COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, O’Brien and Russell
UNPUBLISHED


              Argued at Alexandria, Virginia


              CHRISTIAN A. VON HASSELL
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 0414-16-4                                   JUDGE WESLEY G. RUSSELL, JR.
                                                                                 NOVEMBER 15, 2016
              ELIZABETH VON HASSELL


                                     FROM THE CIRCUIT COURT OF CLARKE COUNTY
                                                Alexander R. Iden, Judge

                                Charles E. Powers (Batzli Stiles Butler PC, on briefs), for appellant.

                                (Paul A. Morrison; Morrison, Ross and Whelan, on brief), for
                                appellee. Appellee submitting on brief.


                      Appellant husband assigns multiple errors to rulings of the trial court related to the entry of

              the parties’ final decree of divorce. Specifically, he contends the trial court erred in classifying

              certain personal property as appellee wife’s separate property, in its classification and distribution of

              husband’s interest of a corporate entity in which he was the majority owner, in determining

              husband’s income for spousal support purposes, and in making certain contempt rulings. Both

              parties request that we award them attorneys’ fees incurred on appeal. For the reasons that follow,

              we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

                                                          BACKGROUND

                      On appeal, we review the evidence in the favor of wife, the prevailing party below. Niblett

              v. Niblett, 65 Va. App. 616, 622, 779 S.E.2d 839, 842 (2015). The parties were married on

              September 11, 1993, in New York. Prior to marriage, in 1989, husband founded a company,

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Repton Group, Inc. (“Repton”), that specializes in global finance. The company began as a New

York company, but was converted into a Delaware limited liability company in 1993, and

husband’s ownership stake in the business was reduced to slightly more than 97%. At the time of

marriage, wife was working in the pharmaceutical industry, where she earned a salary

approximating $80,000. Wife left the workforce, however, when their first son was born in 1994.

In 1996, the parties purchased a co-op apartment in New York City. Another son was born in 1997.

The family initially resided in New York, but moved to Virginia in 1998. Husband continued to

manage his business from New York, but would spend time in Virginia on the weekends.

           During the marriage, income from Repton was the principal source of the parties’ financial

support. Wife performed occasional part-time work, and husband received insubstantial additional

income for some of his writings. Income from Repton afforded the family a high standard of living,

which included a large farm with horses, overseas vacations, and private-school education and a

nanny for the children. Husband also inherited $2.5 million from his mother’s estate. Husband was

responsible for managing the parties’ funds. In 2008, the parties established a trust, the von Hassell

Virginia Trust. Regarding the husband’s management of the trust, the trial court specifically found

that “[t]o sustain [his] lavish lifestyle over a sustained period of time, [h]usband expended

approximately $1 million in funds that had been inherited from his mother’s estate, but that were

transferred to a trust established for the benefit and wellbeing of the parties’ two sons.”

           By 2010, the couple was having financial problems. They had to sell the Virginia

farmhouse. With the aid of husband’s sister, wife also sold numerous items of personal property at

auction and via other methods. E-mails between the parties from 2011 show their discussions

regarding their financial status, including what to sell and how to pay for things such as college

tuition.




                                                  -2-
        The parties separated on February 24, 2014. When wife filed her complaint for divorce on

October 17, 2014, one of the children was still a minor, but by the time of entry of the final decree,

that child had reached the age of majority. In her complaint, wife requested child custody and

support, spousal support, equitable distribution of the parties’ property and debts, and attorney’s

fees. On January 21, 2015, the trial court entered a pendente lite order directing husband to pay

wife $5,893 monthly spousal support and $1,720 monthly child support. The support was awarded

retroactively to the date of filing, October 17, 2014, and consequently, the order then set an

arrearage of $26,352.72, which was to be paid by May 29, 2015. Wife also was awarded $7,900

towards attorney’s fees. On August 19, 2015, a rule to show cause was entered against husband

based on wife’s allegations of his failure to abide by the terms of the pendente lite order.

        An evidentiary hearing on the divorce and show cause issues was held on October 14, 2015.

The court issued its ruling by letter opinion on November 9, 2015. It found that the marital estate

comprised the New York apartment, three different vehicles, and a 97.5% interest in Repton.

