Tyszcenko v. Donatelli

• Court: Virginia Court of Appeals
• Writing for the Court: Jean Harrison Clements
• Citation: Tyszcenko v. Donatelli, 670 S.E.2d 49, 53 Va. App. 209 (Va. App. 2008)
• Decision Date: 30 December 2008
• Docket Number: Record No. 0160-08-4.
• Parties: Robert TYSZCENKO v. Esther DONATELLI, f/k/a Esther Tyszcenko.

670 S.E.2d 49

53 Va. App. 209

Robert TYSZCENKO v. Esther DONATELLI, f/k/a Esther Tyszcenko.

Record No. 0160-08-4.

Court of Appeals of Virginia, Richmond.

December 30, 2008.

Demian J. McGarry (Gwendolyn Jo M. Carlberg, The Carlberg Law Firm, on brief), Alexandria, for appellant.

Catherine M. Reese (Laurie M. Crawford; Anne P. Breville; The Law Office of Catherine M. Reese, PLC, on brief), for appellee.

Present: CLEMENTS, KELSEY and BEALES, JJ.

JEAN HARRISON CLEMENTS, Judge.

Robert Tyszcenko (father) appeals from an order entered by the Circuit Court of Prince William County (trial court) on January 2, 2008, awarding Esther Donatelli (mother) attorney's fees in the amount of $9,595.80. On appeal, father claims the trial court erred in utilizing Code § 20-146.33(A) as the statutory basis for awarding mother attorney's fees. Alternatively, father claims the trial court erred in denying him the opportunity to present evidence to show that the award of attorney's fees was inappropriate. Additionally, both parties request an award of appellate attorney's fees and costs. For the following reasons, we reverse the trial court's judgment, remand for further proceedings, and deny the parties' requests for appellate attorney's fees and costs.

I. BACKGROUND

The parties were divorced by final decree of divorce entered by the trial court on June 1, 1999. Pursuant to that decree, mother was awarded sole legal custody and primary physical custody of the parties' two minor children (children), and father was granted limited supervised visitation. Over the next several years, the trial court heard and resolved numerous post-divorce motions filed by the parties pertaining to visitation.

In August 2005, mother and children moved to Arizona, where they continue to reside. Although father initially sought to enjoin the relocation, in September 2005, the trial court entered a consent order reflecting the parties' agreement that mother and children were permitted to relocate to Arizona and setting forth the agreed upon schedule of visitation in Arizona and Virginia.

On September 13, 2007, mother filed a motion to change jurisdiction, asking the trial court to relinquish its jurisdiction, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Code §§ 20-146.1 to 20-146.38, so that future custody and visitation determinations could be made by an Arizona court. In connection with that motion, mother requested an award of her attorney's fees and costs.

Thereafter, in a letter opinion dated November 30, 2007,¹ the trial court found Virginia to be "an inconvenient forum" and Arizona "a more appropriate forum." Accordingly, the trial court declined to exercise its jurisdiction in the case pursuant to Code § 20-146.18(A).² The trial court's opinion, however, did not address mother's request for attorney's fees and costs.

Hence, the case was again before the trial court on January 2, 2008, for resolution of mother's outstanding request for attorney's fees and costs, and for entry of an order consistent with the rulings in the November 30, 2007 letter opinion.³ After submitting an affidavit of the attorney's fees she incurred in connection with her motion to change jurisdiction, mother argued she was entitled to an award of such fees under Code § 20-146.33(A)⁴ because she prevailed on her motion under Code § 20-146.18 and because the requested attorney's fees were not "clearly inappropriate." Alternatively, mother argued that, in light of her inferior economic position in comparison to father's, the court could also award her attorney's fees and costs under Code §§ 20-79(b) and 20-99(5).⁵

In response, father argued that Code § 20-146.33(A) applied only to proceedings under the UCCJEA to enforce child custody determinations and, thus, could not be used to award attorney's fees to mother in connection with her motion to change jurisdiction under Code § 20-146.18. Father further argued that, if the trial court determined that Code § 20-146.33(A) was applicable, he would put on evidence to show that the requested attorney's fees and costs were "clearly inappropriate." Lastly, father argued that, despite his greater income, mother's "substantial resources" rendered any disparity in the parties' relative economic positions insignificant.

