Elizabeth R. McLean and Susan Pollack, as Guardian and Conservator v. John Hull McLean, III ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys, and Senior Judge Overton
ELIZABETH R. McLEAN AND
SUSAN POLLACK, AS GUARDIAN AND
CONSERVATOR OF ELIZABETH R. McLEAN
MEMORANDUM OPINION*
v. Record No. 2908-03-4 PER CURAIM
APRIL 6, 2004
JOHN HULL McLEAN, III
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
(Sandra L. Havrilak; Thomas P. Sotelo; The Havrilak Law Firm,
P.C., on brief), for appellants.
(Carol L. Ehlenberger; Paula A. Niederman; Craig & Hirsch, P.C.,
on brief), for appellee.
Elizabeth R. McLean (wife) and Susan Pollack, as wife’s guardian and conservator, appeal
the October 23, 2003 final decree awarding John Hull McLean, III (husband) a divorce,
incorporating the parties’ spousal support and separation agreements, and requiring each party to be
responsible for his or her attorney’s fees and costs. Wife contends the trial court abused its
discretion by denying her an award of attorney’s fees and costs. She also asks that she be awarded
fees and costs in connection with this appeal. Husband also seeks attorney’s fees incurred in
connection with this appeal. Upon reviewing the record and briefs, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court, see Rule 5A:27,
and we deny the requests for attorney fees for this appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Background
Husband and wife married on June 17, 1972. One child was born of the marriage - - an
emancipated son. On January 19, 1999, husband petitioned the circuit court to be appointed
wife’s guardian and conservator. The court determined wife was incapacitated, denied
husband’s request to be wife’s guardian, and appointed Pollack as wife’s guardian and
conservator.
On May 6, 2002, husband filed a bill of complaint seeking a divorce from wife on the
ground that the parties had lived separate and apart. Wife, through her guardian, filed an answer
and cross-bill asking for a divorce. The parties entered into a separation and property settlement
agreement disposing of all property issues between them. They also entered into a spousal
support agreement wherein husband agreed to pay wife $1,810 per month in support. Following
a September 16, 2003 hearing, the court found “no basis in law to award attorney’s fees.”
Analysis
I.
“An award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). The court’s goal is to make a determination, which is
reasonable under all the circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985).
The record demonstrates the parties’ assets were divided almost equally, husband’s
spousal support obligation represents almost forty percent of his take-home income, and husband
agreed to provide wife with half of his pension when that becomes due at his retirement. In
support of her argument that the trial judge erred, wife cites the following language in Thomas v.
Thomas, 217 Va. 502, 229 S.E.2d 887 (1976): “[W]here . . . the trial court finds [that] the wife
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needs and is entitled to maintenance and support and the husband has the financial ability to meet
those needs, its failure to award counsel fees to her is, in our opinion, an abuse of [its]
discretion.” Id. at 505, 229 S.E.2d at 890.
We previously have addressed the Thomas holding.
We do not believe that the court in Thomas intended to
adopt a rule that whenever a wife is granted support, the trial court
must automatically award attorney’s fees. An award of attorney’s
fees to a party in a divorce suit is a matter for the trial court’s
sound discretion after considering the circumstances and equities
of the entire case. See Rowand v. Rowand, 215 Va. 344, 346-47,
210 S.E.2d 149, 151 (1974).
Artis v. Artis, 4 Va. App. 132, 138, 354 S.E.2d 812, 815 (1987). Upon our review of this record,
we hold that the trial court permissibly considered, as one of several factors, the fact that husband
was not at fault in the dissolution of the marriage. See Davis v. Davis, 8 Va. App. 12, 17, 377
S.E.2d 640, 643 (1989). Furthermore, unlike cases in which attorney’s fees have been awarded,
this case was not a prolonged contested action and did not involve excessive discovery or numerous
motions. See id. at 18, 377 S.E.2d at 643. See also Via v. Via, 14 Va. App. 868, 872, 419 S.E.2d
431, 434 (1992).
Under these circumstances, we cannot conclude that the trial court abused its discretion in
denying wife’s request. The court considered all the circumstances and made a reasonable
determination.
II.
Both parties request costs and attorney’s fees for matters relating to this appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
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O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context,
and upon consideration of the entire record, we hold that neither party is entitled to costs or
attorney’s fees in the matter.
Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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