Litigation Procedure and Law - § 8-3 - § 8-5

§ 8-3.   Attorney’s Fees

(A)       Juvenile Court

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 of Appeals, Unpublished, No. 0168-11-4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.

(B)       Circuit Court

2016---McKenna v. Harple, Va. Ct. of Appeals, Unpublished, No. 1780-15-2
The trial court did not err in ordering Wife to pay a portion of Husband’s attorney’s fees where the record showed that Wife sought two protective orders against Husband that were ultimately dismissed, refused to cooperate with the sale of certain real estate, and caused Husband to file a motion to compel due to her failure to fully respond to discovery. Further, the trial court found that Wife was generally less cooperative than Husband and that she had refused to work towards a fair and reasonable resolution of the case.

2016 --- Gitter v. Gitter, Va. Ct. of Appeals, Unpublished, No. 1867-15-4
The trial court did not err in awarding Wife the majority of her attorney’s fees and her expert witness fees in spousal support and child support litigation. Husband’s failure to fully respond to discovery required Wife to file two motions to compel. Husband continued to argue at trial that his income was lower than that opined not only by Wife’s expert but also his own expert. Accordingly, the record reflected that the award was based on the parties’ circumstances and the equities of the case.

2015---MacDougal v. Levick, 66 Va. App. 50
The trial court did not err in assessing attorney’s fees against Husband even though he ultimately prevailed at trial. Although the facts supporting Husband’s successful legal theory were known to him at the beginning of the litigation, he chose to pursue alternative legal theories, at great expense to both parties, before abandoning his original challenges and switching course. Had Husband asserted his prevailing theory at the beginning, Wife would not have been required to spend significant funds defending Husband’s failed legal theories.

2015--Youngson v. Brautigam, Va. Ct. of Appeals, Unpublished, No. 2204-14-4
There is no requirement that a party seeking an award of attorney’s fees must submit his attorney’s fees affidavit or other evidence of attorney’s fees in compliance with Code of Virginia § 8.01-390.3, which deals with business records.

2014--White v. White, Va. Ct. of Appeals, Unpublished, No. 0903-14-4
The trial court did not err by awarding Father his attorney’s fees pursuant to Code of Virginia § 20-146.33, the UCCJEA’s attorney’s fees provision. Unlike the Code’s attorney’s fees provisions that generally apply in domestic relations cases, Code § 20-146.33 provides that the prevailing party has a presumptive right to attorney’s fees. This presumption is only rebutted upon a showing by the non-prevailing party that an award of attorney’s fees would be clearly inappropriate. Mother failed to rebut this presumption.

2014--LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
The key to a proper award of attorney’s fees is the reasonableness under all of the circumstances revealed by the record.

2014--Mayer v. Corso-Mayer, Va. Ct. of Appeals, Record No. 0724-13-1.
Trial court erred in awarding attorney’s fees to Mother in a child support case simply because she was the prevailing party. Code of Virginia §20-79(b) and §20-99(6) grant circuit courts broad discretion to award attorney’s fees and other costs in certain family law cases. However, neither of these statutes entitles the prevailing party in a suit to attorney’s fees. Instead, courts are to consider the “circumstances of the parties” and “equities of the entire case.” The trial court abused its discretion when it based its award of attorney’s fees on the fact that the Mother was the prevailing party rather than the “circumstances of the parties” or “equities of the entire case.”

2013--Manson v. Manson, Va. Ct. of Appeals, Unpublished, No. 1224-13-4.
Trial court did not err in refusing to award attorney’s fees to Wife incurred in proceedings for the modification of spousal support. The parties’ settlement agreement specifically provided for attorney’s fees in certain instances, but it did not provide for attorney’s fees in modification proceedings.

2013-- Shea v. Spinicci, Va. Ct. of Appeals, Unpublished, No. 0399-13-4.
The trial court erred in awarding attorney’s fees to wife on Husband’s Motion to Modify Child Support, where she neither requested an award of attorney’s fees in any responsive pleading nor provided any other notice that she was seeking attorney’s fees pursuant to the parties’ Settlement Agreement. The parties’ Agreement allowed either party to seek fees, but did not require the award of any such fees. Wife’s failure to provide notice of the nature and character of her claim for attorney’s fees precluded the court from obtaining subject matter jurisdiction over the claim. (Note: The Court of Appeals noted that Rule 3:25(A) of the Rules of the Supreme Court of Virginia might have supported an argument at trial or on appeal, but the Court of Appeals declined to address this issue sua sponte.)

