Peter J. Archuleta v. Fanny A. Osco ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, McClanahan and Senior Judge Coleman
PETER J. ARCHULETA
MEMORANDUM OPINION *
v. Record No. 0368-03-4 PER CURIAM
JULY 29, 2003
FANNY A. OSCO
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge Designate
(Ted Kavrukov; Kavrukov & DiJoseph, on
brief), for appellant.
No brief for appellee.
Peter J. Archuleta appeals the circuit court's order denying
his motion to hold Fanny A. Osco in contempt of court. Archuleta
contends the circuit court erred in holding that the evidence was
insufficient to find Osco in contempt. Upon reviewing the record
and the opening brief, we find that this appeal is without merit.
Accordingly, we summarily affirm the decision of the circuit
court. Rule 5A:27.
By order entered August 10, 1999, the Fairfax County Juvenile
and Domestic Relations District Court (JDR court) established
visitation provisions regarding the parties' minor child. In
pertinent part, the order reads:
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
[A]t any time when the child is scheduled to
be with one parent and the scheduled parent
is not available, the scheduled parent shall
notify the other, and the child shall be
with the other parent if that parent is
available. This provision takes precedence
over leaving the child with a third-party
care provider.
Subsequently, Archuleta became aware that Osco occasionally
cleaned houses on Saturday mornings when she was the "scheduled
parent." Archuleta hired a private investigator to set up a
"sting" operation to prove that Osco did so. The investigation
determined that whenever Osco cleaned houses for a few hours on
a Saturday, she left the child at her residence with her
husband.
Based on this evidence, Archuleta filed a motion to hold
Osco in contempt of court for violating the JDR court's order.
After hearing the evidence, the circuit court denied the
contempt motion, finding that "[t]here is no evidence that
[Osco] works on a regular basis."
"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.'" Alexander v. Alexander, 12
Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation
omitted). Whether a party is in contempt is a matter left to
the discretion of the trial court, whose decision "we may
reverse . . . only if we find that it abused its discretion."
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Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215
(1993).
On this record, we cannot say that the circuit court abused
its discretion. The evidence supports the court's factual
finding that Osco did not work on Saturdays on a regular basis.
Archuleta presented no evidence that Osco acted in bad faith or
willfully disobeyed the JDR court's order.
Moreover, the provisions of an order must be interpreted
reasonably. See Smoot v. Commonwealth, 37 Va. App. 495, 500,
559 S.E.2d 409, 412 (2002). Archuleta's interpretation of the
order would require the "scheduled parent" to notify the "other
parent" whenever the "scheduled parent" intended to leave the
child for relatively brief periods to attend to daily
obligations. Such an interpretation of the JDR court's order
would be an absurdity. We find no abuse of discretion in the
circuit court's reasonable and common sense conclusion that Osco
did not act in contempt of the court order by failing to notify
the other parent that she would leave the child with her husband
while she cleaned a few houses for several hours on Saturday
mornings.
Accordingly, we summarily affirm the decision of the
circuit court. Rule 5A:27.
Affirmed.
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