{
  "id": 6787007,
  "name": "MARGARET HELENA HENNESSEY (formerly Duckworth), Plaintiff v. THOMAS MEREDITH DUCKWORTH, Defendant",
  "name_abbreviation": "Hennessey v. Duckworth",
  "decision_date": "2013-12-03",
  "docket_number": "No. COA13-629",
  "first_page": "17",
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    "judges": [
      "Judges McGEE and BRYANT concur."
    ],
    "parties": [
      "MARGARET HELENA HENNESSEY (formerly Duckworth), Plaintiff v. THOMAS MEREDITH DUCKWORTH, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nThomas Duckworth (\u201cdefendant\u201d) appeals from an order entered 31 December 2012 awarding his former wife, Margaret Hennessey (\u201cplaintiff\u2019), attorney\u2019s fees. For the following reasons, we affirm.\nI. Background\nPlaintiff and defendant were married in January 2006, separated in June 2009, and later divorced. The parties have one minor child, bom December 2005.\nOn or about 21 August 2009, plaintiff and defendant entered into a separation agreement (\u201cthe Agreement\u201d) that addressed property distribution, custody of the parties\u2019 minor child, alimony, and the relief available in case of breach, including attorney\u2019s fees. The Agreement was not incorporated into the divorce decree or other court order.\nOn 16 November 2009, plaintiff filed a complaint for a custody order \u201cpreserving and protecting the status quo of the minor child,\u201d child support based upon the child support guidelines, a temporary restraining order prohibiting defendant from harassing her, specific performance of the alimony provisions in the Agreement, and attorney\u2019s fees. Defendant answered and brought counterclaims based upon Chapter 50 seeking emergency custody as well as permanent primary custody, guidelines child support, and attorney\u2019s fees based upon these claims; defendant did not bring any claim for enforcement of the Agreement against plaintiff. After years of litigation, including a number of temporary custody orders, discovery, and cross-motions on various topics, the parties executed a consent order, entered 30 November 2012, to resolve all outstanding issues between them other than attorney\u2019s fees.\nUnder the 2012 consent order, the parties shared legal and physical custody of their child under a detailed custodial schedule, a parenting coordinator was appointed, child support was adjusted, and defendant was required to pay plaintiff $8,072. All outstanding claims for breach of contract, contempt, and other issues not explicitly resolved by the order were dismissed. The property distribution provisions of the original separation agreement were not affected by the consent order.\nOn 6 December 2012, the trial court held a hearing regarding both parties\u2019 requests for an award of attorney\u2019s fees and allowed plaintiff\u2019s request for attorney\u2019s fees by order entered 31 December 2012. It also denied defendant\u2019s claim for attorney\u2019s fees. The trial court found that plaintiff was unemployed, that she stopped working while pregnant with the parties\u2019 child and has not worked since, that she does not have any income, and that her current bank statement reflected a balance of $717.07. The trial court found that defendant, by contrast, is a Lieutenant Colonel in the United States Army and \u201cearns a gross income of approximately $10,883.06 per month.\u201d Finally, the court found that plaintiff\u2019s actions for \u201ccustody and support were filed in good faith[] [and] that [she] has insufficient means to defray the costs of her action.\u201d As an alternate ground to support its order, the trial court concluded that Rule 11 sanctions were appropriate because defendant had fired two attorneys in bad faith, unnecessarily delaying the proceedings. The court awarded plaintiff $11,282.50 in attorney\u2019s fees. Defendant filed timely notice of appeal to this Court.\nII. Basis for Attorney\u2019s Fee Award\nOn appeal, defendant argues that the trial court erred in awarding attorney\u2019s fees to plaintiff because the Agreement should have precluded such an award and, in any event, the trial court did not make adequate findings supported by the evidence to justify a statutory award of attorney\u2019s fees. We disagree.