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McMILLIAN v. McMILLIAN




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McMILLIAN

v.

McMILLIAN


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, McClanahan and Senior Judge Coleman

Record No. 1156-03-2

HAYDEN D. McMILLIAN

v.

JACQUELINE A. McMILLIAN

 

MEMORANDUM OPINION[1]
PER CURIAM

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
contempt

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
5A:27.

BACKGROUND

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
that

husband is to pay wife spousal support in the amount of $2,500

"due on the 15th day" of the month, commencing in May
1996.

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
J&DR

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
awarded wife

attorney’s fees.

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
September

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

money.

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
the

issue.

By opinion letter dated March 25, 2003, the trial judge ruled

that the purpose of wife’s petition for show cause was "to
secure

enforcement of the terms of the final decree." The judge
found

that the evidence established husband had "consistently
been late

in his spousal support payments," despite the order that he
pay on

the "15th day of each month." In addition, the trial
judge denied

husband’s motion to dismiss the case, implicitly finding that
the

case involved a matter of civil contempt and stating that
"[t]he

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
terms

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
to

timely pay spousal support." The trial judge found that
husband

did not correct the untimely payments until "a direct
deposit

procedure was implemented." Because husband was current on
the

payments at the time of the hearing, the judge did not order

incarceration. The order also awarded wife the $13,585 in

attorney’s fees.

ANALYSIS

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
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, 901

(1982).

"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
but

rather its character and purpose’ that distinguishes civil and

criminal contempt." Small v. Commonwealth, 12 Va. App. 314,
317,

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

contempt.

Husband next argues that the trial judge’s ruling that he was

in contempt violated the double jeopardy clause because the
J&DR

court dismissed wife’s show cause motion and husband could not
be

prosecuted for the same offense again.

"The Double Jeopardy Clause of the Fifth Amendment protects
a

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
sought

timely payments from husband of her monthly spousal support
award.

Moreover, after the J&DR court ruled, both parties appealed
issues

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.
App.

289, 292, 338 S.E.2d 349, 351 (1986) (citation omitted). For

these reasons, husband’s double jeopardy argument is without

merit.

Husband argues the trial judge abused his discretion in

awarding wife attorney’s fees and in determining the amount of

fees awarded.

"’[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
proceedings.’"

Arvin, Inc. v. Sony Corp. of America, 215 Va. 704, 706, 213
S.E.2d

753, 755 (1975) (citation omitted).

The parties’ settlement agreement, which contained the

spousal support award and was incorporated into the final
divorce

decree, provided that: "In the event that either party
breaches

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
Agreement."

The evidence showed that husband willfully and flagrantly

violated the parties’ agreement and final divorce decree,
causing

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
husband’s

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,
100

(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

appeal.

For these reasons, the decision of the trial judge is

affirmed.

Affirmed and remanded.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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