Robert L. Nolting, Jr. v. Holly L. Nolting ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, McClanahan and Senior Judge Coleman
ROBERT L. NOLTING, JR.
MEMORANDUM OPINION*
v. Record No. 0174-04-4 PER CURIAM
JULY 13, 2004
HOLLY L. NOLTING
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
(Nicholas A. Balland; Peter M. Baskin; Law Offices of Pelton,
Balland, Demsky, Baskin & O’Malie, on brief), for appellant.
(Martin A. Gannon; James Ray Cottrell; David H. Fletcher;
Christopher W. Schinstock; Kyle F. Bartol; Mark B. Sandground, Sr.;
Gannon & Cottrell, P.C.; Sandground, West, New & Lowinger, P.C.,
on brief), for appellee.
Robert L. Nolting (husband) appeals from the circuit court’s December 29, 2003 final
decree awarding Holly L. Nolting (wife) a divorce. On appeal, husband contends the trial court
(1) erred by imposing sanctions against him as set forth in the court’s December 6, 2002 order,
(2) abused its discretion by “imposing an excessively harsh and severe sanction,” (3) erred in
denying husband’s motion to reconsider its December 6, 2002 sanctions ruling, (4) erred “in its
[o]rder of January 13, 2004 in refusing to retain jurisdiction to adjudicate equitable distribution after
the entry of the” final decree, and (5) erred “in refusing to require the wife to disclose through
discovery the extent of the marital estate in order for the court to equitably divide the marital estate
of the parties.” Upon reviewing the record and briefs, 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 § 17.1-413, this opinion is not designated for publication.
Background
On appeal, we view the evidence and all reasonable inferences in the light most favorable
to appellee as the party prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990).
The parties married on February 25, 1984. On June 4, 2002, wife filed a bill of complaint
seeking a divorce from husband. On June 10, 2002, wife served on husband interrogatories and
a request for the production of documents. The responses were due July 10, 2002. On July 11,
2002, having not received husband’s responses, wife filed a motion to compel and for sanctions.
Wife provided husband with an extension until August 9, 2002 in which to file his discovery
responses. When husband again failed to respond, wife filed a second motion to compel and for
sanctions.
On August 15, 2002, husband provided his discovery responses, but they failed to fully
answer the interrogatories. Husband’s counsel indicated the deficiencies would be cured, but
wife never received further responses. Wife then filed her third motion to compel discovery on
October 11, 2002. On November 1, 2002, the court entered an order requiring husband to
“forthwith provide full, complete and unequivocal responses to the discovery heretofore
exhibited against him without objection.” Husband responded with only a partial answer to the
listed deficiencies.
On November 1, 2002, husband requested a continuance for his scheduled November 7,
2002 deposition. The parties agreed to continue the deposition until November 18, 2002. On the
morning of November 18, husband’s counsel informed wife’s counsel that husband was ill and
could not attend the deposition that day. The deposition was again rescheduled to November 22,
2002, and husband again failed to attend. According to husband’s counsel, husband “didn’t
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show up because he [was] panicking about this.” Wife then filed a motion for sanctions on
November 25, 2002. The court heard argument on the matter on December 6, 2002.
Pursuant to Rule 4:12, the trial court ruled that husband “shall not introduce any evidence
to support any claims he has made or intends to make against” wife and that he “shall not be
allowed to introduce any evidence to oppose [wife’s] claims for equitable distribution and an
award of attorney’s fees and costs.”
Husband immediately filed a motion to reconsider the court’s ruling. Wife responded to
the motion, husband filed a memorandum in support of his motion, and the court gave its
approval for husband to proceed with the motion at a mutually convenient time to be arranged
between counsel and the court. However, husband made no effort to schedule a hearing on the
matter until July 31, 2003, approximately eight months following the court’s sanction decision.
During that time, husband never supplemented his deficient discovery responses. The trial court
denied husband’s motion to reconsider on September 25, 2003.
Husband attempted to compel wife to supplement her discovery and to be deposed. The
trial court found that pursuant to the December 6, 2002 sanctions order, husband was not
permitted to compel discovery. The court denied husband’s motions.
Following a hearing on December 29, 2003, the trial court entered the final decree of
divorce and denied husband’s motion to reserve jurisdiction to grant equitable distribution at a
later time.
Analysis
I. and II.
Husband challenges the trial court’s imposition of sanctions against him. He asserts the
trial court erred “in imposing the sanction provided for in [R]ule 4:12(b)(2)(B) because no Order
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directing the husband to provide discovery by deposition had ever been entered prior to
December 6, 2002.”
Rule 4:12 governs the imposition of sanctions for “[f]ailure
to [m]ake [d]iscovery.” This rule permits circuit courts to strike a
party’s claims or defenses for failure to comply with a discovery
order. Rule 4:12(b)(2)(B). Moreover, Rule 4:12(d) expressly
authorizes the court to strike a party’s claims or defenses for
failure to timely serve answers to interrogatories. This rule “gives
the trial court broad discretion in determining what sanctions, if
any, will be imposed upon a litigant who fails to respond timely to
discovery.” Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d
293, 295 (1990).
Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717 (1993).
The trial court’s November 1, 2002 discovery order specifically required husband to
“provide full, complete and unequivocal responses to the discovery . . . .” Husband was duly
noticed to appear for his depositions. Husband consistently refused to provide wife with
responses to her discovery requests, thereby preventing her from investigating her allegations
that husband wasted marital assets or ascertaining the value of husband’s business. The court
provided husband with ample opportunity to rectify his behavior but husband steadfastly refused
to cooperate. The record supports the trial court’s decision, and we find no abuse of discretion in
the sanction the court imposed.
III. and IV.
Husband argues the trial court erred in denying his motion to reconsider its December 6,
2002 sanctions ruling and erred in refusing to retain jurisdiction to adjudicate equitable distribution
after the entry of the final decree.
Husband failed to submit arguments on these issues in his opening brief. Accordingly, he
waived the issues. See Littlejohn v. Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d 853, 857
(1997); Rules 5A:12(c) and 5A:20(e). “Since th[ese] argument[s] w[ere] not fully developed in
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the appellant’s brief, we need not address th[ese] question[s].” Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
V.
Husband asserts the trial court erred by refusing “to allow [him] to conduct discovery
from” wife.
Husband filed interrogatories seeking financial information from wife and also sought to
depose wife. Wife filed a motion to quash, which the court granted on November 21, 2003. The
trial court concluded that because the sanctions order prevented him from presenting any
evidence against wife or challenging her claims, he was not entitled to compel discovery from
her.
Trial courts “have the authority to interpret their own orders.” Fredericksburg Constr.
Co., Inc. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). When
examining a trial court’s order on appeal, we defer to the interpretation adopted by that lower
court. Id.; Smoot v. Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 411 (2002). Our
analysis here, therefore, requires determining whether the trial court abused its discretion when
interpreting its December 6, 2002 order.
The sanctions order provides that husband “shall not introduce any evidence to support
any claims he has made or intends to make against” wife and that he “shall not be allowed to
introduce any evidence to oppose [wife’s] claims for equitable distribution and an award of
attorney’s fees and costs . . . .” The order broadly prohibits husband from challenging wife’s
claims or raising any claims on his behalf. The trial court did not abuse its discretion in
concluding this order prohibited husband from requiring wife to answer interrogatories or to be
deposed, as husband would not have been able to present to the court any evidence he may have
obtained in such a process.
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Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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