Savage v. ZelentÂ
243 N.C. App. 535
N.C. Ct. App.2015Check Treatment IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-282
Filed: 20 October 2015
Carteret County, No. 13 CVS 1373
ALAN SAVAGE, Plaintiff,
v.
JULIE ANNE ZELENT a/k/a JULIE ANNE PHILLIPS a/k/a JULIE A. McSWAIN,
Defendant.
Appeal by defendant from orders entered 25 August and 14 October 2014 by
Judge John E. Nobles in Carteret County Superior Court. Heard in the Court of
Appeals 8 September 2015.
Poyner Spruill LLP, by Daniel G. Cahill and Caroline P. Mackie, for plaintiff-
appellee.
Jeffrey S. Miller for defendant-appellant.
BRYANT, Judge.
Where a proper statutory interpretation of the North Carolina Uniform
Foreign-Country Money Judgments Recognition Act and evidence in the record
support the trial court’s order that a Scottish judgment at issue (1) was not a
judgment for alimony, support, or maintenance in matrimonial or family matters,
and (2) was not fundamentally unfair or repugnant to the public policy of North
Carolina, we affirm the judgment of the trial court.
SAVAGE V. ZELENT
Opinion of the Court
Plaintiff Alan Savage and Defendant Julie Anne Zelent met in June 2006 and
subsequently developed a romantic relationship. In the same year, defendant moved
from England to Inverness, Scotland, where plaintiff and defendant cohabited from 1
September 2006 to 24 August 2007. The pair temporarily separated, but resumed
cohabitation in February 2008. Plaintiff and defendant permanently separated in
October 2008, after which defendant eventually moved to Carteret County, North
Carolina.
In 2011, defendant filed suit against plaintiff in Inverness Sheriff Court in
Scotland under the Family Law (Scotland) Act of 2006, Section 28(2)(a), alleging that
she sustained economic disadvantage as a result of her relationship with plaintiff and
that she was entitled to financial contribution. After a seven day proof (trial), which
took place over the course of November 2011, December 2011, and January 2012, the
Sheriff (judge) found that defendant was not entitled to financial contribution from
plaintiff. Defendant was entitled to appeal the judgment but failed to do so.
After the proof concluded, defendant’s counsel withdrew from representing her.
Under Scottish Sheriff Court procedure, when a party becomes pro se, the Sheriff
calls for a Peremptory Diet (hearing). If the pro se party fails to attend, the hearing
may be held without the pro se party. On 17 August 2012, the Sheriff held the
Peremptory Diet to determine whether legal costs should be awarded. Defendant,
who had received notice of the Peremptory Diet, wrote an email in response but did
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not attend. The Sheriff awarded expenses to plaintiff in an amount to be determined
by the Auditor of Court.
Under Scottish law, the Auditor of Court is tasked with scheduling a Diet of
Taxation (hearing), during which the Auditor assesses the validity of the entry in the
Account of Expenses before determining the final sum to be awarded. Again,
defendant did not attend the Diet of Taxation, send a representative, seek any
corrections, or make any submissions to the Auditor.
On 19 June 2013, the Auditor awarded expenses to plaintiff and submitted the
report to the Sheriff. The Sheriff then approved the Auditor’s Report and entered an
award of attorneys’ fees and expenses in the amount of £148,516.75 (“the Scottish
judgment”) against defendant. Defendant, having previously failed to exercise her
right to appeal on the merits, again failed to exercise her right to appeal the amount
of expenses awarded. Defendant made no payments on the Scottish judgment.
On 16 January 2014, plaintiff served defendant with a Complaint to Recognize
a Foreign-Country Money Judgment filed in Carteret County Superior Court.
Defendant answered, asserting a defense pursuant to North Carolina Rule of Civil
Procedure 12(b)(6) for failure to state a claim. On 27 June 2014, plaintiff filed a
Motion to Recognize a Foreign-Country Money Judgment, along with a brief in
support of the motion. On 7 July 2014, the matter came on for hearing in Carteret
County Superior Court, the Honorable John E. Nobles presiding. By written order
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entered on 25 August 2014, Judge Nobles granted plaintiff’s Motion to Recognize a
Foreign-Country Money Judgment.
