Lori A. Saxon . Todd D. Zirkle and Jane Khoury and Olivia Baker

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 12-FM-69, 12-FM-235, 12-FM-386, 12-FM-560, & 12-FM-971
LORI A. SAXON, APPELLANT,
v.
TODD D. ZIRKLE, APPELLEE,
and
JANE KHOURY and OLIVIA BAKER, APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(DRB-3424-09)
(Hon. Jeanette J. Clark, Trial Judge)
(Argued February 20, 2014 Decided August 14, 2014)
Robert Maxwell for appellant.
Todd D. Zirkle, pro se.
Peter N. Mann filed a brief for appellee Todd D. Zirkle.
Jane Khoury of the District of Columbia Volunteer Lawyers Project, with
whom Olivia Baker was on the brief, pro se.
Before EASTERLY and MCLEESE, Associate Judges, and FERREN, Senior
Judge.
MCLEESE, Associate Judge: Following two bench trials, the trial court
2
granted Ms. Saxon and Mr. Zirkle an absolute divorce, denied Ms. Saxon’s request
for alimony, awarded the parties joint legal custody of their child, modified Mr.
Zirkle’s child-support obligations, and imposed sanctions against Ms. Saxon and
her counsel, in the form of attorney’s fees to be awarded to the District of
Columbia Volunteer Lawyers Project (“DCVLP”).1 In these appeals, Ms. Saxon
challenges the trial court’s imputation of $24,000 a year in income to Ms. Saxon,
for purposes of determining alimony, child support, and sanctions. Ms. Saxon
further argues that that the trial court erred by awarding fees to DCVLP. We
affirm.
I.
The following facts are undisputed. Ms. Saxon and Mr. Zirkle married in
the District of Columbia and had one child. In November 2009, Ms. Saxon and
Mr. Zirkle separated. Mr. Zirkle filed a complaint in Superior Court seeking
custody of the child. The trial court subsequently ordered Mr. Zirkle to pay $1,368
per month in child support. The trial court also appointed two volunteer attorneys
1
DCVLP is “a nonprofit organization whose mission is to provide high-
quality, free legal services to low-income District of Columbia residents in family
law cases.”
3
associated with DCVLP to serve as pro bono guardians ad litem (“GALs”) for the
child in all matters concerning custody and visitation. The appointment order
provided that the GALs “shall have all rights of a party to the case” and “shall
serve without compensation.”
In January 2011, Mr. Zirkle filed for divorce in the Superior Court. The trial
court bifurcated the divorce trial from the custody trial. After the divorce trial, the
trial court issued a judgment of absolute divorce, denying Ms. Saxon’s request for
alimony payments. In denying the request, the trial court imputed income to Ms.
Saxon in the amount of $24,000, because Ms. Saxon had been “voluntarily
unemployed” since the separation.
After the custody trial, the trial court issued an order reducing Mr. Zirkle’s
child-support obligation from $1,368 to $980 per month. Among other things, the
reduction reflected Ms. Saxon’s imputed income of $24,000. The trial court also
awarded joint legal custody of the child to Ms. Saxon and Mr. Zirkle, with Ms.
Saxon having primary physical custody of the child and Mr. Zirkle having a right
of reasonable visitation and the right to make final decisions regarding the child’s
safety and general welfare.
4
During the course of the lengthy pretrial proceedings, DCVLP moved for
sanctions against Ms. Saxon and her counsel under Superior Court Domestic
Relations Rule 11 (authorizing imposition of sanctions, including requirement to
pay attorney’s fees of opposing party, where party or attorney files frivolous or
abusive motions). The trial court granted the motion, on the ground that Ms.
Saxon and her counsel had filed motions that were not well-grounded in fact and
that were intended to cause delay and to needlessly increase the cost of the
litigation. The trial court required Ms. Saxon and her attorney to pay DCVLP
$10,740 to compensate the GALs for the work they did in responding to those
motions and in litigating the issue of sanctions.
II.
