Wilkins v. Bell
Wilkins v. Bell
Opinion of the Court
These appeals stem from a child support dispute between appellant Cheryl Green Wilkins, mother of the then-minor child A., and appellee William Bell, father of the child. Bell was under an order, first entered in 1989, to pay child support to Wilkins, who had custody of the child. Wilkins challenges orders by which the trial court relieved Bell of the obligation to pay child support for a several-month period beginning in December 2004. She also challenges the court’s order denying her motion for sanctions against Bell and his attorney, and imposing similar sanctions on her own attorney. We reverse and remand with respect to the child support issue, but affirm as to the sanctions rulings.
Factual and Procedural Background
Commencing sometime during September or October of 2004, A. went to stay temporarily with Bell, for a period that turned out to be approximately eight weeks. On November 17, 2004, Bell filed a Motion to Stay Enforcement of Child Support Order, advising the court that A. had been living with him for eight weeks and desired to remain with him, and arguing that Wilkins therefore “ha[d] received two months of child support unjustly.” Bell’s counsel presented the motion to the court during a status conference that had been scheduled for that same date in conjunction with Bell’s pending motion for a modification of the custody order. Wilkins, who appeared pro se, objected to the motion and denied that A. wanted to continue living with Bell, but acknowledged that A. had recently been staying with Bell. Both parties told the court that A. would “be returning home sometime on Friday, this Friday” after completing a college tour.
Observing that “this is a motion to stop payment as long as the child is there” (i. e., with Bell), the court agreed to stay enforcement of the support order. The court stated, “I think it would be equitable to terminate — to suspend the child support from the time the child was with him and then restart it when the child has moved back — if the child has moved back with Ms. Green [Wilkins].” The court said that
ORDERED, that the motion [to stay enforcement of the child support order] should be continued to February 9, 2005 at 9:30 a.m. before the undersigned Judge; and it is further
ORDERED, that the support order should be suspended from December 11, 2004 until February 9, 2005; and it is further
ORDERED, that wage withholding shall be released for the period of December 11, 2004 to and including February 9, 2005[J
In advocating the suspension order, Bell’s counsel told the court during the November 17 proceeding that “if [A.] does come back then Ms. Wilkins can come back in— and lift the enforcement or lift the stay of enforcement.” The court also stated, “[a]nd if the child moves back, then — but in the meanwhile then Ms. Wilkins can ask for an emergency hearing to have support reinstated.” The court also set February 9, 2005 as the date for a trial on Bell’s motion for modification of custody.
On December 8, 2004, Wilkins filed her “Emergency Motion to Reinstate Child Support Payments,” stating that “the minor has returned to the home of [Wilkins]” and that Wilkins “is in need of the support payments to adequately care for the minor child,” and asking the court either to reverse its November 17 order or to “reinstate support payments.” The . motion was accompanied by the affidavit of A., stating that “my intention is to remain living with my mother until I reach the age of twenty-one.” On December 10, 2004, Bell’s counsel filed an opposition, asserting that Wilkins’ motion “failed to state any reason why equity requires child support payments to begin again.”
When the parties appeared before the court on February 9, 2005, Wilkins, who again appeared pro se, asked for a continuance of the hearing on Bell’s custody motion so that the parties could resume their attempts at mediation. Wilkins also attempted to advise the court about where A. was living. The court deferred discussion of that issue, and set a new trial date of March 10, 2005, saying “[w]e will keep this until March 10,” at which time the parties could “raise any issues with respect to support including the periods of time you had the child.”
On March 21, 2005, after trial on the custody motion had been continued again
Wilkins ultimately obtained counsel, who entered her appearance on April 14, 2005, and filed a motion for Rule 11 sanctions a day later, alleging that during the November 17 and February 9 proceedings, Bell and his counsel had made misrepresentations to the court about where A. was residing. During proceedings before the court on April 18, Wilkins’ counsel made an oral motion asking the court to reinstate child support, and Bell’s counsel reminded the court that Wilkins’ written motion to reinstate was still pending. The court continued all matters until May 10. At the May 10 hearing, the trial judge took the Rule 11 sanctions motion under advisement. The court stated that it would reinstate the support order effective July 1, 2005, and, on May 26, 2005, signed an order (on a standardized form) requiring Bell to resume making child support payments as of July l.
By order dated May 27, 2005, the court denied Rule 11 sanctions against Bell’s counsel and instead granted Bell’s request for recovery of his costs of responding to the sanctions motion. The court found that Wilkins’ counsel “knew or should have known from the plain language of Rule 11 that the Rule does not apply to oral representations or misrepresentations that are made in open court by either a party or an attorney.” In an order dated August 16, 2005, the court denied Wilkins’ motion to reconsider the May 27 sanctions order.
