Faysal M. ZEDAN v. Sylvie E. WESTHEIM
Record No. 2570-11-4
Court of Appeals of Virginia, Alexandria
Aug. 7, 2012
729 S.E.2d 785 | 60 Va. App. 556
whether it met the statutory definition, and, in finding defendant guilty, the jury necessarily determined that it did. Because the gun was admitted into evidence, it was not an evidentiary prerequisite for the Commonwealth to present testimony regarding the gun‘s characteristics in order for the jury to reach this conclusion. Moreover, the jury‘s determination was not plainly wrong or without evidence to support it. Therefore, we affirm the judgment of the trial court.
Affirmed.
Ryan M. Witkowski, Falls Church (Caroline D. LaForge; The Condo Law Group, P.C., on brief), for appellee.
Present: FELTON, C.J., McCULLOUGH and HUFF, JJ.
McCULLOUGH, Judge.
Faysal M. Zedan (“father“) was held in contempt of court for failing to pay child support pursuant to the parties’ final decree of annulment. He appeals this ruling, raising ten assignments of error.1 Sylvie E. Westheim (“mother“) assigns cross-error to the trial court‘s decision to credit tuition payments made by father on behalf of the children towards his child support obligation. We hold that
BACKGROUND
I. FATHER‘S AND MOTHER‘S MARRIAGE IS ANNULLED ON THE GROUND OF BIGAMY.
Father and mother were wed in 1995, in New York. Three children were born to father and mother. In December of 2004, father and mother executed a separation, custody, support, and property settlement agreement. Under this agreement, father agreed to pay $1,000 per month for each
Then, in June of 2005, mother filed a bill of complaint seeking the annulment of the marriage on the ground of bigamy. Mother alleged that father had married another woman in 1966 and that he was still married to this other woman when he and mother purported to marry.
Mother mailed father an “answer and grounds of defense” that was prepared by mother‘s lawyer. The answer consists of the following:
Your Respondent, Faysal M. Zedan, respectfully represents as follows:
1. I am in receipt of the Subpoena in Chancery and the Bill of Complaint in the above-referenced matter.
2. The allegations in the Bill of Complaint are admitted.
3. Respondent agrees that he is responsible for paying child support in the amount of $7,000.00 per month each month beginning on the first day of the month next following the entry of any Order of annulment for such time as is provided by the
Code of Virginia (1950) , as amended.
Father, who resided in the Republic of Ghana at the time, signed the answer on July 12, 2005 at the United States embassy in Accra. The substance of father‘s answer appears on one page and his signature appears on a different page. Father then mailed a copy of this answer to mother, who turned it over to her attorney.2
On January 24, 2006, the Circuit Court for Fairfax County entered a final decree of annulment declaring the marriage void ab initio on the ground of bigamy. Consistent with father‘s answer, the decree ordered father to pay $7,000 per month in child support, beginning February 1, 2006. The order is styled “we ask for this” and is signed by counsel for mother. Neither father nor an attorney for father endorsed the order. The order lists as a residential address for father “Mohammed Rifa Street # 8441, Jetta, Saudi Arabia.”
II. CHILD SUPPORT ENFORCEMENT PROCEEDINGS AGAINST FATHER
On October 3, 2011, while father was on a visit to the United States, mother filed a rule to show cause alleging that father had failed to pay child support as ordered by the court. In response, father filed a motion to vacate the final decree of annulment and the child support provisions of that decree. Father argued that he had never received notice of this order. He asked that the court declare void the annulment decree and dismiss the rule to show cause.
At a hearing, father testified that while he was working in Ghana, mother sent a document to him and urged him to sign it. He said that the page attached to the signature page was “a different page” from the one in the court file, although it was “perhaps a divorce paper.” According to father, there were no dollar figures in the document that he signed. Father testified that mother told him she needed a divorce paper in order to obtain a green card. He said he signed the paper “just to help her out.”
