How exactly can a client recover for attorney’s fees expended on appeal? The Court of Appeals provided some clarity on this question today, at least in the family law context.

The central issue in McKinney v. McKinney was whether a trial court has the authority to award attorney’s fees upon remand from the Court of Appeals if the motion for fees was not made before the appellate court. The short answer: yes, at least in matters of child custody, child support, and alimony.

The case originally involved a motion to modify child support. After the trial court granted the motion, the plaintiff sought and obtained an award of attorney’s fees. The defendant appealed the attorney’s fees award, and the court of appeals mostly affirmed the award from the proceedings below but vacated one portion of the award.

On remand, the plaintiff sought additional attorney’s fees for costs incurred in defending the appeal, and the trial court awarded $25,980.51 in fees. The defendant challenged the award, arguing that the only proper way to obtain attorney’s fees for appellate-level work is to first move in the Court of Appeals for fees.

The Court of Appeals disagreed for two reasons. First, the fact that the Court of Appeals had been silent on the question of appellate attorney’s fees after the first appeal was irrelevant because the issue simply had not been raised at that time—the court of appeals’ first opinion only addressed the trial-level attorney’s fees that had already been awarded. Second, the trial court had the authority to award appellate attorney’s fees because the child support statute gives broad discretion to the trial court in awarding fees.

To be sure, the McKinney court limited its holding to the family law context. But it is hard to see how the holding would not apply more broadly whenever there is a statutory grant of discretion to a trial court to award fees. In other words, under the logic of McKinney, it would appear that whenever a trial court has statutory authority to award attorney’s fees, it may do so for trial and appellate proceedings, regardless of whether the issue is raised in the Court of Appeals or simply raised in the trial court after the mandate issues.

This case is an interesting follow-up to the opinion released two weeks ago discussing a related issue.  Furthermore, note that the proper procedure is different when the attorney’s fees are sought under Rule 34 of the North Carolina Rules of Appellate Procedure. In that situation, only the appellate court has the authority to award fees. See Hill v. Hill, 173 N.C. App. 309, 622 S.E.2d 503 (2005).

Finally, I would be remiss if I failed to highlight a few other cautionary lessons from the Court of Appeals today:

  • First, do not forget to make transcripts part of the record on appeal if you intend to rely on anything contained in the transcripts. See Breede v. Breede (in which the court said it would not consider cited portions of a transcript).
  • Second, do not forget to double-check and triple-check the deadline for filing the notice of appeal. See Rider v. Aderhold (in which the notice of appeal was filed one day late).
  • Third, do not forget to limit a reply brief to issues newly raised by the appellee. See Salmony v. Bank of Am. Corp. (in which the court granted a motion to strike the plaintiffs’ reply brief).

–Kip Nelson