“[A]ny personal property present in [each party’s] possession and any funds and securities . . . or

other financial accounts titled in their separate names” were deemed separate property. The court

assigned a definite dollar amount to each of the items of marital property, except Repton. With

respect to the business, the court noted that “[t]he parties acknowledged that the interest . . . cannot

be valued” and that courts were to look to the “intrinsic value of the property to the parties to

measure value for equitable distribution purposes.” The court recited Virginia law as to how

goodwill can create value for a business and found that “the intrinsic value of the business is

inextricably linked with the [h]usband’s professional ability,” so that without him, “its value is

simply the fair market value of the business assets[.]” The court, however, did not assign any

specific monetary value to the business’s goodwill and found that “no evidence was presented” as to

the value of the business assets.

                                                  -3-
        The court also addressed the debts of the parties, which included an unpaid high school

tuition bill, federal and New York tax liabilities, and substantial balances on wife’s credit cards.1

The court found the total amount of marital debt to be $249,000. After considering the applicable

statutory factors, the court awarded wife a monetary award for her interest in the New York real

estate, which, upon satisfaction of payment, was to be transferred to husband. Wife was awarded

full interest in each of the vehicles, with a total value of $21,000. The court awarded husband the

entirety of his ownership interest in Repton, but then “[t]o compensate [w]ife for her interest in that

entity, and for the [husband’s] mismanagement and waste of marital resources,” the court allocated

all of the marital debt to husband. The court also made husband responsible for any tax liability

resulting from a potential settlement with American Express.

        In calculating spousal support, the court first found that wife’s income was $85,000 a year.

To determine husband’s income, the court reviewed the federal tax documents husband filed

individually and on behalf of Repton for years 2010 to 2014. The court looked at Repton’s income

and what it reported as having paid husband. The court noted that husband’s 2014 return did not

include the income reported in Repton’s 2014 K-1. The court compared the business expenses that

were claimed by Repton and husband on their respective forms. The court noted that “[f]or

2010-2013, hefty business expenses were deducted first on the business return and then additional

hefty expenses were deducted on the personal return.” The court also heard testimony from

husband and concluded, “all reasonable business expenses were deducted on Repton’s tax returns

each year.” The court then averaged the amounts husband had received from Repton over those




        1
         The trial court found that American Express was owed $90,000. Although the card was
in wife’s name, the evidence establishes that significant charges on that account were incurred
not by wife, but by an acquaintance of husband.


                                                  -4-
years, resulting in an annual income of $323,687. After considering the other statutory factors, the

court established a $3,000 monthly spousal support award payable to wife.

        With respect to the show cause, the court found appellant in contempt based on his failure to

pay spousal support, child support, and attorney’s fees in accordance with the pendente lite order.

The court found an arrearage of $93,875.98. In finding appellant in contempt, the court explicitly

stated that, “Evidence of [h]usband’s income shows he currently has, and has since January 21,

2015 had the ability to pay these sums.” The court set a payment date of December 29, 2015, by

which appellant was to pay the arrearage in full. If the full amount were not paid by that date,

appellant was to “report to the Regional Jail . . . where he shall remain incarcerated until he pays the

full amount[.]”

        Husband filed a motion to reconsider, in which he sought review of the court’s findings

related to its calculation of his income, particularly his claimed business expenses; its consideration

of certain equitable distribution and spousal support factors; and its treatment of items inherited by

him from his mother. Husband also challenged the court’s contempt ruling, contending the term of

imprisonment to be imposed for failure to pay the arrears by the set date could not be indefinite, but

rather was statutorily required to be limited to one year. The motion did not contain any statements

regarding the court’s classification of husband’s interest in Repton as marital property.

        The parties argued the motion on December 16, 2015. No new evidence was presented.

Husband asserted “three main areas . . . for the [c]ourt to revise its findings. The first relates to

personal property, the second is the determination of his income, and the third is the ruling on the

contempt.” With respect to the personal property, husband sought return of the items wife had in

her possession that she admitted had been his prior to the marriage, arguing ‘[t]here is no question

they were his premarital or inherited property.” The contention that the court could not distribute

those items because they were husband’s separate property extended only to items of tangible

                                                   -5-
personal property that constituted family heirlooms; the classification of husband’s interest in

Repton was not addressed.

        Regarding its contempt finding, the only change the court made to its previous rulings was

to grant husband more time to purge himself of his contempt; to avoid jail for the contempt finding,

husband now had until December 29, 2016, to pay the arrearage associated with the pendente lite

order. The trial court reiterated that the contempt finding was related to past due amounts from the

pendente lite order, referring to the amount past due as the “Contempt Arrears.” Nothing in the trial

court’s contempt rulings imposed a punishment on husband if he fails to make payments that are

due in the future.

