JOHN P. CONKLIN, Plaintiff,
TOMMIE JEAN CONKLIN, Defendant.
in the Court of Appeals 31 October 2018.
by plaintiff from order entered 29 November 2017 by Judge
Jena P. Culler in District Court, Mecklenburg County, No. 13
CVD 13093 (JPC)
Watson Law, PLLC, by Seth A. Glazer, for plaintiff-appellant.
Law Firm, PLLC, by R. Lee Myers, for defendant-appellee.
appeals from an order awarding attorney's fees. Although
the parties ultimately settled their custody dispute in a
manner more favorable to Father than Mother initially sought,
the trial court did not err in determining that Mother acted
in good faith in defending against Father's claims
regarding child custody and child support and pursuing her
own counterclaims. Where Father's monthly income was
approximately nine times more than Mother's income, and
she had recently declared bankruptcy, the trial court did not
err in finding that Mother had insufficient means to defray
the expense of this suit and was entitled to an award of
attorney's fees. We therefore affirm the trial
parties married in 1999, separated in 2008, and later
divorced. In 2009, they entered into a Separation and
Property Settlement agreement which addressed child custody
and child support for their three children; the parties had
joint legal custody of the children, and Mother had primary
physical custody. Father had visitation every other weekend
and on designated holidays. In 2013, Father filed a complaint
for child custody, child support, and attorney's fees,
requesting that he have "no less than joint physical and
legal custody of the minor children," for the court to
establish child support, for attorney's fees, and for a
temporary parenting arrangement. Mother filed a response to
the request for temporary parenting arrangement and an answer
and counterclaims for custody, child support, specific
performance, and attorney's fees.
the next three years, the parties engaged in discovery and
filed many motions and counter-motions, and the trial court
entered many orders. Finally, on 2 June 2016, the trial court
entered a "Consent Order for Modification Permanent
Child Custody and Dismissal of Motions for Contempt and
Orders to Show Cause." The Consent order granted joint
legal and physical custody of the children to the parties and
includes extensive detailed provisions regarding
decision-making, regular and holiday schedules,
extracurricular activities, communications between the
parties, use of drugs and alcohol by the parties, relocation,
appointment of a parenting coordinator, and other matters.
The Consent order provided that "[a]ny pending claims
for attorney's fees and costs not resolved by this Order,
shall remain open for determination by this Court." The
trial court held a hearing on Mother's request for
attorney's fees on 20 July 2017. The trial court entered
an order awarding Mother $45, 000.00 in attorney's fees
on 29 November 2017, and Father timely appealed.
Standard of Review
issues on appeal arise from the trial court's award of
attorney's fees to Mother under N.C. Gen. Stat. §
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.
Gen. Stat. § 50-13.6 (2017). Before awarding fees, the
trial court must conclude that the party seeking an award of
fees is "an interested party acting in good faith who
has insufficient means to defray the expense of the
suit." Id. "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." Schneider v. Schneider, __ N.C.App.
__, __, 807 S.E.2d 165, 166 (2017). In addition, the trial
court's findings of fact must be supported by competent
evidence. See Simpson v. Simpson, 209 N.C.App. 320,
324, 703 S.E.2d 890, 893 (2011).
Acting in Good Faith
first argues that Mother has not acted or proceeded in good
faith. He argues that "[t]he reality of this
case is that there was never a 'legitimate dispute'
between the parties with respect to the custody of the minor
children. The 'dispute' was at all times one-sided
and manufactured by the [Mother's] bad faith resistance
to allow [Father] to increase his parenting time of the minor
children." He claims the trial court was "unjustly
punishing" him with the award of attorney's fees.
Father challenges the trial court's finding that
"Mother has conducted herself as a reasonable party
acting in good faith" and the trial court's related
Mother has proceeded and acted in this matter in "good
faith" pursuant to N.C. G.S. §50-13.6.
there is not a legal definition of good faith in this
context, our Supreme Court has previously adopted the
definition of good faith as "honesty of intention, and
freedom from knowledge of circumstances which ought to put
one upon inquiry" for Rule 11 sanctions. Bryson v.
Sullivan, 330 N.C. 644, 662, 412 S.E.2d 327, 336 (1992)
(brackets omitted). "Because the element of good faith
is seldom in issue a party satisfies it by demonstrating that
he or she seeks custody in a genuine dispute with the other
party." Setzler v. Setzler, 244 N.C.App. 465,
467, 781 S.E.2d 64, 66 (2015) (citation, quotation marks, and
the record and transcript abundantly demonstrate that the
parties had a genuine dispute over custody of the children.
Father wanted joint legal and physical custody, with the
children spending equal time with each parent, while Mother
wanted to maintain their previous custody arrangement of
weekend and holiday visitation to provide more stability for
the children. Father argues that because the parties
ultimately agreed to an equal custody arrangement in a
consent order, that Mother did not act in good faith by
defending against Father's custody claim and pursuing her
own custody claim.
argument overlooks the history of the litigation regarding
custody in this case and the many issues beyond the precise
custodial schedule of the children. We will not recite the
entire history of the litigation, but both parties filed many
motions, including motions for contempt and to compel
discovery. The trial court entered orders on many of ...