COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Russell and Senior Judge Haley

Argued by videoconference

KAREN ELIZABETH CAIN

MEMORANDUM OPINION* BY

v. Record No. 0142-21-4 JUDGE JAMES W. HALEY, JR.

OCTOBER 26, 2021

THOMAS MATTISON CAIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Penney S. Azcarate, Judge

Michael C. Miller (Cole Miller PLLC, on briefs), for appellant.

Melanie Hubbard (Malinowski Hubbard, PLLC, on brief), for 

appellee.

BACKGROUND

“When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Mills v. 

Mills, 70 Va. App. 362, 368 (2019) (quoting Kahn v. McNicholas, 67 Va. App. 215, 220 (2017) 

(alteration in original).

Thomas Mattison Cain (father) and Karen Elizabeth Cain (mother) were married in 1999, 

separated in 2018, and divorced in 2019. They had four children. During the divorce proceedings, 

the circuit court entered two orders pertinent to our review. The March 19, 2019 custody order 

incorporated the parties’ custody settlement agreement (CSA, signed March 19, 2019). The July 17, 

2019 divorce decree incorporated the parties’ mediated marital settlement agreement (MMSA, 

signed June 12, 2019).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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The CSA contained approximately forty paragraphs, sub-paragraphs, and 

sub-sub-paragraphs and comprised ten pages of the appendix. The MMSA contained 

approximately 150 paragraphs, sub-paragraphs, sub-sub-paragraphs, and comprised thirty-six pages 

of the appendix. The specificity of these agreements, as will be shown, were certain to promote 

controversy and litigation, as well as attorney’s fees. They did so well before the agreements were 

incorporated into the divorce decree, and thereafter.

The full appendix of this litigation comprised 634 pages. It contains voluminous copies of 

correspondence or emails directed to counsel or a party, prior to the present litigation. A substantial 

portion of that correspondence can only be described as totally trivial. For example, some of the 

documented material arose from controversy as to possession of a waffle maker and reimbursement 

for one-half of one month’s bill from Republic Trash service in the amount of $13.78. None of the 

attorney’s fees for these matters was included in the claims for attorney’s fees involved in this 

litigation, as all attorney’s fees and costs associated therewith were generated after April 1, 2020.

On June 25, 2020, father filed a verified petition for a rule to show cause against mother for 

failure to abide by certain provisions of the two agreements. The petition contained approximately 

100 paragraphs, sub-paragraphs, and sub-sub-paragraphs. This petition initiated the present 

litigation which is the subject of this appeal. Father further filed a motion to enjoin mother from 

unilaterally changing the children’s medical providers, as she allegedly had done.

Mother filed a motion in limine which contained approximately thirty paragraphs, 

sub-paragraphs, and sub-sub-paragraphs. The motion asserted that some of father’s requests were 

“problematic,” thus inviting court interpretation.

The petition for a rule to show cause, as here relevant, included three claims: (1) mother had 

failed to timely provide income information as required by paragraph 4(C) of the MMSA; 

(2) mother failed and refused to participate in the process to divide disputed personal property items 
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and had not exchanged family photos and videotapes in her possession for division and/or 

duplication, as required by paragraphs 10(A)-(C) of the MMSA; and (3) mother refused to provide 

the password for the children’s 529 savings accounts, of which she was the custodian, in violation 

of paragraph 5(C) of the MMSA, which required her to provide such a password to permit father to 

view the accounts. The motion to enjoin was predicated upon paragraph 1(a) of the CSA, which 

required the parties to consult in good faith with one another “on all major decisions affecting the 

minor children,” which mother had not done when she informed father that she was changing the 

children’s dentist.

The trial court consolidated some of the issues raised in the petition and the motion to enjoin 

for later determination, thereby denying portions of the motion in limine, and dismissed some of the 

issues, thereby granting portions of the motion in limine.

In her opening brief, mother asserts that she “prevailed on all matters,” and asserts that “she 

won on all [the issues],” in her reply brief. These assertions are incorrect. Mother did not prevail 

on all issues raised in her motion in limine, as noted above. While the trial court did not find that 

mother’s actions were willful and wanton as to justify a finding of contempt under the clear and 

convincing evidence standard, father prevailed on several issues raised in the rule. Mother had 

either remedied some of these issues raised in the petition prior to the court ruling and after the 

filing of the petition or was ordered to comply by the trial court.

