Domestic Relations – Parent & Child – Custody & Support – Attorney’s Fee Award

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Bramblett v. Bramblett (Lawyers Weekly No. 12-16-0172, 18 pp.) (Douglas McCullough, J.) Appealed from Forsyth County District Court. (George A. Bedsworth, J.) N.C. App. Unpub. Click here for full-text opinion.

Holding: Where the plaintiff filed her request for attorney’s fees via a motion following the conclusion of the child custody and child support hearing, the request was timely filed.

We affirm the trial court’s award of $30,000 in attorney’s fees to plaintiff.

Defendant argues plaintiff failed to include an attorney’s fee request in her complaint and waited more than a year to file her motion seeking attorney’s fees, thereby implicating his due process rights. We disagree.

First, this court has held, “A request for attorney’s fees may be properly raised by a motion in the cause subsequent to the determination of the main custody action.” In re Baby Boy Scearce, 81 N.C. App. 662, 345 S.E.2d 411 (1986). Scearce controls the present case.

Plaintiff filed her request for attorney’s fees by motion following the conclusion of the child custody and child support hearing on Nov. 16, 2010. Notably, plaintiff filed her motion, and the trial court both heard and ruled on the motion, prior to the entry of an order in the principal child custody and child support action and prior to any appeal being taken. Thus, the trial court properly had jurisdiction to hear the motion.

Our research reveals no case law imposing a time limitation for the filing of a motion for attorney’s fees in a child custody and child support action pursuant to G.S. § 50-13.6, other than that a proper notice of appeal divests the trial court of jurisdiction to hear a motion filed after notice of appeal has been given in the case. Such is not the case here.

Plaintiff filed a proper motion requesting attorney’s fees with the trial court on Nov. 16, 2010, which was properly served on defendant on that same day, and the trial court heard arguments by counsel and testimony by the parties and received documentary exhibits during a hearing on the motion on Feb. 1, 2011.

Defendant was clearly given adequate notice and an opportunity to be heard on the motion at the hearing, such that his due process rights were not implicated.

The trial court’s findings of fact adequately specify plaintiff’s lawyer’s skill, her hourly rate, and its reasonableness in comparison with that of other lawyers, as well as the total hours spent providing legal services to plaintiff in the present action. Affidavits filed by plaintiff support the trial court’s findings of fact.

The trial court’s findings and conclusions as to the reasonableness of the hourly rate of plaintiff’s attorney are likewise proper. Further, the trial court made other findings of fact reflecting the nature and scope of the work performed by plaintiff’s attorney during the course of the representation.

Given that the affidavits submitted by plaintiff support the trial court’s findings of fact as to each of the requisite findings, that many of plaintiff’s attorney’s hours were spent in close proximity to the trial court judge, and that defendant raised no objection to the sufficiency of plaintiff’s attorney’s affidavits before the trial court admitted the second affidavit into evidence, we believe there is sufficient evidence in the record to support the trial court’s determination as to the reasonableness of the hours and work performed by plaintiff’s attorney in the present case.

We also note that, although the trial court found and concluded that plaintiff’s attorney’s fees in the amount of $38,500 “were necessary and reasonable,” the trial court judge nonetheless reduced the amount awarded to $30,000. Accordingly, we find no abuse of discretion by the trial court, and we affirm the trial court’s order awarding attorney’s fees to plaintiff in the amount of $30,000.

Nonetheless, we stress the better practice in child custody and child support actions is for the party requesting attorney’s fees under G.S. § 50-13.6 to submit a detailed affidavit delineating the specific services rendered and the time attributable to each task. We implore the trial court to request such detailed affidavits in support of an award of attorney’s fees and to likewise reflect such details in its findings of fact. We also emphasize that the opponent of such a motion bears some responsibility in ensuring the affidavit submitted is sufficient by making a timely objection.

Affirmed.