Davignon v. Davignon

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-743

Filed: 16 February 2016

Mecklenburg County, No. 09 CVD 4123

CARLEY DAVIGNON, Plaintiff,

v.

MICHAEL A. DAVIGNON, Defendant.

Appeal by defendant from orders entered 17 April 2013 and 31 March 2014 by

Judge Ronald L. Chapman, and order entered 18 December 2014 by Judge David H.

Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 27

January 2016.

No brief for plaintiff-appellee.

Plumides, Romano, Johnson & Cacheris, by Richard B. Johnson, for defendant- appellant.

TYSON, Judge.

Michael A. Davignon (“Defendant”) appeals from orders awarding court

expenses and attorney’s fees to Plaintiff, and an order relinquishing child support

jurisdiction. We reverse and remand.

I. Factual Background

Defendant and Carley Davignon (“Plaintiff”) were married on 22 May 1999,

and separated on 16 November 2008. Two children were born of the marriage.  DAVIGNON V. DAVIGNON

Opinion of the Court

Both parties continued to live in Mecklenburg County, North Carolina after

their initial separation. Plaintiff commenced this action on 19 February 2009, in

which she sought: (1) child custody; (2) an order immediately sequestering the former

marital residence to her; (3) child support; (4) postseparation support; (5) alimony; (6)

equitable distribution; (7) interim distribution of marital and divisible property; and,

(8) attorney’s fees.

In August 2009, Plaintiff moved to Pennsylvania with the children. The trial

court entered an order awarding temporary primary physical custody of the children

to Plaintiff, with limited telephone visitation to Defendant, on 20 November 2009.

Defendant also moved to Pennsylvania in 2011. The matter was set for trial in

Mecklenburg County on 8 June 2011.

On 6 June 2011, counsel for Defendant was notified that Defendant was

incarcerated in Pennsylvania and could not attend the 8 June 2011 trial. On 7 June

2011, counsel for Defendant filed a motion to continue, which the trial court granted

the following day.

Plaintiff filed a motion for court expenses, which she allegedly incurred in

anticipation of the trial set to begin on 8 June 2011. The trial court entered a written

order on 17 April 2013, which granted Plaintiff’s motion and ordered Defendant to

pay to Plaintiff costs in the amount of $4,640.57. The trial court made the following

findings of fact to support its order granting Plaintiff’s motion for court expenses:

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Opinion of the Court

5. Plaintiff had to fly from her home in Camp Hill, Pennsylvania to Charlotte. This cost a total of $817.90. . . . Plaintiff also incurred various expenses for eating while she was in Charlotte. These food expenses, which also include some meals shared by her and her father, William McClure, Jr., total $408.40. These expenses also include gas for the car jointly rented by Plaintiff and William McClure. . . .

6. Plaintiff and her father, William McClure, Jr., obtained a hotel room at Courtyard by Marriott. The costs [sic] for this room from June 6 - 8, 2011 was $511.35. . . .

7. Plaintiff’s father . . . flew from Jackson, Wyoming to Charlotte in order to testify on behalf of his daughter. . . . William McClure, Jr. and Plaintiff split a rental car [from] Hertz. This cost a total of $229.67. . . . Mr. McClure had to purchase an airline ticket to fly in from Jackson, Wyoming. This cost a total of $1,640.30. . . .

8. Plaintiff also had the childrens’ [sic] visitation supervisor, Tom Bowman, fly in from Pennsylvania in order to testify at trial. The invoice for Mr. Bowman was for $1,337.50. . . . Because the Motion to Continue was granted, Mr. Bowman did not have to stay the two days that he was planning on for the trial. This decreased the bill by approximately $104.00 to an amount of $1,233.00. Plaintiff paid this bill in the amount of $1,233.00. . . .

9. Plaintiff incurred costs that totaled $4,640.62. These costs were incurred by Plaintiff even though Defendant filed a Motion to Continue and did not appear.

Based on the foregoing findings of fact, the trial court concluded as a matter of

law:

4. Defendant purposefully and intentionally committed actions, which caused him to get arrested on or around June 7, 2011. These criminal actions had nothing to do

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Opinion of the Court

with Plaintiff and none of them were for anything related to Plaintiff whatsoever.

5. Plaintiff had to incur the court costs stated above in order to be present for trial on June 8, 2011 and in order to have her witnesses present at trial.

6. Through the trial of this matter, Plaintiff has shown good cause as to why her Motion for Court Expenses should be granted.

