Mihnovets v. Mihnovets, Record No. 2087-03-4 (VA 8/31/2004)

• Decision Date: 31 August 2004
• Docket Number: Record No. 2087-03-4.
• Citation: Mihnovets v. Mihnovets, Record No. 2087-03-4 (VA 8/31/2004), Record No. 2087-03-4. (Aug 31, 2004)
• Court: Virginia Supreme Court
• Parties: NICHOLAS P. MIHNOVETS, v. SHARON ARNOLD MIHNOVETS.

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Unpublished Opinion

NICHOLAS P. MIHNOVETS, v.SHARON ARNOLD MIHNOVETS.

Record No. 2087-03-4.

Court of Appeals of Virginia, Alexandria.

August 31, 2004.

Appeal from the Circuit Court of Arlington County, Joanne F. Alper, Judge.

Michael A. Ward for appellant.

Richard J. Byrd(Byrd Mische, P.C., on brief), for appellee.

Present: Judges Clements, Felton and McClanahan

MEMORANDUM OPINION^*

JUDGE ELIZABETH A. McCLANAHAN.

Nicholas Mihnovets appeals a trial court decision awarding his former wife, Sharon Mihnovets, $71,930.28 for spousal support arrearages.He also appeals the court's decisions finding him in contempt and awarding attorney's fees to wife.Sharon Mihnovets asserts that this appeal is untimely pursuant to Code§ 8.01-675.3.

I.Background

Husband and wife were divorced in 1987.The final decree incorporated the parties' Property Settlement and Support Agreement, which stated that the husband was to pay to wife $700 per month until her death or remarriage and forty-five percent of his gross retirement pay from the army.The government paid the net amount of husband's retirement pay directly to wife, and husband was responsible for the difference between the amount received by wife and the amount owed.¹In July 1992, the court increased husband's spousal support obligation to $800 per month.By November 1993, wife had been awarded a total of $25,652.98 in three separate judgments against husband for his failure to pay support payments as required by the final decree.In December 1993, husband was found in contempt for failing to pay the full amount of support required by the court's orders.From 1993 to 2003, husband failed to pay a total of $38,312.12 to wife, as ordered by the court.

In December 2002, husband filed, pro se, a motion to terminate his spousal support obligations because of changed economic circumstances.Husband contended that in 1990, he retired from the army after twenty-six years of service and began working for the Defense Department for an annual salary of $119,000.However, in October 2002, he was suspended without pay pending an investigation for an altercation with a co-worker.Husband stated he could not return to work until the investigation was completed, but that he would lose his security clearance and be terminated if he sought alternative employment.He claimed his only income as a result of the suspension was his retired military pay, less the amount paid directly to wife by the government, and unemployment insurance.In response to husband's motion to terminate support payments, wife filed a petition seeking a Rule to Show Cause against husband.She alleged that husband failed to make payments totaling $90,000, as required by the final decree and subsequent orders.

On February 19, 2003, the court heard argument on the respective pleadings.Each party was represented by counsel.During her testimony, wife presented a chart entitled "Arrearage on Gross Retired Pay Entitlement (GRPE)."She testified that the chart categorized the arrearages into spousal support, child support, prior judgments against husband, and GRPE and showed the interest due.The chart, which calculated husband's arrearages at $71,930.28, was entered into evidence without objection.Husband also did not object to the manner in which arrearages or interest was categorized.At the conclusion of the proceeding, the trial court refused to terminate husband's support payments and found him in contempt for failing to pay previous amounts of spousal support, in violation of the court's orders.Relying on wife's chart, the trial court found that as of February 1, 2003, husband was in arrears and owed wife a total of $71,930.28, including $38,312.12 in principal and $34,108.69 in interest.²The court imposed a thirty-day jail sentence against the husband, suspended until June 6, 2003, in order to provide husband an opportunity to "purge himself of the arrearages."The trial court also awarded wife attorney's fees.The court entered a written order of its findings on March 6, 2003, including continuing the contempt matter until June 6, 2003.

On March 27, 2003, husband filed a motion to reconsider, objecting to the court's award, specifically with regard to the calculation of interest owed.The trial court refused to consider the motion as untimely.

