Estate of Hackler v. Hackler

602S.E.2d 426 R. HACKLER ESTATE OF Lewis Janice HACKLER. W.

Record No. 1827-03-2. Appeals Virginia, Court

Richmond.

Sept. 21, 2004. (The Firm, P.L.L.C., Law Eliades George-Eliades Adrienne briefs), for Hopewell, appellant. on & (Englisby, Vaughn Englisby, Englisby Englisby,

Denis C. Chesterfield, brief), appellee. for ANNUNZIATA, CLEMENTS Judges Present: McCLANAHAN. McCLANAHAN, A. Judge.

ELIZABETH rulings several appeals The R. Hackler estate Lewis Hackler, R. proceeding between Lewis from a divorce arising contends deceased, Hackler. Husband’s estate and Janice W. (1) in a conservator appointing trial court: erred (2) not abating erred by during proceedings; and/or husband; (3) divorce action death dismissing the and, $77,437; its discretion awarding abused erred in wife fees, paid by husband. Wife to be awarding conservator’s appellant question, an which whether presents additional have attor- parties requested Both timely appeal. failed to follow,we For affirm ney’s costs. the reasons fees and proceedings part remand for further reverse part, this opinion. consistent with

I. Background in 1999. separated married in 1984 and and wife Husband for complaint filed bill In November husband prop- divorce, adjudication parties’ sought and husband pendente lite requested cross-filed and erty rights. Wife relief. lite pendente entered a

On November alia, support wife that husband order inter providing, enjoined parties and that the for her health needs provide until property marital concealing selling, disposing, from court, making for reasonable except further expenditures living fees, expenses, attorney’s court costs and reasonable costs associated with the case. immediately

Almost the husband violated court’s orders. Over the next of couple years, the court hearings held several the court’s pendente by address husband’s failure abide lite orders and his failure to respond discovery. Several times, the spousal court ordered husband to pay support and bills, to provide medical health and medical insurance cover- age for her, wife and deliver her medication to to desist from or selling transferring assets, otherwise marital and to re- spond to discovery, interrogatories including and a motion for production of documents.1 court Subsequently, the twice found husband The court contempt. against entered hus- cause, band a rule to show citing

defendant’s continued of violations this Court’s previous orders regarding spousal support, health bills plaintiff of the by insurance, not covered dissipation assets, of marital the defendant’s continued failure to answer discovery previously propounded by case, plaintiff this which discovery the defendant has been ORDERED previously by this Court to answer.

The order directed the husband to why show cause the court:

should not any entertain and all appropriate motions under 4:12 Rule of the Court, Rules the Virginia Supreme including, to, but not a limited or appointing conservator guardian to manage the marital assets in the control of the defendant until a Final Decree can be entered in this case. to, interrogatories requested alia, 1. The regard information with inter returns, accounts, accounts, including savings tax checking financial accounts, accounts, money deposit, market certificates retirement accounts, accounts, accounts, accounts, etc., stock bond trust real estate, $5,000 check, a Internal Revenue Service refund which husband negotiated by signing have signature, cashed wife's and with- drawals had husband made from the financial accounts. The motion production sought years of documents six of state and federal tax copies previous year's returns and of the statements of financial accounts in which he had an interest. hearing. at show cause The appear Husband did not its as previous him in orders cited contempt found situation, appoint- the court remedy cause order. To show of all funds and accounts receipt to take ed conservator separate court entered a under husband’s control. The conservator, which outlined the conservator’s appointing the under husband’s duties to receive the funds and accounts accounts, control, pay an husband’s accounting maintain court, by provide as and to obligations ordered previously parties. accounts to both monthly report conservator, the court held several appointing After from updates reports hearings more for status receive In of the court’s spite appointment the conservator. conservator, court’s orders hus- further violations reported. band were

Then, reported in it to the court that June of the had and that his son was executor estate. husband died for the Husband’s counsel moved immediate transfer estate, to arguing funds under the conservator’s control the to was abated due husband’s death. Wife’s that the case take a nonsuit represented counsel to the court she would estate, argued that the court’s orders pursue the but also The trial required rulings. in further were still effect abate, continued the matter until court denied the motion outlin- counsel to submit letters September ordered time, At that the conservator ing respective positions. their $5,700. the for a statement of his fees to court submitted rule on the con- the court could still Wife submitted that in of civil con- tempt contended that cases dispositions. She impose an the court could injunction for the violation of tempt or afford the imprisonment in the form of a fine or punishment requested the She remedial relief for violations. injured party amount of damages fifty the the court order remedial had of of the funds husband transferred the amount percent of out the estate. divorce action for submitted that

Counsel husband husband, relieving court of death of thus upon abated any jurisdiction to any make further determinations ease, including ruling contempt disposition. on the Husband’s that the counsel asserted deceased could not himself of purge if on contempt and the court ruled it contempt disposition, punish would Counsel that the argued estate. also court could not determine remedial it had damages because no regard evidence before it with precise amounts trans- ferred, estate, of value the marital whether marital estate even exceeded the assets control the conservator. Husband’s counsel further argued that wife would her receive therefore, portion and, of husband’s estate she did not need to awarded remedial relief. argument After hearing transferring the assets under estate, control of the conservator to the the court issued an letter, opinion September dated ordering, among sums, other $77,437 that the pay conservator wife in order to purge husband contempt. The court also ordered the $5,700 conservator pay services, itself its and to file a final accounting. requested Husband’s counsel of dis- stay pending bursement appeal.

The court entered a “Final on January Order” 2003. “[ajfter The provided the final accounting [by the Court, conservator] reviewed and approved by this this Court will end the cause.”

In February husband’s counsel moved the court on his stay rule disbursement pending appeal. funds The granted request for stay, but the posting ordered $100,000 a appeal bond. 18, 2003,

On June a of as result an earlier teleconference parties, with the the court abated, ordered the February order funds, denied the to stay motion of disbursement and ordered funds to be disbursed request to wife at her unless and until posted supersedeas husband a $100,000. bond the amount of The court stated the order was final for of purposes conservator, not for appeal, but whom the court found to a duty under to file continuing a final accounting once the funds were disbursed according the court’s orders. husband, of counsel, of filed a notice

Husband’s on behalf 2003, 11, by order of the August 2003. In July on appeal in this court, for husband estate substituted husband’s a (cid:127)written statement of facts matter. The court entered September 2003. Analysis

