Litigation Procedure and Law - § 8-6 - § 8-10 (C)
2019 --- Mills v. Mills, Va. Ct. Appeals, No. 1630-18-2
Contempt citations are of two classes – civil and criminal. A proceeding for civil contempt is to procure the imposition of a punishment which will afford remedial relief to the parties injured. In general, a person found in civil contempt can avoid any sanction imposed by simply providing the relief to which the other party is entitled. Further, a contempt sanction based on an affirmative order that addresses an ongoing contemptuous act is typically in the nature of civil contempt because it may be purged at any moment by the contemnor’s performance of the mandated act.
In contrast, a criminal contempt proceeding is prosecuted to preserve the power and to vindicate the dignity of the court. In cases of criminal contempt, the punishment, whether fine or imprisonment, is deemed to be criminal if it is determinate and unconditional (i.e., the punishment cannot be avoided by compliance). Because criminal contempt sanctions are in the nature of criminal penalties, Constitutional protections pertaining to criminal proceedings must be applied, including the requirement that the offense be proved beyond a reasonable doubt.
Here, the circuit court did not err in: i) ordering Wife to obtain an insurance policy insuring her life and naming the children as beneficiaries (based on its finding that Wife failed to maintain an existing policy pursuant to the parties’ Property Settlement Agreement (“PSA”)); ii) in ordering Wife to pay Husband $1,066 (based on its finding that Wife claimed the parties’ minor child as a dependent on her federal income tax return in violation of the parties’ PSA); or iii) in classifying those sanctions as in the nature of civil contempt. The circuit court’s sanctions for these violations were an attempt to restore husband to something approximating the position he would have been in if wife had not violated the PSA and thus constituted classic civil contempt sanctions. However, the circuit court erred in ordering Wife to pay a fine to the court based on its finding that Wife disparaged Husband in the presence of the parties’ child in violation of the parties’ PSA. Such a sanction was imposed for conduct that was definite and determinate as opposed to a sanction to force the performance of some future act. Accordingly, the sanction imposed was in the nature of criminal contempt, which required Wife’s alleged conduct to be proved beyond a reasonable doubt.
2018---Aviles v. Lewis, Va. Ct. of Appeals, Unpublished, No. 1780-17-4
The trial court erred in holding husband in contempt for violating the parties’ divorce decree as he did not violate an express command. The divorce decree provided, in relevant part, “the parents will consult with each other before making any major decisions regarding the child’s health, education, religion, or well-being.” Father, a practicing Catholic, notified mother of the date of the child’s first communion, but the child was unable to take communion on that date because mother had custody on that date. Subsequently, without informing mother, father took the child to church on an alternate date where the child took his first communion. At no point did mother object to the child’s taking communion. While father’s obligation to provide mother with the new date and time of the communion may have been implied under his duty to consult, it was not explicitly stated in the decree.
2018---Monds v. Monds, Va. Ct. Appeals, No. 1458-17-1
The trial court had the authority to order Husband to pay $10,000 to Wife despite the fact that it declined to find Husband in contempt of the final divorce decree (which incorporated the parties’ separation agreement). Monetary awards arising from divorce cases are unique and circuit courts are provided with significant statutory authority to enforce those awards. Monetary awards in divorce cases compensate a party for his or her rights, equities, and interests in marital property. As a result of the unusual nature of monetary awards arising out of divorce, trial courts are vested with the “continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered” under Code § 20-107.3(K) governing equitable distribution of divorcing parties. Accordingly, the trial court had the authority to interpret the final divorce decree (including the incorporated agreement, pursuant to Code § 20-109.1), to determine whether the parties’ obligations in the final divorce decree had been met, and to make any additional orders necessary to effectuate and enforce its terms.
