{ "id": 1659890, "name": "DAVID C. VAN EVERY v. KELLY W. McGUIRE (formerly KELLY DIANE WEBB VAN EVERY)", "name_abbreviation": "Van Every v. McGuire", "decision_date": "1998-04-03", "docket_number": "No. 159PA97", "first_page": "58", "last_page": "62", "citations": [ { "type": "official", "cite": "348 N.C. 58" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "481 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "125 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869757 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/125/0578-01" ] }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "opinion_index": -1, "case_paths": [ "/nc/343/0050-01" ] }, { "cite": "455 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "448", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918367 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0356-01" ] }, { "cite": "468 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1996, "pin_cites": [ { "page": "58" }, { "page": "38" }, { "page": "57" }, { "page": "37", "parenthetical": "emphasis added" }, { "page": "34" }, { "page": "54" }, { "page": "36" }, { "page": "55" }, { "page": "36" } ], "opinion_index": 0 }, { "cite": "481 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "378" }, { "page": "379" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869757 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "581" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0578-01" ] }, { "cite": "343 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798953 ], "weight": 2, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0050-01" ] } ], "analysis": { "cardinality": 476, "char_count": 11384, "ocr_confidence": 0.754, "pagerank": { "raw": 1.586708895931672e-07, "percentile": 0.6813534302579031 }, "sha256": "569f255af3b1914c82f52aef84a46cedb41e355602cba7de665766fe85bc9189", "simhash": "1:a7bff6636c2f847e", "word_count": 1896 }, "last_updated": "2023-07-14T21:11:06.764212+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAVID C. VAN EVERY v. KELLY W. McGUIRE (formerly KELLY DIANE WEBB VAN EVERY)" ], "opinions": [ { "text": "FRYE, Justice.\nThe Court of Appeals, relying on this Court\u2019s decision in Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996), reversed an order requiring plaintiff to pay defendant\u2019s attorney\u2019s fees and remanded that issue to the trial court for reconsideration based on the evidence in the record and without a consideration of the relative estates of the parties. In this case, we examine the parameters of our recent decision in Taylor in order to assure that our decision in that case will be applied with \u201cfairness to litigants and fulfillment of perceived legislative intent.\u201d Id. at 58, 468 S.E.2d at 38.\nIn Taylor, the question before this Court was whether a trial court, in ruling on a motion for attorney\u2019s fees in a child custody and support action, may determine that a party has sufficient means to defray the costs of the action without considering the estate of the other party. We answered in the affirmative, stating that \u201cwe do not believe that the determination of whether a party has sufficient means to defray the necessary expenses of the action requires a comparison of the relative estates of the parties.\u201d Id. at 57, 468 S.E.2d at 37 (emphasis added).\nWe come now to the facts and circumstances of the instant case. Plaintiff David Van Every and defendant Kelly McGuire were married in 1988. Their only child was bom in 1989. The two were separated in 1991 and divorced in 1992. This action was instituted on or about 11 July 1991 when plaintiff brought suit against defendant for custody of their child, David Christopher Van Every. The parties have been in dispute over child custody and support since that time. On 27 July 1994, the trial court, finding it \u201cin the child\u2019s best interests,\u201d appointed a guardian ad litem to represent the child in this action. On 19 December 1994, the trial court appointed two psychologists to \u201cassist the Court in determining what custodial placement would be in the best interest of\u2019 the child. On 27 September 1995, the trial court entered an order granting the \u201ccare, custody and control\u201d of the child to defendant. The trial court granted plaintiff extensive visitation privileges.