Daniel T. Street v Joyal C. Street

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
DANIEL T. STREET OPINION BY
v. 	Record No. 2364-95-4 	JUDGE LARRY G. ELDER
JANUARY 21, 1997
JOYAL C. STREET
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gerald Bruce Lee, Judge
M. Lee Anne Washington (Surovell, Jackson,
Colten & Dugan, P.C., on briefs), for
appellant.
Richard J. Byrd (Byrd, Mische, Bevis, Bowen,
Joseph & O'Connor, P.C., on brief), for
appellee.
Daniel T. Street (husband) appeals three orders of the trial
court finding him in contempt of court for failing to pay spousal
and child support. 	Husband contends that the trial court erred
when it refused to hear his evidence purportedly showing that he
is unable to pay his support obligations. 	For the reasons that
follow, we reverse and remand.
I.
FACTS
The parties were married in 1969 and divorced in 1995. 	In
1993, the trial court ordered husband to pay pendente lite
support to Joyal C. Street (wife) in the amount of $2,000 per
month. 	Following a hearing on equitable distribution, spousal
and child support on April 24, 25, and May 2, 1995, the trial
court determined that husband's carpet installation business was

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worth $160,000 and that his monthly income from this business was
$6,139. 	In its final decree of divorce, announced on May 18, the
trial court increased husband's monthly spousal and child support
payments to $3,221 per month. 	Husband closed his business on
June 16, 1995 because "it was not making money" and began
employment in another carpet installation business at a salary of
$2,500 per month.
On July 7, wife petitioned the trial court to issue a rule
to show cause against husband because he was behind on his
support obligations. 	At the show cause hearing on July 28, the
evidence showed that husband was in arrears in the amount of
$5,475. 	At the hearing, the trial court refused to allow husband
to call a witness, Mr. Lane, to testify regarding the financial
condition of husband's business before it was closed. 	The trial
court entered an order that found husband in contempt for
"willfully violat[ing]" its support orders and jailed him until
he made a substantial payment toward the arrearage and filed a
written plan outlining his future compliance with the orders.
The trial court scheduled a review hearing for August 25.
On August 4, husband presented a written plan to the trial
court and requested his release on the condition that he complete
a pending installation job and make a payment to wife of $4,000.
Wife objected to the plan because it proposed that husband pay
only $1,250 of his monthly support obligations. 	The trial court
issued an order that found husband still in contempt but released

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him from incarceration so that he could complete the pending job
and make the $4,000 payment to wife. 	Husband was also ordered to
present a new written plan at the review hearing that set forth
how he would meet his monthly support payments in full. 	On
August 18, husband filed a petition for modification of his
support obligations.
At the review hearing on August 25, husband presented a plan
under which he would pay $945 per month in spousal and child
support. 	After wife's counsel objected to the plan, husband's
counsel stated:
Your Honor, I don't know how to get blood out
of a turnip. 	We are trying to find a way to
borrow money, but there really -- I mean, I
would be happy to give you evidence of what
is in his checking accounts; we have that
here; the evidence of what his salary is.
There is no more evidence that we can give to
the Court, Your Honor, and I think inability
to pay is a legitimate reason in a show cause
hearing . . . . 	Your Honor, I would be happy
to show inability to pay. 	I mean, we can do
that today.
After a brief recess, the trial court would not hear the evidence
proffered by husband's counsel and continued the review hearing
until after the hearing on husband's petition for modification,
which was already set for September 27.
Husband's petition for modification was denied,1 and the
trial court resumed the review hearing on October 6. 	At the
1The trial court's decision in that case was reversed and
remanded in an opinion released simultaneously with this opinion.
See Street v. Street, Record No. 2363-95-4.

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hearing, husband's counsel again attempted to offer evidence
showing that husband was unable to pay his monthly support
obligations, and the trial court again refused to hear this
evidence: MS. WASHINGTON: 	Today, your question is,
does he have an ability to pay?
THE COURT: 	No. 	My question today is, he is to
present a written plan for compliance with the
court order.
MS. WASHINGTON: 	Well, in that case, Your Honor,
you have asked for something that is impossible to
be done. 	We have done everything we can legally
to try to address that question. . . . Mr. Lane is
here for the third time to explain the inability
to pay.
* 	* 	* 	* 	* 	* 	*
THE COURT: 	Let me save you some time, Ms.
Washington. 	I think your client has the absolute
right to appeal the court's ruling holding him in
contempt. 	It is not my plan today to review again
whatever his financial condition is.
The trial court entered an order at the conclusion of the hearing
that found husband "in contempt of court in that he has failed to
make payments for support as previously ordered by this court and
failed to provide a plan to comply with the court ordered
support." 	The order also stated that it "incorporates all
previous orders in this matter of contempt." 	Husband's counsel
endorsed the trial court's order as "seen and objected to on the
finding of contempt and failure to hear evidence of inability to
pay."
II.

