Fairfax Bar Association October 15, 2018

Family Law Section CLE: Avoiding, Filing, and Defending Rules to Show Cause in Family

Law Cases

FAIRFAX BAR ASSOCIATION CLE SEMINAR

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Table of Contents

Agenda

Speaker’s Biography

AVOIDING, FILING AND DEFENDING RULES TO SHOW CAUSE

IN FAMILY LAW CASES

Date: Monday, October 15, 2018 Time: 6:00 PM – 7:00 PM Location: Fairfax County court house, 4th floor jury room, 4110 Chain Bridge Road, Fairfax, VA 22030 Presenters

I. Introduction – Mary C. Huff 2 minutes : Brian M. Hirsch, Esq. and Carol L. Ehlenberger, Esq.

II. Substantive Presentation - Brian M. Hirsch and Carol L. Ehlenberger 38 minutes

I. DRAFTING ENFORCEABLE AGREEMENTS AND ORDERS A. Drafting an enforceable provision. B. Order must be valid C. “Reasonableness” (Reasonable is as reasonable does.)

II. BRINGING A RULE TO SHOW CAUSE A. Purpose of a Rule B. Requirements of a Rule to Show Cause C. Service of the Petition and Rule D. Burden of Proof E. Standard of Proof F. Requested Remedies

i. Types of contempt ii. First offense iii. Second and subsequent offenses, can ask for incarceration. iv. Court has broad power to award damages. v. Conditional Remedies vi. Other Remedies vii. Special Commissioner

G. Ethical Considerations

III. DEFENDING RULES TO SHOW CAUSE A. Show the action was

i. Not willful ii. Justified iii. Inability to Pay

B. Motion to Strike C. File a Response to the Petition for Rule to Show Cause if you want attorney’s fees or

other relief. D. Pre-Filing Injunction

E. Purging Contempt

III. View from the Bench – Hon. Brett A. Kassabian 10 minutes

IV. Questions – Mary C. Huff 10 minutes

Speaker Biographies

Hon. Brett A. Kassabian Fairfax County Circuit Court Born in Washington, D.C., January 16, 1960; Judge Kassabian graduated from Wake Forest University School of Law in 1985, where he was a member of the Wake Forest University Law Review. After being admitted to the Virginia State Bar in 1985, he served as Senior Assistant Commonwealth’s Attorney for the Fairfax County Commonwealth’s Attorney’s Office. In early 1994 be became a principal in the law firm of Kassabian & Kassabian, P.L.C., engaged in the general practice of law, with an emphasis on criminal law. Judge Kassabian served as the Fairfax City Prosecutor. He was also a Legal Instructor at the Northern Virginia Criminal Justice Academy from 1996 through 1998. He served on the Fairfax Bar Association Judicial Selection Committee, as Chairman and as a member, and the Criminal Justice Advisory Board. Judge Kassabian served as General Counsel of the Fairfax Bar Association, 2008-09, and Secretary, 2009-January, 2010. Judge Kassabian was appointed a Substitute Judge for the General District Court and the Juvenile and Domestic Relations District Court of the 19th Judicial District from 1998 until his appointment to the Fairfax Circuit Court Bench on February 1, 2010. Carol L. Ehlenberger, Esq. Hirsch & Ehlenberger, P.C. Carol joined the firm in 1997 and became a partner in 2004. Carol's practice is focused exclusively on all areas of family law. She is listed in "The Best Lawyers in America", Washingtonian magazine’s Top Divorce Lawyers and Northern Virginia magazine's Top Lawyer Listing. She is a member of the Family Law section of the Fairfax Bar Association and is on the Fairfax Bar Association’s Circuit Court Committee and Domestic Relations Subcommittee. She is also an associate member of the Loudoun Bar Association and member of the Family Law Section of the Virginia State Bar. She is also a Neutral Case Evaluator for Fairfax County Circuit Court. Admitted: Virginia (1997) Education: Lehigh University (B.A. Social Relations), (cum laude) 1991 American University, Washington College of Law (J.D.) (magna cum laude) 1994

