Khakee v. Rodenberger

FARAH KHAKEE v. DAVID W. RODENBERGER

Record No. 2001-18-4

COURT OF APPEALS OF VIRGINIA

AUGUST 27, 2019

UNPUBLISHED

Present: Judges Petty, Malveaux and Senior Judge Annunziata

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David Bernhard, Judge

Farah Khakee, pro se.

Camille A. Crandall (Hicks Crandall Juhl PC, on brief), for appellee.

Farah Khakee ("wife") appeals an order of the Fairfax County Circuit Court finding her in contempt for failing to pay certain sums to David W. Rodenberger ("husband"). Wife assigns fifteen errors to the circuit court, as discussed below. For the reasons that follow, we affirm the decision of the circuit court.

I. BACKGROUND

On appeal, this Court views the evidence in the light most favorable to husband, the party who prevailed below. O'Rourke v. Vuturo, 49 Va. App. 139, 145 (2006).

So viewed, the evidence establishes that wife and husband divorced on July 30, 2013. The parties agreed that they would have joint legal custody and that wife would have primary physical custody of their two minor children. Their agreement was memorialized in a final custody and visitation order of the circuit court.

The parties also entered into a settlement agreement. The agreement provided that husband would pay wife "an award of spousal and child support for one year from . . . July 1st [2013]" and that the award would be "nonmodifiable" and "without prejudice . . . to [husband] regarding child support." Both parties affirmed that the agreement, which was read into the record, "resolv[ed] all issues in [the] case," including equitable distribution, child support, spousal support, and the grounds for the divorce. The agreement was silent on attorney's fees.

The circuit court's final order of divorce incorporated the settlement agreement. It also provided that husband would maintain health and dental insurance for the children and that certain expenses that were not covered by husband's insurance would be shared by the parties. In its final order, the circuit court noted its jurisdiction pursuant to Code § 20-107.3(K) "for the entry of such further Orders as may be necessary to effectuate or enforce the terms of this Order, the Custody Order and the parties' Agreement."

Subsequently, husband filed a motion to modify custody, and wife filed a motion for continued spousal support and modified child support. On May 18, 2015, the circuit court entered an order on these motions. The court transferred primary physical custody of both children to husband and awarded him child support. It also established a specific pro rata basis upon which the parties would reimburse each other for the reasonable and necessary medical and dental expenses of the children that were not covered by husband's insurance. Further, the court awarded husband attorney's fees to be paid by wife within one year. The court reserved the issue of wife's request for spousal support and dismissed her request at a subsequent hearing.

On November 30, 2015, husband filed a petition for rule to show cause alleging that wife had violated the terms of the May 18, 2015 order by failing to pay her share of certain medical expenses. The circuit court entered an order on March 10, 2016, which found wife in contemptand ordered her to pay husband her share of unreimbursed medical expenses and husband's attorney's fees.

On June 28, 2016, this Court entered an order disposing of wife's appeal of several orders entered by the circuit court. See Khakee v. Rodenberger, No. 0008-16-4 (June 28, 2016). We held that husband was entitled to reasonable attorney's fees incurred in connection with wife's appeal of the orders and remanded for the circuit court "to set a reasonable award of attorney's fees and costs incurred by [husband] in this appeal." Id. at *5.

On December 6, 2017, wife filed another motion to modify spousal and child support. Husband filed a motion to dismiss. Following a May 23, 2018 hearing, the circuit court granted husband's motion to dismiss with prejudice and awarded him attorney's fees and costs. Wife appealed that order to this Court, and the matter remained on appeal during the proceedings at issue here. See Khakee v. Rodenberger, No. 0990-18-4 (Va. Ct. App. Apr. 9, 2019).

Husband filed a petition for rule to show cause on May 16, 2018. He requested that the circuit court find wife in contempt for failure to comply with its May 18, 2015 and March 10, 2016 orders and requested that wife be ordered to pay child support arrears, her prorated portion of unreimbursed medical and dental expenses, and his existing awards of attorney's fees with interest. Husband further asked that wife be ordered to pay the attorney's fees and costs he incurred in pursuing his show cause petition. Also on May 16, 2018, husband filed a motion to establish the attorney's fees and costs awarded by this Court on June 28, 2016, and to establish a payment plan for those fees and the fees awarded by the circuit court on March 10, 2016.