Following his stay in Ghana, father next worked in Riyadh, Saudi Arabia, and from there he moved to Bahrain. He testified that the first time he saw the decree of annulment was when he arrived in the United States in November of 2011. Father said that he did not reside at the address listed on the final order, that there is in fact no such address, and that the City of “Jetta” as listed on the divorce decree is not an accurate spelling of the City of Jeddah.3
On cross-examination, father acknowledged sending an email in 2006 in which he addressed mother as “dear ex-wife.” This electronic mail message, labeled Plaintiff‘s Exhibit 12, was never moved into evidence.
For her part, mother denied any trickery. She testified that her attorney prepared the answer, she forwarded it to father by mail, and father mailed it back to her after he signed it.
The evidence showed that father made regular monthly payments to mother, but those payments fluctuated significantly from month to month. Some exceeded the amounts owed under either the separation agreement or the decree of annulment, while other payments fell short. Mother offered financial documents showing, based on a $7,000 monthly obligation, that father owed child support arrears in the amount of $205,140.72.
Father testified that he paid tuition amounting to $25,758 for the three children to attend school in Bahrain for one semester. The payments were actually made by the Zedan Group, which is owned by father‘s brother. Father considered these payments a loan to him from the Zedan Group. According to father, mother “picked the school” and arranged for the children to attend. When asked at trial whether there was an agreement with respect to whether these tuition payments would “enter into support issues,” father said he did not need an agreement. Mother testified that she never asked him to pay for the children‘s education. Instead, she “asked him for child support.”
At the conclusion of the hearing, the court expressly rejected father‘s testimony that he did not sign the answer to the petition for annulment and that he did not answer the suit. Instead, the court credited mother‘s testimony. The court found father in contempt, and assessed the child support arrearage in the amount of $205,140.72. The court concluded that
ANALYSIS
I. LACK OF NOTICE PRECLUDES A FINDING OF CONTEMPT BUT DOES NOT RENDER THE DECREE OF ANNULMENT VOID.
We first address three interrelated assignments of error: (1) the trial court erred in concluding that mother properly complied with
A. Code § 20-99.1:1(A) requires notice to a defendant prior to entry of orders when the defendant has filed an answer.
Father‘s first assignment of error with regard to the notice or lack thereof is that the trial court erred in holding that mother complied
A defendant in such suits may accept service of process by signing the proof of service before any officer authorized to administer oaths. This proof of service shall, when filed with the papers in the suit, have the same effect as if it had been served upon the defendant by a person authorized to serve process. In addition, service of process may be accepted or waived by any party, upon voluntary execution of a notarized writing specifying an intent to accept or waive any particular process, or by a defendant by filing an answer in the suit. Such notarized writing may be provided in the clerk‘s office of any circuit court and may be signed by such party to the proceedings before any clerk or deputy clerk of any circuit court, under oath, or may be drafted and filed by counsel in the proceeding, and shall, when filed with the papers in the suit, have the same effect as if the process specified had been personally served upon the defendant by a person authorized to serve process. The court may enter any order or decree without further notice unless a defendant has filed an answer in the suit.
(Emphasis added).
“An issue of statutory interpretation is a pure question of law which we review de novo.” Ford Motor Co. v. Gordon, 281 Va. 543, 549, 708 S.E.2d 846, 849 (2011).
Father argues that mother did not comply with this statute because mother never provided him with notice of the proposed entry or of the entry of the decree of annulment. The trial court rejected this argument, reasoning that the concluding phrase, “unless a defendant has filed an answer in the suit,” “to only be applicable in those situations where defendant has accepted service or waived service in this case. This is clearly a scenario where the defendant has answered a suit in this case.” Mother argues that “[t]he last sentence [of
When statutory language is “clear and unambiguous, [reviewing courts] apply the statute according to its plain language.” Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006). The plain language of
There is no evidence that father ever received notice that mother had tendered the annulment decree or that it had been entered. Mother was in regular communication with father, yet she offered no evidence that father was notified of the proposed decree or its entry. There is no testimony in the record regarding court procedures or practices with regard to the mailing of orders that would establish that father might have received notice through the clerk‘s office. The “ROA Report” from the Fairfax County Clerk‘s Office does not show that the order was sent to father. Father denied ever receiving notice of the order. Father testified without contradiction that the address listed for father in the order was one he had never used and, in fact, was a nonexistent address. Moreover, the city of “Jetta” rather than “Jeddah” was listed on the order.
