COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
EUGENE H. SCALES, JR.
MEMORANDUM OPINION *
v. Record No. 2295-97-3 PER CURIAM
MAY 19, 1998
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. MEYOKI JONES
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
(Vikram Kapil, Assistant Public Defender;
Office of the Public Defender, on brief), for
appellant.
(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; Vaso T. Doubles, Special
Counsel, on brief), for appellee.
Eugene H. Scales (father) appeals the decision of the
circuit court dismissing his appeal. Father filed a de novo
appeal of an order of the juvenile and domestic relations
district court finding him guilty of civil contempt for
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nonpayment of child support. Father contends that, because he
was unable to post an appeal bond as required by Code
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Father filed a "Petition for Appeal" with this Court. We
agree with appellee's assertion that this appeal arises from a
finding of civil, not criminal, contempt. Therefore, we grant
appellee's motion to transfer this case to the civil side of the
Court's docket, and we treat father's "Petition for Appeal" as an
opening brief.
§ 16.1-296(H), he was denied his right to a trial and due process
of law. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule
5A:27.
The Department of Social Services, Division of Child Support
Enforcement (DCSE) filed a motion to show cause due to father's
failure to pay child support pursuant to a 1990 court order.
Father paid no support after July 1996, during which time he was
incarcerated. On June 17, 1997, the juvenile and domestic
relations district court found that father was in civil contempt
and ordered him to pay $7,438.25 in past-due support and
interest. Father was sentenced to six months in jail, subject to
release upon his payment of the outstanding support and interest.
Father appealed the district court order, but did not post the
appeal bond required under Code § 16.1-296(H). The circuit court
dismissed father's appeal.
Father contends that the district court's contempt action
was quasi-criminal in nature. We disagree. Because father's
imprisonment was conditioned on the payment of his outstanding
child support, the record demonstrates that the action was civil
in nature.
"It is not the fact of punishment, but rather
its character and purpose, that often serve
to distinguish between . . . [civil and
criminal contempt]." The punishment is
criminal in nature if it is determined and
unconditional. The punishment is civil if it
is conditional, and a defendant can avoid a
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penalty by compliance with a court's order.
Kessler v. Commonwealth, 18 Va. App. 14, 16, 441 S.E.2d 223, 224
(1994) (citations omitted).
"Civil as distinguished from criminal
contempt is a sanction to enforce compliance
with an order of the court or to compensate
for losses or damages sustained by reason of
noncompliance. . . . Since the purpose is
remedial, it matters not with what intent the
defendant did the prohibited act. The decree
[is] not fashioned so as to grant or withhold
its benefits dependent on the state of mind
of respondents."
Leisge v. Leisge, 224 Va. 303, 309, 296 S.E.2d 538, 541 (1982)
(citation omitted). Father's sentence was designed to compensate
his child for the nonpayment of support. By paying the
outstanding amount, father could purge himself of contempt.
Relying upon Griffin v. Illinois, 351 U.S. 12 (1956), and
its progeny, father contends that because he was unable to post
the appeal bond required under Code § 16.1-296(H), he was denied
his right to trial and due process of law guaranteed under the
Sixth and Fourteenth Amendments to the United States
Constitution. However, this case neither involves criminal
rights nor falls within the "narrow category of civil cases in
which the State must provide access to its judicial processes
without regard to a party's ability to pay court fees." M.L.B.
v. S.L.J., 117 S. Ct. 555, 562 (1996). The United States Supreme
Court "has not extended Griffin to the broad array of civil
cases." Id. at 563. Moreover,
[a]s a matter of public policy, it is one
thing for the state to excuse indigents from
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payment of fees and costs which are
essentially state interests; it is another
thing for the state to excuse indigents from
posting bonds designed to protect the
judgment rights of successful litigants.
Greer v. Dillard, 213 Va. 477, 479, 193 S.E.2d 668, 670-71
(1973). Therefore, father's contention that he was denied
constitutionally-guaranteed rights is without merit.
Under Code § 16.1-296(H), in order to appeal the district
court's order, father was required to post an appeal bond.
Code § 16.1-296(H) could not be more clear:
"no appeal shall be allowed" unless and until
a bond is given by the party applying for the
appeal. The statutory requirements for
appeal bonds always have been construed as
mandatory, and the exercise of appellate
jurisdiction has been confined to the
provisions of the written law.
Commonwealth ex rel. May v. Walker, 253 Va. 319, 322, 485 S.E.2d
134, 136 (1997). The failure to post the appeal bond deprived
the circuit court of jurisdiction. See id.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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