Virginia Lawyers Weekly VA Lawyers Weekly
Where the trial court ruled that husband could not file a motion until he posted a $25,000 bond and personally appeared in court – a sanction imposed for disobeying previous court orders – the court properly sanctioned him $1,848 after he filed a motion “in defiance” of those conditions.
Prior proceedings
After husband filed for divorce, the “trial court ordered husband to pay pendente lite child and spousal support and make mortgage and insurance payments on the marital home. …
“When husband failed to make the ordered payments or provide wife with any discovery materials, the trial court repeatedly ordered him to show cause why he should not be held in contempt. …
“Rather than comply with the trial court’s orders, husband ‘failed to appear in the trial court on numerous occasions; refused to make any support payments; failed to provide any discovery and made affirmative efforts to secret assets and documents to thwart wife’s efforts to identify marital assets.’ …
“In addition, husband did not appear for a deposition and ‘left the country to avoid the trial court’s jurisdiction.’ …
“Accordingly, the trial court barred husband from presenting evidence or filing any motions until he personally appeared.”
When the trial court entered the final decree, it found husband in contempt and ordered “him to pay a monetary sanction[.]” Husband unsuccessfully appealed.
Later, husband asked permission to file a motion to “correct the child support arrearage and modify his ongoing support obligation. …
“The trial court denied his motion until he appeared in court personally and posted a $25,000 bond.” Husband unsuccessfully appealed this “non-participation” sanction. Next, he asked for permission to file a motion “without either personally appearing or posting the requisite $25,000 bond.” The trial court denied the request and sanctioned husband’s counsel $2,500. Husband’s appeal was unsuccessful.”
Current proceedings
“On July 6, 2022, husband filed a motion asking the trial court to ‘set aside, cancel, vacate, quash or otherwise remove’ the contempt orders and requirement that he post the bond.
“Husband did not post the bond or present himself to the court. Instead, he filed a notice setting a hearing for August 19, 2022, and requested permission to appear at the hearing ‘by videolink, remotely.’
“On August 17, 2022, the trial court denied husband’s request for a ‘virtual appearance.’ At 2:54 a.m. on August 19, 2022, husband moved ‘to remove the prior motion … from the docket.’ …
“[T]he trial court entered an order finding that husband did not appear in court, post a $25,000 bond, or otherwise purge himself of contempt of court.
“The trial court also found that husband violated the court’s non-participation sanction by filing a motion ‘not warranted by the existing law’ and ‘for an improper purpose.’
“In addition, the court found that husband’s attempt to remove the motion ‘just hours before the hearing’ was ‘improper and unfair to [wife], who ha[d] incurred substantial attorney’s fees and costs.’
“Finally, the court found that husband’s ‘serial filings’ were ‘vexatious, abusive and contrary to [its] prior orders.’ Accordingly, the trial court granted husband’s motion to withdraw his ‘previously filed motion from the docket’ and imposed $1,828.40 in sanctions on husband for wife’s attorney fees and court costs.”
Withdrawn motion
“‘[A] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.’ …
“Husband generally challenges the trial court’s refusal to grant his motion to ‘set aside, vacate[] and cancel’ the contempt order, the ‘non-participation sanction,’ and the bond orders.
“The record demonstrates, however, that husband moved to withdraw his motion before the scheduled hearing. The trial court granted husband’s withdrawal motion and, therefore, did not address the arguments husband now presents on appeal.
“Accordingly, having asked the trial court to withdraw his motion and obtained that relief, husband will not now be heard to complain that the trial court did not consider the substance of the withdrawn motion.”
Sanctions
“An award of attorney fees as a sanction under Code § 8.01-271.1 ‘is not a typical attorneys’ fees award case.’ … Instead, ‘[i]t is a sanctions case wherein the trial court has decided that a proper sanction would be based upon attorneys’ fees incurred – a remedy expressly provided in the statute. …
“In this case, the non-participation sanction that the trial court imposed – and this Court repeatedly upheld – clearly required husband to satisfy two prerequisites before he filed any pleadings. He must: (1) personally appear and (2) post a $25,000 bond.
“The bond requirement was to ensure funds would be available for wife’s attorney fees and costs, and to satisfy any sanctions awarded against husband if he filed further motions without complying with the court-ordered prerequisites. …
“Husband filed his July 6, 2022 motion in defiance of the non-participation sanction. Although he summarily concludes on brief that circumstances have ‘changed,’ and his motion was filed for ‘compelling humanitarian purposes,’ those allegations do not bar a finding that the motion was filed for an ‘improper purpose’ under Code § 8.01-271.1(B)(iii).
“Accordingly, the trial court did not abuse its discretion by imposing sanctions, including attorney fees.”
Affirmed.
Fox v. Fox, Record No. 1380-22-4, March 28, 2023. CAV (unpublished opinion) (per curiam). From the Circuit Court of Arlington County (Wheat). Kenneth R. Fox, pro se. Michael A. Williams for appellee. VLW 023-7-123, 8 pp.
