COURT OF APPEALS OF VIRGINIA

Present: Judges Huff

, O’Brien and Senior Judge Haley Argued at Fredericksburg , Virginia

NADIA GIHAR BAHTA MEMORANDUM OPINION * BY v. Record No. 16 25

- 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.
Amic i 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 an d 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 Fa irfax County Juvenile and Domestic Relations District Court

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication. UNPUBLISHED- 2

-

(“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
h im from contacting her except for “emergencies and to facilitate visitation.” The order’s provisions allowed father t o 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 limit ed visitation with mother. In his motion, f ather

re presented 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, b oth parties were represente d 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 collec tion of these attorney’s fees. I agree that any attorney’s fees will be payable to LSNV.”
A t 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 o f 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

a ttend

. Two days later, father filed a pro se “emergency motion” to change the children’s school enrollment. Following an A ugust 10, 2018 hearing , a different circuit court judge denied father’s motion as “frivolous and in violation of [Code §] 8.01

- 271.1,” prohi bited father from filing any- 3

-

additional motions without the court’s permission, and ordere d 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. M other 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, t

he court did order father to bear the entire cost of preparing the tr anscript.
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 decision s to award attorneys’ fees for an abuse of discretion. Lambert v. Sea Oats Cond o . Ass’n , Inc. , 293 Va. 245,
25 2 (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 it s 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 i t

. . . . [T]he boundary of t he range of choice available to the court is itself a relevant factor for the court to consider when- 4

- exercising its discretion.

. . . This is true whether the boundary is fixed by precedent or statute

. Lambert , 293 Va. at 253 (emphasis added) (quoting Law lor v. Commonwealth , 285 Va. 187, 213 (2013) ).
R esolution of this case is determined by our interpretation of Code § 16.1

- 278.19 , which provides as follows:

I n 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 ea ch party pays its own attorney’s fees, and the prevailing party cannot usual ly 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)) )

. I n denying m other’s request for attorney’s f ees, the court relied “specifically ” on the language in Code § 16.1

- 278.19 , “ on behalf of any party

. ” It noted th at th e 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]” fro m 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. Com monwealth , 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- 5

-

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 ar e not permitted to rewrite statutes. This is a legislative function.”)

. Code § 16.1

- 278.19 gives a court discretion to award attorney s ’ fees a s 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 ori ginated 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 abilit y” because it ruled that as an initial matter, it lacked authority to award attorney’s f ees 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 t

he award to LSNV. The phrase “attorneys ’ fees and costs on behalf of any party” does not require that the party actually incu r attorneys ’ fees or demonstrate a need to be personally compensated. 1 Instead, t he phrase contemplates that a n award may be appropriate whe n a ttorneys ’ 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 cos t of decreasing the services available for other clients. Therefore, a n 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 ( e mphasis added). Code § 16.1

- 278.19 does not use the word “incurred.”- 6

-

meaning of the statute

. W e will not read additional requirement s in to 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

- 27 8 .19 whe re 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.
Com m ’n , 242 F.3d 22 7, 232

- 34 (4th Cir. 2001) (construing a pr ior version of the Virginians with
Disabilities Act that expressly precluded recovery of attorney s ’ fees if plaintiffs were represented by a government agency)

. O ther federal and state jurisdictions have reached similar conclusions . In Blum v. Stenson , 465 U.S. 886 (1984), the United States Supreme Court held that a n award of attorney s ’ fees calculated according to market rates was appropriate in a civil rights action where the litigants were
rep resented by a non

- profit legal aid society. Id. at 894

- 9 5. 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- 7

-

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 receiv ed free legal services. See, e.g. , Black v. Brooks , 827 N.W.2d 256, 264 ( Neb. 2013) ( “ N umerous 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.”); Henri quez 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 r efusing 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 fee s 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”).
N othing in Code § 16.1

- 278.19 precluded the court from considering whether attorney ’ s fees were wa

rranted in this case

. By construing the statute as a bar against awarding attorney’s fees

to m other, 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- 8

-

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 .”). A lthough 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 al so 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 d oes 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 rem anded.- 9

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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 V a. 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. S helton , 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, wit h 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 legislati ve function.”).

2 For an expansive definition of “party,” see Jenerary v. Commonwealth , 262 Va. 418, 427

- 29 (2001).- 10

-

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 sugges t 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.