Plaintiff’s request for attorney’s fees related to her child custody and child

support claims was heard on 15 January 2014. Neither party attended the hearing

and only counsel for Plaintiff and Defendant were present. Plaintiff did not offer any

testimony or exhibits, other than her attorney’s fees affidavit. On 31 March 2014,

the trial court entered a written order awarding attorney’s fees to Plaintiff in the

amount of $30,000.00. The trial court made the following findings of fact in its order:

1. Plaintiff’s attorney, Eric D. Levine, filed an Affidavit of Attorneys’ [sic] Fees on January 15, 2014, which set out his total attorneys’ [sic] fees during the entire case. The Affidavit of Attorneys’ [sic] Fees of Eric D. Levine states that he had worked 269 hours. Mr. Levine bills his clients at the normal hourly rate of $200.00 per hour, which is fair and equitable considering his experience. The bills of Mr. Levine totaled $53,800.00.

2. Plaintiff did not have sufficient funds to defray the costs and expenses of this lawsuit, including attorneys’ [sic] fees.

On 18 December 2014, the trial court entered an order relinquishing child

support jurisdiction. The trial court noted Plaintiff and the children had “relocated

to Colorado approximately over one and a half years ago. Defendant moved from

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Opinion of the Court

North Carolina to Pennsylvania over three years ago in 2011 and still resides there

now.” The trial court divested itself of jurisdiction in this matter, and ordered any

and all “further proceedings regarding child support shall be in one of the parties’

states of residence.” Defendant gave timely notice of appeal to this Court.

II. Issues

Defendant argues the trial court erred by: (1) ordering Defendant to pay

$4,640.57 to Plaintiff as court costs; and (2) ordering Defendant to pay $30,000.00 in

attorney’s fees.

Defendant also purports to appeal from the trial court’s order relinquishing

child support jurisdiction. Defendant has failed to set out any arguments in his brief

with regard to this order. It is well-settled that arguments not presented in an

appellant’s brief are deemed abandoned on appeal. N.C.R. App. P. Rule 28(b)(6)

(“Issues not presented in a party’s brief, or in support of which no reason or argument

is stated, will be taken as abandoned.”). See Guilford Cnty. Bd. of Educ. v. Guilford

Cnty. Bd. of Elections, 110 N.C. App. 506, 510, 430 S.E.2d 681, 685 (1993) (citations

omitted).

III. Standard of Review

“Whether a trial court has properly interpreted the statutory framework

applicable to costs is a question of law reviewed de novo on appeal. The

reasonableness and necessity of costs is reviewed for abuse of discretion.” Peters v.

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Opinion of the Court

Pennington, 210 N.C. App. 1, 25, 707 S.E.2d 724, 741 (2011) (citations omitted).

“Where the applicable statutes afford the trial court discretion in awarding costs, we

review the trial court’s determinations for an abuse of discretion.” Khomyak ex rel.

Khomyak v. Meek, 214 N.C. App. 54, 57, 715 S.E.2d 218, 220 (2011), disc. review

denied, __ N.C. __, 720 S.E.2d 392 (2012).

Whether the statutory requirements of N.C. Gen. Stat. § 50-13.6 have been

met to support an award of attorney’s fees is a question of law. We review the trial

court’s determination de novo. “[T]he amount of attorney’s fees is within the sound

discretion of the trial judge and is only reviewable for an abuse of discretion.” Atwell

v. Atwell, 74 N.C. App. 231, 237-38, 328 S.E.2d 47, 51 (1985) (citation omitted).

IV. Analysis

A. Court Expenses

Defendant argues the trial court erred by ordering him to pay court costs to

Plaintiff for travel expenses in the amount of $4,640.57. Defendant contends the trial

court awarded court expenses to Plaintiff, which were not permitted by either statute

or common law. We agree.

N.C. Gen. Stat. § 6-20 allows costs in a civil action “in the discretion of the

court.” N.C. Gen. Stat. § 6-20 (2013). Any costs awarded “are subject to the

limitations on assessable or recoverable costs set forth in [N.C. Gen. Stat. §] 7A-

305(d), unless specifically provided for otherwise in the General Statues.” Id.

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Opinion of the Court

N.C. Gen. Stat. § 7A-305(d) provides:

The 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’s discretion to tax costs pursuant to [N.C. Gen. Stat. §] 6-20:

(1) Witness fees, as provided by law.

(2) Jail fees, as provided by law.

(3) Counsel fees, as provided by law.

