Church v. Decker

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-771
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
JOHN FLETCHER CHURCH,
Plaintiff

Caldwell County
v.
No. 01 CVD 1391

JEAN MARIE DECKER (formerly Church),
Defendant

Appeal by plaintiff from order entered 30 January 2013 by

Judge Robert M. Brady in Caldwell County District Court. Heard

in the Court of Appeals 9 December 2013.

John Fletcher Church, pro se.

Respess & Jud, by W. Wallace Respess, Jr., and Marshall
Hurley, PLLC, by Marshall Hurley, for Defendant.

ERVIN, Judge.

Plaintiff John Fletcher Church appeals from an order

awarding attorney’s fees to Defendant Jean Marie Decker

(formerly Church). On appeal, Plaintiff argues that the trial

court’s decision to award attorney’s fees would be

unconscionable given that he prevailed in the underlying

appellate proceedings, that the trial court erroneously awarded

attorney’s fees in favor of Defendant without making adequate

findings of fact, that the record did not support a
 -2-
determination that Defendant lacked the ability to defray the

costs of litigation, and that the trial court erroneously

included certain fee and expense amounts in calculating the

attorney’s fee award. After careful consideration of

Plaintiff’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should be reversed and that this case should be

remanded to the Caldwell County District Court for further

proceedings not inconsistent with this opinion.

I. Factual Background

Plaintiff and Defendant were married on 23 December 1992,

separated on 31 August 2001, and divorced on 22 November 2002.

Two children were born of the parties’ marriage: a son, born on

23 October 1993, and a daughter, born on 18 March 1998. Since

separating, the parties have appeared before the trial and

appellate courts of this State on numerous occasions for the

purpose of litigating multiple issues relating to the custody

and support of their children. Having provided a detailed

recitation of the facts underlying this appeal in opinions

resolving prior disputes between the parties, we limit the

factual statement contained in the present opinion to those

substantive and procedural matters that have specific relevance
 -3-
to the issues that are before us at this time.1 As a general

proposition, however, the attorney’s fees awarded in the order

at issue stem from costs incurred by Defendant in connection

with three previous appeals to this Court.

A. Church v. Church (No. COA10-993)

On 10 August 2009, Judge Nancy Black Norelli entered an

order requiring Plaintiff to undergo a “complete psychological

evaluation” and suspending Plaintiff’s visitation with his minor

children until “further order of [the] Court.” In the course of

considering Plaintiff’s appeal from this order, we held that,

while Judge Norelli did not err by requiring Plaintiff to

undergo a psychological evaluation as a precondition for the

restoration of his visitation rights, the order in question

should be reversed and remanded to the Caldwell County District

Court with “instructions that [the] Plaintiff be given an

opportunity to be heard concerning the identity of the mental

health professional responsible for conducting the required

evaluation prior to the entry of a modified order[.]” Church v.

Church, 212 N.C. App. 419, 713 S.E.2d 790 (2011) (unpublished).

B. Church v. Decker (No. COA 11-25)

1
A more detailed factual and procedural history of the
controversy between the parties is contained in our decisions in
Church v. Decker, 212 N.C. App. 691, 718 S.E.2d 736 (2011)
(unpublished), and Church v. Church, 212 N.C. App. 419, 713
S.E.2d 790 (2011) (unpublished).
 -4-
In May 2010, Plaintiff filed a series of motions relating

to Defendant’s alleged failure to comply with prior orders

concerning the custody and support of the couple’s children.

Plaintiff’s motions came on for hearing before Judge J. Gary

Dellinger at the 9 July 2010 Special Session of the Caldwell

County District Court. As a result of Plaintiff’s failure to

attend the 9 July 2010 hearing, Judge Dellinger granted

Defendant’s motion to dismiss Plaintiff’s claims with prejudice

for failure to prosecute. In addition, Judge Dellinger entered

an order on the same date finding that Plaintiff was in willful

civil contempt of court based upon his failure to make payments

to Defendant’s counsel as required by a 28 April 2010 order

requiring Plaintiff to pay Defendant’s attorney’s fees.2 In the

course of considering Plaintiff’s appeal from the 9 July 2010

orders, this Court reversed the orders dismissing Plaintiff’s

motions and holding Plaintiff in contempt and remanded the case

to the Caldwell County District Court for further proceedings.3

2
This Court reversed the 28 April 2010 attorney’s fees order
on the grounds that it lacked sufficient findings of fact to
support an award of attorney’s fees pursuant to N.C. Gen. Stat.
§ 50-13 given the absence of a finding that Defendant was an
interested party acting in good faith. Church v. Decker, 212
N.C. App. 691, 718 S.E.2d 736 (2011) (unpublished).
3
This Court reversed the 9 July 2010 contempt order on the
grounds that the 28 April 2010 attorney’s fees order, which
underlay the 9 July 2010 order, had been previously invalidated
 -5-
Church v. Decker, 214 N.C. App. 193, 714 S.E.2d 529 (2011)

(unpublished).

