Virginia Lawyers Weekly VA Lawyers Weekly
Where a father disclosed a sealed report to the children’s stepmother concerning a court-ordered independent psychological evaluation, the court erred by dismissing his de novo appeal of the J&RD court’s custody award to mother.
Dismissal was an “unduly severe sanction” because the children were entitled to the circuit court’s consideration of their best interests. Lesser sanctions were available for “misconduct tangentially related to the underlying suit[.]”
Background
Father and mother were divorced in 2015. The court awarded the parties joint legal custody. Mother was awarded primary physical custody. In 2015, father remarried. After the divorce there was “a substantial amount of litigation” about custody and care issues. In May 2019, the J&RD court awarded mother sole legal and primary physical custody with “some visitation” to father.
Father appealed to the circuit court. He contested mother’s motion to have an updated custody and adult psychological assessment. The court granted the motion and appointed Dr. Nelson, who assessed the parties on four prior occasions, to conduct another assessment and file a written report.
The court sealed the report and banned the parties from disclosing it to third parties. Later, stepmother, who had read the report, wrote Dr. Nelson and accused her of ethical violations, and making defamatory and misleading statements. Stepmother threated Dr. Nelson with legal action if she “did not ‘cease and desist.’”
Mother responded with a motion to find father in contempt for disclosing the report to stepmother. Father filed a motion to recuse Dr. Nelson as a court-appointed psychological evaluator. He also sought to have stepmother qualified as an expert witness.
The court dismissed father’s de novo appeal from the J&RD court as a sanction for disclosing the sealed report. The court denied father’s motion to disqualify Dr. Nelson and awarded mother more than $76,000 in attorney fees.
Dismissal
“The circuit court found father violated its August 27, 2019 order by disseminating the court-ordered psychological evaluation report to stepmother. Father does not dispute that he disclosed the report to stepmother. He argues only that the circuit court ‘erred as matter of law by imposing sanctions’ upon him for an ‘alleged violation’ of the August 27, 2019 order. …
“A plain reading of Code § 20-124.2(E) reveals that pursuant to its power to order an independent psychological evaluation, the circuit court has the authority to hold an offending party in contempt for acting in bad faith or for willful disobedience of the same order. …
“We next examine whether the type of sanction imposed – dismissal – was an abuse of discretion. Father argues that outright dismissal was an abuse of the circuit court’s discretion not only because of its severity, but also because it involved custody and visitation and, as such, the circuit court was required to consider the best interests of the parties’ three minor children. …
“It is important to note that we do not suggest dismissal of a case can never be an appropriate sanction for misconduct or disobedience of a court order.
“In a custody modification proceeding, due consideration is owed to the statutorily required examination of the children’s best interests; however, such examination does not curtail the authority of the trial court to dismiss the action.
“We only hold that it was inappropriate for the circuit court to do so in this case because the dismissal of the case was an unduly severe sanction for misconduct tangentially related to the underlying suit and was not narrowly tailored to correct father’s improper disclosure of the sealed report.
“Furthermore, where, as here, there are children who are entitled to have their best interests considered and may be prejudiced by the extreme punishment of dismissal of the case, it is not an appropriate sanction. …
“[T]he circuit court had a variety of alternative sanctions at its disposal that would have sufficiently punished and deterred further violations of the circuit court’s orders without impacting the statutory rights of the children of the parties.
“Among those alternative options were the imposition of reasonable attorney’s fees, a ‘leave of court’ requirement in which father would have to obtain permission from the court before filing further pleadings, limiting production of father’s evidence, imposition of a monetary fine, or even incarceration. …
“[W]e hold that under the specific circumstances of this case, the circuit court abused its discretion by imposing the penalty of dismissal and we remand for reconsideration of the sanction for father’s disobedience of the circuit court’s order.”
Stepmother not expert
“It is clear from the record that stepmother was expected to testify about her personal disagreement with the contents of Dr. Nelson’s report. The record does not show that stepmother possessed ‘sufficient knowledge, skills, or experience’ to render her ‘competent to testify as an expert on the subject matter of the inquiry.’ …
“The fact that stepmother works as a nurse in hospice care does not transform her personal opinion about Dr. Nelson’s report into the type of specialized knowledge regarding parental custody and visitation disputes required of expert witnesses in custody and visitation cases.
“Here, where the subject matter of the inquiry is parental custody and visitation of minor children, the circuit court did not abuse its discretion in concluding that stepmother’s expertise was irrelevant and refusing to designate her as an expert.”
Other issues
Father argues that the circuit court did not consider his motion to disqualify Dr. Nelson as an evaluator. “Father’s assertion that the circuit court did not review his motion to recuse Dr. Nelson is unsupported in light of the ample evidence in the record to the contrary, and in any event, a circuit court is entitled to dismiss any motion made in furtherance of an improper purpose.”
Father complains that the circuit court erred by awarding mother attorney fees. However, he “cites only the standard of review for awarding attorney’s fees; he does not provide any legal support for his contention that ‘the award of attorney’s fees in this case was founded on legal error.’”
As to appellate attorney fees, the circuit court erred by dismissing the case as a sanction for father’s disclosure of the sealed report. Thus, “we find that this appeal was not frivolous and deny both parties’ requests for appellate attorney’s fees.”
Affirmed in part, reversed in part and remanded.
Winters v. Winters, Record No. 0060-21-2, Oct. 26, 2021. (CAV) Humphreys. From the City of Richmond Circuit Court (Cavedo). Thomas H. Roberts for appellant; Robert L. Isaacs for appellee. VLW 021-7-143, 15 pp. Published.
