{ "id": 4168702, "name": "KENNETH VANN WIGGINS, Plaintiff v. CHRISTINE BARWICK BRIGHT, Defendant", "name_abbreviation": "Wiggins v. Bright", "decision_date": "2009-08-04", "docket_number": "No. COA08-557", "first_page": "692", "last_page": "697", "citations": [ { "type": "official", "cite": "198 N.C. App. 692" } ], "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": "583 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "49-50", "parenthetical": "rejecting defendant's claim that there was insufficient support in the record for award of attorneys' fees where trial court relied on attorneys' affidavit in finding amount and reasonableness of fees" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955301 ], "year": 2003, "pin_cites": [ { "page": "227", "parenthetical": "rejecting defendant's claim that there was insufficient support in the record for award of attorneys' fees where trial court relied on attorneys' affidavit in finding amount and reasonableness of fees" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0224-01" ] }, { "cite": "173 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "514-15", "parenthetical": "holding trial court could require defendant found in contempt for failure to pay child support to pay attorneys' fees as condition of purging contempt" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548943 ], "year": 1970, "pin_cites": [ { "page": "63", "parenthetical": "holding trial court could require defendant found in contempt for failure to pay child support to pay attorneys' fees as condition of purging contempt" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0061-01" ] }, { "cite": "579 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "912", "parenthetical": "affirming award of attorneys' fees under \u00a7 50-13.6 in connection with filing of motion for contempt even though defendant could not actually be found in contempt because she returned child after filing of contempt motion but before hearing on motion" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186309 ], "year": 2003, "pin_cites": [ { "page": "127", "parenthetical": "affirming award of attorneys' fees under \u00a7 50-13.6 in connection with filing of motion for contempt even though defendant could not actually be found in contempt because she returned child after filing of contempt motion but before hearing on motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0123-01" ] }, { "cite": "570 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "224", "parenthetical": "holding that in order to award attorneys' fees under \u00a7 50-13.6, \"the trial court was required to make two findings of fact: that the party to whom attorney's fees were awarded was (1) acting in good faith and (2) has insufficient means to defray the expense of the suit\"" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250632 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "506", "parenthetical": "holding that in order to award attorneys' fees under \u00a7 50-13.6, \"the trial court was required to make two findings of fact: that the party to whom attorney's fees were awarded was (1) acting in good faith and (2" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0504-01" ] }, { "cite": "577 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "151", "parenthetical": "upholding trial court's award of attorneys' fees in a custody and support action" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191569 ], "year": 2003, "pin_cites": [ { "page": "576", "parenthetical": "upholding trial court's award of attorneys' fees in a custody and support action" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0570-01" ] }, { "cite": "197 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559840, 8559809, 8559848, 8559821, 8559860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0666-03", "/nc/283/0666-01", "/nc/283/0666-04", "/nc/283/0666-02", "/nc/283/0666-05" ] }, { "cite": "196 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548013 ], "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0183-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2007, "opinion_index": 0 } ], "analysis": { "cardinality": 493, "char_count": 11846, "ocr_confidence": 0.744, "pagerank": { "raw": 6.783869250616657e-08, "percentile": 0.41520161986277965 }, "sha256": "b9f82d46fc3131a90ecc0aa98aced9f26fc7e5575b33728792376a26f2193b18", "simhash": "1:0fe85ee2bf4f1fd4", "word_count": 1935 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STEPHENS concur." ], "parties": [ "KENNETH VANN WIGGINS, Plaintiff v. CHRISTINE BARWICK BRIGHT, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Kenneth Vann Wiggins appeals from the trial court\u2019s order requiring him to pay the attorneys\u2019 fees incurred by defendant Christine Barwick Bright in opposing plaintiff\u2019s motion seeking that she be held in contempt of the custody order entered by the trial court. On appeal, plaintiff contends the trial court had no statutory authority to award attorneys\u2019 fees to defendant. To the contrary, because the trial court concluded that plaintiff\u2019s motion was frivolous \u2014 a determination not challenged on appeal \u2014 the trial court was specifically authorized to award defendant fees by N.C. Gen. Stat. \u00a7 50-13.6 (2007). Consequently, we affirm the trial court\u2019s order.\nFacts\nPlaintiff and defendant married on 15 February 1992, separated on or about 20 March 2002, and divorced on 19 May 2003. The parties have one child, who was born on 5 January 1994. On 19 May 2005, plaintiff filed a complaint seeking custody, and on 9 June 2005, defendant filed an answer and counterclaim for custody.