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Tag: findings of fact
  • Attorney Fees in Child Custody Actions

    As I mentioned in an earlier post, parties to civil actions are responsible for paying their own attorneys’ fees unless a statute specifically permits fee shifting.  In child custody actions, G.S. 50-13.6 allows a court to shift some or all of one party’s fees to the other party under certain circumstances.  The statute provides that:

    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 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.

    If the grounds for entitlement are met, awarding the fee is still in the court’s discretion, as is the amount awarded. Our courts have made clear, however, that fee orders will be remanded if they do not include specific findings of fact as to both entitlement and reasonableness. I discuss the required findings below.

    Policy.  The purpose of the fee-shifting provision in 50-13.6 is not to act as sanction against the party ordered to pay the other’s fees.  Instead, it is to help level the playing field for a party at a financial disadvantage in litigating custody of a child.  As our Supreme Court has said, the statute helps make it possible for a party “to employ adequate counsel to enable [him or her], as litigant, to meet [the other party] in the suit.” Taylor v. Taylor, 343 N.C. 50 (1996).  For this reason, fee eligibility does not depend on the outcome of the case. Fees are available even to a party who does not prevail, as long as he or she participated in good faith.  Hausle v. Hausle, 226 N.C. App. 241 (2013). Continue Reading

  • Do I Need to Include Findings of Fact in this Order?

    When must a civil order include specific findings of fact and conclusions of law?  Some types of orders must always include at least some findings; some orders need only include them if a party asks for them; and for other orders, findings of fact are inappropriate whether requested or not.  Rule 52 of the North Carolina Rules of Civil Procedure gives us the core rules, but exceptions and clarifications abound.  And, of course, some types of orders are governed by separate, more specific statutes.  Here are the fundamentals: Continue Reading

  • N.C. Court of Appeals: Disposition Orders Do Not Require Written Findings on the G.S. 7B-2501(c) Factors

    In multiple cases, the Court of Appeals has found reversible error when a trial court has entered a disposition in a delinquency case without including written findings on the factors set out in G.S. 7B-2501(c). The number and frequency of reversals on this ground has even caused the State to concede error on appeal. See, e.g., In re V.M., 211 N.C. App. 389, 391 (2011). Yesterday, the court surprisingly changed course in a published decision, In re D.E.P., __ N.C. App. __ (Feb. 7, 2017), which held that the Juvenile Code does not require the trial court to “make findings of fact that expressly track[] each of the statutory factors listed in [G.S.] 7B-2501(c).” The decision raises some obvious questions. Can one panel of the Court of Appeals overrule another on the same issue? And, how will future cases be impacted? Continue Reading

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