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No waiver to appeal attorney fee award

Although husband did not waive the right to appeal an attorney fee award to wife in the parties’ separation agreement, the trial court’s $33,900 award was reasonable, and wife may request “more attorney fees for the expenses she incurred in defending this meritless appeal.”

No waiver

“[T]he parties’ agreement contains no language expressly waiving a right to appeal the circuit court’s attorney fee award. Rather than stating, for example, that the circuit court’s determination would be non-appealable, the parties instead agreed to ‘reserve’ the issue of attorney fees for argument before the circuit court and to ‘follow the ruling’ of that court. …

“While wife argues that an appeal conflicts with an agreement to follow the ruling of the circuit court, the general rule is that all final rulings of the circuit court are subject to change on appeal. …

“Keeping that background principle in mind, an agreement to ‘follow the ruling’ of a lower court is at the very least ambiguous as to whether the parties agreed to follow the ruling of the circuit court assuming that order was affirmed on appeal or to follow the ruling with no further right of appeal.

“This ambiguous phrase fails to show husband clearly and unequivocally waived his right to appeal.”

Delayed litigation

“[T]he trial court awarded fees because of the delay in litigation husband caused by resisting discovery, forcing wife to move to compel, and then providing only some of the required documents in response to the court’s order to compel.

“The court noted that wife made repeated efforts to resolve the matter through counsel, then after she could no longer afford an attorney, by acting pro se. And the record shows that husband’s decision late in the litigation to seek annulment alleging that the marriage was fraudulent – a claim he eventually dropped – required additional costly depositions.

“When a party unnecessarily prolongs litigation, it increases the amount of attorney fees the other party incurs and is a relevant factor for a trial court to consider in awarding attorney fees.

“For example, we have found that attorney fees were justified when a wife caused delay in litigation by failing to complete auction procedures (after requesting the family business be auctioned), failing to execute a deed until compelled to do so, being slow to respond to discovery, and failing to produce an accounting even after receiving several continuances.”

Husband’s issues

“[H]usband tries to deflect blame for this protracted litigation by claiming that (1) wife increased the cost of litigation by instituting the action before the expiration of the one-year statutory periods applicable to absolute divorce, and (2) the court, as a matter of public policy, should not penalize a litigant for refusing to settle.

“Husband’s first argument rests on the premise that wife improperly filed for an absolute divorce (a vinculo matrimonii) on the grounds of desertion and separation before the applicable one-year statutory period had elapsed.

“In her complaint, however, wife requested a divorce from bed and board (a mensa et thoro) on the ground of desertion, ‘to be merged into a divorce a vinculo matrimonii after the expiration of the statutory time period.’ Nothing about this was improper.

“‘An a mensa divorce, unlike an absolute divorce’ for desertion or separation, ‘may be brought as soon as the grounds appear,’ and Virginia law allows either party to merge an a mensa divorce into a divorce a vinculo once the applicable statutory time period has passed. …

“For his second argument, husband cites no authority holding that a circuit court cannot consider a former spouse’s unreasonable resistance to settlement in deciding whether to award attorney fees. In fact, our Court has affirmed exactly that type of consideration on at least two prior occasions. …

“Finally, husband alleges that the court erred by awarding attorney fees in a no-fault divorce and that it was improper for the court to only consider the evidence wife presented in the first day of trial and not his side of the story. We have already rejected the argument that a court errs by awarding attorney fees in a no-fault divorce. …

“And when the court asked if the parties wanted to take up the issue of attorney fees during what had been set aside for the second day of trial, husband agreed to proceed at that time and failed to put on any evidence when given the opportunity to do so.

“In sum, we find no evidence to suggest that the circuit court’s award of attorney fees was an abuse of discretion.”

Appellate fees

“While husband did not waive the right to appeal the award of attorney fees in the marital property agreement, this fact alone does not shield him from the consequences of filing a meritless appeal. We award attorney fees here because all of husband’s arguments are either waived or without merit.

“Put simply, no ‘reasonable construction of the record or the governing legal principles’ could support them. … Therefore, we conclude wife is entitled to a reasonable amount of attorney fees incurred in connection with this appeal and remand this case to the circuit court to determine that amount.”

Affirmed and remanded for determination of appellate attorney fees.

Yazdani v. Sazegar, Record No. 1346-21-4, Dec. 13, 2022. CAV (Lorish). From the Circuit Court of the City of Alexandria (Kemler). Adam Fleming for appellant. Brandy M. Poss for appellee. VLW 022-7-561, 12 pp.