(4) Expense of service of process by certified mail and by publication.

(5) Costs on appeal to the superior court, or to the appellate division, as the case may be, of the original transcript of testimony, if any, insofar as essential to the appeal.

(6) Fees for personal service and civil process and other sheriff’s fees, as provided by law. . . .

(7) Fees of mediators appointed by the court, mediators agreed upon by the parties, guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law. The fee of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.

(8) Fees of interpreters, when authorized and approved by the court.

(9) Premiums for surety bonds for prosecution, as authorized by [N.C. Gen. Stat. §] 1-109.

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Opinion of the Court

(10) Reasonable and necessary expenses for stenographic and videographic assistance directly related to the taking of depositions and for the cost of deposition transcripts.

(11) Reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.

(12) The fee assessed pursuant to subdivision (2) of subsection (a) of this section upon assignment of a case to a special superior court judge as a complex business case.

N.C. Gen. Stat. § 7A-305(d) (2013).

Our precedents establish:

The costs set forth in § 7A-305(d) are complete and exclusive, and in lieu of any other costs and fees. However, the trial court may, in its discretion, award additional costs pursuant to N.C. Gen. Stat. § 6-20 if the costs were established by case law prior to the enactment of N.C. Gen. Stat. § 7A-320 in 1983.

Morgan v. Steiner, 173 N.C. App. 577, 581, 619 S.E.2d 516, 519 (2005) (internal

quotation marks omitted)(citing Lord v. Customized Consulting Specialty, Inc., 164

N.C. App. 730, 734, 596 S.E.2d 891, 895 (2004)), disc. review denied, 360 N.C. 648,

636 S.E.2d 808 (2006). “[C]ases from this Court have strictly limited the trial court’s

authority to award costs to those items (1) specifically enumerated in the statutes, or

(2) recognized by existing common law.” Dep’t of Transp. v. Charlotte Area

Manufactured Housing, Inc., 160 N.C. App. 461, 468, 586 S.E.2d 780, 784 (2003)

(citations omitted). See Crist v. Crist, 145 N.C. App. 418, 423-24, 550 S.E.2d 260, 264-

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Opinion of the Court

65 (2001) (“The trial court . . . is prohibited from assessing costs in civil cases which

are neither enumerated in section 7A-305 nor provided by law.” (citation and internal

quotation marks omitted)).

In Lord, this Court set forth a three-pronged inquiry to determine whether

costs may be appropriately assessed:

First, if the costs are items provided as costs under N.C. Gen. Stat. § 7A-305, then the trial court is required to assess these items as costs. Second, for items not costs under N.C. Gen. Stat. § 7A-305, it must be determined if they are “common law costs” under the rationale of Charlotte Area. Third, as to “common law costs” we must determine if the trial court abused its discretion in awarding or denying these costs under N.C. Gen. Stat. § 6- 20.

164 N.C. App. at 734, 596 S.E.2d at 895.

Here, Plaintiff sought reimbursement for costs related to travel expenses in

preparation for the trial, which was to occur on 8 June 2011. The purported costs

borne by Plaintiff included: (1) airline tickets; (2) meal expenses; (3) lodging; and, (4)

a rental car. Plaintiff alleged she had incurred these costs as to herself as a party, as

well as on behalf of her father and the children’s visitation supervisor as witnesses.

The trial court ordered Defendant to pay to Plaintiff $4,640.57 in court costs.

The trial court did not cite any statutory or case authority, upon which it based its

order. The travel expenses of a party and her non-subpoenaed witnesses are not

assessable costs as set forth in N.C. Gen. Stat. § 7A-305(d), nor are these expenses

otherwise recognized as an assessable cost “as provided by law.” N.C. Gen. Stat. § 7A-

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Opinion of the Court

305(d). See City of Charlotte v. McNeely, 281 N.C. 684, 694, 190 S.E.2d 179, 187 (1972)

(holding “[n]o statute authorizes the inclusion of” mileage, meals, or hotel expenses

“in court costs”).

The trial court lacked the authority to assess the travel expenses of Plaintiff

and her non-subpoenaed witnesses as reimbursed costs to be paid by Defendant. The

trial court erred in awarding these expenses to Plaintiff as allowable costs. We

reverse the trial court’s order requiring Defendant to pay $4,640.57 in court expenses

to Plaintiff.

B. Attorney’s Fees

Defendant argues the trial court abused its discretion in awarding Plaintiff

attorney’s fees in its 31 March 2014 order. We agree.

