Whedon v. Whedon

• Decision Date: 02 April 1985
• Docket Number: No. 354PA84,354PA84
• Citation: 328 S.E.2d 437,313 N.C. 200
• Court: North Carolina Supreme Court
• Parties: Parker WHEDON v. Jeannette C. WHEDON.

Page 437

328 S.E.2d 437

313 N.C. 200

Parker WHEDON v. Jeannette C. WHEDON.

No. 354PA84.

Supreme Court of North Carolina.

April 2, 1985.

Cannon & Basinger, P.A. by A. Marshall Basinger, II, Charlotte, for the defendant-appellant.

Kennedy, Covington, Lobdell & Hickman by Richard D. Stephens, Charlotte, for the plaintiff-appellee.

MEYER, Justice.

The question presented for review is whether the Court of Appeals erred in holding that the trial court could not grant an involuntary dismissal without prejudice against the nonmoving party pursuant to N.C.G.S. § 1A-1, Rule 41(b), mid-way through a hearing to determine an award of counsel fees under N.C.G.S. § 50-16.4. For the reasons set forth below, we hold that (1) the Court of Appeals erred in its determination that the trial court must make a ruling on the merits of a party's request for attorneys' fees when presented with a motion for an involuntary dismissal at mid-trial; (2) the authority to determine whether the nonmoving party in any action should be permitted to commence a new action has been vested in the trial judge under N.C.G.S. § 1A-1, Rule 41(b); and (3) the exercise of that power lies within the trial court's sound discretion and will not be disturbed on appeal in the absence of a showing of abuse of discretion, which the plaintiff has not demonstrated in this case.

In addressing the plaintiff's contention that the trial court erred by dismissing the defendant's request for appellate attorneys' fees without prejudice, the Court of Appeals stated that although the language of Rule 41(b) would appear to permit an involuntary dismissal without prejudice of a motion for counsel fees under N.C.G.S. § 50-16.4, this would not be a proper application of the rule. Rather, the court reasoned, "that it was the trial court's duty, when presented with plaintiff's motion for an involuntary dismissal of defendant's requests for attorneys' fees, to examine the quality of defendant's evidence and make a ruling on the merits." Whedon v. Whedon, 68 N.C.App. at 195, 314 S.E.2d at 797.

It is evident from a reading of the opinion in Whedon II that the Court of Appeals based its holding upon its assumption that the trial court had in fact examined the "quality of defendant's evidence", found it to be insufficient to support her motion for counsel fees, and had made a "ruling on the merits" in the plaintiff's favor such that "the additional language in the order indicating that the motion for appellate attorneys' fees was dismissed without prejudice was without legal effect and must be regarded as mere surplusage." 68 N.C.App. at 195, 314 S.E.2d at 797.

Our examination of the record fails to support this view of the trial court's actions. More importantly, we find no support for the appellate court's interpretation of the scope of the trial judge's authority under Rule 41(b) in either the language of the rule itself, or in any of the relevant authorities addressing motions for involuntary dismissal made pursuant thereto.

I.

With regard to whether the trial court necessarily determined the facts in the course of ruling on plaintiff's Rule 41(b) motion, we find it significant that the defendant had requested the award of reasonable attorneys' fees for both representation during the appellate process in Whedon I and for representation during the contempt hearing in Whedon II, and that the amount of evidence presented differed with respect to the two separate claims. With regard to both requests, defendant's verified motion contains the following allegations:

The defendant alleges that the fair and reasonable value of said [appellate attorney] services is not less than $17,790.00, which the plaintiff should be ordered to pay inasmuch as the trial court did find as a fact that the defendant had no funds with which to hire counsel during the course of the trial, and she clearly has not had the funds to hire counsel during the course of the appellate process. The defendant further respectfully submits that the appeal involved several important issues, requiring a great deal of research and preparation in order to achieve the affirmative rulings by the appellate courts.

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The defendant further alleges that she continues to be without funds with which to pay the expenses incurred as a result of the preparation, filing and hearing of this motion, and should be awarded additional attorney's fees for her attorney through the course of hearing this Motion. (Emphasis added).

