Opinion
Record No. 1075-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, John D. Gray, Judge
Affirmed.
Robert P. Geary for appellant.
Lauri DiEnno Hogge, Assistant Commonwealth's Attorney for the City of Hampton, for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The trial judge ruled that John Charles Gardner was in contempt for failure to pay $23,050 in child support arrearages. Code Sec. 18.2-456(5). The trial judge sentenced him to twelve months in jail "which will only be suspended if payment on [the] arrearages . . . is made in full." Gardner challenges the trial judge's failure to offer Gardner a jury trial in the contempt proceeding and the sufficiency of the evidence to prove contempt. We affirm the judgment.
I.
In 1967, Gardner was divorced from his wife, Barbara A. Gardner, and ordered to pay her $50 per week to support his infant children. The support obligation later was increased to $50.50. Following a hearing in August of 1991, a judge of the juvenile and domestic relations district court found that Gardner owed $23,050 for unpaid child support and ordered Gardner to pay that amount. Gardner did not appeal that order. In February of 1992, the Commonwealth's Department of Social Services, Division of Child Support Services, filed a petition on behalf of Gardner's former wife asking that the circuit court adjudge Gardner to be in contempt for failure to comply with the court orders of 1967, 1971, and 1991.
At the evidentiary hearing, the Department offered testimony and introduced a fiscal record that established Gardner's non-payment of support. Gardner's former wife testified that Gardner had not made the payments, that she had not known of Gardner's whereabouts for years, and that she never agreed to excuse any payments of past due child support. The Department also introduced records indicating that Gardner transferred title to numerous vehicles to his current wife prior to the hearing. These vehicles were titled in Gardner's name when the order was entered in 1991.
Gardner testified that because of his poor health he could not provide child support. Gardner introduced a letter he had written to the juvenile and domestic relations district court in 1973 explaining his medical problem. The letter stated that Gardner expected to be able to return to work in thirty to sixty days. Although a judge responded by letter to Gardner, Gardner testified that he never received the letter.
The trial judge ruled that the 1991 judgment, fixing the arrearage that Gardner owed at $23,050, had never been appealed and was, as a consequence, final. The trial judge found that Gardner was in contempt and sentenced him "to 12 months in jail which will only be suspended if payment on arrearages of $23,050 is made in full."
II.
Gardner contends that the trial judge was obliged to offer him a jury trial at the contempt hearing because it was a criminal or quasi-criminal proceeding. Thus, as a threshold matter, we first decide whether Gardner was found in civil or criminal contempt.
"[I]t is not the 'fact of punishment but rather its character and purpose' that distinguish civil and criminal contempt." Small v. Commonwealth, 12 Va. App. 314, 317, 398 S.E.2d 98, 100 (1990) (quoting Gompers v. Buck's Stove Range Co., 221 U.S. 418, 441 (1911)), aff'd en banc, ___ Va. App. ___ 402 S.E.2d 927 (1991). "The primary purpose of a civil contempt proceeding 'is to procure the imposition of a punishment which will afford remedial relief to the parties injured by the violation.' " Rainey v. City of Norfolk, 14 Va. App. 968, 971, 421 S.E.2d 210, 212 (1992) (citation omitted). "If the relief provided is a sentence of imprisonment, it is remedial if 'the defendant stands committed unless and until he performs the affirmative act required by the court's order,' and is punitive if 'the sentence is limited to imprisonment for a definite period.' " Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988) (quoting Gompers, 221 U.S. at 442).
The parties agree that the sentence the trial judge imposed allows Gardner to secure his freedom by paying the child support arrearage of $23,050. We agree with that interpretation of the trial court's order. The trial judge sentenced Gardner to jail for twelve months, but with the proviso that the sentence would be suspended upon payment of the arrearages in full. Although the order set the outer limit of confinement at twelve months, the setting of an outer limit that Gardner could serve in jail does not change the punishment from civil to criminal. See Shillitani v. United States, 384 U.S. 364, 370 n. 6 (1966). Gardner at all times " 'carr[ies] the keys to [his] prison in [his] own pockets.' " Penfield Co. v. SEC, 330 U.S. 585, 590 (1947) (citation omitted).
Because this was a civil contempt proceeding, the right to a jury did not attach. "The conditional nature of the [civil contempt] imprisonment-based entirely upon the contemnor's continued defiance-justifies holding civil contempt proceedings absent the safeguards of indictment and jury, provided that the usual due process requirements are met." Shillitani, 384 U.S. at 371 (citations omitted). Therefore, the trial judge did not err in denying a jury trial to Gardner at the contempt proceeding.
III.
Gardner's contention that the evidence was insufficient to prove his contempt lacks merit. Gardner does not challenge the trial judge's findings that he was adjudged $23,050 in arrears in 1991 and that he did not appeal that judgment. Nor does Gardner challenge the trial judge's finding that he did not pay that amount. "Under familiar principles we view [the] evidence . . . in the light most favorable to the prevailing party below. Where . . . the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
Gardner contends only that the evidence proved that he was medically unable to pay child support. The trial judge properly held that that issue was decided against Gardner in the 1991 proceeding. Moreover, the record does not establish that Gardner carried his burden of proving that he was justified in failing to comply with the 1991 order. See Alexander v. Alexander, 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991). The trial judge also found that Gardner was a less than credible witness and that Gardner attempted to hide his assets. When the evidence is viewed in the light of these findings, the evidence was sufficient to prove that Gardner willfully disobeyed a lawful order of a court. Code Sec. 18.2-456. "Willful disobedience to any lawful . . . order of court is contempt and . . . punishable as such." Board of Supervisors v. Bazile, 195 Va. 739, 745, 80 S.E.2d 566, 571 (1954) (citations omitted). Accordingly, we affirm the judgment.
Affirmed.