Donald C. McIntyre v. Garnet M. McIntyre , 25 Va. App. 612 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
DONALD C. McINTYRE
OPINION BY
v. Record No. 1802-96-4 JUDGE CHARLES H. DUFF
OCTOBER 7, 1997
GARNET M. McINTYRE
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Mary M. Benzinger, (Benzinger & Benzinger, on
brief), for appellant.
Marcia M. Maddox, (Heather A. Cooper, on
brief), for appellee.
Donald C. McIntyre (husband) appeals the decision of the
circuit court awarding attorney's fees to Garnet M. McIntyre
(wife). Husband contends that the trial court: (1) lacked
jurisdiction to award wife attorney's fees incurred in the course
of a previous appeal; and (2) abused its discretion by awarding
wife attorney's fees without proof of need or disproportionate
ability to pay. We agree that the trial court lacked
jurisdiction and, therefore, reverse.
Under the terms of the final decree, the trial court
provided:
In the event that [husband] appeals the
judgments set forth . . . , bond or an
irrevocable letter of credit conditioned upon
the performance or satisfaction of the
judgments, shall be posted with the Court in
the amount of $35,000 suspending execution of
the judgments during the appeal. The Clerk
of Court is hereby directed to place any cash
bond posted in an interest bearing account
until further order of this Court.
This Court affirmed the trial court's decision and ordered
husband to pay to wife "damages according to law." No express
provision was made concerning wife's request for appellate
attorney's fees. Wife filed with the trial court a Motion for
Release of Bond, Interest on Judgment and Attorney's Fees upon
the conclusion of husband's appeal to this Court. However,
husband filed a petition for appeal with the Supreme Court of
Virginia. Husband's petition, and his subsequent petition for
rehearing, were both dismissed by the Supreme Court. Wife then
filed with the trial court a new Motion for Release of Bond,
Interest on Judgment and Attorney's Fees.
In O'Loughlin v. O'Loughlin, 23 Va. App. 690, 691, 479
S.E.2d 98, 98 (1996), 1 we held that, in the absence of a specific
remand for attorney's fees, the trial court lacks jurisdiction to
award appellate fees.
The rationale for the appellate court being
the proper forum to determine the propriety
of an award of attorney's fees for efforts
expended on appeal is clear. The appellate
court has the opportunity to view the record
in its entirety and determine whether the
appeal is frivolous or whether other reasons
exist for requiring additional payment.
Id. at 695, 479 S.E.2d at 100 (footnote omitted). Neither this
Court nor the Supreme Court awarded wife appellate attorney's
fees or remanded the matter to the trial court with instructions
to make such an award.
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O'Loughlin was decided subsequent to the order appealed from
herein.
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Accordingly, the decision of the trial court awarding
appellate attorney's fees and costs is reversed.
The trial court also awarded $2,800 in attorney's fees in
connection with wife's motion. That award was within the trial
court's discretionary authority and was supported by credible
evidence. We find no abuse of that discretion and affirm that
award.
Affirmed in part and
reversed in part.
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Benton, J., dissenting.
With all due respect, I dissent from the majority's holding
that O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98(1996), decided that a circuit court judge "lacked jurisdiction"
to award attorney's fees following an appeal. Although
O'Loughlin states that the question presented was "whether,
absent an order from the Court of Appeals specifically remanding
the issue of attorney's fees incurred on appeal, a trial court
has jurisdiction to award such fees," id. at 691, 479 S.E.2d at
98, I do not read the opinion to address the question of the
trial judge's jurisdiction to award fees. The opinion merely
holds "that a specific remand for attorney's fees is required"
before the trial judge may assess attorney's fees for services
rendered on appeal. Id.
O'Loughlin appears to be based on the following analysis:
The rationale for the appellate court being
the proper forum to determine the propriety
of an award of attorney's fees for efforts
expended on appeal is clear. The appellate
court has the opportunity to view the record
in its entirety and determine whether the
appeal is frivolous or whether other reasons
exist for requiring additional payment.
Id. at 695, 479 S.E.2d at 100 (footnote omitted). I disagree
with that conclusion and with what I believe to be the O'Loughlin
holding -- that the trial judge is divested of the right to
exercise discretion to award attorney's fees unless the mandate
returned to the circuit court following an appeal specifically
remands the issue. I would hold that Code §§ 20-103, 20-79, and
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20-99 provide independent authority for a circuit court judge to
award attorney's fees. That authority, specifically conferred by
the General Assembly, is not eliminated by a mandate from this
Court implementing an opinion that does not address attorney's
fees.
