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Greene v. Greene

Supreme Court of Virginia
Mar 12, 1982
223 Va. 210 (Va. 1982)

Summary

reversing fee award lacking "supporting evidence"

Summary of this case from Gudino v. Gudino

Opinion

44276 Record No. 810871.

March 12, 1982

Present: Carrico, C.J., Cochran, Poff, Compton, Thompson, and Stephenson, JJ., and Harrison, Retired Justice.

An award of counsel fees must be supported by a proper showing of reasonableness; after appeal is docketed, leave of Supreme Court required to correct or alter decree.

(1) Attorneys — Fees — Award of — Must be Supported by Proper Showing of Reasonableness.

(2) Attorneys — Fees — Award of — Evidence — None in Record of Nature, Extent or Reasonableness of Services Rendered by Counsel — Fees Awarded in Retaliation for Award in Another State.

(3) Pleading and Practice — Supreme Court — Correction or Alteration of Decree Pending Appeal — After Appeal Docketed Leave of Supreme Court Required.

The parties were divorced by decree of the Trial Court in September, 1980. Custody of their two children was awarded to Mr. Greene, and there was no award of alimony or child support. In December, 1980, Mr. Greene sought an award of child support on the grounds that a material change in his financial condition had been occasioned by the entry of a judgment against him in a Florida court. The Florida judgment required him to pay Mrs. Greene $500 a month for child support, and $20,800 for counsel fees and costs in the Florida proceeding in which she had been awarded custody of the children. After hearing evidence ore tenus, the Virginia Trial Court on March 9, 1981 awarded Mr. Greene child support of $500 per month, and required Mrs. Greene to pay him $20,800 for his counsel fees. On August 30, 1981, the Trial Court entered another decree which repeated the financial arrangement of the March 9 decree, but which recited that the child support award was an offset against the Florida award, and that the counsel fees award should become null and void if the similar Florida award were set aside. Mrs. Greene's appeal of the March 9 decree, which was filed in the Supreme Court before the August 30 decree, is limited to a consideration of the Trial Court's award of counsel fees to Mr. Greene.

1. Counsel fees, if any, must be awarded upon a proper showing of what is reasonable. Robertson v. Robertson, 215 Va. 425, 211 S.E.2d 41 (1975), followed.

2. There is no evidence in the record of the nature, extent, or reasonableness of the services rendered by counsel, the Court apparently awarding fees solely in retaliation for a Florida award.

3. When the Supreme Court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy the jurisdiction of the Trial Court from which the appeal was taken must cease. Jurisdiction by the Supreme Court was acquired when the appellant's petition for appeal was filed and docketed in the Office of the Clerk of the Supreme Court and thereafter corrections and alterations can be made only with leave of the Supreme Court. A subsequent decree after the appeal was filed and docketed did not render the issue moot.

Appeal from a judgment of the Circuit Court of Mathews County. Hon. James B. Wilkinson, judge designate presiding.

Reversed and remanded.

C. F. Hicks (Martin, Hicks Ingles, Ltd., on brief), for appellant.

Robert M. Brown, Jr. (Hudgins, Neale Brown, on brief), for appellee.


Donna Vivian Greene and Raymond Lawrence Greene were divorced by decree of the trial court entered September 2, 1980, and the custody of their two children was awarded to Mr. Greene. No award of alimony or child support was made at that time.

On December 30, 1980, Mr. Greene filed a petition seeking an award of child support, alleging a material change in his financial condition occasioned, inter alia, by the entry of a judgment in a court in Florida. This judgment required him to pay Mrs. Greene $500 a month for child support, and $20,800 for counsel fees and costs in a Florida proceeding in which she had been awarded custody of the children. After hearing evidence ore tenus, the trial court, by decree entered March 9, 1981, awarded Mr. Greene child support of $500 per month, and required Mrs. Greene to pay her former husband $20,800 for his counsel fees. Mrs. Greene's petition for an appeal from this decree was filed with the Clerk of this Court on June 1, 1981.

It further appears that on August 30, 1981, while Mrs. Greene's appeal was pending here, the trial court entered another decree in this cause, in which it again awarded Mr. Greene child support and counsel fees in the same amounts as it had awarded him in the March 9 decree, but recited that the child support award "is an offset against the award of support of the Florida Court" and added further that its award of counsel fees to Mr. Greene should become "null and void should the decree of the Florida Court awarding $20,800.00 counsel fees and cost be set aside."

Mrs. Greene's appeal of the March 9, 1981, decree is limited to a consideration of the action of the trial court in awarding counsel fees to Mr. Greene in the amount of $20,800.

[1-2] Counsel fees, if any, must be awarded upon "a proper showing of what is reasonable." Robertson v. Robertson, 215 Va. 425, 430, 211 S.E.2d 41, 45 (1975). In the instant case, there is no evidence in the record before us of the nature, the extent, or the reasonableness of the services rendered by Mr. Greene's counsel in connection with the proceedings then pending before the trial court. Indeed, it is obvious that the court awarded counsel fees solely in retaliation for what the court considered to be an unconscionable award against Mr. Greene made in another proceeding by a Florida court. This action by the trial court was taken without supporting evidence, is plainly wrong, and must be reversed.

Counsel for Mr. Greene suggested in argument on appeal that the issue upon which the appeal was granted may have been rendered moot by the decree entered on August 30, 1981. We disagree. The orderly administration of justice demands that when an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken must cease. We acquired jurisdiction over this matter when Mrs. Greene's petition for appeal was filed and docketed in the Clerk's Office of this Court, and thereafter corrections and alterations could be made only with leave of this Court. Lamb v. Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389, 392 (1981).

Accordingly, the decree complained of is reversed, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.


Summaries of

Greene v. Greene

Supreme Court of Virginia
Mar 12, 1982
223 Va. 210 (Va. 1982)

reversing fee award lacking "supporting evidence"

Summary of this case from Gudino v. Gudino

In Greene v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982), the Supreme Court of Virginia held that Virginia circuit courts do not have jurisdiction to invalidate appeal bonds after the petition for appeal has been filed with the Supreme Court of Virginia. Jones had filed his notice of appeal with the Louisa clerk before the August 4, 1988, order, amending the original judgment, was entered.

Summary of this case from Jones v. Poindexter

explaining that "[t]he orderly administration of justice demands that when an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken must cease," and, furthermore, that the appellate court "acquire jurisdiction over matter when [the petitioner]'s petition for appeal [is] filed and docketed in the Clerk's Office of this Court [the appellate court]"

Summary of this case from Lee v. Commonwealth

In Greene, the Supreme Court held that a trial court could not modify a child custody order while an appeal from such order was pending in the Supreme Court.

Summary of this case from Zamani v. Com

In Greene v. Greene, 223 Va. 210, 288 S.E.2d 447 (1982), the Supreme Court of Virginia held that a decree altering an award of counsel's fees to the husband was ineffective because the decree was entered while an appeal of the original decree was pending.

Summary of this case from Decker v. Decker
Case details for

Greene v. Greene

Case Details

Full title:DONNA VIVIAN GREENE v. RAYMOND LAWRENCE GREENE

Court:Supreme Court of Virginia

Date published: Mar 12, 1982

Citations

223 Va. 210 (Va. 1982)
288 S.E.2d 447

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