COURT OF APPEALS OF VIRGINIA

Present: Judges Be ales, Alston and Senior Judge Frank Argued at Norfolk, Virginia

MARVIN ROBERT STALEY, SR. MEMORANDUM OPINION * BY v. Record No. 1414-17-1 JUDGE ROBERT P. FRANK MAY 1, 2018 OLIVIA DELORES BRYANT STALEY

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills, Judge James A. Weaver (The Law Office s of Daniel J. Miller, on brie f), for appellant. No brief or argument for appellee.

Appellant, Marvin Robert Staley , Sr., appeals an order dismiss ing his show cause against appellee, Olivia Delores Bryant Staley, and awarding her $3,000 in attorney’s f ees. Appellant argues that the trial court erre d by (1) “finding that the prop erty settlement agreement was ambiguous as it pertained to the parties’ understanding and agr eement that [appellee] had an obligation to refinance and remove [appellant’s] name from the mortgage on the former marital residence and to otherwise hold him harmless;” (2) “finding tha t [appellee] did not violate the terms of the Separation Agreement by e xecuting a balloon loan payment disclosure because the evidence was sufficient to support that [appellee] did not use best effo rts or act in good faith;” (3) “finding that [appellee] did not violate t he terms of the Separation Agr eement by failing to hold [appellant] harmless and that [appellant] wa s not harmed by the balloon loa n payment disclosure;” (4) “failing to find that . . . the properl y admitted parole evidence showed the parties’ clear intent for [appellee]

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - to refinance the mortgage and to hold [appellant] harmless, and that [appellee’s] f ailure to do either or both placed her in violation of the terms of the Separation Agreement;” and (5) awarding appellee $3,000 for h er attorney’s fees beca use (a) appellee’s “improper actions made it necessary for [appellant] to institute leg al proceedings to enforce the t erms of the prop erty settlement agreement” and (b) appellee’s “i mproper actions were fully supp orted by the evidence.” For the reasons stated below, we dismiss this appeal. On April 23, 2013, the parties entered into a separation agree ment, which was affirmed, ratified, and incorporated into t he parties’ final decree of di vorce on December 20 , 2013. Paragraph 4 of the separation agreement stated, in pertinent part: The parties agree th at Wife shall have exclusive use and posses sion of the marital home and shall be r esponsible for all costs asso ciated with said ownership. Wife shall hold Husband harmless for any liability incurred thereon. Hus band hereby waives all right, t itle and interest in the marital re sidence and shall sign any and al l documentation necessary to remove his name from the deed and mortgage immediately upon presentation of same. On December 7, 2 016, appellant filed a p etition for rule to sh ow cause. Appellant alleged that appellee violated the terms of the final dec ree, when she “willfully and intenti onally” executed a balloon payment disclosure tha t supplemented the loan modific ation agreement for the marital residence and listed appellant as a co-borrower. At no time di d appellant file a separate complaint for breach of contract. On December 20, 2016, the trial court entered a rule to show cause against appellee for appellee’s failure to abide by the separation agre ement and the final decree. On August 9, 2017, the parties appear ed before the trial court

. 1 The trial court dismissed the show cause against appellee and ordered appellant to pay $3 ,000 to appellee’s counsel for her

1 The transcript for the Augus t 9, 2017 hearing was filed late o n November 1, 2017. See Rule 5A:8(a).- 3 - attorney’s fees. On August 23, 2017 , the trial court entered a n order memorializing its ruling. This appeal followed. Appellant argues that the tri al court erred in dismissing his show cause and contends the trial court erred with its interpretation of appellee’s obligat ions pursuant to the pa rties’ separation agreement. In Jenkins v. Mehra, 281 Va. 37, 704 S.E.2d 577 (2011), the Su preme Court of Virginia held that Code §§ 19.2-318 and 8.01-670(A)(3) did not provide a ppellate jurisdiction to review

cases from circuit courts dismi ssing a rule to show cause and n ot finding a party in contempt. In Newton v. Jones, 66 Va. App. 20, 781 S.E.2d 759 (2016), this Co urt applied the Jenkins ruling and held that Code §§ 19.2-318 a nd 17.1-405 did not provide app ellate jurisdiction to review

cases when a circuit court dism isses a rule to show cause and r efuses to find a party in contempt. The Court explained that in Jenki ns, “the Supreme Court conclud ed ‘that Code § 19.2-318 does not provide appellate jurisdicti on for either this Court or the Court of Appeals to review the judgment of the circuit court di smissing the rule to show cause and refusing to hold the [appellee] in civil contempt of court.’” Id. at 21, 781 S.E.2d at 760 (quoting Jenkins, 281 Va. at 48, 704 S.E.2d at 583). The Court fu rther explained, “For the same reason that Code § 8.01-670(A)(3) does not grant appe llate jurisdiction to the S upreme Court to hear an appeal from a judgment refusing to find civil contempt, Code § 17.1-40 5 does not grant this Court jurisdiction to hear these type s of appeals.” Id. at 22-23, 78 1 S.E.2d at 760. Therefore, this Court does not have jurisdicti on to review the trial court’s ru ling dismissing the show cause against appellee. Likewise, this Court does not ha ve jurisdiction to review the trial court’s award of attorney’s fees to appellee because the award arose out of, and was dependent on, the trial court’s finding that appellee was not in c ontempt. The trial court bas ed its attorney’s fees on a provision- 4 - of the parties’ separation agreem ent, which required the court to award attorney’s fees to the prevailing party in an action to enforce the separation agreeme nt. Thus, the award of attorney’s fees was dependent on appellee prev ailing against the allegatio ns of why she should be held in contempt. Because we lack jurisdi ction to review the trial cou rt’s ruling that appellee was not in contempt, we also lack jurisdict ion to review the award of atto rney’s fees based on that ruling. Accordingly, this appeal is di smissed without prejudice. Id. a t 23, 781 S.E.2d at 761. While dismissing this appeal, we do not pass judgment on the merits o f appellant’s assignments of

error. Dismissed without prejudice.