Karen A. McIntosh v John A. McIntosh

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
KAREN A. McINTOSH MEMORANDUM OPINION*
v. 	Record No. 0472-98-4 	PER CURIAM
NOVEMBER 17, 1998
JOHN A. McINTOSH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
(Stephen Andrew Armstrong, on brief), for
appellant.
No brief for appellee.
Karen A. McIntosh (wife) appeals the decision of the circuit
court disbursing the proceeds from the sale of the parties'
former marital home. 	The trial court reduced wife's portion of
the disbursed funds in order to pay attorney's fees incurred by
John A. McIntosh (husband) and the real estate commissioner's
fees. 	Wife contends that the trial court abused its discretion
by (1) awarding fees to husband although wife prevailed in her
purchase offer; and (2) awarding fees without evidence to show
that the fees were reasonable and necessary under the
circumstances of this case. 	Upon reviewing the record and wife's
opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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The record on appeal includes a transcript of the January
30, 1998 hearing on husband's motion to disburse the proceeds of
the sale of the marital home. 	We do not consider wife's written
statement of facts which was not timely filed.
Under the terms of the parties' property settlement
agreement executed in connection with their 1990 divorce, wife
could remain in the marital home for five years. 	The parties
agreed that, after five years, wife could buy husband's one-third
interest in the home if they could agree on the purchase price.
If the parties could not agree, the home would be sold and the
parties would split the proceeds, with wife receiving two-thirds
of that amount.
At the end of five years, the parties could not agree on the
purchase price. 	Wife eventually purchased the property for
$300,000 in October 1997, after the appointment of a special real
estate commissioner. 	The proceeds were held by the clerk of the
circuit court pending an agreement on disbursement.
By motion filed December 12, 1997, husband sought a final
order disbursing the sale proceeds. 	He argued that he was
entitled to an award of $5,200 in attorney's fees. 	He also
argued that wife should be required to pay the real estate
commissioner's fees of $15,844.50 from her two-thirds portion of
the disbursement. 	Husband contended that wife unreasonably
refused to cooperate in the sale of the property, requiring
additional hearings and the appointment of the commissioner.

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An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. 	See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). 	The key to a proper
award of counsel fees is reasonableness under all the
circumstances. 	See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985). 	Our review of the record
demonstrates that the trial court's decision to impose attorney's
fees and commissioner's fees on wife was not an abuse of
discretion. 	Wife was repeatedly ordered to show cause for
failing to comply with existing court orders. 	She was jailed for
contempt following the August 22, 1997 hearing in which the
commissioner presented evidence documenting wife's attempts to
undermine the commissioner's efforts to sell the marital home.
Interested buyers were unable to view the home, which was listed
for sale at approximately $350,000. 	While wife's offer of
$300,000 was the offer finally accepted, her previous offers to
purchase husband's share had been substantially lower.
The fees of both husband's counsel and the commissioner were
supported by detailed billing records. 	In addition, the trial
court was familiar with the case and with the efforts expended by
both husband's counsel and the commissioner. 	Husband's
attorney's fees and the commissioner's fees were directly
attributable to wife's refusal to cooperate. 	Therefore, we find
no abuse of discretion in the trial court's decision to require

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wife to pay both fees.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.