Taylor v. Taylor

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia

JAMES MARK TAYLOR, JR.
OPINION BY
v. Record No. 1865-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 21, 1998
PEGGY ANN YOUNG TAYLOR

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Stephen L. Dalton (Stephen L. Dalton &
Associates, on brief), for appellant.

Jonathan M. Murdoch-Kitt for appellee.

In this domestic appeal, James Mark Taylor, Jr. (husband)

assigns seven grounds of error to the trial court's rulings on

the issues of the award to Peggy Ann Young Taylor (wife) of

spousal support, child support, and attorneys' fees. Five

assignments of error were not properly preserved below, and thus

Rule 5A:18 bars our consideration of them on appeal. 1 We address

1
Husband failed to properly preserve the issues of whether
the trial court erroneously attributed loan and rental proceeds
to him as income and whether the trial court based the awards of
child support, spousal support, and attorney's fees on the
resulting excessive amount of income. We decline to consider
these issues for the first time on appeal. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18). "A contrary rule would 'deny the trial
court the opportunity to consider and weigh, and, if necessary,
reconsider before finally ruling.'" Lecky v. Reed, 20 Va. App.
306, 313, 456 S.E.2d 538, 541 (1995) (citation omitted).
Additionally, the record does not reflect any reason to invoke
the good cause or ends of justice exceptions to Rule 5A:18.

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the remaining questions of whether the trial court erred in: (1)

finding the evidence sufficient to support an award of attorneys'

fees; and (2) classifying attorney's fees as a lump sum spousal

support award. We hold that the trial court erred in delineating

an award of attorney's fees as a lump sum spousal support award.

Therefore, we affirm in part, reverse in part, and remand.

I.

We recite only those facts relevant to the issues properly

before us on appeal. Husband and wife separated on January 31,

1992, after an eighteen year marriage. The parties had four

children, ages ten, seven, four, and two, at the time of

separation. Wife filed a suit for separate maintenance on April

21, 1993, and on August 25, 1993, she filed for divorce on the

grounds of desertion or adultery.
On November 10, 1993, the parties agreed upon and endorsed

an order for temporary support. The order provided that husband

would pay wife $500 per week in child support, from which she

would pay certain limited expenses for herself and the children.

Husband agreed to pay all other household expenses, including

mortgages, utilities, auto maintenance and insurance, counseling

fees, wife's attorney's fees, and the parties' Mastercard and

American Express bills. Husband further agreed to be responsible

for all expenses of this suit.

In April 1995, husband failed to timely respond to wife's

interrogatories and requests for document production. After a

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hearing on June 1, the trial court issued an order compelling

discovery and requiring husband's compliance within ten days.

Husband answered the interrogatories on December 14, 1995, but he

failed to produce the requested documents. After a second

hearing on March 8, 1996, husband supplied some of the requested

documents in April 1996. The trial court held a hearing on

husband's motion to reduce child and spousal support on May 10,

1996. The court denied husband's motion, finding him in

violation of a prior court order to make mortgage payments on the

parties' marital home.
Evidence adduced at the hearing and by deposition

established that wife's monthly expenses for the children are

approximately $2,150, and her own expenses are approximately

$1,765 (total expenses less child support and mortgage). Wife's

additional expenses include $900 per month for rent and $500 per

month for her car lease. Although wife has experience teaching

and bookkeeping, she last worked on a part-time basis in 1985.

She has provided full-time care for the parties' four young

children since then. The most money she earned in one year was

$15,000. She has no independent resources other than her IRA,

and she has no assets other than the parties' jointly-owned

condominium.

Husband described recent reverses in his chiropractic

practice due to an attempt to expand into rehabilitation and

unanticipated changes in reimbursement practices under managed

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care. He testified that he had considered bankruptcy. While the

parties' joint tax returns show an adjusted gross income above

$200,000 for each year from 1989 to 1992, after the parties'

separation husband's reported income dropped sharply. The

parties' adjusted gross income on their 1993 joint tax return was

$77,611, and their 1994 joint return reflects income of $42,411.

Husband testified in his deposition that he received no income

from the business in 1995, but that he received $104,738 in

untaxed loans from the business. 2 In addition to the "loans,"

husband personally received $2,500 per month rent from the

corporation for its Colonial Heights office space until he was

forced to re-convey the property to the owner. Husband's gross

income averaged between $30,000 and $35,000 per month in January,

February, and March 1996, and his gross income for June 1996 was

$25,000.

