Glenn R. Miller v. Margaret R. Miller ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GLENN R. MILLER
MEMORANDUM OPINION *
v. Record No. 3002-95-4 PER CURIAM
JULY 16, 1996
MARGARET R. MILLER
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Benjamin N. A. Kendrick, Judge Designate
(Jeffrey W. Parker; Kennon C. Hook; Niles,
Dulaney, Parker & Lauer, on brief), for
appellant.
(Stephen C. Price; Price & Zimmerman, on
brief), for appellee.
Glenn R. Miller appeals the decision of the circuit court
finding him in contempt. On appeal, appellant contends that (1)
the trial court erred in finding him in contempt despite his
inability to pay; (2) the trial judge erred in refusing to recuse
himself; and (3) the trial court violated appellant's right to
due process by failing to consider an additional allegation of
the 1993 show cause order. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
Inability to Pay
On appeal, we view the evidence and all reasonable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
inferences in the light most favorable to appellee as the party
prevailing below. "Where, as here, the court hears the evidence
ore tenus, its finding is entitled to great weight and will not
be disturbed on appeal unless plainly wrong or without evidence
to support it." Martin v. Pittsylvania County Dep't of Social
Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The trial
court, as the finder of fact, was entitled to determine "the
weight which should be given to evidence and whether the
testimony of a witness is credible." Bridgeman v. Commonwealth,
3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Appellant presented evidence that he had no income, no
employment, and no assets. The trial court found appellant's
testimony to be less than credible. The court stated:
You and you alone are the sole reason you're
in this situation. You are intelligent, and
you appear well educated. You're physically
and mentally capable of working. There is no
reason why you can't. The only reason why
you can't is your defiance. And your
defiance is deliberate, and it's willful, and
you remain in contempt of Court.
Credible evidence indicated that appellant earned no income
yet was able to earn income and pay the outstanding $6,100 debt.
Appellant testified that he did not pay the obligation when it
initially was imposed because he "had other things I had to do."
Therefore, we find no error in the trial court's decision
holding appellant in civil contempt.
Motion to Recuse
"It is within the trial judge's discretion to determine
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whether he harbors bias or prejudice which will impair his
ability to give the defendant a fair trial." Terrell v.
Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991).
"In exercising such discretion, a judge must not only consider
his or her true state of impartiality, but also the public's
perception of his or her fairness, so that the public confidence
in the integrity of the judicial system is maintained." Buchanan
v. Buchanan, 14 Va. App. 53, 55, 415 S.E.2d 237, 238 (1992).
However, "even when circumstances create an appearance of bias,
unless the conduct of the judge is shown to have affected the
outcome of the case," the trial court's determination will not be
reversed. Welsh v. Commonwealth, 14 Va. App. 300, 317, 416
S.E.2d 451, 461 (1992), aff'd, 246 Va. 337, 437 S.E.2d 914(1993). The trial court's determination will be reversed on
appeal only for an abuse of discretion. Terrell, 12 Va. App. at
293, 403 S.E.2d at 391.
The only issue on remand was the nature of appellant's
contempt. The trial judge denied appellant's request for a new
judge because he knew the facts of the case and understood the
instructions on remand. As noted in our previous order, the
original order requiring payment of the sanction remained in
effect. Appellant has failed to demonstrate any bias on the part
of the trial judge which affected the outcome of the case.
Therefore, we find no abuse of discretion in the trial judge's
denial of appellant's motion to recuse.
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Due Process
The sole issue on remand from this Court was the nature of
appellant's contempt of court. The trial court was authorized,
within its discretion, to refer the matter to the Commonwealth's
Attorney for a criminal contempt proceeding or to hold a civil
contempt hearing. As no other matter remained to be decided,
appellant's contention that he was denied due process by the
limitation of the hearing is without merit.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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