To quote the trial court: “it’s clear for the court now that [mother] is required to give the 

password [for the 529 accounts] regardless of whether or not it is a view only password and so she 

has to give the password to him.” The trial court stated that regarding “exchange of income 

information, all income has been exchanged now.” The trial court found that both mother and 

father needed to divide the personal property “exactly in that occurrence and that way” depicted in 

the agreement and “[s]ame with the pictures; it’s clear how the pictures are supposed to go. It is not 
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happening. Whoever has possession of the pictures, again was supposed to turn them over to the 

other one so that they can decide. That needs to happen.” The trial court found “[a]s to the motion 

to enjoin, it doesn’t appear that it is an issue at this point, . . . I think that would be the resolution to 

have an agreed order that neither party can and is enjoined from unilaterally changing any medical 

provider. So, I would order that in that motion.”

Each party sought an order requiring the other to pay attorney’s fees, as provided by the 

CSA and MMSA. Father introduced a summary of legal fees totaling $20,253.50. Mother 

presented an affidavit and statement of attorney’s fees totaling $19,862.04. Regarding attorney’s 

fees, the trial court stated that:

what I can tell both parents at this point is you are failing. You are 

not working together. You are not looking out for the best interest 

of your children, even though you say you are. That goes for both 

of you. There are no saints here . . . I’m not going to award any 

attorney’s fees because I think this never should have been in a 

courtroom, and it never should have been eight hours of my life. 

This just should not have been here because I think you should, 

both of you, should have been able to resolve these issues. There’s 

nothing in here that shouldn’t have been resolved through a couple 

of emails.

Both parties filed motions for reconsideration of the trial court’s past rulings. Both were denied. 

Mother appealed to this Court; father did not. Both parties seek appellate fees and costs.

While mother’s assignments of error contain six numbered paragraphs, they all argue the 

same thing, that “the trial court abused its discretion in failing to award [mother] her attorney’s 

fees.” This was the only error substantially argued in mother’s briefs.

ANALYSIS

We quote the verbose sections of the two agreements concerning attorney’s fees and costs. 

We italicize portions. From the parties’ CSA, paragraph 3(b):

[t]he parties agree that if one (1) party incurs expenses in the 

successful enforcement of any of the provisions of this Agreement 

as determined by the court, the other will be responsible for, and 
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will pay forthwith, any and all reasonable legal fees and expenses

incurred. Any such costs incurred by a party in the successful 

defense of any such provision as determined by the court shall be 

reimbursed by the party seeking to enforce compliance.

From the parties’ MMSA, paragraph 19(B):

[i]f either party defaults in his or her obligations under this 

Agreement, the non-defaulting party shall be entitled to reasonable 

attorney’s fees and costs (including, without limitation to, costs of 

experts and private investigators) incurred in securing performance 

or damages from the defaulting party. If either party brings an 

action to enforce the terms of this Agreement and does not 

substantially prevail in such action, then the other party shall be 

entitled to reasonable attorney’s fees and costs (including, without 

limitation to, costs of experts and private investigators) incurred in 

defending such action.

Additionally, MMSA paragraph 19(D) provides that:

[n]otwithstanding anything herein to the contrary, nothing herein 

shall prevent a court of competent jurisdiction from making an 

award of reasonable attorney’s fees and costs in any proceeding 

subsequent to the entry of the order incorporating this Agreement, 

including, but not limited to future interpretation, modification 

and/or appellate proceedings as well as enforcement proceedings 

as addressed below. It is understood and agreed that neither party 

is waiving his or her right to request an award of attorneys’ fees 

and costs in any future proceedings whether or not such 

proceedings are related to enforcement. Jurisdiction and authority 

for such court to award such attorney’s fees and costs is hereby 

reserved unto and conferred upon said court of competent 

jurisdiction.

“Reasonable” is defined as “[f]air, proper, or moderate under the circumstances.” 

