Limerick v. Rojo-Limerick

• Court: Court of Appeals of North Carolina
• Decided: March 7, 2023
• Docket: 22-568
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-568

Filed 07 March 2023

Mecklenburg County, No. 20 CVD 10628

RANDALL LIMERICK, Plaintiff,

v.

CLAUDIA ROJO-LIMERICK, Defendant.

Appeal by Defendant from Order entered 9 December 2021 by Judge Tracy

Hewett in Mecklenburg County District Court. Heard in the Court of Appeals 16

November 2022.

Randall Limerick, plaintiff-appellee, pro se.

Fleet Law, PLLC, by Jennifer L. Fleet, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

Claudia Rojo-Limerick (Defendant) appeals from the trial court’s Order for

Permanent Child Support and Attorney’s Fees. Specifically, Defendant only

challenges the award of $5,189.00 in attorney’s fees to Randall Limerick (Plaintiff).

We, therefore, limit our analysis to the attorney’s fees issue and affirm the portion of

the trial court’s Order relating to the award of child support. However, our prior case

law compels to us to conclude that, at the time of trial, this matter was solely an

action for child support, and the trial court did not make the statutorily required LIMERICK V. ROJO-LIMERICK

Opinion of the Court

findings under N.C. Gen. Stat. § 50-13.6 to support an award of attorney’s fees when

an action is solely for child support. Indeed, under the plain language of Section 50-

13.6, because the action was one solely for child support and Plaintiff was the party

ordered to pay support, the trial court could not award attorney’s fees to Plaintiff,

notwithstanding findings of fact that: (I) Plaintiff was a party acting in good faith and

does not have sufficient means to pursue the action; (II) Plaintiff has paid reasonable

child support since separation; and (III) Defendant unnecessarily increased Plaintiff’s

attorney’s fees by her actions. As such, we are constrained by our precedent to reverse

the trial court’s award of attorney’s fees to Plaintiff in this case.

Relevant to this appeal, the Record reflects the following:

On 17 August 2020, Plaintiff filed a Complaint for divorce from bed and board,

child custody, child support, and attorney’s fees in Mecklenburg County District

Court. Defendant filed a Motion to Dismiss and Answer on 12 November 2020.

Defendant further asserted counterclaims seeking custody of the parties’ minor

children, child support, equitable distribution of marital property, alimony, and

attorney’s fees. On 12 January 2021, Plaintiff filed a Reply to Defendant’s

counterclaims, including a Motion for Interim Distribution.

On 25 January 2021, Defendant filed a Notice of Voluntary Dismissal “without

prejudice of [Defendant’s] counterclaims for equitable distribution, post separation

support, alimony, and attorney[’s] fees in this case as to [Plaintiff].” This voluntary

dismissal expressly provided Defendant’s counterclaims for child custody and child

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support remained open. Subsequently, on 27 January 2021, Plaintiff also filed a

Notice of Voluntary Dismissal “without prejudice, of his claim[s] for Divorce from Bed

and Board, Equitable Distribution, Motion for Interim Distribution, and Attorney

Fee’s [sic] due to the parties entering into a Separation Agreement that resolves those

issues.” Plaintiff’s Notice of Voluntary Dismissal also expressly provided claims for

child custody and child support remained open. On 15 February 2021, the trial court

entered a Consent Order for Permanent Child Custody, Temporary Child Support,

and Attorney’s Fees.

The case came on for hearing in the Mecklenburg County District Court on 1

November 2021 on the parties’ sole remaining claims for child support. On 9

December 2021, the trial court entered its Order. In relevant part, the trial court

found:

24. Defendant’s Motion for attorney’s fees is denied.

25. Plaintiff’s Motion for Attorney’s Fees is granted because he has paid reasonable child support since separation and Defendant unnecessarily increased Plaintiff’s attorney[’]s fees by her actions.