2013--Collins v. Collins, Va. Ct. of Appeals, Unpublished, No. 0862-12-4
The trial court did not err in refusing to grant the wife attorney’s fees at an additional hearing on the motions to reconsider filed by both parties. In determining and awarding the amount of attorney’s fees after the trial, the court correctly assessed factors related to the reasonableness of an award under all of the circumstances, including: the time and effort expended by the attorney, the nature of the services rendered, the complexity of the services, the value of the services to the client, the results obtained, whether fees incurred were consistent with those generally charged for similar services, and whether the services were necessary and appropriate. (Citing Chawla v. BurgerBusters, Inc., 225 Va. 616, 499 S.E.2d 833 (1998)).

2012-- Craig v. Craig, 59 Va. App. 527
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--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--Lynchburg Division of Soc. Srvc’s v. Cook, 276 Va. 465
For cases originating in juvenile court, Va. Code §16.1-278.19 governs awards of attorney’s fees, even on appeal to circuit court.

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. Ct. of Appeals, Unpublished, No. 1676-06-2
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. Ct. of Appeals, Unpublished, No. 1961-06-4
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.

1992--Via v. Via. 14 Va. App. 868.
The trial court erred in failing to award Wife at least a portion of her attorney’s fees. Many of the notices and motions filed by Wife’s counsel were as a result of Husband’s failure to respond to discovery and court orders. Furthermore, Husband’s income was roughly four times that of Wife. In cases where the parties have disparate abilities to access the judicial system, a complete denial of attorney’s fees is an abuse of discretion.

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.

(C)       Court of Appeals

2015---Miller v. Green, Va. Ct. of Appeals, Unpublished, No. 1993-14-3
Wife was not entitled to an award of her attorney’s fees incurred on appeal. When a case is on appeal, the Court of Appeals has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment. Although Husband’s positions at trial, which were adopted in part by the trial court, were erroneous, they were fairly debatable. Husband’s advocacy in support of the trial court’s decision was not so egregious as to warrant an award of wife’s attorneys’ fees and costs on appeal.

2014---Cahill v. Cahill, Va. Ct. of Appeals, Record No. 2259-13-1
The trial court did not abuse its discretion in awarding Wife appellate attorney’s fees on remand following Husband’s appeal of the final decree of divorce to the Virginia Court of Appeals and the Virginia Supreme Court. On remand, the trial court heard evidence from an expert witness that the work performed by Wife’s appellate counsel was reasonable and necessary. The trial court had sufficient evidence to determine the reasonableness of Wife’s appellate attorney’s fees.

2012---Ibrayeva v. Kublan, Va. Ct. of Appeals, Unpublished, No. 1120-12-4
Husband, an attorney, represented himself on Wife’s appeal of a final decree of divorce. Husband requested attorney’s fees incurred in connection with an appeal. The court denied the request, holding that the Husband incurred no attorney’s fees because he appeared pro se.

2012---Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 1791-11-4
The Court of Appeals refused to award wife her attorney’s fees on appeal, despite the fact that husband did not prevail on any appealed issue, noting that “the quality of wife’s advocacy on appeal [did] not warrant such an award.”

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--Lynchburg Division of Soc. Srvc’s v. Cook, 276 Va. 465
Va. Code §16.1-278.19 controls awards of attorney's fees in the Court of Appeals when the case originated in the juvenile court.

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. Ct. of Appeals, Unpublished, No. 1961-06-4
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, Va. Ct of Appeals, Unpublished, No. 2731-06-2
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.

(D)

2011--- Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
A consideration involving the disqualification of counsel requires that the court balance several important factors: the right of a party to retain counsel of his choice and the substantial hardship which might result from disqualification as against the public perception of and the public trust in the judicial system. Further complicating the court’s task is the possibility of a disqualification motion being misused for the obvious tactical advantages. Thus, a high standard of proof is required of the party seeking disqualification. (Citing In re Chantilly Constr. Corp, 39 B.R. 466, 468-469 (Bankr. E.D. Va. 1984)).

The trial court properly denied mother’s motion to disqualify father’s brother as father’s counsel. Mother failed to allege how she would be harmed if her motion was denied. The hardship to father would be severe because his attorney had been involved on the case since the initial divorce in 2008, and had developed a litigation strategy. Furthermore, mother filed her motion less than one month before trial.

§ 8-4.   Bifurcation

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.

 

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