Sarah A. Leake v. Donald M. Leake ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Willis
Argued at Alexandria, Virginia
SARAH A. LEAKE
MEMORANDUM OPINION* BY
v. Record No. 3268-03-4 JUDGE JERE M. H. WILLIS
OCTOBER 12, 2004
DONALD M. LEAKE
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
F. Ward Harkrader, Jr., Judge Designate
J. Michael Sharman (Commonwealth Law Offices, P.C., on brief),
for appellant.
No brief or argument for appellee.
No brief or argument by the Guardian ad litem for the minor
children.
Sarah Leake (mother) appeals the judgment of the trial court ordering that she pay one-half
of the guardian ad litem fee and denying her request for an award of attorney’s fees. We affirm the
judgment of the trial court.
Mother had two children with Christopher Leake, who died in 2002. Donald M. Leake, the
paternal grandfather of the two children (grandfather), filed in juvenile and domestic relations
district court (JDR court) petitions seeking visitation with the children. The JDR court denied the
petitions and ordered grandfather to pay $1,772.50 of mother’s attorney’s fees, $550 of which was
imposed as a sanction.
Grandfather appealed the JDR court’s denial of visitation to the trial court. The trial court
appointed for the children a guardian ad litem, who participated in the proceedings.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
At the trial court hearing, grandfather testified that he had never telephoned mother to ask
for visitation and that he had requested visitation only once since the children’s father’s funeral.
The report of the guardian ad litem was admitted into evidence.
The trial court denied grandfather’s request for visitation. It denied mother’s motion for
attorney’s fees and ordered her to pay $325, or one-half, of the guardian ad litem’s fee. Mother
appeals the trial court’s judgment concerning the guardian ad litem fee and her request for an award
of attorney’s fees.
“The courts of the Commonwealth have a long history of
protecting the interests of minor children and have expressed that
careful concern by ensuring that the rights and interests of the
minors are safeguarded. Code §§ 8.01-9 and 16.1-266 require that
guardians ad litem or counsel be appointed to represent a child’s
interests when the child is involved in court proceedings.”
Verrocchio v. Verrocchio, 16 Va. App. 314, 320, 429 S.E.2d 482, 486 (1993) (citation omitted).
Indivisible from the power of appointment is the associated power
equitably to apportion the fees and expenses of the guardian ad
litem as costs to the parties. Code §§ 20-79(b) and 20-99(5)
provide the statutory basis for the award of such costs as equity
and justice may require. Such an award is considered remedial and
is within the recognized “discretion of a court of equity over the
subject of costs.” Code § [17.1-600].
Id. at 322, 429 S.E.2d at 487.
Although a trial court or chancellor “may” allocate guardian fees “based upon the final
result,” Infant C. v. Boy Scouts of America, 239 Va. 572, 584, 391 S.E.2d 322, 329 (1990), we
cannot say the trial court abused its discretion by ordering each of the parties to pay one-half of
the guardian ad litem fee. The guardian ad litem was appointed to protect the interests of the
children. In addition, according to the written statement of facts, the report of the guardian ad
litem favorably addressed an issue related to mother’s successful treatment for depression. “The
issue before us is not whether we find that the equities favor one or the other party, but whether
the [trial court] abused [it]s discretion in finding that the equities favored the imposition of the
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guardian’s fee [equally on both parties].” Kane v. Szymczak, 41 Va. App. 365, 376, 585 S.E.2d
349, 355 (2002). Because the record discloses no abuse of discretion, we affirm the trial court’s
allocation of the guardian ad litem’s fee.
Mother also appeals the trial court’s denial of her request for an award of attorney’s fees.
“Whether to award attorney’s fees ‘is a matter submitted to the sound discretion of the trial court
and is reviewable on appeal only for an abuse of discretion.’” Id. at 375, 585 S.E.2d at 354
(citation omitted). A trial court’s award of sanctions is an abuse of discretion if its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the evidence. See
Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). “[T]he key to a proper award of
counsel fees [is] . . . reasonableness under all of the circumstances revealed by the record.”
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
While the record abundantly reveals the lack of legal merit in grandfather’s litigation, it is
silent as to the trial court’s considerations underlying its denial of attorney’s fees. For example,
nothing in the record discloses the relative financial positions of the parties or grandfather’s
understanding of his legal rights. To find an abuse of discretion, we must have a clear basis for
doing so. The record affords no such basis. Under these circumstances, we cannot conclude that
the trial court abused its discretion by denying mother an award of attorney’s fees.
Mother also requests that we award her attorney’s fees incurred in this appeal. Because
of the view that we take of the merits of the case, we decline to make such an award.
In her opening brief under the heading “Statement as to Relief Sought,” mother asks us to
affirm the award of attorney’s fees by the JDR court. Because mother did not include this issue
as a question presented, we do not address it here. See Rule 5A:20.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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