(irish) v. Simpson

• Decision Date: 18 January 2011
• Docket Number: No. COA09–1131.,COA09–1131.
• Citation: 703 S.E.2d 890
• Parties: Amy SIMPSON (Irish), Plaintiff,v.Daryl Wayne SIMPSON, Defendant.
• Court: North Carolina Court of Appeals

703 S.E.2d 890

Amy SIMPSON (Irish), Plaintiff,

v.Daryl Wayne SIMPSON, Defendant.

No. COA09–1131.

Court of Appeals of North Carolina.

Jan. 18, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiff from order entered 12 June 2009 by Judge Martin B. McGee in Cabarrus County District Court. Heard in the Court of Appeals 11 February 2010.

Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., Concord, by James R. DeMay, for plaintiff-appellant.

Conroy & Weinshenker, P.A., Concord, by Seth B. Weinshenker, for defendant-appellee.

GEER, Judge.

Plaintiff Amy Simpson (Irish) appeals from an order denying her motion for attorney's fees following a hearing on defendant Daryl Wayne Simpson's motion for modification of child custody. In denying the motion, the trial court found that plaintiff had failed to present sufficient evidence of the reasonableness of her attorney's hourly rates. We agree with plaintiff that the customary rate of local attorneys' fees is a proper subject for judicial notice in connection with motions for attorneys' fees brought under N.C. Gen.Stat. § 50–13.6 (2009). Because the trial court stated in its order that it was precluded from taking judicial notice of local rates and, therefore, acted under a misapprehension of law when the court made its findings of fact, we must reverse and remand for further findings of fact.

Facts

Plaintiff and defendant had three children during their marriage. After plaintiff and defendant separated, a consent order was entered on 21 April 2006 pursuant to which the parties agreed that plaintiff would have primary physical custody of the minor children. Subsequently, on 12 August 2008, defendant filed a motion for modification of the consent order requesting that the trial court allow the parties to share physical custody with each parent having the children 50% of the time.

At the 13 January 2009 hearing on defendant's motion, plaintiff moved to dismiss the motion on the grounds that defendant had failed to show a substantial and material change of circumstances affecting the best interest and welfare of the children sufficient to justify a change in the custody arrangement under the consent order. The trial court agreed and granted plaintiff's motion to dismiss in an order entered 27 January 2009.

On 9 February 2009, plaintiff filed a verified “Motion to Tax Costs,” seeking both costs and attorney's fees. The verified motion stated that plaintiff had incurred reasonable stenographic expenses in the amount of $718.50 and attorney's fees in the amount of $9,172.50. As support for this motion, plaintiff attached the court reporter's invoice, a “History Bill” from plaintiff's counsel, and plaintiff's affidavit of financial status.

On the same day, plaintiff also filed a document entitled “Memorandum of Costs and Disbursements” and “Verification by Attorney.” In this document, which was notarized, plaintiff's counsel stated:

I am the attorney for the Plaintiff and in that capacity am better informed relative to the within costs and disbursements than my client or any of my associate counsel. To the best of my knowledge and belief, the items contained in [the] attached History Bill are correct, and the disbursements have been necessarily incurred in the action or proceedings.

As the memorandum indicated, it attached the History Bill.

At the 12 March 2009 hearing on plaintiff's motion, the trial court told the parties that, following the hearing, they could submit additional legal authority, but the court would not receive any additional evidence. Nonetheless, on 19 March 2009, a week after the hearing, plaintiff's counsel filed an affidavit in which he stated, “The rates that I charge are well within the parameters and rate structure of a majority of the attorneys in Cabarrus County and well below an attorney with similar skills in Mecklenburg County.”

On 12 June 2009, the trial court entered its “Order Awarding Costs.” The trial court found that plaintiff acted in good faith in defending against defendant's motion and that “[p]laintiff's counsel skillfully represented plaintiff in defending against defendant's motion to modify and time spent on the case by plaintiff's attorney was reasonable and necessary.” With respect to the reasonableness of the hourly rate charged by plaintiff's counsel, the court found:

There was no evidence offered at the hearing regarding the reasonableness of the hourly rate charged by Plaintiff's counsel in comparison with other lawyers as required by Falls v. Falls, 52 N.C.App. 203, 221

[278 S.E.2d 546]

[, disc. review denied, 304 N.C. 390, 285 S.E.2d 831]

(1981). The Affidavit of Edwin H. Ferguson, Jr., to the extent it offered evidence on the reasonableness issue, is not properly before the Court because it was offered after the hearing in violation of this Court's instructions. Also, the Falls case precludes the Court from taking judicial notice of the typical fees charged by counsel in our area and find [sic] that the charges and time spent [are] reasonable.