26. Plaintiff is an interested party, acting in good faith who does not have sufficient means to pursue this action.

27. Defendant has received $20,000 from her parents, which was not shown to be loans.

28. In addition, Defendant received $4,200.00 for COVID Relief whereas Plaintiff only receiv[e]d $200.00.

29. Therefore, Defendant has the means to defray her attorney’s fees costs and pay $5,189.00 of Plaintiff’s attorney fees.

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Based on these Findings of Fact, the trial court made, in part, the following

Conclusion of Law: “Defendant’s Motion for Attorney’s Fees is denied and Plaintiff’s

Motion for Attorney’s Fees is granted.” The trial court ordered Defendant to pay

Plaintiff $5,189.00 in Attorney’s Fees. The trial court also ordered Plaintiff to pay

$1,260.70 per month in child support to Defendant and $651.00 for the child’s before

and after school care costs. On 7 January 2022, Defendant timely filed written Notice

of Appeal.

Issue

The dispositive issue on appeal is whether the trial court erred in awarding

Plaintiff Attorney’s Fees related to the child support claim without making findings

of fact required by N.C. Gen. Stat. § 50-13.6 governing awards of attorney’s fees in

child support actions.

Analysis

“The recovery of attorney’s fees is a right created by statute. A party can

recover attorney’s fees only if such a recovery is expressly authorized by statute.”

Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002) (citation and

quotation marks omitted). The question of whether statutory requirements have

been met for an award of attorney’s fees is a question of law reviewable de novo.

Hudson v. Hudson, 299 N.C. 465, 472-73, 263 S.E.2d 719, 724 (1980). The trial court

in this case did not specify the statutory basis upon which it was awarding fees.

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However, the only request for fees by Plaintiff relied on N.C. Gen. Stat. § 50-13.6. It

is also apparent from the nature of the trial court’s findings that it intended to draw

from this statutory authority for its award of fees.

N.C. Gen. Stat. § 50-13.6 governs the award of counsel fees in both child

custody and child support actions. The statute provides:

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.

N.C. Gen. Stat. § 50-13.6 (2021).

Our Courts have interpreted N.C. Gen. Stat. § 50-13.6 as differentiating an

action or proceeding for child custody or custody and support from an action that is

solely one for child support. Specifically, when an action is one for child custody or

custody and support, a trial court need only find the party awarded fees be an

interested party acting in good faith who has insufficient means to defray the expense

of the suit. Hudson, 299 N.C. at 472, 263 S.E.2d at 723. On the other hand, when

the action is one solely for child support, prior to making an award of fees, a trial

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court is required to make the additional finding: “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.” Id. at 472-73, 263 S.E.2d

at 724 (citations and quotation marks omitted).

Our Courts have concluded the determination of whether an action is one for

custody and support or one solely for support is based on what issues were pending

before the trial court when the case was called for trial. See, e.g., Taylor v. Taylor,

343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996) (“The instant action is properly

characterized as one for ‘custody and support’ because both the custody and support

actions were before the trial court [at] the times the case was called for trial.”). This

is so even if the action or proceeding as originally filed included contested claims for

both custody and support. See Gibson v. Gibson, 68 N.C. App. 566, 574, 316 S.E.2d

99, 104-05 (1984).

Indeed, an action is one solely for support in instances where the issue of

custody was settled or resolved by consent prior to the matter being called for trial.

Id. Thus, for example, in Hudson, our Supreme Court—in reversing this Court—

concluded an action was one solely for support by the time the case was tried when

“[t]he issue of custody was initially raised in this suit but was disposed of in a consent

order and was not raised again.” Hudson, 299 N.C. at 470, 263 S.E.2d at 722

(emphasis omitted). Similarly, this Court in Gibson determined a matter was one

solely for child support where “the issue of custody, though uncontested, was settled

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by the judgment of the court some five months prior to the entry of the child support

judgment.” Gibson, 68 N.C. App. at 574, 316 S.E.2d at 105.

On the other hand, an action retains its character as one for custody and

support where both of those issues are pending at trial—even if the parties quickly

resolve the custody issue prior to judgment. See Spicer v. Spicer, 168 N.C. App. 283,

297, 607 S.E.2d 678, 687-88 (2005) (“In this case, the record shows that the custody

issue had not yet been resolved when the support hearing began. The case was,

therefore, one for both custody and support.”). For example, this Court in Forbes v.

