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Judge calls out court on lawyer’s fees

The Virginia Supreme Court’s remand of a grandparent custody case has raised questions about who gets to award attorney’s fees, according to four judges of the Court of Appeals.

In its Sept. 12 opinion in Lynchburg Division of Social Services v. Cook, the high court ordered the Court of Appeals to send the custody case back to the circuit court for additional findings, that could include attorney’s fees for the grandparents.

On Nov. 12, the Court of Appeals dutifully remanded the case, but its published order included a concurrence by Judge Robert Humphreys, joined by Judges Robert Frank, Jean Clements and William Petty.

The Supreme Court, according to the concurrence, has “either inadvertently ordered the circuit court to do something that court has no authority to do” – award attorney’s fees for appellate proceedings – or it “has impliedly given the circuit courts authority that they never had before.”

The case had to go back to the trial court, the Supreme Court said, because the Court of Appeals erred in holding that the foster care plan statutes were subordinate to the general custody statutes. And the intermediate appellate court also goofed when it applied Va. Code § 16.1-278.19, which allows attorney’s fees for cases that originate in the JDR court, under a non-statutory standard the looked to the “reasonableness” of the legal position taken by DSS.

“Typically, when a lower court errs, as we did here, the case is remanded with instruction that the error be corrected by the court which erred….Here, the Supreme Court has departed from that precedent and ordered the circuit court to determine the propriety of an award of attorney’s fees for expenses incurred in the Court of Appeals,” Humphreys wrote.

Predicting “far reaching consequences,” Humphreys warned that under the high court’s analysis, “the more affluent party will invariably be required to pay the attorney’s fees of the other party in every JD&R case and at all levels of appeal, without regard to any other consideration.”

By Deborah Elkins

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