Kamran Rahbaran v. Sara Rahbaran ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia
KAMRAN RAHBARAN
v. Record No. 2700-96-4
SARA RAHBARAN
OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
SARA RAHBARAN DECEMBER 23, 1997
v. Record No. 2858-96-4
KAMRAN RAHBARAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
Fred M. Rejali for Kamran Rahbaran.
(Manuel Trigo, Jr., on briefs), for Sara
Rahbaran.
Kamran Rahbaran (husband) appeals the final decree of the
trial court, contending the trial court erred by refusing to
award him the separate portion of his business, awarding Sara
Rahbaran (wife) spousal support, and refusing to order wife to
pay his attorney's fees. Wife cross-appeals, contending the
court erred in determining child and spousal support, the
equitable distribution award, and when awarding custody of the
parties' minor children. Husband contends the wife's appeal
should be dismissed because she filed her opening and reply
briefs without the signature of a member of the Virginia State
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
Bar. We agree and dismiss wife's cross-appeal. We further
affirm the trial court's decision with respect to the issues
raised by husband in his appeal.
The parties were married in 1984; two children were born of
the marriage. After a period of separation, wife filed for
divorce in 1995. The report of the commissioner in chancery
found that both parties had committed adultery and that the
adulterous conduct on both their parts contributed to the
dissolution of the marriage. The commissioner recommended that a
divorce be granted on the ground that the parties had lived
separate and apart for more than one year.
In 1983, prior to the marriage, husband's father transferred
$34,382.56 to him from a foreign account. Husband used this
money to open Royal Shoe, his first business. In 1986, after the
parties married, husband moved the Royal Shoe inventory to a new
location and opened Kami, Inc., utilizing the Royal Shoe
inventory and additional funds provided to him by his father in
the amount of $79,993. Husband's half-brother testified that
their father had transferred nearly $105,000 in funds to husband.
Husband did not maintain separate records of his business and
personal expenses, keeping one checking account for both.
During the course of the litigation, sanctions were imposed
against wife on various grounds. Two motions for contempt she
brought against husband were ruled frivolous, warranting
sanctions in the amount of $750. Wife was sanctioned an
2
additional $750 for making a significant misrepresentation of
fact to the court. Wife also violated a court order to not
remove the parties' children from the Washington area by taking
them to Mexico. As a result, she was sentenced to serve one day
in jail for contempt of court. Over the entire course of
litigation, wife was sanctioned four times and held in contempt
once.
On March 21, 1996, ruling from the bench, the court granted
a divorce on the ground of the parties having lived separate and
apart for one year and divided the assets and debts of the
parties. The court treated Kami, Inc. as a marital asset and
valued it at $158,000. The court noted that both husband and
wife were guilty of adultery, but, concluding that it would be
unjust to deny wife spousal support, it awarded her $28,000 per
year in spousal support. Upon a motion for reconsideration, the
court reduced its award of spousal support, noting that its
previous figure of $28,000 per year mistakenly incorporated an
earlier order of child support. The court awarded sole custody
of the parties' children to the father. The parties' respective
requests for payment of attorney's fees were denied. The court
entered a final decree of divorce reflecting these decisions on
October 18, 1996.
I.
Dismissal of Wife's Appeal
On April 18, 1996, wife's counsel, Manuel Trigo, Jr., a
3
member of the State Bar of Texas but not of the Virginia State
Bar, was admitted to practice in the Circuit Court of Fairfax
County pro hac vice. Wife's local counsel, Jahangir Ghobadi,
moved to withdraw on May 9, 1996, citing unpaid fees. According
to the record, the trial court never ruled on Ghobadi's motion to
withdraw. However, only foreign counsel signed the notice of
appeal and the briefs filed in this Court.
The circumstances under which foreign counsel are permitted
to practice before this Court are well delineated in our
jurisprudence. In the exercise of its authority to establish
rules governing the admission of attorneys pro hac vice in its
courts, Leis v. Flynt, 439 U.S. 438, 441-42 (1979) (per curiam),
the Supreme Court of Virginia has enacted Rule 1A:4, which
provides:
An attorney from another jurisdiction
may be permitted to appear in and conduct a
particular case in association with a member
of the Virginia State Bar, if like courtesy
or privilege is extended to members of the
Virginia State Bar in such other
jurisdiction. The court in which the case is
pending shall have full authority to deal
with the resident counsel alone in all
matters connected with the litigation. If it
becomes necessary to serve notice or process
in the case upon counsel, any notice or
process served upon the associate resident
counsel shall be as valid as if personally
served upon the nonresident attorney.