\nDefendant primarily argues on appeal that the trial court erred in awarding attorney\u2019s fees under N.C. Gen. Stat. \u00a7 50-13.6 rather than under the Agreement and that the court could not award attorney\u2019s fees to plaintiff under the Agreement because the Agreement provides that \u201cthe losing party\u201d is responsible for \u201call legal fees and costs.\u201d Defendant contends that plaintiff is the \u201closing party\u201d here.\nTo decide this issue, we must first identify the basis of the attorney\u2019s fee award. \u201cThe recovery of attorney\u2019s fees is a right created by statute. [Generally,] [a] party can recover attorney\u2019s fees only if such a recovery is expressly authorized by statute.\u201d Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002) (citations and quotation marks omitted). Attorney\u2019s fees may be awarded on a claim for child custody or support pursuant to N.C. Gen. Stat. \u00a7 50-13.6. However, attorney\u2019s fees may also be awarded under a separation agreement entered into pursuant to N.C. Gen. Stat. \u00a7 52-10.1 that provides for attorney\u2019s fees, unless the provision is otherwise contrary to public policy. Bromhal v. Stott, 341 N.C. 702, 705, 462 S.E.2d 219, 221 (1995); Edwards v. Edwards, 102 N.C. App. 706, 712-13, 403 S.E.2d 530, 533-34, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 518 (1991).\nHere, plaintiff requested attorney\u2019s fees under both the Agreement and N.C. Gen. Stat. \u00a7 50-13.6; defendant requested attorney\u2019s fees in his counterclaim under N.C. Gen. Stat. \u00a7 50-13.6. Thus, based upon the parties\u2019 pleadings, and depending upon the issues addressed, the trial court might have the option of awarding attorney\u2019s fees under the Agreement, under N.C. Gen. Stat. \u00a7 50-13.6, or both.\nA. Separation Agreement\nAlthough the custody and support provisions of the Agreement were superseded by the consent order regarding custody and support, the Agreement was never incorporated into a court order. Therefore, it remained \u201ca contract, to be enforced and modified under traditional contract principles.\u201d Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983).\nIt is the general law of contracts that the purport of a written instrument is to be gathered from its four comers, and the four comers are to be ascertained from the language used in the instrument. When the language of the contract is clear and unambiguous, construction of the agreement is a matter of law for the court and the court cannot look beyond the terms, of the contract to determine the intentions of the parties.\nLynn v. Lynn, 202 N.C. App. 423, 431, 689 S.E.2d 198, 205 (citations, quotation marks, and ellipses omitted), disc. rev. denied, 364 N.C. 613, 705 S.E.2d 736 (2010).\nThe full attorney\u2019s fees provision in the separation agreement states:\n28. COUNSEL FEES UPON BREACH In the event it becomes necessary to institute legal action to enforce compliance with the terms of this Agreement or by reason of the breach by either party of this Agreement, then the parties agree that at the conclusion of such legal proceeding, the losing party shall be solely responsible for all legal fees and costs incurred by the other party, such fees and costs to be taxed the [sic] Court. The amount so awarded shall be in the sole discretion of the presiding judge and the award shall be made without regard to the financial ability of either party to pay, but rather shall be based upon fees and expenses determined by the Court to be reasonable and incurred by the prevailing party. It is the intent of this paragraph to induce both Husband and Wife to comply fully with the terms of this Agreement to the end that no litigation as between these parties is necessary in the areas dealt with by this Agreement. In the event of litigation, it is the further intent to specifically provide that the losing party pays all reasonable fees and costs that either side may incur.\nGiven that this case involved several claims and was resolved by consent order, it is difficult to say who was the \u201closing party\u201d and who was the \u201cprevailing party.\u201d Plaintiff sought four types of substantive relief in her complaint: (1) a custody order preserving the status quo, (2) guideline child support, (3) a TRO, and (4) specific performance of the separation agreement\u2019s alimony provisions. In his counterclaim, Defendant sought primary physical custody of the parties\u2019 minor child and attorney\u2019s fees based upon N.C. Gen. Stat. \u00a7 50-13.6. In addition, both parties filed numerous motions which we have not listed here in detail, related to their respective claims.