Karl J. Ottosen v. Carla L. Saunders ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judge McClanahan, Senior Judges Coleman and Annunziata
KARL J. OTTOSEN
MEMORANDUM OPINION*
v. Record No. 0953-05-4 PER CURIAM
DECEMBER 6, 2005
CARLA L. SAUNDERS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
(Michael A. Ward, on briefs), for appellant.
(Lisa C. Fried, on brief), for appellee.
Karl J. Ottosen (father) appeals from the circuit court’s March 18, 2005 order finding he
violated Code § 8.01-271.1 and ordering him to pay costs and attorney’s fees to Carla L. Saunders
(mother). On appeal, father contends the trial court erred (1) in finding mother is entitled to relief
under Code § 8.01-271.1 and (2) in determining the amount of the award. Both parties seek
attorney’s fees and costs incurred in connection with this appeal. 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. See Rule 5A:27.
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).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The parties’ children were born on November 1, 1991. The parties, never married, entered
into an “Agreed Order” on November 8, 2000. In that order, they agreed the parties would have
joint legal custody of the twins, with mother having primary physical custody, subject to visitation
as outlined in the order. The order further provided that either party could recover attorney’s fees
expended in successfully enforcing the order.
On May 30, 2003, father petitioned the juvenile and domestic relations district court for a
change in custody for the two children. The first trial date of January 26, 2004 was cancelled due to
weather, but mother and the children had already traveled to Virginia from Florida for the event.
Mother again traveled to Virginia for the second trial date of May 24, 2004. The following day, the
juvenile court dismissed father’s petition, on mother’s motion, concluding father had failed to
demonstrate a material change in circumstances since the entry of the consent order. The juvenile
court denied mother’s motion for attorney’s fees and also denied her motion to reconsider the denial
of attorney’s fees, concluding that responding to father’s petitions was not a “successful
enforcement of any of the provisions” of the parties’ consent order.
On June 2, 2004, father appealed the juvenile court decision to the circuit court. Father’s
counsel sought to non-suit the appeal just days before the scheduled November 17, 2004 trial date.
Mother objected to the non-suit. The circuit court allowed father to withdraw his appeal with
prejudice but rejected the non-suit attempt. The court also allowed mother to file a renewed motion
for attorney’s fees and after reviewing the record and evidence presented determined father violated
Code § 8.01-271.1 and awarded sanctions to mother in the amount of her attorney’s fees and costs
associated with defending the action father initiated against her.
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ANALYSIS
I.
Under Code § 8.01-271.1, every motion signed or made orally by an attorney constitutes
a representation that “to the best of his knowledge, information, and belief, formed after
reasonable inquiry,” the argument or legal position is “well grounded in fact,” and is well
grounded in current law or is made in good faith application of law that should be extended,
modified, or reversed. If this statute is violated, then the trial court shall impose upon the
attorney and/or the represented party “an appropriate sanction.” The trial court found father
vindictively “pursu[ed] his fruitless litigation” causing unnecessary expense and stress to mother
and the children. Father argues this ruling was in error.
This Court reviews an award of sanctions for abuse of discretion by the trial court.
Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991).
In applying that standard, we use an objective standard of
reasonableness in determining whether a litigant and his attorney,
after reasonable inquiry, could have formed a reasonable belief that
the pleading was well grounded in fact, warranted by existing law
or a good faith argument for the extension, modification, or
reversal of existing law, and not interposed for an improper
purpose.
Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 65-66, 547 S.E.2d 216, 227 (2001). See also
Gilmore v. Finn, 259 Va. 448, 466, 527 S.E.2d 426, 435 (2000). In this context, we review the
trial court’s determination that father did not reasonably believe that his representations to the
court, both orally and in his pleadings, were well grounded or made in good faith.
We find no abuse of discretion in the trial court’s determination that father filed his
motions for the improper purpose of harassing mother or to cause her unnecessary expense. The
record reveals the juvenile court determined father failed to demonstrate any material changes in
circumstances. After initiating an appeal to the circuit court, father attempted to non-suit the
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case just days before the scheduled trial. The court permissibly inferred from the record that
father “use[d] his pending appeal as leverage, [in] offer[ing] a settlement to [m]other . . . .”
Based in part on the parties’ “disparate financial positions,” the court concluded “[t]he financial
burden of the instant litigation is far more burdensome on the mother than the father, and the
father was aware of the impact his litigation had on her.”
Given the facts in this case, father was not reasonable in his pursuit of the cause he
initiated. The trial court did not abuse its discretion in awarding sanctions pursuant to Code
§ 8.01-271.1.
II.
Father argues the trial court erred in its determination of the amount of sanctions.
Specifically, he contends mother’s evidence “support[ing] her claim for an award of sanctions
. . . was unverified and unsubstantiated.” He does not, on appeal, challenge the admissibility of
the evidence mother presented. The validity of the court’s ruling on the admissibility of the
evidence is not part of the question presented and thus is not cognizable on appeal. See Hillcrest
Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001)
(finding “an issue [was] not expressly stated among the ‘questions presented,’ . . . we, therefore,
decline to consider [it] on appeal”); see also Rule 5A:20(c). The only issue before us is whether
the evidence presented to the trial court supports its determination of the amount of the sanctions
awarded.
Mother presented attorney’s fees statements, airline receipts, and various other
documentation regarding the costs she incurred as a result of father’s lawsuit. “The credibility of
the witnesses and the weight accorded the evidence are matters solely for the fact finder who has
the opportunity to see and hear that evidence as it is presented.” Thomas v. Thomas, 40
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Va. App. 639, 644, 580 S.E.2d 503, 505 (2003). Mother fully documented her expenses. The
trial court accepted mother’s evidence. We find no error in the court’s determination.
III.
Both parties request costs and attorneys’ fees for matters relating to this appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context,
and upon consideration of the entire record in this case, we hold that husband is not entitled to
costs or attorney’s fees in the matter.
Upon a review of this appeal, we find that husband’s case presented numerous questions
that were not supported by law or evidence. See Gottlieb v. Gottlieb, 19 Va. App. 77, 95, 448
S.E.2d 666, 677 (1994). Therefore, we award attorney’s fees to wife and remand this case to the
trial court for determination of attorney’s fees and costs incurred in responding to this appeal,
and for any costs incurred at the hearing on remand, including any attorney’s fees and costs
incurred at the remand hearing, and any reasonable attorney’s fees and costs of collection, if
necessary.
Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Affirmed.
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