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William R. Winters v. Cleome J. Winters
Date: 03-15-2022
Case Number: 0060-21-2
Judge: ROBERT J. HUMPHREYS
Court:
COURT OF APPEALS OF VIRGINIA
On appeal from The CIRCUIT COURT OF THE CITY OF RICHMOND
Plaintiff's Attorney:
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Defendant's Attorney: Robert L. Isaacs
Description:
Father and mother were married, and three children were born of the marriage. On May
1, 2013, the circuit court entered a final decree of divorce and granted joint legal custody of the
children to both parents with primary physical custody to mother. In 2015, father married again
to Kristan Winters ("stepmotherâ€).
The parties engaged in a substantial amount of litigation regarding the custody and care
of their children in the years following the divorce. On May 8, 2019, after a hearing, the J&DR
court granted mother sole legal and primary physical custody of all three children with some
visitation to father. Father, as a pro se litigant, appealed the J&DR court's order to the circuit
court seeking amended custody and visitation. Notably, father represented himself for the
duration of his de novo appeal in the circuit court, authoring and filing numerous pro se motions
and objections.
Mother filed a motion in the circuit court for an updated custody and adult psychological
assessment to which father objected. The circuit court granted the motion and appointed
Dr. Nelson to perform the assessment and file a written report with the circuit court.
1 The circuit
court's order stated that Dr. Nelson's report be sealed and was only to
1 The 2019 evaluation was Dr. Nelson's fourth custody and psychological evaluation of
the parties since 2014. The parties had undergone previous psychological evaluations by
Dr. Nelson at the behest of the J&DR court.
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be made available to the [c]ourt, the parties, their attorneys, and the
Guardian ad Litem, any experts . . . and any other persons as the
[c]ourt decides has a proper interest herein. Neither party may
publish, distribute, or in any way disseminate the contents of said
[report], any test results or opinions or conclusions of Nelson to
any third party using any means of communication without prior
[o]rder except as authorized by this [o]rder.
Dr. Nelson conducted the evaluation, and, on November 4, 2019, she submitted a written
report containing her findings to the circuit court.
On or about July 1, 2020, stepmother, who was not a party to the case, sent a
thirteen-page letter to Dr. Nelson in which stepmother claimed that Dr. Nelson committed
"multiple ethical violations†in her November 2019 evaluation and report. Stepmother had read
the sealed report and accused Dr. Nelson of making defamatory and misleading statements and
demanded that she "cease and desist.†If Dr. Nelson did not "cease and desist,†stepmother said
she would "be forced to take appropriate legal action against [Dr. Nelson] and will seek all
available damages and remedies.â€
Mother filed a motion to show cause against father as to why he should not be found in
contempt for violating the August 27, 2019 order by disseminating the sealed report to an
unauthorized party, namely, stepmother. Mother also asked the circuit court to deny father the
right to call stepmother as a witness to testify on his behalf and to "[f]ine, imprison, or otherwise
punish [d]efendant pursuant to this [c]ourt's contempt powers pursuant to [Code
§ 20-124.2(E)].†Additionally, she requested an award of attorney's fees.
Father submitted a pro se motion to recuse Dr. Nelson as a court-appointed psychological
evaluator. Additionally, on September 18, 2020, father disclosed stepmother as an expert
witness—for the first time—to the circuit court. The circuit court subsequently held a hearing
where it denied father's motion to recuse and found that father had violated the circuit court's
- 4 -
order by distributing the written report to an unauthorized recipient. At that hearing, the circuit
court stated,
The letter from Mrs. Winters to Dr. Nelson was threatening. It was
interference on behalf of a party with the court's own appointed
witness. It's appalling. I've never seen anything like it. I'm going
to impose the sanction of dismissing the appeal and remanding the
case back to [J&DR] court. . . . This is an offense against the court
and I have the authority to do that.
Father, by counsel, submitted a motion to rehear and reconsider the circuit court's
dismissal of his appeal from the J&DR court. The circuit court held a hearing on the issue of
mother's attorney's fees and father's motion to reconsider. It also entered a final order
memorializing its earlier findings from the hearing on recusing or removing Dr. Nelson. That
order read
It appearing to the [c]ourt that the motion to recuse/remove &
exclude Dr. Nelson filed by the defendant has been filed in the
furtherance of and in pursuit of improper purposes, as stated by the
[c]ourt ore tenus on September 30, 2020, it is therefore ORDERED
that the motion to recuse/move and exclude Dr. Nelson filed by the
defendant is hereby DENIED. And it is further ORDERED that
the motion for sanctions is hereby GRANTED based on the
[c]ourt's finding that defendant, William Winters, violated the
[c]ourt's [o]rder of August 27, 2019[,] and that Kristan Winter's
letter to Dr. Nelson amounted to interference on behalf of a party
with the [c]ourt's own appointed witness. And it is further
ORDERED that the appeals of the decisions of the J&DR court for
the City of Richmond regarding custody, visitation and child
support are hereby DISMISSED as a sanction for defendant's
above described conduct.
