North Carolina Lawyers Weekly
Murn v. Murn (Lawyers Weekly No. 12-16-0441, 16 pp.) (Cressie H. Thigpen Jr., J.) Appealed from Iredell County District Court. (H. Thomas Church, J.) N.C. App. Unpub. Full-text opinion.
Holding: Where the trial court neglected to make a finding as to the number of hours worked by plaintiff’s counsel, we reverse the award of attorney’s fees and remand for further findings as to the reasonableness of the amount of the award. Otherwise, we affirm.
Since both custody and support were at issue, the trial court was not required to make findings of fact regarding defendant’s refusal to pay child support, whether defendant acted in bad faith, or whether defendant initiated the proceedings; therefore, these findings should not have been included in the order. However, we treat these findings of fact and the related conclusion of law as surplusage because they are not essential to support the trial court’s attorney’s fee award.
Contrary to defendant’s argument, there is sufficient evidence in the record to support the trial court’s finding and conclusion that plaintiff is without sufficient means to defray the costs of this action.
Plaintiff’s child support worksheet indicated that her monthly gross income was $5,375 and defendant’s monthly gross income was $19,625.
Plaintiff’s attorney’s fees in the amount of $21,780, a large portion of which the trial court found remain unpaid, are approximately four times her monthly gross income.
Moreover, the evidence shows defendant has a monthly child support obligation of $1,912.76, and, as of Sept. 20, 2010, defendant had an arrearage of $12,036 in child support. Defendant’s failure to pay child support meant that plaintiff had to assume the majority of the financial responsibility, with the shared monthly basic child support obligation of $4,438.50 taking the vast majority of her monthly income. Accordingly, the trial court did not err by finding and concluding that plaintiff is without sufficient means to defray the costs of this action.
Affirmed in part, reversed and remanded in part.