We address first Ms. Saxon’s challenges to the trial court’s decisions to
impute $24,000 in income to Ms. Saxon in determining alimony, child support, and
Rule 11 sanctions. “A trial court has a considerable measure of discretion in
determining the appropriate amount of alimony and child support based on its
determination of net income.” Araya v. Keleta, 65 A.3d 40, 48 (D.C.) (internal
quotation marks omitted), cert. denied, 134 S. Ct. 426 (2013). “That determination
will not be disturbed on appeal unless the [trial] court clearly abused its
5
discretion.” Id. (internal quotation marks omitted). Furthermore, we defer to the
trial court’s findings of fact unless they are “plainly wrong or without evidence to
support [them].” D.C. Code § 17-305 (a) (2012 Repl.).
The issue of imputation first arose at an alimony hearing. During the course
of that hearing, the following evidence was admitted on that issue: Ms. Saxon had
a bachelor’s degree from college; had two real-estate licenses; had been in the real-
estate profession for over twenty-four years; and had earned as much as $189,000
per year as a real-estate agent. Ms. Saxon testified that her income had dropped
recently, because she had stayed home to home-school the child, but that the child
was now in school. Ms. Saxon testified that she was trying to return to real estate,
but that the real-estate market was depressed, which limited her ability to earn
income. She had one current listing, which was her own home, and had earned
little income as a real-estate agent since the market declined. She had earned only
$850 in the past year from “odd jobs,” such as buying and selling antiques, and
was living off of her $40,000 retirement. Ms. Saxon had explored the possibility
of substitute teaching in Virginia. She had spoken with three principals in Virginia
schools who told her that schools were “always looking for [substitutes].” Ms.
Saxon also testified that she expected to be able to substitute teach. Without
6
objection, the trial court took judicial notice of the fact that the minimum salary for
a substitute teacher in Fairfax County, Virginia was approximately $24,000.
Based on this evidence, the trial court found that Ms. Saxon could have
earned more income than she was currently earning, whether as a substitute teacher
or as a real-estate agent. Specifically, the trial court found that Ms. Saxon was
qualified and appeared to be employable, that there was no evidence that Ms.
Saxon was looking diligently for employment, that she could earn at least $24,000
as a substitute teacher, and that she was voluntarily limiting her income. The trial
court therefore imputed $24,000 in income to Ms. Saxon.
The issue of imputation arose again with respect to child support. At a
hearing in January 2012, the trial court considered additional evidence about Ms.
Saxon’s efforts in real estate and buying and selling antiques. The trial court noted
that it had already imputed $24,000 for purposes of alimony, and at the hearing
Ms. Saxon did not object to the propriety of imputing the same amount of income
to her for purposes of determining child support. As a result, based on the prior
record and the additional evidence, the trial court again imputed $24,000 in income
to Ms. Saxon. The trial court noted that to impute income for purposes of child
support it had to find that the party to whom income was being imputed was
7
“voluntarily unemployed or underemployed as a result of the parent’s bad faith or
deliberate effort to suppress income [or] to avoid or minimize the parent’s child
support obligation . . . .” D.C. Code § 16-916.01 (d)(10) (2012 Repl.). The trial
court did not expressly make such a finding as to Ms. Saxon.
Finally, the imputation issue also arose when the trial court was determining
Ms. Saxon’s ability to pay the Rule 11 sanctions. The trial court relied on its
previous discussions of imputed income in determining Ms. Saxon’s earning
potential, which informed the trial court’s finding that Ms. Saxon had the ability to
pay.
We conclude that there was sufficient evidence to support the conclusion
that Ms. Saxon was voluntarily unemployed and that $24,000 in income should be
imputed to her in all three contexts at issue. As to voluntary unemployment, there
was evidence that Ms. Saxon had a bachelor’s degree and prior work experience as
a real-estate agent, had earned as much as $189,000 a year as a real-estate agent,
and was not diligently looking for employment, even though she expected to be
able to substitute teach. That evidence permitted the trial judge reasonably to
conclude that Ms. Saxon had voluntarily limited her income for purposes of
affecting the child-support determination. Cf. Freeman v. Freeman, 397 A.2d 554,
8
556 (D.C. 1979) (record supported trial court’s finding that husband voluntarily
reduced income by quitting well-paying job and making minimal effort to find
employment commensurate with skills).2
With respect to the amount of income imputed, Ms. Saxon herself indicated
that she was exploring substitute teaching, had been told by three different
principals that schools in Virginia were “always looking for [substitutes].”
