IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-487

No. COA20-165

Filed 21 September 2021

Mecklenburg County, No. 15CVD4500

NICOLE J. BLANCHARD, Plaintiff,

v.

DAVID M. BLANCHARD, Defendant.

Appeal by defendant from order entered 20 August 2019 by Judge Paige B. 

McThenia in District Court, Mecklenburg County. Heard in the Court of Appeals 26 

January 2021.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, Jonathan D. Feit and 

Haley E. White, for plaintiff-appellee.

Collins Family Law Group, 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 
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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 
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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 
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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 
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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; State v. Lea, 203 N.C. 316, 

166 S.E. 292; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 
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492; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; 

Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496.

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 
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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 appeal. N.C. 

Gen. Stat. § 1–294 (1983).

This logic was followed in the case of Gibbons v. Cole, 132 

N.C. App. 777, 782, 513 S.E.2d 834, 837 (1999). In that 

case, the trial court entered an order, dismissing plaintiff’s 

complaint. At the time of the hearing, defendants moved 

for an award of attorney’s fees and filed affidavits in 

support of the motion. The trial court in the written order 

of dismissal set a hearing on the motion for attorney’s fees 

for a later date, in order to allow plaintiffs an opportunity 
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to review and respond to the affidavits. Prior to the 

hearing on attorney’s fees, plaintiffs filed notice of appeal. 

A hearing was subsequently held, and attorney’s fees were 

awarded to defendants. We held that “the appeal by 

plaintiffs from the judgment on the pleadings deprived the 

superior court of the authority to make further rulings in 

the case until it returns from this Court.” Id.

There are several cases which appear to indicate a contrary 

result but are distinguishable. In In re Will of Dunn, 129 

N.C. App. 321, 500 S.E.2d 99 (1998), this Court held that 

in a will caveat case, the trial court could enter an award 

of attorney’s fees after the filing of notice of appeal, because 

the “decision to award costs and attorney’s fees was not 

affected by the outcome of the judgment from which 

caveator appealed[.]” Id. at 329, 500 S.E.2d at 104–05. 

This holding is restricted to caveat proceedings where the 

trial court has the discretion to award attorney’s fees as 

costs to attorneys for both sides. Id. at 330, 500 S.E.2d at 

105. In the case of Surles v. Surles, 113 N.C. App. 32, 437 

S.E.2d 661 (1993), the trial court orally announced its 

judgment in a child custody case in open court, expressly 

reserving the issue of attorney’s fees. Prior to the entry of 

a written judgment, one of the parties gave notice of 

appeal. Subsequently, the trial court conducted a hearing 

on a motion for attorney’s fees. Written orders on the 

custody matter and attorney’s fees were entered after the 

notice of appeal was filed. This Court held that the trial 

court “retained the authority to consider the issue since 

attorney’s fees were within the court’s ‘oral 

announcements’” and the written orders “conformed 

substantially” to those “oral announcements.” Id. at 43, 

437 S.E.2d at 667.

McClure, 185 N.C. App. at 469-70, 648 S.E.2d at 550-51 (emphasis added). 

¶ 11 In McClure, this Court stated as an additional basis for finding the trial court 

lacked jurisdiction to enter the order for attorney’s fees: “Further, the facts in 
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Gibbons are indistinguishable from the instant case.” Id. at 471, 648 S.E.2d at 551

(citing In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and holding 

this Court was bound by its earlier decision in Gibbons). In Gibbons, this Court held: 

Here, the trial court’s decision to award attorneys fees was 

clearly affected by the outcome of the judgment from which 

plaintiffs appealed. Accordingly, the appeal by plaintiffs 

from the judgment on the pleadings deprived the superior 

court of the authority to make further rulings in the case 

until it returns from this Court. G.S. 1–294; Oshita v. Hill, 

65 N.C. App. 326, 330, 308 S.E.2d 923, 927 (1983). We 

vacate the trial court’s award of attorneys fees and we 

remand to the trial court for further consideration 

regarding attorneys fees as the circumstances require.

Gibbons v. Cole, 132 N.C. App. 777, 782, 513 S.E.2d 834, 837 (1999) (emphasis added). 

Ultimately, the Court in McClure “reverse[d] the trial court’s order awarding plaintiff 

attorney’s fees for lack of jurisdiction” based on the fact that the underlying order was 

on appeal, and “the award of attorney’s fees was based upon the plaintiff being the 

‘prevailing party’ in the proceedings” so “the exception set forth in N.C. Gen. Stat. § 

1–294 [wa]s not applicable.” McClure, 185 N.C. App. at 469–72, 648 S.E.2d at 550–

52. However, as in Gibbons, the issue of attorney’s fees was “remand[ed] . . . to the 

superior court for consideration of the question of attorney’s fees consistent with this 

opinion”—i.e., pursuant to a statute falling within the exception granted in N.C. Gen. 

