Valeria L. Green v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
VALERIE L. GREEN
MEMORANDUM OPINION * BY
v. Record No. 1724-97-3 JUDGE LARRY G. ELDER
NOVEMBER 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
B. A. Davis, III, Judge
Wayne D. Inge for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Valerie L. Green (appellant) appeals from an order finding
her in contempt of court pursuant to Code § 18.2-456(5) for
violating a prior court order prohibiting her from owning or
possessing companion animals. On appeal, she contends that
(1) the underlying order was void because the trial court lacked
authority to prohibit her from owning companion animals and the
ends of justice exception to Rule 5A:18 permits this Court to set
aside her conviction even though she did not present this
argument to the trial court; and (2) the evidence was
insufficient to prove that her actual or constructive possession
1
of the cats was contumacious. For the reasons that follow, we
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
We reject the Commonwealth's contention that the record is
insufficient to permit our review on appeal. The contempt order
entered on July 16, 1997 recites sufficient portions of the March
reject appellant's contentions and affirm her conviction.
VALIDITY OF MARCH 19, 1997 ORDER
TO SUPPORT FINDING OF CONTEMPT
Appellant contends that, per this Court's November 26, 1997
order, the portion of the trial court's March 19, 1997 order
prohibiting her from owning or possessing companion animals was
void. Although she did not raise this issue in the trial court,
she contends that the ends of justice exception to Rule 5A:18
permits her to challenge it on appeal. We disagree.
Assuming without deciding that the trial court lacked
authority to prohibit appellant from owning or possessing
companion animals, 2 its order was merely voidable, not void ab
initio, and appellant had an obligation to comply with that order
until this Court declared it erroneous.
"A void judgment is one that has been procured by extrinsic
or collateral fraud or entered by a court that did not have
jurisdiction over the subject matter or the parties." Rook v.
Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) (citations
omitted). By contrast, an order that is merely erroneous is
voidable only and retains its validity "unless set aside . . .
19, 1997 order to permit our review. Further, we may take
judicial notice of our own order, see Green v. Commonwealth, Rec.
No. 0964-97-3 (Va. Ct. App. Nov. 26, 1997), ruling on appellant's
petition for appeal from the March 19, 1997 order. See Haynes v.
Glenn, 197 Va. 746, 752 & n.1, 91 S.E.2d 433, 437 & n.1 (1956).
2
We do not address the correctness of this ruling. Its
correctness went unchallenged and has become the law of the case.
See, e.g., Carter v. Commonwealth, 16 Va. App. 42, 44, 427
S.E.2d 736, 738 (1993).
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(1) by motion to the trial court filed within twenty-one days of
its entry, as outlined in Rule 1:1, (2) on direct appeal, Rook,
233 Va. at 95, 353 S.E.2d at 758, or (3) by bill of review. Code
§ 8.01-623." Pigg v. Commonwealth, 17 Va. App. 756, 760 n.5, 441
S.E.2d 216, 219 n.5 (1994) (en banc).
"[W]here a court has jurisdiction over the
person and the subject matter, no error in
the exercise of such jurisdiction can make
the judgment void, and . . . a judgment
rendered by a court of competent jurisdiction
is not void merely because there are
irregularities or errors of law in connection
therewith. This is true even if there is a
fundamental error of law appearing upon the
face of the record. Such a judgment is,
under proper circumstances, voidable, but
until avoided is regarded as valid."
Robertson v. Commonwealth, 181 Va. 520, 536-37, 25 S.E.2d 352,
359 (1943) (citation omitted). Therefore, "a party refusing to
obey [such a judgment or order], however erroneously [it was]
made, is liable for contempt. Such order, though erroneous, is
lawful within the meaning of the contempt statutes until it is
reversed by an appellate court." Id. at 537, 25 S.E.2d at 359.
In entering the order of March 19, 1997 in appellant's case,
the trial court had subject matter jurisdiction under Chapter
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27.4 of Title 3.1, which empowered it to punish and remedy the
failure of owners properly to care for their animals. In
addition, the record reflects no challenge to the court's
jurisdiction over appellant's person either in the trial court or
in the previous appeal to this Court. Therefore, appellant
waived any objections to personal jurisdiction. Finally,
appellant has alleged no extrinsic or collateral fraud.
Therefore, because "[t]he trial court had jurisdiction of the
parties and of the subject matter, and the power to interpret the
statute, . . . its order and ruling, until reversed, were lawful
and should have been obeyed . . . ." Robertson, 181 Va. at 538,
25 S.E.2d at 359.
For these reasons, we reject appellant's contention that her
contempt conviction was invalid because the relevant portion of
the underlying order subsequently was set aside. The ends of
justice exception to Rule 5A:18 does not negate the principle
that a voidable order remains valid until set aside.
