COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner Argued at Chesapeake, Virginia

BRIAN McCLEAN CLUGSTON MEMORANDUM OPINION * BY v. Record No. 2186-08-1 JUDGE ROBERT P. FRANK AUGUST 4, 2009

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge Bryan H. Schempf (Geneva N. Perry; Jones, Blechman, Woltz & Kelly, P.C., on briefs), for appellant. Donald E. Jeffrey, III, Senior A ssistant Attorney Ge neral (William C. Mims, Attorney General, on brief), for appellee.

Brian McClean Clugston, appellant, was convicte d of criminal contempt of court as a result of his testimony in a divorce hear ing, in which he was the defendant. On appeal, appellant asserts that he was denied his due proces s rights, including notice of the cr iminal nature of the proceeding, advisement of his Fifth Amendment right against se lf-incrimination, notice of the right to counsel, and production of evidence estab lishing guilt beyond a reasonable doubt . Appellant al so contends that he was improperly convicted of contempt for perjury, becaus e perjury is not enumerated in Code § 18.2-456 as a predicate to summary contempt, nor does it re sult in the obstruction of the administration of justice. Fina lly, appellant argues that the trial court abused its discretion in denying his motion to stay execu tion of his sentence until the conc lusion of his appeal. For the reasons stated, we affirm, in part, and reverse, in part.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND We will recite only the procedural facts releva nt to our analysis. Th is appeal stems from a domestic relations matter. “On appeal, ‘we review the evidence in the ligh t most favorable to the Commonwealth, granting to it al l reasonable inferences fair ly deducible therefrom.’” Archer v.

Commonwealth , 26 Va. App. 1, 11, 492 S. E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S. E.2d 415, 418 (1987)). So viewed, Brian Clugston (app ellant) and his wife separated on July 2, 2 008. During a pendente lite hearing on August 18 , 2008, appellant testified he had not denied wife access to the parties’ bank accounts.

At the end of the hearin g, the trial court stated that he understood appellant’s testimony to be that he had done nothing to exclude his wife from their accounts. The cour t further requested that counsel advise the court if appellant’s testim ony was not true, and th e court would pursue a contempt citation. On August 26, 20 08, wife’s counsel wrote to the court that appellant had closed a joint bank account on August 12, 2008 – before the pendent lite hearing. On August 27, 2008, th e trial court faxed a lett er to counsel for both parties, but not to the parties themselves, stating that the attorneys shou ld schedule a hearing “for the Court to consider criminal contempt sanctions” against appellant. Th e notice styled the proceeding as civil, and the trial judge did not make the Commonwealth a part y to the matter. Appellant and his counsel appeared at a hearing the next day, in response to a telephone call from th e court that morning. Appellant’s counsel told th e trial court that he had not received the faxed letter from the court. The trial court addressed appellant and stated that the court had received information that contradicted appellant’s prior testimony that he di d not know why his wife co uld not access the First Advantage account. The trial c ourt further told appellant that the hearing was appellant’s- 3 - opportunity to respond to the court’s concerns. The trial cour t then questioned appellant, who was under oath. Appellant’s counsel, as well as wife’s counsel, also questioned appellant. The trial court did not notify appellant that he had a right not to incriminate himself. Appellant’s wife also testified at the hearing. Afte r argument of counsel, the trial court concluded appellant made a misrepresentation, unde r oath, concerning wife’s access to the bank accounts and found appellant in direct criminal contempt of court; to w it, obstruction of justice. The trial court sentenced appellant to ten days in jail, fined him $250, and ordered him to pay his wife’s attorney $250 in attorney’s fees. 1 The trial court denied appellant’ s oral motion for reconsideration

of the conviction and for a stay of his sentence. Appellant filed a motion to re consider, alleging he had not received procedural due process protections, and raised a generaliz ed objection to the sufficiency of the evidence. Appellant also moved the trial court to stay impos ition of the sentence pe nding an appeal. Th e trial court denied

both motions. This appeal followed.

ANALYSIS Appellant argues that he was denied the due process rights a fforded to criminal contempt defendants, including notice of the criminal natu re of the proceeding, advisement of his Fifth Amendment right against self-incri mination, notice of th e right to counsel, and production of evidence establishing his gu ilt beyond a reasonable doubt.