Wilkins contends on appeal that the trial court abused its discretion in suspending Bell’s child support obligations, and she also challenges the court’s rulings on sanctions.
Analysis
I.
Wilkins’ brief challenges both the court’s November 17, 2004 order staying enforcement of the child support order, and the court’s action on Wilkins’ December 8 written motion (reiterated through oral motions on February 9 and April 18) requesting that the court “reinstate support payments or reverse the order entered on November 17.” We consider first the timeliness of Wilkins’ challenge to the November 17 order.
We are satisfied that the November 17 order fell somewhere among the types of rulings that D.C.Code § 11-721 (2001) authorizes this court to review. See D.C.Code § ll-721(a)(l) and (2)(A) (giving this court jurisdiction of appeals from final orders of the Superior Court and from interlocutory orders modifying injunctions). Although the order stayed enforcement of the child support order for a specified finite period, and although the parties and the court contemplated that a further modification of the support order might soon follow, the November 17 ruling purported to be a final order with respect to the period from December 11, 2004, to February 9, 2005. See McDiarmid v. McDiarmid, 594 A.2d 79, 81-82 (D.C. 1991) (holding that a ruling was final where it represented a complete determination of the merits such that the trial court had only to administer or enforce its judgment).
The time for appeal would have been tolled if, within ten days after November 17, Wilkins had filed a motion to alter or amend pursuant to Superior Court Domestic Relations Rule 59, or a motion for relief from judgment or order pursuant to Superior Court Domestic Relations Rule 60(b). See D.C.App. R. 4(a)(4)(A)(iii) & (v); see also Nichols v. First Union Nat’l Bank, 905 A.2d 268, 271-72 (D.C. 2006). Wilkins’ December 8 “Emergency Motion to Reinstate Child Support Payments” was not so captioned, but we nevertheless deem it to be a Rule 60(b) motion, because it was premised on a claim that it was “no longer equitable that the [November 17 order] should have prospective application.” Super. Ct. Dom. Rel. R. 60(b)(5); see also Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 805 (D.C. 1984) (“The nature of a motion is determined by the relief sought, not by its label or caption.”).
We do have jurisdiction to review the May 10 order (and the corresponding May 26 written order), by which the court effectively denied Wilkins’ December 8 motion, whether that motion is regarded as an original motion to modify the existing child support order or as a Rule 60(b) motion. See State Farm Mut. Auto. Ins. Co. v. Brown, 593 A.2d 184, 185 (D.C. 1991) (“we do not review or determine the merits of the underlying action but only decide whether there has been an abuse of discretion in denying the Rule 60(b) motion”).
Bell’s brief identifies one other potential obstacle to Wilkins’ challenge to the May 10 and May 26 child support orders. The brief asserts that a “Consent Order was prepared and submitted” to the court and “[tjhere was no request in the Consent Order for arrearages; hence any claim for arrearages by Ms. Wilkins was waived pursuant to the Consent Order.” Bell has not provided us with a copy of any such consent order, and we have found nothing in the record that is so labeled. We think Bell’s reference to a “consent order” may be a reference to the fact, suggested by the transcript of the May 10, 2005 proceedings, that Bell’s counsel offered to fill out a child support order standardized form for the court to sign, and said that she would first “fax it to counsel and see if she agrees with it and then provide it to chambers by the end of the week.” The May 10 transcript shows plainly, however, that Wilkins’ counsel did not acquiesce in an order that would be without a retroactive award. To the contrary, as already noted, during the May 10 proceedings, Wilkins’ counsel asked the court once again to reconsider the November 17 ruling by which the court had suspended child support payments commencing December 11, 2004. In light of the court’s having made clear during the May 10 proceedings, in response to Wilkins’ counsel’s request, that it would not revisit the issue of the previous suspension
Accordingly, we go on to review, for abuse of discretion,
II.
We hold that the court abused its discretion in denying Wilkins’ December 8 motion and in issuing its May 10 and May 26, 2005 child support orders relieving Bell of the obligation to make child support payments for the period from December 11, 2004, through June 30, 2005.
As to the period from December 11, 2004, through February 9, 2005, the court’s May 2005 rulings made permanent a suspension that the court originally had entered as an ostensibly prospective suspension, in an apparent effort to comply with D.C.Code § 46-204(c) (2001), which generally prohibits retroactive modifications of child support.
