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