SUFFICIENCY OF EVIDENCE TO PROVE CONTEMPT
Appellant's challenge to the sufficiency of the evidence is
twofold. First, she contends that, because the portion of the
March 19, 1997 order requiring disposal of the animals referred
only to those animals "formerly seized," the Commonwealth had to
prove either that appellant acquired the cats at issue after
entry of the prior court order or that she failed to take
reasonable steps to divest herself of ownership or possession
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after entry of that order. She contends that it failed to do
either and that, in the absence of such evidence, application of
the circuit court's order prohibiting possession or ownership
amounts to a condemnation without compensation. Second, she
contends that her behavior was not contumacious because she took
reasonable steps to comply with the spirit of the order by
registering the cats in the name of and having them cared for by
another. Again, we disagree.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
trial court's judgment will not be set aside unless it appears
that the judgment is plainly wrong or without supporting
evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
Code § 18.2-456(5) permits a court to punish summarily for
contempt for the "[d]isobedience or resistance of . . . [any]
person to any lawful process, judgment, decree or order of the
court." The inability to obey a court order may be a complete
defense. See Laing v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d
896, 899 (1964). However, because inability to comply is a
defense under Virginia law, an accused bears the burden of
presenting evidence of such an inability. See, e.g., In re
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Roosth, 881 S.W.2d 300, 300-01 (Tex. 1994) (explaining that
"whether the ability to [comply with the court's order] is an
element of the offense of contempt, or is instead an affirmative
defense to that charge, is a question left to state law") (citing
Hicks v. Feiock, 485 U.S. 624, 629, 632-33, 641 n.13 (1988)).
In appellant's case, the Commonwealth presented evidence of
the March 19, 1997 order prohibiting appellant from owning or
possessing companion animals. It presented a videotape showing
appellant in actual possession of four companion animals as she
delivered them to Wanda Wyrick's house. It also presented
extensive additional evidence that appellant owned the animals,
including a contract for care of the cats that listed appellant
as the animals' "true owner" and audiotaped messages in which
appellant admitted owning the cats and having had someone else
purchase the cats for appellant with appellant's money. The
evidence, therefore, showed that appellant both owned and
possessed companion animals after entry of the court's order,
which established a prima facie case of criminal contempt.
In argument, appellant's counsel contended that the
Commonwealth bore the burden of proving that appellant had not
made reasonable efforts to comply with the order. However, in
the absence of some evidence of inability to comply within the
three months that had passed since entry of the order, the
evidence produced by the Commonwealth was sufficient to support
appellant's conviction. See State ex rel. Mikkelsen v. Hill, 847
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P.2d 402, 407 (Or. 1993) (en banc); Berman v. Berman, 238 S.E.2d
27, 28 (Ga. 1977). As the trial court observed, appellant should
have brought the issue to the attention of the court at the
hearing of March 19, 1997 if she was concerned about the status
of animals still in her possession at that time.
Appellant contends that, if she owned the animals which were
the subject of the contempt proceeding before entry of the March
19, 1997 order, the animals were not forfeited by the prior order
because they had not been seized. As a result, she contends that
application of the court order prohibiting her ownership or
possession of such animals, in the absence of evidence that she
acquired them after March 19, 1997, amounts to "condemnation
without compensation" of animals she may already have owned. We
reject this argument.
The Condemnation Clause provides that "private property
[shall not] be taken for public use, without just compensation."
U.S. Const. amend. V; see Va. Const. art. I, § 11. First, we
reject appellant's argument because the prohibition against her
owning or possessing companion animals was not a taking. The
trial court's entry of the March 19, 1997 order prohibiting
appellant from owning or possessing companion animals was a valid
exercise of the police power as authorized by the legislature in
Code § 3.1-796.115. See Fredericksburg Auto Auction, Inc. v.
Department of Motor Vehicles, 242 Va. 42, 48, 406 S.E.2d 23, 27
(1991).
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Second, even if the trial court's prohibition was a taking,
we reject appellant's argument because the taking was not for
public use. See U.S. Const. amend. V; Va. Const. art. I, § 11.
Virginia's statutory scheme provides very clearly that
proceedings pursuant to the code sections at issue are for the
protection of animals; they do not constitute a taking of animals
for public use. In addition, Code §§ 3.1-796.96 and 3.1-796.115
provide that, if the animals are sold, the locality shall receive
only reimbursement for costs for the impoundment and disposition
of the animals and any funds remaining shall be paid to the
owner. Therefore, even absent evidence of when appellant
acquired the four animals, the July 11, 1997 order of contempt
and forfeiture did not constitute a condemnation without
compensation.
For these reasons, we affirm appellant's conviction.
Affirmed.
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