Smith v. Smith ( 1982 )

KELLY, Associate Judge:

Appellant challenges the Family Division’s order entered October 24, 1980, awarding additional counsel fees and releasing to appellee’s counsel funds paid into the registry of the court pursuant to previous court orders in this case. Finding no abuse of discretion in the amount awarded, we affirm.

I

This case has had a tortuous history. It began on February 20, 1974, when appellee (plaintiff-wife) was granted a limited divorce by the Family Division of the Superi- or Court. Appellant (defendant-husband) was ordered to (1) pay appellee $50 per month for her separate maintenance and support, and (2) reimburse her for any money she might be required to pay in discharge of joint and several obligations, such as loans, incurred during the marriage. In addition, appellant was ordered to pay $1,200 for appellee’s counsel fees.

On May 10, 1974, the court found that appellant had failed to make any of the required support payments or to pay any counsel fees, and held him in contempt. He was, however, allowed to purge himself of the contempt citation by complying with a new arrangement for the payment of alimony and counsel fees.

On January 3, 1976, on motion of both parties, the Family Division enlarged the limited decree into an absolute divorce. The court awarded appellee additional counsel fees but denied her alimony. This judgment omitted any mention of the provision of the limited divorce decree requiring appellant to reimburse appellee for any amounts she might have to pay to discharge joint and several obligations incurred during the marriage.

More than two years later, appellee filed a motion in Superior Court to “Reduce Ar-rearages to Final Judgment, to Correct or Modify Judgment, and for Additional Counsel Fees.” She claimed an unpaid balance of attorney’s fees of $865, reimbursement in the amount of $1,359.67 for judgments entered against her on account of consumer loans obtained before the divorce, plus an additional $250 in attorney’s fees for the work performed on the motion. Appellant opposed the motion on the ground that the judgment of absolute divorce was a final judgment which superseded all earlier orders and judgments except for any balances due for unpaid support or attorney’s fees. The court held a hearing on appellant’s motion on June 28, 1978. Appellee filed a supplemental memorandum wherein she took the position inter alia that she was entitled to reimbursement since the failure to incorporate into the 1976 judgment of absolute divorce the provision of the limited divorce decree requiring appellant to reimburse her for payments made in discharge of joint and several obligations was the result of an oversight which could be corrected by the court at any time under Rule 60(a). See Super.Ct.Dom.Rel.R. 60(a).

On November 15, 1978, the court entered a judgment order granting appellee a judgment for the $865 of unpaid attorney’s fees and for $1,359.67 from appellant for reimbursement of the outstanding consumer loan judgments rendered against her; at the same time, the court found that the necessity of appellant’s motion arose out of her own oversight in not bringing up the loan obligations at the hearing on the absolute divorce motion, and therefore denied any further counsel fees. Neither party appealed.¹

Appellee and her counsel had great difficulty, to say the least, in collecting the money awarded her in the November 15 judgment order. For example, appellant tried unsuccessfully to discharge his obligations to appellee by filing for bankruptcy. The bankruptcy court determined, however, that the Superior Court’s order obliging appellant to reimburse appellee for the loan payments, and to pay counsel fees awarded appellee, was, in effect, alimony and therefore nondischargeable in bankruptcy. Mahoney v. Smith (In re Smith), 3 B.R. 224, 230-32 (Bkrtcy.E.D.Va.1980).

Thereafter, appellee’s counsel filed in Superior Court a motion to release funds from the registry of the court, to pay the funds directly to him rather than to appellee, and for the award of additional attorney’s fees arising out of his considerable efforts on behalf of appellee to collect on the earlier judgments. The total amount requested was $5,774.84. Appellant opposed the motion, and the matter was heard before the Honorable Henry H. Kennedy, Jr. On October 24,1980, the court found that appellee was entitled to additional attorney’s fees because appellant’s failure to satisfy the earlier judgments had forced appellee’s counsel to expend unnecessary time and resources in attempts to secure compliance. The court, however, refused to award the entire amount of attorney’s fees requested; after reviewing the bill submitted by appel-lee’s counsel, the court awarded additional attorney’s fees of $8,850. The court further ordered that the funds in the registry of the court, which had been paid in by garnishee Office of Personnel Management of the United States Government,² be disbursed to appellee’s counsel. This appeal followed.

II

Appellant contends that the court erred in its October 24 order awarding additional counsel fees and releasing funds paid into the court registry pursuant to previous orders in this case. We disagree.

