b), but for the other pending claims
in the same action. A party does not forfeit the right to
appeal under this section if the party fails to immediately
appeal from an order or judgment described in this section.
An appeal from an order or judgment under this section
shall not deprive the trial court of jurisdiction over any
other claims pending in the same action.
N.C. Gen. Stat. § 50-19.1 (2017). In other words, this provision creates a kind of
intermediate class of “quasi-interlocutory” orders that would be final if considered in
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isolation, but would technically not otherwise be “final” under Rule 54(b) because
another related claim (or “issue”) is still pending in the larger action. See id.
In Comstock v. Comstock, this Court dismissed attempted interlocutory
appeals from an injunction order and domestic relations order on the grounds that
these types of orders “are not included on the list of immediately appealable
interlocutory orders.” 240 N.C. App. 304, 322, 771 S.E.2d 602, 615 (2015) (citing
N.C.G.S. § 50–19.1). Based on this reasoning and interpretation of section 50-19.1, it
appears this Court was guided by the doctrine of expressio unius est exclusio alterius,
which, in the context of statutory construction, “provides that the mention of such
specific exceptions implies the exclusion of others.” Morrison v. Sears, Roebuck &
Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (citations omitted). In other words,
this reasoning in Comstock implies that only the types of orders specifically included
on the list in Section 50-19.1—absolute divorce, divorce from bed and board, child
custody, child support, alimony, or equitable distribution—may be appealed pursuant
to N.C. Gen. Stat. § 50-19.1. Not “specifically included on the list” of claims in section
50-19.1 are any of the provisions for attorney’s fees included in Chapter 50. See, e.g.,
N.C. Gen. Stat. § 50-13.6 (2017) (“Counsel fees in actions for custody and support of
minor children”); N.C. Gen. Stat. § 50-16.4 (2017) (“Counsel fees in actions for
alimony, post-separation support”). Following the reasoning in Comstock and the
doctrine of expresio unius est exlcusio alterius, it could be inferred that the
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legislature’s intent in excluding orders for attorney’s fees from section 50-19.1 means
these issues are not appealable (when interlocutory) under this provision. See
Comstock, 240 N.C. App. at 322–23, 771 S.E.2d at 615.
However, Duncan v. Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013), which was
decided in June 2013—two months before N.C. Gen. Stat. § 50-19.1 was enacted, see
N.C. Sess. Laws 2013-411, § 2, eff. Aug. 23, 2013—possibly complicates this issue.
In Duncan, the Supreme Court “clarif[ied] the effect of an unresolved request
for attorney’s fees on an appeal from an order that otherwise fully determines the
action.” 366 N.C. at 545, 742 S.E.2d at 800. The Supreme Court held that
[o]nce the trial court enters an order that decides all
substantive claims, the right to appeal commences. Failure
to appeal from that order forfeits the right. Because
attorney’s fees and costs are collateral to a final judgment
on the merits, an unresolved request for attorney’s fees and
costs does not render interlocutory an appeal from the trial
court’s order.
Id. (emphasis added). In other words, (1) “attorney’s fees” is a non-substantive
“issue,” and not a substantive “claim” (at least in relation to a claim for alimony); and
(2) entry of an alimony order constitutes entry of a final order for purposes of Rule
54(b), notwithstanding the fact that a related attorney’s fees “issue” might still be
pending. See id. at 546, 742 S.E.2d at 801 (“Though an open request for attorney’s
fees and costs necessitates further proceedings in the trial court, the unresolved issue
does not prevent judgment on the merits from being final.” (internal citations
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omitted)). Thus, per the analysis set forth in Duncan, a pending attorney’s fees
“issue” would not count as a pending “claim” for purposes of Section 50-19.1. See id;
but see N.C. Sess. Laws 2013-411, § 2, eff. Aug. 23, 2013 (enacting N.C. Gen. Stat. §
50-19.1 two months after Duncan was decided). Notably, neither Duncan nor
Comstock (nor any other case) has interpreted N.C. Gen. Stat. § 50-19.1 through the
particular factual lens facing us in the instant appeal.
