{ "id": 4220738, "name": "GINGER A. McKINNEY (NOW GINGER L. SUTPHIN), Plaintiff v. JOE A. McKINNEY, Defendant", "name_abbreviation": "McKinney v. McKinney", "decision_date": "2013-07-16", "docket_number": "No. COA12-1152", "first_page": "300", "last_page": "307", "citations": [ { "type": "official", "cite": "228 N.C. App. 300" } ], "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": "606 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632224, 12632225, 12632226, 12632227, 12632228, 12632229, 12632230, 12632231, 12632232, 12632233, 12632234, 12632235, 12632236, 12632237, 12632223 ], "year": 2005, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/606/0458-01", "/se2d/606/0458-02", "/se2d/606/0458-03", "/se2d/606/0458-04", "/se2d/606/0458-05", "/se2d/606/0458-06", "/se2d/606/0458-07", "/se2d/606/0458-08", "/se2d/606/0458-09", "/se2d/606/0458-10", "/se2d/606/0458-11", "/se2d/606/0458-12", "/se2d/606/0458-13", "/se2d/606/0458-14", "/se2d/606/0458-15" ] }, { "cite": "167 N.C. App. 806", "category": "reporters:state", "reporter": "N.C. 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Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "280 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "790" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. 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App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3821987 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/210/0001-01" ] }, { "cite": "720 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 685, "char_count": 17223, "ocr_confidence": 0.713, "pagerank": { "raw": 4.8798172122030925e-08, "percentile": 0.3065667148934166 }, "sha256": "656035edaf307a74774f5a1df9c181722a45ce84ea2be42ce2539ea374d57102", "simhash": "1:0f68ee2e625e5d76", "word_count": 2830 }, "last_updated": "2023-07-14T22:18:27.138557+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and HUNTER, Robert N., JR. concur." ], "parties": [ "GINGER A. McKINNEY (NOW GINGER L. SUTPHIN), Plaintiff v. JOE A. McKINNEY, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere our prior opinion directed the trial court to award fees for the time that an expert witness actually spent testifying in court, but not for time spent preparing for trial, the trial court erred in awarding additional fees based upon the time that the expert spent waiting in court. The trial court did not err in awarding attorney\u2019s fees to plaintiff for the first appeal in a case involving child support and custody.\nI.Factual and Procedural Background\nThe underlying facts of this case can be found in our previous decision on this matter, McKinney v. McKinney,_N.C. App._, 720 S.E.2d 29 (2011) (unpublished). In that matter, defendant appealed several orders of the trial court that awarded attorney\u2019s fees to plaintiff in connection with plaintiff\u2019s motion for modification of child support. We affirmed in part, and vacated and remanded in part those orders. As to the portion of the attorney\u2019s fees award representing time that plaintiff\u2019s expert witness, Mr. Boger, spent in preparation for trial in the amount of $3,055.00, we held that this was improperly awarded under the case of Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011). That portion of the award was vacated. We remanded this matter to the trial court to \u201cdetermine how much of the remaining $6,240.00 attorney\u2019s fees award was awarded for time Mr. Boger spent preparing for trial. Any such amount shall be deducted from the new order.\u201d Id.\nOn remand, on 22 January 2012, the trial court found that Mr. Boger spent \u201capproximately one and one-half hours providing actual testimony.\u201d The court also found that he spent a total of 13 hours in court. The court awarded plaintiff $390.00 in expert witness fees for the time Mr. Boger spent testifying, and $2,990.00 for time he spent in court, for a total award of $3,380.00.\nOn 1 February 2012, plaintiff filed a motion seeking attorney\u2019s fees incurred in connection with the original appeal. On 29 March 2012, the trial court awarded $25,980.51 to plaintiff for attorney\u2019s fees on appeal.\nDefendant appeals.\nII.Standard of Review\n\u201cWhether a trial court has properly interpreted the statutory framework applicable to costs is a question of law reviewed de novo on appeal.\u201d Peters v. Pennington, 210 N.C. App. 1, 25, 707 S.E.2d 724, 741 (2011).\nIII.Arguments\nA. Expert Witness Fees for Time Waiting in Court\nIn his first argument on appeal, defendant contends that the trial court erred in awarding expert witness fees for time spent by the expert in attending court but not actually testifying, where instructions on remand were to assess costs for time actually spent testifying. We agree.