COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
DAVID J. HOWELL
MEMORANDUM OPINION * BY
v. Record No. 0955-00-2 JUDGE JEAN HARRISON CLEMENTS
MAY 1, 2001
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. LINDA FISHER
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
David J. Howell, pro se.
Nicholas S. Murphy, 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.
David J. Howell appeals from the rulings of the trial court
dismissing his appeal from the juvenile and domestic relations
district court. On appeal, he contends the trial court erred in
ruling that (1) his contempt was civil rather than criminal, (2)
the issue of his driver's license suspension was moot, and (3) an
appeal bond was required. Howell further contends that he was
denied due process and equal protection of the law. Finding
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellate review procedurally barred, we affirm the decisions of
the trial court. 1
BACKGROUND
David J. Howell was ordered to pay child support to Linda
Fisher pursuant to various court orders, the current one providing
for the payment of $75 per week. Payments were ordered to be made
through the Division of Child Support Enforcement (DCSE).
On October 21, 1998, DCSE filed a motion for a show cause
summons against Howell in the juvenile and domestic relations
district court, alleging that Howell was in arrears and seeking an
adjudication of contempt. On that same date, DCSE also filed a
petition seeking an order suspending Howell's driver's license
because of his delinquency in child support payments. The clerk
of the juvenile and domestic relations district court issued a
show cause summons on February 19, 1999. On May 5, 1999, Howell
filed a motion to reduce his child support obligation. On
December 7, 1999, the juvenile and domestic relations district
court entered orders (1) establishing an arrearage of $26,882.22
as of November 30, 1999; (2) finding Howell in civil contempt of
court; (3) suspending Howell's driver's license for failure to
provide support; and (4) denying Howell's motion to modify his
1
Because we conclude that Howell's appeal is procedurally
barred, we do not address whether the trial court's order of
February 10, 2000 was an appealable order pursuant to Code
§ 17.1-405 or whether Howell's notice of appeal therefrom was
timely filed pursuant to Rule 5A:6.
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child support obligation. The juvenile and domestic relations
district court also sentenced Howell to twelve months in jail, but
provided for his release from custody upon payment of $5,000
toward his child support arrearage.
On December 8, 1999, after purging himself of contempt by
paying $5,000 toward his arrearage, Howell filed a notice of
appeal with the clerk of the juvenile and domestic relations
district court, indicating his intention to appeal the juvenile
court's December 7, 1999 orders, including the court's
establishment of the arrearage. The clerk's office required that
Howell post an appeal bond equal to the arrearage. The following
day, Howell filed a second notice of appeal. Unlike the first
one, the second notice of appeal did not indicate an intention to
appeal the establishment of the arrearage. No appeal bond was set
for the second notice of appeal. The record does not reflect
whether Howell withdrew the first notice of appeal, but it was not
filed in the circuit court. The second notice of appeal was
received in the clerk's office of the circuit court on December
29, 1999.
At a hearing before the circuit court on January 10, 2000,
amidst confusion over what had been appealed from the lower court,
Howell's counsel advised the trial court that Howell was appealing
the juvenile court's finding of civil contempt of court, the
suspension of Howell's driver's license, the establishment of the
arrearage, and the denial of Howell's motion to amend child
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support. The trial court ruled that the issues of civil contempt
and the suspension of Howell's driver's license were moot because
Howell had purged his contempt. An order memorializing this
ruling was entered on February 10, 2000, without objection by
Howell. The trial court continued the issues of the establishment
of the arrearage and Howell's motion to reduce his child support
obligation, and granted Howell until April 10, 2000 to post an
appeal bond of $26,882.22.
