COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
MASON S. THOMPSON
MEMORANDUM OPINION * BY
v. Record No. 0390-01-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 4, 2003
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. EVANGELINE HORNES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
John G. LaFratta (Cowan, North & LaFratta,
LLP, on brief), for appellant.
Victoria W. Dullaghan, Special Counsel
(Mark L. Earley, Attorney General;
Ashley L. Taylor, Jr., Deputy Attorney
General; Robert B. Cousins, Jr., Senior
Assistant Attorney General; Craig M. Burshem,
Regional Special Counsel, on brief), for
appellee.
Mason S. Thompson appeals his sentence for civil contempt,
citing as grounds for appeal the court's 1) requirement that the
civil contempt sentence be served consecutive to his prison
sentence for a felony conviction and 2) imposition of an
indeterminate sentence. For the reasons that follow, we affirm
the decision of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On November 27, 2000, the trial court, in a de novo appeal
from the Juvenile and Domestic Relations District Court for the
City of Richmond, held a hearing on the Division of Child
Support Enforcement's Rule to Show Cause issued against
Thompson. 1 Based on the evidence presented, the court found
Thompson owed child support arrearage in the amount of
$21,496.87, that his sentence imposed upon convictions for
felony charges ran until the year 2005, and that he had not
shown a good faith attempt to comply with his child support
order. The court found Thompson in contempt and ordered:
That Mason Thompson, upon his release from
his current imprisonment, is sentenced to be
further held upon this finding of contempt
but may purge himself of the contempt by
making good faith payments of his obligation
. . . toward his arrears and current support
under the child support order.
Analysis
On appeal, Thompson asserts that the requirement that his
civil contempt sentence run consecutive to his prison sentence
for a felony conviction eliminates the likelihood that he will
be able to purge his contempt of court by making "good faith
payments" on his child support obligation at the end of his
current period of incarceration, because he cannot be employed
while incarcerated. He reasons that, since he will not be able
1
Thompson was represented by a guardian ad litem because he
was under a legal disability due to his incarceration.
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to purge his contempt, he has received a de facto criminal
punishment for civil contempt. We find no error and affirm the
decision of the trial court. 2
It is axiomatic that, in a civil contempt proceeding, the
contemnor must be in a position to purge himself of contempt.
If it is for civil contempt the punishment
is remedial . . . . [I]mprisonment for
civil contempt is ordered where the
defendant has refused to do an affirmative
act required by the provisions of an order
which, either in form or substance, was
mandatory in its character. Imprisonment in
such cases is not inflicted as a punishment,
but is intended to be remedial by coercing
the defendant to do what he had refused to
do.
Gompers v. Buck Stove & Range Co., 221 U.S. 418, 441-42 (1911).
In contending a criminal penalty has been improperly
imposed for his civil contempt of court, Thompson relies on the
holding in Shillitani v. United States, 384 U.S. 364 (1966). In
Shillitani, the United States Supreme Court addressed the
contempt convictions of appellants who refused to answer
questions before the grand jury. Finding the contempt
convictions civil in nature, the Court noted that "the
justification for coercive imprisonment as applied to civil
2
The Commonwealth contends Thompson's appeal is
procedurally barred under Rules 5A:6 and 5A:18, arguing Thompson
failed to timely file a notice of appeal and timely object to
the sentence imposed by the trial court. We disagree and find
our decision on this issue is controlled by the Virginia Supreme
Court's order in Thompson v. Commonwealth, Record No. 011572,
issued on April 5, 2002, in which we were directed to hear
Thompson's appeal.
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contempt depends upon the ability of the contemnor to comply
with the court's order." Id. at 371. "Where the grand jury has
been finally discharged, a contumacious witness can no longer be
confined since he then has no further opportunity to purge
himself of contempt." Id.
In the case at bar, however, Thompson provided no evidence
that he will be unable to make "good faith payments" while
incarcerated. Thus, we cannot say, as a matter of law, that
Thompson will be unable to purge his contempt. Accordingly, we
find no error in the trial court's imposition of Thompson's
sentence.
Thompson further argues that the trial court's failure to
give him a fixed sentence will result in his incarceration
indefinitely, should he be unable to meet the purge condition.
Code § 16.1-278.16 provides:
[W]hen the court finds that the respondent
(i) has failed to perform or comply with a
court order . . . concerning the support and
maintenance of a child . . . , the court may
order a payroll deduction . . . or the
giving of a recognizance . . . . If the
court finds that respondent has failed to
perform or comply with such order, the court
may also order the commitment of the person
as provided in § 20-115 or the court may, in
its discretion, impose a sentence of up to
twelve months in jail, notwithstanding the
provisions of §§ 16.1-69.24 and 18.2-458,
relating to punishment of contempt.
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Code § 20-115 provides:
[U]pon conviction of any party for contempt
of court in (i) failing or refusing to
comply with any order or decree for support
and maintenance for a . . . child . . . the
court (i) may [assign] the party to a local
correctional facility as provided for in
§ 20-61[;] . . . the assignment shall be for
a fixed or indeterminate period or until
further order of the court. However, in no
event shall commitment . . . be for more
than twelve months.
The statute plainly permits the court to impose an
indeterminate sentence and directs that the confinement not
exceed twelve months. Nevertheless, there exists no express
requirement that the court reference the statutory limitation on
confinement in its order and, although we believe a reference to
the sentence limitation in the court's order to be the better
practice, its omission is not a basis for reversal.
Accordingly, we affirm the trial court's decision holding
Thompson in civil contempt and affirm his sentence to an
indeterminate term or until such time that he purges his
contempt, but in no event to exceed twelve months.
Affirmed.
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