The context in which the fee request arose in this case is
not atypical. During the initial proceeding in the circuit
court, the trial judge awarded a divorce and other relief,
including attorney's fees, to the wife. The husband appealed to
this Court from the divorce decree and raised several issues. In
response to that appeal and as part of her request for relief,
the wife requested this Court to affirm the judgment and award
her attorney's fees for the appeal. Although this Court affirmed
the ruling of the trial judge in all aspects, this Court failed
to address the wife's request for attorney's fees for the
appellate services provided by her counsel. The husband then
filed a further appeal to the Supreme Court. The Supreme Court
dismissed the husband's petition for appeal and, thereby,
affirmed the ruling of the trial judge. However, the Supreme
Court also failed to act upon the wife's request for attorney's
fees for the appellate services of her counsel. As has been the
usual practice in the Commonwealth, the wife sought an award of
attorney's fees when the mandate was returned to the circuit
court ending the husband's appeals. See, e.g., Bandas v. Bandas,
32 Va. Cir. 285 (1993) (Circuit Court of the City of Richmond);
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Adams v. Adams, Chancery No. 90000011 (1994) (Circuit Court of
Augusta County). The trial judge awarded her attorney's fees for
the appellate services of her counsel.
Attorney's fees have long been considered a cost necessary
to enable a spouse or child to maintain a suit for support. See,
e.g., Carswell v. Masterson, 224 Va. 329, 331, 295 S.E.2d 899,
901 (1982); Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 362, 364
(1976); McKeel v. McKeel, 185 Va. 108, 116-17, 37 S.E.2d 746,
750-51 (1946); McClaugherty v. McClaugherty, 180 Va. 51, 69, 21
S.E.2d 761, 768 (1942); Heflin v. Heflin, 177 Va. 385, 399-400,
14 S.E.2d 317, 322 (1941). By statute, the legislature has
provided for attorney's fees as follows:
In suits for divorce . . . , the court having
jurisdiction of the matter may, at any time
pending a suit pursuant to this chapter, in
the discretion of such court, make any order
that may be proper (i) to compel a spouse to
pay any sums necessary for the maintenance
and support of the petitioning spouse,
including an order that the other spouse
provide health care coverage for the
petitioning spouse, unless it is shown that
such coverage cannot be obtained, (ii) to
enable such spouse to carry on the suit
. . . .
Code § 20-103(A) (emphasis added). This statute allows an award
of attorney's fees in the trial judge's discretion. See
Wilkerson v. Wilkerson, 214 Va. 395, 398, 200 S.E.2d 581, 584
(1973); Rowlee v. Rowlee, 211 Va. 689, 690, 179 S.E.2d 461, 462
(1971).
In addition, Code § 20-79(b) provides as follows:
In any suit for divorce, the court in which
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the suit is instituted or pending, when
either party to the proceedings so requests,
shall provide in its decree for the
maintenance, support, care or custody of the
child or children in accordance with Chapter
6.1 (§ 20-124.1 et. seq.), support and
maintenance for the spouse, if the same be
sought, and counsel fees and other costs, if
in the judgment of the court any or all of
the foregoing should be so decreed.
That statute also gives the circuit court judge discretionary
authority to award attorney's fees. See Stratton v. Stratton, 16
Va. App. 878, 884, 433 S.E.2d 920, 923 (1993); Alphin v. Alphin,
15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992).
Furthermore, "[c]osts may be awarded to either party as
equity and justice may require." Code § 20-99(5). This statute
likewise authorizes an award of attorney's fees, if necessary, as
the cost of enabling a spouse to carry on the suit. See D'Auria
v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986).
When the legislature enacted Code §§ 20-79, 20-99, and
20-103, it clearly intended to protect the ability of an eligible
spouse to obtain fees for that spouse's legal counsel. The need
for attorney's fees is just as compelling when a spouse has been
required to secure the services of counsel to defend on appeal a
judgment in that spouse's favor. To enable judges to respond
adequately to the needs of spouses, the legislature gave broad
discretion to judges to award attorney's fees and did not limit
in a strict manner the time in which attorney's fees could be
awarded. The only statutory requirement is that the suit must be
pending. Indeed, one of the statutory provisions allows the
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trial judge discretion to award attorney's fees and costs "at any
time" in a pending suit for divorce. Code § 20-103. O'Loughlin
does not hold that the divorce suit is not pending when the
mandate has issued and is before the circuit court on remand. It
also does not address the authority of the circuit court judge to
award attorney's fees pursuant to Code § 20-103 while the suit is
still pending on remand.