On April 10, 2000, the trial court dismissed Howell's appeal
of the establishment of the arrearage and of the denial of his
motion to modify child support because of Howell's failure to post
the appeal bond. An order reflecting the dismissal of Howell's
appeal and remanding the case back to the juvenile and domestic
relations district court was entered on June 5, 2000. Howell's
attorney endorsed the order "Seen and Objected to" and noted
Howell's objections as follows:
(1) David J. Howell was tried and convicted
of criminal failure to appear by the Juvenile
Court as opposed to civil contempt for
failure to pay child support. It was the
incorrect criminal failure to appear which he
appealed to this Circuit Court; and (2) David
J. Howell agreed there was/is an outstanding
arrearage of $26,000 [approximately].
However, $19,000 [approximately] was stayed
by the Circuit Court. The stay has never
been recognized by Support Enforcement. The
$26,000 [approximately] is inclusive of the
$19,000 [approximately].
On April 26, 2000, Howell filed his notice of appeal of, in
part, the trial court's order of February 10, 2000 and, in part,
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the rulings from the hearing of April 10, 2000, subsequently
memorialized in the trial court's order of June 5, 2000.
ANALYSIS
On appeal to this Court, Howell challenges the trial
court's "civil" contempt ruling and the order suspending his
driver's license. He also alleges that his rights of due
process and equal protection were violated. He further contends
that an appeal bond was not required because he did not appeal
the establishment of the arrearage.
In support of this last contention, Howell asserts that,
when informed by the clerk of the juvenile and domestic
relations district court that he was required to post an appeal
bond of $26,882.22 to appeal his entire case, he "cancelled" his
notice of appeal dated December 8, 1999. He then, his argument
continues, returned the following day to the clerk's office to
"renote [sic] his appeal," indicating that he wished to appeal
to the trial court only the "criminal" jail sentence, the
suspension of his driver's license, and the denial of his motion
to amend his child support obligation.
However, at the January 10, 2000 hearing on Howell's
appeal, Howell told the trial court that he was appealing the
juvenile court's finding of civil contempt, the suspension of
his operator's license, the establishment of the arrearage, and
the denial of his motion to modify child support. Furthermore,
on February 10, 2000, the trial court entered, without objection
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by Howell, an order memorializing its January 10, 2000 rulings
disposing of the issues of civil contempt and the suspension of
Howell's license. Howell made no objection (1) to the trial
court's finding in that order that the nature of the contempt of
court issue before it was civil rather than criminal, (2) to the
court's finding that Howell had not posted the required appeal
bond and that the appeal would be dismissed unless the bond was
posted within thirty days, or (3) to the court's dismissal of
his appeal of the contempt and license suspension issues as
being moot.
On April 10, 2000, the trial court then dismissed Howell's
appeal of the remaining issues--the establishment of the
arrearage and Howell's motion to modify child support. Howell's
only objections to the June 5, 2000 order memorializing those
rulings were that the conviction he had appealed was criminal
failure to appear rather than civil contempt for failure to pay
child support and that a portion of his arrearage had been
previously stayed by the circuit court. Moreover, at no point
did Howell make the argument to the trial court that his
constitutional rights had been violated.
Rule 5A:18 provides, in pertinent part, that "[n]o ruling
of the trial court . . . will be considered as a basis for
reversal unless the objection was stated together with the
grounds therefor at the time of the ruling." (Emphasis added.)
Thus, we will not consider a claim of trial court error as a
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ground for reversal "where no timely objection was made."
Marshall v. Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120,
125 (1998). Nor will we "consider an argument on appeal which
was not presented to the trial court. Rule 5A:18 applies to bar
even constitutional claims." Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1988) (citations omitted).
The main purpose of requiring timely
specific objections is to afford the trial
court an opportunity to rule intelligently
on the issues presented, thus avoiding
unnecessary appeals and reversals. In
addition, a specific, contemporaneous
objection gives the opposing party the
opportunity to meet the objection at that
stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991).
We hold, therefore, that, because they were either not
timely presented or never presented to the trial court, the
arguments Howell makes before us on appeal are procedurally
barred by Rule 5A:18. Furthermore, our review of the record in
this case does not reveal any reason to invoke the "good cause"
or "ends of justice" exceptions to Rule 5A:18.
Accordingly, we affirm the trial court's rulings.
Affirmed.
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