Here, the trial court’s order as to attorney’s fees has effectively (and
completely) disposed of the “issue” of attorney’s fees relating to the parties’ “claims”
for child support, child custody, and post-separation support. These substantive
“claims” (for child support, child custody, and post-separation support), see Duncan,
366 N.C. at 545–46, 742 S.E.2d at 800–01, have been fully litigated and decided, as
has the “issue” of attorney’s fees as it relates to the aforementioned claims. The
parties’ claims for equitable distribution, however, remain pending before the trial
court. Thus, the question we are presented with is whether an order for attorney’s
fees, which completely disposes of that issue as it relates to other substantive claims,
is immediately appealable pursuant to N.C. Gen. Stat. § 50-19.1; particularly where,
as here, it is nevertheless “an order which completely disposes of one of several issues
in a lawsuit,” and it arguably “affects a substantial right.” See Case, 73 N.C. App. at
78, 325 S.E.2d at 663 (“[A]n order which completely disposes of one of several issues
in a lawsuit affects a substantial right.” (citation omitted)).
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In Case, the trial court’s order for partial summary judgment “concluded that
[a] separation agreement [between the plaintiff and the defendant] was valid” and
therefore the agreement served as “a bar to the [defendant’s] counterclaim for
equitable distribution[.]” Id. at 78–79, 325 S.E.2d at 663. In other words, the order
“completely dispose[d] of the issue of equitable distribution,” including the
defendant’s counterclaim for equitable distribution, “thereby affecting a substantial
right of [the] defendant and rendering the appeal reviewable.” Id.; see Honeycutt v.
Honeycutt, 208 N.C. App. 70, 75, 701 S.E.2d 689, 692–93 (2010) (discussing the
reasoning in Case regarding why an interlocutory appeal should be heard and how it
affected a defendant’s substantial right).
Here, the trial court’s order as to attorney’s fees functions in a similar way as
did the order in Case, which barred the defendant’s counterclaim for equitable
distribution—it effectively disposes of plaintiff’s claim for attorney’s fees as they
relate to the litigating of the issues of child support, child custody, and post-
separation support. In plaintiff’s original complaint,1 he included a claim for
attorney’s fees. The child support, child custody, and post-separation support claims
have been fully litigated and decided, and the issue of attorney’s fees as it relates to
the aforementioned claims has also been finally determined. As such, to delay
1 On 9 January 2016, plaintiff filed a motion to amend his complaint in order to include a claim
for equitable distribution. There is nothing in the record to indicate whether this motion to amend
was allowed by the court.
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plaintiff’s appeal from the order regarding attorney’s fees until a final determination
on the merits of all the parties’ remaining claims would jeopardize plaintiff’s
substantial right not only because it is “an order which completely disposes of one of
several issues in a lawsuit . . . .” Case, 73 N.C. App. at 78, 325 S.E.2d at 663 (citation
omitted), but also because it orders plaintiff to pay a not insignificant amount—
$48,188.15—in attorney’s fees, see Estate of Redden ex rel. Morely v. Redden, 179 N.C.
App. 113, 116–17, 632 S.E.2d 794, 798 (2006) (“The Order appealed affects a
substantial right of [the] Defendant . . . by ordering her to make immediate payment
of a significant amount of money; therefore this Court has jurisdiction over the
Defendant’s appeal pursuant to N.C. Gen. Stat. 1–277 and N.C. Gen. Stat. 7A–27(d).”
(citations omitted)), remanded on other grounds, 361 N.C. 352, 649 S.E.2d 638 (2007).
Furthermore, this Court has allowed interlocutory family law appeals from
orders which “affect a substantial right.” In Sorey v. Sorey, this Court held that an
order denying a claim for post-separation support (a claim not included in the list of
immediately appealable claims in section 50-19.1) affected a substantial right and,
thus, was subject to immediate interlocutory appeal. 233 N.C. App. 682, 684, 757
S.E.2d 518, 519 (2014) (relying on Mayer v. Mayer, 66 N.C. App. 522, 525, 311 S.E.2d
659, 662 (1984)); see also McConnell v. McConnell, 151 N.C. App. 622, 624–25, 566
S.E.2d 801, 803–04 (2002) (allowing an interlocutory appeal from a child custody
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order based on a “substantial right” where a child was deemed to be subject to an
immediate threat of sexual molestation).
We conclude that while N.C. Gen. Stat. § 50-19.1 restricts interlocutory family
law appeals to those claims listed in that section, an avenue for appeal nevertheless
exists. Based on this Court’s precedent, which has allowed interlocutory appeals in
family law cases based on a “substantial right,” we determine that the traditional
“substantial right” exception may also apply to other interlocutory orders entered in
a family law case—such as the one here for attorney’s fees—but that do not appear
listed in section 50-19.1. As such, we consider the merits of plaintiff’s appeal.
___________________________________________
Plaintiff argues (I) the trial court abused its discretion when it awarded
$48,188.15 in attorney’s fees because Findings of Fact 14–24 are unsupported by
competent evidence and (II) the trial court’s findings of fact do not in turn support
the conclusion that defendant be awarded attorney’s fees.