II. brief, on question appeal asking a presents In her wife reply it before this Court because properly whether appellant “final file notice after court’s timely appeal a of failed January of 2003. contends that the January order” Wife a final only all in the case and left disposed of the issues conservator, the cause. accounting by effectively ending addressing before question must decide wife’s we Because it first. questions, we discuss husband’s estate’s January The 2003 Order Was Not A. Purposes Appeal Final for of a Order Court, satisfy this an must appeal appellant an perfect To applicable as set forth jurisdictional requirements In Court. addi- Virginia Supreme statutes and Rules of 17.H07, § court, the trial Code filing tion notice with days the date thirty of filed from appeal notice “shall be within order, conviction.” judgment of decree or any final 5A:6(a). Otherwise, 8.01-675.3; appeal Rule “[n]o see also 5A:3(a) times Id. Rule states “[t]he shall be allowed....” appeal mandatory.” ... are prescribed filing for the notice of thirty appeal did not file a notice of within Husband’s estate January trial 2003 order. entry court’s days However, July an file appeal husband’s estate did court’s order June thirty days which was trial within “ it ‘Final that was be considered which stated wish to should either side appeal, purposes Order’ a notice husband’s estate did file Because appeal____” order, we must decide January from appeal appealable. final and that order was whether 1:1 Virginia Supreme Rule of the Rules of the Court states: orders,

All final ... judgments, decrees shall remain under the control of the trial court and subject be modified, vacated, or twenty-one for suspended days after entry, longer.... entry the date of and no The date of of order, final any judgment, or decree shall be the date the order, judgment, signed by judge. or decree is the “Generally final of 1:1 speaking, purposes order Rule ‘is disposes subject, one the whole all gives which the relief with contemplated, provides completeness reasonable for giv- sentence, ing effect to the nothing and leaves done the save to superintend ministerially cause execution ” James, 481, 474, 133, order.’ James v. 263 Va. 562 S.E.2d (2002). See also Daniels v. Truck & Equip. Corp., 205 Va. (citations (1964) omitted); S.E.2d Erikson Erikson, Va.App. 451 S.E.2d (citations omitted). case,

In this the trial signed a document labeled January 31, “Final Order” 2003. The last paragraph order shall reads: “The Conservator then file a final account ing with this Court. After accounting the final is reviewed and Court, approved by this this Court will end cause.” This language indicates that the trial court considered that cause still open was until it reviewed and approved the conser vator’s final accounting. point case, At that in the the final accounting was than just more ministerial action for the purpose executing the accounting order. The final was estate, crucial regard with what inwas disbursements death, made by prior husband to his and whether relief granted by the was satisfied. The order stated that the court would end the cause accounting after final approved. reviewed and It not say did the cause was ended.

The court did end cause in its order of June stating, “This is a appeal, Order ‘Final Order’ for purposes should side to appeal----” point, either wish At that trial under stayed further of the funds

court had disbursement appeal of an bond. upon posting the conservator’s control the Therefore, accounting not neces- conservator’s final ending appeal. cause for sary purposes to January 2003 order was Accordingly, we hold final, a order. estate filed a appealable not Because husband’s order, appeal thirty days notice of within of the June have to its jurisdiction appeal. we consider Questions

B. on Appeal Husband’s Estate’s (1) appeal: raises on questions Husband’s estate four in a during erred conservator appointing whether court (2) proceedings; by abating whether the erred (3) death; the divorce action husband’s dismissing and/or ruling the court erred in that wife be awarded whether $77,437 in amount of from funds controlled judgment (4) and, conservator; whether the court its discre- abused fees, paid by to be husband. awarding tion conservator’s Trial to Authority Appoint 1. The Has a Conservator Court lite pendente court entered a On November alia, inter parties enjoined that the from providing, order until further selling, concealing property marital disposing, court, expenditures for except making order of the reasonable fees, expenses, attorney’s court costs and reasonable living for later, than month costs associated with the case. Less one contempt violating to hold husband in for wife moved the court entered a the court’s order. On the court December lite its order. pendente reaffirming previous second motions couple years, response to wife’s Over next contempt violating the court’s orders to hold husband in for the court entered several failing respond discovery, (1) spousal as pay support more orders husband to: requiring (2) ordered; health and medical provide medical bills and pay (3) wife; wife’s medication insurance deliver coverage (4) marital her; selling transferring or otherwise desist from assets; discovery The viola- discovery. respond interrogatories respond failure to tions included husband’s returns, accounts, requesting information tax financial in- accounts, accounts, savings cluding checking money market accounts, accounts, of deposit, certificates retirement ac- stock counts, accounts, etc., estate, accounts, bond trust real $5,000 check, Internal Revenue refund Service which husband negotiated by signing have cashed or wife’s signature, and withdrawals husband had made from the financial ac- counts, documents, produce years failure to six including of state and tax copies federal returns and of the previous year’s statements of financial accounts which he had an interest. January 16, 2002,

On the court entered rule to show cause against husband citing, things, other among husband’s dissipation of marital assets and continued failure to answer the discovery propounded by the wife that he was previously answer, ordered to much of which related to financial issues and marital assets. to Husband was show cause the court why should not entertain motions under Rule 4:12 including ap- a pointing manage conservator to the marital assets control of the husband. appear

Husband did not at the show cause and hearing, court found him in a contempt. As remedy, appoint- ed a conservator to take of all receipt funds and accounts under husband’s control. order appointing The the conserva- tor required conservator to receive the funds and accounts control, under them, husband’s an accounting maintain of pay obligations ordered, husband’s as previously and a provide monthly report on the parties. accounts to both provides

Rule 4:12 that a court in which action an is pending may sanction a party for failure to obey discovery orders. “Rule gives 4:12 trial court broad discretion in determin- sanctions, ing any, what if imposed upon will be a who litigant fails to discovery.” Woodbury v. Courtney, respond timely to 651, 654, (1990). (b)(2) 293, 239 Va. 391 S.E.2d 295 Subsection of the “may Rule states that the court such make orders regard to the as just” provides options failure are and several for orders that the court may options take. One of the listed

64 for contempt powers the court to invoke its failure

authorizes (b)(2)(D) orders. allows comply discovery to with Subsection treating contempt as of court the court to enter “an order an a any except order submit to obey failure orders or mental examination.” physical in contempt

A court a for party “[disobedi find process, judgment, or resistance ... lawful decree ence 18.2-456(5). of the court.” in, punish contempt is inherent and as power The as, It is to the proper ancient courts themselves. essential law, enforce to enable courts to their administration orders, decrees, and to the confi- judgments preserve respect rights without which people dence cannot maintained enforced. people Commonwealth, 395, 5, Va.App. 392, 2 345 S.E.2d 7 v. Carter (1986) (citations omitted). IV, § 14; art. See also Va. Const. 418, Co., 450, Buck’s 221 31 Range v. Stove & U.S. Gompers 501, (1911); 492, 55 Nicholas v. Common L.Ed. 797 S.Ct. wealth, 315, (1947); 321, 306, 42 Forbes v. 186 Va. S.E.2d 309 81, (1908); Va., 82 107 60 S.E. State Council Va. 823, 581, Commonwealth, 828-29, 107 Va. 57 S.E. Yoder v. Commonwealth, 807-08, (1907); v. 96 Va. S.E. Carter (21 Gratt.) (1899); Commonwealth, Wells v. Va. Commonwealth, (1871); Va.App. Wilson (1996). contempt, Upon finding 8-9 S.E.2d decrees judge discretionary power trial has enforce § court. Code 18.2-456. and the of power charged duty are with

Courts clothed with are the of the law. Decrees mandates maintaining dignity power and must have to enforce them if of the courts courts degree pun- of society is to maintained. The be organized of the discretion the contempt is within sound ishment trial court. Commonwealth, 333B, v. 193 Div. Va.

