Cobb v. Cobb

Citations: 339 S.E.2d 825; 79 N.C. App. 592; 1986 N.C. App. LEXIS 2088Docket: 8521DC483

Court: Court of Appeals of North Carolina; March 4, 1986; North Carolina; State Appellate Court

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Defendant Kenton L. Cobb contested the trial court's finding that plaintiff's attorney, Melvin F. Wright, Jr., spent at least 34.15 hours on the case, valuing those services at no less than $3000. The defendant argued that some time recorded in the attorney's affidavit pertained to unrelated California and South Carolina actions. The court upheld its findings, stating that if supported by competent evidence, such findings are conclusive. The attorney's affidavit indicated that he had represented the plaintiff since December 1982 but only itemized hours spent on this case starting July 19, 1983. The court recognized that precursory activities prior to filing a complaint, which totaled 3.3 hours before the complaint was filed on June 15, 1984, are legitimate and allowable in calculating attorney fees in domestic cases. The total amount spent by the attorney, including $123 in expenses, reached $3538, validating the court's conclusion regarding the hours worked and the fee's reasonableness. Additionally, the court found that the plaintiff lacked the financial means to cover litigation costs, thus entitling her to an award of attorney's fees under North Carolina General Statutes § 50-13.6. This statute requires the party seeking fees to be an interested party acting in good faith and to demonstrate insufficient means to cover legal expenses. The court's findings regarding the attorney's services and the plaintiff's financial status were supported by sufficient evidence, and the defendant's first assignment of error was overruled.

In Warner v. Latimer, the court emphasized the necessity for additional findings to assess the reasonableness of attorney's fees, including the nature of services provided, required skill and time, the attorney's hourly rate, and its comparability to others. The trial judge has discretion in determining the award, which will not be reversed unless there is an abuse of discretion. The defendant argued that the evidence did not support the finding that the plaintiff lacked the means to cover litigation expenses. The plaintiff's testimony revealed her assets included a marital residence valued at $175,000 (with a $54,000 mortgage), a fully paid 1984 Honda Accord, and a $1,500 account for college expenses. Her income was $800 per month, with anticipated alimony of $1,250 and child support of $500, both of which the defendant had failed to pay. The defendant's assets included a $68,500 condominium in South Carolina, land, a fully paid 1983 Toyota, and a $3,500 IRA, alongside a previous salary of $125,000, though he was currently unemployed. The court noted it would be unreasonable for the plaintiff to deplete her smaller estate to pay attorney fees, especially as she had already incurred significant expenses. The trial court's findings were deemed sufficient to support the conclusion that the plaintiff could not afford the costs. The defendant's arguments regarding the need for findings on the plaintiff's good faith and the reasonableness of the attorney's fees were also rejected.

The court noted that while the findings on the reasonableness of the attorney fees were insufficient, it identified a lack of evidence confirming the plaintiff's status as an interested party acting in good faith. However, the record suggests potential evidence of the plaintiff's good faith, particularly regarding the defendant's arrears for alimony and child support amounting to $15,050 and the plaintiff's defense in a California lawsuit against the defendant's attempt to invalidate their separation agreement. An attorney's affidavit indicated that services were valued at $3,538, and the plaintiff testified that her attorney had previously charged $75.00 per hour, though it remains unclear if this was considered for the current case. The court concluded that the lack of sufficient findings led to the reversal of the attorney fee award and vacated the judgment, remanding the case for further findings. The Chief Judge concurred, emphasizing that the trial judge must determine entitlement to fees and their reasonableness with sufficient findings to avoid abuse of discretion. The awarded fee of $3,000.00 for 34.15 hours of work was deemed excessive without more information on customary charges in the area.