Generally, when a trial judge has discretion to award
attorney's fees, that discretion may be invoked after an appeal
has resolved the merits of the case. See White v. New Hampshire
Dep't of Employment Sec., 455 U.S. 445 (1982). A request for
attorney's fees and costs has traditionally been deemed to be
collateral to the judgment because the request seeks a benefit as
a consequence of the judgment. See id. at 451-52; see also
Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168-69 (1939).
Thus, a trial judge's award of attorney's fees under Code
§ 20-103 for services rendered on appeal is collateral to the
remand order contained in the mandate. Accord Wheeler v.
Wheeler, 636 A.2d 888, 890 (Del. 1993) (holding that trial
judge's statutory power "to award attorney's fees following an
appeal is not dependent upon a remand . . . for that purpose");
Dahnke v. Dahnke, 571 N.E.2d 1278, 1282 (Ind. Ct. App. 1991)
(holding that appellate attorney's fees were incurred during the
divorce proceedings and were awardable by the trial judge). As
long as the remand order is still pending, Code § 20-103(A) is
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statutory authority, independent of the mandate, that empowers
the judge to award attorney's fees. Accord Tolman v. Tolman, 461
P.2d 433, 435 (Idaho 1969) (stating that a trial judge's
statutory authority to award attorney's fees in a pending divorce
action is "unaffected by the fact that the mandate . . . did not
mention attorney fees"). Thus, I would hold that, in a case such
as this, where the trial judge otherwise has authority to award
attorney's fees and costs, the trial judge may properly consider
a timely motion to award attorney's fees for services rendered on
appeal even though the appellate court has not ruled upon the fee
request and has not addressed the issue in its remand order. See
Code § 20-103.
Contrary to O'Loughlin, I do not believe that "the appellate
court . . . [is] the [only] proper forum to determine the
propriety of an award of attorney's fees for efforts expended on
appeal." 23 Va. App. at 695, 479 S.E.2d at 100. Indeed,
Virginia authority suggests that the trial judge is initially in
the best position to assess both the entitlement and quantum of
attorney's fees, leaving to the appellate court a review of that
decision. Although the Supreme Court in Craig v. Craig, 115 Va.
764, 80 S.E. 507 (1914), remanded to the circuit court judge the
issue of attorney's fees, the Court did not hold that the
appellee was entitled to attorney's fees. The Court ruled as
follows:
Counsel for appellee have asked that an
allowance for counsel fees be made for
services rendered in this court. This we
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decline to do, being of opinion that the
trial court is in a better position to
inquire into and do what is right and just
between the parties in the first instance
than this court. We shall, therefore, affirm
the decree and remand the cause, but with
leave to counsel for appellee to prosecute
their claim for compensation before the law
and equity court in the first instance, with
the right of appeal to this court if a proper
case shall be made for its exercise.
Id. at 765, 80 S.E. at 507 (emphasis added). Thus, the Supreme
Court recognized that both the issues of entitlement and quantum
of fees were matters that could properly be addressed initially
by the trial judge. See id.; accord Knighton v. Watkins, 616
F.2d 795, 801 (5th Cir. 1980); White v. White, 683 So. 2d 510,
512 (Fla. Dist. Ct. App. 1996) (stating that because the
appellate court has "no way of knowing how great is the need
. . . , nor how great is the ability to pay," the propriety and
amount of an award of attorney's fees usually should first be
"addressed by the trial court"), aff'd, 695 So. 2d 381 (Fla.
Dist. Ct. App. 1997) (en banc). Indeed, the trial judge is
better positioned to assess the financial needs of the parties
and consider evidence germane to the reasonableness of the fee
request.
The practical effect of the rule pronounced in O'Loughlin is
to require this Court to superintend attorney's fees requests in
domestic relations appeals. After O'Loughlin, to preserve a
claim for attorney's fees expended on appeal, counsel must
present the issue of attorney's fees as a question presented on
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appeal either in the appellant's opening brief or in appellee's
cross-appeal. This Court might possibly consider a timely
separate motion bringing the issue to the attention of this
Court. Less certain is a mechanism for presenting the issue
before the Supreme Court at the petition stage. Moreover, as
this case demonstrates, if the appellate courts fail to rule on
the issue, counsel must request a rehearing to raise anew the
entitlement to attorney's fees and request a ruling. I believe
the statutes make that effort unnecessary.
Because I believe that the statutes clearly authorize the
trial judge to consider a timely motion for appellate attorney's
fees when the mandate is pending on remand, I would affirm the
judgment. Therefore, I dissent.
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