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AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED WITH DIRECTIONS
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2. “There is authority in equity to award to the prevailing litigant his or her
reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing
party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Syllabus Point
3, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986).
3. “Where attorney's fees are sought against a third party, the test of what
should be considered a reasonable fee is determined not solely by the fee arrangement
between the attorney and his client. The reasonableness of attorney's fees is generally based
on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar cases.”
Syllabus Point 4, Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156
(1986).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Kanawha County entered on May 11, 2009. In that order, the circuit court entered
judgment against the appellant and respondent below, Jean K., (See footnote 1) in favor of the appellee and
respondent below, Michael T., in the amount of $72,493.40, which represented his attorney's
fees and costs incurred in this abuse and neglect proceeding. The circuit court found that
Jean K. falsely accused Michael T. of sexually abusing one of their children causing him to
unnecessarily incur attorney's fees and costs to defend himself. In this appeal, Jean K. first
contends that the award of attorney's fees and costs was improper. Secondly, she asserts that
if the award of attorney's fees was warranted, then the circuit court erred by not giving her
the opportunity to challenge the reasonableness of the amount of fees requested by Michael
T. In that regard, she claims that Michael T. was awarded fees that were, at least in part,
incurred as a result of the parties' divorce proceedings, not the abuse and neglect case.
Further, she argues that the fees that were awarded are excessive because it was not
necessary for Michael T. to participate in all stages of the abuse and neglect proceeding as
he was dismissed from the case following the adjudicatory hearing.
This Court has before it the petition for appeal, the entire record, and the briefs
and argument of counsel. For the reasons set forth below, the final order is affirmed, in part,
and reversed, in part, and this case is remanded to the circuit court for further proceedings
consistent with this opinion.
In March 2007, the family court held a full evidentiary hearing and found that
there was no credible evidence that Clare T. had been sexually abused by her father. The
family court allowed Michael T. to have daily supervised visits with Clare T. pending a final
order on a domestic violence petition which Jean K. had filed on February 10, 2007,
following her second allegation of sexual abuse. Michael T.'s visits were being supervised
by family friends (hereinafter referred to as “the P. family”). Approximately two weeks later,
Jean K. took Clare T. to what she termed a “safe house” because she believed that Michael
T. was sexually abusing the child in the presence of the P. family. (See footnote 2) At this point, the West
Virginia Department of Health and Human Resources (hereinafter “DHHR”) became
involved, and an abuse and neglect petition was filed against both parents on March 23,
2007. Clare T. was placed in foster care with the P. family. The two boys, John T. and
Michael T., III, continued to reside with their father and Natalie T. remained in the custody
of her mother.
Subsequently, Clare T. recanted the sexual abuse allegations against her father
while talking to the guardian ad litem and her therapist. She indicated that she felt pressured
by her mother. From March 2007 onward, both parents had supervised visits with Clare T.
In May 2007, the DHHR advised the circuit court that it was only proceeding against Jean
K. because there was no credible evidence that Michael T. had ever abused or neglected any
of the children in general, or in particular, that he had ever sexually abused Clare T.
In December 2007, Jean K. asserted for the third time that Clare T. had been
sexually abused by her father. This allegation was made after Clare T. told her foster parents
that she had a tummy ache. The foster father and the guardian ad litem took Clare T. to an
urgent care facility for an evaluation. When asked where she hurt, Clare T. pointed to her
chest. The doctor found nothing wrong. The information was related to Jean K. by the foster
father. Based on this information, Jean K. reported that she believed Michael T. was sexually
abusing Clare T. in the presence of her foster parents.
An evidentiary hearing was held concerning the new sexual abuse allegations
in December 2007. It was found that Michael T. did not have any opportunity to sexually
abuse Clare T. as he had not been alone with her during his supervised visits. During the
hearing, the guardian ad litem moved to terminate Jean K.'s visits with Clare T. stating, “We
cannot allow Clare to continue to be emotionally abused by someone that has a belief that
there are sexual molestations occurring.” The circuit court granted the guardian's motion on
January 8, 2008.
