827 S.E.2d 391
Va. Ct. App.2019Background
- Melinda and Robert Mills divorced in 2015; their July 19, 2012 property settlement agreement (PSA) was incorporated into the final decree. Key PSA provisions at issue: Section 6.1 (maintain existing life insurance naming children irrevocable beneficiaries until youngest is 25), Section 8.2 (alternating tax dependency exemption once older child is no longer eligible), and Section 2.3 (do not interfere with children’s love/affection for the other parent).
- Husband filed motions to show cause in 2018 alleging wife cashed out a whole life policy that named the children beneficiaries (6.1), claimed the younger child on her tax returns in 2016 when husband was entitled to do so (8.2), and spoke disparagingly to the older child (2.3).
- At the contempt hearing wife admitted cashing out the whole life policy and conceded that action violated Section 6.1; she argued she had substitute term coverage and claimed "substantial compliance." Wife also admitted claiming the younger child for 2016 but contested willfulness; she did not dispute the recorded disparaging statements to the older child.
- The circuit court found wife in civil contempt for violations of Sections 6.1, 8.2, and 2.3 and ordered (1) wife to obtain a whole life policy ($50,000 min, children irrevocable beneficiaries), (2) reimburse husband $1,066 (tax loss for 2016), and (3) a $1,000 fine for the 2.3 violation (suspended conditioned on no future violations). The court awarded husband $5,130 in attorney’s fees.
- Wife moved to reconsider, arguing misclassification of contempt (civil vs. criminal), insufficiency of evidence, and unreasonable attorney’s fees; the court denied relief and wife appealed.
Issues
| Issue | Mills (Plaintiff/Husband) Argument | Mills (Defendant/Wife) Argument | Held |
|---|---|---|---|
| Whether contempt findings were civil or criminal | Contempt remedies were remedial to vindicate his contractual rights under the PSA and thus civil | Wife argued some contempt findings (life insurance, love/affection) were criminal in nature and required criminal procedural protections | Court: Findings as to Sections 6.1 and 8.2 were civil; finding re: Section 2.3 imposed a punitive fine and thus was criminal in character — trial court erred by treating it as civil and applying civil standard of proof (reversed as to 2.3). |
| Section 6.1 (life insurance) — did wife violate obligation to "maintain existing policy"? | Wife breached by cashing out the whole life policy; remedial relief (replace with whole life naming children) appropriate | Wife argued substitute employer term policy with $50,000 coverage constituted substantial compliance | Court: Plain language required maintaining existing policy; substitute term policy did not excuse breach. Contempt and remedial order to obtain whole life policy affirmed. |
| Section 8.2 (tax dependency) — willfulness and damages | Husband sought reimbursement for tax loss caused by wife claiming the child in 2016 ($1,066) | Wife claimed mistake/ignorance about elder child’s eligibility and offered to reimburse once alerted | Court: Credited husband; sufficient evidence wife intentionally prevented him from claiming exemption. Ordered reimbursement of $1,066; contempt finding and remedial sanction affirmed. |
| Attorney’s fees — scope and reasonableness | Fees necessary to secure compliance with PSA; requested $5,130 and appellate fees for defending the appeal as to Sections 6.1 and 8.2 | Wife challenged reasonableness and inclusion of fees related to her withdrawn sanctions motion and fees tied to Section 2.3 | Court: Award of fees for Sections 6.1 and 8.2 reasonable and affirmed; fees attributable to litigation over Section 2.3 must be stricken and court remanded to allocate and deduct those fees. Husband entitled to reasonable appellate fees for Sections 6.1 and 8.2; remand to determine amount. |
Key Cases Cited
- Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911) (distinguishing remedial civil contempt from punitive criminal contempt)
- United States v. United Mine Workers, 330 U.S. 258 (1947) (criminal contempt may arise in a civil proceeding)
- Epps v. Commonwealth, 47 Va. App. 687 (2006) (civil contempt is remedial to afford relief to injured party)
- Drake v. National Bank of Commerce of Norfolk, 168 Va. 230 (1937) (ore tenus testimony reviewed deferentially; factual findings stand unless plainly wrong)
- Ware v. Ware, 203 Va. 189 (1962) (appellate standard for upsetting trial court factual findings)
- Bagwell v. Int’l Union, United Mine Workers of Am., 244 Va. 463 (1993) (determinate, unconditional sanctions are criminal in nature)
- Int’l Union, United Mine Workers of Am. v. Covenant Coal Corp., 12 Va. App. 135 (1991) (prohibitory-order contempt and suspended fines characterized as criminal)