               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-920

                               Filed: 7 November 2017

Mecklenburg County, No. 13-CVD-3272 (CTM)

ROBERT ALLEN SCHNEIDER, Plaintiff,

              v.

HOLLI M. SCHNEIDER, Defendant.


       Appeal by defendant from order entered 23 March 2016 by Judge Christy T.

Mann in District Court, Mecklenburg County. Heard in the Court of Appeals 23

February 2017.


       Robert Allen Schneider, pro se, plaintiff-appellee.

       Plumides, Romano, Johnson & Cacheris, PC, by Richard B. Johnson, for
       defendant-appellant.


       STROUD, Judge.


       Because the trial court may have misapprehended its ability to consider the

financial circumstances of the defendant Mother in awarding attorney fees to plaintiff

Father under North Carolina General Statute § 50-13.6, we reverse the order

awarding attorney fees to Father and remand to the trial court for reconsideration of

this issue.


                                      I.    Background
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                                  Opinion of the Court



      This case arises from a long and contentious custody case.              After their

separation, plaintiff-Father filed a complaint in 2013 against defendant-Mother with

claims for emergency temporary custody, permanent custody, child support, equitable

distribution, interim distribution, appointment for a guardian ad litem, and attorney

fees. We need not go into great detail regarding the multiple claims here, but the

custody dispute centered in large part around Mother’s move to Mississippi with the

children. Over the years the trial court entered several orders but the only one at

issue on appeal is from March of 2016, when the trial court ordered Mother to pay

Father $30,000.00 for attorney fees pursuant to North Carolina General Statute § 50-

13.6. Mother appeals.

                                    II.    Attorney Fees

      Mother’s only argument on appeal is that the court erred by awarding Father

$30,000.00 in attorney fees.

                     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. Before ordering
             payment of a fee in a support action, the court must find as
             a fact that the party ordered to furnish support has refused
             to provide support which is adequate under the
             circumstances existing at the time of the institution of the
             action or proceeding; provided however, should the court
             find as a fact that the supporting party has initiated a
             frivolous action or proceeding the court may order payment


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                                  Opinion of the Court



             of reasonable attorney’s fees to an interested party as
             deemed appropriate under the circumstances.

N.C. Gen. Stat. § 50-13.6 (2015). “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.” Doan v. Doan, 156 N.C. App. 570, 575, 577

S.E.2d 146, 150 (2003) (citation and quotation marks omitted).

      Mother first contends that the trial court “failed to make detailed findings of

fact regarding [Father’s] inability to defray the costs of the lawsuit” as is required

under North Carolina General Statute § 50-13.6. See N.C. Gen. Stat. § 50-13.6.

Mother cites to Dixon v. Gordon, wherein this Court reversed and remanded to the

trial court because

             the only findings of fact were that father does not have
             sufficient funds with which to employ and pay legal counsel
             . . . to meet Mother on an equal basis. Although
             information regarding father‘s gross income and
             employment was present in the record in father‘s
             testimony, there are no findings in the trial court‘s order
             which detail this information. We believe that because the
             findings in this case contain little more than the bare
             statutory language, the order is insufficient to support an
             award of attorneys fees.

223 N.C. App. 365, 373, 734 S.E.2d 299, 305 (2012) (quotation marks, ellipses,

brackets, and footnote omitted), and Cox v. Cox, wherein this Court also reversed and

remanded the case because “the trial court concluded that plaintiff did not have



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                                   Opinion of the Court



sufficient assets with which to pay his attorneys’ fees and that defendant did have

the means to pay plaintiff’s attorneys’ fees. However, there were no findings about

plaintiff’s monthly income or expenses.” 133 N.C. App. 221, 228, 515 S.E.2d 61, 66

(1999). However, unlike the cited cases, contrast Dixon, 223 N.C. App. at 373, 734

S.E.2d at 305; Cox, 133 N.C. App. at 228, 515 S.E. at 66, the trial court here did make

“detailed findings of fact” including the following:

                   6.    The Plaintiff/Father is an airplane pilot and
             is employed by Southwest Airlines. His annual income is
             approximately $134,000.00.

                    ....

                   10.    Plaintiff is the major financial support for the
             minor children due to Defendant’s choice to stay home and
             help raise her stepchildren as well as stay home with her
             expected new born with her new husband.

                   11.    Plaintiff was forced to borrow money from
             family and deplete his savings in order to pay for attorney
             fees to represent his interests in having his children
             returned to North Carolina.

                   12.    Plaintiff's attorney fees overall were over
             $54,000.00 of which approximately $39,000.00 were
             charged for Ms. Sellers’ attorney fees on custody of this
             matter for over 122 hours of work.

                    13.   This does not include costs for appearing at
             this hearing or preparing the order.

                    14.   Defendant incurred attorney fees of
             approximately $18,000.00 in the above case. These fees
             were paid with the proceeds which Defendant/Mother
             received from the domestic case.


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                                   Opinion of the Court




                    15.    The evidence presented at trial and this
             hearing demonstrate that Plaintiff has insufficient means
             to defray the costs of this suit and that these sums affect
             the means with which Plaintiff has to support his
             children’s financial needs.

