Rehearing
We consider in this case whether a litigant who was held in summary contempt is procedurally barred from raising certain arguments on appeal and, if not, whether the trial court erred in exercising its power of summary contempt. We conclude that Mrs. Amos’s legal arguments are properly before us and that the finding of summary contempt must be reversed.
Factual Background
Felecia Amos and her estranged husband, Antonio Jose Amos, shared custody of their son. Their relationship was hostile: he had been convicted of assaulting her and she had obtained a restraining order against him. Mr. Amos’s sentencing order imposed a suspended sentence and required that he be of good behavior. On October 30, 2010, Mrs. Amos wrote a letter to the Commonwealth’s Attorney for Arlington County, with a copy to the court, alleging that her estranged husband had violated the restraining order. She stated that she was “writing this letter seeking HELP from your office as I am in fear of my life.” (capitalization in original). She alleged, among other things, that during a custody exchange of their son at a McDonald’s restaurant, Mr. Amos engaged in actions designed “to intimidate, harass and threaten” her.
Based on Mrs. Amos’s allegations, the court issued a rule to show cause to determine whether Mr. Amos had violated the terms of his probation. Mrs. Amos appeared as a witness. She testified that, during the exchange on October 29, 2010, at the McDonald’s, her husband crudely insulted her and that he made threats against her, telling her “you’re going down.” She stated that Mr. Amos began to leave the restaurant after picking up their son, but that he then walked back inside and used more profanity against her. She testified that she feared the situation was escalating, so she asked another customer to escort her to her car. She claimed that Mr. Amos followed her outside, yelling, “hey, buddy, what are [you] doing talking to my wife? She is a married woman,” and that she noticed his car following hers after she drove out of the parking lot. Finally, she claimed that Mr. Amos followed her in his car after the incident at the McDonald’s. She also testified about a separate occasion in which she felt Mr. Amos was harassing her.
Jason Salinas, a Sergeant in the United States Army, also testified at the hearing. Salinas explained that the First Army Commander had asked him to “help a soldier out” (Mr. Amos had achieved the rank of Colonel in the Army prior to his retirement) by observing the custody exchange of the Amoses’ son. Salinas did not serve under Mr. Amos in the military and, in fact, had never seen him before. Salinas stated that he had no personal interest in the outcome of this case. On October 29, 2010, Salinas arrived at the McDonald’s and took a seat where he would be well positioned to hear any conversation between Mr. and Mrs. Amos. He testified that, once Mrs. Amos arrived, there was no communication between her and Mr. Amos—they did not speak at all. Mrs. Amos dropped off the child and left. Mr. Amos stayed behind. Mr. Amos also tape-recorded this exchange. The recording, which was played for the court, is consistent with Salinas’s account and inconsistent with the testimony provided by Mrs. Amos. Finally, Mr. Amos denied the allegations Mrs. Amos made against him.
At the conclusion of the hearing, the court asked the prosecutor if she had anything else to add. The prosecutor stated that she was “speechless.” In response, the court stated “[w]ell, there are going to be some other people speechless in a minute.” The court then announced that it was dismissing the
THE COURT: I’m not through. I am not through. The Court is not through.
When this first started, I said, well, it has been eight months without incident, so—it’s not unusual in a divorce case to see some back and forth, but there has been nothing for eight months, and I just don’t know what would be accomplished by punishing this man in keeping this flame burning.
But we have a different situation now.
There’s no question that he has not violated this Court’s orders. But what we do have is a [serious] situation that this Court does not take lightly.
Ms. Amos, come up herе. Come up here by the podium, Ms. Amos. Yes, ma’am. Come on up here. I want to make sure we’re on the same page.
Stand in front of that podium.
You have come into this court and made some serious accusations, and you have flat-out lied under oath. And it’s very offensive to this Court, to every person in the legal community what you’re doing. You’re nothing but a vindictive woman towards this man.
I can understand your dislike for whatever reason. But you will not, as far as this Court is concerned, use this process to further that vindictiveness.
The Code of Virginia, under 18.2-456 provides that courts and judges may issue attempts [sic] for contempt and punish them summarily, only in the following cases—and there are several, but I want to share one with you.