Stat. § 1–294. Id. at 472, 648 S.E.2d at 552.
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¶ 12 Husband interprets Balawejder as conflicting with McClure, but this Court in

Balawejder actually relied upon McClure in its analysis: “When, as in the instant 

case, the award of attorney’s fees was based upon the plaintiff being the ‘prevailing 

party’ in the proceedings, the exception set forth in N.C. Gen. Stat. § 1–294 is not

applicable.” Balawejder, 216 N.C. App. at 320, 721 S.E.2d at 690 (emphasis added) 

(citing McClure, 185 N.C. App. at 471, 648 S.E.2d at 551). Conversely, when an 

award of attorney’s fees will not be affected by the ultimate decision in the appeal of 

the underlying action, no matter which party prevails nor how the issues are decided, 

the exception in N.C. Gen. Stat. § 1–294 is applicable, and jurisdiction to decide the 

issue of attorney’s fees remains with the trial court—without regard to the appellate 

status of the underlying substantive ruling of the trial court. N.C. Gen. Stat. § 1–

294; McClure, 185 N.C. App. at 471, 648 S.E.2d at 551. Of course, McClure predates 

Balawejder, as do Dunn, Gibbons, and other opinions decided consistent with the 

plain language in N.C. Gen. Stat. § 1–294. The clear precedent demonstrates that 

the trial court is not divested of jurisdiction if the award of attorney’s fees is not 

dependent upon the outcome of the appeal of the rulings on the substantive issues. 

See Swink v. Weintraub, 195 N.C. App. 133, 160, 672 S.E.2d 53, 70 (2009).

¶ 13 We also note Balawejder had some procedural irregularities and defects in the 

record and the specific statutory and factual basis for the award of attorney’s fees in 

Balawejder was not noted in our opinion and, therefore, could not have been a factor 
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in this Court’s analysis and decision in that opinion. See generally Balawejder, 216 

N.C. App. 301, 721 S.E.2d 679. In Balawejder, the trial court’s order addressed issues 

of modification of child custody and child support but, as noted, the basis upon which 

the trial court ordered the attorney’s fees is not identified in the opinion. Id. at 304, 

721 S.E.2d at 681. In addition, the plaintiff in Balawejder claimed to be appealing 

from a “‘Memorandum of Judgment/Order entered by Rebecca Thorn Tin, District 

Court Judge, entered on July 2010 [sic] that awarded Defendant attorney’s fees in 

this Matter,’” but no such order was included in the record. Id. at 319, 721 S.E.2d at

690. Instead, the record included an attorney’s fees order entered on 1 October 2010, 

from which the plaintiff had not given proper notice of appeal. Id. Nonetheless, the 

Balawejder Court stated that the award of attorney fees in that case was based upon 

the plaintiff being the “prevailing party.” Id. at 320, 721 S.E.2d at 690. This Court’s 

decision in Balawejder—holding that if the award of attorney’s fees is predicated on 

the party to whom the fees were awarded prevailing on appeal, the exception to the 

general rule, both of which are set forth in N.C. Gen. Stat. § 1–294, does not apply—

is consistent with the analyses in McClure and other cases cited above. Id. Having 

found that the basis for the award of attorney’s fees in Balawejder was dependent on 

the outcome of the appeal from the underlying substantive order, this Court further 

determined, in accordance with N.C. Gen. Stat. § 1–294, that the trial court had been 

divested of jurisdiction by the appeal of that prior order. Id. 
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¶ 14 We hold “under the controlling reasoning of McClure, Gibbons, [] Brooks,” Safie 

Mfg. Co., Herring, Hinson, Green, Cox, and other opinions herein cited, that it is only

when “an award of costs is directly dependent upon whether the judgment is 

sustained on appeal[,]” that, under N.C. Gen. Stat. § 1–294, the “trial court lacks 

jurisdiction to enter an award of costs . . . once notice of appeal has been filed as to 

the [underlying] judgment.” Swink, 195 N.C. App. at 160, 672 S.E.2d at 70. 

Therefore, the question relevant to the analysis in this case is whether the award of 

attorney’s fees to Mother under N.C. Gen. Stat. § 50-13.6 constituted a “matter 

included in the action and not affected by the judgment appealed from.” N.C. Gen. 

Stat. § 1-294. Nothing in the plain language of the statute suggests a determination 

that an interested party has acted in good faith or has insufficient means to cover the 

costs associated with the action are determinations contingent on the ultimate 

outcome of an appeal, by either party, from the underlying judgment. Id. In prior 

cases, awards of attorney’s fees under N.C. Gen. Stat. § 50-13.6 have been upheld 

even for the party who did not prevail at trial. See Burr v. Burr, 153 N.C. App. 504, 

570 S.E.2d 222 (2002). For example, in Burr, this Court affirmed in part an order 

awarding attorney’s fees to the defendant, who was not the prevailing party. Id. at 

506, 570 S.E.2d at 224. In Burr, the trial court awarded custody to the plaintiff and 

ordered the defendant to pay child support, but also ordered plaintiff, the prevailing 

party, to pay defendant’s attorney fees as to the child custody and support claims. Id.
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at 506–07, 570 S.E.2d at 224.

