Travis v. Finley

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Clements and Senior Judge Coleman
Argued at Richmond, Virginia

SHIRLEY TRAVIS
OPINION BY
v. Record No. 1938-00-2 JUDGE ROBERT P. FRANK
JULY 17, 2001
JOSEPH E. FINLEY, JR.

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge

Robert D. Jacobs for appellant.

S. Keith Barker (S. Keith Barker, P.C., on
brief), for appellee.

Shirley Travis (mother) appeals the decision of the trial

court dismissing her petition to modify custody and her petition

for show cause against Joseph E. Finley, Jr. (father). On

appeal, she contends the trial court erred in dismissing her

petitions for her failure to answer the discovery propounded by

father because: 1) she asserted her Fifth Amendment privilege

against self-incrimination and 2) the discovery sought by father

was not relevant to the proceeding. We agree that the trial

court erred in dismissing mother's petitions.

I. BACKGROUND

On August 4, 1999, mother filed a petition to amend a

previous custody order of July 6, 1999, in which father was
awarded custody. In support of her petition to amend, mother

alleged a change in circumstance.

The July 6, 1999 order 1 came on a remand from this Court

after we reversed an earlier order that allowed mother to retain

custody and remove the child to Ghana. On remand, the trial

court gave custody to father and set forth specific visitation.

A number of other matters came before the trial court in

addition to the petition to amend custody, including: 1)

father's motion to compel discovery of mother's income and

whereabouts while she was under order not to leave the country;

2) father's motion to enforce various subpoenas duces tecum; 3)

father's motion to establish visitation for mother; 4) father's

motion to have the civil contempt fine reduced to judgment; 5)

father's motion for attorney's fees and costs; 6) mother's

petition to show cause against father for failure to pay child

support, failure to allow visitation and other actions alleged

to have violated previous orders.

By order of June 30, 2000, the trial court ruled it would

dismiss mother's petition to amend custody and her petition to

show cause against father if mother did not answer the discovery

requests within ten days. Mother failed to do so, and on July

14, 2000, the trial court dismissed mother's petition to amend

1
The trial court obtained jurisdiction to hear these
matters from an appeal from the juvenile and domestic relations
district court.

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custody because "the [mother] failed to answer the discovery in

accordance with the court's order of June 30, 2000 . . . ." In

the same order, the trial court dismissed the petition to show

cause against father for his alleged failure to pay child

support. Mother then timely appealed the July 14, 2000 order by

her notice of appeal filed on August 9, 2000.

On September 1, 2000, the trial court resolved the

remaining issues: contempt, visitation, child support, health

insurance, attorney's fees and sanctions against mother. The

September 1, 2000 order recited that mother's petition to amend

custody had been dismissed in the July 14, 2000 order.

Father filed a motion to dismiss mother's appeal for lack

of jurisdiction. Father contends the July 14, 2000 order is "an

interim order" and that the September 1, 2000 order is the

"final order."

II. ANALYSIS

We first must determine whether the July 14, 2000 order is

a "final order" or an interlocutory order that "adjudicates the

principles of a cause."

Pursuant to Code § 17.1-405, the Court of Appeals has

jurisdiction to hear appeals from:

3. Any final judgment, order, or
decree of a circuit court involving:
a. Affirmance or annulment of a
marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;

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 e. The control or disposition of a
child;
f. Any other domestic relations matter
arising under Title 16.1 or Title 20;
or . . . .
4. Any interlocutory decree or order
entered in any of the cases listed in this
section . . . (ii) adjudicating the
principles of a cause.

Code § 17.1-405(3)-(4).

For an interlocutory decree to
adjudicate the principles of a cause, the
decision must be such that "'the rules or
methods by which the rights of the parties
are to be finally worked out have been so
far determined that it is only necessary to
apply those rules or methods to the facts of
the case in order to ascertain the relative
rights of the parties, with regard to the
subject matter of the suit.'" Pinkard v.
Pinkard, 12 Va. App. 848, 851, 407 S.E.2d
339, 341 (1991) (quoting Lee v. Lee, 142 Va.
244, 252-53, 128 S.E. 524, 527 (1925)).

Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 712-13

(1994).