On January 8, 2021, the circuit court issued another order, this time granting mother's
request for $76,363.56 in attorney's fees and costs she incurred in the circuit court pursuant to
father's appeal. The January 8, 2021 order also denied father's motion to reconsider and
affirmed the circuit court's sanction of dismissal. The circuit court found that
[Father] violated the [c]ourt [o]rder of August 27, 2019[,] by
disseminating Dr. Michele Nelson's [r]eport . . . to Kristan Winters
who was not an authorized recipient of the [r]eport. . . . The
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[c]ourt concludes that Kristan Winters is not a properly designated
expert for [father] because her expertise in hospice nursing is
irrelevant to the issues presented in this child custody and
visitation matter. The [c]ourt further rejects [father's] contention
that Kristan Winters was . . . [father's] consulting expert. . . .
This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
Father explicitly assigns error to the circuit court's dismissal of his appeal as a sanction,
its denial of his motion to recuse Dr. Nelson, and the circuit court's award of attorney's fees to
mother. On brief, he also argues that the circuit court erred by refusing to designate stepmother a
consulting expert.
"[A] court's imposition of a sanction will not be reversed on appeal unless the court
abused its discretion in 1) its decision to sanction the litigant, or 2) in the court's choice of the
particular sanction employed.†Switzer v. Switzer, 273 Va. 326, 331 (2007). Similarly, "[w]e
review the circuit court's imposition of sanctions under Code § 8.01-271.1 pursuant to an abuse
of discretion standard.†Williams & Connolly, L.L.P. v. People for the Ethical Treatment of
Animals, Inc., 273 Va. 498, 509 (2007). Regarding the third assignment of error, "[w]hether to
award attorney's fees in a divorce matter is left to the sound discretion of the trial court.â€
Rinaldi v. Rinaldi, 53 Va. App. 61, 78 (2008). Finally, "ascertaining whether a proffered witness
is qualified to testify as an expert is a determination lying within the sound discretion of the trial
court.†Hinkley v. Koehler, 269 Va. 82, 91 (2005) (citing Wright v. Kaye, 267 Va. 510, 520
(2004)).
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B. THE SANCTION FOR CONTEMPT
1. Whether the circuit court had authority to dismiss father's de novo appeal as a sanction for
disobeying a court order
Father argues both that the circuit court lacked authority to impose any sanction
whatsoever and that the circuit court specifically erred as a matter of law by dismissing his
appeal as a sanction. Because these issues are closely related, we address them jointly.
In any case where custody or visitation of minor children is at issue, Code § 20-124.2(D)
grants circuit courts the authority to "order an independent mental health or psychological
evaluation to assist the court in its determination of the best interests of the child.†Here,
pursuant to its statutory authority, the circuit court ordered a psychological evaluation to be
performed. As stated, the circuit court mandated that the evaluation report be sealed and was
only to be seen by a select few people and others only as authorized by the circuit court.
Following a show cause hearing, the circuit court found as a fact that father violated that order.
This Court has previously held that "[i]n a show cause hearing, the moving party need only
prove that the offending party failed to comply with an order of the trial court.†Commonwealth
ex rel. Graham v. Bazemore, 32 Va. App. 451, 455 (2000) (quoting Alexander v. Alexander, 12
Va. App. 691, 696 (1991)). The offending party then has the burden of proving adequate
justification for his failure to comply. See Alexander, 12 Va. App. at 696.
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.
In direct contrast to father's assertion, the statutory scheme for court-ordered custody and
visitation explicitly grants circuit courts the authority to enforce its orders. In custody and
visitation disputes
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[t]he court shall have the continuing authority and jurisdiction to
make any additional orders necessary to effectuate and enforce any
order entered pursuant to this section . . . including the authority to
punish as contempt of court any willful failure of a party to comply
with the provisions of the order.
Code § 20-124.2(E) (emphasis added).
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. See
Bazemore, 32 Va. App. at 455 (quoting Alexander, 12 Va. App. at 696). Because father directly
violated the circuit court's order, it clearly had statutory authority to hold him in contempt of
court for "willful failure . . . to comply with . . . the order†and, as such, to punish him. See Code
§ 20-124.2(E).
In addition to the circuit court's statutory authority, it is well-established that "in the
courts created by the [state] constitution, there is an inherent power of self-defense and
self-preservation; that this power may be regulated but cannot be destroyed . . . that it is a power
necessarily resident in, and to be exercised by, the court itself.†Carter v. Commonwealth, 96
Va. 791, 816 (1899). "When one shows by his conduct a deliberate and studied effort to disobey
a valid order of a court, he subjects himself to punishment for contempt.†Laing v.
Commonwealth, 205 Va. 511, 515 (1964). The Supreme Court of Virginia has explicitly held
that "sanctions can be used to protect courts against those who would abuse the judicial process.â€
Moscona v. Shenhar, 50 Va. App. 238, 253 (2007) (quoting Oxenham v. Johnson, 241 Va. 281,
286 (1991)), aff'd sub nom Sasson v. Shenhar, 276 Va. 611 (2008). Therefore, the circuit court
possessed not only statutory authority but also inherent authority to sanction father for
disobeying an order. For these reasons, the circuit court did not abuse its discretion by
sanctioning father.
- 8 -
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.