The adjudicatory order was entered on June 2, 2008. The circuit court found
that there was no credible evidence that Michael T. physically, emotionally, or sexually
abused any of the four children. Accordingly, the court dismissed the petition against
Michael T. The court found, however, that Jean K. had subjected the three older children,
Natalie T., John T., and Michael T., III, to severe emotional abuse and injury and had
subjected Clare T. to severe sexual and emotional abuse and injury. The court further found
that Jean K. had made “continued and repeated false allegations of sexual abuse by Michael
[T.] upon Clare[T.]” The court ordered the gradual return of Clare T. to the custody of her
father and denied Jean K.'s motion for an improvement period. Subsequently, the circuit
court terminated Jean K.'s parental rights to Clare T., John T., and Michael, T. III. The
court allowed Natalie T. to remain in her mother's custody per the child's wishes. (See footnote 3)
Thereafter, Michael T. filed a motion seeking an award of attorney's fees and
costs. On May 11, 2009, the Court granted Michael T.'s motion and ordered Jean K. to pay
his attorney's fees and costs. Judgment was entered against Jean K. in the amount of
$72,493.40. This appeal followed.
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
In the specific context of abuse and neglect proceedings, this Court has reiterated that
“conclusions of law are subject to a de novo review, while findings of fact are weighed
against a clearly erroneous standard.” In re Emily, 208 W. Va. 325, 332, 540 S.E.2d 542, 549
(2000). Finally, with respect to an award of attorney's fees, this Court has held:
“'“'[T]he trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, [sic] and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion.' Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).” Syl. Pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982) [(per curiam)].' Syllabus point 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993).” Syllabus point 2, Daily Gazette Co., Inc. v. West Virginia Development Office, 206 W.Va. 51, 521 S.E.2d 543 (1999).
Syllabus Point 3, Pauley v. Gilbert, 206 W. Va. 114, 522 S.E.2d 208 (1999). With these
applicable standards in mind, the issues presented in this case will be considered.
In this case, the circuit court concluded that Jean K. “acted fraudulently, in bad
faith, vexatiously, wantonly and for oppressive reasons before the institution of [this] matter
and throughout these proceedings” warranting an award of attorney's fees and costs in favor
of Michael T. Jean K. argues that the record does not support the circuit court's conclusion.
In particular, she asserts that the circuit court erred by finding that her conduct was the sole
reason that the abuse and neglect petition was filed. She maintains that there was
uncontradicted medical and forensic evidence from professionals in the community that Clare
T. had been sexually abused by Michael T. at the time the abuse and neglect petition was
filed. She also argues that it was not her conduct that caused these professionals to believe
that Clare T. had been abused; rather, she contends that their opinions were based upon their
examinations and interviews of Clare T.
Jean K. further argues that her conduct was not the reason that the case lingered
in the circuit court for more than two and a half years. She maintains that the delays were
the result of the circuit court not following the Rules of Procedure for Abuse and Neglect
cases. She claims that hearings were not held and orders were not entered within the time
parameters of the rules.
Jean K. also asserts that the circuit court erred by finding that her sexual abuse
allegations against Michael T. were baseless. She says that she believed that Michael T. had
sexually abused their daughter because of what she was told by trained professionals who
examined Clare T. Accordingly, she pursued protection for her daughter based on the expert
opinions of these professionals who had no motivation to misrepresent the truth.
In response, Michael T. contends that the circuit court did not abuse its
discretion in awarding him attorney's fees and costs. He contends that the record clearly
shows that Jean K. acted vexatiously, wantonly, and oppressively for more than four years,
making a never-ending series of false allegations that he was sexually abusing Clare T. He
says that as a result, he incurred thousands of dollars of unnecessary legal fees to defeat her
claims. Michael T. asserts that Jean K. is attempting in this appeal to once again relitigate
issues that have already been decided as she continues to claim that there is evidence that he
sexually abused Clare T. He argues that the only issue in this appeal is whether the circuit
court abused its discretion in granting him attorney's fees and costs. He maintains that given
Jean K.'s repeated false accusations and actions throughout this case, it cannot be reasonably
said that the award of attorney's fees was improper.