I
Plaintiff first argues Findings of Fact 14–24 are unsupported by competent
evidence. Specifically, plaintiff contends that the findings are unsupported by
competent evidence because the trial transcript indicates that “the trial court heard
no evidence of any kind . . . . There was no testimony taken at the hearing, and no
evidence that would establish that [defendant] is the dependent spouse or that she
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lacked means and ability to defray the cost of the litigation.” However, defendant
argues that plaintiff has waived his right to review of this issue because he failed to
properly preserve for appellate review his challenges to Findings of Fact 14–24. We
first address defendant’s waiver argument.
“ ‘In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired’ and must have ‘obtain[ed] a ruling upon the
party’s request, objection, or motion.’ ” In re J.H., 224 N.C. App. 255, 269, 789 S.E.2d
228, 239 (2015) (alteration in original) (quoting N.C. R. App. P. 10(a)(1)).
A. Finding of Fact 14
In the instant case, plaintiff’s attorney objected to the trial court’s decision to
not hear evidence and to incorporate findings from affidavits and prior hearings:
[Plaintiff’s attorney]: . . . I just wanted to object for the
record to findings being incorporated from a prior hearing.
I don’t believe that hearing -- I could be wrong. I don’t
believe that hearing was noticed for attorney’s fees.
THE COURT: You are correct. It was not noticed for
attorney’s fees. Attorney’s fees were reserved for a later
date. However, continue.
[Plaintiff’s attorney]: Just again for the record, so I would
object to any findings being incorporated from a prior
hearing at this point because of facts that existed at the
time that that hearing was for [post-separation support]
are different from the facts that exist today. The motion for
attorney’s fees was noticed for today. So we are here to
adjudicate facts as they exist today, primarily [defendant’s]
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allegation that she does not have the means and ability to
defray the cost of litigation. So I would argue that I have
the -- I should be able to require that [defendant] take the
stand and present evidence in the form of testimony or
otherwise and I have the opportunity to cross-examine her
on that evidence, testimony or otherwise.
I -- I do not have the opportunity to do that, and I
would just argue that that would need to be the basis for
which the Court makes its findings of fact and so that is my
sole objection at this point.
Plaintiff’s attorney objected again at the end of the hearing:
I had no contention whatsoever about a single minute that
[defendant’s attorney] is alleging that she or her staff or
anyone in her office spent on this case. None of my objection
is rooted in that, so I just want to make that clear.
My objection is simply limited to the vary narrow
proposition that the facts need to be provided today in this
hearing for the Court to make its findings of fact, and there
is no testimony today and no -- therefore, no facts upon
which the Court can make its findings of fact. I understand
the Court’s position, but I’m just making that limited
objection and that anything that [defendant’s attorney]
says in the form of facts about the case I would -- I would
object to that because [defendant’s attorney] can’t testify as
a witness.
But none of my objections are aimed at any amount
of time that [defendant’s attorney] or her office or staff has
-- has had to partake to get these things to whatever phases
they had to . . . .
Defendant appears to challenge plaintiff’s failure to object to specific findings
of fact—14–24—but ignores the crux of plaintiff’s objection, which was that no
additional evidence was presented to the trial court; and therefore, no basis existed
upon which the court could make those findings of fact. As such, plaintiff’s objection
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to the trial court’s method of making its findings without hearing evidence is
sufficient to preserve his challenge on appeal to the substance of the trial court’s
findings of fact as not supported by competent evidence. Accordingly, we conclude
plaintiff properly preserved his objection to Findings of Fact 14–24 for appellate
review, and we next address the merits of plaintiff’s argument.
Pursuant to N.C. Gen. Stat. § 50-16.4, a party is entitled to attorney’s fees for
a post-separation support claim if the party is “(1) the dependent spouse, (2) entitled
to the underlying relief demanded (e.g., alimony and/or child support), and (3)
without sufficient means to defray the costs of litigation.” Barrett v. Barrett, 140 N.C.