At a hearing on May 30, 2003, husband attempted to argue his motion to reconsider.³The trial judge initially stated, "I am not even going to consider a Motion to Reconsider.I am not going to allow a litigant filing something pro se when he still had counsel of record."In spite of that ruling, the trial court proceeded to hear detailed arguments from both parties on whether there actually was an error in the interest calculation.Husband argued that the court still retained jurisdiction and could correct any error.In response, the trial judge stated, "it strikes me that it is extraordinarily inequitable to even consider giving any equitable relief.But I will hear — I didn't mean to not let you finish."After this exchange, the court fully entertained the husband's motion that there was an error in the calculation of interest and allowed wife to respond to these arguments.When wife countered husband was attempting to re-open the matter based on newly discovered evidence, the judge responded, "No, I think he was arguing more an error.He said one or the other.I don't think he is arguing newly-discovered evidence."The judge eventually ruled any error in calculation of interest was waived because it was not raised at the February hearing.The court issued a final order on July 29, 2003, disposing of the matter once the parties had agreed to a payment plan.

II.Timeliness of Appeal

Before turning to husband's questions on appeal, we first address wife's contention that the appeal is untimely pursuant to Code§ 8.01-675.3.In pertinent part, Code§ 8.01-675.3 provides that "notice of appeal to the Court of Appeals in any case within the jurisdiction of the court shall be filed within 30 days from the date of any final judgment order, decree or conviction."See alsoCode§ 17.1-407;Rule 5A:6(a).Rule 5A:3(a) states that "[t]he times prescribed for filing the notice of appeal . . . are mandatory."Wife asserts that the March 6, 2003 order constituted a final judgment and, thus, the appeal filed by husband on August 11, 2003 is untimely.

Rule 1:1 of the Rules of the Virginia Supreme Court states:

All final judgments, orders, and decrees . . . shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer. . . .The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.

"Generally speaking, a final order for purposes of Rule 1:1`is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.'"James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137(2002).See alsoDaniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35(1964)(citations omitted);Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 711, 712(1994)(citations omitted).Although orders of a court may become appealable before they are final, they need not be appealed until final.Street v. Street, 24 Va. App. 14, 19, 480 S.E.2d 118, 121(1997)(citingWeizenbaum v. Weizenbaum, 12 Va. App. 889, 903, 407 S.E.2d 37, 39(1991)).A contempt order is appealable if it adjudicates all issues of guilt and imposes a sentence.Id.(citingPeet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 489(1993)).

In the instant case, the March 6, 2003 order was appealable because it resolved all issues of guilt regarding the contempt charge and imposed a sentence.However, it was not a final order because the sentence for contempt was left open for review on a date certain.Seeid. at 20, 480 S.E.2d at 121.The order stated that "the Complainant's thirty day jail sentence shall be further suspended to Friday, June 6, 2003, upon the condition, and so long as counsel for both parties attempt to come up with an agreeable payment plan in order for the Complainant to purge himself of the arrearages."Therefore, the issue of whether husband would have to serve a thirty-day jail sentence remained unresolved by the court.The March 6th order also clearly stated, "this matter is continued to June 6, 2003."Therefore, the March 6 order was not final, and the husband was not required to file a notice of appeal within thirty days of its entry.Code§ 8.01-75.3.

The July 29, 2003 order signed by the judge was final because it contemplated no further review and left "nothing to be done in the case save to superintend ministerially the execution of the order."Williams v. Dean, 175 Va. 435, 439, 9 S.E.2d 327, 329(1940);see alsoRule 1:1.That order clearly incorporated the March 6th order and all subsequent orders and decrees of the court.Husband filed his notice of appeal on August 11, 2003, well within thirty days after the entry of the July 29, 2003 final order.Accordingly, we hold the appeal is timely and complies with Code§ 8.01-675.3.

III.Calculation of Interest on Arrearages

Husband contends that the trial court incorrectly calculated interest on part of the principal, which accrued subsequent to November 1, 1993.Husband does not dispute that he owes $25,652.98 from three judgments entered against him and the accrued interest on these judgments subsequent to 1993.However, he argues that the court improperly calculated interest on arrearages from the wife's share of his GRPE before it was awarded by judgment.He claims $12,659.14 of the $38,312.12 principal awarded to wife included GRPE arrearages and that the trial court had no...