\nOn 28 March 2007, the trial court issued an order, nunc pro tunc 21 November 2006, awarding joint legal custody to the parties, with defendant having primary custody and plaintiff having secondary custody. The order also set out a specific schedule of visitation for plain-' tiff and included provisions for summer visitation by both parents. On 13 July 2007, plaintiff filed a motion in the cause seeking to hold defendant in contempt for failure to comply with the custody order, asserting that defendant was required to notify plaintiff in writing at least 30 days before the last scheduled day in school of the three weeks of summer visitation that defendant was choosing. The motion alleged \u201c[t]hat the Defendant has willfully failed and refused to abide by the terms of the aforesaid Order in that she has failed to notify the Plaintiff of the summer visitation that she was going to exercise for the summer of 2007 in a timely manner.\u201d\nOn 16 July 2007, the trial court entered an order to show cause why defendant was not in contempt, and a hearing was held on 25 September 2007. After the trial court orally denied plaintiff\u2019s motion for contempt, defendant\u2019s counsel filed an Affidavit for Counsel Fees on 31 October 2007.\nOn 21 November 2007, the trial court entered an order, nunc pro tunc 25 September 2007, dismissing plaintiff\u2019s motion for contempt with prejudice. The trial court pointed out that the custody order required \u201c[t]hat in all odd numbered years (i.e. 2007, 2009, etc.), Plaintiff shall notify Defendant in writing at least 60 days before the child\u2019s last regularly scheduled day in school of the timing of the three weeks that he chooses for that year.\u201d (Emphasis added.) The order required defendant to give prior notice \u201cin all even numbered years (i.e. 2008, 2010, etc.).\u201d The trial court found that since it was an odd-numbered year, plaintiff \u2014 and not defendant \u2014 was required to give written notice of the weeks he chose for summer visitation 60 days prior to the child\u2019s last regularly scheduled school day. The court further found that plaintiff had violated the custody order by not giving the required notice. Based on its findings of fact, the trial court concluded first that defendant had not violated the terms of the custody order and was not in contempt of court. The trial court then concluded that \u201cPlaintiff\u2019s Motion in the Cause for contempt against Defendant is a \u2018frivolous motion\u2019 and should be dismissed by the Court.\u201d Plaintiff has not appealed that order.\nOn the same day, the trial court entered a separate order requiring plaintiff to pay defendant\u2019s attorneys\u2019 fees in the amount of $2,836.75. As a basis for this order, the trial court repeated its finding in the prior order that \u201cPlaintiff\u2019s Motion in the Cause for contempt filed against the Defendant was and is \u2018frivolous\u2019. . . .\u201d The court further found that \u201cthe Defendant is proceeding in good faith, does not have sufficient means to defray the costs and expenses of the matter, and the Plaintiff\u2019s Motion in the Cause was not justified and in fact was frivolous.\u201d Plaintiff timely appealed from this order.\nDiscussion\nPlaintiff first contends the trial court was without authority to order him to pay defendant\u2019s attorneys\u2019 fees. A trial court cannot award attorneys\u2019 fees unless specifically authorized by statute. United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 187, 196 S.E.2d 598, 602 (\u201cIt is settled law in North Carolina that ordinarily attorneys fees are not recoverable either as an item of damages or of costs, absent express statutory authority for fixing and awarding them.\u201d), cert. denied, 283 N.C. 666, 197 S.E.2d 880 (1973).\nN.C. Gen. Stat. \u00a7 50-13.6 provides:\nIn an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, 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. Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding; provided however, should the court find as a fact that the supporting party has initiated a frivolous action or proceeding the court may order payment of reasonable attorney\u2019s fees to an interested party as deemed appropriate under the circumstances.\n(Emphasis added.) This statute grants the trial court \u201cauthority and discretion to award attorney\u2019s fees as appropriate under the circumstances due to the frivolous nature of [a] plaintiff\u2019s action\u201d or proceeding. Doan v. Doan, 156 N.C. App. 570, 576, 577 S.E.2d 146, 151 (2003) (upholding trial court\u2019s award of attorneys\u2019 fees in a custody and support action).\nHere, plaintiff brought this action seeking both custody and support. In this action, plaintiff then brought a proceeding \u2014 a motion for contempt \u2014 that the trial court properly determined to be frivolous. As this Court held in Doan, N.C. Gen. Stat. \u00a7 50-13.6 authorized the trial court, in these circumstances, to order plaintiff to pay a reasonable attorneys\u2019 fee to defendant for the costs of defending this frivolous proceeding.