                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges Huff, O’Brien and Senior Judge Haley
              Argued at Fredericksburg, Virginia
UNPUBLISHED




              NADIA GIHAR BAHTA
                                                                               MEMORANDUM OPINION* BY
              v.      Record No. 1625-18-4                                    JUDGE MARY GRACE O’BRIEN
                                                                                     JUNE 25, 2019
              MOHAMMED SEID MOHAMMED


                                     FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                Brett A. Kassabian, Judge

                                Timothy Bryan Beason (Dipti Pidikiti-Smith; Walewska Marie
                                Watkins; Legal Services of Northern Virginia, on brief), for
                                appellant.

                                No brief or argument for appellee.

                                Amici Curiae: Virginia Poverty Law Center; National Legal Aid &
                                Defender Association (James Wilson Speer; Virginia Poverty Law
                                Center, on brief), for appellant.



                      Nadia Gihar Bahta (“mother”) appeals a decision by the Fairfax County Circuit Court

              (“circuit court”) denying her request to assess attorney’s fees against Mohammed Seid Mohammed

              (“father”), after his unsuccessful attempt to modify custody and visitation of the parties’ children.

              Because we find the court incorrectly concluded that Code § 16.1-278.19 “barred” it from awarding

              attorney’s fees, we reverse.

                                                          BACKGROUND

                      Mother and father, who never married, are the parents of two minor children. On April 9,

              2015, in a matter appealed from the Fairfax County Juvenile and Domestic Relations District Court



                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(“JDR court”), the circuit court entered an agreed order of custody and visitation for the parties’

children. Mother received primary physical custody of the children, with father having specific

visitation rights.

          On May 31, 2017, mother obtained a two-year protective order against father that precluded

him from contacting her except for “emergencies and to facilitate visitation.” The order’s

provisions allowed father to maintain his visitation schedule and “have contact with the children at

school but only when mother is not present.”

          On August 23, 2017, father filed a motion to modify custody and visitation. He sought

primary physical custody of the children and limited visitation with mother. In his motion, father

represented that he “[did] not know of any proceeding that could affect the current proceeding,

including . . . protective orders.”

          Trial occurred on August 1, 2018. At the time, both parties were represented by counsel.

Mother’s attorney was employed by Legal Services of Northern Virginia (“LSNV”). Mother’s

representation agreement with LSNV provided that “[i]f this case involves collection of attorney’s

fees, I specifically authorize LSNV to pursue collection of these attorney’s fees. I agree that any

attorney’s fees will be payable to LSNV.”

          At the conclusion of the evidence, the court denied father’s motion, finding no material

change of circumstance and that modification was not in the best interests of the children. The court

declined to award either party attorneys’ fees, evenly divided the cost of preparing the transcript,

and continued the matter for a hearing to enter a final order. Both attorneys were instructed to

attend.

          Two days later, father filed a pro se “emergency motion” to change the children’s school

enrollment. Following an August 10, 2018 hearing, a different circuit court judge denied father’s

motion as “frivolous and in violation of [Code §] 8.01-271.1,” prohibited father from filing any

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additional motions without the court’s permission, and ordered him to pay mother’s attorney’s fees

of $500.

        On September 21, 2018, the parties and their counsel appeared in court for entry of the final

order from the August 1, 2018 trial. Mother asked the court to reconsider the issue of attorney’s

fees under Code § 16.1-278.19. Mother’s counsel presented an affidavit of attorney’s fees and

stated that “[LSNV] incur[s] expenses but we don’t charge our clients anything.” The court denied

the request, stating as follows:

                I’m relying specifically on the language in [Code §] 16.1-278.19 that
                uses the word[s] “on behalf of any party.” It does not state “on
                behalf of a non-profit representing the part[y] based upon [a]
                representation that she received the benefit of [its] expertise at those
                costs.[”] . . . [T]he statute bars me from – and, regardless, I decline to
                award fees.

However, the court did order father to bear the entire cost of preparing the transcript.

                                              ANALYSIS

        Statutory interpretation “presents a pure question of law and is accordingly subject to de

novo review.” Reineck v. Lemen, 292 Va. 710, 721 (2016) (quoting Washington v.