Defendant’s subsequent Motion for a New Trial was denied by Judge Nobles
by written order entered on 14 October 2014. Defendant appeals.
___________________________________________________________
On appeal, defendant raises the following issues: whether the trial court erred
(I) in recognizing the Scottish judgment under the North Carolina Uniform Foreign-
Country Money Judgments Recognition Act; and (II) whether the Scottish judgment
is fundamentally unfair or repugnant to North Carolina public policy.
I
Defendant argues that the trial court erred in concluding as a matter of law
that the Scottish judgment was not a judgment for alimony, support, or maintenance
in matrimonial or family matters. Defendant also argues that the attorneys’ fees
awarded to plaintiff in defendant’s action for support under the Family Law
(Scotland) Act constituted a judgment for “support . . . in matrimonial or family
matters” within the meaning of N.C. Gen. Stat. § 1C-1852 (2009). We disagree, noting
that defendant’s argument is one which requires our interpretation of the statute at
issue in this case.
“Questions of statutory interpretation are questions of law, which are reviewed
de novo by an appellate court.” Jenner v. Ecoplus, 224 N.C. App. 275, 277, 737 S.E.2d
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Opinion of the Court
121, 123 (2012) (quoting In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co.,
161 N.C. App. 558, 559,589 S.E.2d 179
, 180 (2003)). “The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent.” Applewood Props., LLC v. New S. Props. LLC,366 N.C. 518
, 522,742 S.E.2d 776
, 779 (2013) (quoting Dickson v. Rucho,366 N.C. 332
, 339,737 S.E.2d 362
, 368 (2013)). The Court’s statutory analysis thus begins with the statutory words themselves. Jenner, 224 N.C. App. at 278, 737 S.E.2d at 123. “[I]f [the words] are clear and unambiguous, they are to be given their plain and ordinary meanings.” Id. (citation omitted). However, “[w]here a statute is ambiguous, judicial construction must be used to ascertain the legislative will.” Id. Furthermore, “[u]nder the doctrine of expressio unius est esclusio alterius, when a statute lists the situations to which it applies, it implies the exclusion of situations not contained in the list.” Patmore v. Town of Chapel Hill N.C., ___ N.C. App. ___, ___,757 S.E.2d 302
, 307 (2014) (quoting Evans v. Diaz,333 N.C. 774
, 779–80,430 S.E.2d 244
, 247 (1993)).
The North Carolina Uniform Foreign-Country Money Judgments Recognition
Act (“Recognition Act”) applies to foreign country judgments that grant or deny
recovery of a sum of money and are final, enforceable judgments under the law of the
foreign country. N.C.G.S. § 1C-1852. The Act also states, in pertinent part, that: “(b)
This Article does not apply to a foreign-country judgment, even if the judgment grants
or denies recovery of a sum of money, to the extent that the judgment is . . . (3) A
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Opinion of the Court
judgment for alimony, support, or maintenance in matrimonial or family matters.”
N.C.G.S § 1C-1852(b)(3). The North Carolina Act is based on the Uniform Foreign-
Country Money Judgments Recognition Act (“Uniform Act”) as approved in 2005 by
the National Conference of Commissioners on Uniform State Laws. N.C. Gen. Stat.
§ 1C-1850, North Carolina Comment (2009).1 This Court has previously noted that
“[t]he Recognition Act is a statute of inclusion with a strong presumption that foreign-
country judgments will be recognized.” Jenner, 275 N.C. App. at 279, 737 S.E.2d at
124. Further, “[a] party resisting recognition of a foreign-country judgment has the
burden of establishing that a ground for nonrecognition . . . exists.” Id. (quoting
N.C.G.S. § 1C-1853(g)).
