COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
GILBERT W. COOPER
MEMORANDUM OPINION * BY
v. Record No. 1154-00-3 JUDGE ROBERT J. HUMPHREYS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. CYNTHIA (COOPER) WOOLDRIDGE
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
(Onzlee Ware, on brief), for appellant.
Appellant submitting on brief.
Stephanie Cangin, 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; Alice G. Burlinson, Regional Special
Counsel, on brief), for appellee.
Gilbert W. Cooper appeals a finding against him of civil
contempt of court for failure to pay child support. Cooper
contends that the trial court erred in finding him in contempt
because he did comply with the trial court's order for payment
of child support.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Background
On October 21, 1993, the juvenile and domestic relations
district court ordered Cooper to pay child support in the amount
of $200 per month for the support of Megan, his two-year-old
daughter. Cooper failed to pay the support as ordered and was
brought to court by the Division of Child Support Enforcement
(DCSE) on several occasions during the following months. In
April of 1998, Cooper was ultimately found in contempt by the
juvenile and domestic relations court and sentenced to six
months in jail.
The circuit court heard Cooper's appeal, ore tenus, on
March 16, 1999. The circuit court found Cooper guilty of
contempt for failure to pay child support and established the
arrearage at $12,436.47 in principal and $2,873.11 in interest.
The court sentenced Cooper to serve an "indeterminate" jail
sentence that Cooper could purge by paying the arrears in full.
However, the court delayed the imposition of the jail sentence
to June 8, 1999 on the condition that Cooper "pay his current
support obligation of [$200] a month with an additional [$100] a
month toward the arrears due."
The matter was reviewed on July 6, 1999. By order entered
August 9, 1999, the court again found Cooper guilty of contempt
for failure to pay child support and established the arrearage
at $11,329.78 with $3,134.82 in interest. The court sentenced
Cooper to serve a 12-month jail sentence, which could be purged
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by paying the arrears in full. However, the court again
suspended the imposition of the jail sentence upon the condition
that Cooper "pay $200.00 a month on his current support
obligation with an additional $100.00 a month on the arrears."
The court stated "[t]he total payment [Cooper] is to pay is
$300.00 per month for the support of Megan . . . ." If Cooper
missed a payment, the court ordered DCSE to notify the court, so
that a capias could be issued, forcing Cooper to begin serving
the 12-month jail sentence. The court then continued the matter
to July 6, 2000 for yet another review. 1
On December 22, 1999, DCSE filed a Petition for Order to
Show Cause in the circuit court, alleging that Cooper had made
"sporadic partial payments through Virginia Department of Social
Services since August 9, 1999." DCSE requested that a capias
and order to show cause issue, requiring Cooper to appear and
explain why he should not "be held in contempt of court and
fined, imprisoned or both for the failure to comply with the
order [of August 9, 1999]."
At the April 20, 2000 hearing on the petition, DCSE court
specialist, Patricia White Boyd, testified that Cooper had paid
1
Due to a typographical error in the order, which resulted
in a separate paragraph stating "[t]he court will issue a capias
and respondent will begin serving his jail sentence," a capias
issued on August 10, 1999. Although Cooper had not disobeyed
the court order, Cooper was arrested on August 16, 1999. Cooper
was released on bail on August 17, 1999 and the order was
corrected, suspending Cooper's sentence "until further order [of
the court]."
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the following payments to DCSE, as required by the August 9,
1999 court order:
July 1999 $300.00
August 1999 $300.00
September 1999 $300.00
October 1999 $300.00
November 1999 $300.00
December 1999 $300.00
January 2000 $300.00
February 2000 $572.00
March 2000 $ 0.00
Boyd further testified that the money Cooper had paid each month
was taken by DCSE and divided among Cooper's other "open cases
to pay child support through DCSE," as required by Code
§ 63.1-251.2. 2 As a result, Megan's mother received only the
following amounts:
July 1999 $200.00
August 1999 $ 88.89
August 1999 $ 35.71
September 1999 $133.33
October 1999 $150.00
November 1999 $150.00
December 1999 $133.33
2
Code § 63.1-251.2 provides the following in relevant part:
Support payments received by the Department
of Social Services or the Department's
designee shall be prorated among the
obligees based upon the current amounts due
pursuant to more than one judicial or
administrative order, or a combination
thereof, with any remaining amounts prorated
among the obligees with orders for accrued
arrearages in the same proration as the
current support payments.
