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VOKES, N/K/A SPIGGLE v. VOKES


VOKES, N/K/A SPIGGLE v. VOKES

 


SEPTEMBER 29, 1998
Record No. 2699-97-1

PAMELA M. VOKES, N/K/A
PAMELA M. SPIGGLE

v.

MARTIN A. VOKES

OPINION BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia

Charles R. Hofheimer (Charles R. Hofheimer, P.C., on briefs), for
appellant.

Timothy S. Fisher (Overman, Cowardin & Martin, P.L.C., on
brief), for appellee.

Pamela M. Vokes (mother) appeals four decisions made by the trial
court in two separate orders stemming from a custody dispute with
Martin A. Vokes (father). Regarding an order entered July 3,
1997, mother contends the trial court erred when it (1) found
father did not sexually abuse the parties’ daughter, (2) granted
father’s motion to transfer custody of the parties’ two sons from
mother to father, and (3) awarded mother visitation with these
two children "as agreed between the parties." Regarding
an order entered October 20, 1997, mother contends the trial
court erred when it ordered her to pay father’s attorney’s fees
and the costs of the children’s guardian ad litem
incurred following the trial court’s initial ruling. Father
argues that mother’s appeal is barred because she failed to file
her notice of appeal of these orders within the time period
prescribed by Rule 5A:6(a). He also requests an award of
attorney’s fees and costs associated with this appeal, which he
contends is "clearly without basis in law or fact." For
the reasons that follow, we dismiss mother’s appeal of the trial
court’s order of July 3, 1997, vacate the trial court’s award of
attorney’s fees and guardian ad litem costs
contained in its order of October 20, 1997, and grant father’s
request for attorney’s fees and costs associated with this
appeal.
I.
FACTS
The parties married in 1986, had one daughter and two sons, and
divorced in 1993. In June 1994, the Family Court of Steuben
County, New York (New York Family Court) awarded mother sole
custody and primary physical placement of the parties’ three
children. It awarded father supervised visitation with the
younger son but declined to permit father any physical or
telephonic visitation with the other two children pending the
completion of psychological evaluations of these children.
In August 1994, mother moved with the children from New York to
Newport News, Virginia. In January 1995, the New York Family
Court found mother in contempt for leaving New York and denying
father visitation with the younger son. It also ordered that
father have two months of unsupervised visitation with both sons.
In August 1995, the Juvenile and Domestic Relations District
Court of Newport News (J&DR court) registered this order and
ordered mother to permit father to have unsupervised visitation
with the boys.
In May 1996, father filed a motion in the J&DR court to
transfer custody of the two sons, but not the daughter, from
mother to father. In July 1996, the J&DR court granted
father’s motion, and mother timely noted her appeal. On March 31
and April 1, 1997, the trial court held a two-day de novo
hearing on father’s motion. At the hearing, the parties offered
conflicting evidence regarding whether father had sexually abused
the daughter and the older son in the past and whether he had
recently physically abused the boys while they were in his care.
The trial court ruled from the bench that a material change in
circumstances had occurred following the entry of the New York
Family Court’s order granting mother custody and that it would be
in the sons’ best interest for father to have custody of them.
The trial court also expressly found that father had not sexually
or physically abused any of the parties’ children. On July 3,
1997, the trial court entered an order reflecting its ruling.
At the hearing on July 3 to enter the order, the parties informed
the trial court that a hearing was scheduled on August 8 to
adjudicate mother’s motion for reconsideration, which mother’s
counsel stated was "based on new evidence." Mother’s
counsel requested the trial court to delay until August 8
entering the order reflecting its ruling of April 1 "so that
[mother's] appeal time doesn’t start running." Father’s
counsel objected to this request. In an apparent attempt to
satisfy both parties’ requests, the trial court amended the final
paragraph of the order so that it read:
it is further ADJUDGED, ORDERED AND DECREED

