COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
KEN R. GALLAHAN
MEMORANDUM OPINION *
v. Record No. 0479-00-4 PER CURIAM
AUGUST 8, 2000
LINDA FLOOD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
(Ted Kavrukov; Kavrukov, Mehrotra & DiJoseph;
Kavrukov & DiJoseph, on briefs), for
appellant.
(Dennis M. Hottell; Christopher Malinowski;
Dennis M. Hottell & Associates, P.C., on
brief), for appellee.
Ken R. Gallahan appeals three orders entered by the circuit
court. He contends that the trial court erred by (1) finding him
in contempt of court in its order of January 7, 2000; (2) by
considering and relying upon an order entered by the juvenile and
domestic relations district court (J&DR court); (3) finding no
changed circumstances warranting unsupervised visitation; (4)
considering matters not pleaded by Linda Flood (Flood); (5)
assessing attorney's fees against him for remarks made outside the
J&DR court; (6) ordering him to pay costs associated with a
witness; (7) assessing attorney's fees against him; and (8)
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
denying his motion for sanctions. Flood seeks attorney's fees
incurred in this appeal. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
Background
The parties are the parents of a single child, Trevor Ryan
Flood. Pursuant to a consent order entered by the circuit court
on March 18, 1996, visitation between Gallahan and Trevor was
conditioned on the parties' participation in joint counseling
sessions, with costs shared equally. Under the consent order, all
visitation between Trevor and Gallahan was to be supervised, with
Gallahan paying all costs associated with the supervised
visitation. The designated counselor, Patricia H. Meyer, chose
Flood to supervise the visitations. Gallahan ceased participating
in the joint counseling sometime in September 1996. Gallahan
continued supervised visitation with Trevor for a period of time,
having fifty-five visits with Trevor in 1997, thirty-four in 1998,
and none in 1999.
In early 1999, Gallahan filed a motion seeking unsupervised
visitation with Trevor, joint counseling at the Fairfax County
Family Counseling Unit, a psychological evaluation of Flood, and
payment of all fees, expenses and costs by Flood. Flood filed a
petition for a rule to show cause, alleging that Gallahan failed
to participate in joint counseling as required by the March 18,
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1996 consent decree and that he failed to pay his share of the
costs of supervised visitation. Gallahan, proceeding pro se,
filed a motion to compel discovery. The J&DR court held a two-day
hearing on September 29 and 30, 1999, although Gallahan failed to
appear on the second day. By order entered October 19, 1999,
Gallahan was found to be in contempt of court for failing to abide
by the March 1996 consent decree. In pertinent part, the J&DR
court barred visitation until Gallahan resumed joint counseling
with Meyer, and ordered Gallahan to pay $11,164.57 in costs, fees
and sanctions arising from his failure to appear on the second day
of the hearing; his filing a frivolous motion to compel discovery;
costs of consultation services rendered by Meyer and the costs of
her appearance on the second day of the hearing; and attorney's
fees. He was ordered to pay $2,214.57 within thirty days, of
which $2,014.57 was one-half the consultation fees paid by Flood
to Meyer for her consultation services since 1996, and $200 was
the fee charged by Meyer for her appearance in J&DR court on
September 30, 1999.
Gallahan appealed the J&DR court's decision to the circuit
court. Prior to the trial, by order entered January 7, 2000, the
trial court found Gallahan in contempt of court for failing to pay
the $2,214.57 within the time required under the October 1999
decree, and remanded him to the custody of the sheriff until he
paid the amount due and $350 in attorney's fees. Gallahan paid
the amount that day.
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The circuit court conducted a hearing de novo on February 8
and 9, 2000. In its final order entered February 25, 2000, the
trial court denied Gallahan's motion to change visitation because
he failed to prove a material change of circumstances warranting
the modification; suspended supervised visitation until Gallahan
resumed joint counseling with Meyer; required the parties to share
the cost of joint counseling, and ordered Gallahan to pay
$10,739.50 in sanctions, fees, and awards. Prior to entry of the
final decree, Flood filed a motion for attorney's fees and
Gallahan filed a motion for sanctions. In a separate order
entered February 25, 2000, both motions were denied. Gallahan
appealed.
