Williams v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Haley and Alston
Argued at Alexandria, Virginia

TONY WILLIAMS
OPINION BY
v. Record No. 0904-10-4 JUDGE ROSSIE D. ALSTON, JR.
MARCH 22, 2011
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Martin Bass, Judge

(John A. Mell; Mell & Frost, on briefs), for appellant. Appellant
submitting on briefs.

Josephine F. Whalen, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Tony Williams (appellant) appeals from his convictions for two counts of misdemeanor

failure to appear, in violation of Code § 19.2-128, and two counts of failure to provide support

for his minor children, in violation of Code § 20-61. On appeal, appellant alleges that 1) the trial

court erred by failing to properly take notice of its judicial records and the facts regarding the

date and time of appellant’s hearing; 2) the evidence is insufficient to support appellant’s

conviction for failure to appear, even if the trial court properly took judicial notice of its records

as requested by the Commonwealth; 3) the evidence is insufficient to convict appellant of

violating Code § 20-61; 4) the conduct complained of under Code § 20-61 is one continuous

wrongdoing not subject to multiple indictments; and 5) the election of pursuing civil child

support precludes a prosecution for criminal failure to provide child support. For the reasons that

follow, we affirm in part and reverse in part appellant’s convictions.
 I. Background

In 2002, appellant and his wife, Erika Howard, separated. During their marriage,

appellant and Howard had two minor children. On November 11, 2002, the Stafford County

Juvenile & Domestic Relations District Court entered a support order requiring appellant to pay

support for his children in the amount of $889 per month, payable in two installments per month.

In 2004, appellant and Howard’s divorce was finalized.

From September 2004 to September 2005, appellant did not pay any child support for his

children. Howard and the children resided in Stafford County, Virginia, during this time period.

Appellant resided out of state. Howard, who was working four jobs at the time, was forced to

seek assistance from her church and a food bank to feed the children. In addition, foreclosure

proceedings were commenced on her home, where the children lived, and her two cars were

repossessed.

On September 6, 2005, a grand jury indicted appellant for failing to provide support for

his children from September 2004 through September 2005, in violation of Code § 20-61.

Appellant was subsequently arrested, and bail was set at $80,000. However, after appellant paid

$5,000 of his past-due child support, he was released on a $20,000 unsecured recognizance bond.

The terms of appellant’s recognizance bond permitted him to leave the state for work and school.

The recognizance bond set the next hearing date for September 20, 2006, and further provided,

I, the defendant, as a condition of my release from custody, by
signing this form, promise to appear in court on the date and time
noted above. If this date, time or place is changed for any reason
by any court or judge, I also promise to appear as so directed.

Appellant signed the recognizance bond on September 19, 2006.

On September 20, 2006, appellant appeared before the trial court and asked the court for

a continuance so he could hire an attorney. The trial court continued the case to November 17,

2006. The order by which the court memorialized the continuance states, “Whereupon, the
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Court recognized the defendant to appear before this Court on November 17, 2006[,] at 9:00 a.m.

for arraignment and for a bench trial and should he fail to appear, he will be indebted to the

Commonwealth of Virginia in the amount of $10,000.00.”

Appellant did not appear before the trial court on November 17, 2006 as required by the

September 20, 2006 order. Subsequently, the trial court made an oral ruling setting a new trial

date of December 5, 2006. However, the court did not enter the written order memorializing this

action until December 5, 2006. On December 5, 2006, appellant again did not appear, and a

capias was issued for revocation of his bond.

Meanwhile, after paying $5,000 toward his past due child support upon his release on the

recognizance bond, appellant again stopped paying child support. Howard did not receive any

further child support payments from appellant. From 2006 to 2007, Howard continued to

experience “financial difficulties.” Howard, who had been making about $30,000 per year, had

obtained her real estate license and was able to sell one house in 2006, for which she earned a

commission of about $3,000. However, she was still forced to seek assistance from her church

and a food bank to feed her children. Moreover, Howard still faced foreclosure on her home.

As a result of appellant’s second failure to make child support payments, on January 3,

2007, a grand jury indicted appellant for failing to support his children from February 1, 2006,

through January 3, 2007, in violation of Code § 20-61. The grand jury also indicted appellant for

failure to appear on November 17, 2006, and December 5, 2006, in violation of Code

§ 19.2-128(B).

