IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-514

Filed: 21 April 2020

Mitchell County, No. 16CVD131

KARA ANN SULLIVAN (formerly Woody), Plaintiff,

v.

SCOTT NELSON WOODY, Defendant,

and

E. LYNN WOODY and JAMES NELSON WOODY, Intervenors.

Appeal by intervenors from judgment entered 12 September 2018 by Judge 

Rebecca Eggers-Gryder in Mitchell County District Court. Heard in the Court of 

Appeals 31 March 2020.

Jackson Family Law, by Jill S. Jackson, for plaintiff-appellee.

Scott Nelson Woody, pro se, defendant-appellee.

Arnold & Smith, PLLC, by Matthew R. Arnold and Ashley A. Crowder, for 

intervenors-appellants.

BERGER, Judge.

E. Lynn Woody and James Nelson Woody (collectively, “Intervenors”) appeal 

from an order entered September 12, 2018, which found Intervenors jointly liable

with Scott Nelson Woody (“Defendant”) for the attorneys’ fees of Kara Ann Sullivan 

(“Plaintiff”). On appeal, Intervenors argue, among other things, that the trial court 

erred (1) when it made an award of attorneys’ fees against Intervenors; and (2) when 
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it found Intervenors liable for attorneys’ fees unrelated to their involvement in the 

custody action. Although the trial court was statutorily authorized to make an award 

of attorneys’ fees against Intervenors, we conclude that the trial court failed to make 

requisite findings. Therefore, we reverse and remand for the trial court to make 

additional findings of fact. Because we conclude the trial court failed to make those

findings necessary for the fees awarded, we need not address Intervenors’ additional 

assignments of error, all of which relate to the award. 

Factual and Procedural Background

This appeal arises from a heavily litigated child custody dispute that has now 

stretched on for more than three and a half years. Plaintiff and Defendant were 

married on May 12, 2006. Plaintiff filed a complaint seeking temporary and 

permanent custody of a minor child, child support, and attorneys’ fees on June 17, 

2016. Plaintiff and Defendant were not separated when the complaint was originally 

filed. The parties subsequently divorced. 

On August 21, 2016, Intervenors, who are the parents of Defendant and 

grandparents of the minor child, filed a motion to intervene. The trial court granted 

Intervenors’ motion on October 31, 2016. On December 5, 2016, Intervenors filed a 

complaint seeking temporary and permanent visitation rights and attorneys’ fees. 

Plaintiff filed an answer to Intervenors’ complaint on February 8, 2017.
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Before the matter was called for trial, Plaintiff and Defendant stipulated that 

Plaintiff was a fit and proper parent and that it would be in the best interest of the 

minor child to reside with Plaintiff, who would have legal and physical custody of the 

minor child. A trial was held on the remaining issues in the case—including 

Defendant’s visitation rights, Intervenors’ visitation rights, and Plaintiff’s claim for 

attorney’s fees—over six days between March 28, 2018 and August 31, 2018. 

On September 12, 2018, the trial court entered a final order in the case. 

Pursuant to the final order, the trial court granted Intervenors visitation rights with 

the minor child. The trial court also ordered that Defendant and Intervenors were to 

be jointly liable for Plaintiff’s attorneys’ fees in the amounts of $12,720.00 and 

$74,491.50. 

Intervenors filed a Notice of Appeal on October 4, 2018. On appeal, Intervenors

contend, among other things, that the trial court erred (1) when it made an award of 

attorneys’ fees against Intervenors; and (2) when it found Intervenors liable for 

attorneys’ fees unrelated to their involvement in the custody action. 

Analysis

I. Statutory Authorization for Attorney Fees

Intervenors first argue that the trial court erred as a matter of law in making 

an award of Plaintiff’s attorneys’ fees against Intervenors. Specifically, Intervenors 

argue that the trial court erred by interpreting Section 50-13.6 of the North Carolina 
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General Statutes to allow an award of attorney fees against intervening 

grandparents. We disagree.

