Barrett v. Commonwealth

• Decision Date: 26 July 2011
• Docket Number: Record No. 1381-10-3
• Citation: Barrett v. Commonwealth, Record No. 1381-10-3 (Va. App. Jul 26, 2011)
• Parties: TIMOTHY M. BARRETT v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT ex rel. VALERIE JILL RHUDY BARRETT AND VALERIE JILL RHUDY BARRETT
• Court: Virginia Court of Appeals

TIMOTHY M. BARRETT

v.COMMONWEALTH OF VIRGINIA,DEPARTMENT OF SOCIAL SERVICES,DIVISION OF CHILD SUPPORT ENFORCEMENTex rel. VALERIE JILL RHUDY BARRETT ANDVALERIE JILL RHUDY BARRETT

Record No. 1381-10-3

COURT OF APPEALS OF VIRGINIA

Dated: JULY 26, 2011

Present: Judges Frank, Beales and Senior Judge Clements

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE ROBERT P. FRANK

FROM THE CIRCUIT COURT OF GRAYSON COUNTY

Brett L. Geisler, Judge

Timothy M. Barrett, pro se.

Brian R. Jones, Assistant Attorney General(Kenneth T. Cuccinelli, II, Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Senior Assistant General; Alice G. Burlinson, Regional Senior Assistant Attorney General, on brief), for appelleeDepartment of Social Services/Division of Child Support Enforcement.

Steven R. Minor(Elliott Lawson & Minor, on brief), for appelleeValerie Jill Rhudy Barrett.

Timothy M. Barrett, appellant/father, appeals from the trial court's ruling finding him in contempt for failing to pay his child support obligation.He asserts twelve assignments of error.We will address them sequentially in the body of this opinion.

Appellee/motherValerie Jill Rhudy Barrett filed four assignments of cross-error, as well as a request for attorney's fees on appeal.

INTEREST

Appellant contends the trial court erred in awarding interest on the arrearage for several reasons: (1) the provisions of Code§ 20-78.2 are premised on an order entered under Code§§ 20-107.1 through 20-109(here, appellant contends the order was based on a show cause notice under Code§ 16.1-278.16, rather than the aforementioned code section);(2)appellee did not ask for interest thus such an award is waived without appellee claiming it; (3) there was no evidence as to the amount of interest nor the amount of arrearage due; (4)the trial court improperly delegated the calculation of interest, a judicial function, to DCSE, thus violating the Separation of Powers Clause of the Virginia Constitution; and (5)appellant's due process rights were violated because he was afforded no opportunity, at trial, to challenge DCSE's computation.

We first note that parts (1), (4), and (5) of this argument are waived because appellant did not include them in his assignment of error.¹Rule 5A:20(c) states that an appellant's opening brief must contain "[a] statement of the assignments of error with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each assignment of error was preserved in the trial court."SeeWinston v. Commonwealth, 51 Va. App. 74, 82, 654 S.E.2d 340, 345(2007)(holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal).

By motion filed April 29, 2010, appellee asked the Grayson County Circuit Court for an award of attorney's fees and interest on the arrearage.

By order entered June 22, 2010, (Circuit CourtNo. CJ09-03)the circuit court found:

That Timothy M. Barrett owes a child support arrearage of $9,896.00, principal only (interest on said principal to becalculated by the Division) to Valerie Jill Rhudy Barrett as of August 31, 2009, for the period of time from January 1, 2009 through August 31, 2009.The Court has not addressed any arrearage which may have accrued subsequent to August 31, 2009.

By order of the same date, the circuit court awarded pre-judgment interest against appellant, pursuant to Code§ 20-78.2, and denied appellee's motion for attorney's fees.

Appellant contends since appellee did not ask for interest, she waived that relief.First, we note appellee, in a motion filed April 29, 2010, asked for interest.Further, appellant's argument fails even had appellee not asked for an award of interest.

Code§ 20-78.2 states in part:

The entry of an order or decree of support for a spouse or for support and maintenance of a child under the provisions of this chapter or §§ 20-107.1 through 20-109 shall constitute a final judgment for any sum or sums in arrears.This order shall also include an amount for interest on the arrearage at the judgment interest rate as established by § 6.1-330.54 unless the obligee, in a writing submitted to the court, waives the collection of interest.