On the issue of plaintiff's ability to pay her attorney, the court found: “Based upon her affidavit, the plaintiff is not employed and has insufficient means to defray the cost of this action, but the Defendant did not have the opportunity to cross-examine her at the hearing.” As for defendant's ability to pay, the trial court found:

13. Plaintiff did not call defendant to testify or offer any evidence at the hearing herein regarding his ability to pay defendant's attorney's fees. Plaintiff's counsel asserted that the defendant had offered testimony bearing upon this issue when his motion to modify custody was heard in January 2009.

14. There was no evidence offered by defendant regarding what changes, if any, have occurred regarding defendant's income and expenses since the January 2009 hearing.

Based on these findings, the trial court, citing the Falls case, concluded that “plaintiff failed to offer sufficient evidence for the Court to award attorney's fees.” The court, therefore, denied the motion for attorney's fees, although it awarded plaintiff $748.50 in costs. Plaintiff timely appealed to this Court.

Discussion

The sole issue on appeal is whether the trial court erred in denying plaintiff's request for attorney's fees. N.C. Gen.Stat. § 50–13.6 provides that in a proceeding for modification of child custody, “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.” “ ‘Whether these statutory requirements have been met is a question of law, reviewable on appeal.’ ” Doan v. Doan, 156 N.C.App. 570, 575, 577 S.E.2d 146, 150 (2003) (quoting Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 724 (1980)). “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.” Id.

In this case, the trial court concluded that plaintiff offered insufficient evidence to support an award of attorney's fees. While plaintiff focuses entirely on whether the trial court properly found that she offered no evidence regarding the reasonableness of her attorney's hourly rate, defendant argues that the trial court also found that plaintiff failed to prove that she had insufficient means to defray the expense of the proceeding. Defendant contends that the order may be upheld on that basis regardless of the propriety of the court's findings on the hourly rate issue.

Review of the order does not support defendant's contention. The finding of fact as to plaintiff's means is ambiguous. The finding of fact starts by stating that plaintiff “has insufficient means to defray the cost of this action,” referring to plaintiff's financial affidavit as support. It goes on, however, to note that defendant did not have an opportunity to cross-examine plaintiff. The finding can reasonably be read either as determining that plaintiff met this statutory requirement or as determining that the evidence offered on that issue was not competent and, therefore, insufficient to meet the statutory requirement. Because of this ambiguity, this finding of fact is not adequate to support the trial court's denial of the motion for attorney's fees.

The trial court's order is, however, unambiguous regarding the sufficiency of the evidence as to the reasonableness of counsel's hourly rate: “There was no evidence offered at the hearing regarding the reasonableness of the hourly rate charged by Plaintiff's counsel in comparison with other lawyers as required by Falls ....” It is well established that in order to “support the reasonableness of an award of attorney fees, the trial court must make ‘findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney's hourly rate, and its reasonableness in comparison with that of other lawyers.’ ” Cunningham v. Cunningham, 171 N.C.App. 550, 565–66, 615 S.E.2d 675, 686 (2005) (quoting Cobb v. Cobb, 79 N.C.App. 592, 595, 339 S.E.2d 825, 828 (1986)).

According to Falls, 52 N.C.App. at 221, 278 S.E.2d at 558, the trial court cannot make the findings necessary to support an award of attorney's fees unless the party seeking the fees offers evidence to support those findings. Here, plaintiff does not dispute that the only evidence she presented on the reasonableness of her counsel's hourly rate was contained in the affidavit filed after the hearing on her motion. She also does not challenge the trial court's decision not to consider that affidavit. There is thus no dispute that plaintiff failed to submit evidence as to the reasonableness of her attorney's rates in comparison with the rates of other local attorneys.

The question, then, is whether plaintiff could satisfy the Falls requirements by asking the trial court to take judicial notice of the customary rates of local attorneys.¹ Although the trial court stated in its findings of...