On January 14, 2010, appellant was arrested. He was tried for misdemeanor failure to

appear and misdemeanor failure to provide support for his minor children on March 5, 2010. At

the time of trial, appellant owed Howard approximately $91,000 in child support.

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 At trial, the Commonwealth asked the trial court to take notice of records regarding

appellant’s failure to appear. The Commonwealth stated,

Your Honor, I’m going to ask the Court to take note of its own
records. . . .
. . . There are several documents that I’m going to ask the
Court to take note of.
Judge, the first two orders I’m going to ask the Court to
take note of are . . . in the Court’s file. One signed December 5th,
2006; but that was for a hearing on November 17th, 2006,
indicating the defendant’s failure to appear. And the other, for a
hearing on December 5th, 2006, signed December 11th, 2006,
once again indicating the defendant failed to appear.
And also, that -- that order from December 5th, also recites
that . . . once again, the defendant failed to appear on November
17th.
So, I’m going to ask the Court to take note of those two
orders.

After the trial court marked the documents specified by the Commonwealth, the

Commonwealth stated,

There’s one other document in the file . . . that I’d like for the
Court to consider.
Judge, the other document is the recognizance, indicating
the defendant was arrested on a misdemeanor offense and appeared
before . . . the Court. . . .

The trial then continued with no further requests to take notice of documents in the record.

Appellant was convicted of two counts of misdemeanor failure to appear, in violation of

Code § 19.2-128(C), 1 and two counts of failure to provide support for his minor children, in

violation of Code § 20-61. This appeal followed.

1
On appeal, appellant does not challenge the variance between his indictment under Code
§ 19.2-128(B) and conviction under Code § 19.2-128(C).
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 II. Analysis

A. Judicial Notice

On appeal, appellant contends that the trial court erred in failing to properly take notice of

its judicial records and the facts regarding the date and time of appellant’s hearing. Appellant

argues that the trial court was asked to take judicial notice not of its entire file regarding

appellant’s failure to appear, but only the specific documents mentioned by the Commonwealth,

and thus the trial court erred in taking judicial notice of the entire record. Furthermore, appellant

argues that the trial court failed to specify the facts it was noticing.

Judicial notice “is a rule of necessity and public policy in the expedition of trials.”

Williams v. Commonwealth, 190 Va. 280, 291, 56 S.E.2d 537, 542 (1949). It is “a short cut to

avoid the necessity for the formal introduction of evidence in certain cases where there is no

need for such evidence . . . . It relieves the party from offering evidence because the matter is

one which the judge either knows or can easily discover.” Id. “‘The fact of judicial notice must

appear from the record.’” Thomas v. Commonwealth, 36 Va. App. 326, 332, 549 S.E.2d 648,

651 (2001) (quoting Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 298

(1988)). Although

“a trial court need not intone the words ‘judicial notice’ in order to
notice a fact, the evidence, the arguments of the parties and the
statements of the trial court must demonstrate clearly that the trial
court has taken judicial notice of [a] fact before a party may rely
upon such notice on appeal.”

Edmonds v. Commonwealth, 43 Va. App. 197, 201, 597 S.E.2d 210, 212 (2004) (quoting Dillard

v. Commonwealth, 28 Va. App. 340, 347, 504 S.E.2d 411, 414 (1998)) (emphasis omitted).

In this case, the statements of the trial court and the evidence and arguments of the parties

demonstrated that the trial court had taken judicial notice of court orders regarding appellant’s

September 19, 2006 recognizance to appear; appearance on the first trial date, September 20,

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2006; request on September 20, 2006, for a continuance to obtain an attorney; subsequent

recognizance by the Court for a November 17, 2006 trial date; and failure to appear on

November 17, 2006. In asking the trial court to take notice of its records regarding appellant’s

failure to appear, the Commonwealth specifically asked the trial court to “take note of its own

records.” The fact that the Commonwealth also directed the trial court to specific files within the

records to draw its attention to those files does not negate its initial request that the trial court

take note of all of the records generally.

Furthermore, the trial court stated twice that it was taking notice of the entire record.

First, the trial court stated, “In reviewing all of the orders, which the Court was asked to do, [to]

take notice of its records . . .” and “[T]he Court was asked to reflect upon all the records in the

file.” (Emphases added). Second, the trial court later stated, “[T]he Court was being asked to

take notice of the records in the file, and the Commonwealth’s Attorney was specifically

referring to two orders that demonstrated on those dates [appellant] had not been here.”

