Sulta N. McElroy v. Donald H. McElroy

• Court: Court of Appeals of Virginia
• Decided: June 22, 1999
• Docket: 0777994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

SULTA N. McELROY MEMORANDUM OPINION * v. Record No. 0777-99-4 PER CURIAM JUNE 22, 1999 DONALD H. McELROY

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge

(Jahangir Ghobadi; Jahangir Ghobadi, P.C., on briefs), for appellant.

(Stephen K. Christenson; Kevin R. Hildebeidel; Stephen K. Christenson, P.C., on brief), for appellee.

Sulta N. McElroy (wife) appeals the decision of the circuit

court granting the Motion to Compel Compliance filed by Donald H.

McElroy (husband). Wife contends that the trial court erred by

(1) finding that husband properly served wife when he filed a

motion to compel while wife's previous appeal to the Court of

Appeals was pending; and (2) sanctioning wife by changing the

effective date of wife's entitlement to husband's military pension

while the matter was pending on appeal. Upon reviewing the record

and briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. At the time husband filed his motion to compel, wife was

imprisoned following her conviction for solicitation to commit

murder.

Issue One

Wife contends that husband's motion to compel was improperly

served. She argues that Code § 20-115 required husband to file a

Rule to Show Cause rather than a Motion to Compel Compliance. We

find no merit in this argument.

Husband's motion to compel was filed pursuant to the

statutory authority set out in Code § 20-107.3(K). Husband served

wife's committee, who was wife's counsel of record during the

divorce proceedings and on appeal. See Code §§ 8.01-2(6)(a) and

8.01-9(B). We find no error in husband's service upon wife's

committee of the motion to compel.

Code § 20-115 authorizes the trial court to order commitment

to a correction facility or work assignment "upon conviction of

any party for contempt of court in . . . (ii) willfully failing or

refusing to comply with any order entered pursuant to § 20-103 or

§ 20-107.3." Wife argues that there was no evidence that she

willfully failed or refused to comply with any order entered

pursuant to Code § 20-107.3 and that there could be no finding of

contempt with evidence of willful failure or refusal to comply.

The trial court did not find wife guilty of contempt. Therefore,

wife's argument is moot.

- 2 - Issue Two

Wife also contends that the trial court erred by modifying

the final decree of divorce while the appeal was pending. We

find no error.

In the final decree, the trial court awarded wife forty

percent of the marital share of husband's pension, calculated as

$360 per month, beginning February 1, 1998. The court also

required wife to transfer $59,138 in assets to husband. As of

the November 20, 1998 hearing, wife had failed to transfer the

specified assets. Husband alleged that wife had "secreted or

otherwise disposed of" these assets to avoid meeting her

obligations under the final decree.

statutory authority set out in Code § 20-107.3(K). That section

provides that "[t]he court shall have the continuing authority

and jurisdiction to make any additional orders necessary to

effectuate and enforce any order entered pursuant to this

section . . . ." As a means of enforcing its decree, the

circuit court appointed a special commissioner to effect the

transfer of the real property ordered in the final decree. See

Code § 20-107.3(K)(3). The court also ruled that wife would

receive no benefits from husband's pension until she fully

complied with the trial court's final decree.

We find that the court's order fell within its statutory

authority to make any additional orders necessary to enforce and

- 3 - effectuate its equitable distribution decree. While the trial

court's order delayed wife's receipt of the pension benefits

given to her under the final decree, the order was framed to do

no more than compel her compliance with a valid order. It was

not designed to modify the parties' rights under the decree.

Cf. Wilson v. Wilson, 25 Va. App. 752, 757-58, 492 S.E.2d 495,

497-98 (1997); Decker v. Decker, 17 Va. App. 562, 563-64, 440

S.E.2d 411, 412 (1994). When wife complied with the January 23,

1998 order, her benefits under that order would commence.

Moreover, due to the unique circumstances of this case, the

trial court could not effectively rely upon a threat of

imprisonment for civil or criminal contempt to enforce

compliance, as wife was currently incarcerated.

Accordingly, the decision of the circuit court is summarily

affirmed.

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