Sulta N. McElroy v. Donald H. McElroy

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
SULTA N. McELROY
MEMORANDUM OPINION *
v. Record No. 0777-99-4 PER CURIAM
JUNE 22, 1999
DONALD H. McELROY
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
(Jahangir Ghobadi; Jahangir Ghobadi, P.C., on
briefs), for appellant.
(Stephen K. Christenson; Kevin R.
Hildebeidel; Stephen K. Christenson, P.C., on
brief), for appellee.
Sulta N. McElroy (wife) appeals the decision of the circuit
court granting the Motion to Compel Compliance filed by Donald H.
McElroy (husband). Wife contends that the trial court erred by
(1) finding that husband properly served wife when he filed a
motion to compel while wife's previous appeal to the Court of
Appeals was pending; and (2) sanctioning wife by changing the
effective date of wife's entitlement to husband's military pension
while the matter was pending on appeal. 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. See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
At the time husband filed his motion to compel, wife was
imprisoned following her conviction for solicitation to commit
murder.
Issue One
Wife contends that husband's motion to compel was improperly
served. She argues that Code § 20-115 required husband to file a
Rule to Show Cause rather than a Motion to Compel Compliance. We
find no merit in this argument.
Husband's motion to compel was filed pursuant to the
statutory authority set out in Code § 20-107.3(K). Husband served
wife's committee, who was wife's counsel of record during the
divorce proceedings and on appeal. See Code §§ 8.01-2(6)(a) and
8.01-9(B). We find no error in husband's service upon wife's
committee of the motion to compel.
Code § 20-115 authorizes the trial court to order commitment
to a correction facility or work assignment "upon conviction of
any party for contempt of court in . . . (ii) willfully failing or
refusing to comply with any order entered pursuant to § 20-103 or
§ 20-107.3." Wife argues that there was no evidence that she
willfully failed or refused to comply with any order entered
pursuant to Code § 20-107.3 and that there could be no finding of
contempt with evidence of willful failure or refusal to comply.
The trial court did not find wife guilty of contempt. Therefore,
wife's argument is moot.
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Issue Two
Wife also contends that the trial court erred by modifying
the final decree of divorce while the appeal was pending. We
find no error.
In the final decree, the trial court awarded wife forty
percent of the marital share of husband's pension, calculated as
$360 per month, beginning February 1, 1998. The court also
required wife to transfer $59,138 in assets to husband. As of
the November 20, 1998 hearing, wife had failed to transfer the
specified assets. Husband alleged that wife had "secreted or
otherwise disposed of" these assets to avoid meeting her
obligations under the final decree.
Husband's motion to compel was filed pursuant to the
statutory authority set out in Code § 20-107.3(K). That section
provides that "[t]he court shall have the continuing authority
and jurisdiction to make any additional orders necessary to
effectuate and enforce any order entered pursuant to this
section . . . ." As a means of enforcing its decree, the
circuit court appointed a special commissioner to effect the
transfer of the real property ordered in the final decree. See
Code § 20-107.3(K)(3). The court also ruled that wife would
receive no benefits from husband's pension until she fully
complied with the trial court's final decree.
We find that the court's order fell within its statutory
authority to make any additional orders necessary to enforce and
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effectuate its equitable distribution decree. While the trial
court's order delayed wife's receipt of the pension benefits
given to her under the final decree, the order was framed to do
no more than compel her compliance with a valid order. It was
not designed to modify the parties' rights under the decree.
Cf. Wilson v. Wilson, 25 Va. App. 752, 757-58, 492 S.E.2d 495,
497-98 (1997); Decker v. Decker, 17 Va. App. 562, 563-64, 440
S.E.2d 411, 412 (1994). When wife complied with the January 23,
1998 order, her benefits under that order would commence.
Moreover, due to the unique circumstances of this case, the
trial court could not effectively rely upon a threat of
imprisonment for civil or criminal contempt to enforce
compliance, as wife was currently incarcerated.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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