Kenneth R. Fox v. Wendy R. Fox

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
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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
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$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
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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.
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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
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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
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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
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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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