Imad Nourdeen v. Patricia C Nourdeen

• Court: Court of Appeals of Virginia
• Decided: April 15, 2003
• Docket: 2236021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Clements and Senior Judge Bray

IMAD NOURDEEN MEMORANDUM OPINION * v. Record No. 2236-02-1 PER CURIAM APRIL 15, 2003 PATRICIA C. NOURDEEN

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON William C. Andrews, III, Judge

(Mara Medvin Matthews, on brief), for appellant. Appellant submitting on brief.

No brief for appellee.

Imad Nourdeen (husband) appeals the circuit court's order

making an equitable distribution award to Patricia C. Nourdeen

(wife) and awarding wife attorney's fees. On appeal, husband

contends the trial court erred by (1) finding it retained

jurisdiction to make the post-final decree equitable distribution

award, (2) finding the issue of attorney's fees was reserved, and

(3) awarding wife attorney's fees. Upon reviewing the record and

opening brief, we agree the court lacked jurisdiction to make the

equitable distribution award. However, we also find the issue of

attorney's fees was reserved and that the award was reasonable.

Accordingly, we reverse and dismiss in part and affirm in part.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Background

The parties married on March 21, 1996. Wife filed her bill

of complaint seeking a divorce from husband on March 31, 2000.

The court entered the final decree of divorce on March 5, 2002.

The final decree stated that "the ORDERS entered herein shall

remain in full force and effect unless modified by this final

decree of divorce" and that "this matter shall remain on the

docket of this Court for such other and further action as may be

deemed necessary."

On February 26, 2002, wife moved the court for "1. One-half

the 1999 Federal and State Income Tax refund check [and] 2.

Attorney's fees and Court costs expended in bringing this matter

before the Court." On April 18, 2002, forty days after the

entry of the final decree, the court heard wife's motion. The

court entered its order awarding wife one half of the 1999 tax

refund and $10,000 in attorney's fees on August 7, 2002.

Analysis

I.

Code § 20-107.3(A) authorizes a trial judge to enter a

divorce while retaining jurisdiction to adjudicate equitable

distribution. In relevant part, it provides as follows:

Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, . . . [t]he court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that

- 2 - such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

Code § 20-107.3(A). Nothing in the statute requires a trial

judge to grant every motion for bifurcation. Indeed, "the trial

[judge] must make a specific finding of clear necessity for

granting the divorce while retaining jurisdiction to decide

equitable distribution issues." Christensen v. Christensen, 26

Va. App. 651, 655, 496 S.E.2d 132, 134 (1998). The trial court

made no express finding that bifurcation of the proceedings was

"clearly necessary." See Code § 20-107.3(A).

The language in the decree that "this matter shall remain

on the docket of this Court for such other and further action as

may be deemed necessary," did not retain jurisdiction over the

case. It not only failed to specifically reserve jurisdiction

to adjudicate equitable distribution but it also did not comply

with the clear necessity provision of Code § 20-107.3(A).

Therefore, the court's equitable distribution award to wife is

reversed and dismissed.

II.

Husband further argues the trial court lacked jurisdiction

to award wife attorney's fees. He compares the reservation of

attorney's fees to the reservation of jurisdiction to adjudicate

equitable jurisdiction and asserts that because the trial court

did not make a finding of "clear necessity," it failed to retain

jurisdiction to award attorney's fees.

- 3 - This argument lacks merit. The reservation of equitable

distribution is strictly controlled by statute. Appellant

provides no authority to support his position. The trial court

has inherent equity power to reserve jurisdiction over

attorney's fees in a divorce decree. See Morris v. Morris, 3

Va. App. 303, 306, 349 S.E.2d 661, 662-63 (1986).

The final decree clearly reserved the issue of attorney's

fees by ordering that all previous orders shall remain in full

force and effect. The court's visitation order, entered

November 5, 2001, reserved attorney's fees. The notice for that

hearing specifically requested attorney's fees and costs

"expended throughout the divorce case." The court reserved the

issue of attorney's fees.

III.

An award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. See Graves v. Graves, 4

Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a

proper award of counsel fees is reasonableness under all the

circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,

338 S.E.2d 159, 162 (1985).

Husband implies a portion of the attorney fee award covered

expenses incurred during the equitable distribution dispute.

However, the record reveals the legal expenses list submitted by

wife included only expenses incurred before the equitable

- 4 - distribution hearing. The total attorney's fees claimed by wife

were $14,889.40. The court awarded wife $10,000 for attorney's

fees.

Appellant admits the divorce was "a contentious and lengthy

action." The trial judge was aware of the scope of the case and

the circumstances surrounding it. "Although we would prefer to

see an accounting of the time expended and services rendered

documented in the record, we cannot say that the [trial court]

abused [its] discretion in fixing the fee at [$10,000]." Davis

v. Davis, 8 Va. App. 12, 18, 377 S.E.2d 640, 643 (1989).

The burden is on the appellant to present a sufficient

record from which we may determine that the claimed error has

occurred. See Twardy v. Twardy, 14 Va. App. 651, 658, 419

S.E.2d 848, 852 (1992) (en banc). Husband has failed to present

any record demonstrating the attorney's fees awarded were

excessive, unfounded, or unreasonable. Based on the complexity

of the case and the respective abilities of the parties to pay,

the award was reasonable and the trial court did not abuse its

discretion in its attorney's fees award.

Accordingly, we reverse and dismiss the equitable

distribution award and affirm the trial court's award of

attorney's fees.

Reversed and dismissed in part, affirmed in part.

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