Grace C. Rutledge v. E. Preston Rutledge ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Duff *
GRACE C. RUTLEDGE
MEMORANDUM OPINION **
v. Record No. 0488-01-4 PER CURIAM
JULY 31, 2001
E. PRESTON RUTLEDGE
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
(Grace C. Rutledge, pro se, on briefs).
(James Ray Cottrell; Christopher W.
Schinstock; Gannon & Cottrell, P.C., on
brief), for appellee.
Grace C. Rutledge appeals the decision of the circuit court
holding her in contempt for failing to pay $65,000 for attorneys'
fees and costs to E. Preston Rutledge, her husband. She contends
that the trial judge erred in finding her in contempt (1) for
failure to pay an award that was not based on child support, and
(2) without having first determined whether she had the ability to
make the payment. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit as to the
first issue and that a transcript or written statement of facts is
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
necessary for a determination of the second issue. Accordingly,
we summarily affirm the judgment of the trial court in part and
dismiss in part. See Rule 5A:27.
Procedural Background
In a May 10, 2000 order, the trial judge ordered wife to
pay husband $65,000 for attorneys' fees and costs incurred in a
protracted dispute over the custody of their minor children. On
January 26, 2001, the trial judge found wife in contempt of
court for failing to obey the order to pay. He ordered her to
appear in court in ninety days to either demonstrate she had
purged herself of contempt or provide evidence why she should
not be sentenced.
Analysis
I.
"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). "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). The May 10, 2000
order contains the following specific direction to the wife:
"[T]he Court orders that . . . [the wife] pay $65,000 to [the
husband] in fees and costs." This order "contain[s] a command
or direction," as required by French v. Pobst, 203 Va. 704, 710,
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127 S.E.2d 137, 141 (1962), and does not "merely [declare] the
rights of the parties." Id. Thus, the trial judge had the
discretionary power to hold the wife in contempt and did not
abuse his discretion. See Wells v. Wells, 12 Va. App. 31, 36,
401 S.E.2d 891, 894 (1991).
II.
The wife also asserts that the trial judge erred by not
determining whether she had the ability to pay the judgment
before holding her in contempt. A transcript or statement of
facts is indispensable to a determination of this issue.
Because neither was filed, we must dismiss the appeal as it
pertains to this issue. See Anderson v. Commonwealth, 13 Va.
App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v.
Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986).
Accordingly, we summarily affirm the judgment of the trial
court in part and dismiss in part. See Rule 5A:27.
Affirmed, in part
and dismissed in part.
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