\nNeither party was a clear winner or loser, although plaintiff prevailed on more of the issues she raised than defendant. Plaintiff did receive a \u201cmutual\u201d TRO by consent of the parties, based upon N.C. Gen. Stat. \u00a7 1A-1, Rule 65, restraining each party from harassing the other, but there is no attorney\u2019s fee claim under Rule 65, nor does this TRO appear to be based upon any specific provision of the Agreement. Plaintiff was not able to preserve the \u201cstatus quo\u201d for custody, as defendant was ultimately awarded greater responsibility under the 2012 consent order than under the 2009 agreement. Plaintiff was not awarded specific performance of the alimony provisions in the 2009 agreement \u2014 although defendant did agree to pay her $8,072, apparently to settle that claim.\nDefendant also did not prevail on his sole request in his counterclaim for primary physical custody. In addition, defendant\u2019s counterclaim for primary custody was not an action which was necessary \u201cto enforce compliance with the terms of this Agreement or by reason of the breach by either party of this Agreement,\u201d as he was not seeking to continue the custodial arrangement under the Agreement and he did not claim that plaintiff had breached the custodial terms of the Agreement. Instead, he was actually seeking a modification of the custody arrangement giving him custodial rights superior to those he had under the Agreement.\nFurther, the issues of breach and specific performance were dismissed and not addressed in the 2012 consent order. The way the action was resolved, it was not treated as one for breach of the Agreement or for specific performance. Instead, the action essentially became one for Chapter 50 child custody and child support \u2014 completely separate from whatever the 2009 agreement provided. Although the Agreement expresses the general intent \u201cthat the losing party pays all reasonable fees and costs that either side may incur\u201d in litigation, it also does not preclude an award of statutory attorney fees in this situation, in which both parties requested statutory attorney fees under N.C. Gen. Stat. \u00a7 50-16.3 and there is no breach of agreement, specific performance, or a clear winner or loser.\nWe hold that the attorney\u2019s fees provision in the Agreement, by its plain terms, does not apply here, since there was no determination of a \u201cbreach\u201d of the agreement or order for specific performance. Therefore, we must next consider whether the award of attorney\u2019s fees was justified under N.C. Gen. Stat. \u00a7 50-13.6 (2011).\nB. N.C. Gen. Stat. \u00a7 50-13.6\nDefendant contends that the trial court erred in awarding attorney\u2019s fees under N.C. Gen. Stat. \u00a7 50-13.6 because its findings were inadequate, they did not reflect the evidence before the trial court, and because the trial court prevented him from presenting evidence about his ability to pay. Again, we disagree.\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....\nTo award attorney\u2019s fees in an action for custody and support,\n[t]he trial court must make specific findings of fact relevant to: (1) The movant\u2019s ability to defray the cost of the suit, specifically that the movant is unable to employ counsel so that he may proceed to meet the other litigant in the suit; (2) whether the movant has initiated the action in good faith; (3) the attorney\u2019s skill; (4) the attorney\u2019s hourly rate charged; and (5) the nature and extent of the legal services performed.\nCameron v. Cameron, 94 N.C. App. 168, 172, 380 S.E.2d 121, 124 (1989) (citations omitted). Defendant only challenges the trial court\u2019s conclusion that plaintiff has insufficient means to defray the expenses of the suit.\n[T]he trial judge has the discretion to award attorney\u2019s fees once the statutory requirements of G.S. Sec. 50-13.6 (1984) have been met. While whether the statutory requirements have been met is a question of law, reviewable on appeal, the amount of attorney\u2019s fees is within the sound discretion of the trial judge and is only reviewable for an abuse of discretion.\nAtwell v. Atwell, 74 N.C. App. 231, 237-38, 328 S.E.2d 47, 51 (1985) (citation omitted).