We review a trial court’s statutory interpretation de novo. Dion v. Batten, 248 

N.C. App. 476, 485, 790 S.E.2d 844, 851 (2016). “Statutory interpretation begins with 

the plain meaning of the words of the statute.” Id. at 485, 790 S.E.2d at 851 (citation 

omitted).

As a general matter, North Carolina law does not permit a trial court to award 

attorney fees unless such fees are specifically authorized by statute. Wiggins v. 

Bright, 198 N.C. App. 692, 695, 679 S.E.2d 874, 876 (2009). Under Section 50-13.6, 

in any “action or proceeding for the custody or support” 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 (2019). “Custody” is defined by Section 50-13.1(a) to 

include “custody or visitation or both” unless the General Assembly’s contrary intent 

is clear from the statutory scheme. N.C. Gen. Stat. § 50-13.1(a) (2019).

Under Section 50-13.2(b1), “[a]n order for custody of a minor child may provide 

visitation rights for any grandparent of the child as the court, in its discretion, deems 

appropriate.” N.C. Gen. Stat. § 50-13.2(b1) (2019). To qualify for visitation rights 

under this section, the grandparent must have a substantial relationship with the 

minor child. N.C. Gen. Stat. § 50-13.2(b1). 
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Accordingly, under the plain language of this statutory scheme, an action by 

intervening grandparents for visitation rights under Section 50-13.2(b1) qualifies as 

an action for “custody” by operation of Section 50-13.1(a).

In McIntyre v. McIntyre, our Supreme Court analyzed Section 50-13.2(b1), and 

its sister sections, to conclude that grandparents have no “right to visitation when 

the natural parents have legal custody of their children and are living with them as 

an intact family.” McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995)

(citation omitted). Within this context, our Supreme Court determined that 

“[r]eading [Section] 50-13.1(a) in conjunction with [Section] 50-13.2(b1) . . . strongly 

suggests that the legislature did not intend ‘custody’ and ‘visitation’ to be interpreted 

as synonymous in the context of grandparents’ rights.” Id. at 634-35, 461 S.E.2d at 

749. As a result, our Supreme Court held that the trial court had no jurisdiction to 

hear a complaint for visitation by grandparents when the parents themselves were 

not disputing custody. Id. at 635, 461 S.E.2d at 750. 

However, our Supreme Court’s analysis in McIntyre did not address Section 

50-13.6 and is not controlling in this case. Since McIntyre, our Court has had the 

opportunity to examine whether “custody” and “visitation” are synonymous within 

the context of awarding attorney fees to an intervening grandparent under Section 

50-13.6. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009). 
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In Barbour, a minor child’s grandparents intervened during a custody dispute 

between parents to secure visitation rights with the minor child. Id. at 248, 671 

S.E.2d at 581. The trial court ultimately concluded that it was in the best interests 

of the child for the parents to have joint legal and physical custody and the 

grandparents to have specified visitation privileges. Id. at 248, 671 S.E.2d at 582. 

The trial court also ordered the minor child’s father to pay $40,000.00 of the attorney 

fees expended by the grandparents in securing visitation. Id. at 254, 671 S.E.2d 585. 

On appeal, our Court upheld the award to the intervening grandparents under 

Section 50-13.6. Id. at 255, 671 S.E.2d at 586. Accordingly, this Court has 

determined that an action by intervening grandparents to secure visitation rights 

qualifies as an “action or proceeding for the custody or support” of a minor child for 

purposes of Section 50-13.6.

Here, the trial court’s order cited our Court’s holding in Barbour and concluded

that “[i]f intervenors can ask for and receive attorney’s fees, then they can also pay 

attorney’s fees.” We agree. If an action by intervening grandparents to secure 

visitation rights falls within the scope of Section 50-13.6 as an “action or proceeding 

for the custody or support, or both, of a minor child” for the purposes of awarding 

attorney fees to the grandparents, then such an action must also fall within the scope 

of the statute for the purposes of ordering the grandparents to pay fees. See id. at 

255, 671 S.E.2d at 586. 
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Therefore, we conclude that an award of attorney fees could be made against 

Intervenors under Section 50-13.6 because an action by intervening grandparents for 

visitation is one for “custody or support” by operation of Section 50-13.1(a). See N.C. 