The "findings" of the trial court to which defendant referred in her verified motion were those findings of fact made by Judge Saunders at the initial alimony trial in February 1981. The relevant findings concerning the parties' finances and the defendant's entitlement to counsel fees are as follows:

5. The plaintiff, in his verified complaint, has alleged, and the court does find as a fact, that the plaintiff actually abandoned the defendant on or about August 11, 1978, without any fault or provocation on the defendant's part, within the meaning of that term as set forth in N.C.G.S. § 50-16.2(4).

6. The plaintiff in his verified complaint, alleges, and the court does find as a fact, that the defendant is the dependent spouse who is actually substantially dependent upon the plaintiff for her maintenance and support, and the plaintiff is the supporting spouse, capable of providing reasonable support for the defendant, within the meaning of those terms as set forth in N.C.G.S. 50-16.1(3) and (4).

7. The court specifically finds that the defendant has not sufficient means whereon to subsist during the defense of this action and to defray the necessary expenses thereof.

8. The plaintiff is 55 years old and in good health, and has been actively engaged in the practice of law in Mecklenburg County for over twenty years. Further, the plaintiff, a sole practitioner, is in good standing in this community and is honestly engaged in his business and is seeking to operate it at a profit.

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17. The defendant is 55 years old, in good health, and is the mother of four children, the youngest of whom is now attending North Carolina State University. The defendant is a graduate of the University of Georgia and the School of Education at the University of North Carolina at Chapel Hill.

18. The defendant has not had a job in the business world in over twenty years and has no readily available job skills. In addition, she would be 58 years of age by the time she could renew her teacher's certificate, assuming the successful completion of the necessary college courses.

19. The defendant has no income from any source whatsoever.

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26. The plaintiff has the present ability to pay attorneys fees to the defendant's attorneys for representing her in this action.

Based upon these findings, Judge Saunders concluded that:

The defendant has not sufficient means whereupon to subsist during the defense of this action, and to defray the necessary expenses thereof, and the Court therefore concludes that the defendant is entitled to an award of attorneys' fees pursuant to N.C.G.S. § 50-16.4. ¹

The trial court's award of counsel fees to the defendant's attorneys was affirmed by the Court of Appeals in Whedon I.

At the November 1982 hearing before Judge Todd, in addition to presenting the record of Whedon I and her verified motion, defendant testified that she had to borrow the money she used to defray her counsel fees during the appellate process in Whedon I from her mother. Defendant also offered evidence by her attorney as to the time he spent in representing defendant during the appellate process, and her attorney was extensively cross-examined by plaintiff's attorney as to the nature and value of the services rendered.

Since the plaintiff's initial pleadings were filed in 1980, he has filed no additional pleadings in this action, with the exception of his two appeals to the Court of Appeals. During the course of the hearing in question, plaintiff presented no evidence.

At the close of defendant's evidence, the plaintiff moved to dismiss defendant's motion on the ground that defendant's evidence was insufficient to support any of the relief she requested. With regard to counsel fees in particular, plaintiff argued that this was a "new application" for counsel fees, and as such, the burden was on the defendant to show the reasonable value of the services rendered, to show that she presently has insufficient means and ability to defray those expenses and to demonstrate that plaintiff can pay or afford those expenses. Plaintiff made the identical argument regarding both the appellate counsel fees for Whedon I and the motion hearing fees for Whedon II. After discussion with counsel, the trial court made the following ruling:

THE COURT: As to the portions of the defendant's motion for attorneys fees on the Appellate level and during this contempt proceeding and all the times we made up and including this time today, it is the judgment of this Court there is insufficient evidence at this time that has been presented to make a ruling on the issue of attorneys fees at both the Appellate level and at this contempt proceeding, and I am therefore dismissing those motions. However, that will be without prejudice to the defendant and the plaintiff would like to object and except to that ruling. (Emphasis added).

In the order entered on 25 January 1983, the trial court made a number of findings of fact with regard to the number of hours spent by defendant's attorneys during the appeal in Whedon I and in preparation for the hearing in Whedon II; the hourly rate defendant's attorney A. Marshall Basinger charged for such appellate work; and the value of the consulting services provided by defendant's attorney William E. Poe throughout the appellate process. No findings of fact were made with respect to the value of the services rendered by these attorneys with regard to the preparations in Whedon...