Melinda Newnam Mills v. Robert Alexander Mills ( 2023 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Chaney, Raphael and Callins
Argued at Richmond, Virginia
MELINDA NEWNAM MILLS
OPINION BY
v. Record No. 1043-20-2 JUDGE DOMINIQUE A. CALLINS
MAY 9, 2023
ROBERT ALEXANDER MILLS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Phillip L. Hairston, Judge
Eileen McNeil Newkirk (The McNeil Law Group, on briefs), for
appellant.
Benjamin R. Rand (Blackburn, Conte, Schilling & Click, P.C., on
brief), for appellee.
Robert Mills (husband) and Melinda Mills (wife) come before this Court once more to
address issues related to their 2015 divorce. Both challenge the judgment of the trial court in
exercising its jurisdiction to adjudicate the terms of a 2018 amendment to their property
settlement agreement (“PSA”) and in its allocation of attorney fees. Their primary issues are
whether the trial court properly determined that the modification to their PSA was enforceable
under the court’s power to enforce the divorce decree; whether the trial court fully and properly
directed the special commissioners to disburse the proceeds from the sale of the marital
residence; and whether the trial court properly allocated attorney fees. For the following reasons,
we affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
BACKGROUND
I. The Marital Residence
On July 19, 2012, husband and wife entered the PSA and signed the document in the
presence of a notary public. The PSA established that husband and wife would continue to own
the marital residence jointly after the final divorce decree. In Section 9.3, it also provided:
The parties agree that unless the parties agree otherwise in
writing, the Wife may continue to reside in and have exclusive use
and possession of the marital residence until the youngest child
begins attending college at which time the parties will decide the
disposition of the property. If the parties cannot agree on a
disposition at that time, the property shall be placed on the market
for sale forthwith upon request of either party and the sales
proceeds divided 50/50 or as the parties may otherwise agree in
writing.
Section 13.5 of the PSA addressed modification and established that “The parties may modify
the terms of [the PSA], but any such modification shall not be effective unless in writing and
executed with the same formality as [the PSA].” About three years after the parties entered the
PSA, the Circuit Court for the City of Richmond entered a final decree of divorce between
husband and wife. That final decree affirmed, ratified, and incorporated the PSA.
On August 10, 2015, following their divorce, husband and wife entered a written,
notarized modification to the PSA. That agreement granted wife the marital residence as her sole
and separate property and granted wife 100% of the net proceeds from the sale of the marital
property.
In 2018, husband filed a “motion to reinstate the matter” to reopen the parties’ case to
enforce Section 9.3 of the PSA, which motion the trial court granted. Husband also moved for
the trial court to appoint a special commissioner to sell the marital residence. Wife objected to
husband’s motion and moved for appointment of a special commissioner to execute a deed
transferring title to wife in fee simple. Wife planned to sell the property after it was titled in her
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name. On May 30, 2018, the trial court appointed both parties’ counsel as co-special
commissioners to sell the marital property and distribute the proceeds “pursuant to [the] court’s
forthcoming order upon a final determination of the enforceability of the parties’ [PSA] and any
modification thereto . . . .” The order also directed the commissioners to place the proceeds in
escrow until “a final distribution of such assets may be made by [the trial court].” It provided
that the non-prevailing party would pay all costs associated with the appointment of the special
commissioners, “including any commission authorized by statute,” unless otherwise directed by
the trial court. The marital residence sold on July 24, 2018, resulting in net proceeds of
$168,601.43.
On September 17, 2018, wife filed a motion for declaratory judgment asking the trial
court to determine that the parties’ modification to the PSA was valid and enforceable; determine
each party’s respective rights in the marital residence and sale proceeds; determine when those
rights were established; and determine whether husband violated or infringed on wife’s rights.
Alternatively, wife asked the trial court to enter judgment against husband for breach of contract
because husband’s “refusal to execute the Deed transferring legal title of the marital residence to
[wife] upon her request for the same constitutes a breach [of the PSA modification].” Wife
asked the trial court to award her the full net proceeds from the sale of the marital residence and
to award her attorney fees related to husband’s breach, as well as a monetary judgment as
reimbursement for any commission awarded to the special commissioners resulting from the sale
of the marital residence.