Mother’s argument that the trial court made “only general findings” is simply

inaccurate. This argument is without merit.

      Next, as to three of the detailed findings of fact just mentioned -- 10, 11, and

15 -- Mother contends portions of them “are not supported by the evidence.” Mother’s

main contention about the challenged findings of fact is that there was no evidence

to support them and her brief implies, at the very least, that no evidence was

presented but rather “counsel simply made arguments[.]” Mother’s argument has

two fatal flaws: first, the trial court did hold a hearing, at which it considered

documentary exhibits, including financial affidavits from the parties, and Mother

actually testified; the second flaw is that the trial court explicitly noted that the

order was based not just on this hearing, but also on the evidence presented at the

hearings regarding the other matters at issue. The order here specifically notes in

its introduction that the trial court made this determination “after reviewing the file,

evidence presented, and the fee affidavit of Plaintiff[.]” In addition, finding of fact

15 shows that the trial court considered all of the evidence presented at the prior

hearings:

                    15.    The evidence presented at trial and this


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                                   Opinion of the Court



             hearing demonstrate that Plaintiff has insufficient means
             to defray the costs of this suit and that these sums affect
             the means with which Plaintiff has to support his
             children’s financial needs.

(Emphasis added.) Although Mother challenges the latter part of this finding which

states that “Plaintiff has insufficient means to defray the costs of this suit[,]” she

does not dispute the sources of the evidence that the trial court considered.

Additionally, it is clear from the order what the “evidence presented at trial” referred

to, since the order also notes that “Custody and Child Support were resolved at trial

and an order was entered on April 11, 2014. Associated attorney fee claims were

held open for later resolution.” The child custody and support order had extensive

findings of fact and was not appealed.

      Furthermore, at the beginning of the hearing on attorney fees, counsel

recognized that the trial court would be considering evidence from the child custody

and support hearing as well as that presented at this hearing as Father’s attorney

stated, with no objection or qualification from Mother’s counsel,

             Your Honor, this is what we need in this situa -- in this
             case. Our evidence is already in the court file. It’s never
             been closed out.      The parties’ equitable distribution
             affidavits are both in the court file. Plaintiff’s was filed
             February 2014, and Defendant’s was filed in March of
             2014. Those are in the file. And along that same time
             period in the file you should see both of their financial
             affidavits respectively filed 2-28-2014 and 3-5-2014. We
             also have the order for permanent custody and child
             support, which was entered in April of 2014, Your Honor[,]



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                                   Opinion of the Court



and the trial court responded, “Okay.” Mother’s argument that there was no evidence

presented which could support the challenged portions of the three findings of fact is

without merit.

      Lastly, Mother contends the trial court made an error of law because it believed

it could not compare the relative estates of the parties, and if the trial court had done

this comparison, it would have determined that an award of attorney fees was not

appropriate. Mother notes that the trial court stated, “the law doesn’t – it’s not -- it

doesn’t provide for me to consider how much money -- in this case, how much money

. . . [mother]” makes. In fact, the trial court discussed its inability to make this

comparison at some length at the hearing, but this is the substance of the trial court’s

statement of the law. Father makes no counter argument on appeal regarding this

issue. We agree that from the trial court’s rendition, it appeared to be under the

impression that the only consideration was whether Father could pay his attorney

fees, without any consideration of Mother’s financial situation. We cannot discern

from the order itself whether the trial court considered Mother’s financial situation

or in its discretion it simply declined to consider it. But a fair reading of the order is

consistent with Mother’s argument that the trial court misapprehended its discretion

to consider her financial situation.

       Our Supreme Court clarified the extent of the trial court’s discretion to

consider the estate of the party ordered to pay attorney fees in Van Every v. McGuire:



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                                  Opinion of the Court



             [W]hile the trial court should focus on the disposable
             income and estate of [the party requesting fees], it should
             not be placed in a straitjacket by prohibiting any
             comparison with [the other party’s] estate, for example, in
             determining whether any necessary depletion of [the party
             requesting fees’] estate by paying her own expenses would
             be reasonable or unreasonable. Accordingly, the order of
             remand must be modified to remove these restrictions.

348 N.C. 58, 62, 497 S.E.2d 689, 691 (1998). In short, the trial court is not required

to consider the financial circumstances of the party ordered to pay attorney fees under

North Carolina General Statute § 50-13.6, but the trial court is allowed, in its

discretion, to consider the financial circumstances of the party ordered to pay and to

compare the financial situations of the parties. See Van Every, 348 N.C. at 62, 497

S.E.2d at 691.

      We must therefore reverse and remand the order for the trial court to

reconsider its discretionary award of attorney fees. In exercising its discretion, the

trial court may decline to consider Mother’s financial situation in light of all of the

circumstances of the case or it may consider her financial situation and compare it to

Father’s situation. Since the trial court made thorough findings of fact in the order

on appeal and those findings were fully supported by the evidence, there is no need

for the trial court to receive additional evidence on remand or to make additional

findings of fact before entering a new order, but the trial court may in its discretion

receive additional evidence or make additional findings.

                                  III.   Conclusion


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                          Opinion of the Court



For the foregoing reasons, we reverse and remand.

REVERSED AND REMANDED.

Judges DILLON and MURPHY concur.




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