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RULE 5A:6: 	TIMELY NOTICE OF APPEAL
Wife contends that husband failed to file a timely notice of
appeal pursuant to Rule 5A:6. 	We disagree.
It is well established that some orders of a court become
appealable before they are final but need not be appealed until a
final order is entered. 	Weizenbaum v. Weizenbaum, 12 Va. App.
899, 903, 407 S.E.2d 37, 39 (1991) (citing Harper v. Vaughn,
87 Va. 426, 429, 12 S.E. 785, 786 (1891); Richardson v. Gardner,
128 Va. 676, 682, 105 S.E. 225, 227 (1920)); see Hess v. Hess,
108 Va. 483, 486, 62 S.E. 273, 274 (1908). 	A contempt order is
appealable if it adjudicates all issues of guilt and imposes a
sentence. 	Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487,
489 (1993); E.I. du Pont de Nemours & Co. v. Universal Moulded
Products Corp., 189 Va. 523, 526, 53 S.E.2d 835, 836 (1949).
However, a court order is not final unless it "disposes of the
whole subject, gives all the relief that was contemplated,
provides with reasonable completeness for giving effect to the
sentence, and leaves nothing to be done in the cause save to
superintend ministerially the execution of the decree."
Richardson, 128 Va. at 683, 105 S.E. at 227.
In this case, although the orders of July 28 and August 4
were appealable because they found husband in contempt and
imposed a sentence, they were not final because in each order the
trial court continued the case for review on a date certain. 	The
order of August 25 also continued the trial court's review of the

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case to October 6. 	Because these orders were not final, husband
was not required to file a notice of appeal within thirty days of
their entry. 	The order of the trial court entered on October 6
was final because it contemplated no further review and left
"nothing to be done in the cause save to superintend
ministerially the execution of the [order]." 	Richardson, 128 Va.
at 683, 105 S.E. at 227. 	Husband filed his notice of appeal on
October 11, well within thirty days after the entry of the final
order, and thus complied with Rule 5A:6.
III.
TRIAL COURT'S REFUSAL TO HEAR EVIDENCE
REGARDING HUSBAND'S INABILITY TO PAY
Husband contends that the trial court erred when it refused
to hear evidence concerning his inability to pay his support
obligations. 	He argues that the trial court violated his due
process right under the Fourteenth Amendment to present a defense
to a charge of contempt. 	We agree.
We hold that a defendant charged with out-of-court contempt
must be given the opportunity to present evidence in his defense,
including the right to call witnesses. 	The due process clause of
the Fourteenth Amendment requires that alleged contemners "have a
reasonable opportunity to meet [the charge of contempt] by way of
defense or explanation." 	Cooke v. United States, 267 U.S. 517,
537, 45 S. Ct. 390, 395, 69 L.Ed. 767 (1925); see Holt v.
Virginia, 381 U.S. 131, 136, 85 S. Ct. 1375, 1378, 14 L.Ed.2d 290
(1965) (stating that due process guarantees a defendant charged

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with contempt "an opportunity to be heard in his defense--a right
to his day in court"), rev'g Holt v. Commonwealth, 205 Va. 332,
136 S.E.2d 809 (1964). 	This due process right includes the right
to testify, to examine the opposing party, and to call witnesses
in defense of the alleged contempt. 	27B C.J.S. Divorce § 456
(1986); see Simmons v. Simmons, 66 S.D. 76, 80, 278 N.W. 537, 538
(1938).
In this case, we hold that the trial court erred when it
refused to allow husband to call witnesses to prove that he was
unable to pay his court-ordered support obligations. 	In
Virginia, inability to pay is a defense to a charge of contempt.
Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215
(1993); Laing v. Commonwealth, 205 Va. 511, 515, 137 S.E.2d 896,
899 (1964); Lindsey v. Lindsey, 158 Va. 647, 654, 164 S.E. 551,
553 (1932). 	"[O]nce nonpayment [of a support order] is
established, the burden is on the obligor to provide
justification for the failure to comply." 	Barnhill, 15 Va. App.
at 704, 427 S.E.2d at 215.
One of the purposes of the review hearing on October 6 was
to determine whether husband was still in contempt of the court's
support orders. 	At the hearing, husband's counsel raised as a
defense husband's inability to comply with his support
obligations and stated her desire to call Mr. Lane as a witness.
In response, the trial court refused to hear any of husband's
evidence, stating, "[i]t is not my plan today to review again

