Looming loss of job won’t affect attorneys’ fee award

A family court judge shouldn’t have accounted for the fact that a plaintiff was about to lose her job before deciding whether she had the means to pay for her own attorneys’ fees in a child custody case, a divided North Carolina Court of Appeals has ruled.

Jamie Sherrill sought attorneys’ fees after Watauga County District Court Hal G. Harrison awarded her custody of her two minor children. The only disputed issue was whether Sherrill had the means to defray the cost of the custody suit. At the time, she worked as a kindergarten teacher and as a part-time adjunct professor at Appalachian State University, but she’d had to relocate to her parents’ home in Burke County due to the custody proceeding and would soon be losing the income from her job at ASU.

As a result, Harrison considered only Sherrill’s income from her job as a kindergarten teacher and found that she had insufficient means to defray the cost of the suit and granted her motion for attorneys’ fees, which came to slightly more than $16,000.

Sherrill’s ex-husband appealed, and in a July 21 ruling a divided Court of Appeals panel reversed and remanded the case for reconsideration with instructions that the trial court consider Sherrill’s income as it existed at the time of the trial.

Judge John Arrowood, writing for the majority, said that past Court of Appeals cases have made clear that although Sherrill “testified she would soon be leaving the university position in the following months, the trial court was required to calculate plaintiff’s earnings as they existed at the time of the hearing, not as they would allegedly stand in the future,” Arrowood wrote.

Judge Chris Dillon dissented from the court’s ruling, arguing that Harrison hadn’t abused his discretion by awarding the attorneys’ fees and that it was appropriate for a trial court to consider whether certain sporadic income is unlikely to continue when deciding whether to award fees. Dillon used a hypothetical example of a litigant who receives a large one-time bonus shortly before a trial, arguing that it would be reasonable for a judge to not assume that the litigant would have that kind of income going forward.

Arrowood responded in the majority’s opinion that before the appeals court can apply an abuse-of-discretion standard, it must first determine whether a trial judge has properly complied with the state’s statute regarding the award of attorneys’ fees in child custody cases. Arrowood also wrote that it was conceivable that Harrison could have included the income Sherrill was currently receiving from ASU and still concluded that she had insufficient means to defray the costs of the suit.

Nancy Rivenbark of Boone represented Jamie Sherrill. Andrea Miller Fink of Miller & Johnson in Boone represented her ex-husband, Joseph Sherrill. Neither side’s attorneys could be reached for comment on the ruling.

The 12-page decision is Sherrill v. Sherrill (Lawyers Weekly No. 011-199-20). The full text of the opinion is available online at nclawyersweekly.com.

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