Cauley v. Cauley

• Court: Court of Appeals of North Carolina
• Decided: June 18, 2025
• Docket: 24-200
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-200

Filed 18 June 2025

Watauga County, No. 21 CVD 149

JULIANA CAULEY, Plaintiff,

v.

MICHAEL CAULEY, Defendant.

Appeal by Plaintiff from orders entered 7 August 2023 by Judge Hal G.

Harrison in Watauga County District Court. Heard in the Court of Appeals 8 October

2024.

King Law Offices, by Krista S. Peace and Patrick K. Bryan, for plaintiff- appellant.

Andrew C. Brooks, for defendant-appellee.

STADING, Judge.

Juliana Cauley (“Plaintiff”) appeals from orders granting Michael Cauley

(“Defendant”) attorney’s fees and denying her Rule 59 and 60 motions. For the

following reasons, we vacate the attorney’s fees order and remand for further

proceedings. We also vacate the trial court’s order denying Plaintiff's Rule 59 and 60

motions. CAULEY V. CAULEY

Opinion of the Court

I. Background

This case has a complex procedural history. The action commenced when

Plaintiff filed a complaint under Chapter 50B for a domestic violence protective order

(“DVPO”) against Defendant on 29 March 2021. Defendant filed an answer and

counterclaims, but later voluntarily dismissed all counterclaims. Defendant later

filed a separate action for child custody under Chapters 50 and 50A of the General

Statutes.

With respect to the Chapter 50B action, on 29 March 2021, the trial court

entered an order granting Plaintiff an ex parte DVPO. The trial court set the return

hearing for 21 April 2021. Thereafter, the parties mutually agreed to continue the

matter several times and leave the ex parte order in effect. On 27 October 2021, the

trial court granted an additional continuance and scheduled a new court date of 3

December 2021. The record contains no indication that any action was taken on the

new court date.

Nothing happened with Plaintiff’s Chapter 50B action until she sought to

revive the matter under N.C. Gen. Stat. § 1A-1, Rule 15 (2023) by requesting leave to

amend her complaint on 5 January 2023, over a year after the last scheduled court

date. In response, Defendant moved for attorney’s fees and sanctions under N.C.

Gen. Stat. §§ 1A-1, Rule 11, 50B-3(a)(10), and 6-21.5 (2023). The trial court granted

Plaintiff’s request for leave to amend her complaint but denied Defendant’s requests

for attorney’s fees and sanctions on this occasion. Plaintiff filed her amended

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complaint on 23 January 2023, and on 15 March 2023, Defendant filed an answer to

the amended complaint, a motion to dismiss and again moved for sanctions as well

as reasonable expenses and attorney’s fees under N.C. Gen. Stat. §§ 1A-1, Rule 11,

50B-3(a)(10), and 6-21.5. On 23 May 2023, the trial court conducted a hearing and

dismissed Plaintiff’s complaint, having determined she “failed to prove grounds for

issuance of a domestic violence protective order.”

On 26 May 2023, Defendant moved for return of his weapons surrendered

under the ex parte DVPO. The trial court conducted a hearing and ordered

Defendant’s weapons returned to him on 31 May 2023. On 20 July 2023, Plaintiff

was served with Defendant’s motion for attorney’s fees and a notice of hearing, but

“forgot to mark the hearing on her calendar.” On 7 August 2023, the hearing for

attorney’s fees was scheduled but Plaintiff did not appear. The trial court awarded

Defendant $21,105.00 in expenses and $75,258.00 in attorney’s fees in an order citing

N.C. Gen. Stat. §§ 50B-3(a)(10), 50A-312, and 50-13.6 (2023).

On 17 August 2023, Plaintiff moved the trial court, under Rules 59 and 60 of

the North Carolina Rules of Civil Procedure, for a new trial, or alternatively, for the

attorney’s fees order to be set aside or amended. See N.C. Gen. Stat. § 1A-1, Rules

59, 60. The trial court denied Plaintiff’s Rule 59 and 60 motions in an order dated 21

September 2023. Plaintiff entered her written notice of appeal on 18 October 2023.

