O'Loughlin v. O'Loughlin

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata

Argued at Alexandria, Virginia

ELAYNE (LOWE) O'LOUGHLIN

OPINION BY

v. Record No. 0984-96-4 JUDGE JOHANNA L. FITZPATRICK

DECEMBER 31, 1996

WILMOT F. O'LOUGHLIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Thomas S. Kenny, Judge

(Ann W. Mische; Paula W. Rank; Byrd, Mische,

Bevis, Bowen & Joseph, P.C., on brief), for

appellant.

Peter M. Fitzner (Shoun & Bach, P.C., on brief),

for appellee.

The sole issue in this appeal is 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. We hold that a specific remand

for attorney's fees is required and affirm the judgment of the

trial court.

In a prior appeal, O'Loughlin v. O'Loughlin, 20 Va. App.

522, 458 S.E.2d 323 (1995), we affirmed the trial court's

equitable distribution rulings set out in a final decree of

divorce entered August 15, 1994. No award of or reference to

attorney's fees was included in the remand order. Following the

resolution of the appeal, the Clerk of the Court of Appeals

mailed to the parties an order affirming the trial court's ruling

and included an itemized statement of costs for the appeal.

Appellant subsequently filed a motion in the trial court for

an award of attorney's fees and costs she had expended in the

appeal. On March 29, 1996, the trial court denied the motion on

the ground that the court did not "have jurisdiction to do what

[counsel is] asking . . . . [T]he issue of determination of

counsel fees has not been remanded to the trial court for

determination."

On appeal, appellant contends that the trial court erred in

finding that, absent language of a specific mandate remanding the

issue to the trial court, the court lacked subject matter

jurisdiction to award attorney's fees incurred in an appeal. 1

1

Appellant also argues that the trial court further erred in

ruling that Code § 20-99 applies only to fees incurred in

connection with support matters. This mischaracterizes the

finding of the trial court, stated as follows:

But the concept of attorney's fees has

always been tied basically to the issue of

support for the party needing it. It's got

to be -- it's not just a matter of being a

penalty for losing. It's got to be a -- it's

got to be some kind of sense of need for

support.

* * * * * * *

[I]n any other contract dispute or

automobile accident case, attorney's fees are

not awarded unless there is some contractual

provision or statutory basis for it.

And I don't think that the statutory

bases that you've pointed out to me is enough

to justify departing from the standard rule

of support as the determinant in the award of

attorney's fees. Accordingly, if I had

jurisdiction I would deny the motion and I'll

leave it at that.

2

This Court's order disposing of the appeal stated as

follows:

For reasons stated in writing and filed

with the record, the Court is of opinion that

there is no error in the judgment appealed

from. Accordingly, the judgment is affirmed.

The appellant shall pay to the appellee

damages according to law.

This order shall be certified to the

trial court.

The Clerk's itemized statement of costs provided:

[A]ppellee shall recover from the

appellant costs in this case as follows:

Attorney's fee: (Code § 14.1-196) $50.00

[and] Appellee's brief: (Code § 14.1-182)

2

$60.12.

(Emphasis added).

2

Code § 14.1-196 provides, in pertinent part:

The clerk of the court wherein any party

recovers costs shall tax the same. He shall

include therein for the fee of such party's

attorney, if he has one:

* * * * * * *

(2a) In the Court of Appeals . . .

$50.00 . . . .

Code § 14.1-182 provides, in pertinent part:

Any party in whose favor costs are

allowed in the Supreme Court shall have taxed

as part of the costs the actual cost incurred

by him in printing or otherwise any brief

filed with the Court, not to exceed $200 for

all briefs filed and the actual cost incurred

by him in printing or otherwise reproducing

the appendix containing parts of the record

filed with the Court . . . .

(Emphasis added).

3

Taxing of costs in this proceeding is

not to be considered a determination of an

award of attorney's fees or other costs for

services rendered or expenditures made in

connection with this appeal to which any

party may be entitled in an award by the

trial court under the provisions of Code

§§ 20-99 and 20-103.

