Sullivan v. Woody

• Decision Date: 20 December 2022
• Docket Number: COA21-651
• Citation: 2022 NCCOA 849
• Parties: KARA ANN SULLIVAN, Plaintiff, v. SCOTT NELSON WOODY, Defendant and E. LYNN WOODY and JAMES NELSON WOODY, Intervenors
• Court: North Carolina Court of Appeals

2022-NCCOA-849

KARA ANN SULLIVAN, Plaintiff, v. SCOTT NELSON WOODY, Defendant and E. LYNN WOODY and JAMES NELSON WOODY, Intervenors

No. COA21-651

Court of Appeals of North Carolina

December 20, 2022

Heard in the Court of Appeals 9 August 2022.

Appeal by Intervenors from orders entered 13 April 2021 by Judge Rebecca Eggers-Gryder in Mitchell County, No. 16 CVD 131 District Court.

Jackson Family Law, by Jill Schnabel Jackson, for Plaintiff-Appellee.

Arnold &Smith, PLLC, by Matthew R. Arnold and Ashley A. Crowder for Intervenors-Appellants.

TYSON Judge.

¶ 1 E. Lynn Woody and James Nelson Woody ("Grandparents"), Intervenors- Appellants, appeal for the second time from orders awarding attorney's fees to Kara Ann Sullivan ("Mother"). Grandparents intervened to secure visitation rights with their granddaughter during a highly-contested domestic and custody dispute between their son, Scott Woody Nelson ("Father") and Mother, which has lasted for nearly seven years.

¶ 2 After careful review of the record and this Court's previous mandate in this case, we once again vacate the trial court's amended order and remand for further findings to delineate and separate between reasonable attorney's fees Mother purportedly incurred to defend against Grandparents' visitation claim, as opposed to reasonable attorney's fees she may have incurred to litigate all remaining claims for custody and child support against Father. We also vacate the trial court's entry of an additional award for attorney's fees resulting from Grandparents' first successful appeal and remand.

I. Background

¶ 3 This Court summarized the factual history of this case in Grandparents' first appeal:

This appeal arises from a heavily litigated child custody dispute that has now stretched on for more than three and a half years. [Mother] and [Father] were married on May 12, 2006. [Mother] filed a complaint seeking temporary and permanent custody of a minor child, child support, and attorney['s] fees on June 17, 2016. [Mother] and [Father] were not separated when the complaint was originally filed. The parties subsequently divorced.

On August 21, 2016, [Grandparents], who are the parents of [Father] and grandparents of the minor child, filed a motion to intervene. The trial court granted [Grandparents]' motion on October 31, 2016. On December 5, 2016, [Grandparents] filed a complaint seeking temporary and permanent visitation rights and attorney['s] fees. [Mother] filed an answer to [Grandparents]' complaint on February 8, 2017.

Before the matter was called for trial, [Mother] and [Father] stipulated that [Mother] was a fit and proper parent and that it would be in the best interest of the minor child to reside with [Mother], who would have legal and physical custody of the minor child. A trial was held on the remaining issues in the case-including [Father]'s visitation rights, [Grandparents]' visitation rights, and [Mother]'s claim for attorney's fees-over six days between March 28, 2018[,] and August 31, 2018.

On September 12, 2018, the trial court entered a final order in the case. Pursuant to the final order, the trial court granted [Grandparents] visitation rights with the minor child. The trial court also ordered that [Father] and [Grandparents] were to be jointly liable for [Mother]'s attorney['s] fees in the amounts of $12,720.00 and $74,491.50.

[Grandparents] filed a Notice of Appeal on 4 October 2018.

Sullivan v. Woody, 271 N.C.App. 172, 173-74, 843 S.E.2d 306, 307-08 (2020).

¶ 4 In their first appeal, Grandparents argued "the trial court erred[:] (1) when it made an award of attorney['s] fees against [them]; and[,] (2) when it found [Grandparents] liable for attorney['s] fees unrelated to their involvement in the custody action." Id. at 174, 843 S.E.2d at 308. This Court's decision, issued on 21 April 2020, held the trial court properly concluded an award of attorney's fees against Grandparents may be authorized by our General Statutes, but reversed the fee award order and remanded for the trial court to make additional findings of fact and conclusions of law regarding the reasonableness of the fee award against Grandparents, and of the costs Mother incurred to challenge Grandparents' claim specifically. Id. at 176-77, 843 S.E.2d at 309-10.