"A final decree is one '"which disposes of the whole

subject, gives all the relief that is contemplated, and leaves

nothing to be done by the court."'" Id. at 390, 451 S.E.2d at

712 (quoting Southwest Virginia Hosps. v. Lipps, 193 Va. 191,

193, 68 S.E.2d 82, 83-84 (1951) (citation omitted)).

Mother's petition requested that custody be returned to

her. The July 14, 2000 order dismissed that petition. Clearly,

the order disposed of the "whole subject" of custody. Nothing

was left for the court to act upon. The subsequent proceedings

were unrelated to a determination of custody.

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 Therefore, because the July 14, 2000 order was a final

appealable order, we find we have jurisdiction to determine the

merits of the cause.

We first address mother's contention that the trial court

erred in dismissing her custody petition and the petition to

show cause against father. She argues, pursuant to Code

§ 8.01-223.1, 2 the assertion of her Fifth Amendment privilege

against self-incrimination is not a proper basis for dismissing

her petitions. She further maintains that the discovery sought

by father was not relevant to the proceedings. 3 Father argues

2
Code § 8.01-223.1 states: "In any civil action the
exercise by a party of any constitutional protection shall not
be used against him."
3
The Interrogatories stated:

1. Identify all facts related to each
address at which you have resided from
November 1997 to present.
2. Identify all facts related to each
address at which Jonell D. Finley has
resided from November 1997 to present.
3. Identify all facts related to your
whereabouts from and each and every country
to which you have travelled from 11/15/97 to
present in detail.
4. Fully identify all facts related to
how you got the child Jonell D. Finley out
of the United States in detail and every
name and date of birth and social security
number she has used or been known by while
in your care since 1/1/96.

The Request for Production of Documents stated:

1. Produce all state, and federal tax
returns you have filed jointly or
individually for income of any nature you or

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that the common law "sword and shield" doctrine permitted the

dismissal.

While the trial court did not articulate its reasons for

dismissal, we necessarily conclude it was under the common law
4
doctrine of "sword and shield." Father sought dismissal of the

petition under Rule 4:12(b)(2)(c), but the trial court could not

have dismissed the petition as a sanction under Rule 4:12

because the Rule's sanctions do not apply until an order has

been entered and violated. In this case, such an order was

never entered. Rather, the trial judge, in his ruling from the

bench, acknowledged he was not compelling mother to "answer

anything" or "produce anything." The trial court stated:

She has the choice of either proceeding
with the discovery or, in the alternative, I
will grant Mr. Barker's motion for sanctions
in terms of a dismissal of this action. I'm
not going to play a pea and shell game with
her. And I cannot force her to by
utilization of the coercive powers of this
Court, fine or imprisonment, I cannot coerce
her to produce this information. And I
acknowledge that much, and I'm not doing
that.

your spouse has earned during the calendar
years 1995, 1996, 1997, and 1998 regardless
of the country or state to with which you
filed.
2. Produce the original passport or
other document used by Jonell D. Finley or
you on her behalf from 11/1/97 to present.
4
We find Code § 8.01-401(B) does not apply because mother
was not called upon by another to "testify on his behalf." Code
§ 8.01-401(B).

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 The Supreme Court of Virginia, in Davis v. Davis, 233 Va.

452, 357 S.E.2d 495 (1987), 5 expounded on the common law doctrine

of "sword and shield." The Court wrote:

[T]his rule recognizes that
historically the privilege against
self-incrimination was intended solely as a
shield. The rule thus provides that a
moving party cannot use it as a sword to
sabotage any attempt by the other party,
either during pretrial discovery or at
trial, to obtain information relevant to the
cause of action alleged, and relevant to
possible defenses to the claim. Laverne v.
Incorp. Village of Laurel Hollow, 18 N.Y.2d
635, 638, 272 N.Y.S.2d 780, 782, 219 N.E.2d
294, 295 (1966), appeal dismissed, 386 U.S.
682 (1967). In other words, the moving
party "in a civil action who exercises his
privilege against self-incrimination to
refuse to answer questions pertinent to the
issues involved will have his complaint
dismissed upon timely motion." Kisting v.
Westchester Fire Ins. Co., 290 F.Supp. 141,
149 (W.D. Wisc. 1968), aff'd, 416 F.2d 967
(7th Cir. 1969). See annot., 4 A.L.R.3d
545. The idea is that it would be unjust to
permit parties to use the courts to seek
affirmative relief while at the same time
deflecting relevant questions, the answers
to which may constitute a defense to the
claims asserted.

