                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-509

                                Filed: 5 March 2019

Mecklenburg County, No. 13 CVD 13093 (JPC)

JOHN P. CONKLIN, Plaintiff,

             v.

TOMMIE JEAN CONKLIN, Defendant.


      Appeal by plaintiff from order entered 29 November 2017 by Judge Jena P.

Culler in District Court, Mecklenburg County. Heard in the Court of Appeals 31

October 2018.


      Church Watson Law, PLLC, by Seth A. Glazer, for plaintiff-appellant.

      Myers Law Firm, PLLC, by R. Lee Myers, for defendant-appellee.


      STROUD, Judge.


      Father appeals from an order awarding attorney’s fees. Although the parties

ultimately settled their custody dispute in a manner more favorable to Father than

Mother initially sought, the trial court did not err in determining that Mother acted

in good faith in defending against Father’s claims regarding child custody and child

support and pursuing her own counterclaims. Where Father’s monthly income was

approximately nine times more than Mother’s income, and she had recently declared

bankruptcy, the trial court did not err in finding that Mother had insufficient means
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to defray the expense of this suit and was entitled to an award of attorney’s fees. We

therefore affirm the trial court’s order.

                                   I.   Background

      The parties married in 1999, separated in 2008, and later divorced. In 2009,

they entered into a Separation and Property Settlement agreement which addressed

child custody and child support for their three children; the parties had joint legal

custody of the children, and Mother had primary physical custody. Father had

visitation every other weekend and on designated holidays. In 2013, Father filed a

complaint for child custody, child support, and attorney’s fees, requesting that he

have “no less than joint physical and legal custody of the minor children,” for the court

to establish child support, for attorney’s fees, and for a temporary parenting

arrangement.     Mother filed a response to the request for temporary parenting

arrangement and an answer and counterclaims for custody, child support, specific

performance, and attorney’s fees.

      Over the next three years, the parties engaged in discovery and filed many

motions and counter-motions, and the trial court entered many orders. Finally, on 2

June 2016, the trial court entered a “Consent Order for Modification Permanent Child

Custody and Dismissal of Motions for Contempt and Orders to Show Cause.” The

Consent order granted joint legal and physical custody of the children to the parties

and includes extensive detailed provisions regarding decision-making, regular and



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holiday schedules, extracurricular activities, communications between the parties,

use of drugs and alcohol by the parties, relocation, appointment of a parenting

coordinator, and other matters. The Consent order provided that “[a]ny pending

claims for attorney’s fees and costs not resolved by this Order, shall remain open for

determination by this Court.” The trial court held a hearing on Mother’s request for

attorney’s fees on 20 July 2017. The trial court entered an order awarding Mother

$45,000.00 in attorney’s fees on 29 November 2017, and Father timely appealed.

                            II.    Standard of Review

      The issues on appeal arise from the trial court’s award of attorney’s fees to

Mother under N.C. Gen. Stat. § 50-13.6:

             In an action or proceeding for the custody or support, or
             both, of a minor child, including a motion in the cause for
             the modification or revocation of an existing order for
             custody or support, or both, the court may in its discretion
             order payment of reasonable attorney’s fees to an
             interested party acting in good faith who has insufficient
             means to defray the expense of the suit.

N.C. Gen. Stat. § 50-13.6 (2017). Before awarding fees, the trial court must conclude

that the party seeking an award of fees is “an interested party acting in good faith

who has insufficient means to defray the expense of the suit.” Id. “Whether these

statutory requirements have been met is a question of law, reviewable on appeal.

Only when these requirements have been met does the standard of review change to

abuse of discretion for an examination of the amount of attorney’s fees awarded.”



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Schneider v. Schneider, ___ N.C. App. ___, ___, 807 S.E.2d 165, 166 (2017). In

addition, the trial court’s findings of fact must be supported by competent evidence.

See Simpson v. Simpson, 209 N.C. App. 320, 324, 703 S.E.2d 890, 893 (2011).