\nA mandate of an appellate court \u201cis binding upon [the trial court] and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered. We have held judgments of Superior [C]ourt which were inconsistent and at variance with, contrary to, and modified, corrected, altered or reversed prior mandates of the Supreme Court... to be unauthorized and void.\" Lea Co. v. N.C. Bd. of Transp., 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989) (quotations and citations omitted). A trial court has \u201cno authority to modify or change in any material respect the decree affirmed.\u201d Id. at 700, 374 S.E.2d at 868 (quoting Murrill v. Murrill, 90 N.C. 120, 122 (1884)).\nOn remand, a trial court is free to reconsider the evidence and to enter new findings of fact, provided that they are not inconsistent with ' those findings upheld by this Court. Friend-Novorska v. Novorska, 143 N.C. App. 387, 393-94, 545 S.E.2d 788, 793 aff'd per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001).\nIn our prior opinion, we analyzed the expert witness fees to which plaintiff was entitled under N.C. Gen. Stat. \u00a7 7A-305. The statute reads, in relevant part:\nThe following expenses, when incurred, are assessable or recoverable, as the case may be. The expenses set forth in this subsection are complete and exclusive and constitute a limit on the trial court\u2019s discretion to tax costs pursuant to G.S. 6-20:\nReasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.\nN.C. Gen. Stat. \u00a7 7A-305(d)(11) (2009). We determined that this statute enabled the trial court to assess costs for time spent by an expert testifying, but not time spent preparing to testify.\nOn remand, the trial court awarded plaintiff $390.00 for the actual time Mr. Boger spent testifying, in accordance with N.C. Gen. Stat. \u00a7 7A-305(d)(11). However,-the trial court then awarded an additional $2,990.00 \u201cin the discretion of the court\u201d under N.C. Gen. Stat. \u00a7 7A-314. That statute provides, in relevant part:\nAn expert witness . . . shall receive such compensation and allowances as the court, or the Judicial Standards Commission, in its discretion, may authorize.\nN.C. Gen. Stat. \u00a7 7A-314(d) (2011). The trial court determined that, \u201c[d]ue to the complexity of the defendant\u2019s financial statements ... it is reasonable that the plaintiff be reimbursed\u201d both for the amount of time Mr. Boger spent testifying and for the time he spent in attendance in court.\nThe trial court was bound by our specific instructions to award costs to plaintiff under N.C. Gen. Stat. \u00a7 7A-305(d)(11). The trial court\u2019s award is \u201cinconsistent and at variance with, contrary to, and modified, corrected, altered or reversed\u201d our mandate, and is therefore void. We affirm the award of $390.00 for time Mr. Boger spent actually testifying, but vacate the award of $2,990.00 for time spent waiting in court.\nB. Attorney\u2019s Fees on Appeal\nIn his second argument, defendant contends that the trial court erred in awarding attorney\u2019s fees to plaintiff for the previous appeal where plaintiff did not seek them from the appellate court and they were not mentioned in our remand instruction. We disagree.\nWe have previously held that \u201can award of attorney\u2019s fees for services performed on appeal should ordinarily be granted, provided the general statutory requirements for such an award are duly met, especially where the appeal is taken by the supporting spouse.\u201d Fungaroli v. Fungaroli, 53 N.C. App. 270, 273, 280 S.E.2d 787, 790 (1981).\nN.C. Gen. Stat. \u00a7 50-13.6, dealing with child support payments, provides that:\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.\nN.C. Gen. Stat. \u00a7 50-13.6. In the instant case, the trial court found that plaintiff\u2019s motion for modification of custody and support was filed in good faith, that defendant was paying \u201can inadequate amount of child supports ]\u201d that defendant had refused to mediate the issue, and that plaintiff had insufficient means to defray the expense of the suit. Defendant does not challenge these findings on appeal, and they are therefore binding upon this court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Because the trial court made the necessary findings required by statute, it was within its discretion to order payment of reasonable attorney\u2019s fees.\nWe have previously held that:\nBecause G.S. 50-13.6 allows for an award of reasonable attorney\u2019s fees, cases construing the statute have in effect annexed an additional requirement concerning reasonableness onto the express statutory ones. Namely, the record must contain additional findings of fact upon which a determination of the requisite reasonableness can be based, such as findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorney\u2019s hourly rate, and its reasonableness in comparison with that of other lawyers.