2018---Staley v. Staley, Va. Ct. of Appeals, Unpublished, No. 1414-17-1
The Court of Appeals dismissed without prejudice Husband’s appeal of the trial court’s order dismissing his petition for rule to show cause against Wife and awarding Wife her attorney’s fees. For the reasons set forth in Newton v. Jones, 66 Va. App. 20 (2016), Code of Virginia §§ 19.2-318 and 17.1-405 the Court of Appeals lacked appellate jurisdiction to review Husband’s appeal of the trial court’s order dismissing his rule to show cause. Likewise, the Court of Appeals lacked jurisdiction to review the trial court’s award of attorney’s fees to Wife. The trial court based its attorney’s fees award on a provision of the parties’ separation agreement, which was incorporated into the final order of divorce, and which required the court to award attorney’s fees to the prevailing party in an action to enforce the separation agreement. Thus, the trial court’s award of attorney’s fees was dependent on Wife prevailing against the allegations of why she should be held in contempt. Because the Court of Appeals lacked jurisdiction to review the trial court’s ruling that Wife was not in contempt, it also lacked jurisdiction to review the award of attorney’s fees based on that ruling.
2018---Green v. Green, Va. Ct. of Appeals, Unpublished, No. 0380-17-4
The trial court did not err in granting Mother the relief requested in her affidavit and petition for rule to show cause even though the trial court refused to find Father in contempt of the final order of divorce, which incorporated the parties’ property settlement agreement. The provision of the parties’ agreement at issue required Father maintain the child’s medical insurance coverage and to pay one-half of the child’s unreimbursed medical expenses for so long as the child was eligible to be covered by medical insurance. Father interpreted this provision as requiring him to maintain insurance and pay the child’s unreimbursed medical expenses until the child reached the age of majority. Although the trial court determined that Father’s interpretation of the agreement was incorrect, it also found that Father’s interpretation was not unreasonable, and thus, it refused to find Father in contempt. Although Mother filed an affidavit and petition for rule to show cause, rather than a motion to enforce the agreement, her pleadings sufficiently recited the relevant facts required for the trial court to award her the relief requested. To hold that Mother is not entitled to relief because she filed a petition for rule to show cause, rather than a motion to enforce as argued by Father, would place the form of pleadings over substance.
2018---Timmons v. Mutiso, Va. Ct. of Appeals, Unpublished, No. 1158-17-4
The trial court did not err in holding Father in contempt of court for violating the court’s custody and visitation order, which provided Mother with unsupervised visitation with the child. Although the child’s mental health counselor recommended that Mother’s visitation with the child should be supervised, such recommendation had no effect on Father’s obligation to comply with the order. In other words, the mental health counselor’s recommendation did not give rise to anything approaching an inability of Father, without fault on his part, to render obedience to the court’s order.
2017---Kahn v. McNicholas, Va. Ct. of Appeals, No. 0982-16-4
The trial court did not err in holding Husband in contempt for failing to pay a monetary award ordered by the court in the final order of divorce via incorporation of the parties’ property settlement agreement (“PSA”). Code of Virginia §§ 20-109.1 and 20-107.3, provide circuit courts with the authority to enforce monetary awards through their contempt power. The purpose of Code § 20-109.1, which addresses the affirmation, ratification and incorporation of the terms of a separation or property settlement agreement into a decree of divorce, is to facilitate enforcement of the terms of an incorporated agreement by the contempt power of the court. Further, although Code § 20-107.3(D) provides that monetary awards may be enforced as a money judgment, Code § 20-107.3(K)(2) provides that a court may also enforce monetary awards through the court’s contempt power. Accordingly, the trial court had the authority to enforce Husband’s payment obligations set forth in the parties’ PSA through the court’s contempt power.
2017---Kahn v. McNicholas, Va. Ct. of Appeals, No. 0982-16-4
Any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice is contempt. It is essential to the proper administration of the law to enable courts to enforce their orders, judgments and decrees, and to preserve the confidence and respect of the people without which the rights of the people cannot be maintained and enforced. A court has discretion in the exercise of its contempt power.