Furthermore, although there was no evidence or finding as to whether Ms. Saxon
had all of the credentials required to qualify as a substitute teacher in Fairfax
County, her acknowledged expectation that she would be able to substitute teach
there provided sufficient support for the trial court’s reliance on that prospect. In
addition, Ms. Saxon does not dispute that the minimum salary for a substitute
teacher in Fairfax County, Virginia is approximately $24,000. This evidence
adequately supported the trial court’s determination to impute $24,000 in income
to Ms. Saxon.
2
The requirement that the voluntary unemployment be for the purpose of
affecting the child-support obligation is imposed by D.C. Code
§ 16-916.01 (d)(10), which expressly addresses imputation of income in the
context of child support. Although it is unclear to what extent, if any, the
requirements of § 16-916.01 (d)(10) apply to imputation of income for purposes of
determining alimony and sanctions, we need not reach that issue, because the
record supports the conclusion that the requirements of § 16-916.01 (d)(10) were
met in this case.
9
We are not persuaded by Ms. Saxon’s arguments to the contrary. First, Ms.
Saxon argues, for the first time on appeal, that the trial court erred in placing the
burden on her of showing that her unemployment was not voluntary. Rather, she
argues, Mr. Zirkle -- the party seeking to impute income -- had the burden of
proving that Ms. Saxon was voluntarily unemployed.3 Assuming without deciding
that Ms. Saxon is correct, we conclude that any resulting error was harmless,
because we are confident that the trial court’s ruling did not turn on the statement
about burden of proof. As to most of the relevant factors, the trial court made
specific findings based on undisputed evidence or on matters that Ms. Saxon was
not contesting. Moreover, in summarizing its conclusion, the trial court did not
rely on the burden of proof, instead stating that the trial court “has determined that
[Ms. Saxon] could have earned more income than what she did . . . , but that she
was not being diligent about finding work . . . .” Finally, the trial court explicitly
placed the burden on Mr. Zirkle to prove how much Ms. Saxon could earn. By
imputing $24,000 in income to Ms. Saxon, the trial court necessarily found that
Ms. Saxon could have earned that amount as a teacher. Accordingly, we conclude
that any error in assigning the burden of proof did not adversely affect the
3
Ms. Saxon relies on Prisco v. Stroup, 3 A.3d 316, 320 (D.C. 2010), in
arguing that the party seeking to impute income bears the burden of proving
voluntary unemployment. Because the court in Prisco was applying Virginia law,
id. at 319-20, Prisco does not establish the law of the District of Columbia on the
point.
10
judgment against Ms. Saxon. Cf. In re D.R.J., 734 A.2d 162, 163-67 (D.C. 1999)
(trial court’s error in placing burden on defendant to rebut presumption of
dangerousness was harmless, because there was “no doubt that the judge . . . would
have reached the same conclusion” absent error, given trial court’s ruling on
closely related issue as to which trial court had placed burden on government).
Second, Ms. Saxon argues, for the first time on appeal, that the trial court
made no express finding of bad faith as required under D.C. Code § 16-
916.01 (d)(10). The record, however, supports such a finding, and the trial court
expressly referred to the bad-faith requirement in the child-support order. “[T]rial
judges are presumed to know and apply the proper legal standards.” Wright v.
Hodges, 681 A.2d 1102, 1105 (D.C. 1996); see also In re C.T., 724 A.2d 590, 597
(D.C. 1999) (“Trial court rulings come to us with a presumption of correctness.”).
We therefore see no basis for reversal, particularly given the absence of objection
by Ms. Saxon in the trial court. Cf. Lewis v. United States, 567 A.2d 1326, 1330-
31 (D.C. 1989) (trial court’s failure to make express finding by clear and
convincing evidence that prior bad act had occurred was not plain error, where
counsel did not request finding).
