Dwoskin v. Dwoskin

• Decision Date: 05 March 2021
• Docket Number: Case No. CL-2019-3494
• Court: Circuit Court of Virginia
• Parties: Re: Lisa Dwoskin v. Albert Dwoskin

Re: Lisa Dwoskin v. Albert Dwoskin

Case No. CL-2019-3494

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

March 5, 2021

OPINION LETTER

BRUCE D. WHITE, CHIEF JUDGE RANDY I. BELLOWS ROBERT J. SMITH BRETT A. KASSABIAN MICHAEL F. DEVINE JOHN M. TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S. AZCARATE STEPHEN C. SHANNON THOMAS P. MANN RICHARD E. GARDINER DAVID BERNHARD DAVID A. OBLON DONTAÈ L. BUGG JUDGES

THOMAS A. FORTKORT J. HOWE BROWN F. BRUCE BACH M. LANGHORNE KEITH ARTHUR B. VIEREGG KATHLEEN H. MACKAY ROBERT W. WOOLDRIDGE, JR. MICHAEL P. McWEENY GAYLORD L. FINCH, JR. STANLEY P. KLEIN LESLIE M. ALDEN MARCUS D. WILLIAMS JONATHAN C. THACHER CHARLES J. MAXFIELD DENNIS J. SMITH LORRAINE NORDLUND DAVID S. SCHELL JAN L. BRODIE RETIRED JUDGES

James Cottrell, Esquire

Amy Spain, Esquire

John Cottrell, Esquire

COTTRELL FLETCHER & COTTRELL, P.C.

5845 Richmond Highway, Suite 800

Alexandria, VA 22303

jcottrell@cottrellaw.com

Counsel for Plaintiff/Counter-Defendant Wife

Matthew Edwards, Esquire

Sarah Mancinelli, Esquire

AIN & BANK, P.C.

1900 M Street, N.W., Suite 600

Washington, D.C. 20036

medwards@ainbanklaw.com

Counsel for Defendant/Counter-Plaintiff Husband

Dear Counsel:

In this divorce case, the issue before the Court is whether the Court should order either Husband or Wife to pay the other's attorney fees. If so, the issue is the reasonableness of the fees. The Court decides each party is to be responsible for his or her own attorney fees. It declines to shift fees from one party to the other. As a result, a determination as to reasonableness of the fees themselves is not necessary.

Awarding attorney fees in domestic relations cases is typically a routine, unremarkable judicial responsibility, albeit a very important one. However, there is little authority to guide trial courts in exercising their extremely broad discretion in this area. The Court heard from four of Virginia's leading domestic relations practitioners—including two of whom the Court accepted as experts. None could point the Court to a single authority for this issue. To guide this Court's decision and to lead to fairer, more predictable rulings, it considered five non-exclusive factors to apply in fee-shifting for domestic relations cases. It also considered common erroneous reasons for shifting fees. It lists both herein so that the parties and future litigants can better understand how this Court exercises its fee-shifting discretion.

There are two distinct decisions a court must make in awarding attorney fees. First, whether to shift fees from one party to the other, and second, adjudging the reasonableness of the amount of any fees being shifted.

I. Circuit Courts Hold Broad Discretion in Awarding Attorney Fees.

Typically, litigants in Virginia hire their own lawyers and are responsible for paying them without contribution from the opposing side—even when they prevail. This is called the "American rule." "The 'American rule' provides that attorneys' fees are [ordinarily] not recoverable by a prevailing litigant in the absence of a specific contractual or statutory provision to the contrary." Piney Meeting House Invs., Inc. v. Hart, 284 Va. 187, 196 (2012) (brackets in original) (internal quotation and citation omitted). In the context of domestic relations, the legislature abrogated this general principle.

In any suit for divorce, the court in which the suit is instituted or pending, when either party to the proceedings so requests, shall provide in its decree . . . counsel fees and other costs, if in the judgment of the court any or all . . . should be decreed.

VA. CODE ANN. § 20-79(b) (support actions); see also VA. CODE ANN. § 20-99(6) (divorce actions).¹

An award of attorney's fees in a divorce suit is discretionary with the court upon consideration of the circumstances and equities of the entire case. Gamer v. Gamer, 16 Va. App. 335, 346 (1993). The key to a proper award of counsel fees is reasonableness under all the circumstances revealed by the record. Budnick v. Budnick, 42 Va. App. 823, 844 (2004).

Absent usual "abuse of discretion" grounds,² appellate courts rarely disturb a trial court's judgment as to whether to shift attorney fees from one party to the other in domestic relationscases. However, there are some exceptions. (1) A court fails to consider the relative financial positions of the parties. Rowlee v. Rowlee, 211 Va. 689 (1971); Cirrito v. Cirrito, 44 Va. App. 287, 300 (2004) ("[R]elative financial abilities and support issues should be considered as factors in weighing the equities. However, these factors are not exclusively determinative of whether an award should or should not be made."). (2) A court reflexively awards fees to the prevailing party. O'Connor v. Shea, 2020 WL 1262655, *10 (Va. Ct. App. Mar. 17, 2020). (3) A court uses fees to punish a litigant. Alexander v. Flowers, 51 Va. App. 404, 410 (2008). And, (4) a court criticizes a parties' inability to correctly predict the judge's ruling. Richardson v. Richardson, 30 Va. App. 341, 352 (1999).

