Rajan Jagannathan v. Valeria Shepeleva Jagannathan ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Bumgardner
Argued at Alexandria, Virginia
RAJAN JAGANNATHAN
MEMORANDUM OPINION * BY
v. Record No. 1121-07-4 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 19, 2008
VALERIA SHEPELEVA JAGANNATHAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Ted Kavrukov for appellant.
Robert B. Machen (Stephen Andrew Armstong, on brief), for
appellee.
Rajan Jagannathan contends the trial court erred (1) in sentencing him to twelve months in
jail, (2) in denying a motion to set aside an order, and (3) in prohibiting him from posting materials
on the Internet. Concluding the trial court did not err, we affirm. 1
Rajan Jagannathan and Valeria Shepeleva married in 1998 and had two children. They
divorced in 2005 and since then have engaged in continual, protracted, and contentious litigation
over custody, visitation, and child support. The trial court has held the husband in contempt four
times. He has been convicted of assaulting one of the wife’s attorneys and destroying his personal
property. The husband has repeatedly posted, or caused to be posted, defamatory statements on the
Internet. The statements claimed the judges in the case, the wife’s attorneys, a former guardian ad
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s request to strike the appendix filed by the appellee is denied.
litem, and employees of a shelter for abused women and children engaged in criminal activities,
including child abuse.
On April 6, 2007, the trial court again held the husband in contempt. It found that he had
not paid court-ordered child support, had paid no support arrearages, had failed to appear in court as
ordered, and had not provided the court with a current address or telephone number. The trial court
remanded the husband to “the Fairfax County Jail under the provisions of Section 20-61 of the Code
of Virginia for a period of twelve months” or until he purged himself of contempt. It ordered that
the husband be placed in the work release program so that he could pay his support obligation.
The husband raises four issues on appeal concerning the first question presented. First, he
contends the trial court lacked jurisdiction to hold the contempt hearing. The husband contends
Code § 20-67 2 mandates that only the juvenile and domestic relations district court has authority to
hear a proceeding under Code § 20-61. 3 His contention is without merit. Code § 20-1154
2
Code § 20-67:
Proceedings under this chapter shall be had in the juvenile and
domestic relations district courts, which shall have exclusive original
jurisdiction in all cases arising under this chapter.
3
Code § 20-61 reads in pertinent part:
Any spouse who without cause deserts or willfully neglects or
refuses or fails to provide for the support and maintenance of his or her
spouse, and any parent who deserts or willfully neglects or refuses or fails
to provide for the support and maintenance of his or her child under the
age of eighteen years of age, or child of whatever age who is crippled or
otherwise incapacitated from earning a living, the spouse, child or children
being then and there in necessitous circumstances, shall be guilty of a
misdemeanor and upon conviction shall be punished by a fine of not
exceeding $500, or confinement in jail not exceeding twelve months, or
both . . . .
4
Code § 20-115 reads:
Upon failure or refusal to give the recognizance provided for in
§ 20-114, or upon conviction of any party for contempt of court in (i) failing
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specifically gave the trial court authority to hold the hearing, and it was under that authority that the
trial court acted.
Second, the husband contends that the trial court “erred in proceeding to a hearing
without a legitimate pleading.” He argues, “Code § 20-64 requires that proceedings under
Chapter 5 of Title 20 be instituted upon petition, verified under oath, and filed.” Because this
proceeding was under Code § 20-115, a portion of Title 20 Chapter 6, and not under Code
§ 20-61, a portion of Title 20 Chapter 5, the provisions of Code § 20-64 did not apply.
Third, the husband contends the trial court imposed criminal sanctions without a proper
criminal hearing and conviction. He argues that the trial court made no finding that the husband
“willfully neglect[ed] or refuse[d] to provide support and maintenance of his child . . . being then
and there in necessitous circumstances” as specified in Code § 20-61.
Code § 20-115 incorporates the sanction of Code § 20-61 as a remedy available to the
circuit court upon a finding of contempt under Code § 20-115. The husband’s attorney conceded
at the April 6, 2007 hearing that the husband did not make the required child support payments
as previously ordered. This concession provided all the evidence necessary to find that the
husband was in contempt pursuant to Code § 20-115 and subject to the punishment of Code
§ 20-61.
or refusing to comply with any order or decree for support and maintenance
for a spouse or for a child or children or (ii) willfully failing or refusing to
comply with any order entered pursuant to § 20-103 or § 20-107.3, the court
(i) may commit and sentence such party to a local correctional facility as
provided for in § 20-61 and (ii) may assign the party to a work release
program pursuant to § 53.1-131 or to perform public service work; in either
event the assignment shall be for a fixed or indeterminate period or until the
further order of the court. However, in no event shall commitment or work
assignment be for more than twelve months. The sum or sums as provided
for in § 20-63, shall be paid as therein set forth, to be used for the support
and maintenance of the spouse or the child or children for whose benefit
such order or decree provided.
