Argued
May 8, 2019
Appeal
from the Superior Court of the District of Columbia
(DRB-921-09) (Hon. Neal E. Kravitz, Trial Judge) (Hon. Craig
Iscoe, Motions Judge)
Ayesha
N. Khan for appellant.
Sandra
G. Wilkof for appellee.
Victoria Dorfman, with whom Dia Rasinariu was on the brief,
for Deborah Epstein, Domestic Violence Legal Empowerment and
Appeals Project, National Organization for Women Foundation,
DC Coalition Against Domestic Violence, National Coalition
Against Domestic Violence, National Network to End Domestic
Violence, National Women's Law Center, A. Rachel Camp,
Mariela Olivares, Catherine F. Klein, and Laurie S. Kohn,
amici curiae.
Before
Easterly and McLeese, Associate Judges, and Nebeker, Senior
Judge.
McLeese, Associate Judge.
Appellant
Natalie Khawam challenges an order requiring her to pay $350,
000 in attorney's fees to her former husband, appellee
Grayson P. Wolfe. The fees were incurred in connection with a
dispute over custody of their child. The trial court awarded
fees on the ground that Mr. Wolfe's hiring of an attorney
was necessary to protect the welfare and best interests of
the child. Ms. Khawam argues that no fee award was warranted
and that in any event the trial court erred in setting the
amount of the award. We uphold the trial court's ruling
that a fee award was warranted, but we remand for further
proceedings with respect to the amount of the award.
I.
This
matter has previously been before this court. Khawam v.
Wolfe (Khawam I), 84 A.3d 558 (D.C. 2014). The
following background material is taken in significant part
from our prior opinion, supplemented and revised as necessary
to reflect subsequent developments.
Ms.
Khawam and Mr. Wolfe married in April 2008 in Washington,
D.C. Khawam I, 84 A.3d at 561. Their son was born in
October 2008 in the District. Id. After the parties
had a bitter argument in early March 2009, Ms. Khawam left
the District for Tampa, Florida, taking the couple's
child with her against Mr. Wolfe's express objections.
Id. at 562. Mr. Wolfe repeatedly demanded that Ms.
Khawam disclose her location and return with the child, but
Ms. Khawam refused. Id. Several weeks after Ms.
Khawam left for Florida, Mr. Wolfe filed a complaint here in
the District seeking custody of the child. Id. Aware
of the pending lawsuit in the District, but not yet served
with process, Ms. Khawam filed a petition for divorce and
custody of the child in Florida state court. Id.
In
early April 2009, the Superior Court issued an ex parte order
granting Mr. Wolfe temporary sole custody of the child.
Khawam I, 84 A.3d at 562. Ms. Khawam then sought an
ex parte temporary "stay-away" injunction against
Mr. Wolfe in Florida, alleging that Mr. Wolfe had committed
acts of child abuse and domestic violence. Id. A
Florida state court granted the requested temporary
injunction and subsequently issued additional temporary
injunctions. Id. In June 2010, however, the Florida
state court determined that it lacked jurisdiction over Ms.
Khawam's divorce petition and domestic-violence petitions
and therefore dismissed the petitions and the corresponding
temporary injunctions. Id.
Ms.
Khawam moved to dismiss Mr. Wolfe's custody case in the
District, arguing that the Superior Court lacked jurisdiction
under the District of Columbia's Uniform Child-Custody
Jurisdiction and Enforcement Act, D.C. Code § 16-4601.01
et seq. (2012 Repl.) (UCCJEA), and that the District was an
inconvenient forum. Khawam I, 84 A.3d at 562. After
an eighteen-day evidentiary hearing, the trial court denied
the motion to dismiss. Id. In May 2010, Mr. Wolfe
filed for divorce in the Superior Court. Id. The
custody and divorce cases were consolidated. Id. The
court granted sole custody of the child to Mr. Wolfe, but
allowed Ms. Khawam supervised visitation with the child.
Id. After the divorce trial, the court issued a
judgment of absolute divorce. Id.
Mr.
Wolfe sought an award of over $700, 000 in attorney's
fees and costs incurred during the custody and divorce
litigation. Khawam I, 84 A.3d at 573. Mr. Wolfe
relied on three separate legal theories: the common-law
"necessaries" doctrine, which in certain
circumstances permits an award of attorney's fees in a
child-custody case if the court finds that engaging an
attorney was necessary to protect the interests of the child;
the "bad faith" exception, which permits a fee
award against a party who has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons connected to
the litigation; and a statutory provision authorizing payment
of "suit money," including attorney's fees, in
divorce proceedings. Id. at 573-74. In 2012, the
trial court awarded Mr. Wolfe $350, 000 under the necessaries
doctrine, but expressly declined to decide whether Mr. Wolfe
was entitled to an award under the other two theories.
Id. at 574. The trial court instead provided that
Mr. Wolfe could renew his request for fees and costs under
the other two theories in the event the $350, 000 award was
disturbed on appeal, or if Mr. Wolfe wished to seek a larger
award under the alternative grounds. Id.
In
February 2014, this court affirmed the custody order, the
initial visitation order, and the judgment of divorce;
vacated and remanded an order denying Ms. Khawam's motion
to modify the custody order; and dismissed the appeal from
the award of attorney's fees for lack of a final order.
See generally Khawam I, 84 A.3d 558. With respect to
attorney's fees, we held that the trial court's order
was not ...