Domestic Relations – Alimony – Separation Agreement – Attorney’s Fees – Reasonableness

Jackson v. Penton. (Lawyers Weekly No. 10-16-0892, 7 pp.) (Sanford L. Steelman Jr., J.). Appealed from Moore County Superior Court (James P. Hill, J.) N.C. App. Unpub.

Holdings: The trial court had the authority to award reasonable attorney’s fees under the express provisions of a separation agreement; however, the amount of fees was unreasonable where they were awarded to enforce a provision of the separation agreement that was unenforceable as against public policy.

Affirmed in part; reversed and remanded in part.

Facts

A judgment of divorce was entered incorporating the following terms from a separation agreement: (1) the defendant would pay the plaintiff $600 per month as alimony; (2) the alimony would be increased annually commensurate with increases in the defendant’s salary; (3) the defendant would provide the plaintiff annually with a copy of his tax return at the time he filed it with the Internal Revenue Service; and (4) the defendant should pay the plaintiff all reasonable attorney’s fees incurred in enforcing the listed obligations.

The plaintiff filed moved to have the defendant held in contempt for failure to provide an income tax return.

The defendant filed an amended motion seeking to have the provision requiring automatic increases in the defendant’s alimony payments declared void as against public policy.

The trial court held that the provisions of the divorce judgment requiring automatic increases in the defendant’s alimony payments based solely on increases in the defendant’s income were “unenforceable as against prevailing law and public policy.”

The trial court held that the provision requiring the defendant to produce his annual tax return was enforceable, but awarded the plaintiff $2,780 in attorney’s fees apparently for efforts at securing the defendant’s tax return.

The defendant appealed.

Analysis

   The defendant argued that the trial court’s order did not contain sufficient findings of fact and conclusions of law to support an award of attorney’s fees pursuant to G.S. § 50-16.4.

But the trial court’s award of attorney’s fees was based upon the express language contained in the separation agreement, not G.S. § 50-16.4.

The defendant also argued that the trial court was without authority to enter an award of attorney’s fees pursuant to its contempt powers.

Again, the basis of the trial court’s award of attorney’s fees was the express language contained in the separation agreement. It was not based on its contempt powers.

Finally, the defendant argued that the amount of attorney’s fees was unreasonable.

The defendant provided the required income tax returns to the plaintiff’s counsel on May 21, 2004.

The first time entry shown on the attorney fee affidavit was June 7, 2005 – a year and two weeks after the production of the tax returns by the defendant.

The trial court’s premise in awarding attorney’s fees was that, if the defendant had complied with his obligation to provide the tax returns, the matter could have been resolved earlier.

But the attorney’s fee affidavit showed that the attorney’s fees were incurred long after the tax returns were produced and that the attorney’s fees pertained to research attempting to enforce an alimony escalation provision that the trial court found to be contrary to the public policy of this state.

The provisions of the separation agreement required that any attorney’s fees awarded be “reasonable.”

We hold that fees awarded to enforce a provision of the separation agreement that was unenforceable were not reasonable. Reasonable fees would be for preparation of the motion seeking the tax returns, the discovery resulting in the production of the tax returns, and the review of the documents produced.

We vacate the amount of attorney’s fees awarded and remand to the trial court for a new hearing on the amount of attorney’s fees consistent with this opinion.

Affirmed in part; reversed and remanded in part.