COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
THE ESTATE OF GERALD LEONARD CUMMINGS
MEMORANDUM OPINION * BY
v. Record No. 1361-99-3 JUDGE SAM W. COLEMAN III
FEBRUARY 29, 2000
PAMELA GREENWOOD (CUMMINGS)
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
A. Dow Owens, Judge Designate
Barry M. Tatel (Neil E. McNally; Key, Tatel &
McNally, P.C., on brief), for appellant.
T. Rodman Layman (K. Mike Fleenor, Jr.;
Crowell, Nuckols, Layman, Aust & Fleenor, on
brief), for appellee.
The estate of Gerald Leonard Cummings 1 appeals the trial
court's award of $35,000 in attorneys' fees to Pamela Cummings
following remand of her appeal of the equitable distribution
issues. The estate argues that on remand the trial court had no
authority to conduct an evidentiary hearing and to award
attorneys' fees because this Court's opinion ordering that the
case be remanded on equitable distribution issues did not enable
the court to reconsider an award of attorneys' fees. The estate
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
During the pendency of the proceedings, Gerald Cummings
died and his estate was substituted as the complainant in the
trial court.
also argues that the record failed to contain sufficient evidence
to support the reasonableness of the $35,000 award of attorneys'
fees. In addition, the estate claims the trial court erred by
failing to deduct the $1,060.90 in costs awarded to Gerald
Cummings on appeal from the amount of the monetary award to Pamela
Cummings. We find that our remand order did not direct the trial
court to reconsider and redetermine the award of attorneys' fees.
Accordingly, we reverse that aspect of the trial court's judgment.
Because the award for appellate costs is separate and distinct
from the equitable distribution award, we disagree with the
estate's contention that the trial court erred by failing to
deduct the amount of appellate costs awarded to Gerald Cummings
from the monetary equitable distribution award.
BACKGROUND
On May 5, 1993, the trial court granted Pamela Cummings a
decree of divorce on the ground of desertion. Gerald Cummings
appealed the equitable distribution of the marital assets and the
trial court's award of $35,000 in attorneys' fees to Pamela
Cummings. Pamela Cummings cross-appealed, asserting that she was
entitled to attorneys' fees for defending the appeal.
The appeal concerned, among other things, the equitable
distribution of three parcels of real property. In an unpublished
opinion, we reversed the trial court's ruling with respect to two
of the parcels and affirmed the court's ruling as to the third.
See Cummings v. Cummings, No. 2645-94-3 (Va. Ct. App. Feb. 6,
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1996). We also held that the record failed to support the award
of $35,000 in attorneys' fees and that Pamela Cummings was not
entitled to any award for attorneys' fees for services rendered on
her behalf in the appeal. We said in our panel opinion that:
[w]hile factors other than time expended may
be considered in awarding [an attorney's]
fee, see McGinnis v. McGinnis, 1 Va. App.
272, 277, 338 S.E.2d 159, 162 (1985),
without any evidence of the time expended,
we find no support in the record to justify
requiring husband to pay $35,000 to wife as
attorney's fees.
Thereafter, we remanded the case to the trial court, noting
that:
[o]ur judgment with respect to the [parcels
of property] is final, and upon remand the
trial court shall enter an award in
accordance therewith, taking into
consideration any and all appropriate
deductions. Additionally, the trial court
may deal with any and all other matters
necessary to a proper adjudication of the
case.
(Emphasis added). In addition, Gerald Cummings, as the party
substantially prevailing on appeal, was awarded $1,060.90 in
appellate costs.
On remand, the trial court, relying upon the foregoing
language that it "may deal with . . . all other matters
necessary to a proper adjudication of the case" construed the
clause as authorizing it to reconsider attorneys' fees. After
conducting a hearing, the trial court stated that "it [had]
jurisdiction to order attorney fees since the Respondent
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prevailed on the issue of fault and it is necessary to a proper
adjudication of the case." The trial court reviewed the time
sheets submitted by Pamela Cummings' attorneys and stated that
[t]he trial judge in the equitable
distribution and fault phases of this matter
was in a far better position to place a
value on the services provided than I am at
this date. Accordingly, I am of the opinion
and so hold that the award of $35,000.00
attorney fees is reasonable and direct that
the same be disbursed in the same ratio as
the bills submitted . . . .