Except where a party conducts his own
case, a pleading, or other paper required to
be served (whether relating to discovery or
otherwise) shall be invalid unless it is
signed by a member of the Virginia State Bar.
It is uncontested that wife's papers were not "signed by a
4
member of the Virginia State Bar" as required by Rule 1A:4.
Ghobadi's name does not appear on the notice of appeal, opening
brief, or reply brief. Under Rule 1A:4, therefore, wife's briefs
are "invalid" because they were not signed by a member of the
Virginia State Bar. The question before us is whether the
failure to have a member of the Virginia State Bar act as local
counsel and sign the notice of appeal and briefs justifies
dismissal of the appeal. This is an issue of first impression in
Virginia.
The Rules of this Court which husband cites in support of
his argument do not expressly provide that dismissal of an appeal
shall follow from foreign counsel's failure to associate and
appear with local counsel. 1 Our Rules do not specifically
address the effect on court proceedings of Rule 1A:4 and its
declaration rendering "invalid" all papers required to be served
which do not contain the signature of local counsel. It would
nonetheless follow logically and from the clear language of the
Rule that an "invalid" document is, necessarily, a legally
1
Rules 5A:20, 5A:21, and 5A:22 require the signature of at
least one counsel on the opening brief of appellant, the brief of
appellee, and the reply brief, respectively. "Counsel" is
defined in Rule 1:5 to include "a partnership, a professional
corporation or an association of members of the Virginia State
Bar practicing under a firm name." See also Rule 5A:1(4)
(adopting definition of counsel in Rule 1:5).
Rule 5A:26 states: "If neither party has filed a brief in
compliance with these Rules, the Court of Appeals may dismiss the
appeal. If one party has but the other has not filed such a
brief, the party in default will not be heard orally, except for
good cause shown." Under the dictate of Rule 5A:26, wife was not
permitted to be heard orally in support of her appeal.
5
ineffective predicate for a court proceeding. We have held that,
in the exercise of our discretion, we may dismiss an appeal in
which no opening brief has been filed or in which the opening
brief does not comply with our rules. See Uninsured Employer's
Fund v. Coyle, 22 Va. App. 157, 159, 468 S.E.2d 145, 146 (1996).
The failure to have local counsel's signature on the notice
of appeal and the briefs implicates the fundamental supervisory
power of this Court over the practice of law in this forum. "The
right to practice law in Virginia is governed by statute as
supplemented by the Rules of the Supreme Court of Virginia."
Brown v. Supreme Court, 359 F. Supp. 549, 553 (E.D. Va. 1973),
aff'd, 414 U.S. 1034 (1973) (mem.); see also Horne v. Bridwell,
193 Va. 381, 384, 68 S.E.2d 535, 537 (1952). While the matter is
addressed by rule and statute, this Court has the inherent power,
apart from statute or rule, to inquire into the conduct of any
person to determine whether that individual "is usurping the
functions of an officer of the court and illegally engaging in
the practice of law and to put an end to such unauthorized
practice where found to exist." Richmond Ass'n of Credit Men v.
Bar Association, 167 Va. 327, 335-36, 189 S.E. 153, 157 (1937);
see also Blodinger v. Broker's Title, Inc., 224 Va. 201, 205, 294
S.E.2d 876, 878 (1982) (citing Richmond Ass'n of Credit Men, 167
Va. at 335, 189 S.E. at 157). Our response to the contention
that wife's appeal should be dismissed is necessarily viewed in
6
the context of a violation of Virginia law. 2
Thus, while we recognize that "there is no jurisdictional
requirement that a litigant file a brief," Smith v. Transit Co.,
206 Va. 951, 953, 147 S.E.2d 110, 112 (1966), we are persuaded
that under the dictate of our rules, together with that of Rule
1A:4 and Virginia's regulations governing the unauthorized
practice of law in our courts, wife's appeal must be dismissed. 3
II.
The Equitable Distribution of Husband's Business
Husband argues on appeal that the trial court should have
treated as separate property a portion of his business, Kami,
Inc., on the ground that its predecessor was partially funded by
2
Wife argues that Trigo "received permission of the trial
court to appear pro hac vice[] to pursue an appeal on [w]ife's
behalf." Code § 54.1-3903 provides, however, that "an attorney
who has qualified before a court other than the Supreme Court
shall be qualified to practice only in the court which
administered his oath." Thus, Trigo's pro hac vice appearance in
the circuit court does not qualify him to practice in this Court.