Brian M. Hirsch, Esq. Hirsch & Ehlenberger, P.C. Brian has been a divorce attorney litigating and settling cases in Northern Virginia since 1985, and is certified by the Virginia Supreme Court in Family Mediation. He is listed in "The Best Lawyers in America", Washingtonian magazine's Top Divorce Lawyers, Northern Virginia magazine’s Top Divorce Lawyers and Virginia Business magazine's "Legal Elite". Brian was presented with a 2017 Leaders in the Law award by Virginia Lawyer's Weekly for his extensive statewide work and leadership in Virginia family law. He is the editor of the Virginia Family Law Quarterly, the official publication of the Family Law Section of the Virginia State Bar. Brian is a past Chair of the Virginia State Bar Family Law Section Board of Governors. He has been a Fellow of the American Academy of Matrimonial Lawyers since 2004. He is also a current member of the Virginia Bar Association Family Law Coalition, and serves on the Virginia State Bar Fifth District Disciplinary Committee. He is also a Commissioner in Chancery for Fairfax County Circuit Court.

AVOIDING, FILING AND DEFENDING RULES TO SHOW CAUSE IN FAMILY LAW CASES

Brian M. Hirsch, Esq.

Carol L. Ehlenberger, Esq. Hirsch & Ehlenberger, P.C.

12110 Sunset Hills Road Reston, VA 20190

I. DRAFTING ENFORCEABLE AGREEMENTS AND ORDERS A. Drafting an enforceable provision.

i. Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed upon such person and the command must be expressed rather implied. See, Aviles v. Lewis, 18 Vap UNP 1780174 (2018) quoting Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977).

ii. Avoid aspirational or loose language, such as “The parties shall endeavor

to . . . .” iii. Be specific about:

(a) What is to done or refrained from. (b) By whom it is to be done. (c) When something is to be done. (d) If applicable, consequence(s)or remedies for failure to comply.

Example 1:

COLLEGE EXPENSES

. The parties shall use their best efforts, based on their financial situations at the time, to provide for a college education for each of their children.

Example 2:

COLLEGE EXPENSES. The parties have established certain accounts for the children. These accounts shall be preserved for this purpose unless the parties agree otherwise, and each party shall account to the other for all expenditures made from these accounts. The wife shall be the primary custodian and shall provide the husband with an accounting for these funds upon reasonable request and in no case less frequently than annually.

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Example 3:

COLLEGE EXPENSES

. The following terms shall govern the children’s college or other post-high school education:

A. The parties shall pay for a college education of a bachelor’s degree or four years, whichever is less, or other post-high school training (up to four years) for each of their children, subject to the terms herein. The parties’ responsibility shall include tuition, room, board, books, laboratory, and athletic and required school fees. B. The parties have established the following custodial accounts for the children college or other post-high school education: Account Beneficiary Custodian/Owner i. VA 529 (6321) Ashley Bob/Husband $89,250.00

Approx. Bal.

ii. VA 529 (4936) Jimmy Joan/Wife $67,400.00 C. The foregoing accounts shall be used exclusively for each respective child/beneficiary toward the expenses referenced in subparagraph A above and shall first be used to pay for such expenses before the parties are required to contribute to same. In the event there are any funds in a child’s designated accounts once s/he has graduated from a four-year college or other post-high school training, but no later than the child attaining age 25, then all remaining funds shall be paid to such child without restriction, after payment of any applicable penalties and taxes. In the event of a child’s death, any funds remaining in any accounts referenced herein shall be given to the surviving child, after payment of applicable penalties and taxes. D. Each party shall provide the other party account information, passwords and other information in order to view the accounts online which the other party is custodian/owner of, for the sole purpose of viewing the activity in such account and not to make any transactions. E. Once the foregoing accounts are fully depleted, the parties shall equally pay for such above-described expenses not covered by scholarship awarded to or grants received by such child; provided, however, that in no event shall the parties' total responsibility for each childeachsemester exceed the then-existing costs charged for such semester by the University of Virginia at Charlottesville to a Virginia resident, with on-campus housing and on-campus meal plan. Nothing herein shall obligate eitherof] the children to attend the University of Virginia, but reference to the charges of said institution is made for the purpose of determining the parties’ maximum obligations herein. F. Notwithstanding the foregoing, neither party shall be obligated to provide any funds toward a child's college education or other post high-school training as aforesaid after that child attains twenty-five (25) years of age.

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B. Order must be valid

“It is, of course, well settled that disobedience of, or resistance to a void order, judgment, or decree is not contempt . . . . This is so because a void order, judgment, or decree is a nullity and may be attacked collaterally.”[Citations omitted.] Leisge v. Leisge, 224 Va. 303, 306-307(1982). See also, Bonhotel v. Watts, 16 Vap UNP 0040163 (2016).

