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Domestic Relations – Custody – Attorneys’ Fees – Grandparent Intervenors – Prior Appeal

On a prior appeal, this court remanded with instructions to the trial court to limit its award of attorneys’ fees against the paternal Grandparent-intervenors so that the grandparents were not held liable for any attorneys’ fees attributable to issues litigated solely between the plaintiff-Mother and the defendant-Father. The trial court erred when it merely limited its award to fees the mother incurred after Grandparents intervened. The trial court also erred when it awarded Mother the attorneys’ fees she incurred as a result of Grandparents’ successful appeal.

Vacated and remanded.

We re-emphasize our holding and law of the case in Grandparents’ first appeal that “[Mother] has cited no authority, and we are aware of none, holding that [Grandparents] may be held liable for [reasonable] attorney[’s] fees incurred as the result of claims or defenses they did not assert simply because they paid the opposing party’s attorney[’s] fees.”

The trial court’s amended orders also fail to address whether Mother’s or her attorneys’ actions demonstrate recalcitrance, stubbornness, needless delays, or good faith to extend or incur unwarranted expenses on the settlement or resolution of Grandparents’ statutory visitation claim. The amended orders also do not demonstrate Mother’s reasons or need to employ three separate law firms simultaneously in this seven-year litigation that she initiated.

The trial court found, in the order for the attorney’s fees associated with Grandparents’ appeal, “[Grandparents] have acted in bad faith in this litigation.” The trial court’s decision to reference Grandparents’ purported “bad faith” for intervening and asserting their statutory right to visit their grandchild tends to show the trial court intended to punish Grandparents for exercising their rights. G.S. § 50.13.1(a). This court has held that “attorney’s fees and costs incurred in defending an appeal may only be awarded under N.C. R. App. P. 34 by an appellate court” because holding otherwise would discourage litigants from pursuing “valid challenges” to trial court decisions.

Grandparents lawfully and properly asserted their statutory right to visit with their grandchild and their right to appeal the trial court’s erroneous distribution of attorney’s fees between Father and Grandparents. G.S. § 50-13.6 may not be used to sanction Grandparents for their purported “bad faith” in lawfully intervening for visitation or bringing forth the trial court’s error in their first appeal.

Vacated and remanded.

Dissent

(Inman, J.) I would affirm the trial court’s award of attorneys’ fees incurred by Mother in Grandparents’ prior appeal.

An award for attorney’s fees in a child custody or support proceeding is not dependent on the outcome of the case.

Grandparents argue for the first time on appeal, and the majority agrees, that the trial court was not authorized to award attorney’s fees incurred in the prior appeal because that appeal was taken solely from an award of attorney’s fees. Grandparents cite no authority to support their argument, and, other than its own policy statement, the majority cites no authority to support this conclusion.

Bolder than creating a new rule of law, the majority’s holding directly conflicts with the binding precedent of McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356 (2013).

Further advocating for appellants more than their own counsel, the majority categorizes the trial court’s award of appellate attorney’s fees as a sanction for Grandparents’ “bad faith” and asserts that such an award is solely in the province of this court pursuant to Appellate Rule 34. This assertion again ignores this court’s binding precedent and the trial court’s order, which expressly awarded appellate fees pursuant to its discretionary, statutory authority under §50-13.6.

The trial court’s finding that Grandparents “acted in bad faith in this litigation” does not constitute a Rule 11 sanction. Further, this court’s authority to award fees and costs associated with defending an appeal under Appellate Rule 34 does not divest the trial court’s authority to award discretionary attorney’s fees pursuant to § 50-13.6—the two are not mutually exclusive.

Regardless of the majority’s opinion about whether it was necessary for Mother to retain an additional attorney to represent her on appeal, the trial court’s finding that the representation was necessary and reasonable is binding on appeal where unchallenged.

Sullivan v. Woody (Lawyers Weekly No. 011-236-22, 27 pp.) (John Tyson, J.) (Lucy Inman, J., concurring in part & dissenting in part) Appealed from Mitchell County District Court (Rebecca Eggers-Gryder, J.) Jill Schnabel Jackson for plaintiff; Matthew Arnold and Ashley Crowder for intervenors. 2022-NCCOA-840


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