Venesa Walker-Duncan v. Gary Allen Duncan

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
VENESA WALKER-DUNCAN
MEMORANDUM OPINION*
v. Record No. 1752-03-1 PER CURIAM
JANUARY 20, 2004
GARY ALLEN DUNCAN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
(Jack E. Ferrebee; Hofheimer/Ferrebee, P.C., on brief), for appellant.
No brief for the appellee or the Guardian ad litem for the minor
children.
Venesa Walker-Duncan (appellant) contends the “trial court’s imposition of its contempt
powers, including the threat of incarceration,” in order to satisfy appellant’s debt to the guardian ad
litem “contravene[d] the United States Constitution, Amendment XIII” and “was an abuse of
discretion in light of its initial ruling that it would enter judgment against Walker-Duncan.”
Upon reviewing the record and opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.
Background
By order dated February 16, 2001, the trial judge appointed Shawn Salyer to act as
guardian ad litem for appellant’s three minor children during a lengthy and contentious custody
dispute between appellant and her husband. The guardian ad litem filed a report on May 24, 2002
and an itemized bill on August 27, 2002, detailing her services. Appellant had paid $550 toward the
guardian ad litem fee. In August 2002, the trial judge ordered “that the cost of the Guardian Ad
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Litem shall be equally paid by the parties, 50/50, within 90 days hereof.” On November 12,
2002, the guardian ad litem filed a motion seeking payment of her fee.
At the December 20, 2002 hearing on the motion, the guardian ad litem told the trial judge
that she submitted the bill to appellant “some time ago.” Appellant’s attorney complained about the
guardian ad litem’s performance and recommendations and argued as follows:
Your Honor, our position is that the guardian ad litem
should not be paid by [appellant]. If anybody should pay a fee, it
should be [appellant’s husband].
It would be totally inequitable, unfair, unjust to force her to
pay for something that she – that – that there’s no demonstrable
benefit for these kids to have had to begin with through this – the
guardian ad litem, with all due respect to Ms. Salyer.
But if – if the Court believes that she’s entitled to be paid
for her time, it certainly shouldn’t be [appellant] who’s financially
ruined as a result of the – the positions that Ms. Salyer took in the
face of evidence that – that her position was – was erroneous.
Appellant’s husband’s attorney argued that “[t]his was a long . . . and hard-fought case,
and [the guardian ad litem] hung in there.” He indicated that “[t]he bill is reasonable” and said
appellant’s husband intended to pay half the fee.
The trial judge found that the guardian ad litem remained involved throughout the
litigation and “did her job.” Commenting upon the large amount of “time involved in dealing
with this case,” the judge indicated he was “surprised the bill is . . . as small as it is.” Finding
that the guardian ad litem “did a good job” and was entitled to her fee, the judge ruled that “each
party pay one-half of the guardian ad litem fee” and that he would “grant judgment” if the fee
was not paid within thirty days. The order, entered on February 14, 2003, required appellant “to
pay said amount within 30 days from the date of the hearing, or, on or before January 20, 2003.”
The guardian ad litem filed a petition for appellant to show cause why she should not be
held in contempt of court for violating the order to pay her portion of the fee within thirty days. At
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the hearing on the petition, appellant’s attorney argued that the trial judge should enter a judgment
against appellant rather than use his contempt power. Appellant’s attorney argued that appellant
“doesn’t have resources to pay,” and appellant testified that she provides care to her mother, who
pays her “about a thousand dollars a month.” Appellant’s attorney further contended that an order
of civil contempt would violate the Thirteenth Amendment’s proscription against “involuntary
servitude, peonage.”
At the hearing and in an opinion letter dated March 20, 2003, the trial judge reviewed the
lengthy history surrounding this case and the extensive services rendered by the guardian ad litem.
The judge found that appointing a guardian ad litem “was essential in this case” as the parties
continuously furthered “their self-interest and disregard[ed] the best interest of their children.” The
trial judge also found that appellant “has the ability to pay as many as four attorneys, . . . has the
ability to pay the Guardian ad Litem fee,” and “has, without legal justification or excuse, failed to
obey the decree.” The trial judge ruled that appellant was in civil contempt and “may purge such
contempt by paying the total sum due” or by making monthly payments.
Thirteenth Amendment Claim
The Thirteenth Amendment to the Constitution of the United States provides: “Neither
slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.”
In support of her theory that the judge’s order violates the Thirteenth Amendment
appellant cites Wright v. Matthews, 209 Va. 246, 163 S.E.2d 158 (1968), and argues that a judge
may not incarcerate a citizen for failing to pay the costs of court. In that case, Wright sought a
writ of habeas corpus after he had served his sentences, alleging the state refused to release him
from incarceration solely because he failed to pay the costs of his criminal prosecution. Id. at
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246-47, 163 S.E.2d at 158-59. The Supreme Court of Virginia held that “[c]osts assessed against
a person who has been convicted of a crime are not part of his punishment for the crime.” Id. at
248, 163 S.E.2d at 160. Therefore, the Supreme Court ruled that Wright’s continued
confinement after serving his sentences “constitute[d] involuntary servitude,” which was
“proscribed by the Thirteenth Amendment.” Id.
