{ "id": 11869757, "name": "DAVID C. VAN EVERY v. KELLY W. McGUIRE, (formerly KELLY DIANE WEBB VAN EVERY)", "name_abbreviation": "Van Every v. McGuire", "decision_date": "1997-03-04", "docket_number": "No. COA96-485", "first_page": "578", "last_page": "583", "citations": [ { "type": "official", "cite": "125 N.C. App. 578" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "417" } ], "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "year": 1986, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "444 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "635", "parenthetical": "allowing recovery of \"deposition expenses\" although not listed in section 7A-305" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128582 ], "year": 1994, "pin_cites": [ { "page": "347", "parenthetical": "allowing recovery of \"deposition expenses\" although not listed in section 7A-305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0343-01" ] }, { "cite": "339 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "828-29" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522250 ], "year": 1986, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0592-01" ] }, { "cite": "472 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798800, 798907, 798836, 798923 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0517-02", "/nc/343/0517-01", "/nc/343/0517-03", "/nc/343/0517-04" ] }, { "cite": "468 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "37-38" }, { "page": "36", "parenthetical": "evidence did not show that requiring party to pay her own attorney's fees would cause an \"unreasonable depletion of her estate\"" } ], "opinion_index": 0 }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "57-58" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0050-01" ] }, { "cite": "263 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "723" }, { "page": "724" }, { "page": "724", "parenthetical": "\"good faith\" and \"insufficient means\" inquiries present questions of law reviewable de novo~" } ], "opinion_index": 0 }, { "cite": "299 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575259 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "472" }, { "page": "474" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0465-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 553, "char_count": 11540, "ocr_confidence": 0.753, "pagerank": { "raw": 2.677980155395416e-07, "percentile": 0.8264006897699441 }, "sha256": "d1e7cd2c8f83ab7f009b9648dae0bfa7e3be6f0717dee671d4c7c9c63f338792", "simhash": "1:970bd60b0d6b94f6", "word_count": 1945 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "DAVID C. VAN EVERY v. KELLY W. McGUIRE, (formerly KELLY DIANE WEBB VAN EVERY)" ], "opinions": [ { "text": "GREENE, Judge.\nDavid C. Van Every (plaintiff) appeals an order awarding Kelly McGuire\u2019s (defendant) counsel $55,688.35 in attorney\u2019s fees, $3,163.50 to the guardian ad litem, and $390.00 for expert witness fees.\nThe undisputed facts are that plaintiff and defendant were married in 1988 and divorced in 1992. One child was born to the marriage in 1989. A dispute arose with regard to the custody of the child and on 27 July 1994 the trial court appointed a guardian ad litem to represent the child. In entering its order the trial court found that the appointment was \u201cin the child\u2019s best interests, and expedient to the administration of justice.\u201d The guardian ad litem was directed to: (1) \u201creceive, review or copy documents concerning the child, whether or not the document is otherwise confidential;\u201d (2) \u201cinvestigate and determine the facts, the child\u2019s needs and the resources available to meet those needs and to present that information at Court hearings;\u201d (3) \u201cappear at all Court hearings and represent the child\u2019s interests by examining and cross-examining witnesses otherwise presenting evidence and making arguments to the Court;\u201d and (4) \u201ccollect and present to the Court, to aid in custody and visitation determinations all available reports, evaluations, and other information regarding the child.\u201d On 19 December 1994 the trial court appointed two psychologists to \u201cassist the Court in determining what custodial placement would be in the best interest of\u2019 the child. On 27 September 1995 the trial court entered an order granting the \u201ccare, custody and control\u201d of the child to the defendant. The plaintiff was granted extensive visitation privileges.\nOn 20 December 1995 the trial court ordered the plaintiff to pay directly to the defendant\u2019s attorney the sum of $55,688.35 in payment of the attorney\u2019s \u201cout of pocket expenses\u201d and the \u201cservices\u201d performed by the attorney on behalf of the defendant. The trial court also ordered the plaintiff to pay, as part of the costs in this action, the sum of $3,163.50 to the guardian ad litem in payment of the \u201ccharges\u201d made by the guardian ad litem in her representation of the child. The plaintiff was finally directed to pay, as part of the costs, the sum of $390.00 in payment of the \u201ccharges\u201d made by the psychologists previously appointed by the trial court.