\nHere, the trial court found that plaintiff is currently unemployed, that she stopped working while she was pregnant with the parties\u2019 child, and that she had not been employed since. The trial court also noted that plaintiff\u2019s bank statement reflected a balance of $717.07. The trial court found that plaintiff had incurred a total of $28,260 in attorney\u2019s fees for approximately 141 hours of work and that those fees \u2014 as well as the nature and scope of the representation \u2014 were reasonable. Additionally, the trial court made findings about defendant\u2019s monthly income of approximately $10,883. Further, there was evidence that plaintiff had no assets other than a savings account with a $197 balance, a 401K worth approximately $900, and a 2006 Honda Pilot. The expense of plaintiff\u2019s attorney\u2019s fees alone far exceeded the value of all of her assets combined.\nThe trial court concluded that plaintiff\u2019s actions were filed in good faith and that she had insufficient means to defray the costs of her action. These conclusions were supported by adequate findings relevant to \u201cwhether plaintiff, as litigant, is able to meet defendant, as litigant, on substantially even terms with respect to representation by counsel.\u201d Quick v. Quick, 305 N.C. 446, 461, 290 S.E.2d 653, 663 (1982). Each one of these findings was supported by averments in plaintiff\u2019s affidavits and the record evidence.\nDefendant further argues that the trial court did not review the affidavits submitted by the parties. That fact is certainly not evident from the transcript and all of the parties\u2019 relevant affidavits and evidence on their respective incomes and employment statuses are in the record. In fact, the order provides specifically \u201cthat by and through counsel, the parties consented to proceed with the hearing for attorneys\u2019 fees via affidavit and have waived the opportunity to present sworn testimony.\u201d The transcript of the hearing fully supports this statement, as defendant\u2019s counsel repeatedly referred to the affidavits. Additionally, despite defendant\u2019s argument on appeal that he was unable to introduce evidence of his expenses, there is no indication whatsoever that defendant attempted to introduce such evidence or that the trial court refused to receive anything that he did offer to present. We see no basis for determining that the affidavits were not properly before the trial court or that the trial court improperly excluded other evidence. We will not presume error where none is shown in the record. See King v. King, 146 N.C. App. 442, 445-46, 552 S.E.2d 262, 265 (2001).\nFinally, defendant argues that the trial court\u2019s findings are invalid because the findings in the written order \u201cdo not accurately reflect\u201d what the trial court said from the bench at the hearing. Defendant cites no law in support of the contention that a trial judge is restricted to findings he rendered at a hearing when entering a written order. This argument is meritless. See N.C. Gen. Stat. \u00a7 1A-1, Rule 58 (2011) (\u201c[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u201d); Bumgardner v. Bumgardner, 113 N.C. App. 314, 321, 438 S.E.2d 471, 475 (1994) (holding, under the former version of Rule 58, that the trial court\u2019s oral rendition of judgment did not constitute entry of judgment because the court had simply announced his intended judgment without making the necessary findings and conclusions); In re Hawkins, 120 N.C. App. 585, 589, 463 S.E.2d 268, 271 (1995) (noting that \u201cthe trial court\u2019s announcement in open court was not yet final as to be suitable for appellate review[] [because] [t]he findings of fact and conclusions of law were not set forth in final form.\u201d); Mastin v. Griffith, 133 N.C. App. 345, 346, 515 S.E.2d 494, 494 (1999) (\u201cAnnouncement of judgment in open court merely constitutes \u2018rendering\u2019 of judgment, not entry of judgment.\u201d (citation and quotation marks omitted)).\nWe hold that the trial court\u2019s findings were supported by plaintiff\u2019s affidavits and that the findings were sufficient to justify awarding plaintiff attorney\u2019s fees. Defendant does not challenge the amount of attorney\u2019s fees as unreasonable or unjustified, nor does he contest that this action is one for custody and support.