{ "id": 11649437, "name": "FLOYD B. McKISSICK, JR., Plaintiff v. CYNTHIA HEATH McKISSICK, Defendant", "name_abbreviation": "McKissick v. McKissick", "decision_date": "1998-04-07", "docket_number": "No. COA97-735", "first_page": "252", "last_page": "255", "citations": [ { "type": "official", "cite": "129 N.C. App. 252" } ], "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": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "235", "parenthetical": "when valid pre-marital agreement fully disposes of property rights arising out of marriage, then equitable distribution is barred" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "year": 1987, "pin_cites": [ { "page": "295", "parenthetical": "when valid pre-marital agreement fully disposes of property rights arising out of marriage, then equitable distribution is barred" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "293 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "306 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571704 ], "year": 1982, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0545-01" ] }, { "cite": "281 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "431" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522906 ], "year": 1981, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0622-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-230", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(i)" }, { "page": "(i)" }, { "page": "(i)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 6-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 350, "char_count": 7899, "ocr_confidence": 0.735, "pagerank": { "raw": 5.912794380632971e-08, "percentile": 0.3695514680585625 }, "sha256": "891fc7c5cc9b416075445019b36aa9881bcd4555e1c35e407cde8d1c71af6c8b", "simhash": "1:0eef8b2bb65b8c90", "word_count": 1282 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "FLOYD B. McKISSICK, JR., Plaintiff v. CYNTHIA HEATH McKISSICK, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nFloyd McKissick (plaintiff) appeals from an order of the trial court awarding Cynthia Heath McKissick (defendant) attorneys\u2019 fees.\nThe facts are as follows: On 26 June 1995, the plaintiff sought custody of the parties\u2019 minor child. The defendant filed an answer on 27 June 1995 in which she sought, inter alia, recovery of belongings left in the marital home, injunctive relief prohibiting the plaintiff from disposing of marital property, equitable distribution, a declaration that the parties\u2019 pre-marital agreement was void, and attorneys\u2019 fees. On 28 August 1995 the plaintiff filed a reply seeking to establish that the pre-marital agreement was an enforceable bar to the defendant\u2019s claims for equitable distribution.\nOn 7 September 1995 the defendant made a \u201cMotion For Return of Personal Property\u201d in which she asked to be given possession of all her pre-marital personal property in the plaintiff\u2019s possession. In his response, the plaintiff claimed that some of the items requested by the defendant were the plaintiffs separate property and asked the trial court to deny the defendant\u2019s motion. On 10 December 1996, nunc pro tunc for 25 April 1996, the trial court concluded in its order that the parties\u2019 pre-marital agreement was valid and the \u201cdefendant\u2019s claims as to the pre-marital agreement were . . . dismissed\u201d but did not specifically rule on the defendant\u2019s other claims such as equitable distribution. On 14 May 1996, the trial court allowed the defendant to amend her motion for return of personal property to include post marriage items which constituted her separate property pursuant to the pre-marital agreement.\nOn 10 September 1996 the trial court entered an order directing the plaintiff to return specified items of the defendant\u2019s property or pay monetary damages in the alternative. The order reserved the issue of attorneys\u2019 fees for a subsequent hearing. On 14 January 1997 the court entered an order giving the defendant attorneys\u2019 fees in the amount of $4,200.00 pursuant to N.C. Gen. Stat. \u00a7\u00a7 6-18(2) and 50-20(i). The trial court dismissed the defendant\u2019s claims for equitable distribution, interim distribution of marital property, and alimony on 9 March 1997.\nThe issue is whether an action to recover the possession of separate property can support an award of attorneys\u2019 fees under either (I) N.C. Gen. Stat. \u00a7 6-18(2) or (II) N.C. Gen. Stat. \u00a7 50-20(i).\nI\n\u201cIn an action to recover the possession of personal property,\u201d filed pursuant to N.C. Gen. Stat. \u00a7 1-230, a trial court shall allow costs of the action to the plaintiff. N.C.G.S. \u00a7 6-18(2) (1997). Because, however, there is not specific authorization that costs in the context of this statute are to include attorneys\u2019 fees, costs awarded cannot include an award of attorneys\u2019 fees. Dorsey v. Dorsey, 53 N.C. App. 622, 624, 281 S.E.2d 429, 431 (1981), aff\u2019d in part and rev\u2019d in part on other grounds, 306 N.C. 545, 549, 293 S.E.2d 777, 780 (1982). Therefore, the award of attorneys\u2019 fees in this case is not supported by section 6-18(2).