Order for Attorney Fees

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White & Case ordered to pay attorney fees after failing to cooperate in family law case.

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JUL 2 8 2014
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
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FAMILY COURT
I diImi, D.C.
DOMESTIC RELATIONS BRANCH
ASTRID LORNA CHIN, 1
1
Plaintiff 1
1 2008 DRB 345
v. 1 Judge Hiram Puig-Lugo
DARYL WHITAKER,
1
Defendant 1
FINDINGS OF FACT
CONCLUSIONS OF LAW AND ORDER
On April 23,2014, Defendant Daryl Whitaker filed a Motion for Sanctions seeking
reimbursement for attorney's fees and costs related to the most recent round of litigation between
the parties. The litigation arose from Mr. Whitaker's efforts to correct an improper child support
arrearage reflected in Child Support Services Division (CSSD) records.
On May 12,2014, Plaintiff Astrid Chin responded with her Opposition to Defendant's
Motion for Sanctions. She contends that she did not act in bad faith or violate the terms of a
Support Order entered in this case on February 23,2009. She maintains that neither she nor her
attorneys should be held liable for Mr. Whitaker's attorney's fees and expenses.
Based on the various pleadings filed, the hearings held before this Court, and the record
in this case, the Motion for Sanctions is GRANTED.
FINDINGS OF FACT
1. The parties entered into an agreement documented in a Support Order dated February 23,
2009. This agreement provided in part:
The parties shall cooperate with each other in order to do all things necessary to
implement and enact the effect of this Court's Order terminating any and all
current garnishment of Father's wages.
Filed
D.C. Superior Court
07/28/2014 11:18AM
Clerk of the Court
Custody, Visitation and Child Support Agreement [hereinafter "Support Agreement"] at
2 (emphasis added).
2. A dispute soon emerged between the parties about whether the Defendant had incurred
child support arrears between 2009 and 2010. The dispute arose in part because CSSD
did not modify the child support amount withheld from the Defendant's paycheck and did
not terminate his wage attachment consistent with the court order.
3. On August 27,2010, the parties appeared before the Honorable Carol A. Dalton on the
Plaintiffs Motion for Contempt based on the Defendant's alleged failure to pay child
support as directed. Judge Dalton denied the motion, but found that $4365 existed in
child support arrears that were later paid in full. Thus, all outstanding issues regarding
child support arrears reached closure in early Fall 201 0.
4. On April 15,20 13, CSSD struck once again. On that date, it issued an amended income
withholding order to collect purported child support arrears from Mr. Whitaker. The
Defendant attempted to address the issue with the Plaintiff, but the parties were unable to
reach resolution.
5. On August 16,2013, the Defendant filed a Motion to Modify Income Withholding Order.
The Plaintiff opposed the request.
6. On September 24,2013, the parties appeared before the Honorable Alfred Irving for a
hearing on the Defendant's Motion. Judge Irving directed the parties to converse and to
resolve the problems between them. The directive triggered some communication
between the lawyers, but the conversation was short-lived.
7. On Wednesday, September 25,2013, Attorney Aaron McAllister e-mailed Attorney
Johnnie Bond to acknowledge receipt of a voicemail message from Mr. Bond. He
responded that he would speak with the Plaintiff about filing an affidavit to clarify the
situation regarding child support arrears.
8. On Friday, September 27, 2013, Mr. Bond sent an e-mail to Mr. McAllister that stated in
part as follows:
Please advise if your client will be able to verify any arrears amounts ... We don't care
what Ms. Chin says is in arrears, we just need her to file something with the court (sp)
saying what amount she believes to be in arrears. Our documents show no arrears. In
fact, she has not moved for contempt for missed payments since 2010. But since she
is unwilling to vouch for Mr. Whitaker in this regard, we need her to claim whatever
amount of arrears she contends via affidavit so that the Court can hold a hearing, take
testimony and verify any arrearage.
Mr. McAllister did not respond to the e-mail. Instead, on October 15, 20 13, he e-mailed
Mr. Bond to inform him that Attorney Yi Ying would represent Ms. Chin "in the case
going forward."
