Travis v. Finley

• Decision Date: 17 July 2001
• Docket Number: Record No. 1938-00-2.
• Citation: Travis v. Finley, 36 Va. App. 189, 548 S.E.2d 906 (Va. App. 2001)
• Parties: Shirley TRAVIS v. Joseph E. FINLEY, Jr.
• Court: Virginia Court of Appeals

548 S.E.2d 906

36 Va. App. 189

Shirley TRAVIS v. Joseph E. FINLEY, Jr.

Record No. 1938-00-2.

Court of Appeals of Virginia, Richmond.

July 17, 2001.

Robert D. Jacobs, Richmond, for appellant.

S. Keith Barker (S. Keith Barker, P.C., on brief), Richmond, for appellee.

Present: FRANK and CLEMENTS, JJ., and COLEMAN, Senior Judge.

FRANK, Judge.

Shirley Travis (mother) appeals the decision of the trial court dismissing her petition to modify custody and her petition for show cause against Joseph E. Finley, Jr. (father). On appeal, she contends the trial court erred in dismissing her petitions for her failure to answer the discovery propounded by father because: 1) she asserted her Fifth Amendment privilege against self-incrimination and 2) the discovery sought by father was not relevant to the proceeding. We agree that the trial court erred in dismissing mother's petitions.

I. BACKGROUND

On August 4, 1999, mother filed a petition to amend a previous custody order of July 6, 1999, in which father was awarded custody. In support of her petition to amend, mother alleged a change in circumstance.

The July 6, 1999 order¹ came on a remand from this Court after we reversed an earlier order that allowed mother to retain custody and remove the child to Ghana. On remand, the trial court gave custody to father and set forth specific visitation.

A number of other matters came before the trial court in addition to the petition to amend custody, including: 1) father's motion to compel discovery of mother's income and whereabouts while she was under order not to leave the country; 2) father's motion to enforce various subpoenas duces tecum; 3) father's motion to establish visitation for mother; 4) father's motion to have the civil contempt fine reduced to judgment; 5) father's motion for attorney's fees and costs; 6) mother's petition to show cause against father for failure to pay child support, failure to allow visitation and other actions alleged to have violated previous orders.

By order of June 30, 2000, the trial court ruled it would dismiss mother's petition to amend custody and her petition to show cause against father if mother did not answer the discovery requests within ten days. Mother failed to do so, and on July 14, 2000, the trial court dismissed mother's petition to amend custody because "the [mother] failed to answer the discovery in accordance with the court's order of June 30, 2000...." In the same order, the trial court dismissed the petition to show cause against father for his alleged failure to pay child support. Mother then timely appealed the July 14, 2000 order by her notice of appeal filed on August 9, 2000.

On September 1, 2000, the trial court resolved the remaining issues: contempt, visitation, child support, health insurance, attorney's fees and sanctions against mother. The September 1, 2000 order recited that mother's petition to amend custody had been dismissed in the July 14, 2000 order.

Father filed a motion to dismiss mother's appeal for lack of jurisdiction. Father contends the July 14, 2000 order is "an interim order" and that the September 1, 2000 order is the "final order."

II. ANALYSIS

We first must determine whether the July 14, 2000 order is a "final order" or an interlocutory order that "adjudicates the principles of a cause."

Pursuant to Code § 17.1-405, the Court of Appeals has jurisdiction to hear appeals from:

3. Any final judgment, order, or decree of a circuit court involving:

a. Affirmance or annulment of a marriage;

b. Divorce;

c. Custody;

d. Spousal or child support;

e. The control or disposition of a child;

f. Any other domestic relations matter arising under Title 16.1 or Title 20; or ...

4. Any interlocutory decree or order entered in any of the cases listed in this section . . . (ii) adjudicating the principles of a cause.

Code § 17.1-405(3)-(4).

For an interlocutory decree to adjudicate the principles of a cause, the decision must be such that "`the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit.'" Pinkard v. Pinkard, 12 Va.App. 848, 851, 407 S.E.2d 339, 341 (1991) (quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527 (1925)).

