Will a Virginia court award attorney’s fees to a husband in a divorce case when the husband refused to make efforts to settle?
Not in Blackwell v. Blackwell, Record No. 1229-10-2, (Va. App. 2010), where the Virginia Court of Appeals held that the husband’s appeal from the Circuit Court of Chesterfield County lacked merit because the wife’s motions and depositions were not frivolous, and the award of attorney’s fees was within the court’s reasonable discretion given that the husband had not attempted to settle the issues of the case.
The parties were married for four years before they separated for a year and subsequently divorced. The husband filed a complaint for a no-fault divorce in the Circuit Court of Chesterfield County. The wife filed an answer and counterclaim and submitted discovery requests to husband. At the final hearing, the Chesterfield County Circuit Court judge accepted the parties’ arrangement in awarding the marital home to the husband. In addition, the Court equitably divided the parties’ retirement, ordered the parties to sell and split the profits of their joint timeshare, and awarded attorney’s fees to the wife.
Following entry of the final decree of divorce, the husband appealed, arguing that the Chesterfield County Circuit Court judge should not have awarded attorney’s fees to the wife for three reasons: 1) she filed a “frivolous” motion to compel then failed to appear in court; 2) she took “frivolous” de bene esse depositions; and 3) purposefully extending the court proceedings.
First, he asserted that the wife’s motion was “frivolous” because it did not comply with Rule 4:12 (a) and the wife did not appear at the hearing. The wife had not shown up at the hearing when she learned that the matter had not been put on the court’s docket; the husband was present, but the matter was not heard. On appeal, the Virginia Court of Appeals held the wife’s motion had not been frivolous, and the divorce court judge was not in error by awarding attorney’s fees to the wife.
Second, the husband challenged the court’s award because the wife took “frivolous” de bene esse depositions of himself and herself . In reviewing the case, the court noted that the wife’s counsel only questioned the husband regarding the former martial residence and the timeshare. Because the Chesterfield County Circuit Court accepted evidence by deposition and the questions concerned equitable distribution, the Virginia Court of Appeals held that the depositions were not frivolous.
Finally, the husband argued that he should have received the award of the attorney’s fees because the wife had engaged in vexatious conduct. Upon review, however, the court found no evidence of vexatious conduct; rather, it noted that the wife had only objected to the husband’s entry of the final divorce decree because he had not resolved the equitable distribution issues. Furthermore, the court held that there were no unreasonable delays in the proceedings.
In reviewing the law and standard of review for appeals, the Virginia Court of Appeals noted that “As long as evidence in the record supports the trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999). “[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, 516 S.E.2d 726 (1999) . Although the husband alleged that the trial court erred in its award, the Court reaffirmed the standard in McGinnis v. McGinnis, “The 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). Because the record and the evidence indicated that the award was reasonable based on the facts and circumstances of the case, the court found that the husband’s appeal lacked merit. Moreover, the Virginia Court of Appeals stated that because the husband filed his complaint for divorce without trying to settle the issues and then tried to obtain a divorce without resolving equitable distribution or otherwise settle the case, the trial court correctly awarded the attorney’s fees to the wife.
You should discuss whether you might be awarded attorney fees in your divorce case with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr.