Litigation Procedure and Law - § 8-1 (K) - § 8-5
(K)Administrative Process Act Appeals
2011--- Spurrier v. Va. Dept. of Soc. Srvc's, Va. Ct. of Appeals, Unpublished, No. 0772-11-1
On an appeal of a finding by the Department of Social Services that stepfather had committed sexual abuse, the circuit court did not err in refusing to allow stepfather to submit evidence that was beyond the scope of the record of the Department of Social Services’ agency-level hearing. On appeal from a decision of the Virginia Department of Social Services, the reviewing court will view the facts in the light most favorable to sustaining the agency’s action. Cases subject to the standard of review outlined in Va. Code §2.2-4027 cannot be considered a trial de novo since the factual issues on appeal are controlled solely by the agency record. The reviewing court is not free to take additional evidence, even at the request of one of the parties. The circuit court’s role in an appeal from an agency decision is equivalent to an appellate court’s role in an appeal from a trial court. In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal.
2010---Hobbs v. Virginia Dep’t of Social Services, Va. Ct. of Appeals, Unpublished, No. 0821-09-1
Judicial review of a founded disposition by child protective services of abuse or neglect is governed by the Administrative Process Act, codified at Va. Code §§ 2.2-4000 to 2.2-4033. The burden is on the appealing party to demonstrate error.
A party seeking relief from a founded disposition of abuse on grounds that the local department failed to comply with required procedure must demonstrate that the failure was not merely harmless error. If the party seeking relief satisfies that burden, the reviewing court shall suspend or set the case decision aside. Procedural violations that could have a significant impact on the ultimate decision so as to undermine the substantiality of the evidential support for the factual findings are not mere harmless error.
Trial court erred in holding that a Child Protective Services’ worker’s failure to record the first two interviews with an alleged child sex abuse victim, contrary to the mandate of Va. Administrative Code § 22 VAC 40-705-80(B)(1), was harmless error, where the hearing officer explicitly noted inconsistencies in what the CPS worker reported the child’s statements to have been in the first two interviews and in the statements made by the child in a third, recorded interview. The purpose of requiring that the interviews be recorded is to provide direct evidence of the child’s account of abuse rather than a secondhand report from the interviewer. If the child’s first statements differed significantly from the recorded interview, they could have had a significant impact on the hearing officer’s ultimate decision.
2010---Chabolla v. Dep't of Social Services, Va. Ct. of Appeals, Rec. No. 0293-09-1
While it is true that civil remedies and procedures contained in Title 8.01 of the Virginia Code may not apply in administrative agency proceedings, the Administrative Process Act grants an aggrieved party a right to direct review of a hearing officer's decision by an appropriate and timely court action against the agency in the manner provided by the Rules of Supreme Court of Virginia. Appeals from an agency decision pursuant to the Administrative Process Act necessarily implicate the Rules of Supreme Court of Virginia, even if they do not invoke the civil remedies and procedures addressed in Title 8.01 of the Virginia Code.
Unlike Rule 2A:4(a) of the Rules of Supreme Court of Virginia, Rule 2A:4(b) is not jurisdictional. Thus, the trial court did not err in allowing a party, pursuant to Rule 1:8, to amend his petition for appeal to include proper assignments of error and requests for relief after having timely filed the petition in accordance with Rule 2A:4(a).
On appeal of an agency decision, the sole determination as to factual issues is whether substantial evidence exists in the agency record to support the agency's decision. The reviewing court may reject the agency's findings of fact only if, considering the record as a whole, a reasonable mind necessarily would come to a different conclusion. In making this determination, the reviewing court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted. Chippenham & Johnston-Willis Hosps., Inc. v. Peterson, 36 Va. App. 469 (2001).
2011---West v. West, Va. Ct. of Appeals, No. 0448-11-3
The “mandate rule” forecloses in the remand from an appellate court to a lower court the relitigation of matters decided expressly or impliedly by the appellate court and the relitigation of matters addressed by the trial court, but not addressed on appeal. Issues in controversy that were not disposed of in the original decree are beyond the scope of the mandate rule. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances did not exist at the time of the order initially appealed, nor was the subject of the order appealed.
2001---Holden v. Holden, 35 Va. App. 315
On remand from the Court of Appeals, a trial court is still required to value property using the most current and accurate information available. Where an asset subject to equitable distribution is retained by one of the parties for a period of time after valuation but before the actual distribution, and the asset significantly increases or decreases in value during that time through neither the efforts nor the fault of either party, neither party should disproportionately suffer the loss or benefit from the windfall.
Trial court erred when, on remand from the Court of Appeals, it altered its original distribution of marital property such that husband was disproportionately assigned a loss in the value of certain stock that had occurred while the equitable distribution award was on appeal. The trial court originally ordered that the stock be divided in kind. Pending appeal, the stock lost value due to market factors. On remand, the trial court refused to revalue the stock to account for the loss in value, and instead relied upon the value as of the time of the original trial when reapportioning the equitable distribution award. As a result, husband was forced to bear the entire loss of value.
2001---Hart v. Hart, 35 Va. App. 221
Trial court erred when, on remand from the Court of Appeals with instructions to determine the value added as a result of specific improvements made to a house by husband, the trial court heard and considered evidence of additional improvements to the house which were not addressed or otherwise presented at the original trial.
2011--- Moore v. Moore, Va. Ct. of Appeals, Unpublished, No. 0117-10-4
Although the general rule is that the voluntary payment of a judgment deprives the payor of a right to appeal, payment of a monetary award based on a final decree of divorce, after the payor has noted objections and filed an appeal, does not constitute a “voluntary payment.”
2010---Briggman v. Commonwealth of Va. DSS, DCSE, Va. Ct. of Appeals, Rec. No. 1911-09-4
Mootness has two aspects: "when the issues presented are no longer live, or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486 (1969). Father's appeal of a civil contempt finding entered by the trial court for his failure to pay child support was moot where, by the time the appeal was heard, the child had long since been emancipated and father had purged the contempt by satisfying the arrearage amount. Since father was not entitled to restitution for child support previously paid, there were no live issues remaining for the court to decide.
2010---McCoy v. McCoy, 55 Va. App. 524
When a party files a notice of appeal, that notice effectively transfers jurisdiction from the lower court to the appellate court. When an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken ends.
Trial court erred in vacating an order of contempt after a notice of appeal of that order had been filed with the Court of Appeals.
2009---Miller v. Jenkins, Va. Ct. of Appeals, Rec. No. 2405-08-04 (June 23, 2009)
Court of Appeals jurisdiction over subject areas enumerated by Va. Code §17.1-405 is not limited to actions arising out of Title 16.1 or Title 20. Despite the fact that the suit was brought under the Declaratory Judgment Act, the underlying cause was a custody dispute, and thus, within the jurisdiction of the Court of Appeals on appeal from the trial court.
1994--- In Re: Jessica Margaret O’Neil , 18 Va. App. 674
The Court of Appeals has initial appellate jurisdiction in matters involving the appointment or qualification of a guardian for a minor child.
1999---Parish v. Spaulding, 257 Va. 357
Trial court did not err in refusing to permit father to withdraw his appeal of a juvenile court order concerning child support, where the parties together had previously brought nine different cases before the trial court over three years, fragmenting the issues to such an extent that a consolidation and resolution on the merits of all remaining issues was appropriate.
2012---Jaouni v. Salah, Va. Ct. of Appeals, Unpublished, No. 0168-11-4
The trial court erred in awarding father $14,000 in attorney’s fees incurred to prosecute his appeal of a protective order granted in the juvenile court, where the trial court failed to consider the mother’s financial ability to pay, pursuant to Va. Code §16.1-278.19.
2006---Cartwright v. Cartwright, 49 Va. App. 25
Trial court properly awarded $2,732.50 attorney fees to mother under Va. Code §16.1-278.19 where non-custodial Father petitioned court to be relieved of parental rights and obligations. Costs and attorney fees were also proper for expenses associated with the appeal.
1990---Klein v. Klein, 11 Va. App. 155
Evidence of the time expended and charges to the client is the preferred basis for an award of attorney’s fees.
2012--- Craig v. Craig, Va. Ct. of Appeals, No. 0785-11-4
The trial court erred in awarding wife her attorney’s fees in an action to modify a previously-entered QDRO for purposes of confirming the QDRO to the intent expressed by the parties in their settlement agreement. Where the parties have entered into a settlement agreement, Va. Code §20-109(C) bars the trial court from awarding counsel fees except in accordance with the agreement. The parties’ settlement agreement required set forth two predicates for an award of fees: (i) that a party be in default; and (ii) that the agreement be successfully enforced against that party. Though wife prevailed on her action to enforce the intent of the parties’ agreement by modifying a QDRO, nothing suggested that husband had “defaulted” under the agreement. In fact, husband had completely complied and abided by the terms of the agreement and the original QDRO that wife sought to modify.
2011--- Armar v. Armar, Va. Ct. of Appeals, Unpublished, No. 2202-10-4
Trial court did not err in ordering husband to pay $5,800 in fees that wife spent for a vocational expert. The trial court relied on lengthy testimony of the expert as to husband’s employability to impute income to husband.
2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Rec. No. 2232-09-2
While Va. Code § 16.1-278.19 is clearly designed to give the trial court authority to shift the burden of attorney’s fees and costs from one party to the other, it does not set out a requirement that a guardian ad litem’s fees must be divided among the parties based on their relative financial abilities. Moreover, under Va. Code § 16.1-267(A), the court is required to assess the total costs of the guardian ad litem’s representation of the child against both parents. Although that statute is silent as to how to apportion those costs between the parents, the trial court has discretion in doing so.
2010--- Wynn v. Wynn, Va. Ct. of Appeals, Unpublished, No. 2400-09-1
Trial court did not abuse discretion in implicitly finding that the parties separated when wife moved out of the marital residence, despite the fact that husband allowed her to return temporarily three years later after learning that she had been sleeping in her car. Upon wife's return, the parties slept in separate bedrooms and wife paid husband rent.
Trial court did not err in refusing to value or equitably distribute husband's business where the parties presented insufficient evidence as to the value or classification of the business. Although the court heard testimony regarding the date the business started, the fact that the business had only just begun to profit, and evidence regarding the purchase price of inventory, the value of equipment, and the gross sales, the court did not err in concluding that "based on the economy, it's too speculative to give wife anything as to the company."
2010--- Wynn v. Wynn, Va. Ct. of Appeals, Unpublished, No. 2400-09-1
Trial court did not err in awarding husband half of his attorney’s fees upon concluding that husband’s expenses were higher than they would have otherwise been, in part, because wife appeared pro se and requested that the case, which had previously been settled, be reopened.
2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
Trial court did not err in awarding husband $75,000 of the $255,000 in attorney’s fees that he incurred. Wife had continually failed to respond to discovery requests, had requested several continuances which, in part, led to a four-year delay in bringing the case to trial, had notified the court that the case had settled although no settlement was ever reached, and because of the sanctions entered against wife, husband had to provide all evidence of valuation on which the court relied.
2010---Davis v. Davis, Va. Ct. of Appeals, Unpublished, No. 1241-09-2
Given the unique equities of each case, appellate review steers clear of inflexible rules and focuses instead on reasonableness under all the circumstances for purposes of determining whether a trial court award of attorney’s fees was proper. Factors to be considered include the respective financial positions of the spouses and the degree of fault in precipitating the end of the marriage.
The trial court did not err in awarding wife $40,000 in attorney’s fees where it held husband to blame for the demise of the marriage, and further found that husband’s obstructive behavior made it unreasonably difficult to determine his assets and income producing potential, thereby increasing the cost of the litigation. Furthermore, husband clearly had the ability to pay the award.
2010---Chorbaji v. Simpson, Va. Ct. of Appeals, Unpublished, No. 2910-08-4
Where husband refused to provide full discovery, was not forthcoming in his deposition, and through his vindictive and baseless actions of contacting the police and filing with CPS against wife caused wife to incur substantial and “wasteful” attorney’s fees while “just trying to properly parent her children,” the trial court properly concluded that husband’s actions were “unnecessary, overly litigious, and threatening,” and properly ordered him to pay $25,000 of the $50,000 in attorney’s fees incurred by wife.
2010---Amberly v. Amberly, Va. Ct. of Appeals, Unpublished, No. 1783-09-4
Trial court did not err in ordering husband to pay $10,000 of the $34,800 in attorney’s fees incurred by wife in defending husband’s motion to terminate spousal support. Despite husband’s testimony that he could not afford the award, the court found that husband was “evasive” and that he had offered “little documentary proof” of his financial situation and his ability to pay, which caused wife to incur substantial fees.
2009---Lewis v. Lewis, 53 Va. App. 528
Trial court did not err in allowing Wife to present evidence of attorney’s fees after the pre-trial deadline for the submission of exhibits. Attorney’s fees would be incomplete and speculative if filed prior to the completion of argument. Husband did not argue that he was prejudiced by Wife’s failure to present this evidence earlier, nor did Husband contend that he did not have sufficient time to investigate the expenses listed.
2008---Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not abuse discretion in ordering Husband to pay $5,000 toward Wife’s attorney’s fees. Although Wife earned more than Husband, Husband bore a greater degree of fault in bringing about the dissolution of the marriage, and Husband engaged in repeated behavior that delayed resolution of the proceedings at the trial court level, including filing multiple motions to compel and motions for issuance of rules to show cause, thereby unnecessarily increasing Wife’s attorney’s fees.
2007---Brown v. Brown, Va. App. Unpublished, 34
Trial court did not err in denying husband’s request for attorney fees and awarding wife $1,500 in such fees due to Husband’s lack of cooperation and because Wife’s attorney had to perform work in order to effectuate the sale of marital properties.
2007---Mooney v. Mooney, Va. App. Unpublished, 42
Trial court did not abuse its discretion in awarding Wife $15,000 in attorney’s fees. Court went on to award Wife’s attorney’s fees and costs on appeal where Husband’s appeal presented questions not supported by law or evidence.
2007---Bullano v. Bullano, 2007 Va. App. Unpublished, 31
Trial court did not err in awarding $36,031.33 in attorneys’ fees and costs to Wife and in denying Husband an award of attorneys’ fees and costs.
2007---Duda v. Hunt, 2007 Va. App. Unpublished, 71
Trial court did not err in awarding $12,000 in attorney’s fees to ex-Wife in a dispute to modify visitation and child support. The ex-Wife prevailed with respect to most of the disputed issues and ex-Husband earned significantly more than ex-Wife.
2006---Kennedy v. Kennedy, 2006 Va. App. Unpublished, 471
Trial court erred in awarding Wife $2,500 in attorney’s fees and costs because that award was unsupported by the evidence.
2005---Mullen v. Mullen, 45 Va. App. 289
Trial court did not err in awarding mother attorney’s fees, despite the fact that the contempt proceeding upon which the award was based was dismissed by DCSE after the father paid all arrearages on the morning of the show cause hearing. There was no evidence that father made any effort to resolve the issue of his child support arrearages until the morning of the hearing, at which time mother had already prepared for the hearing.
2005---Dowling v. Rowan, 270 Va. 510
In a dispute over probate of a will, the trial court properly granted the surviving spouse fees for administration of the estate while denying his claim for fees related to elective share litigation.
2005---Figueroa v. Nelson, Va. Ct. of Appeals, Unpublished, No. 2221-04-4
Trial court did not err in requiring husband to pay $15,000 in attorney’s fees incurred by wife for her motions to modify visitation, child support, and her petition for show cause against husband, despite language in the parties’ settlement agreement that each party would be responsible for their own attorney’s fees in connection with any future matters. Courts have the power to award attorney’s fees incurred where contempt proceedings have to be initiated and conducted to enforce a prior order of the court, particularly in cases of child custody or child support. No contractual agreement regarding attorney’s fees prevents a court from awarding fees and costs in subsequent custody litigation in which one party is held in willful contempt of prior court orders.
2005---Irwin v. Irwin, 47 Va. App. 287
Circuit court did not abuse its discretion in failing to award Husband attorney fees in association with motions filed on pension issue. The dispute was bona fide, neither party’s position was unreasonable and both parties were in a financial position to afford a lawyer to protect his or her rights.
2005---O’Hara v. O’Hara, 45 Va. App. 788
Attorney’s fee provision in settlement agreement calling for attorney’s fees in the event of a default did not cover proceeding to terminate spousal support.
2005---Rutledge v. Rutledge, 45 Va. App. 56
Trial court did not err in denying wife’s motion for attorney’s fees incurred in a spousal support modification proceeding, where the separation agreement between the parties provided for the payment of attorney’s fees only (i) for costs incurred in getting the divorce, and (ii) for any breach of the agreement. When an agreement has been entered into by the parties, Virginia Code § 20-109(C) restricts a judge from ordering attorney’s fees except in accordance with that agreement. Although wife contended that the court had the discretionary authority to award fees because the agreement was silent with regard to fees in support modification proceedings, the court found that express reference to attorney’s fees for only certain situations implied the preclusion of an award of attorney’s fees in other situations, under the maxim, expressio unius est exclusio alterius.
2004---Cirrito v. Cirrito, 44 Va. App. 287
An award of spousal support to one party does not necessarily require a court to award attorney’s fees to that party. An award of attorney’s fees to a party in a divorce suit is a matter for the trial court’s sound discretion after considering the circumstances and equities of the entire case. The relative financial abilities and support issues should be considered as factors in weighing the equities, but are not exclusively determinative of whether an award should or should not be made.
2000---Gilman v. Gilman, 32 Va. App. 104
Wife’s claim for attorney’s fees denied because both parties had incurred substantial litigation-related expenses and that an award of legal fees was not necessary to enable Wife to carry on suit. “Factors to be considered include the respective financial positions of the spouses and their degree of fault in precipitating the end of the marriage.” p. 124
1999---Ragsdale v. Ragsdale, 30 Va. App. 283
Award of $15,000.00 in attorney fees to Wife was supported by the evidence.
1999---Richardson v. Richardson 30 Va. App. 341
Regarding an award of attorney’s fees, the focus should be on the parties’ bona fide claims, and not on the parties’ ability in settlement negotiations to predict in advance of trial the exact ruling of the court.
1999---Brown v. Burch, 30 Va. App. 670
A trial court has the discretion, as in all custody disputes, to award attorney's fees in custody disputes between a parent and a third party.
1998---Taylor v. Taylor, 27 Va. App. 209
It was error for trial court to award lump sum spousal support to compensate Wife for attorney's fees. (Federal law cited re non-dischargeability of attorney's fee award in a bankruptcy proceeding).
1997---McIntyre v. McIntyre, 25 Va. App. 599
The trial court lacks jurisdiction to award Wife attorney’s fees incurred in course of previous appeal.
1996---Fairfax County Dept. of Human Dev. v. Donald, 251 Va. 227
A circuit court, hearing an appeal from juvenile court, has the same statutory authority to award attorneys fees.
1995--- Schlieper v. Schlieper, Va. Ct. of Appeals, Unpublished, No. 2219-94-4
Trial court did not err in awarding husband $3,500 in attorney’s fees where wife filed late and incomplete discovery responses, failed to attend a scheduled inspection of the marital residence, and failed to attend a scheduled deposition. Despite the fact that husband did not provide an itemized list of fees and costs, the trial court nonetheless had the authority to enter an award of fees.
1995--- Snyder v. Snyder, Va. Ct. of Appeals, Unpublished, No. 2147-94-4
Trial court abused discretion in awarding husband attorney’s fees for defending against adultery charges, despite finding that wife failed to prove adultery by clear and convincing evidence. The trial court specifically found that husband’s close relationship, though not sufficient to establish adultery, led to the dissolution of the marriage and had an economic impact on the family. Moreover, husband’s monthly income was significantly higher than wife’s. Under those circumstances, the trial court’s award of attorney’s fees to husband essentially punished wife for pursuing adultery grounds, and was therefore an abuse of discretion.
1993---Stratton v. Stratton, 16 Va. App. 878
Court of Appeals rejected argument that a party divorced upon no-fault grounds is not entitled to attorney’s fees.
1990---Klein v. Klein, 11 Va. App. 155
Evidence of the time expended and charges to the client is the preferred basis for an award of attorney’s fees.
1982---Carswell v. Masterson, 224 Va. 329
A trial court has the discretion to award counsel fees incurred by an aggrieved party incident to contempt proceedings instituted and conducted to obtain enforcement of an order of the court. This is particularly true where the custody of a child, or child support, is involved because of the court’s continuing concern for the welfare of children, and because a parent’s common law duty to support his or her children is not affected by the entry of a final decree in a divorce case terminating the parent’s marital relationship.
2010---Kotara v. Kotara, Va. Ct. of Appeals, Rec. No. 0290-09-4
The Court of Appeals had the authority to award appellate attorney’s fees in a divorce case despite determining that it did not have subject matter jurisdiction over the appeal. A court has the jurisdiction to determine its own jurisdiction, and doing so often requires taking argument and the incurrence of attorney’s fees. Because a court has the jurisdiction to determine its own jurisdiction, and because Va. Code §20-99(5) empowers courts to award attorney’s fees in divorce cases “as equity and justice may require,” the Court of Appeals did not err in awarding attorney’s fees to wife despite dismissing husband’s appeal for lack of jurisdiction.
2008--- Broadhead v. Broadhead , 51 Va. App. 170
An award of attorney’s fees on appeal is not appropriate where the question presented is one about which there may have been a reasonable and an honest difference of opinion at the time the appeal was taken.
2008---Brandau v. Brandau, 52 Va. App. 632
Attorney’s fees point of law. Fees awarded for defending wholly meritless argument, but not for defending erroneous but fairly debatable argument.