App. 369, 374, 536 S.E.2d 642, 646 (2000) (citing Clark v. Clark, 301 N.C. 123, 135–
36, 271 S.E.2d 58, 67 (1980)). Pursuant to N.C. Gen. Stat. § 50-13.6, in a case
involving claims for child custody and child support, the trial court has authority to
award a party attorney’s fees after first finding that the party seeking attorney’s fees
was “(1) acting in good faith and (2) has insufficient means to defray the expense of
the suit.” Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002) (citation
omitted). “When the statutory requirements have been met, the amount of attorney’s
fees to be awarded rests within the sound discretion of the trial judge and is
reviewable on appeal only for abuse of discretion.” Id. (quoting Hudson v. Hudson,
299 N.C. 465, 472, 263 S.E.2d 719, 724 (1980)).
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In Schneider v. Schneider, this Court determined that where a trial court held
a hearing on the issue of attorney’s fees, considered documentary exhibits, and, inter
alia, “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
findings of fact in a trial court’s order awarding attorney’s fees was supported by
competent evidence. ___ N.C. App. ___, ___, 807 S.E.2d 165, 167 (2017). Similarly,
in the instant case, the trial court noted in its order that it “considered the voluminous
pleadings of record to include but not be limited to the Order for Child Support and
Order for Post-Separation Support . . . the Consent Order for Child Custody . . . the
motions to continue, . . . the verified Affidavit of Attorney’s fees presented by
Defendant’s counsel, and arguments of counsel . . . .”
However, unlike the hearing in Schneider, at which the party challenging the
trial court’s award of attorney’s fees testified, in the instant case, neither party
testified at the hearing. Instead, as the trial court stated in Finding of Fact 14, which
plaintiff challenges on appeal, the trial court found as follows:
14. The Court is not in receipt of any additional
evidence and is relying upon the Findings of Fact as set
forth in the Custody Order and the Support Order.
Additionally, the Court incorporates the Findings of Fact
as set forth in the Custody Order and the Support Order
into this Attorney’s fees Order as set forth fully herein.
In other words, the trial court allowed no new evidence (aside from the affidavit for
attorney’s fees) and otherwise relied solely on the findings of fact in other orders,
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which regarded issues of custody and support and were not related to attorney’s fees.
These differences between the order for attorney’s fees entered in the instant
case and the one entered in Schneider notwithstanding, we conclude that the trial
court did not abuse its discretion when it relied on the voluminous pleadings and the
court record, including the Custody and Support Orders, neither of which have been
challenged or appealed by plaintiff. Nevertheless, plaintiff challenges the following
findings of fact in the trial court’s order, including Finding of Fact 14 discussed above,
as not supported by competent evidence, and we address each finding in turn.
B. Findings of Fact 15–16
15. Upon information and belief, Plaintiff left his
employment at BB&T and moved to Alabama. The Court
has received no information as to his current income nor
his individual and shared expenses.
16. As addressed in the Custody Order and Support
Order, Defendant relocated from North Carolina to
Alabama in June 2016, and the Support Order includes a
finding of fact that Defendant estimated her expenses after
the move to Madison, Alabama would equate those of the
former marital residence to ensure the minor child attends
a comparable school to Vienna Elementary and to maintain
her accustomed standard of living for herself and the minor
child.
These findings are supported by the trial court’s Custody Order, Support
Order, and plaintiff’s own motion to continue filed in July 2016, in which he stated
he had moved to Alabama and begun a new job there. In his amended complaint,
which included a motion for attorney’s fees, plaintiff did not include an affidavit
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detailing those fees, nor did he include updated information as to his current income
since his move to Alabama. Thus, these findings are supported by the evidence.
C. Findings of Fact Nos. 17, 19–20, 22
17. A review of the Affidavit for Attorney’s fees
presented by Defendant movant through counsel includes
a summary of attorney’s fees as of September 30, 2016, as
follows:
a. Total fees related to Child Custody equal
$32,199.00;
b. Total fees related to Child Support equal
$16,722.15;
c. Total fees related to Post-Separation Support
equal $16,700.41; and
d. Total costs related to child custody, child
support, and post-separation support equal
$3,566.00.
....
19. The normal and reasonable value of the legal
services rendered on behalf of Plaintiff for an attorney of
the experience and expertise of Ruth I. Bradshaw is $250
per hour and for legal assistant/ paralegal time is at least
$75 per hour. The law firm of Halvorsen Bradshaw, PLLC
having spent over 100 hours in connection with Plaintiff, a
reasonable fee through September 30, 2016, would be at
least $64,928.78 for Defendant’s claims for child custody,
child support, and post-separation support. These fees and
hourly rates are customary in this area.
20. Defendant is an interested party acting in good
faith who has insufficient means to defray the expense of
this suit, including attorney’s fees, and Plaintiff should be
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required to pay a portion of the expense of this suit,
including attorney’s fees. Counsel for Defendant’s use of
paralegals and legal assistants was appropriate and
consistent with how staff members are utilized and billed
in matters like Defendant’s claims for child custody, child
support, and post-separation support. This Court reviewed
the Affidavit for Attorney’s fees, and the amount of time
that was spent by Ms. Bradshaw and her staff to prepare
for the trial of child custody a minimum of three times
custody, to prepare for the trial of child support and post-
separation support, to prepare for hearing only for the
hearings to be continued, to prepare for depositions, to
issue, reissue, and reissue subpoenas, respond to motions,
and overall the time and energy spent in dealing with what
had become a highly litigious matter.