“Misbehavior in the presence of the court or so near thereto as to оbstruct or interrupt the administration of justice.”
I can’t think of any more interruption of justice than what you have done deliberately in this courtroom.
And the Court finds you in contempt of court. You’re sentenced to jail for ten days.
Remand her into custody, Sheriff.
THE COURT: Call the next case.
(Whereupon, the proceedings at 11:00 a.m. were concluded). Mrs. Amos did not object at the time to being held in summary contempt. The court entered an order the same day memorializing the finding of contempt, remanding her to the custody of the sheriff and ordering a bail bond in the amount of $10,000.
Seventeen days after the hearing, on June 27, 2011, Mrs. Amos filed a “motion to vacate sentence and object to this honorable courts [sic] finding.” In her motion, she cited relevant case law, including Scialdone v. Commonwealth,
I. Mrs. Amos’s arguments are not procedurally defaulted.
The threshold question we must address is whether the arguments Mrs. Amos makes on appeal are procedurally defaulted under Rule 5A:18. We conclude, on the specific facts before us, that Mrs. Amos lacked the opportunity to object to the summary contempt finding at the time it was made. Therefore, by operation of Code § 8.01-384(A), the absence of an objection does not prejudice her on appeal.
Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Code § 8.01-384(A) operates in conjunction with this rule. This statute provides, in relevant part, that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him ... on appeal.” The rule and the statute are complementary: Rule 5A:18 presupposes an opportunity to object “at the time of the ruling or order” and Code § 8.01-384(A) expressly provides that where the party does not have the opportunity to object to the
We note at the outset that Mrs. Amos did not have an opportunity to objеct at the time of the ruling or order. Mrs. Amos, who had appeared as a witness rather than as a party, was called to the bench. After the court castigated Mrs. Amos for her lies and for her vindictiveness toward her husband, the court ordered the sheriffs deputy to remove Mrs. Amos from the courtroom and directed the clerk to call the next case. On review of this record, it is plain that Mrs. Amos did not have the “opportunity to object to [the] ruling or order ... at the time it [was] made.”
The Commonwealth responds that even if Mrs. Amos lacked an opportunity to object at the time the court held her in contempt, she in fact had the opportunity to object to the ruling of the court by filing, as she did, a motion to vacate which asked the court to reconsider. The Commonwealth further posits that Mrs. Amos’s motion was unavailing because, following Brandon v. Cox, — Va. -, -,
First, Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a ruling or order at the time it [was] made, the absence of an objection shall not thereafter prejudice him ... on appeal.”
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 interprеtation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc.,
Second, there are situations when a delayed objection does no good.
We further note that Brandon did not involve a situation in which the trial court failed to afford the appellant an opportunity to contemporaneously object. Instead, the litigant in Brandon simply missеd her first opportunity to object and then sought to make up lost ground by asking the court to reconsider. Therefore, the Court in Brandon had no occasion to construe the language from Code § 8.01-384(A) at issue here, namely, that an appellant shall not be prejudiced on appeal when that litigant “[had] no opportunity to object to a ruling or order at the time it [was] made.” It is noteworthy that, in quoting from Code § 8.01-384(A) in Brandon, the Supreme Court specifically omitted the language above by inserting ellipses where this language appears. — Va. at -,
Certainly, a person who had no opportunity to object at the time a trial court found her in summary contempt may be able to and may chоose to file a motion to reconsider. It may even be wise to do so. Such a step, however, is not required under Code § 8.01-384(A) in order to preserve an issue for appellate review.
We therefore conclude that, in the summary contempt context, the phrase “at the time [the ruling or order was] made,” found in Code § 8.01-384(A), means that the contemnor must be afforded the opportunity to object immediately before or after the contempt finding.
II. Summary contempt was not appropriate.
We next consider whether the trial court erred in summarily holding Mrs. Amos in contempt. The answer is fairly straightforward. Indeed, the Commonwealth, which ably presents arguments on the question of procedural default, does not attempt to defend the correctness of the summary contempt finding.
