COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brie n and Senior Judge Annunziata Argued at Alexandria, Virginia

FARAH KHAKEE MEMORANDUM OPINION * BY v. Record No . 0990-18-4 JUDGE MAR Y GRACE O’BRIEN APRIL 9, 2019 DAVID W. RODENBERGER

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll, Judge Farah Khakee, pro se . (Camille A. Crandall; Kelly & Cra ndall PLC, on br ief), for appe llee. Appellee submitti ng on brief.
Farah Khakee (“wife”) appeals a pre-trial order dismissing wit h prejudice her motion to modify child support and awardin g attorney’s fee s to David Rode nberger (“husband”). 1 Wife contends that the court erred by dismissing her motion pre-tria l without a hearing on the merits and without prior entry of an order compelling discov ery. For the following reasons, we agree and reverse the court’s decision. 2

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.

1 Although wife also challenges the court’s dismissal of her req uest to modify spousal support, she withdrew that reques t at the hearing on May 23, 20 18. At that hearing, wife proceeded only on her request for a re duction in child support.

2 Wife also appeals a subsequent order denying her motions for a suspending order and reconsideration. Because we reverse the court’s order dismissi ng wife’s motion and requiring her to pay attorney’s fees, we do not address her contention that the court erred by denyi ng her motions to suspend and reconsider.UNPUBLISHED- 2 - BACKGROUND Husband and wife were divorced on July 30, 2013. The final or der of divorce granted wife primary physical custody of the parties’ two minor children and awarded her child and spousal support. In May 2015, the court transferred primary physical c ustody to husband and ordered wife to pay child support. Wife file d a motion to modify child supp ort in June 2016 that the court denied. She subsequently filed a motion to modify child and sp ousal support in April 2017. The court granted wife a nonsuit on that action in June 2017. In December 2017, wi fe filed another motio n to modify spousal and child support. She asserted that modification was wa rranted due to her unemploymen t beginning in April 2017. Husband served wife with interrogatories and a request for prod uction of documents on February 6, 2018. He requested inf ormation about wife’s finances, includin g all sources of her income, the balance of any bank accounts and debts, employment history, and expenses. Wife answered husband’s discovery requests on F ebruary 28, 2018, and suppleme nted her responses on May 15, 2018. She provided an income and expense statement, her tax re turns, pay stubs from employment obtained in 2018, and statements f rom several checking, savings , and retirement accounts. Husband filed a motion to dismi ss on May 22, 2018, one day bef ore the scheduled hearing on wife’s motion for modification. He clai med that wife did no t provide full and complete discovery responses because she f ailed to produce substantive d ocumentation of he r work history and efforts to secure employment. He also contended that wife’ s financial disclosure was incomplete. Husband had not prev iously filed a m otion to compe l in relation to wif e’s latest action seeking modification of support. On May 23, 2018, the parties convened for a hearing on their r espective motions to modify and dismiss. The court first considered husband’s motion to di smiss. Husband co ntended that a full financial disclosure from wife w as essential for the court to d etermine whether wife was voluntarily- 3 - unemployed or underemployed. He asserted that wife was require d to produce this information pre-trial under Hamm ers v. Hammers, 216 Va . 30 (1975), and Anto nelli v. Antonelli, 242 Va. 152 (1991). Wife responded that sh e had complied with discovery an d provided what she considered were the necessary financial disclosures. She also asserted th at the issues as to whether she was voluntarily unemployed or underemployed were factual matters fo r trial, not a mot ion to dismiss. The court dismissed wife’s mot ion to reduce child support with prejudice “based on [her] failure to provide a full and com plete financial disclosure pur suant to Hammers and Antonelli” and awarded husband $576 9 in attorney’s fees and costs. The court held that husband did not “have an obligation to file a motion to com pel when it is [wife’s] burde n to show, with a ful l and complete disclosure, the material change in circumstances” warranting a modification of support obligations. Wife filed a request for a susp ending order and a motion for r econsideration on June 12, 2018. However, n o suspending order was entered, and the court denied wife’s motion for reconsideration on Jun e 19, 2018, based on lack of jurisdiction under Supreme Court Rule 1:1.
