Jоseph D. TYDINGS, Appellant, v. Terry H. TYDINGS, Appellee.
Nos. 87-1491, 87-1492
District of Columbia Court of Appeals
Decided Dec. 13, 1989.
567 A.2d 886
Before TERRY, SCHWELB, and FARRELL, Associate Judges.
Argued Sept. 26, 1989.
Peter R. Sherman, with whom Mark S. Carlin, Washington, D.C., was on the brief, for appellee.
FARRELL, Associate Judge:
This is an appeal from two post-trial judgments entered following a decree of absolute divorce and attendant division of marital property. In the first, the trial court granted, in part, Mrs. Tydings’ motion for attorney‘s fees, expert witness fees and costs pursuant to
The primary issue before us is whether the trial court had discretion to require Mr. Tydings to pay any portion of his spouse‘s attorney and witness fees given the fact that Mrs. Tydings became, in appellant‘s words, a “very wealthy woman” as a result of the marital property distribution. Alternatively, appellant argues that the fee award was too high. We conclude that, although the award of attorney and expert witness fees was indeed high in comparison to awards reviewed in our prior reported decisions, the trial court did not abuse its discretion either in awarding fees or in the amount it ordered, given the complexity of the litigation and the respective financial abilitiеs of the parties. We also reject appellant‘s challenge to the two RCE distributions.
I.
From the outset, it was apparent that the contested aspect of this divorce litigation involved solely the distribution of financial assets worth millions of dollars acquired by Mr. Tydings before and during the marriage. In two pretrial orders, the trial court ordered Mr. Tydings to pay a total of $50,000 toward attorney and accountant fees incurred by Mrs. Tydings in preparation for trial. On the second occasion the court explained:
It is apparent that some of the major issues in this case will involve tracing of hundreds of thousands of dollars and the valuation of numerous and complex property interests. Mrs. Tydings’ need for exhaustive effort of high quality experts is equally apparent.
Following discovery and a trial that lasted four weeks, the trial court issued a 137-
Mrs. Tydings filed a post-judgment request for attorney‘s fees, expert witness and accountant fees, and costs totalling approximately $232,000, minus the $50,000 that had been awarded pendente lite. Following a hearing, the trial court issued a judgment setting forth and applying the criteria establishеd by this court‘s past decisions for the award of fees. The court recognized that the award of fees is discretionary under
The Wife clearly needed the services of her counsel and her experts. The Husband was represented by two well-respected and excellent counsel. He had the services of his large law firm available to him without charge. The Wife required counsel of commensurate abilities to represent her. The voluminous records and documentation involved, the number and complexity of the assets, and the Husband‘s legal positions required somewhat extensive discovery; a trial that was complicated and lengthy; and expert witnesses’ services and testimony.
The court also considered the respective abilities of the parties to bear the costs of litigation:
As between the parties, the Husband has a far greater ability to pay and contribute to the Wife‘s suit money than does the Wife. The Court has heard and considered the testimony of the Husband‘s counsel regarding the Husband‘s present financial circumstances and the dissolution of his law firm. The Court finds that the Husband‘s income has decreased substantially. Although the Wife will have significant income from spousal support and potential earnings from assets awarded to her, she will not have an amount close to that earned by the Husband from all sources, even at his decreased level. The Court estimates that her income from all sources will be approximately one-third that of the Husband‘s income from all sources. The Husband was awarded over seventy percent (70%) of the marital property and he, unlike the Wife, has substantial separate property.
The court therefore ordered appellant to pay Mrs. Tydings $154,872, or approximately two-thirds of the attorney‘s fees, expert witness feеs and costs incurred in her defense, less a credit of $50,000 for the sums paid pendente lite.
a two-step inquiry in cases in which a fee is awarded: first, whether to award a fee, and if so, to whom. Only when that preliminary decision has been made does the court further exercise its discretion in setting the amount.
Steadman v. Steadman, 514 A.2d 1196, 1201 (D.C. 1986).
