Imad Nourdeen v. Patricia C Nourdeen ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
IMAD NOURDEEN
MEMORANDUM OPINION *
v. Record No. 2236-02-1 PER CURIAM
APRIL 15, 2003
PATRICIA C. NOURDEEN
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
(Mara Medvin Matthews, on brief), for
appellant. Appellant submitting on brief.
No brief for appellee.
Imad Nourdeen (husband) appeals the circuit court's order
making an equitable distribution award to Patricia C. Nourdeen
(wife) and awarding wife attorney's fees. On appeal, husband
contends the trial court erred by (1) finding it retained
jurisdiction to make the post-final decree equitable distribution
award, (2) finding the issue of attorney's fees was reserved, and
(3) awarding wife attorney's fees. Upon reviewing the record and
opening brief, we agree the court lacked jurisdiction to make the
equitable distribution award. However, we also find the issue of
attorney's fees was reserved and that the award was reasonable.
Accordingly, we reverse and dismiss in part and affirm in part.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
The parties married on March 21, 1996. Wife filed her bill
of complaint seeking a divorce from husband on March 31, 2000.
The court entered the final decree of divorce on March 5, 2002.
The final decree stated that "the ORDERS entered herein shall
remain in full force and effect unless modified by this final
decree of divorce" and that "this matter shall remain on the
docket of this Court for such other and further action as may be
deemed necessary."
On February 26, 2002, wife moved the court for "1. One-half
the 1999 Federal and State Income Tax refund check [and] 2.
Attorney's fees and Court costs expended in bringing this matter
before the Court." On April 18, 2002, forty days after the
entry of the final decree, the court heard wife's motion. The
court entered its order awarding wife one half of the 1999 tax
refund and $10,000 in attorney's fees on August 7, 2002.
Analysis
I.
Code § 20-107.3(A) authorizes a trial judge to enter a
divorce while retaining jurisdiction to adjudicate equitable
distribution. In relevant part, it provides as follows:
Upon decreeing the dissolution of a
marriage, and also upon decreeing a divorce
from the bond of matrimony, . . . [t]he
court, on the motion of either party, may
retain jurisdiction in the final decree of
divorce to adjudicate the remedy provided by
this section when the court determines that
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such action is clearly necessary, and all
decrees heretofore entered retaining such
jurisdiction are validated.
Code § 20-107.3(A). Nothing in the statute requires a trial
judge to grant every motion for bifurcation. Indeed, "the trial
[judge] must make a specific finding of clear necessity for
granting the divorce while retaining jurisdiction to decide
equitable distribution issues." Christensen v. Christensen, 26
Va. App. 651, 655, 496 S.E.2d 132, 134 (1998). The trial court
made no express finding that bifurcation of the proceedings was
"clearly necessary." See Code § 20-107.3(A).
The language in the decree that "this matter shall remain
on the docket of this Court for such other and further action as
may be deemed necessary," did not retain jurisdiction over the
case. It not only failed to specifically reserve jurisdiction
to adjudicate equitable distribution but it also did not comply
with the clear necessity provision of Code § 20-107.3(A).
Therefore, the court's equitable distribution award to wife is
reversed and dismissed.
II.
Husband further argues the trial court lacked jurisdiction
to award wife attorney's fees. He compares the reservation of
attorney's fees to the reservation of jurisdiction to adjudicate
equitable jurisdiction and asserts that because the trial court
did not make a finding of "clear necessity," it failed to retain
jurisdiction to award attorney's fees.
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This argument lacks merit. The reservation of equitable
distribution is strictly controlled by statute. Appellant
provides no authority to support his position. The trial court
has inherent equity power to reserve jurisdiction over
attorney's fees in a divorce decree. See Morris v. Morris, 3
Va. App. 303, 306, 349 S.E.2d 661, 662-63 (1986).
The final decree clearly reserved the issue of attorney's
fees by ordering that all previous orders shall remain in full
force and effect. The court's visitation order, entered
November 5, 2001, reserved attorney's fees. The notice for that
hearing specifically requested attorney's fees and costs
"expended throughout the divorce case." The court reserved the
issue of attorney's fees.
III.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4
Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a
proper award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985).
Husband implies a portion of the attorney fee award covered
expenses incurred during the equitable distribution dispute.
However, the record reveals the legal expenses list submitted by
wife included only expenses incurred before the equitable
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distribution hearing. The total attorney's fees claimed by wife
were $14,889.40. The court awarded wife $10,000 for attorney's
fees.
Appellant admits the divorce was "a contentious and lengthy
action." The trial judge was aware of the scope of the case and
the circumstances surrounding it. "Although we would prefer to
see an accounting of the time expended and services rendered
documented in the record, we cannot say that the [trial court]
abused [its] discretion in fixing the fee at [$10,000]." Davis
v. Davis, 8 Va. App. 12, 18, 377 S.E.2d 640, 643 (1989).
The burden is on the appellant to present a sufficient
record from which we may determine that the claimed error has
occurred. See Twardy v. Twardy, 14 Va. App. 651, 658, 419
S.E.2d 848, 852 (1992) (en banc). Husband has failed to present
any record demonstrating the attorney's fees awarded were
excessive, unfounded, or unreasonable. Based on the complexity
of the case and the respective abilities of the parties to pay,
the award was reasonable and the trial court did not abuse its
discretion in its attorney's fees award.
Accordingly, we reverse and dismiss the equitable
distribution award and affirm the trial court's award of
attorney's fees.
Reversed and dismissed in part,
affirmed in part.
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