        On February 17, 2016, the court entered a final decree of divorce memorializing its rulings.

Husband filed his objections to the final decree, and this appeal followed. On appeal, husband

presents the following assignments of error:

                1.       That the trial court erred in classifying appellant’s pre-
                marital property in appellee’s possession as her separate property
                (in that such property is appellant’s separate property) and failing
                to direct appellee to return such property to appellant.

                2.      That the trial court erred in classifying Repton Group as
                marital property in that the evidence was that such business was in
                existence prior to the parties’ marriage and no evidence was
                presented as to an increase in value attributable to the contribution
                of marital property or personal efforts.

                3.       That the trial court erred in distributing Repton Group in
                that it acknowledged that no evidence was presented as to its value
                and, accordingly, did not value such property.

                4.      That the trial court erred in assigning to appellant all of the
                marital debt to “compensate” wife for her interest in the Repton
                Group in that equitable distribution is for the purpose of dividing
                the marital estate, not compensating one party.

                5.     That the trial court erred in ignoring appellant’s legitimate
                business expenses in determining his income and, therefore, his
                purported ability to pay support in that such finding is not
                supported by the evidence.

                                                 -6-
                6.      That the trial court erred in its award of spousal support
                based on the errors it committed related to equitable distribution as
                set forth in the other assignments of error.

                7.      That the trial court erred in ordering the appellant to be
                incarcerated for civil contempt for an indeterminate period without
                limiting any confinement to twelve months pursuant to Virginia
                Code § 20-115.

                8.     That the trial court erred in directing the appellant to begin
                incarceration at a future date without having the opportunity to be
                heard by the Court prior to the imposition of incarceration.

                                              ANALYSIS

                                       I. Equitable Distribution

        “On appeal, a trial court’s equitable distribution award will not be overturned unless the

Court finds ‘an abuse of discretion, misapplication or wrongful application of the equitable

distribution statute, or lack of evidence to support the award.’” Wiencko v. Takayama, 62 Va. App.
217, 229-30, 745 S.E.2d 168, 174 (2013) (quoting McIlwain v. McIlwain, 52 Va. App. 644, 661,

666 S.E.2d 538, 547 (2008)).

                                         A. Personal Property

        Husband seeks the return of several items of personal property he claims that, while they

remain in wife’s possession, are his separate property. Specifically, he asks for paintings and prints

of Frederick the Great, a “Polish Uhlan” painting, a desk that had belonged to his father and two

accompanying bookcases, some silver, engravings and certificates, an iron cross dating from 1813,

and other miscellaneous prints. Wife admitted that the desk and Frederick the Great paintings and

prints were acquired by husband prior to the marriage and are in her possession. She also

acknowledged she had a white sofa, a bar, and some unidentified prints in her possession.

        Husband argues wife is not entitled to retain possession of these items because they

constitute his separate property, and as such, are not subject to the court’s equitable distribution

powers. Wife contends the property is not his because it belongs to their sons, or to the trust. The

                                                  -7-
court ordered that “the parties shall retain their separate property,” which it found included “any

personal property presently in their possession.”

        “Because the trial court’s classification of property is a finding of fact, that classification

will not be reversed on appeal unless it is plainly wrong or without evidence to support it.” Ranney

v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005). Separate property includes property

acquired prior to the marriage and property acquired during the marriage by gift or inheritance.

Code § 20-107.3. Wife does not dispute how the property was acquired or contend that the property

in question belongs to her, and the evidence supports the conclusion that some of it is not her

separate property. Accordingly, the trial court erred in ruling that the property was wife’s separate

property.

        Nevertheless, the fact that the property is not wife’s separate property does not render it

automatically husband’s separate property. Although the property may have been husband’s

separate property when the parties married or when he initially acquired them from his family as

heirlooms, wife presented evidence showing that husband may have divested himself of some of the

items or that some items had been turned over to the trust. However, the only way to resolve

whether a particular item is husband’s separate property or if he forfeited his interest in the item is to

consider each contested item individually. Although economical, the trial court’s resolution of the

issue by simply awarding the parties the personal property in their respective possession does not

sufficiently account for items of personal property that the parties acknowledge were, at least at one

time, the separate property of husband but are in wife’s possession. Consequently, we reverse the

trial court’s finding that the contested items of personal property in wife’s possession are her

separate property and remand the issue for the trial court to determine which items, if any, remain

husband’s separate property.




