                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


DONALD C. McINTYRE
                                                OPINION BY
v.   Record No. 1802-96-4                  JUDGE CHARLES H. DUFF
                                              OCTOBER 7, 1997
GARNET M. McINTYRE


             FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                   Benjamin N. A. Kendrick, Judge
            Mary M. Benzinger, (Benzinger & Benzinger, on
            brief), for appellant.

            Marcia M. Maddox, (Heather A. Cooper, on
            brief), for appellee.



     Donald C. McIntyre (husband) appeals the decision of the

circuit court awarding attorney's fees to Garnet M. McIntyre

(wife).   Husband contends that the trial court:    (1) lacked

jurisdiction to award wife attorney's fees incurred in the course

of a previous appeal; and (2) abused its discretion by awarding

wife attorney's fees without proof of need or disproportionate

ability to pay.   We agree that the trial court lacked

jurisdiction and, therefore, reverse.

     Under the terms of the final decree, the trial court

provided:
            In the event that [husband] appeals the
            judgments set forth . . . , bond or an
            irrevocable letter of credit conditioned upon
            the performance or satisfaction of the
            judgments, shall be posted with the Court in
            the amount of $35,000 suspending execution of
            the judgments during the appeal. The Clerk
            of Court is hereby directed to place any cash
            bond posted in an interest bearing account
            until further order of this Court.
This Court affirmed the trial court's decision and ordered

husband to pay to wife "damages according to law."    No express

provision was made concerning wife's request for appellate

attorney's fees.    Wife filed with the trial court a Motion for

Release of Bond, Interest on Judgment and Attorney's Fees upon

the conclusion of husband's appeal to this Court.    However,

husband filed a petition for appeal with the Supreme Court of

Virginia.    Husband's petition, and his subsequent petition for

rehearing, were both dismissed by the Supreme Court.    Wife then

filed with the trial court a new Motion for Release of Bond,

Interest on Judgment and Attorney's Fees.
        In O'Loughlin v. O'Loughlin, 23 Va. App. 690, 691, 479

S.E.2d 98, 98 (1996), 1 we held that, in the absence of a specific

remand for attorney's fees, the trial court lacks jurisdiction to

award appellate fees.
          The rationale for the appellate court being
          the proper forum to determine the propriety
          of an award of attorney's fees for efforts
          expended on appeal is clear. The appellate
          court has the opportunity to view the record
          in its entirety and determine whether the
          appeal is frivolous or whether other reasons
          exist for requiring additional payment.

Id. at 695, 479 S.E.2d at 100 (footnote omitted).    Neither this

Court nor the Supreme Court awarded wife appellate attorney's

fees or remanded the matter to the trial court with instructions

to make such an award.
    1
     O'Loughlin was decided subsequent to the order appealed from
herein.




                                   2
     Accordingly, the decision of the trial court awarding

appellate attorney's fees and costs is reversed.

     The trial court also awarded $2,800 in attorney's fees in

connection with wife's motion.   That award was within the trial

court's discretionary authority and was supported by credible

evidence.   We find no abuse of that discretion and affirm that

award.
                                         Affirmed in part and
                                         reversed in part.




                                 3
Benton, J., dissenting.


     With all due respect, I dissent from the majority's holding

that O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98

(1996), decided that a circuit court judge "lacked jurisdiction"

to award attorney's fees following an appeal.   Although

O'Loughlin states that the question presented was "whether,

absent an order from the Court of Appeals specifically remanding

the issue of attorney's fees incurred on appeal, a trial court

has jurisdiction to award such fees," id. at 691, 479 S.E.2d at
98, I do not read the opinion to address the question of the

trial judge's jurisdiction to award fees.   The opinion merely

holds "that a specific remand for attorney's fees is required"

before the trial judge may assess attorney's fees for services

rendered on appeal.    Id.

     O'Loughlin appears to be based on the following analysis:
          The rationale for the appellate court being
          the proper forum to determine the propriety
          of an award of attorney's fees for efforts
          expended on appeal is clear. The appellate
          court has the opportunity to view the record
          in its entirety and determine whether the
          appeal is frivolous or whether other reasons
          exist for requiring additional payment.

Id. at 695, 479 S.E.2d at 100 (footnote omitted).    I disagree

with that conclusion and with what I believe to be the O'Loughlin

holding -- that the trial judge is divested of the right to

exercise discretion to award attorney's fees unless the mandate

returned to the circuit court following an appeal specifically

remands the issue.    I would hold that Code §§ 20-103, 20-79, and



                                  4
20-99 provide independent authority for a circuit court judge to

award attorney's fees.    That authority, specifically conferred by

the General Assembly, is not eliminated by a mandate from this

Court implementing an opinion that does not address attorney's

fees.