Gen. Stat. § 50-13.1(a) (defining “custody” to include “custody or visitation or both” 

unless the General Assembly’s contrary intent is clear). As such, the trial court 

properly concluded that an award of attorneys’ fees against grandparents seeking 

visitation rights was authorized by Section 50-13.6.

II. Amount of Attorneys’ Fees Awarded to Plaintiff 

Intervenors next contend that the trial court erred as a matter of law when it 

made Intervenors jointly liable for attorneys’ fees that did not arise from Intervenors’

claim. We agree that the trial court failed to make some of the reasonableness 

findings necessary to calculate the award of attorneys’ fees against Intervenors. 

Therefore, we reverse and remand for the trial court to make appropriate factual 

findings regarding the costs incurred by Plaintiff in defending against Intervenors’

visitation claim.

Attorney fees can only be awarded in a custody proceeding where the trial court 

has made adequate findings of fact that the moving party acted in good faith and had 

insufficient means to defray the expense of the suit. N.C. Gen. Stat. § 50-13.6; Cox v. 

Cox, 133 N.C. App. 221, 227-28, 515 S.E.2d 61, 66 (1999). Additionally, “[b]ecause 

[Section] 50-13.6 allows for an award of reasonable attorney’s fees, cases construing 
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the statute have in effect annexed an additional requirement concerning 

reasonableness onto the express statutory ones.” Cobb v. Cobb, 79 N.C. App. 592, 

595, 339 S.E.2d 825, 828 (1986) (emphasis in original) (citation omitted). The record 

must also contain “additional findings of fact upon which a determination of the 

requisite reasonableness can be based, such as findings regarding the nature and 

scope of the legal services rendered, the skill and time required, the attorney’s hourly 

rate, and its reasonableness in comparison with that of other lawyers.” Id. at 595-96, 

339 S.E.2d at 828 (citations omitted). “Whether these statutory requirements are 

met is a question of law, reviewable on appeal.” Cox, 133 N.C. App. at 228, 515 S.E.2d 

at 66 (citations omitted). This Court reviews questions of law de novo. Green v. Green, 

255 N.C. App. 719, 724, 806 S.E.2d 45, 49 (2017).

In the instant case, the trial court’s findings support Plaintiff’s good faith and 

that Plaintiff had insufficient means to defray the expense of this heavily litigated 

child custody dispute. The trial court also made extensive findings concerning the 

nature of the legal services rendered, the hourly rates of Plaintiff’s attorneys, and the 

reasonableness of those rates. However, the trial court failed to make the findings of 

fact necessary for a determination regarding what amount of Plaintiff’s attorneys’

fees were reasonably incurred as the result of litigation by Intervenors, as opposed to 

litigation by Defendant. 
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Despite Intervenors arguing in opposition to the award that they should not be 

held responsible for those fees unrelated to their claim for visitation, the trial court 

failed to make those findings required by our precedent concerning (1) the scope of 

legal services rendered by Plaintiff’s attorneys in defending against Intervenors’

visitation claim, or (2) the time required of Plaintiff’s attorneys in defending against 

that claim. Rather, the trial court’s findings broadly relate to Plaintiff’s attorneys’

fees associated with the entire action—including those claims brought by Defendant, 

to which Intervenors were not parties.

Plaintiff has cited no authority, and we are aware of none, holding that 

intervenors may be held liable for attorneys’ fees incurred as the result of claims or 

defenses they did not assert simply because they paid the opposing party’s attorney

fees.

Because the trial court failed to make the requisite reasonableness findings to 

make an award of attorneys’ fees against Intervenors under Section 50-13.6, we must 

reverse and remand for additional findings of fact. See Cobb, 79 N.C. App. at 595-96, 

339 S.E.2d at 828.

Conclusion

For the reasons stated herein, the trial court was statutorily authorized to 

make an award of attorneys’ fees against Intervenors. However, we reverse and 
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remand for additional findings concerning the reasonableness of a fee award against 

Intervenors.

REVERSED AND REMANDED.

Chief Judge McGEE and Judge INMAN concur.