                                 III.    Acting in Good Faith

        Father first argues that Mother has not acted or proceeded in good faith.1 He

argues that “[t]he reality of this case is that there was never a ‘legitimate dispute’

between the parties with respect to the custody of the minor children. The ‘dispute’

was at all times one-sided and manufactured by the [Mother’s] bad faith resistance

to allow [Father] to increase his parenting time of the minor children.” He claims the

trial court was “unjustly punishing” him with the award of attorney’s fees. Father

challenges the trial court’s finding that “Mother has conducted herself as a reasonable

party acting in good faith” and the trial court’s related conclusion:

                5.     Mother has proceeded and acted in this matter in
                “good faith” pursuant to N.C.G.S. §50-13.6.

        While there is not a legal definition of good faith in this context, our Supreme

Court has previously adopted the definition of good faith as “honesty of intention, and

freedom from knowledge of circumstances which ought to put one upon inquiry” for

Rule 11 sanctions. Bryson v. Sullivan, 330 N.C. 644, 662, 412 S.E.2d 327, 336 (1992)



1We note that Father’s arguments in his brief broadly cross-reference his 21 proposed issues on appeal.
We have addressed only those issues for which he has set forth a specific argument, challenge to a
specific finding or conclusion, and legal authority. The listing of issue numbers alone is not sufficient
to make or preserve challenges that are not specifically made in his brief, and we have considered only
the arguments actually made in the brief. See N.C. R. App. P. 28(b)(6).

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(brackets omitted). “Because the element of good faith is seldom in issue a party

satisfies it by demonstrating that he or she seeks custody in a genuine dispute with

the other party.” Setzler v. Setzler, 244 N.C. App. 465, 467, 781 S.E.2d 64, 66 (2015)

(citation, quotation marks, and ellipsis omitted).

      Here, the record and transcript abundantly demonstrate that the parties had

a genuine dispute over custody of the children. Father wanted joint legal and physical

custody, with the children spending equal time with each parent, while Mother

wanted to maintain their previous custody arrangement of weekend and holiday

visitation to provide more stability for the children. Father argues that because the

parties ultimately agreed to an equal custody arrangement in a consent order, that

Mother did not act in good faith by defending against Father’s custody claim and

pursuing her own custody claim.

      Father’s argument overlooks the history of the litigation regarding custody in

this case and the many issues beyond the precise custodial schedule of the children.

We will not recite the entire history of the litigation, but both parties filed many

motions, including motions for contempt and to compel discovery. The trial court

entered orders on many of these motions. In 2014, the trial court entered a custody

order including these findings of fact:

             42.    Father is asking the Court to allow the minor
             children to equally (50/50) spend time with each parent so
             that he has quality time to spend with the minor children
             on a regular basis. Father’s life and current work schedule


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            would permit him have joint (50/50) physical custody of the
            minor children.

            43.    Mother believes that the current parenting time
            schedule provides stability and that is what is important
            for the minor children. She does not want to see their
            routine changed. However, Mother is amenable to a
            week-on/week-off parenting time schedule during the
            summer, so long as Father is not drinking.

            44.     This Court finds that it is in the best interests of the
            minor children that they do have a routine which provides
            stability, but they also have the opportunity to spend
            quality time with both parents.

            45.   This Court finds that it is in the best interests of the
            minor children that Father’s parenting time be expanded,
            but that the minor children are also not forced into a
            schedule that does not provide for stability and continuity.
            Particularly concerning to this court is [R.C.] with his
            struggle in school and how a huge change in his every day
            schedule and structure might affect him as the parties
            work towards helping him progress in school.

            46.   This Court finds that it is in the best interests of the
            minor children for their primary physical custody to
            remain with Mother and for Father to have secondary
            physical custody of the minor children. Father’s parenting
            time with the minor children shall be expanded from what
            he currently has.

      In the Consent Custody order, the trial court noted some of the history of the

case and the disposition of the pending motions:

            6.    On September 14, 2014, this Court entered an Order
            for Permanent Child Custody (hereinafter the “First
            Custody Order”).

            7.     On April 13, 2015, Father filed a Motion for


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Modification of Child Custody and Motion for Contempt
and Order to Show Cause. An Order to Show Cause was
entered on April 16, 2015.

8.    On July 27, 2015, Father filed a Second Motion for
Modification of Child Custody and Motion for Contempt
and Order to Show Cause. No Order to Show Cause was
entered with respect to this Motion for Contempt.

9.   On October 30, 2015, Mother filed a Motion for
Contempt. An Order to Show Cause was entered on
November 6, 2015.

10.   On December 15, 2015, Father filed a Motion for
Emergency Child Custody; Motion for Temporary
Parenting Arrangement; and Third Motion to Modify Child
Custody.

11.   On December 17, 2015, this Court entered an Order
Denying Temporary Emergency Custody and Father’s
Motion for Temporary Parenting Arrangement.

12.   On February 26, 2016, Mother filed a Motion for
Contempt. No Order to show Cause was entered with
respect to this Motion for Contempt.

....