The parties convened for a hearing on the motion for declaratory judgment on October
11, 2018. That transcript is not part of the record. By an order dated December 20, 2018, the
trial court determined that it had subject matter jurisdiction over the matter, continued the matter,
and ordered the parties to file additional briefings. Upon agreement of the parties, the trial court
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ordered a distribution of $62,000 to wife from the escrow account holding the proceeds of the
sale of the marital residence. The court referred the parties to a settlement conference, which
was not successful.
The parties reconvened for another hearing on October 10, 2019, where the trial court
heard arguments related to the declaratory judgment. The court found that the modification was
a valid part of the PSA and therefore found that wife was entitled to 100% of the proceeds from
the sale of the house. After that pronouncement, the court was unsure whether husband could
present his affirmative defenses in a declaratory judgment action and requested that the parties
brief the issue. Following the hearing, husband advised the trial court that he “would no longer
seek to pursue any affirmative defenses.”
The trial court entered a written order on January 30, 2020, granting wife’s motion for
declaratory judgment and finding that she was entitled to 100% of the proceeds from the sale of
the marital estate. The court reserved ruling on attorney fees, awaiting further argument.
II. Attorney Fees
Under the PSA, the parties are entitled to fee awards in some circumstances. The PSA
established that in all future litigation, the trial court would have the discretion to award attorney
fees. It also provided that “any and all” legal expenses incurred through enforcing the PSA
would be paid by the “party found at fault.” Upon a breach, the breaching party would also “pay
the attorney’s fees and costs incurred by the other party in securing compliance herewith or
incurred in connection with said breach.”
The attorney fees issues that we must review encompass three iterations of this case.
Along with the issues related to the marital residence, we must consider attorney fees associated
with wife’s prior appeals to this Court and to the Supreme Court of Virginia. See Mills v. Mills,
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70 Va. App. 362 (2019) (“Mills I”), petition for appeal denied, No. 190781 (Va. Oct. 25, 2019)
(order).
In 2018, husband filed a motion to show cause with the trial court alleging that wife
violated three provisions in the PSA regarding life insurance, tax returns, and a “love and
affection” clause. The trial court found wife in contempt for violating the three provisions. It
ordered wife to obtain life insurance, pay husband a sum based on damages relating to his taxes,
imposed a fine for wife’s violation of the “love and affection” clause, and awarded husband
attorney fees. Wife appealed, and we affirmed the trial court’s holding of contempt for the life
insurance and tax issues and awarded attorney fees to husband. Id. at 377-78, 384. However, we
reversed the trial court’s imposition of a fine for violating the “love and affection clause” and
remanded with instructions that the trial court determine what portion of its award of attorney
fees related to the litigation over this clause and deduct that amount from its award of attorney
fees to husband. Id. at 382-84. The Supreme Court of Virginia refused wife’s petition for appeal
on October 25, 2019. On November 21, 2019, husband timely requested an attorney fee award
from the trial court for his expenses incurred drafting a brief in opposition to wife’s Supreme
Court petition for appeal.
After the entry of the January 30 order, husband’s counsel submitted an affidavit on his
attorney fees from the previous appeal to this Court, following the guidance of Mills I. In
conjunction, he presented expert testimony that his fee request was consistent with the expert’s
experience as an attorney. The expert reviewed the fee request and the explanation of attorney
fees, which marked where the entries had been reduced. Husband’s counsel also submitted
timesheets, with an explanation that showed where he had subtracted time spent on the “love and
affection” issue. He explained that wife had argued seven assignments of error and, at most,
prevailed on one. Husband’s brief dedicated only one page to that assignment of error. Thus,
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husband’s counsel subtracted all fees relating to that assignment of error, reduced all entries
referring to the three issues by 33% and reduced all fee entries that referred to the overall brief
by 14%.1
By final order of August 25, 2020, the trial court awarded wife attorney fees of $31,575.
The court determined this amount by awarding wife all her requested attorney fees, then
subtracting fees related to the failed settlement conference, husband’s granted motion to compel
discovery responses, costs related to the October 10, 2019 hearing, and costs associated with
drafting the order reflecting the October 10, 2019 hearing. The trial court also awarded husband
attorney fees of $17,730 “after reviewing [husband’s] affidavits asking the Court to award
attorney[] fees based on the Supreme Court appeal.” The trial court offset that against wife’s
award, resulting in a final award of $13,845 for wife. By order, the court then found that there
was “nothing further remaining to be done in this action,” struck the matter from the docket of
active cases, and dispensed with the parties’ endorsement of the order under Rule 1:13. This
appeal followed.
