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Saxon v. Zirkle

Court of Appeals of Columbia District

August 14, 2014

LORI A. SAXON, APPELLANT,
v.
TODD D. ZIRKLE, APPELLEE, and JANE KHOURY and OLIVIA BAKER, APPELLEES

Argued February 20, 2014

Page 569

Appeals from the Superior Court of the District of Columbia (DRB-3424-09). (Hon. Jeanette J. Clark, Trial Judge).

Robert Maxwell for appellant.

Todd D. Zirkle, Pro se.

Peter N. Mann filed a brief for appellee Todd D. Zirkle.

Jane Khoury of the District of Columbia Volunteer Lawyers Project, with whom Olivia Baker was on the brief, Pro se.

Before EASTERLY and MCLEESE, Associate Judges, and FERREN, Senior Judge.

OPINION

Page 570

McLeese, Associate Judge :

Following two bench trials, the trial court granted Ms. Saxon and Mr. Zirkle an absolute divorce, denied Ms. Saxon's request for alimony, awarded the parties joint legal custody of their child, modified Mr. Zirkle's child-support obligations, and imposed sanctions against Ms. Saxon and her counsel, in the form of attorney's fees to be awarded to the District of Columbia Volunteer Lawyers Project (" DCVLP" ).[1] In these appeals, Ms. Saxon challenges the trial court's imputation of $24,000 a year in income to Ms. Saxon, for purposes of determining alimony, child support, and sanctions. Ms. Saxon further argues that the trial court erred by awarding fees to DCVLP. We affirm.

I.

The following facts are undisputed. Ms. Saxon and Mr. Zirkle married in the District of Columbia and had one child. In November 2009, Ms. Saxon and Mr. Zirkle separated. Mr. Zirkle filed a complaint in Superior Court seeking custody of the child. The trial court subsequently ordered Mr. Zirkle to pay $1,368 per month in child support. The trial court also appointed two volunteer attorneys associated with DCVLP to serve as pro bono guardians ad litem (" GALs" ) for the child in all matters concerning custody and visitation. The appointment order provided that the GALs " shall have all rights of a party to the case" and " shall serve without compensation."

In January 2011, Mr. Zirkle filed for divorce in the Superior Court. The trial court bifurcated the divorce trial from the custody trial. After the divorce trial, the trial court issued a judgment of absolute divorce, denying Ms. Saxon's request for alimony payments. In denying the request, the trial court imputed income to Ms. Saxon in the amount of $24,000, because

Page 571

Ms. Saxon had been " voluntarily unemployed" since the separation.

After the custody trial, the trial court issued an order reducing Mr. Zirkle's child-support obligation from $1,368 to $980 per month. Among other things, the reduction reflected Ms. Saxon's imputed income of $24,000. The trial court also awarded joint legal custody of the child to Ms. Saxon and Mr. Zirkle, with Ms. Saxon having primary physical custody of the child and Mr. Zirkle having a right of reasonable visitation and the right to make final decisions regarding the child's safety and general welfare.

During the course of the lengthy pretrial proceedings, DCVLP moved for sanctions against Ms. Saxon and her counsel under Superior Court Domestic Relations Rule 11 (authorizing imposition of sanctions, including requirement to pay attorney's fees of opposing party, where party or attorney files frivolous or abusive motions). The trial court granted the motion, on the ground that Ms. Saxon and her counsel had filed motions that were not well-grounded in fact and that were intended to cause delay and to needlessly increase the cost of the litigation. The trial court required Ms. Saxon and her attorney to pay DCVLP $10,740 to compensate the GALs for the work they did in responding to those motions and in litigating the issue of sanctions.

II.

We address first Ms. Saxon's challenges to the trial court's decisions to impute $24,000 in income to Ms. Saxon in determining alimony, child support, and Rule 11 sanctions. " A trial court has a considerable measure of discretion in determining the appropriate amount of alimony and child support based on its determination of net income." Araya v. Keleta, 65 A.3d 40, 48 (D.C.) (internal quotation marks omitted), cert. denied, 134 S.Ct. 426, 187 L.Ed.2d 282 (2013). " That determination will not be disturbed on appeal unless the [trial] court clearly abused its discretion." Id. (internal quotation marks omitted). Furthermore, we defer to the trial court's findings of fact unless they are " plainly wrong or without evidence to support [them]." D.C. Code § 17-305 (a) (2012 Repl.).

The issue of imputation first arose at an alimony hearing. During the course of that hearing, the following evidence was admitted on that issue: Ms. Saxon had a bachelor's degree from college; had two real-estate licenses; had been in the real-estate profession for over twenty-four years; and had earned as much as $189,000 per year as a real-estate agent. Ms. Saxon testified that her income had dropped recently, because she had stayed home to home-school the child, but that the child was now in school. Ms. Saxon testified that she was trying to return to real estate, but that the real-estate market was depressed, which limited her ability to earn income. She had one current listing, which was her own home, and had earned little income as a real-estate agent since the market declined. She had earned only $850 in the past year from " odd jobs," such as buying and selling antiques, and was living off of her $40,000 retirement. Ms. Saxon had explored the possibility of substitute teaching in Virginia. She had spoken with three principals in Virginia schools who told her that schools were " always looking ...


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