On appeal, appellant does not question the reasonableness of the expenses set forth by Mrs. Tydings in support of her post-trial request for fees and costs. Necessarily, he also does not dispute the reasonableness of the expenses reflected in the $154,872 awarded by the trial court, which reduced the requested amount by about one-third. Mr. Tydings also does not maintain that the trial court failed to take into account Mrs. Tydings’ own financial ability in setting the specific amount of the award. Rather, his primary argument on appeal questions the legitimacy, under our statute, of any reimbursement for attorney or expert witness fees arrived at by comparing the respective financial abilities of the two spouses—at least when the requesting spouse‘s means have reached a certain level. Appellant points to the fact that, as a result of this litigation, Mrs. Tydings was made wealthy by any measure. He asserts that
A.
Appellant‘s contention that only strict inability to pay, or at least a need far more pressing than Mrs. Tydings could demonstrate, suffices to permit a fee award under
Appellant seeks support for his “strict construction” argument in former Chief Judge Reilly‘s concurring opinion in Rachal, in which he traced the history of
B.
There are, moreover, policy reasons why we must reject appellant‘s emphasis on the ability of Mrs. Tydings to meet her own litigative costs as a result of the property division. First, although in Rachal we held that the motivation of a spouse in pursuing (and compounding) divorce litigation should not influence the amount of a fee award, we acknowledged that this factor—and the resulting burdensomeness to the other party—can validly play a part in the threshold decision whether to award fees. See also Steadman, supra, 514 A.2d at 1200. To that extent, we recognized that
[A]bsent the possibility of an award of suit money, financial pressures might often coerce inequitable settlements or preclude trial preparation and effective litigation. The financially advantаged, controlling spouse may find litigation a profitable weapon. Faced with the prospect of an assessment of substantial suit money, however, the financially advantaged spouse may instead find settlement a more reasonable alternative.
There is another objection to the argument that attorney‘s fees were inappropriate because, viewed from the outcome of the litigation, Mrs. Tydings was a wealthy woman. Conceptually, if the modest size of the distribution received by the requesting spouse were the litmus test of whether fees could be awarded, the likelihood of that spouse‘s obtaining counsel and expert witnesses equal to the other spouse‘s would depend оn the willingness of those specialists to await the result of the property division to be paid.4 The arrangement would thus resemble a contingent fee. The Proposed Rules of Professional Conduct and Related Comments published by this court for comment on September 1, 1988, however, declare that such fees in domestic relations cases, though not prohibited, are “rarely justified.” Comment 4A to proposed Rule 1.5. See also ABA PROPOSED MODEL RULES OF PROFESSIONAL CONDUCT (August 2, 1983), Rule 1.5(d)(1) (prohibiting any fee in domestic relations matters contingent upon amount of property settlement). Limiting the award of attorney‘s fees under
All told, then, we do not agree with appellant that the trial judge improperly looked to the fact that he “has a far greater ability to pay and contribute to the Wife‘s suit money than does the Wife.” Neither our prior decisions nor sound policy prohibits equalizing the burden of litigation under
III.
The assets that Mrs. Tydings received in the property division included one-half of Mr. Tydings’ 36.75% interest in the
Appellant now argues that his appeal divested the trial court of subject matter jurisdiction over the July distribution and thus nullified its written order of December 2, 1987, awarding Mrs. Tydings 50% of that distribution. According to appellant, the August 14 judgment “fully considered RCE but did not grant the wife any interest in RCE distributions prior to August 14, 1987,” and the court could not amend that judgment once an appeal from it had been noted.
Appellant‘s characterization of the August order is not correct. In her December 2 order the trial court explained that in fact she had not fully considered the RCE asset in the August 14 property division. The August 14 order did two things with respect to RCE: it left to Mr. Tydings all past distributions made by the time of trial, and awarded Mrs. Tydings a share of all distributions (over an estimated ten-year pеriod discounted for present value) received from August 14 on. As the trial court pointed out, however, “[t]he July distribution constitutes an asset that was not in existence at the time of trial,” and hence “distribution of that asset is an issue that has not been before the Court.” In other words, the July distribution fell outside the terms and intent of the August 14 division of assets.8 It was separate property which, because the court had previously been unaware of its existence, she retained jurisdiction to distribute under
We likewise find no merit in appellant‘s argument that Mrs. Tydings was entitled only to a share of the October quarterly RCE distribution prorated from August 14, 1987, since that was the date she acquired her interest in RCE. As explained above, the trial court assigned a value to Mrs. Tydings’ one-half interest in RCE as of August 14 by reference to an anticipated stream of quarterly distributions, including one in October 1987. It is irrelevant that that distribution reflected income from the RCE partnership that was earned daily (and hence a portion earned before August 14) but distributed quarterly. If Mrs. Tydings’ share of the October payment were prorated, then the value of her interest in RCE determined as of August 14 would be diminished accordingly. The trial court intended no such result; on the contrary, as her December 2 order stated, the August 14 property division “requires an equal distribution of the October 1987 [RCE] distribution.”