....
22. As set forth in the Affidavit for Attorney’s fees
filed on October 26, 2016, by Defendant’s counsel, from the
beginning of representation concerning Defendant’s
counterclaims for child custody, child support, post-
separation support, and attorney’s fees, the attorneys have
consulted with Defendant, counseled and advised
Defendant, prepared pleadings and other documents, and
otherwise prepared for the hearings of these matters. From
the beginning of this litigation, Defendant’s counsel has
conferred with her at length and at frequent intervals. The
nature of the litigation, its difficulty, and its substance
required these conferences and necessitated preparation
for litigation.
The Affidavit for Attorney’s fees lists the total fees related to child custody as
$32,199.22, the total fees related to child support as $16,722.15, and the total fees
related to post-separation support as $16,007.41. In sum, these fees total $64,928.78,
the exact amount listed in Finding of Fact 19. Findings of Fact 19 and 22 are also
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Opinion of the Court
supported by paragraphs 2 and 6, respectively, in the Affidavit for Attorney’s fees.
Thus, Findings of Fact 17, 19, and 22 are supported by the evidence.
The first sentence of Finding of Fact 20, however, is actually a conclusion of
law and will be reviewed as such and addressed in Section II, infra. See China Grove
152, LLC v. Town of China Grove, 242 N.C. App. 1, 5, 773 S.E.2d 566, 569 (2015)
(“[T]he labels ‘findings of fact’ and ‘conclusions of law’ employed by the trial court in
a written order do not determine the nature of our review.” (quoting Westmoreland v.
High Point Healthcare, Inc., 218 N.C. App. 76, 79, 721 S.E.2d 712, 716 (2012)). As
for the remainder of this finding, it is supported by the extensive filings present in
the record before this Court and before the trial court. The record contains almost
400 pages of motions and trial court orders, including several amended filings of
notices of depositions, motions for extensions of time, and four motions to continue;
three of which were filed by plaintiff. Accordingly, this finding is supported by
competent evidence.
D. Findings of Fact 18 & 23
18. Defendant’s attorney’s fees are reasonable in
light of the parties’ respective earnings (wherein
Defendant earns approximately 0% of the income and
Plaintiff earns approximately 100% of the income) and all
facts set forth in the Custody Order and Support Order.
....
23. Defendant is unable to employ adequate counsel
in order to proceed as a litigant to meet Plaintiff as a
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Opinion of the Court
litigant in this action[.]
These findings are supported by the evidence namely, the Support Order,
which states that “Plaintiff earns 100% of the combined income. Defendant earns 0%
of the combined income.”
E. Findings of Fact 21 & 24
21. Counsel for Plaintiff is holding approximately
$85,000 in his trust account and Counsel for Defendant is
also holding approximately $85,000 in her trust account,
with said total equaling approximately $170,000
representing the proceeds from the sale of the former
marital residence. The Court finds that both parties may
have access to some funds in relation to the sale of the
former marital residence, which could be utilized to pay
their respective fees. The parties’ claims for equitable
distribution have not been resolved or decided by the
Court. The Court is taking into consideration each parties’
access to the funds held in trust by counsel in the
determination of allocation of attorney’s fees.
....
24. As it relates to the claims for child custody
Defendant has the means, ability, and some responsibility
for a portion of her attorney’s fees, the Court allocates to
Plaintiff attorney’s fees in the amount of $21,466.00.
Plaintiff challenges Finding of Fact 21 as tending to “disprove the conclusion
that defendant lacks sufficient means” to defray the cost of the litigation. However,
as to the trial court’s determination of whether the statutory requirements have been
met as a matter of law in order to award attorney’s fees, “[d]isparity of financial
resources and the relative estates of the parties is not a required consideration.” Cox
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Opinion of the Court
v. Cox, 133 N.C. App. 221, 231, 515 S.E.2d 61, 68 (1999) (citing Taylor v. Taylor, 343
N.C. 50, 54, 468 S.E.2d 33, 35 (1996)). As such, where this finding is supported by
the evidence in the record, and the trial court’s Finding of Fact 24 plainly
contemplates the amount of funds available to defendant in her trust account,
plaintiff’s argument on this point is overruled.