9. On Wednesday, October 16,2013, Mr. Bond sent a third communication to counsel for
the Plaintiff, who at this time was Mr. Ying. Mr. Bond wrote in part:
The simple question for everybody here is, will your client file an affidavit with the
Court explaining the amount of arrears that she claims Mr. Whitaker owes her so that
we can resolve the matter one way or another? . . . Assuming this continues, please
advise if Ms. Chin will agree to give testimony during the next hearing of her
estimation of Mr. Whitaker's arrears? If so, we can enter testimony on the record that
will shed some light on this matter and hopefully inform the Court sufficiently to
render a decision.
Mr. Ying did not respond to the e-mail.
10. On February 14, 20 14, the parties appeared for a status hearing with counsel. This Court
requested an audit from the Family Court Paternity and Child Support Branch and set the
matter for a financial review hearing on March 21,2014.
1 1. On March 21, 2014, the parties appeared for a financial review as scheduled. However,
the audit raised more questions than it answered because it produced an arrearage amount
inconsistent with CSSD calculations. The former reflected $9,917.5 1 owed in arrears,
while the latter suggested the money owed amounted to about $1 1,500.
12. The Court started to examine the documents in an effort to identify the source of the
problem, but directed the parties to step outside, examine the documents and calculate the
extent of the child support arrears.
13. Mr. Ying sought to sidestep the conversation with claims that the Plaintiff was not a party
to the confusion surrounding arrears. He maintained that resolving the arrearage issue
related only to the Defendant and to CSSD. His argument was rejected and the parties
were specifically directed to step outside, examine the documents and estimate the
amount of child support arrears.
14. The courtroom clerk called the next case and the parties in the case introduced
themselves for the record. Suddenly, one loud voice could be heard yelling in the
courtroom foyer. The Court directed the courtroom clerk to step outside and bring into
the courtroom the persons involved in the dispute. It then asked the parties before it to
have a seat at counsel table.
15. The clerk returned to the courtroom with Mr. Bond and Mr. Ying in tow. The Court
asked both attorneys to approach the bench, turned on the husher and inquired about the
yelling outside. Based on the conversation at sidebar, and the Court's own observations,
it was evident that Mr. Ying had been yelling at Mr. Bond. Mr. Ying had also told
Mr. Bond that he was not going to speak with him contrary to the specific court directive
issued moments earlier.
16. The Court did not take the situation lightly. It informed Mr. Ying that he could either
speak with Mr. Bond as ordered, or address the possibility of being held in civil contempt
of court, and facing possible sanctions. It again directed the parties to step outside and
communicate.
17. The case was recalled after the parties had an opportunity to talk. Mr. Ying admitted at
that point that no child support was owed.
18. The Defendant accumulated $24,192.50 in attorney's fees, $141.74 in filing fees and
court costs, and $1,418.00 in travel expenses to DC from his North Carolina home while
litigating his motion. However, the bulk of his attorney's fees, representing $20,259.50
in total, accrued after the September 24,20 13, directive from Judge Irving for the parties
to resolve the issue of possible child support arrears between themselves. Similarly, the
Defendant spent $824.24 in travel expenses, copying costs and filing fees after that date.
CONCLUSIONS OF LAW
The Defendant requests that the Plaintiff and her attorneys refund him for counsel fees
and other expenses that he incurred between May 1,20 13, and the present date to litigate his
Motion to Modify Income Withholding Order. He maintains that their failure to acknowledge
the absence of child support arrears in a timely manner violated the Support Agreement reached
between the parties, and falls within the bad faith exception for awarding attorney's fees.
The argument based on the Support Agreement is unpersuasive. It is evident from the
quoted language that any cooperation was limited to terminating any and all garnishments in
effect at the time the Support Agreement was signed. The agreement did not create an on-going
obligation for the Plaintiff to cooperate with the Defendant in resolving future garnishments
related to child support. Indeed, the agreement envisioned that future payments would flow
directly from the Defendant to the Plaintiff without recourse to withholding child support from
the Defendant's future paychecks. However, the bad faith exception is applicable here.
The general rule in the District of Columbia is for each party to subsidize their respective
costs of litigation. However, a trial court has the discretion to award attorney's fees based on
statutory authority, contractual agreement, or a variety of common law exceptions, including the
bad faith exception. Cave v. Scheulov, 64 A.3d 190, 193 (D.C. 201 3). The bad faith exception
"permits an award of attorney's fees against a party who has acted 'in bad faith, vexatiously,
wantonly, or for oppressive reasons' connected to the litigation." Synanon Foundation, Inc. v.