\nBecause we uphold the trial court\u2019s award of attorney\u2019s fees we need not address the court\u2019s alternate ground of Rule 11 sanctions. Yet, we do feel compelled to note that Rule 11 would not seem to apply to defendant\u2019s decisions to change counsel during the course of litigation. Although the trial court made other findings which would be proper considerations under Rule 11, one of the trial court\u2019s primary findings in support of Rule 11 sanctions was that\nDefendant\u2019s present counsel, Kimberly M. Ferrier, is his third attorney; and that the Defendant caused unnecessary delays and expenses in the litigation due, in part, to his changing attorneys; and that Defendant\u2019s actions were in bad faith.\nA litigant may wish to change counsel for many reasons, some perfectly valid and some foolish or even in \u201cbad faith,\u201d and although the record before us does offer hints of the personal animosity between various counsel for the parties, it does not give any indication of the reasons for defendant\u2019s changes in counsel, only that they occurred.\nm. Conclusion\nWe hold that the trial court properly awarded attorney\u2019s fees to plaintiff under N.C. Gen. Stat. \u00a7 50-13.6. Therefore, we affirm the trial court\u2019s order.\nAFFIRMED.\nJudges McGEE and BRYANT concur.\n. One of the provisions of the Agreement was that \u201cWife agrees to remain a stay-at-home parent until such time as the minor child starts school in August, 2011.\u201d\n. Neither plaintiff nor defendant cited a particular statute in their pleadings, but the wording of the requests is clearly based upon N.C. Gen. Stat. \u00a7 50-13.6. We also note that attorney\u2019s fees may be awarded based upon N.C. Gen. Stat. \u00a7 1A-1, Rule 11, and that plaintiff also filed a motion based upon this rule. This basis was an alternative in the trial court\u2019s order, but we will discuss that separately below.\n. There was a general \u201cno harassment\u201d provision in the Agreement but it was not mentioned in Plaintiffs complaint, and since each party was ordered not to harass the other, there is no \u201cwinner\" or \u201closer\u201d here, even if it was based upon the Agreement.\n. It is well established that the custody and support provisions of a separation agreement are always subject to later modification by the court. See Kiger v. Kiger, 258 N.C. 126, 129, 128 S.E.2d 235, 237 (1962) (noting that separation agreements \u201care not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children.\u201d (citation omitted)).\n. We further note that, in his appellate brief, defendant\u2019s counsel repeatedly used the phrase \u201cupon information and belief\u2019 before making various factual assertions and made other statements of fact that were apparently from personal recollection or at the very least are not based upon the record. Such arguments are wholly inappropriate. See Sood v. Sood, _ N.C. App. _, _ n.4, 732 S.E.2d 603, 608 n.4 (admonishing counsel for including \u201chis personal recollection of events at trial or after as part of his argument in an appellate brief.\u201d), cert. denied, disc. rev. denied, and app. dismissed, 366 N.C. 417, 735 S.E.2d 336 (2012); N.C.R. App. P 9(a). Appellate counsel should make arguments based on the facts in the record, not \u201cupon information and belief.\u201d",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Lewis, Deese, Nance, Briggs & Hardin, LLP, by Victoria Gillispie Hardin, for plaintiff-appellee.",
      "Ferrier Law, P.L.L.C., by Kimberly M. Ferrier, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "MARGARET HELENA HENNESSEY (formerly Duckworth), Plaintiff v. THOMAS MEREDITH DUCKWORTH, Defendant\nNo. COA13-629\nFiled 3 December 2013\nAttorney Fees \u2014 domestic action \u2014 separation agreement\u2014 sufficient findings of fact\nThe trial court did not err in a domestic case by awarding plaintiff attorneys fees under N.C.G.S. \u00a7 50-13.6. The attorney fees provision in a separation agreement between the parties did not apply since there was no determination of a breach of the agreement or order for specific performance. Furthermore, trial court\u2019s findings were supported by plaintiff\u2019s affidavits and the findings were sufficient to justify awarding plaintiff attorney fees.\nAppeal by defendant from Order entered 31 December 2012 by Judge George J. Franks in District Court, Cumberland County. Heard in the Court of Appeals 22 October 2013.\nLewis, Deese, Nance, Briggs & Hardin, LLP, by Victoria Gillispie Hardin, for plaintiff-appellee.\nFerrier Law, P.L.L.C., by Kimberly M. Ferrier, for defendant-appellant."
  },
  "file_name": "0017-01",
  "first_page_order": 27,
  "last_page_order": 35
}
