Amos v. Commonwealth, Record No. 1667–11–4.

• Decision Date: 09 April 2013
• Docket Number: Record No. 1667–11–4.
• Citation: 61 Va.App. 730,740 S.E.2d 43
• Court: Virginia Court of Appeals
• Parties: Felecia AMOS v. COMMONWEALTH of Virginia.

61 Va.App. 730

740 S.E.2d 43

Felecia AMOS

v.COMMONWEALTH of Virginia.

Record No. 1667–11–4.

Court of Appeals of Virginia, Richmond.

April 9, 2013.

Justin M. Ellis (Steven F. Molo; Martin V. Totaro; MoloLamken, LLP, on briefs), for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, McCULLOUGH, HUFF and CHAFIN, JJ.

UPON A REHEARING EN BANC

McCULLOUGH, Judge.

We consider in this case whether a litigant who was held in summary contempt is procedurally barred from raising certain arguments on appeal and, if not, whether the trial court erred in exercising its power of summary contempt. We conclude that Mrs. Amos's legal arguments are properly before us and that the finding of summary contempt must be reversed.

Factual Background

Felecia Amos and her estranged husband, Antonio Jose Amos, shared custody of their son. Their relationship was hostile: he had been convicted of assaulting her and she had obtained a restraining order against him. Mr. Amos's sentencing order imposed a suspended sentence and required that he be of good behavior. On October 30, 2010, Mrs. Amos wrote a letter to the Commonwealth's Attorney for Arlington County, with a copy to the court, alleging that her estranged husband had violated the restraining order. She stated that she was “writing this letter seeking HELP from your office as I am in fear of my life.” (capitalization in original). She alleged, among other things, that during a custody exchange of their son at a McDonald's restaurant, Mr. Amos engaged in actions designed “to intimidate, harass and threaten” her.

Based on Mrs. Amos's allegations, the court issued a rule to show cause to determine whether Mr. Amos had violated the terms of his probation. Mrs. Amos appeared as a witness. She testified that, during the exchange on October 29, 2010, at the McDonald's, her husband crudely insulted her and that he made threats against her, telling her “you're going down.” She stated that Mr. Amos began to leave the restaurant after picking up their son, but that he then walked back inside and used more profanity against her. She testified that she feared the situation was escalating, so she asked another customer to escort her to her car. She claimed that Mr. Amos followed her outside, yelling, “hey, buddy, what are [you] doing talking to my wife? She is a married woman,” and that she noticed his car following hers after she drove out of the parking lot. Finally, she claimed that Mr. Amos followed her in his car after the incident at the McDonald's. She also testified about a separate occasion in which she felt Mr. Amos was harassing her.

Jason Salinas, a Sergeant in the United States Army, also testified at the hearing. Salinas explained that the First Army Commander had asked him to “help a soldier out” (Mr. Amos had achieved the rank of Colonel in the Army prior to his retirement) by observing the custody exchange of the Amoses' son. Salinas did not serve under Mr. Amos in the military and, in fact, had never seen him before. Salinas stated that he had no personal interest in the outcome of this case. On October 29, 2010, Salinas arrived at the McDonald's and took a seat where he would be well positioned to hear any conversation between Mr. and Mrs. Amos. He testified that, once Mrs. Amos arrived, there was no communication between her and Mr. Amos—they did not speak at all. Mrs. Amos dropped off the child and left. Mr. Amos stayed behind. Mr. Amos also tape-recorded this exchange. The recording, which was played for the court, is consistent with Salinas's account and inconsistent with the testimony provided by Mrs. Amos. Finally, Mr. Amos denied the allegations Mrs. Amos made against him.

At the conclusion of the hearing, the court asked the prosecutor if she had anything else to add. The prosecutor stated that she was “speechless.” In response, the court stated “[w]ell, there are going to be some other people speechless in a minute.” The court then announced that it was dismissing the rule to show cause. The transcript reflects the following:

THE COURT: I'm not through. I am not through. The Court is not through.