At the remand hearing, Gerald Cummings also argued that in
determining Pamela Cummings' net monetary equitable distribution
award, the trial court should deduct the appellate costs awarded
to him. The trial court, however, elected not to deduct the
costs from Pamela Cummings' net monetary award.
ANALYSIS
A. Attorneys' Fees
The estate argues that the trial court erred on remand in
conducting another evidentiary hearing and in awarding attorneys'
fees to Pamela Cummings. We agree. As the estate notes, our
opinion in the previous appeal did not direct or authorize the
trial court on remand to hear additional evidence regarding an
award of attorneys' fees to Pamela Cummings. We held that the
record did not support the trial court's award of attorneys'
fees to Pamela Cummings and reversed that portion of the trial
court's order. We noted that despite the opportunity afforded
to her by the trial court, she failed to present evidence to
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justify the award. The remand order authorized the trial court
to consider "all other matters necessary to a proper
adjudication of the case," which included entry of an order
effectuating the equitable distribution rulings, and
reconsideration of any prior rulings that might have been
affected by reversing the equitable distribution award.
That directive in the opinion did not authorize reopening
the case on remand for an evidentiary hearing regarding
attorneys' fees, an issue that had been litigated. See Rusty's
Welding Service, Inc. v. Gibson, 29 Va. App. 119, 129, 510
S.E.2d 255, 260 (1999) (en banc) (noting the general principle
that courts have the authority to interpret their own orders).
Furthermore, except when specifically authorized, a remand does
not permit a trial court to reopen an order to allow the parties
a second opportunity to litigate an issue previously litigated
or which the parties had the opportunity to litigate. See
Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991). To
allow Pamela Cummings to present additional evidence to the
trial court upon remand regarding the amount and reasonableness
of attorneys' fees would be to allow her to prove on remand that
which she failed to prove in the first instance. We did not
hold that the amount of the attorneys' fee award was excessive
based upon the record and remand for reconsideration on the
record. Although an award of nominal attorney's fees based upon
customary charges in a jurisdiction may be upheld in the absence
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of time records, see McGinnis, 1 Va. App. at 277, 338 S.E.2d at
162, that was not the issue in the first appeal. The evidence
was insufficient to support anything other than a nominal award.
On remand, the trial court did not set a nominal award but
instead admitted additional evidence to determine the amount of
a reasonable award based on time expended and services rendered.
Further consideration of the issue was barred by res judicata.
"The bar of res judicata precludes relitigation of the same
cause of action, or any part thereof, which could have been
litigated between the same parties and their privies." Smith v.
Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992).
Accordingly, the judgment relating to the award of attorneys'
fees is reversed.
B. Statement of Costs on Appeal
The estate also argues that the trial court erred by
failing to deduct the amount of appellate costs awarded to
Gerald Cummings from the net monetary equitable distribution
award to Pamela Cummings.
The assessment by the Court of Appeals of costs on appeal
pursuant to Code §§ 17.1-605 and 17.1-624 and Rule 5A:30 are
separate and distinct from a trial court's monetary award
pursuant to Code § 20-107.3. A trial court does not err by
failing or refusing to deduct the award of appellate costs from
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this Court from the trial court's monetary equitable
distribution award. 2
Thus, we reverse and vacate the trial court's award of
$35,000 in attorney's fees, and we affirm the trial court's
decision not to deduct appeal costs from the equitable
distribution award.
Affirmed in part,
reversed and
vacated in part.
2
Pursuant to Rules 5A:30 and 31, the costs on appeal are
awarded in the mandate of this Court and are then taxed in the
judgment of the trial court.
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The Est.of GeraldL.Cummings vP.Greenwood(Cummings)
Combined Opinion