As noted, the North Carolina Act is based on the Uniform Act. However, “[t]he
General Statutes Commission inserted ‘North Carolina’ in the title and short title of
the Article because of variations made to the text of the Uniform Act.” Id. Notably,
one such variation is explained in the North Carolina Comment to N.C. Gen. Stat. §
1C-1852(b)(3), which emphasizes the deliberate elimination and substitution of
particular language from the Uniform Act:
1 While the policy reasons for excluding judgments for alimony, support, or maintenance in
matrimonial matters are not explicitly laid out in either the Recognition Act itself or the official
commentary, the following may shed some light on the matter. For instance, the United States, as a
nation, is generally reluctant to enter into any international family support agreements, as explained
by John L. Saxon in his article “International Establishment and Enforcement of Family Support.”
See John L. Saxon, International Establishment and Enforcement of Family Support, 1999 FAM. L.
BULL. 1, 11–12 n.24 (1999).
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Opinion of the Court
In subdivision (b)(3), the General Statutes Commission
substituted “alimony, support, or maintenance in
matrimonial or family matters” for the Uniform Act
language “divorce, support, or maintenance, or other
judgment rendered in connection with domestic relations.”
This change was due to concern that the Uniform Act’s
language could prevent recognition of an award based on a
claim that was brought as part of a divorce action, for
example, a tort action against one spouse for damage to the
individual property of the other spouse.
N.C.G.S. § 1C-1852(b)(3) Official Comment.
Defendant asserts that the intent of the Recognition Act is that “North
Carolina courts maintain a ‘hands off’ attitude to ‘judgments for support in
matrimonial or family matters’ and consequent judgments for costs, attorneys’ fees,
etc.” Defendant asserts that the attorneys’ fees awarded against defendant in her
action for support in a family law matter was in fact a judgment for support or
alimony within the meaning of N.C. Gen. Stat. § 1C-1852. We disagree with
defendant’s assertions. To refuse recognition of the Scottish judgment as defendant
would have us do, would require that we read the statute to substitute the word “for”
and replace it with the phrase “arising out of,” in effect revising the statute to read
“judgment [arising out of] a claim for alimony, support, or maintenance.” This we
decline to do.
Here, the statute clearly precludes recognition of judgments “for” alimony, “for”
support, or “for” maintenance. See N.C.G.S. § 1C-1852(b)(3). The Scottish judgment,
rather, is a judgment “for” attorneys’ fees and expenses incurred by plaintiff and
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awarded against defendant. The purpose of the judgment was to reimburse plaintiff
for expenses in defense of a claim brought by plaintiff and denied by the Scottish
court. The plain language of the Scottish judgment reads as follows:
The Sheriff, having considered the report by the Auditor of
Court taxing the Defender’s Account of Expenses in the
sum of ONE HUNDRED AND FORTY EIGHT
THOUSAND FIVE HUNDRED AND SIXTEEN POUNDS
SEVENTY FIVE PENCE (£148516.75) which included
£8370.00 of an Audit fee, Approved of the same and
decerned for payment to the Defender’s solicitor of the said
sum.
(emphasis added).
This is a judgment for attorneys’ fees and costs, determined by an Auditor,
reviewed and approved by the Sheriff in conformity with the Scottish legal system,
and awarded because defendant failed in her efforts to recover anything on her claims
against plaintiff. “Because the word ‘judgment’ is unambiguous,” the Court “must
refrain from judicial construction and accord [the term its] plain and definite
meaning.” Akins v. Mission St. Joseph’s Health Sys., 193 N.C. App. 214, 218,667 S.E.2d 255
, 258 (2008). “Judgment means the final decision of the court resolving the dispute and determining the rights and obligations of the parties, and the law’s last word in a judicial controversy.”Id.