Although it is settled law that courts possess the power to summarily hold persons in contempt, Ex parte Terry,
The court held Mrs. Amos in summary contempt at the conclusion of a hearing in which she testified as a witness against her estranged husband. The court based its finding on its conclusion that she had testified untruthfully and that she was vindictive toward her estranged husband. The United States Supreme Court in In re Oliver,
[e]xcept for a narrowly limited category of contempts, due process of law ... requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.
Id. at 275,
charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent “demoralization of the court’s authority” before the public.
Id. “If some essential elements of the offense are not personally observed by the judge, so
The truth or falsity of Mrs. Amos’s testimony and whether she was a victim or a vindictive person “depended] upon statements made by others.” Id. at 275-78,
CONCLUSION
We reverse the trial court’s judgment of summary contempt and enter final judgment for Mrs. Amos.
Reversed and final judgment.
Notes
. According to her pleadings, Mrs. Amos was released after seven hours of confinement.
. When exercising its power to hold a witness or a litigant in direct contempt, a court ordinarily will afford the contemnor the opportunity to speak. See Taylor v. Hayes,
. For example, in a jury trial, objections to improper argument must be made before the case is submitted to the jury—an objection after that time comes too late. Reid v. Baumgardner,
. In Nusbaum v. Berlin,
. Our holding should not be interpreted as disturbing settled precedent regarding the rules of procedural default. As noted above, these rules serve important and salutary purposes.
. The fact that Mrs. Amos impelled the Commonwealth to request the issuance of a show cause and sent a copy of the letter to the court does not change the answer. Summary contempt applies when the conduct in question occurs " ‘in open court, in the presence of the judge ... where all of the essential elements of the misconduct [were] actually observed by the court.' ” Scialdone,
Dissenting Opinion
dissenting.
I respectfully dissent. In my view, the record on appeal reflects that appellant failеd to preserve her assignments of trial court error for appeal, as required by Rule 5A:18. Moreover, I conclude that the “ends of justice” and “good cause” exceptions to Rule 5A:18 are inapplicable to this appeal. I would affirm the order of the trial court finding appellant guilty of contempt.
A.
The determination whether appellant is procedurally barred from raising her assertion of trial court error on appeal, and, if not, whether the trial court erred by finding her guilty of contempt, is a question of law that this Court reviews de novo. Brown v. Commonwealth,
The record on appeal shows that, on June 10, 2011, appellant appeared before the trial court to testify as to why her ex-husband’s probation should be revoked.
Appellant posted bail and was released from custody approximately seven hours after the trial court found her guilty of summary contempt. Seventeen days later, appellant filed a detailed motion for reconsideration of its finding her guilty of summary contempt, and a motion to vacate her conviction of contempt, in the trial
Where a party fails to obtain a ruling on a matter presented to a trial court, there is nothing for this Court to review on appeal. Fisher v. Commonwealth,
Because appellant failed to obtain a ruling from the trial court on her motion for reconsideration of its finding her guilty of contempt within the twenty-one-day period prescribed by Rule 1:1,
B.
Despite appellant’s failure to obtain a ruling from the trial court on her motion to reconsider its finding her guilty of contempt, the majority concludes that:
[T]he fact that the trial court never ruled on [appellant’s] motion to reconsider or was not made aware of it does not foreclose appellate review of Mrs. Amos’s arguments. This conclusion is driven by a plain language reading of Code § 8.01-384(A), that the absence of such an opportunity to object “shall not thereafter prejudice [a party] ... on appeal.” Concretely, this means that Mrs. Amos may raise arguments on appeal that she did not present at trial.
Supra at 741.
Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a ruling or order at the time it [was] made, the absence of an objection shall not thereafter prejudice him ... on appeal.”
[T]he lack of an “opportunity to object” ... relates to the reason why an objection was not made at the time of the ruling. Thus, the statutory exception [to the contemporaneous objection rule] is subsumed under the “good cause” exception [to Rule 5A:18] because both relate to the reason why an objection was not timely made.
Campbell v. Commonwealth,
In Nusbaum v. Berlin,
a situation where the circuit court prevented Nusbaum from voicing his objections,asking the court to rule on them, or requesting the court to reconsider a ruling. See Code § 8.01-384 (“if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall nоt thereafter prejudice him ... on appeal”).
