SANCHEZ v. SANCHEZ


SANCHEZ v. SANCHEZ

(unpublished)


NOVEMBER 25, 1997
Record No. 0195-97-4

ANTHONY A. SANCHEZ

v.

MELANIE SANCHEZ

MEMORANDUM OPINION[1] BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Donald M. Haddock, Judge
Present: Chief Judge Fitzpatrick,[2] Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia

Anthony A. Sanchez, pro se.

(Henry Counts, Jr., on brief), for appellee.


Anthony A. Sanchez (husband) appeals an order of the trial
court awarding attorney fees to Melanie Sanchez (wife) as a
sanction. He contends that the trial court’s sanction was an
abuse of discretion. For the reasons that follow, we reverse.

I.

FACTS

Husband and wife were divorced in Michigan in 1992. A Michigan
court awarded the parties joint physical and legal custody of
their two children. The parties now reside in Virginia, and their
relationship regarding the joint custody of their children has
been contentious. At all times during the present proceeding,
husband represented himself pro se.

In December 1995, husband filed a petition to change child
custody in the Alexandria Juvenile and Domestic Relations
District Court (J&DR court). His petition alleged that wife
breached the Michigan custody decree and requested the J&DR
court to award him full custody of the parties’ children. The
J&DR court denied husband’s petition. On March 29, 1996,
husband appealed to the trial court.

On May 8, the trial court issued a pretrial order regarding
the time frame for discovery. The pretrial order stated, among
other things, that "lists of exhibits and witnesses shall be
exchanged by counsel and the lists filed with the Court 30
days prior to trial
." (Emphasis added). The trial date
for husband’s petition was set for September 6.

On May 16, wife filed her own petition to change child custody
with the trial court. Her petition alleged that husband had
become "highly emotionally unstable" and requested the
trial court to award her full custody of the parties’ children.

On August 2, wife filed her list of witnesses with the trial
court. Husband did not file a list of witnesses with the trial
court prior to trial.

On September 6, the trial court held a hearing on the parties’
respective petitions to change child custody. Pursuant to wife’s
motion, the trial court barred husband from offering testimony
from any witnesses because he had violated the pretrial order by
failing to file a witness list at least thirty days before trial.
Husband then requested a nonsuit of his petition to change child
support and stated that he was prepared to defend against wife’s
petition. The trial court dismissed husband’s petition without
prejudice and requested wife to begin her case.

Wife then moved to nonsuit her petition and moved the trial
court to award her attorney fees. Wife’s counsel stated that he
had agreed to charge wife a flat fee of $1,000 for his
representation regarding the petitions to change child custody
but that he "had expended several thousand dollars in
time." Wife’s counsel argued that the trial court should
sanction husband based on two grounds: (1) husband had required
wife’s counsel to "attend numerous hearings on this case in
addition to the present trial" and (2) husband had required
wife’s counsel to prepare for the hearing on husband’s petition
"only to have [husband] nonsuit the action." The trial
court nonsuited wife’s petition and ordered husband to pay $1,000
in attorney fees to wife’s counsel. Apparently in support of its
award of attorney fees, the trial court found that husband
"had used the judicial process to harass [wife] and run up
her counsel fees without justification." The trial court
signed an order formalizing its action on November 27.

II.

ATTORNEY FEES

Appellant argues that the trial court’s sanction was an abuse
of discretion. We agree.

Initially, we disagree with husband’s contention that the
trial court exceeded its authority under Code ? 8.01-380 by sanctioning
husband for nonsuiting his petition to change child custody.
Although Code ?
8.01-380 empowers a trial court to assess attorney fees against a
nonsuiting party only after a second or subsequent nonsuit of a
cause of action, the trial court’s award of sanctions against
husband was not based upon husband’s nonsuit. Instead, the record
indicates that the trial court sanctioned husband for using
"the judicial process to harass [wife] and run up her
counsel fees without justification." Thus, we consider
whether the trial court’s award on this ground was an abuse of
discretion.