(quoting Poole v. Miller,342 N.C. 349
, 352,464 S.E.2d 409
, 411 (1995)) (internal quotation marks omitted). The word “judgment”
implies no reference to the initial claims of an action. Indeed, the Recognition Act
only applies to final judgments, and therefore, the initial claims of an action are not
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Opinion of the Court
relevant when applying the Recognition Act. Thus, even though the Scottish
judgment for attorneys’ fees resulted from a failed claim for maintenance, because
the judgment itself is one “for” attorneys’ fees and not one “for” maintenance,
application of the Recognition Act is not precluded. See N.C.G.S. § 1C-1852(b)(3).
The issue is a pretty fine one in that “for” could be read, under other
circumstances, as defendant asserts, to mean “arising out of”; however, here the
North Carolina General Assembly’s change to the statutory language as noted in the
Official Comment, undercuts defendant’s argument and supports the trial court’s
holding that the Scottish judgment is subject to the Recognition Act. The removal of
the language “or other judgment in connection with domestic relations” from the
Uniform Act supports our interpretation that attorneys’ fees, even those resulting
from a failed domestic action, can be properly recognized under the Recognition Act.
The doctrine of expressio unius est esclusio alterius implies the exclusion of situations
not contained in the list. See Patmore, ___ N.C. App. at ___, 757 S.E.2d at 307. Under
that doctrine, the Official Comment to N.C. Gen. Stat. § 1C-1852 makes plain that
the exclusion of the language “rendered in connection with domestic relations” from
the statute was more than implied and rather was quite explicit. This deliberate
change evidences the legislature’s intent that judgments like the Scottish judgment
are to be properly recognized pursuant to the Recognition Act.
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Finally, for the sake of uniformity of interpretation, the legislature endorses
examination of cases from other jurisdictions in interpreting the North Carolina
Recognition Act. “In applying and construing this Article, consideration may be given
to promoting uniformity with respect to its subject matter among states that enact
it.” N.C. Gen. Stat. § 1C-1859 (2009). Two courts have addressed this narrow issue.
The Ohio Court of Appeals in a similar case held that an English judgment
awarding costs to the prevailing spouse in a divorce proceeding “was a judgment for
costs, consisting of attorneys’ fees. It was, therefore, not an award of support.”2
Hazzledine v. Hazzledine, No. 95-CA-35, 1996 Ohio App. LEXIS 1405, *1–2, 5 (Ohio
Ct. App. Apr. 5, 1996). The court stated:
In our view, the record clearly reflects that the judgment of
the English court is an award of costs under the English
rule that the prevailing party is normally awarded
attorneys fees. Accordingly, while the underlying cause of
action in which the judgment was awarded may have
involved matrimonial or family matters, the judgment is
not for support . . . .
Id. at *1–2. The Ohio court noted, while an award of attorneys’ fees in a domestic
relations case might constitute support, it nonetheless held that, in the absence of
any evidence that the judgment was intended to support the prevailing party, it was
2 Ohio’s Uniform Foreign-Money Judgments Recognition Act, defining “foreign country
judgment” reads as follows: “(B) ‘Foreign country judgment’ means any judgment of a foreign country
that grants or denies the recovery of a sum of money, other than the following types of judgments: . . .
(3) A judgment for support involving matrimonial or family matters.” Ohio Rev. Code Ann. §
2329.90(B)(3) (LexisNexis 1985) (emphasis added).
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not a judgment for support based on the nature of the English rule (to award costs to
the prevailing party). Id. at *5–6.
Like the English judgment in Hazzledine, the Scottish judgment here is an
award of attorneys’ fees in favor of the prevailing party, plaintiff, and against the
party seeking the support, defendant. Similarly, no evidence shows that the Scottish
judgment could constitute an award of support for plaintiff since he did not initiate
the action seeking support from defendant. Under the reasoning in Hazzledine, and
consistent with our own interpretation of the North Carolina Recognition Act, the
Scottish judgment is not a judgment for support but rather a judgment based on an
award of attorneys’ fees.
A New York appellate court faced a similar issue in Burelle v. Gilbert, No. 2004-
1639 S C., 2005 WL 2276677 (N.Y. App. Term Sept. 16, 2005). There, the judgment
was a Canadian order for equitable distribution arising out of a divorce proceeding.