11
Third, Ms. Saxon argues that it was illogical for the trial court to determine
that Ms. Saxon could obtain work as a substitute teacher, given that the trial court
had found that Ms. Saxon was not successfully home-schooling the child and that
Mr. Zirkle should make the final decisions concerning the child’s education. The
trial court could reasonably have concluded, however, that although Ms. Saxon
was not well suited to dealing with the educational issues posed by her own child,
who had special needs, Ms. Saxon’s testimony nevertheless indicated that Ms.
Saxon could obtain a position as a substitute teacher.
III.
We next consider Ms. Saxon’s challenge to the award of $11,740 in
attorney’s fees to DCVLP as a Rule 11 sanction. Ms. Saxon does not challenge the
trial court’s determination that sanctions were justified in light of the conduct of
Ms. Saxon and her attorney. She does, however, raise several other objections to
the award, almost all of which appear to have been raised for the first time in this
court. We uphold the award.
12
A.
First, pointing out that one of the GALs was an inactive member of the
District of Columbia Bar, Ms. Saxon argues that awarding attorney’s fees to that
GAL violated Rule 49 (c)(9)(B) of this court’s rules, which prohibits an inactive
member of the Bar from practicing law in the District of Columbia unless he or she
“is employed by or affiliated with a non-profit organization . . . that provides legal
services for indigent clients without fee . . . .” Although the trial court at times
referred to an award of fees to the GALs, the trial court’s written order explicitly
directs that the fees are to be paid to DCVLP. Moreover, the GALs have explicitly
disavowed any direct or indirect personal interest in the fee award. Thus, the
premise of Ms. Saxon’s argument is incorrect.4
4
Although this court designated the individual GALs as appellees, it would
be more accurate to view DCVLP, which is the actual recipient of the fees, as the
appellee, and the GALs as attorneys representing DCVLP’s interests in this court.
We note that Ms. Saxon has not argued that any fee award was properly payable in
the first instance only to the GALs or to the minor child, rather than to DCVLP.
We therefore do not address that issue.
13
B.
Second, Ms. Saxon argues that the GALs were parties in the trial court,
rather than attorneys representing a party, and that the sanctions award is therefore
barred by the rule that pro se parties who are attorneys cannot be awarded fees as a
sanction under Domestic Relations Rule 11. See Upson v. Wallace, 3 A.3d 1148,
1165-68 (D.C. 2010). We do not view either the attorney GALs or DCVLP as
analogous to pro se attorneys.
The trial court had authority to appoint the attorney GALs in this case under
D.C. Code §§ 16-914 (g) (2012 Repl.) (trial court in custody cases may appoint
GAL, attorney, or both “to represent the minor child’s interests”), -918 (b) (2012
Repl.) (in proceeding involving child custody, trial court may appoint disinterested
attorney to appear on behalf of child and represent child’s best interests). In its
order of appointment, the trial court granted the GALs “all rights of a party,” but
also directed that the GALs “represent the best interests of the minor child” in the
case. Similarly, in determining that an award under Rule 11 was warranted, the
trial court indicated that the “GALs’ sole duty is to act as ‘advocates of the best
interest of the child.’”
14
Pursuant to an administrative order issued by the Superior Court, GALs in
custody cases must be attorneys. D.C. Fam. Ct. R. App. III, at I.B.1. The GAL’s
role is to represent the child’s best interests. Id. at III.A. The administrative order
requires the GAL to zealously represent the child’s interests, to maintain the
confidentiality of communications with the child, and to observe other of the
requirements of the District of Columbia Rules of Professional Conduct applicable
to attorneys who are representing clients. Id. at IV. Both under the administrative
order and by statute, attorneys appointed to serve as GALs in custody cases may be
compensated. Id. at II.A.5; D.C. Code § 16-918 (c). Under the administrative
order, pro bono GALs are to serve without compensation. D.C. Fam. Ct. R. App.
III, at II.A.6.
We do not view the role of attorney GALs, whether compensated or pro
bono, as comparable to that of a pro se attorney. In holding that pro se attorneys
cannot be awarded attorney’s fees as a sanction under Domestic Relations Rule 11,
the court in Upson emphasized several considerations that have no application to
attorney GALs in custody cases. First, the court pointed out that pro se attorneys
do not have a separate client and thus do not form an attorney-client relationship.
