Kenneth R. Fox v. Wendy R. Fox

• Court: Court of Appeals of Virginia
• Decided: March 28, 2000
• Docket: 0669994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Duff Argued at Alexandria, Virginia

KENNETH R. FOX MEMORANDUM OPINION * BY v. Record No. 0669-99-4 JUDGE JAMES W. BENTON, JR. MARCH 28, 2000 WENDY R. FOX

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge

Matthew A. Pavuk (Johnson & Pavuk, on briefs), for appellant.

Denman A. Rucker (Jason S. Rucker; Rucker & Rucker, on brief), for appellee.

On April 9, 1997, Kenneth R. Fox (the "father") and Wendy R.

Fox (the "mother") were divorced by entry of a final decree, which

adjudicated issues of child support, custody, and spousal support.

On March 17, 1998, a panel of this Court affirmed the decree of

divorce and various other issues, including the trial judge's

imposition of non-participation sanctions upon the father. In

this appeal, the father challenges the authority of the trial

judge to enforce post-trial the identical sanctions, which the

father contends were extinguished upon entry of the final decree

of divorce. We affirm the trial judge's order.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.

In our prior review of the parties' consolidated appeal from

the final decree of divorce, see Fox v. Fox, Nos. 0721-97-4 and

1094-97-4 (Va. Ct. App. March 17, 1998), we recited in detail the

incidents of the trial that gave rise to the trial judge's

imposition of the non-participation sanction against the father.

We affirmed that sanction. To put this current appeal in context,

we summarize the incidents that gave rise to the sanction.

At a pendente lite support hearing during the divorce

proceedings, the trial judge ordered the father to pay $2,149

monthly child support, $5,440 monthly spousal support, and the

mortgage and insurance payments on the marital residence. When

the father failed to pay spousal support, the trial judge issued a

rule to show cause why he should not be held in contempt. At the

hearing, the trial judge ordered the father to comply with the

mother's requests for discovery. Later, the trial judge ordered

the father to provide an accounting of the children's trusts and

entered an order to compel the father to produce documents, which

the trial judge had previously ordered be produced. The father

filed a discovery response that was wholly inadequate. The father

never complied with the order to produce an accounting.

The trial judge ordered the father to appear in court to

explain his failure to pay spousal support. When the father

failed to appear, the trial judge issued a rule to show cause why

the father should not be held in contempt for violating the orders

- 2 - of the court and ordered that he appear in person at a date

certain. The father failed to appear at the hearing. The trial

judge then entered an order denying the father the right to "file

any motions or pleadings . . . until such time as he personally

appears before [the court]." The trial judge issued another rule

against the father to appear and to show cause why he should not

be held in contempt for continuing to violate the court's orders.

When the father failed to appear at the hearing, the trial judge

issued a rule to show cause and ordered that he appear.

Ignoring the trial judge's mandate that he file no pleadings

until he personally appeared before the court, the father filed

various pleadings. The father again failed to appear at the

hearing that was continued. In the presence of the father's

counsel, the trial judge stated the following:

[The father] has a history of utter total disrespect and contempt for this Court and its orders. That's why this Court took the position that . . . because of his track record, he could not file anything until he came before this Court and answered, in person, as to why he did or didn't do the things that are alleged that have been the basis for this Court's order and the rule to show cause.

The trial judge then granted the mother custody of the

children and extended a protective order which was entered by

the juvenile and domestic relations district court. Later, the

trial judge suspended the father's continuing obligation to pay

spousal support and increased his child support obligation to

- 3 - $7,589. The trial judge issued a capias for the father to show

cause why he should not be held in contempt for his refusal to

comply with the orders of the court. The trial judge entered an

order setting a date for the deposition of the father and

requiring him to produce the requested documents. Neither the

father nor his counsel appeared for the deposition, and no

documents were produced.

When the father failed to appear at another hearing, the

trial judge granted the mother's motion for judgment in the

amount of $24,979 for spousal support arrearage. The trial

judge also entered an order requiring two financial institutions

to provide statements disclosing any financial assets held in

trust for the parties' children. A hearing was held on the

mother's motion for a writ of ne exeat. The father again failed

to appear. The trial judge granted the writ, restraining the

departure of the father from the jurisdiction.

Upon proper notice, the trial judge conducted an ore tenus

hearing on the matter of the parties' divorce. The father

failed to appear. Following entry of the final decree, the

father appealed. We affirmed the trial judge's rulings,

including the validity of the non-participation sanction.

II.

This current proceeding began nineteen months after entry

of the final decree. The father, by counsel, filed a motion to

permit the father to file a "Motion to Correct Child Support

- 4 - Arrearage, Modify Child Support, Amend Writ of Ne Exeat, Amend

Protective Orders and for Other Relief." At a hearing on the

motion, the father did not personally appear; he was represented

by counsel. In pertinent part, the trial judge denied the

father's motion "to file or argue Motions . . . until such time

as he personally appears before this Court" and ordered the

father to file a bond "prior to the filing of any further

motions." This appeal followed.

III.

