COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
CARL E. FRAZIER
OPINION BY
v. Record No. 0936-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 14, 1998
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. SUSAN M. SANDRIDGE
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Paul W. Cella for appellant.
Susan T. Ferguson, Special Counsel (Richard
Cullen, Attorney General; William H. Hurd,
Deputy Attorney General; Robert B. Cousins,
Jr., Senior Assistant Attorney General;
Craig M. Burshem, Regional Special Counsel,
on brief), for appellee.
The sole issue on appeal is whether Carl E. Frazier
(appellant) is exempt from the requirement to post an appeal bond
pursuant to Code § 16.1-296(H). We hold that the plain language
of the statute exempts appellant from the bonding requirement.
I.
The procedural history is uncontested. The Division of
Child Support Enforcement (DCSE) filed a request in the Juvenile
and Domestic Relations District Court for the City of
Charlottesville on behalf of Susan M. Sandridge for registration
of a Kentucky child support order against appellant. Upon notice
of the registration of the order, appellant, a convict
incarcerated at Deep Meadow Correctional Center in Powhatan
County, filed a pro se request for a hearing to contest the
validity or enforcement of the order. The matter was transferred
to the Powhatan Juvenile and Domestic Relations District Court
(JDR court), which appointed a guardian ad litem for appellant.
After a contested hearing, the JDR court found an arrearage of
$22,261.44 and required appellant to pay $60 per week in
continuing support.
Appellant filed a timely notice of appeal but did not post
an appeal bond. DCSE moved to dismiss the appeal because
appellant failed to meet the bond requirement of Code
§ 16.1-296(H). Appellant argued that his status as a convict
exempted him from the bond requirement. On March 25, 1997, the
circuit court found the exemption did not apply and dismissed the
appeal:
I don't think that an appeal bond is proper
to protect, or waiver is proper to protect
the waiver [sic] of a decedent, infant, or
convict. I can't see the logic of a convict
having a free appeal without posting a bond
and an average, ordinary citizen does not. I
don't think that this tends to . . . protect
a convict. That is to say, that an appeal
bond shall not be required of a convict. I
don't think it's necessary to protect the
estate of a convict or an insane person.
Appellant has been transferred from Deep Meadow Correctional
Center to Cold Springs Correctional Center, but he has remained
incarcerated.
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II.
Appellant contends that as a convict and a person under a
legal disability, he is exempt from the bonding requirement. We
agree.
Code § 16.1-296(H) provides as follows:
In cases involving support, no appeal shall
be allowed until the party applying for the
same or someone for him gives bond, in an
amount and with sufficient surety approved by
the judge or by his clerk if there is one, to
abide by such judgment as may be rendered on
appeal if the appeal is perfected or, if not
perfected, then to satisfy the judgment of
the court in which it was rendered. Upon
appeal from a conviction for failure to
support or from a finding of civil or
criminal contempt involving a failure to
support, the juvenile and domestic relations
district court may require the party applying
for the appeal or someone for him to give
bond, with or without surety, to insure his
appearance and may also require bond in an
amount and with sufficient surety to secure
the payment of prospective support accruing
during the pendency of the appeal. An appeal
will not be perfected unless such appeal bond
as may be required is filed within thirty
days from the entry of the final judgment or
order. However, no appeal bond shall be
required of the Commonwealth or when an
appeal is proper to protect the estate of a
decedent, an infant, a convict or an insane
person, or the interest of a county, city or
town. 1
(Emphasis added).
Appellant contends the statute is clear and its plain
meaning controls. "The main purpose of statutory construction is
to determine the intention of the legislature 'which, absent
1
The 1997 amendments added the second sentence cited.
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constitutional infirmity, must always prevail.'" Last v.
Virginia State Bd. of Med., 14 Va. App. 906, 910, 421 S.E.2d 201,
205 (1992) (citing Board of Supervisors v. King Land Corp., 238
Va. 97, 103, 380 S.E.2d 895, 897 (1989)). A statute is ambiguous
"'when the language is difficult to comprehend, is of doubtful
import, or lacks clearness and definiteness.'" Abateco Servs.,
Inc. v. Bell, 23 Va. App. 504, 520, 477 S.E.2d 795, 802 (1996)
(citing Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87
(1985)). "Where a statute is unambiguous, the plain meaning is
to be accepted without resort to the rules of statutory
interpretation." Last, 14 Va. App. at 910, 412 S.E.2d at 205.
"Unless a literal construction of a statute would result in
internally conflicting provisions amounting to a 'manifest
absurdity,' courts cannot construe a statute in a manner that
would result in holding the legislature did not mean what it
actually expressed." Last, 14 Va. App. at 910, 412 S.E.2d at 205
(citing Dairyland Ins. Co. v. Sylva, 242 Va. 191, 194, 409 S.E.2d
127, 129 (1991)).
"[W]hen analyzing a statute, we must assume that 'the
legislature chose, with care, the words it used when it enacted
the relevant statute, and we are bound by those words as we
interpret the statute.'" City of Virginia Beach v. ESG Enters.,
Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (citation
omitted). "'Courts are not permitted to rewrite statutes. This
is a legislative function. The manifest intention of the
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legislature, clearly disclosed by its language, must be
applied.'" Barr v. Town & Country Properties, Inc., 240 Va. 292,
295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v.
Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)).
The plain meaning of Code § 16.1-296(H) imposes a mandatory
bonding requirement for support appeals. See Commonwealth ex
rel. May v. Walker, 253 Va. 319, 323, 485 S.E.2d 134, 136 (1997)
("failure to post an appeal bond . . . is a fatal jurisdictional
defect that cannot be cured"). However, the legislature also
clearly expressed its intent to exempt members of the enumerated
groups, including convicts, from this requirement. Any finding
to the contrary would effectively remove the word "convict" from
the statute. We may neither rewrite a statute nor hold that the
legislature did not intend what it actually expressed.
Consequently, the circuit court's decision is reversed.
Reversed.
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