C. Church v. Church (No. COA11-222)

At the 9 July 2010 hearing, Judge Dellinger entered an

order requiring Plaintiff to appear on 21 July 2010 and show

cause why he should not be held in criminal contempt of court

for failing to comply with prior orders of the court. At the

conclusion of the 21 July 2010 hearing, Judge Dellinger found

Plaintiff to be in criminal contempt of court and entered a

written order consistent with this determination on 17 September

2010.4 On the same date, Judge Dellinger entered an order

awarding $4,160.99 in attorney’s fees to Defendant, with this

amount being set out in an affidavit submitted by Defendant’s

counsel that reflected attorney’s fees that Defendant had

incurred in connection with the 9 July 2010 hearing, the

issuance of the 9 July 2010 show cause order, the entry of the 9

July 2010 and 12 July 2010 civil contempt orders, and the 21

by this Court. Church v. Decker, 214 N.C. App. 193, 714 S.E.2d
529 (2011) (unpublished).
4
Plaintiff appealed the criminal contempt order to the
Caldwell County Superior Court, which invalidated the District
Court’s criminal contempt order on the grounds that the
“District Court trial of [the] matter was prosecuted by someone
not with the [District Attorney’s] office [and without] a
determination that the [District Attorney’s] office had a
conflict.” Church v. Church, __ N.C. App. __, 718 S.E.2d 423
(2011) (unpublished).
 -6-
July 2010 criminal contempt hearing. In the course of

considering Plaintiff’s appeal from the 17 September 2010 order,

this Court held that the amount awarded in that order included

attorney’s fees incurred in connection with the now-invalidated

criminal contempt proceeding and remanded this case to the

Caldwell County District Court for entry of a new attorney’s

fees order without expressing any opinion concerning Defendant’s

entitlement, if any, to the remaining balance of attorney’s fees

reflected in the 17 September 2010 order. Church v. Church, __

N.C. App. __, 718 S.E.2d 423 (2011) (unpublished).

D. 26 July 2012 Hearing

On 26 July 2012, Judge Dellinger held a hearing to consider

the issues that had been remanded for further consideration by

this Court. During the 26 July 2012 hearing, Judge Dellinger

received testimony from Defendant concerning her financial

status and her ability to defray the costs of the litigation in

which she was involved. More specifically, Defendant testified

that her annual income was $68,000; that her home was valued at

$268,000; that she had borrowed $15,000 in 2007 using her home

as collateral; that she had purchased a 2011 Honda CRV for

$26,000; that her retirement accounts were valued at certain

account-specific amounts; and that her current husband was

employed as a project manager. On 15 November 2012, Judge
 -7-
Dellinger entered an order finding that the attorney’s fees that

Defendant had incurred “exclusive of services devoted to

criminal contempt [totaled] $4,035.995” and that Plaintiff was

required to pay this amount directly to Defendant’s counsel.

E. 15 November 2012 Hearing

On 15 November 2012, a hearing was held before the trial

court stemming from Defendant’s motion seeking an award of

attorney’s fees pursuant to N.C. Gen. Stat. § 50-13.6 relating

to the proceedings held in connection with the three appeals

discussed above. On 30 January 2013, the trial court entered an

order awarding attorney’s fees to Defendant in the amount of

$44,666.75 stemming from this Court’s decisions in Case Nos.

