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09/11/92 ANDRE FULLARD v. BARBARA L. FULLARD

September 11, 1992

ANDRE FULLARD, APPELLANT
v.
BARBARA L. FULLARD, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)

Before Terry, Farrell and Wagner, Associate Judges. Opinion for the court by Associate Judge Farrell. Opinion by Associate Judge Wagner, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge.

In this appeal arising from a divorce and division of marital property followed by agreements which the parties reached for transfer of the home to the wife, appellant (Mr. Fullard) alleges error by the trial court when it ordered him to reimburse appellee in the amount of $1,000.00 for the removal of chemical waste materials from the garage adjoining the marital home. Appellant also contests the award of $3,388.00 in attorney's fees and $96.65 in costs to appellee. We affirm as to the reimbursement but find partial error in the award of attorney's fees and costs. We therefore vacate the fee award and remand for reconsideration of it in light of this opinion.

I.

The parties were granted an absolute divorce on November 7, 1989. Under the divorce decree, appellant (Mr. Fullard) was to purchase Mrs. Fullard's interest in the marital home, or, if this could not be arranged, the parties were to sell the home and divide the proceeds. They were directed to "execute all documents necessary to accomplish the division of their marital assets" by March 1, 1990. On June 1, 1990, Mrs. Fullard moved to have Mr. Fullard held in contempt partly because of his alleged refusal to sign a listing agreement to sell the home. At a hearing on the motion on June 22, 1990, the court held the motion for contempt in abeyance and -- apparently pursuant to the parties' agreement -- entered an order requiring that Mr. Fullard's interest in the home be sold to Mrs. Fullard. *fn1 At a second hearing on the contempt motion on August 10, 1990, the court learned that the parties had agreed in writing on the date Mr. Fullard would vacate the premises, and had further agreed that he would "broom clean the house" before leaving it. Mrs. Fullard asserted at the hearing that, upon preparing to move into the house, she had found chemical waste materials and other debris in the garage on the property. Mr. Fullard, through his counsel, apparently acknowledged that some two years earlier he had placed bags of Supertherm blowing insulation in the garage. *fn2

The trial court therefore ordered Mr. Fullard to arrange for the removal of the waste material and debris from the garage and that, since it was reasonable to fear the materials were chemical in nature, he must do so through the services of a professional waste removal company. In the event he did not do so, Mrs. Fullard was authorized to have the materials removed and to deduct the cost from monies she owed Mr. Fullard. Mr. Fullard neither appealed from nor sought reconsideration of this order. Instead he apparently attempted to remove the debris and waste materials by himself, but in a manner unsatisfactory to Mrs. Fullard. She therefore retained a specialist in chemical waste disposal to remove the materials at a cost of $1,000.00. At a hearing on November 14, 1990, the trial court determined that Mr. Fullard had disobeyed the order to remove the materials in the manner prescribed, hence justifying Mrs. Fullard's resort to a specialist. The court therefore ordered Mr. Fullard to reimburse her for the expense of $1,000.00, and further granted Mrs. Fullard's request for attorney's fees of $3,388.00 plus costs. The court found the fees and costs to be

more than justified based both on (Mr. Fullard's) delinquency in cooperating with plaintiff in making arrangements for the sale of their former marital home and his failure to follow the explicit commands of this court to hire a professional chemical removal company to remove the suspected chemical waste materials and debris which remained in the garage.

The court denied Mrs. Fullard's motion for contempt without prejudice to its renewal if the present order were not complied with. Mr. Fullard appeals both the order of reimbursement and the award of fees and costs.

II.

In ordering Mr. Fullard to arrange, at his expense, for removal of the chemical waste material, the trial court evidently deemed that obligation to flow from Mr. Fullard's written agreement to "broom clean the house" before vacating it. Appellant argues that the court's later reimbursement order rested on a misunderstanding of the agreement, which -- he asserts -- did not include an obligation to clean the garage. We conclude that it is unnecessary to decide this issue. "Extrinsic evidence may be considered to determine the circumstances surrounding the making of contract, so that it may be ascertained what a reasonable person in the position of the parties would have thought the words meant." 1010 Potomac Assocs. v. Grocery Mfrs., 485 A.2d 199, 205-06 (D.C. 1984) (footnote and citations omitted). There is every reason to think such evidence was presented at the August 10, 1990 hearing before the trial court ordered appellant to arrange for the waste removal. But, as pointed out in note 1, (supra) , appellant has provided this court with no transcript of that or any other hearing on the motion for contempt. On its face, the trial court's interpretation of the agreement as including a duty to remove potentially hazardous waste material from the garage does not seem unreasonable. Id. at 205 ("first step in contract interpretation is determining what a reasonable person in the position of the parties would have thought the disputed language meant"). But in view of appellant's failure to provide an adequate record for resolving this issue, we conclude we are under no obligation to decide it. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982). *fn3

III.

In awarding Mrs. Fullard attorney's fees and costs, the trial court did not recite the statutory or other authority on which it relied. Mrs. Fullard correctly does not assert that the court's original authority under D.C. Code § 16-911 (a)(1) (1989) to award "suit money, including counsel fees," "during the pendency of an action for divorce" (emphasis added) allowed it to award counsel fees in connection with her post-divorce efforts to enforce the parties' agreements. Instead Mrs. Fullard defends the award under one of the "narrowly-defined common law exceptions" to the American Rule governing attorney's fees. E.g., Dalo v. Kivitz, 596 A.2d 35, 37 (D.C. 1991) (citations omitted). Mrs. Fullard relies on the principle that fees may be awarded where a party "withholds action to which the opposing party is patently entitled, as by virtue of a judgment . . . , and does so in bad faith, vexatiously, wantonly, or for oppressive reasons . . . ." 1901 Wyoming Ave. Coop. Ass'n v. Lee, 345 A.2d 456, 464-65 (D.C. 1975); see also F.W. Berens Sales Co. v. McKinney, 310 A.2d 601, 603 (D.C. 1973). Mrs. Fullard contends that appellant both "withheld action" to which she was clearly entitled under the divorce decree -- i.e., his cooperation in the sale of the house -- and defied an explicit court order in not having the waste materials removed professionally, both times requiring her to seek judicial relief and incur additional legal expenses.

We hold that the court could properly award attorney's fees for Mr. Fullard's disobedience of the court order, but we do not find an adequate basis for the award in connection with what the court termed Mr. Fullard's "delinquency" in making efforts to sell the house. As to the latter ground, a finding of "delinquency" sounds in neglect or negligence, and does not amount to the finding of bad faith (or vexatiousness or wantonness) necessary to satisfy the exception discussed. Mrs. Fullard recites evidence of foot-dragging by her former spouse in arranging for the sale of the home, but this does not justify an award under an exception we have repeatedly held applicable "only in extraordinary cases . . . or when dominating reasons of fairness so demand. " Schlank v. Williams, 5 ...


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