Elbert L. Avery, Jr. v Commonwealth, DSS, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
ELBERT L. AVERY, JR.
v. 	Record No. 0221-95-3 	OPINION BY
JUDGE JAMES W. BENTON, JR.
COMMONWEALTH OF VIRGINIA, 	JULY 16, 1996
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. KIMBERLY R. CLARK
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
James J. Angel for appellant.
Jack A. Maxwell, Special Counsel (Betsy S.
Elliott, Senior Special Counsel; James S.
Gilmore, III, Attorney General; William H.
Hurd, Deputy Attorney General; Siran S.
Faulders, Senior Assistant Attorney General;
Robert B. Cousins, Jr., Senior Assistant
Attorney General, on brief), for appellee.
Elbert L. Avery, Jr. appeals from the trial judge's refusal
to hear his appeal from a final order of the juvenile and
domestic relations court adjudging him guilty of contempt and
assessing a support arrearage. 	Avery alleges that the trial
judge erred in finding that because Avery failed to file an
appeal bond the circuit court lacked jurisdiction to consider the
contempt issue. 	We agree and reverse the order.
The record establishes that in 1990, a judge of the juvenile
court ordered Avery to pay $100 per month support for his three
children. 	In 1994, Avery was summoned to court from prison for
failure to pay support. 	The judge determined Avery was indigent

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and appointed counsel for him. 	Following a hearing, the judge
found that an arrearage of $9,200 existed and adjudged Avery in
contempt for violating the support order. 	He sentenced Avery to
365 days in jail unless he paid the arrearage or reached an
agreement with the Division of Child Support Enforcement. 	The
judge set the appeal bond at $9,200, the amount of the child
support arrearage.
Avery appealed to the circuit court. 	At a hearing in the
circuit court, Avery's counsel argued that no bond was required
to perfect the appeal, that Avery's sentence was criminal in
nature, and that Avery was entitled to a trial de novo in circuit
court pursuant to Code §§ 16.1-296(E) and 16.1-136. 	The trial
judge ruled that the conviction and punishment were civil in
nature, found that an appeal bond had not been filed, and
dismissed the appeal on the ground that the circuit court lacked
jurisdiction. 	The dismissal order recited that the juvenile
court judge found that Avery has been jailed on a felony
conviction "almost since ordered to pay [child] support" and that
Avery "could not pay because of his felony conviction plus
violation . . . of parole."
The statute governing appeals from the juvenile court
states, in pertinent part, as follows:
No appeal bond shall be required of a party
appealing from an order of a juvenile and
domestic relations district court except for
that portion of any order or judgment
establishing a support arrearage or
suspending payment of support during pendency
of an appeal. 	In cases involving support, no

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appeal shall be allowed unless and until the
party applying for the same or someone for
him shall give bond, in an amount and with
sufficient surety approved by the judge or by
his clerk if there is one, to abide by such
judgment as may be rendered on appeal if the
appeal is perfected or, if not perfected,
then to satisfy the judgment of the court in
which it was rendered. 	An appeal will not be
perfected unless such appeal bond as may be
required is filed within thirty days from the
entry of the final judgment or order.
Code § 16.1-296(H) (emphasis added). 	By its explicit terms, the
statute removes the requirement for posting a bond except as
provided in the statute. 	The provision specifying that a bond
shall be required for an appeal of a judgment establishing
support arrearages implicitly recognizes that an order that sets
arrearages may have a component that does not establish a support
arrearage. 	In such a case, an appeal bond is required only for
"that portion of any order . . . establishing a support
arrearage." 	Id.
The juvenile court's order that Avery sought to appeal
adjudged Avery guilty of civil contempt and assessed an
arrearage. 	Seeking to appeal without the necessity of posting a
bond, Avery's counsel argued, in part, to the circuit judge as
follows: I guess the first issue that the Court needs
to decide is whether or not we properly
perfected our appeal. 	It was done within the
appropriate time, but what the J & D Court is
saying that this is a civil matter so they
had the right to set an appeal bond and that
the case cannot be appealed until the appeal
bond is posted.
It didn't sound right to me and I'm not

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sure whether it is right or not, but I found
a Court of Appeals decision. 	It's called
Kessler vs. Commonwealth [,18 Va. App. 14,
441 S.E.2d 223 (1994)].
* 	* 	* 	* 	* 	* 	*
And I submit to the Court that the same
reasoning would apply that if a person is
subject to twelve months in jail like my
client received, it's criminal in nature and,
therefore, he should be entitled to either a
jury trial, which we're not asking for, but
at least an appeal to the Circuit Court,
which is why we're asking the Court to assume
jurisdiction, allow us to put on some
evidence really as to sentencing. 	We'll
plead guilty to non support, but I think that
there is some mitigation evidence that would
justify a sentence less than the twelve
months. 	So I think the first issue is the
jurisdiction issue.
* 	* 	* 	* 	* 	* 	*
And then I think it's--it's almost
ludicrous to then find someone indigent and
say that he doesn't have money to hire an
attorney so that he is entitled to court
appointed counsel, and then to make him post
a $10,000.00 cash bond for his sentence to be
reviewed by another Court. 	I mean, so, to
say that, you know, to put a condition that
--that there is no way that the defendant can
make, I think practically speaking there is
no way that he could purge it so he doesn't--
so he doesn't--to style the order in that way
would effectively deny his appeal. 	I don't
think that's fair.
In finding a lack of jurisdiction, the trial judge ruled
that the "statute says that [the juvenile judge was] entitled to
set a bond in the amount of the arrears." 	However, this record
clearly supports Avery's argument that he sought only to appeal
the contempt finding. 	During the circuit court proceedings,

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Avery's counsel addressed the nature of the contempt charge and
the sentencing but never challenged the support arrearage.
Indeed, Avery's counsel tacitly conceded the arrearage when he
stated, "[w]e'll plead guilty to non support." 	Thus, his
argument sufficiently "inform[ed] the court that he was pursuing
an appeal of the contempt order and not appealing the
determination of the support arrearage." 	McCall v. Commonwealth
Dep't of Soc. Servs., 20 Va. App. 348, 352-53, 457 S.E.2d 389,
392 (1995).
We need not address Avery's argument that because he was
indigent and incarcerated, the contempt "punishment [was] . . .
determined and unconditional," Kessler v. Commonwealth, 18 Va.
App. 14, 16, 441 S.E.2d 223, 224 (1994), and, therefore, was a
criminal matter requiring no bond. 	Code § 16.1-296(H) does not
require the posting of a bond except as specified. 	A finding of
contempt is not an order "establishing a support arrearage." 	See
McCall, 20 Va. App. at 352-53, 457 S.E.2d at 392. 	We hold,
therefore, that Code § 16.1-296(H) permitted Avery to appeal from
the juvenile court's contempt order without the necessity of
posting a bond.
Accordingly, we reverse the order dismissing the appeal and
remand to the circuit court for further proceedings.
Reversed and remanded.