Blanchard v. Blanchard

865 S.E.2d 686

Nicole J. BLANCHARD, Plaintiff,

v.David M. BLANCHARD, Defendant.

No. COA20-165

Court of Appeals of North Carolina.

Filed September 21, 2021

James, McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan D. Feit, Charlotte, and Haley E. White, for plaintiff-appellee.

Collins Family Law Group, Monroe, by Rebecca K. Watts, for defendant-appellant.

STROUD, Chief Judge.

I. Procedural and Factual Background

¶ 1 More detailed facts of this case can be found in this Court's opinion in COA19-866, Blanchard v. Blanchard , filed concurrently with this opinion. We will repeat some of the background when relevant to this opinion. David M. Blanchard ("Father") and Nicole J. Blanchard ("Mother") were married and had three children. Father and Mother separated on 2 March 2015, and Mother filed a complaint including a claim for custody of the children on 5 March 2015. A consent order resolving custody issues was entered on 6 November 2015 (the "Custody Order"), but Mother alleged that Father was not complying with certain provisions of the Custody Order, and she filed a "Motion for Contempt" (the "Contempt Motion") on 3 January 2019. Mother's Contempt Motion also requested an award of attorney's fees. The trial court found Father to be in violation of the Custody Order by an order for civil contempt entered 2 April 2019 (the "Contempt Order"). The Contempt Order reserved the issue of attorney's fees to be heard at a later date. Father filed a notice of appeal from the Contempt Order on 10 April 2019, which was later perfected—that appeal is COA19-866, which we resolve and file concurrently with this opinion.

¶ 2 On 17 June 2019, the trial court held a hearing on the issue of attorney's fees. Father argued that his appeal in COA19-866 had divested the trial court of jurisdiction to hear the matter. After reviewing briefs on this issue from both parties, the trial court determined it was not divested of jurisdiction to rule on the request for attorney's fees. By order entered 20 August 2019 (the "Fee Order"), the trial court ordered Father to pay reasonable attorney's fees Mother had incurred as a result of the contempt action. Father appealed the Fee Order by filing a notice of appeal on 25 September 2019.

II. Analysis

¶ 3 In Father's sole argument, he contends his 10 April 2019 appeal from the Custody Order, COA19-866, divested the trial court of jurisdiction to consider the issue of attorney's fees during the pendency of the appeal in COA19-866. Father further contends that because the trial court lacked jurisdiction to enter the Fee Order, the Fee Order is void and must be vacated. We disagree.

¶ 4 Father frames the issue before us as follows:

The question presented by this appeal is whether during the pendency of an appeal of a civil contempt order in a custody case the trial court is divested of jurisdiction to hear an N.C. Gen. Stat. § 50-13.6 (2017) attorney fee claim for time spent litigating the custody contempt matter.

Father therefore acknowledges that the attorney's fees were granted to Mother under N.C. Gen. Stat. § 50-13.6.

¶ 5 Father primarily argues that a holding in Balawejder v. Balawejder , 216 N.C. App. 301, 721 S.E.2d 679 (2011), compels this Court to vacate the Fee Order as void for lack of subject matter jurisdiction. Mother contends that Balawejder was decided contrary to the prior established precedent of our appellate courts and, therefore, does not control on the issue before us. Father agrees that if two opinions are directly conflicting on an issue, the earlier opinion controls and, as to the relevant issue, the reasoning and holdings of the later opinion would be a nullity.

¶ 6 Both parties cite Huml v. Huml , 264 N.C. App. 376, 826 S.E.2d 532 (2019), acknowledging "that if there is a conflicting line of cases, this Court" is "bound to follow" "the older of the two cases." In Huml , this Court held:

Where there is a conflict in cases issued by this Court addressing an issue, we are bound to follow the "earliest relevant opinion" to resolve the conflict:

Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. Further, our Supreme Court has clarified that, where there is a conflicting line of cases, a panel of this Court should follow the older of those two lines. With that in mind, we find Skipper and Vaughn are irreconcilable on this point of law and, as such, constitute a conflicting line of cases. Because Vaughn is the older of those two cases, we employ its reasoning here.

State v. Gardner , 225 N.C. App. 161, 169, 736 S.E.2d 826, 832 (2013) (citations and quotation marks omitted).

Huml , 264 N.C. App. at 395, 826 S.E.2d at 545 ; see also Graham v. Deutsche Bank Nat. Tr. Co. , 239 N.C. App. 301, 306–07, 768 S.E.2d 614, 618 (2015). Therefore, if we determine that an earlier opinion of this Court, or any opinion from our Supreme Court, directly conflicts with the relevant holdings in Balawejder , we must reject the conflicting holding(s) found in Balawejder and follow the controlling precedent. But we must first determine if the holding in Balawejder actually conflicts with any prior opinions of this Court, or any opinions of our Supreme Court.