Upson, 3 A.3d at 1166-67. In contrast, attorney GALs in custody cases are in
many if not all respects in an attorney-client relationship with the children whom
15
they represent. See D.C. Fam. Ct. R. App. III, at III; cf. D.C. Bar, Ethics Op. 295,
at 1 (2000) (In absence of conflict of interest, “[a] lawyer appointed to act as
guardian ad litem in a child abuse and neglect proceeding . . . . is the child’s
lawyer.”).
Second, the court in Upson pointed out that a pro se litigant who was not an
attorney would not be entitled to obtain compensation under Rule 11 for the time
spent litigating a matter. 3 A.3d at 1167 & n.36. The court suggested that it would
be anomalous to permit such recovery by pro se litigants who happened to be
attorneys. Id. In contrast, GALs in custody cases must be attorneys, and they may
be compensated for their efforts. D.C. Fam. Ct. R. App. III, at I.B.1, II.A.5; D.C.
Code § 16-918 (c). Permitting them to recover fees as a Rule 11 sanction thus
would create no anomaly. To the contrary, permitting such recovery would simply
treat them in a manner similar to comparably situated attorneys representing other
clients.
Finally, the court in Upson noted its reluctance to encourage pro se
litigation, even by attorneys. 3 A.3d at 1167-68. As the court explained, “the
retention of independent and objective counsel can reduce the likelihood of
frivolous claims in litigation.” Id. at 1168.
16
Even a skilled lawyer who represents himself is at a
disadvantage in contested litigation. . . . He is deprived
of the judgment of an independent third party in framing
the theory of the case, evaluating alternative methods of
presenting the evidence, cross-examining hostile
witnesses, [and] formulating legal arguments, and in
making sure that reason, rather than emotion, dictates the
proper tactical response to unforeseen developments in
the courtroom. The adage that a lawyer who represents
himself has a fool for a client is the product of years of
experience by seasoned litigators.
Id. at 1167 (internal quotation marks omitted). This rationale has no application to
attorney GALs in custody cases. Their role is to represent the best interests of the
child, not their own interests, and thus they do not present the risks posed when an
attorney represents his or her own interests. There certainly is no policy to
discourage attorney GALs from providing representation.
This court has not previously addressed whether attorney GALs in custody
cases can be awarded attorney’s fees as a sanction under Domestic Relations Rule
11. Other courts, however, have upheld sanctions awards made to GALs. McKay
v. Owens, 937 P.2d 1222, 1232-33 (Idaho 1997) (affirming award of attorney’s
fees and research costs to GAL as sanction against plaintiff and her attorney for
making deliberate misrepresentations to court); GGV v. JLR, 39 P.3d 1066, 1076
(Wyo. 2002) (GAL entitled to attorney’s fees as sanction against mother, where
17
trial court found no reasonable cause for mother’s appeal); Peters v. Pennington,
707 S.E.2d 724, 742-43 (N.C. Ct. App. 2011) (upholding award of attorney’s fees
to GAL as sanction against opposing counsel for making allegations that lacked
factual support).
In sum, we hold that attorney GALs are not generally foreclosed from
obtaining attorney’s fees as a sanction under Domestic Rule 11.
C.
Third, Ms. Saxon contends that the award of attorney’s fees resulted in a
windfall to DCVLP, because the GALs were appointed without compensation. In
a wide variety of contexts, however, this court and others have held that attorney’s
fees may be awarded even though representation was provided on a pro bono basis.
See, e.g., Loewinger v. Stokes, 977 A.2d 901, 907, 924-25 (D.C. 2009) (upholding
trial court order requiring contemnor to pay attorney’s fees even though law firm
provided free legal services); In re Banks, 805 A.2d 990, 1004-07 (D.C. 2002)
(trial court permissibly required contemnor to pay attorney’s fees to members of
Committee on Unauthorized Practice of Law, where members included volunteer
attorneys); Link v. District of Columbia, 650 A.2d 929, 933-34 (D.C. 1994)
18
(remanding for determination of attorney’s fees to be awarded to party represented
by legal-services agency; “whether representation was provided by private or
nonprofit counsel . . . is irrelevant”) (internal quotation marks omitted); Habib v.
