Commonwealth v. Denise Dumont

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1550-02-2 JUDGE WALTER S. FELTON, JR.
OCTOBER 28, 2002
DENISE DUMONT
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellant.
Esther J. Windmueller for appellee.
The Commonwealth appeals the judgment of the trial court
granting Denise Dumont's motion to dismiss. The Commonwealth
contends that the trial court erred in finding that the language
"clear and significant violation" renders Code § 18.2-49.1(A)
unconstitutionally vague. For the following reasons, we reverse
the judgment of the trial court and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
D.D., who was twelve years old at the time of these events,
is the subject of a custody and visitation order originally
entered by the Circuit Court of Kane County, Illinois. The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Illinois court granted Robert Dumont the physical custody of
D.D. on January 20, 2000.
On November 27, 2000, the Chesterfield County Juvenile and
Domestic Relations District Court amended the Illinois order.
The amended order required that any contact between Ms. Dumont
and D.D. be supervised by D.D.'s father, Mr. Dumont.
On June 14, 2001, D.D. traveled to Illinois to visit her
grandmother. While she was there, on June 27, 2001, Ms. Dumont
sought an emergency protective order in the Kane County
(Illinois) Circuit Court to gain custody of D.D. Ms. Dumont
alleged that D.D. had reported to her that Mr. Dumont had
grabbed her hair and kicked her. The alleged physical
altercation occurred approximately eight months prior to Ms.
Dumont initiating the action in the Kane County Circuit Court in
Illinois. Ms. Dumont contacted social services in Florida. 1 The
Florida social services department investigated the allegations
and determined that they were unfounded. The Kane County
Circuit Court denied Ms. Dumont's request for an emergency
protective order.
Following the Illinois court's refusal to grant Ms.
Dumont's request, she took D.D. from her grandmother's house in
Illinois and absconded with her to Wisconsin. She thereafter
1
Mr. Dumont was a resident of Florida at that time and
continues to be so as of this hearing.
- 2 -
refused to tell Mr. Dumont where D.D. was located and refused to
return her to Mr. Dumont as required by the amended court order.
On July 9, 2001, Mr. Dumont obtained a parental abduction
warrant asserting that Ms. Dumont violated the court order by
taking D.D. from her grandmother's house, absconding with the
child to Wisconsin, refusing to return D.D. to him, and refusing
to tell him where D.D. was located. Ms. Dumont was charged with
parental abduction in violation of Code § 18.2-49.1(A).
Prior to trial, Ms. Dumont filed a motion to dismiss the
charges against her, alleging that Code § 18.2-49.1(A) was
unconstitutionally vague. On April 30, 2002, the Circuit Court
of Chesterfield County granted Ms. Dumont's motion, declaring
Code § 18.2-49.1(A) unconstitutionally void for vagueness. The
Commonwealth appeals the judgment of the trial court.
II. ANALYSIS
"All actions of the General Assembly are presumed to be
constitutional. Thus, courts will declare an enactment
unconstitutional only when it clearly is repugnant to some
provision of either the state or federal constitution." Hess v.
Snyder Hunt Corp., 240 Va. 49, 52-53, 392 S.E.2d 817, 820
(1990). "[E]very presumption is to be made in favor of an act
of the legislature, and it is not to be declared
unconstitutional except where it is clearly and plainly so."
Peery v. Board of Funeral Directors & Embalmers, 203 Va. 161,
165, 123 S.E.2d 94, 97 (1961).
- 3 -
It is well settled that "'the person to whom a statute may
constitutionally be applied may not challenge that statute on
the ground that it may conceivably be applied unconstitutionally
to others in situations not before the Court.'" Cottee v.