Local United Marine (1952). 786, 159, adjudication An 773, 71 167 S.E.2d if find that “only [the court] will be we contempt reversed Brooks, 696, Va.App. 15 Barnhill v. its discretion.” abused

65 Wells, (1993) v. 704, 209, Wells (citing 427 S.E.2d 215 12 31, (1991)). 36, 891, Va.App. 894 S.E.2d punishment contempt

“The a civil ‘is proceeding adapted necessary party what to afford the injured remedial relief for or done violation injury by damage injunction property rights to his which were under ” Rainey City Norfolk, protection of the injunction.’ (1992) 968, 974, Deeds v. 210, Va.App. S.E.2d (citing Gilmer, 262, 157, (1934)). 162 Va. 174 S.E. 78-79 Certain ly, in a situation a party where is twice found to be in contempt repeatedly refuses to answer discovery requests identification, relating status, to asset dissipa use/misuse tion, can, discretion, court within its determine that Rule 4:12 appropriate appoint conservator, sanction is to which allows both parties access to the financial information sought through discovery preserves the marital assets being dissipated from further by prior one the final party decree. It would be anomalous chancellor’s broad powers would, contempt law, as a matter never include power appoint an asset in cases such manager where repeated discovery violations relate to asset identification and dissipation.

Moreover, in addition to the authority provided by 4:12, Rule the trial has authority § court pursuant to Code 20- 103(A)(vii) to enter may proper during of a pendency divorce suit in order preserve the estate.2 In pertinent part that code section provides: 20-103(A)(vii) Although 2. wife support did not cite Code of the conservator, appointment appellate court’s of the is not required ignore legal support a correct basis of the court’s assertion, judgment. Contrary to the dissent’s Rule 5A:18 does not apply appellee only grounds to the because it deals with asserted as a judgment. generally, "basis of reversal" of the trial court's See Schweik- Hogan, er v. 457 U.S. 102 S.Ct. 73 L.Ed.2d 227 (1982) ("the statutory argument although appellees, raised Court, presented in the District be decided on the basis court"); developed Commonwealth, record Va.App. in that Harris v. (en banc) (“Although S.E.2d the Com- argument monwealth raised appeal, this for the time we first have 66 divorce, maintenance separate annulment

In suits may, matter at jurisdiction any ... the court the having a to this in the discre- pending pursuant chapter, time suit court, ... any may proper tion of such make order that be (vii) it to estate of either so that be preserve spouse, the to which made forthcoming may meet decree be suit.... section, appoint court is to a this authorized

Under This fiduciary prevent dissipation to funds. statute an the court even broader basis which provides in a to enter orders divorce suit. pending authorized such Assembly enacting The clear intent General 20-103(A)(vii) empower prevent § was to trial courts suit, in during of marital assets a order to dissipation pending that the are with the court’s comply assure funds available ruling. final equitable distribution trial supports judge’s findings The record required of a conservator were in this case because services orders, continually violating refusing the court’s husband respond discovery regarding financial information about assets, Therefore, dissipating marital the estate. 4:12, or by Rule contempt power by whether authorized 20-103, authority the court statutory by Code had provided the infor- power appoint the conservator to determine require long appellee that ‘Rule does not an to raise an issue held 5A:18 appeal, the issue is at trial before it be considered where ” (citation omitted)). support ruling.’ court offered to reversal of a trial doctrine, Additionally, right-result-wrong-reason we under the should judgment legally court it rests on correct affirm a trial if rationale rejected Driscoll expressly even if the trial court that rationale. v. Commonwealth, 452, 312, (1992). 449, Va.App. 417 S.E.2d 314 All more, the trial never addressed the we should affirm when winning litigant never advocated legally correct because the rationale only exceptions right-result-wrong-reason doctrine in- to the it. The require a right where the reasons factual determination not volve cases record, Harris, at Va.App. see at 576 S.E.2d in the pleadings,” in the an affirmative defense that must "asserted involve (1963), Eason, or serve v. 131 S.E.2d Eason Va. constitutionally prohibited cross-appeal subterfuge for a as a Commonwealth, case, 269 S.E.2d Hart Va. criminal inapplicable to this case. —all preserve in the estate requested discovery mation wife proceed. and allow the suit to

2. The Divorce Abated Proceedings

upon the Death of Husband Husband died before the trial court entered a final decree. argues Husband’s estate that the divorce suit abated upon the court death of husband and the trial was therefore jurisdiction divested of its proceedings. agree. We The trial court is authorized to divorce proceedings. conduct “[Jjurisdiction statutory, in divorce suits is purely conferred clear, Griffin, 46, 50, detailed v. 250 language.” Sprouse Va. 770, 458 S.E.2d 772 v. (citing Lapidus, 226 Lapidus Va. 575, 578, 786, (1984); 311 Steinberg S.E.2d 788 v. 11 Steinberg, 323, (1990)). Va.App. 328-29, 507, 398 S.E.2d 510 20- provides court, side, 96 circuit chancery “The on the shall jurisdiction have of suits for annulling affirming or marriage and for divorces.”

However, divorce suit abates when one party “[a] dies while the suit is pending merits; and before a decree on the this is because the death marriage, terminates the thus ren dering the divorce suit moot as it parties’ relates marital status.” 250 Sprouse, Va. at 458 S.E.2d at 772 (citing Simpson Simpson, Va. S.E. denied, (1934), cert. 295 U.S. 55 S.Ct. 79 L.Ed. (1935)). Actio moritur cum personalis persona per —a action person. Sult., sonal dies with the See Grubb’s Adm’r v. (32 Gratt.) (1879). Therefore, Va. proceed divorce ings death, abated husband’s divesting the court of jurisdiction over cause.

