Wife awarded attorney’s fee related to custody and support

Where the issue of attorney’s fees related to custody, visitation and child support were bifurcated from the underlying divorce matter, the court concludes that wife is entitled to an attorney’s fee. However, the court will apply a 30 percent reduction of the requested amount after considering “the equity and justice of the case and the circumstances of the parties[.]”

Overview

The parties’ settlement agreement provided that “‘Each of the parties will be responsible for his or her own legal fees and costs incurred in the negotiation, drafting and execution of this Agreement. The issue of attorney’s fees related to custody, visitation, and child support is reserved for determination by the Court.’ …

“On October 5, 2020, the Court conducted a hearing on the issue of Wife’s request for attorney fees associated with the underlying custody, visitation, and child support. As agreed by counsel, those calculations are limited to the time during the pendency of the divorce action until January 23, 2019, as those were the only invoices submitted for consideration. …

“The Court has carefully considered the written pleadings, authorities cited, evidence admitted, and argument received in making its findings herein.”

Analysis

“Code § 20-79(b) provides that ‘[i]n any suit for divorce, the court … shall provide in its decree … counsel fees and other costs, if in the judgment of the court any or all of the foregoing should be so decreed.’ Code§ 20-99(6) further clarifies that ‘[c]osts may be awarded to either party as equity and justice may require.’

“Such consideration of ‘equity and justice’ in the context of attorney fees necessarily requires a consideration of the circumstances of the parties and the equities of the entire case. … Other factors that may be relevant for consideration are the claims involved in the divorce, the parties’ relative success at trial, refusal of reasonable settlement offers, and a party’s conduct in delaying the case. …

“[T]he evidence before the Court reflects that the Husband has enjoyed, and continues to enjoy, significantly more income than the Wife.

“With respect to the costs of litigation, there appear to have been issues with discovery and lack of responsiveness on the part of Husband that increased Wife’s attorney fees. The discovery disputes were apparent from the billing records admitted into evidence. …

“Turning to the negotiations, it is clear that the parties attempted to settle the matter (and did, indeed, settle portions); but they were unsuccessful as to the issues of custody, visitation, and child support. In reviewing the emails admitted into evidence, however, it is clear that both parties made earnest efforts to resolve custody and visitation.

“While Wife contends that Husband’s negotiations were ill-intended, that is not evident from the correspondence. Rather, it appears that the parties came to an impasse over the children’s extracurricular activities and transportation to and from the same. Although it is unfortunate that the parties’ negotiations were of no avail, they do not appear to have been made in bad faith.

“Finally, the Court considers the outcome of the litigation and finds that neither party substantively prevailed on these limited issues. The visitation schedule ordered was not the same as either party proposed. However, on the issue of extracurricular activities and transportation, the Court ultimately agreed with the Husband and did not order him to take the children to their activities during his custodial time.

“In light of these considerations, and most importantly, the disparity between the parties’ incomes, the Court finds that an award of Wife’s attorney fees and costs is appropriate. …

“In light of the parties’ stipulations, the Court finds that the Wife’s counsel’s fee of $300.00 per hour is reasonable. Similarly, the Court finds that the amount billed for the case is consistent with the nature of the services rendered, the complexity of the case, and the value to the Wife. …

“However, the Court is also bound by the parties’ Settlement Agreement that limits an award of attorney fees and costs to those related to custody, visitation, and child support. Thus, the Court must examine the billing records to determine what fees and costs incurred were directly related to those limited issues.”

After reviewing the billing records, the court “finds that Wife has presented evidence of fees and costs totaling $21,181.65 for those issues. …

“In consideration of the equity and justice of the case and the circumstances of the parties, the Court reduces the amount of fees claimed by the Wife by thirty percent (equal to her income percentage as identified in the child support guidelines attached to the Final Order of Divorce).”

Wife’s award of attorney’s fees and costs is $14,827.16. Husband is ordered to make minimum monthly payments of $500.

In re: Tayyab v. Khan, Case No. CL00111243-00, Oct. 19, 2020, 24th Cir. Ct. (Irby). Tara Steinnerd Talley, Jason C. Knoster, Michelle Kaminsky for the parties. VLW 020-8-119, 8 pp.