Attorney Fees When Support and Custody Are Involved

LIMERICK V. ROJO-LIMERICK, 2023-NCCOA-________ (2023). 

1. Facts:  Plaintiff and Defendant are parents of a minor child. In August of 2020, Plaintiff filed for divorce from bed and board, child custody and child support, and attorney fees. Defendant counterclaimed for custody, child support, equitable distribution, alimony, and attorney fees. Defendant then voluntarily dismissed his counterclaims for equitable distribution, postseparation support, alimony, and attorney fees. However, Defendant’s claims for custody and child support remained open. Plaintiff then dismissed his claims except for child custody and child support. The trial court eventually entered into a consent order for permanent child custody, temporary child support, and attorney fees. The remaining issues for child support and fees were heard in November of 2021. Plaintiff’s claim for fees was granted. Defendant appealed. 

 

1. Issue:  Did the trial court err in granting Plaintiff’s claim for attorney fees? 

 

1. Holding:  Yes. 

 

1. Rationale:  When dealing with attorney fees for child custody and child support together, the required findings only concern whether one party was an interested party acting in good faith and has insufficient means to defray litigation expenses. However, when the only claim is child support, required findings for awarding fees require an additional finding that the party ordered to pay support has refused support that is adequate under the circumstances at the time of the filing of the claim. Since the custody portion of the case concluded with the consent permanent custody order, the only claim remaining was for child support and fees. In that scenario, the trial court was required to make the additional finding regarding refusal of adequate support. Since no such finding was made, the trial court erred in awarding fees.