ANALYSIS
Combined, the parties assert ten assignments of error and cross-error. Four of these
alleged errors generally relate to the proceedings over the marital residence, and five relate to the
attorney fee awards.2 We address husband’s arguments relating to the marital residence first, and
we address wife’s arguments second. Finally, we address both parties’ attorney fee arguments.
1
Husband’s counsel reached this percentage by assuming that he dedicated 7% of the
brief to the one assignment of error relating to the “love and affection” clause then, out of
caution, doubling that amount.
2
The remaining assignment of error alleges that the trial court erred by dispensing with
endorsement of the August 25 final order under Rule 1:13. A party may only challenge a trial
court’s compliance with Rule 1:13 if that party was prejudiced by the alleged failure. Singh v.
Mooney, 261 Va. 48, 53 (2001) (citing State Highway Comm’r v. Easley, 215 Va. 197, 201-02
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I. Husband’s Arguments Relating to the Sale of the Marital Residence
Although husband asserts three assignments of error within this subject, the assignments
of error reduce to one complaint: the trial court should not have considered the modification to
the PSA when awarding the proceeds from the sale of the marital residence because wife did not
properly bring the modification before the court. He alleges that the trial court could not enforce
the modification because it was not part of the divorce decree, and he argues that declaratory
judgment was not the appropriate remedy for her claim. We disagree on both counts. We find
that the trial court could enforce the modification. We also find that declaratory judgment was
appropriate.
a. The trial court had enforcement jurisdiction over the modification to the PSA.
At the time of the divorce, the PSA stated: “[U]nless the parties agree otherwise in
writing, the Wife may continue to reside in and have exclusive use and possession of the marital
residence until the youngest child begins attending college at which time the parties will decide
the disposition of the property.” It also specifically allowed for modifications to the PSA,
provided the modifications were in writing and executed with the same formality as the PSA.
Under those terms, husband and wife executed a formal modification agreement that transferred
ownership rights to wife exclusively and that entitled wife to 100% of the net proceeds from the
sale of the marital residence.
Code § 20-109.1 provides that “Where the court affirms, ratifies and incorporates by
reference in its decree [a PSA], it shall be deemed for all purposes to be a term of the decree, and
(1974)). Although wife alleges that she could not preserve her objections for appeal, she was
able to communicate her objections to the trial court throughout the litigation and within 21 days
of the entry of the final order. The trial court had an opportunity to rule intelligently on her
objections at a time when it could correct an error, so we find that her arguments were preserved
for appeal. See Maxwell v. Commonwealth, 287 Va. App. 258, 264-65 (2014) (discussing the
purposes of the contemporaneous objection rule). Because wife was not prejudiced by the trial
court’s decision to dispense with endorsement, we need not consider this assignment of error.
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enforceable in the same manner as any provision of such decree.” Husband contends that this
statutory provision only gives a trial court the ability to enforce the terms of the PSA as written
at the time of the divorce, not future modifications. He argues that wife needed to bring a
separate contract suit if she wanted to enforce the terms of the modification. But his argument
ignores the fact that the terms of the original PSA allowed for modifications.
If the trial court could not enforce the modification to the PSA, then the modification
terms in the PSA would be meaningless. And we will not interpret the PSA in a way that renders
whole provisions meaningless. See Jones v. Gates, 68 Va. App. 100, 106 (2017) (“In reviewing
a [PSA], the court must . . . ‘giv[e] full effect to the words the parties actually used.’” (quoting
Layne v. Henderson, 232 Va. 332, 337-38 (1986))). Moreover, a modification necessarily
changes the original terms. See Modification, Black’s Law Dictionary (11th ed. 2019). A
modification made pursuant to an express modification provision within an agreement is a
change to the ultimate requirements of the original agreement, brought about through the
operation of the agreement itself. A modification is not a separate contract, though it may
support a separate contract liability. Because a modification makes a change to the terms of the
original agreement, properly enacted modifications to a PSA are enforceable in the same manner
as the terms of the original PSA.