Moreover, the trial court stated specifically what facts it was noticing from those records when it

said,

In reviewing all of the orders, which the Court was asked to do,
[to] take notice of its records, it’s clear that [appellant] was not
only given a recognizance to appear, but that he did appear on the
first date and was then recognized by the Court, himself, for the
first trial date of November 17th. That order again reflects that he
was not there. The second order reflects that he was not there.
And it recites, not only was he not there December 5, he was not
there on . . . November 17th.

(Emphasis added).

In light of these statements from the Commonwealth and the trial court, we find that the

trial court reasonably concluded that: 1) the Commonwealth requested it take judicial notice of

the entire record regarding appellant’s failure to appear; 2) the trial court took such notice; and

3) the statements of the trial court, more specifically the facts recited by the trial court in
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rendering its decision, and the evidence and arguments of the parties demonstrated clearly that

the court was taking note of its entire record. Thus, we hold that the trial court did not err in

taking notice of its judicial records and the facts regarding the date and time of appellant’s

scheduled hearings.

B. Sufficiency of the Evidence

Appellant argues that, even if the trial court took proper judicial notice of its records, the

evidence was insufficient to support appellant’s convictions for failure to appear. In addition,

appellant argues that the evidence was insufficient to support his convictions for failure to

support his children.

1. Standard of Review

“‘When a defendant challenges the sufficiency of the evidence on appeal, we must view

the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable

to the Commonwealth.’” Molina v. Commonwealth, 272 Va. 666, 675, 636 S.E.2d 470, 475

(2006) (quoting Ward v. Commonwealth, 264 Va. 648, 654, 570 S.E.2d 827, 831 (2002)). “‘In

so doing we must discard the evidence of the accused in conflict with that of the Commonwealth,

and regard as true all the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom.’” Holsapple v. Commonwealth, 39 Va. App. 522, 528,

574 S.E.2d 756, 758-59 (2003) (en banc) (quoting Norman v. Commonwealth, 2 Va. App. 518,

520, 346 S.E.2d 44, 45 (1986)) (internal quotation marks omitted). The Court “‘will not disturb

the fact finder’s verdict unless it is plainly wrong or without evidence to support it.’” Molina,

272 Va. at 675-76, 636 S.E.2d at 475 (quoting Ward, 264 Va. at 654, 570 S.E.2d at 831).

2. Failure to Appear

Code § 19.2-128(C) provides:

Any person (i) charged with a misdemeanor offense or
(ii) convicted of a misdemeanor offense and execution of sentence
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 is suspended pursuant to § 19.2-319 who willfully fails to appear
before any court as required shall be guilty of a Class 1
misdemeanor.

Thus, to support appellant’s conviction for failure to appear, the Commonwealth was

required to prove that appellant “willfully” failed to appear at trial. Hunter v. Commonwealth,

15 Va. App. 717, 721-22, 427 S.E.2d 197, 200 (1993) (en banc). “‘Willfully,’ as used in Code

§ 19.2-128(B), has the customary meaning that the act must have been done ‘purposely,

intentionally, or designedly.’” Id. at 721, 427 S.E.2d at 200. “‘Any failure to appear after notice

of the appearance date [is] prima facie evidence that such failure to appear [was] willful.’” Id.

(quoting Trice v. United States, 525 A.2d 176, 179 (D.C. 1987)) (alterations in original). As a

result, “[w]hen the government proves that an accused received timely notice of when and where

to appear for trial and thereafter does not appear on the date or place specified, the fact finder

may infer that the failure to appear was willful.” Id.

The Commonwealth concedes on brief and at oral argument that the evidence was

insufficient to show that appellant’s failure to appear on December 5, 2006 was willful, because

the evidence was insufficient to show that appellant had notice of the order to appear on

December 5, 2006. Although the trial court had made an oral ruling setting a new trial date of

December 5, 2006, it did not enter the written order memorializing this action until December 5,

2006, the actual date on which appellant was required to appear. Thus, we reverse appellant’s

conviction for failure to appear on December 5, 2006.