* * * * * * *

9. That this cause shall remain on the docket of this Court for
further hearing
as such shall not yet be remanded to the
Juvenile and Domestic Relations District Court,
(emphasis added) rather than:
it is further ADJUDGED, ORDERED AND DECREED
* * * * * * *
9. That this cause shall remain on the docket of this Court for
monitoring the visitation
as such shall not yet be remanded
to the Juvenile and Domestic Relations District Court.
(Emphasis added).
The trial court emphasized that it would not rehear the case at
the hearing scheduled on August 8. It stated:
I’m not going to rehash the same things. I think we’ve spent
enough time on this case. If there’s new evidence and the
evidence wasn’t available at the time of the last hearing, then
I’ll deal with that, but I’m not going to hear the same evidence
again. I’ve ruled once. If I’m wrong then somebody can correct
me.
Mother did not file a notice of appeal within thirty days of the
entry of the trial court’s order on July 3.
On August 8, following a hearing, the trial court denied mother’s
motion for reconsideration. The trial court also ordered mother
to pay father’s legal fees and the costs of the boys’ guardian ad
litem incurred following the conclusion of the hearing on
March 31 and April 1, 1997. On October 20, 1997, the trial court
entered an order reflecting its ruling of August 8. On November
12, 1997, mother filed her first and only notice of appeal of any
of the orders of the trial court.
II.
TIMELINESS OF MOTHER’S NOTICE OF APPEAL
OF THE ORDER ENTERED ON JULY 3
Father contends that mother’s appeal of the trial court’s order
of July 3 should be dismissed because it was not filed within the
time limits of Rule 5A:6(a) and Code Sect.8.01-675.3. We agree.
Under Rule 5A:6(a), "[n]o appeal shall be allowed unless,
within 30 days after entry of final judgment
. . . , counsel files with the clerk of the trial
court a notice of appeal . . . ." See also
Code Sect.8.01-675.3. A court order is final if it
"’disposes of the whole subject, gives all the relief that
was contemplated, provides with reasonable completeness for
giving effect to the sentence, and leaves nothing to be done in
the cause save to superintend ministerially the execution of the
decree.’" Street v. Street, 24 Va. App. 14, 19, 480
S.E.2d 118, 121 (1997) (quoting Richardson v. Gardner, 128
Va. 676, 683, 105 S.E. 225, 227 (1920)).
In Street, we held that a party’s appeal from an order
finding him in contempt for failing to pay court-ordered support
was timely, even though the appeal was filed more than thirty
days after the original finding of contempt. Citing Wiezenbaum
v. Wiezenbaum
, 12 Va. App. 899, 903, 407 S.E.2d 37, 39
(1991), we explained that "some orders of a court become
appealable before they are final but need not be appealed until a
final order is entered." Street, 24 Va. App. at 19,
480 S.E.2d at 121. We noted that a contempt order is just such an
order; it is "appealable if it adjudicates all issues of
guilt and imposes a sentence," id., but the party
held in contempt also may wait until entry of a final order
"’dispos[ing] of the whole subject’" before appealing. Id.
(quoting Richardson, 128 Va. at 683, 105 S.E. at 227).
In Street, the trial court originally found the husband in
contempt on July 28 but continued the matter several times to
give husband the opportunity to prepare and submit a written plan
for meeting his monthly support obligation in full. See id.
at 17-18, 480 S.E.2d at 120. When husband failed to submit a plan
by October 6, the trial court renewed the finding of contempt,
incorporated its previous findings of contempt, indicated that it
did not intend to review husband’s financial condition any
further, and noted that husband had "an absolute right"
to appeal the findings of contempt. See id. at
18-19, 480 S.E.2d at 120?21. On those facts, we held that the
contempt order was not final until October 6 and that husband’s
appeal, filed less than a week later, was timely under Rule 5A:6.
See id. at 19-20, 480 S.E.2d at 121.
Here, by contrast, we hold that mother’s appeal of the trial
court’s order of July 3, 1997, was not timely filed in accordance
with Rule 5A:6(a). The trial court’s order of July 3, 1997,
granting father’s motion to transfer custody, was
"final" because it disposed of the entire subject
matter raised in father’s motion and granted all of the relief
contemplated. Mother’s notice of appeal was not filed until
November 12, 1997, more than thirty days after entry of the trial
court’s order of July 3. Because mother failed to file a notice
of appeal within thirty days of the entry of the order of July 3,
Rule 5A:6(a) prevents us from hearing her appeal of this order.
Mother argues that the time period set forth in Rule 5A:6(a) did
not start running on July 3 because the trial court amended its
order with the intent of preventing this time period from
starting to run until after the August 8 hearing on mother’s
motion to reconsider. We disagree that the steps taken by the
trial court on July 3 were sufficient to toll the running of the
time period in Rule 5A:6(a).
In order to toll the time limitations of Rule 1:1 and Rule
5A:6(a), it is not sufficient for the trial judge merely to
express a desire to consider action or take the issue under
advisement; rather, the trial judge must issue an order
modifying, vacating or suspending the [order] within twenty-one
days of the entry of [the order]
.
D’Alessandro v. Commonwealth, 15 Va. App. 163, 167, 423
S.E.2d 199, 201 (1992) (emphasis added). The thirty-day period of
Rule 5A:6(a) cannot be tolled by either the filing of a
post-judgment motion to set aside or reconsider the judgment or
the pendency of such a motion on the thirtieth day after final
judgment. See School Bd. v. Caudill Rowlett Scott, Inc.,
237 Va. 550, 556, 379 S.E.2d 319, 323 (1989).
Despite the trial court’s apparent intention to the contrary, the
court’s statement in its order that father’s motion to transfer