After entering a decree of divorce that affirms, ratifies, and incorporates the PSA, a trial
court retains jurisdiction to enforce the terms of the divorce decree and the PSA. Code
§ 20-109.1. And when a PSA specifically authorizes modifications, a valid modification is
enforceable as a term of the PSA. To hold otherwise is to hold that the portion of the original
PSA authorizing modifications, here Section 13.5, is unenforceable. Thus, where the PSA
expressly provides for such modifications, the trial court may exercise its jurisdiction to enforce
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a valid modification to a PSA.3 In short, the trial court had jurisdiction to apply the terms of the
modification in allocating the net proceeds of the sale of the marital residence.4
b. The trial court had the authority to enter a declaratory judgment.
The power to make declaratory judgments is a statutorily granted power that allows trial
courts to determine the rights of parties before a right is violated. Liberty Mut. Ins. Co. v.
Bishop, 211 Va. 414, 421 (1970); Code § 8.01-184. It is appropriate for “[c]ontroversies
involving the interpretation of deeds, wills, and other instruments of writing . . . .” Code
§ 8.01-184. By adjudicating the parties’ rights before they act, the court decreases the likelihood
of later remedial litigation. See Bishop, 211 Va. at 421. The decision to issue a declaratory
judgment is a discretionary determination that must be exercised “with care and caution.” See id.Declaratory judgment is not appropriate if another mode of proceeding is available. Id. It is also
not appropriate when it “would be determinative of issues, rather than a construction of definite
stated rights, status, or other relations, commonly expressed in written instruments.” USAA Cas.
Ins. Co. v. Randolph, 255 Va. 342, 346 (1998).
At the time of wife’s motion for declaratory judgment, the property had been sold and the
proceeds were held in escrow in wife’s counsel’s trust account. Wife’s motion for declaratory
judgment asked the court to determine each party’s rights in the marital home, but that question
was moot at the time she submitted the motion because the marital residence had already been
sold. Instead, the court needed to determine which party had the right to the proceeds from the
sale under the modification to the PSA.
3
This is not to suggest, however, that a trial court possesses equivalent authority to
exercise its contempt powers to punish a breach of a modification when the modification is not
incorporated into a decree.
4
Because we find that the modification to the PSA was properly a part of the PSA, we
need not address husband’s argument that the trial court erred by not considering the terms of the
unmodified PSA.
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Husband argues that declaratory judgment was not appropriate because wife’s motion
alleged that husband breached the PSA by refusing to deed the property in her name as provided
in the modification. Husband is correct that a breach of contract claim would resolve issues
between the parties and that such claims should not be resolved through declaratory judgment.
See Randolph, 255 Va. at 346. However, the breach of contract claim related only to the parties’
rights in the marital residence. That claim was moot by the time wife filed the declaratory
judgment action because the house had been sold. At the time of its decision, the trial court only
needed to determine the parties’ rights in the proceeds. Rather than allowing the special
commissioners to disburse the proceeds from the sale of the marital residence and waiting until
one party sued the other, the trial court preemptively reviewed the documents and determined
who should receive the proceeds from the sale. The court did not err in doing so.
Husband also argues that the procedure used here deprived him of rights available in a
contract case. First, we note that declaratory judgment is a remedy, not a cause of action. A
contract issue may be decided in a declaratory judgment. Moreover, to the extent that husband
argues he could not bring affirmative defenses, he abandoned his affirmative defenses at trial
when he “advised the Court that [he] would no longer seek to pursue any affirmative defenses.”
He may not reassert those defenses on appeal. Code § 8.01-384 (establishing that arguments
“expressly withdrawn” are not preserved for appeal). The trial court did not err in granting
wife’s motion for declaratory judgment.
II. Wife’s Arguments Relating to the Sale of the Marital Residence
Wife alleges that the trial court failed to act on four matters required by the order
appointing the special commissioners and by the relevant statute.5 Because she primarily argues
5
Wife argues that those actions were necessary for the court to “give all the relief
contemplated” and without those actions, there was no final order in this case. Rule 1:1.
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that the trial court needed to enter an order specifically directing the special commissioners to
release the funds from escrow, we address that first.
a. Wife’s counsel was entitled to disburse the proceeds from the sale of the house to
wife after the sale was completed, and wife is not entitled to interest for the time the
funds were in escrow.