        The context in which the fee request arose in this case is

not atypical.    During the initial proceeding in the circuit

court, the trial judge awarded a divorce and other relief,

including attorney's fees, to the wife.    The husband appealed to

this Court from the divorce decree and raised several issues.     In

response to that appeal and as part of her request for relief,

the wife requested this Court to affirm the judgment and award

her attorney's fees for the appeal.    Although this Court affirmed

the ruling of the trial judge in all aspects, this Court failed

to address the wife's request for attorney's fees for the

appellate services provided by her counsel.    The husband then

filed a further appeal to the Supreme Court.    The Supreme Court

dismissed the husband's petition for appeal and, thereby,

affirmed the ruling of the trial judge.    However, the Supreme

Court also failed to act upon the wife's request for attorney's

fees for the appellate services of her counsel.    As has been the

usual practice in the Commonwealth, the wife sought an award of

attorney's fees when the mandate was returned to the circuit

court ending the husband's appeals.     See, e.g., Bandas v. Bandas,

32 Va. Cir. 285 (1993) (Circuit Court of the City of Richmond);



                                   5
Adams v. Adams, Chancery No. 90000011 (1994) (Circuit Court of

Augusta County).   The trial judge awarded her attorney's fees for

the appellate services of her counsel.

     Attorney's fees have long been considered a cost necessary

to enable a spouse or child to maintain a suit for support.     See,

e.g., Carswell v. Masterson, 224 Va. 329, 331, 295 S.E.2d 899,

901 (1982); Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 362, 364

(1976); McKeel v. McKeel, 185 Va. 108, 116-17, 37 S.E.2d 746,

750-51 (1946); McClaugherty v. McClaugherty, 180 Va. 51, 69, 21
S.E.2d 761, 768 (1942); Heflin v. Heflin, 177 Va. 385, 399-400,

14 S.E.2d 317, 322 (1941).   By statute, the legislature has

provided for attorney's fees as follows:
          In suits for divorce . . . , the court having
          jurisdiction of the matter may, at any time
          pending a suit pursuant to this chapter, in
          the discretion of such court, make any order
          that may be proper (i) to compel a spouse to
          pay any sums necessary for the maintenance
          and support of the petitioning spouse,
          including an order that the other spouse
          provide health care coverage for the
          petitioning spouse, unless it is shown that
          such coverage cannot be obtained, (ii) to
          enable such spouse to carry on the suit
          . . . .


Code § 20-103(A) (emphasis added).   This statute allows an award

of attorney's fees in the trial judge's discretion.   See

Wilkerson v. Wilkerson, 214 Va. 395, 398, 200 S.E.2d 581, 584

(1973); Rowlee v. Rowlee, 211 Va. 689, 690, 179 S.E.2d 461, 462

(1971).

     In addition, Code § 20-79(b) provides as follows:
          In any suit for divorce, the court in which


                                 6
           the suit is instituted or pending, when
           either party to the proceedings so requests,
           shall provide in its decree for the
           maintenance, support, care or custody of the
           child or children in accordance with Chapter
           6.1 (§ 20-124.1 et. seq.), support and
           maintenance for the spouse, if the same be
           sought, and counsel fees and other costs, if
           in the judgment of the court any or all of
           the foregoing should be so decreed.


That statute also gives the circuit court judge discretionary

authority to award attorney's fees.       See Stratton v. Stratton, 16

Va. App. 878, 884, 433 S.E.2d 920, 923 (1993); Alphin v. Alphin,

15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992).
     Furthermore, "[c]osts may be awarded to either party as

equity and justice may require."       Code § 20-99(5).   This statute

likewise authorizes an award of attorney's fees, if necessary, as

the cost of enabling a spouse to carry on the suit.        See D'Auria

v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986).

     When the legislature enacted Code §§ 20-79, 20-99, and

20-103, it clearly intended to protect the ability of an eligible

spouse to obtain fees for that spouse's legal counsel.       The need

for attorney's fees is just as compelling when a spouse has been

required to secure the services of counsel to defend on appeal a

judgment in that spouse's favor.       To enable judges to respond

adequately to the needs of spouses, the legislature gave broad

discretion to judges to award attorney's fees and did not limit

in a strict manner the time in which attorney's fees could be

awarded.   The only statutory requirement is that the suit must be

pending.   Indeed, one of the statutory provisions allows the


                                   7
trial judge discretion to award attorney's fees and costs "at any

time" in a pending suit for divorce.   Code § 20-103.    O'Loughlin

does not hold that the divorce suit is not pending when the

mandate has issued and is before the circuit court on remand.     It

also does not address the authority of the circuit court judge to

award attorney's fees pursuant to Code § 20-103 while the suit is

still pending on remand.