Commonwealth, 272 Va. 449, 455 (2006)). Generally, appellate courts review decisions to award

attorneys’ fees for an abuse of discretion. Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245,

252 (2017). Because a court “by definition abuses its discretion when it makes an error of law,”

Leonard v. Commonwealth, 39 Va. App. 134, 148 (2002), we review its conclusions of law de novo

“to determine that the discretion was not guided by erroneous legal conclusions,” Koon v. United

States, 518 U.S. 81, 100 (1996).

                Thus, “the abuse-of-discretion standard includes review to determine
                that the [exercise of] discretion was not guided by erroneous legal
                conclusions, because a court . . . abuses its discretion if it
                inaccurately ascertains [the] outermost limits” of the range of choice
                available to it. . . . [T]he boundary of the range of choice available to
                the court is itself a relevant factor for the court to consider when

                                                  -3-
                exercising its discretion. . . . This is true whether the boundary is
                fixed by precedent or statute.
Lambert, 293 Va. at 253 (emphasis added) (quoting Lawlor v. Commonwealth, 285 Va. 187, 213

(2013)).

        Resolution of this case is determined by our interpretation of Code § 16.1-278.19, which

provides as follows:

                In any manner properly before the court, the court may award
                attorneys’ fees and costs on behalf of any party as the court deems
                appropriate based on the relative financial ability of the parties.

The statute is a departure from the default “American Rule” in Virginia, where each party pays its

own attorney’s fees, and the prevailing party cannot usually recover fees from the non-prevailing

party. See Reineck, 292 Va. at 721 (“[A]bsent a specific contractual or statutory provision to the

contrary, attorney’s fees are not recoverable by a prevailing litigant from the losing litigant.”

(quoting Chacey v. Garvey, 291 Va. 1, 8 (2015))).

        In denying mother’s request for attorney’s fees, the court relied “specifically” on the

language in Code § 16.1-278.19, “on behalf of any party.” It noted that the statute “does not say ‘on

behalf of a non-profit representing the part[y] based upon [a] representation that she received the

benefit of its expertise at those costs.’” The court determined it was “bar[red]” from awarding

attorney’s fees because mother did not incur fees and any award would effectively be “on behalf of”

LSNV rather than “on behalf of any party.” The court thus construed Code § 16.1-278.19 as a

prohibition against awarding attorneys’ fees to parties represented by non-profit legal organizations

that do not charge clients for their services.

        “When interpreting statutory language that ‘is plain and unambiguous, we are bound by the

plain meaning of the statutory language.’” Coles v. Commonwealth, 44 Va. App. 549, 557 (2004)

(quoting Beck v. Shelton, 267 Va. 482, 488 (2004)). In this circumstance, “we are not permitted to

‘add or to subtract from the words used in the statute.’” Id. (quoting Posey v. Commonwealth, 123

                                                  -4-
Va. 551, 553 (1918)). “We must also assume that the legislature chose, with care, the words it used

when it enacted the relevant statute.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295

(1990). See also Anderson v. Commonwealth, 182 Va. 560, 566 (1944) (“Courts are not permitted

to rewrite statutes. This is a legislative function.”).

        Code § 16.1-278.19 gives a court discretion to award attorneys’ fees as it “deems

appropriate” and when three express requirements are met: (1) the matter is “properly before the

court;” (2) the award is “on behalf of any party;” and (3) the award is “based on the relative

financial ability of the parties.” There is no dispute that the matter was “properly before” the circuit

court because it originated in the JDR court. See Fairfax Cty. Dep’t of Human Dev. v. Donald, 251

Va. 227, 229 (1996). The court did not determine the parties’ “relative financial ability” because it

ruled that as an initial matter, it lacked authority to award attorney’s fees to a party represented by a

non-profit organization providing legal services without charge. Therefore, the issue is whether an

award of attorney’s fees would be “on behalf of any party,” even though mother did not incur fees

and would have to remit the award to LSNV.

        The phrase “attorneys’ fees and costs on behalf of any party” does not require that the party

actually incur attorneys’ fees or demonstrate a need to be personally compensated.1 Instead, the

phrase contemplates that an award may be appropriate when attorneys’ fees have been expended in

the course of legal representation. Here, LSNV did not charge mother for its legal services.

