{ "id": 4162075, "name": "GORDON B. KUTTNER, Plaintiff v. VILMA MARIE KUTTNER, Defendant", "name_abbreviation": "Kuttner v. Kuttner", "decision_date": "2008-10-07", "docket_number": "No. COA08-342", "first_page": "158", "last_page": "165", "citations": [ { "type": "official", "cite": "193 N.C. App. 158" } ], "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": "605 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632087 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "224" }, { "page": "224" }, { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/se2d/605/0222-01" ] }, { "cite": "167 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411073, 12632087 ], "year": 2004, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0250-01", "/se2d/605/0222-01" ] }, { "cite": "175 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554490 ], "year": 1970, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0649-01" ] }, { "cite": "607 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "168 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469281 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/168/0283-01" ] }, { "cite": "577 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "150-51" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191569 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/156/0570-01" ] }, { "cite": "515 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "70", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11218566 ], "year": 1999, "pin_cites": [ { "page": "234", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0221-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "278 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170120 ], "year": 1981, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0203-01" ] }, { "cite": "468 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "year": 1996, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0050-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "575-77" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 652, "char_count": 15158, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13576814710046803 }, "sha256": "b73b52b6369090d991e6316307276c1af36fdf4e68490c4b1aad2f4cdda7bc5c", "simhash": "1:ad2aede7e24e6f78", "word_count": 2452 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STEPHENS concur." ], "parties": [ "GORDON B. KUTTNER, Plaintiff v. VILMA MARIE KUTTNER, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe trial court\u2019s findings of fact were supported by competent evidence and the stipulations of plaintiff. The trial court did not award attorney\u2019s fees based upon the filing of a frivolous custody claim. The amount of attorney\u2019s fees awarded was reasonable. The order of the trial court is affirmed.\nI. Factual and Procedural Background\nGordon B. Kuttner (plaintiff) and Vilma Marie Kuttner (defendant) were married on 25 February 2001. One child, Andrew Spencer Kuttner, was bom of the marriage on 23 February 2003. The parties separated on 14 April 2006.\nOn 24 July 2006, plaintiff filed a complaint seeking custody of the minor child. On 19 September 2006, defendant filed an answer and counterclaim seeking custody, child support, attorney\u2019s fees, post-separation support, alimony, and equitable distribution. Defendant\u2019s claims for post-separation support, alimony, and equitable distribution were subsequently dismissed by the court as being barred by a pre-nuptial agreement between the parties.\nOn 9 August 2007, the court filed a custody, visitation, and support order that awarded defendant exclusive custody of the minor child, and granted plaintiff \u201creasonable but restricted visitation privileges.\u201d The order further provided that plaintiff pay monthly child support to \u2022 defendant. On 9 August 2007, the court filed a separate order directing plaintiff to pay attorney\u2019s fees of $66,375.00 arising out of the child custody and support claims.\nPlaintiff appeals the order awarding attorney\u2019s fees.\nII. Standard of Review\nWhen the trial court sits as the trier of the facts, its findings of fact that are supported by competent evidence become binding on this Court. Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224 (2004).\nN.C. Gen. Stat. \u00a7 50-13.6 states, in pertinent part, that \u201c[i]n an action or proceeding for the custody or support, or both, of a minor child, . . . the court may in its discretion order payment of reasonable attorney\u2019s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.\u201d N.C. Gen. Stat \u00a7 50-13.6 (2007); see also Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d 33, 35 (1996). \u201cTo support an award of attorney\u2019s fees, the trial court should make findings as to the lawyer\u2019s skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent.\u201d Falls v. Falls, 52 N.C. App. 203, 221, 278 S.E.2d 546, 558 (1981).\nWe note that Judge Tin\u2019s order found that counsel for plaintiff stipulated that: (1) the hourly rates charged by defendant\u2019s counsel were reasonable; (2) lead counsel for defendant was a skilled attorney with over 30 years experience, and did a good job handling defendant\u2019s custody and support claim; and (3) defendant was an interested party acting in good faith in connection with her claims for custody and child support. Plaintiff does not appeal these findings and they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991).\nII. Analysis\nIn his first argument, plaintiff contends that the trial court\u2019s order directing him to pay $66,375.00 in attorney\u2019s fees is not supported by adequate findings of fact or conclusions of law. We disagree.