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Katherine Foss Mcclintic v. Howard Mcclintic

March 22, 2012


Appeal from the Superior Court of the District of Columbia (DRB-2910-07) (Hon. Rufus G. King, III, Trial Judge)

The opinion of the court was delivered by: Oberly, Associate Judge:

Argued December 1, 2011

Before GLICKMAN and OBERLY, Associate Judges, and NEBEKER, Senior Judge.

Katherine Foss McClintic appeals from the trial court‟s order awarding attorney‟s fees and costs to her former husband, Howard McClintic, arising out of the couple‟s divorce litigation. Following a judgment of divorce and division of marital property, the trial court awarded Mr. McClintic $135,000 in legal fees and costs pursuant to D.C. Code § 16-911 (a) (Supp. 2011). Mrs. McClintic challenges the trial court‟s statutory authority to make the award, arguing that such fees were not required "to enable [Mr. McClintic] to conduct the case," as the statute specifies. The question before us is whether § 16-911 (a) authorizes the court to award attorney‟s fees to a spouse absent a showing that "suit money" is needed to enable that spouse to litigate the divorce action on a level playing field with the other spouse. We hold that it does not. Because Mr. McClintic failed to make a showing that he needed "suit money," we reverse the trial court‟s order.


Katherine Foss McClintic and Howard McClintic were married in 1981. In the fall of 2006, after a twenty-five year marriage, the McClintics decided to separate. Initially hoping to avoid a litigious process, the McClintics began mediation proceedings in November 2006. One year later, in October 2007, after efforts to mediate failed, Mr. McClintic filed a complaint for dissolution of marriage. Like many actions for divorce, the subsequent proceedings were drawn out and contentious, involving numerous failed mediations and battles over discovery.

Unable to settle after more than a year, the parties proceeded to trial on March 2, 2009. The trial court ultimately issued a written judgment granting the divorce, dividing the marital property, and awarding the couple joint legal and physical custody of their three children. Soon after the court issued its order, both parties filed motions for attorney‟s fees, each arguing that the other had made the litigation burdensome and oppressive. The court postponed ruling on the motions and, in the months following entry of the divorce judgment, the McClintics fought over implementing the court‟s division of property. In February and March of 2010, both parties filed supplemental motions for attorney‟s fees.

In support of her motion, Mrs. McClintic argued that Mr. McClintic‟s "strategy throughout the case has been to vilify [Mrs. McClintic] and paint her in the worst possible light, while diverting attention from his own misconduct." According to Mrs. McClintic, she had repeatedly demonstrated her willingness "to negotiate and compromise rather than litigate," but Mr. McClintic refused to compromise, charging ahead with his "legal assaults." "In short," argued Mrs. McClintic, "[Mr. McClintic] has utilized his superior economic circumstances (having entered the marriage a wealthy man) to browbeat and harass his wife with unnecessary and unfair salvos of legal attacks."

Mr. McClintic‟s argument for legal fees centered on Mrs. McClintic‟s "tactics of delay and obfuscation" throughout the litigation. Contrary to Mrs. McClintic‟s claim that it was she who tried to compromise, Mr. McClintic accused his ex-wife of refusing to cooperate from the beginning-in mediation, in discovery, and in compliance with the divorce decree-causing Mr. McClintic to incur unnecessary legal fees.

The trial court denied Mrs. McClintic‟s motion and granted Mr. McClintic‟s, ordering Mrs. McClintic to contribute $135,000 to Mr. McClintic‟s attorney‟s fees and costs. In its order, the court cited D.C. Code § 16-911 (a) as its authority to award fees in domestic relations litigation. The court summarized the purpose of the statute as enabling parties to litigate "issues of divorce . . . without becoming public charges, especially where the resources of the parties are unequal." The court then relied exclusively on its finding that the parties, particularly Mrs. McClintic, had "pursued litigation with little restraint," and ruled that "[m]uch of the legal work in concluding this divorce was made necessary or more extensive by [Mrs. McClintic‟s] delay and failure to comply with the decision without litigation." Without considering whether either party had shown a need for suit money, the court entered its ruling against Mrs. McClintic. She filed a motion for reconsideration. The trial court denied her motion and, in addition, ordered her to pay an additional $10,000 to Mr. McClintic for the subsequent litigation to resolve the property division caused by Mrs. McClintic‟s "intransigence."


In her appeal from the trial court‟s order, Mrs. McClintic argues that Mr. McClintic was wrongly awarded counsel fees under D.C. Code § 16-911 (a), the statute governing relief during the pendency of a divorce action. She contends that the trial court awarded fees to Mr. McClintic contrary to the statute‟s express purpose to "enable such other spouse to conduct the case." We generally review "a trial court‟s decision to grant or deny a request for fees and costs" for abuse of discretion. In re Estate of Green, 896 A.2d 250, 252 (D.C. 2006). However, "the issue of whether a trial court possesses the statutory authority to award particular fees and costs is reviewed de novo." Id. We therefore review de novo Mrs. McClintic‟s claim that the court erred as a matter of law in concluding that it was authorized under § 16-911 (a) to award attorney‟s fees and costs to Mr. McClintic.*fn1


The general rule in civil litigation is that parties bear their own costs of litigation regardless of outcome, unless there are "specific and explicit [statutory] provisions for the allowance of attorneys‟ fees." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 260 (1975); see also Delacruz v. Harris, 780 A.2d 262, 264 (D.C. 2001). There are only a few recognized common law exceptions to this "American Rule." For example, under the common fund doctrine, a prevailing party who "preserves or recovers a fund or property for the benefit of others" may collect attorney‟s fees. Peart v. District of Columbia Hous. Auth., 972 A.2d 810, 818 (D.C. 2009) (internal quotation marks omitted). The common fund doctrine "operates to spread litigation costs proportionately among all the ...

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