Walthall v. Com.
| Decision Date | 17 February 1987 |
| Docket Number | No. 0851-85,0851-85 |
| Citation | 353 S.E.2d 169,3 Va.App. 674 |
| Court | Virginia Court of Appeals |
| Parties | Gregory WALTHALL v. COMMONWEALTH of Virginia. Record |
Dorathea J. Peters, Alexandria, for appellant.
Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Panel: DUFF, KEENAN and MOON, JJ.
In this appeal, we are asked to decide whether under Code § 16.1-232 the Commonwealth's attorney should have appeared on behalf of Gregory Walthall's former wife in his appeal to the circuit court from the order of the juvenile and domestic relations district court increasing a child support award. He asserts that the Commonwealth's attorney's presence implied that he was convicted of a criminal offense. The Attorney General contends that Walthall was convicted of a criminal offense, and that the Commonwealth's attorney was required by law to appear. The Commonwealth further contends, however, that this appeal is moot because the child, as of the date of oral argument, was eighteen years of age and Walthall had paid all sums due under the order appealed from. We hold that Walthall was not convicted of a criminal offense and, therefore, that the Commonwealth's attorney was neither permitted nor required to represent the Commonwealth in the appeal to the circuit court. However, having decided that the case was civil rather than criminal, we dismiss the appeal as being moot because Walthall has failed to show that he was prejudiced by the Commonwealth's attorney's appearance or that there is an actual controversy injuriously affecting his rights. 1 Hallmark Personnel Agency, Inc. v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967).
Code § 16.1-232 provides:
The Commonwealth's attorney shall prosecute felony charges before the juvenile court, unless relieved of such responsibility by order of the court. The Commonwealth's attorney may prosecute misdemeanor charges before such court, but shall be required to do so only when the court so directs in specific particular cases or class of cases.
The Commonwealth's attorney shall represent the State in all cases appealed from the juvenile and domestic relations district court to the circuit court.
When Linda Walthall and Gregory Walthall were divorced on June 14, 1972, there was no adjudication made regarding custody or support of their minor child. Gregory Walthall voluntarily paid the sum of $60 per month in support. In 1978, Linda Walthall petitioned the Juvenile and Domestic Relations District Court for the City of Alexandria for an increase in that support. The case was styled Linda Walthall v. Gregory Walthall. The petition was filed on "Form No. DNS-1--V.C. 1954, 20-61--Petition to be Filed in Desertion and Nonsupport Cases." Notes in the court file indicate that, before the hearing in the juvenile and domestic relations court, there was a decision that the case would proceed as an "instead of" case. This notation apparently referred to the case proceeding under Code § 20-72 2, rather than as a misdemeanor charge under Code § 20-61 3, so that an award of child support could be entered based upon the financial ability or earning capacity of the defendant, "instead of" the imposition of criminal sanctions for nonsupport. Support payments were fixed at $75 every two weeks. Nothing in this record indicates that Walthall was found guilty of a misdemeanor pursuant to Code § 20-61 or that he was placed on probation as provided for in cases decided pursuant to Code § 20-72.
In 1984, Linda Walthall moved to amend the order of October 18, 1978. She alleged that Walthall had paid the sum of $150 per month since November 1, 1978, and that she needed an increase to $350 per month because the child was sixteen years old and there had been a cost of living increase as well as costs associated with the support of an older child. The juvenile and domestic relations court ordered Walthall to pay the sum of $350 per month. Again, there was no finding that he was guilty of contempt or guilty of failing to support a child in necessitous circumstances. Gregory Walthall appealed the case to the Circuit Court for the City of Alexandria. The case was listed upon the docket as Commonwealth v. Walthall, Misdemeanor No. 6822. In the record before us on appeal, the docket notation is the first reference to the case as a criminal proceeding. 4
The wife's 1984 motion was made apparently pursuant to the provisions of Code § 20-74, which provides that all orders remain in force until further order of the court and confers authority to modify orders from time to time as the circumstances may require. Walthall claims that the proceeding was purely civil, in no respect criminal, and that there was no allegation that the child was in necessitous circumstances, as defined in Code § 20-61; thus, he argues that there was no authority for the imposition of a criminal sanction.
The Commonwealth argues that the case began as a criminal proceeding in 1978 and never changed from that character. Furthermore, the Commonwealth contends that Code § 16.1-232 requires it to represent the Commonwealth on appeals to the circuit court. Although there is no order in the record finding Walthall guilty of nonsupport, the Commonwealth contends that "the judge implicitly found Walthall guilty of nonsupport" because Mrs. Walthall swore to a nonsupport warrant.
We do not agree that the juvenile and domestic relations court disposed of this case as a criminal proceeding under either Code § 20-61 or Code § 20-72; instead, we hold that the court treated the case as a civil proceeding under Code § 16.1-241(A)(3) which gives the court jurisdiction in any case where "custody, visitation or support is a subject of controversy or requires determination." We are strengthened in this belief because the reverse side of the form upon which the original nonsupport complaint was filed contained a printed form for the trial judge to make a finding of guilt. This form was not used. A docket entry simply states that the court determined that Walthall should pay $75 every two weeks.
Furthermore, a court speaks only through its orders. Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). Absent an order finding Walthall guilty of a criminal offense, no valid criminal conviction was obtained. We conclude that either Mr. Walthall was found not guilty of nonsupport or was not tried for the offense, and that the trial court exercised its civil jurisdiction under Code § 16.1-241(A)(3).
We further find that the second paragraph of Code § 16.1-232, which states that the Commonwealth shall represent the State in all cases appealed from the juvenile and domestic relations district court to the circuit court, refers only to cases in which the Commonwealth is a party or, at least, has an interest.
A literal reading of the statute would require the Commonwealth's attorney to appear in cases in which the Commonwealth has no interest or is not a party. However, a statute should not be so construed when to do so would lead to absurd results. See NAACP v. Committee on Offenses Against the Administration of Justice, 201 Va. 890, 900, 114 S.E.2d 721, 728-29 (1960). In civil matters appealed to the circuit court, the Commonwealth may have a theoretical interest in seeing that the best interests of children are provided for in both custody disputes...
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