Mother correctly notes that father had every reason to expect a divorce or annulment and, because he filed an answer, he had notice that such proceedings had begun or soon would begin. The answer that father signed stated that he was “in receipt of the Subpoena in Chancery and the Bill of Complaint in the above-referenced matter.” Knowledge of potential proceedings, however, is not the same as knowledge of a proposed or entered court order.
The fact that father referred to mother as his “ex-wife” in an email message does not establish as a matter of law that father knew that the marriage had been legally annulled by entry of a final court order or, more significantly, that the court had entered an order that imposed a legally binding child support obligation on him.7 This reference to “ex-wife” most likely signals father‘s understanding that, as a practical matter, the marriage was over. The statute required mother to provide notice. A reference to mother as “ex-wife”
does not establish compliance by mother with the notice provisions of
Mother also argues that father must have been aware of the entry of the order because, according to his testimony, he paid $3,000 per month for support instead of the $6,500 in combined spousal and child support he agreed to pay under the separation agreement. She contends that father “would have believed he only owed $3,000 per month only if he believed he did not have to pay spousal support because of the annulment.” Appellee‘s Br. at 12. This argument is unpersuasive. Mother‘s own evidence showed that the monthly amounts paid by father fluctuated significantly from month to month. For example, father paid $6,770 in June of 2006, $1,923 in March of 2007, and back to $6,603.36 in May and June of 2010. These widely varying amounts give rise to no inference that father knew an order had been entered displacing his contractual obligation under the settlement agreement and obligating him instead to pay $7,000 in monthly child support.
We note that, under some circumstances, a litigant might be charged with a duty of inquiry or might forfeit the requirement of notice.
We find no basis in the record to support the conclusion that mother provided father with notice of the proposed annulment decree. Therefore, we hold that mother did not comply with the requirements of
B. A person may not be held in contempt of court for violating an order when the litigant had no knowledge of the entry of the order or its contents.
“[W]e review the exercise of a court‘s contempt power under an abuse of discretion standard.” Petrosinelli v. People for the Ethical Treatment of Animals, 273 Va. 700, 706, 643 S.E.2d 151, 154 (2007). “[A] trial court by definition abuses its discretion when it makes an error of law.” Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (citation omitted).
The exercise of the contempt power ” ‘is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.’ ” Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010) (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767 (1925)). In order to hold a litigant in contempt for violation of a court order, the litigant must have knowledge of the terms of the order. See Hsiu Tsai v. Commonwealth, 51 Va.App. 649, 653, 659 S.E.2d 594, 596 (2008) (holding that a court may not hold a person in contempt when that person never received “notice of any kind” of an order); see also Calamos v. Commonwealth, 184 Va. 397, 406, 35 S.E.2d 397, 400 (1945) (“Since the evidence fails to show that [the plaintiff] had actual knowledge or notice of the ... order ... the court erred in holding him (the plaintiff in error) in contempt for violating such order.“).
Consistent with the requirement of knowledge, to hold a litigant in contempt, the litigant must be ” ‘acting in bad faith or [in] willful disobedience of [the court‘s] order.’ ” Alexander v. Alexander, 12 Va.App. 691, 696, 406 S.E.2d 666, 669 (1991) (quoting Carswell v. Masterson, 224 Va. 329, 332, 295 S.E.2d 899, 901 (1982)). “Willful” means that the conduct is deliberate or intentional. See Angstadt v. Atl. Mut. Ins. Co., 254 Va. 286, 293, 492 S.E.2d 118, 122 (1997) (discussing “willful“); see also Snead v. Commonwealth, 11 Va.App. 643, 646-47, 400 S.E.2d 806, 807 (1991) (same).
The evidence establishes that father never received notice that the decree of annulment, including its child support provisions, had either been tendered for entry or had been entered. Absent such notice, his disobedience of the court order could not have been willful. Father, who is over seventy years old, was ordered to be incarcerated for willfully disobeying an order despite the fact that no evidence established that he had notice of the order. We conclude, therefore, that it was error for the trial court to hold father in contempt of court.
