COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

ELBERT L. AVERY, JR. 

 

v. Record No. 0221-95-3 OPINION BY 

 JUDGE JAMES W. BENTON, JR. 

COMMONWEALTH OF VIRGINIA, JULY 16, 1996 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

 ex rel. KIMBERLY R. CLARK 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

J. Samuel Johnston, Jr., Judge 

 James J. Angel for appellant. 

 Jack A. Maxwell, Special Counsel (Betsy S. 

Elliott, Senior Special Counsel; James S. 

Gilmore, III, Attorney General; William H. 

Hurd, Deputy Attorney General; Siran S. 

Faulders, Senior Assistant Attorney General; 

Robert B. Cousins, Jr., Senior Assistant 

Attorney General, on brief), for appellee. 

 Elbert L. Avery, Jr. appeals from the trial judge's refusal 

to hear his appeal from a final order of the juvenile and 

domestic relations court adjudging him guilty of contempt and 

assessing a support arrearage. Avery alleges that the trial 

judge erred in finding that because Avery failed to file an 

appeal bond the circuit court lacked jurisdiction to consider the 

contempt issue. We agree and reverse the order. 

 The record establishes that in 1990, a judge of the juvenile 

court ordered Avery to pay $100 per month support for his three 

children. In 1994, Avery was summoned to court from prison for 

failure to pay support. The judge determined Avery was indigent 
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and appointed counsel for him. Following a hearing, the judge 

found that an arrearage of $9,200 existed and adjudged Avery in 

contempt for violating the support order. He sentenced Avery to 

365 days in jail unless he paid the arrearage or reached an 

agreement with the Division of Child Support Enforcement. The 

judge set the appeal bond at $9,200, the amount of the child 

support arrearage. 

 Avery appealed to the circuit court. At a hearing in the 

circuit court, Avery's counsel argued that no bond was required 

to perfect the appeal, that Avery's sentence was criminal in 

nature, and that Avery was entitled to a trial de novo in circuit 

court pursuant to Code §§ 16.1-296(E) and 16.1-136. The trial 

judge ruled that the conviction and punishment were civil in 

nature, found that an appeal bond had not been filed, and 

dismissed the appeal on the ground that the circuit court lacked 

jurisdiction. The dismissal order recited that the juvenile 

court judge found that Avery has been jailed on a felony 

conviction "almost since ordered to pay [child] support" and that 

Avery "could not pay because of his felony conviction plus 

violation . . . of parole." 

 The statute governing appeals from the juvenile court 

states, in pertinent part, as follows: 

 No appeal bond shall be required of a party 

appealing from an order of a juvenile and 

domestic relations district court except for 

that portion of any order or judgment 

establishing a support arrearage or 

suspending payment of support during pendency 

of an appeal. In cases involving support, no 
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appeal shall be allowed unless and until the 

party applying for the same or someone for 

him shall give bond, in an amount and with 

sufficient surety approved by the judge or by 

his clerk if there is one, to abide by such 

judgment as may be rendered on appeal if the 

appeal is perfected or, if not perfected, 

then to satisfy the judgment of the court in 

which it was rendered. An appeal will not be 

perfected unless such appeal bond as may be 

required is filed within thirty days from the 

entry of the final judgment or order. 

Code § 16.1-296(H) (emphasis added). By its explicit terms, the 

statute removes the requirement for posting a bond except as 

provided in the statute. The provision specifying that a bond 

shall be required for an appeal of a judgment establishing 

support arrearages implicitly recognizes that an order that sets 

arrearages may have a component that does not establish a support 

arrearage. In such a case, an appeal bond is required only for 

"that portion of any order . . . establishing a support 

arrearage." Id.

 The juvenile court's order that Avery sought to appeal 

adjudged Avery guilty of civil contempt and assessed an 

arrearage. Seeking to appeal without the necessity of posting a 

bond, Avery's counsel argued, in part, to the circuit judge as 

follows: 

 I guess the first issue that the Court needs 

to decide is whether or not we properly 

perfected our appeal. It was done within the 

appropriate time, but what the J & D Court is 

saying that this is a civil matter so they 

had the right to set an appeal bond and that 

the case cannot be appealed until the appeal 

bond is posted. 

 It didn't sound right to me and I'm not 
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sure whether it is right or not, but I found 

a Court of Appeals decision. It's called 

Kessler vs. Commonwealth [,18 Va. App. 14, 

441 S.E.2d 223 (1994)]. 

* * * * * * * 

 And I submit to the Court that the same 

reasoning would apply that if a person is 

subject to twelve months in jail like my 

client received, it's criminal in nature and, 

therefore, he should be entitled to either a 

jury trial, which we're not asking for, but 

at least an appeal to the Circuit Court, 

which is why we're asking the Court to assume 

jurisdiction, allow us to put on some 

evidence really as to sentencing. We'll 

plead guilty to non support, but I think that 

there is some mitigation evidence that would 

justify a sentence less than the twelve 

months. So I think the first issue is the 

jurisdiction issue. 

* * * * * * * 

 And then I think it's--it's almost 

ludicrous to then find someone indigent and 

say that he doesn't have money to hire an 

attorney so that he is entitled to court 

appointed counsel, and then to make him post 

a $10,000.00 cash bond for his sentence to be 

reviewed by another Court. I mean, so, to 

say that, you know, to put a condition that 

 --that there is no way that the defendant can 

make, I think practically speaking there is 

no way that he could purge it so he doesn't-- 

so he doesn't--to style the order in that way 

would effectively deny his appeal. I don't 

think that's fair. 

 In finding a lack of jurisdiction, the trial judge ruled 

that the "statute says that [the juvenile judge was] entitled to 

set a bond in the amount of the arrears." However, this record 

clearly supports Avery's argument that he sought only to appeal 

the contempt finding. During the circuit court proceedings, 
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Avery's counsel addressed the nature of the contempt charge and 

the sentencing but never challenged the support arrearage. 

Indeed, Avery's counsel tacitly conceded the arrearage when he 

stated, "[w]e'll plead guilty to non support." Thus, his 

argument sufficiently "inform[ed] the court that he was pursuing 

an appeal of the contempt order and not appealing the 

determination of the support arrearage." McCall v. Commonwealth 

Dep't of Soc. Servs., 20 Va. App. 348, 352-53, 457 S.E.2d 389, 

392 (1995). 

 We need not address Avery's argument that because he was 

indigent and incarcerated, the contempt "punishment [was] . . . 

determined and unconditional," Kessler v. Commonwealth, 18 Va. 

App. 14, 16, 441 S.E.2d 223, 224 (1994), and, therefore, was a 

criminal matter requiring no bond. Code § 16.1-296(H) does not 

require the posting of a bond except as specified. A finding of 

contempt is not an order "establishing a support arrearage." See

McCall, 20 Va. App. at 352-53, 457 S.E.2d at 392. We hold, 

therefore, that Code § 16.1-296(H) permitted Avery to appeal from 

the juvenile court's contempt order without the necessity of 

posting a bond. 

 Accordingly, we reverse the order dismissing the appeal and 

remand to the circuit court for further proceedings. 

 Reversed and remanded.