2017---Hartman v. Hogg, Va. Ct. of Appeals, Unpublished, 0019-17-2
The trial court did not err in holding Wife in contempt of the final order of divorce for her failure to pay expenses pertaining to the parties’ adult-children’s college expenses as set forth in a property settlement agreement between the parties (“PSA”), which was incorporated into the final order of divorce. Although Wife claimed that the parties had not considered the financial resources available to them prior to the children’s college attendance as required by the PSA, the record indicates that Wife paid her share of the college expenses during the first academic year, and that she made a portion of her payments during the second academic year. While Wife could have opposed the college expenses provision in the PSA by voicing her dissent or refusing to pay, she nonetheless paid and sat in silence. Accordingly, Wife, by her own actions, ratified the agreement. Additionally, although Wife contends that the parties failed to consult with each other in selecting the children’s colleges as required by the PSA, the record demonstrates that Wife made no effort to consult or communicate with Husband or the children about where the children wanted to go to college.
2016---McGeorge v. McGeorge, Va. Ct. of Appeals, Unpublished, No. 0413-16-2
The trial court did not err in finding Father in contempt for failure to pay child support in accordance with the parties’ property settlement agreement and final order of divorce. Although Father contended the parties had agreed to modify the child support set forth in the PSA via a series of letters and emails exchanged through counsel, the agreement unambiguously provided that child support could only be modified through submission of a consent order or through judicial modification. Because the parties never submitted a consent order to modify child support, it was not necessary for the trial court to consider the emails and letters exchanged because those settlement negotiations were never formalized into a consent order and entered by the court.
2016---Carrano v. Carrano, Va. Ct. of Appeals, Unpublished, No. 0693-15-4
Code § 20-109(c) forecloses using a purge plan in a civil contempt matter as a device to effectively modify the terms of a valid settlement agreement entered into by parties.
2016---Newton v. Jones, 66 Va. App. 20 (2016)
No appeal lies from a circuit court order refusing to find a party in contempt.
2015---Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
The trial court erred by finding Husband’s counsel in contempt. Although the trial court requested counsel for both parties to determine the disability benefits available to Husband and to stipulate to them, such request did not constitute an oral order from the bench stated in definite terms. Rather, the court’s request was exactly that, a mere request stated in indefinite terms. The Court of Appeals also noted concern regarding whether the trial court had the authority to order counsel to produce evidence that he or she may believe is prejudicial to his or her client, or to order counsel to stipulate to such evidence.
2015---Wilson v. Britton, Va. Ct. of Appeals, Unpublished, No. 0520-15-1
The trial court did not err in finding Mother in civil contempt for failure to pay child support despite Mother’s allegation that Father owed her child support under a prior support order. Said allegation did not justify Mother’s disobedience of the current order requiring her to pay.
2014---Quinn v. Irons, Va. Ct. of Appeals, Unpublished, No. 0851-14-4
The trial court did not abuse its discretion by finding Wife in contempt of court for violating the parties’ property settlement agreement. A trial court is permitted to use its contempt power to enforce an agreement incorporated into a divorce decree. Use of contempt power lies within a trial court’s discretion. Here, the parties’ agreement, which the trial court incorporated into the final divorce decree, required Wife to “retain” two section 529 college savings accounts for the parties’ children ages six and nine. Shortly after the parties’ executed the agreement, Wife completely liquidated one of the college savings accounts and withdrew significant funds from the other. Thus, Wife violated the express terms of the agreement and subjected herself to the trial court’s contempt power.
2014---Heffernan v. Commonwealth of Virginia, Va. Ct. of Appeals, Unpublished, No. 2103-13-4
The trial court erred by holding a party in summary contempt where the alleged conduct that served as the basis for the party’s summary contempt occurred outside of the presence of the trial court.
2012---Zedan v. Westheim, 60 Va. App. 556
The trial court erred in finding father in contempt for failure to pay child support where father never received notice of the presentation or entry of the order establishing his child support obligation, pursuant to Code §20-99.1:1(A). Absent such notice, father’s disobedience of the order regarding child support could not have been willful.
2012---Bousman v. Lhommedieu, Va. Ct. of Appeals, Unpublished, No. 0932-11-4
The trial court did not err in refusing to allow husband to present evidence of wife’s prior breaches of their settlement agreements when defending against wife’s show cause for husband’s own breach. Though principles of contract law dictate that a material breach by one party will excuse non-performance by the other, when a court incorporates the contract into a decree pursuant to Va. Code §20-109.1, a party may not suspend his/her performance even when the other party is in breach. Instead, the non-breaching party must continue to comply with the terms of the decree until modified by the court. When a party invokes a court’s contempt authority through a show cause action seeking to bring a party in compliance with the court’s decree, it is the decree, not the contract, that is being enforced.
