Forbes v. Forbes

WEBB, Judge. G.S. 50-13.6 provides that attorney fees may be awarded in a child custody or support action “to an interested party acting in good faith who has insufficient means to defray the expense of the suit.” The statute provides that in a support action the Court must also find before ordering payment of a counsel fee “that the [685] 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.” This provision does not apply to this action because it is one for both custody and support. It was error for the Court to hold it could not order the defendant to pay counsel fees. We do not believe this case is inconsistent with Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980) or Gibson v. Gibson, 68 N.C. App. 566, 316 S.E. 2d 99 (1984). In both those cases a spouse had asked for custody and support. In each case the custody was determined prior to the decision as to support and was not at issue when the matter of support was contested. No attorney fees were allowed in those cases because there was not a showing that the supporting party had refused to provide adequate support at the time the action for support was filed. In this case both custody and support were contested. The plaintiff was not deprived of the right to have attorney fees because the order for custody was entered before the order for support. Reversed and remanded. Judges Eagles and Cozort concur.