\nOn 20 December 1995, following a hearing, the trial court ordered plaintiff to pay directly to defendant\u2019s attorney the sum of $55,688.35 in payment of the attorney\u2019s \u201cout of pocket expenses\u201d and the \u201cservices\u201d performed by the attorney on behalf of defendant. With reference to the award of attorney\u2019s fees to defendant, the trial court, inter alia, found the following: (1) plaintiff\u2019s annual income in 1991, 1992, and 1993 was well over $1,000,000, and his net estate is worth $15,000,000; (2) until April 1995, defendant had no income, but from April until December 1995, defendant\u2019s income per month was $10,000, which was used to \u201cpay for food and other household expenses\u201d; (3) defendant\u2019s estate consisted of three automobiles worth a total of $60,000, a savings account containing $3,000, and a gaming machine, the value of which is unknown, from which she received her monthly income; and (4) defendant had no debts. The trial court then concluded as a matter of law that defendant was an interested party acting in good faith who had insufficient means to defray the expenses of the litigation.\nPlaintiff appealed to the Court of Appeals, contending, inter alia, that the trial court erred in awarding attorney\u2019s fees to defendant under N.C.G.S. \u00a7 50-13.6 because defendant has substantial means with which to defray the costs of the litigation, has few if any monthly expenses, and would not have to deplete her estate substantially in order to pay her own fees. Plaintiff also contended that the trial court erred in determining defendant\u2019s entitlement to attorney\u2019s fees under a comparison of estates approach rather than based on defendant\u2019s ability to defray the expenses of the litigation.\nIn reversing the trial court on the question of defendant\u2019s entitlement to an award of attorney\u2019s fees, the Court of Appeals, citing Taylor, said: \u201cAs a general proposition, the trial court is not permitted to compare the relative estates of the parties in assessing a party\u2019s ability to employ \u2018adequate\u2019 counsel.\u201d Van Every v. McGuire, 125 N.C. App. 578, 581, 481 S.E.2d 377, 378 (1997). This extends our holding in Taylor further than intended. The fact that N.C.G.S. \u00a7 50-13.6 does not require the trial court to compare the relative estates of the parties does not automatically mean that it does not allow or permit the trial court to do so in a proper case.\nIn the instant case, the trial judge\u2019s order was entered prior to this Court\u2019s decision in Taylor. The transcript shows that the Court of Appeals\u2019 decision in Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442 (1995), was presented to the trial court as \u201cthe most recent case that sets forth the standard.\u201d In Taylor, the Court of Appeals held that the trial court erred by not considering plaintiff\u2019s estate in determining that defendant had sufficient means to defray the expenses of the action. The Court of Appeals explained:\n[T]he record reveals that the court made its determination on this issue without considering the relative estates of the parties. The trial court only made findings on the value of defendant\u2019s estate. Whether a party has insufficient means to defray the expenses of the action requires a consideration of the estates of the parties.\nId. at 365, 455 S.E.2d at 448 (emphasis added).\nIn reversing the Court of Appeals and reinstating the trial court\u2019s order, this Court stated the issue and answer as follows:\nThe sole question on this appeal is whether a trial court, in ruling on a motion for attorney\u2019s fees in a child custody and support action, may determine that a party has sufficient means to defray the cost of the action without considering the estate of the other party. We answer in the affirmative and reverse the Court of Appeals\u2019 decision to the contrary.\n343 N.C. at 51, 468 S.E.2d at 34. In discussing the issue, we said:\nThe trial judge made findings pursuant to N.C.G.S. \u00a7 50-13.6 for a child custody and support suit. The trial court found that defendant was an interested party and that she was acting in good faith, and plaintiff does not challenge these findings. However, after considering the testimony on defendant\u2019s financial condition, the trial court found that defendant had sufficient means to defray the expense of the action. Defendant contends, essentially, that the trial court cannot make this determination without considering the relative estates of the parties. Plaintiff, on the other hand, contends that such a determination can be made without a comparison of the estates of the parties. We agree with plaintiff.\nId. at 54, 468 S.E.2d at 36. We then examined the record and concluded:\nThe evidence supported the trial court\u2019s finding that defendant had the means to defray her litigation expenses. Defendant\u2019s estate, which is primarily liquid, was sufficient to pay these expenses; and no unreasonable depletion of her estate would be required to pay them. The trial court\u2019s findings of fact thus support the conclusion that an award of attorney\u2019s fees was not necessary to make it possible for defendant to employ adequate counsel to enable her, as litigant, to meet plaintiff in the suit.