COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED
TAMENA G. WILSON
MEMORANDUM OPINION*
v. Record No. 0520-15-1 PER CURIAM
SEPTEMBER 15, 2015
FITZGERALD C. BRITTON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John R. Doyle, III, Judge
(Curtis T. Brown, on brief), for appellant.
(Jennifer E. Peterson; Peterson Law, PLC, on brief), for appellee.
Tamena G. Wilson appeals an order finding her in contempt for failure to pay child support.
Wilson argues that the trial court erred by “retroactively” terminating Fitzgerald C. Britton’s
obligation to pay child support to Wilson, not awarding arrearages to Wilson, and holding her in
civil contempt because Britton “has failed to comply with his continuing obligation to pay child
support to [Wilson] under the December 6, 2006 order to pay and no motion or order has ever been
filed or entered terminating [Britton’s] obligation to pay child support to [Wilson].”1 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.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s opening brief included another assignment of error, which stated, “The
Trial Court erred by failing to set aside its judgment of March 5, 2015 for lack of jurisdiction
because the child support matters and the custody matters are intrinsically bound and the Trial Court
had previously transferred jurisdiction of the custody issue to the State of Maryland by an order
entered on June 12, 2014.” Wilson abandoned this issue on appeal, and stated, “After further
research on the issue, the Appellant concedes that Norfolk Circuit Court had jurisdiction to hear
Appellee’s civil show cause for non-payment of child support against the Appellant.” Therefore,
the Court will not consider this assignment of error.
BACKGROUND
Britton and Wilson have one child, who was born in July 2006. Initially, Wilson had
primary physical custody of the child. On December 6, 2006, Britton was ordered to pay $500
per month to Wilson for child support. The child support payments were made through the
Division of Child Support Enforcement (DCSE).
In May 2010, the Norfolk Juvenile and Domestic Relations District Court (the JDR court)
awarded primary physical custody of the child to Britton. Britton submitted a copy of the order
to DCSE, and in June 2010, Britton received a letter from DCSE that stated it had closed its file.
According to DCSE, Britton did not owe any arrears at the time the file was closed.
In November 2011, the JDR court ordered Wilson to pay $300 per month to Britton for
child support. The order was finalized on January 10, 2012, and stated that Wilson’s support
obligation began on November 1, 2011.
On February 13, 2014, a show cause summons was issued for Wilson’s failure to pay
child support as ordered by the January 10, 2012 order. On June 9, 2014, the JDR court found
Wilson guilty of contempt and established the arrears at $3,035. Wilson appealed to the circuit
court.
On March 5, 2015, the parties appeared before the circuit court. After hearing evidence
and argument, the circuit court found Wilson guilty of civil contempt and established the arrears
at $5,351.05. This appeal followed.
ANALYSIS
Contempt
Wilson contests the civil contempt finding and argues that Britton owes her child support
pursuant to the December 6, 2006 order. She contends “it would be unfair to punish [her] for
-2-
non-payment of child support when [Britton] also owes arrearages for non-payment of child
support.”
“[W]e review the exercise of a court’s contempt power under an abuse of discretion
standard.” Petrosinelli v. People for the Ethical Treatment of Animals, 273 Va. 700, 706, 643
S.E.2d 151, 154 (2007) (citation omitted).
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.” Carswell v. Matterson, 224 Va. 329, 332, 295 S.E.2d 899,
901 (1982). 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. Frazier v. Commonwealth, 3 Va. App. 84, 87, 348
S.E.2d 405, 407 (1986). The offending party then has the burden
of proving justification for his or her failure to comply. Id.
Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991).
Here, Britton submitted evidence of Wilson’s support payments. She paid support for
November and December 2011. Her annual child support payment obligation was $3,600. She
paid $3,555 in 2012 and $2,010 in 2013. She paid $858.75 in 2014, of which $758.75 was a
purge amount after she had been found in contempt. This evidence proved that Wilson failed to
comply with the support order.
The burden then shifted to Wilson to explain why she did not comply with the support
order. She argued that Britton still owed her child support pursuant to the December 6, 2006
order because the court never entered an order terminating his child support obligation. The trial
court rejected this argument and noted that the court had transferred custody from Wilson to
Britton in 2010 and subsequently awarded him child support.
Throughout the hearing and at the conclusion, the trial court reminded the parties that the
only matter on the court’s docket that day was the show cause summons against Wilson. During
closing argument, Wilson’s attorney acknowledged that Wilson’s failure to pay support to
Britton was perhaps the “wrong course.” Wilson’s counsel further stated, “Maybe she should
-3-
have continued to pay her 300 and not worried about the 500 that he owes and bring . . . a motion
to enforce his [support obligation], and done it that way. Maybe that might have been the best
way.”
Assuming without deciding that Britton’s support obligation under the December 6, 2006
order has not been terminated, Wilson’s child support obligation nonetheless still exists. The
court ordered Wilson to pay $300 per month in child support after custody of the child was
transferred to Britton. Wilson stopped regularly paying her child support obligation in 2013.
The evidence supports the trial court’s finding that Wilson willfully disobeyed a court order. Her
reasoning that she did not pay support because of Britton’s alleged support arrears did not justify
the cessation of her payments. As noted by her counsel, Wilson had other options available to
her to collect any funds she thought Britton owed her. Therefore, the trial court did not err in
finding her in civil contempt.
Attorney’s fees and costs
Both parties have requested an award of attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration
of the record before us, we decline to award either party attorney’s fees and costs on appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
-4-