     Generally, when a trial judge has discretion to award

attorney's fees, that discretion may be invoked after an appeal

has resolved the merits of the case.     See White v. New Hampshire

Dep't of Employment Sec., 455 U.S. 445 (1982).    A request for

attorney's fees and costs has traditionally been deemed to be

collateral to the judgment because the request seeks a benefit as

a consequence of the judgment.   See id. at 451-52; see also

Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168-69 (1939).

Thus, a trial judge's award of attorney's fees under Code

§ 20-103 for services rendered on appeal is collateral to the

remand order contained in the mandate.     Accord Wheeler v.

Wheeler, 636 A.2d 888, 890 (Del. 1993) (holding that trial

judge's statutory power "to award attorney's fees following an

appeal is not dependent upon a remand . . . for that purpose");

Dahnke v. Dahnke, 571 N.E.2d 1278, 1282 (Ind. Ct. App. 1991)

(holding that appellate attorney's fees were incurred during the

divorce proceedings and were awardable by the trial judge).    As

long as the remand order is still pending, Code § 20-103(A) is




                                 8
statutory authority, independent of the mandate, that empowers

the judge to award attorney's fees.    Accord Tolman v. Tolman, 461

P.2d 433, 435 (Idaho 1969) (stating that a trial judge's

statutory authority to award attorney's fees in a pending divorce

action is "unaffected by the fact that the mandate . . . did not

mention attorney fees").   Thus, I would hold that, in a case such

as this, where the trial judge otherwise has authority to award

attorney's fees and costs, the trial judge may properly consider

a timely motion to award attorney's fees for services rendered on

appeal even though the appellate court has not ruled upon the fee

request and has not addressed the issue in its remand order.     See

Code § 20-103.

     Contrary to O'Loughlin, I do not believe that "the appellate

court . . . [is] the [only] proper forum to determine the

propriety of an award of attorney's fees for efforts expended on

appeal."    23 Va. App. at 695, 479 S.E.2d at 100.   Indeed,

Virginia authority suggests that the trial judge is initially in

the best position to assess both the entitlement and quantum of

attorney's fees, leaving to the appellate court a review of that

decision.   Although the Supreme Court in Craig v. Craig, 115 Va.
764, 80 S.E. 507 (1914), remanded to the circuit court judge the

issue of attorney's fees, the Court did not hold that the

appellee was entitled to attorney's fees.   The Court ruled as

follows:
            Counsel for appellee have asked that an
            allowance for counsel fees be made for
            services rendered in this court. This we



                                  9
           decline to do, being of opinion that the
           trial court is in a better position to
           inquire into and do what is right and just
           between the parties in the first instance
           than this court. We shall, therefore, affirm
           the decree and remand the cause, but with
           leave to counsel for appellee to prosecute
           their claim for compensation before the law
           and equity court in the first instance, with
           the right of appeal to this court if a proper
           case shall be made for its exercise.


Id. at 765, 80 S.E. at 507 (emphasis added).   Thus, the Supreme

Court recognized that both the issues of entitlement and quantum

of fees were matters that could properly be addressed initially

by the trial judge.   See id.; accord Knighton v. Watkins, 616

F.2d 795, 801 (5th Cir. 1980); White v. White, 683 So. 2d 510,

512 (Fla. Dist. Ct. App. 1996) (stating that because the

appellate court has "no way of knowing how great is the need

. . . , nor how great is the ability to pay," the propriety and

amount of an award of attorney's fees usually should first be

"addressed by the trial court"), aff'd, 695 So. 2d 381 (Fla.

Dist. Ct. App. 1997) (en banc).    Indeed, the trial judge is

better positioned to assess the financial needs of the parties

and consider evidence germane to the reasonableness of the fee

request.

     The practical effect of the rule pronounced in O'Loughlin is
to require this Court to superintend attorney's fees requests in

domestic relations appeals.   After O'Loughlin, to preserve a

claim for attorney's fees expended on appeal, counsel must

present the issue of attorney's fees as a question presented on



                                  10
appeal either in the appellant's opening brief or in appellee's

cross-appeal.   This Court might possibly consider a timely

separate motion bringing the issue to the attention of this

Court.   Less certain is a mechanism for presenting the issue

before the Supreme Court at the petition stage.   Moreover, as

this case demonstrates, if the appellate courts fail to rule on

the issue, counsel must request a rehearing to raise anew the

entitlement to attorney's fees and request a ruling.   I believe

the statutes make that effort unnecessary.
     Because I believe that the statutes clearly authorize the

trial judge to consider a timely motion for appellate attorney's

fees when the mandate is pending on remand, I would affirm the

judgment.   Therefore, I dissent.




                                11