                                                    -8-
                                                B. Repton

          Appellant first challenges the trial court’s classification of husband’s interest in Repton as

marital property as opposed to being his separate property. He raises this issue for the first time on

appeal. He did not object to wife’s characterization of Repton as marital property at trial; he did not

raise the issue in his motion to reconsider; and in objecting to the final decree, he contested the trial

court’s allocation of “100 percent of the marital debt to him to compensate [wife] for her interest in

Repton Group, for which she presented little evidence of value[.]” Having failed to argue at trial

that his interest in Repton was his separate property and having failed to object at trial to the trial

court’s classification of his interest as marital property, appellant has failed to preserve this issue for

appeal. Accordingly, we decline to address his argument that his interest in Repton should not have

been classified as marital property. Rule 5A:18; Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736

(1991).

          Having found that Repton was a marital asset, the trial court was required to determine its

value and, if appropriate, make a distribution. Code § 20-107.3 sets forth three distinct stages by

which a court is to fashion an equitable distribution award: “The court first must classify the

property as either separate or marital. The court then must assign a value to the property based upon

evidence presented by both parties. Finally, the court distributes the property to the parties, taking

into consideration the factors presented in Code § 20-107.3(E).” Marion v. Marion, 11 Va. App.
659, 665, 401 S.E.2d 432, 436 (1991).

          Citing our prior decisions, the trial court noted that, to the extent that the intrinsic value

of Repton was the result of goodwill resulting from husband’s reputation or business acumen, a

portion of Repton’s value was the husband’s separate property. It then concluded that “[t]he

intrinsic value of [Repton] is inextricably intertwined with [h]usband’s professional ability, so if

he is removed from the business, its value is simply the fair market value of the business

                                                    -9-
assets . . . .” Thus, the trial court determined that the fair market value of Repton’s assets would

be used to calculate the value of the marital property portion of husband’s interest in Repton.

       Little evidence of the value of Repton’s assets was adduced. Having reviewed all of the

evidence, the trial court concluded that “no evidence was presented” as to the value of Repton’s

assets. Consequently, the trial court did not assign a specific monetary value to husband’s

interest in Repton. The failure or inability of a trial court to assign a monetary value to a marital

asset has significant implications for an equitable distribution award.

       It was wife’s burden to present evidence of Repton’s value in order to be entitled to a

distribution of her marital share of the property. See Bowers v. Bowers, 4 Va. App. 610, 617, 359
S.E.2d 546, 550 (1987). A failure to adduce sufficient evidence of value to allow the trial court to

assign a value to a particular item of marital property results in that property being excluded

from the equitable distribution formula. See Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d
572, 576 (1992); Swisher, Diehl & Cottrell, Family Law: Theory, Practice & Forms § 11.25(a)

(2005 ed.) (“Where . . . evidence of value is insufficient to make a determination of value, the

court is without authority to make an equitable distribution award based upon said property.”).

Thus, a finding that insufficient evidence of value was presented regarding the value of Repton

should result in no equitable distribution award related to husband’s interest in Repton.

       Standing alone, such a result would have fully resolved the issues involving the valuation

and distribution of Repton; however, the trial court made an additional ruling regarding

husband’s interest in Repton that cannot be reconciled with these findings.

       Specifically, in apportioning $249,000 in marital debt, the trial court ruled that

“[h]usband shall retain ownership of the Repton Group in his sole name. To compensate Wife

for her interest in that entity, and for the [husband]’s mismanagement and waste of marital

resources, the [husband] shall retain full responsibility for and hold the [wife] harmless from the

                                                - 10 -
Marital Debt.” (Emphasis added). Although the trial court did not specify how much of the

$249,000 debt assignment was to compensate wife for her marital share of husband’s interest in

Repton as opposed to being a result of the other stated reasons,2 the fact that any amount was to

compensate wife for her marital share of husband’s interest in Repton contradicts the trial court’s

finding that insufficient evidence was presented as to Repton’s value to allow for a valuation

determination. Inherent in the trial court’s decision to monetarily “compensate [w]ife for her

interest in” Repton is a finding of some value for Repton. Thus, the trial court implicitly found

