Simpson v. Simpson
209 N.C. App. 320
| N.C. Ct. App. | 2011Background
- Plaintiff Amy Simpson (Irish) appeals after the trial court denied her motion for attorney's fees following defendant Daryl Wayne Simpson's motion for modification of child custody.
- The trial court found no evidence on the reasonableness of plaintiff's attorney's hourly rate and relied on Falls v. Falls to deny fees.
- There is ambiguity in the finding on plaintiff's means to defray costs, which could be read as either meeting or not meeting the statutory requirement.
- The parties had three children; a 2006 consent order provided plaintiff primary custody, and in 2008 defendant sought shared custody.
- At a January 2009 hearing, the court dismissed the modification motion; on February 9, 2009 plaintiff moved for costs and attorney's fees; the court later awarded costs but denied fees.
- The court on remand could consider judicial notice of customary rates and clarify whether defendant has the ability to pay fees if fees are allowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying fees for lack of evidence on reasonableness | Simp | Simpson | Reversed and remanded |
| Whether customary local attorney rates may be judicially noticed in fee determinations | Simp | Simpson | Remand for decision on judicial notice; trial court may take judicial notice of customary rates |
| Whether ambiguous findings on plaintiff's means require remand for proper resolution | Simp | Simpson | Remand to clarify whether plaintiff has insufficient means; determine defendant's ability to pay if necessary |
Key Cases Cited
- Falls v. Falls, 52 N.C.App. 203 (1981) (require evidence of reasonableness of attorney's rate; not controlling on judicial notice but cited for findings needed)
- Cunningham v. Cunningham, 171 N.C.App. 550 (2005) (need findings on nature, scope, skill, rate, and reasonableness of fees)
- Cobb v. Cobb, 79 N.C.App. 592 (1986) (foundational requirements for attorney-fee awards)
- Mason v. Town of Fletcher, 149 N.C.App. 636 (2002) (statutory findings may be established by judicial notice; not limited to testimony)
- Hinkle v. Hartsell, 131 N.C.App. 833 (1998) (judicial notice standards; certain matters can be noticed if generally known or readily ascertainable)
- State v. Lang, 301 N.C. 508 (1980) (decision acknowledging trial courts' discretion and need for proper legal basis for rulings)