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II. Subject Matter Jurisdiction

Plaintiff maintains the trial court lacked subject-matter jurisdiction to award

attorneys’ fees under N.C. Gen. Stat. §§ 50B-3(a)(10), 50A-312, and 50-13.6.

A. Chapters 50 and 50A

The trial court ordered attorney’s fees under N.C. Gen. Stat. § 50-13.6:

In an action or proceeding for the custody or support, or both, of a minor child . . . 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.

It also ordered attorney’s fees under N.C. Gen. Stat. § 50A-312, relevant here:

(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorneys’ fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

As acknowledged by the trial court in its denial of Plaintiff’s DVPO on 23 May

2023, determinations of custody “remain[ed] with the Watauga County Department

of Social Services pending further orders in that case.” To the extent the awards

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included fees incurred from the actions under Chapters 50 and 50A, the trial court

could not award attorney’s fees since those causes of action were stayed by statute.

See N.C. Gen. Stat. § 7B-200(c)(1) (2023) (“When the court obtains jurisdiction over a

juvenile as the result of a petition alleging that the juvenile is abused, neglected, or

dependent . . . [a]ny other civil action in this State in which the custody of the juvenile

is an issue is automatically stayed as to that issue . . . .”); see also McMillan v.

McMillan, 267 N.C. App. 537, 542, 833 S.E.2d 692, 696 (2019). Accordingly, we vacate

the trial court’s award of attorney’s fees attributed to the actions under Chapters 50

and 50A.

B. Chapter 50-B

The trial court cited N.C. Gen. Stat. § 50B-3—the statute enumerating relief

available for a protective order—as an additional basis to award attorney’s fees. In

relevant part, that provision states, “[a] protective order may include [an] . . . [a]ward

[of] attorney’s fees to either party.” N.C. Gen. Stat. § 50B-3(a)(10).

In Rudder v. Rudder, a prior panel from our Court considered the validity of a

one-year DVPO entered by the trial court after the associated ex parte DVPO had

expired by more than one-year. 234 N.C. App. 173, 175, 759 S.E.2d 321, 324 (2014).

With respect to the trial court’s ex parte order, the Rudder Court initially concluded,

“[b]ased upon the orders entered continuing the ex parte DVPO and setting this

matter for hearing, upon expiration of the ex parte order after more than a year, the

trial court no longer had jurisdiction under the original complaint to enter an order

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further extending the DVPO.” Id. at 184, 759 S.E.2d at 329. Then, the Court

extended its reasoning to the associated one-year DVPO: “Because the trial court, in

this case, lacked authority to enter the [one-year] order after the ex parte DVPO

expired more than 18 months after its original entry, we vacate the [one-year] DVPO

and remand for a hearing on defendant’s motion for return of firearms.” Id. at 186,

759 S.E.2d at 330.1

N.C. Gen. Stat. § 50B-3(a)(10) characterizes attorney’s fees as “relief” available

in the order resulting from a request for a DVPO. An application of the Rudder ruling

results in the trial court losing jurisdiction to enter the order and therefore any relief

available under the statute. Rudder, 234 N.C. App. at 175, 759 S.E.2d at 324. The

Rudder decision produces an unintended consequence when considering this

particular set of facts. Regardless, we are bound by precedent. See In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals

has decided the same issue, albeit in a different case, a subsequent panel of the same

court is bound by that precedent, unless it has been overturned by a higher court.”).

We vacate the trial court’s award of attorney’s fees attributed to N.C. Gen. Stat. §

50B-3(a)(10).

1 The Rudder Court reached this determination after acknowledging a plaintiff could seek a

one-year DPVO even without requesting an ex parte DVPO: “This case also does not present the issue whether a hearing upon a domestic violence complaint or motion, when no ex parte order was entered, could be continued repeatedly, even for more than a year, and we do not address that situation.” Id. at 185, 759 S.E.2d at 330.

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C. N.C. Gen. Stat. § 6-21.5

In his “Motion to Dismiss; Answer to Amended Complaint,” Defendant

requested the trial court award reasonable expenses and attorney’s fees, citing N.C.

Gen. Stat. §§ 1A-1, Rule 11, 50B-3(a)(10), and 6-21.5. Defendant’s request for

attorney’s fees did not cite any provisions from Chapters 50 or 50A. Yet, as noted

above, in its order awarding attorney’s fees, the trial court’s order referenced N.C.