On May 8, 1997, the trial court issued a decree of divorce

on the ground of desertion by husband. In the decree and by

letter opinions of November 14, 1996 and February 6, 1997, the

trial court awarded the parties joint legal custody of their four

children and awarded wife sole physical custody with reasonable

visitation for husband. "In accordance with the [November 1993]

consent order and the evidence presented," the court ordered

husband to pay $500 per week for child support and to provide
2
However, the corporate tax return for 1995 shows only
$61,718 in loans to shareholders and a $60,000 distribution.
Husband is the sole shareholder of the corporation.

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health and dental insurance for the children.

Additionally, the trial court found "that Mrs. Taylor is in

need of support and that Mr. Taylor has the ability to provide

that support." The court considered the November 1993 consent

order "reasonable under the evidence presented" and awarded wife

$2,000 spousal support per month and an additional $17,219 in a

lump sum payment. The lump sum amount equals and was identified

as wife's total bill from Mr. Murdoch-Kitt, her divorce attorney.

Additionally, the trial court expressly awarded wife $14,982.88

in attorney's fees due to Mr. McCall, an attorney she retained

for his experience in complex real estate, corporate, taxation,

and bankruptcy issues.
II.

Husband contends the trial court erred in awarding wife

attorneys' fees in the absence of properly admitted

substantiating evidence. Husband challenges wife's retention of

two attorneys, and he disputes the admissibility of cumulative

statements of services rendered in the absence of an opportunity

for him to cross-examine wife's attorneys regarding the

reasonableness of their fees. Husband's contentions lack merit.

"It is well-established that an award of attorney's fees in

a divorce proceeding is 'a matter submitted to the trial court's

sound discretion and is reviewable on appeal only for an abuse of

discretion.'" Alphin v. Alphin, 15 Va. App. 395, 406, 424 S.E.2d

572, 578 (1992) (citation omitted). See Cooke v. Cooke, 23 Va.

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App. 60, 474 S.E.2d 159 (1996). "'We have said that the key to a

proper award of counsel fees . . . [is] reasonableness under all

the circumstances revealed by the record.'" Poliquin v.

Poliquin, 12 Va. App. 676, 682, 406 S.E.2d 401, 405 (1991)

(citation omitted). Under certain conditions, it may be

unreasonable for a party to be simultaneously represented by two

attorneys. See Colbert v. Colbert, 162 Va. 393, 174 S.E. 660

(1934) (holding that husband was not required to pay for wife's

simultaneous representation by two attorneys, either of whom was

capable of handling the case alone). However, in a complex case

spanning multiple practice areas, we hold that simultaneous

representation by more than one attorney may be reasonable as

long as the attorneys provide complementary, rather than
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duplicative, effort.
The instant record reveals no duplication of efforts.

Effective representation in this proceeding required expertise in

real estate, corporate, tax, and bankruptcy issues. Therefore,

it was not unreasonable that, in addition to her divorce

attorney, for a limited time wife retained an attorney with

experience in these areas.

3
Several sister states allow an award of fees for more than
one attorney if the facts of the case so warrant. See Sheila A.
v. Whiteman, 913 P.2d 181, 195 (Kan. 1996) ("unnecessary use of
multiple attorneys justifies a reduction in the fee award to
reflect the duplication"); Mallett v. Mallett, 473 S.E.2d 804,
812 (S.C. Ct. App. 1996) ("This court will not criticize a party
for hiring more than one attorney, provided their work is not
duplicated and the complexity of the case demands it.").

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 "'Where the trial judge finds that a fee award is justified,

evidence of time expended and services rendered is a proper basis

upon which to fix an award.'" Cooke, 23 Va. App. at 66, 474

S.E.2d at 161 (quoting Westbrook v. Westbrook, 5 Va. App. 446,

458, 364 S.E.2d 523, 530 (1988)). Wife's attorneys submitted

detailed records of their time and effort on her behalf. The

question of reasonableness was within the sound discretion of the

trial court, and the evidence of husband's repeated lack of

cooperation supports the award. Consequently, we hold that the

trial court did not abuse its discretion in awarding attorneys'

fees to wife.
III.

Additionally, husband challenges the trial court's award of

lump sum spousal support. Both parties acknowledged on brief

that the award of a "lump sum of spousal support" was clearly

intended to compensate wife for her attorney's fees owed to Mr.

Murdoch-Kitt. Wife specifically requested that "any award [of

attorney's fees] be in the form of a lump sum of alimony or

equitable distribution, since Dr. Taylor has said he will go

bankrupt." We hold that the trial court erred in characterizing

the award of attorney's fees as spousal support.

"'Spousal support involves a legal duty flowing from one

spouse to the other by virtue of the marital relationship.'"