C. Lack of notice of the entry of the order does not render the order void ab initio.
We next confront once again the knotty problem of whether the annulment decree is void from its inception, ab initio, or whether the order is merely voidable. The distinction is an important one in the law because an order that is void ab initio constitutes a legal nullity that is subject to challenge “at any time,” including many years
The Supreme Court has held that
[a]n order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court “could not lawfully adopt.”
Id. at 51-52, 541 S.E.2d at 551 (quoting Evans v. Smyth-Wythe Airport Comm‘n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)). The trial court here had jurisdiction over the subject matter.
Father, however, assigns error to the trial court‘s finding that it had jurisdiction over his person. He argues that the trial court never acquired in personam jurisdiction over him and, further, that under
The question left to resolve is whether the failure to provide notice means that the character of the order was such that the court had no power to render it, or whether the court adopted a “mode of procedure” that the court could not lawfully adopt. One example of an order that was declared void ab initio because the “the character of the judgment was not such as the court had the power to render” involved a sentencing order in excess
The Supreme Court has in recent years placed the void/voidable distinction on the anvil and hammered out some guidance for lower courts. First, as a default principle, the Court has held that “[a] challenge to an order based on a trial court‘s misapplication of a statute generally raises a question of court error, not a question of the court‘s jurisdiction.” Hicks v. Mellis, 275 Va. 213, 219, 657 S.E.2d 142, 145 (2008). Second, the Court specifically has addressed the consequences of a failure of notice. In Hicks, the Court held that the trial court‘s failure to provide notice to a party in interest that it was reinstating an action under
Father‘s basic contention is that the court committed an error in 2006 when it entered an order without notice to him and that error rendered the judgment void. The error, however, was not one that renders the judgment void. The error did not deprive the court of jurisdiction over the parties or affect the court‘s power to render judgment. As the Supreme Court has observed, “[a] court has jurisdiction to err, as well as to correctly decide the issues presented in a case, and the remedy to correct an error by a trial court is to appeal the court‘s decision upon entry of a final order, not to collaterally attack the erroneous decision in a separate action.” Hicks, 275 Va. at 219, 657 S.E.2d at 145.
Soliman v. Soliman, 12 Va.App. 234, 402 S.E.2d 922 (1991), cited by father, does not compel a contrary conclusion. In that case, this Court vacated a divorce decree because the notice to wife did comply with the statute at the time and, moreover, there was no evidence that wife actually received this notice. Id. at 238-40, 402 S.E.2d at 926. Significantly, Soliman was a direct appeal rather than a motion to vacate a decree as void years after its entry. Id. at 236-37, 402 S.E.2d at 924. Soliman sheds no light on whether a failure of notice renders an order void or voidable because the Court never addressed the point.12
No notice was provided here. Nevertheless, the lack of notice did not render the judgment of the trial court void. Moreover, father did receive notice of the order in November of 2011 when he returned to the United States and was served with the show cause. Therefore, while we reverse the finding of contempt, we remand for the trial court to enforce as it deems appropriate the valid decree of annulment, including its child support provisions.13
II. CODE § 8.01-428(C) DOES NOT APPLY.
The trial court concluded that father had not met his burden under
We agree with father that
second theory. To the extent the trial court misattributed a reliance by father on
III. THE FACT THAT FATHER‘S ANSWER WAS PREPARED BY COUNSEL FOR MOTHER PROVIDES NO GROUNDS FOR REVERSAL.
Father next assigns error to the fact that the trial court accepted “the Answer and Grounds of Defense filed in this matter ... as this pleading was prepared by Mother‘s counsel and sent to the Father to endorse, and it is improper for Mother‘s counsel to prepare ... Father‘s Answer and Grounds of Defense.” Mother‘s testimony establishes that the answer filed by father to the bill of complaint was prepared by counsel for mother. Father argues that “plaintiff‘s counsel is prohibited from preparing an answer to be signed by a[n unrepresented] defendant in a domestic proceeding.” Appellant‘s Br. at 30. The lone authority cited for that proposition is the Fairfax County Circuit Court Manual, specifically, paragraph 1.02.C of Section H, which addresses “Domestic Relations Litigation.” We find no basis for reversal on this ground. A court manual, however useful such manuals may be for judges, lawyers, and litigants, affords no basis upon which to reopen the judgment of a court more than five years after it became final. Indeed, the preface to the Manual makes clear that it does not purport to constitute binding authority.