Applying Code § 20-146.33(A), the trial court found there was "insufficient evidence to show that an award of attorney's fees would be clearly inappropriate" and granted mother's request for attorney's fees. The trial court then entered an order reflecting the rulings in the November 30, 2007 letter opinion and awarding mother attorney's fees in the amount of $9,595.80.

This appeal by father followed.

II. ATTORNEY'S FEES AT THE TRIAL LEVEL

In this appeal, we are asked to review the propriety of the trial court's determination that mother, having prevailed on her motion to change jurisdiction under Code § 20-146.18, was entitled to an award of attorney's fees under Code § 20-146.33(A). Father contends, as he did below, that Code § 20-146.33(A) is inapplicable to mother's motion to change jurisdiction under Code § 20-146.18.⁶ Mother contends the trial court's award of attorney's fees under Code § 20-146.33(A) was proper. Alternatively, she argues that, if we conclude Code § 20-146.33(A) is not applicable in this case, we should affirm her award of attorney's fees under Code §§ 20-79(b) and 20-99(5) or, at the very least, remand the matter to the trial court for consideration of her request for attorney's fees under those statutes. We agree with father that the trial court improperly utilized Code § 20-146.33(A) to award mother attorney's fees in connection with her Code § 20-146.18 motion, and we agree with mother that the case should be remanded to the trial court for consideration of her request for attorney's fees under Code §§ 20-79(b) and 20-99(5).

"Whether to award 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.'" Kane v. Szymczak, 41 Va.App. 365, 375, 585 S.E.2d 349, 354 (2003) (quoting Northcutt v. Northcutt, 39 Va.App. 192, 199-200, 571 S.E.2d 912, 916 (2002)). However, "a trial court `by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). "In determining whether the trial court made an error of law, we review the trial court's statutory interpretations and legal conclusions de novo." Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001).

The initial question before us is whether Code § 20-146.33(A) permits an award of attorney's fees to a party who prevails under Code § 20-146.18. To answer that question, we must first determine to what "proceedings" Code § 20-146.33(A) applies. Mother argues the statute applies to all proceedings under the UCCJEA; father argues it applies only to those proceedings under the UCCJEA that involve the enforcement of child custody determinations.

On its face, Code § 20-146.33(A) does not expressly limit its application to any particular proceedings. Indeed, it merely provides, in pertinent part, that "[t]he court shall award the prevailing party ... necessary and reasonable expenses incurred by or on behalf of the party, including costs [and] . . . attorney's fees ... during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate." Code § 20-146.33(A) (emphasis added). The statute neither defines the term "proceedings" nor otherwise indicates the extent of the statute's application. Accordingly, we conclude that the term "proceedings" is ambiguous, see Gillespie v Commonwealth, 272 Va. 753, 758, 636 S.E.2d 430, 432 (2006) ("Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness."), and thus resort to the rules of statutory interpretation to determine its intended meaning, see Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 101-02, 353 S.E.2d 758, 762 (1987) ("Because the section is ambiguous, we ... must resort to extrinsic evidence and the rules of construction to determine legislative intent....").

In interpreting a statute, we endeavor "`to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.'" Colbert v. Commonwealth, 47 Va.App. 390, 394, 624 S.E.2d 108, 110 (2006) (quoting Jones v. Rhea, 130 Va. 345, 372, 107 S.E. 814, 823 (1921)). "`Statutes which have the same general or common purpose or are parts of the same general plan are ... ordinarily considered as in pari materia.'" Lucy v. County of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999) (emphasis omitted) (quoting Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957)).

Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law.... [T]hey should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.

Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462 (2007) (quoting Prillaman, 199 Va. at 405, 100 S.E.2d at 7). Moreover,

[t]he rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd. On the contrary it is well established that every act of the legislature should be read so as to give reasonable...