Code § 20-124.3 states that "[i]n determining best interests of a child for purposes of
determining custody or visitation arrangements . . . the court shall consider the following†and
lists ten factors that, under the plain language of the statute, must be considered by the circuit
court. Here, the circuit court's chosen sanction prevented it from reaching the merits of the
custody and visitation issues and considering what arrangement would serve the best interests of
the children. The circuit court held that it had authority to dismiss father's appeal as a
punishment for his misconduct even if dismissal resulted in the subversion of the best interests of
three other people, namely, the parties' three minor children.
2
We disagree. As noted by the
Supreme Court of Virginia, the power of a court to sanction a litigant is not wholly
unconstrained. See Switzer, 273 Va. at 333-34. In Switzer, the Supreme Court reversed this
Court for dismissing an appeal as a sanction on an appellant who failed to pay a monetary
sanction in another case. Id. at 333. The Supreme Court held that dismissal under the
circumstances in Switzer "was an unduly severe sanction and was not narrowly tailored to
2 The circuit court cited Patrick v. Byerley, 228 Va. 691 (1985), in support of its holding.
In Patrick, a mother abandoned her son and the circuit court granted custody of the boy to his
stepmother. 228 Va. at 693-94. The biological mother appealed. Id. at 693. On appeal, the
Supreme Court of Virginia held that a child's welfare was the primary and paramount
consideration in a custody controversy but that "[t]his general rule . . . is subject to the exception
that 'a fit parent with a suitable home has a right to the custody of his child superior to the rights
of others.'†Id. at 694. The Supreme Court held that abandonment of a child is per se parental
unfitness and, as such, in a custody dispute between "an [unfit] parent and another, the general
rule becomes operative and the child's welfare is the dominant and controlling factor.â€
Here, the exception carved out by Patrick does not apply. The custody dispute in the
instant case is between two biological parents, and the fitness of either is not at issue. Thus, the
"general rule†is operative.
- 9 -
correct the problem presented.†Id. "As a standard, the Court ruled 'the imposition of a
particular sanction must be sufficient to deter [the offending] practices,' and the imposition of
the sanction requires the exercise of judicial discretion.†Moscona, 50 Va. App. at 253
(alteration in original) (quoting Switzer, 273 Va. at 331).
This view toward a case-by-case review of sanctions for contempt imposed in lower
courts is not unique to the Commonwealth. Other jurisdictions agree that "[c]ourts must . . .
evaluate the appropriateness of any given sanction, especially the 'draconian' sanction of
dismissal.†Greyer v. Ill. Dep't of Corr., 933 F.3d. 871, 877 (7th Cir. 2019). Other courts have
held that dismissal as a sanction for discovery violations was an abuse of discretion where there
was no judicial determination that willfulness or bad faith were present. See White v. White,
509 So. 2d 205, 209 (Miss. 1987). Similarly, dismissal was found to be an abuse of discretion
where the lower court's decision was based upon "a single alleged untruthful response in an
interrogatory.†See Wood v. Biloxi Pub. Sch. Dist., 757 So. 2d. 190, 191 (Miss. 2000).
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.
- 10 -
However, our conclusion that the sanction in this case was inappropriate does not mean
that a more measured sanction would be equally inappropriate. Ultimately, and as mother's
motion for sanctions specifies, the 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 courtâ€
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. Thus, there were sanctions available to the circuit court that would not have
affected the right of the children in this case to have their best interests considered by the circuit
court. Indeed, although the record does not clearly reflect that it was a sanction for misconduct,
the circuit court also ordered father to pay $76,363.46 for mother's attorney's fees.
In summary, we 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.
2. Whether the circuit court erred in failing to deem stepmother an expert witness
Several months after stepmother sent Dr. Nelson the threatening letter, father disclosed
stepmother as an expert for the first time. Father argued that, as such, she had permission to look
at the sealed report pursuant to the terms of the August 27, 2019 order. However, the circuit
court found that stepmother was "not a properly designated expert for [father] because her
expertise in hospice nursing is irrelevant to the issues presented in this child custody and
visitation matter.†In his assignment of error, father argues that the circuit court erred "as a
matter of law†by imposing sanctions for an "alleged violation†of an order "where [father]
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disclosed the psychological evaluation report of [Dr. Nelson] to his consulting and testifying
expert witness[,] [stepmother].â€
Although not clearly stated in his assignment of error, father argues on brief that
stepmother was a valid "consulting expert,†contrary to the circuit court's finding. "Whether to
qualify a witness as an expert rests largely within a trial court's discretion.†Tazewell Oil Co. v.
United Va. Bank, 243 Va. 94, 110 (1992). "The record must show that the proffered expert
witness has sufficient knowledge, skill, or experience to render him competent to testify as an
expert on the subject matter of the inquiry.†Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496
(1998). The fact that a witness is an expert in one field does not make him an expert in another
field, even though that field is closely related. See id. Additionally, appellate courts have long
held that "the expressed belief of a witness that he is an expert does not [i]pso facto require his
qualification.†Noll v. Rahal, 219 Va. 795, 800 (1979).