(1) some value of Repton was discernable from the evidence presented and (2) wife was entitled

to at least a portion of that value.3

        Given the deference due the trial court as factfinder, either finding, whether the evidence

was insufficient to establish Repton’s value to allow for an equitable distribution award or that

the evidence sufficiently established Repton’s value to allow the apportionment of some of the

marital debt to husband to compensate wife for her marital share in husband’s interest in Repton,

likely would withstand appellate review. By definition, however, a trial court commits an abuse

of discretion when its valuation and distribution decisions are contradictory and cannot be

reconciled. Thus, the trial court erred either in concluding that the evidence did not allow it to

determine a value for Repton or in compensating wife for an asset it had concluded could not be

valued because of a lack of evidence.




        2
          We note that, although the trial court’s consideration of husband’s “mismanagement
and waste of marital resources” was appropriate in addressing equitable distribution, it is unclear
to what extent they, rather than the value of wife’s marital share of husband’s interest in Repton,
led to the apportionment of all of the marital debt to husband.
        3
         Once again, we note that the record must be viewed in the light most favorable to wife,
the prevailing party below. Niblett, 65 Va. App. at 622, 779 S.E.2d at 842.


                                               - 11 -
       Accordingly, we remand the issue of the valuation and distribution of husband’s interest

in Repton to the trial court for further proceedings. Based on the existing record, the trial court

shall determine the value, if any, of Repton. If the trial court determines that the evidence does

not support Repton having a value subject to distribution, it shall so specify. Alternatively, if the

trial court determines that Repton has a value that is ascertainable from the evidence previously

adduced and that wife is entitled to a resulting award to be paid by the husband’s assumption of a

specific portion of the marital debt, the trial court shall specify said amount.

                                         II. Spousal Support

       “In reviewing a spousal support award, we are mindful that the trial court has broad

discretion in awarding and fixing the amount of spousal support. Accordingly, our review is limited

to determining whether the trial court clearly abused its discretion.” West v. West, 53 Va. App.
125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d
126, 128 (2005)). Husband contends the trial court “erred in ignoring [his] legitimate business

expenses in determining his income and, therefore his purported ability to pay support . . . is not

supported by the evidence.” Additionally, he argues that the “[t]rial [c]ourt erred in its award of

spousal support based on the errors it committed related to equitable distribution as set forth in

the other assignments of error.” We address each contention in turn.

                   A. Consideration of Husband’s Claimed Business Expenses

       In determining spousal support, the trial court is directed to consider “[t]he earning capacity,

obligations, needs and financial resources of the parties, including but not limited to income from all

pension, profit sharing or retirement plans, of whatever nature.” Code § 20-107.1(1). For purposes

of spousal support calculations, “income” is “subject to deduction for reasonable business expenses

for persons with income from self-employment, a partnership, or a closely held business.” Frazer v.

Frazer, 23 Va. App. 358, 377-78, 477 S.E.2d 290, 299 (1996) (holding that the calculation of gross

                                                 - 12 -
income for the determination of spousal support should be no different than the calculation of gross

income for purposes of determining child support, pursuant to Code § 20-108.2(C), which provides

for deduction of reasonable expenses).

       Husband contends the trial court failed to allow him to deduct reasonable business expenses

from his gross income. The statute provides only for “deduction of reasonable business expenses,”

and husband concedes that he bore the burden of establishing that the expenses he claimed were

reasonable.

       Husband offered the only evidence of the reasonable business expenses he allegedly

incurred. The totality of the evidence adduced was husband’s testimony and tax return

documentation of both husband and Repton. Nothing in the record suggests the court failed to

consider evidence of the expenses; rather, the trial court found husband’s expense claims

“incredible.” The trial court was not bound to accept appellant’s evidence. Sitting as factfinder, the

trial court could certainly conclude that certain categories of expenses were excessive and appeared

to have been “double counted,” deducted once by Repton and again by husband. In short, based on

this record, the trial court’s decision to reject husband’s claim regarding business expenses was

reasonable. Accordingly, we cannot say that the trial court erred in refusing to include the claimed

expenses in its calculation of husband’s income for spousal support purposes.

              B. Effect of Ruling on Equitable Distribution on Spousal Support Award

       Husband correctly notes that review of the spousal support award is required if the trial court

erred in its equitable distribution award. As we previously have held, “where an equitable

distribution award is reversed on appeal and the provisions with regard to the marital property

are to be considered on remand, the court must necessarily re-examine spousal support in the

light of whatever new or different considerations flow from the additional proceedings.”