The Family Division has authority to award counsel fees “during the pendency of an action for divorce.” D.C.Code 1981, § 16-911(a)(1). After a decree of divorce in any case granting alimony and support, the case shall still be considered open for any future orders relating to those matters. See D.C.Code 1981, § 16-914; Junghans v. Junghans, 72 App.D.C. 129, 130, 112 F.2d 212, 213 (1940). An order for the payment of counsel fees is an “order relating to those matters.” Id.³ The court can therefore award attorney’s fees which result from the time spent attempting to collect alimony after alimony has been granted.

The November 15, 1978 judgment required appellant to reimburse appellee for money she paid in order to discharge joint and several obligations. We agree with the bankruptcy court’s thoughtful determination that such an obligation on appellant’s part was alimony.⁴ See Mahoney v. Smith (In re Smith), supra. It follows that the court, in its October 24 order, had authority to award additional counsel fees, the need for which arose out of appellant’s failure to comply with the court’s previous orders. See Junghans v. Junghans, supra.

We must now consider whether the trial court erred in awarding $3,850 in additional attorney’s fees to appellee’s counsel. Our scope of review is a limited one as the amount of attorney’s fees awarded is committed to the sound discretion of the trial court. Nelson v. Nelson, D.C.App., 379 A.2d 713, 716 (1977); Finch v. Finch, D.C.App., 378 A.2d 1092, 1094 (1977). As we recently stated in Darling v. Darling, D.C.App., 444 A.2d 20, 23 (1982):

[I]t would require an extremely strong showing to convince this court that an award is so arbitrary as to constitute an abuse of discretion. Certainly the trial court is not bound by any mathematical computation of time consumed multiplied by some hourly rate. Consideration should be given to many factors, including the quality and nature of the services performed, the necessity for such services, the results obtained from the services, and the husband’s ability to pay. [Quoting Ritz v. Ritz, D.C.App., 197 A.2d 155, 156-57 (1964) (construing D.C.Code 1961, § 16-410, predecessor statute to D.C.Code 1978 Supp., § 16-910).]

It is apparent from the face of the October 24 order that the court carefully considered all of the necessary factors in determining the amount of the award. Moreover, the court did not merely rubber stamp the bill submitted by appellee’s counsel; the court refused to award almost one-third of the amount requested because in its view not all of the charges were justified. Therefore, we cannot say that the amount awarded was an abuse of discretion.

Appellant also argues that the court should not have ordered that the funds in the court registry be paid directly to appel-lee’s counsel. We find this contention to be without merit.

Affirmed.

1 . In his pro se brief, appellant challenges the validity of the November 15, 1978 judgment. Since no appeal was taken from that judgment, appellant is precluded from contesting it now, several years later. We note that when appellant was represented by counsel, his attorney conceded that he could not challenge the court’s order since appellant failed to appeal.

2 . Appellant received a civil service annuity which had been garnished in order to pay the judgments entered against him. The Office of Personnel Management made only a few payments into the registry of the court before it was instructed by appellant’s then attorney to discontinue to do so. It has continued to deduct, and hold, the funds from appellant’s annuity.

3 . D.C.Code 1901, § 14-73, an almost identical statutory provision, was in effect when Jun-ghans was decided. It stated in pertinent part: “... after a decree of divorce in any case granting alimony ... the case shall still be considered open for any future orders in those respects.” (Emphasis supplied.) In Junghans, supra, the court concluded that the award of counsel fees several years after the decree of divorce was justified since the payment of counsel fees “is an order in those respects.” Id. at 130, 112 F.2d at 213. We construe the words “in those respects” and “relating to those matters” to have the same meaning.

4 . Moreover, we note that appellant is collaterally estopped from challenging the bankruptcy court’s determination that the obligation was alimony.

Among the requirements courts have set out in order that collateral estoppel may apply are the following. The issue to be concluded must be the same as that involved in the prior action. In the prior action, the issue must have been raised and litigated, and actually adjudged. The issue must have been material and relevant to the disposition of the prior action. The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. [IB Moore’s Federal Practice ¶ 0.443[1], at 3901 (2d ed. 1980).]

Here, each of the elements of collateral es-toppel is satisfied: appellant raises the issue of the nature of appellant’s obligation — the same one he raised in the bankruptcy proceeding; that issue was litigated, and the bankruptcy court actually adjudged that it constituted alimony. Moreover, the court’s determination clearly was material and relevant to the disposition of the bankruptcy action. Finally, the bankruptcy court’s conclusion that appellant’s obligation was in the nature of alimony was essential to its resulting judgment that his obligation could not be discharged in bankruptcy.