However, because we find the evidence sufficient to support appellant’s conviction for

failure to appear on November 17, 2006, we uphold appellant’s conviction for failure to appear

on that date. The trial court took judicial notice of all of its records regarding appellant’s failure

to appear, including a recognizance bond signed by appellant in which he promised to appear on

September 20, 2006, and promised that “if this date, time or place is changed for any reason by

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any court or judge,” he would “appear as so directed”; an order entered by the trial court on

September 25, 2006, setting November 17, 2006, as appellant’s trial date and ordering appellant

to appear; and an order entered by the trial court on December 5, 2006, stating that appellant

failed to appear on November 17, 2006.

“An accused who is given notice of the original trial date is charged with notice of those

dates to which his or her case is expressly continued when such action is duly recorded in the

order of the court.” Id. at 722, 427 S.E.2d at 200. The documents that the trial court noticed

prove that appellant was given notice of his original trial date, September 20, 2006, by the

recognizance bond, which he signed. In addition, the documents noticed by the court establish

that the court entered an order on September 25, 2006, continuing appellant’s case to November

17, 2006. As a result, appellant is charged with notice of his November 17, 2006 trial date. The

documents noticed further show that appellant failed to appear on November 17, 2006. Thus,

under Hunter, these documents provide “‘prima facie evidence that such failure to appear [was]

willful,’” id. at 721, 427 S.E.2d at 200 (quoting Trice, 525 A.2d at 179) (alterations in original),

and the trial court was entitled to infer that appellant’s failure to appear was willful. Because

appellant presented no evidence to rebut this inference, we hold that the evidence was sufficient

to support appellant’s conviction for failure to appear on November 17, 2006.

3. Failure to Provide Support

Code § 20-61 provides, “[A]ny parent who deserts or willfully neglects or refuses or fails

to provide for the support and maintenance of his or her child under the age of eighteen years . . .

the . . . child or children being then and there in necessitous circumstances, shall be guilty of a

misdemeanor.” Appellant argues that the evidence was insufficient to show that his children

were in “necessitous circumstances” as a consequence of his failure to provide support.

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 To support appellant’s conviction under Code § 20-61, the Commonwealth must prove

that appellant “deserted or wilfully neglected to provide for the support of his wife or minor

children, leaving them in . . . necessitous circumstances.” Burton v. Commonwealth, 109 Va.

800, 804, 63 S.E. 464, 466 (1909) (interpreting a predecessor statute to Code § 20-61, Acts 1904,

p. 208, Code (1904), § 3795c). Whether one is in “necessitous circumstances” is a question of

fact “[left] to the [finder of fact] to say whether or not the facts established the charge, subject

always to review by the court in a proper case and upon familiar principles.” Id. at 805, 63 S.E.

at 466.

Code § 20-61 does not define “necessitous circumstances.” In determining whether such

circumstances have been proved, the Supreme Court of Virginia has said,

There is no fixed standard by which the law undertakes to define
what shall constitute . . . “necessitous circumstances.” It may vary
with the conditions to which the parties have been accustomed.
The necessaries of one person may be the luxuries of another,
reared in and habituated to different surroundings.

Id. We note that the predecessor statute to Code § 20-61 prohibited desertion or willful neglect

of one’s children, leaving them in “destitute or necessitous circumstances.” Id. at 804, 63 S.E. at

466. In contrast, Code § 20-61 prohibits neglect or failure to provide support for a child “being

then and there in necessitous circumstances,” with no mention of destitution. Black’s Law

Dictionary defines “necessitous circumstances” as “Living in a state of extreme want; hard up.”

Black’s Law Dictionary 1059 (8th ed. 2004). Thus, while the legislative intent in removing the

element of destitution from Code § 20-61 may be unclear, the use of “necessitous circumstances”

suggests that the neglected children must have financial or other needs, such as housing, medical

care, or sustenance, that are unmet.

In the instant case, appellant argues that the evidence was insufficient to support his

conviction for failure to support because the Commonwealth failed to prove that appellant

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caused the children’s necessitous circumstances or, in the alternative, because Howard’s

testimony showed that the children were not in necessitous circumstances. 2

We reject appellant’s contention that the Commonwealth was required to prove that

appellant’s failure to support his children caused their necessitous circumstances. Code § 20-61

does not say that a parent’s failure to provide for the support and maintenance of his child must

cause the child’s necessitous circumstances; rather, the statute provides that the failure to support

must occur with the “child or children being then and there in necessitous circumstances.” Code

§ 20-61. When statutory language is “clear and unambiguous, [reviewing courts] apply the

statute according to its plain language.” Va. Polytechnic Inst. & State Univ. v. Interactive Return

Serv., Inc., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006) (internal citations omitted). Under the

plain language of Code § 20-61, no proof of causation is required to support a conviction.