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whatever his financial condition is." 	Husband had a right to his
day in court on the issue of his inability to pay, which is a
valid defense to a charge of contempt, and the trial court erred
when it refused to permit him to present his evidence in support
of this defense. 	See In re Marriage of Mayer, 97 Ill. App. 313,
315-16, 422 N.E.2d 1154, 1155-56 (1981) (holding that court
abused discretion by refusing to permit alleged contemner an
opportunity to present his evidence); Deutsch v. Deutsch, 368
So.2d 625 (Fla. Dist. Ct. App. 1979) (holding contempt order
"wrong" when court summarily precluded alleged contemner from
presenting his case); Simmons, 66 S.D. at 80, 278 N.W. at 539
(holding that it is error to deny request of alleged contemner to
present witnesses in his defense).
Wife contends that the trial court did not err in refusing
to hear husband's evidence because husband testified at the
hearing on July 28 that he had voluntarily closed his business.
Wife argues that under Antonelli v. Antonelli such a voluntary
change can never be a defense to contempt. 	242 Va. 152, 409
S.E.2d 117 (1991). 	We disagree.
In Antonelli, the Virginia Supreme Court held that the
reduction of income as a result of a parent's intentional act,
even if done in good faith, does not warrant a modification of
support. 	Id. at 155-56, 409 S.E.2d at 119-20. 	However, contrary
to wife's assertion, Antonelli on its face applies only to
petitions to modify support and not to charges of contempt.

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In addition, when a payor spouse is unable to pay his
support obligations, there is a significant difference between
the test for modification under Antonelli and the test for
avoiding conviction in a contempt proceeding. 	Contempt
proceedings are controlled by the standard set forth in Laing,
which states:
It is true that the inability of an alleged
contemner, without fault on his part, to
render obedience to an order of court is a
good defense to a charge of contempt. 	But
where an alleged contemner has voluntarily
and contumaciously brought on himself
disability to obey an order, he cannot avail
himself of a plea of inability to obey as a
defense to the charge of contempt.
205 Va. at 515, 137 S.E.2d at 899 (emphasis added). 	Thus,
although a payor spouse who is unable to pay his support
obligations due to a good faith, voluntary reduction in income is
unlikely to have his support obligations modified under
Antonelli, this same payor spouse cannot be found in contempt
unless the evidence shows that the reduction in his income was
also contumacious. 	See Duff v. Commonwealth, 16 Va. App. 293,
298, 429 S.E.2d 465, 467-68 (1993) (trial court abused discretion
by revoking suspended jail sentence where defendant was unable to
pay due to financial setbacks and court found that failure to pay
was neither willful nor fraudulent).
Wife also contends that the trial court did not err because
husband was precluded from offering evidence on the financial
condition of his business as a justification for closing the

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business. 	Wife argues that the trial court adjudicated the value
of husband's business at the equitable distribution hearing and
that the principle of res judicata precludes any subsequent
relitigation of this issue, even at a contempt proceeding. 	We
disagree.
"[R]es judicata precludes the relitigation of a claim or
issue once a final determination on the merits has been reached
by a court having proper jurisdiction over the matter."
Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376
S.E.2d 787, 788 (1989). 	However, the trial court only determined
two issues at the equitable distribution hearing that pertained
to husband's financial condition: (1) his monthly income, and
(2) the value of his business on April 24, 25, and May 2, 1995,
respectively, the dates of the hearing. 	See Code § 20-107.3
(stating that at equitable distribution hearing "the court shall
determine the value of any such property as of the date of the
evidentiary hearing on the evaluation issue"). 	In contrast, at
the hearing on October 6, husband did not seek to relitigate
either the amount of his monthly income or the value of his
business as of April 24, 25, and May 2, respectively. 	Instead,
husband sought to prove that his financial condition on October 6
was such that he was unable to comply with his support
obligations. 	See Kaplan v. Kaplan, 22 Va. App. 542, 549-50, 466
S.E.2d 111, 114-15 (1996) (holding that res judicata does not bar
husband from litigating a change in his ability to pay child

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support one month after court entered award). 	Because husband
sought to litigate issues other than those determined at the
equitable distribution hearing, principles of res judicata do not
apply.
For the foregoing reasons, we reverse and remand this matter
to the trial court for further proceedings consistent with this
opinion.
Reversed and remanded.