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While Nusbaum was perhaps surprised when the circuit court found him guilty of contempt of court, he subsequently stated his due process objections and had ample opportunities to ask the circuit court to rule on them.
Id. at 406,
Stated differently, the saving provision of Code § 8.01-384(A) protects an appellant from waiving on appeal only those objections that could not be made at the time of the ruling and that could not be cured by a post-conviction motion.
C.
In my view, appellant failed to preserve her assignments of trial court error for appeal. However, appellant’s request that this Court invoke the “good cause” or “ends of justice” exception to Rule 5A:18 to reverse her conviction must be considered.
The ends of justice exceptiоn “is narrow and is to be used sparingly.” Brown v. Commonwealth,
Appellant has not demonstrated that she was found guilty of conduct that was not contempt, and the record does not show that an element of contempt, a common law offense, did not occur. The Supreme Court has long held that perjury may be punished as contempt, so long as there is “added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty.” Ex parte Hudgings,
would decline to apply the ends of justice exception to reach the merits of appellant’s assignment of error.
Similarly, I find no basis to apply the good cause exception to Rule 5A:18. “ ‘Good cause’
Accordingly, I find no basis to invoke either the “good cause” or “ends of justice” exception to Rule 5A:18 to reach the merits of appellant’s argument on appeal.
D.
Because appellant failed to preserve her assignments of trial court error for appeal, and because neither the “ends of justice” nor “good cause” exceptions to Rule 5A:18 are applicable, I would affirm the judgment of the trial court finding appellant guilty of contempt.
. At the request of the Office of the Commonwealth’s Attorney of Arlington County, the trial court issued the order for appellant’s former husband to appear and show cause why his probation should not be revoked. The trial court issued its show cause order after the Commonwealth’s attorney forwarded a copy of appellant’s letter to the trial court, detailing her allegations of husband’s egregious and threatening conduct and asserting he violated the conditions of his probation.
. Appellant asserted in her motion that the evidence was insufficient for the trial court to find her guilty of contempt, in violation of Code § 18.2-456(1), and that the trial court deprived appellant of her right to due process by finding her guilty of contempt in a summary proceeding.
. Rule 1:1 provides, in pertinent part, that the trial court may modify, vacate, or suspend any final order of the trial court within "twenty-one days after the date of entry, and no longer.”
. For example, an appellant's failure to proffer the evidence she expected to obtain from excluded testimony would normally foreclose an appellate court from dеtermining whether the trial court committed reversible error by disallowing the testimony. See, e.g., Ray v. Commonwealth,
. The same is true in workers' compensation cases. For example, a claimant may make two arguments in favor of an award of compеnsation. The commission, in turn, may issue an opinion denying coverage on one of the two grounds but refusing to address the second ground. By issuing a final opinion without a hearing, the commission effectively precludes a contemporaneous objection to its error. The saving provision of Code § 8.01-384(A), like the "good cause” exception to Rule 5A:18, excuses the claimant for not objecting “at the time [the ruling] [was] made” because it was impossible for the claimant to do so. However, the appeal still fails if the claimant neglected to file an after-the-fact motion to reconsider. See Williams v. Gloucester Sheriff’s Dep’t,
. The majority cites Rule 4:15(d) in support of its assertion that "a litigant has no right to present oral argument on a motion to reconsider. Instead, such arguments are presented at the discretion of the trial court.” Notably, Rule 4:15(d) is a rule of civil procedure that, on its face, relates only to "all civil case motions.” There is no corollary rule for criminal case motions that prohibits oral argument on a motion for reconsideration except "at the request of the court.” Rule 4:15(d); see generally Part 3A of the Rules of the Supreme Court of Virginia.
. That appellant initially appeared before the trial court as a witness at the show cause hearing she initiated does not excuse her failure to preserve her argument that the trial court erred by finding her guilty of contempt. See, e.g., Townes v. Commonwealth,
. Appellant asserts that the trial court erred by finding her guilty of contempt in a summary proceeding. However, whether the trial court erred by punishing her summarily is merely a question of procedure; it has no bearing on whether the substantive elements of the contemptible conduct, here perjury and obstruction of justice, occurred.