A circuit court can abuse its discretion one of three ways: if a relevant factor that should
have been given significant weight is not considered, if an irrelevant or improper factor is
considered and given significant weight, or if all proper factors, and no improper ones, are
considered, but the court, in weighing those factors, commits a clear error of judgment. See
Lawlor v. Commonwealth, 285 Va. 187, 213 (2013). Father does not argue that the circuit court
abused its discretion under any of the three Lawlor standards. Instead, he asserts that despite the
circuit court's refusal to admit stepmother as an expert, she was nevertheless permitted by the
terms of the order to see the report because she was a "consulting†expert for father. Father
offers no discernable legal support for such an exception.
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
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testify as an expert on the subject matter of the inquiry.†See Combs, 256 Va. at 496. 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.
3. Whether the circuit court erred by "failing to consider†father's motion to recuse Dr. Nelson
After the circuit court became aware of stepmother's letter to Dr. Nelson, father filed a
motion to recuse Dr. Nelson as an evaluator. The circuit court denied the motion, finding that
father filed it "in the furtherance of and in pursuit of improper purposes.†In his assignments of
error, father asserts that the circuit court erred by "failing to consider†his motion to recuse
Dr. Nelson for, inter alia, bias, conflicting interest, and impropriety.
The record clearly establishes that the circuit court, did, in fact, consider father's motion.
On September 30, 2020, the circuit court held a hearing on the motion at which father, pro se,
argued directly to the court; the transcript of father's oral argument in the record spans twelve
pages.
Following that hearing, the circuit court subsequently entered a written order that denied
father's motion to recuse Dr. Nelson and found that father "filed [the motion] in the furtherance
of and in pursuit of improper purposes.†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.
- 13 -
For these reasons, the circuit court did not err by "failing to consider†father's motion to
recuse Dr. Nelson.
4. Whether the circuit court erred and abused its discretion by awarding attorney's fees to
mother
Father argues that the circuit court erred by awarding attorney's fees to mother because
"based upon the equities of the case . . . the court should have ruled in favor of William
Winters.†His assignment of error accuses the circuit court of "failing to use and apply the
appropriate standard, inter alia, failing to reduce the fees for services that were on the record
neither necessary nor appropriate.†However, on brief, father 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.â€
We need not reach the merits of father's argument because Rule 5A:20(e) requires an
appellant's opening brief to contain the standard of review and the argument, including applicable
principles of law and authorities, in support of each of his assignments of error; unsupported
assertions of error do not merit appellate consideration. See Buchanan v. Buchanan, 14 Va. App.
53, 56 (1992). An appellant's failure to strictly adhere to the requirements of Rule 5A:20(e) permits
this Court to treat an issue as waived. See Parks v. Parks, 52 Va. App. 663, 664 (2008). Here,
father's assignment of error regarding the attorney's fees is waived because he failed to meet Rule
5A:20(e)'s requirements. Father's failure is particularly notable because in its January 8, 2021
order, the circuit court explained its reasoning and the legal authority for its decision to award
attorney's fees in detail as follows:
Based on the [c]ourt's discretion to determine whether to award
attorney fees and the amount of attorney fees to award, Ingram v.
Ingram, 225 S.E.2d 362, 364 (Va. 1976), and the [c]ourt's
consideration of "the circumstances of the parties†and "the
equities of the entire case,†Tyszcenko v. Donatelli, 670 S.E.2d 49,
57 (Va. Ct. App. 2008), [p]laintiff's [m]otion for [a]ttorney [f]ee
[sic] is GRANTED. Guided by the factors set forth by the Virginia
- 14 -
Supreme Court in Chawla v. BurgerBusters, Inc., 499 S.E.2d 829,
833 (Va. 1998), regarding the reasonableness of attorney fees, this
[c]ourt will permit [p]laintiff to recover attorney fees from
[d]efendant . . . .
The circuit court cited multiple cases in support of its award of attorney's fees, any of
which father could have disputed the application of, but instead, he made unfounded, generalized
statements that are clearly not arguments consisting of "principles of law and authorities†as
required by Rule 5A:20(e).
For these reasons, we affirm the circuit court's order granting mother attorney's fees.
5. Attorney's fees on appeal
Both parties request that this Court award them their attorney's fees incurred on appeal.
See Rule 5A:30(b)(1) ("In any case where attorney fees are recoverable under Title 16.1 or Title
20 relating to . . . custody, spousal or child support, or the control or disposition of a juvenile and
other domestic relations cases arising under Title 16.1 or Title 20 . . . a party may request an
award of attorney fees incurred in the appeal of the case . . . .â€). Pursuant to our authority
"to . . . determine whether the appeal is frivolous or whether other reasons exist for requiring
additional payment,†in light of the circuit court's error, we find that this appeal was not
frivolous and deny both parties' requests for appellate attorney's fees. See Robinson v.
Robinson, 50 Va. App. 189, 198 (2007) (quoting O'Loughlin v. O'Loughlin, 23 Va. App. 690,
695 (1996)).
Charleston, WV - Divorce lawyer represented appellant in appealing the J & D R court's order.
Father and mother were married, and three children were born of the marriage. On May
1, 2013, the circuit court entered a final decree of divorce and granted joint legal custody of the
children to both parents with primary physical custody to mother. In 2015, father married again
to Kristan Winters ("stepmotherâ€).