2010---Hughes v. Hughes, Va. Ct. of Appeals, Unpublished, No. 2602-09-4
Trial court erred in finding Husband in contempt for unilaterally reducing child support upon the emancipation of the parties’ oldest child, where the parties’ settlement agreement contemplated a reduction upon the emancipation but did not contain specific provisions regarding how and by how much child support would be reduced. Because the agreement did not contain specific language regarding the reduction of the obligation, Husband could not have violated a “clearly defined duty imposed upon him” by the agreement or the divorce decree.
Husband was not entitled to unilaterally reduce child support by half upon the emancipation of one of the children where the parties' settlement agreement, though identifying emancipation as a material change on which a future reduction could be based, did not contain self-executing language setting forth precisely how the child support was to be modified upon the emancipation.
2010---Jackson v. Jackson, Va. Ct. of Appeals, Unpublished, No. 2481-09-4
The trial court did not err in finding husband guilty of contempt even though husband complied with the court’s show cause order by paying money owed to wife by the deadline contained in the order. Because the order contained only a deadline rather than an actual “purge” clause, the court had the authority to adjudge him in contempt despite his timely compliance.
2010---Serdah v. Williams-Serdah, Va. Ct. of Appeals, Unpublished, No. 1664-09-3
Use of contempt power is within the discretion of the trial court. Sapp v. Commonwealth, 263 Va. 415 (2002). 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 (1982). However, even where a trial 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 (1991). If the actions of the alleged contemnor do not violate a clearly defined duty imposed on him or her by a court’s decree, the alleged contemnor’s actions do not constitute contempt. Wilson v. Collins, 27 Va. App. 411 (1998). Thus, there must be an express command or prohibition which has been violated in order for a proceeding in contempt to lie. Petrosinelli v. People for Ethical Treatment of Animals, 273 Va. 700 (2007).
2007---Hosier v. Hosier, Va. Ct. of Appeals, Unpublished, No. 0767-06-1
If sufficiently specific, an oral order may be enforced through the court’s contempt powers. Contempt powers apply to a court’s oral orders, commands and directions no less than to its written orders. Robertson v. Commonwealth, 181 Va. 520 (1943). Were it otherwise, a litigant could disobey an oral order with impunity and immunize himself from punishment by delaying the entry of the written order until after the contemptuous behavior has run its course.
2007---Garnier v. Garnier, Va. Ct. of Appeals, Unpublished, No. 2876-06-4
The trial court did not err in finding husband in contempt for violating certain provisions of a final divorce decree based solely on wife’s petition and a sworn affidavit stating that the allegations in the petition were true. Although wife presented no evidence at the hearing, husband did not object or offer any evidence to rebut the allegations contained in wife’s petition or affidavit.
2007---Mooney v. Mooney, Va. Ct. of Appeals, Unpublished, No. 1961-06-4
There was no abuse of discretion in the trial court’s finding Husband in contempt for failure to pay his previously ordered spousal and child support. The court’s conclusion that Husband willfully failed to pay his support obligations was supported by the evidence.
2005---Figueroa v. Nelson, Va. Ct. of Appeals, Unpublished, No. 2221-04-4
Trial court did not err in requiring husband to pay $15,000 in attorney’s fees incurred by wife for her motions to modify visitation, child support, and her petition for show cause against husband, despite language in the parties’ settlement agreement that each party would be responsible for their own attorney’s fees in connection with any future matters. Courts have the power to award attorney’s fees incurred where contempt proceedings have to be initiated and conducted to enforce a prior order of the court, particularly in cases of child custody or child support. No contractual agreement regarding attorney’s fees prevents a court from awarding fees and costs in subsequent custody litigation in which one party is held in willful contempt of prior court orders.