C. “Reasonableness” (Reasonable is as reasonable does.)

i. Is something mutually agreed upon? If so, then both have to agree. You can’t infer agreement from a lack of response.

ii. If add “with neither party unreasonably withholding his or her consent,”

then no one can be unreasonable. iii. “Reasonable” is what the judge says is reasonable if the parties cannot

agree. iv. Define what may or may not be reasonable if possible. For instance,

• “It shall not be unreasonable for a party to withhold his or her consent to a summer camp which exceeds $500 per week.”

• “In no event shall either party be required to pay an aggregate of $1,500 for a child per calendar year for such child’s extracurricular activities.”

• “It shall not be unreasonable to deny a request to modify the custodial schedule if the custodial parent has previously made plans with the child where a deposit was required or other funds have been expended for an event occurring during such requested time.”

II. BRINGING RULES TO SHOW CAUSE A. Purpose of a Rule

Enforcement is defined as “[t]he act or process of compelling compliance with a . . . decree or agreement.” Enforcement, Black's Law Dictionary (9th ed. 2009). An action to enforce a contractual obligation often originates with a rule to show cause. See Pellegrin v. Pellegrin, 31 Va. App. 753, 767-68, 525 S.E.2d 611, 618 (2000) (holding that wife's motion for a rule to show cause seeking compliance with a property settlement agreement was an “action for enforcement” and awarding attorney's fees under the terms of the agreement). Jones v. Gates, 68 Va. App. 100, 107 (2017)

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B. Requirements of a Rule to Show Cause

i. A rule to show cause is instituted by:

a. Verified (i.e., under oath)petitionVirginia Code § 8.01-274.1,which provides:

§ 8.01-274.1. Motion or petition for rule to show cause for

violation of court order. — Except as otherwise provided by law, any party requesting a rule to show cause for a violation of a court order in any civil action in a court of record shall file with the court a motion or petition, which may be on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. The motion or petition shall include facts identifying with particularity the violation of a specific court order and be sworn to or accompanied by an affidavit setting forth such facts. A rule to show cause entered by the court shall be served on the person alleged to have violated the court order, along with the accompanying motion or petition and any affidavit filed with such motion or petition. (emphasis added)

b. Rule to show cause should contain the date, time and place for a

hearing. ii. Drafting Tips: Be as detailed as you can.

a. Cite the provision violated. b. State how the provision was violated. Includespecific facts

including, but not limited to the date, time, place and who was there.

c. Tell the effect of the violation. (1) The child said to the mother, “What does ‘f*ck you’ mean,

Mommy.”[Said by child immediately after father cursed out mother in front of child.]

(2) The child started to cry inconsolably. (3) The father had scratch marks across his face from the attack

by the mother, which resulted in long gouges across his left cheek. (see Exhibit 1: Photo of Father’s Face After Attack). As a result, the father was required to seek medical attention (see, Exhibit 2: Discharge Notice from Fair Oaks Hospital).

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(4) As a result of the father’s failure to pay child support to the mother, the mother has had to borrow $2,000 from her parents, is getting food and used clothing from the local church and is living in a friend’s basement with the parties’ three minor children as she was evicted from her apartment.

d. State efforts taken to prevent the violation before it happened

and/or to remedy the violation after it happened before filing. e. If there was an Agreement that provides for attorney’s fees, cite the

provision.

C. Service of the Petition and Rule

i. Virginia Code § 8.01-274.1 requires that a “rule to show cause entered by the court shall be served on the person alleged to have violated the court order, along with the accompanying motion or petition and any affidavit filed with such motion or petition.”

ii. Virginia Code § 8.01-314 requires that a rule be personally served onthe

party who has allegedly violated the court’s order. Service upon counsel,even when counsel has indicated that she is accepting it on behalf of herclient, is not effective service.

§ 8.01-314. Service on attorney after entry of general appearance by such attorney. — When an attorney authorized to practice law in this Commonwealth has entered a general appearance for any party, any process, order or other legal papers to be used in the proceeding may be served on such attorney of record. Such service shall have the same effect as if service had been made upon such party personally; provided, however, that in any proceeding in which a final decree or order has been entered, service on an attorney as provided herein shall not be sufficient to constitute personal jurisdiction over a party in any proceeding citing that party for contempt, either civil or criminal, unless personal service is also made on the party. (emphasis added)

D. Burden of Proof

The moving party has the burden of proof, as with other motions. See, Alexander v. Alexander, 12. Va. App. 691, 696 (1991)

E. Standard of Proof

i. There does not appear to be any Virginia appellate cases that definitively establish the requisite standard of proof.