The parties engaged in a substantial amount of litigation regarding the custody and care
of their children in the years following the divorce. On May 8, 2019, after a hearing, the J&DR
court granted mother sole legal and primary physical custody of all three children with some
visitation to father. Father, as a pro se litigant, appealed the J&DR court's order to the circuit
court seeking amended custody and visitation. Notably, father represented himself for the
duration of his de novo appeal in the circuit court, authoring and filing numerous pro se motions
and objections.
Mother filed a motion in the circuit court for an updated custody and adult psychological
assessment to which father objected. The circuit court granted the motion and appointed
Dr. Nelson to perform the assessment and file a written report with the circuit court.
1 The circuit
court's order stated that Dr. Nelson's report be sealed and was only to
1 The 2019 evaluation was Dr. Nelson's fourth custody and psychological evaluation of
the parties since 2014. The parties had undergone previous psychological evaluations by
Dr. Nelson at the behest of the J&DR court.
- 3 -
be made available to the [c]ourt, the parties, their attorneys, and the
Guardian ad Litem, any experts . . . and any other persons as the
[c]ourt decides has a proper interest herein. Neither party may
publish, distribute, or in any way disseminate the contents of said
[report], any test results or opinions or conclusions of Nelson to
any third party using any means of communication without prior
[o]rder except as authorized by this [o]rder.
Dr. Nelson conducted the evaluation, and, on November 4, 2019, she submitted a written
report containing her findings to the circuit court.
On or about July 1, 2020, stepmother, who was not a party to the case, sent a
thirteen-page letter to Dr. Nelson in which stepmother claimed that Dr. Nelson committed
"multiple ethical violations†in her November 2019 evaluation and report. Stepmother had read
the sealed report and accused Dr. Nelson of making defamatory and misleading statements and
demanded that she "cease and desist.†If Dr. Nelson did not "cease and desist,†stepmother said
she would "be forced to take appropriate legal action against [Dr. Nelson] and will seek all
available damages and remedies.â€
Mother filed a motion to show cause against father as to why he should not be found in
contempt for violating the August 27, 2019 order by disseminating the sealed report to an
unauthorized party, namely, stepmother. Mother also asked the circuit court to deny father the
right to call stepmother as a witness to testify on his behalf and to "[f]ine, imprison, or otherwise
punish [d]efendant pursuant to this [c]ourt's contempt powers pursuant to [Code
§ 20-124.2(E)].†Additionally, she requested an award of attorney's fees.
Father submitted a pro se motion to recuse Dr. Nelson as a court-appointed psychological
evaluator. Additionally, on September 18, 2020, father disclosed stepmother as an expert
witness—for the first time—to the circuit court. The circuit court subsequently held a hearing
where it denied father's motion to recuse and found that father had violated the circuit court's
- 4 -
order by distributing the written report to an unauthorized recipient. At that hearing, the circuit
court stated,
The letter from Mrs. Winters to Dr. Nelson was threatening. It was
interference on behalf of a party with the court's own appointed
witness. It's appalling. I've never seen anything like it. I'm going
to impose the sanction of dismissing the appeal and remanding the
case back to [J&DR] court. . . . This is an offense against the court
and I have the authority to do that.
Father, by counsel, submitted a motion to rehear and reconsider the circuit court's
dismissal of his appeal from the J&DR court. The circuit court held a hearing on the issue of
mother's attorney's fees and father's motion to reconsider. It also entered a final order
memorializing its earlier findings from the hearing on recusing or removing Dr. Nelson. That
order read
It appearing to the [c]ourt that the motion to recuse/remove &
exclude Dr. Nelson filed by the defendant has been filed in the
furtherance of and in pursuit of improper purposes, as stated by the
[c]ourt ore tenus on September 30, 2020, it is therefore ORDERED
that the motion to recuse/move and exclude Dr. Nelson filed by the
defendant is hereby DENIED. And it is further ORDERED that
the motion for sanctions is hereby GRANTED based on the
[c]ourt's finding that defendant, William Winters, violated the
[c]ourt's [o]rder of August 27, 2019[,] and that Kristan Winter's
letter to Dr. Nelson amounted to interference on behalf of a party
with the [c]ourt's own appointed witness. And it is further
ORDERED that the appeals of the decisions of the J&DR court for
the City of Richmond regarding custody, visitation and child
support are hereby DISMISSED as a sanction for defendant's
above described conduct.
On January 8, 2021, the circuit court issued another order, this time granting mother's
request for $76,363.56 in attorney's fees and costs she incurred in the circuit court pursuant to
father's appeal. The January 8, 2021 order also denied father's motion to reconsider and
affirmed the circuit court's sanction of dismissal. The circuit court found that
[Father] violated the [c]ourt [o]rder of August 27, 2019[,] by
disseminating Dr. Michele Nelson's [r]eport . . . to Kristan Winters
who was not an authorized recipient of the [r]eport. . . . The
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[c]ourt concludes that Kristan Winters is not a properly designated
expert for [father] because her expertise in hospice nursing is
irrelevant to the issues presented in this child custody and
visitation matter. The [c]ourt further rejects [father's] contention
that Kristan Winters was . . . [father's] consulting expert. . . .
