Barrett v. Minor
| Decision Date | 23 October 2018 |
| Docket Number | Record No. 1250-16-3 |
| Parties | TIMOTHY M. BARRETT v. VALERIE JILL RHUDY MINOR |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Chief Judge Huff, Judges Beales and Decker
Argued at Salem, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
William N. Alexander, II, Judge Designate
(Timothy M. Barrett, pro se, on briefs). Appellant submitting on briefs.
Steven R. Minor (Elliott Lawson & Minor, on brief), for appellee.
Timothy M. Barrett ("father") appeals the final order entered by the Circuit Court of the City of Bristol ("trial court") denying a series of motions and setting the amount of attorney's fees to which Valerie Minor ("mother") is entitled. Father raises twelve assignments of error, many overlapping and including sub-parts, which can be summarized as follows:
Finding no error, this Court affirms the trial court's rulings.1
Following established principles of appellate review, this Court views the evidence in the light most favorable to mother, the party prevailing below, and grants her the benefit of all reasonable inferences that can be fairly drawn. Chretien v. Chretien, 53 Va. App. 200, 202, 670 S.E.2d 45, 46 (2008) (citing Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). This standard requires this Court to presume that the trial court's ruling "settled all conflicts in the evidence in favor of the prevailing party." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). So viewed, the evidence is as follows.
On April 9, 2010, the Circuit Court of Grayson County entered an order in case number CJ07-17-26 disposing of father's motions to amend a custody order from the Grayson County Juvenile and Domestic Relations District Court ("JDR court"). On April 15, 2010, father appealed that order to this Court, in record number 0753-10-3. After receiving this Court's opinion, father petitioned the Supreme Court for further review. On May 22, 2011, while his writ to the Supreme Court appealing record number 0753-10-3 was still pending, father filed a new series of petitions to amend custody of the children in Grayson County JDR court, casenumbers JJ003403 through JJ003406. On August 23, 2011, the Grayson County JDR court issued an order staying all matters related to custody and visitation of the Barrett children pending resolution of father's appeals to the Supreme Court.
The Supreme Court refused father's petition, and this Court issued its mandate in record number 0753-10-3 on October 27, 2011. On January 17, 2012, pursuant to father's motion and because mother had moved to Bristol with the children and her new husband, the Grayson County JDR court transferred father's new petitions to amend custody—cases JJ003403 through JJ003406—to the Bristol JDR court. The Bristol JDR court held a hearing and issued a series of custody and visitation orders on October 3, 2012. Father and mother both appealed those orders to the circuit court ("trial court"). After a series of nonsuits and refiled appeals in the circuit court, father appealed to this Court in record number 0173-14-3. This Court affirmed the circuit court in an unpublished opinion on May 12, 2015. In that opinion, this Court noted that father did not prevail on any of his nineteen assignments of error and awarded attorney's fees to mother. This Court remanded the matter to the trial court to determine an appropriate fee award, including fees for services on remand.
Mother filed a motion requesting attorney's fees and attached a number of supporting documents explaining the basis for the amount she was requesting. She also filed a "Motion to Establish a Procedure" for determining the amount of fees to award. By an order issued February 4, 2016, the trial court ordered extensive discovery and required that any expert opinions mother planned to offer must be by live testimony. The trial court held a preliminary hearing on March 9, 2016, to deal with a number of pre-trial motions and a trial to determine the amount of attorney's fees on July 6, 2016. Father moved the trial court to declare void ab initio, for lack of subject matter jurisdiction, the Grayson County JDR court's order transferring thecases to Bristol and every order "based on or flowing from" that order, including this Court's mandate in record number 0173-14-3. He argued that motion extensively at the preliminary hearing, but the trial court denied father's motion. The trial court issued an order on April 14, 2016, denying a number of father's other motions and requiring mother to present an expert witness, other than her own attorney, to testify at the July 6, 2016 trial regarding the fee and expense claim being asserted by mother. Father filed an extensive list of exceptions to that order. Father also filed a number of additional motions after the preliminary hearing but prior to the trial, including another motion to have the prior orders declared void ab initio (based on the same reasoning he advanced at the preliminary hearing) and a motion to establish a briefing schedule for that motion. He filed a motion for sanctions regarding discovery, a motion for summary judgment, a motion for a stay so that he could sue the trial judge in federal court, and an extensive motion in limine seeking to drastically limit the evidence mother would be allowed to present to justify her fee request.
At the trial on July 6, 2016, father appeared pro se, as he has done throughout the years of litigation between the parties. He arrived at the courthouse wearing shorts and a polo shirt. The trial court found on the record that father "is or was a lawyer . . . is highly trained . . . and very intelligent and this [appearing at court inappropriately dressed] is just another ploy of his." The trial court ordered him to leave the courtroom until such time as he was appropriately attired. Moreover, the trial court refused to delay the proceedings, beginning the hearing at 9:45 a.m., with father absent from the courtroom. While father was absent, the trial court decided all of the pre-trial motions, a number of which previously had been argued and ruled on by the trial court, and allowed mother's attorney to make an opening statement.
Mother's attorney, Mr. Minor ("Minor") testified on her behalf, regarding the issue of his fees. While Minor was testifying, the trial court limited his testimony to the amount ofreasonable fees incurred while litigating the appeal in the present case. Minor testified that he was asking for payment for fifty hours of service at $210 per hour, itemized as twenty hours for preparing the brief, twenty hours for handling the appeal, and ten hours for post-remand work on the fee issue itself. Minor testified that he had cut the number of hours he was claiming by a significant amount, noting that of the ten hours he listed for post-remand work at least seven were accounted for by the March 9, 2016 hearing which lasted seven hours by itself. Minor also presented evidence from an informal survey of Virginia appellate attorneys, to establish the reasonableness of the fee rate of $210 per hour.
At approximately 10:15 a.m., as Minor was finishing his testimony, father returned to the courtroom wearing more appropriate dress. Father participated in the ongoing proceedings by raising two objections during the closing moments of Minor's testimony. The trial court gave father the opportunity to cross-examine Minor, limiting the scope of cross to the testimony father heard when he returned to the courtroom. Father repeatedly noted his objection to being barred from the courtroom due to his attire and his objection to the court's decision to limit the scope of his cross-examination. He declined to conduct any cross-examination of Minor.
Mother then called her expert witness, Bristol attorney Edward Stout ("Stout"). Minor began questioning Stout, and father objected that Stout had not been properly disclosed or qualified as an expert. The trial court noted that it had previously ruled that Stout was properly disclosed. Father conducted an extensive voir dire of Stout. Father challenged Stout's credibility and qualification as an expert by noting that he had no education or training in economics, vocational counseling, or statistics. Stout was, however, an attorney with thirty-five years of experience practicing in western Virginia. He had received several attorney's fees awards in his own practice, and he was familiar with the rates of other area attorneys in appellate practice. Over father's objection, the trial court qualified Stout as an expert. After the trialcourt's ruling, father made several requests to re-argue the issue of Stout's expert qualifications, noted numerous "exceptions," and accused the trial court of denying him his right to be heard.
Father conducted an extensive cross-examination of Stout, attacking the basis of his opinion that Minor's fee request was reasonable. Following Mr. Stout's testimony, mother testified on her own behalf and father cross-examined her. During his cross-examination, father again argued his theory that Minor should be disqualified as mother's attorney because they were married to each other. That issue had been previously decided and affirmed on appeal. Moreover, the trial court ruled that the argument was irrelevant to the question of attorney's fees.
Mother then called...
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