Virginia Lawyers Weekly VA Lawyers Weekly
Where petitioner sought a protective order in the JDR court after respondent received a summons for speeding while the parties’ daughter was in the vehicle, the JDR court’s denial of petitioner’s oral motion for a protective order is upheld on a motion for reconsideration in the circuit court. Respondent’s motion for attorney fees is granted.
Prior proceedings
Respondent was given a summons for driving 78 mph in a 40 mph zone. The parties’ daughter was in the car at the time. Petitioner made an oral motion in the JDR court for a protective order. At the motion hearing, petitioner appeared pro se.
“At the courthouse, Respondent’s counsel served Petitioner with a motion to continue, a motion for a bill of particulars, and a motion for sanctions and ancillary relief; the court continued the matter.”
Later, petitioner, by counsel, filed a nonsuit motion and an agreed nonsuit order. The JDR court denied respondent’s motion for sanctions. Respondent appealed.
After an evidentiary hearing, the “court found that Petitioner’s oral request for a protective order was in violation of Code § 8.01-271.1(C) because it was not warranted by existing law. By order of March 10, 2022, Respondent was awarded attorney fees in the sum of $3,700. Petitioner timely filed a Motion to Reconsider.”
Protective order
“Code § 16.1-253.1(A) authorizes the issuance of a preliminary protective order against a person who has ‘subjected’ the petitioner, or any family or household member of the petitioner, to ‘family abuse[.]’ … The term ‘family abuse’ is defined by Code § 16.1-228 as: ‘any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member.’
“Thus, for issuance of a preliminary protective order, Petitioner would have had to show that her daughter was subjected to an act by Respondent involving violence, force, or threat that either resulted in bodily injury or placed the daughter in reasonable apprehension of death, sexual assault, or bodily injury.
“Because there was no evidence that Respondent’s speeding resulted in bodily injury to the parties’ daughter, or that Respondent committed an act of violence or the use of force against the parties’ daughter, the only possible basis upon which a protective order could have issued was that Respondent’s speeding involved a threat that placed his daughter in reasonable apprehension of death or bodily injury.
“A threat, however, is a ‘statement of an intention to inflict evil, injury, or damage.’ … There was no evidence offered that Respondent’s speeding indicated an intention to inflict evil, injury, or damage on his daughter that would have put her in reasonable apprehension of death or bodily injury. It is undoubtedly for that reason that the Juvenile & Domestic Relations District Court denied Petitioner’s oral petition.
“While speeding may possibly have endangered Respondent’s daughter, possible endangerment is simply not what is required by Code § 16.1-253.1(A) for the issuance of a preliminary protective order. Whether Code § 16.1-253.1(A) should be extended to include possible endangerment is for the General Assembly to determine, not a court. Thus, the court concludes that there was no basis for the issuance of a preliminary protective order.”
Petitioner insists she was acting reasonably in asking for a protective order because, under Code § 46.2-862, a person driving more than 20 mph over the speed limit is driving recklessly. Moreover, Code § 46.2-852 defines “reckless driving” as ‘irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person.’ …
“Petitioner appears to be suggesting, since speeding 78 mph in a 40 mph zone is reckless driving and reckless driving is also driving at a speed ‘so as to endanger the life, limb, or property of any person,’ that speeding 78 mph in a 40 mph zone endangers the life, limb, or property of any person.
“This is a false equivalence. Rather, it is likely precisely because speeding 78 mph in a 40 mph zone does not necessarily endanger the life, limb, or property of any person that the General Assembly enacted Code § 46.2-862.
“It is thus also likely that the police officer in this case, because he did not charge Respondent with a violation of Code § 46.2-852, concluded that there was not probable cause to believe that Respondent was driving at a speed so as to endanger the life or limb of Respondent’s daughter.”
Sanctions
“Petitioner argues that the court ‘must take into consideration the parties’(sic) ability to pay sanctions and attorney fees’ and that Respondent ‘failed to present any evidence of this factor.’ …
“While Petitioner does not cite any authority for the proposition that the court must consider a party’s ability to pay, assuming arguendo that ability to pay is a factor that the court must consider, the burden is on Petitioner to show her inability to pay, not on Respondent to show her ability to pay – as she would have the relevant information – and Petitioner did not offer any evidence of her inability to pay.”
Petitioner also argues that the equities favor not imposing sanctions because at the courthouse, before the case was called, respondent could have inquired whether petitioner intended to pursue the matter.
“As Respondent aptly points out, however, Respondent was served on September 14, 2021 with a summons for a protective order hearing on September 20, 2021 and retained counsel to prepare for that hearing; that preparation and appearance involved 8.09 hours (@ $295/hour = $2,386).
“Thus, even if Respondent’s counsel had some duty to inquire of Petitioner whether she was intending to proceed with the hearing that day, Respondent had already incurred attorney fees because Petitioner had initiated the protective order process – a process which could have resulted in his relationship with his daughter being prohibited for as long as two years.”
The motion to reconsider is denied. The sanctions award is upheld.
Boyd v. Boyd, Case No. JA 2021-237, June 27, 2022, Fairfax County Circuit Court (Gardiner). Ann M. Thayer, John L. Bauserman for the parties. VLW 022-8-036, 8 pp.
