A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important marital points your divorce lawyer should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Domestic Relations: ‘Essentially groundless’ motion results in attorneys’ fees
By Virginia Lawyers Weekly – 10/28/2024
Where the court denied father’s motion to modify custody and support, the parties’ marital settlement agreement allowed the court to award mother a portion of the attorney’s fees she incurred responding to the “essentially groundless” motion.
Background
This matter came before the court on plaintiff’s motion to reconsider the court’s award of legal fees.
MSA
Plaintiff first argues that paragraph 14(b) of the marital settlement agreement, or MSA, “does not mandate an award of fees. Paragraph 14(a) mandates fees in enforcement actions where a party has breached the terms of the agreement, but (b) does not in cases of modification.” While plaintiff is correct that this provision does not mandate an award of fees, the court nonetheless is afforded the “jurisdiction and authority” to award lawyer fees for “modification.” As the matter for which defendant is seeking an award of lawyer fees was a motion for modification of custody and support.
Plaintiff next asserts that he was “seeking to modify the custodial terms of the parties’ Amendment to” the MSA and argues that “[t]he Amendment has its own attorney’s fees provisions that relate solely to the Amendment: Paragraphs 13 and 23.” What is material here is that the amendment does not modify paragraph 14(b) of the MSA which, as discussed, affords the court the “jurisdiction and authority” to award attorney fees for “modification.”
Plaintiff next asserts that the court is precluded from awarding attorney fees because of Code § 20-109(C). As states earlier, the court had the authority under paragraph 14(b) to award lawyer fees to defendant. Because the MSA is a “contract,” the court complied with Code § 20-109(C), because it entered the order of attorney fees “in accordance with” the MSA.
Ability to pay
Plaintiff asserts that “Mother is in a substantially similar financial position as Father.” Although plaintiff believes defendant’s financial position is substantial, defendant’s needs is not a factor when considering an award of attorney fees arising from an essentially groundless motion to modify custody. Although defendant’s financial position is not a factor, plaintiff’s financial position is a factor. The court notes that plaintiff is on track to earn $391,911, plaintiff has no mortgage and plaintiff’s 2023 tax return stated his gross income as $292,581. Plaintiff thus has the ability to pay an award of attorney fees.
Costs
Plaintiff addresses whether a party unnecessarily increased the cost of litigation and asserts that, had other evidence besides the attorney fees affidavits and billing statements been presented at trial, plaintiff would have referenced numerous actions to show that defendant had unnecessarily increased the cost of litigation; plaintiff sets forth those actions in his motion. In light of the fact that the court only awarded defendant $30,627 out of the $47,729.25 requested, the court took into account both parties’ claims that the other party unnecessarily increased the cost of litigation.
Public policy
Accordingly, in light of the fact that plaintiff’s motion to modify was essentially groundless, it was consistent with the MSA, and thus public policy, to shift at least some of the burden of paying attorney fees to plaintiff by awarding attorney fees to defendant. The attorney fees were not awarded to punish plaintiff, but to compensate defendant for having to defend against plaintiff’s motion.
Plaintiff’s motion to reconsider denied.
Sander v. Sander, Case No. CL 2021-6570, Oct. 17, 2024. Fairfax County Circuit Court (Gardiner). VLW 024-8-074. 7 pp.
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