Commonwealth, 31 Va. App. 546, 553, 525 S.E.2d 25, 29 (2000)
(quoting Los Angeles Police Dept. v. United Reporting Publishing
Corp., 528 U.S. 32, 38 (1999)). "This general rule reflects two
'cardinal principles' of our constitutional order: the personal
nature of constitutional rights and the prudential limitations
on constitutional adjudication." Cottee, 31 Va. App. at 553,
525 S.E.2d at 29.
[A] "[d]efendant has no standing to make a
broad and general facial statutory
challenge . . . ." Woodfin v. Commonwealth,
236 Va. 89, 92, 372 S.E.2d 377, 379 (1988).
A litigant may challenge the
constitutionality of a law only as it
applies to him or her. See Coleman v. City
of Richmond, 5 Va. App. 459, 463, 364 S.E.2d
239, 241-42 (1988).
Id. at 554, 525 S.E.2d at 29. If the law "implicates no
constitutionally protected conduct, [then a court] should uphold
the challenge only if the enactment is impermissibly vague in
all of its applications. A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 495 (1982).
- 4 -
The narrow question in this case is whether Code
§ 18.2-49.1(A) is vague as applied to Ms. Dumont's conduct. 2
Woodfin, 236 Va. at 92, 372 S.E.2d at 379. Code § 18.2-49.1(A)
states:
Any person who knowingly, wrongfully and
intentionally withholds a child from the
child's custodial parent in a clear and
significant violation of a court order
respecting the custody or visitation of such
child, provided such child is withheld
outside of the Commonwealth, is guilty of a
Class 6 felony.
(Emphasis added.)
A two-pronged test is used to determine whether this
statute is unconstitutionally vague. A penal statute is void
for vagueness if it (1) fails to give a person of ordinary
intelligence notice that his contemplated conduct is forbidden
by the statute, and (2) encourages selective prosecution.
Woodfin, 236 Va. at 92, 372 S.E.2d at 379. As applied to Ms.
Dumont, Code § 18.2-49.1(A) survives the constitutional
challenge.
The evidence in the limited record before us indicates that
Ms. Dumont was a party to the court order regulating custody and
visitation of D.D. She twice sought, but failed, to have its
terms amended. Approximately December of 2000, she filed a
2
Code § 18.2-49.1(B), which deals with intrastate
violations of a child custody or visitation court order,
contains the same "clear and significant violation" language.
Subsection (B) is not directly at issue in the case before us.
- 5 -
complaint with social services in Florida against Mr. Dumont for
allegedly abusing D.D. An investigation was conducted, and the
allegations were deemed unfounded. Having proceeded through the
system in Florida and failing to gain custody of D.D., she once
again attempted to gain custody in Illinois.
On June 14, 2001, D.D. arrived in Illinois to visit her
grandmother. On June 27, 2001, Ms. Dumont filed for an
emergency protective order in the Circuit Court of Kane County,
Illinois, alleging that D.D. was being abused. The circuit
court denied the emergency protective order and recognized the
continuing validity of the Virginia court order. Upon the
denial, Ms. Dumont resorted to self-help, taking D.D. from her
grandmother's house in Illinois and absconding with her to
Wisconsin. In violation of the court order, she subsequently
refused to tell Mr. Dumont where D.D. was located and refused to
return her to his custody.
Being a party to the Virginia court order and being present
when the Illinois court recognized the validity of that order,
Ms. Dumont clearly knew her conduct was prohibited. The trial
court below explicitly recognized that fact, stating in its
decision, "Clearly, the defendant's actions constitute a
violation of the November 27, 2000 order of the Chesterfield
Juvenile and Domestic Relations [District] Court." Ms. Dumont
had more than "fair notice" that the conduct she intentionally
undertook violated the terms of the court order. Because the
- 6 -
terms of the court order were themselves clear and certain,
there is no significant opportunity for those who were charged
with the enforcement of the particular court order to act in an
arbitrary manner.
In holding that Ms. Dumont lacks standing to challenge the
constitutionality of Code § 18.2-49.1(A) as applied to her, we
need not address the facial constitutional challenge.
The judgment of the trial court finding Code § 18.2-49.1(A)
unconstitutional is reversed and the case remanded to the trial
court for further proceedings consistent with this opinion.
Reversed and remanded.
- 7 -