COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Senior Judge Annunziata
Argued at Alexandria, Virginia
UNPUBLISHED
FARAH KHAKEE
MEMORANDUM OPINION* BY
v. Record No. 0990-18-4 JUDGE MARY GRACE O’BRIEN
APRIL 9, 2019
DAVID W. RODENBERGER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Grace Burke Carroll, Judge
Farah Khakee, pro se.
(Camille A. Crandall; Kelly & Crandall PLC, on brief), for appellee.
Appellee submitting on brief.
Farah Khakee (“wife”) appeals a pre-trial order dismissing with prejudice her motion to
modify child support and awarding attorney’s fees to David Rodenberger (“husband”).1 Wife
contends that the court erred by dismissing her motion pre-trial without a hearing on the merits and
without prior entry of an order compelling discovery. For the following reasons, we agree and
reverse the court’s decision.2
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Although wife also challenges the court’s dismissal of her request to modify spousal
support, she withdrew that request at the hearing on May 23, 2018. At that hearing, wife proceeded
only on her request for a reduction in child support.
2
Wife also appeals a subsequent order denying her motions for a suspending order and
reconsideration. Because we reverse the court’s order dismissing wife’s motion and requiring her to
pay attorney’s fees, we do not address her contention that the court erred by denying her motions to
suspend and reconsider.
BACKGROUND
Husband and wife were divorced on July 30, 2013. The final order of divorce granted wife
primary physical custody of the parties’ two minor children and awarded her child and spousal
support. In May 2015, the court transferred primary physical custody to husband and ordered wife
to pay child support. Wife filed a motion to modify child support in June 2016 that the court
denied. She subsequently filed a motion to modify child and spousal support in April 2017. The
court granted wife a nonsuit on that action in June 2017.
In December 2017, wife filed another motion to modify spousal and child support. She
asserted that modification was warranted due to her unemployment beginning in April 2017.
Husband served wife with interrogatories and a request for production of documents on February 6,
2018. He requested information about wife’s finances, including all sources of her income, the
balance of any bank accounts and debts, employment history, and expenses. Wife answered
husband’s discovery requests on February 28, 2018, and supplemented her responses on May 15,
2018. She provided an income and expense statement, her tax returns, pay stubs from employment
obtained in 2018, and statements from several checking, savings, and retirement accounts.
Husband filed a motion to dismiss on May 22, 2018, one day before the scheduled hearing
on wife’s motion for modification. He claimed that wife did not provide full and complete
discovery responses because she failed to produce substantive documentation of her work history
and efforts to secure employment. He also contended that wife’s financial disclosure was
incomplete. Husband had not previously filed a motion to compel in relation to wife’s latest action
seeking modification of support.
On May 23, 2018, the parties convened for a hearing on their respective motions to modify
and dismiss. The court first considered husband’s motion to dismiss. Husband contended that a full
financial disclosure from wife was essential for the court to determine whether wife was voluntarily
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unemployed or underemployed. He asserted that wife was required to produce this information
pre-trial under Hammers v. Hammers, 216 Va. 30 (1975), and Antonelli v. Antonelli, 242 Va. 152
(1991). Wife responded that she had complied with discovery and provided what she considered
were the necessary financial disclosures. She also asserted that the issues as to whether she was
voluntarily unemployed or underemployed were factual matters for trial, not a motion to dismiss.
The court dismissed wife’s motion to reduce child support with prejudice “based on [her]
failure to provide a full and complete financial disclosure pursuant to Hammers and Antonelli” and
awarded husband $5769 in attorney’s fees and costs. The court held that husband did not “have an
obligation to file a motion to compel when it is [wife’s] burden to show, with a full and complete
disclosure, the material change in circumstances” warranting a modification of support obligations.
Wife filed a request for a suspending order and a motion for reconsideration on June 12,
2018. However, no suspending order was entered, and the court denied wife’s motion for
reconsideration on June 19, 2018, based on lack of jurisdiction under Supreme Court Rule 1:1.