Furthermore, in Burton, the Supreme Court of Virginia stated that the breach of the duty

to support one’s minor children occurs “either at the moment of the desertion or at any time

during the continuance of the wilful neglect to make provision for his wife or minor children,

whom he has left at the moment of desertion, or who have since been rendered destitute or in

necessitous circumstances.” 109 Va. at 804, 63 S.E. at 466 (emphasis added). As specifically

interpreted by the Supreme Court of Virginia, this language does not require that the desertion

cause the necessitous circumstances, as a breach may occur at any time the children are

2
Although appellant does not argue that the Commonwealth failed to prove his intent to
desert or neglect his children, we note that Code § 20-81 provides:

Proof of desertion or of neglect of spouse, child or children by any
person shall be prima facie evidence that such desertion or neglect
is willful; and proof that a person has left his or her spouse, or his
or her child or children in destitute or necessitous circumstances,
or has contributed nothing to their support for a period of thirty
days prior or subsequent either or both to his or her departure, shall
constitute prima facie evidence of an intention to abandon such
family.
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“rendered destitute or in necessitous circumstances,” whatever the cause. Therefore, we hold

that the evidence was not insufficient to support appellant’s convictions under Code § 20-61 for

its failure to prove that appellant’s failure to support his children caused their necessitous

circumstances.

In the alternative, appellant argues that because Howard testified that she received sole

possession and ownership of the marital residence on November 5, 2004, and was making

approximately $30,000 a year from her independent business in this time period, the children

were not in necessitous circumstances from September 6, 2004, to September 5, 2006.

Furthermore, appellant argues that Howard’s testimony that she obtained a real estate license and

would not describe herself as being destitute from February 1, 2006, to January 3, 2007, shows

that the children were not in necessitous circumstances during that time period.

However, Howard also testified that between September 2004 and September 2005, the

bank began foreclosure proceedings on the house in which she and the children lived, the family

cars were repossessed, and Howard was forced to accept charity from her church and a food

bank to feed her children. Even when Howard testified she would not classify herself as

“destitute” during the time period from February 2006 to January 2007, she also testified that she

was still using the food bank and charity from her church and that the foreclosure proceedings on

her home continued. In light of this testimony, we cannot say that the trial court’s factual finding

that the children were in “necessitous circumstances” from September 6, 2004, to September 5,

2006 and February 1, 2006, to January 3, 2007, was plainly wrong or without evidence to

support it. Therefore, we hold that the evidence was sufficient to support appellant’s convictions

under Code § 20-61.

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 C. Double Jeopardy

Appellant also contends that his two convictions for violations of Code § 20-61 were in

error because the conduct complained of under Code § 20-61 is one continuous wrongdoing not

subject to multiple indictments. Appellant concedes on brief that this assignment of error

essentially asserts that principles of double jeopardy bar his multiple convictions for violations of

Code § 20-61.

Code § 19.2-266.2 provides

A. Defense motions or objections seeking . . . (ii) dismissal of a
warrant, information, or indictment or any count or charge thereof
on the ground that: . . . (b) the defendant would be twice placed in
jeopardy in violation of the provisions of the Fifth Amendment to
the Constitution of the United States or Article I, Section 8 of the
Constitution of Virginia; . . . shall be raised by motion or objection.

B. Such a motion or objection in a proceeding in circuit court shall
be raised in writing, before trial. The motions or objections shall
be filed and notice given to opposing counsel not later than seven
days before trial . . . . The circuit court may, however, for good
cause shown and in the interest of justice, permit the motions or
objections to be raised at a later time.

