Although a husband did not prove adultery as a basis for divorce, a wife was not necessary the prevailing party in the proceedings, and even if she were, a fee award (or lack thereof) was within the trial court’s sound discretion.
The parties were married on November 13, 1999 and had two children. During the marriage, Husband was the primary wage earner and Wife did not work outside the home. At the time of the final divorce hearing, Wife was employed, earning $57,000 per year. Husband’s salary was $189,000 per year.
After a trial in May 2017, the court ordered joint legal and shared physical custody of the children and heard the remaining issues of divorce, equitable distribution, and spousal support in June. The parties agreed to reserve the issue of attorneys’ fees. The court granted Husband a divorce based on a one-year separation. Although Wife requested $4,000 per month in spousal support, the court awarded her $2,750 per month for seven years, and child support of $367 per month pursuant to Code § 20-108.2.
In its equitable distribution ruling, the court awarded the parties’ primary residence to Husband, but required him to refinance it and pay Wife $180,806.50 for her share of the home’s equity. Each party received half the marital share of the other’s retirement account, each received a car, and the court equally divided their joint cash management account.
Regarding fee awards, the trial court asked the parties to submit their supporting documents at least a week before the next hearing date of August 4. However, Wife did not submit her memorandum and request for $53,020 in attorney’s fees until August 3. Husband filed his opposition to Wife’s request and his motion for $43,320 in attorneys’ fees and costs on August 4. The court ultimately declined to award fees to either party. This appeal followed.
Wife maintains that the court abused its discretion in failing to grant her request for attorneys’ fees. She asserts that Thomas v. Thomas, 217 Va. 502 (1976), sets forth a “general rule” creating a presumption that attorneys’ fees should be awarded to a party who receives spousal support. But this court has rejected that proposition, instead following the rule that attorneys’ fees in a divorce suit are a matter for the trial court’s sound discretion, after considering the circumstances and equities of the entire case.
Here, the record reflects that although Wife earns less money than Husband, Wife received half of all marital property in the equitable distribution portion of the hearing, and Husband was ordered to pay her $2,750 per month in spousal support. Under these circumstances, Thomas did not require the trial court also to award attorney’s fees.
Moreover, even in divorce and post-divorce proceedings, Virginia law consistently adheres to the “American Rule” whereby attorneys’ fees are not recoverable by a prevailing litigant in the absence of a specific contractual or statutory provision to the contrary.
Considered in its entirety, the record establishes that the court did not abuse its discretion in declining to grant Wife’s request for attorney’s fees. Wife has invoked no contractual or statutory basis for her request that the court award fees to the prevailing party. And the court awarded the parties joint legal and physical custody of their children and divided the marital assets equitably. Wife prevailed in her request for spousal support, but received only $2,750 per month, rather than the $4,000 per month that she sought.
Furthermore, nothing in the record indicates that Husband unnecessarily prolonged the litigation. To the contrary, the case contained many complex and interdependent issues. For example, Husband’s adultery claim had the potential to negate Wife’s entitlement to spousal support, and the court found that Wife’s behavior was among the “[t]he circumstances and factors which contributed to the dissolution of the marriage” and considered it in its equitable distribution determination.
Finally, because a court is not required to articulate the basis for its decision regarding attorneys’ fees, the trial court’s cursory statement on fees does not require a finding that it did not consider the circumstances and equities of the particular case.
Scalzott v. Scalzott, Record No. 1459-17-4, Apr. 17, 2018. CAV (O’Brien), from Fairfax Cir. Ct. (Ortiz). Samuel A. Leven for Appellant; no argument for Appellee. VLW No. 018-7-094, 7 pp.