Affirmed.
SCHWELB, Associate Judge, concurring in the result as to Part II and concurring as to Part III:
With some hesitation, I concur in the result reached by my colleagues. I write
In determining whether Mrs. Tydings was properly awarded a counsel fee, we are confronted with a question of statutory construction. We might therefore do well to begin by focusing on the language of the statute. As we recently reiterated in Parreco v. District of Columbia Rental Hous. Comm‘n, 567 A.2d 43, 45-46 (D.C. 1989), the intent of the legislature is generally to be disсerned from the language which it has used, and the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.
During the pendency of an action for divorce . . . , the court may:
(1) require the husband or wife to pay alimony to the other spouse for the maintenance of himself or herself and their minor children committed to such other spouse‘s care, and suit money, including counsel fees to enable such other spouse to conduct the case, . . . .
I have italicized suit money and enable, because the proper interpretation of the statute appears to me to turn on what the drafters intended to convey by using these particular words in a sentence dealing with the maintenance of thе requesting spouse and minor children.
I am aware of no District of Columbia precedent construing the phrase “suit money.” In our neighboring jurisdiction of Maryland, however, the Court of Appeals has held that
[i]t is settled law in this state that in a divorce action the wife, when she is without independent means of her own, has the right to require her husband to defray the expenses incurred by her in the suit. . . .
The reasonable and necessary expenses or “suit money” to which a wife is entitled, is generally defined as the money necessary to enable her to carry on or defend a matrimonial action, that is, the necessary expenses relating to bringing and carrying on or defending the action.
Rubin v. Rubin, 233 Md. 118, 123-127, 195 A.2d 696, 699-700 (1963) (citation omitted); see also McCurley v. McCurley, 60 Md. 185, 188-89 (1883).1 Similarly, in Scanlon v. Scanlon, 154 So. 2d 899, 904 (Fla. Dist. Ct. App. 1963), the court construed a Florida statute which provided for an award of suit money as rendering the husband liable for counsel fees “when two factors exist: (1) necessities of the wife and (2) the husband‘s ability to supply such necessities.” The use of the words “necessary” and “necessities” surely imports the notion of need.
According to Webster‘s Third New International Dictionary (1966 ed.), cited by the majority, enable means
1a: to render able; give power strength or competency . . .
1b: to make possible, practical or easy.
Other dictionaries contain other definitions, but I think it is fair to say that the primary meaning of the word is to make it possible for someone to do something; the idea of making that thing easy to do is secondary. As Chief Judge Reilly put it in his concurring opinion in Rachal v. Rachal, 489 A.2d 476, 481 (D.C. 1985), in focusing on the word enable,
at the time of [the] enactment of [the statute], Congress undoubtedly felt that wives without independent income or other resources were at a disadvantage in divorce proceedings unless provided enough financial assistance to enable them to retain a lawyer. . . . In short, the words “to enable her to conduct her case” clearly implied that a husband should be charged only with such portion of the fee incurred by the wife as was needed to provide her with legal representation.2
It is not easy for me to conclude that the award to Mrs. Tydings in this case qualifies as “suit money” or was necessary to “enable” her to maintain the action.3
Moreover, there are principles of statutory construction applicable to this case which merit some consideration. Under the “American” rule, absent bad faith or its equivalent, parties to litigation are ordinarily required to pay their own counsel fees. Steadman v. Steadman, 514 A.2d 1196, 1200 n. 4 (D.C. 1986), citing Alyeska Pipeline Serv. Co. v. Wilderness Soc‘y, 421 U.S. 240 (1975). “No statute is to be construed as altering the common law, farther than its words import.” Shaw v. Railroad Co., 101 U.S. 557, 565 (1880). As Judge (later Chief Justice) Vinson said for the court in Scharfeld v. Richardson, 76 U.S. App. D.C. 378, 379, 133 F.2d 340, 341 (1942):
The courts have consistently held legislation derogative of the common law accountable to an exactness of expression, and have not allowed the effects of such legislation to be extended beyond the necessary and unavoidable meaning of its terms. The presumption runs against such innovation.
