JUL 2 8 2014

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 6: B,iu .+ -. .,, ,. ";38umbia

' " k 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.

FiledD.C. Superior Court07/28/2014 11:18AMClerk 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 S O 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 1 3 ' ~ Street, NW Washington, DC 20005 Counselsfor the Plaint8

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