Id. at 456-57, 357 S.E.2d at 498.

Father contends mother waived her Fifth Amendment claim by

promising to answer discovery. Father further contends mother

did not file a timely objection to the interrogatories or to the

5
Because Code § 8.01-223.1 was not enacted until July 1,
1985, Davis does not discuss the impact of that section on the
"sword and shield" doctrine. The decree appealed from was
entered in January 1984.

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motion for production. Father further argues that by only

objecting to the discovery on relevancy grounds, she could not

later object on the basis of self-incrimination.

By letter dated April 20, 1999 to father's counsel,

mother's counsel stated:

I will have discovery answers to you by
Friday, April 30, 1999, so you do not have
to waste your client's money with a
sanctions motion. By the way, Ms. Travis
has not refused to furnish you with sworn
answers to your questions. It is my fault,
as I forgot to send them to her. Please
accept my apology.

"Courts indulge every reasonable presumption against a

waiver of fundamental constitutional rights." White v.

Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974)

(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The

Supreme Court "has always set high standards of proof for the

waiver of constitutional rights . . . ." Miranda v. Arizona,

384 U.S. 436, 475 (1966) (citing Zerbst, 304 U.S. 458).

A waiver of a constitutional right must
be "an intentional relinquishment or
abandonment of a known right or privilege."
Johnson, 304 U.S. at 464. "Waivers of
constitutional rights not only must be
voluntary but must be knowing, intelligent
acts done with sufficient awareness of the
relevant circumstances and likely
consequences." Brady v. United States, 397
U.S. 742, 748 (1970) (footnote omitted).

Hunter v. Commonwealth, 13 Va. App. 187, 191, 409 S.E.2d 483,

485 (1991).

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 Failure to make a timely defense has
been held a waiver. Brooks v. Peyton, 210
Va. 318, 171 S.E.2d 243 (1969) (statutory
discharge from prosecution for delay in
bringing to trial waived by failure to make
timely objection); Hubbard v. Commonwealth,
207 Va. 673, 152 S.E.2d 250 (1967)
(statutory bar to double prosecution for one
illegal act waived by failure to make timely
objection); Driver v. Seay, 183 Va. 273, 32
S.E.2d 87 (1944) (constitutional defense of
double jeopardy waived by failure to make
timely objection); United States v. Abrams,
357 F.2d 539 (2nd Cir.), cert. denied, 384
U.S. 1001 (1966) (claim of privilege against
self-incrimination waived by failure to make
timely objection).

Evans v. Commonwealth, 226 Va. 292, 298, 308 S.E.2d 126, 130

(1983).

"The classic description of an effective waiver of a

constitutional right is the '"intentional relinquishment or

abandonment of a known right or privilege."'" Megel v.

Commonwealth, 31 Va. App. 414, 429-30, 524 S.E.2d 139, 147

(Benton, J., dissenting) (citations omitted), aff'd, 33 Va. App.

648, 536 S.E.2d 451 (2000).

A waiver . . . may be generally defined
as a voluntary abandonment of some known
legal right, advantage, or privilege, or
such conduct as warrants an inference of the
abandonment of such right, or the
intentional doing of an act inconsistent
with claiming it, all of which is usually
dependent upon the peculiar circumstances of
the case.

The Covington Virginian v. Woods, 182 Va. 538, 547, 29 S.E.2d

406, 410 (1944).

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 The essential elements of waiver are
knowledge of the facts basic to the exercise
of the right and intent to relinquish that
right. Weidman [v. Babcock], 241 Va. [40,]
45, 400 S.E.2d [164,] 167 [(1991)]; Fox [v.
Deese], 234 Va. [412,] 425, 362 S.E.2d
[699,] 707 [(1987)]. Waiver of a legal
right will be implied only upon clear and
unmistakable proof of the intention to waive
such right for the essence of waiver is
voluntary choice. Weidman, 241 Va. at 45,
400 S.E.2d at 167; May v. Martin, 205 Va.
397, 404, 137 S.E.2d 860, 865 (1964).