The appellant's contention that unless appellee asks for interest, she waives such an award is incorrect and ignores the plain language of the statute."The plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction."Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609(1998).Further:

[A]n issue of statutory interpretation is a pure question of law which we review de novo.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.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178(2007)(citations omitted).

This statutory interest provision, by its express language, mandates an award of interest unless the obligee (the appellee in this case) waives it.No evidence indicates appellee waived in writing an award of interest.

Additionally, appellant's argument that there was no evidence of the amount of arrearage or the amount of interest fails.The trial court found the arrearage to be $9,896 from January 1, 2009 through August 31, 2009.The rate of interest is the judgment rate of interest as established by Code§ 6.1-330.54.SeeCode§ 20-78.2.

Appellant cites Miederhoff v. Miederhoff, 38 Va. App. 366, 564 S.E.2d 156(2002), to support his argument that no evidence supported the circuit court's interest calculation.In Miederhoff, we reversed the trial court's award of interest and concluded the trial court's award of interest contained no statement of calculation.Id. at 375, 564 S.E.2d at 160.

Appellant refers to that legal proposition in the abstract in an attempt to bolster his argument.However, the facts of Miederhoff must be reviewed to put this statement in context.In that case, the period of arrearage was between January 6, 1992 and April 19, 1996.Id. at 374, 564 S.E.2d at 159.However, the trial court awarded interest beginning June 1, 2000.Id. at 370, 564 S.E.2d at 158.Thus, we concluded, the trial record was insufficient to explain why the trial court only awarded interest from June 1, 2000.

Those facts are easily distinguished from the facts in the instant case.Unlike Miederhoff, the trial court in this case awarded interest from August 31, 2009, a date related to the arrearage.²

We therefore conclude the trial court did not err in awarding interest on the arrearage.

RE-OPENING APPELLEE'S CASE

Appellant next contends the trial court erred by allowing appellee to re-open her case in chief.

It is well settled that the reopening of a case and the admission of additional evidence after one or both parties have rested is a matter within the discretion of the trial court and its action will not be reviewed unless it affirmatively appears that this discretion has been abused or unless the admission of such additional evidence works surprise or injustice to the other party.

Laughlin v. Rose, Adm'x, 200 Va. 127, 129, 104 S.E.3d 782, 784 (1958).

After appellee rested, appellant moved to strike the evidence, contending, inter alia, that appellee did not prove that any arrearage existed.Appellee responded by asking for leave to re-open her case.The trial court allowed appellee to do so.

In support of his argument, appellant cites Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10(2001),³ which reviews the elements of after-discovered evidence.In Joynes, we noted the "introduction of additional evidence into the record after the commissioner has filed his report is treated as a motion to receive after-discovered evidence."Id. at 418, 551 S.E.2d at 18.However, Joynes is factually significantly different from this case.Joynes asked permission to present additional evidence to the trial court almost one year after the close of evidence.Id. at 417, 551 S.E.2d at 18.Here, the record had not yet been closed.To the contrary, appellee moved to re-open her case immediately after she rested and appellant moved to strike the evidence.

The proper analysis in this case is whether the trial court abused its discretion as set forth in Lebedun v. Commonwealth,27 Va. App. 697, 501 S.E.2d 427(1998).In Lebedun, the Commonwealth rested and the defendant moved to strike the evidence, arguing theCommonwealth failed to prove the requisite elements of robbery.The trial court raised the issue of the defendant's identity sua sponte.After some discussion and over Lebedun's objection, the trial court allowed the Commonwealth to re-open its case in order to make an in-court identification of Lebedun.Id. at 715, 501 S.E.2d at 436.In affirming the trial court, we held:

"The order of proof is a matter within the sound discretion of the trial court and [an appellate] court will not reverse the judgment except in very exceptional cases, and, unless it affirmatively appears from the record that this discretion has been abused, [an appellate] court will not disturb the trial court's ruling."Hargraves v. Commonwealth,219 Va. 604, 608, 248 S.E.2d 814, 817(1978).

Id.

In Fink v. Higgins Gas and Oil Company, Inc.,203 Va. 86, 122 S.E.2d 539(1961), the Supreme Court of Virginia found error in the trial court's refusal to allow plaintiff to re-open his case to adduce additional evidence after a motion to strike.In Fink,the plaintiff had asked to re-open in order to introduce some evidence that had been omitted because of an oversight.On appeal, the Court noted that "[t]he trial court has a wide discretion in passing on a motion to reopen, and such discretion is to be liberally...