The broad discretionary model is an intentional reflection of the fact that there is no statutory scheme in determining whether to award attorney's fees. Taylor v. Taylor, 27 Va. App. 209, 217 (1998) (internal citations and quotations omitted). "Given the unique equities of each case, [the Court of Appeals] appellate review steers clear of inflexible rules and focuses instead on 'reasonableness under all the circumstances.'" Kane v. Szymczak, 41 Va. App. 365, 375 (2003) (internal citation omitted). However, factors to consult merely for guidance in making reasonable rulings are helpful to both courts and litigants. See, e.g., Falkoff v. Falkoff, 103 Va. Cir. 405 (Fairfax 2019) (enumerating factors to consider in determining whether to seal a court file); Rudolph v. Commonwealth, 100 Va. Cir. 481 (Fairfax 2017) (listing factors a court may consider in exercising discretion to restore firearm rights)³; In re Scott, 79 Va. Cir. 299 (Norfolk 2009) (identifying indicia of vexatiousness for use in determining litigation abuse). The Court herein attempts a compendium of non-exclusive factors any court may want to consider in exercising its broad discretion to award attorney fees. These are: (1) the financial positions of the parties; (2) whether a party unnecessarily increased the cost of litigation to the other; (3) fault in the dissolution of the marriage; (4) public policy considerations; and (5) any other factors necessary for a reasonableness ruling under all the circumstances revealed by the record.

A. The Financial Position of the Parties.

A prime reason for fee shifting in family law cases is to put the parties on equal footing. It is inequitable to have a wealthy spouse gain an advantage over a poorer spouse due only to access to resources. Money should not deny one party access to the court. Via v. Via, 14 Va. App. 868, 872 (1992) (where the parties have disparate abilities to access the judicial system, a complete denial of attorney's fees amounts to an abuse of discretion). "However, while 'relative financial abilities and support issues should be considered as factors in weighing the equities ... these factors are not exclusively determinative of whether an award should or should not be made.'" Wills v. Wills, 72 Va. App. 743, 767-68 (2021) (ellipses in original) (internal citation and quotation omitted).

At one time it seemed an award of spousal support mandated an award of attorney fees to the payee spouse. Thomas v. Thomas, 217 Va. 502, 505 (1976). However, the Court of Appeals has long held that was not the intended rule. Artis v. Artis, 4 Va. App. 132, 138 (1987). Rather, it is simply a consideration.

B. Whether a Party Unnecessarily Increased the Cost of Litigation to the Other.

Parties may not unnecessarily increase the cost of litigation to the other and then expect reimbursement. Cirrito, 44 Va. App. at 301. Litigants can do this in many ways. Easy examples include repeated discovery violations,⁴ refusal to meet and confer with the opposing side before asking for court intervention, and by rushing to the courthouse for the smallest of matters that are habitually resolved among counsel.

Harder examples include harassing motions practice. Of course, one lawyer's aggressive motions practice is another lawyer's harassment. It is not the place of courts to chill legitimate motions practice. However, some litigants cross the line and courts can recognize it when they see it. Similarly, there is no requirement that a party settle a dispute. However, a party's unwillingness to negotiate in good faith can be grounds for an attorney fees liability on the theory that this unnecessarily increased the cost of litigation.

This factor invites the risk that a court will erroneously shift attorney fees based baldly on the success or failure of one of the parties. While appellate courts take into consideration factors such as whether the party requesting fees prevailed, see O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695 (1996), circuit courts do not have this authority. Trial courts may not reflexively award fees to the prevailing party. Tyszcenko v. Donatelli, 53 Va. App 209 (2008). "[T]here is no prevailing-party entitlement to fees under Code §§ 20-79(b) and [former] 20-99(5). . . . Instead, the trial court, in the exercise of its discretion, may award attorney's fees and costs to 'either party as equity and justice may require.'" Mayer v. Corso-Mayer, 62 Va. App. 713, 733 (2014) (quoting Tyszcenko, 53 Va. App. at 223) (emphasis in original) (internal citation and quotation omitted).

C. Fault in the Dissolution of the Marriage.

A court may consider a party's degree of fault in bringing about the dissolution of the marriage in awarding fees. Gilman v. Gilman, 32 Va. App. 104, 124 (2000); Poliquin v.Poliquin, 12 Va. App. 676, 682 (1991). However, this is not mandatory; a court may disregard fault if it otherwise considered the circumstances of the parties. See, e.g., ...