3. The Trial Court Erred in on the Ruling Contempt $77,437

Disposition and Awarding Wife During of the proceedings, course the court twice found husband in contempt failing the court’s obey orders on support but discovery, ruling disposition deferred of those June findings. On husband’s counsel in- died, court and moved the court that husband had formed the the conservator to the funds under control of to disburse the argued cause had abated. Wife because the estate of civil and that in cases were still effect contempt orders injunction, of an could for the violation contempt or imprisonment, in the form of fine impose punishment for the violations. remedial relief She injured party afford the in the amount damages the court to order remedial requested funds husband had fifty of the amount percent of the marital assets. transferred out continued counsel’s motion and The court denied husband’s 2002. The court held another hear- September until the case the funds to the estate motion to transfer ing on husband’s hus- of to what extent took under advisement issue he in of the fact that contempt, spite still be held band could thereafter, opinion the court issued an. Shortly was dead. $77,437 purge to pay the conservator wife ordering letter pendente lite for the court’s contempt violating of husband out of the marital estate. order not to transfer funds lite orders pendente di- authority to enter The court’s § 20-103 allows statutory. Code vorce suits divorce, including preserve “to for pending make orders suit meet forthcoming that it spouse, so be the estate either § 20- made in the suit.” Code may which any decree 103(A)(vii). provides: § also Code 20-71 trial, complain- motion of the upon

anyAt time before defendant, enter such ant, the court with notice to the just, support for the providing order as seems temporary lite, children, both, pendente or or spouse neglected contempt. for of the order as for violation may punish lite pending orders rests on the pendente to enter Jurisdiction which abates payor spouse, of the divorce suit. Death lite order void. pendente action, also renders divorce upon terminate or maintenance spousal support for Decrees see also Code 109(D); § party. of either the death 20— orders, lite 20-107.1(A). case, which pendente In this

69 violated, void to have became was found husband to his death. due proceedings of the divorce abatement the court erred then whether becomes question The once the for of those orders disposition contempt entering § 20-71 allows and husband was dead. Code orders were void lite order as pendente violation of a punish the court contempt. of court are of two

“Proceedings contempt for to vindi preserve power prosecuted classes —those court, preserve and those instituted to dignity cate the The former are rights private parties. and enforce the nature; in their the latter are civil and punitive criminal and Commerce, 230, Drake v. Nat’l Bank 168 Va. remedial.” Nevitt, In re 239, 302, 117 F. 448 (citing 190 S.E. 306 (C.C.A.8 492, Gompers, Mo.1902); 418, 221 55 U.S. 31 S.Ct. U.S., Terminal R.R. Ass’n Louis v. 797; St. L.Ed. U.S. (1924)). This second class of 45 S.Ct. 69 L.Ed. 150 sanctions, compensatory contempt includes civil contempt which, suggests, compensate plaintiff as the name non-compliance losses sustained because of the defendant’s Bagwell Mine United of a court’s disobedience order. Workers, rev’d on (1992), 463, 475, 423 S.E.2d Va. grounds, other 129 L.Ed.2d 642 U.S. S.Ct. Ward, Powell v. (1994); 425 S.E.2d Va.App. (1993). bar, contempt In the case at the court’s order falls this within second class. $77,437 pay court ordered the conservator to wife out

The contempt.” “in purge plaintiff husband’s funds “Compensatory essentially looking, actions are backward seek- money ing compensate through payment the claimant acts of disobedience.” United damages by past for caused Co., 123, 129, Mine v. Coal 12 Va.App. Workers Clinchfield (1991). 899, 402 902 S.E.2d cases, punished by

In appropriate the violator the status quo him to as it existed before the forcing restore him as if that status violation, by adjudicating against or damages an award of quo interrupted had not been 70

against him in favor of the injured party sufficient indemnify pecuniary [her] loss occasioned to as [her] a result of act or omission injunction which violated the having injured or damaged property or rights which [she] protected entitled have or preserved by injunc- tion.

Deeds, 262, 162 atVa. 79. See also French v. 174 at S.E. Clintwood, Town 562, 569, 798, 203 Va. 125 S.E.2d 802 Deeds, (citing 261, 162 79); Va. at 174 S.E. at Rainey, 971, 14 at Va.App. 421 at 212 (citing Leisge v. Leisge, S.E.2d 303, 308, 224 538, (1982)). Va. 296 S.E.2d 540-41 The court was attempting to compensate wife for husband’s removal of assets out of the marital estate in violation of the court’s pendente lite orders. civil contempt proceeding

“[A] orig between the inal parties to litigation and is [the] instituted and as tried Powell, part of the main cause.” 560, 15 at Va.App. 425 (citations omitted). S.E.2d at 543 It is a proceeding ancillary in support of the divorce suit and its decrees. Eddens Eddens, v. 511, 521-22, (1948); Va. 50 S.E.2d v. Lindsey Lindsey, (1932). Va. 164 S.E. When, case, as in this jurisdiction to enter a decree in ends, main jurisdiction cause no as to purely survives matters ancillary to that object.3 That is because civil contempt “[a] may be prosecuted the cause out of which it arose and not 333B, as a separate proceeding____” Local United Marine Div., at S.E.2d at 164. See also Carbon Fuel Va. Workers., Co. United Mine (4th 517 F.2d Cir. 1975) (holding “a civil contempt proceeding is in effect a continuation of the main action and party therefore a to a suit distinguished 3. The case at Sprouse, bar is from the case of 250 Va. Supreme 458 S.E.2d in which the Court held that the court jurisdiction retained of funds held in an escrow account until further case, order of the court. In this the court did not create a res over jurisdiction which it retained in rem after husband's death. As dis- below, cussed belonged the funds in control of the conservator to the death, estate husband's and should have been transferred to the estate’s administrator at that time.

71 imprisoning an may upon appeal fining not order review from a except appeal him for in connection with contempt civil (citation omitted)). “A in the main action” judgment final by a court which lacks judgment, decree or order entered matter, or subject or of the which jurisdiction parties particular to make or enter the power lacks the inherent Commonwealth, 520, Robertson v. involved, 181 Va. is void.” omitted); see (1943) (citations Mardula 352, 536, 25 S.E.2d 358 Mendelson, (2000) 338, v. 120, 125, 341 Va.App. 34 538 S.E.2d 358). Robertson, at 25 S.E.2d at (citing 181 Va. Moreover, action contempt personal Contempt is a person of the recalcitrant.” Edwin B. “is directed at (3d Pleading Lite’s and Practice Meade, § Equity 301 ed. “ 1952) ‘It has been the constitu (emphasis original). long adjudicate tional rule that a court cannot claim or personal jurisdiction person it has over the obligation unless ” Hayes Hayes, Va.App. v. 499, 505, defendant.’ 3 351 S.E.2d Vanderbilt, v. Vanderbilt (quoting 354 U.S. (1957)). 416, 418, 1360, 1362, 77 S.Ct. 1 L.Ed.2d 1456 “No he is directly binding person order can be made on a unless court, can his or interests in the properly rights neither Mardula, if at 126 property, any, Va.App. be foreclosed.” omitted). (citation A contempt n. 538 S.E.2d at 341 n. 3 fine in court imposed present not unless the defendant be fine why or has served with a rule to show cause been Commonwealth, v. imposed. Higginbotham not should be (1965). 295, 142 Va. S.E.2d judge impose person court or shall a fine ... [N]o [a] any contempt, of its unless he process disobedience present either be in the court at the time or shall have been why served with a rule ... him to show cause requiring appear fine and shall have failed to imposed should and show cause. States, 19.2-11. See also Pettibone United U.S. (1893). 546-47, Although 13 S.Ct. 37 L.Ed. while against

the court entered a show cause order husband alive, order, he was still and the order following show hearing matter, cause on the contempt did not contemplate any fine would imposed against be husband. The order $77,437 awarding wife the was not entered until after husband dead, he, was dead. Once obviously, husband was could not court, present be nor could he be served rule to show cause why the fine should not imposed. be See Code 19.2- 11. addition,