I. Reliance on J&DR Order
Gallahan contends that the trial court erred by allowing
testimony concerning the proceedings in the J&DR court. We find
no error. Gallahan misconstrues the effect of a hearing de novo
in circuit court following an appeal from a decision of the J&DR
court. A hearing de novo allows the parties to present their case
unfettered by the presumption of correctness generally attached to
a previous court's determination on appeal. See Box v. Talley, 1
Va. App. 289, 292, 338 S.E.2d 349, 351 (1986). However, the order
entered by the J&DR court remains a valid, enforceable order until
the circuit court enters an overriding order. See Peple v. Peple,
5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988). The circuit
court heard the evidence ore tenus and made its own determination.
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We find no indication that the trial judge applied an incorrect
level of deference to the proceedings in the J&DR court.
II. Finding of Contempt
Gallahan contends that the trial court erred when it found
him in contempt of court in its order entered January 7, 2000. In
her responsive pleading, Flood contends that because Gallahan
failed to file a timely appeal of the order, this Court lacks
jurisdiction to hear this argument. See Rule 5A:6.
We find that the January 7, 2000 order holding Gallahan in
contempt was not a final order. The order itself notes that "this
cause is continued." Therefore, Gallahan's appeal of this issue
is not time-barred. However, Gallahan endorsed the trial court's
order only as "excepted to," and failed to note any specific
objection to the trial court's decision. Therefore, he failed to
preserve for appeal any objection to this order. See Rule 5A:18;
see also Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991) (en
banc).
III. Changed Circumstances
Gallahan also contends that the trial court erred when it
ruled that he had failed to demonstrate a material change in
circumstances warranting a modification in visitation. As the
party seeking a modification of the visitation order, Gallahan
bore "'the burden of proving, by a preponderance of the evidence,
a material change in circumstances justifying a modification of
the decree.'" Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d
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559, 561 (1993) (citation omitted). The trial court applies a
two-pronged test: "(1) whether there has been a change of
circumstances since the most recent custody award; and (2) whether
such a change would be in the best interests of the child."
Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450 (1994)
(citing Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921
(1983)). "In matters concerning custody and visitation, the
welfare and best interests of the child are the 'primary,
paramount, and controlling considerations.'" Kogon v. Ulerick, 12
Va. App. 595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted).
The trial court's determination of whether a change of
circumstances exists and its evaluation of the best interests of
the child will not be disturbed on appeal if the court's findings
are supported by credible evidence. See Visikides v. Derr, 3 Va.
App. 69, 70, 348 S.E.2d 40, 41 (1986).
The trial court specifically asked counsel to articulate the
alleged material changes. Gallahan's counsel noted only two: (1)
that Gallahan had visited with Trevor since the March 1996 order;
and (2) that Trevor was now eight years old. The trial court
found neither proposed ground was a material change in
circumstances, as both were contemplated at the time the order was
originally entered. Because credible evidence supports the
finding of the trial court, we find no error.
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While Gallahan also argues that the consent order was not res
judicata, he raises this argument for the first time on appeal.
We therefore do not consider it further. See Rule 5A:18.
IV. Matters Not Pleaded
Gallahan contends that the trial court erred in imposing
sanctions against him and assessing attorney's fees and court
reporter's fees because Flood did not request these awards in her
pleadings. We find this contention to be without merit.
Under Code § 8.01-271.1, the signature of a party on a filing
"constitutes a certificate by him that . . . (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 the court finds that a pleading was interposed for an improper
purpose, the court sua sponte "shall impose upon the person who
signed the paper . . . 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." Thus, the trial court was
authorized to impose sanctions against Gallahan based upon the
evidence that he filed his motion to compel in order to harass
Flood and make her expend attorney's fees.
Furthermore, Gallahan's contention that Flood failed to raise
in her pleadings a request for attorney's fees is contradicted by
the record. Flood sought relief including, "but not limited to,
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[Gallahan's] prompt payment of the $1,030 for his share of
counseling, [and] payment of [Flood's] reasonable attorney's fees
. . . ." Flood also sought, and was denied, attorney's fees in
her subsequent motion filed in circuit court.
V. Assessment of Sanctions
As noted above, the trial court acted within its authority
when it assessed $900 in attorney's fees as a sanction against
Gallahan for the filing of the frivolous motion to compel. See
Code § 8.01-271.1. Evidence that the trial court found to be
credible proved that Gallahan intentionally filed the motion for
an improper purpose. The sanction award was supported by evidence
in the record and was not an abuse of discretion.
VI. Assessment of Witness' Fees
An award of costs, like an award of attorney's fees, is a
matter submitted to the sound discretion of the trial court and is
reviewable on appeal only for an abuse of discretion. See Graves
v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The
trial court found that Gallahan was liable for $2,189.50 for costs
associated with Meyer's appearance in both the J&DR and circuit
courts. We find no abuse of discretion in this award of costs.
