Appeal from the Superior Court of the District of Columbia (DR-1959-99) (Hon. Mary Ellen Abrecht, Trial Judge)
Before Terry, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appellant Fritz, having prevailed against the complaint of his former spouse (appellee Grise) seeking to modify a child custody order, appeals from the refusal of the trial court to award him attorney's fees. Fritz argues primarily that the trial court's denial of the motion to modify custody effectively granted a counterclaim Fritz had filed, thus entitling him to attorney's fees under a provision of the parties' separation and property settlement agreement. That paragraph called for an award of fees to a party who successfully "brings an action to enforce or implement" the terms of the agreement. Because, on this record, Fritz's counterclaim obtained no relief beyond the denial of Grise's complaint to change the custody disposition, we hold that it did not come within the fee-shift provision of the agreement. As Fritz also has shown no abuse of discretion in the court's refusal to award him fees under the common law or a related statute, we affirm.
At the relevant times, Fritz and Grise were both employed by the United States Foreign Service. They were married in 1983 and subsequently had two children. In 1994, they entered into a separation and property settlement agreement (the Agreement), which, as relevant here, gave legal custody of the children to Fritz subject to joint parental decision-making on all significant issues, including education. The children were to reside with Fritz during the school year, but, in view of his expected postings abroad, the Agreement further provided that if adequate local schooling was not available where he resided, the children would live with Grise for that school year so long as adequate schooling was available at her place of residence. Grise, in any event, was to be accorded sixty-five days of visitation during the summer school break and an additional fourteen consecutive days during the school year; and the parties could agree mutually on additional temporary custody with Grise. As part of a final divorce entered in Virginia, the Agreement was "affirmed, ratified, and incorporated" but not merged, all in conformity with Virginia law.
Starting in 1994, Grise took up residence in the District of Columbia, where she remarried. The children lived with Fritz while he was stationed in Ghana and Vancouver, Canada, but beginning in July 1997 they lived with Grise in the District by agreement of the parties. At some point no later than September of 1998, Fritz told Grise that he was being reassigned to Indonesia and would be enrolling the children in school there. In June 1999, Grise filed in Superior Court a Complaint to Enroll and Modify Custody Order in which she asserted "that it would be in the children's best interest for them to continue to have their primary physical residence with her," where they had lived since the summer of 1997, attended school, made friends, and developed a close relationship with her current husband. Grise also sought a Writ of Ne Exeat to prevent Fritz from removing the children from the District until her complaint was resolved. Fritz answered the complaint by asserting, as an affirmative defense, that there had been no change in circumstances unforeseen at the time the parties entered into the separation agreement. He also filed a counterclaim which, besides repeating that there had been no change of circumstances justifying alteration of the custody agreement, asserted that Grise had "sought to interfere with Mr. Fritz's exercise of legal custody of the children by seeking to interfere with his plans for [them] to travel with and reside with him at his new Foreign Service post and . . . to prevent fulfillment of his duty . . . to enroll [them] in suitable schooling." Fritz sought to enjoin Grise from such interference.
At the evidentiary hearing on July 14, 1999, Fritz testified that school for the children was scheduled to begin in Indonesia on August 18. He acknowledged that under the Agreement "summertime was time that the children were . . . entitled to be . . . in the care of their mother," and that "as long as the children arrived in Jakarta a week before school was due to begin," it did not matter whether they travelled there in his custody or the mother's. *fn1 Although Fritz had not "heard a response to this day" to the choice he had given Grise of herself bringing the children to Jakarta or letting them travel with him, and had postponed his flight reservations upon learning of her suit to modify, he gave no testimony supporting the implied assertion in the counterclaim that Grise had violated the Agreement or threatened (in word or deed) to do so by "interfer[ing] with" his right to resume custody in time for school. *fn2 Grise, for her part, testified in support of her complaint to modify but was not cross-examined as to anything she had done (besides filing the court action) to impede the transfer of the children.
The trial judge, applying Virginia law, *fn3 found that Grise had not shown a change in circumstances sufficient to justify modification of the custody agreement. (Grise does not challenge that decision on appeal.) The judge therefore denied the request to modify but reminded the parties that "the Virginia Custody Order . . . remains in effect and [Grise] must cooperate in permitting [Fritz] as sole custodian to move to his next assignment with the children." When Fritz's attorney orally requested attorney's fees, the judge responded, "I do not think that simply having won on the merits entitles him to have Ms. Grise incur those expenses[,] because I do not think her . . . attempt to have the order modified was in any way frivolous." Fritz's counsel then brought up the fee provision of the Agreement, which caused the judge to order separate briefing of that issue although reiterating that "if it were not for this contract," attorney's fees would not be an issue. After briefing, the court denied the request for fees.
The attorney's fee provision of the Agreement provided:
In the event either party brings an action to enforce or implement the terms of this Agreement, and such action is successful, the legal fees and costs reasonably incurred by that party to enforce or implement the terms of this Agreement shall be determined by the court and awarded to the prevailing party.
Like this court, the Virginia courts interpret the language of such agreements according to contract principles. See White v. White, 509 S.E.2d 323, 325 (Va. 1999); see also King v. King, 579 A.2d 659, 663 (D.C. 1990). "[When] an agreement is complete on its face, and is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself." Berry v. Klinger, 300 S.E.2d 792, 796 (Va. 1983) (quoting Globe Iron Constr. Co. v. First Nat'l Bank of Boston, 140 S.E.2d 629, 633 (Va. 1965)).
By its terms, the Agreement authorizes a fee-shift in fewer circumstances than it might have. It could have provided for an award of fees to a party successfully bringing or defending an action to enforce the Agreement or - as here - to modify the Agreement. But it did not. Fritz nonetheless argues that by defeating the complaint to modify, he prevailed on his counterclaim brought to enforce or implement the Agreement *fn4 - he "won on the merits," in the trial judge's words. That argument mischaracterizes the outcome of the proceeding. In reaction to Grise's complaint Fritz did two things: he filed an opposition explaining why, under applicable law, Grise had not shown grounds for a modification, and he filed a counterclaim alleging broadly that she had sought to interfere with his custodial rights. At the hearing, as explained, he presented evidence and arguments that were persuasive on the former, but offered no evidence that Grise had engaged in any "interference" other than filing a motion to modify the Agreement, which filing the judge found to have been in good faith. Accordingly, the relief the judge ordered was no different than if Fritz had (successfully) defended against modification but filed no counterclaim. The fact that the judge reminded Grise of her obligations under the Agreement was not a finding - which would ...