In a civil contempt appropri sanction is not ate where a defendant no ability purge has to himself. Hus band, personally, had no to ability purge himself of the fine. contempt may Punishment imposed in a civil contempt it is proceeding when established that the contemnor is to comply unable with the terms of the order. “Where compliance impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.” United States v. Rylander, 460 U.S. 103 1548, 1552, (1983). S.Ct. 75 521 L.Ed.2d

Furthermore, although the court may have been at tempting to compensate any wife loss occasioned to her as violations, a result of husband’s no there is evidence in the injured amount, record that wife was in such an or that the court even determined that she was entitled relief. “[T]he court may only impose a compensatory fine ‘measured in some degree by pecuniary injury caused the act of disobedi ence.’” United Mine Workers v. Corp., Covenant Coal Va.App. S.E.2d (quoting Gom 499). pers, U.S. at 31 S.Ct. at Leisge, See also atVa. 296 S.E.2d at 541. Such remedial fine should be on complainant’s based evidence of actual loss. See Carbon Co., Fuel 517 F.2d at 1350. Although husband was ordered funds, not to transfer marital his doing so did not ineluct ably lead to the conclusion that wife was entitled to one-half of the monies he attempt transferred. The court cannot fashion an equitable distribution award in a cause that has abated due to husband’s death it no longer because has no jurisdiction parties’ property.4 proof over the There was and, therefore, damaged by that wife had been the violation she was not entitled to have such remedial im- punishment Deeds, at at posed upon husband. See 162 Va. S.E. Although authority 79. the court had in its power for his death punish contempt, husband husband’s has denying right effect of forever wife the to have the court make findings any pecuniary loss she have sustained due to acts of during pending husband’s disobedience divorce suit. jurisdiction dispose

The court did not have of the con- abated, once the tempt holding divorce suit therefore the $77,437 directing wife out of pay conservator “in purge husband’s estate order to plaintiff contempt” Accordingly, void. we hold that the court erred in ruling contempt disposition $77,437.5 awarding wife 4. The Trial Court Abused Its Discretion in Awarding Against Conservator’s Fee Husband appointed

The court the conservator pursuant its contempt power, 4:12, by authorized Rule because of hus- 46, distinguishing Sprouse, 4. See footnote 3 this case from Va. 250 458 770, S.E.2d in which the court had created a fund over which it jurisdiction. retained jurisdictions 5. Other have also held that trial do not courts have jurisdiction dispose findings contempt if based on the violation of pendente upon lite orders that become void abatement of divorce Socha, proceedings party’s due to a death. See Socha v. 183 Wis.2d 337, 338-39, (holding (Ct.App.1994) 515 N.W.2d 339 n. 2 that the jurisdiction punish temporary court loses violations of a orders in party divorce action once a to that “[i]t action dies that is elementa- ry personal jurisdiction subject a court must have matter jurisdiction against contempt party”); to enter an order of see also Inc., Teaching Computer 203, Corp. Applications Ill.App.3d v. Courseware ("A (1989) judgment 138 Ill.Dec. N.E.2d contempt underlying cannot be sustained on review where the order is subject-matter personal jurisdiction.”); void because the court lacked Pettygrove Pettygrove, v. 132 Wis.2d 393 N.W.2d that, law, (noting party proceeding at common "when one to divorce action, during pendency dies of the the cause of action abates and jurisdiction”). the court loses violation of 4:12 continuing band’s the court’s orders. Rule obey “to requires party failing pay the reasonable fees, order, expenses, including attorney’s by caused un- justified less the court finds that the substantially failure was or that other circumstances make an award of expenses 4:12(b)(2). unjust.” Rule An award of actual costs and dam- ages for civil enforcement all contempt includes reasonable expenses enforcing incurred the civil contempt.6 conservator The rendered services on behalf of hus properly paid band and was from estate pursuant husband’s However, §§ 64.1-171 to -173. of the expenses none by incurred the conservator after husband’s death can be estate, imposed on his for the purpose because conservator extinguished death the husband. Because the court appointed prevent the conservator to husband from orders, further the court’s violating and those orders became death, void upon compliance husband’s future was not re words, died, In other quired. once husband the need for the obviated, conservator was and his role ceased. See e.g., Major (E.D.Va.1980) Co., Orthopedic Equip. F.Supp. obviated, (holding purpose contempt had been therefore the court could not determine that other goal would be served holding party contempt). death, son, husband’s P.

Upon husband’s Thomas Hackler, Sr., Upon became executor of estate. husband’s died, notification that it upon husband had was incumbent action, court to transfer the possession abate funds of the conservator to husband’s personal representative 64.1-57.1, § accordance with Code and determine the reason able amount of the conservator’s fee for which husband was dies, his responsible. When a decedent title to real estate law, subject vests in his heirs at to divestment immediately Broaddus, 727, 742, 130 144 a valid will. Broaddus v. Va. S.E. (22 Gratt.) 794, 798-99 (citing Elys Wynne, Va. 4:12, 20-99(5) provides also a court 6. In addition to Rule costs, authority equity justice may require.” to award "as (28 Gratt.) (1872); Ex’ors, Mills v. Mills’ 69 Va. (1877)). party proceeding Because the estate was to the not in no reason for the conser- contempt, there was role, vator to continue in its or for the after fees incurred charged against husband’s death to be the estate.

We remand this issue the trial court with instructions to ascertain the reasonable amount of the that conservator’s fee was accrued at the time of death on husband’s June 2002. Francis, (31 Gratt.) 283, (1879). See Francis v. Va. amount, The conservator then submit that judgment as a order, arose from lawful court as a claim against §§ husband’s estate. See Code 64.1-171 to -173.

C. Attorney’s Appeal Fees parties Both request this Court award costs and attor ney’s fees incurred on appeal. O’Loughlin See v. O’Loughlin, 98, 100 (1996). 23 Va.App. Upon S.E.2d a review record, we find litigation addressed appropriate and substantial issues and that party generated neither unneces sary delay expense Therefore, in pursuit of its interests. requests are denied.

III. Conclusion conclusion, In we hold that the January 2003 order was final, not a appealable jurisdiction order. Our to hear the appeal is proper because husband’s estate filed a notice of appeal thirty days within of the June 2003 order. We affirm the trial court’s appointment the conservator pursu- ant to Rule 4:12. Because the action divorce abated husband, death of every abated, proceeding ancillary to it also divesting the trial court jurisdiction to make further deter- minations in the case. responsible Husband’s estate is for the amount of the conservator’s fee accrued until husband’s death. Accordingly, we affirm in part, part, reverse in remand the trial court to determine the reasonable fees of the conser- vator accrued to the date husband’s death. part, part, reversed in and remanded.