Id. at *1. The defendant, like defendant here, argued that the judgment was barred
based on New York’s Recognition of Foreign Country Money Judgments Act because
it was a “judgment for support in matrimonial or family matters.”3 Id. The New York
court disagreed, holding that the judgment was not an award of support, “even though
3 New York’s applicable statute, the Recognition of Foreign Country Money Judgments, reads,
in pertinent part, as follows: “(b) Foreign country judgment. ‘Foreign country judgment’ in this article
means any judgment of a foreign state granting or denying recovery of a sum of money, other than a
judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family
matters.” N.Y. C.P.L.R. 5301(b) (McKinney 1979).
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entered in a matrimonial proceeding.” Id. Similarly, the judgment at issue here is
not an award of support but is rather a reimbursement of attorneys’ fees and
expenses.
We recognize that these cases are not controlling authority. However, with no
North Carolina case law on point and the legislature’s recommendation that other
states’ interpretations of their Foreign Country Money Judgments Recognition Acts
may be considered, the Ohio and New York cases, while unpublished decisions, are
persuasive authority that supports our holding that the Scottish judgment awarding
attorneys’ fees is not a judgment “for alimony, support, or maintenance.”
Based on the plain language of the statute, the General Assembly’s express
change in the Recognition Act in order to recognize judgments like the Scottish
judgment, and persuasive authority from other states, we hold the trial court did not
err in concluding that the Scottish judgment was not a judgment for support in family
matters. The trial court properly recognized the judgment as one for attorneys’ fees.
Accordingly, defendant’s argument is overruled.
II
Defendant argues that the Scottish proceeding under which plaintiff obtained
the judgment for attorneys’ fees was fundamentally unfair and the rationale
employed was repugnant to the public policy of North Carolina, therefore violating
North Carolina law. Defendant argues that the Scottish judgment was rendered in
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circumstances which question the integrity of the rendering court and that the
“essential elements of impartial administration and basic procedural fairness” were
not met in the foreign proceeding pursuant to N.C. Gen. Stat. § 1C-1853 (2009),
amended by 2015 N.C. Sess. Laws 2015-264, eff. June 24, 2015.4 We disagree.
Defendant invoked the jurisdiction of the Scottish court and availed herself of
the procedures and processes applicable to her case. Thereafter, once her case was
lost on the merits, she did not avail herself of the process or procedures for appealing
her case. Further, she declined to participate in the proceedings for expenses—the
Peremptory Diet and the Diet of Taxation—that were a continuing part of her case,
and she did not avail herself of any appellate process. From the record we have of
the proceedings defendant initiated in the Scottish Court, there is nothing to indicate
that her failure to avail herself of additional processes, including appeals, was due to
a perception by defendant of flaws or lack of fairness in the proceedings. Therefore,
defendant should be precluded from arguing the integrity and fairness of the very
system she chose to litigate her claims. Notably, the official commentary to N.C. Gen.
Stat § 1C-1853(4)(c), addresses just such a situation:
[I]f the problem is evidence of a lack of integrity or
fundamental fairness with regard to the particular
proceeding leading to the foreign-country judgment, then
there may or may not be other factors in the particular case
4 N.C. Gen. Stat. § 1C-1853 can be considered the denial of recognition part of the Act. We
also note that the amendment to N.C. Gen. Stat. § 1C-1853, effective June 24, 2015, while not relevant
to the case here, made no substantive changes to the act or to the subsections at issue here. See 2015
N.C. Sess. Laws 2015-264, eff. June 24, 2015 (making changes to subsection (j)).
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Opinion of the Court
that would cause the forum court to decide to recognize the
foreign-country judgment. For example, a forum court
might decide not to exercise its discretion to deny
recognition despite evidence of corruption or procedural
unfairness in a particular case because the party resisting
recognition failed to raise the issue on appeal from the
foreign-country judgment in the foreign country, and the
evidence establishes that, if the party had done so, appeal
would have been an adequate mechanism for correcting the
transgressions of the lower court.