\nIn support of. the 20 December order, the trial court concluded in relevant part that: (1) the defendant \u201cis an interested party acting in good faith who has insufficient means to defray the expenses of this litigation\u201d[;] (2) the plaintiff \u201cis able to pay the sum of $55,688.35\u201d[;] and (3) the plaintiff \u201cis able to pay the guardian ad litem charges.\u201d The trial court entered the following relevant findings of fact: (1) plaintiffs annual income in 1991, 1992 and 1993 was well over $1,000,000.00 and his net estate is worth $15,000,000.00; (2) until April 1995, defendant had no income, but from April until the present, defendant\u2019s income per month is $10,000.00 which is used to \u201cpay for food and other household expenses\u201d; (3) defendant\u2019s estate consists of three automobiles worth a total of $60,000.00, a savings account containing $3,000.00, and a gaming machine, the value of which is unknown, from which she receives her monthly income; and (4) defendant has no debts.\nThe evidence reveals that the defendant has paid all of her attorney\u2019s fees except $19,000.00 and that her present husband pays most of the household expenses. There is no evidence as to the amount of the defendant\u2019s expenses, including food and household expenses.\nThe issues are whether (I) a trial court may consider the relative estates of the parties when determining a party\u2019s entitlement to an award of attorney\u2019s fees in a custody action under N.C. Gen. Stat. \u00a7 50-13.6 (1995); and (II) the trial court erred in requiring the plaintiff to pay, as part of the court costs, the fees of the guardian ad litem.\nI\nIn a \u201cproceeding for the custody or support, or both, of a minor child,\u201d the trial court has the discretion to enter an award of attorney\u2019s fees to an interested party, provided the interested party shows that she is \u201cacting in good faith\u201d and \u201chas insufficient means to defray the expense of the suit.\u201d N.C.G.S. \u00a7 50-13.6 (1995); Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 723 (1980). A party has insufficient means to defray the expense of the action, when he or she is \u201cunable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit.\u201d Hudson, 299 N.C. at 474, 263 S.E.2d at 724.\nAs a general proposition, the trial court is not permitted to compare the relative estates of the parties in assessing a party\u2019s ability to employ \u201cadequate\u201d counsel. See Taylor v. Taylor, 343 N.C. 50, 57-58, 468 S.E.2d 33, 37-38, reh\u2019g denied, 343 N.C. 517, 472 S.E.2d 25 (1996). In the event, however, the party seeking an award of attorney\u2019s fees does not have sufficient income to employ \u201cadequate\u201d counsel and the expenses of the litigation would unreasonably deplete her estate, the trial court may examine the relative estates of the parties. Cobb v. Cobb, 79 N.C. App. 592, 596-97, 339 S.E.2d 825, 828-29 (1986); Taylor, 343 N.C. at 55, 468 S.E.2d at 36 (evidence did not show that requiring party to pay her own attorney\u2019s fees would cause an \u201cunreasonable depletion of her estate\u201d).\nIn this case the trial court concluded that the defendant was an interested party acting in good faith and had insufficient means to defray the expenses of the action. There is no dispute that she is an interested party acting in good faith. The only question is whether the record supports the conclusion of law that the defendant was without sufficient means to defray the expenses of the action. See Hudson, 299 N.C. at 472, 263 S.E.2d at 724 (\u201cgood faith\u201d and \u201cinsufficient means\u201d inquiries present questions of law reviewable de novo~).\nThe findings indicate that the defendant has an estate valued at $63,000 and an annual income of $120,000. The plaintiff has an estate valued at $15,000,000 with an annual income of $1,000,000. The findings also show that the defendant expends $120,000 annually \u201cto pay for food and other household expenses.\u201d These findings, if supported by the evidence, can support the conclusion that she does not have sufficient \u201cmeans to defray the expenses of this litigation.\u201d The finding, however, that she is required to expend her full income to defray her household expenses is simply not supported by the evidence. There is no evidence as to the amount of her \u201cfood and other household expenses\u201d and indeed no evidence that she was required to expend all of her income for these purposes. Furthermore, the evidence shows that she was able to pay a large portion of her attorney\u2019s fees from her annual income.