\nII\nThe plaintiff argues that an award of attorneys\u2019 fees is also not supported by N.C. Gen. Stat. \u00a7 50-20(i). This is so, the plaintiff contends, because the trial court had no jurisdiction to enter an order requiring the return of separate property (pursuant to section 50-20(i)), and absent any jurisdiction to enter such an order, it follows there can be no jurisdiction to enter an award of attorneys\u2019 fees. The plaintiff contends that the trial court was without jurisdiction to enter the section 50-20(i) order because it had earlier declared that the premarital agreement was valid and that it necessarily follows that this pre-marital agreement constitutes a bar to any of the defendant\u2019s claims under the equitable distribution statute, including her claim for the return of her separate property.\nWe agree that if the trial court had no jurisdiction to enter the section 50-20(i) order, it had no jurisdiction to enter an award of attorneys\u2019 fees under that section. It does not follow, however, that the determination that the pre-marital agreement is valid bars any and all claims pursuant to the equitable distribution statute. It is only premarital agreements that fully dispose of the parties\u2019 property rights that bar subsequent actions under the equitable distribution statute. See Hagler v. Hagler, 319 N.C. 287, 295, 354 S.E.2d 228, 235 (1987) (when valid pre-marital agreement fully disposes of property rights arising out of marriage, then equitable distribution is barred). In this case the trial court did not make the determination that all property rights had been settled by the pre-marital agreement until several months later, when it dismissed the equitable distribution claim. This dismissal did not occur until after the order requiring the return of the defendant\u2019s separate property. Thus, the trial court was not without jurisdiction at the time it entered its section 50-20(i) order and it therefore had jurisdiction to award attorneys\u2019 fees under that section.\nAffirmed.\nJudges WALKER and TIMMONS-GOODSON concur.\n. \u201cIn an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or for the value thereof in case a delivery cannot be had, and damages for the detention.\u201d N.C.G.S. \u00a7 1-230 (1996).\n. N.C. Gen. Stat. \u00a7 50-20(i) provides in pertinent part:\nUpon filing an action . . . requesting equitable distribution ... a party may seek injunctive relief pursuant to G.S. 1A-1, Rule 65 and Chapter 1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property or separate property of the party seeking relief. . . . Upon application by the owner of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may enter an order for reasonable counsel fees and costs of court incurred to regain its possession but such fees shall not exceed the fair market value of the separate property at the time it was removed.\nN.C.G.S. \u00a7 50-20(i) (Supp. 1997).\n. We need not and therefore do not address the question of whether the trial court would have had the jurisdiction to order the transfer of separate property pursuant to section 50-20(i) if that order had been entered after the dismissal of the equitable distribution claim.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Floyd B. McKissick, Jr., plaintiff appellant, pro se.", "Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Thomas R. Peake, II, for defendant appellee." ], "corrections": "", "head_matter": "FLOYD B. McKISSICK, JR., Plaintiff v. CYNTHIA HEATH McKISSICK, Defendant\nNo. COA97-735\n(Filed 7 April 1998)\n1.Costs \u00a7 37 (NCI4th)\u2014 action to recover possession of personal property \u2014 attorney fees as costs\nThe award of attorney fees in an action to recover personal property under N.C.G.S. \u00a7 1-230 was not supported by N.C.G.S. \u00a7 6-18(2) because there is not a specific authorization that costs in the context of this statute are to include attorney fees.\n2.Divorce and Separation \u00a7 170 (NCI4th)\u2014 action for possession of separate property \u2014 attorney fees\nThe trial court was not without jurisdiction to award attorney fees under N.C.G.S. \u00a7 50-20(i) in an action for return of separate property where plaintiff contended that the trial court was without jurisdiction because it had earlier declared that a premarital agreement was valid and barred defendant\u2019s claims under the equitable distribution statute. The trial court did not make the determination that all property rights had been settled by the premarital agreement until after the order requiring return of defendant\u2019s separate property and thus had jurisdiction at the time it entered the order.\nAppeal by plaintiff from order filed 14 January 1997 by Judge J. Kent Washburn in Alamance County District Court. Heard in the Court of Appeals 17 February 1998.\nFloyd B. McKissick, Jr., plaintiff appellant, pro se.\nVernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Wiley P. Wooten and Thomas R. Peake, II, for defendant appellee." }, "file_name": "0252-01", "first_page_order": 292, "last_page_order": 295 }