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ii. The Court of Appeals of Virginia has held that the standard of proof required in a civil contempt case is not guilt beyond a reasonable doubt as in criminal cases.” UMWA v. Covenant Coal Corp., 12 Va. App. 135, 147, 402 S.E.2d 906, 912 (1991).

iii. The Fourth Circuit held “[c]ivil contempt cases must be established by clear and convincing evidence….” Allstar Lodging, Inc. v. Rookard, 2013 U.S. Dist. at LEXIS 160845 (W.D. Va. Nov. 12, 2013);In re: General Motors Corp., 61 F.3d 256, 258 (4th Cir. 1995)

F. Requested Remedies

i. Types of contempt (a) Criminal – punitive (b) Civil –coercive

Proceedings for contempt of court are of two classes, those prosecuted to preserve the power and vindicate the dignity of the court and those to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil, remedial and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the original suit was instituted. (citations omitted) Local 333B, United Marine Div. v. Com., 193 Va. 773, 779 (1952).

ii. First offense

The court can find a party in contempt, order the party to comply with the Order, and order him orher to pay the other side’s legal fees. This is the typical treatment for a firstoffense. Accordingly, most rules to show cause for a first offense do not

include a request for incarceration.

iii. Second and subsequent offenses, can ask for incarceration.

Second and subsequent offenses often do justify incarceration, and Virginia Code § 20-115 authorizes the court to incarcerate a party for a willful violation of a court order. Courts often resist putting someone in jail if they can. The typical “last ditch” attempt the court gives a party is to perform the required act by a certain day or to report to the sheriff for incarceration. This approach does seem to be effective in most circumstances.

§ 20-115. Commitment and sentence for failure to comply with order or decree. — Upon failure or refusal to give the recognizance provided for in § 20-114, or upon conviction of any party for contempt of court in (i) failing or refusing to comply with any

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order or decree for support and maintenance for a spouse or for a child or children or (ii) willfully failing or refusing to comply with any order entered pursuant to § 20-103 or § 20-107.3, the court (i) may commit and sentence such party to a local correctional facility as provided for in § 20-61 and (ii) may assign the party to a work release program pursuant to § 53.1-131 or to perform public service work; in either event the assignment shall be for a fixed or indeterminate period or until the further order of the court. However, in no event shall commitment or work assignment be for more than twelve months. The sum or sums as provided for in § 20-63, shall be paid as therein set forth, to be used for the support and maintenance of the spouse or the child or children for whose benefit such order or decree provided.

Tip – If a Judge is hesitant to incarcerate, ask the Court to impose a sentence but suspend all but one day. This will give the contemnor a taste of jail and may have the effect of getting them to comply before being incarcerated for a longer period.

iv. Court has broad power to award damages “A proceeding for civil contempt partakes more of the nature of a remedial

civil proceeding than . . . a criminal proceeding. Its main purpose is to procure the imposition of a punishment which will afford remedial relief to the parties injured by the violation of the injunction. Not only is the proceeding instituted at the instance of the injured parties, but they are parties to it; and it is properly instituted and tried as a part of the injunction suit. In contempt proceedings of this nature the punishment . . . imposed is not limited to a fine and/or imprisonment. . . . In appropriate cases the violator may be punished by. . . an award of damages against him in favor of the injured party sufficient to indemnify him for the pecuniary loss occasioned to him as a result of the act or omission which violated the injunction having injured or damaged property or rights which he was entitled to have protected or preserved by the injunction.”Leisge v. Leisge, 224 Va. 303, 308(1982) (emphasis in original)

v. Conditional Remedies

a. Even where a court has found that a party could be held in contempt, it is the court’s discretion whether to enter a contempt finding and impose sanctions. Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894 (1991). A suspended sentence can be imposed since the court must use the “least possible power adequate to the end proposed.” Hicks v. Feiock, 485 U.S. 624 (1988) (emphasis added).

