NO. COA01-1288
NORTH CAROLINA COURT OF APPEALS
Filed:
15 October 2002
DARRYL T. BURR,
Plaintiff,
v.
DONNA H. BURR,
Defendant.
Appeal by plaintiff from order entered 11 April 2001 by Judge
C.W. Bragg in Anson County District Court.
Heard in the Court of
Appeals 17 September 2002.
Henry T. Drake for plaintiff-appellant.
No brief filed for defendant-appellee.
EAGLES, Chief Judge.
Darryl Burr (“plaintiff”) appeals from the award of attorney’s
fees to Donna Burr (“defendant”) in an action for payment of child
support, child custody and the termination of parental rights.
Plaintiff asserts on appeal that the trial court erred by awarding
attorney’s fees to defendant.
We agree in part and remand the case
to the trial court for further factual determinations regarding the
payment of attorney’s fees.
The evidence tends to show the following.
In an order dated
14 November 1997, the District Court of Anson County concluded that
defendant had abandoned her child.
The court awarded custody to
plaintiff, with visitation to defendant “on such terms as [were]
mutually agreeable.”
The visitation terms were not stated in the
district court’s order.
-2Plaintiff filed an action to terminate defendant’s parental
rights 24 February 1999.
On 16 July 1999, plaintiff filed a motion
in the cause seeking child support.
On 6 October 2000, defendant
served a motion seeking modification of the custody order, based on
an alleged substantial change in circumstances. Plaintiff moved to
dismiss the motion seeking modification of the custody order, or
alternatively to combine the consideration of that motion with the
original termination action.
The trial court did not address
either alternative of plaintiff’s motion.
The motion seeking termination of parental rights was denied
by order on 11 April 2001.
In a separate order on 11 April 2001,
the trial court concluded that defendant should have been paying
child support for her son.
The trial court found that defendant
was unemployed, but reasonably capable of earning up to $1039 per
month and that defendant owed plaintiff $7420 in past due child
support.
The trial court ordered defendant to pay $188 per month
as current child support, and $112 per month to be applied to past
due child support.
The trial court continued primary custody of
the child with plaintiff.
However, the court’s order on 11 April
2001 set forth specific visitation times for defendant, unlike the
previous custody order.
The trial court concluded that the plaintiff had sufficient
means to defray the cost of the lawsuit, but found that defendant
had no assets other than her car and some household furniture.
The
trial court found that “Defendant was a party acting in good faith
with insufficient means to defray the expense of the suit.”
Mr.
-3Hodgins, defendant’s attorney, filed an affidavit detailing legal
services outlining 59 hours of work and requesting $100 per hour
for
his
services.
The
court
concluded
that
the
rate
was
reasonable, but awarded Hodgins an attorney’s fee totaling $3,000.
The order stated that plaintiff was to pay the fee within 90 days
of the order’s filing. Plaintiff appeals.
Plaintiff contends that under G.S. § 50-13.6 the trial court
failed
to
find
the
attorney’s fees.
adequate
We agree.
facts
to
support
the
award
of
The statute in question reads:
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
of
reasonable
attorney’s fees to an interested party as
deemed appropriate under the circumstances.
G.S. § 50-13.6 (2001)(emphasis added).
Plaintiff here argues that
because defendant did not prevail at trial, the award of attorney’s
fees to defendant was improper.
We disagree.
The recovery of attorney’s fees is a right created by statute.
See McGinnis Point Owners Ass’n v. Joyner, 135 N.C. App. 752, 522
S.E.2d 317 (1999).
A party can
recover attorney’s fees only if
-4“such a recovery is expressly authorized by statute.” Id. at 756,
522
S.E.2d
at
320.
Here,
the
trial
court
considered
three
substantive issues: the termination of parental rights, the award
of child custody, and the payment of child support.
Following the
determination of child custody and support actions, the trial court
is permitted to award attorney’s fees among the parties according
to G.S. § 50-13.6.
This award of attorney’s fees is not left to the court’s
unbridled discretion; it must find facts to support its award. See
Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975), Hudson v.
Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980). Specifically, the
trial court was required to make two findings of fact: that the
party to whom attorney’s fees were awarded was (1) acting in good
faith and (2) has insufficient means to defray the expense of the
suit.
Hudson, 299 N.C. at 472, 263 S.E.2d at 723.
“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 724.
Here,
the
court
found
as
a
fact
interested party acting in good faith.
that
defendant
was
an
The trial court also found
that defendant had insufficient means to defray the costs of the
lawsuit.
Since the trial court had considered both child custody
and child support issues, the court was not required to make an
additional finding of fact regarding a refusal to provide support
in order to award defendant attorney’s fees according to the second
-5sentence of G.S. § 50-13.6.
See Stanback v. Stanback, 287 N.C.
448, 215 S.E.2d 30 (1975), Hudson v. Hudson, 299 N.C. 465, 263
S.E.2d 719 (1980), Plott v. Plott, 74 N.C. App. 82, 327 S.E.2d 273
(1985).
A factual finding regarding refusal to provide support is
only necessary when child support is not determined in the same
proceeding with child custody. Id.
However, the termination of parental rights statute, G.S. §
7B-1100 et seq., does not provide specifically for the shifting of
attorney’s fees.
The statute allows the trial court to tax the
costs of the termination action to any party. G.S. § 7B-1110(e)
(2001).
However, an award of attorney’s fees is not synonymous
with costs.
The order to pay attorney’s fees is enforceable by
contempt for disobedience, while taxed costs only represent a civil
judgment against a party.
See Smith v. Price, 315 N.C. 523, 538,
340 S.E.2d 408, 417 (1986).
In order to award attorney’s fees to
defendant for the portion of the trial dedicated to the termination
action, the trial court would be required to tax the costs of the
action to plaintiff and include attorney’s fees within those costs.
Since the trial court failed to tax costs to plaintiff, its award
of attorney’s fees for the termination portion of the trial was not
supported by statutory authority.
We find no abuse of discretion in the award of attorney’s fees
for the child custody and support portions of the lawsuit, since
the trial court made sufficient factual findings to sustain an
award on those bases.
However, since there is no statutory
authority for the award of attorney’s fees for the portion of the
-6trial devoted to
the consideration of the termination of parental
rights action, any
award of attorney’s fees for the termination
action is in error.
Accordingly, we remand the matter to the trial
court for a factual determination of the portion of the award of
attorney’s fees that properly can be attributed to the custody and
support actions only and for entry of an appropriate award of
attorney’s fees.
Affirmed in part, reversed in part, and remanded.
Judges MARTIN and THOMAS concur.