This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
Father explicitly assigns error to the circuit court's dismissal of his appeal as a sanction,
its denial of his motion to recuse Dr. Nelson, and the circuit court's award of attorney's fees to
mother. On brief, he also argues that the circuit court erred by refusing to designate stepmother a
consulting expert.
"[A] court's imposition of a sanction will not be reversed on appeal unless the court
abused its discretion in 1) its decision to sanction the litigant, or 2) in the court's choice of the
particular sanction employed.†Switzer v. Switzer, 273 Va. 326, 331 (2007). Similarly, "[w]e
review the circuit court's imposition of sanctions under Code § 8.01-271.1 pursuant to an abuse
of discretion standard.†Williams & Connolly, L.L.P. v. People for the Ethical Treatment of
Animals, Inc., 273 Va. 498, 509 (2007). Regarding the third assignment of error, "[w]hether to
award attorney's fees in a divorce matter is left to the sound discretion of the trial court.â€
Rinaldi v. Rinaldi, 53 Va. App. 61, 78 (2008). Finally, "ascertaining whether a proffered witness
is qualified to testify as an expert is a determination lying within the sound discretion of the trial
court.†Hinkley v. Koehler, 269 Va. 82, 91 (2005) (citing Wright v. Kaye, 267 Va. 510, 520
(2004)).
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B. THE SANCTION FOR CONTEMPT
1. Whether the circuit court had authority to dismiss father's de novo appeal as a sanction for
disobeying a court order
Father argues both that the circuit court lacked authority to impose any sanction
whatsoever and that the circuit court specifically erred as a matter of law by dismissing his
appeal as a sanction. Because these issues are closely related, we address them jointly.
In any case where custody or visitation of minor children is at issue, Code § 20-124.2(D)
grants circuit courts the authority to "order an independent mental health or psychological
evaluation to assist the court in its determination of the best interests of the child.†Here,
pursuant to its statutory authority, the circuit court ordered a psychological evaluation to be
performed. As stated, the circuit court mandated that the evaluation report be sealed and was
only to be seen by a select few people and others only as authorized by the circuit court.
Following a show cause hearing, the circuit court found as a fact that father violated that order.
This Court has previously held that "[i]n a show cause hearing, the moving party need only
prove that the offending party failed to comply with an order of the trial court.†Commonwealth
ex rel. Graham v. Bazemore, 32 Va. App. 451, 455 (2000) (quoting Alexander v. Alexander, 12
Va. App. 691, 696 (1991)). The offending party then has the burden of proving adequate
justification for his failure to comply. See Alexander, 12 Va. App. at 696.
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.
In direct contrast to father's assertion, the statutory scheme for court-ordered custody and
visitation explicitly grants circuit courts the authority to enforce its orders. In custody and
visitation disputes
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[t]he court shall have the continuing authority and jurisdiction to
make any additional orders necessary to effectuate and enforce any
order entered pursuant to this section . . . including the authority to
punish as contempt of court any willful failure of a party to comply
with the provisions of the order.
Code § 20-124.2(E) (emphasis added).
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. See
Bazemore, 32 Va. App. at 455 (quoting Alexander, 12 Va. App. at 696). Because father directly
violated the circuit court's order, it clearly had statutory authority to hold him in contempt of
court for "willful failure . . . to comply with . . . the order†and, as such, to punish him. See Code
§ 20-124.2(E).
In addition to the circuit court's statutory authority, it is well-established that "in the
courts created by the [state] constitution, there is an inherent power of self-defense and
self-preservation; that this power may be regulated but cannot be destroyed . . . that it is a power
necessarily resident in, and to be exercised by, the court itself.†Carter v. Commonwealth, 96
Va. 791, 816 (1899). "When one shows by his conduct a deliberate and studied effort to disobey
a valid order of a court, he subjects himself to punishment for contempt.†Laing v.
Commonwealth, 205 Va. 511, 515 (1964). The Supreme Court of Virginia has explicitly held
that "sanctions can be used to protect courts against those who would abuse the judicial process.â€
Moscona v. Shenhar, 50 Va. App. 238, 253 (2007) (quoting Oxenham v. Johnson, 241 Va. 281,
286 (1991)), aff'd sub nom Sasson v. Shenhar, 276 Va. 611 (2008). Therefore, the circuit court
possessed not only statutory authority but also inherent authority to sanction father for
disobeying an order. For these reasons, the circuit court did not abuse its discretion by
sanctioning father.
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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.
Code § 20-124.3 states that "[i]n determining best interests of a child for purposes of
determining custody or visitation arrangements . . . the court shall consider the following†and
lists ten factors that, under the plain language of the statute, must be considered by the circuit
court. Here, the circuit court's chosen sanction prevented it from reaching the merits of the
custody and visitation issues and considering what arrangement would serve the best interests of
the children. The circuit court held that it had authority to dismiss father's appeal as a
punishment for his misconduct even if dismissal resulted in the subversion of the best interests of
three other people, namely, the parties' three minor children.