Forbes determined that the action in that case was one for both custody and support

and expressly distinguished its decision from both Hudson and Gibson observing: “In

both those cases a spouse had asked for custody and support. In each case the custody

was determined prior to the decision as to support and was not at issue when the

matter of support was contested.” 72 N.C. App. 684, 685, 325 S.E.2d 272, 273 (1985);

see also Taylor, 343 N.C. at 54, 468 S.E.2d at 35 (“The instant action is properly

characterized as one for ‘custody and support’ because both the custody and support

actions were before the trial court [at] the times the case was called for trial. This is

so despite the fact that the parties ‘quickly settled’ the issue of custody.” (citations

and quotation marks omitted)); Lawrence v. Tise, 107 N.C. App. 140, 153, 419 S.E.2d

176, 184 (1992) (“The instant action is properly characterized as one for ‘custody and

support’ because both the custody and support actions were before the trial court [at]

the time the case was called for trial. This is so despite the fact that the parties

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‘quickly settled’ the issue of custody.” (citation omitted)); Theokas v. Theokas, 97 N.C.

App. 626, 630, 389 S.E.2d 278, 280 (1990) (“Even though the custody issue may have

been ‘resolved in basically 15 minutes’ at trial, as defendant’s counsel stated during

the hearing on attorney’s fees, it nevertheless was an issue and the proceeding is

therefore one which addressed both custody and support.”); cf. Loosvelt v. Brown, 235

N.C. App. 88, 109, 760 S.E.2d 351, 364 (2014) (“Although plaintiff and defendant may

have believed and acted as though they had resolved the custody claims before entry

of the order, custody was still at issue when the case was called for hearing and was

not addressed by the trial court until its final order which also addresses child

support.”).

In this case, the Record reflects the parties resolved the issue of child custody

by Consent Order entered 15 February 2021 prior to the support trial. The child

support trial began on 1 November 2021, and the trial court entered its Order on 9

December 2021. Thus, at the time of trial, this matter was solely a child support

action.

As such, the trial court was required to make the additional finding “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[.]”

See N.C. Gen. Stat. § 50-13.6 (2021). Here, the trial court did not make this finding.

Indeed, the trial court expressly found Plaintiff—the party ordered to furnish

support—“has paid reasonable child support since separation[.]” Moreover, the trial

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court did not—and on the facts of this case, clearly would not—find Plaintiff as the

supporting party “initiated a frivolous action or proceeding” which would otherwise

justify an award of fees to an interested party under the language of the statute. See

id.

Thus, the trial court did not make the findings required by N.C. Gen. Stat. §

50-13.6 to award attorney’s fees when—by the time of trial—this was solely an action

for child support. Therefore, the trial court did not have statutory authority to make

an award of attorney’s fees in this case. Consequently, the trial court erred in

awarding Plaintiff attorney’s fees. In so concluding, we acknowledge the potential for

gamesmanship our case law creates. Here, the trial court’s Order reflects it was

Defendant’s intransigence on the issue of child support that prolonged this litigation

and resulted in this matter converting to one that was solely an action for support in

which Plaintiff was functionally precluded from recovering his attorney’s fees. On

the other hand, there would appear to be at least some disincentive (really on the part

of any party) to settle child custody issues until the matter is called for trial in hopes

of an easier path—or in the case of a supporting party, any path at all—to recouping

attorney’s fees. We simply note the statute’s other requirement that the party

awarded fees be one who is “acting in good faith.” N.C. Gen. Stat. § 50-13.6 (2021).

Conclusion

Accordingly, for the foregoing reasons, we reverse the trial court’s 9 December

2021 Order to the extent it awarded Plaintiff attorney’s fees in the amount of

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$5,189.00. As no party challenges any other portion of the Order, we affirm it in all

other respects.

AFFIRMED IN PART; REVERSED IN PART.

Judges ZACHARY and GRIFFIN concur.

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