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August 9, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Nan R. Huhn, Trial Judge

Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Terry

Following a particularly acrimonious post-divorce dispute over family support payments, appellee Elizabeth King was awarded $11,010.93 in attorney's fees. One of the issues on appeal is whether this award was properly made. Appellant Joseph King contends that contract law governs this controversy because he and his former wife executed a separation and property settlement agreement before the divorce which was not merged into the final divorce decree. Since that agreement authorized an award of attorney's fees to the non-breaching party in the event of a breach, he reasons that the trial court erred in basing its award of attorney's fees on statutes and case law governing fee awards. Although we agree with Mr. King's legal analysis, we hold that the error was harmless because the award would have been no different if the court had applied contract law to the dispute. As for Mr. King's claim that the trial court abused its discretion when it failed to impose sanctions upon Mrs. King's counsel, we remand the record to enable the court to state specifically how and why it ruled as it did on two matters on which it apparently ruled sub silentio, but in all other respects we reject his argument.


Mr. and Mrs King were divorced in 1983. Some time earlier they had entered into a "separation and property settlement agreement" in which Mr. King agreed, inter alia, to make monthly family support payments to Mrs. King and to pay her attorney's fees if he breached the agreement or defaulted in his obligations so as to require her to seek judicial relief. The settlement agreement was not merged into the divorce decree.

In 1986 a dispute arose over the education of the Kings' two children. Mr. King, displeased by his ex-wife's suggestion that the children might be removed from their private school, began to withhold the monthly support payments he was required to make under the settlement agreement. The sums withheld were placed in a bank account under Mr. King's exclusive control. At trial Mr. King admitted that his action amounted to "self-help."

In response, Mrs. King retained counsel and asked the Superior Court to issue an order requiring her ex-husband to pay the arrearages. During the ensuing court proceedings, Mr. and Mrs. King used the court's mediation program to settle the underlying dispute over the children's education and the withholding of support payments. The only matters left for formal adjudication, therefore, were Mrs. King's request for attorney's fees *fn1 and Mr. King's request for sanctions against Mrs. King's attorneys. On July 10, 1987, at a status conference, the trial Judge told both parties that all remaining issues, including attorney's fees, would be decided at a bench trial on September 29, 1987. *fn2

The trial began as scheduled. Only three witnesses testified: Mr. King, Mrs. King, and Pamela Forbes, one of Mrs. King's lawyers. Forbes testified in detail as to legal work which she and other attorneys performed on Mrs. King's behalf; in addition, detailed billing records were introduced into evidence. At the Conclusion of the trial, the court took the case under advisement.

On January 15, 1988, the court issued an order in which it ruled, first, that "there is a legal basis to consider the plaintiff's request for attorney's fees pursuant to D.C. Code § 16-911 (a)(1), § 16-914 and Smith, *fn3 as the action is against a former spouse to recover child support and maintenance arrearages." The court also concluded that the legal services provided were necessary. In addition, the court found that Mrs. King contributed to the delay of the proceedings by withholding discovery of certain documents from Mr. King. After considering a number of factors -- including Mr. King's ability to pay child support, his financial obligation to make the payments, and the disparity in income between the two parties -- the court ordered Mr. King to pay $11,010.93, which was seventy-five percent of the amount Mrs. King had requested.

At various times during the pre-trial and trial proceedings Mr. King mentioned or asked for sanctions against Mrs. King's attorneys. Because his pleadings and numerous motions were often lacking in specifics, it is difficult to separate his legitimate requests from mere tactical maneuvering. Nevertheless, it is clear that at one time or another Mr. King at least referred to the possibility of sanctions under Superior Court Civil Rules 11, 26(h), and 37(a)(4). He also made assertions of bad faith litigation as an independent ground for sanctions. He based his sanction requests primarily on Mrs. King's allegedly unnecessary delay in producing documents sought in discovery, particularly a document relating to a family trust known as the Welfling Trust, and her alleged threat to remove their two children from private school. At the end of the trial, the court heard argument on the sanctions issue generally (i.e., without reference to any specific rule), but its final order awarding attorney's fees made no mention of sanctions.