2004---Estate of Hackler v. Hackler, 44 Va. App. 51
Where husband refused to answer discovery regarding financial and asset information in divorce proceeding, and refused to abide by pendente lite orders to provide support and maintenance, the trial court had the authority under Rule 4:12 to appoint a conservator to take over and manage husband’s assets, to pay support from husband’s accounts, and to acquire the information requested by wife in discovery.
Despite the fact that the trial court entered a show cause against husband, while husband was still alive, for violating pendente lite orders, the trial court erred by entering an order, after husband’s death, that the conservator pay wife $77,000 out of husband’s estate to purge the contempt. Once husband died, the trial court lost jurisdiction to dispose of the contempt holding because the divorce suit itself had abated. A civil contempt may be prosecuted in the cause out of which it arose and not as a separate proceeding. When the jurisdiction to enter a decree in the main cause ends, no jurisdiction survives as to matters purely ancillary to that object.
2002---Cherry v. Cherry, 38 Va. App. 693
A trial court may issue a money judgment on a rule to show cause.
2002---Metcalf v. Metcalf, Va. Ct. of Appeals, Unpublished, No. 1208-01-4
The trial court erred in finding husband in contempt for violating a provision of the parties’ settlement agreement that the trial court deemed “ambiguous.” The settlement agreement obligated husband to “continue to maintain Wife as beneficiary of $100,000 of his existing life insurance” as long as husband had an obligation to pay spousal support. When husband retired, he ceased to be covered under a policy provided by his employer, at which point he no longer maintained wife as a beneficiary of $100,000 in death benefits. Husband argued that the use of the term “existing” in the provision meant that once the policies existing at the time of the agreement were no longer available, he had no obligation to acquire additional policies. Because the trial court deemed the provision to be ambiguous, it necessarily meant that the obligation was not a “clearly defined duty” on which a finding of contempt could be based.
2001---Travis v. Finley, 36 Va. App. 189
In a show cause hearing, the moving party need only prove that the offending party failed to comply with an order of the trial court, and the offending party then has the burden of proving justification for his failure to comply.
2000---Pellegrin v. Pellegrin, 31 Va. App. 753
In a contempt proceeding, a court can order compliance even where party not found in contempt.
2000---Com. Ex. Rel. Graham v. Bazemore, 32 Va. App. 451
In a show cause proceeding, the moving party need only prove that the offending party failed to comply with an order of the trial court. The offending party then has the burden of proving justification for his or her failure to comply.
2000---Shoup v. Shoup, 31 Va. App. 621
In a contempt proceeding, a court can order compliance even where a party is not found in contempt.
1998---Wilson v. Collins, 27 Va. App. 411
If the actions of an alleged contemnor do not violate a clearly defined duty imposed upon him or her by a court’s decree, the alleged contemnor’s actions do not constitute contempt.
The trial court erred in concluding that husband was in contempt for failing to provide wife with a copy of a life insurance policy that the final divorce decree obligated him to obtain. The decree required husband to obtain and keep in full force and effect a policy “as approved by wife.” The trial court held that “as approved” necessarily “implied” an obligation to provide the wife a copy of the policy. Because, by the trial court’s own finding, the obligation to furnish a copy of the policy was implicit rather than explicit, husband’s failure to do so could not constitute contempt.
1997---Street v. Street, 24 Va. App. 14 (1997)
Trial court erred in refusing to allow husband to present evidence of his inability to pay before holding him in contempt for failure to pay child support. A defendant charged with out-of-court contempt must be given the opportunity to present evidence in his defense, including the right to call witnesses. In Virginia, inability to pay is a defense to a charge of contempt. Once nonpayment of a support order is established, the burden is on the obligor to provide justification for the failure to comply.
Where a payor spouse is unable to pay his support obligations, there is a significant difference between the test for modification of support under Antonelli and the test for avoiding conviction in a contempt proceeding. Contempt proceedings are controlled by the standard set forth in Laing, which states: “It is true that the inability of an alleged contemnor, without fault on his part, to render obedience to an order of court is a good defense to a charge of contempt. But where an alleged contemnor has voluntarily and contumaciously brought on himself disability to obey an order, he cannot avail himself of a plea of inability to obey as a defense to the charge of contempt.” Thus, although a payor spouse who is unable to pay support obligations due to a good faith, voluntary reduction in income is unlikely to have his support obligations modified under Antonelli, this same payor spouse cannot be found in contempt unless evidence shows that the reduction in income was also contumacious.