ANALYSIS
A. Motion to Dismiss
Wife contends that the court erred by dismissing her motion prematurely for failure to
provide a full financial disclosure as required by Antonelli v. Antonelli, 242 Va. 152 (1991), and
Hammers v. Hammers, 216 Va. 30 (1975). We agree.
In granting husband’s motion to dismiss, the court correctly noted that wife, as the moving
party on a request to modify support based on her lack of ability to pay, had the burden to make a
“full and clear disclosure” of her financial situation. Hammers, 216 Va. at 31. Wife also was
required to demonstrate that she was not “voluntarily unemployed or voluntarily under employed.”
Antonelli, 242 Va. at 154 (quoting Code § 20-108.1(B)(3)). See also Reece v. Reece, 22 Va. App.
368, 373 (1996) (extending Antonelli to requests for spousal support modification). However,
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Hammers and Antonelli both addressed the moving party’s burden of proof in an evidentiary
hearing, not at a pre-trial motion. Hammers, 216 Va. at 31-32 (reversing the reduction of father’s
child support obligation where he failed to demonstrate at an evidentiary hearing that his debt was
not due to his own voluntary act or neglect); Antonelli, 242 Va. at 154, 156 (affirming the denial of
a motion to reduce child support following an evidentiary hearing where father failed to meet his
burden disproving voluntary underemployment). See also Edwards v. Lowry, 232 Va. 110, 112-13
(1986) (reversing trial court’s decision to reduce child support where the father failed to produce
sufficient evidence at a hearing “showing himself free of responsibility for his change in
circumstances”). Here, wife never had the opportunity to introduce any evidence or testify.
Therefore, the court’s determination that wife had not met her burden of proof was premature.
At the pre-trial hearing, and on appeal, husband argued that the court’s dismissal of wife’s
motion was not a discovery sanction, but rather an “enforce[ment of] the requisite burdens of proof”
on a party seeking support modification based on an inability to pay. However, husband requested
dismissal of wife’s motion based on her failure to produce accurate and complete answers in
discovery. Therefore, the record supports wife’s contention that the court dismissed her action as a
discovery sanction.
“[W]e accord deference to a trial court’s decision regarding discovery disputes and will set
aside that decision only if the court abused its discretion.” Am. Safety Cas. Ins. Co. v. C.G.
Mitchell Constr., Inc., 268 Va. 340, 351 (2004). A “[trial] court by definition abuses its discretion
when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal conclusions.” Porter v. Commonwealth, 276
Va. 203, 260 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). See also Landrum
v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 358 (2011) (Millette, J., concurring)
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(noting that failure to enforce an applicable discovery rule would constitute “an error of law and
consequently an abuse of discretion”).
Supreme Court Rule 4:12 addresses the procedure available to enforce compliance with
discovery requests. Rule 4:12(a) provides that “[a] party, upon reasonable notice to other parties . . .
may apply for an order compelling discovery.”
If . . . a party fails to answer an interrogatory submitted under Rule
4:8, or if a party, in response to a request for inspection submitted
under Rule 4:9, fails to respond that inspection will be permitted as
requested or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer . . . or an order
compelling inspection in accordance with the request.
Rule 4:12(a)(2). After granting a motion to compel, the court may also award “reasonable expenses
incurred in obtaining the order, including attorney’s fees.” Rule 4:12(a)(4). The sanctions available
to a trial court if a party fails to comply with an order compelling discovery are listed in Rule
4:12(b). The Rule provides, in relevant part, as follows:
If a party . . . fails to obey an order to provide or permit discovery . . .
the court in which the action is pending may make such orders in
regard to the failure as are just, and among others the following:
....
(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
Rule 4:12(b)(2)(C).
