PETER J. TEDFORD v. LEANNE DEAN-BRYANT
Record No. 1340-03-4
COURT OF APPEALS OF VIRGINIA
September 28, 2004, Decided
The father then moved in the Warren County JDR court to amend the custody and visitation orders, and moved for contempt. The JDR court declined to hold the mother in contempt, denied both parties' requests for attorney fees. The father appealed the issues of custody, visitation, contempt, attorney's fees, and costs of the guardianad litemto the Warren County Circuit Court. The trial court entered a final order further modifying visitation, but again denying the father's petition for a change in custody. On its own motion, the trial court modified the child support.
- Whether the trial court erred by increasing child support?
- Whether the trial court erred in failing to hold the mother in contempt of court for violating the custody order?
- Whether the trial court erred in awarding attorney's fees to the mother?
- Whether the trial court erred in awarding the guardianad litemfees?
1) Whether the trial court erred by increasing child support?
The court held that there was no appeal on the issue of child support, the circuit court erred in addressing the matter and entering an order modifying child support. The Warren County Circuit Court never had jurisdiction over the divorce matter and, thus, had no jurisdiction over child support as part of any divorce proceeding. In reaching resolution on the custody and visitation issues, therefore, the Warren County Circuit Court was solely exercising appellate jurisdiction over the JDR cases. In this appellate capacity, the circuit court was bound to limit its order to those issues the parties had appealed. Because no appeal was taken on the issue of child support, the issue could not have been raised for the first time in the circuit court proceedings.
2) Whether the trial court erred in failing to hold the mother in contempt of court for violating the custody order?
The Court held that "proving the elements of contempt cannot, and does not, divest the trial court of its discretion to enforce its orders through that power." It is well established that "use of contempt powers is clearly subject to the discretion of the trial court."Sapp v. Commonwealth, 263 Va. 415, 425, 559 S.E.2d 645, 650 (2002). Even where a court has found that a party to litigation has violated an order of the court and could be held in contempt, the trial court retains its discretion whether to enter the finding of contempt and impose sanctions.Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894, 7 Va. Law Rep. 1827 (1991). Simply put, proving the elements of contempt cannot, and does not, divest the trial court of its discretion to enforce its orders through that power.
3) Whether the trial court erred in awarding attorney's fees to the mother?
The Court held that "An award of attorney's fees is a matter submitted to the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion." Further held that "the fact that the trial court determined that the legal requirements for a change in custody were not met and that no benefit flowed from the litigation to the family beyond that which had occurred in the JDR court, it was not an abuse of discretion for the court to award the mother attorney's fees which, incidentally, represented less than one-third of the amount requested."
4) Whether the trial court erred in awarding the guardianad litemfees?
The Court held that "the award of guardianad litemfees, like the award of any attorney fees, is committed to the sound discretion of the trial court."
That the trial court exceeded its jurisdiction in modifying the 1998 child support order, and vacate that modification accordingly. Affirmed, in part, and reversed, in part.
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