The Commonwealth contends that this issue is defaulte d under Rule 5A:12, because appellant’s question presente d does not address defendan t’s conviction of contempt. 2

1 Appellant has served his entire jail sentence.

2 In a footnote in its brief, the Commonwealth argues appellant’s motion to reconsider, which raised the procedural issu es, was not timely filed, citing Roadcap v. Commonwealth , 50 Va. App. 732, 653 S.E.2d 620 (2007). Roadcap is inapposite, because it only addresses post-trial objections to the admissibility of evidence. The Commonwealth cites no other cases to support its position. Until the trial court pronounced judgme nt and sentenced appellant, it was unclear as- 4 - Appellant’s question presented states: May an alleged perjurer be convi cted without being afforded due process protections including: noti ce of the criminal nature of the proceeding; notice of the alleged criminal conduct; advisement of his Fifth Amendment privilege agai nst self-incrimination; notice of the right and an opportunity to re tain counsel; notice of the right and the opportunity to prepare fo r trial and subpoena witnesses; and production of evidence establishing guilt beyond a reasonable doubt? We can conclude from the question presen ted that appellant ch allenged his contempt conviction. We must view the question presen ted in the context of the actual proceeding. Appellant was not convicted of perjury, although th e trial court found appellant lied under oath. The only criminal conviction in the record is for contempt. While inartfully stated, we conclude that appellant does challenge his conviction for contempt because procedural safeguards were not afforded him by the trial court. We conclude that any defect in the question presented is insignificant. See Jay v. Commonwealth , 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008) (directing the Court of Appeals to consider whether appellant’s failure to comply with the Rules is insignificant, allowing the Court to addr ess the merits of a question presented). “[A]ny act which is calculated to embarra ss, hinder, or obstruc t the court in the administration of justice is contempt.” Potts v. Commonwealth , 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946). Contempt proceedings can be ch aracterized as direct or indirect.

“The substantial difference betw een a direct and a constructive [indirect] contempt is one of procedure. Where the contempt is committed in the presence of the court, it is competent for it to proceed upon its own knowledge of the facts, ‘and to punish the offender without further proof, and without issue or trial in any form.’” (Citations omitted). “In dealing with indirect contempt s – that is, such as are committed not in the presence of the court – the offender must be brought

to the specific nature of the August 28 proceeding, thus preventing appellant from noting any objection at that time. The motion to reconsider was filed the next day. Therefore, we reject the Commonwealth’s argument that the motion was untimely.- 5 - before the court by a rule or some other sufficient process; but the power of the court to punish is the same in both cases.” [ Burdett’s Case ,] 103 Va. 838, 845-46, 48 S.E. 878, 880-81 [(1904)]. Davis v. Commonwealth , 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978). In this case, the Commonwealth concedes that the h earing that took place before the trial court was a plenary contempt proceeding in whic h the contempnor is entitled to procedural safeguards. See Robinson v. Commonwealth , 41 Va. App. 137, 146, 583 S.E.2d 60, 64 (2003) (holding that “[i]ndirect or c onstructive contempt charges . . . are not brought summarily, but must proceed under a more formal procedure than an immediate adjudication by the court”). Furthermore, the Commonwealth concedes that if appellant’s argument is not barred by procedural waiver, the trial c ourt did err and appella nt, upon remand, is entitled to a plenary hearing. Finding no procedural waiver, we hold th at the trial court erre d in conducting a plenary criminal contempt hearing without affording appe llant the protections to which he was entitled. Appellant next contends the evidence was insufficient to supp ort his conviction for criminal contempt. However, appellant’s second questi on presented does not challenge the general sufficiency of the evidence. 3 We decline to consider “an i ssue not expressly stated among the ‘questions presented.’” Hillcrest Manor Nursing Home v. Underwood , 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001); see also Lay v. Commonwealth , 50 Va. App. 330, 336 n.3, 649 S.E.2d 714, 716 n.3 (2007) (explaining that under Rule 5A:12(c), “[w]e . . . do not answer [an] unasked question”). Appellant’s failure to comply with Rule 5A :20(c) is significant enough that it prevents this Court from reaching the merits of the argum ent, resulting in a waiver of this issue. See Jay , 275 Va. at 519, 659 S.E.3d at 316 (holding that th e Court may treat a question presented as