Wife also argues that Trigo was in association with local
counsel because Ghobadi was never granted leave to withdraw. We
are not persuaded that Trigo's tenuous link with Ghobadi, if any,
constitutes "association with a member of the Virginia State
Bar."
3
Wife contends that husband cannot be heard to complain that
her counsel is not admitted to practice in Virginia because
husband accepted the benefits of Trigo's participation in joint
motions for extension of time. Wife misunderstands the nature of
the Rules. The issue raised by the violation of the Rules of
Court in this instance is not whether husband was prejudiced;
the issue is the judicial system's obligation and authority to
maintain control of its courts and prevent the unauthorized
practice of law. Husband's participation in joint extensions of
time with Trigo cannot divest this Court of its responsibility or
authority to enforce its Rules and the standards set by Virginia
for the practice of law.
7
his father in 1983 before the marriage and that, after the
marriage, it was further funded by his father by monetary gift to
husband in 1986. A decision regarding equitable distribution
rests within the sound discretion of the trial court and will not
be reversed unless it is plainly wrong or without evidence to
support it. McDavid v. McDavid, 19 Va. App. 406, 407-08, 451
S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan, 10 Va.
App. 728, 732, 396 S.E.2d 675, 678 (1990)).
The trial court held that in light of the abundant
evidence of husband's commingling of the 1983 transfer funds with
marital funds, "the funds from the 1983 transfer were transmuted
into marital property due to its commingling with marital funds."
On appeal, husband contends that this ruling was "a clear
misapplication of the current state of the law which allows for
the tracing of commingled funds." Wife responds that the 1983
transfer funds were properly deemed transmuted because husband
produced no evidence that "the money from the 1983 wire transfer
was kept separately."
The General Assembly adopted the concept of hybrid property
in 1990 and established rules to govern its classification and
distribution upon divorce. Under the amended statute, Code
§ 20-107.3(A)(3) provides procedures for classifying property as
part marital and part separate. As amended, Code § 20-107.3(A)
provides in relevant part:
1. Separate property is (i) all
property, real and personal, acquired by
either party before the marriage; (ii) all
8
property acquired during the marriage by
bequest, devise, descent, survivorship or
gift from a source other than the other
party; (iii) all property acquired during the
marriage in exchange for or from the proceeds
of sale of separate property, provided that
such property acquired during the marriage is
maintained as separate property; and (iv)
that part of any property classified as
separate pursuant to subdivision A 3. . . .
* * * * * * *
3. The court shall classify property as
part marital property and part separate
property as follows:
* * * * * * *
e. When marital property and separate
property are commingled into newly acquired
property resulting in the loss of identity of
the contributing properties, the commingled
property shall be deemed transmuted to
marital property. However, to the extent the
contributed property is retraceable by a
preponderance of the evidence and was not a
gift, the contributed property shall retain
its original classification.
This case presents the issue of the operation of the
transmutation and tracing provisions of the amended statute. In
earlier cases, we briefly addressed the operation of these
provisions. In Rowe v. Rowe, 24 Va. App. 123, 480 S.E.2d 760
(1997), we applied the tracing provisions of the amended statute.
In Rowe, the parties moved into husband's separately owned home
at the time of the marriage. Id. at 132, 480 S.E.2d at 764.
Four years later, husband sold his separately owned home and
invested the $82,000 proceeds in a new, jointly-titled home. Id.
This Court held that husband's evidence that he had invested the
9
$82,000 into the new home "is sufficient for purposes of Code
§ 20-107.3(A)(3)(d) 4 to retrace the property claimed as separate
by husband." Id. at 136, 480 S.E.2d at 766. Analogously, in
Mann v. Mann, 22 Va. App. 459, 463-65, 470 S.E.2d 605, 606-07
(1996), we applied the "conceptually equivalent" pension fund
tracing provisions of Code § 20-107.3(A)(2) and (A)(3)(b) and
held that the trial court "erred in failing to classify as
separate the income earned passively by husband's separate
contributions," despite the fact that the marital and separate
contributions were contained in a single pension fund. Id. at
465, 470 S.E.2d at 608.