Furthermore, even without regard to the statutory prohibition against retroactive modifications of child support awards, the court abused its discretion when, without holding a hearing, it relieved Bell of his obligation to make child support payments for a period equivalent to the relatively brief period during which A. stayed at his home. A court abuses its discretion when it rules on a motion to suspend child support payments without conducting a hearing to receive the parties’ evidence. Garcia, 622 A.2d at 67; see also Lopez v. Ysla, 733 A.2d 330, 334 (D.C. 1999) (abuse of discretion when court fails to consider alleged proof substantiating party’s motion for modification of child support).
Insofar as the court’s May 10 and May 26 orders made permanent the further suspension of child support for the period after February 9, 2005, the court’s error was compounded. A modification of the child support order for the period from February 9 to June 30, 2005 could have been warranted only if there had been a substantial and material change in circumstances of the child or the parents. The court conducted no evidentiary hearing for this time period either, and did not otherwise inquire into whether there had been any such change in circumstances. The court had been advised that A. had resumed living with Wilkins, and Bell never took issue with that representation. Moreover, as noted above, in urging the court to suspend child support at the November 17 hearing, Bell’s counsel had acknowledged — and the court agreed — that if A. were to return to Wilkins’ home, that would be an occasion for reinstating the child support order.
All that was in the record as a basis for the further suspension of child support payments for the period from February 10 to June 30, was Bell’s March 21, 2005 ex parte motion of the same date seeking a continuation of the stay. Not only did the March 21 motion assert, erroneously, that the court had already denied Wilkins’ motion for reinstatement,
Thus, there was no proper basis for the court to deny Wilkins’ motion to reinstate child support for the period commencing December 11, 2004. We therefore vacate the court’s May 10 order and the corresponding May 26 written order to the extent that they denied Wilkins an award of child support retroactive to December 11, 2004.
III.
We review the trial court’s rulings as to sanctions for abuse of discretion. See Bredehoft v. Alexander, 686 A.2d 586, 598 (D.C. 1996). Rule 11 sanctions are available when a “pleading, written motion, or other paper” that is signed by an attorney is not “well grounded in fact” or was for an improper purpose “such as to harass, embarrass, or cause unnecessary delay or needless increase in the cost of litigation.” Super. Ct. Dom. Rel. R. 11. Thus, only a “pleading, written motion, or other paper” is sufficient to sustain a Rule 11 motion; oral representations are not. See Chevalier v. Moon, 576 A.2d 722, 722-23 (D.C. 1990). Appellant asked for the imposition of sanctions to hold appellee Bell and his counsel liable for “allegations and representations made by [them] at the November and February [] hearings.” Because allegedly false oral representations were the basis for Wilkins’ Rule 11 sanctions motion, the trial court did not abuse its discretion in denying Wilkins’ motion.
As noted above, instead of sanctioning Bell’s attorney, the trial court granted Rule 11 sanctions against Wilkins’ counsel. The court reasoned that, because the plain language of Rule 11 requires that a “pleading, written motion, or other paper” be the basis of a Rule 11 motion, Wilkins’ counsel should not have filed her Rule 11 motion based upon oral representations. The court concluded that as Wilkins’ counsel did not make a non-frivolous argument for the extension of Rule 11 to cover oral representations, she herself had acted in violation of Rule 11. The court was specifically authorized under Rule 11 to award attorney’s fees incurred in opposing a sanctions motion where it found that such an award was warranted. See Super. Ct. Dom. Rel. R. 11 (the sanction imposed on the person who signs a paper in violation of Rule 11 “may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the ... motion ..., including a reasonable attorney’s fee”). Accordingly, while we agree with Wilkins’ argument that the record reveals misleading omissions by Bell in opposing Wilkins’ requests to reinstate child support and therefore think the court would have had sound reason for not requiring Wilkins to bear Bell’s costs, we can find no abuse of discretion in the court’s order sanctioning Wilkins’ counsel.
This matter is remanded for further proceedings consistent with this opinion.
So ordered.
. The record on appeal contains two February 9 transcripts; one showing on its cover the date of "February 9, 2005,” and the other showing the date of "Feb. 9, 2004.” However, most portions of the two transcripts are identical, and we conclude that the date on the second transcript is in error and that the second transcript is also a transcript of the February 9, 2005 proceedings. The Certificate of Transcriber attached to the first transcript states that it was prepared on April 11, 2006 by Jacqueline Hogue from "electronic recordings.” The Certificate of Transcriber attached to the second transcript states that it was prepared on June 17, 2005 by Cindy Balzer from an “audio recording.” The differences in the transcripts appear to reflect different portions of the recordings that the transcribers found "indiscernible” or that one (but not the other) transcriber could not transcribe because of "equipment malfunction.” One result is that the first transcript, but not the second, contains the following statements by Wilkins:
Ms. Wilkins: With questions to where [A], is staying the last time we were here and you wanted to establish that? She's here today if you need to speak to her to verify where she is living because he said she was living with him, and that was the reason why you had suspended support in the beginning. Remember? Based on her — him claiming that she was living with him.
