Karen A. DeLuca v. Denis Katchmeric

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Kelsey and Senior Judge Hodges
KAREN A. DELUCA
MEMORANDUM OPINION*
v. 	Record No. 3021-04-4 	PER CURIAM
JUNE 14, 2005
DENIS KATCHMERIC
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Karen A. DeLuca, pro se, on briefs).
(Michael A. Ward, on brief), for appellee.
Karen A. DeLuca, wife, appeals a decision of the trial court finding her in contempt of court
for failing to abide by the terms of the parties’ final divorce decree. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without merit. We summarily affirm the
decision in part, see Rule 5A:27, and we dismiss the appeal in part.
The parties were married in 1984 and separated in 2001. On June 25, 2004, the trial court
entered a final divorce decree which provided for the sale of the parties’ condominium within 120
days from the date of entry of the order. The final decree also provided that Denis Katchmeric,
husband, would pay the existing mortgage secured by the property until settlement on the sale of the
property. Wife refused to sign a listing agreement with a real estate agent for the sale of the
property. Husband filed a motion to compel wife to sign a listing agreement or the appointment of a
special commissioner to execute the listing agreement and related documents on her behalf if she
continued to refuse to sign the documents.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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On September 17, 2004, the trial court entered an order directing wife to sign a listing
agreement and all related documents. The order also appointed a special commissioner to act on
wife’s behalf in the event wife failed to sign the documents by the close of business on September
17, 2004. Wife failed to sign the listing agreement, and the special commissioner signed the
agreement on October 18, 2004.
Subsequent to the execution of the listing agreement, wife failed to cooperate with real
estate agents concerning their access to the condominium in order to show the property to
prospective purchasers. Husband again filed a motion to compel and a motion for finding of
contempt and sanctions based on wife’s failure to cooperate in the sale of the property. On
November 12, 2004, the trial court held a hearing wherein both parties presented evidence. The trial
court granted husband’s motions and ordered that a lock box be placed on the residence, that wife
provide to the real estate agent all keys necessary to gain access to the property, and that wife be
absent from the property when prospective buyers were looking at the residence.
In addition, the court granted husband’s request that wife be ordered to pay the monthly
condominium fees associated with the property beginning in November 2004. The court also
ordered that at the settlement husband would receive reimbursement for all principal paid by him on
the mortgage loan since the entry of the final divorce decree, plus interest at the judgment rate from
November 1, 2004 on the total amount of principal paid. Furthermore, the court ordered that wife
could obtain, at her own expense, a fair market appraisal of the property which she could present at
the next hearing. The trial court then continued the case until December 17, 2004 for a review of
the status of the sale of the property, for other proceedings consistent with the order, and to consider
husband’s request for attorney’s fees.
In addition to challenging the trial court’s finding of contempt, wife presents several
arguments concerning the trial court’s rulings regarding the sale of the condominium. For example,

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she asserts the trial court erred by ordering the placement of the lock box on the residence and
ordering her to leave the premises when it was being shown to prospective buyers. However, the
November 19, 2004 order from which wife appeals was not a final order concerning the sale of the
property. “‘A final order is one which disposes of the whole subject, gives all the relief
contemplated, . . . and leaves nothing to be done in the cause save to superintend ministerially the
execution of the order.’” Daniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35
(1964) (citations omitted). Indeed, the November 19, 2004 order specifically continued the matter
until December 17, 2004 for a review of the status of the sale of the property. The Court of
Appeals has appellate jurisdiction over final decisions of the circuit courts in domestic relations
cases and interlocutory orders involving injunctions or “adjudication [of] the principles of a
cause.” Code § 17.1-405. Therefore, to the extent wife’s appeal raises arguments concerning the
trial court’s rulings regarding the specifics of the sale of the condominium, this Court is without
jurisdiction to entertain the appeal. We dismiss those issues without prejudice.
Wife also asserts the trial court failed to act impartially in the case. However, wife failed
to present this argument to the trial court. “The Court of Appeals will not consider an argument
on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. Accordingly, Rule 5A:18 bars our
consideration of this question on appeal.
Wife contends the trial court abused its discretion by finding her in contempt because she
did not violate any court orders.
“Willful disobedience to any lawful . . . order of court is contempt and . . . punishable as
such.” Board of Supervisors v. Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954). A trial
court “has the authority to hold [an] offending party in contempt for acting in bad faith or for
willful disobedience of its order.” Carswell v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899,

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901 (1982). It is well established that “use of contempt powers is clearly subject to the discretion of
the trial court.” Sapp v. Commonwealth, 263 Va. 415, 425, 559 S.E.2d 645, 650 (2002). Even
where a court has found that a party to litigation has violated an order of the court and could be held
in contempt, the trial court retains its discretion whether to enter the finding of contempt and impose
sanctions. Wells v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894 (1991).
The final divorce decree, entered on June 24, 2004, provided that the condominium “shall be
sold within one hundred twenty (120) days from the entry of this Decree.” Husband’s evidence
established that wife repeatedly failed to cooperate in taking the necessary steps in order to sell the
property in compliance with the court’s order. Wife initially refused to sign a listing agreement
with a real estate agent, requiring the appointment of a special commissioner to execute the
agreement. Subsequently, wife failed to cooperate with real estate agents attempting to show the
property to prospective buyers. During this lengthy process, husband filed two motions to compel
wife’s cooperation in the sale of the property and the record shows that about six months passed
from the date of entry of the final divorce decree to the date of settlement for the sale of the
property. Therefore, the trial court’s decision finding wife in contempt is supported by the
evidence. Accordingly, we find no abuse of discretion in the trial court’s decision.
Wife also requests that we find husband and his attorney in contempt, and she asks for an
award of costs for her time and costs involved in this matter “trial court through appeal.” In wife’s
“Opposition to Motion To Compel, Motion for Findings of Contempt and Sanctions,” wife
requested that the trial court impose sanctions on husband and his attorney, including compensation
to her for her time and effort in defending the matter. On this record and where husband merely
sought wife’s compliance with the terms of the final divorce decree, we cannot say the trial court
abused its discretion by denying wife’s motions.

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Both parties request costs and attorney’s fees for matters relating to this appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context, and
upon consideration of the entire record in this case, we hold that husband is entitled to a reasonable
amount of attorney’s fees and costs. Accordingly, we remand the matter to the trial court for it to
determine the proper amount of the award.
Dismissed, in part,
affirmed, in part,
and remanded.