COA10-993, COA11-25, and COA11-222, and including additional

fees and expenses incurred after the conclusion of the

proceedings on appeal.6 In its order, the trial court found as a

fact that:

5
An appeal that Plaintiff noted from this order resulted in
a decision reversing the 15 November 2012 order and remanding
this case to the Caldwell County District Court for the entry of
an order containing adequate findings relating to Defendant’s
ability to defray the costs of litigation. Church v. Decker, __
N.C. App. __, 753 S.E.2d 742 (2013) (unpublished).
6
More specifically, the trial court awarded $19,976.75 in
attorney’s fees related to Case No. COA10-993, $6,393.75 in
attorney’s fees related to Case No. COA11-25, $11,925.25 in
attorney’s fees related to Case No. COA11-222, and $6,375.00 in
attorney’s fees relating to fees and expenses incurred after the
conclusion of the proceedings on appeal in these cases.
 -8-
4. At all times relevant to the appeals and
the prior litigation in District Court,
the Defendant is and has been an
interested party acting in good faith who
has insufficient means to defray the
expenses of this litigation.

5. The Defendant has insufficient means to
defray the expenses of litigation in the
appellate courts of North Carolina and is
in need of funds to pay legal expenses in
this matter; she is not financially able
to defend her interests in the Court of
Appeals without assistance. The
Defendant is entitled to secure counsel
to defend her interests in this
litigation.

6. At times during the course of this
litigation, the Defendant has borrowed
funds to pay for necessary legal
expenses.

7. The record contains a specific finding by
the Caldwell County District Court that
the Defendant “has insufficient means
with which to defray the expense of this
suit.” Finding 13, R.p.72 in case number
10-993. There have been no substantial
or significant changes in the Defendant’s
financial position or means since the
entry of the Court’s findings.

Plaintiff noted an appeal to this Court from the 30 January 2013

order.

II. Award of Attorney’s Fees

In his brief, Plaintiff argues, among other things, that

the trial court erred by failing to make sufficiently specific

findings of fact in support of its determination with respect to
 -9-
the issue of Defendant’s ability to defray the costs of

litigation. Plaintiff’s argument is persuasive.

“The recovery of attorney’s fees is a right created by

statute.” Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222,

224 (2002). “A trial court cannot award attorneys’ fees unless

specifically authorized by statute.” Wiggins v. Bright, 198

N.C. App. 692, 695, 679 S.E.2d 874, 876 (2009). N.C. Gen. Stat.

§ 50-13.6, which governs the attorney’s fees awards in actions

relating to the custody and support of minor children, provides,

in pertinent part, that:

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.

N.C. Gen. Stat. § 50-13.6. “Whether these statutory

requirements have been met is a question of law, reviewable on

appeal.” Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719,

724 (1980). “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) (citing

Hudson, 299 N.C. at 472, 263 S.E.2d at 724).
 -10-
According to well-established North Carolina law, a valid

order authorizing an award of attorney’s fees pursuant to N.C.

Gen. Stat. § 50-13.6 must include findings of fact to the effect

(1) that the party seeking an award of fees was acting in good

faith and (2) that the party seeking an award of attorney’s fees

lacks sufficient means to defray the expenses of the litigation

in which he or she is involved. Doan, 156 N.C. App. at 575, 577

S.E.2d at 150; see Dixon v. Gordon, __ N.C. App. __, __ 734

S.E.2d 299, 304 (2012) (stating that, “[i]n an action for child

custody, 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”) (internal quotation omitted), disc. review denied, __

N.C. __, 743 S.E.2d 191 (2013). “A party has insufficient means

to defray the expense of the suit when he or she is unable to

employ adequate counsel in order to proceed as litigant to meet

the other spouse as litigant in the suit.” Taylor v. Taylor,

343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996) (quoting Hudson, 299

N.C. at 474, 263 S.E.2d at 725).

A trial court’s findings concerning the extent of a party’s

ability to defray the costs of litigation must consist of more

than a “bald statement that a party has insufficient means to

defray the expenses of the suit.” Cameron v. Cameron, 94 N.C.
 -11-
App. 168, 172, 380 S.E.2d 121, 124 (1989) (vacating an

attorney’s fees award on the grounds that the trial court’s

findings of fact were insufficient to support a determination

that the plaintiff had insufficient means to defray litigation

costs). For that reason, a simple restatement of the relevant

statutory language does not suffice to constitute an adequate

finding with respect to the “ability to defray the costs of

litigation” issue because such a “finding” is, in reality, a

conclusion of law which, in turn, must be supported by

sufficient findings of fact. Atwell v. Atwell, 74 N.C. App.

231, 238, 328 S.E.2d 47, 51 (1985) (citing Quick v. Quick, 305

N.C. 446, 453-54, 290 S.E.2d 653, 659 (1982)).

