Khawam v. Wolfe

         Argued May 8, 2019

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         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, Washington, with whom Dia Rasinariu, Washington, 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.

         OPINION

         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

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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 ...