Accordingly, where the competent evidence supported the trial court’s
Findings of Fact 14–24, see Beall v. Beall, 290 N.C. 669, 673, 228 S.E.2d 407, 409
(1976) (“When the trial judge is authorized to find the facts, his findings, if supported
by competent evidence, will not be disturbed on appeal despite the existence of
evidence which would sustain contrary findings.” (citations omitted)), we now address
whether these findings support the trial court’s conclusion that defendant is entitled
to receive a portion of her attorney’s fees from plaintiff.
II
Plaintiff also argues that the trial court’s findings of fact do not support the
trial court’s conclusion of law that defendant should be awarded attorney’s fees.
Specifically, plaintiff argues the Order for Attorney’s fees does not establish that
defendant is in fact a dependent spouse or that she lacks sufficient means to defray
the costs of her legal expenses. We disagree.
In a custody suit or a custody and support suit, the trial
judge . . . has the discretion to award attorney’s fees to an
interested party when that party is (1) acting in good faith
and (2) has insufficient means to defray the expense of the
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Opinion of the Court
suit. The facts required by the statute must be alleged and
proved to support an order for attorney’s fees. Whether
these statutory requirements have been met is a question
of law, reviewable on appeal. When the statutory
requirements have been met, the amount of attorney’s fees
to be awarded rests within the sound discretion of the trial
judge and is reviewable on appeal only for abuse of
discretion.
Hudson, 299 N.C. at 472, 263 S.E.2d at 723–24 (internal citations omitted).
The order for attorney’s fees contains detailed findings of fact, see Section I,
supra, which clearly establish and support the trial court’s conclusion of law that
defendant is a dependent spouse with insufficient means to defray the cost of her
legal expenses incurred in this litigation. The trial court specifically found that
“Defendant is the ‘dependent spouse,’ ” and “Plaintiff is the ‘supporting spouse,’ ” two
findings which plaintiff does not challenge on appeal and are therefore presumed
correct and binding on appeal. See In re Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d
497, 500 (2008). These findings are also supported by the trial court’s Support Order
(incorporated by reference), which plaintiff did not appeal, and which ordered
plaintiff to pay post-separation support to defendant in the amount of $3,445.93 per
month.
Thus, where the trial court’s findings of fact support its conclusion that
defendant “is the dependent spouse, is entitled to post-separation support and has
insufficient means to defray her expenses and taking into account Plaintiff is the
supporting spouse and his ability to pay . . . Defendant is entitled to receive a portion
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Opinion of the Court
of her attorney’s fees[,]” and where “the amount of attorney’s fees to be awarded rests
within the sound discretion of the trial judge and is reviewable on appeal only for
abuse of discretion[,]” Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (emphasis
added) (quoting Hudson, 299 N.C. at 472, 263 S.E.2d at 724), we affirm the order of
the trial court.
AFFIRMED.
Judge BERGER concurs in the result only.
Judge MURPHY dissents in a separate opinion.
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No. COA17-787 – Beasley v. Beasley
MURPHY, Judge, dissenting.
In reaching the merits of this appeal, the Majority concludes that the order
requiring plaintiff to pay $48,188.15 in attorney fees affects a substantial right
warranting immediate appellate review because it is “an order which completely
disposes of one of several issues in a lawsuit” and “it orders plaintiff to pay a not
insignificant amount—$48,188.15—in attorney’s fees.” I respectfully dissent from
the Majority’s exercise of jurisdiction over this interlocutory appeal because I do not
believe that plaintiff has met his burden to demonstrate that the order for $48,188.15
in attorney fees affects a substantial right.
Initially, I note plaintiff’s theory of substantial right, upon which the Majority
predicates the exercise of jurisdiction, was not included in plaintiff’s opening brief; it
was only addressed in his reply brief. Under our Rules of Appellate Procedure, the
appellant’s brief shall contain a “statement of the grounds for appellate review[,]” and
when an appeal is interlocutory “the statement must contain sufficient facts and
argument to support appellate review on the ground that the challenged order affects
a substantial right.” N.C. R. App. P. 28(b)(4) (emphasis added). It is the appellant’s
“burden to establish that a substantial right will be affected unless he is allowed
immediate appeal from an interlocutory order[.]” McConnell v. McConnell, 151 N.C.
App. 622, 625, 566 S.E.2d 801, 804 (2002).