Affirmed ANNUNZIATA, J., in in concurring, part, dissenting, and part. U.A., join principal opinion respect

I with to Parts II.B.1,1 U.B.2., U.B.3., Part respect and II.C. With to concur § in affirm on judgment ground Code 20- 103(A)(vii)provided authority appoint the trial court the II.B.4,1 conservator in this case. to Part concur respect With in judgment responsible hold husband’s estate for the up conservator’s fees accrued to the time of husband’s death. However, authority I would hold that the trial court’s to award 20-99(5), § the conservator’s fees emanates from Code 4:12, join respect Rule with to its reasoning dissent 4:12, contempt power and conclusion that Rule and the arising Rule, from the do not authorize the of a conser appointment vator. I have not federal or state found case statute which authorizes of a sanc appointment conservator as a tion for the of a court’s discovery violation answer requests party’s related to the estate and financial affairs.

CLEMENTS, J., concurring, part, dissenting, part. except

I concur with the as to the issues principal opinion involving appointment payment of the conservator. follow, For the reasons that I would hold that the trial court ordering erred in the conservator and husband to appointing Hence, of the conservator’s fees. I pay any respectfully from trial majority’s dissent affirmance court’s majority’s of the conservator and the decision appointment responsible payment that husband’s estate is of that portion prior of the conservator’s fee that accrued to hus- band’s death. appointment

In the trial court’s the conserva- upholding case, majority tor in this concludes the trial court acted 20-103(A)(vii) prevent § under husband’s properly disagree majority’s I with the dissipation of marital assets.7 decision for a number of reasons. 20-103(A)(vii) provides, pertinent part: §

7. Code First, I believe the majority’s reliance on Code 20- 103(A)(vii) to resolve this matter is unsupported by the record in this case and contrary established principles appellate review. 15, 2001,

On October wife filed “Motion and Notice” informing husband that appear wife would in court on Novem- 15,2001, ber solely

to move the Court for following relief:

1. To request that the provide any Court and all relief contained under Rule 4:12 for' Mr. Hackler’s continued failure to by abide this previous Court’s Order regarding discovery.

2. To hold Mr. Hackler in contempt Court for his continued failure to by abide this support Orders, Court’s including health insurance matters.

3. To request attorney’s fees and costs the amount of for this unnecessary $1500.00 appearance.

After the November 2001 hearing, the trial court en- tered an 16, 2002, order January stating as follows:

On November the plaintiff appeared in [wife] person and by counsel. The defendant did not appear, but his present counsel was on his behalf.

After hearing the evidence and argument on the numerous Court, issues before the rules, the Court as follows: 1. A show cause is to be against issued the defendant. (21) 2. Within twenty-one days November the defendant is to answer all interrogatories and supple- mental interrogatories oath, under and he is to fully and completely answer Interrogatory No. 5 under oath within twenty-one days. In suits for having jurisdiction divorce ... the court of the matter may, any pending pursuant at time a suit chapter, to this in the court, discretion of such any may make proper order that ...

preserve the spouse, estate of either forthcoming so that it be to meet suit____ decree which be made in the 4:12 of the under Rule Any requested and all relief

3. be continued to Virginia court of will Supreme Rules of the date, attorney’s as will the issue of hearing cause the show by plaintiff. requested fees and costs cause trial court also entered a show day, That same as follows: stating appeared the plaintiff [wife] November On but present, The defendant was not counsel. person his on his behalf. present counsel was what regarding amount of evidence hearing

After a brief previous violation of this Court’s appears to be a continued Orders, that the defendant it is herein ORDERED Court appear the Circuit Court personally [husband] January, of at County day on the 28th Chesterfield cause, if he should not be any, why to show 9:00 o’clock a.m. attorney’s fined, pay he should not fees imprisoned, why the appears for what to be plaintiff to counsel for the previous continued violations of this Court’s defendant’s of the plain- health bills regarding spousal support, Orders assets, insurance, marital dissipation of by tiff not covered failure to answer the discov- and the defendant’s continued case, in this by plaintiff the ery previously propounded previ- the defendant has been ORDERED discovery which the Additionally, to answer. by this Court ously defendant cause, should not enter- why this Court any, shall show if under Rule and all motions appropriate tain 4:12 of including, but Virginia, Court Supreme the Rules of of to, guardian a conservator appointing not limited until assets in control manage the marital defendant in this case. a Final Decree can be entered for necessary papers prepare The is directed to Clerk this copy to serve a show Cause server private process at his address.... on the defendant Order added.) that, for is from this order It clear (Emphasis husband, given cause notice of the show purposes 4:12, in to Rule strictly of a conservator was tied appointment that Rule. for relief under motion accordance with wife’s show trial Following January hearing, cause 5, 2002, stating an “Order” on March as follows: court entered in Hackler January appeared person On Janice Hackler, although Lewis personally counsel. R. served, Wollstein, A. appear. Esq., ap- did not Richmond peared attorney as Hackler. purpose Mr. The hearing against “Show Order” Mr. Cause filed Hackler. counsel,

After hearing argument evidence it ORDERED, herein as follows: 1. in contempt Mr. Hackler is of this previous Court’s disposition Orders. The of this contempt is deferred until ... March at 10:15 a.m.

2. This Court finds that Mr. Hackler is in arrears $2,000.00 amount of January, 2002, through regarding his spousal obligation. This is support amount to be paid directly to Mrs. Hackler than February, no later 2002. Mr. Hackler is under a spousal continuing support obligation of $2,000.00 month. per Judgment rendered favor of against Janice Hackler R. W. Lewis Hackler the amount $2,000.00, plus percent, interest at nine from January 2002.

3. The finds Court that Mr. Hackler is in arrears $169.60 regarding obligation his to Mrs. Hackler concerning uncov- ered medical and drug He is to this expenses. pay amount directly to no her later than the end of February, 2002. Judgment is rendered on behalf of Janice W. Hackler against $169.60, R. Lewis Hackler in the amount plus of percent, 28, interest at nine January from 2002.

4. Mr. is pay Hackler ORDERED to Englisby, Denis C. ... in Esq., fees attorney’s regarding the work that $750.00 had to performed appearance be January made on 28, 2002. amount paid This is to no than later the end of February, percent 2002. This amount carries a nine inter- 28, est per year January paid rate from in until full. Additional attorney’s fees bemay awarded on the March 2002 Court date. Ferris, II, as Esq., Richard C. appoints

5. This Court Mr. being held funds and accounts Conservator A will be entered separate time. Order Hackler at this duties. outlining Mr. Ferris’ added.)

(Emphasis date, also entered an “Order the trial court That same Conservator,” outlines the conservator’s which Appointing as follows: appointment explains duties the hear- ruling resulting In accord with this Court’s from 28, 2002, it is herein ORDERED January ing of act as Ferris, II, Esq., hereby appointed Richard C. accounts, funds, royalties presently for all Conservator on his or in the hands of others control of Mr. Hackler to, behalf, any expectancies not limited including, but month or him come to him each that come to funds periodically. added.)

