COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

GLENN R. MILLER 

 MEMORANDUM OPINION*

v. Record No. 3002-95-4 PER CURIAM 

 JULY 16, 1996 

MARGARET R. MILLER 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Benjamin N. A. Kendrick, Judge Designate 

 (Jeffrey W. Parker; Kennon C. Hook; Niles, 

Dulaney, Parker & Lauer, on brief), for 

appellant. 

 (Stephen C. Price; Price & Zimmerman, on 

brief), for appellee. 

 Glenn R. Miller appeals the decision of the circuit court 

finding him in contempt. On appeal, appellant contends that (1) 

the trial court erred in finding him in contempt despite his 

inability to pay; (2) the trial judge erred in refusing to recuse 

himself; and (3) the trial court violated appellant's right to 

due process by failing to consider an additional allegation of 

the 1993 show cause order. 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. 

 Rule 5A:27. 

Inability to Pay

 On appeal, we view the evidence and all reasonable 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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inferences in the light most favorable to appellee as the party 

prevailing below. "Where, as here, the court hears the evidence 

ore tenus, its finding is entitled to great weight and will not 

be disturbed on appeal unless plainly wrong or without evidence 

to support it." Martin v. Pittsylvania County Dep't of Social 

Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). The trial 

court, as the finder of fact, was entitled to determine "the 

weight which should be given to evidence and whether the 

testimony of a witness is credible." Bridgeman v. Commonwealth, 

3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

 Appellant presented evidence that he had no income, no 

employment, and no assets. The trial court found appellant's 

testimony to be less than credible. The court stated: 

 You and you alone are the sole reason you're 

in this situation. You are intelligent, and 

you appear well educated. You're physically 

and mentally capable of working. There is no 

reason why you can't. The only reason why 

you can't is your defiance. And your 

defiance is deliberate, and it's willful, and 

you remain in contempt of Court. 

 Credible evidence indicated that appellant earned no income 

yet was able to earn income and pay the outstanding $6,100 debt. 

 Appellant testified that he did not pay the obligation when it 

initially was imposed because he "had other things I had to do." 

 Therefore, we find no error in the trial court's decision 

holding appellant in civil contempt. 

Motion to Recuse

 "It is within the trial judge's discretion to determine 
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whether he harbors bias or prejudice which will impair his 

ability to give the defendant a fair trial." Terrell v. 

Commonwealth, 12 Va. App. 285, 293, 403 S.E.2d 387, 391 (1991). 

"In exercising such discretion, a judge must not only consider 

his or her true state of impartiality, but also the public's 

perception of his or her fairness, so that the public confidence 

in the integrity of the judicial system is maintained." Buchanan 

v. Buchanan, 14 Va. App. 53, 55, 415 S.E.2d 237, 238 (1992). 

However, "even when circumstances create an appearance of bias, 

unless the conduct of the judge is shown to have affected the 

outcome of the case," the trial court's determination will not be 

reversed. Welsh v. Commonwealth, 14 Va. App. 300, 317, 416 

S.E.2d 451, 461 (1992), aff'd, 246 Va. 337, 437 S.E.2d 914 

(1993). The trial court's determination will be reversed on 

appeal only for an abuse of discretion. Terrell, 12 Va. App. at 

293, 403 S.E.2d at 391. 

 The only issue on remand was the nature of appellant's 

contempt. The trial judge denied appellant's request for a new 

judge because he knew the facts of the case and understood the 

instructions on remand. As noted in our previous order, the 

original order requiring payment of the sanction remained in 

effect. Appellant has failed to demonstrate any bias on the part 

of the trial judge which affected the outcome of the case. 

Therefore, we find no abuse of discretion in the trial judge's 

denial of appellant's motion to recuse. 
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Due Process

 The sole issue on remand from this Court was the nature of 

appellant's contempt of court. The trial court was authorized, 

within its discretion, to refer the matter to the Commonwealth's 

Attorney for a criminal contempt proceeding or to hold a civil 

contempt hearing. As no other matter remained to be decided, 

appellant's contention that he was denied due process by the 

limitation of the hearing is without merit. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.