\nMoreover, attorneys\u2019 fees were also authorized under N.C. Gen. Stat. \u00a7 50-13.6 based on the findings that defendant was proceeding in good faith in responding to the motion for contempt and does not have sufficient means to defray the costs and expenses of this matter. See Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002) (holding that in order to award attorneys\u2019 fees under \u00a7 50-13.6, \u201cthe trial court was required to make two findings of fact: that the party to whom attorney\u2019s fees were awarded was (1) acting in good faith and (2) has insufficient means to defray the expense of the suit\u201d). This Court has previously held that when the requisite two findings have been made, a trial court may award attorneys\u2019 fees under \u00a7 50-13.6 to parties who have successfully pursued a motion for contempt in child support and custody actions. See Ruth v. Ruth, 158 N.C. App. 123, 127, 579 S.E.2d 909, 912 (2003) (affirming award of attorneys\u2019 fees under \u00a7 50-13.6 in connection with filing of motion for contempt even though defendant could not actually be found in contempt because she returned child after filing of contempt motion but before hearing on motion); Blair v. Blair, 8 N.C. App. 61, 63, 173 S.E.2d 513, 514-15 (1970) (holding trial court could require defendant found in contempt for failure to pay child support to pay attorneys\u2019 fees as condition of purging contempt).\nPlaintiff contends, however, that Ruth and Blair cannot apply to this case because defendant was not both the moving and prevailing party. His suggestion that only the party initiating the proceeding may recover fees is contrary to the plain language of the statute authorizing an award to \u201can interested party.\u201d N.C. Gen. Stat. \u00a7 50-13.6. His claim that the party must have prevailed is contrary to Burr, in which this Court specifically rejected the appellant\u2019s argument that simply \u201cbecause defendant did not prevail at trial, the award of attorney\u2019s fees to defendant was improper.\u201d 153 N.C. App. at 506, 570 S.E.2d at 224.\nIf the proceeding is one covered by N.C. Gen. Stat. \u00a7 50-13.6, as is the case here, and the trial court makes the two required findings regarding good faith and insufficient means, then it is immaterial whether the recipient of the fees was either the movant or the prevailing party. Thus, we hold the trial court had statutory authority to award fees to defendant in this case.\nPlaintiff also challenges as unsupported by the evidence the trial court\u2019s findings of fact that (1) fees in the amount of $2,836.75 are reasonable and necessary and (2) plaintiff should be required to pay the reasonable fees. He further adds that the trial court\u2019s conclusion of law regarding the amount of the fees is not supported by findings of fact. In support of these contentions, plaintiff does not, however, include any specific argument pointing to any contrary evidence or any particular inadequacies in the findings of fact. He simply incorporates by reference his argument regarding the trial court\u2019s statutory authority.\nEven if plaintiff had adequately presented these contentions, the trial court included a detailed finding of fact relating to the reasonableness and amount of the attorneys\u2019 fee award. We can see no basis for plaintiff\u2019s unexplained assertion that this detailed finding is inadequate to support the ultimate award. In turn, this finding of fact is fully supported by the affidavit submitted by defendant\u2019s counsel. See Middleton v. Middleton, 159 N.C. App. 224, 227, 583 S.E.2d 48, 49-50 (2003) (rejecting defendant\u2019s claim that there was insufficient support in the record for award of attorneys\u2019 fees where trial court relied on attorneys\u2019 affidavit in finding amount and reasonableness of fees). These remaining arguments of plaintiff are thus meritless, and we affirm the trial court\u2019s order awarding attorneys\u2019 fees to defendant.\nAffirmed.\nJudges STEELMAN and STEPHENS concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Dal F. Wooten for plaintiff-appellant.", "No brief filed on behalf of defendant-appellee." ], "corrections": "", "head_matter": "KENNETH VANN WIGGINS, Plaintiff v. CHRISTINE BARWICK BRIGHT, Defendant\nNo. COA08-557\n(Filed 4 August 2009)\n1. Child Support, Custody, and Visitation\u2014 custody \u2014 contempt \u2014 statutory authority\nThe trial court had statutory authority to order plaintiff to pay defendant mother\u2019s attorney fees in a child custody action where plaintiff had brought an unsuccessful motion that she be held in contempt of a custody order. N.C.G.S. \u00a7 50-13.6 grants the trial court the authority and discretion to award attorney fees as appropriate due to the frivolous nature of a plaintiff\u2019s proceeding. Moreover, attorney fees are also authorized under this statute based upon findings that defendant proceeded in good faith in responding to the motion for contempt and does not have sufficient means to defray the costs and expenses of the matter.\n2. Costs\u2014 attorney fees \u2014 defending child custody contempt motion \u2014 findings sufficient\nThe amount of an attorney fee award was affirmed where plaintiff contended that the court\u2019s findings were unsupported by the evidence but did not point specifically to inadequacies in the findings or contrary evidence. Moreover, the court included a detailed finding relating to the reasonableness and amount of the attorney fee award.\nAppeal by plaintiff from order entered 21 November 2007 by Judge David B. Brantley in Lenoir County District Court. Heard in the Court of Appeals 15 January 2009.\nDal F. Wooten for plaintiff-appellant.\nNo brief filed on behalf of defendant-appellee." }, "file_name": "0692-01", "first_page_order": 718, "last_page_order": 723 }