(Emphasis court’s orders of March of the trial Although, neither appointed conservator was state that expressly 4:12,8 they arose orders indicate to Rule both pursuant 28,2002 purpose hearing, express the sole January from the in the court’s with the issues addressed which was deal “ against [hus- Order’ filed 2002 ‘Show Cause January noted, the sanctions and identifying previously As band].” in accordance with may impose remedial measures the relief, specifically the show cause order motion for wife’s to Rule pursuant of a conservator the appointment refers to order nor the the show cause Conversely, neither 4:12. makes reference 2002 orders court’s March relief the trial court for wife ever move § 20-103. Nor did that statute. under draws

Likewise, March the trial court’s “Order” the conservator appointment between no connection contempt that husband finding apparent the court’s Indeed, any statutory provides or rule-related expressly 8. neither appointment of the conservator. basis for the court for the of marital assets. In the cause dissipation show order, court specifically the ordered husband show cause fined, “why he should not be imprisoned, pay [ordered to] attorney’s appears fees ... for the what defen- [wife’s] previous dant’s continued of violations this Court’s Orders dissipation ... regarding separately of marital assets” and why ordered husband to show cause the court should appoint pursuant request a conservator to wife’s relief 4:12, under Rule a rule In regarding discovery. the March “Order,” trial a general finding the court made that court, in contempt husband was the expressly but deferred words, of that In disposition finding until a later date. other the trial court’s appointment the conservator was not the disposition contempt dissipation the for husband’s finding marital assets violation of previous the court’s orders. Rather, was, view, my it separate remedial measure imposed by pursuant trial court 4:12. Rule Thus, that, I effect, believe of its regardless apparent trial appointment court’s of the pursu- conservator was made that, ant Rule 4:12. This view buttressed the fact conservator, regarding appointment husband’s es- below, tate contends on appeal, solely as that trial court did not have the authority appoint pursuant conservator that, to Rule 4:12 and if authority, even the court had such appointment the conservator was not in with compliance procedural requirements §§ set forth 37.1-134.6 to 37.1-134.22 pertaining to the of a appointment conservator. In response, wife exclusively contends that the trial court had authority conservator, so, to appoint a properly did under Rule 4:12. party suggests Neither trial its appointment upon any based of the conservator rule or statute other than Rule 4:12 or other rule statute Hence, authorized the trial court to do so. the sole issue presented appeal regarding appointment on of the conser- vator is whether trial in appointing court erred the conser- pursuant vator to Rule 4:12.

This consistently Court has held that we will not address an see, court, issue that was not appeal raised before the trial Torian, 167, 185-86, 562 S.E.2d Va.App. Torian v. e.g., (2002) 5A:18), on see v. (citing appeal, Rule Mullins 365 770, Commonwealth, 728, 733, S.E.2d 772 Va.App. 39 576 (2003) (“On raised.”); only consider the issues appeal, we [will] 783, 240, 6,n. v. 253 556 S.E.2d 790 Shoup Shoup, Va.App. (2001) (en Moore, 217 banc); v. n. 6 see also Richardson Va. (1976) 864, 1,n. n. 1 the Court (stating 229 S.E.2d particular question no on a because opinion” would “express A significant “was not raised on question appeal”). parties is the underlying provide these to purpose principles to to consider and address the issues related opportunity the See, appeal. e.g., them on perceived errors before we resolve Commonwealth, 374 S.E.2d Fisher 236 Va. (1988) to their on prior issues be raised resolution (requiring from “to ... based undisclosed appeal protect appeals Here, never had the grounds”). parties opportunity, the to the propri either or on consider and address appeal, below Thus, I § the 20-103 in this case. application Code ety that, in of this proceeding, of the in its resolution opinion am matter, scope specific issue sponte beyond sua the appeal, to presented the trial court and this Court to the to address having opportunity had parties without the ever majority, majority the ex specific the issue resolved the authority. our appellate ceeds

Moreover, properly in the court determining that trial acted 20-103(A)(vii) dissipation § husband’s prevent under Code assets, in a engages “right majority effectively of marital the result, Driscoll v. Common analysis. reason” See wrong (“An wealth, 417 S.E.2d Va.App. a court may affirm trial when judgment court appellate reason.”). How wrong has result for right it reached so, well ever, majority disregards established doing result, “may wrong reason” rule principles “right the trial court was affirming if correct reason for be used if “further factual any manner at trial” or not raised assigned may right needed before the reason be resolution is Here, previously Id. as the trial court’s decision.” support stated, the trial “right affirming reason” for majority’s 20-108(A)(vii) § court’s decision —Code never presented —was Likewise, the trial manner. further factual is statutorily may resolution before it required properly be appointed concluded that the trial court a correctly “conserva- tor,” or, 37.1-134.22, §§ see Code 37.1-134.6 to more perhaps here, “receiver,” §§ accurately see 8.01-582 to 8.01- Code 20-103(A)(vii). § pursuant under Code For example, 37.1-134.13, § Code trial court or must jury consider several specific factors and on the basis of clear and “determinen evidence that convincing respondent incapacitated in need of a guardian or conservator” a conservator before appointed. Similarly, permits 8.01-592 special of a appointment receiver without notice the defen- if dant it only is first determined that “an emergency exists it necessary and is that a receiver be appointed immediately to preserve subject case, the matter.”9 In such a a bond is required, 8.01-592, § see appointment Code and the “is limited to a period longer not than thirty days” appoint- unless the ment is following matter, extended a de novo on hearing the § I Code in 8.01-593. find nothing the record that indicates that requisite determinations, such as appropriate, were ever conclude, I therefore, made. that the majority’s use of a result, “right wrong analysis reason” to resolve this matter is inappropriate. that, Assuming, deciding,

9. without based the record’s lack of suggesting incapacitated, evidence appointment husband was the of the "receiver,” actually "conservator” appointment in this case was an of a I conclude that appointment necessarily pursuant such was made to 8.01-592, (1) § Code attorney appointed clearly because the a receiver,” "special court,” "general rather a than receiver of the see §§ (describing Code 8.01-582 to responsibili- 8.01-590 the duties and receivers); Costello, general 9-2, ties of Virginia § John L. Remedies at (2d ("Whereas 1999) general ed. permanent the receiver is the court, agent special fiscal appointed the receiver is hoc ad trial.”), (usually) period (2) only for the short before the notice given regarding to husband appointment fiduciary of a in this case solely referred appointment to the of a guardian” "conservator or 4:12,” not, pursuant my opinion, qualify "Rule which does in as application appointment "reasonable notice” of an for "the aof receiv- § er” "pray[er] under Code appointment 8.01-591 or a for the of a § receiver” under Code 8.01-594. (1) Furthermore, that the issue of assuming, arguendo, even 20-103(A)(vii)’s in is before us application properly § Code 20-103(A)(vii) (2) trial court case, grants § that Code this a preserve a receiver to appoint special the discretion (3) estate, appoint court intended to spouse’s trial 20-103(A)(vii) § pursuant case Code special this receiver during of marital assets dissipation husband’s prevent action, appointment of the divorce pendency with properly procured accordance special receiver was §§ 8.01-591 to requirements notice and other Code 8.01-599, trial abused its I still that the would conclude 20-103(A)(vii) because, view, § does my discretion facts and upon of a receiver appointment authorize the case. circumstances this ... receiver is an extraordi- appointment special

