Brent C. Bousman v. Caitlin K. Lhommedieu ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED
BRENT C. BOUSMAN
MEMORANDUM OPINION*
v. Record No. 1102-13-4 PER CURIAM
NOVEMBER 26, 2013
CAITLIN K. LHOMMEDIEU
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael F. Devine, Judge
(K. Stewart Evans, Jr.; EvansStarrett PLC, on briefs), for appellant.
(Stephen G. Cochran; Roeder, Cochran & Haight, PLLC, on brief),
for appellee.
This is the fourth time that these parties have appeared in this Court since 2011. In the first
appeal, Bousman v. Lhommedieu, No. 0932-11-4 (Va. Ct. App. Jan. 24, 2012) (Bousman I), we
affirmed the trial court’s enforcement of a provision of the parties’ settlement agreement requiring
Bousman to pay half of his son’s college expenses. In the second appeal, Bousman v.
Lhommedieu, No. 1109-12-4 (Va. Ct. App. Mar. 19, 2013) (Bousman II), we affirmed the trial
court’s finding that Bousman was in contempt of court for refusing to pay the attorney’s fees as
ordered by the trial court. In the third appeal, Bousman v. Lhommedieu, No. 2289-12-4
(Va. Ct. App. July 9, 2013) (Bousman III), we affirmed the trial court’s holding that the court had
no authority to judicially modify the parties’ settlement agreement with respect to their son’s college
expenses. The present case arises from Bousman II and this Court’s award of appellate attorney’s
fees and costs awarded to Lhommedieu. On remand, the trial court awarded $26,138.50 to
Lhommedieu, which represented her “reasonable attorneys’ fees and costs for the appeal . . . .”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Bousman argues that the trial court erred by (1) entering its May 20, 2013 order awarding
attorney’s fees and costs to Lhommedieu because the trial court did not have jurisdiction to enter the
April 28, 2011 order and subsequent related orders; (2) awarding $26,138.50 to Lhommedieu
because she failed to meet her burden of proof that the fees and costs were reasonable and
necessary; (3) awarding attorney’s fees and costs to Lhommedieu because she failed to present any
evidence that specified which fees and costs were for issues based upon the April 28, 2011 order
and which fees and costs were for the appeal of the May 21, 2012 order; (4) awarding Lhommedieu
fees and costs that included fees and costs related to the preparing, filing, and presenting of her
motion for fees when the Court of Appeals awarded her only fees and costs related to Bousman II;
and (5) depriving Bousman of his due process rights, as well as his right to equal protection under
the law because “the applicable facts and law clearly required the Circuit Court to rule that [the]
April 28, 2011 [order] is void as are all subsequent proceedings based upon the April 28, 2011
Order . . . .” Upon reviewing the record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
BACKGROUND
On March 30, 2011, the trial court ordered Bousman to pay $27,312.45 for his share of
his son’s college expenses.1 The trial court took under advisement Lhommedieu’s request for
fees. On April 28, 2011, the trial court entered an order awarding $20,000 in attorney’s fees to
Lhommedieu. Bousman was subsequently held in contempt for his failure to pay the attorney’s
fees as ordered in the April 28, 2011 order.2
1
This order was the subject of Bousman I.
2
This order and the subsequent contempt findings were the subject of Bousman II.
-2-
In Bousman II, this Court remanded “to the trial court solely for a determination of the
amount of attorneys’ fees and costs to be awarded for mother’s successful litigation of this
appeal.” Bousman, No. 1109-12-4 (Va. Ct. App. Mar. 19, 2013). Bousman subsequently filed a
petition for rehearing en banc and argued that the March 30, 2011 order was a final order. He
asserted the circuit court lost jurisdiction to enter the April 28, 2011 order, and all subsequent
proceedings based on the April 28, 2011 order were void. On April 10, 2013, this Court denied
Bousman’s petition for rehearing. Bousman v. Lhommedieu, No. 1109-12-4 (Va. Ct. App. Apr. 10,
2013). Bousman filed a petition with the Supreme Court based on the same argument that the April
28, 2011 order and all subsequent orders were void. The Supreme Court declined to hear
Bousman’s appeal. Bousman v. Lhommedieu, No. 130770 (Va. Aug. 20, 2013).
On May 10, 2013, the parties appeared before the trial court on the remand issue from
Bousman II. Lhommedieu’s counsel submitted an attorney’s fee affidavit, which showed that
Lhommedieu had incurred $23,611.50 in attorney’s fees and $497 in costs defending Bousman’s
appeal. The affidavit further reflected that counsel had reduced his customary rate of $450 per hour
to $400 per hour, as a “professional courtesy.” Counsel later supplemented the attorney’s fee
affidavit with charges in the amount of $2,690 for his preparation and attendance at the hearing on
May 10, 2013. At the hearing, Bousman argued that the trial court did not have jurisdiction to enter
the April 28, 2011 order – the same argument he raised in his petition for rehearing with this Court.