On October 19, 2018, wife filed motions for leave to file petitions for spousal support and pendente lite spousal support and to modify or suspend her child support obligation.¹ At aNovember 9, 2018 hearing on the motions, husband noted that wife had appealed the denial of her previous motion with respect to support matters and that the appeal was still pending before this Court. The circuit court denied wife's motions, citing Greene v. Greene, 223 Va. 210 (1982), and explaining to wife that "you noted an appeal and . . . the noting of that appeal . . . transfers jurisdiction from the lower court to the appellate court."

On November 20, 2018, the circuit court heard husband's petition for rule to show cause and his motion to establish attorney's fees and a payment plan. Husband detailed the amounts owed to him under the existing court orders. He also provided an attorney's fees affidavit for the expenses incurred in connection with the petition for rule to show cause and motion to establish attorney's fees. In addition, husband also noted that wife was a licensed New York attorney with assets, and in prior proceedings she had produced documents showing she held a retirement account worth over half a million dollars. Thus, husband argued, "she does not have the ability to argue that she can not [sic] pay."

Wife, appearing as a self-represented party, attempted to introduce documents relating to what she described as "the underlying problem" of child and spousal support. Husband objected on hearsay and relevance grounds. The circuit court sustained husband's objection, noting that such matters were "collateral" and "not something that I can deal with here." The court made clear that "there's two questions here. One is do you owe the money? And . . . they'veintroduced orders and they've had testimony. Two, can you pay it?" The court acknowledged that wife might not prefer to liquidate some of her retirement holdings in order to satisfy any purge provisions but noted that that "doesn't mean you don't have the ability to pay."

Wife testified on her own behalf. She stated that she did some work for a law firm and also that she owned a timeshare. Wife questioned the court's "authority to do anything that's not in [the] settlement agreement," which she claimed provided for the parties to each pay their own attorney's fees. Wife reiterated that she believed the extant court orders were "very unfair" and "illegal" and that husband "fraudulently procured the initial contempt finding" against her.

The circuit court found that husband was owed the amounts of child support arrears, unreimbursed medical expenses, and attorney's fees that he claimed and that wife had the funds to pay, and that it would be "up to [wife] how she wants to [pay] it." The court told wife that she would be held in civil contempt and jailed if she did not pay by January 11, 2019. It also reiterated that in enforcing its prior orders, its "discretion" was "restricted. . . . I can't collaterally -- I can't look behind the orders to what, if any, defects are there."

The circuit court entered a November 20, 2018 contempt order which detailed the sums owed to husband. The order explicitly excluded the attorney's fees awarded in connection with wife's motion to modify support, the denial of which was on appeal with this Court. Wife was ordered to pay husband by January 4, 2019, in order to purge her contempt, but the order did not include the court's directive from the bench that wife would be jailed if she failed to pay.

Wife filed a motion for reconsideration and for a suspending order on December 11, 2018. On December 17, 2018, the circuit court denied the motion in an order that stated that wife "filed her motion on the last day the Court would have had jurisdiction to change its order,which thus did not reach the [court] in time to consider a suspending order as no copy was left with Chambers . . . directing the matter be given the [court's] immediate attention."

Wife appealed the circuit court's contempt order to this Court.

II. ANALYSIS

As an initial matter, we note that as the party alleging reversible error by the circuit court, "[t]he burden is on [wife] . . . to show that reversal is justified." D'Agnese v. D'Agnese, 22 Va. App. 147, 153 (1996); see also Thomas v. Thomas, 40 Va. App. 639, 644 (2003). Further, this Court will not "search the record for error[s] in order to interpret [wife's] contention and correct deficiencies in a brief." West v. West, 59 Va. App. 225, 235 (2011) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992)). Nor is it this Court's "function to comb through the record . . . in order to ferret-out for ourselves the validity of [her] claims." Martin v. Commonwealth, 64 Va. App. 666, 674 (2015) (quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc)). We also note that a self-represented litigant "is no less bound by the rules of procedure and substantive law than a...