Bernstein, 5 17 A.2d 28, 36 (D.C. 1986)(citations omitted).
A trial court resolving a motion for attorney's fees in a domestic relations case must
apply a two-step inquiry. Steadman v. Steadman, 5 14 A.2d 1 196, 1200 (D.C. 1986). The first
step is whether to award a fee. When resolving this question, it is appropriate to consider
whether the litigation has been "oppressive or burdensome" to the party who seeks the award, as
well as "the motivation and behavior" of the parties.
The attorneys for the Plaintiff repeatedly dismissed and ignored overtures from counsel
for the Defendant to reduce the time and effort required to resolve this litigation. Attorney
McAllister acknowledged receiving a voicemail from Attorney Bond, but ignored a subsequent
e-mail and never provided the information that Attorney Bond sought. Similarly, Attorney Ying
failed to respond to a communication from Mr. Bond seeking clarification of the Plaintiffs
position on the issue of arrears. Likewise, both attorneys ignored separate court orders to engage
in conversations with the Defendant that would have resolved the dispute. Indeed, Attorney
Ying refused to speak with Attorney Bond immediately outside the courtroom just minutes after
a court directive to engage in dialogue. Not only did Attorney Ying flaunt the directive, but he
behaved in an utterly unprofessional manner that disrupted another proceeding begun after this
case was passed to give the parties an opportunity to communicate. These behaviors are
consistent with a bad faith designed to prolong litigation, to avoid resolution, and to consume
additional money and time from the Defendant in his pursuit of judicial relief. As a result, it is
appropriate to award attorney's fees here under the bad faith exception.
The second step used when resolving the issue of attorney's fees in the domestic relations
realm is to determine the amount of fees to award. Steadman v. Steadman, 5 14 A.2d at 1200.
When setting an amount, the trial court must consider "the quality and the nature of the services
performed, the necessity for the services, and the financial ability of the spouse being ordered to
pay." Id.
The Defendant incurred $20,259.50 in attorney's fees and $824.24 in additional expenses
after September 24,20 13. These expenses were necessary to address the failure of Plaintiffs
counsel to respond three times to what amounted to basic discovery requests, and to engage in
dialogue at least two times as directed. Their deliberate evasiveness, reticence and
uncooperativeness required Defendant's counsel to prepare, redact and file various pleadings,
and to attend two court hearings. These services were reasonable within the circumstances and
their quality produced the result desired. In addition, the behavior of Plaintiffs counsel led to
the Defendant incurring unnecessary additional costs as reflected in his travel expenses, copying
costs and filing fees.
The record does not detail the Plaintiffs financial situation, but documents filed with the
Court declare that she completed an MBA in the Wharton Business School and attended law
school in Washington, D.C. Indeed, the Plaintiff has retained private law firms, most recently
White & Case LLP, to represent her in this case. As a result, the Plaintiff and White & Case
LLP are jointly and severally liable for a $21,083.74 award to the Defendant and his counsel for
attorney's fees and costs as ordered below.
ORDER
It is hereby on July 28,2014,
ORDERED, that Plaintiff Astrid Chin and White & Case LLP are jointly and severally
liable for $20,259.50 in attorney's fees and $824.24 in related litigation costs. It is further
ORDERED, that attorney's fees will be paid directly to Attorney Johnnie Bond and other
expenses related to litigation will be paid directly to the Defendant. However, the full amount
should be disbursed to the Defendant should he have paid the attorney's fees incurred between
September 25,20 13 and. May 28,20 14. It is further
ORDERED, that these amounts will be paid in full not later than October 31,2014.
IT IS SO ODERED.
0 Hiram . P ig-Lugo
Associate Judge
Signed in chambers
Copies to:
Kathleen M. Hamann, Esq.
Yi Ying, Esq.
Dana Foster, Esq.
White & Case LLP
702 13' ~ Street, NW
Washington, DC 20005
Counselsfor the Pl ai nt 8
Johnnie D. Bond, Jr. , E S ~ .
1 100 H Street, NW, Suite 3 1 5
Washington, DC 20005
Counsel for the Defendant
Victor J. DeSantis, Esq.
White & Case LLP
202.639.9355 Fax
Managing Partner

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