Under Code ?
8.01-271.1, a trial court has the power to sanction a pro se
litigant who files pleadings or motions "for any improper
purpose, such as to harass or cause unnecessary delay or needless
increase in the cost of litigation." The sanction ordered by
the trial court "may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred
because of the filing of the pleading [or] motion . . . ,
including a reasonable attorney’s fee."[3] Code ? 8.01-271.1 has two
primary purposes: (1) to "protect litigants from the mental
anguish and expense of frivolous assertions of unfounded factual
and legal claims and against the assertions of claims for
improper purposes" and (2) "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). However,
the purpose of Code ?
8.01-271.1 is not "to stifle counsel in advancing novel
legal theories or asserting a client’s rights in a doubtful
case." Id. "In reviewing the trial court’s
decision [to award sanctions under Code ? 8.01-271.1], we apply an
abuse?of?discretion standard." Nedrich v. Jones,
245 Va. 465, 472, 429 S.E.2d 201, 204 (1993) (citing Oxenham,
241 Va. at 287, 402 S.E.2d at 4). A trial court’s award of
sanctions is an abuse of discretion if its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of
the evidence. See Oxenham, 241 Va. at 287, 402
S.E.2d at 4.

We hold that the trial court abused its discretion when it
imposed sanctions upon husband. Specifically, the record is
devoid of evidence supporting the trial court’s finding that
husband used "the judicial process to harass [wife] and run
up her counsel fees without justification." The record
indicates that husband filed five motions in between the filing
of his petition to change child custody and the hearing on
September 6, only one of which was denied. First, on May 17,
1996, husband filed a motion to compel wife to pay her share of
the childrens’ medical expenses in accordance with the Michigan
custody decree, which was denied. Second, on May 31, husband
filed a motion for a bill of particulars seeking a more specific
explanation of the allegations contained in wife’s petition to
change child support, which was granted. Third, on July 2,
husband filed a motion to dismiss wife’s petition on the ground
that she was late in filing her bill of particulars. Two days
before husband’s motion was scheduled to be heard, wife’s counsel
filed the bill of particulars and paid $100 as a sanction.
Fourth, on July 22, husband filed a motion to dismiss wife’s
petition and a motion in limine on the ground that
litigation of many of the allegations contained in wife’s bill of
particulars was barred by the doctrine of res judicata.
The trial court granted husband’s motion in limine
and ordered that all factual allegations that occurred prior to
May 1994 be stricken from wife’s petition. Fifth, and lastly, on
August 23, husband filed a motion to forbid wife from
"taking the children to third party custody hearings."
A praecipe accompanying the motion requested that a hearing on
the motion be scheduled for August 28; however, the record does
not indicate whether the trial court ever heard this motion.
Based on the evidence regarding the substance of husband’s
motions and their respective outcomes, we conclude that the trial
court was "clearly erroneous" when it found that
husband’s pre?hearing motions practice was both unjustified and
intended as a pretext to inflict anguish and expense upon wife.

For the foregoing reasons, we reverse the trial court’s award
of attorney fees.

Reversed.

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2] On November 19, 1997, Judge
Fitzpatrick succeeded Judge Moon as chief judge.

[3]
Code ? 8.01-271.1
states in relevant part:

Every party who is not represented by an attorney shall
sign his pleading, motion, or other paper and state his
address.

The signature of . . . [a] party constitutes a certificate by
him that (i) he has read the pleading, motion, or other
paper, (ii) to the best of his knowledge, information and
belief, formed after reasonable inquiry, it is well grounded
in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of
existing law, and (iii) it is not interposed for any improper
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. . . .

* * * * * * *

If a pleading, motion, or other paper is signed or made in
violation of this rule, the court, upon motion or upon its
own initiative, shall impose upon the person who signed the
paper or made the motion, a represented party, or both, an
appropriate sanction, which may include an order to pay to
the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading,
motion, or other paper or making of the motion, including a
reasonable attorney’s fee.

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