February 9, 2005 Transcript at 6.
. Bell’s counsel had advised the court that two child support checks had mistakenly been issued to Wilkins while the stay of child support was in effect. The court set July 1, 2005, as the date for payments to re-commence to give Bell "credit” for the amounts he paid after the order suspending child support had been issued.
. Wilkins filed her appeal from the court’s child support rulings on May 15, 2005, and the appeal was docketed as No. 05-FM-930. Wilkins' second appeal, seeking review of the trial court’s sanctions rulings, was filed on September 15, 2005, and has been docketed as No. 05-FM-1587, under the caption Cheryl Green v. William Bell. We note that while the
. We note that the trial court regarded the November 17 order as an appealable order, admonishing Wilkins' counsel during the May 10 proceedings that the fact that Wilkins failed to file a motion to reconsider that ruling within ten days after it was issued would prevent her from meeting the jurisdictional requirements for a further appeal.
. It would also be proper to treat the May 10 ruling denying the December 8 motion as a denial of an “original motion to modify and/or enforce the existing child support order.” Miller v. Miller, 561 A.2d 1005, 1005-06 (D.C. 1989). We reject Bell’s assertions that the December 8 motion was not a "true motion to lift the stay of child support” or a motion to reinstate, and that Wilkins “did not request a lift of the stay of child support until
. See also Zona v. Lincoln Log Homes, Inc., 1992 WL 121659, 1992 U.S.App. LEXIS 14031 (6th Cir. 1992) (Rule 60(b) motion was not filed within ten days of the underlying judgment, so appeal from the order denying Rule 60(b) relief did "not bring up for review the underlying judgment,” but appeal proceeded on whether the trial court erred in denying the Rule 60(b) motion). We have treated federal court decisions interpreting Federal Rule of Civil Procedure 60 as persuasive authority in interpreting D.C. Superior Court Rule of Civil Procedure 60. See Olivarius v. Stanley J. Samoff Endowment for Cardiovascular Sci., Inc., 858 A.2d 457 (D.C. 2004).
. See Garcia v. Andrade, 622 A.2d 64, 67 (D.C. 1993) (a decision whether to suspend child support payments is “within the sound discretion of the trial court”); State Farm, 593 A.2d at 185 n. 4 (our task is to decide whether there was an abuse of discretion in denying the Rule 60(b) motion).
. Although we do not review the November 17 order per se, it is necessary to discuss the November 17 proceedings and the rationale of the November 17 ruling as a backdrop for understanding the court's subsequent actions. It will also be plain to the reader that much of what we say about the May 10 ruling would apply as well to the court's earlier order suspending child support payments.
. A retroactive award of child support may, however, be permitted “for the period during which a petition for modification is pending.” D.C.Code § 46-204(c) (formerly D.C.Code § 30-504(c) (1981)).
. See also D.C.Code § 16-916.01(o)(6) ("No order [modifying child support] shall be modified without a hearing if a hearing is timely requested.”).
. Contrary to the representation made in Bell’s March 21, 2005 Emergency Motion to Continue Stay, i.e., that the court denied Wilkins’ request to reinstate child support when the parties appeared before the court on February 9, the court did not deny Wilkins’ oral request. Nor had the court by then denied Wilkins’ December 8 motion. Bell’s counsel admitted as much when she told the court on April 18 that “on February 9th there was a pending motion [to reinstate] that was not ruled upon that was filed by Ms. Wilkins pro se.” Bell's brief on appeal states that the December 8 motion “was never denied.” We find that the court held the motion, and did not (effectively) rule on it until May 10, 2005.
. As Wilkins’ brief suggests, a "trial court ... has an inherent sanctioning power that transcends specific statutes or rules and extends to the full range of litigation abuses,” upon which the court can rely to "fill [] the gaps” left by Rule 11. In re Estate of Delaney, 819 A.2d 968, 998 (D.C. 2003). However, Wilkins’ motion explicitly was a Rule 11 motion, governed by the subject-matter limitation described in the Rule. See generally In re Jumper, 909 A.2d 173 (D.C. 2006) (explaining why a finding made pursuant to a Rule 11 inquiry may not justify a sanction imposed under the court’s inherent authority).
Reference
- Full Case Name
- Cheryl Green WILKINS v. William BELL
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- Published