Chawla v. BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S.E.2d

829, 833 (1998).

It is clear that the constitutional rights are those of the

individual and can only be waived by that person. Therefore,

the letter from mother's counsel indicating the discovery

answers would be forthcoming is not a waiver of mother's

privilege against self-incrimination.

By initially objecting only to the relevancy of the

discovery, mother did not waive her self-incrimination

objection. We find nothing in the record to indicate such

waiver. A challenge to the relevancy of the discovery was not a

"voluntary abandonment" of her privilege nor was it

"inconsistent" with claiming the privilege. By challenging the

relevancy of the discovery requests, she did no more than have

the court determine whether the interrogatories and documents

requested were relevant to the subject involved in the "pending

action" or whether the information sought appeared reasonably

calculated to lead to discovery of "admissible evidence." Rule

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4:1(b)(1). Therefore, if the trial court determined that the

information sought was not relevant, mother would not have to

assert the privilege. Clearly, mother did not "abandon" the

privilege by initially objecting on relevancy grounds.

Similarly, we find no merit to father's contention that

mother did not timely object to the interrogatories. Pursuant

to Rules 4:8(d) and 4:9(b), discovery must be answered and/or

objected to within twenty-one days. Rules 4:8(d) and 4:9(b).

However, "[t]he court may allow a shorter or longer time." Id.

It is apparent from the record that the trial court allowed a

"longer time" because it acknowledged mother's privilege in its

ruling of June 30, 2000.

Finding that mother did not waive her Fifth Amendment

privilege against self-incrimination, we now address whether

Code § 8.01-223.1 bars the trial court from dismissing her

petitions. Essentially, we must decide whether mother's

invocation of her constitutional right was "used against her."

"A primary rule of statutory construction is that courts

must look first to the language of the statute. If a statute is

clear and unambiguous, a court will give the statute its plain

meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245

Va. 80, 85, 425 S.E.2d 800, 802 (1993) (citation omitted).

"Therefore, we must accept its plain meaning and not consider

rules of statutory construction, legislative history, or

extrinsic evidence." Perez v. Capital One Bank, 258 Va. 612,

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616, 522 S.E.2d 874, 876 (1999) (citation omitted). "Courts

must give effect to legislative intent, which must be gathered

from the words used, unless a literal construction would involve

a manifest absurdity." HCA Health Servs. of Virginia, Inc. v.

Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000).

Here, mother clearly exercised a "constitutional

protection" in a civil action, her Fifth Amendment privilege

against self-incrimination. We cannot conceive of any graver

consequence than dismissing the action against mother for

exercising that "constitutional protection." Her exercise was

"used against" her in the most absolute and final way.

We conclude that Code § 8.01-223.1 barred the trial court

from dismissing mother's petitions. We further conclude that,

under the facts of this case, Code § 8.01-223.1 supercedes the

"sword and shield" doctrine. Therefore, we vacate the dismissal

order and remand for a hearing on the merits.

Finally, mother contends the discovery sought was not

relevant to the proceedings before the trial court. 6

In order to determine relevancy, we must again review the

history of this long-standing custody battle between the child's

parents. In 1997, the trial court permitted the child to remain

6
Under Rule 4:1 discovery is available inter alia, for any
matter not privileged that is relevant to the subject matter
involved or if the information sought "appears reasonably
calculated to lead to the discovery of admissible evidence."
Rule 4:1(b)(1).

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with mother and allowed mother to remove the child to Ghana.

However, the trial court forbade the removal of the child from

its jurisdiction pending appeal to this Court. In an

unpublished opinion, Joseph E. Finley, Jr. v. Shirley J. Travis,

Rec. No. 3060-97-2 (Va. Ct. App. Oct. 6, 1998), we found:

In defiance of the staying provision of
the ruling, the mother and her husband
fraudulently removed the child to Ghana.
The staying provision was central to the
trial court's ruling and was an
indispensable element of that ruling. By
violating and defeating that provision, the
mother has rendered the ruling a practical
nullity.