\nA. Reasonableness of Fees\nPlaintiff contends that the trial court failed to make sufficiently \u201cdetailed findings\u201d concerning the actual time spent by defendant\u2019s counsel on the various issues involved in the case. Defendant\u2019s counsel submitted a 74-page attorney\u2019s fees affidavit containing detailed time billing records showing the work performed on behalf of defendant. In addition, a twelve page .supplemental affidavit of attorney\u2019s fees was filed. Judge Tin\u2019s order found:\n34. The 261.43 hours spent by R. Lee Myers and the 68.59 hours spent by Matthew Myers and the 57.14 hours spent by Cindy Graham and the 13.03 hours spent by June DeLore were reasonably necessary and needed to be spent in order to adequately, fully, fairly and completely defend the Father\u2019s claim for custody and to prosecute Mother\u2019s claim for custody and support.\n35. The total charges of $81,375.29 represent reasonable legal fees and expenses in connection with the custody and support claim by Mother.\nThe amount of time set forth in finding of fact 34 exactly matches the hours shown on the two attorney\u2019s fees affidavits. These findings, together with plaintiff\u2019s stipulation as to the reasonableness of the counsel\u2019s hourly rate, more than adequately support the reasonableness of the attorney\u2019s fees awarded.\nB. Challenge to Findings of Fact\nFindings of Fact 10, 13, and 27 read as follows:\n10. During the pendency of this action, Mother has conducted herself and her litigation in an appropriate manner, taking those steps which were reasonably necessary in order to put forward her claim for custody and support\n13. Mother has been able to call upon her attorneys on a consistent and regular basis for counsel and advice, particularly in light of the repeated attempts at intimidation by Father necessitating regular contact with her attorneys\u2019 office.\n27. Significant time was expended during the course of representation by Mother\u2019s attorneys to deal with issues raised by Father which resulted in legitimate concerns by Mother which needed to be addressed by her attorneys; this occurred on an almost daily basis during telephone calls ostensibly for the purpose of talking to Andrew, but resulted in unpleasant discussions by Father with Mother.\nPlaintiff contends that these findings are not expressly limited to issues of child support and custody. However, in findings of fact 19 and 20, the court acknowledged that defendant had incurred attorney\u2019s fees in regards to her marital disputes with plaintiff that were not associated with the child custody and support claims. The court specifically found \u201cnone of the time expended in matters not connected with child custody and support have been included in this Order for payment by Father.\u201d\nPlaintiff further argues that there was no evidence that plaintiff intimidated defendant, and argues that the custody dispute was defendant\u2019s fault and not his fault. We hold that there is competent evidence in the record to support the trial court\u2019s findings, and they are thus binding on appeal. See Lee at 253, 605 S.E.2d at 224. We further note that much of plaintiff\u2019s argument attempts to raise issues concerning the conduct and good faith of defendant which are contrary to plaintiff\u2019s stipulation at trial that defendant \u201cwas an interested party acting in good faith in connection with her claims for custody and child support.\u201d\nFinding of Fact 14 reads as follows:\n14. Attorneys for Mother conducted the appropriate pretrial due diligence in preparing for trial, including the proper assemblage of exhibits, personal interviews with witnesses in their work and personal environments which resulted in a presentation of evidence in a concise, clear, cogent and convincing manner.\nPlaintiff contends that defendant was personally involved in the preparation of exhibits and that not all of the preparation was done by her attorneys and their staff. Testimony revealed that defendant did work with counsel in preparing photograph exhibits. However, the trial court\u2019s order assessed attorney\u2019s fees only for the time actually spent by defendant\u2019s counsel and their staff. Plaintiff has not been charged for defendant\u2019s time. We further note that the total amount of attorney\u2019s fees, based upon the total number of hours, and applicable rates would have been $81,375.29. This amount was reduced to $66,375.00 by Judge Tin.\nFinding of Fact 28 reads as Follows:\n28. Time was spent by attorney for Mother to meet Father\u2019s Motions on two occasions, by his two separate lawyers for Temporary Parenting Orders from the Court, both of which were denied.\nPlaintiff contends that there were no actual hearings on the motions and only one motion was denied. This finding states that time was expended to \u201cmeet\u201d plaintiffs motion, not that there were actual court hearings. There is thus evidence in the record to support this finding, and it is thus binding on appeal. See Lee at 253, 605 S.E.2d at 224.\nFinding of Fact 30 reads as follows:\n30. Mother\u2019s attorneys conducted an investigation and review of facts and circumstances surrounding the care of Andrew in a manner which was appropriate and one which the Court finds to be consistent with the discharge of an attorney\u2019s duty to his client including visiting the environment in which Andrew spends his day (Candlewyck Preschool and Sander residence) and interviewing the witnesses which could potentially provide important information to the Court about Andrew\u2019s care in person, and preparing for their presentation to the Court.\nPlaintiff argues that this finding is not supported by the evidence since defendant\u2019s counsel consumed a beer during the Sander interview. This argument borders upon the absurd and is rejected as being without merit.\nC. Reasonableness of Fees Charged bv Defendant\u2019s Counsel\nPlaintiff makes several arguments in support of his assertion that the amount of fees charged by defendant\u2019s counsel were not reasonable. We note that none of these arguments is supported by any case or statutory authority.\nFirst, plaintiff contends that since defendant\u2019s counterclaim sought a \u201csubstantial but reasonable attorney\u2019s fee\u201d that defendant \u201cintended from the beginning of the litigation to generate a substantial fee regardless of the nature and scope of the matters pending before the court.\u201d We summarily reject this trifling argument.