It is uncontroverted that the court did not enter an order compelling discovery because
husband never filed a motion to compel. An order compelling discovery “is a prerequisite for the
imposition of sanctions under paragraph[] (C) of Rule 4:12(b)(2).” Brown v. Black, 260 Va. 305,
310 (2000). The discretion to impose a Rule 4:12(b)(2) discovery sanction “was not intended to
confer upon a court the power to dismiss an action unless a party has violated an order compelling
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discovery.” Id. at 311. Rule 4:12(b)(2) does not “permit[] such a drastic sanction in the absence of
the violation of an order compelling discovery.” Id. The Supreme Court has “often warned of the
dangers of ‘short circuiting’ litigation because in doing so, a trial court ‘depriv[es] a litigant of his
day in court and depriv[es an appellate court] of an opportunity to review a [more] thoroughly
developed record on appeal.’” Walsh v. Bennett, 260 Va. 171, 176 (2000) (quoting Seyfarth, Shaw,
Fairweather & Geraldson v. Lake Fairfax Seven Ltd. P’ship, 253 Va. 93, 95 (1997)).
Unlike Rule 4:12(b), Rule 4:12(d) gives the trial court authority to “impose any of the
sanctions listed in paragraphs (A), (B), and (C) of subdivision (b)(2),” including dismissal of an
action, “without prior entry of a Rule 4:12(b) order to compel regarding this failure.”3 However,
these remedies are only available when a party completely fails to respond to a discovery request.
See Brown, 260 Va. at 313 (Kinser, J., concurring) (“Subsection (d) [of Rule 4:12] applies when a
party completely fails to respond to discovery requests, such as not appearing at a deposition after
proper service or not responding at all to a set of interrogatories.”). See also Kapur v. Kapur, Nos.
0363-08-4, 0950-08-4, at *3 (Va. Ct. App. May 19, 2009) (“Rule 4:12(d) sets forth the actions the
trial court may take if a party completely fails to respond to a discovery request.”).4
Here, wife answered husband’s interrogatories and request for production of documents on
February 28, 2018, and supplemented her responses on May 15, 2018. Wife provided her tax
returns, several bank statements, pay stubs, and an income and expense statement. Because wife
did not completely fail to respond, the court did not have the authority to impose sanctions without
3
A court’s authority to impose sanctions, including dismissal, for a violation of Rule 4:12(d)
without prior entry of an order compelling discovery was part of an amendment to that subsection
effective April 1, 2018.
4
“While an unpublished case has no precedential value, courts do ‘not err by considering
the rationale and adopting it to the extent it is persuasive.’” Portsmouth Sch. Bd. v. Harris, 58
Va. App. 556, 565 n.6 (2011) (quoting Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3 (1999)
(en banc)). See also Rule 5A:1(f) (“The citation of judicial opinions . . . that are not officially
reported . . . is permitted as informative, but shall not be received as binding authority.”).
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prior entry of an order to compel under Rule 4:12(d). To the extent that husband believed wife’s
responses were insufficient, husband’s remedy was to seek an order compelling her answers under
Rule 4:12(a). If she failed to comply with that order, he could then request dismissal of her action.
See Rule 4:12(b)(2)(C). Therefore, the court abused its discretion in dismissing wife’s motion
before entering an order compelling her to remedy her unsatisfactory discovery responses.
B. Attorney’s Fees
Wife also contests the court’s order requiring her to pay husband’s attorney’s fees. “An
award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is reviewable
on appeal only for an abuse of discretion.” Graves v. Graves, 4 Va. App. 326, 333 (1987).
The three principal ways a court abuses its discretion are “when a
relevant factor that should have been given significant weight is
not considered; when an irrelevant or improper factor is considered
and given significant weight; and when all proper factors, and no
improper ones, are considered, but the court, in weighing those
factors, commits a clear error of judgment.”
Lambert v. Sea Oats Condo. Ass’n. Inc., 293 Va. 245, 252-53 (2017) (quoting Manchester Oaks
Homeowners Ass’n, Inc. v. Batt, 284 Va. 409, 429 (2012)).
“[T]he key to a proper award of counsel fees [is] reasonableness under all of the
circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272, 277 (1985). The
court erred in granting husband’s motion to dismiss wife’s action seeking modification of child
support. Therefore, it failed to consider the significant factor that wife should have prevailed on
husband’s motion at the May 23, 2018 hearing when it ordered her to pay attorney’s fees. For this
reason, we also reverse the court’s award of attorney’s fees to husband.
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CONCLUSION
We reverse the judgment of the court dismissing with prejudice wife’s motion to modify
child support and granting husband attorney’s fees. We remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
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