The trial court's ruling was reversed, and the case was

remanded for further proceedings. On remand, the trial court

awarded custody to father by order of July 6, 1999.

On August 4, 1999, mother filed a petition to amend, asking

that custody be returned to her. In a preliminary ruling, the

trial court held that mother must show a change in circumstances

from the July 6, 1999 order.

Among other matters, mother filed on November 10, 1999, a

petition to show cause against father for his failure to pay

child support, failure to allow visitation and other matters

alleged to violate previous court orders.

Essentially, father's interrogatories sought information

concerning the whereabouts of mother and the child from November

1997 to the present and how mother removed the child from the

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United States. Father requested the production of federal

income tax returns and the child's passport.

Father's defense to the contempt charge is that he did not

know where the child and mother were located and did not know

where to send child support payments. Clearly, the whereabouts

of the child and mother are relevant to the contempt charge.

[Evidence] is relevant, . . . if, when
considered in relation to other evidence in
the case, it tends to establish a party's
claim or defense or adds force and strength
to other evidence bearing upon an issue in
the case. McNeir v. Greer-Hale Chinchilla
Ranch, 194 Va. 623, 628, 74 S.E.2d 165, 169
(1953). "The criterion of relevancy is
whether or not the evidence tends to cast
any light upon the subject of the inquiry."
Id. at 629, 74 S.E.2d at 169.

Breeden v. Roberts, 258 Va. 411, 416, 518 S.E.2d 834, 837

(1999).

"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." [Alexander v. Alexander, 12
Va. App. 691, 696, 406 S.E.2d 666, 669
(1991)] (citing Frazier v. Commonwealth, 3
Va. App. 84, 87, 348 S.E.2d 405, 407
(1986)). "The offending party then has the
burden of proving justification for his or
her failure to comply." Id. (citing
Frazier, 3 Va. App. at 87, 348 S.E.2d at
407). "[T]he inability of an alleged
contemner, without fault on his part, to
tender obedience to an order of court, is a
good defense to a charge of contempt."
Laing v. Commonwealth, 205 Va. 511, 514, 137
S.E.2d 896, 899 (1964) (citation omitted);
see also Barnhill v. Brooks, 15 Va. App.
696, 704, 427 S.E.2d 209, 215 (1993) ("A
trial court may hold a support obligor in
contempt for failure to pay where such

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 failure is based on unwillingness, not
inability, to pay." (emphasis added)).

Commonwealth, Dep't. of Social Services, Div. of Child Support

Enforcement ex. rel. Graham v. Bazemore, 32 Va. App. 451,

455-56, 528 S.E.2d 193, 195 (2000).

"[T]he trial court '"has the authority to hold [an]

offending party in contempt for acting in bad faith or for

willful disobedience of its order."'" Id. at 456, 528 S.E.2d at

195 (quoting Alexander, 12 Va. App. at 696, 406 S.E.2d at 669

(citation omitted)).

Because the trial court must determine whether father's

failure to pay child support was in "bad faith" or in "willful

disobedience," the fact that the child might have been removed

to another country and secreted from father is relevant.

For the same reasons, the child's whereabouts and status

were relevant to the custody issue. While the trial court

limited the "change in circumstances" to events occurring after

the July 6, 1999 order, the court cannot ignore the conditions

to which the child was subjected or the efforts mother undertook

to separate the child from father. See Code § 20-124.3(3)-(7).

Similarly, the tax returns might show the travels of mother

and would be relevant to the custody proceedings, as stated

above.

"The granting or denying of [discovery] is a matter within

the trial court's discretion and will be reversed only if the

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action taken was [an abuse of discretion]." Rakes v. Fulcher,

210 Va. 542, 546, 172 S.E.2d 751, 755 (1970) (citations

omitted).

III. CONCLUSION

For these reasons, we find that mother did not waive her

Fifth Amendment privilege against self-incrimination and the

trial court erred in dismissing mother's petitions pursuant to

Code § 8.01-223.1. However, we hold that the trial court

correctly ruled that father's discovery propounded to mother was

relevant to the proceeding. We, therefore, reverse the trial

court's dismissal of mother's petitions.

Reversed and remanded.

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