Apparently, Cooper had another child, residing in Bedford
County, for whom he also owed monthly child support. DCSE had a
separate account open for the receipt of that child's support
payments as required by this statute.
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January 2000 $150.00
February 2000 $150.00
February 2000 $222.00
March 2000 $ 0.00
Megan's mother testified that she had received no direct
payments from Cooper. Cooper presented no defense and raised no
objection to the proceedings and findings of the court.
"Upon completion of the evidence and argument by counsel,"
by an order entered on May 23, 2000, the court found Cooper
"guilty of contempt for failing to comply with [the court's
order] dated August 9, 1999," and imposed the 12-month jail
sentence. The court further provided that the sentence could be
purged by payment in full of the arrearage amount, plus
interest, which was found to be $15,441.31. Cooper's counsel
endorsed the court's final order without objection.
On appeal, Cooper argues for the first time that the trial
court erred in finding him guilty of contempt because he had
complied with the August 9, 1999 order, which applied only to
Megan. Cooper argues he had no knowledge that the payments he
had made were not being applied in full to Megan's account.
DCSE contends that Cooper's appeal is barred by Rule 5A:18
due to his failure to preserve assignments of error during the
proceedings below. DCSE further contends that the court order
required Cooper to pay the full amount on behalf of Megan and
that since it was required by statute to prorate payments made
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to each open account, Cooper was on notice that Megan would not
receive the full $300.
II. Analysis
Cooper's counsel filed a proposed Written Statement of
Facts which was objected to in detail by counsel for DCSE.
Counsel for Cooper responded by letter agreeing that DCSE's
"Objection to Respondent's Written Statement of Facts" more
accurately reflected the proceedings and on that basis, the
trial court signed the statement of facts proposed by DCSE.
The written statement of facts endorsed by the trial court
demonstrates that Cooper, indeed, preserved no objection or
assignment of error for purposes of effecting an appeal.
Moreover, he presented no evidence in his defense.
Rule 5A:18 provides the following:
No ruling of the trial court or the Virginia
Workers' Compensation Commission will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice. A mere statement that the judgment
or award is contrary to the law and the
evidence is not sufficient to constitute a
question to be ruled upon on appeal.
Thus, "[u]nder Rule 5A:18, we will not consider rulings by the
trial court as a basis for reversal unless a party or counsel
timely objected at trial and stated the grounds for the
objection at the time of the ruling. [However,] [a]n exception
to the general rule is appropriate when consideration is
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necessary to enable the Court of Appeals to attain the ends of
justice." Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d
274, 277 (1988) (citations omitted). Cooper urges this Court to
consider his appeal under this exception.
"The ends of justice provision is a narrow one that allows
consideration when the record affirmatively shows that a
miscarriage of justice has occurred. It is not sufficient that
the record show that a miscarriage of justice might have
occurred." Id. (citations omitted) (emphasis in original).
Here, the record proves only that a miscarriage of justice might
have occurred.
"A trial court has the authority to hold [an] offending
party in contempt for acting in bad faith or for willful
disobedience of its order." Alexander v. Alexander, 12 Va. App.
691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). "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. The offending party then has the burden of proving
justification for his or her failure to comply." Commonwealth
ex rel. Graham v. Bazemore, 32 Va. App. 451, 455-56, 528 S.E.2d
193, 196 (2000).