Gallahan represented to the J&DR court that he had "ten
pages" of questions to ask Meyer and needed her to be present the
second day of trial. Nonetheless, Gallahan himself failed to
appear that day. The J&DR court found that Gallahan was not
excused, noting
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[w]e specifically told him what he needed to
provide to the Court in order to be excused
from Court today, and that was not provided.
There was no medical reason established why
he could not appear in Court.
No other evidence supported Gallahan's explanation for his
absence. While Gallahan testified in the circuit court that he
failed to appear for the second day of the J&DR court hearing
because he was sick, the trial court was entitled to determine
whether Gallahan's testimony was credible.
In addition, Gallahan refused to agree to introduce the
counselor's testimony before the J&DR court so as to avoid the
necessity of her appearing to testify in the circuit court. The
trial court found that
given what I've already found to be just
total lack of merit of the father's position
in this hearing, and given the unwillingness
of the father and counsel to agree to some
kind of an arrangement where Ms. Meyer would
not have to appear today, and frankly that
issue was before the Calendar Control Judge,
it's not like it wasn't raised before, the
father will be required to pay the $550 that
brought Ms. Meyer here today.
The trial court acted within its authority when it ordered
Gallahan to pay one-half the expense attributable to Meyer's
appearance, and to bear the costs attributable to her
unnecessary appearances.
VII. Assessment of Attorney's Fees
The decision of the trial court to award attorney's fees is
reviewable solely for abuse of discretion. See id. The key to a
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proper award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985). "In determining whether an award of
attorney's fees is appropriate, the focus should be on the
parties' bona fide claims and not on the parties' ability to
predict in advance of trial the exact ruling of the court."
Richardson v. Richardson, 30 Va. App. 341, 352, 516 S.E.2d 726,
731 (1999).
The trial court found Gallahan's motion to be without merit.
In remarks from the bench, the court also noted that
I'm also mindful that [Gallahan] has
evidenced a pattern of a lack of respect for
court orders. That's been amply shown by
the number of times he's been held in
contempt. I'm also taking into
consideration my knowledge of reasonable
attorney's fees for litigating something of
this order of magnitude.
We find no abuse of discretion in the trial court's decision
to order Gallahan to pay $6,000 in attorney's fees.
VIII. Motion for Sanctions
Gallahan also contends that the trial court erred when it
denied his motion for sanctions against Flood by order entered
February 25, 2000. He contends that Flood knew or should have
known at the time she filed her petition for a rule to show cause
that he had paid his share of joint counseling costs and that he
was not required under the J&DR court consent order of March 18,
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1996 to attend joint counseling sessions. We find no merit in
this contention.
In pertinent part, the consent decree provided that
2. The visitation schedule shall be agreed
to by the parties based upon the
recommendation of Patricia H. Meyer, LCSW,
who shall monitor visitations by
consultation with the supervisor and joint
counseling sessions with the parties. The
parties shall cooperate in initiating
supervised visitation and dealing
constructively with the problems that may
arise through joint counseling with Ms.
Meyer. The parties shall be equally
responsible for the costs of joint
counseling with Ms. Meyer. [Gallahan] shall
be responsible for the costs associated with
the supervised visitations recommended by
Ms. Meyer, including consultations between
the supervisor and Ms. Meyer that are
required by Ms. Meyer.
Gallahan was required to pay the costs associated with
supervised visitation and one-half the costs of joint
counseling. At the time Flood filed her Verified Petition for
Issuance of a Rule to Show Cause, Gallahan was delinquent in
making the necessary payments. The J&DR court found that
Gallahan owed $1,900 for amounts paid to Meyer for consultations
between September 1996 and December 1998. While Gallahan was
not found to be in contempt of court for discontinuing the joint
counseling, Flood was awarded costs by both the J&DR court and
the circuit court. We do not find any abuse of discretion by the
trial court's rejection of Gallahan's motion for sanctions under
these circumstances.
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IX. Appellate Attorney's Fees
Flood seeks an award of attorney's fees she incurred
defending this appeal. We decline to award appellate attorney's
fees. See O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d
98 (1996) 1 .
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
1
Gallahan has filed a "Motion for Suspension of Execution
of Order." We deny that motion.
Flood has filed a "Motion for Sanctions." Likewise, we
deny that motion.
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