Although the order appointing the special commissioners (“May 30 order”) was slightly
ambiguous, the trial court did not need to issue another order. We resolve any ambiguity here:
wife’s counsel may disburse the proceeds from the sale of the marital residence (“the funds”) to
wife under the trial court’s declaratory judgment order from January 30, 2020.
As a reviewing court, we read the trial court’s orders in context and do not “fix upon
isolated statements . . . .” Coward v. Wellmont Health Sys., 295 Va. 351, 363 n.11 (2018)
(quoting Yarborough v. Commonwealth, 217 Va. 971, 978 (1977)). We also presume that the
trial court correctly applied the law. Rainey v. Rainey, 74 Va. App. 359, 377 (2022). When we
must consider the statutory scheme, we consider matters of statutory interpretation de novo.
Ruderman v. Pritchard, 76 Va. App. 295, 302 (2022).
The May 30 order directed the commissioners to disburse the funds “pursuant to [the]
court’s forthcoming order upon a final determination of the enforceability of the parties’ [PSA]
and any modification thereto . . . .” It also specifically directed that wife’s counsel should hold
the funds in escrow while awaiting resolution of the case. The parties later convened for a
hearing, where the trial court found that the modification was a valid part of the PSA and that
“[W]hen a trial court enters an order, or decree, in which a judgment is rendered for a party,
unless that order expressly provides that the court retains jurisdiction . . . , the order renders a
final judgment . . . .” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 561 (2002). If
a final order was not entered, then we do not have jurisdiction over the appeal. Yet wife is the
appellant, and she does not make any jurisdictional arguments, nor does she request that we
dismiss the appeal. Instead, she requests that we remand the case. In that light, we consider her
arguments as non-jurisdictional arguments that the trial court erred by failing to take certain
actions required by statute or its May 30 order.
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wife was entitled to 100% of the proceeds from the sale of the marital residence. After the
hearing, the court issued an order establishing that “[wife] is entitled to one hundred percent of
the proceeds from the sale of the marital residence” and reserving the issue of attorney fees.
Wife argues that under Code § 8.01-96, the trial court needed to enter a separate order
authorizing the special commissioners to release the funds. That code section requires that all
special commissioners “account for and pay over as the court may direct all money that may
come into his hands as such commissioner.” Code § 8.01-96. Nothing in Code § 8.01-96
compels the form that the court’s directions must take, and we are unaware of any case law that
stands for wife’s proposition. The statute only requires that the court direct the disposition of the
funds, not that the court must enter a standalone order directing the commissioners.
As shown above, the court directed the commissioners to disburse the funds after it
determined whether the modification to the PSA was enforceable and entered an order to that
effect. Once the court entered the order on January 30, 2020, the special commissioner holding
the funds, wife’s counsel, could disburse the funds. Because that order ruled that wife was
entitled to 100% of the proceeds from the sale of the house, wife’s counsel was—and is—
entitled to disburse 100% of the net proceeds to wife. In conjunction, we find that, contrary to
wife’s assertion, the trial court was not required to award wife interest for the time the funds
were in escrow. That was not required by statute, nor was it required by the May 30 order.
b. The trial court erred by failing to determine the amount that husband must
reimburse wife for the costs related to the special commissioners and by failing
to determine the amount of commission due to the special commissioners.
Wife also argues that the trial court erred by failing to require husband to reimburse her
for her costs associated with the sale by the special commissioners and by failing to award the
statutorily authorized commission to the special commissioners.
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The May 30 order stated that the non-prevailing party would pay the costs unless
“otherwise allocated by the court upon consideration of the equities of the case at such final
disposition.” The order determining that wife was the prevailing party did not award the costs of
the special commissioners, nor did the next order awarding attorney fees. As stated above, we
do not read the trial court’s orders in isolation. See Coward, 295 Va. at 363 n.11. Because the
trial court failed to “otherwise allocate” the costs of the special commissioners, the
non-prevailing party, husband, must pay those costs. On remand, the trial court must take
evidence on this issue and determine the amount that husband must reimburse wife.