North Carolina adheres to the “American Rule” with regard to awards of

attorney’s fees. Ehrenhaus v. Baker, __ N.C. App. __, __, 776 S.E.2d 699, 704 (2015).

Under this rule, each litigant is required to pay his or her attorney’s fees, unless a

statute or agreement between the parties provides otherwise. In re King, 281 N.C.

533, 540, 189 S.E.2d 158, 162 (1972).

N.C. Gen. Stat. § 50-13.6 expressly authorizes a trial court to award attorney’s

fees in child custody matters. N.C. Gen. Stat. § 50-13.6 provides:

In 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

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Opinion of the Court

order payment of reasonable attorney’s 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 . . . .

N.C. Gen. Stat. § 50-13.6 (2013).

In order to award attorney’s fees in an action involving custody or support of a

minor child, the trial court is required to gather evidence and make certain findings

of fact. The trial court must first determine if the party moving for attorney’s fees

has satisfied the statutory requirements for an award pursuant to N.C. Gen. Stat. §

50-13.6.

The trial court must make specific findings of fact relevant to whether: “(1) the

interested party acted in good faith; (2) he or she had insufficient means to defray the

expenses of the action; and (3) the supporting party refused to provide adequate

support under the circumstances existing at the time the action or proceeding

commenced.” Leak v. Leak, 129 N.C. App. 142, 151, 497 S.E.2d 702, 707, disc. review

denied, 348 N.C. 498, 510 S.E.2d 385 (1998).

The trial court does not possess “unbridled discretion; it must find facts to

support its award.” Burr v. Burr, 153 N.C. App. 504, 506, 570 S.E.2d 222, 224 (2002)

(citations omitted). The trial court must make findings of fact to support and show

“the basis of the award, including: the nature and scope of the legal services, the skill

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and time required, and the relationship between the fees customary in such a case

and those requested.” Robinson v. Robinson, 210 N.C. App. 319, 337, 707 S.E.2d 785,

798 (2011) (citation omitted). The trial court is also required to make findings to

allocate and show what portion of the attorney’s fees was attributable to the custody

and child support aspects of the case as opposed to other issues. Smith v. Price, 315

N.C. 523, 538, 340 S.E.2d 408, 417 (1986).

Here, the trial court made two findings of fact in its order awarding attorney’s

fees to Plaintiff:

1. Plaintiff’s attorney, Eric D. Levine, filed an Affidavit of Attorneys’ [sic] Fees on January 15, 2014, which set out his total attorneys’ [sic] fees during the entire case. The Affidavit of Attorneys’ [sic] Fees of Eric D. Levine states that he had worked 269 hours. Mr. Levine bills his clients at the normal hourly rate of $200.00 per hour, which is fair and equitable considering his experience. The bills of Mr. Levine totaled $53,800.00.

2. Plaintiff did not have sufficient funds to defray the costs and expenses of this lawsuit, including attorneys’ [sic] fees.

The trial court noticeably failed to make any findings whatsoever in its order

with regard to whether Plaintiff had acted in good faith and whether Defendant

refused to provide adequate child support. The record and transcript before this

Court are also wholly devoid of any evidence submitted to show Plaintiff was unable

to defray the costs of this action. The trial court’s findings of fact, without more, are

not supported by statute or case law and are insufficient to support an award of

attorney’s fees to Plaintiff under N.C. Gen. Stat. § 50-13.6.

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Additionally, the trial court failed to make sufficient 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’s hourly rate, and its reasonableness with that of other

lawyers.” Cobb v. Cobb, 79 N.C. App. 592, 595, 339 S.E.2d 825, 828 (1986) (citations

omitted). Plaintiff’s counsel’s affidavit of attorney’s fees included his hourly rate, but

merely set forth various dates and hours spent working on this case, without

delineating the nature of the work performed for each date.

The trial court failed to make the requisite findings regarding “the nature and

scope of the legal services rendered” to support its award of attorney’s fees. Id. We

reverse the trial court’s order awarding attorney’s fees to Plaintiff.

V. Conclusion

The trial court erroneously ordered Defendant to pay Plaintiff’s and her

unsubpoenaed witnesses’ travel expenses, absent any statutory or other legal

authority.

The trial court made insufficient findings of fact in support of its order

awarding attorney’s fees to Plaintiff. The trial court’s findings of fact regarding the

reasonableness of the amount of the attorney’s fees award were also inadequate.

REVERSED.

Judges CALABRIA and DAVIS concur.

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