Unlike Wright, appellant was not a criminal defendant. Appellant was a civil litigant in a
contentious and complex custody and visitation dispute. “In those contested custody cases where
the trial judge finds that the best interests of the child are not adequately protected by the parties,
appointment of a guardian ad litem for the child is appropriate.” Verrocchio v. Verrocchio, 16
Va. App. 314, 322, 429 S.E.2d 482, 487 (1993).
Whether to award attorney’s fees “is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal only
for an abuse of discretion.” The decision to apportion guardian
fees between both parties or to one party alone also involves a
matter within the chancellor’s discretion. Because each case
presents its own unique set of equities, principles of appellate
review steer clear of inflexible rules and focus instead on
“reasonableness under all the circumstances.”
Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003) (citations omitted); see
also Verrocchio, 16 Va. App. at 322, 429 S.E.2d at 487 (“Indivisible from the power of
appointment is the associated power equitably to apportion the fees and expenses of the guardian
ad litem as costs to the parties.”).
In civil litigation, “the trial court ‘“has the authority to hold [an] offending party in
contempt for acting in bad faith or for willful disobedience of its order.”’” Commonwealth ex.
rel. Graham v. Bazemore, 32 Va. App. 451, 455, 528 S.E.2d 193, 195 (2000) (citations omitted).
“In a show cause hearing, the moving party need only prove that the offending party failed to
comply with an order of the trial court.” Alexander v. Alexander, 12 Va. App. 691, 696, 406
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S.E.2d 666, 669 (1991). “The offending party then has the burden of proving justification for his
or her failure to comply.” Id.
Upon a finding of contempt, a trial judge has discretionary power to enforce decrees of
the court.
Courts are clothed with power and charged with the duty of
maintaining the dignity of the law. Decrees are mandates of the
courts and courts must have power to enforce them if organized
society is to be maintained. The degree of punishment for
contempt is within the sound discretion of the trial court.
Local 333B, United Marine Div. v. Commonwealth, 193 Va. 773, 786, 71 S.E.2d 159, 167
(1952). “A trial court’s determination of matters within its own discretion is reversible on appeal
only for abuse of that discretion . . . and a trial court’s decision will not be set aside unless
plainly wrong or without evidence to support it.” Goldhammer v. Cohen, 31 Va. App. 728,
734-35, 525 S.E.2d 599, 602 (2000).
The trial judge properly employed his equitable powers to appoint a guardian ad litem,
which he found essential to protect the best interests of the children. See Verrocchio, 16
Va. App. at 322, 429 S.E.2d at 487. The trial judge found that this was a lengthy dispute in
which appellant retained several attorneys and law firms and filed a multitude of documents,
motions and objections. Acknowledging his familiarity with the issues and the parties, the trial
judge balanced appellant’s argument that she could not afford to pay her share of the fee with
appellant’s fervent criticism of the guardian ad litem’s recommendations, her expressed intention
not to pay the fee, and appellant’s attorney’s avowal that appellant expended over $100,000 to
rectify alleged errors caused by the report and recommendations.
The record supports the trial judge’s findings that the services of a guardian ad litem were
required in this case and that appellant acted in contempt of the order requiring her to pay her share
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of the guardian’s fee. Accordingly, the trial judge did not abuse his discretion or violate the
Thirteenth Amendment in finding appellant in contempt.
Abuse of Discretion
In a one-sentence argument, appellant contends “the trial court abused its discretion in
abandoning its original decision to enter a judgment against [her] and thereafter invoking its
contempt powers to punish [her] for reasons extraneous to the payment of the guardian ad litem’s
fees.” The record does indicate that at the December 20, 2002 hearing, the trial judge
contemplated granting a judgment to appellee if appellant failed to pay the fee. Addressing the
reference to issuing a judgment, the trial judge later indicated that he did not “intend[] to say that.”
Significantly, the order the trial judge entered did not provide for a judgment to be issued.
“It is the firmly established law of this Commonwealth that
a trial court speaks only through its written orders.” We further
acknowledge, as has the Court of Appeals of Virginia, the general
principle that trial courts have the authority to interpret their own
orders. “Furthermore, when construing a lower court’s order, a
reviewing court should give deference to the interpretation adopted
by the lower court.”
Fredericksburg Constr. Co. v. J.W. Wyne Excavating, 260 Va. 137, 143-44, 530 S.E.2d 148, 152
(2000) (citations omitted).
Absent an order reflecting that a judgment would be entered if appellant failed to pay, we
cannot say the trial judge abused his discretion in finding that appellant had no right to have a
judgment entered in lieu of contempt.
For these reasons, we summarily affirm the trial judge’s contempt order.
Affirmed.
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