5.     DISMISSAL OF MOTIONS FOR CONTEMPT.
Father’s April 13, 2015 Motion for Contempt and Order to
Show Cause is hereby dismissed. This Court’s Order to
Show Cause issued on April 16, 2015 is hereby dismissed.
Father’s July 27, 2015 Motion for Contempt and Order to
Show Cause is hereby dismissed. Mother's October 30,
2015 Motion for Contempt is hereby dismissed. This
Court’s Order to Show Cause issued on November 6, 2016
is hereby dismissed. Mother’s February 26, 2016 Motion
for Contempt is here by [sic] dismissed. Any and all
attorney’s fees claims with respect to these Motion for
Contempt are hereby dismissed.


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       In the attorney fee order on appeal, the trial court also carefully allocated the

attorney fees attributable to the various claims and motions and specifically noted:

               12.   This Order deals only with attorney’s fees in
               connection with the original permanent child custody and
               original child support Orders.

               13.    While there have been other issues that the Court
               has ruled on, those have been dealt with separately and no
               fees for those other issues are included in this Order.

Father also does not challenge the trial court’s allocation of fees to the child custody

and support issue; he challenges just the conclusion of good faith because the case

was ultimately, after years of litigation, settled.2

       Father’s logic that the existence of a genuine disagreement is determined solely

by the outcome is seriously flawed and not supported by the law. See id. at 468, 781

S.E.2d at 66 (“[I]t is undisputed that defendant was in a genuine dispute with

plaintiff—plaintiff initiated a claim for custody and defendant brought a

counterclaim for custody.”). Were we to adopt Father’s argument, parties would have

a strong disincentive to settle a custody or child support case, since the party who

ultimately agrees to a resolution more similar to the one sought by the other party

would risk liability for attorney’s fees for not acting in good faith. Instead, they would

opt to pursue the litigation to its bitter end even if they may be otherwise willing to


2 Again, as noted above, Father’s listing of issue numbers from the record on appeal is not sufficient
to preserve his argument as to any particular finding of fact or conclusion of law, and we have
addressed only those clearly identified in his brief.

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settle. This is exactly the opposite result encouraged by our statutes and case law.

Dixie Lines v. Grannick, 238 N.C. 552, 555, 78 S.E.2d 410, 413 (1953) (“The law favors

the settlement of controversies out of court. It encourages such action by securing to

every man the opportunity to negotiate for the purchase of his peace without

prejudice to his rights.” (citations omitted)).

        As Mother’s brief notes, Father’s statement of the facts in his brief is

argumentative and blames the entire dispute on Mother’s unreasonable refusal to

agree with his wishes. Father’s arguments on appeal bear some similarity to the

arguments made in the hearing regarding attorney’s fees. The trial court noted the

obvious discord between counsel for the parties at the hearing:

                This case perplexes me so much, the way both of the
                attorneys have behaved in this case towards each other. I
                know all three of you, and I have never seen any of this
                behavior in other cases with y’all. And it’s just perplexing
                to the Court how it can get this out of hand. I have asked
                both sides to seriously consider whether or not they want
                to go down that path3 and proceed with the hearing. And I
                have asked to have an answer after lunch because it’s the
                last thing scheduled. We’ve got three other matters or two
                other matters to finish up. . . . So I really want everybody
                to cool down. I want to hear your argument on the child
                support, on the -- on the attorney’s fees, your argument on
                the attorney’s fees, and then I'm going to recess for lunch
                and go to my [meeting]. . . . And then I want to know when
                we resume, probably 1:45, whether or not both sides are
                still insisting on pursuing whatever claims they may or
                may not have, and I’ll be happy to hear arguments about
                whether or not there’s actually a pending Rule 11 motion

3 At this point in the hearing, counsel for both parties were requesting sanctions under N.C. Gen. Stat.
§ 1A-1, Rule 11 against the other. They ultimately agreed to dismiss their Rule 11 motions.

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             against Ms. Watson, since that’s not how the pleading is
             titled, if -- all of this is going to continue to be pursued;
             okay?

The trial court was in the best position to evaluate the merits and sincerity of the

claims of both parties and to determine whether Mother was acting in good faith. See

Hall v. Hall, 188 N.C. App. 527, 530, 655 S.E.2d 901, 903 (2008) (“This Court has

recognized that the trial judge is in the best position to make such a determination

as he or she can detect tenors, tones and flavors that are lost in the bare printed

record read months later by appellate judges.” (quotation marks omitted)). The

challenged finding and conclusion regarding good faith are based on competent

evidence. The trial court properly concluded that the parties’ dispute as to custody

was genuine, and Mother acted in good faith.