Erikson v. Erikson, 19 Va.App. 389, 391, 451 S.E.2d 711, 712-13 (1994).

"A final decree is one 'which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court.'" Id. at 390, 451 S.E.2d at 712 (quoting Southwest Virginia Hosps. v. Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83-84 (1951) (citation omitted)).

Mother's petition requested that custody be returned to her. The July 14, 2000 order dismissed that petition. Clearly, the order disposed of the "whole subject" of custody. Nothing was left for the court to act upon. The subsequent proceedings were unrelated to a determination of custody.

Therefore, because the July 14, 2000 order was a final appealable order, we find we have jurisdiction to determine the merits of the cause.

We first address mother's contention that the trial court erred in dismissing her custody petition and the petition to show cause against father. She argues, pursuant to Code § 8.01-223.1,² the assertion of her Fifth Amendment privilege against self-incrimination is not a proper basis for dismissing her petitions. She further maintains that the discovery sought by father was not relevant to the proceedings.³ Father argues that the common law "sword and shield" doctrine permitted the dismissal.

While the trial court did not articulate its reasons for dismissal, we necessarily conclude it was under the common law doctrine of "sword and shield."⁴ Father sought dismissal of the petition under Rule 4:12(b)(2)(c), but the trial court could not have dismissed the petition as a sanction under Rule 4:12 because the Rule's sanctions do not apply until an order has been entered and violated. In this case, such an order was never entered. Rather, the trial judge, in his ruling from the bench, acknowledged he was not compelling mother to "answer anything" or "produce anything." The trial court stated:

She has the choice of either proceeding with the discovery or, in the alternative, I will grant Mr. Barker's motion for sanctions in terms of a dismissal of this action. I'm not going to play a pea and shell game with her. And I cannot force her to by utilization of the coercive powers of this Court, fine or imprisonment, I cannot coerce her to produce this information. And I acknowledge that much, and I'm not doing that.

The Supreme Court of Virginia, in Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987),⁵ expounded on the common law doctrine of "sword and shield." The Court wrote:

[T]his rule recognizes that historically the privilege against self-incrimination was intended solely as a shield. The rule thus provides that a moving party cannot use it as a sword to sabotage any attempt by the other party, either during pretrial discovery or at trial, to obtain information relevant to the cause of action alleged, and relevant to possible defenses to the claim. Laverne v. Incorp. Village of Laurel Hollow, 18 N.Y.2d 635, 638, 272 N.Y.S.2d 780, 782, 219 N.E.2d 294, 295 (1966), appeal dismissed, 386 U.S. 682, 87 S.Ct. 1324, 18 L.Ed.2d 403 (1967). In other words, the moving party "in a civil action who exercises his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion." Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141, 149 (W.D.Wisc.1968), aff'd, 416 F.2d 967 (7th Cir.1969). See annot., 4 A.L.R.3d 545. The idea is that it would be unjust to permit parties to use the courts to seek affirmative relief while at the same time deflecting, relevant questions, the answers to which may constitute a defense to the claims asserted.

Id. at 456-57, 357 S.E.2d at 498.

Father contends mother waived her Fifth Amendment claim by promising to answer discovery. Father further contends mother did not file a timely objection to the interrogatories or to the motion for production. Father further argues that by only objecting to the discovery on relevancy grounds, she could not later object on the basis of self-incrimination.

By letter dated April 20, 1999 to father's counsel, mother's counsel stated:

I will have discovery answers to you by Friday, April 30, 1999, so you do not have to waste your client's money with a sanctions motion. By the way, Ms. Travis has not refused to furnish you with sworn answers to your questions. It is my fault, as I forgot to send them to her. Please accept my apology.

"Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights." White v Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). The Supreme Court "has always set high standards of proof for the waiver of constitutional rights ...." Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966) (citing Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461).

A waiver of a constitutional right must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970) (footnote omitted).

Hunter v. Commonwealth, 13 Va.App. 187, 191, 409 S.E.2d 483, 485 (1991).

Failure to make a timely defense has been held a waiver. Brooks v. Peyton, 210 Va. 318, 171 S.E.2d 243 (1969) (statutory

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