Is the construction of the words “suit money” and “enable” as supporting the award here at issue truly a “necessary” and “unavoidable” one? The point seems to me, at best, doubtful.
According to my colleagues, Mr. Tydings’ contention that only a need far more pressing than Mrs. Tydings has demonstrated suffices to permit a fee award “is inconsistent with our prior decisions.” They cite Rachal and Steadman, supra. I agree with them to the extent that the test articulated in these cases does not presuppose a showing of need. It is less clear to me, however, that our precedents require a decision in favor of Mrs. Tydings.
In Rachal, to be sure, the majority stated that, in assessing the propriety of an award of counsel fees, the trial court may properly consider the “respective earning capacities of the parties.” 489 A.2d at 478. It made no allusion to any requirement that the requesting party demonstrate indigency or neеd. The principal issue in that case, however, was whether the court gave inappropriate consideration to the motivations of the parties. The majority opinion contains no discussion of the meaning of “suit money” or “enable,” or of the question whether counsel fees may properly be awarded to wealthy litigants. In Steadman, the issues were likewise quite different from those in the present case. The court there reiterated much of what was said in Rachal about motivation, but likewise eschewed any discussion of the issue here presented, except to allude without comment to Judge Reilly‘s concurring opinion in Rachal. 514 A.2d at 1200 n. 4.
In neither of the cases relied on by the majority did the court come directly to grips with thе contention which is here being so cogently presented by Mr. Tydings. As the Supreme Court stated in
The most that can be said is that the point was in the cases if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.
See also Thompson v. United States, 546 A.2d 414, 423 (D.C. 1988). “It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.” Kraft v. Kraft, 155 A.2d 910, 913 (D.C. 1959).4 We take Rachal and Steadman to their limits and perhaps beyond when we insist that they compel us to sustain an award of more than $150,000 to a woman who has become a millionaire on the theory that it constitutes “suit money” which “enables” her to litigate her case.
Courts of other states which have addressed this issue have taken a variety of approaches; the result often turns on the phrasing of a particular statute. Some decisions require a greater showing of need than was made here. In Blauner v. Blauner, 60 A.D.2d 215, 218, 400 N.Y.S.2d 335, 337 (1st Dept. 1977), app. denied, 44 N.Y.2d 648, 408 N.Y.S.2d 1023, 380 N.E.2d 336 (1978), the court stated that
it should be emphasized that counsel fees are awarded in a matrimonial action in order to insure that an indigent wife has legal representation. If she is able to pay her own counsel, no award may be made.
Accord Handwerger v. Handwerger, 61 A.D.2d 966, 403 N.Y.S.2d 266 (1st Dept. 1978).5 In Bitner v. Bitner, 228 Ind. 259, 263, 91 N.E.2d 169 (1950), the court made the limitation even more plain:
It is also the law that in a divorce proceeding if the wife has еither funds or credit sufficient for the purposes of her defense and her present support it is improper for the court to require the husband to furnish money for such purposes pending the litigation.
Accord Becker v. Becker, 141 Ind. App. 562, 568, 216 N.E.2d 849, 852 (1966); see also Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex. Civ. App. 1974) (“where both parties to a divorce action have substantial estates in their own right and in addition there is community property, there is ordinarily no justification for charging the wife‘s attorney‘s fees against the husband‘s estate“); In re Marriage of Westcott, 163 Ill. App. 3d 168, 516 N.E.2d 566, 573 (1987) (counsel fees may be awarded only if one party has the ability to pay them and the other does not).