Appellant failed to raise his double jeopardy objection in writing before trial, as required

by Code § 19.2-266.2. But cf. Sykes v. Commonwealth, 37 Va. App. 262, 266 n.1, 556 S.E.2d

794, 796 n.1 (2001) (suggesting that a defendant’s failure to make a timely Code § 19.2-266.2

argument may not bar a defendant from raising a double jeopardy argument on appeal when the

Commonwealth does not raise the timeliness issue before the trial court). 3 Moreover, appellant

3
Although appellant argued in his reply brief that the Commonwealth failed to raise Code
§ 19.2-266.2 before the trial court, appellant provided no principles of law or authority to support
his argument that the Commonwealth’s failure barred it from relying on Code § 19.2-266.2 on
appeal. “Statements unsupported by argument, authority, or citations to the record do not merit
appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (declining to address an appellant’s argument that was “not fully developed in the
appellant’s brief”). Therefore, we decline to address appellant’s claim that Code § 19.2-266.2
does not bar his double jeopardy argument because of the Commonwealth’s failure to raise the
lack of compliance with Code § 19.2-266.2 before the trial court.
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does not argue that the good cause or ends of justice exception to Code § 19.2-266.2 should be

invoked, nor does the record reflect any reason to do so. As a result, we find that appellant

waived this objection. 4

D. Election of Civil Child Support

Finally, appellant argues that Howard’s election to pursue civil child support precludes a

prosecution for criminal failure to provide child support under Boaze v. Commonwealth, 165 Va.

786, 183 S.E. 263 (1936). In Boaze, the Court reversed a father’s conviction for failure to pay

child support in violation of Code § 1936, as amended by Acts 1922, ch. 485, a predecessor

statute to Code § 20-61. 165 Va. at 793, 183 S.E. at 266. Therein, the father had been arrested

based upon a warrant issued upon the complaint of the mother that the father had failed to pay

child support in accordance with an earlier support decree. Id. at 788, 183 S.E. at 263. The

father’s conviction was reversed because he was tried without a jury. Id. at 789, 183 S.E. at 264.

4
We note that the Double Jeopardy Clause, U.S. Const. amend. V, prohibits only
“cumulative punishments for convictions on the same offense” and “does not prohibit the State
from prosecuting [a defendant] for such multiple offenses in a single prosecution.” Ohio v.
Johnson, 467 U.S. 493, 500 (1984). Therefore, the trial court in the instant case may have been
incapable of ruling on a motion by appellant alleging double jeopardy violations until the
conclusion of trial, when the alleged cumulative punishments for convictions on the same
offense were imposed. Nonetheless,

When interpreting statutes, courts “ascertain and give effect to the
intention of the legislature.” That intent is usually self-evident
from the words used in the statute. Consequently, courts apply the
plain language of a statute unless the terms are ambiguous, or
applying the plain language would lead to an absurd result.

Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 504 (2008) (quoting Boynton v.
Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006)). Because the plain language of Code
§ 19.2-266.2 requires without exception that defense motions or objections seeking dismissal of
an indictment on the ground that the defendant would be twice placed in jeopardy in violation of
the provisions of the Fifth Amendment to the Constitution of the United States or Article I,
Section 8 of the Constitution of Virginia be raised in writing before trial, we recognize that a
defendant must raise such an objection in writing before trial to preserve his objection, even if
the trial court may be incapable of ruling on the motion until after the defendant is convicted and
sentenced.
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However, in dicta, the Court also stated that the father’s conviction was improper because the

mother had obtained a support decree which the court had “ample power in contempt

proceedings to enforce,” and “[t]he judgment in the [criminal prosecution], so far as it provides

for the support of these children, [was] substantially but an affirmation of what already had been

done.” Id. at 793, 183 S.E. at 266. Because the mother “elected to proceed under the decree,”

the Court said, she must “abide by her election.” Id.

In reaching its decision that the father’s conviction should be reversed because of the

earlier support decree, the Boaze Court relied upon Wright v. Wright, 164 Va. 245, 178 S.E. 884

(1935). 165 Va. at 792, 183 S.E. at 265. In Wright, the Court upheld the trial court’s dismissal

of a wife’s bill of complaint seeking alimony and divorce on the grounds of res judicata. 164

Va. at 257, 178 S.E. at 889. The wife had previously “instituted proceedings against [the

husband] in the Juvenile and Domestic Relations Court of Richmond, charging [criminal]

non-support” and been awarded $50 a month in support from the husband. Id. at 248, 178 S.E. at

885. However, on appeal, the court reversed the husband’s conviction. Id. at 249, 178 S.E. at

885. Only then did the wife file the bill of complaint seeking alimony and a divorce. Id. The

court found that the wife “has been afforded two distinct methods of compelling the delinquent

husband to provide for her support and maintenance,” criminal prosecution for desertion and

civil award of maintenance during pendency of a suit for divorce. Id. at 251, 178 S.E. at 886.