Nevertheless, the legal services were not free from the perspective of LSVN; they were provided at

the cost of decreasing the services available for other clients. Therefore, an award of fees would

compensate LSNV for the resources expended “on behalf of” mother, which accords with the plain



        1
         Mills v. Mills, 70 Va. App. 362 (2019), cited by the dissent, is distinguishable because it
construed a property settlement agreement which expressly authorized an award of attorney’s fees
“incurred in connection” with “secur[ing] compliance” or a “breach” of the agreement. Id. at 383
(emphasis added). Code § 16.1-278.19 does not use the word “incurred.”
                                               -5-
meaning of the statute. We will not read additional requirements into Code § 16.1-278.19. See

Coles, 44 Va. App. at 557. See also Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 484

(2008) (reversing the denial of attorneys’ fees under Code § 16.1-278.19 where the decision was not

based on “the statutory factor of the ‘relative financial ability of the parties,’” but on a

“non-statutory standard . . . [that] the position of [the opposing party] was not unreasonable”). If the

General Assembly wanted to foreclose fee awards in cases involving legal aid organizations under

Code § 16.1-278.19, it could have expressly done so. See Brinn v. Tidewater Transp. Dist.

Comm’n, 242 F.3d 227, 232-34 (4th Cir. 2001) (construing a prior version of the Virginians with

Disabilities Act that expressly precluded recovery of attorneys’ fees if plaintiffs were represented by

a government agency).

        Other federal and state jurisdictions have reached similar conclusions. In Blum v. Stenson,

465 U.S. 886 (1984), the United States Supreme Court held that an award of attorneys’ fees

calculated according to market rates was appropriate in a civil rights action where the litigants were

represented by a non-profit legal aid society. Id. at 894-95. The Supreme Court noted that it was

clear from the legislative history of the relevant statute, 42 U.S.C. § 1988, that “Congress did not

intend the calculation of fee awards to vary depending on whether [a] plaintiff was represented by

private counsel or by a non[-]profit legal services organization.” Id. at 894.

                In determining the amount of fees to be awarded, it is not legally
                relevant that plaintiffs’ counsel . . . are employed by . . . a privately
                funded non-profit public interest law firm. It is in the interest of the
                public that such law firms be awarded reasonable attorneys’ fees to
                be computed in the traditional manner when its counsel perform legal
                services otherwise entitling them to the award of attorneys’ fees.

Id. at 895 (quoting Davis v. County of Los Angeles, 8 E.P.D. 9444, 1974 WL 180, at *2 (C.D. Cal.

June 5, 1974)). See also Martinez v. Roscoe, 100 F.3d 121, 124 (10th Cir. 1996) (holding that

publicly funded legal aid organizations are entitled to attorneys’ fees); Rodriguez v. Taylor, 569

F.2d. 1231, 1245 (3d. Cir. 1977) (stating that when attorneys’ fees are authorized by statute and
                                                   -6-
there is evidence of an attorney-client relationship, the award must be made “without regard to

whether the individual plaintiff initially assumed the financial burdens of representation”).

        State courts have similarly declined to impose a per se rule against awarding attorneys’ fees

where a party has received free legal services. See, e.g., Black v. Brooks, 827 N.W.2d 256, 264

(Neb. 2013) (“Numerous courts have held under a variety of statutory attorney fee provisions . . .

that unless a statute expressly prohibits its fee awards to pro bono attorneys, the fact that

representation is pro bono is never justification for denial of fees.”); Henriquez v. Henriquez, 971

A.2d 345, 353 (Md. 2009) (construing fee provision in child custody statute and finding “nothing

. . . that requires a court to consider the status of the legal services provided or whether a party

actually incurred legal fees” and refusing to “insert a consideration not listed by the [legislature]”);

Pearson v. Pearson, 488 S.E.2d 414, 426 (W. Va. 1997) (construing fee provision in divorce statute

and finding no intent “express or implied, by the legislature that attorney’s fees are not to be

awarded to a party receiving free legal services”); Love v. Love, 370 So.2d 1231, 1231 (Fla. Dist.

Ct. App. 1979) (stating, in a divorce case, that “[a]s to an award of attorney’s fees, we see no

reasonable basis on which to distinguish a client of a Legal Aid Society from one who retains

private counsel”).

        Nothing in Code § 16.1-278.19 precluded the court from considering whether attorney’s

fees were warranted in this case. By construing the statute as a bar against awarding attorney’s fees

to mother, the court was guided by an erroneous legal conclusion. See Lambert, 293 Va. at 253;

Leonard, 39 Va. App. at 148.