3 Unlike the situation in Moore v. Commonwealth , 276 Va. 747, 756, 668 S.E.2d 150, 155 (2008), the Commonwealth here has not reli nquished its reliance on Rule 5A:12(c) by rephrasing the question presented in order to present the “legally correct” question to this Court.- 6 - waived if appellant does not comp ly with the requirements of a non-jurisdictional rule). We therefore will not address it on appeal. Appellant also asserts that th e trial court erred by convicting appellant of criminal contempt, because his alleged behavior is not among th e grounds enumerated in Code § 18 .2-456. Specifically, he contends perjury is neither enumerat ed in the statute nor resu lts in the obstruction of the administration of justice. Th e Commonwealth responds that appellant did not preserve this issue for appeal. We agree. No ruling of the trial court or the Virginia Workers’ Compensation Commission will be considered as a basis for reversal unless the objection was stated together with the grounds theref or at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of ju stice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a questi on to be ruled upon on appeal. Rule 5A:18. A question may not be presented for the fi rst time on appeal. “Thi s Court has said the primary function of Rule 5A:18 is to alert the trial judg e to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to a void unnecessary appeals, reversals and mistrials.” Neal v. Commonwealth , 15 Va. App. 416, 422, 425 S.E.2d 521, 525 (1992). In “fairness to the trial judge” appellate courts should not “put a different twist on a question

that is at odds with the question presented to the trial court.” Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999) . In this case, the trial judge was not given the opportunity to consider and rule on appellant’s argument. During his argument to the trial court, appe llant did not make the argument that he now presents to this Court. In hi s motion to reconsider, appellant contended in paragraph 7, “The- 7 - Defendant’s conviction la cked evidence beyond a reasonable doubt” and in pa ragraph 8, “The alleged offense by the defendant was not s ubject to the court’s power of contempt.” Neither of these claims put the trial court on notice that appellant contended perjury is

neither enumerated in the statute nor results in the obstru ction of justice. Thus, we conclude these issues are waived, and we will not address this argument. In his reply brief, appellant argues this Cour t should address this is sue under the “ends of justice” exception to Rule 5A:18. However, “[i]n order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice ha s occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (emphasis added). The ends of justice exception shoul d be used sparingly. Its purp ose is to allow this Court to avoid upholding a “misca rriage of justice.” Mounce v. Commonwealth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (19 87). The Supreme Court of Virginia has st ated that to apply the ends of justice exception “requires a determination not only that ther e was error . . . but also that application of the exception is necessary to avoid a grave injustice.” Charles v. Commonwealth , 270 Va. 14, 20, 613 S.E.2d 432, 434 (2005) . This occurs only in “rare instances.” Ball v. Commonwealth , 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981). Here, appell ant has given us no speci fic reason to invoke the exception to Rule 5A:18, and we decline to do so sua sponte

. Finally, appellant claims the tr ial court abused its discretion in denying his motion to stay

execution of the sentence. However, appellant has served the en tirety of his ten-day jail sentence. Therefore, this assignment of error is moot, and we decline to address it. Under established law, our duty is “‘to deci de actual controversies by a judgment which can be carried into effect, and not to give opinions up on moot questions or abstract propositions, or to declare principles or rules of law which can not affect the matter in issue in the case before it.’”- 8 - Potts v. Mathieson Alkali Works , 165 Va. 196, 225, 181 S.E. 521, 533 (1935) (quoting Mills v.

Green , 159 U.S. 651, 653 (1895). “It is well settled that where there is no actual controversy, involving real and substantial rights, between the parties to the reco rd, the case will be dismissed [as moot].” Thomas, Andrews & Co. v. Norton , 110 Va. 147, 148, 65 S.E. 466, 467 (1909).

This is because “‘courts are not constituted . . . to render advi sory opinions, to decide moot questions or to answer inquiries which are merely speculative.’” Commonwealth v. Harley , 256 Va. 216, 219-20, 504 S.E.2d 852, 854 (1998) (quoting City of Fairfax v. Shanklin , 205 Va. 227, 229-30, 135 S.E.2d 773, 775-76 (1964)).

CONCLUSION For the foregoing reasons, we conclude that the trial court erred in conducting a plenary criminal contempt proceeding without afford ing appellant his procedural due process protections. Accordingly, we re verse and vacate appe llant’s conviction for contempt, including the fine and assessment of attorney’s fees. Affirmed, in part, and reversed, in part.