N.C.G.S. § 1C-1853, cmt. 12 (emphasis added). Nevertheless, we will address
plaintiff’s argument.
As stated previously, “[q]uestions of statutory interpretation are questions of
law, which are reviewed de novo by an appellate court.” Jenner, 224 N.C. App. at 277,
737 S.E.2d at 123. Additionally, defendant bears the burden of presenting evidence
to demonstrate that this Court should not allow recognition of the Scottish judgment.
N.C.G.S. § 1C-1853(g).
The portion of the Recognition Act at issue here states, in pertinent part, that:
(c) If a court of this State finds that any of the following
exist with respect to a foreign-country judgment for which
recognition is sought, recognition of the judgment shall be
denied unless the court determines, as a matter of law, that
recognition would nevertheless be reasonable under the
circumstances:
...
(7) The judgment was rendered in circumstances that raise
substantial doubt about the integrity of the rendering court
with respect to the judgment.
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N.C.G.S. § 1C-1853(c)(7). Official Comment 11 to subsection (c)(7) further states that
denial of recognition of the foreign judgment under this subsection “requires a
showing of corruption in the particular case that had an impact on the judgment that
was rendered.” N.C.G.S. § 1C-1853 cmt. 11 (emphasis added). Defendant asserts
that Mr. William M. Cochrane, Interim Auditor of Court Grampian Highland &
Islands, who rendered the Scottish money judgment, had “a substantial doubt about
the integrity of the opinion,” and, therefore, the proceeding was fundamentally
unfair. Defendant relies on the following excerpt from the Scottish judgment, which
defendant asserts is an unfair “rubber stamping” of the attorneys’ fees awarded and
indicates the Auditor’s “substantial doubt”:
Although I still had difficulty in deviating from the practice
of Auditors of Court in Grampian Highland & Islands
disallowing such expenses such as these in fairness to the
other party, I accepted that in the direction that the award
was on Solicitor/Client, client paying basis, greatly reduced
the ability of the Auditor of Court to carry out his normal
function in taxing an account prepared on that basis and
subject to the test ‘that such expenses have been expressly
or impliedly approved by the client’ before, allowing to all
intents and purposes, the rubber stamping the account
save for some necessary corrections . . . .
Yet, the Auditor also stated “that the Account [of expenses] although lengthy was
fairly straight forward and all entries appeared to [be] fairly stated and at no time
[was there] any indication of being excessive.”
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We note defendant’s argument that the comments defendant urges us to
concentrate on suggest the Auditor had doubt about the fairness of the expenses in
this case. However, we must reject this argument; for even if the Auditor had doubt
about the fairness of expenses, such doubt does not rise to the level of “corruption in
the particular case” required to deny recognition. See N.C.G.S. § 1C-1853 cmt. 11.
Clearly, the Auditor also took into consideration the background and complexity of
the case:
[I]t was an action in which the pursuer [defendant] sought
payment of a capital of some £500,000.00 from the defender
[plaintiff] in terms of section 28(2)(a) of the Family Law
(Scotland) Act 2006 and this case in question was at that
time one of the first in Scotland and in ‘value’ exceeded that
of the case of Gow v. Grant . . . which is the leading case on
this section.
Finally, the Auditor stated that he “spent some considerable time reviewing the
Account prior to the Diet of Taxation” and ultimately concluded that the award was
not excessive.
Additionally, at the Diet of Taxation, where the court’s award of expenses was
independently examined by the Auditor, defendant had notice of the Diet, an
opportunity to be heard, and have counsel represent her. She chose not to appear,
nor did counsel appear on her behalf. Defendant also had the opportunity to appeal
the adverse decision on her underlying claims as well as the award of costs, and chose
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not to pursue an appeal of either decision. Thus, defendant’s argument regarding the
fundamental unfairness of the proceeding is unpersuasive.
