THOMAS J. SHEA, JR.
TERESA A. SPINICCI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Michael F. Devine, Judge.
Marc A. Astore (Marc A. Astore, P.C., on briefs), for appellant.
Mehagen D. McRae (Roeder, Cochran & Haight, PLLC, on brief), for appellee.
Present: Judges Frank, Petty and Senior Judge Haley Argued at Alexandria, Virginia
MEMORANDUM OPINION [*]
WILLIAM G. PETTY JUDGE
Thomas Shea ("husband") appeals the trial court's awarding of attorney's fees and costs in a child support modification matter to Teresa A. Spinicci ("wife"). On appeal, husband argues that the trial court erred by awarding attorney's fees and costs to wife when she had not filed any responsive or counter pleadings requesting the fees and costs in the child support modification proceeding. For the following reasons, we agree. Therefore, we reverse the trial court's award of attorney's fees to wife.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. On September 6, 2012, husband filed a petition for modification of child support. In his petition, husband also requested attorney fees and costs. Wife did not file a responsive pleading. On January 2, 2013, the trial court heard the child support matter. At the hearing, wife orally requested her attorney's fees and costs. Husband objected to introduction of evidence regarding wife's attorney's fees. In his objection, husband noted that wife failed to file a pleading requesting any type of relief; therefore, wife was not in a proper position to ask for fees. The trial court stated, "With that, well, we'll address that issue later maybe, but with the amount and reasonableness not at issue, proceed. And I'll take your objection under advisement." The trial court then accepted into evidence an affidavit showing wife's attorney's fees "with retention of [husband's] objection on whether she can even ask for fees subject to further argument." Wife argued that an award of attorney's fees was supported by the language of the property settlement agreement ("Agreement")  because it allowed such awards for "seeking and/or opposing a modification of child support or child custody." The trial court noted that the Agreement allows a party to seek attorney's fees but does not require the award of such fees. Wife additionally argued that she was seeking to enforce the already-existing child support order. The trial court, however, interpreted the enforcement provision of the Agreement as applying to a show cause rule and concluded that "[t]his is not an enforcement action." Nevertheless, finding that it was "entirely within [its] discretion, " the trial court awarded attorney's fees and costs to wife. Husband timely appealed the award of wife's attorney's fees.
"On appeal, we view the evidence in the light most favorable to . . . the party prevailing below, 'and grant all reasonable inferences fairly deducible therefrom.'" Johnson v. Johnson, 56 Va.App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson, 29 Va.App. 673, 678, 514 S.E.2d 369, 372 (1999)).
"An award of attorney's fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion." D'Ambrosio v. D'Ambrosio, 45 Va.App. 323, 344, 610 S.E.2d 876, 886 (2005) "[T]he abuse of discretion standard requires a reviewing court to show enough deference to a primary decisionmaker's judgment that the court does not reverse merely because it would have come to a different result in the first instance" Lawlor v Commonwealth, 285 Va 187, 212, 738 S.E.2d 847, 861 (2013) (quoting Evans v Eaton Corp Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir 2008)) However, "the law often circumscribes the range of choice available to a court in the exercise of its discretion" Id. at 213, 738 S.E.2d at 861 "'The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions'" Id. (quoting Landrum v Chippenham & Johnston-Willis Hosps, Inc, 282 Va 346, 357, 717 S.E.2d 134, 139 (2011) (Millette, J, concurring)). Accordingly, we will not reverse an award "[u]nless it appears from the record that the [trial court] has abused [its] discretion, . . . has not considered or misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying [the] resolution of the conflict." Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
Code § 20-109(C) provides that where a property settlement agreement has been signed, "no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract." (Emphasis added); see also Rutledge v. Rutledge, 45 Va.App. 56, 62, 608 S.E.2d 504, 507 (2005) ("'[Code] § 20-109 restricts the court's jurisdiction over awarding 'alimony, suit money, or counsel fee' to the terms of the contract.'" (citations omitted)). Here, the Agreement authorized the trial court to award relief in the form of attorney's fees. However, most types of judicial relief are available only when specifically requested by a party in a pleading.
The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed.
Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935). "'Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed.'" Fadness v. Fadness, 52 Va.App. 833, 843, 667 S.E.2d 857, 862 (2008) (quoting Boyd v. Boyd, 2 Va.App. 16, 18, 340 S.E.2d 578, 580 (1986)). "The office of pleadings is to give notice to the opposing party of the nature and character of the claim, without which the most rudimentary due process safeguards would be denied." Boyd, 2 Va.App. at 19, 340 S.E.2d at 580. This Court has consistently held that pleadings must contain specific ...