Despite these rulings, we have yet to squarely hold that
tracing under the hybrid property provisions of Code
§ 20-107.3(A)(1)(iv) and (A)(3) does not require, as did prior
law, that a party segregate property claimed to be separate.
See, e.g., Smoot v. Smoot, 233 Va. App. 435, 441, 357 S.E.2d 728,
731 (1987) (If "a spouse fails to segregate and instead,
commingles, separate property with marital property, the
chancellor must classify the commingled property as marital
property subject to equitable distribution."). We now hold,
contrary to wife's contention, that tracing of the separate
portion of hybrid property does not require the segregation of
4
Code § 20-107(A)(3)(d) and Code § 20-107(A)(3)(e) are
parallel provisions addressing, respectively, commingling "by
contributing one category of property to another," and
commingling "into newly acquired property."
10
the separate portion. See Loeb v. Loeb, 324 S.E.2d 33, 39 (N.C.
App. 1985) ("Moreover, it is true that the wife's mere act of
depositing her cash gifts . . . in the parties' joint bank
account would not have deprived them of their 'separate property'
status . . . if she had been able to trace the proceeds.").
The tracing process under Code § 20-107.3(A)(1)(iii)
dictates that property acquired in exchange for separate property
be "maintained as separate property," but the tracing process for
hybrid property under Code § 20-107.3(A)(1)(iv) and (A)(3)
contains no such requirement. See Marion v. Marion, 11 Va. App.
659, 665, 401 S.E.2d 432, 436 (1991) (citing Code
§ 20-107.3(A)(1)(iii) as the source of the segregation
requirement). Indeed, a segregation requirement makes little
sense in the context of the statutory scheme. Code
§ 20-107.3(A)(3) addresses hybrid property, that is, property
which is by definition part marital and part separate. The
concept of hybrid property presupposes that separate property has
not been segregated but, rather, combined with marital property.
Furthermore, Code § 20-107.3(A)(3)(d)-(f) provides that
tracing of hybrid property is only performed after separate and
marital property have been commingled by contribution of one
category to another, acquisition of new property, or retitling of
property in the names of both parties. Construing the statute to
contain a segregation requirement would make tracing a classic
Catch 22: the statute would only allow tracing of the separate
11
portion of hybrid property if the property were commingled, but
commingling would violate the segregation requirement and prevent
tracing.
We reject wife's argument that husband is not entitled to
tracing because he did not keep the wire transfer funds separate.
The absence of a segregation requirement, however, does not mean
that contributions of separate property to the marriage are
automatically classified as separate upon divorce. This Court
has not yet established standards for tracing under the amended
statute. On this issue, we are guided by both the language of
the statute and principles developed in our sister states.
In order to trace the separate portion of hybrid property, a
party must prove that the claimed separate portion is
identifiably derived from a separate asset. This process
involves two steps: a party must (1) establish the identity of a
portion of hybrid property and (2) directly trace that portion to
a separate asset. Code § 20-107.3(A)(3)(d)-(f).
If, however, separate property is contributed to marital
property, contributed to the acquisition of new property, or
retitled in the names of both parties, and suffers a "loss of
identity," the commingled separate property is transmuted to
marital property. Code § 20-107.3(A)(3)(d)-(f). In other words,
if a party "chooses to commingle marital and non-marital funds to
the point that direct tracing is impossible," the claimed
separate property loses its separate status. Melrod v. Melrod,
12
574 A.2d 1, 5 (Md. App. 1990). Even if a party can prove that
some part of an asset is separate, if the court cannot determine
the separate amount, the "unknown amount contributed from the
separate source transmutes by commingling and becomes marital
property." Brett R. Turner, Equitable Distribution of Property
268 (1994); see In re Marriage of Patrick, 599 N.E.2d 117, 123
(Ill. App. 1992) (holding separate portion of hybrid property
transmuted to marital property because party was unable to prove
the value of his separate contribution); Melrod, 574 A.2d at 4
("[I]nability to trace property acquired during the marriage
directly to a non-marital source simply means that all property
so acquired was marital property."); Loeb, 324 S.E.2d at 39
(holding separate portion of hybrid property transmuted to
marital property because party was "unable to state the value of
her alleged 'separate property'"). One commentator has
summarized these rules succinctly: "separate property does not
become untraceable merely because it is mixed with marital
property in the same asset. As long as the respective marital
and separate contribution to the new asset can be identified, the
court can compute the ratio and trace both interests." Turner,
supra, at 266 n.591.