Gen. Stat. §§ 50B-3(a)(10), 50A-312, and 50-13.6. The trial court’s order does not cite

N.C. Gen. Stat. §§ 1A-1, Rule 11, and 6-21.5 in awarding reasonable expenses and

attorney’s fees, nor does the record reveal whether the trial court considered these

statutes. Plaintiff argues on appeal, “the only statutory authority arguably

authorizing entry of any attorney’s fees award . . . would be N.C. Gen. Stat. §6-21.5,”

but the trial court’s order did not contain “the requisite findings of fact.” Neither

party argues on appeal for or against remedial measures available under Rule 11.

The relevant portions of N.C. Gen. Stat. § 6-21.5 provide:

In any civil action, special proceeding, or estate or trust proceeding, the court, upon motion of the prevailing party, may award a reasonable attorney’s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading . . . . The court shall make findings of fact and conclusions of law to support its award of attorney’s fees under this section.

“The purpose behind N.C. Gen. Stat. § 6-21.5 is to ‘discourage frivolous legal

action.’” McLennan v. Josey, 247 N.C. App. 95, 98, 785 S.E.2d 144, 148 (2016)

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(citation omitted). To support an award of attorney’s fees under section 6-21.5, “a

plaintiff must either”:

(1) ‘reasonably have been aware, at the time the complaint was filed, that the pleading contained no justiciable issue’; or (2) be found to have ‘persisted in litigating the case after the point where [he] should reasonably have become aware that pleading [he] filed no longer contained a justiciable issue.’”

Id. at 99, 785 S.E.2d at 148 (citations omitted). “[A] ‘prevailing party,’ as used in

Section 6-21.5, is a party who prevails on a claim or issue in an action, not a party

who prevails in the action.” Persis Nova Constr. v. Edwards, 195 N.C. App. 55, 66,

671 S.E.2d 23, 30 (2009) (citation omitted). A prevailing party is one who succeeded

“on any significant issue in the litigation which achieves some of the benefit the

parties sought in bringing the suit.” House v. Hillhaven, Inc., 105 N.C. App. 191, 196,

412 S.E.2d 893, 896 (1992) (citation omitted). Although section 6-21.5 is outside of

Chapter 50B, a party is permitted to pursue other remedies under N.C. Gen. Stat. §

50B-7(a)(1): “The remedies provided by this Chapter are not exclusive but are

additional to remedies provided under Chapter 50 and elsewhere in the General

Statutes.”

Here, the trial court could have assessed attorney’s fees under other statutes

which Defendant included in his motion before the trial court. See id. Although there

is no precedent directly addressing the exact issue before us, our Court has previously

determined a trial court possessed jurisdiction to award attorney’s fees under section

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6-21.5 even though “the motion seeking such payment was filed more than a year

after summary judgment was entered for the defendants and more than a month after

the judgment was affirmed on appeal.” Brooks v. Giesey, 106 N.C. App. 586, 590, 418

S.E.2d 236, 238 (1992). An analogous application of Brooks to the present matter

would be neither inconsistent with Rudder nor contradictory to the general statutes.

The Rudder Court limited its analysis to the trial court’s jurisdiction in entering a

permanent protective order under section 50B-3 after the relevant ex parte DVPO

expired. 234 N.C. App. at 182, 759 S.E.2d at 328. Unlike Rudder, the issuance of a

DVPO by the trial court is not in question here. Rather, the material issue in this

case is whether the trial court’s jurisdiction persists to award attorney’s fees after

Plaintiff’s ex parte DVPO expired. The plain language of section 50B-7(a)

incorporates the “remedies provided under Chapter 50 and elsewhere in the General

Statutes.” N.C. Gen. Stat. § 50B-7. Not only law, but logic also supports the

conclusion that the trial court retained its ability to consider attorney’s fees under

N.C. Gen. Stat. § 6-21.5. Under a scenario whereby a party wrongfully brings an

action, and a trial court lacks jurisdiction to consider the claim, depriving a blameless

party’s request of attorney’s fees for want of jurisdiction in the underly claim creates

a perplexing result.