        Mother requests that this Court remand the case and order the circuit court to award her

attorney’s fees. However, because the court determined it was statutorily precluded from

considering mother’s request, it did not exercise its discretion to determine whether an award would

be “deem[ed] appropriate” under Code § 16.1-278.19. Additionally, the court did not consider

                                                   -7-
whether mother’s request was reasonable. See McGinnis v. McGinnis, 1 Va. App. 272, 277 (1985)

(“[T]he key to a proper award of counsel fees [is] reasonableness under all of the circumstances

revealed by the record.”). Although we reverse the court’s erroneous legal conclusion that mother

was ineligible to receive an attorney’s fees award under Code § 16.1-278.19, we express no opinion

as to whether, on remand, an award is appropriate under the proper standard. See Cook, 276 Va. at

484 n.11 (noting that the decision addresses “only the statutory standard under Code § 16.1-278.19

and expresses no opinion as to whether the [g]randparents, on remand, are entitled to any attorney’s

fees and costs upon application of the proper standard”). See also Alexander v. Flowers, 51

Va. App. 404, 416 (2008) (remanding “to the trial court for a determination of the appropriate

amount of fees, if any, based upon the legal services rendered in the circuit and juvenile and

domestic relations district courts and the financial abilities of the parties” and citing Code

§ 16.1-278.19).

                                            CONCLUSION

        The circuit court erroneously determined that Code § 16.1-278.19 precludes an award of

attorney’s fees when a party is represented by a non-profit legal organization that does not charge

for its services. Because this was an abuse of discretion, we reverse the court’s denial of mother’s

request for attorney’s fees and remand the case to the circuit court for further proceedings consistent

with this opinion.

                                                                               Reversed and remanded.




                                                  -8-
Haley, S.J., dissenting,

        I respectfully dissent.

        Code § 16.1-278.19 authorizes an “award of attorney’s fees . . . on behalf of any party . . . .”2

In implementing this provision, this Court has repeatedly in published decisions construed “party”

to mean a party who has “incurred” legal fees. Most recently, in Mills v. Mills, 70 Va. App. 362,

384 (2019), the trial court’s imposition of an award of the “attorney’s fees incurred” was affirmed,

and the cause remanded to “award husband the reasonable and necessary attorney’s fees he incurred

on appeal . . . .” See also, e.g., Kotara v. Kotara, 55 Va. App. 705, 710 (2010); Cartwright v.

Cartwright, 49 Va. App, 25, 31 (2006). The Virginia Supreme Court has defined “incurred” in

regard to automobile insurance policies covering medical expenses. “An expense can only be

‘incurred’ when one has paid it or become legally obligated to pay it.” Virginia Farm Bureau Mut.

Ins. Co. v. Hodges, 238 Va. 692, 696 (1989). This definition was quoted with approval in State

Farm Mut. Ins. Co. v. Bowers, 255 Va. 581, 585 (1998). To “incur” means “[t]o suffer or bring on

oneself (a liability or expense).” Incur, Black’s Law Dictionary (10th ed. 2014).

        The majority notes:

                “When interpreting statutory language that ‘is plain and
                unambiguous, we are bound by the plain meaning of the statutory
                language.’” Coles v. Commonwealth, 44 Va. App. 549, 557 (2004)
                (quoting Beck v. Shelton, 267 Va. 482, 488 (2004)). In this
                circumstance, “we are not permitted to ‘add or to subtract from the
                words used in the statute.’” Id. (quoting Posey v. Commonwealth,
                123 Va. 551, 553 (1918)). “We must also assume that the legislature
                chose, with care, the words it used when it enacted the relevant
                statute.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295
                (1990). See also Anderson v. Commonwealth, 182 Va. 560, 566
                (1944) (“Courts are not permitted to rewrite statutes. This is a
                legislative function.”).




        2
         For an expansive definition of “party,” see Jenerary v. Commonwealth, 262 Va. 418,
427-29 (2001).
                                                -9-
The majority writes: “If the General Assembly wanted to foreclose fee awards in cases involving

legal aid organizations under Code § 16.1-278.19 it could have expressly done so.” But the precise

reverse is also true: If the General Assembly wanted to authorize such payments to legal aid

organizations it could have expressly done so.

        Nadia G. Bahta is a party. But she is not a party who has incurred legal attorney’s fees.

Legal Services of Northern Virginia is not a party. I suggest the majority has not followed the

admonitions they have quoted, and I re-quoted above. They have “added words” to Code

§ 16.1-278.19 and thus amended the statute. Believing this is solely a legislative function, I

respectfully dissent.




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