Having identified the relevant law, we examine husband's
claim that the 1983 wire transfer funds may be traced. We are
guided by the basic principle that "property acquired during the
marriage is presumed to be marital and property acquired before
13
marriage is presumed to be separate." Barnes v. Barnes, 16 Va.
App. 98, 104, 428 S.E.2d 294, 299 (1993). As a starting point,
therefore, the 1983 wire transfer is presumed to be husband's
separate property.
Husband used the funds from the 1983 transfer to start his
first business, Royal Shoe. Husband testified, however, that he
freely commingled money from his business with his personal
funds. The wire transfer funds were also commingled with marital
funds in starting Kami, Inc. after the marriage began. Under
Code § 20-107.3(A)(3)(d) and (e), contribution of separate
property to the marital estate, as well as commingling of
separate and marital properties into newly acquired property,
transmutes the separate property into marital property unless
husband, as the party seeking to invoke the exception to the
general rule of transmutation, proves that "the contributed
property is retraceable by a preponderance of the evidence."
Code § 20-107.3(A)(3)(d) and (e).
Husband fails to establish that a portion of Kami, Inc. is
traceable to the 1983 funds transfer. Husband paid both personal
and business expenses from his business checking account, and
maintained a single credit card for both business and personal
use. According to husband, he paid "everything" out of his
business account. The record does not establish that any funds
in Royal Shoe and Kami, Inc. are identifiable as funds from the
1983 wire transfer.
14
With regard to the 1986 transfer, we find that the evidence
fails to support husband's contention that the 1986 wire transfer
funds were a "gift from a source other than the other party" and,
thus, separate property. Code § 20-107.3(A)(1)(ii). "A person
who claims ownership to property by gift must establish by clear
and convincing evidence the elements of donative intent and
actual or constructive delivery." Dean v. Dean, 8 Va. App. 143,
146, 379 S.E.2d 742, 744 (1989) (citing Rust v. Phillips, 208 Va.
573, 578, 159 S.E.2d 628, 632 (1968)). "In the case of a gift to
one of the spouses, if there is credible evidence presented to
show that the property was intended by the donor to be the
separate property of one of the spouses, the presumption [of
marital property] is overcome, and the burden shifts to the party
seeking to have the property classified as marital to show a
contrary intent on the part of the donor." Stainback v.
Stainback, 11 Va. App. 13, 17-18, 396 S.E.2d 686, 689 (1990).
Husband does not point to any evidence in the record to
establish that his father intended the wire transfer as a gift
rather than a loan or an investment or that his father intended
the wire transfer funds to be treated as separate property.
Husband testified that he received loans and investment funds
from his family and wife's family. Husband's brother
characterized their father's wire transfers to husband as
investments. Furthermore, husband's brother testified that he
had received similar funds transfers which he described as loans.
15
When asked on direct examination if he had returned the money
from the 1986 wire transfer to his father, husband answered, "No,
I wasn't able to." From this evidence, the trial court could
reasonably infer that the 1986 wire transfer was intended as a
loan or investment. This evidence is not contradicted by any
evidence of donative intent.
In short, no evidence proved that a portion of Kami, Inc.,
as it existed at the time of the equitable distribution hearing,
was attributable to the 1983 or 1986 transfer funds or that the
1986 funds transfer was intended as a gift to husband separate
from the marital estate. We hold that the trial court did not
err in finding that the husband failed to present sufficient
evidence to prove that the wire transfer funds were retraceable
to his separate property.
III.
Spousal Support
In awarding wife spousal support, notwithstanding evidence
of her adultery, the trial court stated:
I am mindful of the fact that there is
evidence that she has been found guilty of
adultery and I'm also mindful of the fact the
husband's been found guilty of adultery and
the Code allows the Court to consider not
awarding spousal support but it seems to me
that it would be unjust under the
circumstances to punish her and to provide
her with no support given the length of the
marriage and the contributions she has made
and the lifestyle that she was afforded
during the course of the marriage and so I
will award some spousal support.
16
The court awarded wife $28,000 per year in spousal support, later
amending its award to $18,000 per year. Husband challenges both
the propriety and the amount of this award. We find no abuse in
the trial court's exercise of discretion in making this award.