Wife next argues that the trial court needed to award a commission to the special
commissioners for their work selling the marital residence and collecting the proceeds. The May
30 order stated that the costs would include “any commission authorized by statute.” Code
§ 8.01-109 allows for a five percent commission on the proceeds up to $100,000 and a two
percent commission on the rest of the proceeds. It states that “If the sale is made by one
commissioner or officer and the proceeds collected by another, the court under whose decree
they acted shall apportion the commission between them as may be just.” Code § 8.01-109. We
may fairly conclude that by including “any commission authorized by statute,” the trial court
intended that the special commissioners would receive their commission. See id. But even if we
reach that conclusion, the orders do not explain how that commission should be divided. And
because the order directed both commissioners to sell the property but directed only one
commissioner to collect the proceeds, the trial court needed to divide the commission “as may be
just.” Id. Because the statute explicitly directed the trial court to act, we cannot rely on the trial
court’s silence to assume that it properly applied the law. On remand, the trial court must
determine the amount due to the commissioners.
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III. The Attorney Fee Awards
In the final order, the trial court awarded wife attorney fees as the prevailing party in the
immediate litigation and awarded husband attorney fees as the prevailing party in wife’s
previous appeals. The court awarded wife $31,575 and husband $17,730. The court then offset
husband’s fee award against wife’s award and ordered husband to pay wife $13,845.6 We
review each fee award for an abuse of discretion. See Lambert v. Sea Oats Condo. Ass’n, 293
Va. 245, 252 (2017).
A trial court abuses its discretion “when a relevant factor that should have been given
significant weight is not considered; when an irrelevant or improper factor is considered and
given significant weight; and when all proper factors, and no improper ones, are considered, but
the court, in weighing those factors, commits a clear error of judgment.” Id. at 253 (quoting
Manchester Oaks Homeowner’s Ass’n v. Batt, 284 Va. 409, 429 (2012)).
a. Wife was entitled to all reasonable fees incurred enforcing the modification to the PSA.
In fashioning the fee award, the trial court granted wife attorney fees incurred by
enforcing the modification to the PSA, minus fees incurred due to the failed settlement
conference; fees incurred in relation to the October 10 hearing about the declaratory judgment
motion; and fees incurred in connection with a motion to compel discovery responses from
husband. Husband argues that wife was not entitled to a fee award under the PSA because the
modification was not a part of the PSA. As explained above, the modification was a valid
amendment to the PSA. Thus, wife was entitled to an award for all fees incurred enforcing the
6
Husband argues that the trial court erred by offsetting the fee award rather than ordering
each party to pay the other’s full award because that contradicted this Court’s mandate to award
husband appellate attorney fees. Husband misunderstands this Court’s order. We did not police
the form that the fees must take, we merely required that husband is compensated for his time
spent successfully defending against wife’s appeal. See Mills I, 70 Va. App. at 384. His time
was calculated, and his fee was awarded. The trial court’s decision to then offset that fee against
an award to wife did not contradict our mandate, and it was not error.
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PSA and the modification to the PSA. Husband further argues that wife was only entitled to a
reasonable fee award. On the other end, wife argues that the trial court erred by subtracting from
her fee award certain expenses because she was entitled to all expenses incurred as part of
enforcing the PSA. Wife does not allege that her fee award was reasonable; she instead asserts
that parties are only entitled to reasonable fee awards if the contract specifically uses the word
“reasonable.”
We recently recognized that “[a] prevailing party entitled by law to an award of attorney
fees has the burden of proving ‘that the requested fees are reasonable and that they were
necessary.’” Moncrieffe v. Deno, 76 Va. App. 488, 497 (2023) (alteration in original) (quoting
Sidya v. World Telecom Exch. Commc'ns, LLC, 301 Va. 31, 46 (2022)); see also Chawla v.
BurgerBusters, Inc., 255 Va. 616, 623 (1998) (“The party claiming the legal fees has the burden
of proving prima facie that the fees are reasonable and were necessary.”). In Ulloa v. QSP, Inc.,
271 Va. 72, 76 (2006), the Supreme Court considered a contract with the provision “if I violate
this Agreement . . . I will be responsible for all attorneys’ fees, costs and expenses incurred by
QSP by reason of any action relating to this Agreement.” The Supreme Court found that the
individual violated the agreement and had the burden to “pay reasonable attorneys’ fees
‘incurred by QSP in any action relating to this agreement.’” Id. at 81.