           IV.   Insufficient Means to Defray the Expense of the Case

      Father next argues “that at all times, [Mother] was able to employ counsel to

meet [Father] on a level playing field without the award of attorney’s fees.” Father

challenges the court’s finding that Mother had “insufficient means to defray the

expense of this suit” and related conclusion:

             6.    Mother has insufficient means to defray the expense
             of the custody and child support action, including
             attorney’s fees as provided in N.C.G.S. §50-13.6.

Yet Father does not challenge the trial court’s related findings of fact upon which

this conclusion is based:



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15.   When this action was initiated by Father in 2013,
Mother had worked for about half of the year, and earned
approximately $20,000.00. Subsequent to 2013, she has
earned gross income of approximately $40,000.00 per year.

16.   Mother also received $1,800.00 per month in
alimony in 2013, and has received child support under the
terms of a Separation Agreement, and then under the
terms of the permanent child support Order entered
September 28, 2015.

17.    The Court does not consider it appropriate to
consider the fact that Mother has money for child support
as it would not be appropriate for her to have to deplete her
monthly child support allotment in order to pay attorney’s
fees.

18.   Father, on the other hand, earns approximately
$30,000.00 per month.

19.    Mother has incurred substantial fees from Mr.
Myers for the various issues that he has represented her
on (child custody and child support).

....

25.   The Court finds that the complexity of the case, the
amount of discovery that was required in order to proceed
with this case, and the number of hearing [sic] that these
particular issues have required is all something the Court
considers in determining what would be a reasonable
attorney’s fee.

....

29.   Mother received $10,000.00 from her parents, and
that while the Court does find that she does have some
resources with which to pay attorney’s fees, she should not
have to deplete her estate, little that it is, or that she
should have to deplete her monthly income in order to be


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             able to pay attorney’s fees to meet Father in this litigation.

             30.    Arguments were made by Father’s attorney, and the
             Court has considered the arguments that this was a de
             facto “pro bono” attorney-client relationship where Mother
             was running up thousands of dollars of attorney’s fees, but
             that she had an agreement with her attorney to pay
             $100.00 per month; the Court does not find that this is a
             pro bono arrangement.

             31.   Based on what the Court deems to be reasonable
             attorney’s fees and considering the findings that I have
             made, the Court finds that a reasonable attorneys fee for
             custody and child support for Father to pay to Mother is
             $45,000.00 of the almost $75,000.00 that Mother is
             requesting.

       “A party has insufficient means to defray the expense of the suit when he or

she is unable to employ adequate counsel in order to proceed as litigant to meet the

other spouse as litigant in the suit.” Dixon v. Gordon, 223 N.C. App. 365, 372, 734

S.E.2d 299, 304 (2012).    Here, Father does not dispute that Mother’s estate is

significantly smaller than his own and that there is a large disparity in the income

between Mother and Father. Mother’s income was approximately $40,000.00 per

year when Father filed the complaint in 2013, and Father earns approximately

$30,000.00 per month. In addition, Mother filed for bankruptcy in 2015, and she

testified at the trial on attorney’s fees that she only had $500.00 in her savings

account. The challenged finding is based on competent evidence, and we conclude the

trial court did not err in that Mother “has insufficient means to defray the expense of

the suit.”


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                          V.   Amount of Attorney’s Fees

      Finally, Father argues that the amount of the attorney’s fees is an abuse of

discretion “as the facts and Record of this case do not support the Trial Court’s

erroneous finding that ‘[Mother] has conducted herself as [sic] reasonable party

acting in good faith[.]’” This is not a new argument but merely repeats the argument

Father made earlier in his brief. It is well settled that the amount of attorney’s fees

is within the trial court’s discretion and is reviewed for an abuse of discretion. See

Schneider, ___ N.C. App. at ___, 807 S.E.2d at 166. The trial court found Mother’s

attorney’s rate to be reasonable, and only awarded $45,000.00 out of approximately

$75,000.00 that Mother requested. The trial court considered and rejected Father’s

argument that Mother’s counsel did not really expect to be paid and addressed only

the fees attributable to the pending motions, as provided by the consent order. The

trial court acted well within its discretion in awarding the attorney’s fees.

                                 VI.    Conclusion

      For the foregoing reasons, we affirm the trial court’s award of attorney’s fees.

      AFFIRMED.

      Judges DILLON and BERGER concur.




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