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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, McClanahan and Senior Judge Coleman
Record No. 1156-03-2
HAYDEN D. McMILLIAN
JACQUELINE A. McMILLIAN
SEPTEMBER 30, 2003
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
T. J. Markow, Judge
(Murray J. Janus; Bremner, Janus, Cook &
Marcus, on briefs), for appellant.
(Andrea R. Stiles; Williams Mullen, on
brief), for appellee.
Hayden D. McMillian, husband, appeals a decision of the trial
judge finding him in contempt for failing to timely make monthly
spousal support payments to Jacqueline A. McMillian, wife.
Husband argues that the trial court erred in deeming the
proceeding civil in nature and that the finding of contempt
violated the double jeopardy clause. Husband also contends the
trial judge abused his discretion in awarding wife attorney’s
fees. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial judge. See Rule
The parties were married in 1978 and divorced in 1996. They
entered into a property settlement agreement in 1996, which was
incorporated into the divorce decree. The agreement provides
husband is to pay wife spousal support in the amount of $2,500
"due on the 15th day" of the month, commencing in May
In January 2002, wife filed a petition for show cause in the
juvenile and domestic relations district court (J&DR court)
claiming that husband was not timely making the monthly spousal
support payments. By order entered on December 27, 2002, the
court dismissed the show cause motion and ordered husband to
timely pay spousal support by electronic bank transfer to wife’s
bank account on the fifteenth day of each month. The order also
indicates that husband had been paying wife in this manner for
"the past several months." The J&DR court also
Both parties appealed the J&DR court’s decision to the
circuit court. The trial judge entered an order on February 2,
2003, limiting the issues on appeal to the attorney’s fees award
and wife’s motion to hold husband in contempt for failure to
timely pay spousal support.
On March 19, 2003, the trial judge held a hearing on the two
issues. Wife testified that husband had timely paid spousal
support on only two occasions since the divorce. She introduced
correspondence that both she and her counsel had written to
husband over the past several years requesting timely payment of
the spousal support. Wife stated that husband has made the
payment as much as three months late. Husband testified that he
was not in arrears with the spousal support payments at the time
of the J&DR court hearing or at the time of the trial court
hearing. Husband stated that he has been making the support
payments by electronic transfer to wife’s account since
2002. Husband also testified that he had never been three months
late with a payment and that wife lost, on average, two of the
support checks per year, thereby delaying her receipt of the
Husband moved to dismiss the appeal of the contempt issue on
the ground that the contempt issue was a criminal or
quasi-criminal matter, not a civil matter. The trial judge
delayed ruling on the issue, allowing wife’s counsel to brief
By opinion letter dated March 25, 2003, the trial judge ruled
that the purpose of wife’s petition for show cause was "to
enforcement of the terms of the final decree." The judge
that the evidence established husband had "consistently
in his spousal support payments," despite the order that he
the "15th day of each month." In addition, the trial
husband’s motion to dismiss the case, implicitly finding that
case involved a matter of civil contempt and stating that
purpose of the show cause was to use the powers of the court to
enforce [husband]‘s compliance with the final decree and not to
punish him for past transgressions."
The trial judge also awarded wife $13,585 in "reasonable
attorney’s fees" incurred in enforcing her rights under the
of the final divorce decree.
Husband filed a motion for reconsideration, which the trial
judge denied. By order entered April 9, 2003, the trial judge
found husband in contempt of court for "willfully failing
timely pay spousal support." The trial judge found that
did not correct the untimely payments until "a direct
procedure was implemented." Because husband was current on
payments at the time of the hearing, the judge did not order
incarceration. The order also awarded wife the $13,585 in
Husband contends the trial court erred in proceeding with the
contempt matter as a civil case and not a criminal case.
"Willful disobedience to any lawful . . . order of court is
contempt and . . . punishable as such." Board of
Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954). A trial
court "has the authority to hold [an] offending party in
for acting in bad faith or for willful disobedience of its
Carswell v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901
"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. The
decree [is] not fashioned so as to grant or
withhold its benefits dependent on the state
of mind of respondents."
Leisge v. Leisge, 224 Va. 303, 309, 296 S.E.2d 538, 541 (1982)
(citation omitted). "[I]t is not the ‘fact of punishment
rather its character and purpose’ that distinguishes civil and
criminal contempt." Small v. Commonwealth, 12 Va. App. 314,
398 S.E.2d 98, 100 (1990) (citation omitted).
Whether to grant a motion for contempt is a matter left to
the discretion of the trial judge which will not be reversed on
appeal in the absence of an abuse of that discretion. See Wells
v. Wells, 12 Va. App. 31, 36, 401 S.E.2d 891, 894 (1991).
Wife filed the petition for show cause as a result of
husband’s willful failure to timely pay her spousal support as
ordered in the final divorce decree. As the trial judge found,
wife sought to use the powers of the court to enforce husband’s
compliance with the divorce decree, not to punish him for past
transgressions. Therefore, the contempt proceeding was civil in
nature and not criminal. Under these circumstances, the trial
judge did not abuse his discretion in granting the motion for
Husband next argues that the trial judge’s ruling that he was
in contempt violated the double jeopardy clause because the
court dismissed wife’s show cause motion and husband could not
prosecuted for the same offense again.
"The Double Jeopardy Clause of the Fifth Amendment protects
criminal defendant from repeated prosecutions for the same
offense." Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982).
However, this case did not involve a criminal prosecution for an
offense. Rather, the case was a civil matter in which wife
timely payments from husband of her monthly spousal support
Moreover, after the J&DR court ruled, both parties appealed
to the trial court pursuant to Code ? 16.1-296. The trial court
then heard the issues de novo. See Code ? 16.1-136. "’[A]n
appeal to the circuit court from a court not of record . . .
annuls the judgment of the inferior tribunal as completely as if
there had been no previous trial.’" Box v. Talley, 1 Va.
289, 292, 338 S.E.2d 349, 351 (1986) (citation omitted). For
these reasons, husband’s double jeopardy argument is without
Husband argues the trial judge abused his discretion in
awarding wife attorney’s fees and in determining the amount of
"’[I]t is within the discretion of the trial court to
include, as an element of damages assessed against the defendant
found guilty of civil contempt, the attorneys’ fees incurred in
the investigation and prosecution of the contempt
Arvin, Inc. v. Sony Corp. of America, 215 Va. 704, 706, 213
753, 755 (1975) (citation omitted).
The parties’ settlement agreement, which contained the
spousal support award and was incorporated into the final
decree, provided that: "In the event that either party
this Agreement in any respect, the other party shall recover his
or her costs and expenses, including reasonable attorney’s fees,
incurred in enforcing performance of the terms of this
The evidence showed that husband willfully and flagrantly
violated the parties’ agreement and final divorce decree,
unwarranted litigation. Under these circumstances, the trial
judge was justified in awarding counsel fees to wife in order to
indemnify her for the expenses she incurred in enforcing
performance pursuant to the agreement and final decree.
Furthermore, the trial judge gave husband the opportunity to
dispute the amount of attorney’s fees, and the record indicates
the trial judge did not abuse his discretion in determining that
the amount of the requested attorney’s fees was reasonable.
Finally, wife requests 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,
(1996). Upon consideration of the entire record in this case, we
hold that wife is entitled to a reasonable amount of attorney’s
fees and costs, and we remand for the trial court to set a
reasonable award of costs and counsel fees incurred in this
For these reasons, the decision of the trial judge is
Affirmed and remanded.
Code ? 17.1-413, this opinion is not
designated for publication.