ANALYSIS A. Motion to Dismiss Wife contends that the court e rred by dismissing her motion pr ematurely for failure to provide a full financial disclosure as required by Antonelli v. Antonelli, 242 Va. 152 (1991), and Hammers v. Hammers, 216 Va . 30 (1975). We agree. In granting husband’s motion to dismiss, the court correctly n oted that wife, as the moving party on a request to modify support based on her lack of abili ty to pay, had the burden to make a “full and clear disclosure” of h er financial situation. Hammer s, 216 Va. at 31. Wife also was required to demonstrate that sh e was not “voluntarily unemploye d or voluntarily under employed.” Antonelli, 242 Va. at 154 (quoting Code § 20-108.1(B)(3)). See also Reece v. Re ece, 22 Va. App. 368, 373 (1996) (exte nding Antonelli to requests for spousal su pport modification). However,- 4 - Hammers and Antonelli both addre ssed the moving party’s burden of proof in an evidentiary hearing, not at a pre-trial motio n. Hammers, 21 6 Va. at 31-32 (reversing the reduction of father’s child support obligation where he failed to demonstrate at an evidentiary hearing that his debt was not due to his ow n voluntary act o r neglect); Ant onelli, 242 Va . at 154, 156 (affirm ing the denial of a motion to reduce child support following an evidentiary hearing where father failed to meet his burden disproving voluntary underemployment). See also Edwards v. Lowry, 232 Va. 110, 112-13 (1986) (reversing tria l court’s decision to reduce child suppor t where the father failed to produce sufficient evidence at a hearing “showing himself fr ee of responsibility for his change in circumstances”). Here , wife never had the opportunity to intro duce any evidence or testify. Therefore, the court’s determination that wife had not met her burden of proof was premature. At the pre-trial hearing, and on appeal, husband argued that th e court’s dismissal of wife’s motion was not a discovery sanctio n, but rather an “enforce[ment of] the requisite burdens of proof” on a party seeking su pport modification bas ed on an inability t o pay. However, husband requested dismissal of wife’s motion based on her failure to produce accu rate and complete answers in discovery. Therefore, the recor d supports wife’s contention th at the court dismissed her action as a discovery sanction. “[W]e accord deference to a trial court’s decision regarding di scovery disputes and will set aside that decision only if the court abused its discretion.” Am. Safety Cas. Ins. Co. v. C.G. Mitchell Constr., Inc., 268 Va. 3 40, 351 (2004). A “[trial] co urt by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion s tandard includes rev iew to determine that the discretion was not guided by erroneous legal conclusio ns.” Porter v. Commonwealth, 276 Va. 203, 260 (2008) (q uoting Koon v. Unite d States, 518 U.S. 81 , 100 (1996)). See also Landrum v. Chippenham & Johnston-Willis H osps., Inc., 282 Va. 346, 358 (2011) (Millette, J., concurring)- 5 - (noting that failure to enforce an applicable discovery rule wo uld constitute “an error of law and consequently an abuse of discretion”). Supreme Court Rule 4:12 addresse s the procedure available to en force compliance with discovery requests. Rule 4:12(a) provides that “[a] party, upo n reasonable notice to other parties . . . may apply for an order co mpelling discovery.” If . . . a party fails to answer an interrogatory submitted und er Rule 4:8, or if a party, in response to a request for inspection sub mitted under Rule 4:9, fails to respon d that inspection will be permit ted as requested or fails to permit inspection as r equested, the disco vering party may move for an order comp elling an answer . . . or an or der compelling inspectio n in accordance with the request. Rule 4:12(a)(2). After granting a motion to compel, the court may also award “reasonable expenses incurred in obtaining the order, including attorney’s fees.” R ule 4:12(a)(4). The sanctions available to a trial court if a party fails to comply with a n order compe lling discovery are listed in Rule 4:12(b). The Rule provides, in relevant part, as follows: If a party . . . fails to obey an order to provide or permit di scovery . . . the court in which the action is pending may make such orders i n regard to the failure as are just , and among others the followi ng:

