North Carolina Lawyers Weekly
Simpson v. Simpson. (Lawyers Weekly No. 11-07-0069, 15 pp.) (Martha A. Geer, J.) Appealed from Cabarrus County District Court (Martin B. McGee, J.). N.C. App. Click here for the full text of the opinion.
Holding: The trial court erred when it concluded that it was precluded from taking judicial notice of the customary rate of local attorney’s fees in connection with motions for attorney’s fees brought under G.S. § 50-13.6.
Facts
The parties agreed, via consent order, that plaintiff would have primary physical custody of three minor children. The defendant filed a motion for modification of the consent order, requesting that physical custody be split equally between the parties.
Plaintiff moved to dismiss defendant’s motion, arguing that defendant failed to show a substantial and material change of circumstances affecting the best interest and welfare of the children sufficient to justify a change in the custody arrangement under the consent order. The trial court granted the motion.
Plaintiff then filed a verified motion to tax costs and attorney’s fees to the defendant. The plaintiff alleged that she had incurred stenographic expenses in the amount of $719 and attorney’s fees in the amount of $9,173. She attached to the motion the court reporter’s invoice, a “history bill” from her counsel, and an affidavit of financial status. She also filed a “memorandum of costs and disbursements” and a “verification by attorney.”
At a hearing on plaintiff’s motion, plaintiff’s counsel filed an affidavit in which he noted that the rates he charged were “well within the parameters and rate structure of a majority of the attorneys in Cabarrus County and well below an attorney with similar skills in Mecklenburg County.”
The trial court entered an order awarding costs, but regarding the reasonableness of the hourly rate charged by plaintiff’s counsel, the court noted that plaintiff’s counsel had failed to offer evidence regarding the reasonableness of the hourly rate charged in comparison with other lawyers as required by Falls v. Falls, 52 N.C. App. 203 (1981). It also concluded that the Falls case precluded it from taking judicial notice of the typical fees charged by counsel in the area and finding that the charges and time spent were reasonable.
The court also noted that the defendant did not have the opportunity to cross-examine plaintiff on the issue of her lacking sufficient means to defray the cost of the action, and that plaintiff had not called the defendant or offered any evidence of his ability to pay.
The court therefore denied plaintiff’s motion for attorney’s fees.
Plaintiff appealed.
Judicial Notice
G.S. § 50-13.6 provides that in a proceeding for modification of child custody, “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.”
Whether these statutory requirements have been met is a question of law, reviewable on appeal.
Under Falls, in order to support the reasonableness of an award of attorney’s fees, the trial court must make 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.
The trial court cannot make the findings necessary to support an award of attorney’s fees unless the party seeking the fees offers evidence to support those findings. There is no dispute that plaintiff failed to submit evidence as to the reasonableness of her attorney’s rates in comparison with the rates of other local attorneys.
The question is whether plaintiff could satisfy the Falls requirements by asking the trial court to take judicial notice of the customary rates of local attorneys. Nothing in Falls addresses judicial notice.
While Falls requires evidence of the reasonableness of an attorney’s hourly rate, it does not dictate the form of the evidence.
Under N.C.R. Evid. 201(b), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
We have found no N.C. case specifically addressing whether a trial court may take judicial notice of customary hourly rates for attorneys in a community. Courts in several other jurisdictions have expressly approved of this practice.
Our courts have taken judicial notice of various attorney-related practices. Our Supreme Court has previously permitted the taking of judicial notice of customary payment practices in other industries.
At least with respect to fee applications filed in district courts pursuant to G.S. § 50-13.6, we are persuaded by the reasoning of other jurisdictions allowing judicial notice of the reasonableness of the hourly rate sought.
We hold that a district court, considering a motion for attorney’s fees under G.S. § 50-13.6, is permitted, although not required, to take judicial notice of the customary hourly rates of local attorneys performing the same services and having the same experience.
Here the trial court believed it was precluded from taking judicial notice of the typical fees charged by counsel in the area and finding that such charges and time spent were reasonable. The trial court reached its decision under a misapprehension of law.
There is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented. Where the error is prejudicial, the party is entitled to have its motion reconsidered and passed upon as a discretionary matter.
Because plaintiff did not present any evidence of the reasonableness of her attorney’s hourly rate, the trial court’s belief that it lacked authority to apply the judicial notice doctrine in this context was instrumental in its decision. We must therefore reverse and remand to allow the trial court to decide whether it should exercise its discretion to take judicial notice of the typical fees charged in this jurisdiction in cases such as this one.
Inability to Defray Costs
The trial court’s finding that plaintiff had the inability to defray the cost of the action was based on her affidavit alone. The court also found that the defendant did not have the opportunity to cross examine her. That could be read as a determination that the evidence offered on that issue was not competent and was insufficient to meet the statutory standard.
Given the ambiguity, the finding of fact was not adequate to support the trial court’s denial of the motion for attorney’s fees. The trial court must resolve this issue if it concludes that plaintiff is entitled to fees.
Reversed and remanded.