Robinson v. Robinson, 46 Va. App. 652, 671, 621 S.E.2d 147, 156 (2005) (en banc) (internal

                                                - 13 -
quotation marks and citations omitted). Having reversed and remanded the trial court’s equitable

distribution award, we also must remand regarding spousal support to allow the trial court to

consider what effect, if any, its ultimate equitable distribution award should have on the award of

spousal support.4

                                             III. Contempt

        “[W]e review the exercise of a court’s contempt power under an abuse of discretion

standard.” Zedan v. Westheim, 60 Va. App. 556, 574, 729 S.E.2d 785, 794 (2012) (quoting

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.” Id.

(quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998)).

        The trial court found husband in contempt for failing to make past due support payments

that were required by the pendente lite order. The trial court ordered him to make the past due

payments by a date certain or report to jail for contempt. Husband challenges the contempt order on

two grounds. He argues that the imposition of a jail sentence to be served in the future constitutes a

violation of his due process rights and that the indefinite term of the jail sentence violates Code

§ 20-115.

                                      A. Due Process Challenge

        Citing our decision in Street v. Street, 24 Va. App. 14, 480 S.E.2d 118 (1997), husband

argues that the trial court has violated his due process rights by imposing “a future, indefinite jail

sentence conditioned upon his failure to completely satisfy his arrearage obligation by a date

certain.” Husband’s reliance on Street is misplaced.



        4
         Husband concedes that, depending on how the trial court ultimately resolves the
equitable distribution issues, the amount of spousal support is subject to being increased or
decreased.

                                                  - 14 -
        In Street, we held that before a trial court may hold a litigant in contempt and impose a

punishment for failing to pay a support arrearage, it must afford him due process. Id. at 24, 480

S.E.2d at 121. We noted that

                a defendant charged with out-of-court contempt must be given the
                opportunity to present evidence in his defense, including the right
                to call witnesses. The due process clause of the Fourteenth
                Amendment requires that alleged contemners have a reasonable
                opportunity to meet [the charge of contempt] by way of defense or
                explanation. This due process right includes the right to testify, to
                examine the opposing party, and to call witnesses in defense of the
                alleged contempt.

Id. (internal quotation marks and citations omitted).

        Here, the trial court afforded husband due process prior to finding him in contempt or

imposing any punishment. Husband was given notice of the October 14, 2015 show cause hearing,

was allowed to answer the charge of contempt by presenting witnesses or any defenses he may have

had, including an argument regarding his ability to pay, and was even allowed to challenge the

contempt conviction in a motion to reconsider. As a result of the hearing, the trial court found him

in contempt for his failure to pay past due support and specifically found that husband had, in the

past and as of the date of the hearing, the ability to pay the sums due. In short, husband was

afforded all of the due process to which he was entitled before the trial court found him in contempt

or imposed punishment.

        The fact that, in an act of grace, the trial court gave husband almost a full year to satisfy the

arrearage before imposition of the contempt penalty does not alter the analysis. Consistent with due

process, the trial court could have ordered husband to jail at the conclusion of the October 14, 2015

hearing, conditioning his release on the payment of the arrearage. That the trial court effectively

suspended the sentence conditioned upon full payment being made before December 29, 2016, does

not impinge on the due process rights of the defendant. Because the trial court could have imposed

the penalty at the time of the hearing, the delayed imposition of the jail sentence conferred a benefit
                                                  - 15 -
on husband, and thus, did not infringe on his due process rights. Accordingly, husband’s due

process challenge to the contempt finding and subsequent punishment is not well-founded.

                                     B. Code § 20-115 Challenge

        Pursuant to Code § 20-113, “[t]he court, when it finds the respondent has failed to perform

the order of the court concerning the custody or the maintenance and support of the child or support

and maintenance of the spouse . . . may proceed to deal with the respondent as provided in . . .

[§] 20-115.” Code § 20-115 provides, in pertinent part, that

                upon conviction of any party for contempt of court in (i) failing or
                refusing to comply with any order or decree for support and
                maintenance for a spouse . . . or (ii) willfully failing or refusing to
                comply with any order entered pursuant to § 20-103 or § 20-107.3,
                the court (i) may commit and sentence such party to a local
                correctional facility as provided for in § 20-61 . . . . [T]he
                assignment [to the local correctional facility] shall be for a fixed or
                indeterminate period or until the further order of the court.
                However, in no event shall commitment or work assignment be for
                more than twelve months.