\nSecond, plaintiff makes the novel argument that since the fees for plaintiff\u2019s counsel were much lower than the fees charged.by defendant\u2019s counsel, they must be unreasonable. In making this argument, it is not clear whether plaintiff is referring to just the fees charged by his current counsel, or whether this includes all of the fees charged to plaintiff by his multiple different counsel that represented him during the course of the litigation. Regardless of which amount plaintiff may be referring to, the reasonableness of attorney\u2019s fees is not to be gauged by the fees charged by the other side. Rather, the provisions of N.C. Gen. Stat. \u00a7 50-13.6 have been interpreted as follows:\nThe trial court must also make specific findings of fact concerning the lawyer\u2019s skill, the lawyer\u2019s hourly rate and the nature and scope of the legal services rendered.\nCox v. Cox, 133 N.C. App. 221, 234, 515 S.E.2d 61, 70 (1999) (citation omitted). Plaintiff stipulated that the hourly rates charged by defendant\u2019s counsel were reasonable, that defendant\u2019s counsel was a skilled and respected member of the bar and that he did a good job representing defendant. The court made findings of fact as to the number of hours expended, and that those hours were \u201creasonably necessary.\u201d The trial court applied the correct legal standard in awarding attorney\u2019s fees.\nWe find all of plaintiff\u2019s contentions under his first argument to be without merit.\nIn his second argument, plaintiff contends that the trial court erred in that it used the attorney\u2019s fee award to punish plaintiff for filing a frivolous custody claim. We disagree.\nPlaintiff cites the case of Doan v. Doan, 156 N.C. App. 570, 577 S.E.2d 146 (2003), for the proposition that if an award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 50-13.6 is based upon \u201cthe supporting party\u201d initiating a \u201cfrivolous action or proceeding\u201d that the trial court must make findings of fact concerning that matter. Id. at 575-77, 577 S.E.2d at 150-51. While this concept is legally correct, it has absolutely no application to the instant case. Attorney\u2019s fees were awarded in this case based upon there being a custody and support action tried at the same time, where defendant was \u201can interested party acting in good faith,\u201d who had \u201cinsufficient means to defray the expense of the suit.\u201d N.C. Gen. Stat. \u00a7 50-13.6; see Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005). Plaintiff cannot base an appeal upon the failure of the trial court to make findings of fact on a theory that was not the basis of its order.\nThis argument is without merit.\nIn his third argument, plaintiff contends that the trial court abused its discretion in ordering attorney\u2019s fees in the amount of $66,375.00. We disagree.\nFinding of Fact 37 reads as follows:\n37. If this had been the Court\u2019s custody and child support case, she would want that level of effort spent on her behalf.\nPlaintiff contends that this finding was an inappropriate expression of personal opinion by the court. We hold that this finding was extraneous to the issues presented to the court and should not have been included in the order. However, it is not essential to support any of the trial court\u2019s conclusions of law, and we treat it as surplusage. See City of Charlotte v. McNeely, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351 (1970).\nPlaintiff next argues that the attorney\u2019s fees order was not the result of a \u201creasoned decision\u201d based upon finding of fact 37.\nAs noted above, this finding is surplusage. We have carefully reviewed the Order. It contains detailed findings of fact that are supported by evidence in the record. These findings support the trial court\u2019s conclusions of law, which in turn support the trial court\u2019s order, specifically, the amount of attorney\u2019s fees awarded.\nThis argument is without merit.\nAFFIRMED.\nJudges GEER and STEPHENS concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Horack, Talley, Pharr & Lowndes, PA, by Kary C. Watson, for plaintiff-appellant.", "Myers Law Firm, PLLC, by R. Lee Myers and Matthew R. Myers, for defendant-appellee." ], "corrections": "", "head_matter": "GORDON B. KUTTNER, Plaintiff v. VILMA MARIE KUTTNER, Defendant\nNo. COA08-342\n(Filed 7 October 2008)\n1. Child Support, Custody, and Visitation\u2014 custody \u2014 attorney fees \u2014 findings and conclusions\nAn order directing that plaintiff pay attorney fees of $66,375.00 in a child custody matter was supported by adequate findings and conclusions. The reasonableness of the fees was supported by affidavits and plaintiff\u2019s stipulations, the court specifically found that none of the time was expended on matters not connected to this case, the fees were only for time spent by staff. Moreover, the reasonableness of attorney fees is not gauged by the fees charged by the other side.\n2. Child Support, Custody, and Visitation\u2014 custody \u2014 attorney fees \u2014 frivolous claim \u2014 not basis of award\nPlaintiff cannot base an appeal upon the failure of the trial court to make findings on a theory that was not the basis of its order. The concept that the trial court must make sufficient findings to support an award of attorney fees as punishment for filing a frivolous custody claim was not applicable here.\n3. Child Support, Custody, and Visitation\u2014 custody \u2014 attorney fees \u2014 court\u2019s opinion\nAn expression of the trial court\u2019s opinion about attorney fees in a child custody action should not have been included in the order, but was extraneous and treated as surplusage.\nAppeal by plaintiff from judgment entered 9 August 2007 by Judge Rebecca T. Tin in Mecklenburg County District Court. Heard in the Court of Appeals 11 September 2008.\nHorack, Talley, Pharr & Lowndes, PA, by Kary C. Watson, for plaintiff-appellant.\nMyers Law Firm, PLLC, by R. Lee Myers and Matthew R. Myers, for defendant-appellee." }, "file_name": "0158-01", "first_page_order": 190, "last_page_order": 197 }