Having carefully and thoroughly reviewed the record in this case, this Court
finds that given the egregious facts and circumstances that resulted in the filing of the abuse
and neglect petition as determined by the circuit court, the award of attorney's fees and costs
was warranted. In other words, the circuit court found sufficient evidence in the record of
bad faith, vexatious, wanton, and oppressive conduct on the part of Jean K. to trigger
application of the exception to the American rule regarding attorney's fees as set forth in
Syllabus Point 3 of Yokum. In fact, the circuit court found that Jean K.'s conduct was the
sole reason that this abuse and neglect proceeding was filed.
Beginning in March 2006, Jean K. made a series of allegations that Clare T.
was being sexually abused by Michael T. that ultimately led to more than two years of
litigation in the circuit court. It appears that every time the matter was close to being
resolved, new allegations were made. In the end, the circuit court determined that Jean K.'s
allegations were “unfounded, baseless, and fraudulent.”
While Jean K. continues to maintain that her assertions against Michael T. are
true, the circuit court found no credible evidence that he abused or neglected any of his four
children. The circuit court did find, however, that Jean K.'s conduct was vexatious and
wanton and that instead of accepting responsibility for her own actions and abuse of the
children, she continued to make false accusations against Michael T. In that regard, the
record indicates that when Jean K. made her second allegation of sexual abuse, she took
Clare T. to the emergency room for an examination. The results of that examination were
normal; there were no signs of sexual abuse. The next day, Jean K. took Clare T. to her own
family doctor who reported that the child had “very red and irritated genitalia.” Michael T.
had no contact with Clare T. during the time period between the two examinations.
On another occasion, Jean K., in an apparent effort to substantiate her
allegations, convinced an inexperienced child protective services worker, who was
supervising a visitation between Jean K. and Clare T., to go with her and the child to a
bathroom stall in the Charleston Town Center Mall. Although there was a court order
expressly prohibiting Jean K. from taking Clare T. to the restroom, she questioned Clare T.
in the presence of the social worker, while the child was sitting on the commode, as to
whether or not her father was sexually abusing her. Based on all the above, the circuit court
concluded that Jean K. subjected Clare T. to severe sexual and emotional abuse and injury.
Upon careful review and consideration of the record, including the orders of
the circuit court, this Court concludes that the circuit court did not abuse its discretion in
finding that Jean K. acted “in bad faith, vexatiously, wantonly and for oppressive reasons”
and awarding Michael T. his attorney's fees and costs in this matter. As a result of Jean K.'s
actions, Michael T. incurred a substantial amount of unnecessary attorney's fees defending
himself against her allegations. Under these circumstances, there is authority in equity to
award Michael T. his attorney's fees and costs.
While we have concluded that attorney's fees and costs were properly granted,
we, nonetheless, find that the circuit court erred by denying Jean K. the opportunity to
challenge the reasonableness of the amount of fees and costs awarded to Michael T. The
record shows that the matter was brought before the circuit court on April 22, 2009, at the
end of the disposition hearing. Although Jean K. was given the chance to argue that Michael
T. was not entitled to an award of attorney's fees and costs in this matter, she never had the
opportunity to challenge the reasonableness of the amount of fees and costs that were
ultimately granted. While the parties did submit briefs on the issue prior to the hearing, it
appears from the record that Michael T.'s counsel did not submit his billing records to the
circuit court until the end of the hearing on April 22, 2009. (See footnote 4) The matter was taken under
advisement at the end of the hearing, and it appears that once the circuit court determined that
an award of fees and costs was proper, the amount granted was based upon the billing
records submitted by Michael T.'s counsel. Consequently, Jean K. had an inadequate
opportunity to respond to the reasonableness of the amount of fees that were requested. (See footnote 5)
This Court has advised that “'[l]ike other sanctions, attorney's fees certainly
should not be assessed lightly or without fair notice and an opportunity for a hearing on the
record.'” Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 251, 332 S.E.2d 262, 264
(1985) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67, 100 S.Ct. 2455, 2464,
65 L.E.2d 488, 501-02 (1980)). Consequently, “we have previously determined, on
numerous occasions, that a circuit court has erred by failing to afford a party notice and the
opportunity to be heard prior to awarding attorney's fees.” Kanawha Valley Radiologists,
Inc. v. One Valley Bank, N.A., 210 W. Va. 223, 229, 557 S.E.2d 277, 283 (2001) . For
example, in Czaja v. Czaja, 208 W. Va. 62, 75-76, 537 S.E.2d 908, 921-22 (2000),
the lower court decided to award attorney's fees and then, without providing Appellant's counsel an opportunity to address either Appellee's entitlement to fees or the reasonableness of the fee award itself, the circuit court approved an order prepared by Appellee's counsel, which directed that $6080.50 in cumulative fees and costs were to be paid by Appellant's counsel within seven days.