The Court held that “[h]aving been afforded a choice of remedies, the wife must elect which

remedy she will pursue, as it is inconceivable that the legislature intended that she should have

the right to pursue both remedies and thus make the husband pay twice for one delinquency,” id.,

and that res judicata barred the wife’s suit because the parties and issue were the same and the

issue had been decided on its merits by a court of competent jurisdiction, id. at 252, 178 S.E. at

887.

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 Because appellant relies upon Boaze, which relies upon Wright, in which the Court applied

res judicata, appellant asserts that principles of res judicata bar his prosecution for violation of

Code § 20-61. Res judicata

precludes relitigation of a claim or issue once a final determination
on the merits has been reached by a court of competent
jurisdiction. It rests upon the principle that a person should not be
required to relitigate the same matter a second time “with the same
person or another so identified in interest with such person that he
represents the same legal right, precisely the same question,
particular controversy, or issue, which has been necessarily tried
and fully determined, upon the merits, by a court of competent
jurisdiction . . . .”

Neff v. Commonwealth, 39 Va. App. 13, 18, 569 S.E.2d 72, 75 (2002) (quoting Patterson v.

Saunders, 194 Va. 607, 614, 74 S.E.2d 204, 209 (1953)). Under well-settled principles, res

judicata bars a party from raising not only “every question actually raised and decided”

previously, but also “every claim which properly belonged to the subject of litigation and which

the parties, by the exercise of reasonable diligence, might have raised at the time.” Smith v.

Holland, 124 Va. 663, 666, 98 S.E. 676, 676 (1919). 5 The burden is on the party asserting the

doctrine to prove by a preponderance of the evidence that the “‘issue was previously raised and

decided by a tribunal in a prior cause of action.’” Neff, 39 Va. App. at 18, 569 S.E.2d at 75

(quoting Fodi’s v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998)). In order for

the doctrine to apply, the party asserting preclusion “must prove the identity of: (1) the remedies

sought; (2) the cause of action; (3) the parties; and (4) the quality of the persons for or against

whom the claim is made.” Id. (citations and internal quotations omitted).

5
Effective July 1, 2006, Rule 1:6 of the Rules of the Supreme Court of Virginia precludes
successive causes of action arising from the same conduct, transaction, or occurrence against the
same defendants regardless of the legal elements upon which the claims depend, or the particular
remedies sought. However, because Rule 1:6 applies to all Virginia judgments entered in civil
actions commenced after July 1, 2006, Va. Sup. Ct. R. 1:6(b), and Howard’s suit for child
support was instituted before July 1, 2006, Rule 1:6 is inapplicable here.
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 Because appellant cannot prove the identity of the parties, appellant’s argument that res

judicata bars his prosecution under Code § 20-61 fails. In the earlier proceeding that appellant

alleges bars his criminal prosecution, i.e., the Stafford County Juvenile & Domestic Relations

District Court proceedings resulting in the support order, the parties involved were appellant and

Howard. In contrast, the Commonwealth directly indicted appellant for criminal non-support in

violation of Code § 20-61 in the current proceeding; Howard was not a party to the instant

criminal prosecution. Similarly, this case is distinguishable from Boaze, 165 Va. at 788, 183

S.E. at 263, and Wright, 164 Va. at 248, 178 S.E. at 885, because in those cases, the mother and

the wife instituted the criminal proceedings by petition, rather than direct indictment by the

Commonwealth. Because there is no identity of the parties in appellant’s criminal prosecution

and the earlier proceedings in the Stafford County Juvenile & Domestic Relations District Court,

we hold that res judicata does not bar appellant’s convictions for violations of Code § 20-61.

III. Conclusion

For these reasons, appellant’s convictions for violations of Code § 20-61 are affirmed. In

addition, appellant’s conviction for misdemeanor failure to appear on November 17, 2006, in

violation of Code § 19.2-128, is affirmed. However, appellant’s conviction for failure to appear

on December 5, 2006, is reversed and dismissed.

Affirmed in part,
reversed and
dismissed in part.

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