Here, the parties agreed that if a party was compelled to enforce the agreement, the other
party must pay for “any and all expenses incurred, including but not limited to, attorney’s fees
and costs . . . .” The PSA does not specify that the fees must be reasonable. However, we follow
the Supreme Court’s guidance and find that the PSA, like any contract, implicitly required that
the attorney fees awarded be reasonable. See id.; see also Chawla, 255 Va. at 619, 621 (holding
that the prevailing party is entitled to “reasonable” attorney fees where the contract awarded “all
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. . . attorney fees”). Husband is correct that wife was only entitled to all reasonable attorney fees
incurred through enforcing the PSA.7
When the trial court fashioned the fee award, it granted wife all fees incurred by
enforcing the PSA, minus certain fees it identified as excepted. Although husband argues that
the fee award was unreasonable, “a trial court is presumed to apply the law correctly,” and we
find no basis to disturb the trial court’s fee award.8 Shenk v. Shenk, 39 Va. App. 161, 169
(2002).
b. Husband was entitled to his attorney fees incurred drafting a brief in opposition
to wife’s petition for appeal to the Supreme Court of Virginia.
The trial court granted husband an attorney fee award for expenses incurred defending
against wife’s unsuccessful appeal to the Supreme Court of Virginia. Under Rule 5:35, “[a]
prevailing appellee who was awarded attorney fees and costs in the circuit court may [apply] in
the circuit court for additional fees and costs incurred on appeal . . . .” The application must be
filed within 30 days after the entry of a final appellate judgment disposing of the matter. See
In support of her argument, wife cites to the proposition that “[w]here contracts are
7
‘plain upon their face, they are to be construed as written, and the language used is to be taken in
its ordinary significance unless it appears from the context it was not so intended.” Dowling v.
Rowan, 270 Va. 510, 516 (2005). But given the relevant case law, it appears that contracts
awarding “all attorney fees” contain an inherent presumption that the fee award will be
reasonable, unless the parties clearly and expressly intend otherwise. This would be the
“ordinary significance” assigned to a provision addressing attorney fees. And this conclusion
finds support in Justice Holmes’s “common sense” approach to fashioning common-law rules of
contract. Globe Refine Co. v. Landa Cotton Oil Co., 190 U.S. 540, 543 (1903) (explaining that
“the common rules have been worked out by common sense which has established what the
parties probably would have [worked out] if they had spoken about the matter”). Few if any
contracting parties would agree to a fee-shifting provision in which the losing party must pay
unreasonable attorney fees to the prevailing party. Accord 1 Robert L. Rossi, Attorneys’ Fees
§ 9:39 (3d ed. 2022) (“[C]ourts have frequently held that the fee awarded must be reasonable
even in the absence of a specific language requiring that the fee be reasonable.”).
8
Wife also argues that the trial court arbitrarily reduced her fee award by excluding
certain fees incurred by enforcing the PSA. On remand, the trial court may consider whether
those excluded fees were incurred by enforcing the PSA.
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Rules 5:35, 1:1A. Contrary to wife’s assertion that there was no final appellate judgment, the
Supreme Court order denying the petition was that judgment because it disposed of the entire
matter. See Rule 1:1A. Within 30 days of that judgment, husband applied for a fee award for his
brief in opposition to wife’s petition. Husband met the requirements for requesting a fee award,
and the trial court did not err by granting that petition and awarding husband attorney fees in
connection with wife’s appeal to the Supreme Court of Virginia.9
c. The trial court properly calculated husband’s fee award pursuant to the previous
appeal to this Court.
As instructed in Mills I, the trial court also granted husband’s request for a fee award for
fees incurred defending against wife’s previous appeal to this Court. See Mills I, 70 Va. App. at
384 (remanding the case to the trial court for it to grant a partial fee award to husband). Wife
contests the trial court’s method for determining the amount of the fee award, arguing that
husband could not prove the amount he should receive.
In Mills I we remanded the matter of appellate fee awards to the trial court “to take
evidence on the question of attorney[] fees on appeal and award husband the reasonable and
necessary attorney[] fees he incurred on appeal related to Sections 6.1 and 8.2 of the PSA.”
Mills I, 70 Va. App. at 384. Wife argues that husband did not meet his burden of proof for
showing which expenses were incurred under those sections.
Whether a trial court properly awarded a partial appellate fee award is a matter of first
impression for this Court. We are guided by three considerations. First, we reiterate that
9
Wife further argues that Rule 5:35(d) precluded husband’s attorney fee award because
he did not file a notarized bill of costs with the clerk of the Supreme Court within 14 days of the
decision. But husband was not awarded costs in connection with the petition to the Supreme
Court. The record shows that, in connection with the petition to the Supreme Court, husband
incurred $3,360 in attorney fees and $377.36 in other costs. The trial court awarded him $3,360.