\nId. at 55, 468 S.E.2d at 36.\nIn the instant case, the Court of Appeals examined the record and concluded that the evidence before the trial court \u201cfails to show that [defendant] did not have ample income to defray the expenses of this action and [that defendant] would have been required to [unreasonably] deplete her estate to pay these expenses.\u201d Van Every, 125 N.C. App. at 581, 481 S.E.2d at 379. Based on this conclusion, with which we agree, the Court of Appeals reversed the order requiring plaintiff to pay defendant\u2019s attorney\u2019s fees and remanded for reconsideration \u201con the basis of the evidence in the record and without a consideration of the relative estates of the parties.\u201d Id. at 582, 481 S.E.2d at 379.\nWhile we agree with the Court of Appeals that the case must be remanded for reconsideration of defendant\u2019s entitlement to attorney\u2019s fees, we believe that the order of remand is too restrictive in two respects: (1) since the trial court did not have the benefit of this Court\u2019s Taylor decision, it should not be prohibited from ordering such additional evidence, if any, as the trial court, in its discretion, may determine is necessary to permit a proper finding by the trial court as to defendant\u2019s ability, or lack thereof, to pay her expenses from income or from her estate or from some combination thereof without unreasonable depletion of her estate; and (2) while the trial court should focus on the disposable income and estate of defendant, it should not be placed in a straitjacket by prohibiting any comparison with plaintiff\u2019s estate, for example, in determining whether any necessary depletion of defendant\u2019s estate by paying her own expenses would be reasonable or unreasonable. Accordingly, the order of remand must be modified to remove these restrictions.\nUpon remand, if the trial court finds from the evidence that defendant has sufficient means to defray the expense of the suit, then defendant\u2019s request for attorney\u2019s fees shall be denied. If the trial court finds from the evidence that defendant has insufficient means to defray the expense of the suit, then it shall exercise its discretion in determining whether it shall order payment of reasonable attorney\u2019s fees to defendant.\nFor the reasons stated herein, the decision of the Court of Appeals is modified as to the conditions of remand and, as modified, is affirmed.\nMODIFIED AND AFFIRMED.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "The Tryon Legal Group, by Jerry Alan Reese, for plaintiffappellee.", "Casstevens, Hanner, Gunter & Conrad, RA., by Nelson M. Casstevens, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "DAVID C. VAN EVERY v. KELLY W. McGUIRE (formerly KELLY DIANE WEBB VAN EVERY)\nNo. 159PA97\n(Filed 3 April 1998)\nDivorce and Separation \u00a7 552 (NCI4th)\u2014 attorney fees \u2014 child custody \u2014 estates of parties\nThe Court of Appeals correctly reversed a trial court order requiring plaintiff to pay defendant\u2019s attorney\u2019s fees in a child support action where the trial court made findings regarding the relative estates of the parties, but the trial judge\u2019s order was entered prior to Taylor v. Taylor, 343 N.C. 50. The Court of Appeals correctly concluded that the evidence before the trial court fails to show that defendant did not have ample income to defray the expenses of the action and would have been required to unreasonably deplete her estate to pay these expenses; however, the Court of Appeals\u2019 statement that the trial court is not permitted to compare the relative estates of the parties extends the holding in Taylor further than intended. The fact that N.C.G.S. \u00a7 50-13.6 does not require the trial court to compare the relative estates of the parties does not automatically mean that it does not allow or permit the trial court to do so in a proper case.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 125 N.C. App. 578, 481 S.E.2d 377 (1997), affirming in part and reversing in part the trial court\u2019s order entered by Jones (William G.), J., on 20 December 1995 in District Court, Mecklenburg County and remanding for further proceedings. Heard in the Supreme Court 18 November 1997.\nThe Tryon Legal Group, by Jerry Alan Reese, for plaintiffappellee.\nCasstevens, Hanner, Gunter & Conrad, RA., by Nelson M. Casstevens, Jr., for defendant-appellant." }, "file_name": "0058-01", "first_page_order": 106, "last_page_order": 110 }