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Barrett v. Barrett4/26/2005
ribution award, husband retained his interest in his law firm, the only substantial marital asset, and retained the marital residence, which was titled solely in his name.
From our review of the record, we cannot say the trial court's judgment as to the apportionment of marital debt to the husband, except as noted below, is plainly wrong or without credible evidence to support it. See Taylor, 5 Va. App. at 444, 364 S.E.2d at 249.
Attorney's Fees
Husband contends that the trial court erred "by awarding attorney's fees from another case," referring to attorney's fees wife incurred during the ended divorce proceedings. Generally, an award of attorney's fees to a party in a divorce proceeding is a matter within the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).
Wife's counsel in the divorce proceedings filed an amended bill of complaint, requesting an award of "attorney's fees and court cost expended in this [divorce] suit." However, the final decree of divorce did not award attorney's fees to wife, nor did it reserve to wife the right to seek attorney's fees in the deferred proceedings for equitable distribution and spousal support. Moreover, wife's counsel did not file any exceptions to the final decree of divorce asserting error on the part of the trial court for failure to award attorney's fees to wife or to reserve to her the right to seek those fees at a later proceeding. That divorce decree, having become final twenty-one days after its entry, could not thereafter be modified to award attorney's fees to wife. Rule 1:1. Nevertheless, the commissioner recommended in his report that the trial court require husband to contribute $10,000 toward the accumulated attorney's fees incurred by wife in the divorce proceedings, implicitly categorizing the wife's attorney's fees as marital debt. The trial court agreed, but it subsequently reduced the amount of the award to $6,000.
Husband contends that the trial court erred in adopting the commissioner's classification of wife's attorney's fees as marital debt, and in ordering him to pay $6,000 of that debt. He asserts that wife incurred these fees after the parties separated on July 21, 2001, which is also the date the court set for valuation of the parties' marital estate. He argues that pursuant to Code § 20-107.3(A)(2), attorney's fees incurred by wife after the parties separated cannot be classified as marital debt. We agree.
"All property . . . of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if as such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property . . . ." Code § 20-107.3(A)(2) (emphasis added). Here, it is clear from the record that the wife's attorney's fees were incurred after the parties separated and, therefore, not properly included in the marital estate as marital debt. The trial court has "authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E." Code § 20-107.3(C). However, it is without statutory authority to classify any debt incurred by either party after their separation, as marital debt.
This Court has previously held that unpaid attorney's fees may constitute debt when incurred in anticipation of divorce or separation, and it is not error for the trial court to consider that separate debt when fashioning its equitable distribution award. Booth v. Booth, 7 Va. App. 22, 29,
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