Thus, whether husband filed a notarized bill of costs is immaterial because the trial court only
awarded his attorney fees, not his costs.
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attorney fee awards are reviewed for an abuse of discretion. Lambert, 293 Va. at 252. That
standard includes fee requests that are granted on appeal and calculated on remand. Second,
mathematical certainty is impossible. Brandau v. Brandau, 52 Va. App. 632, 643 (2008) (“We
accept that mathematical certitude is an illusory goal when attempting to segregate legal fees
between discrete arguments.”). Third, a fee request “should not result in a second major
litigation.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
To calculate the partial fee award, husband’s counsel submitted his timesheets for his
work spent on Mills I. He described his calculation for a reduced fee award as follows:
Where the violation of the love and affection clause was the only
entry on the timesheet, the fee was completely erased. Where the
violation of the love and affection clause was included with the
other two (2) violations, the fee was reduced by 33%.
....
[Wife] assigned seven (7) errors to the Court in a thirty (30) page
brief, and only 1/2 of one (1) assignment of error was found to
have any merit. A review of [husband’s] Reply Brief shows that
approximately one (1) page of his fifteen (15) page brief was spent
addressing the argument on which [wife] prevailed. . . .
Statistically, [husband] prevailed on over 86% of his arguments,
while [wife] was successful on one-half of 14%, or seven percent
(7%) of her appeal.
When an entry refers to work on the overall brief, the fee is
reduced by at least 14% (and not 7%) to give [wife] the benefit of
the doubt.
This calculation was accepted by the trial court, which then granted husband’s entire reduced fee
request. Wife opposed this calculation, arguing that “absent a detailed itemization of the time
spent on each of the relevant sections considered by the court, the court is without any evidence
at all on which to base an award of attorney’s fees.” Wife does not point to any authority that
requires such a “detailed itemization.” In fact, the relevant principles point in the other direction
because “mathematical certitude is an illusory goal.” Brandau, 52 Va. App. at 643. Wife asks
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us to hold that the trial court erred by not requiring husband’s counsel to produce a highly
detailed timesheet that proves he spent 33% of his time on one of three issues. We decline her
invitation because requiring husband’s counsel to account for the minutiae of every hour spent
on the appeal would make the fee award needlessly complicated and reminiscent of a renewed
litigation, in contravention of the principles outlined in Brandau.
There is no evidence that husband’s counsel was not honest in his fee request, and his
reductions are roughly equivalent to the proportion of Mills I which related to the Section 2.3
issue. We find that the trial court did not abuse its discretion by accepting husband’s counsel’s
calculations as reasonable estimates of counsel’s work.
d. Wife is entitled to reasonable attorney fees incurred on appeal that were
necessary to enforce the PSA.
In her reply brief, wife requests “any and all attorney[] fees and costs incurred in bringing
this appeal and in defending against appellee’s additional assignments of error.” The PSA
provides that she is entitled to “any and all” fees incurred through enforcing the PSA, but that
other attorney fee awards are within the Court’s discretion. Wife’s appeal was necessary to
enforce the part of the PSA granting her “any and all” attorney fees for enforcing the PSA, and
we must grant her reasonable attorney fees incurred in connection with that assignment of error,
outlined in section III(a) above. Wife’s other successful assignments of error related to the order
appointing the special commissioners. As those assignments of error were not related to the
PSA, we decline to award her attorney fees on that subject. See Rule 5A:30. Wife’s work
defending against husband’s additional assignments of error was also incurred “enforcing” the
PSA, thus she is entitled to those attorney fees. We remand for the trial court to determine and
award wife’s reasonable attorney fees incurred enforcing the PSA on appeal.
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CONCLUSION
For the reasons explained above, the trial court’s judgment is affirmed in part, reversed in
part, and remanded for further proceedings consistent with this opinion. Specifically, we remand
for the trial court to determine the amount due to the special commissioners, to allocate the costs
of the special commissioners, and to award wife a reasonable fee award for enforcing the PSA,
including on appeal.
Affirmed in part, reversed in part, and remanded.
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