This Court determined in Czaja that “[i]n failing to accord Appellant's counsel an
opportunity to respond to the lower court's basis for assessing fees and costs, the most basic
of all protections inherent to our judicial system has been violated.” Id. at 76, 537 S.E.2d at
922. Accordingly, the court's award of fees in Czaja was reversed, and the case was
remanded for an evidentiary hearing. The circuit court was directed to make appropriate
findings of fact and conclusions of law with regard to any subsequent award of attorney's
fees. Id. As this Court explained in Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190,
195, 342 S.E.2d 156, 161 (1986), “[t]he trial court's failure . . . to make any findings of fact
or conclusions of law regarding the calculation of the attorney's fees award gives this Court
nothing upon which to base our review.” See also Syllabus Point 1, Commonwealth Tire Co.
v. Tri-State Tire Co., 156 W. Va. 351, 193 S.E.2d 544 (1972) (“Rule 52(a) mandatorily
requires the trial court, in all actions tried upon the facts without a jury, to find the facts
specially and state separately its conclusions of law thereon before the entry of judgment.
The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears
on appeal that the rule has not been complied with, the case may be remanded for
compliance.”).
Based on all the above, we find that the circuit court erred by awarding Michael
T. attorney's fees and costs because Jean K. did not have an adequate opportunity to
challenge whether such fees were incurred in the abuse and neglect proceedings and the
reasonableness of the amount of fees sought. The circuit court abused its discretion by
failing to make any findings of fact and conclusions of law in the final order with regard to
the amount of fees awarded. (See footnote 6) Accordingly, the final order of the circuit court is reversed
with regard to the amount of attorney's fees awarded to Michael T., and this case is
remanded to the circuit court to allow Jean K. the opportunity to present evidence concerning
the reasonableness of the amount of attorney fees and costs submitted by Michael T.
Because the circuit court presided over all the abuse and neglect proceedings, such evidence
may be presented by written submission and oral arguments if desired by the parties. The
circuit court should then enter an order that contains sufficient findings of fact and
conclusions of law with regard to the attorney's fees and costs that are awarded.
In determining the appropriate amount of fees and costs to be awarded, the
circuit court should be mindful of this Court's holding in Syllabus Point 4 of Pitrolo which
provides that,
Where attorney's fees are sought against a third party, the test of what should be considered a reasonable fee is determined not solely by the fee arrangement between the attorney and his client. The reasonableness of attorney's fees is generally based on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
In addition to considering the factors listed above, the court should carefully
review the billing records submitted by Michael T. to ensure that the fees requested were
generated as a result of this abuse and neglect proceeding. As discussed, Jean K. argues that
some of the fees awarded to Michael T. resulted from legal services in connection with the
parties' divorce as they concerned equitable distribution, custody, and child support. There
appears to be some merit to her argument as Michael T. acknowledged in a footnote in his
brief that one claimed fee may have involved equitable distribution issues arising out of the
parties' divorce. Obviously, any fees and costs awarded should only pertain to this abuse and
neglect proceeding. (See footnote 7)
Also, as noted, Jean K. challenges the amount of attorney's fees granted
because the DHHR advised the circuit court within two months of the filing of the abuse and
neglect petition that it was not proceeding against Michael T. Jean K. argues that it was not
necessary for Michael T. to participate in every stage of the abuse and neglect proceedings,
and therefore, some of the legal fees he incurred were simply unnecessary. Michael T.
responds, however, that his participation was required throughout the abuse and neglect
proceedings because Jean K. was continuously making false accusations that he was sexually
abusing Clare T. Upon remand, the circuit court should assess the extent to which it was
necessary for Michael T. to participate in the proceedings below and, if necessary, adjust the
amount of fees awarded. (See footnote 8)