\nCobb v. Cobb, 79 N.C. App. 592, 595, 339 S.E.2d 825, 828 (1986) (citations omitted). In the instant case, the trial court made the required findings with regard to the attorneys involved and the work that they performed, and noted that defendant had stipulated that their rates were reasonable. The trial court then found that the fees sought were reasonable. Again, defendant does not challenge this finding, and it is binding upon this Court.\nThe question presented, however, is whether the trial court\u2019s authority to award attorney\u2019s fees extends to awarding attorney\u2019s fees for the appeal of a matter involving child custody and support. Defendant first contends that the trial court was without power to award anything beyond that which was discussed in our mandate. Defendant contends that because the mandate was silent as to appellate attorney\u2019s fees, the trial court lacked the authority to award them.\nWhen the matter was previously before this Court, the issue of appellate attorney\u2019s fees was not raised. Our mandate did not address that issue. Because we did not address appellate attorney\u2019s fees, the trial court\u2019s award of appellate attorney\u2019s fees was not \u201cinconsistent and at variance with, contrary to, and modified, corrected, altered or reversed\u201d our mandate, and the trial court did not violate our mandate by awarding them.\nDefendant further contends that, in the absence of an explicit mandate from this Court, the trial court was without authority to award appellate attorney\u2019s fees. Defendant cites to our decision in Hill v. Hill, in which we held that \u201cattorney\u2019s fees and costs incurred in defending an appeal may only be awarded under N.C. R. App. P. 34 by an appellate court.\u201d Hill v. Hill, 173 N.C. App. 309, 318, 622 S.E.2d 503, 509 (2005) writ denied, review denied, appeal dismissed, 360 N.C. 363, 629 S.E.2d 851 (2006) and writ denied, 362 N.C. 235, 657 S.E.2d 892 (2008). However, Hill dealt with attorney\u2019s fees awarded pursuant to Rule 11 of the North Carolina Rules of Civil Procedure. In Hill, we held that, while the trial court may award attorney\u2019s fees at trial as a sanction under Rule 11, only the appellate courts may award attorney\u2019s fees on appeal as a sanction under Rule 34 of the Rules of Appellate Procedure. In the instant case, attorney\u2019s fees are not being awarded as a sanction, but as a discretionary award pursuant to \u00a7 50-13.6 of the General Statutes. The reasoning in Hill is not applicable.\nPlaintiff cites to our decision in Fungaroli, as well as our Supreme Court\u2019s decision in Whedon v. Whedon, 313 N.C. 200, 328 S.E.2d 437 (1985), for the proposition that the trial court may grant appellate attorney\u2019s fees in an alimony case pursuant to N.C. Gen. Stat. \u00a7 50-16.4. Both of these cases dealt with alimony, not child support. However, we find the reasoning in these cases to be compelling.\n-Both cases dealt with N.C. Gen. Stat. \u00a7 50-16.4, which provides that:\nAt any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees, to be paid and secured by the supporting spouse in the same manner as alimony.\nN.C. Gen. Stat. \u00a7 50-16.4. We held in Fungaroli that both this statute and \u00a7 50-13.6 serve the North Carolina policy that \u201cthere is nothing in our statutory or case law that would suggest that a dependent spouse in North Carolina is entitled to meet the supporting spouse on equal footing, in terms of adequate and suitable legal representation, at the trial level only.\u201d Fungaroli, 53 N.C. App. at 273, 280 S.E.2d at 790.\nIn Fungaroli, plaintiff was ordered by the District Court to pay alimony. After multiple appeals, defendant sought appellate attorney\u2019s fees from the trial court. Plaintiff appealed the award of fees, and we held that \u201can award of counsel fees is appropriate whenever it is shown that the spouse is, in fact, dependent, is entitled to the relief demanded, and is without sufficient means whereon to subsist during the prosecution and defray the necessary expenses thereof.\u201d Id.