Mr. King argues that the trial court committed reversible error in awarding attorney's fees to Mrs. King. He calls our attention to paragraph 29 of the separation agreement, which states:

Each party acknowledges that he and she has had the advice of independent counsel of his or her own choosing in the negotiation and execution of this Agreement. Each party states that the transfers and agreements provided herein constitute a fair, reasonable and adequate settlement of their respective rights and obligations, and that this Agreement is signed voluntarily and with full intention that it be efficacious. Neither party shall be liable for any attorney's fees or suit costs incurred by the other for any reason; provided, however, that in the event that either party breaches or defaults in his or her obligations under the terms of this Agreement, and the non-breaching or non-defaulting party is required to seek relief from a court, the court, within its equitable powers, may award reasonable counsel fees to either party, considering the merits of the claim presented and the merits of the defense. [Emphasis added.]

The trial court did not refer to this paragraph of the agreement in ruling on Mrs. King's request for attorney's fees, but relied instead on D.C. Code § 16-911 (a)(1) (1989), *fn4 D.C. Code § 16-914 (1989), *fn5 and several cases, including Smith v. Smith, supra note 3. *fn6 The statutes and case law cited, however, apply only when a decree of divorce specifically provides for alimony and support. In the case at bar, the separation agreement between the Kings was not merged into the final divorce decree, so that the statutes and the Smith case do not apply. On the contrary, " separation agreement which is not merged in the final judgment of divorce is governed by the law of contracts." Clark v. Clark, 535 A.2d 872, 876 (D.C.1987), citing Spencer v. Spencer, 494 A.2d 1279, 1285 (D.C.1985). We have been consistent in our approach to settlement agreements that have not been merged into divorce decrees, stating that "here the parties act in good faith and their agreement is fair and reasonable, and intended as a final Disposition of rights and claims regarding such matters as adult support and property rights, the court will leave the parties to continue in their relationship under the agreement." Spencer v. Spencer, supra, 494 A.2d at 1285-1286; see also Alves v. Alves, 262 A.2d 111, 118 (D.C.1970). Furthermore, when parties dispute the meaning of the agreement, "the court must interpret it according to principles of contract law and the court's statutory responsibilities." Spencer, supra, 494 A.2d at 1286 (citations omitted). Thus Mrs. King's motion to enforce the separation agreement against her ex-husband was in fact a contract-based proceeding, and the trial court erred in failing to recognize that its power to award attorney's fees stemmed from the contract, not from general principles of family law.

We readily conclude, however, that the court's error was altogether harmless. Although the statute, D.C. Code § 16-914, authorizes judicial orders relating to "alimony and . . . the care and custody of children" after a divorce decree has been issued, the settlement agreement gives essentially the same power to the court in this case The agreement states explicitly that in the event of a breach (which would include a failure to pay support), the non-breaching party may "seek relief from a court," and "the court, within its equitable powers, may award reasonable counsel fees to either party, considering the merits of the claim presented and the merits of the defense." Thus both the statute and the settlement agreement provide for an award of attorney's fees in a post-divorce proceeding to enforce a support obligation. The court may have thought it was proceeding under the statute, but in fact it was exercising the authority granted to it by the settlement agreement. Clark v. Clark, supra; Spencer v. Spencer, supra.

That was its only error. At the September 29 trial, the court reviewed the agreement and then said:

t appears to me that this paragraph 29 incorporates the statute, in essence, by saying that if it has to be enforced, the non-breaching or non-default[ing party] is required to seek relief from the court. The court within its equitable powers . . . may award reasonable attorney's fees . . . considering the merits of the claim presented and the merits of the defense.

The court went on to apply the criteria which have developed under the statute for determining what is a reasonable award of counsel fees. See, e.g., Kelly v. Clyburn, 490 A.2d 188, 191 (D.C.1985); Rachal v. Rachal, 489 A.2d 476, 478 (D.C.1985); Ritz v. Ritz, 197 A.2d 155, 157 (D.C.1964). Since the settlement agreement authorizes the court to grant reasonable attorney's fees and the case law arising under the statute establishes the standard for deciding what is reasonable, we are satisfied that the court reached the same result by following the statute and the case law that it would have reached if it had followed the language of the settlement agreement; i.e., it ruled that an award of $11,010.93 in attorney's fees was reasonable. While Mr. King has demonstrated that the court committed a technical ...

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