Thurston, 517 A.2d 1, 8 n.12 (D.C. 1985) (upholding award of attorney’s fees to
Neighborhood Legal Services, which provides free legal services for clients, as
sanction pursuant to Super. Ct. Civ. R. 37 (a)(4) (permitting award of fees
“incurred” in connection with discovery disputes)); Entertainment Partners Grp.,
Inc. v. Davis, 590 N.Y.S.2d 979, 986-88 (Sup. Ct. 1992) (citing cases), aff’d, 603
N.Y.S.2d 439 (App. Div. 1993).
Allowing attorney’s fee awards in cases involving pro bono representation
enhances the ability of pro bono organizations to represent individuals who are
financially unable to obtain counsel and encourages private enforcement of the
law. See generally, e.g., Link, 650 A.2d at 934 (“When free legal services are
provided there may be no direct barrier to the courtroom door, but if no fees are
awarded, the burden of the costs is placed on the organization providing the
services, and it correspondingly may decline to bring such suits and decide to
concentrate its limited resources elsewhere . . . .”) (internal quotation marks
omitted); 1 Robert L. Rossi, Attorneys’ Fees § 6:14, at 6-57 to -58 (3d ed. 2014)
(“awarding fees even where the legal services are provided at no cost promotes the
19
policies that generally underlie fee statutes: encouragement of private enforcement
of the law and the deterrence of improper conduct”). Moreover, awarding
attorney’s fees in the form of sanctions in cases involving pro bono representation
can help to deter abusive litigation practices. Cf. Copeland v. Marshall, 205 U.S.
App. D.C. 390, 409, 641 F.2d 880, 899 (1980) (en banc) (to compute fees
differently depending on identity of successful plaintiff’s attorney might give
defendants an incentive to litigate imprudently; where plaintiff is represented by
public-interest law firm, “[d]efendant’s counsel could inundate the plaintiff with
discovery requests without fear of paying the full value of the legal resources
wasted in response”); Do v. Superior Court, 135 Cal. Rptr. 2d 855, 857 (Ct. App.
2003) (“It would ill serve the objectives of discovery statutes were we to conclude
that, where a lawyer represents a party free of charge, the opponent may engage in
discovery abuses with impunity.”).
We recognize that language in Upson, 3 A.3d at 1165-68, suggests that a
paying attorney-client relationship is necessary to support an award of attorney’s
fees under Domestic Relations Rule 11. Specifically, the court said, “Dom. Rel. R.
11, by its plain language, allows for the reimbursement of expenses and attorney’s
fees that have been incurred . . . . The rule presupposes a paying attorney-client
relationship . . . .” Id. at 1167. We do not view this language in Upson as
20
controlling here. The issue squarely presented in Upson was whether attorney’s
fees can be awarded under Domestic Relations Rule 11 to a pro se attorney. As
previously noted, the holding in Upson rested critically on several other
considerations not applicable to fee awards to attorney GALs in custody cases,
which is the issue presented in this case.
Moreover, reading Upson to broadly foreclose fee awards in cases involving
pro bono representation under provisions that refer to fees having been “incurred”
would be contrary to prior decisions of this and other courts. See Habib, 517 A.2d
at 8 n.12 (upholding award of fees to pro bono legal-services organization as
sanction under Super. Ct. Civ. R. 37 (a)(4), which permits award of “reasonable
expenses incurred”); cf. Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d
673, 678-82 (10th Cir. 2012) (inclusion of word “incurred” in rule permitting fee
award did not preclude award in case where plaintiff’s lawyers were working
under a fixed fee; “the term attorney fees . . . mean[s], not the amount actually paid
or owed by the party to its attorney, but the value of attorney services provided to
the party”) (citing cases); Do, 135 Cal. Rptr. 2d at 860-61 (“fees or monetary
sanctions in the form of fees may be ordered . . . . whether or not a party actually
‘incurs’ additional fees as a result of the opposing party’s conduct as is the case
here where the party is represented by a lawyer who does not charge a fee”). But
21
cf., e.g., In re Espy, 358 U.S. App. D.C. 49, 51-52, 338 F.3d 1036, 1038-39 (2003)
(per curiam) (refusing to award petitioner attorney’s fees under Independent
Counsel statute, where petitioner was not liable for fees and therefore did not
“incur[]” fees as required by statute).