¶ 5 This Court concluded the trial court "failed to make the findings of fact necessary for a determination regarding what amount of [Mother]'s attorney['s] fees were reasonably incurred as the result of litigation by [Grandparents], as opposed to litigation by [Father]." Id. at 177, 843 S.E.2d at 309. This Court reversed the order and remanded the case based on the following reasoning:

[T]he trial court failed to make those findings required by our precedent concerning[:] (1) the scope of legal services rendered by [Mother]'s attorneys in defending against [Grandparents]' visitation claim, or[,] (2) the time required of [Mother]'s attorneys in defending against that claim. Rather, the trial court's findings broadly relate to [Mother]'s attorney['s] fees associated with the entire action-including those claims brought by [Father], to which [Grandparents] were not parties.

[Mother] has cited no authority, and we are aware of none, holding that [Grandparents] may be held liable for 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.

Id. at 177, 843 S.E.2d at 309-10.

¶ 6 Upon remand, the trial court conducted hearings on 19 November and 3 December 2020. The trial court did not hear or conduct a further evidentiary hearing, but Mother's attorneys submitted supplemental affidavits related to fees for services provided since entry of the original order. On 13 April 2021, the trial court entered an amended order for the same amount of attorney's fees awarded in its original order, totaling $87,211.50 against Grandparents.

¶ 7 On the same day, the trial court entered an additional judgment of $21,138.50 for attorney's fees Mother purportedly incurred after the original erroneous order, as those fees consisted of the attorney's fees used to challenge Grandparents' initial appeal. Grandparents again appeal from entry of both judgments for attorney's fees to this Court.

II. Jurisdiction

¶ 8 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2021).

III. Issues

¶ 9 Grandparents present extensive challenges to the trial court's award of attorney's fees. We again vacate and remand the amended order, because the trial court failed to follow this Court's prior mandate, and to make sufficient findings as required to find and hold Grandparents responsible only for reasonable attorney's fees Mother incurred solely as a result of Grandparents' successful claim for visitation.

¶ 10 Grandparents also argue the trial court erred by awarding attorney's fees for Grandparents' appeal "as punishment for providing financial assistance to their son and participating in the litigation."

IV. Insufficient Additional Findings About Allocation of Attorney's Fees A. Standard of Review

¶ 11 Whether the statutory requirements for attorney's fees are met is a question of law, which is reviewed de novo on appeal. Cox v. Cox, 133 N.C.App. 221, 228, 515 S.E.2d 61, 66 (1999) (citations omitted). The trial court must make "additional findings of fact upon which a determination of the requisite reasonableness can be based, such as 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" to enter an award of attorney's fees. Cobb v. Cobb, 79 N.C.App. 592, 595-96, 339 S.E.2d 825, 828 (1986) (citations omitted). "[T]he trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings." Peters v. Pennington, 210 N.C.App. 1, 12-13, 707 S.E.2d 724, 733 (2011) (citation omitted).

¶ 12 If the statutory requirements for attorney's fees "have been satisfied, the amount of the [attorney's fee] award is within the discretion of the trial judge and will not be reversed in the absence of an abuse of discretion." Smith v. Barbour, 195 N.C.App. 244, 255, 671 S.E.2d 578, 586 (2009) (citation, internal quotation marks, and alterations omitted). A trial court has no discretion to misapply, ignore, or fail to follow or properly apply this Court's mandates, controlling statutes, or precedents. Id. "Whether a trial court has properly interpreted the statutory framework applicable to costs is a question of law reviewed de novo on appeal." Peters, 210 N.C.App. at 25, 707 S.E.2d at 741 (citation omitted).

B. Analysis

¶ 13 "A mandate of an appellate court is binding upon the trial court and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered." McKinney v. McKinney, 228 N.C.App. 300, 302, 745 S.E.2d 356, 357 (2013) (emphasis supplied) (citation and internal quotation marks omitted).

¶ 14 In this case, the trial court's amended order fails to follow and apply this Court's prior mandate on remand in the first appeal, requiring the trial court to "make the findings of fact necessary for a determination regarding what amount of [Mother]'s attorney['s] fees were reasonably incurred as the result of litigation by [Grandparents], as opposed to litigation by [Father]." Sullivan, 271 N.C.App. at 177 843 S.E.2d at 309 (emphasis supplied). The amended order merely limited the attorney's fees to be paid by Grandparents to include only legal services provided after they petitioned for lawful visitation with their...