Mother assigns cross-error to the circuit court‘s decision to credit tuition payments toward father‘s child sup-
port obligations. The court credited $25,758 toward father‘s child support arrearage. Father spent this sum on behalf of the children for one semester of tuition in Bahrain.
Child support payments required under a valid court order become vested as they accrue, and the court is without authority to make any change as to past due installments. Generally, the terms of a support decree must be strictly complied with and payments made when due to the designated payee in accordance with the terms of the decree. When changed circumstances dictate a modification of a support decree, the appropriate remedy is for the party to petition the court to modify the decree. The party or parties may not unilaterally or bilaterally vary its terms.
However, although a court may not retroactively modify a child support obligation, allowing a payor spouse credit for non-conforming support payments, in the limited situations where permitted, is not a modification of the support order. A court may, when equitable and under limited circumstances, allow a party credit for non-conforming support payments, provided that the non-conforming payment substantially satisfies the purpose and function of the support award and to do so does not vary the support award. Commonwealth v. Skeens, 18 Va.App. 154, 158, 442 S.E.2d 432, 434-35 (1994) (emphasis added) (citations omitted); see also Jones v. Davis, 43 Va.App. 9, 13-14, 595 S.E.2d 501, 503 (2004). ” ‘Typically, two conditions must exist before credits will be given for non-conforming payments: (1) an agreement by the parties which modifies the terms or method of payment; and (2) no adverse effect on the support award.’ ” Gallagher v. Gallagher, 35 Va.App. 470, 476, 546 S.E.2d 222, 225 (2001) (en banc) (quoting Wilderman v. Wilderman, 25 Va.App. 500, 506, 489 S.E.2d 701, 705 (1997)). If these conditions are not met, ” ‘payments made by an obligated spouse over and above court-ordered monthly support are considered gifts or gratuities.’ ” Buxbaum v. Buxbaum, 20 Va.App. 181, 186, 455 S.E.2d 752, 755 (1995) (quoting Sanford v. Sanford, 19 Va.App. 241, 248, 450 S.E.2d 185, 190 (1994)). A further limited exception exists, inapplicable here, where the custodial parent has agreed to relinquish custody on a permanent basis to the other parent. Acree v. Acree, 2 Va.App. 151, 157, 342 S.E.2d 68, 71 (1986).
In Gallagher, we refined our prior cases, holding that “to the extent our case law may be interpreted to hold that payments to ‘third party vendors’ may constitute non-conforming child support payments for which the payor spouse is entitled to receive credit ... we expressly reject such an interpretation.” 35 Va.App. at 479, 546 S.E.2d at 226. Examples of such “third party vendors” include items such as “day care, doctor visits [and] food.” Id. at 479 n. 1, 546 S.E.2d at 226 n. 1. Absent an agreement between mother and father, payments made by father to a third party vendor, in this instance a school, are considered gifts or gratuities and may not be credited toward father‘s child support obligation.
The trial court neither found an agreement between the parties nor does the record provide evidence of such an agreement. Mother testified that she never agreed to a reduction in the child support payment but rather insisted that he pay her child support. Father testified that he did not need such an agreement. We hold that crediting such payments constituted error. Consequently, we restore the arrearage owed by father to $205,140.72, which is the amount the trial court concluded father owed prior to awarding father credit for the tuition payment.
V. ATTORNEY‘S FEES
Both parties request attorney‘s fees in connection with this appeal. After considering the record, we conclude that “the litigation
CONCLUSION
We reverse the finding of contempt because father never received notice of the final decree of annulment obligating father to pay child support. We reverse the court‘s holding that mother complied with
Affirmed in part, reversed in part, and remanded.