. . . . (C) An order striking out pleadi ngs or parts thereof, or stayi ng further proceedings until the or der is obeyed, or dismissing th e action or proceeding or any part thereof , or rendering a judgment by d efault against the disobedient party. Rule 4:12(b)(2)(C). It is uncontroverted that the court did not enter an order com pelling discovery because husband never filed a motion to c ompel. An order compelling di scovery “is a prerequisite for the imposition of sanctions under para graph[] (C) of Rule 4:12(b)(2 ).” Brown v. Black , 260 Va. 305, 310 (2000). The discretion to im pose a Rule 4:12(b)(2) discove ry sanction “was not intended to confer upon a court th e power to dismiss an action unless a par ty has violated an order compelling- 6 - discovery.” Id. at 311. Rule 4 :12(b)(2) does not “permit[] su ch a drastic sanction in the absence of the violation of an order compel ling discovery.” Id. The Supr eme Court has “often warned of the dangers of ‘short circuiting’ litigation because in doing so, a trial court ‘depriv[ es] a litigant of his day in court and depriv[es an app ellate court] of an opportunit y to review a [more] thoroughly developed record on appeal.’” W alsh v. Bennett, 260 Va. 171, 1 76 (2000) (quoting Seyfarth, Shaw, Fairweather & Geraldson v. Lake Fairfax Seven Ltd. P’ship, 253 Va. 93, 95 (1997)). Unlike Rule 4:12(b), Rule 4:12(d) gives the trial court author ity to “impose any of the sanctions listed in paragraphs ( A), (B), and (C) of subdivision (b)(2),” including dismissal of an action, “without prior entry of a Rule 4:12(b) order to compel regarding this failure.” 3 However, these remedies are only available when a party completely fails to respond to a discovery request. See Brown, 260 Va. at 313 (Kinse r, J., concurring) (“Subsection (d) [of Rule 4:12] applies when a party completely fails to respond to discovery requests, such a s not appearing at a deposition after proper service or not respondin g at all to a set of interrogato ries.”). See also Kapur v. Kapur, Nos. 0363-08-4, 0950-08- 4, at *3 (Va. Ct. App. May 19, 2009) (“Rule 4:12(d) sets forth the actions the trial court may take if a party completelyfails to respond to a discovery request.”). 4 Here, wife answered husband’s interrogatories and request for production of documents on February 28, 2018, an d supplemented her re sponses on May 15, 20 18. Wife provided her tax returns, several bank statements , pay stubs, and an income and expense statement. Because wife did not completely fa il to respond, the court did not have the authority to impose sanctions without

3 A court’s authority to impose sa nctions, includi ng dismissal, for a violation of Rule 4:12(d) without prior entry of an order compelling discov ery was part o f an amendment to that subsection effective April 1, 2018.

4 “While an unpublishe d case has no preceden tial value, courts d o ‘not err by considering the rationale and adopting it to the extent it is persuasive.’” Portsmouth Sch. Bd. v. Harris, 58 Va. App. 556, 565 n. 6 (2011) (quoting Fair fax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3 (1999) ( en banc )). See also Rule 5A:1(f) (“The citation of judicial opinions . . . that are n ot officially reported . . . is perm itted as informative, but sh all not be re ceived as binding authority.”).- 7 - prior entry of an orde r to compel under Ru le 4:12(d). To the e xtent that husband believed wife’s responses were insufficient, hus band’s remedy was to seek an or der compelling he r answers under Rule 4:12(a). If sh e failed to comply with that order, he coul d then request dismissal of her action. See Rule 4:12(b)(2)(C). Therefo re, the court abused its discre tion in dismissing wife’s motion before entering an order compelling her to remedy her unsatisfa ctory discovery responses. B. Attorney’s Fees Wife also contests the court’s order requiring her to pay husb and’s attorney’s fees. “An award of attorney’s fees is a ma tter submitted to the trial cou rt’s sound discretion and is reviewable on appeal only for an abuse of d iscretion.” Graves v. Graves, 4 Va. App. 326, 333 (1987). The three principal ways a court abuses its discretion are “whe n a relevant factor that should have b een given significant weight is not considered; when an irreleva nt or improper factor is consid ered and given significant weight; a nd when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.” Lambert v. Sea Oats Condo. Ass’n. Inc., 293 Va. 245, 252-53 (20 17) (quoting Manchester Oaks Homeowners Ass’n, Inc. v. Batt, 284 Va. 409, 429 (2012)). “[T]he key to a proper award of counsel fees [is] reasonablene ss under all of the circumstances revealed by the r ecord.” McGinnis v. McGinnis, 1 Va. App. 272, 27 7 (1985). The court erred in granting husband’ s motion to dismi ss wife’s acti on seeking modification of child support. Therefore, it failed to consider the significant fact or that wife should h ave prevailed on husband’s motion at the May 23, 2018 hearing when it ordered he r to pay attorney’s fees. For this reason, we also reverse the cour t’s award of atto rney’s fees to husband.- 8 - CONCLUSION We reverse the judgmen t of the court dismi ssing with prejudice wife’s motion to modify child support and gran ting husband attorney’s fees. We remand the case for further proceedings consistent with this opinion. Reversed and remanded.