\nIn Whedon, plaintiff appealed the trial court\u2019s initial order granting alimony and counsel fees. We remanded to modify alimony. Defendant later moved to hold plaintiff in contempt for failure to pay alimony, for modification of the alimony award in view of this Court\u2019s opinion on appeal, for appellate attorney\u2019s fees, and for costs incurred in preparing the motion. Plaintiff moved to dismiss these claims. The trial court dismissed defendant\u2019s claims for contempt and costs incurred, granted defendant\u2019s motion to amend the previous alimony award, and denied defendant\u2019s motion for appellate attorney\u2019s fees. Plaintiff appealed to this Court, and defendant made cross-assignments of error. We held that the trial court erred in dismissing defendant\u2019s request for appellate attorney\u2019s fees without prejudice. Whedon, 313 N.C. at 200-02, 328 S.E.2d at 438.\nOur Supreme Court granted certiorari. The Court held that the trial court\u2019s dismissal without prejudice was not a ruling on the merits. Id. at 209, 328 S.E.2d at 442. The Court did not make an explicit holding with regard to the trial court\u2019s ability or inability to award appellate attorney\u2019s fees. However, the Court stated:\nIn making its determination of the proper amount of counsel fees which are to be awarded a dependent spouse as litigant or appellant the trial court is under an obligation to conduct a broad inquiry considering as relevant factors the nature and worth of the services rendered, the magnitude of the task imposed upon counsel, and reasonable consideration for the parties\u2019 respective conditions and financial circumstances.\nId. at 208, 328 S.E.2d at 442 (emphasis added); see also Adams v. Adams, 167 N.C. App. 806, 606 S.E.2d 458 (2005) (unpublished) (holding that where a plaintiff sought appellate attorney\u2019s fees from the Court of Appeals, remand was appropriate to conduct an inquiry as outlined in Whedon). This language makes clear that, while the issue of the trial court\u2019s authority to award counsel fees was not before the Supreme Court, it considered such a determination to be within the trial court\u2019s authority. This language also makes clear that it is the place of the trial court, and not of the appellate courts, to make the detailed factual findings necessary to award attorney\u2019s fees.\nBased upon the aforementioned precedent, particularly the rationale of Fungaroli, we hold that the award of appellate attorney\u2019s fees in matters of child custody and support, as well as alimony, is within the discretion of the trial court. This holding applies to any appeal of a child custody or support order, whether the order is interlocutory or final.\nThis argument is without merit.\nIV. Conclusion\nThe trial court\u2019s award of $390.00 for time Mr. Boger spent testifying is affirmed. The trial court\u2019s additional award of $2,990.00 for time Mr. Boger spent preparing in court is vacated. The trial court\u2019s award of attorney\u2019s fees for the first appeal in this matter is affirmed.\nAFFIRMED IN PART, VACATED IN PART.\nJudges GEER and HUNTER, Robert N., JR. concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Wyatt Early Harris Wheeler, by A. Doyle Early, Jr. and Lee C. Hawley, for plaintiff-appellee.", "Wyriek Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." ], "corrections": "", "head_matter": "GINGER A. McKINNEY (NOW GINGER L. SUTPHIN), Plaintiff v. JOE A. McKINNEY, Defendant\nNo. COA12-1152\nFiled 16 July 2013\n1. Attorney Fees \u2014 child custody \u2014 instructions on remand\u2014 expert witness fees\nThe trial court erred in a child custody case by awarding expert witness fees for time spent by the expert in attending court but not actually testifying. The Court of Appeals\u2019 instructions to the trial court on remand were to assess costs for time actually spent testifying under N.C. Gen. Stat. \u00a7 7A-305(d)(ll). The trial court was bound by these specific instructions.\n2. Attorney Fees \u2014 child custody \u2014 child support \u2014 appeal\u2014 within court\u2019s discretion\nThe trial court did not err in a child custody case by awarding attorney fees to plaintiff for defendant\u2019s previous appeal in the matter where plaintiff did not seek them from the appellate court and they were not mentioned in the Court of Appeals\u2019 remand instruction. The trial court\u2019s award of appellate attorney\u2019s fees was not contrary to the Court of Appeals\u2019 remand instruction and the award of appellate attorney\u2019s fees in matters of child custody and support, as well as alimony, is within the discretion of the trial court.\nAppeal by defendant from order entered 20 January 2012 by Judge Susan E. Bray in Guilford County Superior Court. Heard in the Court of Appeals 13 February 2013.\nWyatt Early Harris Wheeler, by A. Doyle Early, Jr. and Lee C. Hawley, for plaintiff-appellee.\nWyriek Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellant." }, "file_name": "0300-01", "first_page_order": 310, "last_page_order": 317 }