\nBecause the evidence fails to show that she did not have ample income to defray the expenses of this action and would have been required to deplete her estate to pay these expenses, the trial court erred in considering the relative estates of the parties in assessing the defendant\u2019s ability to employ \u201cadequate\u201d counsel. The order requiring the plaintiff to pay the defendant\u2019s attorney\u2019s fees is therefore reversed and remanded. On remand the trial court must reconsider the defendant\u2019s entitlement to attorney\u2019s fees. The determination must be made on the basis of the evidence in this record and without a consideration of the relative estates of the parties.\nII\nCourt costs in custody proceedings \u201cshall be taxed against either party, or apportioned among the parties, in the discretion of the court.\u201d N.C.G.S. \u00a7 6-21(11) (1986). The costs recoverable include those items enumerated in N.C. Gen. Stat. \u00a7 7A-305 (1995); see Sealey v. Grine, 115 N.C. App. 343, 347, 444 S.E.2d 632, 635 (1994) (allowing recovery of \u201cdeposition expenses\u201d although not listed in section 7A-305). Section 7A-305(d)(7) specifically provides that \u201c[f]ees of guardian ad litem[s]\u201d are assessable as an item of costs.\nIn this case the trial court appointed a guardian ad litem to represent the interest of the child. This appointment was consistent with authority granted to the trial court in Rule 17 of the North Carolina Rules of Civil Procedure. Rule 17(b)(3) authorizes the trial court to appoint a \u201cguardian ad litem for an infant or incompetent person . . . when it is deemed by the [trial] court in which the action is pending expedient to have the infant, or insane or incompetent person so represented.\u201d N.C.G.S. \u00a7 1A-1, Rule 17(b)(3) (1990). The trial court included in its order a finding that the appointment of the guardian ad litem was in the best interest of the child and \u201cexpedient to the administration of justice.\u201d The plaintiff does not assign error to this finding. The guardian ad litem was thus properly appointed.\nHaving properly appointed the guardian ad litem, the trial court was within its discretion to assess as an item of costs the fees of the guardian ad litem and to tax those fees to either party or apportion them between the parties. This Court can reverse that decision only \u201cupon a showing that [the decision is] manifestly unsupported by reason.\u201d See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Thus, contrary to the argument of the plaintiff, the assessment of costs is determined using a different criteria than that used for the assessment of attorney\u2019s fees under section 50-13.6. See Smith v. Price, 315 N.C. 523, 537, 340 S.E.2d 408, 417 (1986). In the assessment of court costs the trial court has no restrictions on its consideration of the relative estates of the parties.\nIn this case our review of the record discloses no manifest abuse of discretion with respect to the assessment of court costs, including the fees for the guardian ad litem. The order of the trial court directing the plaintiff to pay the guardian ad litem fees is thus affirmed.\nAffirmed in part, reversed in part, and remanded.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "The Tryon Legal Group, by Jerry Alan Reese, for plaintiff-appellant.", "Nelson M. Casstevens, Jr. and Teresa L. Conrad, for defendant-appellee." ], "corrections": "", "head_matter": "DAVID C. VAN EVERY v. KELLY W. McGUIRE, (formerly KELLY DIANE WEBB VAN EVERY)\nNo. COA96-485\n(Filed 4 March 1997)\n1. Divorce and Separation \u00a7 552 (NCI4th)\u2014 child custody\u2014 attorney fees \u2014 estates of parties improperly considered\nThe evidence in a child custody proceeding did not support the court\u2019s finding that the mother expended her full $120,000 income on food and other household expenses, and the trial court erred in considering the relative estates of the parties in assessing the mother\u2019s ability to employ adequate counsel and her entitlement to counsel fees. N.C.G.S. \u00a7 50-13.6.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 604, 606, 615, 618.\n2. Divorce and Separation \u00a7 551 (NCI4th)\u2014 child custody\u2014 costs \u2014 guardian ad litem fees \u2014 no abuse of discretion\nThere was no abuse of discretion in the trial court\u2019s order which charged as costs of a child custody case to be paid by plaintiff father the fees of a guardian ad litem appointed to represent the interest of the child. In the assessment of court costs the trial court has no restrictions on its consideration of the rela- \u2022 tive estates of the parties. N.C.G.S. \u00a7 1A-1, Rule 17(b)(3); N.C.G.S. \u00a7\u00a7 6-21(11), 7A-305(d)(7).\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 587, 749, 971.\nAppeal by plaintiff from order entered 20 December 1995 in Mecklenburg County District Court by Judge William G. Jones. Heard in the Court of Appeals 14 January 1997.\nThe Tryon Legal Group, by Jerry Alan Reese, for plaintiff-appellant.\nNelson M. Casstevens, Jr. and Teresa L. Conrad, for defendant-appellee." }, "file_name": "0578-01", "first_page_order": 616, "last_page_order": 621 }