After listening to counsel’s argument, the trial court took the matter under advisement and gave
Bousman an opportunity to file any objections he had to specific charges listed in the attorney’s fee
affidavits. Bousman filed a supplemental opposition and reiterated his argument that the trial court
did not have jurisdiction to enter the April 28, 2011 order. He also asserted that the affidavits
included some fees related to the preparation, filing, and presentation of the motion for fees, which
this Court did not specifically award. Lhommedieu filed a response and requested an award of
-3-
$26,301.50. On May 20, 2013, the trial court entered an order awarding Lhommedieu $26,138.50
in attorney’s fees and costs. Bousman appeals this ruling.
ANALYSIS
April 28, 2011 order
Bousman argues that the trial court did not have jurisdiction to enter the April 28, 2011
order regarding attorney’s fees. In Bousman II, he raised the exact same issue of the trial court’s
jurisdiction in his petition for rehearing. This Court denied the petition for rehearing. Bousman
v. Lhommedieu, No. 1109-12-4 (Va. Ct. App. Apr. 10, 2013). Bousman filed a petition for appeal
with the Supreme Court of Virginia and made the same arguments he is making in this appeal.
The Supreme Court of Virginia declined to hear the appeal. Bousman v. Lhommedieu, No.
130770 (Va. Aug. 20, 2013).
“The [law of the case] doctrine, briefly stated, is this: Where there
have been two appeals in the case, between the same parties, and
the facts are the same, nothing decided on the first appeal can be
re-examined on a second appeal. Right or wrong, it is binding on
both the trial court and the appellate court, and is not subject to
re-examination by either.”
Kaufman v. Kaufman, 12 Va. App. 1200, 1208, 409 S.E.2d 1, 6 (1991) (quoting Steinman v.
Clinchfield Coal Corp., 121 Va. 611, 621, 93 S.E. 684, 687 (1917)). “‘The rule also applies where
the question raised on the second appeal was necessarily involved in the first appeal, whether
actually adjudicated or not.’” Id. at 1209, 409 S.E.2d at 6 (quoting Steinman, 121 Va. at 621, 93
S.E. at 687).
Here, the parties are the same in this case as they were in Bousman II. Bousman is
making the exact same argument in this appeal that he made in his petition for rehearing in
Bousman II and in his petition for appeal to the Supreme Court of Virginia from Bousman II.
This Court and the Supreme Court of Virginia entered denial orders relating to his pleadings.
-4-
Bousman’s arguments have been considered and rejected. His assignment of error is barred by
the law of the case doctrine.
May 20, 2013 order
This Court remanded the issue of attorney’s fees and costs to the trial court after
Bousman II. Bousman argues that the trial court erred in entering the May 20, 2013 order
awarding attorney’s fees and costs to Lhommedieu because she failed to meet her burden of
proving the reasonableness of the fees. Contrary to Bousman’s argument, Lhommedieu
submitted two attorney’s fees affidavits which detailed when, and for what, the charges were
incurred. The trial court gave Bousman an opportunity to object to the charges listed in the
affidavits. Bousman submitted a supplemental opposition and argued that Lhommedieu’s
counsel did not “specify which fees he seeks are for the issues based upon the April 28, 2011
order and which fees are related to Bousman’s appeal of this Court’s denial of his attorney fees
and expenses.” Further, he argued that Lhommedieu “was awarded only those fees relating to
the appeal, not fees for preparing, filing and presenting a Motion for Fees.”
“‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30
Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,
357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness
under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272,
277, 338 S.E.2d 159, 162 (1985).
The trial court had to decide on remand what a reasonable attorney’s fee award would be
for Lhommedieu’s successful defense of the appeal in Bousman II. Lhommedieu submitted
affidavits and requested an award of $26,301.50. The trial court awarded her $26,138.50, a figure
slightly less than what she requested. Contrary to Bousman’s argument, the record supports the trial
-5-
court’s finding that the fees and costs were reasonable and represented the fees and costs she
incurred in defending the appeal in Bousman II and the remand hearing.
Appellate attorney’s fees and costs
Lhommedieu asks this Court to award her attorney’s fees and costs incurred on appeal.
See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). She also
requests that sanctions be imposed against Bousman and his counsel. Code § 8.01-271.1.
Having reviewed and considered the entire record in this case, we hold that Lhommedieu is
entitled to a reasonable amount of attorney’s fees and costs incurred on appeal, in preparation
for, and at the remand hearing. We further hold that sanctions are appropriate in this case,
especially considering this is the fourth appeal in less than two years concerning the same issues.
We remand the issue of attorney’s fees and costs, as well as any appropriate sanctions, to the trial
court.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
We remand this case to the trial court for determination and award of the appropriate sanctions
and appellate attorney’s fees and costs, which also should include any additional attorney’s fees
and costs incurred at the remand hearing.
Affirmed.
-6-