Reasonable, Black’s Law Dictionary (11th ed. 2019). “The key to a proper award of counsel fees 

is reasonableness under all of the circumstances.” Joynes v. Payne, 36 Va. App. 401, 429 (2001) 

(citing McGinnis v. McGinnis, 1 Va. App. 272, 277 (1985)). “An award of attorney’s fees is a 

matter submitted to the sound discretion of the trial court and is reviewable on appeal only for an 

abuse of discretion.” Northcutt v. Northcutt, 39 Va. App. 192, 199-200 (2002) (quoting Graves 

v. Graves, 4 Va. App. 326, 333 (1987)). “Factors to be considered [in an award of attorney’s 
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fees] may include . . . whether the party unnecessarily increased litigation costs through 

unjustified conduct.” Rinaldi v. Rinaldi, 53 Va. App. 61, 78 (2008) (citing Northcutt, 39 

Va. App. at 200-01).

This Court has found that a trial court “did not abuse its discretion in ordering each party 

to pay his or her own attorney’s fees and costs,” when “the record demonstrate[d] lack of 

cooperation from both parties during discovery.” Conley v. Bonasera, 72 Va. App. 337, 351 

(2020). Finally, the language in Kane v. Szymczak, 41 Va. App. 365 (2003), quoted below, is 

here most appropriate.1 The Court found that in a case where “the record . . . demonstrates a 

level of rancor and discord thankfully rare in our courts . . . we cannot say the chancellor abused 

his discretion by finding that both parties contributed to [the] regrettable state of affairs and by 

ruling that neither party should be awarded attorney’s fees.” Id. at 375.

When we say that a circuit court has discretion, we mean that “the 

[circuit] court has a range of choice, and that its decision will not 

be disturbed as long as it stays within that range and is not 

influenced by any mistake of law.” Landrum v. Chippenham and 

Johnston-Willis Hosps, Inc., 282 Va. 346, 352 (2011). There are 

three principal ways in which a circuit court abuses its discretion:

When a relevant factor that should have been given 

significant weight is not considered; when an 

improper factor is considered and given significant 

weight; and when all proper factors, and no improper 

ones are considered, but the court, in weighing those 

factors, commits a clear error of judgment.

Id. “Thus, only when reasonable jurists could not differ can we 

say an abuse of discretion has occurred.” Sauder v. Ferguson, 289 

Va. 449, 459 (2015).

Galiotos v. Galiotos, ___ Va. ___, ___ (June 3, 2021). While the terms of the award of 

attorney’s fees and costs originate in the parties’ agreements, those agreements reflect, by their 

1 This Court cited Northcutt, 39 Va. App. at 192, Graves, 4 Va. App. at 326, and Joynes,

36 Va. App. at 401, in its opinion.
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language, this Court’s case law as to that issue. Moreover, as noted, neither party “substantially 

prevail[ed]” on all issues, and accordingly, neither party satisfied that term as set forth in those 

agreements. We find that the trial court did not abuse its discretion in refusing to award 

attorney’s fees and costs for either party because a refusal to award attorney’s fees was within 

the trial court’s “range of choice.” Id. at __. Accordingly, that decision is affirmed.

APPELLATE FEES

Both parties contend that they are entitled to an award of attorney’s fees and costs 

incurred because of this appeal. “The decision of whether to award attorney’s fees and costs 

incurred on appeal is discretionary.” Koons v. Crane, 72 Va. App. 720, 742 (2021) (quoting 

Friedman v. Smith, 68 Va. App. 529, 545 (2018)). Here, though, by the terms of paragraph 

19(D) of the MMSA, an award of attorney’s fees and costs on appeal is mandatory, as father 

prevailed in entirety on all issues raised on appeal.

The rationale for the appellate court being the proper forum to 

determine the propriety of an award of attorney’s fees 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.

Conley, 72 Va. App. at 351 (quoting O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996)). 

Accordingly, we remand for the trial court to set a reasonable award of attorney’s fees and costs 

incurred by husband in this appeal.

CONCLUSION

For the foregoing reasons, the trial court’s ruling is affirmed. We remand this case to the 

trial court for determination and award of the appropriate appellate attorney’s fees and costs, 

which should also include any additional attorney’s fees incurred at the remand hearing.

Affirmed and remanded.