Patrick G. McCall v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Koontz
Argued at Salem, Virginia
PATRICK G. McCALL
v. Record No. 0087-94-3 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA, MAY 16, 1995
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
EX REL. BETH WARE
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Stephen C. Martin (Pendleton, Martin,
Henderson & Garrett, on brief), for appellant.
Jack A. Maxwell, Special Counsel D.C.S.E.
(Betsy S. Elliott, Senior Special Counsel;
James S. Gilmore, III, Attorney General;
William H. Hurd, Deputy Attorney General,
on brief), for appellee.
In this appeal, we uphold the circuit court's ruling
dismissing a juvenile and domestic relations district court
(J&DR) appeal because the appellant failed to post a $3,370 bond
pursuant to the 1992 version of Code § 16.1-107 for an appeal of
a judgment for the child support arrearages and failed to pursue
his appeal of the civil contempt order. We hold that when the
appellant failed to post the appeal bond for the support
arrearage judgment, the circuit court was not required on its own
motion to bifurcate the issues and determine whether the
appellant intended separately to pursue an appeal from the civil
contempt citation, which did not require the posting of an appeal
bond under the applicable provision of the 1992 version of
Code § 16.1-107.
The Juvenile and Domestic Relations District Court of
Amherst County, pursuant to a show cause summons, determined that
Patrick McCall was in arrears in the amount of $3,370 in his
court-ordered monthly child support. The J&DR court also found
McCall in civil contempt for willfully disobeying the child
support order. The J&DR court order sentenced McCall to three
hundred sixty-five days in jail, suspended all but one hundred
days, and provided that McCall could purge his contempt by paying
the support arrearage. McCall appealed the J&DR order to the
circuit court.
On appeal to the circuit court pursuant to Code § 16.1-106,
the court ruled, in response to appellee's motion to increase the
appeal bond, that the $450 bond set by the J&DR court was
inadequate to cover appeal of the $3,370 support arrearage
judgment. Code § 20-107, as it read in 1992 when the case was
before the circuit court, provided that the court "shall order a
bond for that portion of any order entered . . . establishing a
support arrearage." Accordingly, the court ordered that the
appeal bond be increased to $3,370, see Code § 16.1-109, and
further ordered that if McCall failed to post the required bond
by a date certain, the appeal would be dismissed. When McCall
failed to post the required bond, the circuit court dismissed the
appeal.
McCall appeals the circuit court's dismissal of his case.
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He contends, for the first time on appeal, that pursuant to the
1992 version of Code § 16.1-107, he may appeal the civil contempt
citation without being required to post an appeal bond, even
though the bond was required for that portion of the order
establishing the support arrearage. Therefore, according to
McCall, the trial court erred in dismissing his entire appeal.
McCall did not at any time in the trial court request that he be
allowed to proceed with an appeal of the civil contempt order,
which required no bond, even though the trial court was
dismissing the appeal for failing to post an appeal bond for the
support arrearage judgment.
When McCall filed his notice of appeal in the J&DR court, he
appealed the J&DR court's ruling as to all issues. He did not
specify or indicate in any way that he was appealing only the
civil contempt citation and not the determination as to the
amount of his support arrearage. Moreover, when the appellee
moved to increase the appeal bond and when the court ordered that
an adequate appeal bond be posted for the support arrearage or
the appeal would be dismissed, McCall did not move or request
that he be allowed to proceed with his appeal of the civil
contempt citation, which required no appeal bond. For the first
time on appeal, McCall contends that the circuit court should
have bifurcated the contempt and support issues, on its own
motion, and should not have dismissed the appeal of the civil
contempt order.
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We previously have considered whether an appeal bond was
required by the pre-1992 version of Code § 16.1-107 in order to
appeal a civil contempt and support arrearage determination order
from a J&DR court. See Scheer v. Isaacs, 10 Va. App. 338, 392
S.E.2d 201 (1990). When Scheer was decided, however,
Code § 16.1-107 did not contain that provision, which went into
effect in 1992, that expressly provided no bond shall be required
to appeal from a J&DR court order, except that the judge shall
require an appeal bond for that portion of the appealed order
1
establishing a support arrearage.
