Domestic Relations – Parent & Child – Support – Modification – Attorney’s Fees – Expenses — Expert Witness

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McKinney v. McKinney (Lawyers Weekly No. 11-16-1259, 26 pp.) (Robert N. Hunter Jr., J.) Appealed from Guilford County District Court. (Susan E. Bray, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Although the parties’ separation agreement only required the defendant-father to pay $2,250 per month in child support, for two years he paid $4,750 per month. He then unilaterally reduced his payment to $2,250 per month, demanded that the plaintiff-mother and the parties’ child move out of the house he had been providing for them, and terminated the lease on the car he had provided for them. The father’s refusal to increase his child support payments until the court ordered him to do supports the trial court’s finding that the father refused to provide adequate child support.

The trial court did not err in choosing to award the mother attorney’s fees and supplemental attorneys’ fees in the respective amounts of $60,000 and $8,166.25, except for the portion of the award relating to the mother’s accounting expert’s fees. We vacate the award of $3,055 for time the accountant spent preparing for trial. We remand for a determination as how much of the remaining $6,240 was awarded for time the accountant spent preparing for trial. Any such amount is to be deducted from the new order.

Weaver Affidavit

Even if the trial court should have excluded an affidavit from Mike and Katherine Weaver, which said the Weavers lent the mother $30,000 to finance this litigation, there was other competent evidence to support the trial court’s finding that the mother obtained a loan from the Weavers to pay her litigation expenses. At the child support hearing, the mother testified that she had borrowed all the funds for her attorney’s fees and that she had an oral agreement with the Weavers to pay back $50,000 she had borrowed to cover litigation expenses. Additionally, the mother’s child support exhibit noted a $50,000 debt to the Weavers.

We acknowledge that Hensey v. Hennessy, 201 N.C. App. 56, 685

S.E.2d 541 (2009), prohibits a trial court from issuing an order based solely upon the court’s own personal memory of another proceeding and requires the evidence to “be taken in the case which is at bar, not in a separate case which was tried before the same judge.” However, in Hensey, the judge granted a domestic violence protective order after hearing no evidence at all.  He based his decision on his knowledge of a completely separate criminal case he presided over in which charges stemming from the domestic violence incident were brought.

We find Hensey distinguishable because the child support hearing Judge Bray took notice of was in the same cause as the attorney fee hearing she also presided over.

Moreover, the trial court’s conclusion that the mother had insufficient means to defray the expenses of the suit was also supported by finding of fact 23, in which the court found that the mother’s personal estate was minimal and that she had been earning only $400 to $800 per month as a hair stylist.

In fact, at the attorney’s fee hearing, defense counsel testified that the mother had no income at trial. Therefore, we find the trial court’s conclusion that the mother had insufficient means to defray the expenses of this litigation is supported by the evidence. Thus, admission of the Weaver affidavit was not prejudicial error.

Attorney’s Fees

There is competent evidence to support the trial court’s finding of fact that the father refused to provide adequate child support at the commencement of this action.

The father provided the mother and their child with an average of $4,750 in child support for over two years, and then unilaterally reduced his payments to $2,550. Such an abrupt reduction in support left the mother unable to maintain the minor child’s standard of living, and the father refused to increase support even upon the mother’s repeated requests.

The father argues that, because he never refused to pay anything less than the $2,550 per month required by the parties’ 2002 separation agreement, there is no evidence that he refused to provide adequate child support. However, paying the amount set out in a prior agreement is not necessarily “adequate.”

The father’s refusal to increase his child support payments until ordered to do so also supports the trial court’s finding that the father refused to provide adequate child support.

The determination of “adequacy” of child support is a subjective one based on the particular child and parents’ circumstances, including the parties’ “accustomed standard[s] of living.” G.S. ¤ 50-13.4(c1). Here, with the father having a very high income, the minor child was accustomed to a high standard of living. The father’s abrupt reduction in support payments in July 2008 (from $4,750 to $2,550 per month) left the mother unable to sufficiently provide for the child at the standard of living he was accustomed to.

Therefore, we hold there is competent evidence supporting the trial court’s finding that the father refused to provide adequate child support before this action was commenced.

Further, we note that the father was properly denied credit for the increased monthly child support payments he made from April 2006 to July 2008, which averaged $4,750 per month – approximately $2,200 more than he was required to pay under the separation agreement. We hold such payments were gratuitous ones made from one family member to another.

Where the issues in the child support order and the attorney’s fee order were not identical, and where the findings in the two orders do not contradict each other, collateral estoppel did not bar the award of attorney’s fees based on the father’s refusal to provide adequate support.

The father also argues the court erred by awarding attorney’s fees where  the child support order did not find nor conclude that he refused to provide adequate child support or that the child support provided was inadequate under the circumstances existing at the  filing of the action.

However, there is no requirement that a child support order make such a finding.  Instead, a child support order must determine whether the separation agreement is reasonable with regards to child support, not whether child support is adequate. It is the attorney’s fees order that must find, inter alia, that the party ordered to pay attorney’s fees was not providing adequate child support at the time of the commencement of the proceeding.

Res judicata did not bar the trial court’s supplemental award of attorney’s fees. Such fees were incurred by the mother after the initial attorney’s fee hearing, so the mother could not have known of or litigated these fees at the time of the initial hearing. In proper circumstances, multiple awards of counsel fees in the same domestic action are within the court’s discretion to allow.

Finally, we agree with defendant’s argument that the trial court erred in awarding attorney’s fees for the time the mother’s accounting expert took in preparation for trial. A trial court may not assess as costs expert witness fees for preparation time.

Affirmed in part, vacated in part, and remanded.