¶ 7 In order to undertake this analysis, we first consider the statutes relevant to Father's arguments, as the trial court's jurisdiction to consider statutory relief is granted by the General Assembly, and determined by this Court upon review by first considering the language used by the General Assembly. N.C. Gen. Stat. § 50-13.6 states in relevant part:

In an action or proceeding for the custody ... of a minor child ... 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.

N.C. Gen. Stat. § 50-13.6 (2017) (emphasis added).

¶ 8 Father contends that the requirements of N.C. Gen. Stat. § 1-294 (2017) divested the trial court of jurisdiction to consider attorney's fees under N.C. Gen. Stat. § 50-13.6 and, therefore, the Fee Order is void for lack of subject-matter jurisdiction. N.C. Gen. Stat. § 1-294 states: "When an appeal is perfected ... it stays all further proceedings in the court below upon the judgment appealed from, ... but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from." N.C. Gen. Stat. § 1-294 (2017).

¶ 9 The issue of the subject matter jurisdiction retained by the trial court when one of its orders or judgments in an action is appealed is not new to the appellate courts of this state, as noted in this statement by our Supreme Court of the general rule:

An appeal from a judgment rendered in the Superior Court takes the case out of the jurisdiction of the Superior Court. Thereafter, pending the appeal, the judge is functus officio. Bledsoe v. Nixon , 69 N.C. 81 [(1873)] ; State v. Lea , 203 N.C. 316, 166 S.E. 292 [(1932)] ; Vaughan v. Vaughan , 211 N.C. 354, 190 S.E. 492 [(1937)] ; Ridenhour v. Ridenhour , 225 N.C. 508, 35 S.E.2d 617 [(1945)] ; Lawrence v. Lawrence , 226 N.C. 221, 37 S.E.2d 496 [(1946)].

Hoke v. Greyhound Corp. , 227 N.C. 374, 375, 42 S.E.2d 407, 408 (1947) (some citations omitted): see also McClure v. Cty. of Jackson , 185 N.C. App. 462, 469, 648 S.E.2d 546, 550 (2007). However, the general rule has clear statutory exceptions, including the exception in N.C. Gen. Stat. § 1-294. McClure , 185 N.C. App. at 471, 648 S.E.2d at 551.

¶ 10 In McClure , this Court addressed an order for attorney's costs and attorney's fees based upon " N.C. Gen. Stat. §§ 6–1, 6–20, 6–19.1 and 7A–314" and "the Open Meetings Law, N.C. Gen. Stat. § 143–318.16B." McClure , 185 N.C. App. at 466, 648 S.E.2d at 548. Under the relevant statutes in McClure , attorney's fees could only be awarded to the "prevailing party." N.C. Gen. Stat. § 6-1 (2019) (noting attorney's fees may be awarded "[t]o the party for whom judgment is given"); N.C. Gen. Stat. § 6-19.1 (2019) ("[T]he court may, in its discretion, allow the prevailing party to recover reasonable attorney's fees[.]"); N.C. Gen. Stat. § 143-318.16B (2019) (noting the trial court "may award the prevailing party or parties a reasonable attorney's fee"); see also Lee Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 13, 545 S.E.2d 745, 752 (2001) ("[S]ection 6–20 does not authorize a trial court to include attorney's fees as a part of the costs awarded under that section, unless specifically permitted by another statute."); N.C. Gen. Stat. § 7A-314 (2019) (controlling "fees for "experts" and other "witnesses[,]" not attorney's fees). The Court in McClure discussed the application of N.C. Gen. Stat. § 1-294 in this context:

The question of whether the trial court had jurisdiction to decide the issue of attorney's fees is addressed by N.C. Gen. Stat. § 1–294, the pertinent portion of which reads:

When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

....

This Court has dealt in a number of cases with the question of whether a trial court has jurisdiction to enter an award of attorney's fees following the filing of notice of appeal. In Brooks v. Giesey , 106 N.C. App. 586, 590–91, 418 S.E.2d 236, 238 (1992), this Court stated that:

Under a statute such as section 6–21.5, which contains a "prevailing party" requirement, the parties should not be required to litigate fees when the appeal could moot the issue. Furthermore, upon filing of a notice of appeal, a trial court in North Carolina is divested of jurisdiction with regard to all matters embraced within or affected by the judgment which is the subject of the

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