A party who has committed adultery will not be awarded
spousal support unless the trial court finds by clear and
convincing evidence that denial of support would constitute a
"manifest injustice, based on the respective degrees of fault
during the marriage and the relative economic circumstances of
the parties." Code § 20-107.1; Barnes v. Barnes, 16 Va. App. 98,
102, 428 S.E.2d 294, 298 (1993). The trial court's decision to
award spousal support to a party despite his or her adultery will
not be disturbed on appeal unless it is plainly wrong or without
evidence to support it. Williams v. Williams, 14 Va. App. 217,
219, 415 S.E.2d 252, 253 (1992).
The trial court's finding that denial of spousal support
would be unjust to wife is supported in the record. The trial
court determined that the parties were both at fault in the
dissolution of the marriage but that economic factors would make
the denial of spousal support unjust to wife. See Bandas v.
Bandas, 16 Va. App. 427, 433, 430 S.E.2d 706, 709 (1993)
(upholding a finding of manifest injustice where both parties
were guilty of adultery where the finder of fact had considered
the disparity of the parties' non-marital assets, the eight and
one-half year length of the marriage, and the fact that wife's
17
adultery arose partly from husband's incarceration during the
marriage).
In finding the denial of an award would be unjust, the trial
court considered, inter alia, the adulterous conduct of both
parties, the ten-year length of the marriage, wife's
contributions to the marriage, the lifestyle of the parties
during the marriage, and the parties' relative economic resources
and needs. Furthermore, contrary to husband's contention, the
court did not find, nor does the record establish, that wife was
living with another man and that the spousal award, for that
reason, would be inappropriate. In short, we find no abuse in
discretion in the trial court's determination that wife was
entitled to receive spousal support.
Husband also contends the trial court abused its discretion
in determining the amount of support to be awarded. The trial
court's determination of the amount of an award of spousal
support will not be disturbed on appeal unless the decision is
plainly wrong or without evidence to support it. Moreno v.
Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794 (1997)
(citing Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635,
644 (1992)). In determining the amount of spousal support to be
awarded, the trial court applied the relevant statutory factors
set forth in Code § 20-107.1, including earning capacity,
financial resources, education and training, the standard of
living during the marriage, and the duration of the marriage.
18
The trial court explicitly noted that the parties enjoyed a
lavish lifestyle for ten years and considered the wife's current
medical disability and its effect on her ability to work. With
respect to the wife's employability, the court further stated
that it had considered the testimony of husband's vocation and
rehabilitation expert that wife could earn $20,000 per year.
Husband earned $120,000 per year. Based on all the relevant
evidence, the court concluded that $28,000 per year was a
reasonable amount of spousal support, given the needs and income
of both parties. After a motion for reconsideration, the court
reduced the award to $18,000 per year because it had made a
mathematical error; the $28,000 figure mistakenly incorporated an
earlier order of child support. We find the trial court did not
abuse its discretion in making its spousal support award.
IV.
Attorney's Fees
Husband contends that the court erred in denying his request
for attorney's fees on the ground that wife's conduct during the
litigation was egregious, specifically noting wife's adultery,
her "exaggerated claims during the equitable distribution
hearing," 5 and the number of times wife was sanctioned for
5
During the trial, wife's attorney needed to take a witness
out of turn and agreed to compensate husband for any extra expert
fees incurred as a result of the delay. Husband cites this
agreement as a further basis for an award of attorney's fees to
him. He cites no authority in support of this position, and we
find none.
19
misconduct by the court. A trial court's denial of attorney's
fees is reviewed only for abuse of discretion. Head v. Head, 24
Va. App. 166, 181, 480 S.E.2d 780, 788 (1997). This case was
hotly contested between the parties, and the trial court found
that both parties had spent over $100,000 in attorney's fees.
While it is true, as husband argues, that wife filed false
charges against him, violated a court order, and pursued
frivolous motions, the record also makes clear that wife was
sanctioned four times and that she spent one day in jail for
contempt of court. In one of the orders sanctioning wife, the
court required wife to pay attorney's fees to husband's counsel.
In another, the court required both wife and her counsel to pay
sanctions. A third order required that wife pay sanctions but
does not disclose whether payment was to the court or to counsel.
After discussing the conduct of the parties and the amount of
money spent in litigating the divorce action, and upon
considering all the equities in the case, the trial court denied
attorney's fees to each party. We find no abuse of discretion
with respect to an award of attorney's fees.
For the reasons set forth in this opinion, we dismiss wife's
cross-appeal and affirm the decision of the trial court.
Record No. 2700-96-4, affirmed.
Record No. 2858-96-4, dismissed.
20