The August 9, 1999 order clearly required Cooper to pay
$300 per month for the "support of Megan." Although Cooper
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made payments of at least $300 per month to DCSE, the agency
proved that Megan did not receive the full amount per month and
that Cooper paid nothing in March of 2000. Thus, DCSE
effectively shifted the burden to Cooper to prove justification
for his failure.
Cooper now argues that he had no knowledge the full amount
was not being applied to Megan's account. "Usually ignorance of
the law is no excuse, and everyone is conclusively presumed to
know the law . . . ." King v. Empire Collieries Co., 148 Va.
585, 590, 139 S.E. 478, 479 (1927). However, "[t]here cannot
. . . be a willful failure to perform an unknown duty." Id. On
the record before us, we cannot hold that Cooper had no
knowledge of the proration because, according to the written
statement of facts, Cooper presented no such evidence to the
trial court. Id.
Cooper next argues, also for the first time on appeal, that
his failure to pay in March was due to his incarceration. It is
true that "the inability of an alleged contemnor, without fault
on his part, to tender obedience to an order of court, is a good
defense to a charge of contempt." Commonwealth ex rel. Graham,
32 Va. App. at 455-56, 528 S.E.2d at 195. However, there is
nothing in the record to show that the trial court was presented
with evidence regarding Cooper's incarceration, or that the
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court was presented with an explanation for the incarceration.
Furthermore, Cooper presented no evidence to suggest that his
incarceration would have affected his ability to make payment.
Unfortunately, because Cooper presented no evidence on his
behalf and because the parties chose to file a written statement
of facts instead of a transcript of the hearing, we have no
evidence upon which to base consideration of Cooper's arguments
on appeal, nor do we know which facts the trial court relied
upon to make its ruling. Accordingly, we can find only that a
"miscarriage of justice" might have occurred. This finding is
insufficient to allow us to consider the matter any further on
appeal. See Jimenez v. Commonwealth, 241 Va. 244, 249, 402
S.E.2d 678, 680 (1991) ("The ends of justice exception is narrow
and is to be used sparingly . . . . [I]t is a rare case in
which, rather than invoke Rule 5A:18, we rely upon the exception
and consider an assignment of error not preserved at trial
. . . ."). Thus, we affirm the decision of the trial court.
As a final matter, we note our concern with the performance
of Cooper's court-appointed counsel in the prosecution of this
appeal. We find that the representation provided Cooper by his
court-appointed counsel fell below the standard expected of
counsel who serve on a court-appointed basis and accordingly,
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order that no attorney fees be paid to Cooper's court-appointed
counsel for his services in connection with this appeal. 3
Affirmed.
3
Our concerns run not merely to the deficiencies already
noted, but also to the repeated failure to comply with the Rules
of the Virginia Supreme Court. On appeal, counsel for Cooper
failed to file the opening brief in the appropriate form.
Further, counsel failed to file an appendix in conjunction with
the opening brief, as required by Rule 5A:25(a). In addition,
according to DCSE, counsel for Cooper failed to discuss and/or
enter into an agreed designation of the appendix with opposing
counsel. Cooper's counsel also failed to file a statement of
the questions to be presented and a designation of the contents
to be included in the appendix, as required by Rule 5A:25(d).
As a result, DCSE filed an appendix unilaterally. Subsequently,
in response to a show cause order issued by this Court, and more
than a month after filing his initial brief, counsel for Cooper
prepared and filed a replacement brief in the appropriate
format, as well as a separate appendix, which contained many of
the same documents contained in DCSE's appendix. However,
Cooper's counsel provided this Court with no explanation for his
failure to file an appropriately formatted opening brief, a
designation of appendix or an appendix, as required by the Rules
of the Virginia Supreme Court.
While we did not view these errors as sufficient to warrant
dismissal of Cooper's appeal, we are nonetheless concerned with
the multiplicity of errors and the resulting additional costs to
the Commonwealth incurred in correcting them.
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