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b. Can ask for the contemnor to be found in contempt and sentenced in 10 days to give the contemnor a chance to purge in the meantime, in cases where money is owed or a party has to sign a deed, etc.

vi. Other Remedies

Have the “crime fit the punishment.” For instance:

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Crime: Misbehavior at the children’s school or sporting event. Punishment: Party is enjoined from attending the children’s school or sporting events for 6 months. Crime: Parent failed to turn over the child for a holiday. Punishment: Other parent gets choice of one or two holidays which the contemnor would otherwise have in the future. Crime: Continued failure to pay support Punishment: Party is to place a certain sum with the clerk of court for advance payment of support under VA Code § 20-114.

§ 20-114. Recognizance for compliance with order or decree. — Upon the entry, or thereafter, of any order or decree for support and maintenance for a spouse or a child or children in a pending or concluded divorce suit, a mensa et thoro or a vinculo matrimonii or suit for separate maintenance, the court in its discretion may require the giving of a recognizance, with or without surety, for compliance therewith, by the party against whom such order or decree is entered.

vii. Special Commissioner

a. It is not unusual that one party wants to sell the marital home

orother property and the other party does not. Virginia Code § 20-107.3(K)(3) permits the court to appoint a special commissioner to sellproperty. A special commissioner is compensated at the rate of five percentfor the first $100,000 and two percent for all amounts above $100,000. See, Virginia Code § 8.01-109.

b. However, special commissioners often hire real estate agents to

help them tosell the marital home and other real property. So, use of a specialcommissioner could involve both the special commissioner’s and real estateagent’s commissions.While appointment of a special commissioner is not theideal way to sell property, it is useful when there is a recalcitrant seller, largemonthly carrying costs, and/or foreclosure is imminent.

c. Can add provision in settlement agreements which provide:

Special Commissioner. The parties confer authority upon a court of competent jurisdiction to make such further orders as are necessary to promote and complete the sale and settlement of the Marital Home pursuant to this paragraph, including, without limitation, to appoint a Special Commissioner of Sale and to

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allocate the cost of the same, and to make an award of attorney’s fees in connection therewith.

G. Ethical Considerations

It is important how you communicate when you are discussing a ruleto show cause withopposing counsel. Rule 3.4(i) states that a lawyer shall not“threaten to present criminal ordisciplinary charges solely to obtain anadvantage in a civil matter.” The typical approach is tosay that you areconsidering “enforcement” of the court’s order if certain action is not taken bythe opposing side. The more vague you can be, the better. For example: “If Ms. Jones does not immediately comply with the terms of the Consent Custody Order, we will have no other choice but to take all necessary action to enforce the terms of the Order.” “If Mr. Smith does not immediately comply with the terms of the parties’ Mediated Marital Settlement Agreement, we will be forced to seek all available remedies to enforce the Agreement.”

III. DEFENDING RULES TO SHOW CAUSE A. Show the action was

i. Not willful. Some judges will hold that a party has violated an order, but not find that

the violation was “contemptuous,” and thus not hold a party in contempt.Despite not finding a party in contempt, often Judge’s will grant some type of relief.

ii. Justified.

Once a party has shown failure to comply with an order by the other party, then the offending party has the burden of proving justification for his or her failure to comply. Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, ___ (1991).

iii. Inability to Pay. A party cannot be held in contempt if there was an inability to pay.

However, the inability has to have been non-voluntary. B. Motion to Strike

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i. Made at the end of the petitioner’s case if petitioner failed to prove his or her case.

ii. In effect a motion to strike is a motion for summary judgment and is

measured by the same standard. See, Rule 1:11 of the Rules of the Supreme Court of Virginia; Austin v. Shoney's, Inc., 254 Va. 134, 486 S.E.2d 285(1997); and Owens v. DRS Automotive FantomWorks, Inc., 288 Va. 489, 764 S.E.2d 256(2014).

C. File a Response to the Petition for Rule to Show Cause if you want attorney’s fees

or other relief. D. Pre-Filing Injunction

i. Where the petitioner has filed multiple baseless rules to show cause, a court can issue a pre-filing injunction.

ii. In determining whether a pre-filing injunction is substantively warranted,

a court must weigh all the relevant circumstances, including (1) the party's history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions.See, Madison v. Board of Supervisors, ___ Va. ___ 170934(2018).

E. Purging Contempt

Since civil contempt is to coerce behavior, if your client is found in contempt, determine how the client can purge the contempt (e.g., sign a listing agreement, pay back child support, disclose whereabouts of child, etc.).