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Schneider v. Schneider

Court of Appeals of North Carolina

November 7, 2017

ROBERT ALLEN SCHNEIDER, Plaintiff,
v.
HOLLI M. SCHNEIDER, Defendant.

          Heard in the Court of Appeals 23 February 2017.

         Appeal by defendant from order entered 23 March 2016 by Judge Christy T. Mann in District Court, Mecklenburg County, No. 13-CVD-3272 (CTM)

          Robert Allen Schneider, pro se, plaintiff-appellee.

          Plumides, Romano, Johnson & Cacheris, PC, by Richard B. Johnson, for defendant-appellant.

          STROUD, JUDGE.

         Because the trial court may have misapprehended its ability to consider the financial circumstances of the defendant Mother in awarding attorney fees to plaintiff Father under North Carolina General Statute § 50-13.6, we reverse the order awarding attorney fees to Father and remand to the trial court for reconsideration of this issue.

         I. Background

         This case arises from a long and contentious custody case. After their separation, plaintiff-Father filed a complaint in 2013 against defendant-Mother with claims for emergency temporary custody, permanent custody, child support, equitable distribution, interim distribution, appointment for a guardian ad litem, and attorney fees. We need not go into great detail regarding the multiple claims here, but the custody dispute centered in large part around Mother's move to Mississippi with the children. Over the years the trial court entered several orders but the only one at issue on appeal is from March of 2016, when the trial court ordered Mother to pay Father $30, 000.00 for attorney fees pursuant to North Carolina General Statute § 50-13.6. Mother appeals.

         II. Attorney Fees

         Mother's only argument on appeal is that the court erred by awarding Father $30, 000.00 in attorney fees.

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 (2015). "Whether these statutory requirements have been met is a question of law, reviewable on appeal. 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) (citation and quotation marks omitted).

         Mother first contends that the trial court "failed to make detailed findings of fact regarding [Father's] inability to defray the costs of the lawsuit" as is required under North Carolina General Statute § 50-13.6. See N.C. Gen. Stat. § 50-13.6. Mother cites to Dixon v. Gordon, wherein this Court reversed and remanded to the trial court because

the only findings of fact were that father does not have sufficient funds with which to employ and pay legal counsel . . . to meet Mother on an equal basis. Although information regarding father's gross income and employment was present in the record in father's testimony, there are no findings in the trial court's order which detail this information. We believe that because the findings in this case contain little ...

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