The 1992 amendment to Code § 16.1-107 changed the general
provision that had controlled the outcome in the Scheer case,
which was that an appeal bond was required in most civil appeals
from courts not of record. 2 The 1992 amendment adopted the
1
Prior to 1992, Code § 16.1-107 read in part as follows:
Requirements for appeal.—No such appeal shall be allowed unless
and until the party applying for the same or someone for him
shall give bond, in an amount and with sufficient surety approved
by the judge or by his clerk if there be one, to abide by such
judgment as may be rendered on appeal if such appeal be
perfected, or if not so perfected, then to satisfy the judgment
of the court in which it was rendered; provided, however, that no
appeal bond shall be required of the Commonwealth and when such
appeal is proper to protect the estate of a decedent, an infant,
a convict, an insane person, or the interest of a county, city or
town, no bond shall be required.
2
§ 16.1-107. Requirements for appeal.—No appeal shall be
allowed unless and until the party applying for the same or
someone for him shall give bond, in an amount and with sufficient
surety approved by the judge or by his clerk if there is one, to
abide by such judgment as may be rendered on appeal if such
appeal is perfected, or if not so perfected, then to satisfy the
judgment of the court in which it was rendered. However, no
appeal bond shall be required of the Commonwealth or when an
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general principle that for appeals from a juvenile and domestic
relations district court "no bond shall be required." However,
this general principle had an express exception that applies to
the present case. The 1992 version of the statute provided that
no bond is required "except that the judge shall order a bond for
that portion of any order entered or judgment rendered
establishing a support arrearage or suspending payment of support
during pendency of an appeal." (emphasis added). Thus, because
the 1992 amendment to Code § 16.1-107 had a separate provision
for appeals for J&DR courts, the holding in Scheer that
Code § 16.1-107 contained "mandatory provisions . . . which
require a bond in an appeal of a civil case," Scheer, 10 Va. App.
at 342, 392 S.E.2d at 203, has no application to the present
case. Accordingly, we must determine whether the 1992 version of
Code § 16.1-107, which provides that no appeal bond shall be
required for appeals from J&DR courts except that a circuit court
"shall order a bond for that portion of any order entered or
judgment rendered establishing a support arrearage," required the
circuit court to allow an appeal of all issues from a J&DR court
and to dismiss only the support issue when the appeal bond is not
appeal is proper to protect the estate of a decedent, an infant,
a convict, or an insane person, or the interest of a county, city
or town. Further, no bond shall be required of a party applying
for an appeal from an order of a juvenile and domestic relations
district court except that the judge shall order a bond for that
portion of any order entered or judgment rendered establishing a
support arrearage or suspending payment of support during
pendency of an appeal. (emphasis added).
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posted. 3
In the present case, when McCall noted his appeal of the
J&DR court order, he did not specify in the notice of appeal that
he was appealing only the contempt order and not the
determination of the support arrearage. Furthermore, when the
circuit court required him to post additional security for the
support arrearage as required by Code §§ 20-107 and -109, McCall
did not pursue an appeal of the contempt order or indicate that
he was appealing only the contempt finding. Code § 20-107
required that McCall post adequate bond in order to appeal the
determination of the child support arrearage. Without posting
the required bond or without informing the court that he was
pursuing an appeal of the contempt order and not appealing the
determination of the support arrearage, McCall disregarded the
mandate of Code § 20-107 and the court's order to post an
adequate appeal bond.
Neither the J&DR court nor circuit court judge is required
to determine whether an appellant intends to appeal only a
"portion" of a court's rulings and order. Accordingly, when
3
Subsequent to the General Assembly's 1992 amendment to
Code § 16.1-107, which provided for an exception to the bond
requirements for J&DR court appeals, in 1993, the General
Assembly again amended Code § 16.1-107 by removing the language
excepting J&DR appeals from the bond requirement and placing it
in Code § 16.1-296. Thus, the provisions governing appeal bonds
from J&DR courts are contained in a separate statute, which
contains the general proviso that no appeal bond is required
except for that portion of a J&DR court order establishing a
support arrearage or suspending payment. See Code § 16.1-296(H).
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McCall failed to post the appeal bond required by Code § 20-107
and ordered by the circuit court and failed to pursue an appeal
of the contempt order, the circuit judge did not err in
dismissing McCall's appeal.
Accordingly, we affirm the order of the circuit court
dismissing the appeal. Affirmed.
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