1996---Avery v. Comm. of Va., DSS, DCSE, 22 Va. App. 698
A finding of contempt is not “an order establishing a support arrearage” pursuant to Va. Code §16.1-296(H).
1995---Steinberg v. Steinberg, 21 Va. App. 42
Where the defendant was served with a show cause order specifically setting forth the details of the alleged violations of a court order, and where the record plainly established that he had knowledge prior to the hearing that the case was being tried as criminal rather than civil contempt, the notice requirements for due process purposes were satisfied, and the defendant did not have to be indicted or arraigned.
1991---Alexander v. Alexander, 12 Va. App. 691
In a show cause hearing, the moving party need only prove that the offending party failed to comply with an order of the trial court. The offending party then has the burden of proving justification for his or her failure to comply.
The trial court did not err in declining to hold husband in contempt for failure to make child support payments in accordance with a consent order that, despite awarding sole custody of the children to the husband, nonetheless provided for continued child support payments to wife. Approximately four years after husband took sole custody pursuant to the consent order, he ceased making child support payments to wife, based on the fact that he was the sole supporter of the children. Husband further testified that from the time the wife filed the show cause motion, he paid all of the back child support payments into an escrow account controlled by his attorney, at his attorney’s advice. The trial court’s finding that “the necessary willful failure to justify a finding of contempt did not exist” was not plainly wrong or without evidence to support it.
1984---Carper v. Carper, 228 Va. 185
A necessary concomitant of our rule that the terms of a support order must be strictly complied with is that the parties are entitled to rely on the language of the order. Where divorce decree of the parties obligated husband to pay mortgage payments on the marital residence directly to the mortgagee, in addition to paying child and spousal support directly to the wife, husband did not violate the court’s order by discontinuing his payment of the mortgage after the home was sold to wife’s parents, who expressly assumed the mortgage pursuant to the sale. Despite the fact that no order was entered which expressly modified husband’s obligation to pay the mortgage under the divorce decree, wife could not argue that mortgage payments owed subsequent to the sale of the property became vested in her until modification of the divorce decree, as the pre-sale mortgage payments were not payable to her, but to the mortgagee directly.
1982---Leisge v. Leisge, 224 Va. 303
Contempt proceedings prosecuted to preserve the power and vindicate the dignity of the court are criminal and punitive; those prosecuted to preserve and enforce the rights of private parties are civil, remedial, and coercive. The character and purpose of the punishment may determine the class of contempt. (Citing Steelworkers v. Newport News Shipbldg., 220 Va. 547 (1979)).
The absence of willfulness does not relive one from civil contempt. Civil, as distinguished from criminal contempt, is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. An act does not cease to be a violation of law and of a decree merely because it may have been done innocently. (Citing McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949)).
1977---Winn v. Winn, 218 Va. 8
Before a person can be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be express rather than implied. The process for contempt lies for disobedience of what is decreed, not for what may be decreed.
Trial court erred in holding husband in contempt for violating a provision of the parties’ settlement agreement requiring him to maintain a hospitalization insurance policy for wife. The agreement obligated him to maintain for two years “the present group hospitalization policy carried on the Wife…or a similar policy containing substantially the same benefits.” Husband maintained the policy in existence at the time the divorce decree was entered, but the insurance company refused to pay a claim by wife when it discovered that the parties’ divorce had become final. Any obligation of husband to account for this potential action by the insurance company was at most, an implied obligation rather than one expressly stated within the agreement. Thus, husband could not be held in contempt.
2001---Robdau v. Commonwealth, 35 Va. App. 128
Unpublished memorandum opinions are not to be cited or relied upon as precedent except for the purpose of establishing res judicata, estoppel, or the law-of-the-case.