When this first started, I said, well, it has been eight months without incident, so—it's not unusual in a divorce case to see some back and forth, but there has been nothing for eight months, and I just don't know what would be accomplished by punishing this man in keeping this flame burning.

But we have a different situation now.

There's no question that he has not violated this Court's orders. But what we do have is a [serious] situation that this Court does not take lightly.

Ms. Amos, come up here. Come up here by the podium, Ms. Amos. Yes, ma'am. Come on up here. I want to make sure we're on the same page.

Stand in front of that podium.

You have come into this court and made some serious accusations, and you have flat-out lied under oath. And it's very offensive to this Court, to every person in the legal community what you're doing. You're nothing but a vindictive woman towards this man.

I can understand your dislike for whatever reason. But you will not, as far as this Court is concerned, use this process to further that vindictiveness.

The Code of Virginia, under 18.2–456 provides that courts and judges may issue attempts [sic] for contempt and punish them summarily, only in the following cases—and there are several, but I want to share one with you.

“Misbehavior in the presence of the court or so near thereto as to obstruct or interrupt the administration of justice.”

I can't think of any more interruption of justice than what you have done deliberately in this courtroom.

And the Court finds you in contempt of court. You're sentenced to jail for ten days.

Remand her into custody, Sheriff.

THE COURT: Call the next case.

(Whereupon, the proceedings at 11:00 a.m. were concluded).

Mrs. Amos did not object at the time to being held in summary contempt. The court entered an order the same day memorializing the finding of contempt, remanding her to the custody of the sheriff and ordering a bail bond in the amount of $10,000.¹

Seventeen days after the hearing, on June 27, 2011, Mrs. Amos filed a “motion to vacate sentence and object to this honorable courts [sic] finding.” In her motion, she cited relevant case law, including Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010), and argued that holding her in summary contempt violated her due process rights. The trial court never ruled on the motion. She also filed a notice of appeal on June 27, 2011.

I. Mrs. Amos's arguments are not procedurally defaulted.

The threshold question we must address is whether the arguments Mrs. Amos makes on appeal are procedurally defaulted under Rule 5A:18. We conclude, on the specific facts before us, that Mrs. Amos lacked the opportunity to object to the summary contempt finding at the time it was made. Therefore, by operation of Code § 8.01–384(A), the absence of an objection does not prejudice her on appeal.

Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Code § 8.01–384(A) operates in conjunction with this rule. This statute provides, in relevant part, that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him ... on appeal.” The rule and the statute are complementary: Rule 5A:18 presupposes an opportunity to object “at the time of the ruling or order” and Code § 8.01–384(A) expressly provides that where the party does not have the opportunity to object to the ruling or order at the time it is made, the absence of an objection shall not prejudice her on appeal.

We note at the outset that Mrs. Amos did not have an opportunity to object at the time of the ruling or order. Mrs. Amos, who had appeared as a witness rather than as a party, was called to the bench. After the court castigated Mrs. Amos for her lies and for her vindictiveness toward her husband, the court ordered the sheriff's deputy to remove Mrs. Amos from the courtroom and directed the clerk to call the next case. On review of this record, it is plain that Mrs. Amos did not have the “opportunity to object to [the] ruling or order ... at the time it [was] made.” ²

The Commonwealth responds that even if Mrs. Amos lacked an opportunity to object at the time the court held her in contempt, she in fact had the opportunity to object to the ruling of the court by filing, as she did, a motion to vacate which asked the court to reconsider. The Commonwealth further posits that Mrs. Amos's motion was unavailing because, following Brandon v. Cox, ––– Va. ––––, ––––, 736 S.E.2d 695, 697 (2012), a litigant must not only file a motion to reconsider with the clerk of court, but also must take steps to ensure that the court is “made aware of the argument[s]” in the motion to reconsider. Id. We find the Commonwealth's arguments unpersuasive for two interrelated reasons.

First, Code § 8.01–384(A) provides that if a party “[had] no opportunity to object to a ruling or order at the time it [was] made, the absence of an objection shall not thereafter prejudice him ... on appeal.”

When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

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