Jeanne C. Theismann v. Joseph R. Theismann ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JEANNE C. THEISMANN
MEMORANDUM OPINION *
v. Record No. 0790-96-4 PER CURIAM
MARCH 4, 1997
JOSEPH R. THEISMANN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
(Mark A. Barondess; Erika B. Schiller;
Sandground, Barondess, West & New, on
briefs), for appellant.
(Michael A. Ward; Gannon, Cottrell & Ward, on
brief), for appellee.
Jeanne C. Theismann (wife) appeals the decision of the
circuit court awarding attorney's fees and costs to Joseph R.
Theismann (husband). Wife contends the award was unreasonable,
unnecessary, and an abuse of discretion. Husband contends that
the trial court erred in failing to use replacement value in
determining the amount of the award. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
"A trial court 'has the authority to hold [an] offending
party in contempt for acting in bad faith or for willful
disobedience of its order.'" Alexander v. Alexander, 12 Va. App.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). "It is
within the discretion of the trial court to include, as an
element of damages assessed against the defendant found guilty of
civil contempt, the attorneys' fees incurred in the investigation
and prosecution of the contempt proceedings." Arvin, Inc. v.
Sony Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755
(1975) (citation omitted).
Under the terms of the parties' final decree of divorce,
marked items on an attached exhibit were to "be transferred to
[husband]." The artwork at issue, a painting by Red Skelton, was
so marked. The decree also specifically stated that the "Red
Skelton painting shall be transferred to [husband]." The
painting was last seen in wife's possession at the parties'
marital residence. Wife failed to transfer the painting, and it
was subsequently lost.
Wife did not justify her failure to return the artwork to
husband to the satisfaction of the trial court. See Alexander,
12 Va. App. at 696, 406 S.E.2d at 669. In its September 7, 1995
letter opinion, the trial court found wife in contempt for her
failure to comply with its previous order directing her to
transfer the painting to husband.
For purposes of equitable distribution, the parties had
valued the painting at $3,500. The trial court allowed the
parties to present additional evidence as to the artwork's value
for purposes of determining the damages caused by wife's failure
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to abide by the decree. "The conduct of a trial is committed to
the sound discretion of the trial court." Cunningham v.
Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986).
We cannot say that the trial judge's decision to exercise his
equitable authority and allow the parties an opportunity to
present evidence as to the painting's value was an abuse of
discretion.
According to the parties' experts, the painting was worth
between $3,500 to $45,000. The trial court noted that the
parties purchased the painting for $13,750 in 1992 and that at
one time it was offered for sale for $27,500. While husband's
expert testified that the replacement value was $45,000, we find
no error in the court's refusal to accept that value, the
underpinnings of which were demonstrably suspect. "[T]he finder
of fact is not required to accept as conclusive the opinion of an
expert." Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d
368, 370 (1986). While the court did not assign a specific value
to the painting, it is clear from the court's total award that
the court estimated its worth at approximately $5,000. That
figure was well within the range of values supported by the
credible evidence before the court.
Husband presented evidence that he incurred $5,600 in costs
and $6,144.50 in attorney's fees in connection with the contempt
hearing. The court found that "the fees of the expert and of
[husband's counsel] are reasonable and are directly related to
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[wife's] contempt."
We find no abuse of discretion in the court's award to
husband of damages, costs, and attorney's fees resulting from
wife's failure to abide by the court's order. Accordingly, the
decision of the circuit court is summarily affirmed.
Affirmed.
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