Cobb v. Cobb

339 S.E.2d 825, 79 N.C. App. 592, 1986 N.C. App. LEXIS 2088
CourtCourt of Appeals of North Carolina
DecidedMarch 4, 1986
Docket8521DC483
StatusPublished
Cited by24 cases

This text of 339 S.E.2d 825 (Cobb v. Cobb) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobb v. Cobb, 339 S.E.2d 825, 79 N.C. App. 592, 1986 N.C. App. LEXIS 2088 (N.C. Ct. App. 1986).

Opinions

JOHNSON, Judge.

Defendant assigns as error the court finding as fact that the attorney for plaintiff spent no less than 34.15 hours working on this case and that the value for these services was no less than $3000. Defendant contends that many items shown in the affidavit for attorney’s fees submitted by the attorney had no relation to this action, but included time spent on separate actions between plaintiff and defendant in California and South Carolina.

The trial court’s findings of fact are conclusive if supported by any competent evidence. Little v. Little, 9 N.C. App. 361, 365, 176 S.E. 2d 521, 523-24 (1970). Bearing this principle in mind we now review the evidence in the case sub judice relative to this issue. Melvin F. Wright, Jr., the attorney of plaintiff, submitted an affidavit itemizing the services he rendered for plaintiff in connection with this case. He stated in his affidavit that he had represented plaintiff since December 1982, yet the attorney does not show an itemized entry for time spent on this case until 19 July 1983. According to his affidavit, between 19 July 1983 and 3 May 1984, he had spent 3.3 hours on this case. The balance of the 34.15 hours accrued from 3 May 1984 on. Plaintiff filed her complaint 15 June 1984. “All litigation inevitably involves certain precursory activity.” Whedon v. Whedon, 58 N.C. App. 524, 530, 294 S.E. 2d 29, 33 (1982). Such legitimate work by counsel in precursory activity is allowable within an attorney fee award in connection with a domestic case. Id. We deem the time shown on the attorney fee affidavit as spent prior to the filing of plaintiffs complaint such legitimate precursory activity. The record shows sufficient evidence to support the court’s finding that plaintiffs attorney spent 34.15 hours on this case. There is also evidence in the record to show that the attorney advanced on behalf of plaintiff $123 for expenses connected with this case. There is evidence to show that the total amount expended by Mr. Wright on behalf [595]*595of his client for. services rendered and expenses incurred totaled $3538. The court’s finding that the attorney spent no less than 34.15 hours on the case valued at no less than $3000 is supported by sufficient evidence. Defendant’s first Assignment of Error is overruled.

Defendant’s remaining Assignments of Error pertain to the following findings of fact regarding the court’s order for attorney’s fees:

1. Plaintiffs attorney, Melvin F. Wright, Jr., has rendered valuable legal services to the Plaintiff in this matter, including interviews, preparation of the Complaint, and the hearing of this action, and has spent, pursuant to the Affidavit for Counsel Fees filed herein, no less than 34.15 hours working on this case on the Plaintiffs behalf and has advanced the sum of $123.00 in direct expenses on her behalf and that the value for the services rendered to the Plaintiff in this matter is no less than $3000.00.
2. The Plaintiff does not have the means wherewith the [sic] defray the costs and expenses incurred as a result of the preparation, filing and hearing of this action, and the Plaintiff is therefore entitled to an award from the Defendant for counsel fees pursuant to North Carolina General Statutes 50-13.6.

An order for attorney’s fees pursuant to G.S. 50-13.6 in an action for child custody or support, or both, must be supported by findings, required by the statute, that the party seeking the award is (1) an interested party acting in good faith and (2) has insufficient means to defray the expense of the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980). See G.S. 50-13.6. Because G.S. 50-13.6 allows for an award of reasonable attorney’s fees, cases construing the statute have in effect annexed an additional requirement concerning reasonableness onto the express statutory ones. Warner v. Latimer, 68 N.C. App. 170, 176, 314 S.E. 2d 789, 793 (1984). Namely, the record must contain additional findings of fact upon which a determination of the requisite reasonableness can be based, such as findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney’s hourly rate, and its reasonableness in comparison with that of other lawyers. Id.; Falls v. Falls, 52 N.C. App. 203, [596]*596221, 278 S.E. 2d 546, 558, cert. denied, 304 N.C. 390, 285 S.E. 2d 831 (1981); Austin v. Austin, 12 N.C. App. 286, 296, 183 S.E. 2d 420, 427 (1971). The amount of the award is within the discretion of the trial judge and will not be reversed in the absence of an abuse of discretion. Hudson v. Hudson, supra, at 472, 263 S.E. 2d at 724.

In his second Assignment of Error, defendant contends that the evidence is insufficient to support the court’s finding that plaintiff did not have the means to defray the expenses of the suit. As stated above, since this statutory finding of fact should stand if supported by competent evidence, Little, supra, we will now review the evidence as to this issue. According to plaintiffs uncontradicted testimony her assets consisted of the following: the former marital residence valued at the time of separation at $175,000, with an outstanding mortgage of $54,000; a 1984 Honda Accord automobile, paid in full; a $1500 account at Dean Witter Reynolds, composed of funds borrowed by plaintiff for their son’s college expenses. Plaintiffs income consisted of $800 per month from her employment. Plaintiff had an additional expected income of $1250 per month in alimony payments under the terms of the consent judgment (which defendant had not paid since April 1984) and $500 per month child support for the one remaining minor under the terms of the consent judgment (for which defendant was also substantially in arrears). The evidence tended to show that defendant’s assets consisted of the following: a condominium in South Carolina valued at the time of separation at $68,500 and expected to yield $14,000 in net proceeds when sold in compliance with the consent judgment; four acres of land in Alleghany County, North Carolina; a 1983 Toyota automobile, paid in full; an IRA account valued at $3500. Defendant was previously employed as a staff attorney for R. J. Reynolds Tobacco Company with a salary of $125,000 per year. Defendant had voluntarily left his former employment. At the time of the hearing defendant was unemployed and had been offered a job with a California law firm for a salary of $60,000 per year, contingent upon his passing the California bar exam. Defendant received rents from the South Carolina condominium.

It would be contrary to what we perceive to be the intent of the legislature to require one seeking an award of attorney’s fees to meet the expenses of litigation through the unreasonable [597]*597depletion of her separate estate where her separate estate is smaller than that of the other party. Clark v. Clark, 301 N.C. 123, 137, 271 S.E. 2d 58, 68 (1980). Plaintiff had spent approximately $3147 for their son’s college expenses and had paid a total of $4412.77 in attorney’s fees to a California attorney to defend a suit initiated by defendant in California and to a South Carolina attorney to file a suit against defendant. Plaintiff currently had no liquid assets and her actual current income had not met her living expenses. Under these circumstances we hold that to force plaintiff to sell her only remaining asset, the former marital residence, in order to pay her attorney’s fees, would constitute an unreasonable depletion of her separate estate.

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Cobb v. Cobb
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Cite This Page — Counsel Stack

Bluebook (online)
339 S.E.2d 825, 79 N.C. App. 592, 1986 N.C. App. LEXIS 2088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-cobb-ncctapp-1986.