2
We disagree. As noted by the
Supreme Court of Virginia, the power of a court to sanction a litigant is not wholly
unconstrained. See Switzer, 273 Va. at 333-34. In Switzer, the Supreme Court reversed this
Court for dismissing an appeal as a sanction on an appellant who failed to pay a monetary
sanction in another case. Id. at 333. The Supreme Court held that dismissal under the
circumstances in Switzer "was an unduly severe sanction and was not narrowly tailored to
2 The circuit court cited Patrick v. Byerley, 228 Va. 691 (1985), in support of its holding.
In Patrick, a mother abandoned her son and the circuit court granted custody of the boy to his
stepmother. 228 Va. at 693-94. The biological mother appealed. Id. at 693. On appeal, the
Supreme Court of Virginia held that a child's welfare was the primary and paramount
consideration in a custody controversy but that "[t]his general rule . . . is subject to the exception
that 'a fit parent with a suitable home has a right to the custody of his child superior to the rights
of others.'†Id. at 694. The Supreme Court held that abandonment of a child is per se parental
unfitness and, as such, in a custody dispute between "an [unfit] parent and another, the general
rule becomes operative and the child's welfare is the dominant and controlling factor.â€
Here, the exception carved out by Patrick does not apply. The custody dispute in the
instant case is between two biological parents, and the fitness of either is not at issue. Thus, the
"general rule†is operative.
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correct the problem presented.†Id. "As a standard, the Court ruled 'the imposition of a
particular sanction must be sufficient to deter [the offending] practices,' and the imposition of
the sanction requires the exercise of judicial discretion.†Moscona, 50 Va. App. at 253
(alteration in original) (quoting Switzer, 273 Va. at 331).
This view toward a case-by-case review of sanctions for contempt imposed in lower
courts is not unique to the Commonwealth. Other jurisdictions agree that "[c]ourts must . . .
evaluate the appropriateness of any given sanction, especially the 'draconian' sanction of
dismissal.†Greyer v. Ill. Dep't of Corr., 933 F.3d. 871, 877 (7th Cir. 2019). Other courts have
held that dismissal as a sanction for discovery violations was an abuse of discretion where there
was no judicial determination that willfulness or bad faith were present. See White v. White,
509 So. 2d 205, 209 (Miss. 1987). Similarly, dismissal was found to be an abuse of discretion
where the lower court's decision was based upon "a single alleged untruthful response in an
interrogatory.†See Wood v. Biloxi Pub. Sch. Dist., 757 So. 2d. 190, 191 (Miss. 2000).
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.
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However, our conclusion that the sanction in this case was inappropriate does not mean
that a more measured sanction would be equally inappropriate. Ultimately, and as mother's
motion for sanctions specifies, the 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 courtâ€
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. Thus, there were sanctions available to the circuit court that would not have
affected the right of the children in this case to have their best interests considered by the circuit
court. Indeed, although the record does not clearly reflect that it was a sanction for misconduct,
the circuit court also ordered father to pay $76,363.46 for mother's attorney's fees.
In summary, we 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.
2. Whether the circuit court erred in failing to deem stepmother an expert witness
Several months after stepmother sent Dr. Nelson the threatening letter, father disclosed
stepmother as an expert for the first time. Father argued that, as such, she had permission to look
at the sealed report pursuant to the terms of the August 27, 2019 order. However, the circuit
court found that stepmother was "not a properly designated expert for [father] because her
expertise in hospice nursing is irrelevant to the issues presented in this child custody and
visitation matter.†In his assignment of error, father argues that the circuit court erred "as a
matter of law†by imposing sanctions for an "alleged violation†of an order "where [father]
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disclosed the psychological evaluation report of [Dr. Nelson] to his consulting and testifying
expert witness[,] [stepmother].â€
Although not clearly stated in his assignment of error, father argues on brief that
stepmother was a valid "consulting expert,†contrary to the circuit court's finding. "Whether to
qualify a witness as an expert rests largely within a trial court's discretion.†Tazewell Oil Co. v.
United Va. Bank, 243 Va. 94, 110 (1992). "The record must show that the proffered expert
witness has sufficient knowledge, skill, or experience to render him competent to testify as an
expert on the subject matter of the inquiry.†Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496
(1998). The fact that a witness is an expert in one field does not make him an expert in another
field, even though that field is closely related. See id. Additionally, appellate courts have long
held that "the expressed belief of a witness that he is an expert does not [i]pso facto require his
qualification.†Noll v. Rahal, 219 Va. 795, 800 (1979).
A circuit court can abuse its discretion one of three ways: if a relevant factor that should
have been given significant weight is not considered, if an irrelevant or improper factor is
considered and given significant weight, or if all proper factors, and no improper ones, are
considered, but the court, in weighing those factors, commits a clear error of judgment. See
Lawlor v. Commonwealth, 285 Va. 187, 213 (2013). Father does not argue that the circuit court
abused its discretion under any of the three Lawlor standards. Instead, he asserts that despite the
circuit court's refusal to admit stepmother as an expert, she was nevertheless permitted by the
terms of the order to see the report because she was a "consulting†expert for father. Father
offers no discernable legal support for such an exception.
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
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testify as an expert on the subject matter of the inquiry.†See Combs, 256 Va. at 496. 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.
3. Whether the circuit court erred by "failing to consider†father's motion to recuse Dr. Nelson
After the circuit court became aware of stepmother's letter to Dr. Nelson, father filed a
motion to recuse Dr. Nelson as an evaluator. The circuit court denied the motion, finding that
father filed it "in the furtherance of and in pursuit of improper purposes.†In his assignments of
error, father asserts that the circuit court erred by "failing to consider†his motion to recuse
Dr. Nelson for, inter alia, bias, conflicting interest, and impropriety.