Dotson v. Dotson, 24 Va. App. 40, 44, 480 S.E.2d 131, 132 (1997)

(quoting Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368

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(1987)). Because of the nature and purpose of spousal support,

it receives special treatment under federal tax and bankruptcy

laws. See 26 U.S.C. §§ 71, 215 (spousal support is income to

recipient and deductible to payor); 11 U.S.C § 523(a)(5) (debt

for spousal support is not dischargeable). In determining

whether to award spousal support, the trial court must "consider

the circumstances and factors which contributed to the

dissolution of the marriage." Code § 20-107.1. In setting the

amount of support, the court must consider the factors listed in

Code § 20-107.1, including the financial condition of the

parties, the distribution of the marital estate, the tax

consequences, and other factors related to the equities between
4
the parties. Although the trial court has "discretion in
4
"If the court determines that an award should be
made, it shall, in determining the amount,
consider the following:
1. The earning capacity, obligations, needs
and financial resources of the parties . . .;
2. The education and training of the parties
and the ability and opportunity of the
parties to secure such education and
training;
3. The standard of living established during
the marriage;
4. The duration of the marriage;
5. The age and physical and mental condition
of the parties;
6. The contributions, monetary and
nonmonetary, of each party to the well-being
of the family;
7. The property interests of the parties,
both real and personal, tangible and
intangible;
8. The provisions made with regard to the
marital property under § 20-107.3; and
9. Such other factors, including the tax
consequences to each party, as are necessary

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deciding whether to order periodic or lump sum payments, periodic

payments are the preferred form." Mosley v. Mosley, 19 Va. App.

192, 197, 450 S.E.2d 161, 164 (1994). Consequently, a trial

court must follow a specific statutory process and must find

"special circumstances or compelling reasons" when it awards a

lump sum for spousal support. Blank v. Blank, 10 Va. App. 1, 5,

389 S.E.2d 723, 725 (1990).

In contrast, the "'key to a proper award of counsel fees' is

'reasonableness under all of the circumstances.'" Cooke, 23 Va.

App. at 65, 474 S.E.2d at 161 (quoting McGinnis v. McGinnis, 1

Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)). The trial court

has discretion to compensate a party for costs and attorney's

fees incurred as a result of the litigation. See Graves v.

Graves, 4 Va. App. 326, 357 S.E.2d 554 (1987). Rather than

following a statutory scheme, in determining whether to award

attorney's fees the trial court considers "the circumstances of

the parties," Barnes v. Barnes, 16 Va. App. 98, 106, 428 S.E.2d

294, 300 (1993), and the "equities of the entire case." Davis v.

Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989). When

setting the amount of an award of attorney's fees, the trial

court evaluates the charged fees for their reasonableness. See

Cooke, 23 Va. App. 60, 474 S.E.2d 159.

to consider the equities between the
parties."

Code § 20-107.1.

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 In the instant case, the trial court examined the required

factors and awarded wife periodic spousal support. An additional

award of attorney's fees as lump sum spousal support offends the

statute and threatens to blur the distinction between the two

types of awards. Wife's attempted end run around potential

bankruptcy proceedings was improper. 5 Consequently, we hold that

the trial court erred in awarding attorney's fees as an award of

"lump sum spousal support."
Wife has requested attorney's fees for matters relating to

this appeal. Upon consideration of the entire record in this

case, we hold that wife is entitled to a reasonable amount of

additional attorney's fees and we remand for an award of further

costs and counsel fees incurred in this appeal. See O'Loughlin

v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).

For the foregoing reasons, we affirm the trial court's award

of attorney's fees, reverse the award of lump sum spousal

support, and remand for further proceedings consistent with this
5
It was also ineffective and probably unnecessary. "Whether
a debt is a support obligation, and not dischargeable . . . is a
matter of federal law. A [bankruptcy] court is not bound to
accept a divorce decree's characterization of an award." Mosley
v. Mosley, 19 Va. App. 192, 196, 450 S.E.2d 161, 164 (1994).
Further, "[m]ost courts have classified an award of attorney's
fees in a divorce judgment as a nondischargeable debt in the
category of alimony, maintenance, and support under [11 U.S.C.]
§ 523(a)(5)." In re Silansky, 897 F.2d 743, 744 (4th Cir. 1990)
(judgment for fees owed to spouse's attorney rather than directly
to spouse was nonetheless a nondischargeable debt). Moreover, a
discharge in bankruptcy may be "a sufficient change in
circumstances to justify modification of the spousal support
award." Dickson v. Dickson, 23 Va. App. 73, 77, 474 S.E.2d 165,
167 (1996).

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opinion.
Affirmed in part,
reversed in part,
and remanded.

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