Virginia Lawyers Weekly//July 8, 2019
Virginia Lawyers Weekly//July 8, 2019//
Where a statute gave a court discretion to award attorney’s fees and costs on behalf of any party, the court was not barred from awarding such fees to a party who was represented by legal services and, as such, did not personally incur any fees or costs.
Nadia Gihar Bahta and Mohammed Seid Mohammed never married but are the parents of two minor children. On April 9, 2015, the circuit court entered an agreed order of custody and visitation for the parties’ children, giving Bahta primary physical custody and providing Mohammed with specific visitation rights.
On Aug. 23, 2017, Mohammed filed a motion to modify custody and visitation, seeking primary physical custody of the children and limited visitation for Bahta. A trial was held on Aug. 1, 2018 and both parties were represented by counsel. Bahta’s attorney was employed by Legal Services of Northern Virginia, or LSNV. As part of her representation agreement, Bahta authorized LSNV to pursue the collection of attorney’s fees if available and agreed that any attorney’s fees would be payable to LSNV.
Following the trial, the court denied Mohammed’s motion, finding no material change of circumstance and that modification was not in the best interests of the children. The court declined to award attorney’s fees to either party.
Two days later, Mohammed filed a pro se emergency motion to change the children’s school enrollment. Following an Aug. 10, 2018 hearing, a different circuit court judge denied the motion as frivolous and ordered him to pay Bahta’s attorney’s fees of $500.
On Sept. 21, 2018, the parties and their counsel appeared in court for entry of the final order from the Aug. 1, 2018 trial. Bahta asked the court to reconsider the issue of attorney’s fees and submitted an affidavit which stated that LSNV incurs expenses but does not charge their clients anything. The court denied the request, finding that Code § 16.1-278.19 bars such an award. This appeal followed.
Pursuant to Code § 16.1-278.19, a court may award attorney’s fees and costs on behalf of any party as the court deems appropriate based on the parties’ relative financial ability. Contrary to the circuit court’s conclusion, this language did not preclude the court from considering whether attorney’s fees were warranted in this case.
The phrase ‘attorney’s fees and costs on behalf of any party’ does not inherently require that the party actually incur attorney’s fees or demonstrate a need to be personally compensated. Rather, the phrase contemplates that an award may be appropriate when attorney’s fees have been expended in the course of legal representation. Although LSNV did not charge Bahta for its legal services, it still incurred costs and expended resources on her behalf, in accordance with the meaning of the statute.
By holding that an award of attorney’s fees was barred because Bahta herself did not incur fees, the circuit court erroneously construed §16.1-278.19 as a prohibition against awarding attorneys’ fees to parties represented by non-profit legal organizations that do not charge clients for their services. If the General Assembly wanted to create such a prohibition, it could have done so expressly, but it is well settled that courts are not permitted to add or subtract from the words used in a statute.
Because the court determined it was statutorily precluded from considering Bahta’s request, it did not exercise its discretion to determine whether the request was reasonable. Although we reverse the court’s erroneous legal conclusion that Bahta was ineligible to receive an attorney’s fees we express no opinion as to whether, on remand, an award is appropriate under the proper standard.
Reversed and remanded.
Haley, J., dissenting:
“The majority writes: ‘If the General Assembly wanted to foreclose fee awards in cases involving legal aid organizations under Code § 16.1-278.19 it could have expressly done so.’ But the precise reverse is also true: If the General Assembly wanted to authorize such payments to legal aid organizations it could have expressly done so.”
“Nadia G. Bahta is a party. But she is not a party who has incurred legal attorney’s fees. Legal Services of Northern Virginia is not a party. I suggest the majority has not followed the admonitions they have quoted, and I re-quoted above. They have ‘added words’ to Code § 16.1-278.19 and thus amended the statute. Believing this is solely a legislative function, I respectfully dissent.”
Cipolla v. Commonwealth of Virginia, Record No. 1976-17-2, June 18, 2019. CAV (Bumgardner), from Chesterfield Cir. Ct. (Robbins). Norman A. Thomas for Appellant; Rachel L. Yates for Appellee. VLW 019-7-108. 8 pp. Unpublished.