When awarding attorney’s fees in the instant case, the trial court did not make

findings of whether there was a complete absence of a justiciable issue; nor did it

make findings of whether either party prevailed. See id. § 6-21.5. We therefore

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vacate and remand the trial court’s underlying order for further proceedings

consistent with this opinion.

III. Post-Trial Motions

Plaintiff argues the trial court’s denial of her Rule 59 and 60 motions “are

devoid of reason and amount to a substantial miscarriage of justice.” Since we vacate

a portion of the trial court’s order and remand it for further findings of fact and

conclusions of law, the trial court’s Rule 59 and 60 order should be vacated as moot.

See Geoghagan v. Geoghagan, 254 N.C. App. 247, 251–52, 803 S.E.2d 172, 176 (2017)

(holding review of the defendant’s Rule 60 issue as moot since “the order from which

movant sought relief through the Rule 60 motion had been” vacated); see also Khwaja

v. Khan, 239 N.C. App. 87, 92, 767 S.E.2d 901, 904 (2015) (“Based on the foregoing,

we reverse the orders of the trial court entered 29 October 2013 granting Plaintiff

summary judgment and costs; we vacate the 25 April 2014 order denying Defendants’

Rule 60(b) motion as moot . . . .”). We thus decline to address Plaintiff’s arguments

with respect to the trial court’s Rule 59 and 60 order.

IV. Conclusion

For the reasons above, we vacate and remand the trial court’s order for

attorney’s fees, but hold the trial court could award attorney’s fees if supported by

appropriate statutory authority and a sufficient order. On remand, if the trial court

deems appropriate, it may hold an evidentiary hearing and consider additional

evidence on the issue of attorney’s fees. See Shropshire v. Shropshire, 284 N.C. App.

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92, 103–04, 875 S.E.2d 11, 20 (2022). Consequently, we vacate the trial court’s

subsequent order denying Plaintiff’s Rule 59 and 60 motions. Since we vacate the

orders and remand this matter to the trial court, consideration of Plaintiff’s

arguments about the trial court’s findings of fact and conclusions of law are

unnecessary at this time.

VACATED AND REMANDED.

Judge WOOD concurs.

Judge ARROWOOD concurs in part and dissents in part by separate opinion.

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ARROWOOD, Judge, concurring in part and dissenting in part.

I concur with the decision to vacate the order on attorney fees in accordance

with the statutes and Rudder v. Rudder. The trial court lacked jurisdiction to enter

the DVPO after the ex parte order expired without proper renewal. However, I

dissent from the majority’s analysis with respect to N.C.G.S. § 6-21.5, as I believe

remanding with instructions on these grounds is unnecessary.

It is well-settled that “the Court of Appeals may not address an issue not raised

or argued by [the appellant] for it is not the role of the appellate courts to create an

appeal for an appellant.” Bottoms Towing & Recovery, LLC v. Circle of Seven, LLC,

386 N.C. 359, 362, 905 S.E.2d 14, 16–17 (2024) (quoting In re R.A.F., 384 N.C. 505,

512, 886 S.E.2d 159 (2023)).

In the order on attorney’s fees, the trial court concluded defendant was entitled

to be reimbursed pursuant to N.C.G.S. §§ 50B-3(a)(1), 50A-312, and 50-13.6. The

trial court did not make any findings of fact or conclusions of law with respect to

N.C.G.S. § 6-21.5, nor did it find that there was a complete absence of a justiciable

issue. Although plaintiff states in her brief that § 6-21.5 may be “the only statutory

authority arguably authorizing entry of any attorney’s fees award,” plaintiff contends

that “[w]ithout any of the requisite findings in the Fees Order, the trial court could CAULEY V. CAULEY

ARROWOOD, J., concurring in part and dissenting in part

not” award attorney’s fees to defendant under § 6-21.5.

The majority cites § 50B-7 which allows for parties to pursue other remedies

outside Chapter 50B. Although this may be true, the parties here did not pursue

remedies under § 6-21.5, at trial or on appeal. I believe we should not address the

same, and that the appropriate action in this case is to vacate the orders without

reaching beyond the proceedings before the trial court and the parties’ arguments on

appeal.

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