Hudson v. Hudson , 42 N.C. App. 647 ( 1979 )

MARTIN (Harry C.), Judge.

Defendant’s sole contention on appeal is that the trial court erred in awarding plaintiff attorney fees for legal services rendered on her behalf and on behalf of the children. This case involves actions for alimony, child custody and support, bringing it within the ambit of N.C.G.S. 50-13.6.

• Defendant contends this is not an action for custody and support because the court entered a consent order on the question of custody of the children before trial. The initiation of the action for the custody of the children placed the custody and welfare of the children with the court. Separation agreements or a consent judgment cannot “withdraw children of the marriage from the protective custody of the court.” Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E. 2d 487, 491 (1963). Even though parties may stipulate and agree as to the custody of minor children, such stipulations are not final and binding upon the court, and the court retains jurisdiction and authority to protect the interests and welfare of minor children. Fuchs v. Fuchs, supra; Finley v. Sapp, 238 N.C. 114, 76 S.E. 2d 350 (1953). Therefore, even after the agreement of the parties, this case remained one for custody and support.

The award of counsel fees in a custody and support action does not have to be supported by findings of fact. Stanback v. Stanback, 287 N.C. 448, 215 S.E. 2d 30 (1975); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E. 2d 178 (1977). An award of counsel fees in a custody and support action is within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of an abuse of discretion. N.C. Gen. Stat. 50-13.6; Stanback v. Stanback, supra. In an action solely for support, an award of counsel fees is not only limited by the abuse of discretion but also by the second provision of N.C.G.S. 50-13.6. Stanback v. Stanback, supra.

The trial judge exercised his discretion cautiously and carefully in reaching his decision, making findings of fact even though they were not required. We hold the trial judge did not abuse his discretion in the award of counsel fees. Although findings of fact are not required in an award for counsel fees in a custody and support action, it is considered to be the better practice to make such findings.

Even though not required, the findings of fact support the award for attorney fees. Specifically, the court found that after the defendant left the home of the parties he paid $834 per month for support of the three children and one year later he deliberately reduced this amount to $375 per month to compel plaintiff to bring legal action. This finding would allow a recovery for attorney fees in a support action under the following terms of N.C.G.S. 50-13.6: “Before ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding; . . Although the amount of child support is not before this Court, we consider the amount paid after the separation of the parties only for the purpose of the application of this statute. “What amount is reasonable for a child’s support is to be determined with reference to the special circumstances of the particular parties.” Williams v. Williams, 261 N.C. 48, 57, 134 S.E. 2d 227, 234 (1964). The amount of $375 per month was not adequate nor reasonable for children accustomed to residences in Durham, Southern Pines, a summer vacation home in Maine, trips, horses, country clubs, hunt clubs and private boarding schools. In this case, $375 per month child support was not commensurate with defendant’s financial condition and position in society. Williams v. Williams, supra. Under the circumstances existing at the time of the institution of this action, it is obvious that the amount of $375 was inadequate for the support of the three children.

The order awarding counsel fees is

Affirmed.

Judges PARKER and Erwin concur.