2007---Klein v. Klein, 49 Va. App. 478
Appellant’s request for appellate attorney’s fees denied where nothing in record indicated that appellee generated “unnecessary delay or expense” in pursuit of her interests in defending the appeal. Appellee’s request for appellate attorney’s fees granted where appellant’s appeal lacked merit.
2007---Mooney v. Mooney, Va. App. Unpublished, 42
Trial court did not abuse its discretion in awarding Wife $15,000 in attorney’s fees. Court went on to award Wife’s attorney’s fees and costs on appeal where Husband’s appeal presented questions not supported by law or evidence.
2007---Polemeni v. Polemeni, Va. App. Unpublished, 37
Court awarded Husband attorney’s fees and costs where Wife’s case presented positions and questions unsupported by law or evidence.
2007---Bolton v. Bolton, Va. Ct. of Appeals, Unpublished, No. 2723-06-4
Although Wife prevailed, Court of Appeals denied her request for attorney’s fees and costs where the errors requiring appeal and reversal were not the fault of Husband.
2007---Shoemaker v. Karau, 2007 Va. App. Unpublished, 126
Court refused to grant competing requests for attorney’s fees on appeal. Given that reasonable jurists differed on the proper resolution of the issue, the Court concluded that Father’s appeal of the trial court’s ruling was not frivolous and does not warrant an award of attorney’s fees or the imposition of sanctions. For similar reasons, the Court denied Mother’s request for sanctions, the parties competing requests to respond to what each alleges to be factual inaccuracies and personal attacks contained in the other’s briefs and motions, and motions to dismiss various filings.
2007---Tuck v. Tuck, 2007 Va. App. Unpublished, 270
Attorney’s fees were awarded to Husband relative to Wife’s waiver, under Rule 5A:20, of three of the six questions presented for appeal.
2006---Keeling v. Keeling, 47 Va. App. 484
Husband’s position in an equitable distribution appeal was not so unreasonable as to enter an award of fees and costs incurred in the appeal to Wife.
2006---Martin v. Martin, 2006 Va. App. Unpublished, 546
Appeal was frivolous and Husband was entitled to award of attorney fees.
2002---Sullivan v. Knick, 38 Va. App. 773
No attorneys’ fees should be awarded for appeal where litigation addressed appropriate and substantial issues and neither party generated unnecessary expense or delay in pursuit of his or her interest.
2000---Patel v. Patel, 33 Va. App. 776
Court of Appeals denied both parties’ respective requests for attorney’s fees where both parties had reasonable grounds for appeal.
1998---Christensen v. Christensen, 26 Va. App. 651
Trial court should not enter divorce while reserving issue of equitable distribution absent express finding that such bifurcation is clearly necessary.
1996---O’Loughlin v. O’Loughlin, 23 Va. App. 690
Absent language of a specific mandate remanding the issue to the trial court, the trial court lacks subject matter jurisdiction to award attorney’s fees incurred on appeal.
The rationale for the appellate court being the proper forum to determine the propriety of an award of attorney’s fees for efforts expended on appeal is based on the appellate court’s opportunity to review the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment.
2004---Spriggs v. Spriggs, 43 Va. App. 510
When a trial court enters a divorce order that retains the matters of equitable distribution and support on the docket for later adjudication, thereby bifurcating the proceeding, Va. Code §20-107.3 requires the court to make an expressed finding that such bifurcation is “clearly necessary.” If the court fails to do so, the ruling is voidable and subject to challenge on direct appeal, but is not void ab initio. Thus, if neither party objects to or appeals such an order, then the order becomes and remains the law of the case.
§ 8-5. Commissioner in Chancery
2002---Heath v. Heath, 38 Va. App. 727
Parts of a report not excepted to are to be considered as admitted to be correct.
The parts of a commissioner’s report not excepted to are considered as admitted to be correct, both as regards the principles and the evidence upon which they are founded.
2000---Kelker v. Schmidt, 34 Va. App. 129
The report of a commissioner in chancery should be sustained unless a trial court concludes that the commissioner’s findings are not supported by the evidence.
1998---Jones v. Jones, 26 Va. App. 689
A commissioner in chancery’s report is presumed correct and should be sustained unless the trial court concludes that the commissioner’s findings are not supported by the evidence.
1995---Haase v. Haase, 20 Va. App. 671
The commissioner’s hearing is not a trial, and the standards applicable to such proceedings are necessarily relaxed…unless otherwise directed by the decree of reference. p. 679.