In sum, we uphold the award of attorney’s fees to DCVLP.
D.
Ms. Saxon also raises three challenges to the amount of the award. We
conclude that the amount of the award was reasonable.
First, Ms. Saxon contends that the trial court failed to apply the factors
governing the imposition of monetary sanctions based on the filing of frivolous
pleadings, as specified in Cunningham v. Bathon, 719 A.2d 497, 502 (D.C. 1998).5
5
The factors are:
(1) the reasonableness of the injured party’s attorneys’
fees . . . , (2) the minimum amount that will serve to
adequately deter the undesirable behavior, (3) the
offending party’s ability to pay . . . , and (4) the
offending party’s history, experience, and ability, the
severity of the violation, the degree to which malice or
(continued…)
22
Cunningham, however, involved the imposition of sanctions under Rule 11 of the
Superior Court Civil Rules. Id. The sanctions in the present case were imposed
under Domestic Relations Rule 11, which is worded differently from Civil Rule
11. Most significantly, Civil Rule 11 requires that any sanction be “limited to what
is sufficient to deter repetition of such conduct or comparable conduct by others
similarly situated,” Super. Ct. Civ. R. 11 (c)(2), but Domestic Relations Rule 11
does not include such a limitation. In any event, the factors considered by the trial
court in this case are otherwise in substance consistent with the Cunningham
factors, although appropriately viewed through the lens of the particular
circumstances of domestic-relations cases. See, e.g., Assidon v. Abboushi, 16 A.3d
939, 943-44 (D.C. 2011) (child-custody proceeding).
Second, Ms. Saxon contends that the trial court erred in finding that she had
the ability to pay the sanctions award. We review a trial court’s determination of
the amount of sanctions imposed under Rule 11 for abuse of discretion.
Goldschmidt v. Paley Rothman Goldstein Rosenberg & Cooper, Chartered, 935
(…continued)
bad faith contributed to the violation, the risk of chilling
the type of litigation involved, and other factors as
deemed appropriate in individual circumstances.
Cunningham, 719 A.2d at 502 (internal quotation marks omitted).
23
A.2d 362, 377 (D.C. 2007); cf. Federal Mktg. Co. v. Virginia Impression Prods.
Co., 823 A.2d 513, 530 (D.C. 2003) (court reviews for abuse of discretion trial
court’s determination of amount of attorney’s fee award). We find no abuse of
discretion. The trial court reasonably viewed Ms. Saxon’s earning capacity as
substantial, and gave her nine months to pay the award of approximately $10,000,
for which her attorney was also liable.
Finally, Ms. Saxon alleges that the amount of the award was unreasonable,
because “more than half the time spent and awarded was for research and litigation
of [Domestic Relations Rule 11] sanctions.”6 We disagree. Ms. Saxon herself
increased the amount of time and cost of litigating the sanctions issue. In a twenty-
seven page ruling, the trial court determined that Ms. Saxon and her attorney had
committed numerous Rule 11 violations by raising issues that had already been
resolved, misstating material facts, and misrepresenting the record. Furthermore,
Ms. Saxon extended the dispute by filing numerous unsuccessful motions and
pleadings in opposition to the GALs’ motions for sanctions, including, for
example, a motion to strike the GALs’ opposition to Ms. Saxon’s previous motion
6
We do not understand Ms. Saxon to contend that sanctions awarded under
Domestic Relations Rule 11 can never include fees for time spent litigating the
question of sanctions. Rather, her challenge seems to be that an unreasonably high
percentage of the award in this case related to time the GALs spent litigating the
sanctions issue.
24
to strike a filing by the GALs. Under the circumstances, we hold that the amount
of the award was reasonable.
The judgment of the Superior Court is therefore
Affirmed.