The record clearly establishes that the circuit court, did, in fact, consider father's motion.
On September 30, 2020, the circuit court held a hearing on the motion at which father, pro se,
argued directly to the court; the transcript of father's oral argument in the record spans twelve
pages.
Following that hearing, the circuit court subsequently entered a written order that denied
father's motion to recuse Dr. Nelson and found that father "filed [the motion] in the furtherance
of and in pursuit of improper purposes.†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.
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For these reasons, the circuit court did not err by "failing to consider†father's motion to
recuse Dr. Nelson.
4. Whether the circuit court erred and abused its discretion by awarding attorney's fees to
mother
Father argues that the circuit court erred by awarding attorney's fees to mother because
"based upon the equities of the case . . . the court should have ruled in favor of William
Winters.†His assignment of error accuses the circuit court of "failing to use and apply the
appropriate standard, inter alia, failing to reduce the fees for services that were on the record
neither necessary nor appropriate.†However, on brief, father 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.â€
We need not reach the merits of father's argument because Rule 5A:20(e) requires an
appellant's opening brief to contain the standard of review and the argument, including applicable
principles of law and authorities, in support of each of his assignments of error; unsupported
assertions of error do not merit appellate consideration. See Buchanan v. Buchanan, 14 Va. App.
53, 56 (1992). An appellant's failure to strictly adhere to the requirements of Rule 5A:20(e) permits
this Court to treat an issue as waived. See Parks v. Parks, 52 Va. App. 663, 664 (2008). Here,
father's assignment of error regarding the attorney's fees is waived because he failed to meet Rule
5A:20(e)'s requirements. Father's failure is particularly notable because in its January 8, 2021
order, the circuit court explained its reasoning and the legal authority for its decision to award
attorney's fees in detail as follows:
Based on the [c]ourt's discretion to determine whether to award
attorney fees and the amount of attorney fees to award, Ingram v.
Ingram, 225 S.E.2d 362, 364 (Va. 1976), and the [c]ourt's
consideration of "the circumstances of the parties†and "the
equities of the entire case,†Tyszcenko v. Donatelli, 670 S.E.2d 49,
57 (Va. Ct. App. 2008), [p]laintiff's [m]otion for [a]ttorney [f]ee
[sic] is GRANTED. Guided by the factors set forth by the Virginia
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Supreme Court in Chawla v. BurgerBusters, Inc., 499 S.E.2d 829,
833 (Va. 1998), regarding the reasonableness of attorney fees, this
[c]ourt will permit [p]laintiff to recover attorney fees from
[d]efendant . . . .
The circuit court cited multiple cases in support of its award of attorney's fees, any of
which father could have disputed the application of, but instead, he made unfounded, generalized
statements that are clearly not arguments consisting of "principles of law and authorities†as
required by Rule 5A:20(e).
For these reasons, we affirm the circuit court's order granting mother attorney's fees.
5. Attorney's fees on appeal
Both parties request that this Court award them their attorney's fees incurred on appeal.
See Rule 5A:30(b)(1) ("In any case where attorney fees are recoverable under Title 16.1 or Title
20 relating to . . . custody, spousal or child support, or the control or disposition of a juvenile and
other domestic relations cases arising under Title 16.1 or Title 20 . . . a party may request an
award of attorney fees incurred in the appeal of the case . . . .â€). Pursuant to our authority
"to . . . determine whether the appeal is frivolous or whether other reasons exist for requiring
additional payment,†in light of the circuit court's error, we find that this appeal was not
frivolous and deny both parties' requests for appellate attorney's fees. See Robinson v.
Robinson, 50 Va. App. 189, 198 (2007) (quoting O'Loughlin v. O'Loughlin, 23 Va. App. 690,
695 (1996)).
Outcome:
In conclusion, for the reasons stated above, the circuit court erred by dismissing father’s appeal but did not err by concluding that a sanction was appropriate, by failing to consider his motion to recuse Dr. Nelson, in refusing to admit stepmother as an expert, or in awarding mother her attorney’s fees. We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of William R. Winters v. Cleome J. Winters?
The outcome was: In conclusion, for the reasons stated above, the circuit court erred by dismissing father’s appeal but did not err by concluding that a sanction was appropriate, by failing to consider his motion to recuse Dr. Nelson, in refusing to admit stepmother as an expert, or in awarding mother her attorney’s fees. We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.
Which court heard William R. Winters v. Cleome J. Winters?
This case was heard in <center><h4><b>COURT OF APPEALS OF VIRGINIA </b> <br> <br> <font color="green"><i>On appeal from The CIRCUIT COURT OF THE CITY OF RICHMOND </i></font></center></h4>, WV. The presiding judge was ROBERT J. HUMPHREYS.
Who were the attorneys in William R. Winters v. Cleome J. Winters?
Plaintiff's attorney: Charleston, WV - Best Divorce Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: Robert L. Isaacs.
When was William R. Winters v. Cleome J. Winters decided?
This case was decided on March 15, 2022.