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Fourth, the husband contends the trial court erred in allowing the wife’s attorneys to serve as
private prosecutors. While a proceeding under Code § 20-115 may be criminal or quasi-criminal in
nature, see Kessler v. Commonwealth, 18 Va. App. 14, 16, 441 S.E.2d 223, 224 (1994), that does
not mean the attorney for a spouse seeking support is a private prosecutor. The wife’s attorneys
never sought nor received leave of court to act as private prosecutors. The cases cited by the
husband, Cantrell v. Commonwealth, 229 Va. 387, 329 S.E.2d 22 (1985), and Adkins v.
Commonwealth, 26 Va. App. 14, 492 S.E.2d 833 (1997), are inapposite.
The husband moved to set aside a previous order entered August 25, 2006 that had denied
his motion to disqualify the wife’s attorneys. At the hearing on the renewed motion held April 6,
2007, the trial court reviewed the record and found the husband had previously attempted to
remove both of the wife’s attorneys. At that time, after notice of the hearing on the motions,
response to the motions, and argument on them, the trial court had entered two orders denying
the motions. The trial court ruled that hearing the same motions again was not necessary 5 and
entered an order denying the husband’s motion to set aside the August 25, 2006 order.
The record supports the trial court’s findings. The principle is long standing that “[t]he
decision whether to grant or deny a rehearing is within the trial court’s sound judicial discretion.”
5
The trial court made these findings:
It’s clear from the pleadings that have been filed in this case, the
various motions and the various orders, that three things are clear. One, Mr.
Jagannathan has sought to remove Mr. Armstrong from serving as counsel,
to which Mr. Armstrong replied, and Judge Finch denied that motion.
Two, Mr. Jagannathan has sought to remove Mr. Machen as counsel,
to which a reply was also made and which motion was denied and an order
was entered to the effect of denying that by Judge Alden on August 25th,
2006. The prior order of Judge Finch was March 10th, 2006.
The Court speaks through its orders and the Court is more than
satisfied that, based upon the pleadings that have been submitted, both of
these matters were in fact noticed – indeed, by Mr. Jagannathan – responded
to, argued, and orders were entered denying those motions. And to raise
those motions again, the Court’s not going to do it. It’s not necessary.
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Hughes v. Gentry, 18 Va. App. 318, 326, 443 S.E.2d 448, 453 (1994). We find no abuse of
discretion in the refusal to entertain a renewed motion to disqualify opposing counsel.
Finally, the husband contends the trial court violated his First Amendment rights by
ordering him not to post materials on the Internet. The court held a hearing on whether to release
the husband from jail after he had paid to the Division of Child Support Enforcement his total
arrearages of $28,451.84. As a condition of finding he had purged himself of all aspects of his
contempt and to assure that he intended to comply in the future, the trial court ordered him not to
post materials about the case on the Internet. It then ordered the husband’s immediate release
from jail.
The order releasing the husband, which contained the Internet prohibition, was entered at
the end of the hearing May 4, 2007. The husband’s counsel endorsed the order without
objection. Three days later, he filed a pleading that for the first time raised the First Amendment
objection. Rule 5A:18 states: “No ruling of the trial court . . . will be considered as a basis for
reversal unless the objection was stated together with the grounds therefor at the time of the
ruling . . . .” (Emphasis added.) The rule even bars constitutional claims. Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). The husband waived his
objection to that ruling because he did not bring this issue to the trial court’s attention at the time
of the ruling.
The wife raises an additional question pursuant to Rule 5A:21(b). She contends the trial
court abused its discretion by releasing the husband from jail on May 4, 2007. However, she
provides no authority in support of her contention. We will not search for any and will not
entertain the question. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (“Statements unsupported by argument, authority, or citations to the record do not merit
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appellate consideration. We will not search the record for errors in order to interpret [a party’s]
contention and correct deficiencies in a brief.”).
The wife requests an award of attorneys’ fees and costs. We award the wife her
reasonable attorneys’ fees and costs incurred in this appeal and remand the matter to the trial
court for the determination of the amount of the award. See O’Loughlin v. O’Loughlin, 23
Va. App. 690, 479 S.E.2d 98 (1996).
Affirmed and remanded.
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