Estate of Hackler v. Hackler, Record No. 1827-03-2.

CourtCourt of Appeals of Virginia
Citation44 Va. App. 51,602 S.E.2d 426
Decision Date21 September 2004
Docket NumberRecord No. 1827-03-2.
PartiesESTATE OF Lewis R. HACKLER v. Janice W. HACKLER.

Adrienne George-Eliades (The Eliades Law Firm, P.L.L.C., on briefs), Hopewell, for appellant.

Denis C. Englisby (Englisby, Englisby, Vaughn & Englisby, on brief), Chesterfield, for appellee.



The estate of Lewis R. Hackler appeals several rulings arising from a divorce proceeding between Lewis R. Hackler, deceased, and Janice W. Hackler. Husband's estate contends that the trial court: (1) erred in appointing a conservator during the proceedings; (2) erred by not abating and/or dismissing the divorce action upon the death of husband; (3) erred in awarding wife $77,437; and, (4) abused its discretion in awarding conservator's fees, to be paid by husband. Wife presents an additional question, which is whether appellant failed to timely appeal. Both parties have requested attorney's fees and costs. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

I. Background

Husband and wife married in 1984 and separated in 1999. In November 1999, husband filed a bill of complaint for divorce, and husband sought adjudication of the parties' property rights. Wife cross-filed and requested pendente lite relief.

On November 15, 1999, the court entered a pendente lite order providing, inter alia, that husband support wife and provide for her health needs and that the parties be enjoined from selling, disposing, or concealing marital property until further order of the court, except for making reasonable expenditures for living expenses, attorney's fees, court costs and reasonable costs associated with the case.

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

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

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

should not entertain any and all appropriate motions under Rule 4:12 of the Rules of the Virginia Supreme Court, including, but not limited to, appointing a conservator or guardian to manage the marital assets in the control of the defendant until a Final Decree can be entered in this case.

Husband did not appear at the show cause hearing. The court found him in contempt of its previous orders as cited in the show cause order. To remedy the situation, the court appointed a conservator to take receipt of all funds and accounts under husband's control. The court entered a separate order appointing the conservator, which outlined the conservator's duties to receive the funds and accounts under husband's control, maintain an accounting of the accounts, pay husband's obligations as previously ordered by the court, and to provide a monthly report on the accounts to both parties.

After appointing the conservator, the court held several more hearings for status updates and to receive reports from the conservator. In spite of the court's appointment of the conservator, further violations of the court's orders by husband were reported.

Then, in June 2002, it was reported to the court that husband had died and that his son was executor of the estate. Husband's counsel moved for the immediate transfer of the funds under the conservator's control to the estate, arguing that the case was abated due to husband's death. Wife's counsel represented to the court that she would take a nonsuit and pursue the estate, but also argued that the court's orders were still in effect and required further rulings. The trial court denied the motion to abate, continued the matter until September 2002, and ordered counsel to submit letters outlining their respective positions. At that time, the conservator submitted a statement of his fees to the court for $5,700.

Wife submitted that the court could still rule on the contempt dispositions. She contended that in cases of civil contempt for the violation of an injunction the court could impose punishment in the form of a fine or imprisonment or afford the injured party remedial relief for the violations. She requested the court to order remedial damages in the amount of fifty percent of the amount of the funds husband had transferred out of the estate.

Counsel for husband submitted that the divorce action abated upon the death of husband, thus relieving the court of any jurisdiction to make any further determinations in the case, including ruling on the contempt disposition. Husband's counsel asserted that the deceased could not purge himself of contempt and if the court ruled on the contempt disposition, it would punish the estate. Counsel also argued that the court could not determine remedial damages because it had no evidence before it with regard to the precise amounts transferred, the value of the marital estate, or whether the marital estate even exceeded the assets in control of the conservator. Husband's counsel further argued that wife would receive her portion of husband's estate and, therefore, she did not need to be awarded any remedial relief.

After hearing argument on transferring the assets under control of the conservator to the estate, the court issued an opinion letter, dated September 6, 2002, ordering, among other sums, that the conservator pay wife $77,437 in order to purge husband of contempt. The court also ordered the conservator to pay itself $5,700 for its services, and to file a final accounting. Husband's counsel requested a stay of disbursement pending appeal.

The court entered a "Final Order" on January 31, 2003. The order provided that "[a]fter the final accounting [by the conservator] is reviewed and approved by this Court, this Court will end the cause."

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

On June 18, 2003, as a result of an earlier teleconference with the parties, the court ordered the February order abated, denied the motion to stay disbursement of funds, and ordered funds to be disbursed to wife at her request unless and until husband posted a supersedeas bond in the amount of $100,000. The court stated that the order was final for purposes of appeal, but not for the conservator, whom the court found to be under a continuing duty to file a final accounting once the funds were disbursed according to the court's orders.

Husband's counsel, on behalf of husband, filed a notice of appeal on July 11, 2003. In August 2003, by order of the court, husband's estate was substituted for husband in this matter. The court entered a written statement of facts in September 2003.

II. Analysis

In her reply brief, wife presents a question on appeal asking whether appellant is properly before this Court because it failed to timely file a notice of appeal after the court's "final order" of January 31, 2003. Wife contends that the January order disposed of all the issues in the case and left only a final accounting by the conservator, effectively ending the cause. Because we must decide wife's question before addressing husband's estate's questions, we discuss it first.

A. The January 31, 2003 Order Was Not a Final Order for Purposes of Appeal

To perfect an appeal to this Court, an appellant must satisfy the jurisdictional requirements as set forth in the applicable statutes and Rules of the Virginia Supreme Court. In addition to filing a notice with the trial court, Code § 17.1-407, the notice of appeal "shall be filed within thirty days from the date of any final judgment order, decree or conviction." Code § 8.01-675.3; see also Rule 5A:6(a). Otherwise, "[n]o appeal shall be allowed...." Id. Rule 5A:3(a) states that "[t]he times prescribed for filing the notice of appeal ... are mandatory."

Husband's estate did not file a notice of appeal within thirty days of the entry of the trial court's January 31, 2003 order. However, husband's estate did file an appeal on July 11, 2003, which was within thirty days of the trial court's order of June 18, 2003, which stated that it was to be considered a "`Final Order' for purposes of appeal, should either side wish to appeal...." Because husband's estate did not file a notice of appeal from the January 31, 2003 order, we must decide whether that order was final and appealable.

Rule 1:1 of the Rules of the Virginia Supreme Court states:

All final judgments, orders, and decrees ... shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.... The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.

"Generally speaking, a final order for purposes of Rule 1:1 `is one which disposes of the whole subject, gives all the relief contemplated, provides with...

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