Defendant next argues that the “Solicitor/Client, client paying” method of
allowing fees and expenses and the amount of the award runs counter to the North
Carolina concept of what is fair and just in awarding attorney’s fees and that such a
scheme is against public policy. We disagree.
The commentary to North Carolina General Statutes section 1C-1853(c)(3) of
the Recognition Act reveals a stringent test for finding a public policy violation:
Public policy is violated only if recognition of the foreign-
country judgment would tend clearly to injure the public
health, the public morals, or the public confidence in the
administration of the law, or would undermine “that sense
of security for individual rights, whether of personal liberty
or of private property, which any citizen ought to feel.”
N.C.G.S. § 1C-1853 cmt. 8 (quoting Hunt v. BP Exploration Co. (Libya) Ltd., 492 F.
Supp. 885, 901 (N.D. Tex. 1980)). “[A] difference in law, even a marked one, is not sufficient to raise a public policy issue.”Id.
“Nor is it relevant that the foreign law allows a recovery that the forum state would not allow.”Id.
Here, the Auditor concluded in his report “that the Account [of expenses]
although lengthy was fairly straight forward and all entries appeared to [be] fairly
stated and at no time [was there] any indication of being excessive.” Even though
defendant asserts that “reasonableness” is the key factor under all North Carolina
attorneys’ fee statutes, the fact that Scottish law differs from North Carolina law is
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“not sufficient to raise a public policy issue.” Id.; see GE Betz, Inc. v. Conrad, ___ N.C.
App. ___, ___, 752 S.E.2d 634, 655–56 (2013) (discussing “reasonableness” of
attorneys’ fees and factors to be considered under North Carolina law).
Finally, defendant cites plaintiff’s wealth and argues that enforcement of the
Scottish judgment will pose a risk of allowing wealthy litigants to “run up” fees in a
“loser pays” system, knowing that if the wealthy person prevails, he can financially
ruin his opponent through a post-trial “award of expenses.” Defendant argues that
this poses the additional risk of deterring non-wealthy persons from taking their
cases to court. This argument nevertheless fails to demonstrate how awarding
attorneys’ fees in this case is repugnant to North Carolina public policy.
North Carolina statutory law explicitly authorizes the award of attorneys’ fees
in domestic relations matters. See N.C. Gen. Stat. § 50-16.4(2010) (authorizing the award of attorneys’ fees in an action for alimony or post-separation support);N.C. Gen. Stat. § 50-13.6
(1973) (authorizing the award of attorneys’ fees in an action or proceeding for the custody or support of a minor child). Further, defendant’s argument could be equally applicable to a wealthy litigant in North Carolina, where attorneys’ fees and costs are regularly taxed to the losing party. SeeN.C. Gen. Stat. § 6-21.1
(2013) (allowing counsel fees as part of costs in certain cases); Bryson v. Cort,193 N.C. App. 532
,668 S.E.2d 84
(2008) (affirming an award of attorneys’ fees to prevailing party in a personal injury action); Robinson v. Shue,145 N.C. App. 60
, 550
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S.E.2d 830 (2001) (affirming an award of attorneys’ fees to prevailing party in an
automobile negligence action).
Despite the arguably large amount of the attorneys’ fees awarded in this case,
(£148,516.75), the Auditor indicated in the Scottish judgment that this award was
not “excessive,” particularly considering that this was the largest claim for support
ever made in Scotland under section 28(2)(a) of the Family Law (Scotland) Act of
2006. Both the statutory interpretation of the Recognition Act and the evidence in
the record support the trial court’s determination that the Scottish judgment is not
repugnant to North Carolina public policy. Accordingly, defendant’s argument is
overruled.
We hold that the trial court did not err in concluding that the Scottish
judgment is (I) not a judgment for alimony, support, or maintenance in matrimonial
or family matters, and (II) not repugnant to the public policy of North Carolina.
AFFIRMED.
Judges GEER and TYSON concur.
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