The appellate courts in this jurisdiction have routinely

enforced the requirement that the trial court make adequate

findings of fact before upholding an award of attorney’s fees

pursuant to N.C. Gen. Stat. § 50-13.6. In Atwell, this Court

overturned an award of attorney’s fees on the grounds that the

trial court simply found that the wife was an interested party

acting in good faith who had insufficient means to defray the

expenses of the suit, stating that “this ‘finding’ is, in

reality, a conclusion of law” which is not supported by adequate

findings of fact. Id. More recently, in Dixon, this Court held

that the trial court’s finding that the plaintiff did “not have
 -12-
sufficient funds with which to employ and pay legal counsel” to

“meet [the defendant] on an equal basis” was nothing more than

the citation of “bare statutory language” and insufficient to

support the challenged attorney’s fees award, Dixon, __ N.C.

App. at __, 734 S.E.2d at 305, noting that, “[a]lthough

information regarding [the plaintiff’s] gross income and

employment was present in the record in [the plaintiff’s]

testimony, there are no findings in the trial court’s order

which detail this information.” Id. Thus, this Court has not

hesitated to enforce the requirement that the trial court’s

order contain adequate findings of fact relating to the movant’s

ability to defray the costs of litigation before upholding an

award of attorney’s fees pursuant to N.C. Gen. Stat. § 50-13.6.

At the hearing that led to the entry of the 30 January 2013

order, Defendant argued that Judge Dellinger had already

considered and decided the “ability to defray” the cost of

litigation issue. Admittedly, Defendant testified concerning

the value of her home, vehicle, and retirement accounts and

stated that she earned an annual salary of $68,000.00 at the 26

July 2012 hearing. Assuming, without deciding, that this

evidence was properly before the trial court at the 15 November

2012 hearing, none of the information that Defendant provided on

that occasion was detailed in the trial court’s findings in
 -13-
support of its conclusion that Defendant lacked the ability to

defray the cost of litigation. As a result, even if

“information regarding [the defendant’s] gross income and

employment was present in the record in [Defendant’s] testimony,

there are no findings in the trial court’s order which detail

this information,” Dixon, __ N.C. App. at __, 734 S.E.2d at 305,

requiring us to hold that the order under consideration in this

case cannot be sustained.7 Cameron, 94 N.C. App. at 172, 380

S.E.2d at 124; Atwell, 74 N.C. App. at 238, 328 S.E.2d at 51-52.

As a result, we must reverse the trial court’s order and remand

this case to the Caldwell County District Court for, at a

minimum, the entry of a new order containing adequate findings

7
Admittedly, the trial court did find that, “[a]t times
during the course of this litigation, the Defendant has borrowed
funds to pay for necessary legal expenses.” This finding, in
the absence of more detailed findings concerning other related
issues, is not sufficient to support a determination that
Defendant lacked the ability to defray the costs of the
litigation. In addition, the trial court found that there have
been no substantial changes to Defendant’s financial position
since the 30 April 2009 finding that Defendant “has insufficient
means with which to defray the expense of this suit.” However,
that finding is insufficient to support the relevant conclusion
of law as well given that the finding in question was made in
connection with the entry of an interim order entered by Judge
Norelli that was revisited by Judge Dellinger as a result of the
proceedings that led to entry of the 28 April 2010 order. As we
have already noted, this Court overturned the 28 April 2010
order on appeal. As a result, the findings that the trial court
did make in the 30 January 2013 order do not suffice to support
its determination that Defendant lacked the ability to defray
the costs of litigation.
 -14-
of fact concerning the extent of Defendant’s ability to defray

the costs of litigation.8

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Plaintiff’s challenge to the 30 January 2013 order has merit.

As a result, the 30 January 2013 order should be, and hereby is,

reversed, and this case should be, and hereby is, remanded to

the Caldwell County District Court for further proceedings not

inconsistent with this opinion.

REVERSED AND REMANDED.

Chief Judge MARTIN and Judge McCULLOUGH concur.

Report per Rule 30(e).

8
We express no opinion concerning the validity of
Plaintiff’s other challenges to the trial court’s order,
including his challenge to the sufficiency of the information
contained in Defendant’s testimony to sustain the trial court’s
determinations regarding her ability to defray the costs of
litigation. Instead, we merely conclude that the findings
contained in the 30 January 2013 order are not sufficient to
support a determination that Defendant lacked the ability to
defray the costs of litigation and leave the other issues raised
in Plaintiff’s brief for future consideration in the event that
it ever becomes necessary to address them.