Other courts have taken a less restrictive approach, and have focused on the comparative financial positions of thе spouses. As the court stated in Peak v. Peak, 411 So. 2d 325, 328 (Fla. Dist. Ct. App. 1982), for example,
Where the parties to a dissolution proceeding are equally able to pay attorney‘s fees, it is an abuse of the court‘s discretion to require one spouse to pay the other‘s attorney‘s fees. Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976). However, the purpose of section 61.16, Fla. Stat. (1979), permitting the trial court to award attorney‘s fees in a dissolution proceeding, is to insure that both parties will have the same opportunity to secure counsel. Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981). Where one spouse has a superior financial ability to secure counsel, it is not necessary
that the other spouse be completely unable to pay attorney‘s fees.
See also Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151, 154 (1982) (“that a party has sufficient funds to pay the attorney does not preclude an award for counsel fees“); Lavene v. Lavene, 148 N.J. Super. 267, 277, 372 A.2d 629, 633-34 (1977) (disparity of assets and income suggests that wife was entitled to some counsel fees, since she had the right to litigate effectively the equitable distribution issue).
My colleagues rely on some rather persuasive reasons of policy to support affirmance here. See supra, pp. 9-11. I agree with that discussion in its entirety, and I especially share the majority‘s concern that the rule for which Mr. Tydings contends might result in arrangements resembling contingent fees, which should not be encouraged in domestic relations cases. I note, however, that legislatures, not courts, make policy. We arе not authorized, as judges, to substitute our own notions of the public good for the views of our elected representatives. Although it is true of statutes, as of contracts, that when they are
susceptible to two constructions—the one working injustice and the other consistent with the right of the case—that one should be favored which standeth with the right,
Noonan v. Bradley, 76 U.S. (9 Wall.) 394, 407, 19 L.Ed. 757 (1869), I think we can reach the point where we make such a choice only after a fair consideration of the statutory language persuades us that the “just” interpretation is a reasonable one. My colleagues have passed rather lightly over the question whether this necessary precondition has been met.
For the reasons described above, I аm uncomfortable not so much with the result which this court has reached—it is probably a fair one—as with the route which it has taken to get there. The answer to the central question presented here is derived from cases which focused on other issues, and in which the language now deemed to govern the dispute before us was used without anyone apparently having pressed the point here urged by Mr. Tydings. Although we might infer from the existence of Chief Judge Reilly‘s separate opinion in Rachal that his colleagues’ failure to join it implied disagreement with it, the majority never really said so. The court‘s subsequent citation, in the footnote in Steadman, of Chief Judge Reilly‘s concurrence in Rachal may well have been an approving one; there is certainly nothing to suggest the contrаry.
Nevertheless, there can be little doubt that, at least since Rachal, and probably earlier, see Darling v. Darling, 444 A.2d 20, 23 (D.C. 1982) and authorities there cited, the courts in this jurisdiction have operated on the assumption that an award of the type here made by Judge Huhn is a permissible one. So far as I can discern, Mr. Tydings is the first litigant to challenge that assumption. Although this court has never squarely decided the issue, what it has said is more favorable to Mrs. Tydings’ position than to that of her former husband. I think it most improbable, though not impossible, that this court would hold in favor of Mr. Tydings’ position en banc. Accordingly, in spite of the misgivings which I have articulated, and in order to avoid conflict with assumptions justifiably based on prior opinions of this court, I am constrained to cast my vote in favor of affirmanсe.6
Notes
The award of а counsel fee in the hundreds of thousands of dollars in Rosenberg v. Rosenberg, 64 Md. App. 487, 505, 497 A.2d 485, 510 (1985), cited by the majority at 9 n. 3, was made under a statute which, unlike[S]ince the District of Columbia derives its common law from Maryland, decisions of the Court of Appeals of Maryland which have not been determined by the Court of Appeals for this Circuit are of great weight, and perhaps of greater weight than decisions of the courts of other states.
It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.
Finally, there is no merit to appellant‘s claim that the judge considered his inflexible behavior in setting the amount of the award. The court‘s analysis focused entirely on the factors—reasonableness of the amount of fees requested, need for the services, results achieved, and the respective financial abilities of the pаrties—that we have held to be proper considerations.
But see Borakove v. Borakove, 116 A.D.2d 683, 684, 498 N.Y.S.2d 5, 6 (2d Dept. 1986) (“the sufficiency of one spouse‘s financial means will not, standing alone, preclude an award of counsel fees“).