The Statement of the Grounds for Appellate Review in the opening brief
provides no substantive argument explaining how the order for attorney fees affects
BEASLEY V. BEASLEY
MURPHY, J., dissenting.
a substantial right of the party seeking review. Rather, the opening brief contains a
single conclusory statement that the order affects a substantial right and a citation
to Peeler v. Peeler, a case overruled over 35 years ago. Peeler v. Peeler, 7 N.C. App.
456, 172 S.E.2d 915 (1970), overruled by Stephenson v. Stephenson, 55 N.C. App. 250,
285 S.E.2d 281 (1981). Stephenson overruled Peeler and other prior decisions
recognizing a right of immediate appeal from awards pendente lite and held that these
orders and awards were interlocutory decrees that “necessarily do not affect a
substantial right from which lies an immediate appeal pursuant to [N.C. Gen. Stat.
§] 7A-27(d).” Stephenson, 55 N.C. App. at 252, 285 S.E.2d at 282.
Ordinarily, conclusory statements and “bare assertions” such as this are
insufficient to confer appellate jurisdiction. See, e.g., Hoke Cty. Bd. of Educ. v. State,
198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) (“The appellants must present
more than a bare assertion that the order affects a substantial right; they must
demonstrate why the order affects a substantial right.”).
Presumably in response to defendant’s brief, which cited Stephenson and
argued this Court was without jurisdiction to hear this appeal, plaintiff used his reply
brief to take another bite at the apple and attempt to demonstrate how the order
affects a substantial right. The reply brief contends that the “present order is
nonetheless appealable . . . [because] it requires the payment of a considerable sum
of money in a very short span of time.” However, since the appellee typically has no
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BEASLEY V. BEASLEY
MURPHY, J., dissenting.
opportunity to respond to the reply brief, it is not the proper place for an appellant to
make completely new arguments.
Procedural issues notwithstanding, the jurisdictional argument contained in
plaintiff’s reply brief is still insufficient to demonstrate that the award of attorney
fees in this case affects a substantial right of plaintiff’s. Our jurisdictional inquiry is
limited to the traditional “two-part test of the appealability of interlocutory orders
under the ‘substantial right’ exception provided in [N.C. Gen. Stat. §] 1-277(a) and
[N.C. Gen. Stat. §] 7A-27(d)(1).” J & B Slurry Seal Co. v. Mid-South Aviation, Inc.,
88 N.C. App. 1, 5, 362 S.E.2d 812, 815 (1987). “First, the right itself must be
‘substantial.’” Id. Second, the appellant must demonstrate “that the right [will] be
lost or prejudiced if not immediately appealed.” Id. at 6, 362 S.E.2d at 816.
We have recognized that an interlocutory order may affect a substantial right
when a party is required to “make immediate payment of a significant amount of
money.” See, e.g., Estate of Redden v. Redden, 179 N.C. App. 113, 117, 632 S.E.2d
794, 798 (2006) (concluding that an order for partial summary judgement requiring
the defendant to pay the sum of $150,000.00 and costs affected a substantial right).
However, the mere fact that plaintiff here would have to expend thousands of dollars
to comply with the terms of this order does not alone satisfy his burden to show how
the right affected is “substantial.” Since our substantial right precedent requires a
“case by case” analysis, Stafford v. Stafford, 133 N.C. App. 163, 165, 515 S.E.2d 43,
3
BEASLEY V. BEASLEY
MURPHY, J., dissenting.
45 (1999), where an appellant argues that an interlocutory order affects a substantial
right because that order requires him to pay a certain sum of money, we cannot
properly assess the merits of that argument without some explanation as to why the
sum owed is significant in light of the financial resources and constraints of the
appellant. The amount at issue here–$48,188.15–may be the annual earnings for one
litigant, or the monthly salary for another.
More importantly, the appellant seeking review must also show why “the right
[will] be lost or prejudiced if not immediately appealed.” J & B Slurry Seal Co., 88
N.C. App. at 6, 362 S.E.2d at 816. In Hanna v. Wright, the defendant appealed an
interlocutory order which allowed the plaintiff to repossess a piece of heavy
equipment, a “track loader.” Hanna v. Wright, ____ N.C. App. ____, ____, 800 S.E.2d
475, 476 (2017). The defendant alleged that the loss of the track loader would
irreparably prejudice him and, thus, affected a substantial right. However, the
defendant did not allege how the loss of the track loader would cause such prejudice.
Id. Nor did the defendant “argue that losing possession of the [t]rack [l]oader would
prevent [the defendant] from practicing his livelihood as a whole.” Id. We held that
the defendant’s argument “does not evince sufficient grounds for an interlocutory
appeal.” Id.
