                     COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


ANTHONY A. SANCHEZ
                                          MEMORANDUM OPINION** BY
v.   Record No. 0195-97-4                  JUDGE LARRY G. ELDER
                                            NOVEMBER 25, 1997
MELANIE SANCHEZ


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       Donald M. Haddock, Judge
            Anthony A. Sanchez, pro se.

            (Henry Counts, Jr., on brief), for appellee.



     Anthony A. Sanchez (husband) appeals an order of the trial

court awarding attorney fees to Melanie Sanchez (wife) as a

sanction.    He contends that the trial court's sanction was an

abuse of discretion.    For the reasons that follow, we reverse.

                                  I.

                                 FACTS

     Husband and wife were divorced in Michigan in 1992.      A

Michigan court awarded the parties joint physical and legal

custody of their two children.    The parties now reside in

Virginia, and their relationship regarding the joint custody of

their children has been contentious.      At all times during the

present proceeding, husband represented himself pro se.
     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     In December 1995, husband filed a petition to change child

custody in the Alexandria Juvenile and Domestic Relations

District Court (J&DR court).    His petition alleged that wife

breached the Michigan custody decree and requested the J&DR court

to award him full custody of the parties' children.   The J&DR

court denied husband's petition.    On March 29, 1996, husband

appealed to the trial court.

     On May 8, the trial court issued a pretrial order regarding

the time frame for discovery.   The pretrial order stated, among

other things, that "lists of exhibits and witnesses shall be

exchanged by counsel and the lists filed with the Court 30 days

prior to trial."   (Emphasis added).   The trial date for husband's

petition was set for September 6.

     On May 16, wife filed her own petition to change child

custody with the trial court.   Her petition alleged that husband

had become "highly emotionally unstable" and requested the trial

court to award her full custody of the parties' children.

     On August 2, wife filed her list of witnesses with the trial

court.   Husband did not file a list of witnesses with the trial

court prior to trial.

     On September 6, the trial court held a hearing on the

parties' respective petitions to change child custody.   Pursuant

to wife's motion, the trial court barred husband from offering

testimony from any witnesses because he had violated the pretrial

order by failing to file a witness list at least thirty days



                                 -2-
before trial.   Husband then requested a nonsuit of his petition

to change child support and stated that he was prepared to defend

against wife's petition.   The trial court dismissed husband's

petition without prejudice and requested wife to begin her case.

     Wife then moved to nonsuit her petition and moved the trial

court to award her attorney fees.        Wife's counsel stated that he

had agreed to charge wife a flat fee of $1,000 for his

representation regarding the petitions to change child custody

but that he "had expended several thousand dollars in time."

Wife's counsel argued that the trial court should sanction

husband based on two grounds:    (1) husband had required wife's

counsel to "attend numerous hearings on this case in addition to

the present trial" and (2) husband had required wife's counsel to

prepare for the hearing on husband's petition "only to have

[husband] nonsuit the action."     The trial court nonsuited wife's

petition and ordered husband to pay $1,000 in attorney fees to

wife's counsel.   Apparently in support of its award of attorney

fees, the trial court found that husband "had used the judicial

process to harass [wife] and run up her counsel fees without

justification."   The trial court signed an order formalizing its

action on November 27.
                                   II.

                           ATTORNEY FEES

     Appellant argues that the trial court's sanction was an

abuse of discretion.   We agree.




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     Initially, we disagree with husband's contention that the

trial court exceeded its authority under Code § 8.01-380 by

sanctioning husband for nonsuiting his petition to change child

custody.   Although Code § 8.01-380 empowers a trial court to

assess attorney fees against a nonsuiting party only after a

second or subsequent nonsuit of a cause of action, the trial

court's award of sanctions against husband was not based upon

husband's nonsuit.   Instead, the record indicates that the trial

court sanctioned husband for using "the judicial process to

harass [wife] and run up her counsel fees without justification."

Thus, we consider whether the trial court's award on this ground

was an abuse of discretion.
     Under Code § 8.01-271.1, a trial court has the power to

sanction a pro se litigant who files pleadings or motions "for

any improper purpose, such as to harass or cause unnecessary

delay or needless increase in the cost of litigation."        The

sanction ordered by the trial court "may include an order to pay

to the other party or parties the amount of the reasonable

expenses incurred because of the filing of the pleading [or]
                                                          1
motion . . . , including a reasonable attorney's fee."        Code
     1
      Code § 8.01-271.1 states in relevant part:

           Every party who is not represented by an
           attorney shall sign his pleading, motion, or
           other paper and state his address.