¶ 15 Burr helps demonstrate that the clear intent of N.C. Gen. Stat. § 50-13.6 is to 

allow the trial court the discretion to ensure one parent in a custody action will not 

have an inequitable advantage over the other parent—based upon a parent’s inability 

to afford qualified counsel. See Id. at 506, 570 S.E.2d at 224. North Carolina General 

Statute § 50-13.6 concerns leveling the field in a custody action by ensuring each 

parent has competent representation. N.C. Gen. Stat. § 50-13.6. The trial court’s 

authority to award attorney’s fees under N.C. Gen. Stat. § 50-13.6 does not depend 

upon who “wins” any particular ruling in a custody proceeding. See Burr, 153 N.C. 

App. at 506, 570 S.E.2d at 224 (“Plaintiff here argues that because defendant did not 

prevail at trial, the award of attorney’s fees to defendant was improper. We 

disagree.”). This Court in Burr, citing our Supreme Court, recognized two findings 

the trial court must make to award attorney’s fees under N.C. Gen. Stat. § 50-13.6:

Th[e] award of attorney’s fees is not left to the court’s 

unbridled discretion; it must find facts to support its 

award. See Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 

30 (1975), Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 

(1980). Specifically, the trial court was required to make 

two findings of fact: that the party to whom attorney’s fees 

were awarded was (1) acting in good faith and (2) has 

insufficient means to defray the expense of the suit. 

Hudson, 299 N.C. at 472, 263 S.E.2d at 723. “When the 

statutory requirements have been met, the amount of 

attorney’s fees to be awarded rests within the sound 

discretion of the trial judge and is reviewable on appeal 

only for abuse of discretion.” Hudson, 299 N.C. at 472, 263 
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S.E.2d at 724.

Burr, 153 N.C. App. at 506, 570 S.E.2d at 224.

¶ 16 In Wiggins, the plaintiff argued that, after the appeal of the order denying the 

plaintiff’s motion for civil contempt in a custody action, the trial court was without 

jurisdiction to order attorney’s fees under N.C. Gen. Stat. § 50-13.6, “because [the] 

defendant was not both the moving and prevailing party[.]” Wiggins, 198 N.C. App. 

at 696, 679 S.E.2d at 877. This Court concluded: 

If the proceeding is one covered by N.C. Gen. Stat. § 50-

13.6, as is the case here, and the trial court makes the two 

required findings regarding good faith and insufficient 

means, then it is immaterial whether the recipient of the 

fees was either the movant or the prevailing party. Thus, 

we hold the trial court had statutory authority to award 

fees to defendant in this case.

Id. at 696–97, 679 S.E.2d at 877 (emphasis added). 

¶ 17 In this case, the trial court made extensive findings of fact in the Fee Order, 

which are not challenged by Father, and thus binding on appeal. In re Schiphof, 192 

N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008). The trial court also made the 

following unchallenged ultimate findings and conclusions, which are supported by 

the findings of fact:

Pursuant to N.C.G.S. § 50-13.6 and applicable North 

Carolina case law, []Mother is an interested party, acting 

in good faith, and lacks sufficient means to fully defray the 

costs of litigation in relation to her Motion for Contempt, 

and she therefore is entitled to an award of attorney’s fees 
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incurred in connection with her Motion for Contempt.

¶ 18 None of the necessary findings made by the trial court were dependent on 

Mother’s success at trial, and none will be affected by our decisions in Father’s appeal 

of the underlying custody order in COA19-866. Since the award of attorney’s fees in 

the Fee Order was not dependent upon the outcome of the contempt proceeding in the

underlying custody action, Father’s appeal of the Custody Order in COA19-866 did 

not divest the trial court of jurisdiction to enter the Fee Order granting Mother 

attorney’s fees under N.C. Gen. Stat. § 50-13.6. N.C. Gen. Stat. § 1-294; N.C. Gen. 

Stat. § 50-13.6; Burr, 153 N.C. App. at 506, 570 S.E.2d at 224; Wiggins, 198 N.C. App. 

at 696–97, 679 S.E.2d at 877. The trial court, having retained jurisdiction to award 

Mother attorney’s fees under N.C. Gen. Stat. § 50-13.6, even after the appeal in 

COA19-866 was filed and perfected, conducted a hearing and entered the Fee Order 

including the unchallenged ultimate findings and conclusions that Mother, an 

interested party, acted in good faith and lacked sufficient means to defray the costs 

of litigation. These findings were sufficient to support the award of attorney’s fees 

under N.C. Gen. Stat. § 50-13.6. For the reasons discussed above, we hold that the 

trial court had jurisdiction to enter an award of attorney’s fees under N.C. Gen. Stat. 

§ 50-13.6 after Father appealed the order in COA19-866, and Father fails to 

demonstrate any error in the Fee Order. We therefore affirm.

AFFIRMED.
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Judges ZACHARY and GORE concur.