The father contends that the trial judge lost his power to

reinstate the non-participation sanction in post-trial

proceedings because the sanctions were not contained in the

final order. We disagree. 1

In our review on appeal of a trial judge's imposition of a

sanction, we will not reverse the decision unless the judge

abused his or her discretion. See Gentry v. Toyota Motor Corp.,

252 Va. 30, 34, 471 S.E.2d 485, 488 (1996). "Courts often

1 Although we agree with the father that the determination whether the sanctions survived the entry of the decree is not barred by res judicata, the rule of res judicata does bar an attack on the sanction itself. "The bar of res judicata precludes relitigation of the [non-participation sanction] . . . , or any part thereof, which could have been litigated between the same parties." Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992). The prior appeal was a final determination on the merits of that issue. Thus, we will not reconsider our prior "hold[ing] that the trial [judge's] imposition of the non-participation sanction against [the father] comports with fundamental fairness and is consistent with due process of law." Fox, slip op. at 7.

- 5 - impose sanctions when a litigant or his attorney has acted in

bad faith." Id. "Sanctions [also] can be used to protect

courts against those who would abuse the judicial process."

Oxenham v. Johnson, 241 Va. 281, 286, 402 S.E.2d 1, 3 (1991).

"The purpose of such a sanction is to punish the offending party

and deter others from acting similarly." Gentry, 252 Va. at 34,

471 S.E.2d at 488.

When the care, custody, and maintenance of the parties'

children is involved, the trial judge "must exercise [his

discretion] with the welfare of the [children] as the paramount

consideration." Allen v. Allen, 188 Va. 717, 721, 51 S.E.2d

207, 209 (1949). The father has clearly acted in bad faith in

refusing to comply with orders to support his children and

former wife or to appear before the trial judge. "It was his

duty to have . . . compl[ied] with the order of the court that

he pay to the mother . . . support and maintenance of herself

and [the children] until the same was changed, modified[,] or

revoked by the court; and he was and is in contempt of the court

in that he has not done so." Gloth v. Gloth, 154 Va. 511,

554-55, 153 S.E. 879, 893 (1930). "The power to punish for

contempt is inherent in, and as ancient as, courts themselves.

It is essential to the proper administration of the law, to

enable courts to enforce their orders, judgments and decrees."

Steinberg v. Steinberg, 21 Va. App. 42, 46, 461 S.E.2d 421, 423

(1995) (citation omitted). Thus, given the extreme conduct of

- 6 - the father, the trial judge had the authority to "refuse to

proceed further with this case until the [father] had purged

himself of his contempt." Gloth, 154 Va. at 555, 153 S.E. at

893.

The father relies on Degen v. United States, 517 U.S. 820

(1996), for the proposition that the trial judge's use of the

non-participation sanction post-trial was too broad. That case

is inapposite, however, because it involved two separate

proceedings, one civil and one criminal. The Supreme Court held

that Degen could not be prevented from answering a complaint for

civil forfeiture of his assets simply "because he remained

outside of the country, unamenable to criminal prosecution."

Id. at 822. The Court noted, however, that if Degen's refusal

to appear personally resulted in non-compliance with a

legitimate order of the civil trial court, Degen would then be

exposed to the same sanctions as any other uncooperative party.

Id. at 827. Therefore, Degen does not support the father's

argument. The trial judge's order barred the father from

participating in the divorce proceedings or subsequent hearings

involving matters such as support issues, which were litigated

in the divorce proceeding, until he personally appeared. It did

not have effect beyond these proceedings.

The father further contends that Davis v. Davis, 233 Va.

452, 357 S.E.2d 495 (1987), requires the trial judge to impose a

narrower sanction. In Davis, however, the Supreme Court held

- 7 - that when the ex-husband invoked his constitutional right

against self-incrimination, his refusal to testify was neither

pertinent to a relevant issue nor frustrated attempts by his

ex-wife to obtain the information relevant to his claims against

her. See 233 Va. at 458-59, 357 S.E.2d at 499. That ruling

encompasses an entirely different circumstance from the one

which the father has created in this case. The father continues

to completely frustrate the mother's attempts to obtain

information germane to support issues; he refuses to support his

family in direct violation of the court's orders; and he has not

purged his contempt.

"Courts are invested with the power and charged with the

duty of enforcing their decrees." Branch v. Branch, 144 Va.

244, 251-52, 132 S.E. 303, 305-06 (1926). If the trial judge

could not use contempt powers beyond the time of the final

decree, litigants could simply refuse to comply with the final

judgment and completely avoid sanctions. See Bagwell v. United

Mine Workers, 244 Va. 463, 478, 423 S.E.2d 349, 358 (1992)

(holding that adopting such an argument would allow those in

contempt of court to completely avoid the sanction by postponing

compliance until the settlement of the underlying litigation),

rev'd on other grounds, 512 U.S. 821 (1994). Simply put, the

father seeks to pick and choose the proceedings in which he will

participate and, thereby, to obtain a tactical advantage.

Courts in Virginia, however, operate under "the long held

- 8 - principle that a court of chancery need not fully exercise its

power at one time but may adapt its relief to the circumstances

of a particular case." Morris v. Morris, 3 Va. App. 303, 306,

349 S.E.2d 661, 663 (1986).

The trial judge entered judgment against the father on

April 30, 1997, and has found him in contempt. We upheld the

judgment on appeal. The husband has yet to comply with the

order or to purge himself of contempt. Accordingly, we affirm

the trial judge's order. In addition, we remand this matter to

the trial judge to fix a reasonable attorney's fee to be awarded

to the mother against the father for this appeal.

Affirmed.

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