“The at issue until preserve the court to the assets nary effort Costello, Virginia John L. trial or execution can be had.” 1999). (2d 9.2, it “an Additionally, at is § ed. Remedies in extreme only which should be resorted remedy intrusive 9.5(c), 262; Arthur L. at see also Mintzer v. cases.” Id. (3d Cir.1959) Co., (observing that 263 F.2d & Wright remedy is an equitable of a receiver “appointment nature”). Indeed, of a receiver appointment rather drastic court, extraordinary power of the based an exercise of the “is harsh and oppres- It often equitable considerations. effects, from the owner wresting in its the property sive decree, inflicting irrepara- a and hearing without a and before City, Washington v. Vir- mischief.” Adm’r ble Williamson’s (33 Gratt.) Co., 624, 635 R.R. ginia Midland & Great S. Va. a (1881). Hence, very remedy,” it “a intrusive because is prevent to only “necessary used where should be receivership exists.” remedy adequate harm and no other irreparable 3.05, at Turner, Property R. Distribution Equitable Brett of 1994) (2d Mayhue, Pa.Super. Mayhue (citing ed. “a harsh receivership 494, (noting A.2d remedy of last as only that should “be exercised measure” resort”)).

Here, the trial court appointed fiduciary ordered receipt” funds, accounts, “take of “all royalties presently behalf, control of or the hands of on his [husband] others to, but not limited of including, any expectancies funds that to him or him come come to each month or periodically” $4,000.00 “distribute no than month to per more court, however, from these funds.” The trial made [husband] no that the finding appointment of a necessary receiver was prevent irreparable harm to wife’s share of marital likely estate, I am upon unable to reach that conclusion Indeed, record before me. although the record no contains precise determination of the extent of husband’s dissipation marital prior funds to the appointment fiduciary March it appears that husband’s failure to comply with the trial court’s December 1999 order enjoining the parties from “transferring, selling, disposing, concealing otherwise making unavailable the marital property and other property acquired during the marriage parties, until further Court,” Order of the of, resulted in a loss funds at most, $13,000, approximately from an account that held more $140,000 than following that No dissipation. other evidence dissipation appears in the record.

Therefore, other, I am of opinion less drastic adequate remedies were prevent available to dissipa- further tion of marital assets husband and to compensate the marital estate for already Indeed, those assets dissipated. trial court had exhausted the compensatory and coercive civil contempt sanctions at disposal. its Among possible other remedies, the trial might have ordered reimbursement of the dissipated funds the marital estate restore the or, status quo assets, distribution of the marital simply compensated wife for her from resulting losses husband’s noncompliance by for the accounting dissipation of marital assets the property distribution award and further award- ing wife costs she incurred experts needed to trace and calculate dissipated protect assets. To against prevent dissipation estate, further of the marital the trial might court also have ordered that a given bond be to cover 86 estate, transferred control marital likely share of the

wife’s wife, prospec- to or ordered or all of marital assets some in imposed the event incarceration that would tive fines and marital assets. dissipate continued to husband Thus, no showing appointment there because irreparable harm to wife necessary prevent a receiver was existed, I would hold that the adequate remedies other and, in unwarranted this case of a receiver was appointment disagree majority’s I with the thus, Consequently, improper. conservator, that, trial court appointing conclusion 20-103(A)(vii) hus- to prevent under Code properly acted of marital assets. dissipation band’s I would presented appeal, actual issue to the Turning 4:12 the appointment hold Rule does not authorize also comply failure to with party’s as for a a conservator a sanction discovery. compelling a court’s order 4:12(b) discovery and provides abuses governs Rule a with court’s comply who fails against party sanctions general- A discovery. trial court permit order to provide determining appropri- exercises “broad discretion” ly relating an order comply for failure with ate sanction 651, 654, 391 v. 239 Va. Woodbury Courtney, discovery. (1990). accord deference Consequently, we S.E.2d case and will reverse trial court this to the decision if discretion— See the court abused its only that decision Inc., Atl. Dredging, Middle Corp. First Charter Land v. (1977). However, an 308-09, Va. S.E.2d dis- every simply stamp rubber court should appellate contrary, To the we decision of a trial court. cretionary and, so, doing review the record obligation have an if find a clear trial court we judgment to reverse abuse of discretion. (2000). 904, Bennett, 530 S.E.2d Va.

Walsh 4:12(b)(2) that, part, party in pertinent “[i]f provides, Rule discovery, ... ... provide ... an order to obey fails to to the as regard orders in ... make such failure 4:12(b)(2) added.) Thus, Rule although (Emphasis are just.” discretion, trial grants give court broad it does not impose any trial court unfettered discretion to or remedy a party’s comply sanction for failure to with the court’s order discovery. at compelling See id. 530 S.E.2d at 907 (holding that the trial court abused its discretion under Rule 4:12(b)(2) unjust). because the sanction it imposed

Here, apparently comply based husband’s failure to with its compelling orders trial discovery, appointed conservator under Rule 4:12 to “take of’ receipt manage the marital assets I perceive logical husband’s control. no case, conceive, connection this I any other of which can appointment between the of a conservator to of’ receipt “take and manage the marital assets and a party’s comply failure to with a court’s discovery. order compelling The one has thing nothing to do conclude, therefore, that, with the other. I appointment because the of a conservator is not “in regard to” a party’s failure an obey provide order to discovery, appointment a conservator pursuant to Rule 4:12 neces- unjust and, thus, sarily “involves the exercise of unfettered discretion.” Gloucester County Dep’t Soc. Servs. Kenne- dy, (Koontz, 256 Va. J., 507 S.E.2d I dissenting). am any legal unaware of authority per- suades me otherwise.

Moreover, even assuming, arguendo, that Rule 4:12 author- izes the appointment conservator, of a I still would hold that the trial court abused its discretion in appointing the conserva- tor in this other, case because less adequate drastic remedies and sanctions were available to the trial court under Rule 4:12 to enforce the court’s discovery orders and to hus- remedy band’s failure to respond discovery. Hence, timely I re- spectfully dissent from that portion of the principal opinion that holds the appointment of the proper conservator was under Rule 4:12.

Having concluded that the trial court’s appointment of the error, conservator constituted I further conclude that requir- ing husband to be responsible for any of conservator’s fees is unwarranted. I Accordingly, would hold that the trial court ordering pay husband discretion

abused its fees. conservator’s appoint- trial reasons, I court’s would reverse

For these conservator’s its award conservator ment husband. against fees

Case Details

Case Name: Estate of Hackler v. Hackler

Court Name: Court of Appeals of Virginia

Date Published: Sep 21, 2004

Citation: 602 S.E.2d 426

Docket Number: 1827032

Court Abbreviation: Va. Ct. App.