        Consistent with the statute, the trial court sentenced husband to the local jail for an indefinite

period of time, allowing husband to avoid jail time altogether or, if he served, to effectuate his

release upon payment of the past due support. However, when husband raised the issue of the

maximum sentence allowed under Code § 20-115, the trial court stated that the contempt finding

was for “civil contempt and that [the sentence limitation found in Code §] 20-115 does not

apply . . .” and ordered that, if he is required to report to jail, husband “remain incarcerated until

he pays any remaining Contempt Arrears in full.”




                                                  - 16 -
        This was error.5 Regardless of whether the contempt is viewed as civil or criminal in

nature,6 Code § 20-115 places a limit on how long a party may be confined for failure to make a

support payment. Although we previously have held in a case of civil contempt for failure to

make support payments that “there exists no express requirement that the court reference the

statutory limitation on confinement in its order and . . . its omission is not a basis for reversal

. . . ,” Thompson v. Commonwealth, Record No. 0390-01-2, 2003 Va. App. LEXIS 42, at *6-7

(Va. Ct. App. Feb. 4, 2003), the trial court’s express statement that the statute, and hence its

limitation, did not apply raises significant concerns.7 Accordingly, we remand the contempt

issue to the trial court for the limited purpose of noting in the order that the jail term is “until

husband pays any remaining Contempt Arrears but, in no event, shall such term of confinement

exceed twelve months.”




        5
        We note that wife, with commendable candor, conceded on brief “that twelve (12)
months is the maximum time to be served” for the contempt conviction.
        6
          Contempt citations “are of two classes — those prosecuted to preserve the power and to
vindicate the dignity of the court, and those instituted to preserve and enforce the rights of private
parties. The former are criminal and punitive in their nature; the latter are civil and remedial.”
Roanoke W. W. Co. v. Glass Co., 151 Va. 229, 235-36, 144 S.E. 460, 462 (1928). Furthermore,
“[t]he punishment [for contempt], whether fine or imprisonment, is deemed to be criminal if it is
determinate and unconditional . . . ; [t]he punishment is deemed to be civil if it is conditional, and a
defendant can avoid such a penalty by compliance with a court’s order.” Powell v. Ward, 15
Va. App. 553, 558, 425 S.E.2d 539, 542-43 (1993) (quoting Bagwell v. Internat’l Union, United
Mine Workers of Am., 244 Va. 463, 475, 423 S.E.2d 349, 356 (1992)). An order to pay spousal or
child support will always involve the rights of private parties, and thus, failure to comply with a
support order can always give rise to a civil contempt conviction. However, because a court may
also use the contempt power to vindicate the dignity of the court and its order, it is conceivable that
failure to comply with such an order could be deemed an offense against the court, and thus, could
constitute a criminal contempt.
        7
         Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012).

                                                 - 17 -
                                    IV. Attorneys’ Fees on Appeal

        Both parties have requested that they be awarded attorneys’ fees on appeal. Specifically,

wife asks that we order that “she recover her costs expended in this matter and remand this case

to the [t]rial [c]ourt for an award of reasonable attorneys’ fees expended defending this meritless

appeal.” Husband, citing wife’s conduct of the appeal, “requests that he be awarded his

attorney’s fees related to this appeal . . . .”

        We deny both parties’ requests for attorneys’ fees incurred on appeal. We deny wife’s

request because, contrary to her assertions, husband’s arguments were not frivolous. Because we

have found that at least some of husband’s arguments meritorious, it is clear that at least some of

the issues he raised were “appropriate and substantial,” and therefore, an award of fees to wife

would be inappropriate. Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438

(2004). Similarly, because wife successfully defended against at least some of the issues raised

by husband on appeal, we find that it would be inappropriate to order her to pay his attorneys’

fees.8 Accordingly, the parties shall bear their own attorneys’ fees and expenses associated with

this appeal.

                                             CONCLUSION

        For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part,

and remanded to the trial court for further proceedings consistent with this opinion.

                                                                                        Affirmed in part,
                                                                                        reversed in part,
                                                                                         and remanded.




        8
         We also note that, regarding the issue of personal property on which husband has
prevailed, at least some of the confusion in the trial court likely stemmed from husband’s failure
to timely comply with the trial court’s discovery order.

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