Domestic Relations – Parent & Child – Custody & Support – Attorney’s Fees – ‘Frivolous’ Proceedings – Evidence – Exhibit Summary

Where the trial court miscalculated the plaintiff-Mother’s income deficit, and where the trial court mischaracterized several of the defendant-Father’s non-frivolous filings as frivolous, we remand for reconsideration of the trial court’s award of attorney’s fees to Mother.

We reject Father’s attack on Mother’s exhibit summary (Exhibit 1000) of 40 underlying exhibits. Father has presented neither caselaw suggesting any underlying evidence must be admitted at trial (rather, such evidence must be available for review) nor an argument to suggest that Exhibit 1000 did not fairly represent the underlying documents. We decline to adopt a federal ruling which would make Mother subject to cross-examination regarding the underlying documents.

The trial court’s calculation of Mother’s monthly deficit at $4,986.20 failed to consider its award of permanent child support in the amount of $4,502.65. Mother’s actual monthly deficit would appear to be $483.55. We remand for reconsideration the extent of Mother’s monthly deficit.

N.C.G.S. § 50-13.6 states, in relevant part, “[P]rovided however, should the court find as a fact that the supporting party has initiated a frivolous action or proceeding the court may order payment of reasonable attorney fees to an interested party as deemed appropriate under the circumstances.”

The standard for determining whether a filing is frivolous under § 50-13.6 has not been clearly articulated. Section 50-13.6 does not define “frivolous,” so we apply the plain meaning of the term, for which we can refer to dictionaries. Black’s Law Dictionary defines “frivolous” as “[l]acking a legal basis or legal merit; manifestly insufficient as a matter of law.”

Even if we assume Father’s counterclaim—that he was a fit and proper person to receive sole legal and primary physical custody—was frivolous, there was an alternative claim in his counterclaim for joint custody that was not frivolous. Further, we note that the assertion that a parent is fit and proper is a phrase associated with the entitlement generally to custody. G.S. § 50-13.5(i). As a result, we decline to conclude that Father’s counterclaim for custody was frivolous.

Father’s three motions to quash all had some merit, as the trial court issued a protective order for Dr. Curran, Cindy Tice, and Dr. Rowe.

However, Father’s motion to compel mediation was frivolous. The motion to compel mediation included rules related to equitable distribution cases when an action for equitable distribution here had not yet been filed, and the motion attempted to enforce the requirement of mediation through a private mediation rather than pursuant to G.S. § 7A-494. This motion was filed without merit.

Next, Father’s motion for a temporary parenting arrangement was filed pursuant to Local Rule 7A.11. Father specifically claimed that “Mother [was] denying access to the children, and [was] severely and unreasonabl[y] limiting Father’s access and parenting time with the children.” In light of these allegations, the apparent resolution of the motion based solely on the competing facts alleged by the parties, and the standard established by Local Rule 7A.11, we conclude the motion was not frivolous.

In light of our conclusion that Father’s filing of his motion to compel mediation was the only frivolous motion properly identified by the attorney fees order, the characterization of Father’s frivolous filings as numerous is unsupported by competent evidence. We remand to the trial court to determine what a reasonable award of attorney fees should be as it relates solely to this filing.

Although Rule 22 of the 26th Judicial District Family Law Local Rules allows “sanctions allowed by law” to be imposed for violation of the local rules, and although Father violated the local rules, an award of attorney’s fees may only be made pursuant to a statute, not a local rule.

Assuming N.C. R. Civ. P. 11 applies to affidavits, Rule 11 does not permit attorney fees here. Father was sanctioned for failing to timely file an affidavit of financial standing as required by local rules. While Father may have violated the local rules, Rule 11 does not apply to situations in which there are no “signed pleadings, motions or other papers.”

N.C. R. Civ. P. 37 does not apply where a discovery order is not implicated. Although the local rules require parties to serve a financial affidavit, there is no order in the record requiring that these documents be produced as part of discovery. As a result, there was no violation of a discovery order, and Rule 37(b)(2) is inapplicable.

There was no statute that permitted attorney fees on the basis of Father’s failure to file a financial affidavit, and the trial court abused its discretion in authorizing them as a sanction.

Affirmed in part, vacated and remanded in part, reversed in part.

O’Brien v. O’Brien (Lawyers Weekly No. 012-099-23, 55 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County District Court (Sean Smith, J.) Leonard Kornberg for plaintiff; John Boutwell for defendant. North Carolina Court of Appeals (unpublished)