Here, plaintiff failed to explain how the payment of $48,188.15 particularly
affects him in light of his financial resources. He has also failed to explain why he
4
BEASLEY V. BEASLEY
MURPHY, J., dissenting.
would be “irremediably adversely affected” if the order for attorney fees is not
immediately reviewed by this court. See McConnell, 151 N.C. App. at 625, 566 S.E.2d
at 804. Plaintiff merely asserts that the order requires the payment of a considerable
sum of money in a very short span of time. The Majority relies on this undeveloped
argument and finds additional support for it by adopting an overly broad
interpretation of Case v. Case, 73 N.C. App. 76, 325 S.E.2d 661 (1985). In Case, we
held that the granting of plaintiff’s motion for partial summary judgment affected his
substantial right because the order concluded that a separation agreement was valid
and thus posed a bar to defendant’s counterclaim for equitable distribution. Id. at
82, 325 S.E.2d at 665. I agree that the Case opinion does state and stand for the
general proposition that “[i]t has been held that an order which completely disposes
of one of several issues in a lawsuit affects a substantial right.” Id. at 78, 325 S.E.2d
at 663. However, the Majority goes too far in its reliance on Case by concluding that
this order for attorney fees “completely disposes of one of several issues in a lawsuit”
and “arguably affects a substantial right.” Case does not control here, because this
interlocutory order is for attorney fees, and the one in Case was a summary judgment
order containing a legal conclusion that would absolutely bar a “substantive”
counterclaim.2 Plaintiff has not made the necessary showing that error, if any, cannot
2 The Majority opinion recognizes that attorney fees are a “non-substantive issue” and not a
“substantive claim.”
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BEASLEY V. BEASLEY
MURPHY, J., dissenting.
be corrected through the course of a timely appeal. We do not have jurisdiction to
hear this premature appeal.
I also have great concern with the Majority’s conclusion that N.C. Gen. Stat. §
50-19.1 is applicable to the instant appeal. First, this is not an argument advanced
by plaintiff, and our inquiry should stop there. Second, the statute is not applicable
because the present appeal is not from a final order adjudicating a claim for child
custody, child support, alimony, or equitable distribution. This case is an appeal from
an interlocutory order for attorney fees, a subject left unaddressed by the authors of
N.C. Gen. Stat. § 50-19.1, and the statute has no direct application to the resolution
of this appeal. Third, “[i]t is not the role of this Court . . . to flush out incomplete
arguments[,]” Estate of Hurst v. Jones, 230 N.C. App. 162, 178, 750 S.E.2d 14, 25
(2013), and it is “not the duty of this Court to construct arguments for or find support
for appellant’s right to appeal.” Slaughter v. Swicegood, 162 N.C. App. 457, 463, 591
S.E.2d 577, 581 (2004) (alterations and citations omitted).
Furthermore, our law governing interlocutory appeals seeks to discourage
“piecemeal litigation.” Whiteco Indus., Inc. v. Harrelson, 111 N.C. App. 815, 818, 434
S.E.2d 229, 232 (1993). “[J]udicial economy favors the hearing of petitioner’s motion
for attorney’s fees only after the judgment has become final, thereby avoiding
piecemeal litigation of the issue.” Id. Further, interlocutory appeals are disfavored
in order to “prevent fragmentary, premature and unnecessary appeals by permitting
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BEASLEY V. BEASLEY
MURPHY, J., dissenting.
the trial divisions to [resolve] a case fully and finally before it is presented to the
appellate division.” Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d
338, 343 (1978). There are two substantive claims still outstanding in the present
action, one for alimony and another for equitable distribution, and attorney fees could
still be awarded for those claims. See N.C. Gen. Stat. §§ 50-16.4 (permitting recovery
of counsel fees in actions for alimony) and 50-21(e)(1) (permitting award of attorney
fees as sanction against party in equitable distribution action who has “willfully
obstructed or unreasonably delayed or attempted to obstruct or unreasonably delay
any pending equitable distribution proceeding”). Since these claims are yet to be
resolved, it is plausible that plaintiff may file another appeal in the coming months
challenging those resolutions and/or another order for attorney fees arising out of the
same civil action.
Plaintiff’s opening brief failed to sufficiently state the grounds for appellate
review over this interlocutory order, and we should not consider arguments advanced
for the first time in a reply brief. However, even if it were proper to reach plaintiff’s
jurisdictional argument, I believe that he has failed to demonstrate that the
interlocutory order for attorney fees affects a substantial right in this case and/or
satisfies N.C. Gen. Stat. § 50-19.1. I respectfully dissent.
7
BEASLEY V. BEASLEY
MURPHY, J., dissenting.
8