                The signature of . . . [a] party
           constitutes a certificate by him that (i) he
           has read the pleading, motion, or other
           paper, (ii) to the best of his knowledge,



                                -4-
§ 8.01-271.1 has two primary purposes:     (1) to "protect litigants

from the mental anguish and expense of frivolous assertions of

unfounded factual and legal claims and against the assertions of

claims for improper purposes" and (2) "to protect courts against

those who would abuse the judicial process."     Oxenham v. Johnson,

241 Va. 281, 286, 402 S.E.2d 1, 3 (1991).    However, the purpose

of Code § 8.01-271.1 is not "to stifle counsel in advancing novel

legal theories or asserting a client's rights in a doubtful

case."   Id.   "In reviewing the trial court's decision [to award

sanctions under Code § 8.01-271.1], we apply an

abuse-of-discretion standard."    Nedrich v. Jones, 245 Va. 465,

472, 429 S.E.2d 201, 204 (1993) (citing Oxenham, 241 Va. at 287,


           information and belief, formed after
           reasonable inquiry, it is well grounded in
           fact and is warranted by existing law or a
           good faith argument for the extension,
           modification, or reversal of existing law,
           and (iii) it is not interposed for any
           improper purpose, such as to harass or to
           cause unnecessary delay or needless increase
           in the cost of litigation. . . .

                   *    *    *    *    *     *    *

                If a pleading, motion, or other paper is
           signed or made in violation of this rule, the
           court, upon motion or upon its own
           initiative, shall impose upon the person who
           signed the paper or made the motion, a
           represented party, or both, an appropriate
           sanction, which may include an order to pay
           to the other party or parties the amount of
           the reasonable expenses incurred because of
           the filing of the pleading, motion, or other
           paper or making of the motion, including a
           reasonable attorney's fee.



                                 -5-
402 S.E.2d at 4).    A trial court's award of sanctions is an abuse

of discretion if its ruling is based on an erroneous view of the

law or a clearly erroneous assessment of the evidence.    See

Oxenham, 241 Va. at 287, 402 S.E.2d at 4.

     We hold that the trial court abused its discretion when it

imposed sanctions upon husband.    Specifically, the record is

devoid of evidence supporting the trial court's finding that

husband used "the judicial process to harass [wife] and run up

her counsel fees without justification."    The record indicates

that husband filed five motions in between the filing of his

petition to change child custody and the hearing on September 6,

only one of which was denied.   First, on May 17, 1996, husband

filed a motion to compel wife to pay her share of the childrens'

medical expenses in accordance with the Michigan custody decree,

which was denied.    Second, on May 31, husband filed a motion for

a bill of particulars seeking a more specific explanation of the

allegations contained in wife's petition to change child support,

which was granted.   Third, on July 2, husband filed a motion to

dismiss wife's petition on the ground that she was late in filing

her bill of particulars.   Two days before husband's motion was

scheduled to be heard, wife's counsel filed the bill of

particulars and paid $100 as a sanction.    Fourth, on July 22,

husband filed a motion to dismiss wife's petition and a motion in
limine on the ground that litigation of many of the allegations

contained in wife's bill of particulars was barred by the



                                  -6-
doctrine of res judicata.   The trial court granted husband's

motion in limine and ordered that all factual allegations that

occurred prior to May 1994 be stricken from wife's petition.

Fifth, and lastly, on August 23, husband filed a motion to forbid

wife from "taking the children to third party custody hearings."

A praecipe accompanying the motion requested that a hearing on

the motion be scheduled for August 28; however, the record does

not indicate whether the trial court ever heard this motion.

Based on the evidence regarding the substance of husband's

motions and their respective outcomes, we conclude that the trial

court was "clearly erroneous" when it found that husband's

pre-hearing motions practice was both unjustified and intended as

a pretext to inflict anguish and expense upon wife.
     For the foregoing reasons, we reverse the trial court's

award of attorney fees.

                                                        Reversed.




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