(Emphasis added). 3

The term "costs" is defined as "[a] pecuniary allowance,

made to the successful party (and recoverable from the losing

party), for his expenses in prosecuting or defending an action or

a distinct proceeding within an action. Generally, 'costs' do

not include attorney fees unless such fees are by a statute

denominated costs or are by statute allowed to be recovered as

costs in the case." Black's Law Dictionary 312 (5th ed. 1979)

(emphasis added). The attorney's fee contemplated by Code

§ 14.1-196 is a statutorily mandated "cost." The Clerk's

itemized statement of costs clearly directs that "[t]axing of

costs in this proceeding is not to be considered a determination

of an award of attorney's fees" and the Clerk's statement of

costs does not authorize a trial court to award sua sponte

attorney's fees incurred in the appeal.

Additionally, appellant contends that no specific remand is

required because Code § 20-99 gives the trial court authority in

a divorce case to award attorney's fees for the appellate level

3

Code § 20-103 authorizes the trial court to make pendente

lite orders regarding costs, and Code § 20-99 addresses costs

incurred in the trial court.

4

as it states that "[c]osts may be awarded to either party as

equity and justice may require." Code § 20-99(5). Appellant

asserts that the term "costs" includes counsel fees and relies

primarily on Craig v. Craig, 115 Va. 764, 80 S.E. 507 (1914), for

the proposition that no specific remand is necessary. In Craig,

however, the Supreme Court of Virginia remanded the issue of

attorney's fees specifically "with leave to counsel for appellee

to prosecute their claim for compensation . . . ." Craig, 115

Va. at 765, 80 S.E. at 507. Additionally, appellant's reliance

on Ingram v. Ingram, 217 Va. 27, 225 S.E.2d 362 (1976), is

misplaced. Ingram dealt with the reasonableness of attorney's

fees awarded for efforts at trial, not on appeal.

Appellant cites no case in which a trial court has awarded

attorney's fees incurred on appeal without a specific remand and

particularized instructions to do so. See Gottlieb v. Gottlieb,

19 Va. App. 77, 96, 448 S.E.2d 666, 677 (1994) ("We remand the

case, however, for the limited purpose of determining the amount

wife should be awarded for attorney's fees she incurred in this

appeal."); Via v. Via, 14 Va. App. 868, 873, 419 S.E.2d 431, 434

(1992) ("[U]pon remand, the court is directed to enter an

appropriate award of attorney's fees for services rendered to

[wife] in the trial court, as well as on appeal."); Sanford v.

Sanford, 19 Va. App. 241, 250-51, 450 S.E.2d 185, 190-91 (1994)

("We remand the case to the trial court for a determination and

award of attorney's fees due [wife] for the enforcement

5

proceeding, including an amount for that part of the appeal

devoted to the enforcement."); see also Hughes v. Hughes, 173 Va.

293, 306, 4 S.E.2d 402, 407-08 (1939) ("[W]e reverse the decree

of the trial court, and remand the case, . . . [t]hat the trial

court . . . . (3) [f]ix a reasonable compensation to be paid

counsel for the wife, for services rendered in the trial court

and in this court."); Allen v. Allen, 166 Va. 303, 308, 186 S.E.

17, 19 (1936) ("We think that an additional $100 should be

allowed . . . the wife's attorney, for the preparation of the

brief and the argument in this court. With the additional order

for the payment of the attorney fee allowed, the decree of the

lower court is affirmed.").

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

4

for requiring additional payment.

4

The trial court upon proper remand can then "[f]ix a

reasonable compensation . . . for services rendered in . . . this

[c]ourt." See Hughes, 173 Va. at 306, 4 S.E.2d at 407-08. See

also Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117,

120 (1991), where the Supreme Court of Virginia held as follows:

[W]e will award the mother . . . attorney's

fees in this Court, and we will remand the

case to the Court of Appeals directing it to

fix a sum on account of attorney's fees for

the mother in that court. We will also

direct the Court of Appeals to remand the

case to the circuit court for reconsideration

of . . . the mother's request for attorney's

6

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

fees there . . . .

(Emphasis added).

7