child custody "shall remain on the docket of this Court for
further hearing" was insufficient to toll the running of the
thirty-day period of Rule 5A:6(a). The record indicates that, at
the time the trial court entered its order of July 3, it had
heard all relevant evidence on father’s motion and made a final
ruling on the merits. At the hearing of July 3, the trial court
expressly stated that it had ruled with finality on father’s
motion and that the sole purpose of the hearing on August 8 was
to hear evidence meeting the strict legal criteria of
"after-discovered evidence." The trial court’s
agreement to hear mother’s motion to reconsider had no tolling
effect. Because the order entered on July 3 contained no language
stating that the trial court either modified or vacated the order
or suspended its execution, the thirty-day period for filing a
notice of appeal of the order under Rule 5A:6(a) began running on
the date the order was entered.
III.
TRIAL COURT’S AWARD OF
ATTORNEY’S FEES AND COST OF GUARDIAN AD LITEM
We also hold that the trial court erred when, as part of its
ruling on mother’s motion to reconsider, it ordered mother to pay
father’s attorney’s fees and the costs of the boys’ guardian ad
litem.[1]
Under Rule 1:1, a trial court is divested of jurisdiction over a
matter twenty-one days after the entry of a final order unless
within the twenty-one-day period it enters an order suspending or
vacating the final order. See Davis v. Mullins, 251
Va. 141, 148-49, 466 S.E.2d 90, 94 (1996).
"Neither the filing of post-trial or post?judgment motions,
nor the court’s taking such motions under consideration, nor the
pendency of such motions on the twenty-first day after final
judgment is sufficient to toll or extend the running of the
21-day period prescribed by Rule 1:1 . . . ."
D’Alessandro, 15 Va. App. at 166, 423 S.E.2d at 201
(quoting Caudill Rowlett Scott, Inc., 237 Va. at 556, 379
S.E.2d at 323). Once the twenty-one-day period of Rule 1:1 has
expired without an intervening order tolling the running of the
time period, every action taken by a court thereafter to alter or
vacate the final order is a nullity unless one of the limited
exceptions to the preclusive effect of Rule 1:1 applies. See
Davis, 251 Va. at 149, 466 S.E.2d at 94.
The trial court’s order awarding father’s attorney’s fees and
guardian ad litem costs was a nullity because this
order was entered after the trial court was divested of
jurisdiction under Rule 1:1 and because mother’s motion to
reconsider was not based upon any of the exceptions to Rule 1:1.
The trial court made its award of attorney’s fees and guardian ad
litem costs in a ruling from the bench on August 8 and in
a written order entered on October 20, both of which occurred
more than twenty-one days after the entry of the final order
granting father’s motion to transfer custody on July 3. The trial
court did not enter an order vacating or suspending the execution
of the July 3 order within Rule 1:1′s twenty-one-day time period.
Moreover, mother’s motion to reconsider was not based on the
ground that the trial court’s judgment entered on July 3 was
void, see Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d
756, 758 (1987), or that the record contained a clerical error, see
Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245,
248 (1956); Code Sect.8.01-428(B). In addition, the trial court
did not assert its authority under Code Sect.8.01-271.1 to impose
attorney’s fees and reasonable costs as a sanction for a
frivolous motion made for an "improper purpose." Thus,
on August 8, regardless of the pendency of mother’s motion to
reconsider the merits of the trial court’s order of July 3, the
trial court was without jurisdiction when it adjudicated this
motion and awarded attorney’s fees and guardian ad litem
costs. See Fairfax County Dep’t of Human Dev. v. Donald,
251 Va. 227, 228-30, 467 S.E.2d 803, 804-05 (1996).
In Donald, the Virginia Supreme Court held that the
circuit court was without jurisdiction to award fees in an appeal
from the district court because that appeal was not filed within
ten days from entry of the district court’s final judgment, as
required under Code ” 16.1-136 and 16.1-296. Donald,
251 Va. at 229-30, 467 S.E.2d at 804-05. The Court held that Code
Sect.16.1?278.19 is "the sole authority granted to district
courts for awarding attorney’s fees," and that, under Code
Sect.16.1-296, the circuit court’s authority in appeals from the
district court is derivative of the district court’s authority. Donald,
251 Va. at 229, 467 S.E.2d at 804. Code Sect.16.1?278.19 permits
the district court to award fees only in matters "properly
before the court." Donald, 251 Va. at 229, 467 S.E.2d
at 804. Because Fairfax County did not timely appeal the matter
from the district court to the circuit court, the Supreme Court
held that the appeal was not properly before the circuit court
and that the circuit court lacked jurisdiction to award fees and
costs. See id. at 229-30, 467 S.E.2d at 804-05.
Those principles are applicable to the circumstances of this
case.
IV.
HUSBAND’S REQUEST FOR AN AWARD OF
ATTORNEY’S FEES AND COSTS ON APPEAL
After considering the circumstances of this case and because the
appeal of the trial court’s October 20, 1997 order is
"properly before [this] court," we grant father’s
request for attorney’s fees and costs related to this appeal.
For the foregoing reasons, we dismiss mother’s appeal of the
trial court’s order entered on July 3, 1997, vacate the trial
court’s award of attorney’s fees and guardian ad litem
costs in
its order of October 20, 1997, and remand for a determination of
attorney’s fees and costs related to this appeal.
Dismissed in part,
vacated in part
and remanded
.

FOOTNOTES:

[1]
The order containing this award was entered on October 20,
1997. As such, mother’s notice of appeal was timely filed under
Rule 5A:6(a) with regard to this order.

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